The Real Truth About Obama

The Fourth Circuit’s recent decision in The Real Truth About Obama, Inc. v. FEC, which adopts a new standard for issuing preliminary injunctions, will have serious implications for parties seeking temporary injunctive relief in Virginia’s state and federal courts.


For the past three decades, a plaintiff trying to secure a preliminary injunction in the Fourth Circuit–and, as a practical matter, in the Virginia state courts–had to satisfy the balance-of-hardship test set out in Blackwelder Furniture Co. of Statesville v. Selig Manufacturing Co., 550 F.2d 189 (4th Cir. 1977).

Under Blackwelder, the first step in the court’s analysis is to balance the likelihood of irreparable harm to the plaintiff against the likelihood of harm to the defendant. If that results in an imbalance in the plaintiff’s favor, the court moves on to determine whether the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation.

Blackwelder allows for a “flexible interplay” among these elements. The upshot of its approach is that, if the balance of the hardships falls in the plaintiff’s favor, he need not show a likelihood of success. It might be enough to show a substantial question. In fact, the Blackwelder court expressly held that the district court had erred by requiring the plaintiff to show a likelihood of success on the merits.

Blackwelder has proven to be a peculiarly influential federal decision. That’s because, while the Fourth Circuit has a robust body of temporary injunction case law, the Supreme Court of Virginia has very little. As a result, Virginia trial courts have adopted the Blackwelder test.

The Real Truth About Obama, Inc. v. FEC

For a long time, that was the state of things–although, as Steve Emmert notes in his excellent analysis, Blackwelder certainly had its critics.

Late last year, however, the Supreme Court of the United States clearly articulated the elements necessary to support a preliminary injunction in Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365. Primary among these was a likelihood of success on the merits. This was, to say the least, bad news for Blackwelder, which allowed plaintiffs faced with serious harm to elide this requirement.

And so, earlier this month, the Fourth Circuit retired Blackwelder in a case styled The Real Truth About Obama, Inc. v. FEC.

The opinion is not nearly as interesting as it sounds, largely because the appellants had no apparent interest in discussing the real truth about President Obama:

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They just wanted to talk about election regulations.Continue Reading Bye-Bye, Blackwelder