Security Alarm Financing Enterprises, L.P. v. Alarm Protection Technology, LLC et al

Filing 100

ORDER: re Preliminary Injunction 53 . Signed by Judge Sharon L. Gleason on 06/01/2015. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
SECURITY ALARM FINANCING
ENTERPRISES, L.P., a California Limited
Partnership,
Plaintiff and Cross-Defendant,
v.
ALARM PROTECTION TECHNOLOGY,
LLC, a Utah Limited Liability Company;
ALARM PROTECTION TECHNOLOGY
ALASKA, LLC, a Utah Limited Liability
Company; and ALARM PROTECTION
ALASKA, LLC, a Utah Limited Liability
Company,

Case No. 3:13-cv-00102-SLG

Defendants and Cross-Claimants.

ORDER RE PRELIMINARY INJUNCTION
At Docket 53 is Security Alarm Financing Enterprises’s (“SAFE”) Motion for
Preliminary Injunction against Defendants (“APT”). The motion has been fully briefed and
oral argument was held on April 27, 2015. For the reasons set forth below, the motion
will be denied.
BACKGROUND
The facts as alleged by SAFE are as follows: SAFE is in the business of selling,
installing, servicing, and monitoring residential and commercial security alarm systems
throughout the United States and Canada. 1 SAFE’s primary means of acquiring new
customers is by purchasing customer accounts from other security alarm companies. In

1

Docket 1 (Compl.) at 2.

February 2013, SAFE purchased more than 34,000 monitoring accounts from three alarm
companies known collectively as Pinnacle. 1,300 of those accounts were for customers
in Alaska. Those 1,300 purchased accounts are SAFE’s only Alaskan accounts. 2
SAFE alleges that it historically experiences a 12% annualized account attrition
rate, but that the attrition rate on its Alaska accounts has been significantly higher. SAFE
observed that numerous Alaska customers requested cancelation using 3 x 5 cards or 8
½ x 11 handwritten notes containing identical handwriting.

SAFE investigated the

account cancelations and alleges that APT has been inducing its Alaskan customers to
cancel their contracts with SAFE and establish service through APT using deceptive
business practices that SAFE maintains violate state and federal laws. SAFE also alleges
that APT has intentionally interfered with SAFE’s contracts and that it has defamed
SAFE. 3
In its motion, SAFE maintains that the Alaskan monitoring contracts it acquired
were all substantially similar in that they obligated the customer to pay a monthly
monitoring fee for a set period of time. If the customer canceled the contract prior to the
expiration of that time period, the customer was obligated to pay a sliding cancelation
fee. 4

SAFE asserts that APT hired former Pinnacle salespersons to solicit former

Pinnacle customers to cancel their contracts with SAFE and instead obtain security
services from APT. SAFE asserts that APT salespersons use four deceptive tactics to

2

Id. at 4; compare Docket 56 (Brief) at 6 (asserting 1,800 Alaska alarm accounts acquired).

3

Id. at 6–13 (alleging a 90% cancelation rate as of May 31, 2014); compare Docket 56 (Brief) at
10 (asserting a cancelation rate of 60% as of December 2014).
4

Docket 56 (Brief) at 7.

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persuade SAFE customers to switch to APT: (1) APT “pre-tickets” by inserting an inflated
price in its pre-printed contracts and then offering prospective customers a lower “deal”
price; (2) APT misrepresents that it is a local Alaskan company; (3) APT offers to pay the
customer’s cancelation fee; and (4) APT misrepresents to SAFE customers that APT is
“taking over” for SAFE as a new service provider on the existing alarm account. 5 SAFE
seeks an order enjoining APT from engaging in each of those activities while this case
moves forward, as well as an order preventing APT from selling any of its Alaska accounts
from former SAFE customers during the pendency of the case.

DISCUSSION
Plaintiffs seeking preliminary injunctive relief must establish that “(1) they are likely
to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of
preliminary relief; (3) the balance of equities tips in their favor; and (4) a preliminary
injunction is in the public interest.”6 “Under the ‘sliding scale’ approach to preliminary
injunctions observed in [the Ninth Circuit], ‘the elements of the preliminary injunction test
are balanced, so that a stronger showing of one element may offset a weaker showing of
another.’” 7 But in any event, even with the sliding scale approach, United States Supreme
Court precedent requires that “plaintiffs must establish that irreparable harm is likely, not

5

Docket 56 (Brief) at 8–10.

6

Sierra Forest Legacy v. Ray, 577 F.3d 1015, 1021 (9th Cir. 2009) (citing Winter v. Nat.
Resources Def. Council, Inc., 555 U.S. 7, 20 (2008)).
7

Pimentel v. Dreyfus, 670 F.3d 1096, 1105 (9th Cir. 2012). See also Alliance for the Wild Rockies
v. Cottrell, 632 F.3d 1127, 1131 (2011) (discussing post-Winter circuit split over continuing viability
of the sliding scale approach and joining the Seventh and Second Circuits in retaining it).
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just possible, in order to obtain a preliminary injunction.” 8 Injunctive relief is an equitable
remedy, and “[t]he essence of equity jurisdiction is the power of the court to fashion a
remedy depending upon the necessities of the particular case.”9
For harm to be irreparable so as to warrant equitable relief there must be no
adequate remedy at law. “[I]f plaintiff either can bring a legal action and seek damages
that will compensate him fully, or if plaintiff can assert his claim as a defense in some
other proceeding, the alternative remedy is adequate,”10 and equitable relief should be
denied.

“To establish a likelihood of irreparable harm, conclusory or speculative

allegations are not enough.” 11
SAFE asserts that it “has and will continue to lose customers and suffer damage
to its goodwill if APT’s deceptive practices are not stopped.”12 SAFE cites Stuhlburg Int’l
Sales Co. v. John D. Brush & Co. for support. In Stuhlburg, the Ninth Circuit applied the
pre-Winter standard for preliminary injunctive relief when it concluded that “[e]vidence of
threatened loss of prospective customers or goodwill certainly supports a finding of the
possibility of irreparable harm.”13 But post-Winter, a court must find that irreparable harm

8

Alliance for the Wild Rockies, 632 F.3d at 1131 (emphasis in original). In Winter, the Supreme
Court held that the possibility of injury is not enough; the movant must, at a minimum, demonstrate
the likelihood of irreparable injury in the absence of an injunction. Winter, 555 U.S. at 22.
9

Sierra Forest, 577 F.3d at 1022 (citing United States v. Odessa Union Warehouse Co-op, 833
F.2d 172, 175 (9th Cir. 1987)).
10

W RIGHT & MILLER § 2944.

11

Titaness Light Shop, LLC v. Sunlight Supply, Inc., 585 F. App’x 390, 391 (9th Cir. 2014)
(citing Herb Reed Enters., LLC v. Florida Ents. Mgmt., Inc., 736 F.3d 1239, 1250 (9th Cir.
2013)).

12

Docket 56 (Brief) at 22.

13

240 F.3d 832, 841 (9th Cir. 2001).

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is likely, not merely possible, to accord preliminary injunctive relief. Here, SAFE has failed
to meet that standard.
First, the extent of loss of current customers due to APT’s allegedly illegal actions
is both discoverable and quantifiable. Therefore, those losses are likely to be fully
compensable through money damages. Accordingly, SAFE’s alleged loss of customers
does not support a finding of a likelihood of irreparable harm. As to SAFE’s assertion that
it faces irreparable harm from loss of goodwill, SAFE is not in the business of selling new
security accounts to customers in Alaska but instead purchases contracts from other
security companies. It is therefore unclear how its business is likely to be damaged by a
loss of goodwill among consumers who are not already SAFE customers. 14 And, as noted
above, any loss of goodwill on the part of current SAFE customers that results in a
cessation of their business relationship with SAFE would appear to be a quantifiable loss
compensable through money damages. While the Ninth Circuit has recognized that
“intangible injuries, such as damage to ongoing recruitment efforts and goodwill, qualify
as irreparable harm,” the mere possibility of such harm does not equate to the likelihood
of irreparable harm required by Winter. 15 One of SAFE’s primary arguments for loss of

14

Cf. Oakland Tribune, Inc. v. Chronicle Pub. Co., Inc., 762 F.2d 1374, 1377 (9th Cir. 1985)
(upholding a district court’s finding of no irreparable harm where plaintiff failed to show that
harm to its goodwill and consequently business was the result of the activities it sought to
enjoin).

15

Rent-A-Center, Inc. v. Canyon Television and Appliance Rental, Inc., 944 F.2d 597, 603 (9th
Cir. 1991) (a pre-Winter case in which the Circuit upheld preliminary injunctive relief based on a
finding that there was a possibility of irreparable harm). In its Reply brief, SAFE also cites to a
Northern District of California case involving use of Facebook’s logo in emails, Facebook, Inc. v.
Power Ventures, Inc., 2013 WL 5372341 (N.D. Cal. 2013). But that case was before the Court
on a motion to reconsider a motion for summary judgment for Facebook and the award of
permanent injunctive relief, and the Court relied in part on the fact that the defendant had filed
for bankruptcy such that money damages would be inadequate. Likewise, the other case cited
in SAFE’s Reply also concerned a request for permanent injunctive relief after a jury trial in
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goodwill among non-customers is the potential effect of customer complaints on its Better
Business Bureau rating. But the Court finds that SAFE has not shown a sufficient
connection between APT’s alleged conduct, SAFE’s Better Business Bureau rating, and
detriment to SAFE’s business so as to warrant preliminary injunctive relief. Moreover,
loss of goodwill is not per se likely to cause an irreparable harm—indeed, goodwill is
routinely valued when businesses are bought and sold, and under Alaska law “[a]
defamed party may recover damages for harm to reputation, wounded feelings and
humiliation, . . . and estimated future damages of the same kind. 16 In fact, as APT notes
in its opposition to the motion, SAFE evidently placed a dollar value on each of its Alaska
accounts when it acquired them, as well as a liquidated damages amount if SAFE were
to lose one or more of the accounts it had purchased back to that competitor. 17 In short,
SAFE has not demonstrated that there is a likely loss of goodwill prior to trial that could
not be adequately compensated by a damages award if SAFE prevails on its claims.
Accordingly, the Court finds that on the current record SAFE has not demonstrated the
requisite likelihood of irreparable harm to support preliminary injunctive relief. 18

which the jury had awarded damages for the prior trademark infringement. See Skydive
Arizona, Inc., v. Quattrocchi, 2010 WL 1743189 (D. Ariz. 2010).
16

City of Fairbanks v. Rice, 20 P.3d 1097, 1107–08 (Alaska 2000).

17

See Docket 62 (Opp.) at 14–15.

18

SAFE has included a number of district court orders from other courts granting injunctions on
competitor activity while Lanham Act and state-law unfair trade practices claims move forward.
The only attached order with any substantive analysis of this issue applies the lower “threat of
irreparable harm” standard superseded by Winter. See ADT, LLC, v. Alarm Protection Tech.
Florida, LLC, et al., Case No. 12-80898-Civ-Ryskamp/Hopkins (S.D. Florida Oct. 15, 2012).
The remaining orders evidence the issuance of preliminary injunctions but do not include any
substantive analysis of the irreparable harm issue.
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SAFE also asserts that APT is seeking to sell former SAFE accounts and that
SAFE will suffer irreparable harm because APT is attempting “to rid itself of the disputed
assets and distance itself from using those assets to fund a final judgment.” 19 SAFE
seeks an injunction preventing APT from selling any customer account obtained in Alaska
and cites Johnson v. Couturier for support. There, the Ninth Circuit held that “[a] party
seeking an asset freeze must show a likelihood of dissipation of the claimed assets, or
other inability to recover monetary damages, if relief is not granted.” 20 Here, SAFE has
provided no indication that supports a finding that APT would likely be judgment-proof if
it sold all the accounts at issue here. 21 Accordingly, the limited asset freeze that SAFE
seeks at this time is not warranted.
CONCLUSION
SAFE has failed to demonstrate a likelihood of irreparable harm, which is a
prerequisite to preliminary injunctive relief. Accordingly, the Court does not reach the
other prerequisites for preliminary injunctive relief, and IT IS ORDERED that SAFE’s
Motion for Preliminary Injunction at Docket 53 is DENIED.
DATED at Anchorage, Alaska, this 1st day of June, 2015

/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

19

Docket 54 (Brief) at 23.

20

572 F.3d 1067, 1085 (9th Cir. 2009) (emphasis added).

21

SAFE cites to Takiguchi v. MRI Intern., Inc., 2014 WL 4664840 (D. Nev. Sept 18, 2014) for
support. There, the district court entered a preliminary injunction freezing the assets of
defendants in a class-action Ponzi-scheme suit upon evidence that the defendants were
dissipating or concealing assets that appeared likely to provide the only available relief for the
plaintiff class. Id. at *5–6. No comparable showing has been made here.
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