ASI BUSINESS SOLUTIONS, INC. v. OTSUKA AMERICA PHARMACEUTICAL, INC.
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 02/10/2017. 02/10/2017 ENTERED AND COPIES E-MAILED.(nds)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ASI BUSINESS SOLUTIONS, INC.,
OTSUKA AMERICA PHARMACEUTICAL,
M E M O R A N D U M
EDUARDO C. ROBRENO, J.
February 10, 2017
Before the Court is the plaintiff’s motion for a
preliminary injunction (ECF No. 3). This motion seeks to enjoin
the defendant from, among other things, using or disclosing the
plaintiff’s software, which the defendant had previously
licensed from the plaintiff. For the reasons that follow, the
Court will deny the motion for a preliminary injunction without
prejudice to the plaintiff proceeding on the underlying
complaint or seeking permanent injunctive relief, to the extent
any such relief is warranted.1
The standard for granting a preliminary injunction is
different from the standard for granting a permanent injunction.
See ACLU v. Black Horse Pike Reg’l Bd. of Educ., 84 F.3d 1471,
1477 (3d Cir. 1996) (contrasting “likelihood” of succeeding on
the merits with actually succeeding on the merits); see also
CIBA–GEIGY Corp. v. Bolar Pharm. Co., Inc., 747 F.2d 844, 850
(3d Cir. 1984) (“In deciding whether a permanent injunction
The plaintiff in this case is ASI Business Solutions,
Inc. (“Plaintiff” or “ASI”), a Pennsylvania corporation that
develops, licenses, and implements relationship management
software, and provides professional services related to such
software. Compl. ¶¶ 2, 6, ECF No. 1. The defendant is Otsuka
America Pharmaceutical, Inc. (“Defendant” or “Otsuka”), a
Maryland corporation with its principal place of business in
Princeton, New Jersey, that researches and develops clinical
healthcare products including new treatments and indications
focusing on neuroscience, oncology, hospital, and medical device
areas for diseases. Id. at ¶¶ 3, 12.
ASI claims that its various software products
constitute valuable trade secrets that ASI licenses to numerous
companies for millions of dollars per year. Id. at ¶ 9. ASI
takes extensive measures to protect this valuable software and
guard its confidentiality, including “licensing its software
only to those companies that agree to maintain the
confidentiality of ASI’s software, not to disclose ASI’s
software to third parties without ASI’s prior, written
permission, and to destroy or remove its software after the
termination of the license agreement.” Id. at ¶ 11.
should be issued, the court must determine if the plaintiff has
actually succeeded on the merits (i.e. met its burden of proof).
If so, the court must then consider the appropriate remedy.”).
On November 1, 2010, the parties entered into a Master
Subscription Agreement (the “Agreement”), under which ASI agreed
to license subscription services on a non-exclusive, right-touse basis at Otsuka’s identified facilities. Id. at ¶¶ 14, 16.
The Agreement allowed Otsuka to license ASI’s products and
services from January 1, 2012, to January 31, 2017. Id. at ¶ 21.
Pursuant to the Agreement, Otsuka installed ASI software on
numerous computers and devices accessible by Otsuka employees.
Id. at ¶ 22. The Agreement prohibited Otsuka from copying,
relocating, moving, sublicensing, renting, timesharing, loaning,
leasing, or distributing the software products it obtained under
the Agreement. Id. at ¶ 17. It further prohibited Otsuka from
operating the subscription service for the benefit of any third
party without ASI’s prior written consent, and it made any
attempt to do so void. Id. at ¶ 18.
In December 2015, Otsuka opted to terminate the
Agreement early, and it paid ASI an early termination fee of
over two million dollars. Id. at ¶ 23. Subsequently, Otsuka
hired Genpact, a third-party software developer, to develop an
alternative to ASI’s software and related services. Id. at ¶ 24.
ASI and Otsuka originally agreed on an early termination date of
June 4, 2016, but when Otsuka’s alternative software was not
ready by that time, Otsuka paid ASI $175,000 to extend the early
termination date to July 4, 2016. Id. at ¶ 25. Otsuka then paid
ASI another $175,000 to extend that date to August 4, 2016, and
an additional $175,000 to extend that date to September 4, 2016.
Upon termination of the Agreement on September 4,
2016, Otsuka was required to cease using and accessing ASI’s
subscription services, including ASI’s trade secret software.
Id. at ¶ 26. ASI claims that Otsuka was further required to
promptly return to ASI all of ASI’s confidential information and
other materials, including preliminary outlines, notes,
sketches, plans, unpublished memoranda, and other documents. Id.
at ¶ 27. Alternatively, Otsuka could have destroyed all ASI
confidential information and delivered a written and signed
statement to ASI certifying the destruction. Id. In ASI’s view,
Otsuka has failed to comply with these unambiguous provisions of
the Agreement. Id. at ¶ 28.
On September 26, 2016, Otsuka certified to ASI that it
had “ceased using and accessing [ASI’s] Subscription Service”
and had “used reasonable business efforts to confirm removal of
any ASI Confidential Information, including Intellectual
Property.” Id. at ¶ 32. ASI claims that this certification does
not fulfill Otsuka’s obligations under the Agreement, and
further that Otsuka is a sophisticated corporation that has the
necessary expertise to remove and permanently destroy all ASI
confidential information from Otsuka’s computer systems. Id. at
ASI claims that Otsuka continued to use ASI’s trade
secret software to make system-access requests to ASI even after
September 26, 2016. Id. at ¶ 35. On October 3, 2016, ASI’s
counsel wrote to Otsuka, reiterating the importance of returning
or destroying ASI’s confidential information and requesting that
Otsuka comply with the relevant provision of the Agreement. Id.
at ¶ 38. Otsuka never responded to this letter, and as of the
date the Complaint was filed (i.e., October 21, 2016), Otsuka
had failed to certify that it has removed ASI Confidential
Information from all of its computers and devices.2 Id. at ¶ 39.
Based on the foregoing events, ASI claims that it is
entitled to relief under the terms of the Agreement, the federal
Defend Trade Secrets Act, and the Pennsylvania Uniform Trade
Secrets Act. Id. at ¶ 46. ASI further claims that it will
sustain irreparable harm if no injunctive relief is granted, but
Otsuka will sustain no harm if compelled to comply with the
Agreement and prohibited from continuing to use and disclose ASI
ASI notes that Otsuka once previously granted a thirdparty software developer access to ASI’s trade secret software,
in violation of the authorization that Ostuka received from ASI.
Id. at ¶ 41. The third-party software developer involved in that
incident, known as Mu Sigma, is located in India and, “on
multiple occasions,” attempted to access ASI’s system even
though ASI did not grant Otsuka permission for that type of
confidential information. Id. at ¶ 47. ASI initially sought the
following preliminary and permanent injunctive relief3:
Require Otsuka to return or destroy and certify
the destruction of all ASI Confidential Information in
accordance with the terms of the Agreement;
Prohibit Otsuka from using any ASI Confidential
Require Otsuka to disclose all third parties to
whom it disclosed ASI Confidential Information;
Require all third parties that have obtained ASI
Confidential Information from Otsuka to immediately
return all such confidential information to ASI;
Prohibit Otsuka from using any software developed
by Genpact or any other software developers based on
unauthorized use and disclosure of ASI Confidential
Award ASI costs and attorneys’ fees as permitted
by applicable law.
Compl. 10-11; see also Pl.’s Mot. TRO & Prelim. Inj. at 1-2, ECF
ASI filed its complaint concurrently with a motion for
a temporary restraining order (“TRO”) and preliminary injunction
on Friday, October 21, 2016. ECF Nos. 1, 3, 4. Later that day,
Consistent with the Court’s scheduling order (ECF No.
8), ASI omitted from its Proposed Findings of Fact and
Conclusions of Law its claims “relating to Otsuka’s unauthorized
disclosure of ‘ASI’s Confidential Information’ to Genpact and
the possible use of ‘ASI’s Confidential Information’ in Otsuka’s
replacement software configured/customized by Genpact.” Pl.’s
Proposed Findings of Fact at 1 n.1, ECF No. 39.
the Court held an emergency hearing on ASI’s motion for a TRO.
See ECF No. 7. Following the emergency hearing, the Court
entered an order denying ASI’s motion for a TRO and scheduling a
status and scheduling conference for October 25, 2016, ECF No.
6, and following this conference, the Court entered a scheduling
order, ECF No. 8. This order scheduled a hearing on Plaintiff’s
motion for a preliminary injunction for February 8, 2017, and
limited discovery during the interim period to “the issue of the
continuing use or deletion of Plaintiff’s software and
confidential information, as discussed on the record at the
October 25, 2016 hearing.”4 Id.
On November 14, 2016, Defendant filed an answer and
counterclaim to Plaintiff’s complaint. ECF No. 14. On the same
day, Defendant also filed a memorandum of law in opposition to
Plaintiff’s motion for a TRO and preliminary injunction. ECF No.
Upon consultation with the parties at the status
conference held on October 25, 2016, the Court narrowed the
issue for the preliminary injunction hearing to whether
Defendant was continuing to use Plaintiff’s software. See TRO
Hr’g Tr. at 18:14-18, Oct. 21, 2016, ECF No. 18 (explaining that
“to the extent that that transfer of technology is occurring,
certainly money damages both on behalf of the defendant and
potentially this new software operator who has been contracted
by the defendant would have to answer for it”); see also
Status Conf. Tr. at 22:24-23:3, Oct. 25, 2016, ECF No. 19
(reiterating that discovery should be “limited to the assertion
that the software was deleted,” because “the issue is was it
deleted, and if so, was it in whole or in part?”).
On January 9, 2017, Plaintiff filed a motion to compel
interrogatory answers and production of documents from
Defendant. ECF No. 26. The same day, Defendant filed a “first”
motion to compel discovery from plaintiff. ECF No. 27. On
January 19, 2017, Plaintiff filed a response to Defendant’s
discovery motion, ECF No. 30, and on January 20, 2017, Defendant
filed a response to Plaintiff’s discovery motion and crossmotion to compel, ECF No. 31.
On January 23, 2017, following a telephone conference
on the parties’ cross-motions regarding discovery, the Court
entered an order denying without prejudice Plaintiff’s motion
and Defendant’s cross-motion to compel, and granting in part and
denying in part Defendant’s “first” motion to compel. ECF No.
37. On January 31, 2017, both parties filed their respective
Proposed Findings of Fact and Conclusions of Law for the
preliminary injunction hearing scheduled for February 8, 2017.
ECF Nos. 39, 40, 43. Over the next few days, the parties
submitted several letter statements and responses regarding the
appearances of certain witnesses at the preliminary injunction
hearing. ECF Nos. 45, 46, 47, 48.
On February 7, 2017, the Court held a telephone
conference on the record with counsel for both parties to
discuss, inter alia, the issues raised in their briefing and
letter statements. During this conference, the Court heard
arguments from both sides and obtained proffers as to what
evidence each party intended to present at the preliminary
injunction hearing scheduled for the next day.5 Following the
telephone conference, the Court continued the preliminary
injunction hearing for one week. ECF No. 49.
III. PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION
Federal Rule of Civil Procedure 65 empowers courts to
grant preliminary injunctions to enjoin harmful conduct. See
Fed. R. Civ. P. 65(a). The Third Circuit has observed that four
factors govern a district court’s decision whether to issue a
(1) whether the movant has shown a reasonable
probability of success on the merits; (2) whether the
movant will be irreparably injured by denial of the
relief; (3) whether granting preliminary relief will
result in even greater harm to the nonmoving party;
and (4) whether granting the preliminary relief will
be in the public interest.
Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir.
1999) (quoting ACLU v. Black Horse Pike Reg’l Bd. of Educ., 84
F.3d 1471, 1477 n.2 (3d Cir. 1996) (en banc)).
ASI planned to proffer testimony regarding (1) the
high value of its product, and (2) its contention that Otsuka
still possesses certain items related to ASI’s software,
including installation packages, backup tapes, and hard-copy
documentation. For reasons explained more fully below, the Court
finds that none of this testimony relates to any matter in
The Supreme Court has characterized injunctive relief
as “an extraordinary remedy that may only be awarded upon a
clear showing that the plaintiff is entitled to such relief.”
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008).
“The burden lies with the plaintiff to establish every element
in its favor,” P.C. Yonkers, Inc. v. Celebrations the Party &
Seasonal Superstore, LLC, 428 F.3d 504, 508 (3d Cir. 2005), and,
“[a]bsent a showing of irreparable harm, a plaintiff is not
entitled to injunctive relief, even if the other three elements
are found,” Ferring Pharm., Inc. v. Watson Pharm., Inc., 765
F.3d 205, 219 (3d Cir. 2014).
A preliminary injunction is not appropriate if damages
would be an adequate remedy. See Frank’s GMC Truck Ctr., Inc. v.
Gen. Motors Corp., 847 F.2d 100, 102 (3d Cir. 1988).
Furthermore, “[e]stablishing a risk of irreparable harm is not
enough” to warrant the issuance of a preliminary injunction.
ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987); see
also Cont’l Grp., Inc. v. Amoco Chem. Corp., 614 F.2d 351, 358–
59 (3d Cir. 1980) (“Risk of harm if information is inadvertently
disclosed . . . is not sufficient to satisfy the standard for
granting a preliminary injunction. There must be an imminent
threat of the allegedly harmful disclosure.” (footnote
omitted)). Instead, “[a] plaintiff has the burden of proving a
‘clear showing of immediate irreparable injury.’” ECRI, 809 F.2d
at 226 (quoting Cont’l Grp., Inc., 614 F.2d at 359). “The
‘requisite feared injury or harm must be irreparable--not merely
serious or substantial,’ and it ‘must be of a peculiar nature,
so that compensation in money cannot atone for it.’” Id.
(quoting Glasco v. Hills, 558 F.2d 179, 181 (3d Cir. 1977)).
Additionally, “where the relief ordered by the preliminary
injunction is mandatory and will alter the status quo, the party
seeking the injunction must meet a higher standard of showing
irreparable harm in the absence of an injunction.” Bennington
Foods LLC v. St. Croix Renaissance, Grp., LLP, 528 F.3d 176, 179
(3d Cir. 2008).
Under certain circumstances, a preliminary injunction
may be appropriate in a case involving a claim for breach of
contract.6 See, e.g., Chicago Title Ins. Co. v. Lexington &
Concord Search and Abstract, LLC, 513 F. Supp. 2d 304, 313-14
(E.D. Pa. 2007) (granting motion for preliminary injunction
based in part on claim for breach of contract); Darius Int’l,
Here, ASI seeks a preliminary injunction based only on
Otsuka’s alleged “breaches of the Agreement, i.e., retaining
ASI’s Confidential Information and failing to unambiguously
certify the deletion of ASI’s Confidential Information.” Pl.’s
Mem. of Law Supporting Proposed Findings of Fact and Conclusions
of Law at 14 (hereinafter “Pl.’s Mem.”), ECF No. 40; see also
id. (stating that although the complaint “also contains claims
for violations of Pennsylvania’s Uniform Trade Secrets Act and
Federal Defend Trade Secrets Act, this Court does not need to
reach these issues in the context of ASI’s request for a
preliminary injunction.” (emphasis added)). Accordingly, the
Court does not consider here whether any other legal basis might
justify granting ASI’s motion.
Inc. v. Young, No. 05-6184, 2006 WL 1071655, at *20-21 (E.D. Pa.
Apr. 20, 2006) (granting motion for preliminary injunction on
claims for breach of contract and unfair competition). “When a
preliminary injunction is sought based on a breach of contract,
irreparable injury may be found in two situations”:
(1) where the subject matter of the contract is of
such a special nature [or] of peculiar value that
damages would be inadequate; or (2) where because of
some special and practical features of the contract,
it is impossible to ascertain the legal measure of
loss so that money damages are impracticable.
Home Line Furniture Indus., Inc. v. Banner Retail Mktg., LLC,
630 F. Supp. 2d 527, 540 (E.D. Pa. 2009) (quoting ECRI, 809 F.2d
at 226). “[A] plaintiff in a breach of contract case cannot
convert monetary harm into irreparable harm simply by claiming
that the breach of contract has prevented it from performing
contracts with others and that this subsequent failure to
perform will harm the plaintiff’s reputation.” Bennington Foods
LLC, 528 F.3d at 178–79.
Rule 65(a) “does not always require a live hearing,
and courts sometimes rule based on the parties’ paper
submissions, such as when the issues are strictly legal or the
facts are not in dispute.” Fed. R. Civ. P. 65, practice
commentary; see also Bradley v. Pittsburgh Bd. of Educ., 910
F.2d 1172, 1175 (3d Cir. 1990) (“[Rule 65(a)] does not make a
hearing a prerequisite for ruling on a preliminary
injunction.”). Within the Third Circuit, a court may decide a
motion for a preliminary injunction on the papers alone “[o]nly
when the facts are not in dispute, or when the adverse party has
waived its right to a hearing.” Prof’l Plan Exam’rs of New
Jersey, Inc. v. Lefante, 750 F.2d 282, 288 (3d Cir. 1984)
(citations omitted); see also Williams v. Curtiss-Wright Corp.,
681 F.2d 161, 163 (3d Cir. 1982) (“It has long been recognized
that a preliminary injunction may issue on the basis of
affidavits and other written evidence, without a hearing, if the
evidence submitted by both sides does not leave unresolved any
relevant factual issue.”). “[A] district court is not obliged to
hold a hearing when the movant has not presented a colorable
factual basis to support the claim on the merits or the
contention of irreparable harm.” Bradley, 910 F.2d at 1175.
The parties do not dispute the relevant facts or the
applicable law. Instead, the crux of the parties’ disagreement
is whether Otsuka breached the Agreement by failing to return or
destroy certain items it received from ASI along with ASI’s
software, including installation packages, backup takes, and
ASI argues that “[t]he Agreement clearly provides that
upon termination each party shall promptly deliver to the other
party or destroy and certify the destruction of the other
party’s Confidential Information.” Pl.’s Mem. at 14, ECF No. 40.
ASI further claims that the Agreement states “unambiguously”
that “[n]either party may retain copies of any such
[confidential] items without the other party’s prior written
consent.” Id. (quoting Agreement § 10(e)).
For its part, Otsuka claims that it “has complied with
the operative provision of the parties’ [A]greement, which only
required [Otsuka] to stop ‘using and accessing’ INSIGHTS, not to
delete it.” Def.’s Conclusions of Law at 36, ECF No. 43.
INSIGHTS, according to Otsuka, “is a software program that
presents [Otsuka’s] business data to [Otsuka’s] promotional
team.” Def.’s Findings of Fact ¶ 17, ECF No. 43. Otuska
characterizes INSIGHTS as “merely a manner of organizing
[Otsuka’s] own data and presenting to [Otsuka’s] field
promotional team.” Id. Accordingly, Otsuka maintains that
“[a]fter ASI shut down [Otsuka’s] access to its own data [on
September 6, 2016], the INSIGHTS program was useless.” Id. ¶ 41.
Otsuka further maintains that, following ASI’s removal of
Otsuka’s access to INSIGHTS, Otsuka continued for several weeks
to “track removal of INSIGHTS on a daily basis from a few
devices that either were not actively used, had not been powered
on, or were not properly reporting back the deletion of
INSIGHTS,” until it finally confirmed, prior to the October 25,
2016, status conference before this Court, that ASI’s product
had been deleted from all of these devices. Id. ¶ 52.
ASI no longer disputes that Otsuka has ceased using
its product. See Pl.’s Resp. Opp. Mot. Sanctions at 5, ECF No.
44 (“ASI will not be seeking an injunction to prohibit Otsuka’s
continued use of ASI’s confidential software at the February 8
hearing.” (citing generally Pl.’s Mem., ECF No. 40)). Instead,
ASI continues to press its claim that the Agreement “requires
Otsuka to (1) delete ASI’s installation packages (containing
ASI’s software), (2) delete ASI’s Confidential Information from
its backup systems, and (3) delete ASI’s documentation
concerning its confidential software and ‘Subscription
Services,’ among other things.” Pl.’s Resp. Ltr. Statement at 1,
Feb. 6, 2017, ECF No. 47. Otsuka does not deny that it continues
to possess these items, but it argues that it is not required by
the terms of the Agreement to delete them. See Def.’s
Conclusions of Law ¶¶ 32-37.7
Otsuka argues further that complete destruction of
these files is virtually impossible. See Def.’s Proposed
Conclusions of Law ¶ 95 (“[ASI] continues to ask the Court to
issue an injunction that will require [Otsuka] to search every
inch of every place it does business for unknown pieces of paper
that mention ASI and to destroy backup tapes that it needs for
litigation hold and catastrophic recovery purposes.”). Counsel
for Otsuka argued during the February 7, 2017, telephone
conference that (1) deletion of the backup files is nearly
impossible because these files are “not accessible” and deletion
would necessitate destruction of the “entire backup,” not merely
the files related to Otsuka’s product; and (2) ASI has rejected
In light of this development, the Court finds that no
factual dispute remains with regard to Plaintiff’s pending
motion for a preliminary injunction, and the Court therefore
declines to hold a hearing on this motion. See Williams, 681
F.2d at 163 (“It has long been recognized that a preliminary
injunction may issue on the basis of affidavits and other
written evidence, without a hearing, if the evidence submitted
by both sides does not leave unresolved any relevant factual
issue.”). The parties do not dispute that Otsuka should no
longer be using or disclosing ASI’s software, nor do they
dispute that Otsuka is in fact not using or disclosing ASI’s
software at present. Rather, what remains in dispute at this
time is only whether Otsuka’s continuing possession of certain
items--namely, installation packages, backup tapes, and hardcopy documentation--poses any risk that ASI’s software will be
used or disclosed in the future, in violation of the parties’
Agreement. Phrased slightly differently, the parties dispute
only whether the undisputed facts constitute breach of contract
on the part of Otsuka.
In considering a motion for a preliminary injunction,
a court typically assesses the plaintiff’s likelihood of success
on the merits of his or her underlying claim. Here, it appears
Otsuka’s repeated offers to delete the installation packages,
which Otsuka is maintaining at this time only for purposes of
the litigation hold.
that the parties may have two different and competing
interpretations of the relevant portions of the Agreement.
Regardless, the Court need not consider this issue at this time,
because the Court finds that ASI has failed to clearly
demonstrate irreparable injury, and this alone precludes the
issuance of a preliminary injunction. See Ferring Pharm., Inc.,
765 F.3d at 219 (“Absent a showing of irreparable harm, a
plaintiff is not entitled to injunctive relief, even if the
other three elements are found.”); see also Hoxworth v. Blinder,
Robinson & Co., Inc., 903 F.2d 186, 197-98 (3d Cir. 1990)
(placing particular emphasis on “likelihood of success on the
merits” and “irreparable harm” as necessary “prerequisites” to
obtaining a preliminary injunction).
In support of its claim of irreparable harm, ASI
argues only that its confidential information “constitutes its
valuable trade secrets” and that “[t]he value of these trade
secrets is demonstrated by the harm that would befall ASI if
they were to be disseminated.” Pl.’s Mem. at 18-19; see also
Pl.’s Proposed Findings of Fact at ¶ 9, ECF No. 39 (“If ASI’s
confidential software were provided to other software developers
or those knowledgeable about computer programming or information
technology issues, those persons could ascertain ASI’s trade
secrets, something that would cause immediate and irreparable
harm to ASI’s business.”). Though ASI has detailed the extensive
efforts it undertakes to protect its confidential information,
ASI has failed to identify with specificity any of the trade
secrets allegedly at issue. Moreover, ASI has failed to explain
exactly what makes its confidential information--in particular,
the installation packages, backup tapes, and hard-copy
documentation currently at issue--so “special” or “peculiar” as
to warrant injunctive relief at this time. Home Line Furniture,
630 F. Supp. 2d at 540 (quoting ECRI, 809 F.2d at 226).
Nor has ASI established why damages would be
inadequate to compensate ASI for any harm that might come of
Otsuka’s continuing possession of the items in question. See id.
Even assuming that ASI might argue that it could be difficult to
quantify in monetary terms the value of the trade secrets
contained in these items, “[a]n inability to precisely measure
financial harm does not make that harm irreparable or
immeasurable.” Acierno v. New Castle Cty., 40 F.3d 645, 655 (3d
Cir. 1994). Similarly, any potential argument that ASI’s
business with other companies might be adversely affected is
insufficient to establish irreparable injury for purposes of
obtaining a preliminary injunction. See Bennington Foods LLC,
528 F.3d at 178–79 (“[A] plaintiff in a breach of contract case
cannot convert monetary harm into irreparable harm simply by
claiming that the breach of contract has prevented it from
performing contracts with others and that this subsequent
failure to perform will harm the plaintiff's reputation.”).
Moreover, even if the Court were to find that ASI has
“establish[ed] a risk of irreparable harm”--presumably by
finding that Defendant’s continuing possession of the items in
question could expose ASI’s confidential information to future
use or disclosure--ASI has not shown (and, indeed, no longer
argues) that any use or disclosure is “immediate,” or even that
there is “an imminent threat of the allegedly harmful
disclosure.” See ECRI, 809 F.2d at 226; Cont’l Grp., Inc., 614
F.2d at 358-59. The testimony that ASI planned to offer at a
hearing related only to the value of its product and Otsuka’s
continuing possession of its installation packages, backup
tapes, and hard-copy documentation. See supra 9 n.5. Even
accepting all of this as true,8 ASI has not clearly shown that
it will suffer irreparable injury absent a preliminary
For the foregoing reasons, the Court will deny
Plaintiff’s motion for a preliminary injunction. An appropriate
Otsuka does not dispute that ASI’s product is
valuable, nor does it dispute its continuing possession of these
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