7th Circuit says no one gets anything until the District Court puts the corn syrup injunction on a separate document.

BY ASHLEY BRANDT · OCTOBER 22, 2019

In a turn of events that was completely predictable in hindsight given the questions at oral argument, the 7th Circuit issued a decision sparking a pragmatic dissent remanding the MillerCoors Anheuser-Busch corn syrup appeal instructing the Federal District Court to clean up the method in which it issued the injunction and subsequent rulings.

The opinion, issued on Friday, sends the beer advertising dispute back to the district court for no other reason than a belief that Rule 65 requires a district court to enter an injunction on a separate piece of paper.

“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.”

The dissent explains how the 7th Circuit got to the point of considering this separate document issue a “rule” and argues that the holding and the requirement of a separate order under Rule 65 is not based on sound principles, but rather, an evolving dicta from prior opinions, also erroneous, that should be reversed to forestall forcing litigants and the courts to waste resources on trivial procedural matters without further clarify the “rule” established with this opinion to give litigants some form of guidance.

“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.”

…

“On a related note, even a violation of the textual separatedocument 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 not raised by either party. If this supposed violation is not waivable, we are inviting a new flock of appeals over pointless 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 violated temporary restraining order that was substantively unconstitutional). 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?”

Arguably, this case gives some cover to this maneuver as the original appeal was taken up before the district court entered subsequent injunctions on beer packaging and modified its orders such that the 7th Circuit was free to allow the parties to supplement their briefs to address the subsequent rulings, so it didn’t appear as though they were just asking the parties to brief the same issues they’d already addressed (they are asking that, though).

Given that there will now be a re-issued order for injunction, with new notices of appeal and subsequent briefing, it will be a while before we see the court address the merits of the injunction.