First Western Capital Management Co. v. Malamed

                                                                                FILED
                                                                    United States Court of Appeals
                                      PUBLISH                               Tenth Circuit

                      UNITED STATES COURT OF APPEALS                     October 30, 2017

                                                                        Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                           Clerk of Court
                        _________________________________

FIRST WESTERN CAPITAL
MANAGEMENT COMPANY, a Colorado
corporation; FIRST WESTERN
FINANCIAL, INC., a Colorado
corporation,

      Plaintiffs - Appellees,                   Nos. 16-1434, 16-1465 & 16-1502

v.

KENNETH D. MALAMED,

      Defendant - Appellant.
                      _________________________________

                    Appeals from the United States District Court
                             for the District of Colorado
                      (D.C. No. 1:16-CV-01961-WJM-MJW)
                      _________________________________

Submitted on the briefs:*

Kent B. Goss, Orrick Herrington & Sutcliffe LLP, Los Angeles, California and Paul H.
Schwartz, Shoemaker Ghiselli & Schwartz, LLC, Boulder, Colorado, for Appellant.

Timothy R. Beyer and Sarah L. Hartley, Bryan Cave LLP, Denver, Colorado, for
Appellee.
                      _________________________________




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Before McKAY, MATHESON, and McHUGH, Circuit Judges.
                 _________________________________

MATHESON, Circuit Judge.

                        __________________________________


       First Western Capital Management (“FWCM”), an investment management

company, and its parent company First Western Financial, Inc. (collectively, “First

Western”), sought a preliminary injunction against former employee Kenneth Malamed

for misappropriating trade secrets. The district court excused First Western from

demonstrating irreparable harm—one of the four elements a party seeking injunctive

relief is typically required to prove—and granted the injunction. Mr. Malamed appeals.

Exercising jurisdiction under 28 U.S.C. § 1292(a)(1), we reverse.


                                  I. BACKGROUND

                                   A. Factual History

       First Western is headquartered in Denver, Colorado. In 2008, it acquired

Financial Management Advisors, LLC (“FMA”), an investment firm Mr. Malamed

founded in 1985 primarily to serve high net worth individuals and entities such as trusts

and foundations. After selling FMA, Mr. Malamed worked for FWCM from 2008 until

FWCM terminated him on September 1, 2016.

       In early 2016, a committee of FWCM directors began discussing the possibility of

selling FWCM to another company. Although Mr. Malamed was not involved in these

discussions, he learned about the potential sale and, in a meeting with other FWCM


                                            2
officers, expressed his displeasure with the buyer under consideration. Following the

meeting, Mr. Malamed emailed his assistant asking her to print three copies of his client

book, which contained the names and contact information for approximately 5,000

FWCM contacts. Of these contacts, 331 were current FWCM clients and roughly half of

those had been clients of FMA before First Western acquired it. The printout also

contained spreadsheets that included, among other information, client names, the total

market value of their holdings under management, and the fees being charged by FWCM.

      On September 1, 2016, shortly after Mr. Malamed’s employment contract expired,

First Western fired him.

                                 B. Procedural History

      On September 1, 2016, the same day Mr. Malamed was fired, First Western

served him with a complaint it had filed in federal court a month earlier. The

complaint alleged misappropriation of trade secrets under the federal Defend Trade

Secrets Act of 2016, 18 U.S.C. § 1836 (“DTSA”), and the Colorado Uniform Trade

Secrets Act, Colo. Rev. Stat. §§ 7-74-101 et seq. (“CUTSA”), breach of employment

contract, and breach of fiduciary duty. First Western moved for a temporary

restraining order and a preliminary injunction to prevent Mr. Malamed from

soliciting FWCM’s clients.

      After conducting an evidentiary hearing, the district court issued a preliminary

injunction preventing Mr. Malamed from “soliciting business from, or otherwise

competing for the business of, any FWCM Client; and . . . from accepting business



                                            3
offered from any FWCM Client,” with some exceptions. App., Vol. I at 200.1 In

making this decision, the court excused First Western from demonstrating one of the

standard requirements to obtain injunctive relief—a showing of irreparable harm in

the absence of an injunction.2 Citing our decision in Star Fuel Marts, LLC v. Sam’s

East, Inc., 362 F.3d 639 (10th Cir. 2004), the court said, “[T]he irreparable harm

requirement is excused when the evidence shows that a defendant is or will soon be

engaged in acts or practices prohibited by statute, and that statute provides for

injunctive relief to prevent such violations.” App., Vol. I at 196. “Because both the

DTSA, 18 U.S.C. § 1836(b)(3)(A), and CUTSA, Colo. Rev. Stat. § 7-74-103, provide

for injunctive relief to prevent misuse of trade secrets,” and because “Mr. Malamed

[was] misusing or threatening to misuse trade secrets regarding FWCM clients,” the

court determined that “irreparable harm presumptively exists and need not be

separately established.” Id. at 196-97.




      1
        The preliminary injunction applied to all FWCM clients “other than the
Excepted Clients and Other Intended Departures.” App., Vol. I at 200 . The
“Excepted Clients” were six individuals specifically excluded from the PI Order.
The court defined “Other Intended Departures” as certain FWCM clients who had
already expressed their intent to close their FWCM accounts before September 1,
2016.
      2
        To obtain injunctive relief, a party generally must demonstrate: (1) a
substantial likelihood of success on the merits, (2) irreparable injury in the absence of
the injunction, (3) its threatened injury outweighs the harm to the opposing party
under the injunction, and (4) the injunction is not adverse to the public interest.
Westar Energy, Inc. v. Lake, 552 F.3d 1215, 1224 (10th Cir. 2009).


                                           4
      Had First Western not been excused from showing irreparable harm under Star

Fuel, however, the court would have denied injunctive relief because it determined

that money damages could be “reasonably quantified” and “would have adequately

made [First Western] whole.” Id. at 197 n.5. The court questioned whether Star Fuel

remained good law in light of subsequent Supreme Court cases “strongly

suggest[ing] that no element of the injunction test should be presumed.” Id. But it

concluded that because this court had not yet addressed that question, it was “bound

to follow [Star Fuel].” Id.

      This court addressed precisely that question in Fish v. Kobach, 840 F.3d 710

(10th Cir. 2016), issued just three weeks after the district court granted First Western

the preliminary injunction. In Fish, we explained that Supreme Court cases

following Star Fuel “clarif[ied] the narrow circumstances when a presumption of

irreparable injury could apply.” Id. at 751 n.24. Courts may presume irreparable

harm only when a party is seeking an injunction under a statute that mandates

injunctive relief as a remedy for a violation of the statute. Id. When Congress passes

such a statute, it effectively withdraws the courts’ traditional discretion to determine

whether such relief is warranted. Id. When, by contrast, a statute merely authorizes

injunctive relief, courts may not presume irreparable harm, as doing so would be

“contrary to traditional equitable principles.” Id. (quotations omitted).

      On October 28, 2016, Mr. Malamed appealed, seeking our review of the

preliminary injunction. This is appeal 16-1434. He later filed two additional

appeals—16-1465 and 16-1502—challenging separate district court orders pertaining

                                            5
to the scope of the preliminary injunction. This court consolidated the appeals, and

Mr. Malamed filed a single, consolidated opening brief for all three appeals. Our

reversal of the preliminary injunction in appeal 16-1434 renders the other appeals

moot.


                                   II. DISCUSSION

        We discuss: (A) our standard of review, (B) the requirements for obtaining

injunctive relief, and (C) whether First Western is excused from demonstrating one of

those requirements—irreparable harm. We conclude that First Western must show

irreparable harm to obtain an injunction. Because the district court had already

determined First Western cannot establish irreparable harm, injunctive relief was not

warranted. We reverse.

                                A. Standard of Review

        We review orders granting a preliminary injunction for abuse of discretion.

Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012). An abuse of discretion occurs

when a decision is premised “on an erroneous conclusion of law or where there is no

rational basis in the evidence for the ruling.” Id. (quotations omitted). Thus, we

review the district court’s factual findings for clear error and its conclusions of law—

including whether to excuse a party from showing irreparable harm—de novo.

Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003).




                                           6
                                 B. Legal Background

1. Preliminary Injunctions

      “A preliminary injunction is an extraordinary remedy never awarded as of

right.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 24 (2008). A party may be

granted a preliminary injunction only when monetary or other traditional legal

remedies are inadequate, and “the right to relief [is] clear and unequivocal.” Schrier

v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005) (quotations omitted).

      Under Rule 65 of the Federal Rules of Civil Procedure, a party seeking a

preliminary injunction must show: “(1) the movant is substantially likely to succeed

on the merits; (2) the movant will suffer irreparable injury if the injunction is denied;

(3) the movant’s threatened injury outweighs the injury the opposing party will suffer

under the injunction; and (4) the injunction would not be adverse to the public

interest.” Fish, 840 F.3d at 723 (alterations and quotations omitted); see also

Schrier, 427 F.3d at 1258.

      Regarding irreparable harm, the movant “must demonstrate a significant risk

that he or she will experience harm that cannot be compensated after the fact by

money damages.” Fish, 840 F.3d at 751 (quotations omitted). “[C]ourts have

consistently noted that because a showing of probable irreparable harm is the single

most important prerequisite for the issuance of a preliminary injunction, the moving

party must first demonstrate that such injury is likely before the other requirements”

will be considered. Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356

F.3d 1256, 1260 (10th Cir. 2004) (quotations omitted). Demonstrating irreparable

                                            7
harm is “not an easy burden to fulfill.” Greater Yellowstone Coal v. Flowers, 321

F.3d 1250, 1258 (10th Cir. 2003).

2. Fish v. Kobach

      Although a party seeking a preliminary injunction generally must show all four

elements, in limited circumstances courts may presume irreparable harm and grant

injunctive relief. Fish clarified when this presumption applies.

      Under Fish, when a statute mandates injunctive relief as a remedy for a

violation—or impending violation—of the statute, it has effectively constrained the

courts’ traditional discretion to determine whether such relief is warranted. Fish, 840

F.3d at 751 n.24. In that case, courts presume irreparable harm and grant an

injunction even if the moving party failed to show it. Id. But when a statute merely

authorizes—rather than mandates—injunctive relief, courts must determine that the

moving party has established all four elements to grant injunctive relief. Id.; see also

Bedrossian v. Nw. Mem’l Hosp., 409 F.3d 840, 843 (7th Cir. 2005).

      In Fish, voters in Kansas sued the Kansas Secretary of State, alleging that

section 5 of the National Voter Registration Act (the “NVRA”), 52 U.S.C. § 20504,

preempted a Kansas law requiring documentary proof of citizenship (“DPOC”) for

voter registration. The district court found the plaintiffs “had made a strong showing

that Kansas’s DPOC law was preempted by NVRA section 5” and granted plaintiffs’

motion for a preliminary injunction against enforcement of Kansas’s DPOC

requirements. Id. at 716. The government appealed, arguing the plaintiffs had failed

to meet the irreparable harm standard.

                                           8
       On appeal, the plaintiffs defended the court’s determination that they need not

demonstrate irreparable harm, arguing that under our precedent in Atchison, Topeka

& Santa Fe Ry. Co. v. Lennen, 640 F.2d 255 (10th Cir. 1981), no showing of

irreparable harm is necessary when “the defendants are engaged in, or about to be

engaged in, the act or practices prohibited by a statute which provides for injunctive

relief to prevent such violations.” Fish, 840 F.3d at 751 n.24 (quoting Atchison, 640

F.2d at 259) (emphasis added). We rejected this argument, explaining that Atchison

and the Star Fuel line of cases must be read in light of the Supreme Court’s later

decisions, which “clarify the narrow circumstances when a presumption of

irreparable injury could apply stemming from congressional enactment.” Id.; see

Winter v. NRDC, 555 U.S. 7 (2008). Courts may presume irreparable harm, we

explained, only when Congress clearly intended to depart from established principles

of equity jurisprudence and mandate injunctive relief. Finding “no indication in the

NVRA’s text that Congress intended to constrain or otherwise guide the traditional

exercise of equitable jurisdiction in weighing whether an injunction should issue,” we

held the plaintiffs were required to demonstrate irreparable harm to obtain injunctive

relief. Id.

       Our sibling circuits have similarly recognized the Supreme Court’s narrowing

of the circumstances under which courts may presume irreparable harm. Earlier

circuit court decisions had stated, as we did in Star Fuel, that a movant need not

show irreparable harm when seeking an injunction to prevent the violation of a

statute that merely provided for injunctive relief. See Burlington N. R.R. Co. v. Bair,

                                           9
957 F.2d 599, 601 (8th Cir. 1992); Ill. Bell Tel. Co. v. Ill. Commerce Comm’n, 740

F.2d 566, 571 (7th Cir. 1984). These courts later clarified that “unless a statute

clearly mandates injunctive relief . . ., the courts are to employ traditional equitable

considerations (including irreparable harm) in deciding whether to grant such relief.”

Bedrossian, 409 F.3d at 843 (emphasis added) (citing Weinberger v. Romero-

Barcelo, 456 U.S. 305 at 313, 317-18); see In re Sac & Fox Tribe of the Mississippi

in Iowa/Meskwaki Casino Litig., 340 F.3d 749, 760-62 (8th Cir. 2003) (applying a

four-part test in the absence of a statute providing only equitable remedies); see also

C.B. v. Bd. of School Comm’rs of Mobile, Cty., 261 F. App’x 192, 194 (11th Cir.

2008) (unpublished) (refusing to presume irreparable harm where the statute in

question provided for, but did not mandate, injunctive relief).

3. The Statutes

       DTSA and CUTSA, authorize—but do not require—injunctive relief.3 DTSA

states that “a court may . . . grant an injunction . . . to prevent any actual or

threatened misappropriation,” or the court may award “damages for actual loss

caused by the misappropriation of the trade secret.” 18 U.S.C. § 1836(b)(3)(A), (B)

(emphasis added). It also provides for other means of enforcement, permitting

recovery of damages for “unjust enrichment . . . that [were] not addressed in


       3
        Nor does either statute “limit[] the remedies available to the District Court”
such that “only an injunction could vindicate the objectives of” the statute. See
Amoco Prod. v. Vill. of Gambell, 480 U.S. 531 at 543 n.9 (quotations omitted)
(distinguishing statute at issue in that case from the Endangered Species Act, which
required the district court to enjoin completion of a dam to preserve an endangered
species).
                                             10
computing damages for actual loss” and “exemplary damages” in cases where the

trade secret was “willfully and maliciously misappropriated.” Id. § 1836(b)(3)(B),

(C).

       Similarly, CUTSA provides that “[t]emporary and final injunctions . . . may be

granted on such equitable terms as the court deems reasonable to prevent or restrain

actual or threatened misappropriation of a trade secret.” Colo. Rev. Stat. § 7-74-103

(emphasis added). It also permits “a complainant . . . to recover damages for

misappropriation,” which can include “both the actual loss caused by

misappropriation and the unjust enrichment caused by misappropriation that is not

taken into account in computing actual loss.” Id. § 7-74-104.

                                     C. Analysis

       We conclude: (1) First Western was required to demonstrate irreparable harm;

(2) based on the district court’s determination that First Western was unable to

demonstrate irreparable harm, the preliminary injunction was unwarranted; and (3)

First Western’s remaining arguments lack merit.

1. The Statutes Do Not Permit a Presumption of Irreparable Harm

       DTSA and CUTSA—like the statute at issue in Fish—merely authorize and do

not mandate injunctive relief and thus do not allow a presumption of irreparable

harm. We need not determine whether Fish overruled Star Fuel; we need only

acknowledge, as the court did in Fish, that we must read Star Fuel in light of later

Supreme Court cases clarifying the proper application of the irreparable harm



                                          11
presumption. As applied here, if First Western cannot show irreparable harm, it

cannot obtain injunctive relief.

2. No Showing of Irreparable Harm, No Preliminary Injunction

        We need not address each of the four preliminary injunction factors here

because the district court has already determined First Western cannot show

irreparable harm. The court found that if First Western ultimately succeeded on its

claims against Mr. Malamed, money damages could be quantified and would

“adequately ma[k]e [the company] whole.” App., Vol. I at 197 n.5. Without

showing irreparable harm, First Western cannot obtain a preliminary injunction. See

Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (“[E]ven if Plaintiffs

establish a likelihood of success on the merits, the absence of a substantial likelihood

of irreparable injury would, standing alone, make preliminary injunctive relief

improper.”) The district court should not have entered the preliminary injunction

here.

3. First Western’s Arguments

        First Western argues that the district court’s finding of no irreparable harm

was cursory and nonbinding, that Mr. Malamed forfeited his irreparable harm

argument, and that we should reject his argument based on the doctrines of judicial

estoppel and stare decisis. None of these arguments has merit.

        a. District court’s finding on irreparable harm

        First Western argues we should disregard the court’s irreparable harm finding

as perfunctory and dicta. It requests that if we determine it was required to show

                                            12
irreparable harm, we remand for further proceedings. But remand is unnecessary.

The district court made its irreparable harm finding having fully aired the issue. It

had the benefit of extensive briefing on irreparable harm from both parties. The

court also conducted a day-long preliminary injunction hearing. It heard argument

and testimony, including from top-level First Western executives, on whether the

company would face irreparable harm absent an injunction. The court nevertheless

determined that monetary damages were quantifiable and sufficient to make First

Western whole. Having reviewed the parties’ briefs and the record, including the

transcript of the preliminary injunction hearing, we see no reason to question the

court’s determination that First Western failed to show irreparable harm.

       b. Forfeiture

       First Western contends Mr. Malamed failed to raise in district court the

argument he now makes on appeal—that First Western must show irreparable harm

because “[t]he requirement of irreparable harm is excused only when a statute

unequivocally requires the courts to issue [preliminary injunctions], not merely when

it permits courts to do so.” Aplt. Br. at 25; see Paycom Payroll, LLC v. Richison,

758 F.3d 1198, 1203 (10th Cir. 2014) (explaining that when a theory was not raised

before the district court, we usually hold it forfeited). We need not decide whether

Mr. Malamed forfeited this argument.4 Even if he did, we may exercise our

discretion to consider it.


       4
       In its motion for a preliminary injunction, First Western argued that under
Star Fuel, it was exempt from the irreparable harm requirement. Mr. Malamed
                                          13
       “Normally when a party presents a new argument on appeal and fails to

request plain error review, we do not address it.” Margheim v. Buljko, 855 F.3d

1077, 1088 (10th Cir. 2017). But even when a party fails to preserve an issue, we

retain “discretion to raise and decide issues sua sponte, even for the purpose of

reversing a lower court judgment,” because “[w]aiver . . . binds only the party, not

the court.” Planned Parenthood of Kan. & Mid-Mo. v. Moser, 747 F.3d 814, 837

(10th Cir. 2014) (abrogated in part on other grounds by Armstrong v. Exceptional

Child Center, Inc., 135 S. Ct. 1378 (2015)); see also Singleton v. Wulff, 428 U.S. 106,

121 (1976) (“The matter of what questions may be taken up and resolved for the first


responded by repeatedly making general assertions that First Western was required to
show irreparable harm. See, e.g., App., Vol. I at 27 (“In order to be entitled to entry
of a preliminary injunction pursuant to Fed. R. Civ. P. 65, Plaintiffs must establish
that: (1) they will suffer irreparable injury unless the injunction issues . . . .”) (citing
Schrier, 427 F.3d at 1258); id. (“The moving party bears the burden of persuasion as
to each of the four factors relevant to injunctive relief.” (quoting Winmark Corp. v.
Schneeberger, No. 13-cv-0274-WJM-BNB, 2013 WL 1154506, at *4 (D. Colo. Mar.
19, 2013)); id. at 28 (“A showing of probable irreparable harm is the single most
important prerequisite for the issuance of a preliminary injunction.” (quoting
Dominion Video Satellite, 356 F.3d at 1260)).
        But Mr. Malamed never addressed First Western’s argument that under Star
Fuel, it was excused from showing irreparable harm. Instead, he relied solely on
general statements of law laying out the traditional four-part preliminary injunction
test. During the preliminary injunction hearing, the district court even noted its
surprise that Mr. Malamed had failed to respond to First Western’s Star Fuel
argument. Mr. Malamed preserved a general argument about the four requirements
typically required to obtain injunctive relief, but whether he preserved his specific
argument—that courts may excuse a showing of irreparable harm only when the
statute mandates an injunction—is less clear. See Margheim v. Buljko, 855 F.3d
1077, 1088 (10th Cir. 2017) (holding that a party’s argument in district court—that
the dismissal of a previous case was not a “favorable” termination—failed to
preserve for appeal a specific argument about the reason why the previous case was
not favorably terminated).

                                            14
time on appeal is one left primarily to the discretion of the courts of appeals, to be

exercised on the facts of individual cases.”).

       “Our discretion allows us to determine an issue raised for the first time on appeal

if it is a pure matter of law and its proper resolution is certain.” Cox v. Glanz, 800 F.3d

1231, 1246 n.7 (10th Cir. 2015) (quotations omitted); see also Ave. Capital Mgmt. II, L.P.

v. Schaden, 843 F.3d 876, 886 (10th Cir. 2016) (“[E]ven for matters of law, we decline to

consider newly presented legal arguments unless the proper legal disposition is beyond

reasonable doubt.”). Although we use this discretion sparingly, see United States v.

Jarvis, 499 F.3d 1196, 1202 (10th Cir. 2007), we reach Mr. Malamed’s irreparable harm

argument for five reasons.

       First, the preliminary injunction requirements present purely a legal question, the

proper resolution of which is certain under Fish. See Margheim, 855 F.3d at 1088; Cox,

800 F.3d at 1256 n.7.

       Second, the district court was aware of this issue and addressed it. Although the

court agreed with First Western that Star Fuel excused it from demonstrating irreparable

harm, it acknowledged that “later Supreme Court precedent . . . call[ed] the Star Fuel line

of precedent into doubt.” App., Vol. 1 at 197 n.5. The general concern underlying the

concept of forfeiture—that a district court was not alerted to the issue and lacked the

opportunity to rule on it—is not implicated here. See Somerlott v. Cherokee Nation

Distribs., Inc., 686 F.3d 1144, 1150 (10th Cir. 2012).

       Third, both parties had full opportunity to argue—and did argue—this issue on

appeal. See Jarvis, 499 F.3d at 1202 (“We have justified our decision to exercise

                                             15
discretion in these situations because . . . both parties had the opportunity to address the

issue in their appellate briefing.”); see also Anixter v. Home-Stake Prod. Co., 77 F.3d

1215, 1228-29 (10th Cir. 1996) (exercising discretion to reach issue that was “extensively

briefed on appeal”).

       Fourth, our consideration of Mr. Malamed’s argument is consistent with the notion

that a preliminary injunction is an “extraordinary remedy” that is granted only when “the

movant’s right to relief [is] clear and unequivocal.” Wilderness Workshop v. U.S. Bureau

of Land Mgmt., 531 F.3d 1220, 1224 (10th Cir. 2008) (alterations and quotations

omitted). Given the nature of injunctive relief, we should not entrench an erroneous

result based on forfeiture, particularly in light of the certain resolution of the legal

question under Fish. See Margheim, 855 F.3d at 1088-89.

       Finally, until we decided Fish, this court had not clarified the narrow

circumstances in which a court could excuse a showing of irreparable harm and still issue

a preliminary injunction. The fact that this court decided Fish three weeks after the

district court entered its preliminary injunction and shortly before Mr. Malamed filed his

notice of appeal lends support to exercising our discretion to reach the merits of this

appeal. See Green v. Bd. of Cty. Comm’rs, 472 F.3d 794, 798 n.1 (10th Cir. 2007).

       c. Judicial estoppel

       First Western argues Mr. Malamed should be judicially estopped from making

his irreparable harm arguments because his counsel cited a case during the

preliminary injunction hearing that accords with Star Fuel’s rule regarding when to

excuse a showing of irreparable harm. Courts may invoke judicial estoppel to

                                              16
prevent a party from asserting a claim in a legal proceeding that is inconsistent with a

claim taken by that party in a previous proceeding. New Hampshire v. Maine, 532

U.S. 742, 749-50 (2001). Although the circumstances in which courts apply this

doctrine vary, three factors typically inform this decision: (1) “a party’s subsequent

position must be clearly inconsistent with its former position”; (2) the “party

succeeded in persuading a court to accept that party’s former position, so that judicial

acceptance of an inconsistent position in a later proceeding would create the

perception that either the first or the second court was misled”; and (3) the party

“would gain an unfair advantage in the litigation if not estopped.” Eastman v. Union

Pac. R.R. Co., 493 F.3d 1151, 1156 (10th Cir. 2007) (quotations omitted).

         First Western does not analyze or even identify these factors, but judicial

estoppel is plainly not warranted on these facts. Mr. Malamed has consistently

maintained that First Western was required to meet all four preliminary injunction

factors.5 He never attempted to persuade the court that First Western should be

excused from showing irreparable harm. And First Western does not identify—nor

can we discern—what unfair advantage Mr. Malamed might gain if not estopped.

First Western’s judicial estoppel argument fails and, in any event, is inadequately

briefed and thus waived. See Leathers v. Leathers, 856 F.3d 729, 750 (10th Cir.

2017).

         5
         The fact that Mr. Malamed’s counsel said during the preliminary injunction
hearing that irreparable harm was “not” the most important prerequisite for a
preliminary injunction does not affect this analysis. Counsel clearly misspoke. See
note 6, supra. Regardless, the relative importance of the four parts of the preliminary
injunction test is irrelevant here.
                                             17
      d. Stare decisis

      First Western argues the district court properly applied the law in our circuit at

the time it issued its preliminary injunction—Star Fuel—and thus Mr. Malamed

failed to demonstrate the district court erred. But as we explained in United States v.

Madrid, “when case law alters the legal analysis between the time of trial and the

time of appeal, it is enough that an error be ‘plain’ at the time of appellate

consideration.” 805 F.3d 1204, 1212 (10th Cir. 2015) (quotations omitted)

(abrogated on other grounds by Beckles v. United States, 137 S. Ct. 886 (2017)); see

also United States v. Cordery, 656 F.3d 1103, 1107 (adopting the rule that “plain

error is measured at the time of appeal,” even in situations when “the law at the time

of the contested decisions was unsettled”). Fish—issued three weeks after the

court’s preliminary injunction—altered the legal analysis and rendered the

preliminary injunction plainly erroneous. The district court’s reliance on Star Fuel is

thus beside the point.


                                  III. CONCLUSION

      For the foregoing reasons, we reverse the district court’s grant of a preliminary

injunction6 and dismiss the other appeals—16-1465 and 16-1502—as moot.




      6
         Reversing the preliminary injunction obviates the need to consider the
parties’ remaining arguments regarding whether Mr. Malamed possessed trade
secrets or could be prohibited from accepting unsolicited business.
                                           18