MillerCoors LLC v. Anheuser-Busch Companies, LLC

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 19-2200, 19-2713 & 19-2782
MILLERCOORS LLC,
Plaintiff-Appellant, Cross-Appellee,
v.
ANHEUSER-BUSCH COMPANIES, LLC,
Defendant-Appellee, Cross-Appellant.
____________________
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 19-cv-218-wmc — William M. Conley, Judge.
____________________
ARGUED SEPTEMBER 23, 2019 —
INTERIM ORDER OCTOBER 18, 2019
____________________
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 be-
lieved 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.
2 Nos. 19-2200, 19-2713 & 19-2782
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 (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 ap-
peals, 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 (1982). And as with the May 24 opinion, the dis-
trict court did not comply with Rule 65(d). Nor did the judge
modify the injunction as a condition of a stay or bond pend-
ing appeal, as Rule 62(d) permits. (It provides: “While an
appeal is pending from an interlocutory order or final judg-
ment 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
Nos. 19-2200, 19-2713 & 19-2782 3
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 substan-
tially alter the issues, while appeals are pending.) Anheuser-
Busch’s appeal from the September 4 order has been docket-
ed 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 ju-
risdiction 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 suffi-
ciently important that we order a limited remand with in-
structions 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 lan-
guage of the May 24 decision. It seems more like a second
preliminary injunction, although the judge called it a modifi-
cation. The September 6 order, by contrast, explicitly modi-
fies the September 4 order.) While we recognize that a dis-
trict court is in the best position to address urgent issues and
changes in circumstance related to a preliminary injunction,
4 Nos. 19-2200, 19-2713 & 19-2782
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 con-
solidating 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 refer-
ence, but we have yet to receive briefs concerning the Sep-
tember 4 and 6 orders. All aspects of the case must be fully
briefed before this court will proceed to decision.
Nos. 19-2200, 19-2713 & 19-2782 5
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 BudLight’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: issu-
ing 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:
6 Nos. 19-2200, 19-2713 & 19-2782
(A) state the reasons why it issued;
(B) state its terms specifically; and
(C) describe in reasonable detail—and not by refer-
ring 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 head-
ing “Order” on page 49, the document spells out what is pro-
hibited:
IT IS ORDERED that:
1) Plaintiff MillerCoors, LLCʹs motion for pre-
liminary injunction (dkt. #8) is GRANTED IN
PART AND DENIED IN PART as follows. De-
fendant Anheuser Busch is PRELIMINARILY
ENJOINED from using the following language
within ten (10) days of this order in its commer-
cials, 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”;
Nos. 19-2200, 19-2713 & 19-2782 7
• 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 doc-
ument 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 preliminary injunction in one document), aff’d, 598
F.3d 302 (7th Cir. 2010).
The order at the end of the combined “Opinion and Or-
der” complied with all of the express requirements of Rule
65(d)(1). It served all the purposes of that rule. No party has
objected to its form. When the panel questioned this form in
oral argument, counsel for Anheuser-Busch confirmed that
his client understood that it was being enjoined and under-
stood what was required. It also understood that it could ap-
peal if it wanted to. The order may or may not turn out to be
sound on the merits, but there is no formal problem with it,
nothing that affects appellate jurisdiction, and nothing that
justifies a remand for the district judge to copy the text from
page 49 and paste it into a new, separate document.
8 Nos. 19-2200, 19-2713 & 19-2782
The majority, however, asserts that Rule 65(d) requires
every injunction to be set forth on a separate document that
does not refer to any other document. With respect, that re-
quirement does not appear in Rule 65(d). The requirement
does appear as dicta in a number of our cases dating back to
1988, but as explained below, those cases required us to ad-
dress other, genuine problems in the preliminary injunctions.
Until now, we have never attached any real consequences to
a failure to comply only with this imagined, non-textual re-
quirement. Rather than attach new consequences now
through this remand, we should retreat from our earlier dicta.
A good place to start is BankDirect Capital Finance, LLC v.
Capital Premium Financing, Inc., 912 F.3d 1054, 1057 (7th Cir.
2019), where we identified several critical problems in a pre-
liminary injunction: the injunction left important issues unre-
solved; it used ambiguous language and seemed to incorpo-
rate another document; and it required no bond. We also said
this regarding a separate document:
Third, the district court failed to enter an injunc-
tion as a separate document under Fed. R. Civ.
P. 65(d)(1)(C). Language in an opinion does not
comply with Rule 65(d). See Gunn v. University
Committee to End the War, 399 U.S. 383 (1970).
Neither side reminded the district court of the
need to enter an injunction.
Id. As noted, Rule 65(d)(1)(C) contains no such requirement.
My colleagues and I agree, of course, that language in an
opinion that stops short of an explicit order does not amount
to an enforceable order. Here, however, the language of the
Nos. 19-2200, 19-2713 & 19-2782 9
order was clear here, and Gunn is not on point for a “separate-
document” requirement.1
In BankDirect, we recognized that the district court had is-
sued a written order that it expected the defendant to obey.
That was enough to give us appellate jurisdiction—draining
of any force the suggestion in the opinion that “no injunction”
had been entered. Failure to comply with the textual require-
ments of Rule 65(d) does not defeat appellate jurisdiction, lest
the enjoined party be unable to obtain appellate review with
the threat of contempt sanctions hanging over her head. E.g.,
Abbott v. Perez, 138 S. Ct. 2305, 2321 (2018); Advent Electronics,
Inc. v. Buckman, 112 F.3d 267, 273 (7th Cir. 1997) (finding ap-
pellate jurisdiction over appeal from preliminary injunction
that merely incorporated terms of another document). By con-
trast, when there is genuinely no injunction at all, there is no
appellate jurisdiction. E.g., Bates v. Johnson, 901 F.2d 1424,
1428 (7th Cir. 1990) (“Because the state is not under an en-
forceable constraint, there is nothing before us on appeal.”).
We vacated the injunction in BankDirect—but not because of
the formal problems we identified. We vacated because the
1 In Gunn, a three-judge district court had issued an opinion saying
that a statute was unconstitutional. Regarding relief, the opinion said:
“The Plaintiffs herein are entitled to their declaratory judgment to that ef-
fect, and to injunctive relief against the enforcement of [the statute] as now
worded, insofar as it may affect rights guaranteed under the First Amend-
ment.” 399 U.S. at 386. No language in the district court’s opinion could
be understood as enjoining any particular defendant from doing anything
in particular, as required under Rule 65. No wonder, then, that the Su-
preme Court dismissed the appeal for want of jurisdiction under 28 U.S.C.
§ 1253 because the district court “has issued neither an injunction nor an
order granting or denying one.” 399 U.S. at 390.
10 Nos. 19-2200, 19-2713 & 19-2782
injunction should have expired, according to its rationale,
months before the appeal was even argued. 912 F.3d at 1059.
In Auto Driveaway Franchise Systems, LLC v. Auto Driveaway
Richmond, LLC, 928 F.3d 670 (7th Cir. 2019), we repeated, with
very careful wording, the separate-document point from
BankDirect: “We interpret Rule 65(d)(1)(C) to require that an in-
junction must be embodied in a standalone separate docu-
ment.” Id. at 676 (emphasis added), citing 912 F.3d at 1057.
The district court in Auto Driveaway issued one document. It
started with eight pages of legal analysis and ended with a
preliminary injunction with specific terms. Our opinion did
not question the “separate-document” dicta from BankDirect,
but we declined to attach any consequences to failure to com-
ply. We found that the absence of a separate document did
not affect appellate jurisdiction. 928 F.3d at 676–79. The order
had the practical effect of an injunction and satisfied all of the
textual requirements of Rule 65(d). Id. at 678. We therefore
said there was no need to remand the case to cure the lack of
a separate document, and we proceeded to the merits. Id. at
679. We should do the same here.2
The “separate-document” requirement in this circuit
stems from language in Bethune Plaza, Inc. v. Lumpkin, 863 F.2d
525 (7th Cir. 1988), where the district court had failed to com-
ply with the Rules’ express and important requirements. The
2My colleagues and I agree that failure to comply with the express
formal requirements of Rule 58 and 65 can cause all sorts of avoidable and
expensive procedural snarls. That has been shown in scores or hundreds
of our cases in recent decades. I too can be a Rule 58 “hawk.” My objection
here is to enforcement of a non-textual requirement that serves no appar-
ent purpose beyond the textual requirements.
Nos. 19-2200, 19-2713 & 19-2782 11
district court had issued an opinion that was intended to re-
solve the case entirely. It ended:
It is therefore ordered, that summary judgment
is granted in favor of the plaintiff. The court fur-
ther orders that the preliminary injunction now
in effect against defendant be made permanent,
subject to the following conditions: defendant is
permanently enjoined from determining any vi-
olations, or assessing any penalties or fines, or
issuing a conditional license, to plaintiff, for any
matter arising out of the matters listed in the
Proof of Service dated November 14, 1986.
863 F.2d at 526. That was bad enough, but the court’s separate
final judgment was not even consistent with that opinion. The
judgment said: “IT IS ORDERED AND ADJUDGED that the
defendant’s motion for summary judgment is denied. Plain-
tiff’s motion for summary judgment is granted, and the pre-
liminary injunction previously entered against defendant is
hereby made permanent.” Id. Complicating matters further,
there was no actual preliminary injunction; there had been
only an initial temporary restraining order that had been ex-
tended by consent of the parties.
“This is a mess,” we wrote. 863 F.2d at 527. There were
clear problems under both Rule 65 and Rule 58. No document
spelled out the requirements of an injunction without refer-
ence to another document, and the actual judgment conflicted
with the opinion. Regarding a separate document, we wrote:
A judicial opinion is not itself an order to act or
desist; it is a statement of reasons supporting
the judgment. The command comes in the
12 Nos. 19-2200, 19-2713 & 19-2782
separate document entered under Fed. R. Civ.
P. 58, which alone is enforceable. There must be
a separate document, with a self-contained
statement of what the court directs be done. So
if the opinion contains language awarding de-
claratory relief, but the judgment does not, the
opinion has been reduced to dictum; only the
judgment need be obeyed.
Id. at 527. All of that is clearly correct as far as it went, applied
to the final judgment that was subject to the explicit separate-
document requirement of Rule 58. Our opinion does not sup-
port extending such a requirement to interlocutory orders,
much less to preliminary injunctions under Rule 65(d), which
does not contain it.3
The strongest effort to offer a textual basis for a “separate-
document” requirement for preliminary injunctions is in Beu-
kema’s Petroleum Co. v. Admiral Petroleum Co., 613 F.2d 626 (6th
Cir. 1979). That case was an appeal from a district court’s
opinion saying that “A preliminary injunction will be is-
sued”—but none ever was. Id. at 628. Although the parties
3The majority also cites our en banc but non-precedential order va-
cating the grant of en banc review in the sanctuary-city case, Chicago v.
Sessions, No. 17-2991 (7th Cir. Aug. 10, 2018) (en banc), where the order
said that Rule 65 “requires a separate document setting forth the terms of
such an injunction.” We were talking there about a permanent injunction,
which is ordinarily a final judgment subject to Rule 58’s explicit separate-
document requirement. The problem we faced in the August 10, 2018 or-
der was that the district judge had said he intended to issue a permanent
injunction but had not yet done it. He quickly did so, and on August 30,
2018, we dismissed as moot the appeal of the superseded preliminary in-
junction. That situation was much like that in Beukema’s Petroleum, dis-
cussed next.
Nos. 19-2200, 19-2713 & 19-2782 13
had treated that opinion as a preliminary injunction, the Sixth
Circuit remanded the case for issuance of the order promised
in the opinion.
Beukema’s Petroleum relied not on Rule 65(d) but on Rule
54(a), which provides: “‘Judgment’ as used in these rules in-
cludes a decree and any order from which an appeal lies. A
judgment should not include recitals of pleadings, a master’s
report, or a record of prior proceedings.” Beukema’s Petroleum
relied on this provision to extend the separate-document re-
quirement of Rule 58 to a preliminary injunction. 613 F.2d at627 & n.1.
The result in Beukema’s Petroleum was correct since the
promised (or threatened) preliminary injunction had never
been issued. But its Rule 54 rationale does not hold up—and
points toward an unworkable rule—when extended accord-
ing to its logic to every order subject to interlocutory appeal.4
The universe of nonfinal appealable orders is not small. Its
exact bounds cannot always be determined in advance by a
district court. The majority’s rule would seem to require high-
church, Rule 58-compliant separate documents, not only for
grants of preliminary injunctions but also, for example, for
4 Beukema’s Petroleum also cited, as the majority does here, Chief Freight
Lines Co. v. Teamsters Local No. 886, 514 F.2d 572, 578 n.6 (10th Cir. 1975),
where the district court had made an oral statement purporting to grant a
preliminary injunction but had not issued any written order doing so. See
also Furr’s Cafeterias, Inc. v. NLRB, 566 F.2d 505, 506–07 (5th Cir. 1978) (re-
manding where district court held hearing on motion for preliminary in-
junction and issued an order enjoining the NLRB from holding certain
hearings and declaring “This is a final order and judgment.”). Both of
these cases presented conflicts between a district judge’s different pro-
nouncements. There is no such conflict here.
14 Nos. 19-2200, 19-2713 & 19-2782
any order denying or “refusing to … modify” a preliminary
injunction, 28 U.S.C. § 1292(a)(1), any mine-run Rule 12(b)(6)
or Rule 56 order denying qualified immunity, see Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985), and every other collateral or-
der subject to interlocutory appeal.
Are we ready to start remanding appeals from orders
denying motions for preliminary injunctions for entry of a
document, separate from an opinion explaining the judge’s
reasons? I hope not. Such omissions have heretofore escaped
our every notice. See, e.g., HH-Indianapolis LLC v. Consol. City
of Indianapolis/Marion Cty., 265 F. Supp. 3d 873, 892 (S.D. Ind.
2017) (denying injunction with phrase “so ordered” at end of
opinion), aff’d, 889 F.3d 432 (7th Cir. 2018). The drafters of the
federal rules knew better than to insist on such formalisms.
See Fed. R. Civ. P. 58 advisory committee’s note to 2002
amendment (“The new all-purpose definition of the entry of
judgment must be applied with common sense … .”); see also
Fed. R. App. P. 4(a)(7)(B) (“failure to set forth a judgment or
order on a separate document … does not affect the validity
of an appeal from that judgment or order.”).
The majority’s “separate-document” addition to Rule
65(d) does not solve any problem not addressed by the ex-
press formal requirements in the rule. It does, however, raise
some new problems. Neither the majority here nor any other
opinion endorsing a “separate-document” requirement for
preliminary injunctions explains how a district court is sup-
posed to comply with both this non-textual requirement and
the important, explicit requirement in Rule 65(d)(1)(A) that
the preliminary injunction “state the reasons why it issued.”
If we extend the separate-document requirement of Rule
58 to preliminary injunctions, what should a district judge do
Nos. 19-2200, 19-2713 & 19-2782 15
with our repeated instructions that a Rule 58 final judgment
should not contain legal reasoning? See, e.g., TDK Electronics
Corp. v. Draiman, 321 F.3d 677, 679 (7th Cir. 2003); American
Nat’l Bank & Trust Co. v. Secretary, 946 F.2d 1286, 1289 (7th Cir.
1991), citing Reytblatt v. Denton, 812 F.2d 1042, 1044 (7th Cir.
1987); In re Behrens, 900 F.2d 97, 99 (7th Cir. 1990); In re Pahule,
849 F.2d 1056, 1058 (7th Cir. 1988); Foremost Sales Promotions,
Inc. v. Director, 812 F.2d 1044, 1045 (7th Cir. 1987). Perhaps the
judge could say, of course, that “in accord with a separate
opinion,” the following parties are enjoined from the follow-
ing conduct. But those two separate documents, an opinion
and an injunction, are not a noticeable improvement on the
combined “Opinion and Order” here.
More troubling is the majority’s silence about the legal
consequences of a district judge’s failure to comply with this
non-textual requirement. The majority and I agree we have
appellate jurisdiction in No. 19-2200. See Auto Driveaway, 928
F.3d at 676–79. But is a decision in the form used here—
combining findings of fact, conclusions of law, and specific
terms of a preliminary injunction—valid and enforceable with
contempt sanctions? Or is the enjoined party free to disregard
it with impunity? Is the majority implying that Anheuser-
Busch may start running the enjoined advertisements
tomorrow? I hope not, for institutional reasons, but I cannot
tell from the majority’s order.
On a related note, even a violation of the textual separate-
document requirement in Rule 58 is waivable. Bankers Trust
Co. v. Mallis, 435 U.S. 381 (1978). I hope the same is true for
this non-textual requirement of a separate document, but the
majority does not say. It remands, after all, on a point that it
does not seem to treat as jurisdictional, yet a point that was
16 Nos. 19-2200, 19-2713 & 19-2782
not raised by either party. If this supposed violation is not
waivable, we are inviting a new flock of appeals over point-
less formalism, or some high-stakes contempt cases. Cf.
Walker v. City of Birmingham, 388 U.S. 307 (1967) (affirming
criminal contempt convictions where demonstrators had vio-
lated temporary restraining order that was substantively un-
constitutional). And if the court’s orders were enforceable by
contempt here despite the majority’s finding of a formal error,
what is the point of this remand?5
5 Contrary to the majority’s assertion, the parties did not acknowledge
in oral argument that the district court “failed to comply with Rule 65(d).”
This was a non-jurisdictional issue that surprised—even mystified—
highly capable counsel on both sides. Counsel agreed only that there was
no document satisfying the majority’s (imagined) requirement. The sup-
plemental briefs by both sides did not devote energy to arguing about the
supposed requirement, but neither contended that a remand is needed on
this basis. They presumably just want a ruling on the merits. Still, Mil-
lerCoors made this point diplomatically at page 13, note 2:
MillerCoors respectfully notes some tension between this
Court’s interpretation of Rule 65(d), which requires the
injunction to stand on its own in a separate document en-
tered as a judgment under Rule 58, and the text of Rule
65(d), which requires that an injunction “state the reasons
why it issued.” Fed. R. Civ. P. 65(d)(1)(A). Combined with
Rule 65(d)(1)(C)’s prohibition on incorporation by refer-
ence, this would seem to require that a stand-alone in-
junction restate any judicial reasoning that might other-
wise be set forth in a separate opinion, resulting in an in-
junction that looks very much like the district court’s May
24 Opinion and Order. That is, if the district court’s May
24 Opinion and Order were simply retitled “Judgment,”
it would appear to comply with Rule 65(d) in all other re-
spects.
Exactly.
Nos. 19-2200, 19-2713 & 19-2782 17
In this case, the district court’s preliminary injunction of
May 24, 2019 was clear, unmistakable, and appealable. It com-
plied with all the terms of Rule 65(d)(1). Until this case, we
have used the “separate-document” language in cases that
addressed real problems under Rule 65. That language has
been harmless until now. Here, however, the majority finds
that “enforcing the Rule is sufficiently important that we or-
der a limited remand with instructions to enter the injunction
on a document separate from the opinions.” With all due re-
spect, that importance is not evident to me, especially if the
problem can be solved by having the district judge copy the
text of his injunction of May 24 and paste it into a separate
document. In the Supreme Court’s words, “Wheels [will] spin
for no practical purpose.” Bankers Trust Co., 435 U.S. at 385. If,
on the other hand, the majority means that the district court’s
orders here have never been enforceable for want of a sepa-
rate document (even though we have appellate jurisdiction),
then we are inviting needless litigation in the future over this
unjustified formalism.
II. The September Orders
This case is actually a little more complicated because of
the orders the district court issued on September 4 and Sep-
tember 6 granting MillerCoors some preliminary injunctive
relief concerning the packaging for BudLight. The district
court had jurisdiction to issue its September 4 order first
granting relief on packaging. That order did not really “mod-
ify” the May 24 injunction but was separate in content,
providing additional relief.
The district court also had jurisdiction to issue its Septem-
ber 6 modification of the September 4 injunction. It was per-
missible under Rule 62(d), and it did not undermine the
18 Nos. 19-2200, 19-2713 & 19-2782
integrity of the pending appeals. In a rare case where a district
judge acts so as to undermine the integrity of a pending ap-
peal, Rule 62(g) makes clear that a court of appeals has suffi-
cient power to deal with the problem. We should treat these
modification issues as case-management problems for the dis-
trict court and for us, not as issues of jurisdiction.
The general rule, of course, is that only one court can have
jurisdiction over a case at the same time. E.g., Griggs v. Provi-
dent Consumer Discount Co., 459 U.S. 56, 58 (1982). Cases with
preliminary injunctions can complicate matters, though. Even
after a notice of appeal for a preliminary injunction has been
filed, the district court retains jurisdiction over other aspects
of the case. The boundaries between what has been appealed
and what remains before the district court may not be sharp.
In this case, when the district court issued its May 24 injunc-
tion addressing the more urgent issue of the corn-syrup ad-
vertising campaign, the district court simply did not address
MillerCoors’ request for packaging relief. That topic had not
been presented fully to the court at the time of the preliminary
injunction hearing, so the court invited additional briefing. In
September the court issued the new injunction.
If the September 4 packaging order is treated as “modify-
ing” the May 24 order, as the judge wrote, Rule 62(d) author-
ized it. But the September 4 order is better understood as just
a separate injunction. Nothing would have stopped Mil-
lerCoors from filing a new motion for a preliminary injunc-
tion on May 25, or stopped the district court from ruling on
such a motion. There was no overlap between the relief or-
dered on May 24 and the relief sought on packaging. See Ad-
ams v. City of Chicago, 135 F.3d 1150, 1153–54 (7th Cir. 1998)
(no jurisdictional bar to consideration of new motion for
Nos. 19-2200, 19-2713 & 19-2782 19
preliminary injunction while appeal from first injunction is
pending). There was no need for MillerCoors to have gone
through separate formalities of filing a new motion for a new
preliminary injunction. Id. (construing compliance with Cir-
cuit Rule 57 pragmatically as equivalent to new motion for
new preliminary injunction).
The September 6 order modifying the September 4
packaging order poses a more controversial problem, but the
answer should not be difficult. On September 5, Anheuser-
Busch filed an emergency motion to vacate, modify, or stay
the September 4 order. Dkt. 107. Also on September 5,
Anheuser-Busch filed its notice of appeal for the September 4
order. Dkt. 110. On September 6, the district judge granted in
part the emergency motion to modify.
It made good sense for the district judge to address the
emergency motion immediately. Exercising equitable judg-
ment, the judge sensibly intended for the September 4 pack-
aging order to give Anheuser-Busch a brief but reasonable
time to change its packaging and to avoid throwing away cur-
rent inventory. The emergency motion persuaded the judge
that, because Anheuser-Busch had used up its existing stock
of packaging more quickly than expected, the September 4 or-
der would not allow time for a smooth transition. It had in-
stead put Anheuser-Busch immediately in violation, without
an opportunity to comply. The judge therefore delayed by
two months the effective date of the packaging order.
Given the urgency of that issue and the district judge’s fa-
miliarity with the case, he was much better positioned than a
motions panel of this court, entirely new to the case, would
have been to address the problem immediately. In fast-
20 Nos. 19-2200, 19-2713 & 19-2782
moving litigation over injunctive relief, no one should be too
surprised when circumstances change quickly.
There is (or should be) no legal obstacle to such urgent and
pragmatic modifications of a preliminary injunction pending
an appeal. The broad language of Rule 62(d) allows it: “While
an appeal is pending from an interlocutory order … that
grants … an injunction, the court may suspend, modify, re-
store, or grant an injunction on terms for bond or other terms
that secure the opposing party’s rights.” Rule 62(d) is not lim-
ited to modifications tied to stays or bonds pending appeal.
Rule 62(d) also fits together with Federal Rule of Appellate
Procedure 8(a)(1), which provides in relevant part: “A party
must ordinarily move first in the district court for the follow-
ing relief: … (C) an order suspending, modifying, restoring,
or granting an injunction while an appeal is pending.” See
also Eli Lilly and Co. v. Arla Foods, Inc., 893 F.3d 375, 384 (7th
Cir. 2018) (district court was authorized to modify injunction
in response to issues raised in appellant’s opening brief; district
court’s modifications aided the appeal by “resolving technical
objections or clarifying imprecise wording”), citing Dixon v.
Edwards, 290 F.3d 699, 709 n.14 (4th Cir. 2002) (district court
retained jurisdiction to proceed as to matters “in aid of the
appeal”). It would surely be odd for a district court to respond
to a motion prompted by Appellate Rule 8(a)(1) by saying, “I
don’t have jurisdiction anymore.”
Despite these textual provisions in the rules authorizing
the district court’s actions here, some circuits have added a
non-textual gloss to these rules, saying that the district court’s
power over its own injunctions pending appeal is limited to
acts designed to “preserve the status quo.” See generally 16
Wright & Miller, Federal Practice & Procedure § 3921.2.
Nos. 19-2200, 19-2713 & 19-2782 21
Wright and Miller show in detail why this line of cases should
be questioned. Compare Int’l Ass’n of Machinists and Aerospace
Workers v. Eastern Air Lines, Inc., 847 F.2d 1014, 1018 (2d Cir.
1988) (repeating “status quo” gloss), and Ideal Toy Corp. v.
Sayco Doll Corp., 302 F.2d 623, 625 (2d Cir. 1962) (adopting
“status quo” gloss); with id. at 628 (Clark, J., dissenting) (“The
rule [now Rule 62(d)] is clear and unequivocal; I see no justi-
fication whatever for the novel and restrictive gloss now
placed upon it by my brothers.”), and Ortho Pharmaceutical
Corp. v. Amgen, Inc., 887 F.2d 460, 464 (3d Cir. 1989) (district
court had jurisdiction to enter order modifying injunction on
appeal not only to preserve status quo but also to “preserve
integrity of the appeal”).
The non-textual “status quo” gloss has both metaphysical
and pragmatic foundations. The metaphysical is the principle
that only one court at a time may exercise jurisdiction over a
case or portion of a case. Yet American federalism split the in-
divisible atom of sovereignty with a workable but sometimes
complicated sharing of sovereignty. Similarly, federal courts
can manage a little concurrent jurisdiction between trial and
appellate courts when there are good reasons—and express
textual authorization—to do so.6
The pragmatic foundation for the “status quo” gloss is a
concern that a district judge could use her power under Rule
62(d) to interfere with an appeal, forcing the court of appeals
and appellant to aim at a moving target. I agree with Wright
6 The majority implicitly criticizes the district court for not using the
procedure in Federal Rule of Civil Procedure 62.1 for modifying an order
that is before the court of appeals. The majority’s point begs the jurisdic-
tional question, however. By its terms, Rule 62.1(a) applies only when the
district court “lacks authority” to grant relief.
22 Nos. 19-2200, 19-2713 & 19-2782
and Miller that this danger “seems more abstract than real.”
§ 3921.2 at 69. In the rare case where a district judge seems to
be interfering with an appeal, Rule 62(g) makes clear that the
court of appeals retains ample power to take charge.
As with the Rule 65(d) issue, the parties are not confused
about their rights and obligations. The better course here is to
recognize that we are dealing with equitable powers and fast-
moving litigation. We and the district court are capable of
managing the case and the multiple appeals in practical and
legally permissible ways. We should not remand now. We
should promptly address the merits of MillerCoors’ appeal of
the May 24 order (No. 19-2200), and we should order expe-
dited briefing and argument on the merits of the Anheuser-
Busch appeals from the September orders (Nos. 19-2713 & 19-
2782).