GDHI Marketing, LLC v. ANTSEL Marketing, LLC

          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 (10^th 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 ...