538 F.2d 551
George Frank SLIDER, Jr., Appellant,v.Donald E. BORDENKIRCHER, Warden, West Virginia StatePenitentiary, Appellee.
No. 75-2030.
United States Court of Appeals,Fourth Circuit.
Argued Feb. 2, 1976.Decided March 1, 1976.

Arlinda Locklear, Third Year Law Student, J. Francis Paschal, Durham, N. C.  (court-appointed counsel), and (Marvin Schiller, Third Year Law Student, on brief), for appellant.
E. Leslie Hoffman, III, Asst. Atty. Gen. of West Virginia, Charleston, W. Va.  (Chauncy H. Browning, Jr., Atty. Gen. of West Virginia, Charleston, W. Va., on brief), for appellee.
Before BRYAN, Senior Circuit Judge, and CRAVEN and RUSSELL, Circuit Judges.
PER CURIAM:

1
After conviction of armed robbery in West Virginia State Court, the petitioner was given an indeterminate sentence of ten years to life imprisonment.  The crime of armed robbery under West Virginia law does not authorize an indeterminate sentence; consequently, on appeal, petitioner's conviction was affirmed, but the judgment was reversed as to the indeterminate sentence and the cause was remanded in order that the invalid sentence might be corrected.1  On remand, the trial court imposed a "fixed" or "determinate" sentence of fifteen years.2  The petitioner seeks to have that sentence found invalid to such extent as it exceeds the minimum indeterminate sentence originally imposed, citing North Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656.

2
The Pearce rationale, however, would apply only if petitioner's later sentence were harsher than the first.  Petitioner's theory that the later sentence is harsher is grounded on the fact that it exceeds the minimum provided in the first sentence.  Under West Virginia law, though, service of the minimum sentence under an indeterminate sentence does not authorize a prisoner's release "as of that date" but merely establishes "an eligibility date for parole consideration."3  On the other hand, under a so-called "definite" sentence, the prisoner becomes eligible for parole at the expiration of one-third of his sentence.4  As a recent commentator has put it "(s)trictly speaking, there is no such thing as a 'determinate' or 'definite' sentence in this country: all states have some parole programs, whether widely used or not, with varying eligibility dates" and, in a State such as West Virginia, "where parole eligibility occurs at one-third of the sentence, a 'determinate' sentence of fifteen years is, for all practical purposes, a sentence of five to fifteen years."5  Accordingly, the petitioner in this case, who received at his second sentencing a sentence of fifteen years, could acquire eligibility for parole in one-half the time required under his first indeterminate sentence.  Since the second sentence does not impose on the petitioner a harsher term than his first sentence, Pearce is without application.  It is of no moment that had his fixed sentence been more than thirty years he could have been prejudiced.  That is not the petitioner's case, and the hypothetical case so earnestly argued by him cannot avail him any relief.6

3
Accordingly, the judgment of the District Court is

4
AFFIRMED.

1
 State v. Slider (1973), 156 W.Va. ---, 196 S.E.2d 85

2
 Credit was allowed petitioner for the time he had served under the invalid sentence

3
 W.Va.Code § 62-12-13a provides: "When the prisoner has received an indeterminate sentence, the minimum sentence shall be considered as an eligibility date for parole consideration but does not confer in the prisoner the right to be released as of that date."

4
 W.Va.Code § 62-12-13 provides: " * * * Any prisoner of a penitentiary of this State, to be eligible for parole, (1) * * * shall have served one third of his definite term sentence, * * *."

5
 Singer and Hand, Sentencing Computation: Laws and Practices, 10 Crim.L.Bull. 318, 323

6
 Since the second sentence was not harsher than the first, it is unnecessary to consider respondent's argument that the second sentence was valid as a mere correction of the prior illegal sentence.  Cf., State v. Boles (1964), 148 W.Va. 802, 137 S.E.2d 418, 422: "When a sentence imposed in a criminal case is void because at variance with the requirements of the statute and a subsequent valid sentence which conforms to the statutory requirements is imposed such valid sentence may be in excess of and provide greater punishment than that provided by the void sentence."


222 F.Supp.2d 988 (2002)
David M. HATFIELD, et al., Plaintiffs,
v.
OAK HILL BANKS, et al., Defendants.
No. 99-CV-835.
United States District Court, S.D. Ohio, Eastern Division.
September 30, 2002.
*989 Kimberly M. Skaggs, Equal Justice Foundation2, Columbus, OH, Gary Michael Smith, Graham McClelland Ransbottom, Dover, OH, for Plaintiffs.
Bruce A. Curry, Jennifer K. Mason, Baran Piper Tarkowsky, Fitzgerald & Theis2, Worthington, OH, for Defendants.

OPINION AND ORDER
MARBLEY, District Judge.

I. INTRODUCTION
This matter is before the Court on the Plaintiffs' Motion for Award of Fees and Costs. Defendants Mid-Ohio Financial Services, Elsea Home Center, Inc., and ASA Elsea (collectively, "Elsea Defendants") have filed a Memorandum Contra Plaintiffs' Motion. For the reasons set forth below, the Court GRANTS the Plaintiffs' Motion, and ORDERS the Defendants to pay the Plaintiffs' attorney's fees and litigation expenses in the amount of $52,967.50.

II. BACKGROUND
On August 31, 1999, the Plaintiffs filed a Complaint against the Elsea Defendants and Defendant Oak Hill Banks ("Oak Hill").[1] The Complaint was based on the Plaintiffs' purchase of a home from Defendant Elsea, Inc., for which Defendant Mid-Ohio Financial Services acted as the mortgage broker. Defendant Oak Hill held the Plaintiffs' consumer credit contract. In the Complaint, the Plaintiffs alleged that the home they purchased was installed late, its construction was poor, and the maintenance provided was meager. The Plaintiffs claimed that, as a result, they rescinded the transaction, attempted to revoke any acceptance of the home, and ultimately conveyed their interest in the home to Oak Hill via a General Warranty Deed. The Plaintiffs alleged, inter alia, that, by virtue of their actions, the Elsea Defendants had violated the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq., as well as the Ohio Consumer Sales Practices *990 Act, Ohio Rev.Code § 1345.01 et seq., and that Defendant Oak Hill had violated the Truth-in-Lending Act, 15 U.S.C. § 1601 et seq.
On December 20, 1999, the Plaintiffs filed a Motion to Certify a Class Action. The Court denied that Motion on October 4, 2000.
On March 13, 2000, the Plaintiffs and Defendant Oak Hill filed a Motion for Order to Approve Proposed Settlement that had been negotiated among those parties. The Court approved that settlement and dismissed Oak Hill by an Order dated October 31, 2000.
On January 9, 2001, the Plaintiffs and the Elsea Defendants filed an Agreed Rule 58 Judgment Entry, indicating that they had reached a settlement on the remaining issues in the litigation. In that Entry, the parties agreed, inter alia, that the Plaintiffs claim for recovery of attorney's fees and costs would be briefed and submitted to this Court for adjudication by means of a separate final entry.
This matter is now before the Court on the Plaintiffs' Motion for Fees and Costs. The Plaintiffs seek to recover only from the Elsea Defendants, not Defendant Oak Hill.

III. STANDARD OF REVIEW
This Court has the discretion to award reasonable attorney's fees to prevailing parties in cases brought under the Magnuson-Moss Warranty Act.[2] A reasonable fee is one that is adequate to attract competent counsel, but one that does not produce a windfall to the attorney. See Blum v. Stenson, 465 U.S. 886, 897, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). In calculating a statutory award of attorney's fees, "[t]he most useful starting point ... is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The result of this calculation is called the lodestar. The lode-star is strongly presumed to yield a reasonable fee. City of Burlington v. Dague, 505 U.S. 557, 562, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992). A court determines a reasonable hourly rate by reference to the prevailing market rates in the community. See Blum, 465 U.S. at 895, 104 S.Ct. 1541. The prevailing party bears the burden of establishing, by way of satisfactory evidence and the attorney's own affidavits, that the hourly rates meet this community rate. See Id. at 895 n. 11, 104 S.Ct. 1541. With respect to the number of hours expended, the prevailing party must establish that those hours were "reasonably expended." See Hensley, 461 U.S. at 434, 103 S.Ct. 1933. The court may exclude from the lodestar calculation unnecessary hours or hours that lack proper documentation. Id.

IV. ANALYSIS
The Plaintiffs contend that they asserted three causes of action against the Elsea Defendants that entitle them to attorney's fees: (1) the Magnuson-Moss Warranty Act; (2) the Ohio Consumer Sales Practices Act;[3] and (3) the fiduciary/mortgage *991 broker claims. The Court finds, however, that, because the Plaintiffs failed to specify the nature of the "fiduciary/mortgage broker" claims, the Plaintiffs are not entitled to an award of attorney's fees thereunder. In addition, because the Court has not made a finding with respect to whether the Elsea Defendants knowingly violated the Ohio Consumer Sales Practices Act, the Plaintiffs are not entitled to an award of attorney's fees for the claims brought under that statute. Therefore, the Court proceeds to consider the Plaintiffs' Motion for Fees only with respect to the claims asserted against the Elsea Defendants under the Magnuson-Moss Warranty Act. In particular, the Court considers the following arguments set forth by the Elsea Defendants: (1) that the Plaintiffs are not "prevailing parties"; (2) that, even if the Plaintiffs are prevailing parties, their fees should not include time spent pursuing Defendant Oak Hill; and (3) that, even if the Plaintiffs are prevailing parties, their fees should not include time spent pursuing class action certification.

A. Plaintiffs as Prevailing Parties
A prevailing party is one who succeeds "on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (quotation marks and citation omitted). As the Sixth Circuit has recognized, " `a plaintiff "prevails" when actual relief on the merits of his claim materially alters the legal relationship between the parties ... in a way that directly benefits the plaintiffs.'" Berger v. City of Mayfield Heights, 265 F.3d 399, 406 (6th Cir.2001)(quoting Farrar v. Hobby, 506 U.S. 103, 111-12, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992)). Accordingly, to qualify as a prevailing party, the plaintiff must obtain an enforceable judgment against the defendant from whom the fees are sought, or "comparable relief through a consent decree or settlement." Farrar, 506 U.S. at 111, 113 S.Ct. 566.
The Defendants contend that the Plaintiffs are not entitled to attorney's fees because they are not "prevailing parties." In particular, the Defendants state that, in cases where the plaintiffs relief stems from a voluntary change in the defendant's conduct, the plaintiff must show that his lawsuit was the "catalyst" behind that change. Owner-Operator Indep. Drivers Assoc., Inc. v. Bissell, 210 F.3d 595, 597 (6th Cir.2000). The Defendants then go on to argue that the Plaintiffs cannot demonstrate that their lawsuit was the catalyst behind the changes in the Defendants' operations, and that, therefore, they are not prevailing parties.
While the Defendants are correct that, in certain cases, a plaintiff must demonstrate that his lawsuit was the catalyst behind the change in the defendant's conduct before he can be deemed a prevailing party, this is not such a case. To the contrary, Owner-Operator states that the catalyst theory applies when the plaintiffs relief stems from a voluntary change in the defendant's conduct. Owner-Operator, 210 F.3d at 597. In other words, the theory applies when the defendant voluntarily changes its conduct so as to moot the plaintiff's claims. See Owner-Operator, 210 F.3d at 597-98 (applying the catalyst theory to find the plaintiffs prevailing parties even when injunctive relief was not necessary because the officer who had been found to be violating the plaintiffs' constitutional rights had been terminated from his employment, and the agency for which he had worked had been abolished *992 by statute). Here, however, the Elsea Defendants did not voluntarily change their conduct, but entered into a negotiated agreement with the Plaintiffs precipitated by Plaintiffs' lawsuit. As a result of the negotiated agreements the Elsea Defendants were obligated to change their conduct. Therefore, the catalyst theory is inapplicable, and the Court turns to the traditional definition of "prevailing parties," set forth above, to determine whether the Plaintiffs qualify as such.
The Court finds that the Plaintiffs are prevailing parties with respect to the Moss-Magnuson Warranty Act claims they asserted against the Elsea Defendants. Although the Plaintiffs were not awarded a judgment on the merits of their claims, they received a comparable result through settlement. Indeed, the terms of the settlement mandated not only that the Defendants pay monetary compensation to the Plaintiffs, but also that the Defendants implement a consumer-friendly Magnuson-Moss dispute resolution mechanism. Both the monetary relief and the dispute resolution mechanism constitute at least "some of the benefit the parties sought in bringing suit." Hensley, 461 U.S. at 433, 103 S.Ct. 1933.
Accordingly, the Court finds that the Plaintiffs are prevailing parties to whom the Court may award attorney's fees.

B. Claims Against Oak Hill
The Defendants contend that, even if the Plaintiffs are "prevailing parties," the fees that they are awarded should not include time that the Plaintiffs spent pursing their Truth-in-Lending Act ("TILA") claims brought against Defendant Oak Hill. The Court agrees, and recognizes that the Plaintiffs have not requested payment for such time in their Motion for Fees. Therefore, items such as the time spent drafting the January 26, 2000 letter to Oak Hill's counsel regarding the motion to approve settlement will be excluded as unrelated to the claims against the Elsea Defendants.
The Defendants also argue that all of the Plaintiffs' contact with or work relating to Oak Hill prior to October 31, 2000, the date that the Court approved the settlement entered into between Oak Hill and the Plaintiffs, must be excluded from the hours for which the Plaintiffs can collect attorney's fees from the Elsea Defendants. The Defendants contend that, until October 31, 2000, Oak Hill remained an active litigant in the case against whom the Plaintiffs continued to pursue their claims, and it was not until that date that Oak Hill acted as a third-party witness against the Elsea Defendants. The Court recognizes, however, that prior to October 31, 2000, Plaintiffs' counsel had some contact with Oak Hill or its representatives that related to the claims against Elsea, not against Oak Hill. For instance, the April 27, 2000 letter to Oak Hill's counsel seems to pertain to Elsea, not the TILA claims against Oak Hill. The hours that reflect contact with Oak Hill regarding the claims against the Elsea Defendants need not be excluded from Plaintiffs' counsel's total number of hours.
Similarly, the Court recognizes that Plaintiffs' counsel devoted some time to work that related to Oak Hill and the Elsea Defendants equally. That is, Plaintiffs' counsel conducted some work that related to Oak Hill, but that same work would have been conducted with respect to the Elsea Defendants even if Oak Hill had not been involved in the litigation. For example, on December 3, 1999, Plaintiffs' counsel drafted a letter to the Plaintiffs, Oak Hill's counsel, and Elsea's counsel. The hours devoted to that task need not be excluded or even reduced because, presumably, Plaintiff's counsel would have spent the same amount of time on that letter even if it had not been sent to Oak *993 Hill. Indeed, it appears that the letter to counsel for Oak Hill and counsel for Elsea was virtually identical.
Accordingly, the Court will review the hours recorded by Plaintiffs' counsel, and will determine whether any time should be excluded as relating only to the claims against Defendant Oak Hill. The Court will not exclude time for work that relates equally to Oak Hill and the Elsea Defendants, nor will it exclude time for work that was conducted with Oak Hill, but related to the claims against the Elsea Defendants.

C. Class Claims
The Defendants argue that the Plaintiffs are not entitled to recover attorney's fees for the time they spent pursuing their class claims because they were unsuccessful in seeking class certification, and even with the settlement agreement, they cannot be considered prevailing parties in this respect. The Court agrees, and finds that any hours that were devoted solely to the pursuit of the class claims should be excluded from the total number of hours for which the Plaintiffs seek fees. The Court recognizes, however, that certain aspects of the class claims were so intertwined with the individual claims brought against the Elsea Defendants that Plaintiffs' counsel would have expended virtually the same amount of time conducting certain tasks even if the class claims were not being pursued.
Therefore, the Court will exclude from the Plaintiffs' total number of hours for which they seek fees any hours that were devoted solely to the pursuit of the class claims. The Court will not exclude any hours that were devoted to the class claims, but were intrinsically connected to the pursuit of the individual claims brought against the Elsea Defendants.

D. Reasonable Hourly Rate
The Defendants contend that, regardless of the number of hours for which the Plaintiffs should be awarded attorney's fees, the Plaintiffs should be compensated at a rate not to exceed $225.00 per hour. See Lindsey v. Burcham, Case No. C-1-98-223, at 10 (S.D.Ohio 2000) (Dlott, J.) (awarding attorney Gary M. Smith attorney's fees at a rate of $225.00 per hour). The Plaintiffs, however, request that Mr. Smith be compensated at a rate of $250.00 per hour.
The Court has broad discretion in determining what constitutes a reasonable hourly rate for an attorney. Wayne v. Village of Sebring, 36 F.3d 517, 533 (6th Cir.1994) (citing Louisville Black Police Officers Org. v. City of Louisville, 700 F.2d 268, 277-78 (6th Cir.1983)). In exercising its discretion, the Court should consider the fair market value of the services rendered by the attorney. Northcross v. Bd. of Educ. of Memphis City Schools, 611 F.2d 624, 638 (6th Cir.1979). "In most communities, the marketplace has set a value for the services of attorneys, and the hourly rate charged by an attorney for his or her services will normally reflect the training, background, experience and skill of the individual attorney." Id.
Attached to the Motion for Fees, Mr. Smith filed a declaration in which he averred that his customary billing rate for contingent fee representation in the Southern District of Ohio is $250.00 per hour. In light of Mr. Smith's extensive litigation experience, his education, and his background, and in light of the fact that Judge Dlott found the reasonable value of the legal services that he performed in 1998 and 1999 to be $225.00 per hour, the Court finds that $250.00 per hour constitutes a reasonable hourly rate for the work that Mr. Smith did in this case. Therefore, the Court will calculate the lodestar by multiplying the number of hours that Mr. Smith worked in pursuit of his claims against the Elsea Defendants by $250.00.
*994 The Court finds that, within the parameters set forth above, Plaintiffs' counsel shall be compensated for 198.1 hours at the rate of $250.00 per hour. He is, therefore, entitled to $49,525.00 in attorney fees.

E. Costs
Plaintiffs request $3,442.50 in costs. Defendants object to a portion of those costs, claiming that an award of costs for the Plaintiffs' deposition copies is improper. They state that expenses for depositions not actually read into evidence generally are not recoverable. See Fulwiler v. Schneider, 104 Ohio App.3d 398, 662 N.E.2d 82 (1995).
Under Rule 54 of the Federal Rules of Civil Procedure, "costs other than attorneys' fees shall be allowed as of course to the prevailing party ..." FED. R.Civ.P. 54(d)(1); see White & White, Inc. v. Am. Hosp. Supply Corp., 786 F.2d 728, 730 (6th Cir.1986) (stating that Rule 54(d) creates a presumption in favor of awarding costs to the prevailing party). "Costs" may include the cost of taking and transcribing depositions, as long as such depositions appear to be reasonably necessary to the litigation at the time they are taken. Sales v. Marshall, 873 F.2d 115, 120 (6th Cir.1989). Necessity is determined at the time of taking; the fact that a deposition is not ultimately used at trial does not control the determination of whether an award of costs is proper. Id. (citing LaVay Corp. v. Dominion Fed. S. & L. Ass'n, 830 F.2d 522, 528 (4th Cir.1987), cert. denied, 484 U.S. 1065, 108 S.Ct. 1027, 98 L.Ed.2d 991 (1988)).[4]
The Court finds that the depositions taken and filed by the Plaintiffs seemed reasonably necessary at the time of taking. Therefore, the Plaintiffs are entitled to recover the costs therefor from the Elsea Defendants.

V. CONCLUSION
For the foregoing reasons, the Court GRANTS the Plaintiffs' Motion for Fees and Costs, and hereby ORDERS the Defendants to pay the Plaintiffs' attorney's fees and litigation expenses in the amount of $52,967.50, reflecting 198.1 hours of work, billed at a rate of $250.00 per hour, plus $3442.50 in costs.
IT IS SO ORDERED.
NOTES
[1]  The Plaintiffs also named Ron Eitel as a Defendant in their Complaint. The claims against Mr. Eitel were dismissed with prejudice on December 15, 2000.
[2]  The Magnuson-Moss Warranty Act provides:

If a consumer finally prevails in any action brought under paragraph (1) of this subsection, he may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses (including attorneys' fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action, unless the court in its discretion shall determine that such an award of attorneys' fees would be inappropriate.
15 U.S.C. § 2310(d)(2).
[3]  The Ohio Consumer Sales Practices Act provides:

The court may award to the prevailing party a reasonable attorney's fee limited to the work reasonably performed, if ... [t]he supplier has knowingly committed an act or practice that violates this chapter.
OHIO REV.CODE § 1345.09(F)(2).
[4]  The Court recognizes that under Ohio's Civil Rule 54(D) the expense of depositions not used at trial may not be taxed as costs. Fulwiler v. Schneider, 104 Ohio App.3d 398, 662 N.E.2d 82, 90 (1995). This Court, however, analyzes the propriety of awarding the Plaintiffs their costs under the Federal Rules of Civil Procedure, and is not bound by a ruling of the state court on this issue. The Court notes that it is proper to look to the Federal Rules for guidance particularly in light of the fact that the Plaintiffs are prevailing parties with respect to the claims brought under federal law.


131 Ill.2d 51 (1989)
544 N.E.2d 785
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,
v.
JAMES LUSIETTO, Appellant.
No. 66729.
Supreme Court of Illinois.
Opinion filed September 20, 1989.
Robert Agostinelli, Deputy Defender, and Catherine M. Fitzsimmons, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellant.
*52 Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Terence M. Madsen and David E. Bindi, Assistant Attorneys General, of Chicago, of counsel), for the People.
Appellate court judgment affirmed.
JUSTICE WARD delivered the opinion of the court:
Following a plea of guilty in the circuit court of La Salle County to a charge of unlawful delivery of a controlled substance, cocaine (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 1401(a)), the defendant, James Lusietto, was sentenced to 11 years' imprisonment and was fined $8,290 (Ill. Rev. Stat. 1987, ch. 38, par. 1005-9-1.1). The defendant appealed, contending that the fine mandated by statute was improperly calculated. The appellate court, with one judge dissenting, basically affirmed imposition of the fine as determined by the trial court. (167 Ill. App.3d 251.) We granted the defendant's petition for leave to appeal (107 Ill.2d R. 315).
On December 6, 1985, the defendant went to the home of a man, who unknown to him was a police informant, to conduct a drug sale. While being covertly monitored by electronic surveillance equipment, the defendant produced 2.5 ounces of cocaine for sale to the informant. There was no evidence that a sale price had been agreed upon when the defendant was arrested.
As stated, the trial court accepted the defendant's plea of guilty, sentenced him to 11 years' imprisonment and imposed a mandatory street value fine of $8,290 (Ill. Rev. Stat. 1987, ch. 38, par. 1005-9-1.1). In calculating the street value of the drugs seized, the court relied on testimony of the arresting narcotics officer that cocaine is typically sold to the user by the gram and that the usual price paid for a gram is $100. Police testimony showed that the amount of cocaine seized at the informant's home was 2.5 ounces, or 69.5 grams. There had *53 been an earlier sale by the defendant to the informer, and it could be inferred from the terms of that sale that resale of these drugs by the informer, and not use by him, was contemplated. He himself was to be a supplier and not a user at the street level. An additional one-half ounce, or 13.4 grams, was seized at the defendant's home in a search following the arrest. The trial court calculated the street value of the 82.9 grams to be $8,290, the fine imposed.
On appeal to the appellate court, the defendant challenged the trial court's basis for determining street value, saying that the calculation should have been based on the evidence of the price the defendant was to pay for the cocaine, $1,900 per ounce. The defendant did not testify at trial, but the investigating officer testified that, while in custody, the defendant stated that he was to pay his supplier $1,900 per ounce for the cocaine. The defendant also argued that the trial court exceeded its sentencing authority when it ordered him to pay an additional amount as a fine based on the one-half ounce of cocaine found at his residence and for which he was separately charged and had pleaded guilty. Too, the defendant argued that his fine should be reduced so as to reflect a $5-a-day credit for his pretrial incarceration. Ill. Rev. Stat. 1987, ch. 38, par. 110-14.
The appellate court approved the trial court's calculation of street value on the agent's testimony, rather than on the price to be paid by the defendant to his supplier. The appellate court also correctly modified the amount of the fine, holding that the cocaine seized from the defendant's home should not have been included in the calculation of the fine since it was the subject of a separate prosecution. The appellate court stated, too, that the defendant was entitled to a $105 credit to reflect his pretrial incarceration.
*54 The issue on this review is whether, for the purpose of determining the mandatory fine under section 5-9-1.1 of the Unified Code of Corrections, the street value of the drugs seized was, on the evidence, properly determined through the testimony of an experienced narcotics officer to be $100 per gram. In other terms, was street value to be based on the usual price paid by the user-consumer, as established by the testifying officer, or was it to be based, as the defendant argues, on the price to be paid by the defendant to his supplier for the drugs?
Section 5-9-1.1 provides for a mandatory fine in drug-related offenses:
"When a person has been adjudged guilty of a drug related offense involving * * * possession or delivery of a controlled substance * * * a fine shall be levied by the court at not less than the full street value of the * * * controlled substances seized.
`Street value' shall be determined by the court on the basis of testimony of law enforcement personnel and the defendant as to the amount seized and such testimony as may be required by the court as to the current street value of the * * * controlled substance seized." Ill. Rev. Stat. 1987, ch. 38, par. 1005-9-1.1.
The defendant contends that the appellate court erred in its calculation of the fine, saying the best evidence of the value of the drugs seized was the evidence of the actual price he was to pay his supplier for the drugs, i.e., $1,900 per ounce. The defendant argues that the testimony of the narcotics officer that cocaine is typically sold in one-gram units for $100 per gram establishes only an average value for cocaine and is not sufficient to establish that the street value of these particular drugs was $100 per gram. It is speculative to conclude that the drugs could have been sold at that price, he says, in the absence of evidence of the purity level of the drug or the price agreed upon by the defendant and the informant. *55 The defendant argues that the evidence of price in a recent sale to him is solid evidence of the drugs' value and should be controlling.
The defendant states that his interpretation of street value is supported by the People v. Dale (1985), 137 Ill. App.3d 101, and People v. Beavers (1986), 141 Ill. App.3d 790, decisions, where the court held that street value is the price of drugs on the street in a sale between a willing seller and a willing buyer. The defendant says that the price paid at a recent sale is considered the most important factor in determining present value (City of Chicago v. Bank of Ravenswood (1981), 93 Ill. App.3d 52, 56) and is practically conclusive on the issue (People ex rel. Korzen v. Belt Ry. Co. (1967), 37 Ill.2d 158, 161).
The appellate court's calculation of street value was correct. The testimony of the narcotics officer as to the price typically paid by the ultimate purchaser, the user, for a gram of the drug was proper evidence under the circumstances here to establish street value and follows the legislative intendment as expressed in section 5-9-1.1. The statute in part provides that "street value shall be determined on the basis of such testimony as may be required by the court as to the current street value of the controlled substance seized." In an ordinary sale situation, of course, evidence of a recent or contemporaneous sale may be the best evidence of value. In illicit sales of drugs, however, where transactions take place in a clandestine atmosphere and where the drugs move through a chain of criminal distributors before they reach the ultimate user, a determination of value will be obviously different from valuation in a lawful sale. Also, considering that the obvious purpose of the mandatory fine called for in section 5-9-1.1 is to discourage and impede the illegal buying, selling and using of drugs, it is clear that the proper standard of valuation is that which would approximate the profit that a defendant *56 would realize from the sale of the drug at its full street value. Significantly, the legislature provided that the mandatory penalty was to be in an amount "not less than the full street value" of the drug seized. The legislature intended that the valuation of the drug would be based on the full amount that an offender could realize for the drug on the street.
The court in People v. Dale (1985), 137 Ill. App.3d 101, 106, recognized that street value was different from the market value or the fair cash value in an ordinary transaction and that the term could not be more precisely defined because of the illegal nature of the transaction and because of the clandestine nature of the activity. The court noted that the statute's standard was not unfair because: "If convicted, he [the offender] will sit in court and hear the police give their opinions of what the going illegal price is, and he may cross-examine them and contribute his own opinion if he so chooses." (Dale, 137 Ill. App.3d at 107.) The court in Dale recognized that the determination of street value would be based on testimony of law enforcement personnel as to the current price of the drug based on the experiences of the officer on the street, with the defendant having the opportunity to challenge that testimony through cross-examination and introduction of his own testimony. We reviewed Dale (People v. Dale (1986), 112 Ill.2d 460), but the question of street value was not an issue.
As stated, under the statute, a defendant may introduce evidence as to the street value of the drugs. The defendant did not offer testimony as to the value of the drugs nor did he attempt to cross-examine the officer who testified. (See, e.g., People v. Pilcher (1986), 147 Ill. App.3d 193.) If a defendant does not cross-examine or introduce contrary testimony, it is not unreasonable for a trial court to accept the testimony of a narcotics officer as to the street value of drugs seized if the officer has *57 sufficient special knowledge and familiarity with the controlled substance to assist the court in determining the proper fine. (People v. Wiley (1988), 174 Ill. App.3d 444, 453; People v. Roundtree (1985), 135 Ill. App.3d 1075, 1082, appeal dismissed (1987), 115 Ill.2d 324; but see People v. Carrasquilla (1988), 167 Ill. App.3d 1069.) In this case the testifying officer had been on the narcotics squad for 16 years and there was nothing in the record to indicate that he was not sufficiently knowledgeable and familiar with the current price of street drugs. We note, additionally, that the opinion of a testifying officer must be reasonable in light of all the evidence. See, e.g., People v. Beavers (1986), 141 Ill. App.3d 790.
As we observed, in drug sales there is that illegal chain of distribution. It begins with the first supplier of the drugs and ends with the street buyer who uses the drugs. Others in the chain are intermediate suppliers or sellers and their prices are not at street value. The defendant and his supplier, as well as the informer himself, were intermediate suppliers. The fine proposed by the defendant, therefore, does not reflect the full street value of the drugs seized. For the reasons given we affirm the judgment of the appellate court.
Appellate court judgment affirmed.
JUSTICE RYAN took no part in the consideration or decision of this case.


711 F.2d 1062
Breamesv.Heckler
82-5051
UNITED STATES COURT OF APPEALS Ninth Circuit
6/13/83

1
S.D.Cal.

AFFIRMED


                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 18‐3402
AUTO DRIVEAWAY FRANCHISE SYSTEMS, LLC,
                                                   Plaintiff‐Appellee,
                                 v.

AUTO DRIVEAWAY RICHMOND, LLC, and
INNOVAUTO USA, LLC,
                                                          Defendants,

                                and

JEFFREY CORBETT,
                                               Defendant‐Appellant.
                     ____________________

         Appeal from the United States District Court for the
           Northern District of Illinois, Eastern Division.
              No. 18 C 4971—Manish S. Shah, Judge.
                     ____________________

     ARGUED FEBRUARY 4, 2019 — DECIDED JUNE 28, 2019
                 ____________________

   Before WOOD, Chief Judge, and EASTERBROOK and ST. EVE,
Circuit Judges.
    WOOD, Chief Judge. This litigation presents a clash between
a franchisor and a franchisee who may (or may not) have
2                                                  No. 18‐3402

allowed their agreement to expire. Auto Driveaway Franchise
Systems, LLC (“Auto Driveaway”) is a franchisor for commer‐
cial vehicle transportation services; Jeffrey Corbett was one of
its franchisees. Through his company, Auto Driveaway Rich‐
mond, LLC (“AD Richmond”), Corbett ran Auto Driveaway
franchises in Richmond (Virginia), Nashville, and Cleveland.
The arrangement was satisfactory for some time, but it went
downhill after Auto Driveaway heard that Corbett was open‐
ing businesses that competed with Auto Driveaway behind its
back. Adding insult to injury, Corbett was also allegedly us‐
ing Auto Driveaway’s name to lend legitimacy to the new
ventures. Taking the position that Corbett’s actions breached
the non‐compete clauses of the franchise contracts and mis‐
used Auto Driveaway’s trademarks, Auto Driveaway brought
this suit. The case has come to us on Corbett’s appeal from a
preliminary injunction the district court entered. See 28 U.S.C.
§ 1292(a)(1).
    Before considering that injunction directly, we must ad‐
dress several procedural problems that relate to our appellate
jurisdiction and the form of the injunction. We conclude that
our jurisdiction is secure, but that the district court must re‐
visit both the form of the injunction and the amount of secu‐
rity it required.
                               I
    Corbett’s three business locations were governed by sepa‐
rate, but substantively identical, franchise agreements with
Auto Driveaway. Corbett signed each one as the sole owner
of AD Richmond. Each agreement included the following: a
non‐compete clause, a non‐disclosure clause, and a five‐year
term set to expire in 2016. Those expiration dates came and
went, but both parties initially continued dealing as though
No. 18‐3402                                                  3

the agreements were still in place. Not until November 2017
did Auto Driveaway mail a letter to Corbett offering formally
to renew the franchise contracts for another five years begin‐
ning February 2018. Corbett never responded to the letter; in‐
stead, he continued operating his franchises as before.
    Some time after the November 2017 letter, Auto Drivea‐
way learned that Corbett had been taking actions in apparent
violation of the franchise agreements. Corbett, it learned, was
building an app to compete against the app it had hired Cor‐
bett to build for itself. Auto Driveaway also suspected that
Corbett was using Auto Driveaway’s proprietary work prod‐
uct as a starting point. To make matters worse, Corbett was
set to launch his own app through a new company, Inn‐
ovAuto, that also provided auto transportation services, in di‐
rect competition with Auto Driveaway. Auto Driveaway
quickly filed this lawsuit seeking to stop Corbett, InnovAuto,
and sales or use of the app. One month later it formally termi‐
nated its relationship with Corbett and AD Richmond.
    In his initial answer to the complaint, Corbett admitted
that the franchise terms under his agreement with Auto Drive‐
away were extended on a month‐to‐month basis after they ex‐
pired in 2016. He attempted to walk back that admission later
in an amendment to his answer; the new version took the po‐
sition that the franchise agreements expired and that the No‐
vember 2017 letter from Auto Driveaway was a unilateral of‐
fer that Corbett never accepted.
    Several months later, Auto Driveaway discovered that
Corbett had another competitive auto transport business, Tac‐
tical Fleet. Though Tactical Fleet was not named in the origi‐
nal complaint, Auto Driveaway asked the district court for a
preliminary injunction to stop Corbett from operating that
4                                                     No. 18‐3402

company as well as InnovAuto and the app. After a brief hear‐
ing, the district court issued an order granting Auto Drivea‐
way’s motion, based on evidence that Corbett was harming
consumer goodwill toward Auto Driveaway and was taking
Auto Driveaway customers through his competing busi‐
nesses. In broad strokes, the order states that Corbett may not
engage in any conduct that might violate the non‐compete
clause of the franchise agreement. The court required Auto
Driveaway to post a $10,000 bond as security for the injunc‐
tion; it did so.
                                II
    Before we can address the propriety of the injunction, we
must ensure that it is properly before this court and free of
procedural defects. There are potentially three problems with
this injunction: its timeliness, its scope, and its specificity. We
review each de novo. See Loertscher v. Anderson, 893 F.3d 386,
392 (7th Cir. 2018).
                                A
    The first question is whether this appeal is now moot.
While it was pending, the district court granted Corbett and
Auto Driveaway’s request to amend their pleadings. Gener‐
ally, “[o]nce an amended pleading is interposed, the original
pleading no longer performs any function in the case.” Well‐
ness Cmty.‐Natʹl v. Wellness House, 70 F.3d 46, 49 (7th Cir. 1995)
(quoting 6 Charles Alan Wright, Arthur R. Miller, & Mary Kay
Kane, FEDERAL PRACTICE AND PROCEDURE § 1476 at 556–57,
559 (1990)). If later developments in the case have removed
the legs on which the order under review stands, it is our duty
as an appellate court to vacate the order and remand. See
United States v. Munsingwear, Inc., 340 U.S. 36, 39–40 (1950).
No. 18‐3402                                                     5

The way in which this rule applies to preliminary injunctions,
however, depends on what the injunction covers: it might af‐
fect the entire basis of the lawsuit, or it might affect only some
of the claims or involve limited measures needed to preserve
the status quo pending final resolution of the case. Review of
the latter type of injunction normally leaves the underlying
dispute undisturbed.
    In order to avoid mootness, there must be a live contro‐
versy in which the parties can obtain some relief from the
court. Powell v. McCormack, 395 U.S. 486, 496 (1969). Practically
speaking, the question for us in this case is what might be
gained by either party from our review of the challenged or‐
der. If either factual developments or procedural steps in the
district court have left us with nothing meaningful to do, then
we must dismiss the appeal as moot. See Honig v. Students of
Cal. Sch. for the Blind, 471 U.S. 148, 149 (1985) (“No order of
this Court could affect the parties’ rights with respect to the
injunction we are called upon to review.”).
   Either type of change—factual or procedural—can render
an appeal from a grant or denial of a preliminary injunction
moot. For examples of cases in which the facts changed, see
Stotts v. Cmty. Unit Sch. Dist. No. 1, 230 F.3d 989, 991 (7th Cir.
2000) (denial of preliminary injunction mooted by graduation
from school); Henco, Inc. v. Brown, 904 F.2d 11, 13 (7th Cir.
1990) (preliminary injunction moot because injunction’s end
date passed while appeal was pending). The factual develop‐
ments in those cases erased the controversy because the rem‐
edies originally ordered and under review by the court of ap‐
peals no longer had any effect.
    Similarly, procedural developments can moot an appeal
from a preliminary injunction. The easiest example of this
6                                                       No. 18‐3402

occurs when the district court makes a final decision on the
merits while the interlocutory appeal is pending. See, e.g.,
Garner v. Dreyer, 94 F. App’x 366 (7th Cir. 2004) (citing United
States v. Estevez, 852 F.2d 239, 241 n.3 (7th Cir. 1988)). In such
a case, the interim phase of the case is over and so there is
nothing left to do or say about it. The proper course of action
then is to recognize that the interlocutory appeal is moot. That
often occurs when the controversy over the preliminary in‐
junction is overtaken by the entry of a permanent injunction.
The rulings effectively “merge,” and so the earlier prelimi‐
nary injunction no longer has any effect. Grupo Mexicano de
Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 317
(1999). In some instances, however, an appeal can outlive its
injunction. Our review of a dissolved preliminary injunction
may continue if a party is seeking damages from the improper
issuance of the injunction. N. Indiana Pub. Serv. Co. v. Carbon
Cnty. Coal Co., 799 F.2d 265, 268 (7th Cir. 1986).
     In this case, after the district court indicated that it was
granting a preliminary injunction, there were later procedural
changes (the revised pleadings) that we must examine to see
if they affected the substantive basis for the district court’s or‐
der. A quick look reveals that the new pleadings did no more
than to add Tactical Fleet to the list of parties; they had no
effect on Auto Driveaway’s basic grievance. The preliminary
injunction is still in place, and it is still constraining the actions
of Corbett and his companies. Real‐world consequences
would attend anything we were to do with it, whether affir‐
mance, modification, or dissolution. That is the definition of a
live controversy. We note as well that preliminary injunctions
by their nature are not set in stone. If circumstances change,
the parties are always free to return to the district court to ask
for changes.
No. 18‐3402                                                    7

                               B
    Corbett next argues that the preliminary injunction
strayed beyond the scope of the original complaint. He finds
fault in Auto Driveaway’s failures to name Tactical Fleet in its
complaint, to assert claims against him personally, and to in‐
clude post‐termination breaches of contract. These quibbles,
however, ignore the fact that the federal courts require notice
pleading, not fact pleading complete with all the minutiae. A
complaint need only provide notice of a plausible claim; there
is no rule requiring parties to plead legal theories or elements
of a case. See generally Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). We are
unpersuaded by Corbett’s attempt to portray the complaint
as presenting anything other than allegations of breach of
contract and trademark infringement on the part of Corbett
and his companies. Corbett was certainly on notice that this
lawsuit challenged the practices that Auto Driveaway be‐
lieved infringed on its business and good name. Any failure
to include the specifics Corbett identifies does not offend the
requirements of Federal Rule of Civil Procedure 8(a)(2). We
see nothing covered by the preliminary injunction that went
beyond the case or controversy before the court or that could
have surprised Corbett. We note as well that Auto Driveaway
could not have been expected to know facts that Corbett was
deliberately keeping from it.
                               C
   Though the injunction falls within the scope of the com‐
plaint and has not been rendered moot by subsequent pro‐
ceedings in the district court, it suffers from a different prob‐
lem: failure to comply with Federal Rule of Civil Procedure
65(d). That rule requires that “[e]very order granting an
8                                                       No. 18‐3402

injunction … must: (A) state the reasons why it issued; (B)
state its terms specifically; and (C) describe in reasonable de‐
tail—and not by referring to the complaint or other docu‐
ment—the act or acts restrained or required.” We interpret
Rule 65(d)(1)(C) to require that an injunction must be embod‐
ied in a standalone separate document. BankDirect Capital Fi‐
nance, LLC v. Capital Premium Financing, Inc., 912 F.3d 1054,
1057 (7th Cir. 2019), citing Gunn v. Univ. Comm. to End the War,
399 U.S. 383 (1970). While many injunctions are accompanied
by separate opinions that explain the district court’s reason‐
ing, Rule 65(d) requires that the injunction itself contain
enough information to render its scope clear. See Bethune
Plaza, Inc. v. Lumpkin, 863 F.2d 525, 527 (7th Cir. 1988). “A ju‐
dicial opinion is not itself an order to act or desist; it is a state‐
ment of reasons supporting the judgment.” Id. If the opinion
purports to award declaratory relief, but the judgment does
not, then the opinion is reduced to dictum. Id.
    In this case, the district court issued a single order, styled
as a “PRELIMINARY INJUNCTION ORDER,” which contained the
court’s analysis and ended this way (after eight pages of ex‐
planation):
       For these reasons, this Court orders that:
       For the pendency of this litigation, until no later
    than September 30, 2020, defendants Auto Driveaway
    Richmond, LLC and Jeffrey Corbett are prohibited
    from engaging, directly or indirectly, as an owner, op‐
    erator, or in any managerial capacity, in any ‘for‐hire’
    motor carrier businesses operating as either a common
    carrier or a contract carrier or any business which op‐
    erates or grants franchises or licenses to others to oper‐
    ate a business that provides similar services and/or
No. 18‐3402                                                    9

   products as those offered by Auto Driveaway Fran‐
   chise Systems, LLC at or within a fifty mile radius of
   AD Richmond’s former offices or any other territory
   with an Auto Driveaway office other than as an author‐
   ized franchise owner of another Auto Driveaway of‐
   fice.
        Because defendants are likely to incur some costs in
   ensuring compliance with this injunction and because
   it provides for a lengthy term, the risk of a wrongful
   injunction must be secured by Auto Driveaway. Plain‐
   tiff, through counsel Greensfelder, Hemker & Gale,
   P.C., shall deposit with the Court ten thousand dollars
   ($10,000.00), either cash, check, cashiers’ check, certi‐
   fied funds, or surety bond, as security to be held in the
   Court Registry. The $1,000 used to secure the earlier
   TRO may be applied toward the balance due for this
   preliminary injunction.
      Plaintiff’s motion for a temporary restraining order
   and preliminary injunction, [55], is granted in part, de‐
   nied in part.
Like the order in BankDirect, this order says that it is an in‐
junction. It reads like an injunction. But it is not a standalone
separate document that spells out within its four corners ex‐
actly what the enjoined parties must or must not do. It there‐
fore does not comply with Rule 65(d). The question is thus
what consequences, if any, flow from that noncompliance.
    Our initial question is whether the failure to comply with
Rule 65 affects our appellate jurisdiction under 28 U.S.C.
§ 1292(a)(1). In the past, we have sometimes intimated that a
failure to comply with Rule 65(d) at least has the potential of
10                                                     No. 18‐3402

depriving us of appellate jurisdiction. The logic is this: “there
is no standing to seek relief in the form of an appellate judg‐
ment” from an order that “places the parties under no obliga‐
tions.” Reich v. ABC/York‐Estes Corp., 64 F.3d 316, 320 (7th Cir.
1995); Original Great Am. Chocolate Chip Cookie Co., 970 F.2d at
276. (“An injunction that has no binding force at all simply
cannot be appealed.”). Along those lines, we have said that
“by reason of not complying with Rule 65(d) the order issued
by the district court is not an injunction at all, it places the
defendant under no obligations; and an order that is not actu‐
ally or at least potentially coercive … does not impose the sort
of tangible harm that Article III requires for standing to seek
judicial relief, including relief in the form of an appellate judg‐
ment.” Chicago & N. W. Transp. Co. v. Ry. Labor Executivesʹ
Assʹn, 908 F.2d 144, 149 (7th Cir. 1990).
    But a closer look at our cases reveals that we have not
adopted a rigid rule rejecting jurisdiction in every case in
which Rule 65 is violated. Instead, we have said that “whether
a purported injunction is appealable” depends on “whether it
is in sufficient though not exact compliance with Rule 65(d)
[such] that a violation could be punished by contempt or
some other sanction.” Id. at 276. In other words, we may re‐
view those injunctions that contain enough content to permit
effective enforcement. For example, in Chicago & North West‐
ern Transportation Company, we held that we had jurisdiction
to review a “Memorandum Opinion and Order” since it was a
“technical rather than substantial” violation of Rule 65(d). 908
F.2d at 150 (emphasis in original). But when injunctions fail
that specificity test, we have said that “by virtue of the failure to
comply with Rule 65(d), there is no injunction, and we lack ju‐
risdiction to hear [the] appeal.” Reich, 64 F.3d at 320 (emphasis
added).
No. 18‐3402                                                    11

    The Supreme Court has confirmed that compliance with
Rule 65 and appellate jurisdiction are two different things,
and that what matters for jurisdiction is the practical effect of
the order. It has discussed both appellate jurisdiction and
compliance with Rule 65(d) in a number of cases. One of the
earliest was Gunn v. University Committee to End War in Viet
Nam, 399 U.S. 383 (1970), in which the Court found that it did
not have jurisdiction under 28 U.S.C. § 1253 to review an or‐
der from a three‐judge district court holding that the parties
were entitled to injunctive relief but not ordering any relief.
Id. at 389–90. It analyzed Rule 65(d) and section 1253 and
acknowledged that both were concerned with clarity, but then
it added the following in a footnote:
   This is not to suggest that lack of specificity in an in‐
   junctive order would alone deprive the Court of juris‐
   diction under § 1253. But the absence of any semblance
   of effort by the District Court to comply with Rule
   65(d) makes clear that the court did not think that its
   per curiam opinion itself constituted an order granting
   an injunction.
Id. at 389 n.4. This suggests a simple rule of “no relief, no in‐
junction.”
     An example of an order that sufficed for appellate juris‐
diction appears in Schmidt v. Lessard, 414 U.S. 473 (1974). The
purported injunction at issue in Schmidt was similar to the one
in Gunn, but it differed in a critical respect. As the Court put
it, “[s]ince the opinion of the District Court by its own terms
authorizes the granting of injunctive relief … the judgment
here is sufficient to invoke our jurisdiction under 28 U.S.C.
§ 1253.” Id. at 475. The Court then held that “although the or‐
der below is sufficient to invoke our appellate jurisdiction, it
12                                                   No. 18‐3402

plainly does not satisfy the important requirements of Rule
65(d).” Id. at 477.
    The Court’s most recent word on the subject appears in
Abbott v. Perez, 138 S. Ct. 2305 (2018). There it reiterated that
appellate jurisdiction and compliance with Rule 65 are differ‐
ent requirements, which call for different inquiries. It did so
in the context of an appeal from a three‐judge district court
under 28 U.S.C. § 1253, rather than the more common inter‐
locutory appeal under 28 U.S.C. § 1292(a)(1). Importantly for
our purposes, it stated that these are “textually interlocked”
statutes, with the “same purpose” and “nearly identical” “rel‐
evant language.” Perez, 138 S. Ct. at 2320. The rules of con‐
struction and tests for the two, it confirmed, are the same. Id.
Perez thus puts to rest whatever doubt anyone may have re‐
tained about the applicability of Gunn and Schmidt to appel‐
late jurisdiction under section 1292(a)(1). Cf. BankDirect, 912
F.3d at 1058 (asking whether Section 1253 and Sec‐
tion 1292(a)(1) operate similarly with respect to appellate ju‐
risdiction over an order that does not comply with Rule
65(d)).
    The Perez Court began its analysis of the purported injunc‐
tion with its jurisdiction, stating that:
     § 1253 must be strictly construed. But it also must be
     sensibly construed, and here the District Court’s or‐
     ders, for all intents and purposes, constituted injunc‐
     tions barring the State from conducting this year’s elec‐
     tions pursuant to a statute enacted by the Legislature.
     Unless that statute is unconstitutional, this would seri‐
     ously and irreparably harm the State, and only an in‐
     terlocutory appeal can protect that State interest. As a
     result, § 1253 provides jurisdiction.
No. 18‐3402                                                   13

Perez, 138 S. Ct. at 2324 (citation omitted).
    After confirming that it had jurisdiction, the Court turned
to Rule 65(d). The Court recalled that “as explained in Gunn
v. University Comm. to End War in Viet Nam, 399 U.S. 383, 389,
n. 4 (1970), [it had] never suggested that a failure to meet the
specificity requirements of Rule 65(d) would ‘deprive the
Court of jurisdiction under § 1253.’” Id. at 2321. Furthermore,
it emphasized that conflating the two doctrines would de‐
prive an appellate court of jurisdiction to review an order that
violates Rule 65(d). Such a result, it said, would defeat the
purpose of both the rule and appellate review:
       A contrary holding would be perverse. Rule 65(d)
   protects the party against which an injunction is issued
   by requiring clear notice as to what that party must do
   or refrain from doing. Where a vague injunction does
   not comply with Rule 65(d), the aggrieved party has a
   particularly strong need for appellate review. It would
   be odd to hold that there can be no appeal in such a
   circumstance.
       For these reasons, we hold that we have jurisdiction
   under § 1253 to hear an appeal from an order that has
   the same practical effect as one granting or denying an
   injunction.
Id. The “practical effects” test is in keeping with several im‐
portant interests: (1) the purpose of appellate review to relieve
parties of harmful erroneous orders; (2) the limits of standing
generally to injured persons, and (3) the command to construe
section 1292(a)(1) narrowly such that the court of appeals will
review only those orders in need of immediate attention. See
14                                                    No. 18‐3402

Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271,
287–88 (1988); Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981).
    The order in our case, as we already have pointed out, had
the practical effect of an injunction on the parties, despite the
district court’s failure to comply with the letter of Rule 65(d).
Missing only the self‐contained document that is required (a
glitch that went unremarked by any of the parties), the district
court’s order prevented Corbett from operating his business.
It also required Auto Driveaway to secure that order with a
$10,000 bond. See Rule 65(c). This is ample for purposes of
appellate jurisdiction; there is thus no need to remand this
case to cure the Rule 65(d) defect.
                                III
     All that remains is for us to decide whether the district
court abused its discretion when it entered the preliminary
injunction. See Ashcroft v. Am. Civil Liberties Union, 542 U.S.
656, 664 (2004). Although we confess to having some misgiv‐
ings about this injunction, for the most part we conclude that
it passes muster. The Supreme Court has held that “[a] plain‐
tiff seeking a preliminary injunction must establish that he is
likely to succeed on the merits, that he is likely to suffer irrep‐
arable harm in the absence of preliminary relief, that the bal‐
ance of equities tips in his favor, and that an injunction is in
the public interest.” Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7, 20 (2008). (We have considered Corbett’s remaining
arguments, but none has merit.)
    The district court should have said more about at least two
things. True, it found that Auto Driveaway was likely to suc‐
ceed on the merits on several key points: the enforceability of
the restrictive covenants in the agreement; the existence of an
No. 18‐3402                                                   15

implied‐in‐fact contract; and breach of such a contract. The
court also found that harm to consumer goodwill and loss of
customer relationships—both of which Auto Driveaway
claims—are irreparable harms. It further concluded that the
harm to Corbett and his companies from the preliminary in‐
junction was “minimal.” But it did not explain why a remedy
at law—that is, an award of damages at the conclusion of the
lawsuit—was inadequate. See Roland Mach. Co. v. Dresser In‐
dus., Inc., 749 F.2d 380, 386 (7th Cir. 1984). Perhaps Corbett
would not be able to pay any ultimate damages, but perhaps
he can do so easily: it is impossible to say on this record.
    We also do not know why the district court chose such a
modest amount, $10,000, for Auto Driveaway to pay to protect
Corbett against the harm he will incur during the pendency
of the litigation, should he prevail at the end. When setting
the amount of security, we have instructed district courts to
“err on the high side.” Mead Johnson & Co. v. Abbott Labs., 201
F.3d 883, 888 (7th Cir.), opinion amended on denial of rehʹg, 209
F.3d 1032 (7th Cir. 2000). In the second amended complaint,
Auto Driveaway mentions that Corbett spent approximately
$85,000 just on the development of software for InnovAuto.
The $10,000 amount does not come close to securing even that
potential loss for Corbett, not to mention his other predictable
losses from being barred from the business. In contrast to the
inexplicably low bond amount, the injunction itself is a
sweeping one. It forbids Corbett and AD Richmond “from en‐
gaging, directly or indirectly, as an owner, operator, or in any
managerial capacity, in any ‘for‐hire’ motor carrier businesses
operating as either a common carrier or a contract carrier or
any business which operates or grants franchises or license to
others to operate a business that provides similar services
and/or products as those offered by Auto Driveaway
16                                                  No. 18‐3402

Franchise Systems, LLC at or within a fifty mile radius of AD
Richmond’s former offices or any other territory with an Auto
Driveaway office … .” The vague reference to “any other ter‐
ritory with an Auto Driveaway office” raises the potential of a
geographic scope far broader than one limited to Corbett’s
Richmond operation, or the three locations he owned. Again,
perhaps that is justifiable, but the scope of the injunction is
directly related to the amount of the security required.
    Accordingly, we AFFIRM the order of the district court in‐
sofar as it preliminarily enjoins Corbett and AD Richmond
from operating as a franchisee or de facto franchisee of Auto
Driveaway, and insofar as it prohibits them from using any of
the contested technology, apps, or trademarks. On remand,
the district court should address the question whether to in‐
crease the security bond imposed on Auto Driveaway. Be‐
cause the district court is better suited than this court to con‐
sider the question of the adequacy of legal relief in the form
of damages as a full substitute for the injunction, we leave that
matter undisturbed. Corbett and AD Richmond may, if they
wish, ask the district court to reconsider that argument.

                                                SO ORDERED.


          UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

                                            No. 00-39(E)

                                 MATILDA BONNY , APPELLANT ,

                                                 V.

                                    ANTHONY J. PRINCIPI,
                          SECRETARY OF VETERANS AFFAIRS, APPELLEE.

                   On Appellant's Application for Attorney Fees and Expenses

                                 (Decided     August 17, 2004    )

       Douglas J. Rosinski, of Washington, D.C., was on the pleading for the appellant.

        Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; Joan
E. Moriarty, Deputy Assistant General Counsel; and Patricia Trujillo, all of Washington, D.C., were
on the pleading for the appellee.

       Before KRAMER, Chief Judge, and FARLEY and IVERS, Judges.

       IVERS, Judge: The matter before the Court is the appellant's application for an award of
reasonable attorney fees and expenses under the Equal Access to Justice Act (EAJA), 28 U.S.C.
§ 2412. For the reasons set forth below, the Court will deny the appellant's application.

                                             I. FACTS
       The appellant is the surviving spouse of a veteran, who served in the U.S. Army from January
1941 to September 1945. On August 10, 1995, the veteran was notified that an administrative
review of his claims file had resulted in a determination that a February 1948 regional office (RO)
decision contained clear and unmistakable error (CUE) and that the veteran was entitled to an award
of retroactive benefits dating from January 1948. Bonny v. Principi, 16 Vet.App. 504, 505 (2002).
An administrative decision also was issued on August 10, 1995, instructing that retroactive benefits
owed to the veteran should be paid accordingly. Five days after the administrative decision, the
veteran died. Id. The appellant subsequently submitted an application for VA surviving spouse
benefits. Id.
          A September 27, 1999, decision of the Board of Veterans' Appeals (BVA or Board) granted
the appellant accrued benefits for an amount equal to what would have been due to the veteran for
the two years prior to the date of the veteran's death. Bonny, 16 Vet.App. at 505-06. The Board
denied the appellant's claim for payment of the full award of retroactive benefits from January 1948
due and unpaid to the veteran at the time of his death. Id.
          On June 28, 2001, the Court ordered supplemental briefing on the interpretation and
application of 38 U.S.C. § 5121(a) in light of the facts of the case, the legislative history of the
accrued benefits statute, and the presence, if any, of a federal property right held by the appellant in
the past due benefits. The Court heard oral argument on September 25, 2002, and issued its decision
on December 10, 2002.
          The Court acknowledged that Congress had placed a two-year limitation on the amount of
periodic monetary benefits payable to eligible survivors of a deceased veteran who had not been
awarded those benefits during his or her lifetime. In such cases, where a survivor of the veteran
establishes that the veteran had been entitled to VA benefits, an eligible survivor is entitled to a
maximum of the amount that would have been payable for the two years prior to the veteran's death.
However, the Court found, with respect to VA benefits that had been awarded prior to the veteran's
death, an eligible survivor is entitled to receive the entire amount of the award. Bonny, 16 Vet.App.
at 507.
          On March 12, 2003, the appellant filed an application for an EAJA award in the amount of
$74,615.16. The Secretary filed a response on April 23, 2003, and the appellant filed a reply on May
1, 2003.

                                            II. ANALYSIS
          This Court has jurisdiction to award attorney fees pursuant to 28 U.S.C. § 2412(d)(2)(F). The
March 12, 2003, EAJA application was filed within the 30-day EAJA application period and met
the EAJA content requirements because it contained (1) a showing that the applicant is a prevailing
party; (2) a showing that she is a party eligible for an award because her net worth does not exceed

                                                   2
$2,000,000; (3) an allegation that the Secretary's position was not substantially justified; and (4) an
itemized statement of the attorney fees and expenses sought. See 28 U.S.C. § 2412(d)(1)(B);
Scarborough v. Principi, 124 S. Ct. 1856, 1862 (2004); Bazalo v. West, 150 F.3d 1380, 1383-84
(Fed. Cir. 1998).
        The Court will award attorney fees to a prevailing party "unless the [C]ourt finds that the
position of the United States was substantially justified." 28 U.S.C. § 2412(d)(1)(A); see Swiney v.
Gober, 14 Vet.App. 65, 70 (2000); Stillwell v. Brown, 6 Vet.App. 291, 301 (1994). Once an EAJA
applicant alleges that the Secretary's position was not substantially justified, the burden shifts to the
Secretary to show that his position was substantially justified at both the administrative and litigation
stages in order to avoid paying EAJA fees. Swiney, 14 Vet.App. at 70. Reasonableness of the action
will be based upon the "totality of the circumstances." Stillwell, 6 Vet.App. at 302. "[A] position
can be justified even though it is not correct, and . . . it can be substantially (i.e. for the most part)
justified if a reasonable person could think it correct, that is, if it has a reasonable basis in law and
fact." Id. (quoting Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988)). In Stillwell, the Court
provided the following amplification:

        Two special circumstances may also have a bearing upon the reasonableness of the
        litigation position of . . . VA, and of the action or inaction by . . . VA at the
        administrative level. One is the evolution of VA benefits law since the creation of
        this Court that has often resulted in new, different, or more stringent requirements for
        adjudication. The second is that some cases before this Court are ones of first
        impression involving good[-]faith arguments of the government that are eventually
        rejected by the Court.

6 Vet.App. at 303. Furthermore, this Court established in Stillwell the following "totality of the
circumstances" standard to determine whether the Secretary carried that burden:

        VA must demonstrate the reasonableness, in law and fact, of the position of . . . VA
        in a matter before the Court, and of the action or failure to act by . . . VA in a matter
        before . . . VA, based upon the totality of the circumstances, including merits,
        conduct, reasons given, and consistency with judicial precedent and VA policy with
        respect to such position, and action or failure to act, as reflected in the record on
        appeal and the filing of the parties before the Court.

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Id at 302. In judging reasonableness during the administrative proceedings, the Court looks to the
relevant, determinative circumstances, including the state of the law at the time of the Board
decision. Moore v. Gober, 10 Vet.App. 436, 440 (1997) (citing Bowyer v. Brown, 7 Vet.App. 549
(1995)).
       Here, the Secretary concedes and the Court finds that the appellant is a prevailing party and
that there are no special circumstances in the case that would make an award of fees unjust.
Secretary's Response at 1; see Sumner v. Principi, 15 Vet.App. 256, 264-65 (2001), (en banc), aff'd
Vaughn v. Principi, 336 F.3d 1351 (Fed. Cir. 2003) (consolidated appeals) (holding that where Court
has found administrative error at merits stage, appellant is prevailing party). However, the Secretary
argues that the application should be denied on the ground that the Secretary's position was
substantially justified. Id. As to VA's application of 38 U.S.C. § 5121, the Court finds that the
Secretary's position at the administrative level was substantially justified because "'the Board clearly
relied upon then-current law.'" Johnson v. Principi, 17 Vet.App. 436, 441 (2004) (quoting
Clemmons v. West, 12 Vet.App. 245, 247 (1999)); see Owen v. United States, 861 F.2d 1273, 1275
(Fed. Cir. 1988) (holding that government position was substantially justified when it was based on
precedents then standing). At the time of the Board decision, the Court had not yet addressed the
distinction between the two types of periodic monetary benefits under section 5121 and there was
no controlling precedent to guide the decisionmaking process of the Board. "The Board's decision
must be weighed against the caselaw that prevailed when the government adopted its position."
Smith v. Principi, 16 Vet.App. 71, 75 (2002), aff'd 343 F.3d 1358 (Fed. Cir. 2003); see Bowey v.
West, 218 F.3d 1373, 1377 (Fed. Cir. 2000). The Court further finds that, although the Secretary's
interpretation of section 5121(a) was found to be incorrect, based upon the relevant legislative
history, we cannot state that that interpretation had no reasonable basis in law or in fact. See Ozer
v. Principi, 16 Vet.App. 475, 477-78 (2002) (per curiam order); Stillwell, supra. Accordingly, the
Court finds that the Board decision was reasonably based on then-existing law and that the
Secretary's position was substantially justified at the administrative stage and we so hold.
       The Court also finds that the Secretary's position with respect to the litigation stage was
substantially justified. Stillwell, 6 Vet.App. at 302. In determining whether the Secretary was
substantially justified in taking a position that was ultimately rejected by the Court, the Court must

                                                   4
consider whether the case was one of first impression. See Felton v. Brown, 7 Vet.App. 276, 281
(1994). Arguments presented in a case of first impression are more likely to be considered
substantially justified than those where the Court has determined that the Secretary ignored existing
law. Stillwell, supra. Moreover, "'[t]he government's failure to prevail does not raise a presumption
that its position was not substantially justified.'" Felton, 7 Vet.App. at 280 (quoting Kali v. Bowen,
854 F.2d 329, 332 (9th Cir. 1988)). However, even in a case of first impression, the Court must
determine whether the Secretary's position was substantially justified given the totality of the
circumstances. See Felton and Stillwell, both supra. The Court also must determine whether the
issue presented was "close" or whether the Secretary simply sought an unreasonable interpretation
or resolution of the matter. See Felton, 7 Vet.App. at 282.
        In this matter, the Court finds that, based on the totality of the circumstances and in a case
of first impression, the Secretary's position during litigation was reasonable. This case was the first
to address whether section 5121 permitted a surviving spouse to collect benefits awarded but unpaid
to a veteran prior to his death, and the Court found the precedential value of the issue sufficient to
warrant a panel opinion. See Frankel v. Derwinski, 1 Vet.App. 23, 25 (1990) ("Whether a decision
warrants an opinion of the Court or whether it should be summarily decided by order is, to a great
extent, a function of its precedential value."). In addition, the Court found supplemental briefing and
an oral argument necessary to address the arguments raised by the parties. See Felton, 7 Vet.App.
at 282 ("In the case at bar . . . there is no spoken basis in the underlying decision on the merits or in
our jurisprudence in general to refute the reasonableness of the Secretary's position in this case.").
The fact that the Court ultimately found the interpretation advanced by the Secretary unpersuasive
does not detract from the reasonableness of the Secretary's position. In addition, "'the EAJA
redresses governmental abuse, it was never intended to chill the government's right to litigate or to
subject the public fisc to added risk of loss when the government chooses to litigate reasonably
substantiated positions, whether or not the position later turns out to be wrong.'" Carpenter v. West,
12 Vet.App. 316, 321 (1999) (quoting Roanoke River Basin Ass'n v. Hudson, 991 F.2d 132, 139 (4th
Cir. 1993)).
        The appellant argues that the Secretary's position was not substantially justified because the
Secretary did not "perform the statutory analysis mandated by Brown v. Gardner, 513 U.S. 115

                                                   5
(1994)." EAJA Application at 4. The appellant urges the Court to accept the proposition that "a
legal position that omits any mention of the controlling precedent solely relied upon by the Court to
dispose of the matter at bar cannot, as a matter of law, be substantially justified." Id. However, this
proposition conflicts with the longstanding requirement that the Court look at the totality of the
circumstances surrounding the Secretary's position during litigation. See Stillwell, 6 Vet.App. at 302;
see also Dillon v. Brown, 8 Vet.App. 165, 168 (1995); Carpenito v. Brown, 7 Vet.App. 534, 537
(1995). The Court has considered the additional arguments raised by the appellant with respect to
the justification of the Secretary's position and finds them to be without merit. Because the Court
finds the position of the Secretary substantially justified, the Court need not address the Secretary's
argument as to the reasonableness of the fees sought.

                                        III. CONCLUSION
        On the basis of the foregoing analysis and the parties' pleadings, the Court, having held that
the Secretary was substantially justified in both his administrative and litigation positions, denies the
appellant's March 12, 2003, EAJA application.
        APPLICATION DENIED.

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