UNITED STATES DISTRICT COURT

DISTRICT OF NEW MEXICO

MARK HERSHISER, MARIANNE

HERSHISER, AND NATIVE
ESSENCE HERB COMPANY,

Plaintiffs, Civil No. 08–cv-0603 BB/RHS

v.

FEDERAL TRADE COMMISSION,

Defendant.

MEMORANDUM IN OPPOSITION TO
PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

I. PRELIMINARY INJUNCTION REQUIREMENTS

Preliminary injunctions are exceptional remedies and hence plaintiffs bear a heavy

burden in establishing that injunctive relief should issue. “It frequently is observed that a

preliminary injunction is an extraordinary and drastic remedy, one that should not be granted

unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v.

Armstrong, 520 U.S. 968, 972 (1997) (quoting 11A C. Wright, A. Miller & M. Kane, Federal

Practice and Procedure § 2948, pp. 129-30 (2d ed. 1995)). “Because a preliminary injunction is

an extraordinary remedy, ‘the right to relief must be clear and unequivocal.’” Chemical
Weapons Working Group, Inc. v. U.S. Department of the Army, 111 F.3d 1485, 1489 (10th Cir.

1997) (quoting in part SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir. 1991)).

In Mazurek, the Supreme Court noted that the movant’s “requirement for substantial proof is

much higher” for a motion for a preliminary injunction than it is for a motion for summary

judgment. 520 U.S. at 972.

To obtain preliminary injunctive relief, the moving party bears the burden of establishing

four requirements:

(1) the movant will suffer irreparable injury unless the injunction issues;
 (2) the threatened injury to the movant outweighs whatever damage the
proposed injunction may cause the opposing party;
(3) that the injunction, if issued, would not be adverse to the public interest; and
(4) substantial likelihood that the movant will succeed on the merits.

Walmer v. U.S. Dep’t of Defense, 52 F.3d 851, 854 (10th Cir. 1995).

If the party requesting the preliminary injunction fails to meet its burden of proof on any

of the four requirements, its request should be denied. For instance, in Walmer, the Tenth

Circuit assumed that the plaintiff had met three of the requirements, id. at 854 n.6, but affirmed

the district court’s denial of preliminary injunctive relief because the plaintiff had failed to meet

the “modified likelihood of success” requirement, id. at 854-56. In Chemical Weapons Working

Group, the Tenth Circuit upheld a denial of a motion for preliminary injunction, holding that the

plaintiffs’ failure on the balance of harms requirement “obviated” the need to address other

arguments justifying a preliminary injunction. 111 F.3d at 1489. See also Sprint Spectrum, L.P.

v. State Corp. Comm’n, 149 F.3d 1058, 1060 (10th Cir. 1998) (“The district court ruled that the

wireless providers failed to satisfy the first two preliminary injunction requirements. However,

we need not address the second because the first – substantial likelihood of prevailing on the

merits – clearly supports the denial of the preliminary injunction.”). Thus, if plaintiffs fail to

meet their burden on even one of the preliminary injunction requirements, the Court should deny
the request for emergency injunctive relief.
II. PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION SHOULD BE
DENIED

For the same reasons discussed in the memorandum in support of the Federal Trade

Commission’s motion to dismiss filed this date in this case, plaintiffs’ motion for a preliminary

injunction should be denied.1 Plaintiffs have no likelihood of even addressing the merits of their

1
Pursuant to Local Rule 7.2(a), the FTC hereby adopts by reference the memorandum in
support of its motion to dismiss filed today in this action as referenced above, Docket Number
15.

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claims in this action because this Court is without jurisdiction.

Even if the merits were to be addressed, however, it would be clear that plaintiffs have no

likelihood of success on the merits (this is the only preliminary injunction factor discussed in any

depth by plaintiffs, see Pl. Mem. at 6-20). If the FTC were to pursue an administrative or

judicial enforcement action against plaintiffs, it is likely that the FTC would allege violations of

sections 5(a) and 12 of the Federal Trade Commission Act, 15 U.S.C. §§ 45(a) and 52. See

Attachment A to plaintiffs’ motion for preliminary injunction (draft complaint). Section 5(a)

prohibits, among other things, “unfair or deceptive acts or practices in or affecting commerce.”

Section 12 makes it unlawful to disseminate any false advertisement that is likely to induce the

purchase of “food, drugs, devices, services, or cosmetics.”

As plaintiffs concede, in order for commercial speech to be protected by the First

Amendment, it “must concern lawful activity and not be misleading.” Pl. Mem. at 10, quoting

Central Hudson v. Pub. Serv. Comm’n, 447 U.S. 557, 566 (1980). In any enforcement action the

FTC might bring, the FTC would have to allege and prove that the actions of defendants were

“unfair or deceptive” or “false” before those acts would be prohibited. Accordingly, any

“speech” proven to be unfair, deceptive, or false (and thus prohibited by the FTC Act) would not

be protected by the First Amendment because it would not be “lawful” and “not misleading.”
See, e.g., Central Hudson, 447 U.S. at 566; In re R.M.J., 455 U.S. 191, 200 (1982) (“False,
deceptive, or misleading advertising remains subject to restraint . . . .”); Kraft, Inc. v. FTC, 970

F.2d 311, 321 (7th Cir. 1992) (no First Amendment protection for misleading speech). In

addition to making it unlikely that plaintiffs will succeed on the merits, this is another reason that

an enforcement action is the most appropriate forum for plaintiffs to assert their claims.
CONCLUSION

For the foregoing reasons, plaintiffs’ motion for a preliminary injunction should be

denied.

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 Respectfully submitted,

GREGORY G. KATSAS
Assistant Attorney General

C. FREDERICK BECKNER III

Deputy Assistant Attorney General
OF COUNSEL:
EUGENE M. THIROLF
WILLIAM BLUMENTHAL Director
General Counsel

JOHN F. DALY
Deputy General Counsel
For Litigation
/s/
LESLIE RICE MELMAN DRAKE CUTINI
Attorney Attorney
Office of the General Counsel Office of Consumer Litigation
Federal Trade Commission Civil Division
Washington, DC 20850 Department of Justice
202-326-2478 P.O. Box 386
Washington, DC 20044
202-307-0044
drake.cutini@usdoj.gov

GREGORY J. FOURATT
United States Attorney

Filed Electronically 7/31/2008

JAN ELIZABETH MITCHELL
Assistant U.S. Attorney
U.S. Attorney’s Office
P.O. Box 607
Albuquerque, NM 87103
505-346-7274
jan.mitchell@usdoj.gov

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 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on July 31, 2008, I filed the foregoing pleading electronically

through the CM/ECF system, which caused the following parties or counsel to be served by

electronic means, as more fully reflected on the Notice of Electronic Filing:

Richard Jaffe, Attorney for Plaintiffs

E-mail: rickjaffeesq@aol.com
Judith A. Rosenstein, Attorney for Plaintiffs
E-mail: jrosenstein7@cybermesa.com

/s
JAN ELIZABETH MITCHELL
Assistant U.S. Attorney