United States District Court, D. Colorado
OPINION AND ORDER DENYING MOTION FOR PRELIMINARY
INJUNCTION
MARCIA
S. KRIEGER CHIEF UNITED STATES DISTRICT JUDGE
THIS
MATTER comes before the Court pursuant to the
Plaintiff's (“GDHI”) Motion for Preliminary
Injunction (# 46), for which the time for
response briefs has not yet run[1]; and GDHI's Motion for
Expedited Briefing and Determination (# 48)
of the injunction motion, and the Response of Defendants
Antsel Marketing, LLC, Claire Linsday, Annie Mullen, Barbara
Robles, and Ellen Smith's (collectively,
“Anstel”) response.[2]
I.
Background
The
Court assumes the reader's familiarity with the
proceedings to date and offers only a summary. GDHI
publishes, by direct mailing to selected households, a
magazine consisting primarily of advertisements from home
improvement contractors. In or about July 2018, the
Defendants began publishing a competing magazine. GDHI
contends that, in the course of promoting the competing
magazine, the Defendants made false statements to contractors
who were potential advertisers in either or both magazines:
• In a July 5, 2018 email, the Defendants informed the
contractors that GDHI had not mailed out its June 2018 issue
because GDHI had not paid the post office for that mailing.
The Defendants encouraged the contractors not to advertise
with GDHI unless GDHI produced a verified proof of mailing.
GDHI states that these assertions were false and that the
June 2018 went out as scheduled and postage was paid in full
for it.
• In an August 31, 2018 email to contractors, the
Defendants promoted their competing magazine, stating that
unlike “our competitors” - which GDHI understands
to be referring specifically to it - the Defendants “do
not saturate zipcodes” and “handpick every single
home that receives” their magazine. GDHI contends that,
contrary to the Defendants' implication, it carefully
selects which households receive its magazines. It also
contends that, contrary to the Defendants' assertions,
the Defendants do not “handpick” which households
receive the Defendants' magazine, in that both GDHI and
the Defendants purchase their initial mailing list from the
same source.
• That at unspecified times (although occurring
“well over 1, 000 [times] this year alone”), the
Defendants sent contractors a “media kit” that
states: (i) the average household receiving the
Defendants' magazine has an “average net
worth” of $1.73 million, and (ii) that “72% of
our readers frequently purchase products or services from ads
seen” in the magazine. GDHI does not assert that the
“net worth” statement is factually untrue, but
notes that the Defendants selected “average” net
worth because “it is deceptively inflated by a few
ultra-rich individuals” that receive the
Defendants' magazine. It contends that the
“72%” statement is false because, in fact, both
GDHI and the Defendants' magazines have “direct
response rates per issue of far less than 1% per
advertiser.”
Based
on these facts, GDHI asserts numerous claims sounding in
monopolization in violation of the Sherman Act, 15 U.S.C.
§ 2 et seq.; unfair competition in violation of
the Lanham Act, 15 U.S.C. § 1125(a); violation of the
Colorado Consumer Protection Act, C.R.S. § 6-1-101
et seq., tortious interference with contractual
relations that GDHI had with contractors already advertising
with it, and defamation (the latter two presumably asserted
under Colorado law).
GDHI
filed the instant Motion for Preliminary Injunction
(# 46), requesting that the Court enjoin the
Defendants from: (i) “making the [ ] false and/or
deceptive statements discussed herein” about GDHI or
themselves; and (ii) “declaring these statements to be
false or deceptive.” The only evidentiary material
supporting GDHI's motion is an affidavit from Greg
Harline, GDHI's owner. Most of Mr. Harline's
affidavit discusses his business history and the business
losses he claims to have suffered as a result of the
Defendants' actions; as to the facts recited above, Mr.
Harline sweeps them all up into a single assertion that
“I have reviewed the Amended Complaint and the Motion
for Preliminary Injunction and Declaratory Relief and to the
best of my knowledge, the facts about me, my business[ ], and
my industry are accurate.”
Shortly
after filing the injunction motion, GDHI filed the instant
Motion to Expedite (#49). In that motion -
which is not supported by any additional evidentiary material
- GDHI states that: (i) it has lost and continues losing
customers because of the Defendants' deceptive
statements, (ii) that GDHI intends to rename its magazine
beginning with the March 4, 2019 issue “in an effort to
mitigate its damages” (followed by another issue on
April 1, 2019), and (iii) that if the Defendants are not
restrained, GDHI will suffer continued losses and put it out
of business “within a matter of months.” GDHI
states that “the harm [to it] that will likely ensue
prior to the March 4 and April 1, 2019 issues” warrant
expedited briefing and determination of the injunction
motion.
To
obtain a preliminary injunction, GDHI has the burden of
showing: (i) that it is substantially likely to succeed on
the merits; (ii) that it is likely to suffer an irreparable
injury if the injunction is not granted; (iii) that the
balance of harms tips in favor of the movant; and (iv) that
the requested injunction is not adverse to the public
interest. Certain types of injunctions, including those that
request mandatory or conclusive relief - such as GDHI's
request for an immediate declaration that the statements it
identifies are “deceptive” - are disfavored, and
thus require the movant to make a “strong”
showing as to the likelihood of success and balance of harm
elements. Fish v. Kobach, 840 F.3d 710, 723-24
(10th Cir. 2016). Although there are no hard and
fast rules that govern the Court's consideration of a
motion to expedite, it is generally appropriate for the Court
to expedite the briefing and determination of a matter where
the party requesting expedited relief can show that it would
suffer undue harm in the interim if normal periods of time
for briefing and determination are observed.
II.
Jurisdiction
The
Court exercises jurisdiction in this matter pursuant to ...