Case 2:09-cv-01124-JAT Document 58 Filed 07/10/09 Page 1 of 11
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`WO
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ARIZONA
`
`No. CV-09-1124-PHX-JAT
`ORDER
`
`)))))))))))))
`
`Gowan Company, LLC; Canyon Group,
`LLC,
`
`Plaintiffs,
`
`vs.
`
`Aceto Agricultural Chemicals,
`Defendant.
`
`Upon consideration of Plaintiff’s Motion for Preliminary Injunction (Doc. #14), the Court
`finds:
`
`FINDINGS OF FACT
`Plaintiff Gowan Company is a family-owned company located in Yuma,
`1.
`Arizona that develops, formulates, and markets crop protection products including the
`halosulfuron herbicide products at issue in this action. Gowan Company develops,
`formulates, and markets halosulfuron products on behalf of Plaintiff Canyon Group, which
`is a joint venture between Gowan Company and Nissan Chemical Industries. Plaintiffs
`Gowan Company and Canyon Group are referred to collectively as “Gowan.”
`2.
`Halosulfuron is a herbicide that selectively targets broadleaf weeds and
`nutsedges and is approved for use on a wide variety of agricultural crops and turf. The
`halosulfuron products marketed by Gowan include Sandea®, which focuses on smaller
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`Case 2:09-cv-01124-JAT Document 58 Filed 07/10/09 Page 2 of 11
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`specialty crops, such as vegetables, cucumbers, squash, and melons, and Permit®, which
`targets larger row crops including rice, corn, cotton, and grain sorghum. The rice use is the
`biggest market for halosulfuron, accounting for approximately 80% in overall halosulfuron
`sales.
`
`Halosulfuron product sales account for $28 million out of the $7.8 billion in
`3.
`yearly United States pesticide sales.
`4.
`Out of the 20 pesticide active ingredients in Gowan’s portfolio, halosulfuron
`is the best-selling pesticide in terms of volume and sales, and accounts for approximately
`20% of Gowan’s sales.
`5.
`The first registrations allowing use of halosulfuron herbicide products in the
`United States in 1994 were obtained by Monsanto Company (“Monsanto”), including a
`registration for the Permit® halosulfuron product. Gowan became involved in the
`halosulfuron market in 2000, developing the Sandea® product for new uses for halosulfuron
`on specialty crops, and eventually taking over the Permit® product as well.
`6.
`Gowan and its predecessor Monsanto engaged in the process of drafting the
`halosulfuron labels, submitting the labels to the United States Environmental Protection
`Agency (“EPA”) for approval, and revising the labels to refine and expand the approved uses
`of the products.
`7.
`Defendant Aceto Agricultural Chemicals Corporation (“Aceto”) sources,
`markets and sells chemical, pharmaceutical, and crop protection products. Generally, Aceto
`provides “generic” pesticide products, that is, products that enter the market some years after
`an initial producer has been selling the pesticide.
`8.
`Aceto recently obtained approval for and began marketing its own generic
`halosulfuron products, Halomax and Profine, in competition with Gowan’s Permit® and
`Sandea® products.
`9.
`Around 2007, Aceto decided to launch a generic alternative to Gowan’s
`Permit® and Sandea® products, beginning the steps of sourcing raw material and registering
`its halosulfuron products with the EPA.
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`Case 2:09-cv-01124-JAT Document 58 Filed 07/10/09 Page 3 of 11
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`At the time Aceto entered the halosulfuron market, Gowan was the sole seller
`10.
`of halosulfuron products in the United States. Aside from Aceto, Gowan is still the sole seller
`of halosulfuron pesticide products in the United States. Gowan exercised the full period of
`exclusive product rights for its halosulfuron products afforded through patent law and EPA
`statutory exclusivity provisions.
`11.
`All pesticides sold in the United States must be registered and approved by the
`EPA. No pesticide product may be sold in the United States without a label that has been
`submitted to and approved by the EPA for review pursuant to the Federal Insecticide
`Fungicide and Rodenticide Act (“FIFRA”), 7 U.S.C. § 136a et seq., which governs the sale,
`distribution, and use of pesticides.
`12.
`The registration process requires applicants to submit numerous scientific
`studies regarding the effects of the pesticides and to submit proposed labeling. Once a
`particular pesticide has been approved, subsequent applicants may seek registration under
`the “me-too” or “follow-on” registration process. This process is governed by FIFRA §
`(c)(7)(A).
`13.
`
`Pursuant to FIFRA, the EPA is required to process me-too applications in 90
`
`days.
`
`14. Me-too applicants are not required to submit de novo scientific studies, but
`instead may rely on the original registrant’s study data. Under the “cite-all” method, a me-too
`applicant provides a general citation to information already contained in the EPA’s files. The
`me-too applicant must offer to compensate the original registrant according to the statutory
`data compensation scheme.
`15.
`In June 2008, Aceto applied to the EPA for a “me-too” registration of its
`halosulfuron products pursuant to FIFRA §§ (c)(3)(B) and (c)(7)(A). Aceto’s halosulfuron
`products are identical to Gowan’s products in composition and in usage. Pursuant to FIFRA,
`Aceto used the “cite all” option of relying on the test data previously submitted by Gowan’s
`predecessors (Nissan and Monsanto), which included a general offer to pay compensation
`to Gowan for the right to rely on its data. Aceto’s halosulfuron registrations were approved
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`Case 2:09-cv-01124-JAT Document 58 Filed 07/10/09 Page 4 of 11
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`on December 15, 2008.
`16.
`The parties engaged in extended discussions and negotiations concerning the
`amount of payment, including the initiation of arbitration in November, 2008. In February,
`2009, the parties discussed the data compensation issue. Aceto and Canyon finalized an
`agreement dated April 10, 2009 (the “Data Compensation Agreement”) to resolve Aceto’s
`data compensation obligations to Canyon with Aceto agreeing to pay $3.75 million to
`Gowan.
`The Data Compensation Agreement covered only compensation for data listed
`17.
`on Exhibit 1 to that Agreement.
`18.
`The Data Compensation Agreement did not cover licensing of any of Gowan’s
`copyrights.
`This year is Aceto’s first year in the halosulfuron market.
`19.
`Aceto has sold products to three of the five distributors in the United States that
`20.
`control about 80% of the entire U.S. pesticide market.
`21.
`Two of these distributors are the same companies that distribute Gowan’s
`halosulfuron products.
`22.
`Aceto’s profit margin on halosulfuron is roughly 60%. By the hearing date,
`Aceto had sold $3.8 million of halosulfuron product, roughly 75% of its inventory for the
`year, and had $992,401 in gross revenue of product in inventory ready to be sold.
`23.
`Aceto estimates that 50% of the product could remain in the hands of the
`distributors, which would represent $1,918,418 in unsold product.
`24.
`Several other pesticide companies sell products other than halosulfuron, which
`compete with Gowan’s halosulfuron products for a market share in certain crop markets and
`certain weed markets.
`25.
`The timing of the rice season varies each year due to weather, in particular, but
`the season generally begins in March and, this year, will probably continue through the end
`of July.
`26.
`
`Through a response to a Freedom of Information Act (“FOIA”) request to the
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`Case 2:09-cv-01124-JAT Document 58 Filed 07/10/09 Page 5 of 11
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`EPA, Gowan obtained a copy of Aceto’s master-end use label at the end of February 2009.
`27.
`After reviewing the label, Gowan’s representatives, including Ms. Julie
`Butcher, immediately noticed the identical similarities between Aceto’s and Gowan’s label.
`28.
`If Gowan had pursued its copyright interests against Aceto or Aceto had known
`of Gowan’s intent to assert its protectable interests prior to Aceto’s first sales in March,
`Aceto would have refrained from selling their product to their distributors until a resolution
`had been reached that would not have interfered with the distributors’ course of business.
`(Prelim. Inj. Tr. 330:24-331:8.)
`29.
`Gowan and Canyon own valid and registered copyrights in their current and
`prior editions of the Sandea® and Permit® pesticide labels.
`30.
`Gowan registered its current Permit® and Sandea® labels with the Copyright
`Office in August 2007. Gowan registered prior editions of its Permit® and Sandea® labels
`with the Copyright Office on May 12, 2009, and received notice that the registrations had
`been filed on May 26, 2009.
`
`PROCEDURAL HISTORY
`Gowan filed this action on May 28, 2009, and notified Aceto on that date of its
`allegations of copyright infringement. Gowan filed its Application for TRO and Preliminary
`Injunction a week later, on June 4, 2009. (Docket No. 14.) The Temporary Restraining Order
`Hearing was held on June 8, 2009, and the Court declined to enter a temporary restraining
`order. (Docket No. 30.) Instead, the Court ordered that a Preliminary Injunction Hearing be
`held promptly. (Docket No. 32.) Plaintiffs and Defendant presented their evidence at the
`Preliminary Injunction Hearing on June 25 and 26, 2009. Gowan and Canyon now seek a
`preliminary injunction to protect their copyrights and to prevent Aceto from further violating
`federal copyright law.
`
`CONCLUSIONS OF LAW
`
`Jurisdiction and Venue
`The Court has personal jurisdiction over the parties to this action. The Court has
`jurisdiction over the subject matter of this action pursuant to 28 U.S.C. § 1332(a). Venue is
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`Case 2:09-cv-01124-JAT Document 58 Filed 07/10/09 Page 6 of 11
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`proper in this judicial district proper to 8 U.S.C. § 1391.
`Preliminary Injunction
`To obtain preliminary injunctive relief, the moving party must show: (1) a likelihood
`of success on the merits; (2) a likelihood of irreparable harm to the moving party in the
`absence of preliminary relief; (3) a balance of equities tips in the favor of the moving party;
`and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc.,
`--- U.S. ----, 129 S.Ct. 365, 376 (2008). Traditionally, injunctive relief was also appropriate
`under an alternative “sliding scale” test. The Lands Council v. McNair, 537 F.3d 981, 987
`(9th Cir.2008). However, the Ninth Circuit overruled this standard in keeping with the
`Supreme Court’s decision in Winter. American Trucking Ass’ns Inc. v. City of Los. Angeles,
`559 F.3d 1046, 1052 (9th Cir. 2009) (holding that “[t]o the extent that our cases have
`suggested a lesser standard, they are no longer controlling, or even viable”).
`Irreparable Harm
`Following the Supreme Court’s ruling in eBay Inc. v. MercExchange, L.L.C., 547 U.S.
`388 (2006), this Court abandoned the presumption of irreparable harm upon a finding of
`copyright infringement in requests for injunctions. Designer Skin, LLC v. S & L Vitamins,
`Inc. 2008 WL 4174882, at *3 (D. Ariz. 2008). See also Metro-Goldwyn-Mayer Studios, Inc.
`v. Grokster, Ltd., 518 F.Supp.2d 1197, 1210 (C.D. Cal. 2007). The Supreme Court’s more
`recent decision in Winter and the Ninth Circuit’s ruling in American Trucking further
`confirmed that irreparable harm should no longer be presumed. See Jacobsen v. Katzer, 609
`F.Supp.2d 925 (N.D. Cal. 2009).
`Because Winter requires that irreparable harm be imminent, any significant delay in
`pursuing an injunction is relevant in determining whether injunctive relief is necessary.
`Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374, 1377 (9th Cir.1985); Lydo
`Enters. v. Las Vegas, 745 F.2d 1211, 1212 (9th Cir. 1984) (holding that a preliminary
`injunction is “sought upon the theory that there is an urgent need for speedy action to protect
`the plaintiff’s rights”). See also Fogerty v. Poor Boy Prods., Inc., 124 F.3d 211, 1997 WL
`579175, at *3 (9th Cir. 1997) (ruling that the delay of more than a year in applying for a
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`Case 2:09-cv-01124-JAT Document 58 Filed 07/10/09 Page 7 of 11
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`preliminary injunction seriously undermined plaintiff’s claim of irreparable injury); Gilder
`v. PGA Tour, Inc. 936 F.2d 417, 423 (9th Cir. 1991) (ruling the plaintiff’s pursuit of action
`after four months was sufficiently diligent and did not undermine a claim of irreparable
`harm).
`Copyright in a work created on or after January 1, 1978, subsists from the moment of
`its creation. 17 U.S.C. § 302. While registration is not a prerequisite to having a protectable
`interest in a work, it is generally required to initiate an infringement suit. See 17 U.S.C. §§
`408(a) and 411(a). However, “section 411 does not limit the remedies a court can grant.
`Rather, the Copyright Act gives courts broad authority to issue injunctive relief.” Perfect 10,
`Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1154 n.1 (9th Cir. 2007). See also 17 U.S.C. §
`502(a). “Once a court has jurisdiction over an action for copyright infringement under section
`411, the court may grant injunctive relief to restrain infringement of any copyright, whether
`registered or unregistered.” Perfect 10, 508 F.3d at 1154 n.1.
`Gowan’s delay in seeking legal remedy undermines the imminence of the irreparable
`harm that Gowan alleges. Gowan was put on notice that Aceto encroached on its protectable
`interests by at least February, when Gowan’s senior registration specialist, Ms. Butcher,
`became aware of the identical similarities between Aceto’s and Gowan’s labels. At that time,
`Gowan’s Permit® and Sandea® labels were registered by the Copyright Office, and Gowan
`could have initiated suit over those interests. Even though its prior labels were not yet
`registered, Gowan did have a right of action under section 411 because its Sandea® and
`Permit® labels were registered by the Copyright Office in 2007, which would have given the
`Court authority over those copyrights and the discretion to grant injunctive relief over the
`unregistered labels as well. See Perfect 10, 508 F.3d at 1154 n.1.
`But Gowan filed this action three months later, which, in context, represents three
`fifths of this year’s sales season. Additionally, Gowan had time prior to the beginning of the
`sales season to assert its interests against Aceto. Moreover, Aceto would not have sold its
`product to its distributors if Gowan had brought suit before the beginning of the season.
`Thus, the Court concludes that Gowan’s delay prior to the sales season and throughout a
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`significant majority of the sales season undermines Gowan’s imminence argument.
`Accordingly, Gowan’s allegation of irreparable harm is undermined by its delay in filing its
`complaint.
`The Winter standard requires the plaintiff to demonstrate that irreparable harm is real,
`imminent and significant– not merely speculative or potential– with admissible evidence and
`a clear likelihood of success. 129 S.Ct. at 374. Harm is irreparable when it cannot be
`remedied except through injunctive relief. Designer Skin, LLC , 2008 WL 4174882, at *5;
`Grokster, 518 F.Supp.2d at 1210 (noting differences between cases). Economic damages are
`not traditionally considered irreparable because the injury can later be remedied by a damage
`award. Cal. Pharmacists Ass’n v. Maxwell-Jolly, 563 F.3d 847, 852 (9th Cir. 2009) (quoting
`Sampson v. Murray, 415 U.S. 61, 90 (1974) (holding that “the temporary loss of income,
`ultimately to be recovered, does not usually constitute irreparable injury. . . . The possibility
`that adequate compensatory or other corrective relief will be available at a later date, in the
`ordinary course of litigation, weighs heavily against a claim of irreparable harm”)). Equitable
`remedies, such as injunctive relief, are not available if an adequate remedy at law exists. Id.
`The jeopardy to a company’s competitive position caused by copyright infringement
`may satisfy the requirement of irreparable harm needed to support a preliminary injunction.
`Apple Computer, Inc. v. Formula Int’l Inc., 725 F.2d 521, 525-26 (9th Cir. 1984); Apple
`Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3rd Cir.1983) (holding that
`“[e]ven without [the] presumption of irreparable harm generally applied in copyright
`infringement actions, jeopardy to [a copyright holder’s] investment and competitive position
`caused by [a competitor’s] wholesale copying . . . would satisfy the requirement of
`irreparable harm needed to support [a] preliminary injunction”). However, pursuant to
`Winter, the plaintiff must demonstrate this harm with admissible evidence and with a clear
`likelihood of success that the harm is real, imminent and significant. 129 S.Ct. at 374. See
`also Arcamuzi v. Cont’l Air Lines, Inc., 819 F.2d 935, 938 (9th Cir.1987) (holding that
`“temporary economic loss alone generally is not a basis for injunctive relief”).
`Similarly, the threat of loss of prospective customers, goodwill, or reputation may
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`Case 2:09-cv-01124-JAT Document 58 Filed 07/10/09 Page 9 of 11
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`support a finding of irreparable harm, so long as it is not too speculative. Rent-A-Center, Inc.
`v. Canyon Television & Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir.1991) (noting that
`damage to the reputation or goodwill, because it is difficult to calculate, qualifies as
`irreparable harm); Stuhlbarg Intern. Sales Co., Inc. v. John D. Brush and Co., Inc., 240 F.3d
`832, 841 (9th Cir. 2001) (accepting the “threatened loss of prospective customers or goodwill
`may certainly support a finding of the possibility of irreparable harm”) (emphasis added).
`Damages to goodwill and reputation have typically supported findings of irreparable harm
`only where evidence clearly supports such damage. See MDY Indus., LLC v. Blizzard Entm’t,
`Inc., --- F.Supp.2d ----, 2009 WL 223631, at *13 (D. Ariz. 2009) (finding 500,000 customer
`complaints about a defendant sufficiently established irreparable injury to the plaintiff’s
`reputation and goodwill); see also Goldie’s Bookstore v. Sup. Ct., 739 F.2d 466, 472 (9th
`Cir.1984) (rejecting plaintiff’s claim of loss of goodwill and “untold” customers as too
`speculative).
`Gowan’s allegations that it has suffered irreparable harm in the form of lost market
`share, customer relationships, and goodwill are unpersuasive in light of the evidence
`presented at this stage. Gowan relies on Aceto’s sales figures and movement of product still
`within the distribution chain to support their claim of substantial harm from lost sales and
`market share. Gowan has not introduced any of its own evidence of actual lost Gowan sales.
`The allegation that Aceto’s sales and inventory represent a market share that would
`otherwise belong to Gowan is unsubstantiated and presumes facts not in evidence. The
`market share that Aceto captured may be accredited to a number of different factors, which
`include the expansion of the market or decrease in Gowan’s own product distribution. Absent
`evidence demonstrating a clear likelihood that Aceto’s sales figures equate to losses incurred
`by Gowan, the Court cannot find that Gowan has met its burden of demonstrating that it
`suffered irreparable harm by way of lost market share. Even if Gowan had demonstrated loss
`of actual sales, those lost sales are quantifiable and thereby reparable with a later monetary
`award. If Gowan can be made whole by a monetary damage award, then injunctive relief is
`inappropriate.
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`Moreover, Gowan has introduced no evidence of other unquantifiable harm, such as
`potential damage to customer relationships, reputation or brand recognition.1 Thus, the Court
`concludes that Gowan has not provided sufficient evidence to support a finding of irreparable
`harm.
`
`Balance of Equities
`A plaintiff seeking a preliminary injunction must also establish that the balance of
`equities tips in his favor. Winter, 129 S. Ct. at 374 (citations omitted); see also Continental
`Airlines v. Intra Brokers, Inc., 24 F.3d 1099, 1104 (9th Cir. 1994) (stating that courts should
`balance hardships between plaintiffs and defendants in considering injunctions). In each case,
`courts “must balance the competing claims of injury and must consider the effect on each
`party of the granting or withholding of the requested relief.” Winter, 129 S. Ct. at 376-77
`(2008) (citations omitted). “Where the only hardship that the defendant will suffer is lost
`profits from an activity which has been shown likely to be infringing, such an argument in
`defense ‘merits little equitable consideration[.]’” Triad Sys. Corp. v. Se. Express Co., 64 F.3d
`1330, 1338 (9th Cir. 1995) (internal citations omitted).
`The Court concludes that the potential harm to Gowan if the Court denies an
`injunction is less than the potential harm to Aceto if the Court enters an injunction. As the
`Court has previously stated, Gowan has not demonstrated that irreparable harm will result
`if the Court does not enter an injunction. Nor, other than citing to Aceto’s sales figures, has
`Gowan demonstrated the amount of its lost sales. Even assuming that Gowan has lost sales
`to Aceto, an injunction at this point would save Gowan only from lost sales through the
`remainder of this month, until the conclusion of this rice season.
`On the other hand, if the Court granted an improvident injunction, the Court finds that
`not only would Aceto suffer potential lost sales for the remainder of the rice season, but
`Aceto has demonstrated that an injunction could harm its relationships with its distributors,
`
`1The Court rejected Plaintiffs’ attempt to introduce a study that Plaintiffs purport
`would have supported a claim of potential damage to reputation.
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`might affect its ability to reemerge into the marketplace next year, and might jeopardize
`future pesticide product roll-outs. The Court concludes that the harm to Aceto, which
`potentially has repercussions beyond the current rice season, outweighs Gowan’s potential
`lost sales for this season.2 The Court therefore finds that the balance of equities tips in the
`Aceto’s favor. The Court will deny the injunction request for the additional reason that
`Gowan has failed to demonstrate that the equities tip in Gowan’s favor.
`Likelihood of Success on the Merits and Public Interest
`Because the Court has concluded that Gowan has not demonstrated a clear likelihood
`of irreparable harm nor that the balance of equities tips in Gowan’s favor, the Court need not
`and does not reach a decision as to the likelihood of Gowan’s success on the merits or
`consider the public policy prong of the preliminary injunction standard.3
`Based on the foregoing findings and conclusions,
`IT IS HEREBY ORDERED Denying Plaintiffs’ Motion for Preliminary Injunction
`(Doc. #14).
`DATED this 9th day of July, 2009.
`
`2Gowan does not dispute that if Aceto had a different, non-infringing label, Aceto
`could compete with Gowan for halosulfuron market share.
`
`3Furthermore, the Court does not reach a determination on the scope of injunctive
`relief appropriate here, and accordingly does not engage the three prong analysis recently
`adopted by the Ninth Circuit justifying product recalls, as set forth in Marlyn Nutraceuticals,
`Inc. v. Mucos Pharma GMBH & Co., No. 08-15101, slip op. at 8204 (9th Cir. July 2, 2009).
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