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If an injunction would alter the status quo rather than maintain it -- in other words, if the injunction would be mandatory rather than prohibitory -- the proponent must make a clear or substantial showing of a likelihood of success on the merits. This heightened standard also applies if the injunction would provide substantially all the relief sought, such that the relief could not be undone if the defendant prevails on the merits.
Asserting First Amendment claims, plaintiffs, a nonprofit organization and other parties, sought to enjoin defendants, chief attorneys and chief counsel for disciplinary committees, from enforcing amended disciplinary rules concerning attorney advertising, N.Y. Comp. Codes R. & Regs. tit. 22, §§ 1200.6, 1200.7, 1200.8, and 1200.41A. The nonprofit organization asserted that its purpose was to represent consumer interests before Congress, the executive branch, and the courts and that it was devoted to ensuring that its members were not restricted from receiving communications regarding the availability of legal services. Plaintiffs filed a motion for preliminary injunction. Defendants challenged the plaintiff organization’s standing to bring the action.
The court noted that an association has standing to sue on behalf of its members when (1) a member would have standing, (2) the interests to be protected are germane to the association's purpose, and (3) neither the claim nor the relief requested requires the participation of the members. In this case, the court held that the lawsuit was germane to the organization's mission because the action implicated the right of consumers to receive commercial speech. The court reserved decision on plaintiffs' motion for a preliminary injunction, holding that in order to enjoin enforcement of N.Y. Comp. Codes R. & Regs. tit. 22, §§ 1200.6, 1200.7, 1200.8, and 1200.41A, plaintiffs had to make a clear or substantial showing of a likelihood of success because a preliminary injunction would have effectively granted complete relief by allowing plaintiffs to resume their pre-amendment advertising campaigns.