United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
Patti B. Saris United States District Judge.
hearing, and a review of the briefs, the Court
DENIES without prejudice plaintiff
Pegasystems, Inc.'s motion for a preliminary injunction
[Docket No. 49]. I assume familiarity with this Court's
memorandum and order dated December 5, 2019 [Docket No. 56],
which provides the factual background in this false
evaluating a motion for preliminary injunction, the Court
analyzes four factors:
(1) the likelihood of success on the merits; (2) the
potential for irreparable harm [to the movant] if the
injunction is denied; (3) the balance of relevant
impositions, i.e., the hardship to the nonmovant if enjoined
as contrasted with the hardship to the movant if no
injunction issues; and (4) the effect (if any) of the
court's ruling on the public interest.
Esso Standard Oil Co. (P.R.) v. Monroig-Zayas, 445
F.3d 13, 18 (1st Cir. 2006) (citation omitted). The moving
party bears the burden of establishing these factors weigh in
its favor. Id. Of the four factors, “[t]he
showing of a likelihood of success on the merits is the most
important.” Doe v. Trs. of Bos. Coll., 942
F.3d 527, 533 (1st Cir. 2019). Furthermore, “[i]n most
cases . . . irreparable harm constitutes a necessary
threshold showing for an award of preliminary injunctive
relief.” Charlesbank Equity Fund II v. Blinds To
Go, Inc., 370 F.3d 151, 162 (1st Cir. 2004). Here,
Pegasystems cannot establish that either factor weighs in its
motion must be evaluated in light of the post-complaint
changes Appian has made to the challenged statements.
Specifically, Appian removed from its website the phrase
“Through approximately 500 responses” and added
language regarding the Report's sample size. Dkt. Nos.
68-1, 68-2. Appian also added text on both pages of its
website reading, “While all projects are different, we
encourage you to read the report and assess what relevance
[the surveyed] businesses' experiences may have for your
business.” Id. In addition, Appian
acknowledged that “Appian commissioned BPM.com”
to conduct the survey contained in the Report. Id.
Finally, a “Preface from Appian” was inserted as
the first page of the Report disclosing Appian's
commission. Dkt. No. 68-3 at 3.
Pegasystems has alleged that other portions of the Report are
literally false or misleading, I do not find a likelihood of
success as to those allegations on the current record. The
dispute over whether BPM.com's testing methodology is
inadequate or intentionally skewed involves disputed issues
of fact. Pegasystems alleges in its complaint that BPM.com
manipulated the survey results to produce outcomes more
favorable to Appian. Appian admits that it “reviewed
and provided input on drafts” of the Report, Dkt. No.
71 ¶ 1, but denies the allegation that the Report's
results were manipulated to favor Appian, Id. ¶
24. “Likelihood of success cannot be woven from the
gossamer threads of speculation and surmise.”
Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 6
(1st Cir. 1991). While the Court does not here attempt to
“predict the eventual outcome on the merits with
absolute assurance, ” Ross-Simons of Warwick, Inc.
v. Baccarat, Inc., 102 F.3d 12, 16 (1st Cir. 1996),
Pegasystems has not presented evidence that establishes a
likelihood of success on the merits at this time. As a result
of the post-report changes, Pegasystems has not demonstrated
that it is suffering continuing harm from the initial
omission of the Report's commission or Appian's
statements regarding the Report's sample size.
Pegasystems has failed to carry its burden as to both
likelihood of success and irreparable harm, the Court does
not reach the third and fourth factors of the preliminary
injunction analysis. See New Comm Wireless Servs., Inc.
v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002)
(“[I]f the moving party cannot demonstrate that he is
likely to succeed in his quest, the remaining factors become
matters of idle curiosity.”)
motion for preliminary injunction [Docket No. 49] is
DENIED without prejudice to
refiling after development of the factual record. Its request
for expedited discovery [Docket No. 57] is
ALLOWED as stated in open court at
the hearing. The parties will submit a revised proposed