Topsteptrader, LLC v. OneUp Trader, LLC

Filing 17

MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 6/28/2017:Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

TOPSTEPTRADER, LLC,
Plaintiff,
Case No.

17 C 4412

v.
Judge Harry D. Leinenweber
ONEUP TRADER, LLC,
Defendant.

MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff TopstepTrader, LLC’s Motion
for

a

Temporary

Restraining

Order

to

enjoin

Defendant

OneUp

Trader, LLC from continuing to operate its website and business.
[ECF No. 7].

Primarily because TopstepTrader has not carried

its burden to show a likelihood of success on the merits of its
case, the Court denies the Motion.
I.

BACKGROUND

Plaintiff TopstepTrader, LLC (“TopstepTrader”) filed this
two-count

lawsuit,

alleging

that

Defendant

OneUp

Trader,

LLC

(“OneUp Trader”) infringed its copyright and breached a contract
obliging OneUp Trader not to compete with TopstepTrader.

In its

Complaint, TopstepTrader pleads that OneUp Trader accessed its
website,

copied

its

copyrighted

content,

materials to start a competing business.

and

then

used

the

TopstepTrader further

alleges that by accessing its site – and possibly signing up for
an account – OneUp Trader has agreed not to “[use] the Sites or
Services to gain competitive intelligence about TopstepTrader or
the

Sites

or

affiliates.”

Services

to

compete

with

TopstepTrader

ECF No. 1 (Compl.) ¶ 24 & Ex. B ¶ 22.

or

its

More still,

OneUp Trader has agreed that “breach of the provisions of this
Agreement would cause irreparable harm and significant injury to
TopstepTrader which would be both difficult to ascertain and
which would not be compensable by damages alone.”

Compl. ¶ 25

and Ex. B ¶ 23.
TopstepTrader
(“TRO”)

ten

moved

(10)

days

for
after

a

temporary

filing

the

restraining
lawsuit.

order
At

the

company’s request, the Court held a hearing on the Motion less
than

a

week

thereafter.

The

discovery has taken place.
at

the

hearing

TopstepTrader,

was

which

business

record

parties;

and

timeframe

means

that

no

As such, the only evidence presented
information

included

purporting

the

short

the

readily

to

testimony

show

public-facing

a

available
of

contract

portion

of

its

CEO;

between

OneUp

to
a
the

Trader’s

website, or those pages from the site that do not require a user
to create an account or pay a fee to access.

The dearth of

evidence makes the already heavy burden that TopstepTrader faces

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even more difficult to meet.

Indeed, TopstepTrader did not meet

it.
II.
As
issuance

TopstepTrader
of

injunction.

a

TRO

ANALYSIS

correctly

is

the

noted,

same

as

the

that

standard
for

a

for

an

preliminary

See, Kaczmarski v. Wheaton Cmty. Unit Sch. Dist.

#200, No. 04-C-2976, 2004 U.S. Dist. LEXIS 7823, at *10 (N.D.
Ill. May 3, 2004).
following:

This means that TopstepTrader must show the

“(1) its case has some likelihood of success on the

merits; (2) that no adequate remedy at law exists; and (3) it
will suffer irreparable harm if the injunction is not granted.”
Ty, Inc. v. Jones Grp. Inc., 237 F.3d 891, 895 (7th Cir. 2001).
Even

where

conditions

the
have

Court
been

is

met,

satisfied
it

will

that

issue

a

these
TRO

threshold

only

if,

in

weighing the irreparable harm TopstepTrader will suffer if the
TRO is denied against the irreparable harm to OneUp Trader if
the relief is granted, the Court is convinced that the balance
of equities calls for such relief.

See, id.

Here, the Court finds that TopstepTrader has failed to show
that this balance swings in its favor.

Before delving into the

analysis, however, the Court pauses to note that in making this
determination,

it

considers

only

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TopstepTrader’s

breach

of

contract

claim,

and

not

the

copyright

infringement

cause

of

action.
A.

Copyright Infringement

TopstepTrader has waived its copyright infringement claim
for the purposes of the TRO.
the

Court,

claim

.

.

TopstepTrader
.

is

still

In its initial appearance before

stated
pending

that
and

although
whatnot[,]

actually on the breach of the contract.”
June 22, 2017) at 9:22-10:9.

“the

copyright

[t]he

TRO

is

ECF No. 13 (Hr’g Tr.

On the day of the TRO hearing, the

company again represented that, “[w]hat we’re pursuing for this
TRO is the contract.”

TRO Hr’g Tr. (June 26, 2017) at 42:16.

Although TopstepTrader continued to accuse OneUp Trader of
copying its content, such arguments were made in pursuit of the
breach of contract claim.
limited

to

showing

that

TopstepTrader’s

website

service

compete.

not

to

The relevance of any copying was
OneUp

and

Trader

thereby

See,

e.g.,

must

agreed
TRO

have

accessed

to

its

terms

Hr’g

Tr.

at

of

9:5-7

(citing Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167, 1171
(7th Cir. 1997) to make the point that “access can be . . .
confirmed when two works are so similar to each other that one
cannot help but realize they must have accessed the accounts and
the content because they’re such straight copies”); 39:6-11 (“So
when content is copied, particularly in a scenario like this,
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copied heavily, . . . that does show access, your Honor.”);
40:6-41:9 (“And to this day, they still have copied content.
This is unavoidable and clear access.

You can’t come up with

some of these words, particularly words that were made up by our
client.”);

99:5-15

(“[T]hey

obviously

had

access

because

you

can’t, you know, figure out the same exact words that were made
up.”); 185:5-8 (“[A]ll we can see is a copy but again, courts
say, if you copy and there’s substantial similarity, access is
presumed.”).
Given the express and unambiguous waiver of the copyright
infringement

claim

for

the

purposes

of

this

TRO,

the

Court

discusses that cause of action no further.
B.

Breach of Contract

TopstepTrader therefore is left with its breach of contract
claim.

This claim cannot sustain the company’s Motion for a TRO

for three reasons:

(1) TopstepTrader has not shown that it is

likely to succeed in proving that an enforceable contract exists
between it and OneUp Trader such that OneUp Trader could have
breached a contract; (2) even if OneUp Trader had breached a
contract, the breach has not been shown to cause TopstepTrader
irreparable harm; and (3) any irreparable harm to OneUp Trader
is outweighed by the irreparable harm to TopstepTrader of having

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its

business

shut

down.

The

Court

discusses

each

of

these

points below.
1.

Enforceable Contract

Even before the Court reaches the issue of whether there is
likely

an

enforceable

contract,

it

notes

that

whether

any

contract exists at all between TopstepTrader and OneUp Trader is
a matter heavily disputed.
introduced
Alsabah

into

evidence

(“Alsabah”),

now

During the hearing, TopstepTrader
a

document

one

of

two

showing
owners

of

that

a

OneUp

Sattam
Trader,

created an account with TopstepTrader on September 13, 2015.
Alsabah’s account with TopstepTrader is crucial for the latter’s
contract claim because when users sign up for accounts with the
company, they have to click on a box that reads “Please accept
Terms of Use” where the words “Terms of Use” are hyperlinked to
a

web

page

containing

the

actual

terms.

Alsabah

presumably

clicked on that box in 2015, and in so doing, he entered into
what is called a clickwrap agreement with TopstepTrader.

See,

Sgouros v. TransUnion Corp., No. 14 C 1850, 2015 U.S. Dist.
LEXIS 13691, at *11 (N.D. Ill. Feb. 5, 2015) (“A ‘clickwrap’
agreement

is

formed

when

website

users

click

a

button

that

indicates that users ‘agree or accept’ to terms of an agreement
upon viewing its terms posted on the website.”) (citing Nguyen
v. Barnes & Noble, 763 F.3d 1171, 1175-76 (9th Cir. 2014)).
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Alsabah’s
usually

click,

enforce

a

in

turn,

clickwrap

is

important

agreement.”

because

Sgouros,

“courts

2015

U.S.

Dist. LEXIS 13691 at *11 (“[C]ourts usually enforce a clickwrap
agreement because it requires users to take affirmative action
to manifest assent by clicking a button or a checkbox which
accompanies a statement instructing users that their click would
constitute their assent to the terms at issue.”) (collecting
cases).

Without

this

click,

all

TopStepTrader

has

is

a

“browsewrap” agreement that inheres in OneUp Trader’s access of
its website.
Co.,

795

See, Van Tassell v. United Mktg. Grp., Ltd. Liab.

F.Supp.2d

770,

790

(N.D.

Ill.

2011)

(“[B]rowsewrap

agreements do not require the user to manifest assent to the
terms

and

conditions

expressly

—

the

user

need

not

document or click an ‘accept’ or ‘I agree’ button.

sign

a

Instead,

browsewrap agreements typically involve a situation where notice
on a website conditions use of the site upon compliance with
certain terms or conditions, which may be included on the same
page as the notice or accessible via a hyperlink.”) (internal
citation

and

quotation

marks

omitted).

Unlike

clickwrap

agreements, “the enforceability of browsewrap agreements depends
upon

whether

there

is

evidence

that

the

constructive notice of the site’s terms.”

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user

has

actual

or

Abdul Mohammed v.

Uber Techs., Inc., No. 16 C 2537, 2017 U.S. Dist. LEXIS 20274,
at *19 n.8 (N.D. Ill. Feb. 14, 2017).
Relying on such a browsewrap agreement is problematic for
TopstepTrader.

To show the enforceability of this particular

browsewrap agreement, TopstepTrader would have to show that its
hyperlinked

“Terms

of

Service,”

placed

at

the

bottom

of

the

website in rather tiny font, put OneUp Trader on notice that it
was assenting to those terms by accessing the website.

This is

too much to ask of an inconspicuous and “submerged” hyperlink.
See, Specht v. Netscape Communs. Corp., 306 F.3d 17, 32 (2d Cir.
2002)

(Sotomayor,

J.)

(“[A]

reference

to

the

existence

of

license terms on a submerged screen is not sufficient to place
consumers on inquiry or constructive notice of those terms.”).
This means that TopstepTrader has to rely on the contract
created with Alsabah’s click.
comes

with

plausible

its
that

own

set

OneUp

of

This purported contract, however,
problems.

Trader

First,

breached

for

Alsabah’s

it

to

be

contract,

TopstepTrader at least needs to establish that Alsabah’s action
in 2015 could bind OneUp Trader in 2017.

In addition, the

company needs to show the exact contract terms to which Alsabah
agreed

so

that

the

Court

may

likely violated those terms.

determine

whether

OneUp

Trader

While TopstepTrader made a nod

towards such showings, the Court finds itself having to accept
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the company’s words at face value more often than it would like.
For instance, although TopstepTrader represented to the Court
that the 2015 Terms of Use, at least in the relevant parts, are
identical to the Terms of Use found on TopstepTrader’s website
today, TopstepTrader did not actually introduce the 2015 terms
into evidence, despite the fact that the document undoubtedly
exists and is within the company’s possession.
Even if the Court is willing to overlook such problems, a
third

obstacle

remains.

On

its

face,

the

provision

that

TopstepTrader wants to enforce against OneUp Trader is a broad
non-compete covenant.
from

“[u]sing

the

The key provision forbids OneUp Trader
Sites

or

Services

to

gain

competitive

intelligence about TopstepTrader or the Sites or Services to
compete

with

TopstepTrader

or

(Compl.) ¶ 24 & Ex. B ¶ 22.
geographic

or

temporal

its

affiliates.”

ECF

No.

1

The provision is thus without any

limit

on

OneUp

Trader’s

compete with TopstepTrader (or its affiliates).

ability

to

Under Illinois

law, such a restrictive covenant is likely against public policy
and so unenforceable.

See, Liautaud v. Liautaud, 221 F.3d 981,

987-88 (7th Cir. 2000) (stating both that “[g]enerally, in a
covenant

not

to

compete,

the

agreement

restricts

competition

within a certain town or city or within a defined radius from
the promisee’s own business” and “Illinois courts generally have
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refused to enforce noncompetition agreements that do not limit
the duration of the restriction”).
Nor is the provision saved by the clause stipulating that
OneUp

Trader

may

not

compete

only

when

intelligence” gained from TopstepTrader.
least

for

complaining

the

purposes

about

the

of

this

content

TRO,

from

its

it

uses

“competitive

This is because, at
TopstepTrader
public-facing

is

only

website

that OneUp Trader allegedly pilfered and is now displaying on
its own public-facing website.

See, TRO Hr’g Tr. at 116:7-122:8

(testimony

CEO

by

TopstepTrader’s

that

“in

terms

of

public-

facing sites, there’s drastic similarities,” and admitting that
the similarities consist of things like “[t]he permitted rules
and profit targets and evaluation [that] is readily available on
our

public

site”).

As

such,

the

“competitive

intelligence”

referred to in the terms of use amounts to no more than publicly
available information for which one did not need to agree to any
contract to access.

See, id. at 126:2-128:15 (“Q:

And then

‘the funded account,’ we get to step three. I’ve got the rules
here as well . . . it has the rules for this stage, and I still
don’t have any requests to sign the terms of use, correct?
Correct.”).

A:

But a covenant restricting the use of such widely

disseminated,

freely

available

unenforceable.

See, Curtis 1000 v. Suess, 24 F.3d 941, 944 (7th
- 10 -

information

is

likely

Cir. 1994) (“The common law of Illinois requires that a covenant
not to compete, to be enforceable, [must] secure a ‘protectable
interest’ of the employer, such as a trade secret.”) (internal
citation omitted); Liautaud, 221 F.3d at 986 (“Under Illinois
law, a ‘naked’ promise by one merchant not to compete against
another merchant is against public policy because it injures the
public and the promisor, while at the same time it serves no
protectible interest of the promisee.”) (internal alteration and
quotation marks omitted).
In
seeks

sum,

to

the

enforce

terms
are

of

the

likely

agreement

void.

which

Without

TopstepTrader

an

enforceable

contract, no breach is possible, and TopstepTrader is unlikely
to prevail on the merits of its contract claim.
2.

Irreparable Harm

TopstepTrader’s request for a TRO is further defeated by
its failure to show irreparable harm proximately caused by the
wrong

alleged.

Simply

put,

because

the

injury

that

TopstepTrader complains of stems from OneUp Trader’s use of its
publicly available information, the injury is disconnected from
any breach of contract and so cannot be the basis for awarding a
TRO.
As discussed previously, the “business intelligence” that
OneUp Trader allegedly pilfered and is now using on its site
- 11 -

consists

of

publicly

information

available

that

TopstepTrader

actively disseminates to attract users to its service.

See,

supra, Section II.B.1; see also, TRO Hr’g Tr. at 139:16-149:25.
Since OneUp Trader did not need to agree to any contract to
glean

this

information,

information,

the

it

company

cannot
is

be

that

breaching

irreparably harming TopstepTrader.

by

the

using

the

contract

and

While TopstepTrader bemoans

the fact that OneUp Trader is able to undercut its price by
copying its business model, it has yet to show what OneUp Trader
would

not

have

TopstepTrader’s

been
public

able

to

copy

website,

its

by

simply

YouTube

looking

videos,

or

at

other

marketing materials.
In short, the sole harm TopstepTrader has identified is
harm

from

competition

enabled

by

the

very

TopstepTrader puts into the marketplace.

information

that

Such an injury cannot

support the issuance of temporary injunctive relief.

See, e.g.,

Binney & Smith Inc. v. Rose Art Indus., No. 94 C 6882, 1995 U.S.
Dist. LEXIS 2602, at *42 (N.D. Ill. Mar. 2, 1995) (“[Plaintiff]
Binney & Smith may experience irreparable harm from competition,
but

the

legitimate

Court

should

competition

not

use

until

an

there

infringement and irreparable harm.”).

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injunction
is

a

to

preclude

determination

of

Of course, all that is said so far does not rule out the
possibility that OneUp Trader is somewhere, somehow, making use
of information that is available only to those who signed a
contract with TopstepTrader.

It only means that TopstepTrader

has not presented any such evidence.

Until it does, the company

may only pursue its claims for damages, regardless of whether
the parties may have agreed otherwise.

See, New Sunshine LLC v.

Gallagher, No. 1:15-cv-825-WTL-DML, 2015 U.S. Dist. LEXIS 72225,
at *3 (S.D. Ind. June 4, 2015) (“Courts characteristically hold
that such stipulations [that a defendant’s breach irreparably
harms the plaintiff] alone are insufficient to support a finding
of

irreparable

harm

and

an

award

of

injunctive

relief.”)

(internal alteration and quotation marks omitted).
3.
Because

the

Court

Balance of Harms
finds

that

TopstepTrader

has

shown

neither a likelihood of success on the merits nor irreparable
harm, it need not go further in the analysis.

See, Girl Scouts

of Manitou Council, Inc. v. Girl Scouts of the United States of
Am. Inc., 549 F.3d 1079, 1086 (7th Cir. 2008) (“If the court
determines that the moving party has failed to demonstrate any
one

of

these

injunction.”).

three

threshold

requirements,

it

must

deny

the

The Court nonetheless makes two brief points to

address the balance of harms between the sides – if only so that
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the parties may have guidance should TopstepTrader decide to
move for a preliminary injunction at a future time.
First, the Court notes that the balance of harm needs to
weigh heavily in TopstepTrader’s favor for the Court to give it
the relief it seeks.

This is because, at least on the evidence

presented so far, TopstepTrader’s chances of success look slim.
See, Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380,
387-88 (7th Cir. 1984) (“The more likely the plaintiff is to
win, the less heavily need the balance of harms weigh in his
favor; the less likely he is to win, the more need it weigh in
his favor.”).

Second, because the relief the company seeks is

the complete shutdown of OneUp Trader’s business – a serious
harm indeed should the Court grant the request – TopstepTrader
must adduce something more than speculation about the injuries
that

it

has

suffered,

continues

suffer because of OneUp Trader.

to

suffer,

or

is

likely

to

At the hearing, TopstepTrader

could not identify even a single customer that it has lost to
OneUp Trader; nor could it point to any evidence suggesting a
loss of goodwill or erosion in its reputation because of the
alleged copycat coming on to the scene.
166:8-17.

See, TRO Hr’g Tr. at

While the Court does not demand proof of particular

injuries, see, Hess Newmark Owens Wolf, Inc. v. Owens, 415 F.3d
630, 632-33 (7th Cir. 2005), it must weigh whatever evidence
- 14 -

TopstepTrader brings to show injury against the concrete harm to
OneUp Trader of having its business shut down.

On the evidence

before

of

it,

the

Court

finds

that

the

balance

equities

is

inadequate to support issuance of a TRO.
III.

CONCLUSION

For the reasons stated herein, TopstepTrader’s Motion for a
Temporary Restraining Order [ECF No. 7] is denied.
the

Court

expresses

no

opinion

on

the

In so doing,

ultimate

merits

of

TopstepTrader’s case but merely finds that the company has not
met the burden to warrant the grant of the extraordinary remedy
of temporary injunctive relief.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated: June 28, 2017

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