The Court of Chancery recently stated the appropriate test for a permanent injunction.  In In re Covid-Related Restrictions on Religious Services, C.A. No. 2021-1036-JTL (Del. Ch. Nov. 22, 2022), religious leaders claimed that restrictions imposed during the COVID-19 pandemic violated their constitutional rights.  The plaintiffs sought declaratory relief, damages, and a permanent injunction prohibiting the Governor from implementing similar restrictions in the future.

The Governor moved to dismiss the case on several grounds, including for lack of subject matter jurisdiction, arguing that a permanent injunction requires the plaintiffs to show that they face imminent irreparable harm and that they cannot do so.  The Court explained that up until now, the current test for a permanent injunction under Delaware law was the same as a preliminary injunction except that actual success on the merits was required.  However, the Court explained that unlike for a preliminary injunction, the element of imminent irreparable harm is not necessary for a permanent injunction.  Rather, a plaintiff needs to prevail on the merits and show that remedies at law would be inadequate, and that proving a threat of irreparable harm is one way to show that remedies at law would be inadequate, but it is not the only way.  Thus, to obtain a permanent injunction, a party must show (i) actual success on the merits, (ii) the inadequacy of remedies at law, and (iii) a balancing of the equities that favors an injunction.

The Court ultimately dismissed the case for lack of subject matter jurisdiction under the reasonable-apprehension test.  It explained that where a party seeks to obtain equitable jurisdiction based solely on a permanent injunction, the facts alleged must, if proven true, create a reasonable apprehension of a future wrong, and that a plaintiff’s subjective fears are not sufficient.  Because the plaintiffs did not show a reasonable apprehension that the Governor would re-impose the challenged restrictions, the Court of Chancery did not have jurisdiction.

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