United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
D. Leinenweber, Judge
the Court is Plaintiff TopstepTrader, LLC's Motion for a
Temporary Restraining Order to enjoin Defendant OneUp Trader,
LLC from continuing to operate its website and business. [ECF
No. 7] . Primarily because TopstepTrader has not carried its
burden to show a likelihood of success on the merits of its
case, the Court denies the Motion.
TopstepTrader, LLC ("TopstepTrader") filed this
two-count lawsuit, alleging that Defendant OneUp Trader, LLC
("OneUp Trader") infringed its copyright and
breached a contract obliging OneUp Trader not to compete with
TopstepTrader. In its Complaint, TopstepTrader pleads that
OneUp Trader accessed its website, copied its copyrighted
content, and then used the materials to start a competing
business. TopstepTrader further alleges that by accessing its
site - and possibly signing up for an account - OneUp Trader
has agreed not to "[use] the Sites or Services to gain
competitive intelligence about TopstepTrader or the Sites or
Services to compete with TopstepTrader or its
affiliates." ECF No. 1 (Compl.) ¶ 24 & Ex. B
¶ 22. More still, OneUp Trader has agreed that
"breach of the provisions of this Agreement would cause
irreparable harm and significant injury to TopstepTrader
which would be both difficult to ascertain and which would
not be compensable by damages alone." Compl. ¶ 25
and Ex. B ¶ 23.
moved for a temporary restraining order ("TRO") ten
(10) days after filing the lawsuit. At the company's
request, the Court held a hearing on the Motion less than a
week thereafter. The short timeframe means that no discovery
has taken place. As such, the only evidence presented at the
hearing was information readily available to TopstepTrader,
which included the testimony of its CEO; a business record
purporting to show a contract between the parties; and the
public-facing portion of OneUp Trader's website, or those
pages from the site that do not require a user to create an
account or pay a fee to access. The dearth of evidence makes
the already heavy burden that TopstepTrader faces even more
difficult to meet. Indeed, TopstepTrader did not meet it.
TopstepTrader correctly noted, the standard for an issuance
of a TRO is the same as that for a preliminary injunction.
See, Kaczmarski v. Wheaton Cmty. Unit Sch. Dist.
#200, No. 04-C-2976, 2004 U.S. Dist. LEXIS 7823, at *10
(N.D. 111. May 3, 2004). This means that TopstepTrader must
show the following: "(1) its case has some likelihood of
success on the merits; (2) that no adequate remedy at law
exists; and (3) it will suffer irreparable harm if the
injunction is not granted." Ty, Inc. v. Jones Grp.
Inc., 237 F.3d 891, 895 (7th Cir. 2001). Even where the
Court is satisfied that these threshold conditions have been
met, it will issue a TRO only if, in weighing the irreparable
harm TopstepTrader will suffer if the TRO is denied against
the irreparable harm to OneUp Trader if the relief is
granted, the Court is convinced that the balance of equities
calls for such relief. See, id.
the Court finds that TopstepTrader has failed to show that
this balance swings in its favor. Before delving into the
analysis, however, the Court pauses to note that in making
this determination, it considers only TopstepTrader's
breach of contract claim, and not the copyright infringement
cause of action.
has waived its copyright infringement claim for the purposes
of the TRO. In its initial appearance before the Court,
TopstepTrader stated that although "the copyright claim
... is still pending and whatnot [, ] [t]he TRO is actually
on the breach of the contract." ECF No. 13 (Hr'g Tr.
June 22, 2017) at 9:22-10:9. On the day of the TRO hearing,
the company again represented that, "[w]hat we're
pursuing for this TRO is the contract." TRO Hr'g Tr.
(June 26, 2017) at 42:16.
TopstepTrader continued to accuse OneUp Trader of copying its
content, such arguments were made in pursuit of the breach of
contract claim. The relevance of any copying was limited to
showing that OneUp Trader must have accessed
TopstepTrader's website and thereby agreed to its terms
of service not to compete. See, e.g., TRO Hr'g
Tr. at 9:5-7 (citing Ty, Inc. v. GMA Accessories,
Inc., 132 F.3d 1167, 1171 (7th Cir. 1997) to make the
point that "access can be confirmed when two works are
so similar to each other that one cannot help but realize
they must have accessed the accounts and the content because
they're such straight copies"); 39:6-11 ("So
when content is copied, particularly in a scenario like this,
copied heavily, . . . that does show access, your
Honor."); 40:6-41:9 ("And to this day, they still
have copied content. This is unavoidable and clear access.
You can't come up with some of these words, particularly
words that were made up by our client."); 99:5-15
("[T]hey obviously had access because you can't, you
know, figure out the same exact words that were made
up."); 185:5-8 ("[A] 11 we can see is a copy but
again, courts say, if you copy and there's substantial
similarity, access is presumed.").
the express and unambiguous waiver of the copyright
infringement claim for the purposes of this TRO, the Court
discusses that cause of action no further.
Breach of Contract
therefore is left with its breach of contract claim. This
claim cannot sustain the company's Motion for a TRO for
three reasons: (1) TopstepTrader has not shown that it is
likely to succeed in proving that an enforceable contract
exists between it and OneUp Trader such that OneUp Trader
could have breached a contract; (2) even if OneUp Trader had
breached a contract, the breach has not been shown to cause
TopstepTrader irreparable harm; and (3) any irreparable harm
to OneUp ...