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TopstepTrader, LLC v. OneUp Trader, LLC

United States District Court, N.D. Illinois, Eastern Division

June 28, 2017



          Harry D. Leinenweber, Judge

         Before 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.

         I. BACKGROUND

         Plaintiff 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.

         TopstepTrader 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.

         II. ANALYSIS

         As 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.

         Here, 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.

         A. Copyright Infringement

         TopstepTrader 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.

         Although 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.").

         Given 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.

         B. Breach of Contract

         TopstepTrader 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 ...

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