Viamedia, Inc. v. WideOpenWest Finance, LLC

Filing 25

ORDER re: 16 Proposed Order to Show Cause With Emergency Relief filed by Viamedia, Inc., 19 Memorandum of Law in Support filed by Viamedia, Inc.. Accordingly, it is hereby ORDERED that plaintiff Viamedia, Inc.'s motion for a temporary restraining order and preliminary injunction (Dkt. Nos. 16 and 19) is DENIED. SO ORDERED. (Signed by Judge Victor Marrero on 6/22/2020) (kv)

USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#: - - - - - - DATEFILED:

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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VIAMEDIA, INC.,
:
:
Plaintiff,
:
:
- against :
:
WIDEOPENWEST FINANCE, LLC,
:
:
Defendant.
:
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20 Civ. 4064 (VM)
ORDER

VICTOR MARRERO, United States District Judge.
Plaintiff
preliminary
enjoining

Viamedia,

injunction

Inc.
and

defendant

(“WideOpenWest”)
“Agreement”1)

from

with

(“Viamedia”)

temporary

Viamedia

pending

for

restraining

WideOpenWest
terminating

moves

order

Finance,

its

LLC

agreement

arbitration

a

of

(the
the

parties’ disputes. (See “Proposed Order,” Dkt. No. 16; “MOL,”
Dkt. No. 19; “Warshauer Decl.,” Dkt. No. 17; “Liberman Decl.,”
Dkt.

No.

Viamedia

18.)
filed

Along
an

with

its

amended

injunctive
complaint.

relief
(See

papers,
“Amended

Complaint,” Dkt. No. 20.)2
The Court previously denied Viamedia’s motion for a
preliminary injunction and temporary restraining order on the
basis that Viamedia had not demonstrated irreparable harm.

1

Dkt. No. 6, Ex. 1 (Advertising Availability Purchase and Sale Agreement).
Viamedia also filed a motion to appoint an arbitrator. WideOpenWest
indicated that it will choose an arbitrator shortly, and Viamedia has now
withdrawn its petition. (See Dkt. No. 24.)

2

1

(See “May 27 Order,” Dkt. No. 11, at 2.) Viamedia argues now
that injunctive relief is warranted due to four significant
intervening

developments,

and

that

these

developments

demonstrate that Viamedia will suffer irreparable harm absent
the

requested

relief:

first,

WideOpenWest

has

emailed

Viamedia’s customers notifying them that WideOpenWest has
terminated its Agreement with Viamedia; second, Viamedia’s
investment

bank

informed

Viamedia

that

any

potential

investment interest will evaporate unless the termination of
the Agreement is enjoined; third, WideOpenWest has taken
steps to transition services from Viamedia to a competitor,
Charter Communications, Inc. (“Charter”); and fourth, due to
WideOpenWest’s

conduct,

Viamedia

is

at

risk

of

losing

employees. Viamedia argues that that these developments will
cause irreparable harm in the form of damage to Viamedia’s
reputation, loss of prospective investors, and loss of key
employees. (MOL at 7-9.)
WideOpenWest responded by letter to Viamedia’s filings.
(See “WideOpenWest Letter,” Dkt. No. 21.) WideOpenWest argues
that injunctive relief is not warranted. First, WideOpenWest
points out that, contrary to the rules of this Court, Viamedia
did not provide notice to WideOpenWest before seeking relief.
Second,

WideOpenWest

argues

that

the

new

developments

discussed by Viamedia do not demonstrate irreparable harm,
2

because the alleged injuries are either economic in nature or
reputational and insufficient to warrant injunctive relief.
Furthermore, WideOpenWest argues that Viamedia will have the
opportunity to redress these issues in arbitration.
Viamedia responded by letter. (See “Viamedia Letter,”
Dkt. No. 22.) Viamedia contends, first, that no notice was
required

before

extraordinary
WideOpenWest

seeking

ex

circumstances
contacted

parte
it

relief

faced,

Viamedia’s

due

to

namely,

customers

the
that

directly.

Viamedia also argues that since counsel for WideOpenWest has
entered an appearance, WideOpenWest thereby had notice and an
opportunity to be heard.
The Court will deny the motion for injunctive relief
because the new developments raised by Viamedia still do not
demonstrate

irreparable

harm

that

cannot

be

redressed

monetarily. As the Court noted in its May 27 Order, “[t]he
showing

of

irreparable

harm

is

perhaps

the

single

most

important prerequisite for the issuance of a preliminary
injunction.” Kamerling v. Massanari, 295 F.3d 206, 214 (2d
Cir. 2002) (internal quotation marks and alteration omitted).
While Viamedia points to four new developments since the
Court’s

May

27

Order,

the

Court

concludes

that

these

developments do not demonstrate that injunctive relief is
justified.
3

First, Viamedia points to WideOpenWest’s termination of
Viamedia’s

services

and

email

notification

of

this

termination to Viamedia’s customers. Viamedia argues that
even if the arbitrator reinstates the Agreement, Viamedia’s
inability
dispute

to
is

sell
in

advertising

arbitration

availabilities
would

while

“irreparably

the

damage

Viamedia’s reputation as a dependable business partner.” (MOL
at 8.) The Court is not persuaded. In Rex Medical LP v.
Angiotech Pharmaceuticals (US) Inc., 754 F. Supp. 2d 616
(S.D.N.Y. 2010), relied upon by Viamedia, the plaintiff’s
market would have been “off the market entirely -- no doubt
leading its customers to purchase a competing product and
perhaps resulting in a permanent loss of business.” 754 F.
Supp. 2d at 622. There, the plaintiff was at risk of losing
90 percent of its business. Id. at 622-23. Here, by contrast,
Viamedia’s own papers demonstrate that WideOpenWest accounts
for “more than 12 percent of Viamedia’s advertising revenue.”
(Dkt. No. 6, ¶ 57.) Even if WideOpenWest is “Viamedia’s
largest inventory supplier” (MOL at 9), Viamedia has not
attempted to explain why any reputational damage relating to
its contract with WideOpenWest would have so outsized an
impact on its entire business as to justify injunctive relief.
Indeed, as the Rex Medical court noted, “cases where courts
have found irreparable harm from a loss of goodwill or
4

business relationships have involved situations where the
dispute between the parties leaves one party unable to provide
its

product

to

its

customers.”

754

F.

Supp.

2d

at

621

(emphasis added); see also John B. Hull, Inc. v. Waterbury
Petroleum Prods., Inc., 588 F.2d 24, 29 (2d Cir. 1978)
(irreparable injury shown when “plaintiff is deprived totally
of the opportunity to sell an entire line of merchandise and
may incur injury to its goodwill and reputation” (emphasis
added)). Viamedia has not demonstrated a risk that it will be
totally unable to provide its product.
Viamedia

also

argues

that

the

manner

in

which

WideOpenWest delivered this news caused irreparable harm to
Viamedia’s

reputation.

unfortunate

as

it

may

As

an

be,

initial

the

Court

matter,
can

and

hardly

as
undo

WideOpenWest’s email. Nevertheless, the Court is persuaded
that any resulting harm could be addressed and remediated in
arbitration and through monetary damages. For this reason,
and as discussed in the May 27 Order, conclusory statements
regarding

loss

of

reputation

are

insufficient.

Viamedia

states that because WideOpenWest is its largest customer,
Viamedia’s existing and future business partners will be
reluctant

to

reputational

reengage
harm

will

with
not

Viamedia,
be

limited

and
to

that

the

WideOpenWest

markets. But as Viamedia notes, even if WideOpenWest is taking
5

steps to pursue a relationship with Charter, arbitration may
order

equitable

relief

and

reinstate

the

Agreement,

and

Viamedia has relationships with 60 other multichannel video
programming distributors (“MVPDs”). (Lieberman Decl. ¶ 11.)
Conclusory statements regarding reputational impact outside
of

WideOpenWest

markets

are

insufficient

to

support

the

drastic relief of a TRO.
Second,

Viamedia

points

to

the

loss

of

potential

investors as an irreparable harm. In North American Soccer
League, LLC v. United States Soccer Federation, Inc., 296 F.
Supp. 3d 442, 459 (E.D.N.Y. 2017), relied upon by Viamedia,
the plaintiff submitted six letters of intent from potential
investors that supported the plaintiff’s position; here,
Viamedia brings evidence of discussions with two investors,
and while it is unclear why one was not fruitful, the other
(a

large

investment

fund)

declined

to

invest

based

on

WideOpenWest’s notice of termination. (Warshauer Decl. ¶¶ 5,
8.) The managing director of the investment bank has submitted
a sworn affidavit indicating that the “interest of all other
prospective investors is largely contingent” on the parties’
continued contractual relationship. (Warshauer Decl. ¶ 9.)
The Court notes that “largely contingent” leaves a certain
amount of room for doubt. Investors may well be just as
hesitant to invest in Viamedia even if it prevailed here,
6

such that a TRO could prove to be a Pyrrhic victory. Thus, it
is not clear what remedial effect injunctive relief could
have

on

the

willingness

of

such

investors

to

commit.

Furthermore, as noted above, arbitration could result in
equitable relief and the reinstatement of the Agreement, in
which case Viamedia might be able to regain the interest of
these investors. Finally, this alleged harm is essentially an
economic one, even if more difficult to quantify than other
economic harms. (MOL at 8-9.) In short, the loss of potential
investors does not justify injunctive relief. See Brenntag
Int’l Chems., Inc. v. Bank of India, 175 F.3d 245, 249 (2d
Cir. 1999).
Last,

Viamedia

argues

that

the

termination

of

the

Agreement will result in the loss of key employees in the
field and in its operations center in Kentucky. The Court
finds this argument to be based on conclusory allegations.
Viamedia states that (1) its operations center staff “have a
particular technical expertise which is not easily found or
replaced,” (2) if the Agreement is terminated, Viamedia would
“be required to lay off a significant number of [these]
operation[s] center employees” in order to offset costs, (3)
these staff would then be permanently lost to Viamedia, and
(4)

it

would

be

“very

difficult”

to

hire

and

retrain

replacement employees. (Warshauer Decl. ¶¶ 8-10; MOL at 97

10.) Viamedia offers no particularized factual support for
these arguments. It is not clear to the Court why Viamedia
would have to lay off operations center staff in particular.
Nor is the Court moved by the fact that it would be difficult
to train replacements. To be sure, it is painful to have to
lay off even one employee, but the Court is not persuaded
that injunctive relief is merited in order to prevent Viamedia
from taking such action.
Because

Viamedia

has

not

demonstrated

that

it

will

suffer irreparable harm, the Court need not consider the other
elements of injunctive relief.
Accordingly, it is hereby
ORDERED that plaintiff Viamedia, Inc.’s motion for a
temporary restraining order and preliminary injunction (Dkt.
Nos. 16 and 19) is DENIED.

SO ORDERED.

Dated: New York, New York
22 June 2020

~

__ ___ __________________
________________
_____
__ _
_________________________
VICTOR MARRERO
ICT
CTOR ARRE
RERO
VICTOR MARRERO
U.S.D.D.
.S.D. J.
U.S.D.J.J .
U. S .J.

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