On the Microsoft preliminary injunction case

In Sun Microsystems, Inc. v. Microsoft Corp., the Fourth Circuit in an opinion by Judge Niemeyer joined by Judges Widener and Gregory affirmed in part and reversed in part the preliminary injunctive relief ordered in December 2002 by Judge Motz on the anti-trust and copyright claims concerning Microsoft's use of Sun's Java technology.

The market implications of this decision have been described elsewhere, but what is interesting to me is that the Court continues to apply the old Blackwelder test for preliminary injunctions, as noted in footnote 4, which says:

"Although this circuit’s emphasis on the balance of the hardships has been criticized as inconsistent with Supreme Court precedent "by over-valuing the inquiry into the relative equities of granting and denying a requested injunction to an extent that essentially denies any value whatsoever to the inquiry into the likelihood of success on the merits," see Safety-Kleen, 274 F.3d at 868 (Luttig, J., concurring), we remain bound by the test as it has been consistently articulated and applied by prior appeals. . . ."

A judge who has seen this blog once asked me about this concurring opinion by Judge Luttig. Among other things, Judge Luttig wrote: "In actual practice, even though not in formal doctrine, we have virtually without exception insisted upon a showing by the plaintiff of the likelihood of success on the merits of his claim before we have either entered an injunction in the trial court or affirmed the trial court's entry of an injunction on appeal--and we have required this showing not merely at the threshold but also regardless of whether the balance of harms decidedly favored the plaintiff. Relatedly, we have all but abandoned the instruction that the balancing of harms is the preeminent of the injunction inquiries. And for their part, and to their credit, litigants have not dared to argue their causes even principally, much less alone, on the strength of the equities at stake, whatever they were." Safety-Kleen, Inc. (Pinewood) v. Wyche, 274 F.3d 846, 871 (4th Cir. 2001) (Luttig, J., concurring). I suppose the judge was telling that me that he thought I was trying (in opposing a motion for preliminary injunction) to do what Judge Luttig was crediting other litigants for not doing (daring to argue that the balance of harms alone was sufficient reason to deny the motion).