er freezing the AT&T settlement funds pending a final judgment as requested by Noble. The defendants appealed.On appeal, the Eleventh Circuit declined to exercise appellate jurisdiction over the district court’s denial of the motion to dismiss, noting that the denial of the defendants’ motion was not a final, appealable judgment. But the court held that the asset freeze order was immediately appealable as a preliminary injunction under 28 U.S.C. § 1292(a)(1). The court then vacated the preliminary injunction on two main grounds. First, the court applied the doctrine of “prior exclusive jurisdiction,” holding that because the Colorado probate court had already exercised exclusive in rem jurisdiction over Horn’s estate pursuant to Colorado probate law, the district court lacked the jurisdiction to assert equitable control over the same real property in the form of an asset freeze.Second, the court held that the district court lacked authority to award preliminary injunctive relief under Federal Rule of Civil Procedure 65(b), noting that Noble’s petition in the district court sought final relief only in the form of a legal remedy (confirmation of the arbitration award) and did not otherwise invoke the court’s equitable jurisdiction. In so holding, the court noted that the existence of Noble’s lien against the Horn estate, standing alone, was insufficient to invoke the court’s equitable jurisdiction, as Noble had not affirmatively petitioned the district court to exercise its equitable authority in the form of an order of foreclosure on that lien. The court otherwise took no position as to whether Noble could state a claim for foreclosure of the lien in the district court.The Eleventh Circuit rejected Noble’s remaining arguments, vacated the asset freeze order, and remanded to the district court to address the merits of Noble’s pending petition to confirm the arbitration award.

s were too close in appearance to Whirlpool’s iconic KitchenAid stand mixer. Shortly after filing its complaint, Whirlpool requested a PI hearing. In its request, Whirlpool provided evidence that Sanlida had actual notice of the pending hearing. The district court granted the request and scheduled a hearing.Counsel for Whirlpool and Sanlida attended the hearing. At the hearing, Sanlida argued it had never been properly served under the Hague Convention and that without service, the district court could not assert personal jurisdiction over it. The district court disagreed and granted the PI. Sanlida filed an emergency motion to stay the order, but the district court rejected Sanlida’s request. Sanlida appealed.Sanlida argued that the district court did not have the power to issue a PI and that it abused its discretion in awarding the injunction. The Fifth Circuit found no error or abuse and affirmed.The Fifth Circuit explained that service is not a prerequisite to issuing a PI. Citing Fed. R. Civ. P. 65, the Court explained that the only requirement for issuing a PI is notice to the adverse party. Since it was undisputed that Sanlida had notice of the PI hearing, the Court found that the district court had the power to issue the PI. In doing so, the Court distinguished this case—where there was no dispute that the district court would have personal jurisdiction over Sanlida after the process was perfected—from cases where personal jurisdiction was a live question at the PI hearing.Turning to the merits of the PI, the Fifth Circuit addressed the four factors the district court had to consider before issuing the injunction: likelihood of success on the merits, threat of irreparable injury, balance of harms and public interest.On the first factor—likelihood of success—the Fifth Circuit found that the district court made no clear error. The two components of the likelihood of success analysis are validity and likelihood of confusion. On both points, the Fifth Circuit upheld the district

inance Law Quarterly Report and presented at the Conference on Consumer Finance Law Debt Collection Symposium. Jarrod D. Shaw & Benjamin J. Sitter, et al., Limitations On Bankruptcy Court Jurisdiction To Adjudicate Nationwide Class Actions Alleging Violation Of Discharge Injunction Under Section 524(A)(2), 74 Consumer Fin. L.Q. 328 (2020). At that time, the majority of lower courts as well as the Seventh, Ninth, and Eleventh Circuits had all held bankruptcy courts did not have authority to enforce other bankruptcy discharge injunctions, and, consequently, it was impermissible to adjudicate claims on behalf of a class with orders from various courts across the nation.Indeed, we predicted that the minority view, which included opinions from lower courts within the Second Circuit, was in question after the Second Circuit, Fifth Circuit, and Supreme Court issued decisions rebuffing the purported “fundamental difference” between injunctions under the Bankruptcy Code and those granted under Federal Rule of Civil Procedure 65. While the question has not yet reached the Supreme Court to unify these decisions, we anticipate the trend will continue across Circuits—adopting the majority view that bankruptcy courts have no authority to enforce discharge injunctions on behalf of debtors who received such orders from other courts. In any event, the Bruce decision should mark the end of a flurry of class actions brought in bankruptcy courts within the Second Circuit.

XYZ Corporation involves claims for trademark infringement, counterfeiting, false designation of origin, and patent infringement against alleged counterfeiters selling unauthorized versions of the plaintiff’s products through online marketplaces like eBay, Wish, and AliExpress. On May 23, the plaintiff filed a heavily redacted complaint, which sealed the names of the plaintiff and the defendants. The same day, the plaintiff moved for a TRO requesting that the court freeze the assets of the defendants’ PayPal and Alipay accounts, and allow expedited discovery regarding the defendants from eBay, PayPal, AliExpress, Alipay, and Wish. District Judge Giles granted the motion and entered a TRO on June 8.Judge Giles’ June 8 Order did not specify how long the TRO would remain in place, but Fed. R. Civ. P. 65(b)(2) limits TROs granted without notice to 14 days. Because of delays obtaining the requested information, on June 22, the day that the TRO was scheduled to expire, the plaintiff moved to extend the TRO. Judge Giles granted the motion the same day and extended the TRO until July 6. Judge Giles’ Order, however, did not specify a time that the TRO expired.On July 6, because of continuing delays, the plaintiff filed a second request to extend the TRO, which detailed its efforts to obtain discovery about defendants’ online accounts. The plaintiff apparently filed its motion after the court closed because the next day, Judge Giles entered an Order stating that “the Court was not given ample time to consider and decide upon the Motion before the TRO had already expired” and directing the plaintiff to file a supplemental brief explaining what authority the court had to extend a TRO that has already expired.In response, the plaintiff filed not one, but two supplemental briefs. In the first, the pl

Fed. R. Civ. P. 65 allows a district court to issue a temporary restraining order (TRO) and/or a preliminary injunction to maintain the status quo and avoid irreparable harm while a suit is pending. The process is intended to move quickly, and in the EDVA, it can move very quickly. In a recent example, an EDVA judge resolved a motion for preliminary injunction in a week, ordering the defendant to respond six days after the motion was filed and ruling on the motion from the bench the following day. See Northern Virginia Citizens As’n., Inc. v. Federal Highway Admin., et al., Case No. 1:23-cv-00356-LMB-IDD (E.D. Va. April 7, 2023) (ECF No. 40).Given the accelerated speed of the process, particularly in the EDVA, below is a discussion of common questions relating to Rule 65 motions in the EDVA:Request a TRO or a Preliminary Injunction or Both?A plaintiff is not required to file a motion under Rule 65 when it files its complaint, but it cannot wait long without undermining its argument that it is suffering

The US Court of Appeals for the Fourth Circuit vacated and remanded a district court ruling, finding that the district court failed to properly apply the Federal Rules of Civil Procedure (FRCP) in granting injunctive relief. Wudi Industrial (Shanghai) Co., Ltd. v. Wong et al., Case Nos. 22-1495; -1662 (4th Cir. June 5, 2023) (Gregory, King, JJ.) (Rushing, J., dissenting). The dissent argued that the district court simply entered a permissible order enforcing a settlement agreement between the parties.The FRCP outlines the necessary criteria and steps for courts to grant injunctive relief. FRCP 52(a)(2) requires courts to state the findings and conclusions that support their actions. FRCP 65(d) requires courts to state the reasons why the injunction was issued, state the injunction’s terms specifically or describe the restrained/required act(s) in detail. Per the Supreme Court’s Ebay test, a party seeking injunctive relief must demonstrate the following:It has suffered an irreparable injury.Remedies available at law, such as monetary damages, are inadequate to compensate for that injury.Considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted.The public interest would not be disserved by an injunction.Wudi Industrial competes with Wai L. Wong and his business entity GT Omega Racing (collectively, GTOR) in marketing video gaming chairs and other products. GTOR challenged Wudi’s GTRACING trademark registration in a cancellation proceeding at the Trademark Trial & Appeal Board, alleging that the mark encroached on GTOR’s earlier use of GT OMEGA RACING. The Board ruled in favor of GTOR, and Wudi initiated a first appeal at the dis

; UPC Agreement, Articles 60(7), 60(9), 62(5), 82(2).52See Apple, Inc. v. Samsung Elecs. Co., Ltd., 678 F.3d 1314, 1323 (Fed. Cir. 2012).53Trebro Mfg., Inc. v. Firefly Eqp’t, LLC, 748 F.3d 1159, 1165 (Fed. Cir. 2014) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)).54Apple Inc. v. Samsung Elecs. Co., Ltd., 695 F.3d 1370, 1373-74 (Fed. Cir. 2012) (citing Winter, 555 U.S. at 20).55Apple, 695 F.3d at 1373 (quoting Winter, 555 U.S. at 20).56AstraZeneca LP v. Apotex, Inc., 633 F.3d 1042, 1050 (Fed. Cir. 2010) (citation omitted).57See, e.g., Trebro, 748 F.3d at 1166-70.58Apple, 695 F.3d at 1373-74 (citations omitted). In view of the Supreme Court’s eBay decision, courts no longer presume irreparable harm upon a finding of a likelihood of success on the merits. See Robert Bosch LLC v. Pylon Mfg. Corp., 659 F.3d 1142, 1148-50 (Fed. Cir. 2011).59Apple, 695 F.3d at 1373-74 (quoting Winter, 555 U.S. at 20).60Apple, 695 F.3d at 1374 (quoting Winter, 555 U.S. at 20).61See Federal Rules of Civil Procedure, Rule 65(c). This requirement in Rule 65(c) to post a bond also applies to the grant of an ex parte temporary restraining order pending a preliminary injunction hearing.62 Federal Rules of Civil Procedure, Rule 65(a)(1); Digital Equipment Corp. v. Emulex Corp., 805 F.2d 380, 383 n.3 (Fed. Cir. 1986). In contrast, a U.S. court may issue a temporary restraining order without notice to the adverse party if “specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition.” Federal Rules of Civil Procedure, Rule 65(b)(1).63 Federal Rules of Civil Procedure, Rules 52(a)(2), 65(d)(1). If the court grants a preliminary injunction, it must also determine the amount of the bond the patentee must post.64 UPC Agreement, Article 62(2); UPC Rules of Procedure, Rule 211(3).65 EU Directive 2004/48/EC, Articles 3(1), 3(2).

On December 5, 2022, Plaintiff Shenzhen Chengront Technology Co., Ltd (“Plaintiff”) brought suit against Defendants Besign Direct and Shenzhen JianYi KeJi Youxian Gongsi (“Defendants”) alleging infringement of Plaintiff’s patent for an adjustable laptop stand. That same day, Plaintiff also filed an emergency motion for an ex parte TRO prohibiting the Defendants from selling the accused products online.Under Federal Rule of Civil Procedure 65(b), the Court may issue an ex parte TRO only if “specific facts in an affidavit or verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition,” and the moving party’s attorney has “certified in writing any efforts made to give notice and the reasons why it should not be required.” Typically, in most jurisdictions, and as is the case here, the same legal standard governs the issuance of preliminary injunctions and TROs.To obtain an injunction, the moving party must demonstrate (1) irreparable harm absent injunctive relief; (2) either a likelihood of success on the merits or a serious question going to the merits to make them a fair ground for trial, with a balance of hardships tipping decidedly in the movant’s favor; and (3) that the public’s interest weighs in favor of granting an injunction. A plaintiff’s delay in seeking a TRO after being put on notice of the alleged harm is “compe

On November 10, 2022, a federal district court in the Northern District of Texas entered judgment in favor of two plaintiffs on an Administrative Procedure Act (APA) claim seeking vacatur of the Biden administration’s plan to forgive approximately $400 billion in federal student loans under the HEROES Act of 2003. The court, citing a rarely used provision in Rule 65 of the Federal Rules of Civil Procedure, converted the plaintiffs’ motion for a preliminary injunction into a motion for summary judgment over the Biden administration’s objection, and then entered a final ruling on the merits that will (along with the still-pending administrative stay entered by the Eighth Circuit) prohibit the Biden administration from moving forward with its loan forgiveness plan—at least unless and until the administration obtains a stay and/or reversal of the court’s judgment in the Fifth Circuit Court of Appeals, which it has already sought.The complaint in the Texas action was grounded on the assertion that the administration failed to provide requisite opportunity for notice and comment by the public on the proposed rulemaking, which, according to the student-loan-borrower plaintiffs, might have allowed them to influence the loan forgiveness program’s parameters in such a way that it would benefit them, or benefit them to a greater extent. As with several other legal challenges to the loan forgivene

Federal Circuit Blocks hoverboard injunctions – Too many errorsThe Federal Circuit has vacated two preliminary injunctions against sales of hoverboards alleged to infringe design patents.The case is ABC Corp. I v. Partnership and Unincorporated AssociationsHangzhou Chic Intelligent Technology Co., Ltd. and Unicorn Global, Inc. (called ABC Corporation I and II in the opinion) sued several defendants that sell Gyroor hoverboards online. The plaintiffs alleged that the hoverboards at issue infringed several of the plaintiffs’ US design patents.A district court entered a temporary restraining order followed by a preliminary injunction which enjoined the defendants/appellants from “offering for sale, selling, and importing any products not authorized by Plaintiffs and that includes any reproduction, copy or colorable imitation of the design claimed….”The Federal Circuit determined that the preliminary injunction was procedurally improper for lack of proper Rule 65(a) notice.FRCP 65(d) states:(d) Contents and Scope of Every Injunction and Restraining Order.(1) Contents. 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.(2) Persons Bound. The order binds only the following who receive actual notice of it by personal service or otherwise:(A) the parties;(B) the parties’ officers, agents, servants, employees, and attorneys; and(C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B).As the court noted,The focus of the parties’ dispute before the district court as to the 2021 injunction was whether plaintiffs had established a likelihood of success on the merits that the accused products infringed one or more claims of the asserted patents. In order to establish design patent infringement, a plaintiff