If you’ve practiced in federal court in North Carolina for any period of time — or anywhere in the Fourth Circuit for that matter — you are familiar with the case of Blackwelder Furniture Co. of Statesville v. Seilig Manufacturing Co., 550 F.2d 189 (4th Cir. 1977), which set out the standard for the grant of a preliminary injunction. 

You would never write a brief asking for or opposing injunctive relief in federal court in the Fourth Circuit without mentioning Blackwelder.  It was a standard, a touchstone.

Well, the Blackwelder era is now over.  The Fourth Circuit decided today The Real Truth About Obama, Inc. v. Federal Election Commission, in which it ruled that Blackwelder stood in "fatal tension" with a 2008 Supreme Court decision, and held that "the Blackwelder balance-of-hardship test may no longer be applied in granting or denying preliminary injunctions in the Fourth Circuit."

The Supreme Court decision is Winter v. Natural Resources Defense Council, Inc., 129 S.Ct. 365, 374-76 (2008).  Judge Niemeyer, writing for the Fourth Circuit, held that in Winter "the Supreme Court articulated clearly what must be shown to obtain a preliminary injunction . . . the plaintiff must establish ‘[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.’"

The Winter articulation is the new standard in the Fourth Circuit.  Here’s a chart showing the points of "fatal tension" between Blackwelder and Winter, and how the test for injunctive relief has changed:


The Supreme Court In Winter
The Fourth Circuit In (Now Overruled) Blackwelder
Plaintiff "must make a clear showing that it will likely succeed on the merits at trial." Likelihood of success was to be considered "only after a balancing of hardships [was] conducted and then only under the relaxed standard of showing that ‘grave or serious questions are presented."
Plaintiff must "make a clear showing that it is likely to be irreparably harmed absent preliminary relief." Court was to "balance the irreparable harm to the respective parties, requiring only that the harm to the plaintiff outweigh the harm to the defendant."  In some cases, only a possibility of irreparable injury was required.
 Courts are required to "pay particular regard for the public consequences in employing the extraordinary remedy of injunction." Did not require extensive consideration of the public interest, although it was always required to be considered.
Each of the four injunction requirements must be met. Allowed the requirements "to be conditionally redefined as other requirements are more fully satisfied," and allowed a "flexible interplay."


The Real Truth About Obama case involved the constitutionality of Federal Election Commission regulations of political advertising.  Plaintiff sought an injunction against their enforcement, which was denied by the District Court.  The Fourth Circuit affirmed, finding that the Plaintiff had not made a "clear showing that it [was] likely to succeed at trial on the merits."  One of the concerns articulated by the District Court was that enjoining the regulations "would create a ‘wild west’ of electioneering fundraising and communications."