§ 1.6.5 Likelihood of Success on the Merits.

• Jurisdiction: Arizona

§ 1.6.5 Likelihood of Success on the Merits. The second criterion a court will consider in determining whether to grant or deny relief is the plaintiff’s likelihood of ultimate success on the merits. “If a plaintiff seeking a preliminary injunction cannot show that his chance of prevailing on the merits is ‘better than negligible,’ a court must deny the injunction regardless of how heavily any other equities may weigh in the plaintiff’s favor.” Illinois Council on Long Term Care v. Bradley,957 F.2d 305, 307 (7th Cir. 1992) , cert. denied, 506 U.S. 815 (1992) (quoting Centurion Reinsurance Co., v. Singer,810 F.2d 140, 145 (7th Cir. 1987) ). On the flip side, “irreparable injury is required for preliminary injunctions, but once actual success on the merits has been established, ‘a party is entitled to relief as a matter of law irrespective of the amount of irreparable injury which may be shown.’” Continental Airlines, Inc. v. Intra Brokers, Inc.,24 F.3d 1099, 1104 (9th Cir. 1994) (quoting Western Systems v. Ulloa,958 F.2d 864, 872 (9th Cir. 1992) ). But seeWinter v. NRDC, 555 U.S. 7, 22 (2008) (irreparable harm must be likely).

The courts have utilized different standards of proof to establish plaintiff’s likelihood of ultimate success on the merits. “Consistent with equity’s character, courts do not insist that litigants uniformly show a particular, predetermined quantum of probable success or injury before awarding equitable relief. Instead, courts have evaluated claims for equitable relief on a ‘sliding scale,’ sometimes awarding relief on a lower likelihood of harm when the likelihood of success is very high. Winter v. NRDC, Inc., 555 U.S. 7, 51 (2008) (Ginsberg dissent). Nonetheless, some courts have demanded the plaintiff make a clear showing of ultimate success. See, e.g.,Sierra Club v. Hickel,433 F.2d 24 (9th Cir. 1970), aff’d sub nom.,Sierra Club v. Morton,405 U.S. 727 (1972) . As the Arizona Court of Appeals recently put it, “‘a court should not wield its injunctive power to disrupt the settled rights of others without first requiring from the applicant significant evidence that he is on legally solid ground.’“ Arizona Ass’n of Providers for Persons with Disabilities v. State, 223 Ariz. 6, 12, 219 P.3d 216, 222 (Ct. App. 2009) , quoting P & P Mehta, LLC v. Jones, 211 Ariz. 505, 507, 123 P.3d 1142, 1144 (Ct. App. 2005) . In Arizona Ass’n of Providers, Judge Johnson indicated that “[p]laintiffs’ obligation at the preliminary injunction...