KRAFT FOODS GLOBAL, INC., Plaintiff-Appellant, v. STARBUCKS CORPORATION, Defendant-Appellee.

No. 11-389-cv.United States Court of Appeals, Second Circuit.
February 25, 2011.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from the United States District Court for the Southern District of New York (Seibel, J.).

ON CONSIDERATION WHEREOF, it is hereby ORDERED,ADJUDGED, and DECREED that the order of the district court is AFFIRMED.

William P. Quinn, Jr., Morgan, Lewis Bockius LLP, Philadelphia, Pa. (Kathleen McFarlane Waters, Morgan, Lewis Bockius LLP, Philadelphia, Pa., R. Ted Cruz, Allyson N. Ho, Morgan, Lewis Bockius LLP, Houston, Tex., on the brief), for Plaintiff-Appellant.

Aaron M. Panner, Kellogg, Huber, Hansen, Todd, Evans Figel, P.L.L.C. Washington, D.C. (Wan J. Kim, Kellogg, Huber, Hansen, Todd, Evans Figel, P.L.L.C. Washington, D.C. Maria Barton, Paul A. Serritella, Latham Watkins LLP, New York, N.Y., on the brief), for Defendant-Appellee.


Plaintiff-Appellant Kraft Foods Global, Inc. (“Kraft”) appeals from an order of the United States District Court for the Southern District of New York (Seibel, /.) entered on January 31, 2011, denying Kraft’s application for a preliminary injunction. By letter dated November 5, 2010, Defendant-Appellee Starbucks Corporation (“Starbucks”) notified Kraft that, effective March 1, 2011, it will terminate a distribution agreement and certain other related agreements between the parties on the basis that Kraft materially breached its obligations under the distribution agreement and failed to cure those breaches. Kraft seeks a preliminary injunction in order to prevent Starbucks from terminating these agreements pending an arbitrator’s resolution of Starbucks’ allegations of material breach. In its January 28, 2011 bench decision, the district court denied Kraft’s application for a preliminary injunction on the ground that Kraft failed to establish a likelihood that it would be irreparably harmed absent injunctive relief. We assume the parties’ familiarity with the facts and procedural history of this case.

We review a district court’s denial of a preliminary injunction for abuse of discretion. Lynch v. City of N.Y., 589 F.3d 94, 99 (2d Cir. 2009). “A district court has abused its discretion if it has (1) based its ruling on an erroneous view of the law, (2) made a clearly erroneous assessment of the evidence, or (3) rendered a decision that cannot be located within the range of

Page 429

permissible decisions.” Id. (internal quotation marks omitted).

In order to obtain a preliminary injunction, the movant must show, inter alia, “that irreparable injury i likely in the absence of an injunction.” Winter v. NRDC, 555 U.S. 7, 129 S.Ct. 365, 375, 172 L.Ed.2d 249
(2008) (emphasis in original); see also Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 34, 37 n. 6 (2d Cir. 2010). “To satisfy the irreparable harm requirement, [p]laintiff[] must demonstrate that absent a preliminary injunction [it] will suffer an injury that is neither remote nor speculative, but actual and imminent, and one that cannot be remedied if a court waits until the end of trial to resolve the harm.” Grand River Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007) (internal quotation marks omitted). In assessing the possibility of irreparable harm, courts “must not adopt a `categorical’ or `general’ rule or presume that the plaintiff will suffer” such harm, but instead “must actually consider the injury the plaintiff will suffer if he or she loses on the preliminary injunction but ultimately prevails on the merits, paying particular attention to whether the `remedies available at law, such as monetary damages, are inadequate to compensate for that injury. `” Salinger v. Colting, 607 F.3d 68, 80 (2d Cir. 2010) (quoting eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 393-94, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006)).

For substantially the reasons stated by the district court in its ruling from the bench, we conclude that Kraft has failed to show that it faces an actual and imminent risk of injury that cannot be compensated by money damages. We therefore hold that the district court did not abuse its discretion by denying the preliminary injunction.

We have considered Kraft’s remaining arguments and find them to be without merit. Accordingly, for the foregoing reasons, the order of the district court is AFFIRMED.