When is a preliminary injunction not really a preliminary injunction?  When it is contained in the body of the opinion granting the injunction, rather than being made a stand-alone injunctive order – at least according to the U.S. Court of Appeals for the Seventh Circuit.

In its recent opinion in MillerCoors LLC v. Anheuser-Busch Companies, LLC[1] involving Bud Light’s “no corn syrup” advertising campaign, the Seventh Circuit held that the district court erred by incorporating the terms of its preliminary injunction into the end of its 49-page opinion. The Seventh Circuit remanded the case back to the district court “to enter the injunction in a document separate from the opinion.”

Miller Lite/Coors Light vs. Bud Light – Preliminary Injunction Issued

Plaintiff MillerCoors’ false advertising suit under the Lanham Act challenges Anheuser-Busch’s ad campaign highlighting MillerCoors’ use of corn syrup in brewing Miller Lite and Coors Light, as compared to Bud Light, which is brewed without corn syrup. According to MillerCoors, the ad campaign, among other things, created confusion as to whether Miller Lite and Coors Light contain corn syrup in the end-product beers. (They do not.)

The district court entered a preliminary injunction enjoining some aspects of the campaign, but allowing Anheuser-Busch to continue advertising that Miller Lite and Coors Light are “brewed with” or “made with” corn syrup, which is true since corn syrup is used at the beginning of the brewing process. Not satisfied, MillerCoors filed an appeal.

Case Remanded To Issue Preliminary Injunction Separate from Opinion

The remand order is presumably not what the parties expected from the appeal. Neither party objected to the form of the preliminary injunction, which was set forth at the end of the district court’s lengthy opinion as follows:

ORDER

IT IS ORDERED that:

• Plaintiff MillerCoors, LLC’s motion for preliminary injunction (dkt. #8) is GRANTED IN PART AND DENIED IN PART as follows. Defendant Anheuser Busch is PRELIMINARILY ENJOINED from using the following language within ten (10) days of this order in its commercials, print advertising and social media:
• Bud Light contains “100% less corn syrup”;
• Bud Light in direct reference to “no corn syrup” without any reference to “brewed with,” “made with” or “uses”;
• Miller Lite and/or Coors Light and “corn syrup” without including any reference to “brewed with,” “made with” or “uses”; and
• Describing “corn syrup” as an ingredient “in” the finished product.

The Seventh Circuit acted sua sponte in ordering the remand for failure to comply with its prior precedents requiring that a preliminary injunction be set forth in a separate document.

The Seventh Circuit explained its remand order as required by Rule 65(d) of the Federal Rules of Civil Procedure. According to the remand order, Rule 65(d) “requires every injunction to be set forth without referring to any other document.”

Dissent Argues Rule 65(d) Does Not Require Stand-Alone Preliminary Injunction

Circuit Judge Hamilton dissented from the remand order. He argued that Rule 65(d) “simply does not contain the ‘separate document’ requirement that is the basis for the majority’s remand.” While acknowledging that Seventh Circuit precedent can be read to impose such a requirement, he wrote that “[n]ever before have we put any teeth behind this groundless and trivial ‘requirement.’”

Rule 65(d)(1)(c) provides: “Every order granting an injunction and every restraining order must: (A) state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail—and not by referring to the complaint or other document—the act or acts restrained or required.” According to the dissent, the majority’s conclusion that subpart (C) “requires” that a preliminary injunction be set forth in a document separate and apart from the opinion is not justified by the language of the rule – even if it is arguably good practice.

Practitioners: Be Sure to Ask for a Separate Preliminary Injunctive Order

As Circuit Judge Hamilton notes, the district court’s action in setting forth the terms of the preliminary injunction at the end of its opinion granting the injunction is hardly unusual. Practitioners in the Seventh Circuit who confront this scenario should ask the district court to follow up its opinion with a separate injunctive order.

Count the Seventh Circuit’s opinion – along with the Second Circuit’s opinion from earlier this year vacating a preliminary injunction for lack of specificity[2] – as another reminder of the need for paying careful attention to the formalities in drafting proposed preliminary injunctions.

Dilly Dilly.

[1]http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D10-18/C:19-2200:J:PerCuriam:aut:T:op:N:2416105:S:0

[2] See “The Devil Is in The Details: Second Circuit Reverses Injunction For Lack of Specificity Required by Rule 65” https://non-compete.law/2019/07/11/the-devil-is-in-the-details-second-circuit-reverses-injunction-for-lack-of-specificity-required-by-rule-65/