Wednesday, May 6, 2009
Posted by D. Daniel Sokol
ABSTRACT: Cirroc, the Unfrozen Caveman Lawyer from Saturday Night Live, consistently employed the same successful litigation tactic. While confessing confusion about many aspects of modern life, he could still say, “there is one thing I DO know . . .” as a lead‐in to his argument that his client was entitled to a favorable judgment. There was some question following the D.C. Circuit’s splintered decision in FTC v. WholeFoods about how much value the case might have as precedent and whether it would affect how district court judges decide FTC preliminary injunction cases. Like Cirroc, we still are not sure how to reconcile the statutory language and case law, but after the recent district court decision in FTC v. CCC Holdings, “there is one thing we DO know . ..”—at least in the D.C. Circuit, the FTC probably can get a preliminary injunction if it can make out a prima facie structural case, almost whatever the facts.
The court in CCC Holdings (1) unambiguously followed Whole Foods (despite there being no majority opinion), (2) received the message that lower courts really should apply “serious questions” as the standard for FTC requests for a preliminary injunction, and (3) concluded that this standard sets a relatively low bar for the FTC to obtain a preliminary injunction.