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 at

627 & 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).