                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




             Travelport, LP v. American Airlines, Inc., 2011 IL App (1st) 111761




Appellate Court            TRAVELPORT, LP, a Delaware Limited Partnership, Plaintiff-Appellee,
Caption                    v. AMERICAN AIRLINES, INC., Delaware Company, Defendant-
                           Appellant.



District & No.             First District, Third Division
                           Docket No. 1-11-1761


Filed                      September 21, 2011


Held                       In an action by a computerized airline reservation business alleging
(Note: This syllabus       anticipatory breach of contract and seeking a preliminary injunction based
constitutes no part of     on defendant airline’s termination of its contract with one of plaintiff’s
the opinion of the court   affiliates, the airline’s appeal from the order requiring it to reinstate the
but has been prepared      affiliate’s ability to ticket was not rendered moot by the parties’
by the Reporter of         agreement to extend the affiliate’s ticketing authority, and the appellate
Decisions for the          court held that the trial court did not abuse its discretion in entering a
convenience of the         preliminary injunction pending a decision on the merits where plaintiff
reader.)
                           raised a fair question of whether it would suffer irreparable injury without
                           the injunction, legal damages would not provide an adequate remedy, and
                           a fair question was raised as to whether plaintiff would succeed on the
                           merits.
Decision Under             Appeal from the Circuit Court of Cook County, No. 10-CH-48028; the
Review                     Hon. Lee Preston, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Dewey & LeBoeuf, of Chicago (Alan N. Salpeter, Vincent P. Schmeltz
Appeal                     III, and Brian M. Westhoff, of counsel), for appellant.

                           Duane Morris LLP, of Chicago (Paul E. Chronis and John T. Schriver, of
                           counsel), for appellee.


Panel                      JUSTICE NEVILLE delivered the judgment of the court, with opinion.
                           Justices Quinn and Murphy concurred in the judgment and opinion.



                                             OPINION

¶1          Travelport, LP, sued American Airlines for anticipatory breach of contract and sought
        a preliminary injunction to prevent American from taking the steps it threatened to take that,
        according to Travelport, would breach the contract. After the judge who denied the motion
        for a preliminary injunction was transferred, Travelport moved for reconsideration. The
        successor judge heard the motion and granted Travelport the preliminary injunction it sought.
        We hold that the successor judge correctly found that the initial judge erred and correctly
        reconsidered the entire motion. Because American did not object when the successor judge
        heard the motion for reconsideration without hearing live testimony from the witnesses, we
        find that American forfeited, for this appeal, any issue concerning the successor judge’s
        determination of the motion without live testimony. We also find that the trial court did not
        abuse its discretion by entering the preliminary injunction. Accordingly, we affirm the trial
        court’s judgment.

¶2                                         BACKGROUND
¶3           Travelport owns and operates a global delivery system (GDS) for travel information. The
        GDS includes computerized reservation systems (CRSs) designed to help travel agents find
        airline flights and associated products and services. Travelport obtains data from airlines and
        other service providers and makes the data searchable online. Travelport earns its income by
        charging fees when customers book flights using a CRS Travelport operates.
¶4           In 1993, Travelport agreed to carry flight data for American. The parties amended their
        agreement in 2006, in a document labeled “Preferred Fares Agreement” (PFA). In that
        contract, American agreed to provide complete information about its flights to Travelport for
        distribution to travel agencies that received their booking information through Travelport.
        In the contract, American specifically promised that for five years it would not “remove its
        grant of ticketing authority” to CheapTickets.com, a travel agency affiliated with Travelport.
        American acknowledged Orbitz as an affiliate of Travelport, but it did not expressly commit
        to granting Orbitz ticketing authority for the five-year term of the PFA.


                                                 -2-
¶5         In 2008, American began negotiations to replace GDSs with a different system designed
       to lower the costs American incurred in distributing its tickets. American asked Orbitz, in
       particular, to use its direct system instead of using the GDS operated by Travelport to book
       tickets. American and Orbitz failed to reach any agreement. On November 1, 2010, American
       sent Orbitz a letter in which American said it would terminate its contract with Orbitz as of
       December 1, 2010. In particular, American would revoke the permission it had granted
       Orbitz to sell tickets for American’s flights.
¶6         On November 5, 2010, Travelport sued American for a judgment declaring that the
       termination of the agreement with Orbitz would breach the PFA. Travelport moved for a
       temporary restraining order to preclude American from discontinuing its relationship with
       Orbitz pending a determination on Travelport’s request for a preliminary injunction.

¶7                                 Preliminary Injunction Hearing
¶8         The trial court granted the temporary restraining order and held an evidentiary hearing
       on the motion for a preliminary injunction. Three witnesses testified: Bridget Blaise-Shamai
       and William Hopping of American and Kurt Ekert of Travelport. Blaise-Shamai explained
       American’s efforts to reduce its costs through its new system, which would eliminate use of
       GDSs like Travelport. She recounted negotiations with Orbitz and their inability to reach any
       agreement. Hopping, an attorney who helped negotiate the PFA, testified about his
       understanding of the terms of the agreement.
¶9         Ekert testified that Travelport earns its income as a GDS only when its customers–mostly
       travel agencies–book flights through Travelport. American sold, through Travelport’s
       affiliated agencies, $3.4 billion worth of tickets in the 12-month period before the hearing.
       On cross-examination, Ekert admitted that American flights booked through Orbitz
       accounted for only 2½% of Travelport’s revenues.
¶ 10       Ekert explained that a customer using Orbitz (or another online travel agency) searches
       the information available from Travelport for an appropriate flight, and when the customer
       finds the flight he wants, he books the flight. The GDS helps the customer compare prices
       and times for flights from many different airlines. If the customer cannot book the flight
       through Orbitz, the customer must find another way to buy the ticket, usually through a
       different online agency that uses a competing GDS. If the court permitted American to deny
       Orbitz permission to sell American tickets, Orbitz would need to choose between two
       courses of action. Orbitz could continue to post the information American supplied to
       Travelport under the PFA, but then customers who searched for airline information through
       Orbitz would encounter the frustration of finding an American flight they wanted, but which
       they could not book through Orbitz. Ekert said, “it would effectively be like having a
       supermarket where people came to walk around and then they left to go buy elsewhere.” If
       Orbitz stopped carrying American’s information, its customers would have a strong motive
       to use competitors who provided more complete flight information. In either case, Orbitz and
       Travelport could lose customers and sales. Ekert added that Travelport’s reputation, and its
       ability to attract new customers, depended on its ability to provide its customers full
       information and related services. Ekert could not estimate the number of customers or sales


                                                -3-
       Travelport would lose if American revoked Orbitz’s ticketing authority. Ekert testified that
       if its customers switched to using programs like American’s, that allowed the airlines direct
       contact with consumers, Travelport would go out of business.
¶ 11        Counsel for American signed a document, admitted at trial, in which counsel said,
       “American Airlines will not be claiming that American has or will suffer irreparable injury
       because of the entry of injunctive relief in this action.”
¶ 12        In its complaint, Travelport alleged that a corporation that owned Travelport also owned
       many shares of Orbitz’s stock and that stock lost value when American announced its
       decision to withdraw Orbitz’s ticketing authority. But at oral argument, Travelport relied on
       the assertion in its complaint that if American disallowed ticketing by Orbitz, Travelport
       would lose bookings, and bookings provided Travelport its revenue. American answered that
       discontinuing Orbitz’s ticketing authority would not breach the PFA, and American had
       revoked the ticketing authority of other travel agencies without protest from Travelport.
       Although American had raised the issue of standing in a pretrial motion, at trial neither party
       argued standing.
¶ 13        On December 21, 2010, Judge Martin Agran entered an order denying Travelport’s
       motion for a preliminary injunction. Judge Agran recounted the elements of proof needed for
       a preliminary injunction and said:
                 “Orbitz is a separate and distinct publically traded corporation. [American] in its
                 November 10, 2010 email advised Orbitz that it was terminating its rights under the
                 0charter agency agreement ***, an agreement separate and apart from the PFA. It is
                 the Court’s opinion that Travelport does not have standing to sue on behalf of Orbitz.
                 If it does not have standing, it does not have a protectable interest.
                      ***
                      *** Without a protectable interest there can be no fair question of a likelihood
                 of success on the merits of the case.
                                                   ***
                      *** Travelport argues that its existing and prospective customer relationships
                 have been irreparably damaged. Kurt Ekert testified at his deposition that he was not
                 aware of any accounts that have left Travelport; that he is not aware of any travel
                 agency that is currently a travel agency of Travelport who has signed an agreement
                 with American to use their Direct Connect system and to not use the Travelport
                 GDS[.] *** He also stated in court that ‘if American is successful in its actions here,
                 I believe the customer migration away from Travelport to American’s direct connect
                 or other solutions will be massive.’ *** The irreparable harm that is claimed at this
                 juncture is based on beliefs and fears and is too speculative to allow the entry of a
                 preliminary injunction.
                      ***
                      *** Because it appears that money damages will be ascertainable in the event of
                 a breach of contract, the plaintiff has not established that there is no adequate remedy
                 at law.


                                                  -4-
                   ***
                   *** Because it is the Court’s opinion that the aforementioned criteria for entry
               of a preliminary injunction have not been met, the balancing of equities is not, at this
               time, a necessary consideration.”

¶ 14                                        Reconsideration
¶ 15       Travelport promptly moved for reconsideration. American promptly terminated Orbitz’s
       ticketing authority. Travelport amended its complaint to add a claim for damages it suffered
       because American terminated Orbitz’s ticketing authority.
¶ 16       Judge Agran accepted a transfer to another courthouse, and a new judge, Lee Preston,
       took over Judge Agran’s docket. Judge Preston heard the motion for reconsideration on May
       23, 2011. Neither party sought to transfer the case to Judge Agran for ruling on the motion
       for reconsideration. Neither party sought leave to present any testimony at the hearing on the
       motion for reconsideration.
¶ 17       Judge Preston held:
               “The court’s denial of the motion for preliminary injunction was based primarily on
               the determination that Travelport did not have an ascertainable right in need of
               protection. The court determined that Travelport did not have standing to sue on
               behalf of Orbitz, and thus does not have a ‘protectable interest.’ ***
                   The court concedes that it erred in ruling that Travelport did not have standing
               in this action because Travelport is not suing on behalf of Orbitz. *** American will
               allegedly breach the PFA and the Full Content Agreement if it withdraws ticketing
               authority from Orbitz. ***
                   ***
                   Because the court erred in determining that Travelport did not have an
               ascertainable right in need of protection, the court must reconsider the other elements
               for a preliminary injunction. The second element that Travelport must establish is
               whether it will suffer irreparable harm without the preliminary injunction. ***
                   ‘Once a protectable interest is established, irreparable injury is presumed if that
               interest is not protected.’ Cameron v. Bartels, 214 Ill. App. 3d 69, 73 (4th Dist. 1991)
               ***. Thus, under Illinois law, the irreparable injury that Travelport will suffer and has
               suffered if American terminates its agreements with Orbitz is presumed. This
               presumption is supported by the testimony of Mr. Ekert and Ms. Blaise-Shamai
               during the motion hearing. Mr. Ekert stated that the reputation of GDS’s like
               Travelport is fundamental to the success of the GDS. *** Ms. Blaise-Shamai also
               testified that what is said in the press affects an airline’s or a GDS’s reputation. ***
               The evidence provided by plaintiff Travelport in its briefs and during the motion
               hearing sufficiently demonstrated that Travelport would suffer irreparable harm if
               American terminated its agreements with Orbitz. ***
                   *** Travelport has sufficiently alleged facts and presented evidence that
               demonstrate that it has a probability of success if the allegations in its Complaint are

                                                 -5-
              proven true. ***
                   Further, Travelport demonstrated that a legal remedy may not be adequate in this
              case. *** Travelport set forth sufficient evidence demonstrating that it would suffer
              lost revenue, customers, and goodwill.”
¶ 18       The court ordered American to reinstate Orbitz’s ability to ticket American flights from
       the date of the order until the expiration of the PFA, scheduled for September 1, 2011.
       American appealed under Supreme Court Rule 307(a)(1) (Ill. S. Ct. R. 307(a)(1) (eff. Feb.
       26, 2010)). After American filed the appeal, the parties reached an agreement extending
       Orbitz’s ticketing authority past September 1, 2011. Travelport moved to dismiss the appeal
       as moot, and American opposed the motion. Both parties filed separate briefs concerning
       mootness.

¶ 19                                          ANALYSIS
¶ 20                                           Mootness
¶ 21        Rule 307(a)(1) gives this court jurisdiction to hear this interlocutory appeal from the
       order that imposed a preliminary injunction requiring American to reinstate Orbitz’s ticketing
       authority. After the court entered the injunction, the parties reached an agreement to extend
       Orbitz’s ticketing authority. Travelport contends that the agreement moots the appeal.
¶ 22        American cites Mohanty v. St. John Heart Clinic, S.C., 225 Ill. 2d 52 (2006), as authority
       for finding that we should decide the appeal. In Mohanty, which also involved an
       interlocutory appeal under Supreme Court Rule 307(a)(1), the appellate court ordered the
       trial court to enter a preliminary injunction to enforce a restrictive covenant in the parties’
       employment contract. The restrictive covenant and the preliminary injunction lapsed before
       our supreme court decided the appeal. Our supreme court found that the expiration of the
       injunction did not moot the appeal because a decision concerning the validity of the covenant
       would directly affect the defendant’s recovery on its claims for misappropriation and unjust
       enrichment due to the plaintiff’s alleged violations of the restrictive covenants.
¶ 23        We find American’s appeal here effectively indistinguishable from the appeal in
       Mohanty. Although the injunction here no longer has effect, Travelport has sued for damages
       it suffered when American allegedly breached the PFA by discontinuing Orbitz’s ticketing
       authority. The trial court must decide whether the PFA precluded American from
       discontinuing Orbitz’s ticketing authority. Because a decision on the preliminary injunction
       could affect the parties’ rights that remain at issue in this case, we find that the appeal is not
       moot.

¶ 24                           Reconsideration by Successor Judge
¶ 25       Judge Preston reconsidered Judge Agran’s order and entered an injunction that required
       American to reinstate Orbitz’s ability to ticket American flights. A trial judge has authority
       to reconsider a prior judge’s rulings, but the successor judge should exercise restraint in
       using that authority, especially if the circumstances show that the party seeking
       reconsideration shopped for a more sympathetic judge. Balciunas v. Duff, 94 Ill. 2d 176, 187-


                                                  -6-
       88 (1983). But a successor judge may always correct legal errors in the prior judge’s orders.
       Brandon v. Bonell, 368 Ill. App. 3d 492, 502 (2006).
¶ 26       Here, the facts indicate that Travelport did not shop for a new judge. Judge Agran
       focused on the needless surplusage in Travelport’s complaint about the ownership of Orbitz’s
       stock, which obscured the more crucial allegations that Travelport stood to lose income from
       bookings if American terminated Orbitz’s ticketing authority. In the PFA, American agreed
       to provide flight information to Travelport for distribution to travel agencies, like Orbitz, that
       obtained information from Travelport, and Orbitz could not use the information without
       ticketing authority. Travelport has standing to complain that American breached the PFA,
       and its implicit covenant of good faith, by barring Travelport from earning income from
       booking flights through one of its largest sources of revenue, Orbitz. Judge Preston correctly
       found that Judge Agran erred, as a matter of law, when he held that Travelport lacked
       standing to pursue its complaint. See Wexler v. Wirtz Corp., 211 Ill. 2d 18, 23 (2004) (motion
       to dismiss for lack of standing presents an issue of law).
¶ 27       American does not now argue that Travelport lacked standing to bring the complaint.
       Instead, American argues that we should subject the trial court’s order to special scrutiny
       because American actually revoked Orbitz’s ticketing authority following Judge Agran’s
       decision on the motion for a preliminary injunction and, therefore, Judge Preston’s order will
       not preserve the status quo. However, when the court enters a preliminary injunction, it seeks
       to preserve, as the status quo, the last, uncontested, peaceable status preceding the
       controversy. Gannett Outdoor of Chicago v. Baise, 163 Ill. App. 3d 717, 721 (1987). At the
       time Travelport filed suit and sought the preliminary injunction, Orbitz had ticketing
       authority for American flights. Judge Preston properly addressed the question of whether the
       evidence in the record supported Judge Agran’s decision to deny Travelport a preliminary
       injunction that would preserve the status quo and Orbitz’s authority to sell tickets for
       American flights. Because Judge Preston correctly found that Judge Agran erred on a legal
       issue, he properly reconsidered the order. Brandon, 368 Ill. App. 3d at 502.

¶ 28                                    Record on Review
¶ 29       Both parties rely on facts and evidence not presented to the trial court, and both parties
       move to strike portions of each other’s statements of facts. We will consider only the
       evidence properly before the trial court, so we grant both parties’ motions to strike from the
       briefs statements of fact not supported by evidence presented to the trial court. See Stokes
       v. Colonial Penn Insurance Co., 313 Ill. App. 3d 202, 204 (2000).

¶ 30                                      Due Process
¶ 31       American argues that Judge Preston violated its right to due process by hearing the
       motion to reconsider based solely on the written record, without rehearing the testimony
       presented on the motion. We find that American (1) never asked Judge Preston for a transfer
       to have Judge Agran hear the motion to reconsider; (2) never objected to Judge Preston
       hearing the motion; and (3) never asked Judge Preston to hear any testimony. Because
       American did not raise the argument about due process in the trial court, we find that

                                                  -7-
       American forfeited the issue. Frazier v. Dettman, 212 Ill. App. 3d 139, 148 (1991). Finally,
       because the trial court could have corrected any error had American raised the issue before
       the hearing on the motion to reconsider, we will not address the forfeited issue on its merits.
       See People v. Hill, 345 Ill. App. 3d 620, 632 (2003).

¶ 32                                    Standard of Review
¶ 33       We review the decision to enter the preliminary injunction under familiar standards. “A
       preliminary injunction, even if mandatory, is justified if necessary to maintain the status quo
       and prevent irreparable harm.” Gold v. Ziff Communications Co., 196 Ill. App. 3d 425, 432
       (1989). A court may use a preliminary injunction to compel compliance with a contract,
       especially where the “plaintiff seeks merely a continuation of the contract ***, not a creation
       of a new contractual relationship.” Gold, 196 Ill. App. 3d at 432. To decide whether to enter
       a preliminary injunction pending a full trial on the merits of a complaint, the court should
       consider whether the plaintiff has shown (1) it has a right in need of protection; (2) legal
       remedies will not adequately protect the right; (3) without the injunction, it will suffer
       irreparable harm; and (4) if the proof sustains the allegations, it will likely succeed on the
       merits. Save the Prairie Society v. Greene Development Group, Inc., 323 Ill. App. 3d 862,
       867 (2001). The plaintiff must establish a “fair question” as to each of the elements. Clinton
       Landfill, Inc. v. Mahomet Valley Water Authority, 406 Ill. App. 3d 374, 378 (2010). The
       court should also consider the balance of the equities. Shodeen v. Chicago Title & Trust Co.,
       162 Ill. App. 3d 667, 673 (1987). The trial court has discretion to grant or deny the request
       for a preliminary injunction, and we limit our review to determining whether the court
       abused that discretion. Save the Prairie, 323 Ill. App. 3d at 867.

¶ 34                                Right in Need of Protection
¶ 35        In the PFA, American agreed to provide Travelport information about American’s flights.
       Travelport earns income based on American’s information when travel agencies use that
       information to book flights. The court found that Travelport raised a fair question of whether
       it had a right under the PFA to continuing useful, productive access to the information from
       American, and whether American would breach the PFA if it precluded Orbitz from booking
       American’s flights. The trial court did not commit reversible error by finding that Travelport
       raised a fair question of whether it had a protectable interest in the contract. See Mohanty v.
       St. John Heart Clinic, 225 Ill. 2d 52, 62 (2006).

¶ 36                                       Irreparable Injury
¶ 37       Judge Agran found that Travelport could not point to any specific customers or bookings
       it would lose due to the threatened breach of contract, and he concluded that the alleged harm
       was “too speculative to allow the entry of a preliminary injunction.” Judge Preston did not
       disturb any of Judge Agran’s findings of fact, but he disagreed with the conclusion of law
       that the alleged harm could not support a preliminary injunction. See In re Schaller, 27 B.R.
       959, 962 (Bankr. W.D. Wisc. 1983) (finding that a benefit was too speculative to provide a
       basis for relief classified as a conclusion of law). Judge Preston added some findings of fact

                                                 -8-
       that Judge Agran did not address in his order. In particular, Judge Preston found that Ekert
       testified about the difficulties customers would face if they tried to book flights on American
       through Orbitz, and how those difficulties could drive the customers to use competing online
       travel agencies and competing GDSs. The parties could not readily measure the amount of
       business Travelport would lose due to new customers preferring to book flights through
       online travel agencies and GDSs that could provide more complete services, and could not
       readily measure the amount of business Travelport would lose from its former customers
       migrating to other agencies and using their GDSs.
¶ 38       We find that this case bears notable similarity to Falcon, Ltd. v. Corr’s Natural
       Beverages, Inc., 165 Ill. App. 3d 815 (1987), and Gold, 196 Ill. App. 3d 425. In Falcon, the
       plaintiff sold the defendant’s beverages through a distribution network. The defendant then
       sold its beverages directly to the subdistributors, allegedly in breach of a contract between
       the plaintiff and the defendant. The trial court entered a preliminary injunction to prevent the
       defendant from selling its beverages directly to the subdistributors pending a decision on the
       complaint for breach of contract. The appellate court affirmed, holding:
                “While immediate damages in loss of commissions may be calculable, the injury to
                plaintiffs’ reputation and good will, and the resulting loss of existing and future
                business, is incalculable. [Citation.] ***
                    *** An injury is ‘irreparable’ when it is of such a nature that the injured party
                cannot be adequately compensated in damages or when damages cannot be measured
                by any pecuniary standard. [Citation.] The loss of sales and customers as well as the
                threat of continuation of such losses to a legitimate business interest, as alleged by
                plaintiffs in the present case, have been held sufficient to constitute irreparable
                injury.” Falcon, 165 Ill. App. 3d at 820-21.
¶ 39       In Gold, the defendant stopped running advertisements for the plaintiff’s products,
       allegedly in breach of a contract. The trial court entered a preliminary injunction that required
       the defendant to run the ads pending a decision on the merits of the case. The Gold court
       affirmed and explained:
                “The failure of plaintiff to show an actual loss is not dispositive of the issue of
                whether a preliminary injunction is appropriate. The court must look to the entire
                record to determine if irreparable harm would occur absent a preliminary injunction.
                [Citation.] The loss of customers and sales and the threat of continuation of such
                losses to a legitimate business interest, as alleged by plaintiff here, is sufficient to
                show that plaintiff will suffer irreparable injury unless protected. [Citations.] While
                immediate damages in loss of sales may be calculable, the potential loss of future
                business is incapable of adequate computation [citation], and a preliminary injunction
                may be granted when it is difficult to quantify the damages caused by the loss of
                future customers and revenues.” Gold, 196 Ill. App. 3d at 434-35.
¶ 40       Here, too, while the parties may reach a reasonable estimate of immediate lost bookings,
       they could not reasonably calculate the resulting loss of current and prospective customers
       and all of their bookings due to the damage to Travelport’s reputation and goodwill.
¶ 41       American objects strenuously to the trial court’s invocation of the principle that once the

                                                 -9-
       plaintiff establishes that it has a right in need of protection, the court presumes that the
       plaintiff will suffer an irreparable injury if the court does not protect that interest. See
       Cameron v. Bartels, 214 Ill. App. 3d 69, 73 (1991). American claims that this principle
       applies in only two kinds of cases: (1) where the defendant has misappropriated the
       plaintiff’s property and threatens to destroy its value; and (2) where the plaintiff seeks to
       prevent the defendant from violating a statute. We note, however, that American cites no
       case that so limits the general principle stated in Cameron. Moreover, the court here relied
       on the evidence that Travelport would lose customers and goodwill, and the parties would
       have difficulty estimating the long-term effects on Travelport’s business. The court did not
       rely primarily on the presumption it noted. We cannot say that the trial court committed
       reversible error by finding that Travelport raised a fair question of whether it would suffer
       irreparable injury without the injunction.

¶ 42                                   Adequacy of Legal Remedy
¶ 43       Travelport pursues only its own profits, so money can compensate it for its loss. The
       legal remedy may prove inadequate nonetheless due to the difficulty in assessing the loss
       Travelport would suffer in the absence of the injunction. The court addressed a similar issue
       in Gannett, where the defendant threatened to remove a sign that the plaintiff rented to
       advertisers. The Gannett court reasoned:
                “Defendant claims that plaintiff can be adequately compensated by damages in a civil
                suit ***. Defendant fails to account for the effect of ‘showings’ on plaintiff’s earning
                potential. Plaintiff offered evidence that advertisers often seek a ‘showing,’ which is
                a program in which a number of signs in different geographic areas are made
                available for a coordinated program in the advertiser’s attempt to reach targeted areas
                or groups of consumers. [A witness] testified that if plaintiff could not provide a sign
                which was critical to the showing, the advertiser would go to another company that
                could deliver the whole package. This sign may be critical to a showing by virtue of
                its location and interstate exposure. The record indicates that plaintiff does not own
                other signs with interstate exposure in the area, and thus, if this sign is not available
                for plaintiff to sell as part of a showing, advertisers may go to another sign company
                ***. The loss of income from a potential loss of showing is difficult to calculate, and
                for this reason we find that plaintiff has no adequate remedy at law.” Gannett, 163
                Ill. App. 3d at 722.
       See also Falcon, 165 Ill. App. 3d at 820-21.
¶ 44       Here, customers searching for travel packages want to book the flights they find. When
       American frustrates that purpose by not allowing the customers to use Orbitz to book its
       flights, customers will likely look to other online agencies, ones that use different GDSs, to
       find an agency that can deliver the complete package of services they need. The parties can
       only guess the income Travelport stands to lose from the loss of former customers and the
       failure to attract new customers. The trial court did not commit reversible error by finding
       that Travelport raised a fair question of whether legal damages would adequately remedy the
       injury it would suffer in the absence of a preliminary injunction.


                                                 -10-
¶ 45                            Likelihood of Success on the Merits
¶ 46       American points out that Travelport faces considerable hurdles in its efforts to show that
       American would breach the PFA by revoking Orbitz’s ticketing authority. The PFA does not
       expressly preclude American from revoking that authority, and the PFA does explicitly
       preclude American from revoking the ticketing authority it granted to another Travelport
       affiliate, CheapTickets.com. Travelport relies primarily on the duty of good faith and fair
       dealing as support for its contention that American implicitly committed itself to allowing
       Orbitz to book flights on American. When American promised in the PFA to provide
       Travelport full content for distribution to travel agencies affiliated with Travelport, it
       arguably promised to permit the agencies to use the information in a way that would allow
       Travelport to profit from the use, and Travelport earned income from the information only
       when its travel agencies booked flights on American. The trial court did not commit
       reversible error in finding that Travelport raised a fair question of whether it could succeed
       on the merits.

¶ 47                                   Balance of the Equities
¶ 48        Before imposing a preliminary injunction, “the trial court must conclude that the benefits
       of granting the injunction outweigh the possible injury that the opposing party might suffer
       as a result thereof.” Gannett, 163 Ill. App. 3d at 721. The trial court here found the balance
       of the equities inapplicable because American wilfully terminated Orbitz’s ticketing
       authority. The general rule requiring the court to balance the equities does not apply when
       the defendant has acted tortiously or when the defendant has wilfully violated the plaintiff’s
       clearly established rights. Kalbfleisch v. Columbia Community Unit School District Unit No.
       4, 396 Ill. App. 3d 1105, 1119 (2009). Here, American claims that the PFA does not preclude
       it from revoking Orbitz’s ticketing authority, and some of the language of the PFA appears
       to support American’s claim. We agree with American that in this case the trial court should
       have considered the relative harm each party would suffer if the court entered or refused to
       enter the preliminary injunction.
¶ 49        However, we find that the court would have reached the same conclusion if it had
       balanced the equities. American stipulated at the evidentiary hearing that it would not claim
       that it would suffer any irreparable injury if the trial court entered a preliminary injunction.
       Because the injunction only permits Orbitz to continue selling American’s tickets, while still
       permitting American to sell its tickets through all other means of distribution it uses,
       American will apparently suffer no damage from imposition of the injunction. Travelport,
       on the other hand, presented significant evidence that it might suffer considerable irreparable
       injury without the injunction. Thus, the balance of the equities favors the imposition of the
       preliminary injunction. Although Judge Preston should have balanced the equities, we find
       that the failure to do so did not cause reversible error.

¶ 50                                   CONCLUSION
¶ 51      Our decision on this appeal could affect the rights that remain at issue in the counts of

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       the amended complaint in which Travelport seeks to recover damages. Therefore, the parties’
       agreement extending Orbitz’s ticketing authority does not moot this appeal. Judge Preston
       properly reconsidered the initial order Judge Agran entered based on his finding that
       Travelport lacked standing to sue American for an alleged breach of the PFA. Because
       American failed to raise the issue in the trial court, American forfeited any objection to
       having Judge Preston decide the motion to reconsider without hearing any live testimony
       from the witnesses. The trial court did not abuse its discretion when it entered a preliminary
       injunction to preserve the status quo pending a decision on the merits of the complaint.
       Accordingly, we affirm the trial court’s judgment.

¶ 52      Affirmed.




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