Security for Interlocutory Injunctions under Rule 65(c): Exceptions to the Rule Gone Awry

Federal Rule of Civil Procedure 65(c) requires applicants for preliminary injunctions or temporary restraining orders to post security before the injunction will issue. Determining the amount of the security to be posted is left to the judge\u27s discretion under the Rule. While many circuits have carved out narrow exceptions to the Rule that allow waiver of the bond, other circuits have held the bond itself to be fully within the district court\u27s discretion. Waiver of the bond leaves the defendant without recourse if the court later determines that the defendant was wrongfully enjoined. In her Note, the author examines the history of Rule 65(c) and the purpose of the bond requirement, arguing that it is mandatory and that waiver should be allowed only in narrow circumstances. The Note summarizes the development of various exceptions to the bond requirement and criticizes the inconsistent application of the exceptions by lower courts, illustrating the point with several amounts set in contemporaneous ERISA cases. The author proposes the analysis that lower courts should use and suggests modifications to the Federal Rules of Civil Procedure to encourage more consistent application of Rule 65(c)