Orasure Technologies, Inc. v. Prestige Brands Holdings, Inc.

• Decision Date: 12 July 2007
• Docket Number: 974N.,975.
• Citation: Orasure Technologies, Inc. v. Prestige Brands Holdings, Inc., 42 A.D.3d 348, 839 N.Y.S.2d 744, 2007 NY Slip Op 6071 (N.Y. App. Div. 2007)
• Parties: ORASURE TECHNOLOGIES, INC., Appellant, v. PRESTIGE BRANDS HOLDINGS, INC., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

42 A.D.3d 348

839 N.Y.S.2d 744

2007 NY Slip Op 06071

ORASURE TECHNOLOGIES, INC., Appellant, v. PRESTIGE BRANDS HOLDINGS, INC., et al., Respondents.

974N.

975.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided July 12, 2007.

Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered November 8, 2006, which denied the application of petitioner OraSure Technologies, Inc. for a preliminary injunction enjoining respondents from, inter alia, importing and marketing a certain product, and from disclosing or using any confidential information belonging to OraSure that was obtained in their business relationship from OraSure, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered January 9, 2007, which denied petitioner's motion for reargument, unanimously dismissed, without costs. [See 2006 NY Slip Op 30121(U).]

Injunctive relief is not appropriate in the instant action. OraSure, as movant for that relief, is required "to make `a clear showing of likelihood of ultimate success on the merits, that [it] will suffer irreparable injury unless the relief sought is granted and that the balancing of the equities lies in [its favor]'" (Matter of J.O.M. Corp. v Department of Health of State of N.Y., 173 AD2d 153, 154 [1991], quoting Faberge Intl. v Di Pino, 109 AD2d 235, 240 [1985]). OraSure failed to demonstrate irreparable harm because any damages it has sustained are calculable and can be determined at the arbitration proceeding (see e.g. SportsChannel Am. Assoc. v National Hockey League, 186 AD2d 417, 418 [1992]; J.O.M. Corp. v Department of Health of State of N.Y., 173 AD2d at 154 ["monetary harm which can be compensated by damages does not constitute irreparable injury"]). The record is devoid of any evidence that Prestige stopped marketing OraSure's wart removal products, and while OraSure may have suffered a loss of revenue due to Prestige's breach of the exclusivity provision in the parties' contract, any damages suffered by OraSure are calculable and may be determined at the arbitration proceeding. Petitioner makes no showing that damages would be too difficult to calculate.

Although it is true that under Pennsylvania law, applicable in this matter, irreparable injury includes "loss of control of reputation, loss of trade, and loss of goodwill" (Pappan Enters., Inc. v Hardee's Food Sys., Inc., 143 F3d 800, 805 [3d Cir 1998]), OraSure has not established how its goodwill and customer relations could be damaged (cf. Plate Fabrication & Machining, Inc. v Beiler, 2006 WL 14515, *7-8, 2006 US Dist LEXIS 52, *26 [ED Pa 2006]). Customer goodwill "is a `business's positive reputation' arising from a company's investment in developing customer relationships expected to continue into the foreseeable future" (2006 WL 14515 at *7, 2006 US Dist LEXIS 52 at *22 [internal quotation marks and citations omitted]). However, as the motion court noted, "OraSure has offered no evidence to suggest that it has...