Golden Fortune Import & Export Corp v. Mei-Xin Limited ( 2022 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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Nos. 22-1710 & 22-1885
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GOLDEN FORTUNE IMPORT & EXPORT CORPORATION,
v.
MEI-XIN LIMITED; MAXIM CATERERS LIMITED
Appellants
______________
On Appeal from the United States
District Court for the District of New Jersey
(Civil No. 2:22-CV-01369)
District Judge: Honorable Julien Xavier Neals
_____________
Submitted Under Third Circuit L.A.R. 34.1(a)
August 4, 2022
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Before: GREENAWAY, JR., MATEY, and NYGAARD, Circuit Judges.
(Opinion Filed: August 5, 2022)
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OPINION
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*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
GREENAWAY, JR., Circuit Judge.
When evaluating a motion for a preliminary injunction, the gatekeeping issues to
resolve are whether the movant is likely to be successful on the merits and is more likely
than not to suffer irreparable harm should we deny its request. Here, Golden Fortune
Import & Export Corporation (“Golden Fortune”) argues that it satisfies every
requirement to secure a preliminary injunction against the termination of its Distribution
Agreement (“Agreement”) with Mei-Xin (Hong Kong) Limited (“Mei-Xin”). We
disagree. We will reverse based on Golden Fortune’s failure to show a likelihood of
success on the merits and irreparable harm.
I. BACKGROUND
Plaintiff-Appellee Golden Fortune is a distributor of Asian groceries—and quite a
successful one at that. Boasting over “40 years of experience sourcing high quality
products,” it imports and distributes 1,599 products from over 150 brands, including its
own stand-alone brand, throughout the United States. J.A. 723 ¶¶ 4-5. It also offers
service logistics, marketing, and warehousing services to its customers.
Defendant-Appellant Mei-Xin is a Hong Kong company that manufactures
internationally renowned mooncakes1 and other pre-packaged bakery products. When
1
A mooncake “is the quintessential food consumed and/or gifted during one of China’s
most important holidays—the Mid-Autumn Festival”—which “takes place annually,
falling sometime between September and October.” J.A. 179 ¶ 17.
2
Mei-Xin decided to expand to the United States in 2000, it engaged Golden Fortune
along with another company2 to distribute its products and to develop a market for the
brand there. Through their two-decade-long business relationship, Golden Fortune has
enabled Mei-Xin to become the number one mooncake brand in the eastern United States.
Golden Fortune has benefited as well. In the only fiscal year for which Golden Fortune
provided its financial information (September 1, 2018 to August 31, 2019), Mei-Xin
products accounted for $3,959,887—or 8.6%—of Golden Fortune’s $45,720,201 in gross
sales.
In 2021, the parties entered their most recent Distribution Agreement, which is the
subject of this appeal. As relevant here, the Agreement provides that Golden Fortune will
sell Mei-Xin “Mooncakes and Pre-packaged Bakery Products” in the eastern United
States and Panama. J.A. 225 §§ 4-5. It covers the period from May 1, 2021 to April 30,
2022. There are two means for early termination. First, either party has the “right to
terminate this Agreement during the Term by giving the other thirty-day (30) day [sic]
written notice.” J.A 229 § 7.1. Second, Mei-Xin has the unilateral right to “terminate . . .
immediately without notice” if Golden Fortune fails to comply with “any provision.”
J.A. 229 § 7.2(a). In addition, the Agreement contains an arbitration clause providing for
2
Chevalier International (USA) Inc. was responsible for the western United States, while
Golden Fortune was responsible for the eastern United States.
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the arbitration of “[a]ny dispute, controversy or claim arising out of or relating to this
Agreement, or the breach, termination or invalidity thereof.” J.A. 231 § 20.
In 2017, Golden Fortune’s annual sales growth of Mei-Xin’s products began
experiencing a significant decline. In 2020, Mei-Xin warned Golden Fortune that it
would exercise its discretion to replace Golden Fortune with another distributor if there
was not adequate improvement. When that improvement did not occur, Mei-Xin
purported to terminate the Agreement via email on January 21, 2022. Golden Fortune
asserted that the termination was insufficient under Sections 7.1 and 11 of the
Agreement, prompting Mei-Xin to send another notice of termination on March 3, 2022.
This time, Golden Fortune claimed that the termination was invalid under the New
Jersey Franchise Practices Act (“NJFPA”). The NJFPA “define[s] the relationship and
responsibilities of franchisors and franchisees in connection with franchise
arrangements.” N.J. Stat. Ann. § 56:10-2 [hereinafter § 56:10-2]. It was enacted “to
protect franchisees from unreasonable termination by franchisors that may result from a
disparity of bargaining power[.]” Id. Consistent with its protective purpose, it prohibits
franchisors from terminating a franchise “without good cause.” § 56:10-5. In Golden
Fortune’s view, Mei-Xin failed to satisfy the good cause requirement.
Asserting that the NJFPA is inapplicable, Mei-Xin reiterated its purported
termination and engaged a replacement distributor. In response, Golden Fortune
commenced this action in the District Court for the District of New Jersey on March 14,
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2022 against Mei-Xin and its parent company, Maxim’s Caterers Limited (“Maxim’s”).
Golden Fortune alleged three causes of action: (1) violation of the NJFPA, (2) breach of
the implied covenant of good faith and fair dealing, and (3) tortious interference. In
addition, Golden Fortune sought a declaratory judgment that it continues to be Mei-Xin’s
exclusive distributor and that all previous termination efforts were invalid. Lastly,
Golden Fortune filed a motion for a preliminary injunction seeking to prohibit Mei-Xin
and Maxim’s from terminating the Distribution Agreement and from engaging any other
distributor in the eastern United States.
Although it found that the dispute was arbitrable, the District Court granted
Golden Fortune’s motion for a preliminary injunction. The District Court ordered that
the parties enter an “alternative security arrangement” under which Golden Fortune
would purchase 17% more product annually from Mei-Xin. J.A. 44-45. The preliminary
injunction and security agreement are to remain effective until the parties complete
arbitration. On April 18, 2022, Mei-Xin and Maxim’s filed a timely notice of appeal.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had subject matter jurisdiction pursuant to 28 U.S.C.
§ 1332(a)(2). This Court has jurisdiction pursuant to 28 U.S.C. § 1292(a).
“In reviewing the grant or denial of a preliminary injunction, we employ a
tripartite standard of review: findings of fact are reviewed for clear error, legal
conclusions are reviewed de novo, and the decision to grant or deny an injunction is
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reviewed for abuse of discretion.” Osorio-Martinez v. Att’y Gen. U.S., 893 F.3d 153, 161
(3d Cir. 2018) (quoting Del. Strong Families v. Att’y Gen. of Del., 793 F.3d 304, 308 (3d
Cir. 2015)).
III. DISCUSSION
We disagree with the District Court’s grant of a preliminary injunction in favor of
Golden Fortune. Golden Fortune has not shown a likelihood of success on the merits or
that it will more likely than not suffer irreparable harm in the absence of the grant of a
preliminary injunction.
A. Preliminary Injunction
Preliminary injunctive relief is an “extraordinary remedy” that “should be granted
only in limited circumstances.” Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d
Cir. 2004) (quoting Am. Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d
1421, 1427 (3d Cir. 1994)). In determining whether to grant a request for injunctive
relief, courts consider four factors. These factors are: (1) whether the movant has shown
“a reasonable probability of eventual success in the litigation”; (2) whether the movant
“will be irreparably injured . . . if relief is not granted”; (3) “the possibility of harm to
other interested persons from the grant or denial of the injunction”; and (4) whether
granting the preliminary relief will be in “the public interest.” Reilly v. City of
Harrisburg, 858 F.3d 173, 176 (3d Cir. 2017) (quoting Del. River Port Auth. v.
Transamerican Trailer Transp., Inc., 501 F.2d 917, 919-20 (3d Cir. 1974)).
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The first two factors are the “most critical.” Id. at 179. They are “gateway
factors,” meaning that failure to satisfy them ends the inquiry. Id. Once the gateway
factors are met, the court, “in its sound discretion,” should balance all four factors. Id. at
176.
i. Likelihood of Success on the Merits
A likelihood of success “requires a showing significantly better than negligible but
not necessarily more likely than not.” Id. at 179 (citing Singer Mgmt. Consultants, Inc. v.
Milgram, 650 F.3d 223, 229 (3d Cir. 2011) (en banc)).
Here, Golden Fortune has alleged that Mei-Xin’s termination of the Distribution
Agreement violates the good cause standard under the NJFPA. See § 56:10-5. This
claim turns on whether the NJFPA applies to Golden Fortune. The District Court
concluded it does. We disagree for two primary reasons. First, Golden Fortune and Mei-
Xin do not share the requisite community of interest. See § 56:10-3(a). Second, 20% of
Golden Fortune’s annual gross sales are not derived from Mei-Xin. See § 56:10-4(a).
1. Community of Interest
The NJFPA defines franchise as “a written arrangement for a definite or indefinite
period, in which a person grants to another person a license to use a trade name, trade
mark, service mark, or related characteristics, and in which there is a community of
interest in the marketing of goods or services at wholesale, retail, by lease, agreement, or
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otherwise.” § 56:10-3(a) (emphasis added). Golden Fortune cannot satisfy the
“community of interest” element.
The lynchpin of the community of interest element—and the NJFPA more
generally—is the vulnerability of the purported franchisee. See, e.g., N.J. Am., Inc. v.
Allied Corp., 875 F.2d 58, 65 (3d Cir. 1989) (observing that the New Jersey legislature
enacted the NJFPA to protect the “vulnerable position” of franchisees); Westfield Ctr.
Serv., Inc. v. Cities Serv. Oil Co., 86 N.J. 453, 466 (N.J. 1981) (explaining that
“[r]estoration of the loss accords with the legislative desire to protect the innocent
franchisee when the termination occurs at the franchisor's convenience”). We consider
several factors bearing on the purported franchisee’s vulnerability in determining whether
this element is satisfied. They include: the “(1) [the] licensor’s control over the licensee,
(2) the licensee’s economic dependence on the licensor; (3) disparity in bargaining
power, and (4) the presence of a franchise-specific investment by the licensee.” Cassidy
Podell Lynch, Inc. v. SnyderGeneral Corp., 944 F.2d 1131, 1140 (3d Cir. 1991).
The first factor—control—requires that the purported franchisee act at the “whim,
direction and control of a more powerful entity whose withdrawal from the relationship
would shock a court’s sense of equity.” Colt Indus. Inc. v. Fidelco Pump & Compressor
Corp., 844 F.2d 117, 120–21 (3d Cir. 1988). Indicators of control include sales quotas
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and whether advertising and promotional materials provided to the purported franchisee
are merely suggested as opposed to required. Id.The second factor—economic dependence—refers to “the complex of mutual and
continuing advantages which induced the [purported] franchisor to reach his ultimate
consumer through entities other than his own which, although legally separate, are
nevertheless economically dependent upon him.” Cassidy Podell Lynch, Inc., 944 F.2d at
1141 (quoting Neptune T.V. & Appliance Serv., Inc. v. Litton Microwave Cooking Prods.
Div., 462 A.2d 595, 600-01 (N.J. Super. Ct. App. Div. 1983)). Relying on a “single
supplier” does not “automatically” render a distributor economically dependent on that
supplier for purposes of the NJFPA. Id. at 1141-42. The parties must intend to create a
franchisor-franchisee relationship when entering the business agreement. Id.
The third factor—disparity in bargaining power—means that the purported
franchisor has “become[] dependent as a result of the relation itself.” Id. at 1142. It does
not exist ex ante. Instead, it occurs when the purported franchisee has been “induce[d] or
require[d] . . . to invest in skills or assets that have no continuing value to” the franchisee
if the business relationship is terminated. Id. The fourth and final factor refers to “any
significant specific investment in capital equipment [by the purported franchisee] that
could only be used” for the benefit of the purported franchisor. Id.
The District Court concluded that a community of interest existed between Golden
Fortune and Mei-Xin. In doing so, it relied primarily on perceived mutual advantages:
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Golden Fortune developed a client base for Mei-Xin in the eastern United States, and
Mei-Xin gained access to Golden Fortune’s supermarkets and wholesale customers. In
our view, these allegations do not suffice and the above factors weigh against finding a
community of interest.
We begin with control. The Distribution Agreement is an ordinary commercial
contract, and not “so burdensome as to create the unfettered control typically present in a
franchise relationship.” Id. at 1141. While Mei-Xin did provide some guidance to
Golden Fortune as to marketing, these were not requirements. Instead, Golden Fortune
kept its promise to “work together with [a] brand’s in-house marketing team.” J.A. 724 ¶
13.
As for economic dependence, the District Court correctly identified some mutual
advantages stemming from the Distribution Agreement. However, that Golden Fortune
came to rely exclusively on Mei-Xin for its mooncakes does not transform the Distributor
Agreement into a franchisor-franchisee relationship where that intent did not appear to
exist for either party in the first place. Cassidy Podell Lynch, Inc., 944 F.2d at 1141-42.
The facts here indicate a lack of economic dependence: Golden Fortune distributes
approximately 1,598 products aside from Mei-Xin’s mooncakes, and Mei-Xin products
account for only 8.6% of Golden Fortune’s annual revenue.
Nor has Golden Fortune become so dependent on Mei-Xin as to create a disparity
in bargaining power. Golden Fortune did not invest in skills that have no continuing
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value beyond the Distribution Agreement. Indeed, the Agreement offered Golden
Fortune one of many opportunities to “sourc[e] high quality products”—a practice that
Golden Fortune has been engaged in for 40 years. J.A. 723 ¶ 4. Nor did Mei-Xin require
Golden Fortune to invest in assets. Lastly, although Golden Fortune has invested in
marketing programs specific to Mei-Xin, those alone do not warrant a different result.
Taken together, these factors indicate that Golden Fortune and Mei-Xin do not share the
community of interest required under the NJFPA. See § 56:10-3(a).
2. 20% Gross Sales Requirement
Further, Golden Fortune does not meet the 20% gross sales requirement. The
NJFPA applies only “(2) where gross sales of products . . . between the franchisor and
franchisee . . . have exceeded $35,000.00 for the 12 months next preceding the institution
of suit pursuant to this act, and (3) where more than 20% of the franchisee’s gross sales
are intended to be or are derived from [the] franchise.” § 56:10-4(a)(2)-(3).
We must decide whether the “12 months next preceding the institution of suit”
clause applies to both subsections (a)(2) and (a)(3). We interpret the provision
“consistent with its plain meaning.” Oberhand v. Dir., Div. of Taxation, 193 N.J. 558,
568 (N.J. 2008) (citation omitted). We must also construe remedial statutes like the
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NJFPA “broadly to give effect to their legislative purpose.” Liberty Lincoln–Mercury v.
Ford Motor Co., 134 F.3d 557, 566 (3d Cir. 1998).
While the District Court concluded no temporal limitation applies, we think the
better reading is that “20% of a franchisee’s gross sales over a 12-month period are
intended to be or are derived from the franchise.” Unlike § 56:10-4(a)(2), which places a
12-month limitation on the $35,000 gross sales requirement, § 56:10-4(a)(3) contains no
temporal limitation. Nonetheless, the canon of consistent usage indicates that we should
also apply the 12-month limit to subsection (a)(3). Pursuant to that canon, “[a] term
appearing in several places in a statutory text is generally read the same way each time it
appears.” United States v. Scott, 14 F.4th 190, 197 (3d Cir. 2021) (quoting Ratzlaf v.
United States, 510 U.S. 135, 143 (1994)). Both subsections (a)(2) and (a)(3) reference
“gross sales” requirements. Because “gross sales” in subsection (a)(2) refers to gross
sales over a 12-month period, we should read “gross sales” in subsection (a)(3) as
referring to a 12-month period as well.
If there were any ambiguity, the context confirms our interpretation. See King v.
Burwell, 576 U.S. 473, 486 (2015) (explaining that we “read the words [of a statute] ‘in
their context’” and do not construe “isolated provisions”) (citations omitted). Section
56:10-3(a) defines a “franchise” as “a written arrangement for a definite or indefinite
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period.” Here, the Distribution Agreement is for a term of 12 months. It follows that we
should consider “gross sales” over that period for purposes of the 20% requirement.
Lastly, our interpretation is consistent with the purpose of the NJFPA, which is to
“protect franchisees from unreasonable termination by franchisors that may result from a
disparity of bargaining power[.]” § 56:10-2. Reading a 12-month limitation into the 20%
gross sales requirement does just that: it offers security to franchisees that depend on a
franchisor for the success of their business. By contrast, distributors who rely on several
different supply streams are less likely to need protection if one supplier terminates the
business relationship.
Applying the 12-month limitation, Golden Fortune has not satisfied the 20% gross
sales requirement. Between September 1, 2018 and August 31, 2019, Golden Fortune
derived $3,959,887—or 8.6%—of its $45,720,201 in gross sales from Mei-Xin. Golden
Fortune urges us to focus only on the “peak sales season for MX Mooncakes”—namely,
the three-month period surrounding the Mid-Autumn Festival during which 24% of
Golden Fortune’s gross sales were derived from Mei-Xin. J.A. 192 ¶ 91. We decline to
do so. That approach poses an inconsistent usage problem. It disregards that the
Distribution Agreement covers a 12-month period and contemplates distribution of a
myriad of non-seasonal Mei-Xin products apart from the mooncake. Lastly, it does not
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further the protective purpose of the NJFPA: without the Mei-Xin mooncake, Golden
Fortune can still make 91.4% of its gross sales and distribute 1,598 other products.
ii. Irreparable Harm
The District Court held that Golden Fortune’s allegations of irreparable harm were
sufficient. J.A. 36. Specifically, Golden Fortune alleged that it was set to lose (1) its
investment in the promotion of Defendants’ products, entire good will and market share
for MX Mooncakes; and (2) all the sales of its other products that routinely are purchased
by Asian supermarkets alongside their mooncake orders. We disagree.
To establish irreparable harm, there must be “a ‘clear showing of immediate
irreparable injury,’ or a ‘presently existing actual threat.’” Acierno v. New Castle Cnty.,
40 F.3d 645, 655 (3d Cir. 1994) (citation omitted). The mere “risk of irreparable harm is
not enough.” ECRI v. McGraw–Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987). Further, the
alleged harm “must be of a peculiar nature, so that compensation in money cannot atone
for it.” Acierno, 40 F.3d at 653 (internal quotation marks and citation omitted).
It follows that economic loss, including a “temporary loss of income, ultimately to
be recovered, does not usually constitute irreparable injury.” Sampson v. Murray, 415
U.S. 61, 90 (1974); see also Acierno, 40 F.3d at 653. For instance, in Frank’s GMC
Truck Center, Inc., we reversed the grant of a preliminary injunction where a franchisor
ceased supplying some of its products, and a franchisee argued that its inability to sell
those products would make potential customers “more reluctant” to purchase the
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remaining products. Frank’s GMC Truck Ctr., Inc. v. Gen. Motors Corp., 847 F.2d 100,
102 (3d Cir. 1988). We concluded that the loss of “sales and service customers, and
therefore profits,” was not irreparable harm. Id.Such losses can rise to the level of irreparable harm only where they would
“force[] [the business] to shut down.” Instant Air Freight Co. v. C.F. Air Freight, Inc.,
882 F.2d 797, 802 (3d Cir. 1989). As our precedent makes clear, this threshold is a
significant one. In Instant Air Freight Co., we concluded that there was no irreparable
harm where a company stood to lose 80% of its business from the termination of a
business agreement. Id. That 20% of the business survived meant that the company
would not be “forced into bankruptcy.” Id. We also noted that the company was “free to
secure other business,” and the contract at issue would terminate in under two years
regardless of our decision. Id.Even where allegations of economic injury are coupled with allegations of non-
economic injury, a preliminary injunction is nonetheless inappropriate where money
damages are adequate. Id. Apart from losing a substantial portion of its business, the
plaintiff in Instant Air Freight Co. also alleged the loss of “many if not all of its
employees, and its goodwill and reputation in the industry.” Id. at 798-99, 801. In
holding that money damages were sufficient in Instant Air Freight Co., we relied on three
factors. First, that “[m]oney damages . . . should be provable with reasonable certainty
given the” two-decades-long business relationship. Id. at 802. Second, we considered
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that the company could “procur[e] suitable substitute performance by means of money
awarded as damages,” which would “compensate [the business] fully for its lost profits
and other injuries it may prove.” Id. (quoting Rest. (Second) of Contracts § 360 (Am. L.
Inst. 1981)). Third, we concluded that the money damages were collectable given the
supplier’s high annual revenue. Id.
At bottom, Golden Fortune argues that it “stand[s] to lose sales and . . . customers,
and therefore profits,” which does not qualify as irreparable harm. Frank’s GMC Truck
Ctr., Inc., 847 F.2d at 102. Further, this is not a scenario where termination of the
Distribution Agreement would “force[] [Golden Fortune] to shut down.” Instant Air
Freight Co., 882 F.2d at 802. Golden Fortune imports and distributes at least 1,599
products and sells over 150 brands as well as its own brand. In all, Mei-Xin products
constitute only 8.6% of its $45 million in annual revenue. In light of our prior holding
that losing 80% of one’s business does not constitute irreparable harm, we are hard
pressed to hold that Golden Fortune has made the requisite showing here. See id.To be sure, the “loss of control of reputation, loss of trade, and loss of goodwill”
may constitute irreparable harm in some contexts. See, e.g., Pappan Enters., Inc. v.
Hardee’s Food Sys., Inc., 143 F.3d 800, 805 (3d Cir. 1998) (citing Opticians Ass’n of
Am. v. Indep. Opticians of Am., 920 F.2d 187, 195 (3d Cir. 1990)). To the extent that a
plaintiff alleges these harms, we require it to demonstrate that its business “is different
from other types of commerce in such a way that normal breach of contract remedies
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could not provide a remedy.” Bennington Foods LLC v. St. Croix Renaissance, Grp.,
LLP, 528 F.3d 176, 179 (3d Cir. 2008); see also Pappan Enters., Inc., 143 F.3d at 807(holding that the “right of the public not to be deceived or confused” warrants a
preliminary injunction where two parties were using the same trademark) (quoting
Opticians Ass’n of Am., 920 F.2d at 197); Novartis Consumer Health, Inc. v. Johnson &
Johnson-Merck Consumer Pharms. Co., 290 F.3d 578, 589-90, 596 (3d Cir. 2002)
(holding that a preliminary injunction is warranted where a false or misleading ad would
produce consumer confusion, resulting in a “loss of market share” “[i]n a competitive
industry where consumers are brand-loyal”).
Where the alleged harms stem from the termination of a business agreement, we
require evidence that the moving party has not been able to perform on contracts with
third parties because of the loss, or for it to point to a loss of goodwill or reputation with
specific customers. See Bennington Foods LLC, 528 F.3d at 179. Indeed, the harm
caused must be direct. It is not enough for the claim to be “two-step,” meaning (1)
because the supplier is not distributing, the distributor cannot distribute, and (2) the lack
of the delivery harms the reputation with third parties who do not receive the distribution.
Id. at 180. That is a standard breach of contract case, and “there is no reason to make the
extended causal inferences necessary to find irreparable harm to reputation.” Id.Although Golden Fortune has also alleged non-economic harms, such as the loss
of good will and market share, the adequacy of monetary damages weighs against a
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finding of irreparable harm. Money damages are readily ascertainable given the two-
decades-long history between Golden Fortune and Mei-Xin. Id. Money damages would
allow Golden Fortune to seek substitute performance, which will fully compensate it—
especially because other companies have mirrored the quality of Mei-Xin mooncakes,
“narrowing [] the gap between MX Mooncakes and competitor brands” over the years.
J.A. 873 ¶ 13. Lastly, there is a high likelihood that money damages will be collectable
given the international success of Mei-Xin and Maxim’s. See Instant Air Freight Co.,
882 F.2d at 802.
Because Golden Fortune has failed to demonstrate that its business “is different
from other types of commerce” or cite specific instances of the loss of good will from its
inability to distribute Mei-Xin products, we have no reason to depart from our general
rule. Bennington Foods LLC, 528 F.3d at 179. Any allegations of a loss of good will are
exactly the kind of “two-step” claims we have previously rejected. See id. at 180.
IV. CONCLUSION
For these reasons, we will reverse the order of the District Court based on Golden
Fortune’s failure to satisfy the requirements for a preliminary injunction.
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