Millercoors LLC v. Anheuser-Busch Cos.

• Decision Date: 23 September 2019
• Docket Number: 19-2713 & 19-2782,Nos. 19-2200,s. 19-2200
• Citation: 940 F.3d 922
• Parties: MILLERCOORS LLC, Plaintiff-Appellant, Cross-Appellee, v. ANHEUSER-BUSCH COMPANIES, LLC, Defendant-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

940 F.3d 922

MILLERCOORS LLC, Plaintiff-Appellant, Cross-Appellee,

v.ANHEUSER-BUSCH COMPANIES, LLC, Defendant-Appellee, Cross-Appellant.

Nos. 19-2200

19-2713 & 19-2782

United States Court of Appeals, Seventh Circuit.

Argued September 23, 2019

Interim Order October 18, 2019

Donald Karl Schott, Anita Marie Boor, Attorneys, QUARLES & BRADY LLP, Madison, WI, James Eric Goldschmidt, Attorney, QUARLES & BRADY LLP, Milwaukee, WI, for Plaintiff-Appellant.

James F. Bennett, Caitlin O'Connell, Attorneys, DOWD BENNETT LLP, St. Louis, MO, Jennifer L. Gregor, Kendall W. Harrison, Attorneys, GODFREY & KAHN S.C., Madison, WI, for Defendant-Appellee.

Before Easterbrook, Hamilton, and St. Eve, Circuit Judges.

Per Curiam.

On May 24, 2019, the district court entered an opinion that concludes with language that the judge believed would serve as a preliminary injunction. MillerCoors filed an appeal, which has been docketed as No. 19-2200. But the district court did not comply with Fed. R. Civ. P. 65(d)(1)(C), which requires every injunction to be set forth without referring to any other document. See, e.g., Chicago v. Sessions , No. 17-2991 (7th Cir. Aug. 10, 2018) (en banc), slip op. 3, 2018 WL 4268814 ( Rule 65 "requires a separate document setting forth the terms of such an injunction"); Auto Driveaway Franchise Systems, LLC v. Auto Driveaway Richmond, LLC , 928 F.3d 670, 676 (7th Cir. 2019) ; BankDirect Capital Finance, LLC v. Capital Premium Financing, Inc ., 912 F.3d 1054, 1057 (7th Cir. 2019) ; Bethune Plaza, Inc. v. Lumpkin , 863 F.2d 525, 527 (7th Cir. 1988) ; Chief Freight Lines Co. v. Teamsters Local No. 886 , 514 F.2d 572, 578 n.6 (10th Cir. 1975).

In supplemental jurisdictional memoranda filed at our request after oral argument, both sides acknowledged that the district court failed to comply with Rule 65(d). Neither side asked us to depart from the decisions we have cited.

On September 4, 2019, while appeal No. 19-2200 was pending, the district court entered another opinion stating that it was "modifying" the decision of May 24. The district court did not follow the procedure specified by Fed. R. Civ. P. 62.1 for modifying an order that is before the court of appeals, nor did it discuss the rule that only one court at a time has jurisdiction over "those aspects of the case involved in the appeal." Griggs v. Provident Consumer Discount Co ., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982). And as with the May 24 opinion, the district court did not comply with Rule 65(d). Nor did the judge modify the injunction as a condition of a stay or bond pending appeal, as Rule 62(d) permits. (It provides: "While an appeal is pending from an interlocutory order or final judgment that grants, continues, modifies, refuses, dissolves, or refuses to dissolve or modify an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party’s rights." The authority to make changes linked to bonds or otherwise secure the enjoined party’s rights differs from a blanket grant of permission to impose new obligations, and substantially alter the issues, while appeals are pending.) Anheuser-Busch’s appeal from the September 4 order has been docketed as No. 19-2713.

On September 6, 2019, the district court modified the modification of September 4. Once again it did not discuss its jurisdiction to do so, did not rely on Rule 62(d), did not follow the procedure specified by Rule 62.1, and did not comply with Rule 65(d). Anheuser-Busch’s appeal from the order of September 6 has been docketed as No. 19-2782.

Although the district court’s intent to afford enforceable equitable relief is sufficiently clear to provide appellate jurisdiction despite the noncompliance with Rule 65(d), see Calumet River Fleeting, Inc. v. Operating Engineers Union , 824 F.3d 645, 650 (7th Cir. 2016), enforcing that Rule is sufficiently important that we order a limited remand with instructions to enter the injunction on a document separate from the opinions.

In the process, the district court may be able to avoid the potential jurisdictional problems that its modifications of the initial order have created. (We call them modifications even though the order of September 4 does not change any language of the May 24 decision. It seems more like a second preliminary injunction, although the judge called it a modification. The September 6 order, by contrast, explicitly modifies the September 4 order.) While we recognize that a district court is in the best position to address urgent issues and changes in circumstance related to a preliminary injunction, the court must nonetheless comply with the procedures for doing so in order to avoid creating potential complications on review. A single injunction complying with Rule 65(d) would be subject to appeal—and, as there has not yet been even one injunction that satisfies Rule 65(d), the consolidated injunction could be treated as the initial order, allowing both sides to appeal without any potential obstacle in the Griggs doctrine or Rule 62.1, or any need for us to consider the disagreement among the circuits about the extent to which preliminary injunctions are subject to modification by a district judge while an appeal is pending. Compare Ortho Pharmaceutical Corp. v. Amgen, Inc. , 887 F.2d 460, 464 (3d Cir. 1989), with Coastal Corp. v. Texas Eastern Corp ., 869 F.2d 817, 820 (5th Cir. 1989).

If the district court wants to make still further changes, in light of discovery in the ongoing litigation, it is free to do so—though the judge also is free to enter an injunction consolidating all decisions made to date but leaving all else to the permanent-injunction phase. We leave this decision in the capable hands of the district court.

Once the district court has complied with this limited remand, both sides should file new notices of appeal and propose a schedule for new briefs. The briefs already filed concerning the May 24 order may be incorporated by reference, but we have yet to receive briefs concerning the September 4 and 6 orders. All aspects of the case must be fully briefed before this court will proceed to decision.

Hamilton, Circuit Judge, dissenting.

I respectfully dissent from the remand order. We do not need to remand this appeal from the district court’s preliminary injunction of May 24, 2019. It is briefed, argued, and ready to be decided on the merits. Judge Conley complied with all of the formal requirements for issuing an injunction. With respect, contrary to my colleagues’ views, Rule 65(d)(1) simply does not contain the "separate-document" requirement that is the basis for the majority’s remand. The majority offers here no textual or other defense for dicta in prior cases asserting such a requirement. Never before have we put any teeth behind this groundless and trivial "requirement." This is a case where text and pragmatics point in the same direction. We need not remand for formalistic compliance with an imagined and non-jurisdictional rule that no party has raised. In addition, on the more consequential issue here, the district court had jurisdiction to issue its two September orders on Bud Light’s packaging.

I address in Part I the Rule 65(d) issue and in Part II the issues posed by the district court’s separate injunction on packaging and its emergency order relaxing that injunction at Anheuser-Busch’s request.

I. A Separate Document?

The formal requirements of Rule 65(d)(1) —those actually included in the text of the rule—are vital when a district judge exercises one of the most awesome powers of the office: issuing a preliminary injunction that is enforceable by contempt sanctions. Here are the textual requirements:

(1) Contents. Every order granting an injunction and every restraining order must:

(A) state the reasons why it issued;

(B) state its terms specifically; and

(C) describe in reasonable detail—and not by referring to the complaint or other document—the act or acts restrained or required.

Compliance with these requirements ensures that a party who is restrained by a preliminary injunction knows clearly what conduct is being restrained and why. Oral orders can be vague and easily misunderstood. Incorporating other documents can lead to uncertainty. Failing to state clearly the reasons for the injunction may lead to hasty, sometimes too-casual analysis.

In this case, the preliminary injunction is in a document titled "Opinion and Order ," which sets forth a detailed and thoughtful analysis of the facts and the law. Under the heading "Order" on page 49, the document spells out what is prohibited:

IT IS ORDERED that:

1) Plaintiff MillerCoors, LLC’s motion for preliminary injunction (dkt. #8) is GRANTED IN PART AND DENIED IN PART as follows. Defendant Anheuser Busch is PRELIMINARILY ENJOINED from using the following language within ten (10) days of this order in its commercials, print advertising and social media:

• Bud Light contains "100% less corn syrup";

• Bud Light in direct reference to "no corn syrup" without any reference to "brewed with," "made with" or "uses";

• Miller Lite and/or Coors Light and "corn syrup" without including any reference to "brewed with," "made with" or "uses"; and

• Describing "corn syrup" as an ingredient "in" the finished product.

MillerCoors, LLC v. Anheuser-Busch Cos. , 385 F. Supp. 3d 730, 760 (W.D. Wis. 2019). This approach was not unusual; district judges issue such orders often, combining the opinion and the order, ordinarily without objection from the parties or this court as to the form. See, e.g., Dexia Credit Local v. Rogan , 602 F.3d 879, 884 (7th Cir. 2010) (affirming injunction in same document as reasons for issuing it: "The injunction is sufficiently precise and self-contained, and we require nothing more to comply with Rule 65."); Russian Media Group, LLC v. Cable America, Inc. , 2009 WL 440957, at *3 (N.D. Ill. Feb. 19, 2009) (combining findings of fact, conclusions of law, and specific terms of...