Massachusetts Law Review

The words of the preliminary injunction standard spelled out in Packaging Industries Group, Inc. v. Cheney over 25 years ago have become familiar to anyone who practices in a Massachusetts state court. The Supreme Judicial Court (“SJC”) instructed trial courts to use their discretion to strike a balance of a “combination of the moving party’s claim of injury and chance of success on the merits” in which “[w]hat matters as to each party is not the raw amount of irreparable harm … but rather the risk of such harm in light of the party’s chance of success on the merits.” These words are recited as boilerplate in every preliminary injunction brief and decision, so much so that they often are cited without quotation or elaboration. Tennyson wrote of repeating a word “till the word we know so well
[b]ecomes a wonder, and we know not why.” This article sets out to wonder at these familiar words and ask why.

The article examines a quarter century of experience with the Packaging Industries standard and how the Massachusetts judicial system has applied and adapted the decision. Part I looks back at the Packaging Industries opinion to review the conceptual simplicity of the SJC standard in contrast to the formulaic four-part test applied in many federal courts, including in the First Circuit. Part II looks at the latter contrast and reviews the actual application of the standard in decided cases, analyzing first the moving party’s burden and then each side of the balance – the likelihood of success on the merits and the risk of irreparable harm. Part III considers the impact of the “public interest” on the grant or denial of preliminary injunctions, an issue that was not discussed in Packaging Industries but emerged later for application “in an appropriate case.” Finally, in Part IV, the article looks at the procedures adopted to consider and review injunctions under the Packaging Industries standard.

Understanding these standards and procedures is essential for litigators in Massachusetts. This state has adopted its own unique model for preliminary injunctions. Moreover, the accelerated provisional decision whether to grant a preliminary injunction can have a critical impact on the parties and on the outcome of litigation. Baseball games do not get called after the first inning, but lawsuits sometimes do. Because the call on a preliminary injunction can end the game, good umpiring and avoiding strikes and errors are essential.

I. Packaging Industries Revisited

Packaging Industries charted new standards in a familiar context: a former employee going into business in competition with his erstwhile employer. The merits were routine, but the standards radically altered the grant and denial of preliminary injunctions in Massachusetts.
The SJC’s discussion of the proper standard for issuing preliminary injunctions began by focusing on the preliminary nature of such relief. It is “[b]y definition … granted or denied after an abbreviated presentation of the facts and the law” in which the outcome “may not correspond to the final judgment.” Justice Ruth Abrams’ opinion for the court explained that this abbreviated hearing and the resulting risk of an erroneous interlocutory decision are justified in light of the limited aim of a preliminary injunction: to create or to preserve “insofar as possible, a state of affairs such that after the full trial, a meaningful decision may be rendered for either party.” This aim underlay the court’s definition of irreparable harm for purposes of a preliminary injunction. Irreparable harm is not any kind of harm a party can invoke, but “a loss of rights that cannot be vindicated should it prevail after a full hearing on the merits” or rights “not capable of vindication by a final judgment, rendered either at law or in equity.”

Recognizing that such loss of rights can occur on both sides of the “v,” the court issued its often-quoted prescription for the balancing of harms:

If the judge is convinced that failure to issue the injunction would subject the moving party to a substantial risk of irreparable harm, the judge must then balance this risk against any similar risk of irreparable harm which granting the injunction would create for the opposing party. … Only where the balance between these risks cuts in favor of the moving party may a preliminary injunction properly issue.

In striking this balance, each side’s harm must be factored by its probability of success (and the corresponding risk that rights will be lost due to an erroneous preliminary decision). Thus, “[w]hat matters … is not the raw amount of irreparable harm the party might conceivably suffer, but rather the risk of such harm in light of the party’s chance of success on the merits.”

Packaging Industries came in the wake of the then-recent procedural merger of law and equity in Massachusetts and the even more recent enactment of General Laws chapter 231, section 118, second paragraph, permitting interlocutory appeals of preliminary injunction decisions. The decision stripped away accreted maxims and formulas and reaffirmed equity as “not just a system correcting the defects of the common law system but also a flexible one, able to account for individual hardships.” This period also saw a reappraisal of injunctions throughout Anglo-American law with several scholarly efforts to take a fresh look at injunctions. Among these was a “now-classic,” “influential” article with a “bold argument” on preliminary injunction standards by Rutgers Law School Professor John Leubsdorf. In Packaging Industries, the SJC explicitly and thoroughly committed Massachusetts to Leubsdorf’s model.

The court’s discussion of the standard did not cite a single Massachusetts case. Instead, it relied mainly on law review articles, in particular Leubsdorf’s then-recent article. Criticizing some preliminary injunction standards as anachronistic, Leubsdorf sought to frame a restated model that balances the gravity of the interim injury against the possibility of an erroneous interlocutory decision. The SJC’s emphasis on the abbreviated hearing on preliminary injunctions, definition of irreparable harm and notion of weighing the gravity of harm in light of the chance of success are almost straight from Leubsdorf. By citing generally to Leubsdorf’s description of his model, the court effectively acknowledged it was adopting the model. In this light, the Leubsdorf article provides a guide to understanding the Packaging Industries standard, and it has been cited regularly in subsequent cases.

Packaging Industries also came down during a period of increased attention to the injunctive power of courts. The civil rights injunction was a recent focus of attention; in Massachusetts, United States District Court Judge W. Arthur Garrity not long before had issued a desegregation remedy for Boston schools, and Superior Court Judge Paul Garrity was about to embark on his career as “the Sludge Judge,” supervising the cleanup of Boston Harbor. Although such cases involved permanent injunctive relief, they put a spotlight on courts’ injunctive power. If the arsenal of judicial remedies was so potent, the grant of less sweeping interlocutory relief could hardly be extraordinary.

Viewed in this historical context, Packaging Industries was an effort to look afresh at preliminary injunctions and to restate principles of equity in a modern way. The frequent equation of irreparable harm with “no remedy at law” dates from the early days of equity jurisdiction, when the Chancery Court was not authorized to act in cases where common law courts afforded a remedy. By defining irreparable harm as harm that cannot be vindicated by a final judgment “rendered either at law or in equity,” the Packaging Industries court substituted the “no remedy at law” maxim with “no adequate remedy at final judgment.” The SJC implicitly recognized that, after the merger of law and equity with the adoption of the Massachusetts Rules of Civil Procedure, notions of limited equity jurisdiction amount to an anachronism, at least in Massachusetts. Hence, as discussed further in Part II (A), the court’s standard departed from the general notion that a preliminary injunction is an extraordinary remedy with an unusual burden, and made the preliminary injunction a regular part of the judicial arsenal.

II. Striking the Balance

Under the balancing called for by Packaging Industries, the degree of harm is a function of the probability of success. As expressed by Leubsdorf, the model “discounts each party’s injury by the probability that the final judgment will declare it lawfully imposed.” This makes the elements of the analysis interchangeable rather than a checklist of elements. As the SJC later condensed the Packaging Industries standard, if there is any “substantial risk of irreparable harm to the moving party, it must be balanced against any similar risk to the other party in light of the chance of each party to succeed on the merits.”

This integrated and flexible approach departs from the “sequential” or “fourfold test” prevailing in federal courts, and from any other set of discrete elements. As used in the First Circuit, the commonly used federal test has four elements:

A district court must weigh the following four factors: (1) the likelihood of the movant’s success on the merits; (2) the potential for irreparable harm to the movant; (3) a balancing of the relevant equities, i.e., “the hardship to the nonmovant if the restrainer issues as contrasted with the hardship to the movant if relief is withheld,” ... and (4) the effect on the public interest of a grant or denial of the injunction.

This four-part checklist reappears widely and frequently amid shifting and sometimes confusing standards in federal courts. It even creeps into Massachusetts state court decisions to this day. Reliance on such federal precedents in Massachusetts state preliminary injunction cases is unwise, when the SJC has so distinctly adopted a different model. More useful are precedents from the Seventh and Second Circuits that track more closely the model adopted in Massachusetts. In the Seventh Circuit, Judge Richard Posner introduced an approach similar to the Leubsdorf model, and the Packaging Industries court was influenced by the Second Circuit’s standard.

Rather than reciting a formulaic list of factors, the simple conceptual framework of the Massachusetts standard makes preliminary injunctive relief more available because it does not contemplate an especially heavy burden and may allow relief even where the moving party’s chance of success is not clear-cut if the balance of harm is sufficiently in its favor. Simplicity does not necessarily equate to clarity, though. Proper application of the Packaging Industries standard requires careful analysis of its elements and their relationship.

A. The Moving Party’s Burden: How High Is the Bar?

Packaging Industries departed from the notion of preliminary injunctive relief as extraordinary or drastic. In its wake, the issuance of a preliminary injunction has become one more instrument in a court’s procedural toolbox, reflective of its status in Rule 65 of the Massachusetts Rules of Civil Procedure as one procedure among many. Wright and Miller summarize the common view of a preliminary injunction as “an extraordinary and drastic remedy” that should not issue unless the burden of persuasion is met with “a clear showing.” This view of injunctive relief as “extraordinary and drastic,” rooted in the limited jurisdiction of equity’s Chancery Court origins, still finds its way into Massachusetts opinions despite Packaging Industries’ departure.

Nowhere in Packaging Industries did the SJC suggest that the moving party has an especially high burden of persuasion to obtain a preliminary injunction. Neither that decision nor any subsequent SJC case adopted the Wright and Miller “clear showing” formulation. While in 1993, the SJC – again citing Leubsdorf – declared that “a court is justified in requiring the plaintiff to bear a slightly heavier burden, given the problems of enforcing injunctions,” this “slightly” heavier burden was a matter of administrative expedience, rather than the traditional restraint on equitable power. In the cited portion of his article, Leubsdorf wrote,

[T]he problems of enforcing injunctions do justify a burden slightly heavier than what those seeking judicial action usually bear, and special dangers of interlocutory decisions should require the plaintiff to show the real possibility of injury irreparable by later remedies. To go beyond these requirements is to risk injustice. A court should hesitate to grant a remedy that may inflict irreparable loss of rights, but it should hesitate equally to inflict such loss by denying a remedy on the grounds that the plaintiff has not met his particular burden.

Some additional burden is justified by the need for ongoing enforcement and the uncertainty associated with interlocutory relief rather than by institutional restraint. “The policy here is not fear of specific or equitable relief, but fear of preliminary relief.”

B. Probability of Success on the Merits:
How Low Can You Go?

The second clear departure in Packaging Industries from the prevailing standard was in the SJC’s treatment of probability of success. As often framed, the federal standard requires that the plaintiff show “a likelihood of success on the merits.” Usually, such language is interpreted to mean that the plaintiff must show success on the merits is more likely than not. Under the Packaging Industries standard, the plaintiff does not necessarily have to get over this same hump. The “slightly heavier burden” under Packaging Industries allows injunctive relief on less than “a clear showing.”

In explaining its standard, the Packaging Industries court made it doubly clear that the discretion to weigh the risk of harm against the probability of success means that, in some circumstances, an injunction might issue even if the moving party does not establish it is more likely than not to succeed on the merits. First, the SJC cited to a law review note approvingly analyzing a Second Circuit case in which Judge Henry Friendly stated that “affirmance of the temporary injunction does not depend on a holding that [the plaintiff] had demonstrated a likelihood of success.” In turn, Judge Friendly had applied a version of the Second Circuit’s sliding scale for preliminary injunctions that deviated from the First Circuit and most other federal courts, under which a preliminary injunction may issue based on a showing of irreparable harm and either a likelihood of success or sufficiently serious questions on the merits and a balance of hardships tipping decidedly toward the moving party. Second, the SJC noted its own version of the Second Circuit’s sliding scale: “If the moving party can demonstrate both that the requested relief is necessary to prevent irreparable harm to it and that granting the injunction poses no substantial risk of such harm to the opposing party, a substantial possibility of success on the merits warrants issuing the injunction.” A “substantial possibility” implies less than a “likelihood” of success, and the accompanying citations make clear that this meaning was intended.

As subsequently interpreted, a “substantial possibility” of success means at least “some merit,” “some likelihood of success,” “a reasonable interpretation,” a chance that is “not chimerical.” All these formulations express something less than more-likely-than-not, or less than 50 percent probability. In theory at least, this sliding scale gives a court discretion to issue injunctive relief in response to a strong showing of irreparable harm even if the court is not convinced the plaintiff will prevail. But such cases are few and far between. Even in the quoted cases where language is equivocal as to the likelihood of success, the actual reasoning suggests the prevailing party was the more likely winner. While in practice the author has seen injunctions issued on such a basis, in no reported SJC or Appeals Court case has an injunction issued or been affirmed on less than a likelihood of success despite the Packaging Industries court’s nod to the Second Circuit standard.
If there is no reasonable likelihood of success at all, an injunction is not in order even though irreparable harm is established. In such circumstances, there is too great a likelihood that the injunction will erroneously restrict the defendant’s legitimate interest in “[f]reedom to act in ways not yet shown to be unlawful.” Just as a party enjoined to comply with the law cannot complain that such compliance represents irreparable injury, a moving party cannot claim such injury where denial of a preliminary injunction permits lawful action. If the nonmovant will not be entitled to relief on final judgment, there is no claim for such relief pending final resolution. Issuance of an injunction in such circumstances can set relief on its head since the nonmovant may be lawfully entitled to the outcome that the moving party describes as irreparable harm. Courts will bend far to shield against far-reaching irreparable harm. Nonetheless, some likelihood of success remains “critical” to the injunction.

C. Gauging the Harm: When Is It Irreparable?

Irreparable harm remains a sine qua non for preliminary injunctions. The SJC has made clear that “[w]here the moving party has failed to demonstrate that denial of the injunction would create any substantial risk that it would suffer irreparable harm, the injunction must be denied, no matter how likely it may be that the moving party will prevail on the merits.”

As defined in Packaging Industries, irreparable harm is “harm that final relief cannot address.” The focus therefore is on what will occur “between the hearing on the preliminary injunction and final
adjudication….” Injury to “time-sensitive” constitutional rights, irreversible change to the landscape, or loss of benefits such as delay of education and training triggering immediate economic loss all present harm that cannot be redressed once it occurs. Even less serious harm can be the basis for an injunction if it would become permanent before final relief can be granted. These present situations where the moving party’s ability to obtain meaningful relief would be altered irreversibly during the pendency of the litigation.

Bearing in mind that the standard balances harm on both sides, the court also must consider what happens to the defendant during that time if relief is granted. It is a matter of the nature, not the degree, of the harm. It is immaterial that the harm is great if it can be redressed on final relief (though the greater the harm, the more material any differences in relief may become). It is also immaterial if the final relief is equitable or legal so long as it is adequate.

The classic example of injury that can be remedied on final judgment is the award of damages – the quintessential adequate remedy at law. But even this legal remedy may be inadequate if it becomes unavailable before a case reaches final judgment. Injunctive relief for economic damage can be available if “denial of injunction might result in disposal of funds prior to determination on [the] merits.” In Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric Co. (MMWEC), the court upheld a preliminary injunction requiring that the municipal electric company continue payments to MMWEC under power sales agreements pending arbitration. The court “recognize[d] that [the municipal company’s] failure to make payments is economic loss and that economic loss alone does not usually rise to the level of irreparable harm” that warrants a preliminary injunction. The court nevertheless found irreparable harm based on evidence that “nonpayment is harm which would threaten the very existence of MMWEC’s business.”

In deference to the general principle that economic loss can be compensated on final judgment and does not warrant preliminary relief, this decision often is read on its facts as a narrow exception that applies if the survival of the defendant’s enterprise is threatened. But the exception is broader, as reflected above. At a minimum, it stands for the proposition that a preliminary injunction may order continuation of periodic payments on ongoing obligations. Moreover, injunctions protecting the ability to obtain money damages – or avoiding the need to seek damages or prevent economic losses for which damages may not be obtained – should be available on grounds equivalent to those for prejudgment security. It is the adequacy of final relief that must be threatened rather than the existence of the defendant’s enterprise.

The appropriateness of preliminary relief also involves questions of efficiency both in effectiveness of final versus interlocutory relief and in the use of judicial resources. Town of Brookline v. Goldstein is a vivid example. In Goldstein, town officials sought to enjoin a town gadfly named Goldstein from repeated groundless proceedings and personal harassment of the officials. The SJC vacated the portion of a trial court injunction that required court approval prior to bringing proceedings, leaving the plaintiffs to their remedies for unmeritorious claims under General Laws chapter 231, section 6F. The SJC upheld an injunction against communicating with officials but remanded to narrow the injunction so as to focus on harassment of individuals.

As great a nuisance as Goldstein evidently became, his activities probably could have been addressed by final relief without material additional harm to the plaintiffs. But, faced with a clear pattern of activity “beyond all reasonable bounds” that included repetitious lawsuits, requiring full adjudication on the merits before granting relief would have forced the plaintiffs to undergo still further unnecessary litigation with Goldstein. Both that part of the injunction vacated as well as that upheld conserved judicial resources, and the issuance of injunctive relief offered a “complete, practical, and efficient” remedy.

Preliminary relief is often characterized as preserving the “status quo” pending litigation. Leubsdorf (among others) was justifiably critical of this description. The “status quo” often is used as shorthand for freezing the relationship between the parties. This is not necessarily the same as preserving a state of affairs that permits a meaningful final remedy. Freezing the parties’ relationship by enjoining the exercise of a lawful right to alter the relationship (for example, a right to invoke the termination provision of a contract) overlooks that “it sometimes happens that the status quo is a condition not of rest, but of action ….” In such circumstances, an injunction meant to create a condition of rest can erroneously restrict the defendant’s legitimate interest in “freedom to act in ways not yet shown to be unlawful.”

The requirement of some demonstrable harm flows simply from the interlocutory nature of the relief: in the absence of harm that cannot be redressed after a final judgment, there is no need for the court to engage on an interlocutory basis and risk acting erroneously based on “an abbreviated presentation of the facts and the law.” The definition of irreparable harm embodies this prudential restraint.

D. Discounting Harm By Likelihood of Success:
How Does It Add Up?

The variations in injunction cases are too numerous and too subtle to allow a comprehensive matrix for balancing harm and likelihood of success. But certain patterns do emerge. There is the greatest room for discretion where both factors are close. If either factor is close, a slight advantage on the other factor can tip the decision for or against relief. On the other hand, if one factor is clear in one direction, it can govern the outcome even if the other factor is in doubt.

Since injury and the merits must be considered in “combination,” it makes little difference which one comes first. Evidently, then, recitations as to which factor is considered first or second should be considered purely descriptive, and not a standard. What factor is argued or considered first is a matter of the jugular vein: whichever affords the stronger argument or easier grounds to dispose of the case is likely to come first. Thus, in the first post-Packaging Industries decision, the Appeals Court gave little weight to either party’s showing of harm, but affirmed denial of injunctive relief based on the conclusion that the defendant was the likelier party to succeed.

In a great many cases, the assessments of irreparable harm and the merits are inextricably bound up together. Because the Packaging Industries balancing approach makes the degree of harm a function of the probability of success, irreparable harm cannot be calculated standing alone. Recent cases with divergent outcomes illustrate the relationship between the two factors.

First, substantial certainty on the merits can reduce the significance of irreparable harm. The SJC decision in Loyal Order of Moose, Inc. v. Board of Health of Yarmouth, is an example of an injunction granted without a strong showing of harm. There, the SJC reversed a denial of preliminary relief against a local anti-smoking ordinance on the basis of its conclusion that the town’s authority was limited to a ban where facilities are “public places,” and that there was no evidence to show the fraternal lodge was open to public use. The showing of harm cited was negligible – unspecific evidence open to question that the lodge would lose patronage and perhaps have to lay off employees pending litigation, harm that in hindsight was perhaps imaginary – and contrasted with an earlier decision finding no irreparable harm from an anti-smoking ordinance. But, where harm alleged by the town was no clearer and was outside the scope of municipal authority, the court not only reversed the denial of relief, but also directed the issuance of a preliminary injunction.

Even though in Loyal Order of Moose the harm to the lodge pending final judgment was slight, if any, the balance tipped slightly in the lodge’s favor since the town showed no harm except insofar as it had legal authority to ban smoking. Professor Douglas Laycock has suggested that, with respect to permanent injunctive relief on final judgment, the irreparable harm requirement has withered away. Loyal Order of Moose affirms that, if the merits on preliminary injunction approach the certainty that could be reached on full adjudication, the irreparable harm requirement is small.

Correspondingly, in Wilson v. Commissioner of Transitional Assistance, the SJC vacated an injunction even though it acknowledged that if deprived of their unemployment benefits, the plaintiffs “would bear significant hardship.” After analysis of the statutes involved comparable to a full review on the merits, however, the court found no statutory violation. Discounted by the probability of success, the significant hardship did not weigh enough in the balance. As one writer summarized the analogous Posner formulation, “there is a trade-off between the relative harm between the parties and the relative probability of success on the merits.” In each of these cases, the court’s high level of certainty on the merits transformed the significance of the irreparable harm.

A second way the merits are tied up with equities is in analysis of what constitutes irreparable harm. Harm is a function of whatever interests are entitled to protection under applicable law. To count as irreparable harm, the injury alleged must be legally remediable – that is, it must be within the range of harm against which the substantive law protects. The relationship of the merits to irreparable harm in Wilson also can be looked at through the interests involved: since the hardship did not result from violation of law, it was not remediable because compliance with law does not cause cognizable harm. As Leubsdorf put it, “only irreparable harm to [substantive] legal rights ... should count. If the defendant has no right to pasture goats in front of the plaintiff’s windows, any harm he suffers from an injunction against doing so comes not from the dangers of interlocutory decision, but from the substantive law.” Thus, a loss of “litigational advantage” due to a former employee’s retention of documents is not irreparable harm because the court “reject[s] the claim that there is a right to compel long and expensive discovery ….”

Third, in cases involving enforcement of constitutional or statutory rights, analysis of likelihood of success and of irreparable harm is almost interchangeable. Although in the case of abortion rights, the SJC has stated, “the time-sensitive nature of this right can transform a temporary delay of its exercise into a complete denial of the right,” most cases protect the exercise of a constitutional right without regard to whether its exercise is time-sensitive. It is a fair statement that “[w]hen an alleged deprivation of a constitutional right is involved, typically no further showing of irreparable injury is necessary.” Thus, establishing on the merits violations of First Amendment rights, due process privacy, procedural due process rights to notice and a hearing before termination of license, or double jeopardy effectively establishes per se irreparable harm. On the other side of the coin, failure to establish a likely violation of rights falls short of establishing irreparable harm. The same is true, though with some exceptions, for statutory violations or for infringement of intellectual property rights. Each substantive area brings to bear its own set of policies that affect the measurement of harm.

Balancing irreparable harm with probability of success is the essence of the equitable function. It is not simply an intuitive judgment about what is right. It requires careful analysis of the protected interests at stake in the litigation: What are the legally cognizable interests for which injunctive relief is sought? Is injury to the interests at issue? And how does preliminary relief change this injury compared to relief on final judgment?


III. Expanding the Model: The Public Interest

Conspicuously missing from Packaging Industries was any discussion of the “public interest.” This omission appears to have been intended, given the SJC’s wholesale adoption of the Leubsdorf model in which the public interest was deemed irrelevant. Three years later, however, the SJC opened the door to the public interest as a factor in preliminary injunctions by noting in Goldstein that the risk of harm to the public interest could be considered “[i]n an appropriate case.”

The court did not explain in Goldstein what made that case or any other an appropriate case. Subsequent appellate decisions have offered some guidelines, but these have been vague and changing. The result has been inconsistent and sometimes idiosyncratic application of the public interest as trial courts are left to wrestle with when, why, and how to consider this factor. This section will review the treatment of the public interest in Massachusetts preliminary injunction decisions. It will then look to see what framework these decisions provide to the question what makes an “appropriate case,” and seek to fill out this skeleton.

As discussed below, “the public interest” is usually a misnomer either for public policy implicated in the substantive law and interests of the parties to the suit or for the interests of third parties. What is legitimately considered under the public interest heading can be analyzed more systematically through analysis of these substantive interests.

A. The Public Interest Unchained

Soon after Goldstein, the SJC found an “appropriate case” in which to consider the public interest. In Commonwealth v. Mass. CRINC, the court held that the effect of the requested preliminary relief upon the public interest must be considered where the attorney general sues to enforce violations of public laws or effectuate legislative policy. In Mass. CRINC, the attorney general brought suit against wholesale beer distributors to enforce the Massachusetts Antitrust Act and the newly adopted bottle bill. According to the SJC, examining the impact of the requested injunction on the public interest was necessary because the attorney general had sued to enforce these public laws and policies, acting for the public. The Mass. CRINC court also clarified that Packaging Industries had not considered the public interest because that case was a dispute between private parties. Beyond this distinction between private cases and public enforcement, however, Goldstein’s “appropriate case” category remained largely undefined in Mass. CRINC.

The task of building on this foundation was picked up by the Appeals Court in Bank of New England N.A. v. Mortgage Corp. of New England, in which Boston’s largest realty company asserted that its scale made the bank’s exercise of creditor’s remedies a matter of public interest. In that case, the Appeals Court analyzed the role of the public interest head-on, considering what the SJC said in Mass. CRINC and Goldstein and vacating the injunction because the lower court had considered the public interest in impermissible ways. The Bank of New England court stated expressly what the SJC implied in Mass. CRINC: the public interest is not appropriately considered in cases between private parties involving private substantive law. Taking its cue from Mass. CRINC’s explanation of Packaging Industries’ omission of the public interest as based on the private status of the parties (and again citing Leubsdorf), the Appeals Court concluded there is no reason to allow interlocutory relief based upon wider public interests where private parties are litigating matters governed by private substantive law and only those private parties will be affected by final judgment.

In Bank of New England, the Appeals Court identified three categories of cases where the public interest can be relevant. First, there are cases like Mass. CRINC, where a governmental body or a citizen empowered to act as a private attorney general sues to enforce a public law or policy. Second, there are cases like Goldstein where any public entity is a party. Third, there are private party cases where the underlying substantive law involves public interests and issues.

Although the Appeals Court drew this blueprint from the same sources as Packaging Industries, the SJC has not used this framework consistently. Two years later, in 1993, the SJC overlooked Bank of New England’s “private party” formula and, returning to Goldstein’s more amorphous “appropriate case” language, referred to public interest analysis in a dispute involving only private parties and private substantive law. Other courts have followed these confusing signals in diverse directions.

Numerous courts have applied the public interest – or not – without clear explanation. Many more cite Goldstein for the proposition that the public interest can be considered in an appropriate case, treating the public interest as one more part of the standard, as it is in federal law. Other courts have weighed matters of generalized public concern having little or nothing to do with the interests of the private parties or the underlying substantive law in the case. Just what is “an appropriate case” and how to consider the “public interest” have proved elusive.

B. Unpacking the Public Interest

The vagueness and malleability of the public interest invite courts to consider open-ended interests untethered to the competing interests of the parties or the law and policies at issue. This invitation can be a ticket to arbitrary or idiosyncratic preliminary injunction decisions and may stray along the boundaries of legislative policy-making. The party with the short end of the injunction stick could be aggrieved (erroneously) if the Packaging Industries balance tipped against it because the trial judge considered irrelevant, generalized or ex cathedra policy considerations that ultimately play no role in the substantive decision on the merits of the law applicable to the parties’ claims.

It is for such reasons that the public interest as a criterion in injunction decisions has been criticized widely. Judge Posner called it a “wild card,” and commentators have observed how it can be an amorphous makeweight used to support the desired result. Such criticism also figures in the design of Leubsdorf’s model to avoid the “thoughtless and inconsistent application” of preliminary injunction standards lacking “articulated rationale.” In leaving the public interest out of his model, Leubsdorf suggested that a court “must determine whose interests it should consider by reference to the substantive law that will apply when the case goes to trial on the merits.”

The Packaging Industries standard had its origins in a movement toward more focused analysis. The confusion around the meaning of the public interest is antithetical to Packaging Industries’ goal of a simplified, consistent standard balancing the competing rights and interests of the parties to the litigation.

This amorphous factor is more precisely and productively understood through the policies and interests underlying the substantive claims. Seen in this light, the “public interest” is a misnomer either for public policy or for judicially significant interests of third parties. Looking at public policies implicated by substantive law or, in the case of third parties, by the law of standing, offers firmer ground than the shifting sands of the “public interest.” These anchor decision-making in analysis familiar from other areas of law, such as constitutional law or conflict of laws. The label does not matter where the analysis is correct, but the semantic choice may help focus the analysis on policies and interests genuinely in dispute and avoid issues not before the court.

The categories elucidated in Bank of New England provide a useful starting point for re-examining such analysis. They help to systematize the public interest factor and rationalize its role in preliminary injunction decisions. In addition, a thoughtful Texas Law Review note on the role of this factor in such cases identifies two categories of public interest: “intrinsic” – “policy considerations embodied in the movant’s cause of action that will be resolved in the subsequent trial on the merits” – and “extrinsic” – those that “do not underlie the substantive law that will be at issue in a trial on the merits.” The latter may include supervening policies such as laches or abstention doctrines that influence whether relief can be granted, or they may be extraneous altogether. Examination of the interests implicated by each of these categories, as well as in cases asserting harm to nonparties (a category excluded from consideration in Bank of New England), indicates that most Massachusetts cases in which the public interest is invoked fit this intrinsic-extrinsic rubric.

1. Public Entity or Private Enforcement Actions Seeking
Injunctions

This is the category recognized in Mass. CRINC, where a governmental body sues to enforce a public law or policy. As in Mass. CRINC, this category most often involves statutes that authorize the attorney general or another public official to bring suit to enforce public laws. The same kind of authorization exists for private parties (as “private attorneys general” or otherwise) seeking injunctions to enforce underlying public substantive law. Such statutory injunctions are the primary role of the public interest criterion even under the federal standard.

The basis for considering the public interest in such cases is rooted in the substantive law – the statute that authorizes the enforcement action. In Mass. CRINC, the SJC stated, “When the government acts to enforce a statute or make effective a declared policy of [the legislature], the standard of public interest and not the requirements of private litigation measure the propriety and need for injunctive relief.” To obtain an injunction on this basis, the government enforcer must show that relief is needed to vindicate the policy involved: the court must consider “specifically” the likelihood of statutory violations and then weigh the impact of such violations on the relevant public interests. A court must determine what these policies are, but can defer to the legislative decision (by statute or delegation) that certain conduct violates law or affects the public and therefore may warrant injunctive relief. While this analysis in enforcement cases ostensibly substitutes entirely for irreparable harm analysis, the underlying legislative policy judgments establish the interests and harm involved. Thus, the role of the public interest in such cases is not open-ended. On the contrary, not only must it be grounded in cognizable public policy, but the sources and force of such policy are subject to examination. How strong is a legislative presumption that certain violations of law cause irreparable injury? What degree of deference should apply to agency decision-making underlying the policy? What level of scrutiny applies to legislative policy-making?

Likewise, because a statute authorizes injunctive relief does not necessarily mean it is warranted under the circumstances of a particular case or that such relief should be preliminary. The same prudential concerns that argue for awaiting full adjudication should apply if the public interest or other interests can be vindicated on final judgment. The plaintiff must show how the public interest is actually affected in the interim.

LeClair v. Town of Norwell is a private enforcement action in which the SJC looked at the policies at issue and found that they were not advanced by injunctive relief despite a likelihood of success. In LeClair, taxpayers acting as private attorneys general sued to enjoin the Town of Norwell’s award of a public school construction design contract on grounds the town violated certain requirements of the designer selection and public bidding statutes, as well as town bylaws, in making the award.

Applying Mass. CRINC, the SJC looked first at the plaintiffs’ likelihood of success and found that the town had violated the applicable statutes and bylaws and that the plaintiffs’ claims had merit. The court then framed the second part of the inquiry as (1) the effect of the requested injunction (voiding an already awarded contract) on the public interest, and (2) the impact of the proven statutory and regulatory violations on the interests of the public.

Although the LeClair court thus framed the issue in terms of the public interest in general, its inquiry focused on the substantive policies of the statutes and town bylaws at issue – to insure fairness in the public bidding process and obtain high quality design of the public structure. The SJC concluded that even though the town had violated certain statutory and regulatory requirements, its contract award was made fairly in an effort to obtain high quality design services for the benefit of the town. The court found this to be consistent with the “public interests” and noted that only a statutory transgression at odds with these policies would require injunctive relief voiding a public contract.

In both of these cases, although the SJC’s opinion spoke of the “public interest,” its analysis focused on the specific public policies intrinsic to government contracts law – the statute authorizing relief in Mass. CRINC, and the challenged statutes and bylaws in LeClair. The “public interest” was not something extrinsic to the case, but instead was rooted in these substantive foundations. As prescribed in Mass. CRINC, the court weighed the impact of statutory violations on the substantive law at issue in the case.

2. Public Entities as Parties

Similar policy analysis arises in the second category, cases like Goldstein, where a public entity is a party. Whatever other uncertainties have persisted as to when the public interest must be considered, it has become axiomatic that it is a factor where relief is sought against government action or where the government is otherwise a party.

When a party to litigation is a public entity, it seems self-evident that the interests of one party implicate a governmental interest of some kind. In turn, such an interest can be described as an interest of the public represented by that government party. The weight of these governmental interests is a function of the substantive law involved. In some cases where a government acts in a governmental capacity, constitutional law or other policies trigger closer scrutiny of the interests that support the government party’s actions. Considering whether governmental action is lawful often depends on the strength of governmental interests. In others, governmental interests are entitled to the same deference given to most government action. Where a government appears in its proprietary capacity, the public fisc may be affected but the government entity may be otherwise little different from a private party. Whatever weight such interests carry, as discussed above the analysis – whether of irreparable harm or of the public interest – overlaps with analysis of success on the merits.

Take, for example, Coe v. Sex Offender Registry Board, one of a series of cases involving the public identification of convicted sex offenders. There the SJC upheld challenged legislation requiring Internet publication of “offender-specific” information enacted to protect the public from a “substantial public safety threat” posed by those offenders. Convicted “level three” sex offenders, all determined to present a high risk of re-offending and to be a danger to the public, claimed that the statute unconstitutionally infringed their privacy and liberty rights under the Massachusetts Declaration of Rights.

In weighing the level three offenders’ likelihood of success, the SJC balanced the plaintiffs’ privacy and liberty interests and the “range of potential adverse consequences” to them from Internet publication of offender-specific information against the range of governmental interests involved. The SJC found a countervailing state constitutional interest in “the rights of our citizens as a whole, and the right of each individual, to be safe and secure from criminal and predatory acts of others,” and a policy interest in public safety, noting that “[a]ny crime is an offense against the public as well as a violation of the victim’s rights.” The court’s consideration of the “public interest” was entirely integrated with this analysis of the merits, not a separate stage of that decision.

As in enforcement cases, the use of language about the “public interest” in public entity cases suggests a separate injunction factor. On closer analysis, however, the appropriate interests to examine are those that the public party is authorized to advance or protect or those implicated by substantive law applicable to the public party.

3. Private Party Cases Implicating Public Interests

The third category of public interest cases enumerated in Bank of New England is private party cases where the underlying substantive law involves public interests and issues. Such cases involve public rights that a private litigant is entitled to enforce. The analysis of policies and interests in such cases does not differ greatly from those where one party is a public entity or official.

Planned Parenthood League of Massachusetts, Inc. v. Operation Rescue is a prime example. In Planned Parenthood, private plaintiffs sought to enjoin privately organized individuals from blocking access to family planning clinics, thereby denying women the opportunity to obtain constitutionally protected abortions and counseling or other family planning services. The demonstrator-defendants countered that they had constitutionally protected rights to assemble and express their anti-abortion views, although they conceded that some of their demonstration tactics were illegal.

Balancing of harms required the court to weigh the parties’ competing constitutional interests and, in turn, the underlying public policies. In an analysis that blended likelihood of success, irreparable harm and the public interest, the SJC found that the defendants were unlikely to succeed on the merits of their constitutional claims where their demonstration tactics violated public laws, and enjoined the demonstrators from engaging in these illegal acts. The court then weighed the parties’ legitimate constitutional interests and tailored the injunction accordingly, framing injunctive relief to protect free access to the clinic while permitting the defendants to exercise lawful forms of expression, subject to reasonable time, place and manner restrictions.

This balancing is very similar to that in Coe, where the challenges to the sex offender identification scheme involved functionally similar constitutional and public rights claims by private plaintiffs against a government defendant. In each case, the court weighed interests of the parties in the context of the claims on the merits and the policies implicated by these claims.

The private party cases that implicate public policies are wide-ranging and are not limited to claims of constitutional rights like those in Planned Parenthood. Even cases that arise from purely private law – i.e., contract cases – may turn on public policy. One common category of preliminary injunction cases is litigation seeking to enforce covenants not to compete. These are private agreements, but they are constrained by public policy. The loss of business goodwill constitutes prima facie irreparable harm to the enforcing party. On the other hand, the public has an interest in each person carrying on his or her trade or occupation freely, and agreements prohibiting another’s trade or business are “contrary to public policy.” In these cases, courts weigh the interests of the parties to the agreements and generally enforce otherwise valid agreements that are limited in time and scope and thus not deemed “injurious to the public interest.” The decision to grant or deny injunctive relief turns substantially on these questions of policy, which determine the likelihood of success, the balance of harms and the public interest interchangeably.

That the “public interest” comes into play in a category of cases clearly within Bank of New England’s category of private cases – indeed, the very category in which Packaging Industries fell – reinforces that the term “public interest” refers to public policy and to interests that such policies recognize as legitimate, regardless of who the parties are. As with covenants not to compete, the issuance of injunctive relief turns on policy considerations that vary according to the substantive law involved – with “the juristic nature of the dispute.” Noncompete agreements are treated differently from trademarks are treated differently from fundamental constitutional rights.

Such variations and policy considerations can be addressed by analyzing whether the plaintiff is likely enough to succeed or whether the harm is cognizable under substantive law, just as they were in Packaging Industries. Tying the “public interest” to these constants helps to prevent excursions into issues and considerations that are not part of the case before the court.

4. Third Party Interests

The interests of nonparties were not included in Bank of New England’s list of categories in which the public interest may be an “appropriate” factor. Instead, the Appeals Court in that case followed Leubsdorf’s model strictly in reasoning that “[t]hose whom the law excludes from protection at the final hearing have no greater claim to be taken into account earlier.” Among the interests that the court deemed irrelevant were those of tenants and employees of the very large residential realty manager whose bank liens were the focus of the case.

Other cases have considered whether such interests of nonparties can fulfill the requirement of irreparable harm. The Appeals Court has followed the path of Bank of New England in rejecting a public hospital’s request to enjoin application of a regulation based on the irreparable harm the hospital claimed enforcement would inflict on its patients. The court stated that the “proper focus in evaluating irreparable harm ... is on the plaintiffs and not their nonparty patients.” Even though public entities were on both sides of the “v,” and the hospital’s patients were members of the public, the Appeals Court held that “the [claimed irreparable] harm to the plaintiffs must be direct, that is, it is not enough for the plaintiffs ... simply to allege general harm to the public interest.”

The SJC has been more willing to entertain the interests of customers affected by an injunction decision. It mandated continued payments to the Massachusetts Municipal Wholesale Electric Company due to the harm the breach would have not only on MMWEC itself, but also on its customers (preventing them from obtaining low-cost utility service). In another case, although denying injunctive relief against pesticide regulations, the court addressed (with reservations) the asserted impact of these regulations on consumer prices in determining that the harm was not irreparable.

It seems overly strict to exclude consideration of such interests altogether. If, for example the tenants could lose their housing as a result of bank foreclosure or utility customers would suffer dramatic, nonrefundable rate increases or even loss of electric service as a result of a dispute between power suppliers, should a court disregard such consequences in granting or denying an injunction? Under such circumstances, these nonparties could intervene in the lawsuit. Should the interests they could assert as interveners go unrepresented because they have not been joined as parties and may not have notice of the action? On the other hand, open-ended assertion of nonparty interests risks becoming the kind of wild card that the generalized public interest can be.

The cases involving these interests contain suggestions that provide a road-map for entertaining nonparty interests without opening a door wide. These are cases where the “public interest” presented the interests of nonparties in privity with the plaintiff. In American Grain Products Processing Institute v. Department of Public Health, a trade association sought to enjoin enforcement of a regulation banning chemicals used in its members’ manufacturing, claiming, among other things, that a cost increase to its members would affect consumers across the nation who purchased the plaintiff’s members’ products. In a suggestive footnote, the SJC wondered “whether the [association] ha[d] standing to complain of a rise in consumer prices either nationally or in Massachusetts.” The court decided it need not reach this question because the plaintiff in the case had not demonstrated adequate irreparable harm.

This footnote implies that plaintiffs alleging third party harm must demonstrate standing, or some close relationship to the nonparties and their harm, to justify judicial examination of that harm in the interest balancing analysis. In all the above examples of nonparty interests, the nonparties were at least arguably in privity with the plaintiff. There are legally protected interests in customer relationships that provide a supportable legal nexus to the harmed third party. In turn, the Bank of New England court expressed the view that if it were to entertain the public interest asserted, “such harm [must] be demonstrated by a specific showing and not by broad, sweeping, and vague statements ….” This suggests a requirement of “particularized nonparty harm.”

The benchmarks of standing and specific, demonstrable harm provide a measured basis on which to consider the interests of third parties where the interests of justice warrant doing so. Perhaps in the preliminary injunction context, full-blown standing requirements need not apply. A preliminary injunction is preliminary, after all and, as with other factors, the exigencies of an expedited proceeding on a limited record may not allow full adjudication. But, as with other branches of the “public interest,” the interests of third parties must be rooted in the substantive claims at issue. Requiring that the plaintiff have a legally significant relationship with such parties and also demonstrate specific harm to that relationship helps ensure that they are.

IV. Procedural Checks on the Balance

A. Appellate Review after Packaging Industries

1. The Packaging Industries Standard of Review

In Packaging Industries, after laying out the standard for preliminary injunction decisions, the SJC proceeded to explain how such decisions should be reviewed on appeal. The standard of review enunciated in Packaging Industries creates a tension between the equitable discretion of the trial court and the appellate court’s review. This tension is evident in decisions following Packaging Industries that applied its standard of review.

The SJC’s initial language in Packaging Industries acknowledged that appellate review proceeds under an abuse of discretion standard limited to the decision on injunctive relief and to “those questions basic to and underlying the specific order” appealed. Despite this apparent deference to trial courts, however, the SJC inferred (from legislative provisions for interlocutory review of preliminary injunctions) a broad scope for appellate courts to exercise their own discretion in such review.

The trial court’s legal conclusions “are subject to broad review and will be reversed if incorrect.” While this on its face is little different from any other appellate review, it takes on added significance given the observation that a decision to grant or deny injunctive relief “turns on ‘mixed questions of fact and law.’” The factors in the decision present mixed questions because the ultimate balance is a function of the probability of success. Hence, “broad review” of legal conclusions can alter the assessment of the equities. In addition, where live testimony is involved, “we follow the judge’s resolution of issues of credibility,” but where the decision below is based entirely on documentary evidence, the SJC declared “we may draw our own conclusions from the record.” Since more often than not preliminary injunctions are heard on affidavits and documents, most cases are subject to this de novo review on appeal.

The latitude that Packaging Industries provides to examine mixed questions of fact and law and to conduct independent review of the documentary record has given the SJC and Appeals Court latitude to exercise their own discretion over the issuance of preliminary injunctions, drawing their own conclusions from a documentary record, applying their own legal determinations, or altering the balance between claims of injury and chances of success. The next section will examine the degree to which appellate courts have exercised such discretion or have respected the discretion of trial courts.

2. “Broad Review” at Work

The first decision to apply the Packaging Industries standard of review came down from the Appeals Court just one month later in Westinghouse Broadcasting Company v. New England Patriots Football Club, Inc. When the Billy-Sullivan-era Patriots took advantage of late payments on an option for broadcast rights to terminate the option, the broadcaster sought injunctive relief and was denied. The Appeals Court affirmed, quoting as the standard language from another New England Patriots case, that involving coach Chuck Fairbanks’ departure for the University of Colorado: “An appellate court ‘will not reverse [a preliminary injunction] if there is a supportable legal basis for the (trial) court’s action even if, on final analysis, it may prove to be mistaken.’” This standard has been followed in other cases.

In its own next preliminary injunction opinion, the SJC affirmed an injunction enjoining the Mayor of Boston from setting the city’s tax rate until he submitted a school committee request for appropriations necessary to fund collective bargaining agreements. Although this relief was far-reaching, the SJC framed its review as a matter of “the sound discretion of the trial judge” and its findings on irreparable harm and the balance of equities as matters of what the judge “could have concluded.”

Within a year, however, the Appeals Court issued another decision citing the broad discretion of appellate courts not only to review trial court decisions on preliminary injunctions, but also to issue their own injunctions. The court construed the power of a single justice under General Law chapter 231, section 118 “to modify, annul, or suspend the execution of any interlocutory order entered in the Superior Court” to enable the single justice to grant relief where the superior court has denied it. Although the Appeals Court expressed caveats that such authority should be “exercised in a stinting manner” and that the court should “exercise care not to substitute [its] judgment for that of the trial court where the records disclose reasoned support for its action,” it read the Packaging Industries framework for review as calling “for the exercise of independent judgment” and issued relief rather than remand to the trial court because the harm seemed imminent. Correspondingly, the Appeals Court vacated another injunction where the appellate court drew its own conclusions from the written record.

In the intervening years, many decisions have ratified the trial court’s exercise of discretion. More often than not, an appellate court has left room for the trial court’s discretion on fact-finding. In Packaging Industries itself, the court ultimately supported the trial court’s balance of harm based on what that court “could easily have concluded” from the record. More recent decisions suggest the “exercise of independent judgment” has the upper hand by making clear that appellate review is “not perfunctory.”

The 2004 decision in Wilson v. Commissioner of Transitional Assistance is almost as different from the 1980 Patriots case as that year’s football team was from its 1980 predecessor. In Wilson, the SJC reversed a trial court’s injunction against a reduction in employment assistance pending legislative approval of a supplemental budget. Irreparable harm was indisputable; the court acknowledged sympathy and the “significant hardship” to the plaintiffs, but found that the commissioner had not acted unlawfully in the absence of a supplemental appropriation. Justices Roderick Ireland and John Greaney dissented. Relying on that first Patriots decision, they argued that the trial court’s decision had a “supportable basis” because, even if the superior court judge’s interpretation of the statute involved proved to be error on appeal, there had been a “substantial possibility” of success. A year earlier, the court similarly altered the outcome by issuing an injunction based on its own analysis of the merits as well as its assessment of the record in Loyal Order of Moose.

The Wilson dissent overlooked that the “broad review” of legal conclusions has been a constant. Such scrutiny is consistent with other appellate standards; for example, review of administrative agency decisions under an “arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law” standard treats legal error as a form of abuse of discretion. The trial court decision in Wilson was based on interpretation of legislation. The majority’s conclusion that the legislation permitted the benefit reductions at issue opened the door to rebalancing the merits and of the equities; the dissenters’ real point of divergence with the majority was on statutory interpretation. Had the trial court based its decision on something less than a likelihood of success that, in combination with the “significant hardship” to the plaintiffs, warranted relief, the SJC would have had to face the trial court’s discretion in balancing the equities. Likewise, had the majority been less certain of its interpretation (if, for example, it turned on facts to be resolved at trial), the court’s opinion could have treated the interpretation of the legislation as a fair question for litigation in which the irreparable harm to benefit recipients tipped the balance in favor of injunctive relief.

By reaching the merits and acting, the court effectively acknowledged the dispositive impact of a preliminary injunction and conserved resources that otherwise would have been expended on full adjudication. Either way, review under the Packaging Industries standard has broad scope. Given the latitude that the Packaging Industries standard allows to issue an injunction in the first instance and the risk of error inherent in such a decision, this scrutiny provides a check on arbitrariness or error. The availability of appellate review of interlocutory injunctions reflects an understanding of the overriding importance the decision may have on the parties.

B. Trial Court Procedures

Just as the potential importance of a preliminary injunction decision coupled with its inherent uncertainty affects appellate review, they heighten the sensitivity of process before the trial court as well. As Packaging Industries framed it, the preliminary injunction is necessarily “granted or denied after an abbreviated presentation of the facts and the law.” The scope and quality of this presentation affects the degree of uncertainty involved, and this uncertainty must be balanced against the impact of issuing or withholding injunctive relief – both the exigencies of the harm that is the basis for seeking relief and the impact of the decision on the case.

Many injunction decisions end up resolving the case. Moreover, the early adjudication a preliminary injunction affords can produce numerous benefits for the parties and the courts. Often, a motion for preliminary injunction is a tactic to get before the court, force an early decision on issues, and strengthen a party’s hand in ensuing litigation or negotiations. The opportunity to present their cases to a neutral third party offers the parties some of the value of mediation or other dispute resolution, and the compressed paper presentation resembles a summary trial. Combined with the preview of the outcome that comes with the assessment of likelihood of success and, perhaps the impact on parties of the grant or denial of relief, this early adjudication is a powerful settlement tool. The opportunity for early relief may prevent less tractable litigation or more serious damages.

These practical realities put a premium on getting the right result. Courts could make more use of the tools available. While in practice most injunctions are heard on affidavits and briefs, a stated preference for findings of fact may call for evidentiary hearings where there are facts in dispute, especially where credibility is an issue. The urgency of the claim for relief needs to be balanced against the other party’s due process rights and, in some instances, right to jury trial. Additional time affords time to respond, and may benefit the court with a fuller presentation. Expedited trial is “generally desirable in an appropriate case;” it provides a way to address these procedural rights, achieve the greater certainty of final judgment, and mitigate the harm of an injunction wrongly entered or denied. The more opportunity to develop the record, the less uncertainty, the less chance of an erroneous injunction. The investment of more time up front may reduce judicial and party resources needed in the long run.

The definition of irreparable harm as injury that cannot be redressed by final remedies shapes the relief that should be granted. Since the goal of preliminary relief is “a state of affairs such that after the full trial, a meaningful decision may be rendered for either party,” it follows that preliminary relief should be tailored to go no further than necessary to prevent whatever irreparable harm may occur pending final relief. The additional tools of an injunction bond and an accelerated trial on the merits can help to tailor relief. The injunction bond mitigates the risk of an injunction erroneously granted by protecting the defendant. Although Rule 65 provides for a bond in mandatory language – “no restraining order or preliminary injunction shall issue except upon the giving of security …” – the bond is up to the discretion of the court and often waived, addressed pro forma, or as an afterthought. In contrast to Massachusetts, under Federal Rule 65, security also is optional but failure to consider security is error. By mitigating the risk of error, a bond can facilitate the grant of injunctive relief in close cases at the same time as protecting interests of the defendant. An accelerated hearing on the merits likewise mitigates the risk of error by getting to a full adjudication of the merits and, if the interlocutory decision proves erroneous, shortening the time that unwarranted interlocutory relief is in force or that a deserving plaintiff must go without relief.

Courts as well as parties could use the preliminary injunction process more actively as a tool for case management. The early case assessment it necessitates can be a functional equivalent of the mandatory federal (and optional state) Rule 16 conference. Just as the court that hears a preliminary injunction motion can set the case down for early trial in lieu of preliminary relief, a court could use a preliminary injunction hearing or an order denying or granting a preliminary injunction to chart the course more specifically than tracking orders do. Such an approach would recognize explicitly the role of preliminary injunction litigation in shaping and resolving civil litigation.

Conclusion

From its earliest origins in Chancellor’s court, the preliminary injunction has been a powerful tool for doing justice by preventing harm that would make final relief hollow. In Packaging Industries, the SJC adapted “this useful though somewhat indefinable branch of jurisprudence” to the modern era of merged law and equity. The court made this indispensable tool even more powerful by giving trial courts added latitude to issue preliminary injunctive relief. The quarter-century of experience under Packaging Industries reviewed in this article shows that today the preliminary injunction is an ordinary remedy, readily available on a proper showing, and adaptable to a wide variety of circumstances.

The flexibility of the Packaging Industries standard and the breadth of the term “public interest” make them imprecise. As Leubsdorf wrote about the model adopted by the SJC, “[c]ourts must resort to intuitive analysis in which the objective impact of the loss and its significance in light of relevant legal policies blend with some degree of personal judgment.” The challenge of analyzing standards for equitable relief is as old as the notorious “Chancellor’s Foot.”

Injunctive standards nevertheless are not empty vessels into which courts or counsel can pour what they want. Predicting the likely outcome of cases is a skill that lawyers and judges are supposed to develop, so even as early as the preliminary injunction stage, analyzing likelihood of success should be a manageable task. Irreparable harm and the public interest call for careful, concrete analysis of the interests that the parties may legitimately seek to protect, rather than resort to abstract historical concepts such as inadequate remedy at law. Injunction procedures can be utilized to make prediction more certain. The availability of interlocutory appeal with meaningful review guards against aberrant outcomes in the trial court.

Packaging Industries and its progeny establish the preliminary injunction as one of the most important and useful remedies in the kit of tools available to modern courts. It is a tool not easily calibrated but, applied with analytical care, it can craft specific relief to fit almost any situation.


* This article is an outgrowth of experience in a case several years ago that starkly presented the meaning of the Massachusetts preliminary injunction standard. On and off since that time, H. David Gold, Christopher R. Lane, Dean W. Atkins, Matthew L. Vittiglio, Jun Zhao and Marbree D. Sullivan have provided research assistance. I am especially grateful to my colleague Craig J. Tiedemann for his help in getting Part III from outline to text and to both him and Jennifer K. Alcarez for help that was indispensable in bringing the project to completion. Professor John Leubsdorf of Rutgers Law School generously provided helpful comments on a draft of this article.
1. 380 Mass. 609 (1980) (cited as “Packaging Industries”).
2. Id. at 617.
3. A Westlaw search as of August 27, 2007, showed Packaging Industries cited by the Massachusetts Superior Court in 336 cases, together with 64 case cites by the SJC, and 63 by the Massachusetts Appeals Court.
4. See, e.g., Doe v. Attorney Gen., 425 Mass. 217, 222 (1997); Rauseo ex rel. Suffolk/Medford Realty Trust v. Massachusetts Port Auth., No. 011053 BLS, 2001 WL 1334988, at *2 (Mass. Super. Ct. Apr. 2, 2001) (“The court need not recite in detail ....”).
5. Alfred Lord Tennyson, Idylls of The King, Lancelot And Elaine, lines 1021-22 (1859).
6. The article endeavors to be complete in its review of reported SJC and Appeals Court decisions. Superior court decisions have been reviewed comprehensively but are discussed or cited only to illustrate.
7. Town of Brookline v. Goldstein, 388 Mass. 443, 447 (1983).
8. Witness the resignation of the Massachusetts Turnpike Authority chair one day after Justice Francis Spina denied him preliminary relief against a removal hearing and, in a related case, granted a preliminary injunction against certain bylaw amendments designed to enhance the chair’s authority vis-à-vis a majority of the board. See Amorello v. Romney, No. SJ-2006-0311 (Mass. Order and Memorandum of Decision July 26, 2006); Connaughton v. Amorello, No. SJ-2006-305 (Mass. Memorandum and Order July 27, 2006).
9. By articulating a standard for preliminary injunctions, the SJC acted in contrast to the U.S. Supreme Court, which has never specifically addressed such standards despite conflicting circuit rules. See Lea B. Vaughn, A Need for Clarity: Toward A New Standard for Preliminary Injunctions, 68 Or. L. Rev. 839, 881 (1989).
10. Reflecting Massachusetts’ knowledge-based economy, numerous preliminary injunction cases since then have involved the enforcement of noncompete agreements. See, e.g., Abrams v. Liss, 53 Mass. App. Ct. 751, 752-53 (2002); Alexander & Alexander, Inc. v. Danahy, 21 Mass. App. Ct. 488, 490-91 (1986); Juan v. La Rosa Del Monte Express, LLC, No. 051153A, 2005 WL 3489877, at *1 (Mass. Super. Ct. Nov. 1, 2005); W.B. Mason Co. v. Staples, Inc., No. 00-5042 BLS, 2001 WL 227855, at *1-*2 (Mass. Super. Ct. Jan. 18, 2001); Am. Express Fin. Advisors, Inc. v. Walker, No. 98-01673, 1998 WL 754620, at *2-*3 (Mass. Super. Ct. Oct. 28, 1998); Lantor Inc. v. Ellis, No. C.A. 98-01064, 1998 WL 726502, at *1-*2 (Mass. Super. Ct. Oct. 2, 1998).
11. Packaging Industries, 380 Mass. at 616.
12. Id.
13. Id.
14. Id. at 618 n. 11.
15. Id. at 617 (footnotes omitted).
16. Id.
17. The adoption of the rules of civil procedure in Massachusetts on the federal model in 1973 led to “one form of action.” Mass. R. Civ. P. 2. This merger “does not alter the traditional substantive distinctions between legal and equitable remedies.” Id. at reporter’s notes (emphasis in original).
18. St. 1977, ch. 405. One can speculate that the SJC ordered direct appellate review to elaborate on this recently-enacted statute.
19. Owen M. Fiss & Doug Rendleman, Injunctions 62 (2d ed. Foundation Press 1984).
20. See generally John W. Castles, Interlocutory Injunction in Flux: A Plea for Uniformity, 34 Bus. Law 1359 (1979); Grant R. Hammond, Interlocutory Injunctions: Time for a New Model?, 30 U. Toronto L. J. 240 (1980); D. Laycock, Book Review: Injunctions and the Irreparable Injury Rule, 57 Tex. L. Rev. 1065 (1978-79); Doug Rendleman, The Inadequate Remedy of Law Prerequisite for an Injunction, 33 U. Fla. L. Rev. 346 (1981). One catalyst for this re-examination was the House of Lords decision in Am. Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 (H.L.). For an account and analysis of American Cyanamid and subsequent erosion, see Hammond, supra note 20, at 249-59 and Adrian Zuckerman, Civil Procedure 276-82 (Lexis Nexis/Butterworths 2003).
21. Richard R. W. Brooks & Warren F. Schwartz, Legal Uncertainty, Economic Efficiency, and the Preliminary Injunction Doctrine, 58 Stan. L. Rev. 381, 388 (2005).
22. Jean O. Lanjouw & Josh Lerner, Tilting the Table? The Use of Preliminary Injunctions, 44 J.L. & Econ. 573, 576 (2001).
23. Hammond, supra note 20, at 271.
24. John Leubsdorf, The Standard for Preliminary Injunctions, 91 Harv. L. Rev. 525 (1978).
25. Packaging Industries, 380 Mass. at 616-18.
26. Leubsdorf, supra note 24, at 525.
27. See id. at 540-41 (“Since preliminary injunctions issue on the basis of rudimentary hearings, the preliminary injunction standard should aim to minimize the probable irreparable loss of rights caused by errors incident to hasty decision.”).
28. See id. at 541; Packaging Industries, 380 Mass. at 616 (quoting Leubsdorf’s definition of irreparable harm as “harm that final relief cannot redress”).
29. Leubsdorf, supra note 24, at 542 (“[I]n theory, [a court] should assess the probable irreparable loss of rights an injunction would cause by multiplying the probability that the defendant will prevail by the amount of irreparable loss that the defendant would suffer from exercising what turns out to be his legal right.”).
30. See Packaging Industries, 380 Mass. at 617-18 (citing Leubsdorf, supra note 24, at 540-44).
31. GTE Prod. Corp. v. Stewart, 414 Mass. 721, 724 (1993); Bank of New England, N.A. v. Mortgage Corp. of New England, 30 Mass. App. Ct. 238, 247 (1991); Biotti v. Bd. of Selectmen, 25 Mass. App. Ct. 637, 640 (1988); Westinghouse Broad. Co. v. New England Patriots Football Club, Inc., 10 Mass. App. Ct. 70, 72 (1980); AFSCME Council 93 v. City of Lynn, No. 03-598, 2003 WL 1989604, at *5 (Mass. Super. Ct. Mar. 27, 2003); Knapik v. McGuire, No. 990908B, 1999 WL 1319239, at *1 (Mass. Super. May 19, 1999). In one case, the author of this article took to heart the advice of a former superior court judge that the Massachusetts judiciary relies on Leubsdorf’s article as a guide to preliminary injunction standards, and cited Leubsdorf’s criticism of emphasis on maintaining the “status quo” as a basis for preliminary injunctions. Cf. Leubsdorf, supra note 24, at 546 (“Emphasis on preserving the status quo is a habit without reason.”). This argument, however, was brushed aside with the opinion that maintaining the status quo is a “prime value” of preliminary relief “however critical legal scholars may be of the concept.” Global NAPs, Inc. v. Javanet, Inc., No. 99-J-750 (Mass. App. Ct. Order Jan. 5, 2000) (Laurence, J.).
32. See generally Owen M. Fiss, The Civil Rights Injunction (Indiana University Press 1978) available at http://www.law.yale.edu/documents/pdf/Faculty/injunction.pdf.
33. See generally Morgan v. Hennigan, 379 F. Supp. 410 (D. Mass. 1974).
34. See Jerry Ackerman, Garrity, in Last Move As Judge, Orders 3-Year Harbor Supervision, The Boston Globe, Dec. 22, 1984, at 26; see generally Charles M. Harr, Mastering Boston Harbor: Courts, Dolphins, and Imperiled Waters (2005).
35. See, e.g., Jerome v. Ross, 7 Johns. Ch. 315, 2 N.Y. Ch. Ann. 305 (1823); David W. Raack, A History of Injunctions in England Before 1700, 61 Ind. L. J. 539, 555-62 (1986). Section 16 of the Judiciary Act of 1789 provided that “suits in equity shall not be sustained in either of the courts of the United States in any case where plain, adequate, and complete remedy may be had at law.” 1 Stat. 73, 82 (1789).
36. Leubsdorf, supra note 24, at 527.
37. GTE Prod. Corp. v. Stewart, 414 Mass. 721, 724 (1993) (emphasis added) (citing Leubsdorf, supra note 20, at 551).
38. Rule 2 of the Massachusetts Rules of Civil Procedure provides for “one form of action to be known as ‘civil action.’” Mass. R. Civ. P. 2. “‘Merger’ does not alter the traditional substantive distinction between legal and equitable remedies,” and unified procedure “affords a more and effective way of enforcing [legal or equitable] rights.” Id. at reporter’s notes (1973) (emphasis in original). The Massachusetts Rules of Civil Procedure superseded forms of writs such as mandamus. Mass. R. Civ. P. 81(b). In contrast to the SJC’s adaptation of equity, Justice Antonin Scalia, writing for the U.S. Supreme Court in 1999, reaffirmed limits on equity jurisdiction based on the boundaries between law and equity that existed for the English Court of Chancery in 1789. Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 318-19 (1999). He wrote, “We do not question the proposition that equity is flexible; but in the federal system, at least, that flexibility is confined with the traditional boundaries of equitable relief.” Id. at 322.
39. See notes 50-57 and accompanying text, infra.
40. Leubsdorf, supra note 24, at 544.
41. As described above, the SJC’s analysis in Packaging Industries focused first on defining and balancing irreparable injury; probability of success then came into play in striking the balance of harms. Nevertheless, the Packaging Industries standard often is set out as an appraisal “first” of likelihood of success on the merits, and then “second” of probable harm, and such descriptions can read like an abbreviated version of the list of elements under the federal standard. See, e.g., Egbert v. Freedom Fed. Sav. and Loan Ass’n, 14 Mass. App. Ct. 383, 394 (1982) (quoting Westinghouse Broad. Co. v New England Patriots Football Club, Inc., 10 Mass. App. Ct. 70, 72 (1980)); Am. Express Fin. Advisors v. Walker, No. 98-01673, 1998 WL 754620, at *4 (Mass. Super. Ct. Oct. 28, 1998); Sec’y of the Commonwealth v. Election Comm’rs of Boston, No. C.A. 00-5038, 2000 WL 1716249, at *2 (Mass. Super. Ct. Nov. 14, 2000).
42. Commonwealth v. County of Suffolk, 383 Mass. 286, 288 (1981).
43. Vaughn, supra note 9, at 840 n.3. (“In this [four-factor] form, the standard is called the traditional or sequential test.”).
44. Leubsdorf, supra note 24, at 256.
45. See text at notes 111-39 infra.
46. Gately v. Massachusetts, 2 F.3d 1221, 1224 (1st Cir. 1993) (quoting Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st Cir. 1991)). Accord Borinquen Biscuit Corp. v. M.V. Trading Corp., 443 F.3d 112, 115 (1st Cir. 2006). The First Circuit from time to time has flirted with a three-factor analysis or sliding scale, but has consistently reverted to the four-factor test. See Arthur D. Wolf, Preliminary Injunctions: The Varying Standards, 7 W. New Eng. L. Rev. 173, 189-92 (1984). The four-factor test also prevails in the Fifth, Eleventh, and D.C. Circuits and, perhaps, the Seventh Circuit as well. See Vaughn, supra, note 9, at 840 n.3.
47. E.g., New England Lumber Specialties, Inc. v. Jarvi, No. 06382, 2006 WL 1360862, at *1 (Mass. Super. Ct. Mar. 15, 2006) (“[T]he standard for issuance of a preliminary injunction is well known. ... the moving party must establish that it has a reasonable likelihood of success on the merits, that it will suffer irreparable harm if the injunction is not granted, that the harm to it outweighs the harm to the opposing party, and that the public interest will not be adversely impacted by issuance of the injunction.”); Town of Wellesley ex rel. Bd. of Selectmen v. Javamine, Inc., No. 06-394-B, 2006 WL 1345836, at *2 (Mass. Super. Ct. Mar. 14, 2006) (“must demonstrate (a) a likelihood of success upon the ultimate legal merits of its claim; (b) the threat or presence of actionable or inequitable irreparable harm in the absence of preliminary injunctive assistance; (c) the absence or the lesser degree of harm to the opposing party from the imposition of the requested preliminary injunction; and (d) the significance of a public interest, if any is present in the circumstances of the dispute”); Eng’g Mgmt. Support, Inc. v. Puca, No. MICV 200501082L, 2005 WL 1476462, at *1 (Mass. Super. Ct. Apr. 11, 2005) ( “must show: a) a likelihood of success on the merits of the action; b) that the failure to issue the injunction would subject it to a substantial risk of irreparable harm; c) that the harm to the nonmoving party with entry of the injunction would not exceed the harm to [the plaintiff] in the absence of the injunction; and d) that, where appropriate, the public interest would be served by entry of the injunction”); Am. Stop Loss Ins. Brokerage Serv., Inc. v. Prince, No. 01-0215, 2001 Mass. Super. LEXIS 68, at *2 (Mass. Super. Ct. Feb. 20, 2001) (“a tripartite test” in which the plaintiff must show: “(1) [it] has a reasonable likelihood of success on the merits; (2) [it] will suffer irreparable harm if the injunction is not granted; and (3) the harm [it] will suffer if the injunction is not granted outweighs the injury [the defendant] will suffer if the injunction is granted”). This “tripartite test” is the federal four-factor test, minus the public interest factor. All these formulations omit the crucial and subtle ingredient of “the risk of [irreparable] harm in light of the party’s chance of success on the merits.” Packaging Industries, 380 Mass. at 617.
48. See Am. Hosp. Supply Corp. v. Hosp. Prod., Ltd., 780 F.2d 589, 593 (7th Cir. 1986). Indeed, Professors Douglas Laycock, Richard Brooks and Warren Schwartz join Leubsdorf and Judge Posner together as the “Leubsdorf-Posner formula” or “Leubsdorf-Posner formulation.” Douglas Laycock, The Death of The Irreparable Injury Rule 119, 120 (Oxford University Press 1991); Brooks & Schwartz, supra note 21, at 390. Judge Posner expressed the model in an equation:
grant the preliminary injunction if but only if P x Hp > (1-P) x Hd, or, in words, only if the harm to the plaintiff if the injunction is denied, multiplied by the probability that the denial would be an error (that the plaintiff, in other words, will win at trial), exceeds the harm to the defendant if the injunction is granted, multiplied by the probability that granting the injunction would be an error.
Am. Hosp. Supply Co., 780 F.2d at 593. Like the use of decision analysis for analyzing settlements or damages, among other quantitative analyses of litigation, such quantitative analysis cannot substitute for judgment but can be a useful analytical tool to test judgment. For a discussion of Judge Posner’s formulation, see Laycock, supra note 48, at 118-23; Brooks & Schwartz, supra note 21, at 391; see also Linz Audain, Of Posner, Newton, and 21st Century Law: An Economic and Statistical Analysis of The Posner Rule for Granting Preliminary Injunctions, 23 Loy. L.A.L. Rev. 1215, 1218 (1990) (“Posner would certainly have made Sir Isaac Newton proud if Isaac Newton were alive today”); Linda S. Mullenix, Burying (With Kindness) the Felicific Calculus of Civil Procedure, 40 Vand. L. Rev. 541, 543 (1987) (“Posner’s efforts to Benthamize civil procedure are an abomination in theory and practice”); Linda J. Silberman, Injunctions by the Numbers: Less the Sum of Its Parts, 63 Chi.-Kent L. Rev. 279, 282 (1987) (“the introduction of Judge Posner’s mathematical formula...does not clarify the standard and emerges as a disguised effort to extend the heavy hand of appellate review”).
49. See notes 61-64 and accompanying text infra.
50. Mass. R. Civ. P. 65.
51. 11A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2948, at 129-30 (2d ed. 1995). This statement describes courts’ “shorthand formulations.” Wright and Miller go on to say that such standards “do not take the place of a sound evaluation of the factors relevant to granting relief under Rule 65(a).” Id. at 131.
52. See GTE Prod. Corp. v. Stewart, 414 Mass. 721, 724 (1993) (citing Leubsdorf, supra note 24, at 551).
53. See, e.g., Custom Blends, Inc. v. Pearlco of Boston, Inc., No. 04-P-916, 2005 WL 2105937, at *1 (Mass. App. Ct. Sept. 1, 2005) (“extraordinary relief”); Endodontic Assoc. of Lexington, Inc. v. Johnston-Neeser, No. 053319, 2006 WL 933427, at *8 (Mass. Super. Ct. Mar. 16, 2006) (“drastic remedy”); KGR Realty, LLC v. Iron Mountain Information Mgmt. Inc., No. 054569 BLS, 2005 WL 3670922, at*2 (Mass. Super. Ct. Nov. 28, 2005) (“extraordinary relief”); Brockton Ret. Bd. v. Pub. Employee Ret. Admin. Comm’n, No. 0400134B, 2005 WL 3106377, at *2 (Mass. Super. Ct. Aug. 16, 2005) (“drastic remedy” and “clear showing”); Anderson v. LAM Builders, Inc., No. 20031106A, 2004 WL 2341338, at *1 (Mass. Super. Ct. Sept. 17, 2004) (“drastic remedy” and “clear showing”); Carter v. Town of Douglas, 2000 WL 1473571, at *2 (Mass. Super. Ct. Jun. 22, 2000) (“drastic remedy” and “clear showing”); Envtl. Waste Tec. v. Commonwealth, No. 956203F, 1995 WL 1286564, at *2 (Mass. Super. Ct. Nov. 30, 1995) (“drastic remedy” and “clear showing”).
54. GTE Prod. Corp., 414 Mass. at 724 (emphasis added) (citing Leubsdorf, supra note 24, at 547).
55. Leubsdorf, supra note 24, at 547 (emphasis added).
56. See McCormack v. Zimmerman, No. 045500 BLS, 2005 WL 127036, at *5 (Mass. Super. Ct. Jan. 3, 2005), where the court acknowledged the risk of harm to the plaintiff’s law practice and his clients but, in light of the fiduciary and ethical obligations of the defendant law firm, did not see a basis to become involved in “delicate” relationships without more evidence that such obligations were being violated.
57. Douglas Laycock, The Death of The Irreparable Injury Rule, 103 Harv. L. Rev. 687, 729-30 (1990). Professor Laycock posited that irreparable harm has ceased to be a meaningful requirement for permanent injunctive relief, but contrasts preliminary injunctions:
The irreparable injury rule has teeth at the preliminary injunction stage because it still serves a purpose there. At the preliminary injunction stage, the merits are unresolved, plaintiff may be undeserving, and it is still possible that plaintiff will not get any remedy at all. Defendant has legitimate interests in a full hearing and in freedom to act in ways not yet shown to be unlawful. These interests coincide with the court’s interest in avoiding error and being fair to both sides.
Id. at 732. See also Laycock, supra note 48, at 37-98 (offering an extensive empirical survey of injunction cases in all jurisdictions and incisive conceptual analysis of remedies).
58. See Nat’l Steel Car, Ltd. v. Canadian Pacific Ry., 357 F.3d 1319, 1325 (Fed. Cir. 2004).
59. Id.
60. Cf. Loyal Order of Moose, Inc. v. Bd. of Health, 439 Mass. 597, 602-03 (2003) (reversing denial of relief and directing issuance of preliminary injunction where harm was negligible but harm alleged by defendant was no clearer and defendant acted without legal authority). A heavy presumption against issuing relief might have found such a case too equivocal to make “a clear showing.”
61. Packaging Industries, 380 Mass. at 617-18 (citing Note, Probability of Ultimate Success Held Unnecessary for Grant of Interlocutory Injunction, 71 Colum. L. Rev. 165 (1971)).
62. Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1205 (2d Cir.1970).
63. See, e.g., Sonesta Intern. Hotels Corp. v. Wellington Assoc., 483 F.2d 247, 250 (2d Cir. 1973). This alternate formulation is based on Judge Jerome Frank’s opinion in Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d. 738, 742-43 (2d Cir. 1953). The Ninth Circuit also has adopted a similar standard. See, e.g., Dep’t of Parks and Recreation v. Bazaar Del Mundo Inc., 448 F.3d 1118, 1123 (9th Cir. 2006) (“The movant must demonstrate either: (1) a combination of probable success on the merits and the possibility of irreparable harm, or (2) that serious questions are raised as to the merits and that the balance of hardships tips in its favor.”) (citing Arcamuzi v. Cont’l Air Lines, Inc., 819 F.2d 935, 937 (9th Cir. 1987)). See generally William H. Mulligan, Preliminary Injunctions in the Second Circuit, 43 Brooklyn L. Rev. 831 (1977); Wolf, supra note 46, at 192-96.
64. Packaging Industries, 380 Mass. at 618 n. 11.
65. LeClair v. Town of Norwood, 430 Mass. 328, 337 (1999).
66. Roy v. Town of Spencer, No. C.A. 99-0494-B, 1999 WL 228712, at *3 (Mass. Super. Ct. Apr. 5, 1999).
67. Healey v. Comm’r of Pub. Welfare, 414 Mass. 18, 27 (1992).
68. Roy, 1999 WL 228712, at *3.
69. Cf. Silberman, supra note 48, at 305 (Posner formula “does not suggest that any threshold amount of harm or probability of success is necessary”).
70. See LeClair, 430 Mass. at 336-37 (supporting plaintiff’s claim that town should have advertised services for bid); Healey, 414 Mass. at 25 (agreeing that statute involved “cannot logically be read” to support defendants’ interpretation).
71. John T. Callahan & Sons, Inc. v. City of Malden, 430 Mass. 124, 131 (1999); see J.F. White Contracting Co. v. Massachusetts Port Auth., 51 Mass. App. Ct. 811, 817 (2001) (“We therefore conclude that White’s request for a preliminary injunction was properly denied because White had demonstrated no reasonable likelihood of success on the merits of his claim.”); Egbert v. Freedom Fed. Sav. & Loan Ass’n., 14 Mass. App. Ct. 383, 395 (1982) (“While the trustees may have met their burden of demonstrating irreparable harm in the absence of injunctive relief, they have failed on this record to show a likelihood that they will prevail on the merits.”); Akoury v. Roman Catholic Archbishop of Boston, No. 043803B, 2004 WL 2341333, at *4 (Mass. Super. Ct. Sept. 14, 2004) (great harm in parish church closing, but “no substantial possibility of success on the merits”). See Cavel Int’l, Inc. v. Madigan, No. 07-2658, 2007 U.S. App. LEXIS 18654, at *6, *12 (7th Cir. July 18, 2007) (Posner, J.) (applying preliminary injunction standards to injunction pending appeal and granting injunction to prevent shutdown of business even though “[w]e do not suggest [appellant] has a winning case or even a good case,” but “[i]f an appeal has no merit at all, an injunction pending the appeal should of course be denied”); Centurion Reinsurance Co., v. Singer, 810 F.2d 140, 145 (7th Cir. 1987) (“No matter how strongly the balance of irreparable harms may incline in favor of the party asking for a preliminary injunction, it is error to grant the injunction if the party has no chance or only a very slight chance of prevailing on the merits.”).
72. GTE Prod. Corp. v. Stewart, 414 Mass. 721, 725-26 (1993) (quoting Laycock, supra note 57, at 732).
73. See John T. Callahan & Sons, 430 Mass. at 131-32 (injury caused by competitive bidding statute “is consistent with the purposes of the ... statute”); Healey, 414 Mass. at 28 (harm to individuals “cannot excuse the department from compliance with the categorical terms of federal legislations”).
74. See, e.g., Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 414 Mass. 609 (1993).
75. Healey, 414 Mass. at 23 (“the likelihood of success question is ... critical to the injunction”); see John T. Callahan & Sons, Inc., 430 Mass. at 130-31 (decided on probability of success on the merits alone).
76. Packaging Industries, 380 Mass. at 621 (citing Sampson v. Murray, 415 U.S. 61, 88 (1974)); accord GTE Prod. Corp. v. Stewart, 414 Mass. 721, 723 & 726 (1993) (even though GTE established the existence of a “serious dispute factually,” the court declined to grant preliminary injunction because GTE did not establish irreparable harm); Ballotte v. City of Worcester, No. 951747A, 1995 WL 1146157, at *3 (Mass. Super. Ct. Sept. 1, 1995) (“Even if this Court were to assume, arguendo, that [the moving party] has presented sufficient facts that her suit has a good chance of success on the merits, she has not adequately shown that she faces a substantial risk of irreparable harm.”); Ottenberg v. Vanguard Fiduciary Trust Co., No. 892951, 1995 WL 809492, at *6 (Mass. Super. Ct. June. 2, 1995) (denying a preliminary injunction where applicant relied solely on likelihood of success on the merits); Plastic Surgical Serv. of New England, P.D. v. Hall, No. 925004, 1993 WL 818637, *2 (Mass. Super. Ct. Sept. 22, 1993) (“Putting aside the issue of the likelihood of success on the merits, the requested preliminary injunction must be denied because the plaintiff has failed to demonstrate that without such relief he will be irreparably harmed.”).
77. Packaging Industries, 380 Mass. at 616 (quoting Leubsdorf, supra note 24, at 541); see Fiss & Rendleman, supra note 19, at 59 (irreparable harm is “defined as harm that cannot be (fully? adequately?) [sic] repaired by remedies available in common law courts”).
78. Packaging Industries, 308 Mass. at 616 n. 10.
79. Planned Parenthood League of Mass. v. Operation Rescue, 406 Mass. 701, 708-09 (1990); see also Doe v. Attorney Gen., 425 Mass. 217, 221-22 (1997) (violation of double jeopardy); T&D Video, Inc. v. City of Revere, 423 Mass. 577, 582 (1996) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury”) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)) O’Sullivan v. Sec’y of Human Serv., 402 Mass. 190, 197-98 (1988) (seclusion and restraint of mental patients in violation of statute and regulation).
80. Biotti v. Bd. of Selectmen, 25 Mass. App. Ct. 637, 643 (1988) (“blasting and earth removal ... irreversibly alters the land which is the subject of this litigation”).
81. Healey v. Comm’r of Pub. Welfare, 414 Mass. 18, 27-28 (1992); Minnefield v. McIntire, No. C.A. 99-3349, 1999 WL 823890, at *10 (Mass. Super. Ct. Aug. 27, 1999).
82. See, e.g., Town of Brookline v. Goldstein, 388 Mass. 443, 449-50 (1983) (repetitive complaints to officials and lawsuits); Joyal v. City of Marlborough, No. C.A. 947562, 1995 WL 809017, at *3 (Mass. Super. Ct. Feb. 27, 1995) (“significant, irreparable harm” caused by odors from composting facility); Davis v. Massachusetts Interscholastic Athletic Ass’n, Inc., No. C.A. 942887, 1995 WL 808968, at *3 (Mass. Super. Ct. Jan. 19, 1995) (ineligibility to pitch an entire softball season).
83. See Am. Grain Prod. Processing Inst. v. Dep’t of Pub. Health, 392 Mass. 309, 326-27 (1984) (abuse of discretion not to weigh harm to defendant.).
84. See Transp. Workers Union v. Massachusetts Bay Transp. Auth., No. 994672F, 1999 WL 1203806, at *9 (Mass. Super. Ct. Nov. 15, 1999) (three-judge panel pursuant to Mass Gen. Laws. ch. 212, § 30 (2006)) (loss of employees’ seniority and benefits to plaintiffs outweighed by potential for injunction on implementation of contract to disrupt or shut down MBTA service).
85. See Am. Grain Prod., 392 Mass. at 327-28 (banned food products not perishable and can be restored to shelves if plaintiff succeeds in overturning ban); Ballotte v. City of Worcester, No. 951747A, 1995 WL 1146157, at *3 (Mass. Super. Ct. Sept. 1, 1995) (seniority and benefits as well as lost income can be restored after final judgment).
86. See, e.g., Satloff v. Massachusetts Bd. of Registration in Dentistry, No. 05-3054-A, 2005 WL 2746556, at *5 (Mass. Super. Ct. Oct. 5, 2005) (“denial or the postponement of preliminary injunction relief now does not expose [plaintiff] to the threat or the presence of irreparable harm incurable by alternate immediate judicial review later”); Ballotte, 1995 WL 1146157, at *3 (“A successful disposition at trial can provide Ballotte with a remedy at law or equity for any losses suffered with respect to her claims arising out of her layoff”).
87. E.g., Egbert v. Freedom Fed. Sav. & Loan Ass’n, 14 Mass. App. Ct. 383, 394 (1982) (injunction vacated where economic harm to plaintiff outweighs harm to defendant but damages remedy available). For a critique of the primacy of dam