Performance Unlimited, Inc. v. Questar Publishers, Inc.

This is a case of first impression in this circuit involving the question of whether a district court can issue a preliminary injunction under § 3 of the Federal Arbitration Act, 9 U.S.C. § 3 (1982), when the parties to this action have agreed that arbitration “shall be the sole and exclusive remedy for resolving any disputes between the parties arising out of or involving [the] Agreement” sued upon. Plaintiff Performance Unlimited, Inc. (“Performance”) appeals the district court’s order denying its motion for a preliminary injunction, filed pursuant to 28 U.S.C. §§ 1332(a)(1), 2201, and 2202, which would have required defendant Questar Publishers, Inc. (“Questar”) to pay royalties to Performance while their contract dispute was resolved in arbitration. On appeal, the issues are (1) whether the district court erred in finding that it was precluded from issuing a preliminary injunction because of the mandatory arbitration provision in the parties’ licensing agreement and (2) whether the district court erred in finding that Performance did not satisfy the four factors considered in its decision to grant or deny a preliminary injunction. For the reasons that follow, we reverse and remand.

I.

A.

This is an action for breach of contract, for a declaration of the parties’ contractual rights, and for a preliminary injunction arising from the nonpayment of royalties pursuant to a licensing agreement between Performance and Questar. The royalties which are at the core of the parties dispute stem from the publication of The Beginner’s Bible, a compilation of children’s bible stories.

*1376 Don Wise, the president of Performance, developed the idea of publishing a series of children’s bible stories, illustrated with drawings that would appeal to small children and aimed toward beginning readers. This concept was developed into a series of bible story books which were written by Karyn Henley and were sold under the name Dove-tales. James R. Leininger invested in Performance in order to develop and promote the Dovetales books.

Eventually, however, Wise and Leininger agreed to separate their activities. As a result, Leininger received ownership of the copyrights and trademarks in the Dovetales product. Leininger licensed the rights to publish the Dovetales stories to Performance. In turn, Wise entered into a license agreement, a sublicense, with Questar to publish a book containing all of the original Dovetales stories along with some additional stories written by Karyn Henley, titled The Beginner’s Bible. The license agreement between Performance and Questar is dated June 22, 1989, and is the subject of this action.

Pursuant to the license agreement, Ques-tar published and began to sell The Beginner’s Bible. Further, the license agreement obligated Questar to make semi-annual royalty payments to Performance based upon the sales of The Beginner’s Bible. Questar regularly made the royalty payments to Performance until July of 1994. However, in a letter, dated July 28, 1994, Questar informed Performance that Performance had breached the license agreement. Furthermore, Ques-tar refused to pay the accrued royalties to Performance, indicating in its letter that it wished to initiate a “mediation/arbitration process pursuant to paragraph 11 of the [license] agreement.” J.A. 20. Instead, on July 29,1994, Questar opened an account, the “Beginner’s Bible Royalty Escrow Account,” at the United States National Bank of Oregon in Sisters, Oregon, and deposited $184,-484.94, the accrued royalties, into that account. J.A. 65.

The license agreement between Questar and Performance includes a provision for resolution of disputes. Paragraph 11 of the agreement provides in relevant part:

The Licensor [Performance] and the Publisher [Questar] agree that God, In His Word, forbids Christians to bring lawsuits against other Christians in secular courts of law ... and that God desires Christians to be reconciled to one another when disputes of any nature arise between them....

[I]n their resolution of any disputes that may arise under this Agreement, each party agrees that the provisions for mediation and arbitration set forth below shall be the sole and exclusive remedy for resolving any disputes between the parties arising out of or involving this Agreement.

It is further agreed that the Licensor and the Publisher hereby waive whatever right they might otherwise have to maintain a lawsuit-against the other in a secular court of law, on any disputes arising out of or involving this Agreement.

In the event of such a dispute, the Li-censor and the Publisher agree to take the following steps, in the order indicated, until such a dispute is resolved:

(1) the Licensor and the Publisher shall meet together, pray together, and purpose to be reconciled....

(2) The Licensor and the Publisher shall invite other witnesses, who may have knowledge of the actual facts of the dispute or whose knowledge would be helpful in resolving the dispute, to meet together with both parties, to pray together, and to purpose to be reconciled....

(3) Both the Licensor and the Publisher shall each appoint one person as a Mediator; these two persons chosen shall then appoint a third Mediator. The three Mediators shall together determine the process of mediation, to which the Licensor and the Publisher agree to comply, and shall be free to act as Arbitrators, to whose authority the Licensor and the Publisher agree to submit. The three Mediators shall also determine to what degree the Licensor and the Publisher shall be liable for all costs related to the mediation process.

*1377 J.A. 18. 1

B.

On August 10, 1994, Performance filed a complaint in district court, asserting a claim of breach of contract based upon Questar’s refusal to pay accrued royalties due and owing to Performance pursuant to the licensing agreement between the parties and seeking a declaration of the parties’ rights under the agreement. At the same time that it filed its complaint, Performance filed a motion for a preliminary injunction, seeking to enjoin Questar from refusing to pay the royalties due and owing to Performance under the license agreement and directing that Questar pay the royalties to Performance as provided in the agreement. Questar filed a brief in opposition to the motion for a preliminary injunction on August 24, 1994.

Pursuant to the agreement of the parties, the motion for a preliminary injunction was submitted to the district court based upon the documentary evidence in the record. Oral argument on the motion was held before the district court on August 25,1994; however, the parties presented no testimonial evidence to the district court at that time.

On September 2, 1992, the district court denied Performance’s motion for a preliminary injunction. Specifically, in denying Performance’s motion, the district court found that it need not address the issue of whether Performance was likely to succeed on the merits of its claim that Questar breached the license agreement, “because the agreement has a mandatory arbitration provision.” J.A. 26. The district court further concluded that

it should not involve itself in the merits of a dispute when the parties, in their agreement, have clearly provided that arbitration is the sole and exclusive means to remedy disputes.

In summary, the Court does not feel that Performance is likely to succeed on the merits given the mandatory arbitration provision in the agreement.

J.A. 27-28.

Furthermore, the district court stated that while it

realize[d] that the royalties [provided for in the licensing agreement] are necessary for the operation of Performance’s business, .... because Performance has come to the Court with “unclean hands,” the Court concludes it should not grant Performance’s request for equitable relief even though Performance’s business might suffer irreparable harm.

J.A. 28-29. This timely appeal followed. 2

II.

A.

Performance argues that the district court erred in finding that it could not issue injunc-tive relief because of the mandatory mediation/arbitration provision in the agreement between the parties. Performance asserts that the district court’s refusal to grant in-junctive relief because of the mandatory arbitration provision is contrary to the rule adopted by the majority of the United States Circuit Courts of Appeals. Performance further asserts that injunctive relief is appropriate in this case to preserve the status quo pending the arbitration of the parties’ dispute, because absent injunctive relief Performance will suffer irreparable harm; namely, the collapse of its business, which will render the process of arbitration a hollow and meaningless formality.

In its opinion, the district court acknowledged that this issue was one of first impression in the Sixth Circuit. The district court further acknowledged that a number of other Circuits have held that district courts may issue injunctive relief under appropriate circumstances pending arbitration. Nevertheless, the district court rejected that approach, concluding instead “that it should not involve itself in the merits of a dispute when the parties, in their agreement, have clearly *1378 provided that arbitration is the sole and exclusive means to remedy disputes.” J.A. 27-18.

We begin our analysis by noting that this court stated long ago that

“[t]he object and purpose of a preliminary injunction is to preserve the existing state of things until the rights of the parties can be fairly and fully investigated and determined. ... The legal discretion of the judge or court in acting upon applications for provisional injunctions is largely controlled by the consideration that the injury to the moving party, arising from a refusal of the writ, is certain and great, while the damage to the party complained of, by the issuance of the injunction, is slight or inconsiderable.’ ”

American Fed’n of Musicians v. Stein, 213 F.2d 679, 682 (6th Cir.) (quoting Blount v. Societe Anonyme du Filtre Chamberland Systeme Pasteur, 53 F. 98, 101 (6th Cir.1892)), ce rt. denied, 348 U.S. 873, 75 S.Ct. 108, 99 L.Ed. 687 (1954).

Our duty in reviewing a district court’s order denying a preliminary injunction is limited to determining if the district court abused its discretion in denying preliminary relief. Gaston Drugs, Inc. v. Metropolitan Life Ins. Co., 823 F.2d 984, 988 (6th Cir.1987) (per curiam). ‘“A district court abuses its discretion when it relies on clearly erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal standard.’ ” Id. (quoting Christian Schmidt Brewing Co. v. G. Heileman Brewing Co., 753 F.2d 1354, 1356 (6th Cir.), cert. dismissed, 469 U.S. 1200, 105 S.Ct. 1155, 84 L.Ed.2d 309 (1985)). “This court reviews the [district court’s] findings of fact under the clearly erroneous standard: legal conclusions are given de novo review. ‘[A] factual or legal error may alone be sufficient to establish that the court “abused its discretion” in making its final determination....’” N.A.A.C.P. v. City of Mansfield, Ohio, 866 F.2d 162, 166 (6th Cir.1989) (quoting Baja Contractors, Inc. v. City of Chicago, 830 F.2d 667, 674 (7th Cir.1987), cert. denied, 485 U.S. 993, 108 S.Ct. 1301, 99 L.Ed.2d 511 (1988)).

The issue of whether a district court has subject matter jurisdiction to entertain a motion for preliminary injunctive relief in an arbitrable dispute is an issue of first impression in this circuit. Moreover, the issue of “[w]hether the Arbitration Act deprives the district court of subject matter jurisdiction to enter preliminary injunctive relief is an issue of law subject to plenary review.” Ortho Pharmaceutical Corp. v. Amgen, Inc., 882 F.2d 806, 812 n. 6 (3d Cir.1989).

“The Federal Arbitration Act, 9 U.S.C. §§ 1-14 (1976), makes enforceable an agreement to arbitrate.” Guinness-Harp Corp. v. Jos. Schlitz Brewing Co., 613 F.2d 468, 472 (2d Cir.1980) (citing 9 U.S.C. § 4 and Necchi S.p.A. v. Necchi Sewing Mach. Sales Corp., 348 F.2d 693, 696 (2d Cir.1965), cert. denied, 383 U.S. 909, 86 S.Ct. 892, 15 L.Ed.2d 664 (1966)). “Federal law applies to enforcement of a duty to arbitrate, whenever interstate commerce is involved,” id., as is the situation in this case. “Thus, the principle issue on appeal is whether § 3 of the Federal Arbitration Act, 9 U.S.C. § 3 (1982), absolutely precludes a district court from granting one party a preliminary injunction to preserve the status quo pending the arbitration of the parties’ dispute.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bradley, 756 F.2d 1048, 1050 (4th Cir.1985).

The starting point for this inquiry is 9 U.S.C. § 3, which provides:

If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.

Although we have not had occasion to interpret the meaning of § 3, a number of other Circuits have done so. In Bradley, the Fourth Circuit stated:

Section 3 does not contain a clear command abrogating the equitable power of *1379 district courts to enter preliminary injunctions to preserve the status quo pending arbitration. Instead, § 3 states only that the court shall stay the “trial of the action”; it does not mention preliminary injunctions or other pre-trial proceedings. Certainly Congress knows how to draft a statute which addresses all actions within the judicial power. Furthermore, nothing in the statute’s legislative history suggests that the word “trial” should be given a meaning other than its common and ordinary usage: the ultimate resolution of the dispute on the merits. See Senate Rep. No. 536, 68th Cong. 1st Sess. (1924); H.R.Rep. No. 96, 68th Congress, 1st Sess. (1924).

Bradley, 756 F.2d at 1052 (footnote omitted). Based upon its analysis of § 3, the Fourth Circuit held

that where a dispute is subject to mandatory arbitration under the Federal Arbitration Act, a district court has the discretion to grant a preliminary injunction to preserve the status quo pending the arbitration of the parties’ dispute if the enjoined conduct would render that process a “hollow formality.” The arbitration process would be a hollow formality where “the arbitral award when rendered could not return the parties substantially to the status quo ante.”

Id. at 1053-54 (quoting Lever Bros. Co. v. International Chemical Workers Union, Local 217, 554 F.2d 115, 123 (4th Cir.1976)). Likewise, in Roso-Lino Beverage Distributors Inc. v. Coca-Cola Bottling Co. of New York, 749 F.2d 124 (2d Cir.1984) (per cu-riam), the Second Circuit held that “[t]he fact that a dispute is to be arbitrated, however, does not absolve the court of its obligation to consider the merits of a requested preliminary injunction; the proper course is to determine whether the dispute is a ‘proper case’ for an injunction.” Id. at 125. Furthermore, in Sauer-Getriebe KG v. White Hydraulics, Inc., 715 F.2d 348 (7th Cir.1983), cert. denied, 464 U.S. 1070, 104 S.Ct. 976, 79 L.Ed.2d 214 (1984), the Seventh Circuit held that it was error for the district court not to grant injunctive relief pending arbitration of a matter where the plaintiff satisfied the four factors necessary for the grant of a preliminary injunction. Id. at 350-52.

However, in Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Hovey, 726 F.2d 1286 (8th Cir.1984), the Eighth Circuit, relying on three decisions of the Supreme Court, Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967); and Buffalo Forge Co. v. United Steelworkers of America, 428 U.S. 397, 96 S.Ct. 3141, 49 L.Ed.2d 1022 (1976), 3 held that the grant of injunctive relief in an arbitrable controversy “abrogates the intent of the Federal Arbitration Act and consequently was an abuse of discretion.” Hovey, 726 F.2d at 1291. The Eighth Circuit reasoned that the “congressional intent revealed in the Arbitration Act [which was] to facilitate quick, expeditious arbitration,” would be thwarted because “the judicial inquiry requisite to determine the propriety of injunctive relief necessarily would inject the court into the merits of issues more appropriately left to the arbitrator.” Id. at 1291-92.

Subsequently, in Teradyne, Inc. v. Mostek Corp., 797 F.2d 43 (1st Cir.1986), the First Circuit thoroughly analyzed the three Supreme Court decisions relied on by the Eighth Circuit in Hovey and rejected the position taken by the Eighth Circuit. In Teradyne, the First Circuit stated that as a result of its review of the three Supreme Court decisions relied on in Hovey, it saw “nothing in the Supreme Court’s reasoning to indicate that the Court would be opposed to the issuance of an order designed to preserve the meaningfulness of an arbitration agreement.” Id. at 50. The First Circuit further stated that it saw “no incompatibility between the Court’s language and the availability of preliminary injunctive relief to preserve the meaningfulness of the arbitration process. The risk that the arbitrator will be unduly influenced by the court’s prior ruling *1380 is offset by the necessity of preserving the status quo.” Id. Consequently, the First Circuit held:

Having thus outlined our disagreement with both the reasoning and approach of the Eighth Circuit, we are persuaded that the approach taken by the Second, Fourth and Seventh Circuits should be followed. We hold, therefore, that a district court can grant injunctive relief in an arbitrable dispute pending arbitration, provided the prerequisites for injunctive relief are satisfied. We believe this approach reinforces rather than detracts from the policy of the Arbitration Act, which was most recently described by the Supreme Court in Dean Witter Reynolds v. Byrd, 470 U.S. 213, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985): “passage of the Act was motivated first and foremost by a Congressional desire to enforce [arbitration] agreements into which parties had entered.” 470 U.S. at 220, 105 S.Ct. at 1242. We believe that the congressional desire to enforce arbitration agreements would frequently be frustrated if the courts were precluded from issuing preliminary injunctive relief to preserve the status quo pending arbitration and, ipso facto, the meaningfulness of the arbitration process. Accordingly, we hold that it was not error for the district court to issue the preliminary injunction before ruling on the arbitrability of this dispute.

Id. at 51 (footnote omitted).

Thereafter, in Ortho Pharmaceutical Corp. v. Amgen, Inc., 882 F.2d 806 (3d Cir.1989), the Third Circuit held, relying on the reasoning of the First, Second, Fourth, and Seventh Circuits, “that a district court has the authority to grant injunctive relief in an arbitrable dispute, provided that the traditional prerequisites for such relief are satisfied.” Id. at 812. 4 Finally, in PMS Distrib. Co. v. Huber & Suhner, A.G., 863 F.2d 639 (9th Cir.1988), the Ninth Circuit, relying on the decision of the Seventh Circuit in Sauer-Getriebe; the decision of the Second Circuit in Roso-Lino; and the decision of the First Circuit in Tera-dyne, held that “[t]he fact that a dispute is arbitrable and that the court so orders under Section 4 of the Arbitration Act, 9 U.S.C. § 4, does not strip it of authority to grant a writ of possession pending the outcome of the arbitration so long as the criteria for such a writ are met.” 5 PMS Distributing, 863 F.2d at 642.

After a thorough review of the relevant case law, we adopt the reasoning of the First, Second, Third, Fourth, Seventh, and arguably the Ninth, Circuits and hold that in a dispute subject to mandatory arbitration under the Federal Arbitration Act, a district court has subject matter jurisdiction under § 3 of the Act to grant preliminary injunctive relief provided that the party seeking the relief satisfies the four criteria which are prerequisites to the grant of such relief. We further conclude that a grant of preliminary injunctive relief pending arbitration is particularly appropriate and furthers the Congressional purpose behind the Federal Arbitration Act, where the withholding of injunctive relief would render the process of arbitration meaningless or a hollow formality because an arbitral award, at the time it was rendered, “ ‘could not return the parties substantially to the status quo ante.’ ” Bradley, 756 F.2d at 1053 (quoting Lever Bros. Co. v. International Chemical Workers Union, Local 217, 554 F.2d 115, 123 (4th Cir.1976)).

Accordingly, we hold that the district court erred as a matter of law when it found that it could not enter preliminary injunctive relief in this case because the dispute between the parties was the subject of mandatory arbitration.

B.

Performance next argues that the district court erred in finding that it did not *1381 satisfy the four factors necessary for the grant of a preliminary injunction. The four factors are: (1) the likelihood of the plaintiffs success on the merits; (2) whether the injunction will save the plaintiff from irreparable injury; (3) whether the injunction would harm others; and (4) whether the public interest would be served. International Longshoremen’s Ass’n, AFL-CIO, Local Union No.1937 v. Norfolk S. Corp., 927 F.2d 900, 903 (6th Cir.), cert. denied, 502 U.S. 813, 112 S.Ct. 63, 116 L.Ed.2d 38 (1991) (citing In re DeLorean Motor Co., 755 F.2d 1223, 1228 (6th Cir.1985)). “A district court is required to make specific findings concerning each of the four factors, unless fewer are dispositive of the issue.” Id. Moreover, the four factors are not prerequisites to be met, but rather must be balanced as part of a decision to grant or deny injunctive relief. In re DeLorean, 755 F.2d at 1229.

As was noted above, our review of this issue is limited to determining if the district court abused its discretion in denying preliminary relief. Gaston Drugs, 823 F.2d at 988. “ ‘A district court abuses its discretion when it relies on clearly erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal standard.’ ” Id. (quoting Christian Schmidt Brewing Co, 753 F.2d at 1356). We review the district court’s factual findings under a clearly erroneous standard, and its legal conclusions de novo. City of Mansfield, 866 F.2d at 166. Furthermore, in a case such a this, where “the district court’s decision was made on the basis of a paper record, without a evidentiary hearing, we are in as good a position as the district judge to determine the propriety of granting a preliminary injunction.” Roso-Lino, 749 F.2d at 125.

First, Performance argues that it has established that it would suffer irreparable injury in the absence of injunctive relief; namely, that it has shown that in the absence of royalty payments from Questar, its business would be destroyed or driven into insolvency. Performance further argues that this irreparable injury is the type of irreparable injury which would render the arbitration process either meaningless or a hollow formality because a decision from the arbitrator ordering Questar to pay the accrued royalties from The Beginner’s Bible to Performance could not return Performance to the status quo ante if its business were destroyed.

In that regard, the record contains the affidavit of Jerry Wise, Performance’s president dated August 9, 1994, in which Wise states that “[t]he license agreement between Performance Unlimited and Questar is by far the single most significant royalty-producing license agreement that Performance Unlimited has, and royalties received from the license constitute the single largest amount of royalty income received by Performance Unlimited yearly.” J.A. 38. Wise further stated that “[i]f Questar does not pay its accrued royalties, Performance Unlimited will not be able to meet payroll, pay federal withholding taxes, pay vendors, pay royalties owed to licensees, or indeed continue to operate more than another two to three weeks.” J.A. 40. The record also contains the affidavit of Richard Hilicki, Performance’s Vice President of Finance, dated August 9, 1994, in which Hilicki stated that the accrued royalties of $184,000 that Questar had declined to pay to Performance, “constitute[d] in excess of 60% of the total projected revenues of Performance Unlimited for the second half of 1994.” J.A. 42. Hilicki also stated that “[bjecause of Questar’s refusal to pay its royalties, Performance Unlimited has been unable to pay many of its vendors in a timely fashion ...” and that “Performance Unlimited will be unable to secure additional supplies and materials from its vendors.” J.A. 43. Finally, Hilicki stated that Questar was holding approximately $45,000 in accrued royalties in addition to the $184,000 which it had deposited into the escrow account, and that royalties on The Beginner’s Bible were accruing at a rate of about $30,000 to $35,000 per month. J.A. 44. 6

*1382 Although Questar asserts that Performance’s claims of irreparable injury are pre-textual, the statements of Wise and Hilicki are the only evidence of record concerning the financial condition of Performance. Accordingly, we conclude that the uncontradict-ed statements of Wise and Hilicki dated August 4, 1994 establish that in the absence of injunctive relief, i.e., without the payment of royalties by Questar, Performance will be unable to operate its business and the business will suffer economic collapse or insolvency.

Moreover, the district court acknowledged as much in its opinion when it stated:

Performance notes that the $184,000 in royalties is its largest source of revenue and without the royalties, in cannot continue to operate its business.

the Court realizes that the royalties are necessary for the operation of Performance’s business ...

J.A. 28.

The impending loss or financial ruin of Performance’s business constitutes irreparable injury. “An injury is irreparable if it cannot be undone through monetary remedies.” Interox Am. v. PPG, Indus., Inc., 736 F.2d 194, 202 (5th Cir.1984). “As a general rule, a movant has not established irreparable harm where damages would adequately compensate the movant for the asserted harm. Yet, irreparable injury has been characterized as loss of a movant’s enterprise.” Ryko Mfg. Corp. v. Delta Servs., Inc., 625 F.Supp. 1247, 1248 (S.D. Iowa 1985) (citation omitted). See also Roso-Lino, 749 F.2d at 125-26 (“The loss of [plaintiffs] distributorship, an ongoing business ... constitutes irreparable harm. What plaintiff stands to lose cannot be fully compensated by subsequent money damages.”).

Furthermore, the type of irreparable harm which Performance is likely to suffer, the loss of its business, is precisely the type of harm which necessitates the granting of preliminary injunctive relief pending arbitration, because the arbitration will be a meaningless or hollow formality unless the status quo is preserved pending arbitration. 7 “The Supreme Court has held that a preliminary injunction, designed to freeze the status quo and protect the damages remedy is an appropriate form of relief when it is shown that the defendant is likely to be insolvent at the time of judgement.” Teradyne, 797 F.2d at 52 (citing Deckert v. Independence Shares Corp., 311 U.S. 282, 61 S.Ct. 229, 85 L.Ed. 189 (1940)). See Atwood Turnkey Drilling, Inc. v. Petroleo Brasileiro, S.A., 875 F.2d 1174, 1179 (5th Cir.1989), cert. denied, 493 U.S. 1075, 110 S.Ct. 1124, 107 L.Ed.2d 1030 (1990):

[Defendant] directs our attention to cases holding that a preliminary injunction is an inappropriate remedy where the potential harm to the movant is strictly financial. This is true as a general rule but an exception exists where the potential economic loss is so great as to threaten the existence of the movant’s business. See Wright and Miller, Federal Practice and Procedure: Civil § 2948, Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975) (threat of bankruptcy constitutes irreparable harm); National Screen Service Corp. v. Poster Exchange, Inc., 305 F.2d *1383 647 (5th Cir.1962) (no abuse of discretion where denial of injunctive relief would result in the destruction of movant’s business), John B. Hull, Inc. v. Waterbury Petroleum, 588 F.2d 24 (2d Cir.1978), cert. denied, 440 U.S. 960, 99 S.Ct. 1502, 59 L.Ed.2d 773 (1979) (possibility of going out of business is irreparable harm); Tri-State Generation v. Shoshone River Power, Inc., 805 F.2d 351 (10th Cir.1986) (threat to trade or business viability is irreparable harm).

See also Stenberg v. Cheker Oil Co., 573 F.2d 921, 924 (6th Cir.1978) (“We believe the record in this case supports the decision of the district court to grant a preliminary injunction. ... [T]he plaintiff introduced proof of such severe financial hardship that, upon finding the requisite likelihood of success, the court could reasonably conclude that delay in granting interlocutory relief would render a later judgment on the merits meaningless. Under [plaintiffs] proof he would have been completely “wiped out’ long before a final decision could be expected. The district court did not abuse its discretion....”).

Second, Performance argues that the district court erred in finding that Performance was not entitled to equitable relief because Performance had “unclean hands.” The district court stated that it

realizes tha