I had planned to post this yesterday, but as with Monday's planned posting, both nature and Connecticut Light & Power's continued incompetence thwarted me for the second time this week. Yesterday morning, I was trapped in a commuter train for three hours after a tree hit it. At the same time, power went out at my house again after being on for only 12 hours since Saturday night: it won't be restored until Friday afternoon at best, with the prospect of pipes bursting because of the freezing temperatures. Meanwhile neighbors are driving across my lawn like it was a freeway. Not a good week for blogging or anything else.
The case I wanted to take up is the Ninth Circuit's January 11th opinion in LSG Architects, Inc. v. Concordia Homes of Nevada, which reversed, in part, a district judge who had declined to issue an injunction against the use of architectural plans beyond the scope of a license. The case raises a number of interesting points.
First, where the infringing activity is a one-off and has stopped by the time the preliminary injunction motion is filed, the Ninth Circuit held no injunction can issue due to mootness. The court of appeals went further though and spoke in constitutional terms: Article III requires a case or controversy which doesn't exist if the behavior has stopped. That reasoning seems to confuse remedial relief with subject matter jurisdiction. If no injunction was requested, there would be a case or controversy from the infringement claim. The fact that the activity has stopped may (but as we shall see below need not) argue against the need for a preliminary injunction, the constitutional controversy remains. The court wasn't suggesting dismissing the case entirely, but I am a bit baffled by its belief that it lacked constitutional power to issue an injunction in such circumstances.
Where there is a possibility that the infringing activity can be repeated, the court held that defendant's mere promise not to infringe is insufficient, by itself, not to issue an injunction, and that is one area in which the court reversed, holding: "Voluntary cessation of challenged conduct moots a case ... only if it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." This argument is frequently made by defendants, and the Ninth Circuit's strong stance on the issue should prove helpful.
The final aspect of injunctive relief was the decision whether to issue what is called a "mandatory injunction." This type of injunction does not seek to preserve the status quo pending a determination on the merits, but instead effectively seeks the ultimate relief sought in the suit. For this reason, mandatory injunctions are disfavored and were by the Ninth Circuit in LGS. (In the LGS case, plaintiff sought the return of the allegedly infringing architectural plans used to build unauthorized homes).