Keeping the Status Quo


Does satellite deliver a better television viewing experience than cable? Contrary to DIRECTV’s advertising campaign purporting this to be true, in a lawsuit against those claims initiated by Time Warner Cable, the United States Court of Appeals for the Second Circuit found that there was no difference.

In the absence of a preliminary injunction, companies injured by false advertisements (like Time Warner) suffer harm throughout the trial. As a result, a preliminary injunction is the premiere remedy for plaintiffs in these cases. In order to succeed on a motion for a preliminary injunction, the moving party must establish the four factors of the equitable analysis: 1) the party is likely to succeed on the merits, 2) a failure to obtain preliminary relief will likely cause the party to suffer irreparable injury, 3) the balance of equities tips in the party’s favor, and 4) an injunction is in the public interest.

Over time, a judicially created practice known as the presumption of irreparable harm developed, which permits the burden of proof on the second element of the equitable analysis to be shifted to the defendant. Until recently, courts also applied the presumption of irreparable harm in cases involving claims of patent infringement and copyright infringement. The presumption initially came under attack in these types of cases in the wake of two United States Supreme Court cases, eBay and Winter. These two cases led courts to abolish the use of the presumption in patent infringement litigation and copyright infringement litigation.

Should the presumption of irreparable harm also be abolished in false advertising litigation?

My Note answers this question in the negative, urging courts to keep the status quo and to continue to utilize the presumption of irreparable harm. A close reading of eBay and Winter reveals that these decisions do not threaten the legitimacy of the presumption in claims of false advertising. Moreover, policy reasons support the presumption’s continued application in these cases. For an analysis of applicability of the irreparable harm presumption, as well as an overview of the proper framework for applying it in false advertising claims, my Note is available in print in Issue 4 of Volume XX of the Journal, through our online archives, and can also be found on WestLaw, Lexis, and HeinOnline. I welcome your comments, and I can be reached by email at


About Author

Comments are closed.

Fordham Journal of Corporate & Financial Law