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 believed 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 appeals, 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 district court did not comply with Rule 65(d). Nor did the judge 

modify the injunction as a condition of a stay or bond pending appeal, as Rule 62(d) permits. (It provides: “While an 

appeal is pending from an interlocutory order or final judgment 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 substantially alter the issues, while appeals are pending.) AnheuserBusch’s appeal from the September 4 order has been docketed 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 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. 

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 language of the May 24 decision. It seems more like a second 

preliminary injunction, although the judge called it a modification. The September 6 order, by contrast, explicitly modifies the September 4 order.) While we recognize that a district 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 consolidating 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 reference, but we have yet to receive briefs concerning the September 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: issuing 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 referring 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 toocasual 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 heading “Order” on page 49, the document spells out what is prohibited: 

IT IS ORDERED that: 

1) Plaintiff MillerCoors, LLCʹs motion for preliminary injunction (dkt. #8) is GRANTED IN 

PART AND DENIED IN PART as follows. Defendant Anheuser Busch is PRELIMINARILY 

ENJOINED from using the following language 

within ten (10) days of this order in its commercials, 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 document 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 Order” 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 understood what was required. It also understood that it could appeal 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 requirement 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 address 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 requirement. 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 preliminary injunction: the injunction left important issues unresolved; it used ambiguous language and seemed to incorporate another document; and it required no bond. We also said 

this regarding a separate document: 

Third, the district court failed to enter an injunction 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 “separatedocument” requirement.1 

In BankDirect, we recognized that the district court had issued 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 requirements 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 appellate jurisdiction over appeal from preliminary injunction 

that merely incorporated terms of another document). By contrast, 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 enforceable 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 effect, and to injunctive relief against the enforcement of [the statute] as now 

worded, insofar as it may affect rights guaranteed under the First Amendment.” 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 Supreme 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 injunction must be embodied in a standalone separate document.” 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 comply. 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 comply with the Rules’ express and important requirements. The 

 2 My 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 apparent purpose beyond the textual requirements. 
Nos. 19-2200, 19-2713 & 19-2782 11 

district court had issued an opinion that was intended to resolve the case entirely. It ended: 

It is therefore ordered, that summary judgment 

is granted in favor of the plaintiff. The court further 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 violations, 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. Plaintiff’s motion for summary judgment is granted, and the preliminary 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 extended 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 reference 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 declaratory 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 separatedocument requirement of Rule 58. Our opinion does not support 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 “separatedocument” requirement for preliminary injunctions is in Beukema’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 issued”—but none ever was. Id. at 628. Although the parties 

 

3 The majority also cites our en banc but non-precedential order vacating 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 separatedocument requirement. The problem we faced in the August 10, 2018 order 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 injunction. That situation was much like that in Beukema’s Petroleum, discussed 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 includes 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 requirement 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 according 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 highchurch, 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) (remanding where district court held hearing on motion for preliminary injunction 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 pronouncements. 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 order 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 express 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 supposed 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 following 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 AnheuserBusch 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 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 
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 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?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 supplemental 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, MillerCoors 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 entered 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 reference, this would seem to require that a stand-alone injunction restate any judicial reasoning that might otherwise be set forth in a separate opinion, resulting in an injunction 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 respects. 

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 complied 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 order a limited remand with instructions to enter the injunction 

on a document separate from the opinions.” With all due respect, 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 separate 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 September 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 “modify” the May 24 injunction but was separate in content, 

providing additional relief. 

The district court also had jurisdiction to issue its September 6 modification of the September 4 injunction. It was permissible 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 appeal, Rule 62(g) makes clear that a court of appeals has sufficient power to deal with the problem. We should treat these 

modification issues as case-management problems for the district 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. Provident 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 injunction addressing the more urgent issue of the corn-syrup advertising 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 “modifying” the May 24 order, as the judge wrote, Rule 62(d) authorized it. But the September 4 order is better understood as just 

a separate injunction. Nothing would have stopped MillerCoors from filing a new motion for a preliminary injunction on May 25, or stopped the district court from ruling on 

such a motion. There was no overlap between the relief ordered on May 24 and the relief sought on packaging. See Adams 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 Circuit 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, AnheuserBusch 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 judgment, the judge sensibly intended for the September 4 packaging order to give Anheuser-Busch a brief but reasonable 

time to change its packaging and to avoid throwing away current 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 order would not allow time for a smooth transition. It had instead 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 familiarity 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, restore, or grant an injunction on terms for bond or other terms 

that secure the opposing party’s rights.” Rule 62(d) is not limited 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 following 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 justification 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 indivisible 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 jurisdictional 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 fastmoving 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 expedited briefing and argument on the merits of the AnheuserBusch appeals from the September orders (Nos. 19-2713 & 19-

2782).