          United States Court of Appeals
                      For the First Circuit


No. 18-1960

                     NACM-NEW ENGLAND, INC.,
               d/b/a BUSINESS CREDIT INTELLIGENCE,

                       Plaintiff, Appellee,

                                v.

         NATIONAL ASSOCIATION OF CREDIT MANAGMENT, INC.,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Timothy S. Hillman, U.S. District Judge]


                              Before

                    Lynch, Lipez, and Barron,
                         Circuit Judges.


     Michael J. Lambert, with whom Sheehan, Phinney, Bass & Green,
P.A. was on brief, for appellant.
     Jack K. Merrill, with whom KSR Law was on brief, for appellee.


                          June 11, 2019
            BARRON, Circuit Judge.            This appeal arises out of a

breach of contract suit between a national trade association of

credit professionals, National Association of Credit Management,

Inc.   ("NACM"),    and   one    of   its    regional   affiliates,   NACM-New

England, Inc., which does business under the name Business Credit

Intelligence ("BCI").           NACM appeals from the District Court's

September   24,    2018   order    granting     injunctive   and   declaratory

relief to BCI. We affirm in part, vacate in part, and remand in

part the order of injunctive relief.              We vacate and remand the

declaratory judgment.

                                       I.

            The following facts were found by the District Court and

are not in dispute on appeal. NACM is a national trade association

of commercial credit professionals that provides services, such as

educational programs and legislative advocacy, to a series of

regional "Affiliates."      BCI is one of those Affiliates.           Under the

contract at issue, it has exclusive rights to provide credit

services as a NACM Affiliate in the New England area.

            Affiliates have customers, called "members," to whom

they provide "core services."               These include access to credit

information, education on credit issues, and collection services.

Members of Affiliates are also members of NACM. NACM also provides

education and professional certification coursework to members.




                                      - 2 -
            Each Affiliate signs an identical contract with NACM.

This appeal arises out of NACM's termination of the 2011 version

of this agreement ("2011 Agreement") between BCI and NACM.

            The 2011 Agreement provides, among other things, that

NACM will provide services to Affiliates on certain terms and that

NACM will not "disclose the specific membership list, or portions

thereof, of any Affiliate to any person or entity" that provides

"core services."    The 2011 Agreement permits either NACM or the

Affiliate to terminate the agreement "for cause upon 90 days

written notice to the other."

            The 2011 Agreement was automatically renewed on October

28, 2016.   Thus, it would remain in effect until October 28, 2021

if not terminated for "cause."     On May 12, 2017, however, NACM

sent the Chief Operating Officers of the Affiliates ("Affiliate

COOs") a new agreement to be discussed at a meeting of the NACM

Board of Directors in June of 2017 and at a meeting of the Affiliate

COOs that same month.

            Following those meetings, on June 14, 2017, Jon Flora,

a member of the NACM Board, informed BCI that the NACM Board had

approved a new Affiliate agreement.       NACM circulated the new

agreement to Affiliate COOs on July 13, 2017, and informed them

that the NACM Board had "voted to simultaneously terminate all

NACM Affiliated Association Agreements . . . and adopt the new

NACM Affiliation Agreement . . . on August 18[, 2017] at 12 noon


                                - 3 -
ET."     Affiliates were required to return signed versions of the

new agreement by that time "in order to maintain . . . Affiliate

status."     BCI was not happy with the new agreement's terms and

refused to sign, thus risking disaffiliation upon termination of

the 2011 Agreement.

            On August 21, 2017, NACM's President, Robin Schauseil,

emailed BCI.     She informed BCI that seventeen of the twenty-two

Affiliates had signed the 2017 Agreement and thus that there was

"now a super majority of support for the 2017 Agreement."         In that

email, Schauseil indicated that the 2011 Agreement would terminate

effective November 17, 2017, pursuant to Article IV, Section 4.D

of the 2011 Agreement.      That section provides that the agreement

may be "terminated . . . for cause upon 90 days written notice."

Schauseil further explained that "[d]uring the 90-day termination

period, NACM will work towards ensuring that members . . . have

access to NACM products, services and benefits after November

17th."     In anticipation of the termination of the 2011 Agreement

with BCI, NACM awarded BCI's territory to NACM Connect, the

Affiliate for the Chicago area.

            On   November   8,   2017,    BCI   filed   a   complaint   in

Massachusetts state court against NACM.          The complaint alleged,

among other things, breach of contract.          The case was removed a

week later to the United States District Court for the District of




                                  - 4 -
Massachusetts on the basis of diversity jurisdiction.                      See 28

U.S.C. § 1332.

           The same day that the case was removed, BCI filed an

emergency motion for a preliminary injunction and a hearing on

that motion.    BCI sought an injunction to require NACM to continue

to abide by the terms of the 2011 Agreement, which it claimed that

NACM had breached.        NACM filed its opposition to that motion the

following day.

           On November 17, 2017 -- the date NACM intended to

terminate the 2011 Agreement -- the District Court granted BCI's

request   for   a   preliminary    injunction,       after     a     hearing,    and

scheduled a "hearing on BCI's request for permanent injunctive

relief" for December 5, 2017.          This hearing was continued multiple

times and then canceled after NACM filed an answer.                NACM's answer

included a demand for a jury trial.

           A hearing was then set on the docket and was referred to

as a "preliminary injunction" hearing in that docket entry.                     That

hearing, in later docket entries, was referred to as a "Hearing on

[Docket   Entry]    21    Motion   for     Order    re:    Prior      Preliminary

Injunction."

           BCI's     "Motion     for     Order     re:     Prior      Preliminary

Injunction" asked the District Court to address what BCI argued

was   NACM's    failure    to   follow    the    terms    of   the    preliminary




                                    - 5 -
injunction.       The hearing on that motion took place over four

days -- specifically, April 17-19, 2018, and May 8, 2018.

              On September 24, 2018, the District Court entered an

order granting an injunction and a declaratory judgment to BCI.

That injunction, in relevant part, ordered that the 2011 Agreement

remained in effect and required NACM to "continue to honor all its

obligations thereunder, including its obligation not to share

BCI's       membership   list   with    any     entity   that   provides    core

services."1      The District Court declared, "as a matter of law, that

NACM did not properly terminate the 2011 Agreement and, therefore,

did not have 'cause' to terminate BCI's affiliation agreement on

November 17, 2017."         NACM timely appealed.

                                        II.

              We start with NACM's challenge to the District Court's

order of injunctive relief.           NACM contends that "[t]he text of the

actual Order indicates the District Court issued a permanent

injunction"       because    "there    was     no   qualification   [that    the

injunction] was limited to the pendency of the litigation."                 From

that premise, NACM argues that the District Court committed legal

error by analyzing the case under the preliminary injunction



        1
       The injunction does also prohibit NACM from "interfering
with the business relationship between BCI" and another entity
called United TranzActions, LLC, but NACM does not attack that
portion of the injunction. Accordingly, we need not address that
aspect of the injunction.


                                       - 6 -
standard, which requires only a showing of likelihood of success

on the merits rather than actual success.         Compare eBay, Inc. v.

MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (setting forth the

standard for a permanent injunction), with Voice of the Arab World,

Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011)

(same for a preliminary injunction).

           Our review of a District Court's entry of an injunction

is for abuse of discretion.        Am. Bd. of Psychiatry & Neurology,

Inc. v. Johnson-Powell, 129 F.3d 1, 2-3 (1st Cir. 1997).              But,

here, the question at issue necessarily turns on the proper

construction of the District Court's order, which presents a

question of law that we review de novo.           See Highmark Inc. v.

Allcare   Health   Mgmt.   Sys.,   Inc.,   572   U.S.   559,   563   (2014)

("[D]ecisions on questions of law are reviewable de novo . . . ."

(internal quotation marks omitted)).

           The text of the order of injunctive relief explains that

it is "based on [the District Court]'s finding that NACM is

required to continue to perform its obligations under the 2011

agreement during the pendency of any dispute between the parties."

That temporal limitation is most naturally read to apply to the

remainder of the order, as that language is immediately followed

by "[i]t is hereby ordered that . . ." and the specific terms of

the order -- namely, that NACM must comply with the 2011 Agreement.




                                   - 7 -
          So   understood,    the    application   of   the   preliminary

injunction standard is less evidence of the District Court's error

in selecting the proper standard for assessing whether to issue an

injunction than of the District Court's intention to issue only a

preliminary injunction.      We therefore conclude that the District

Court did not abuse its discretion in applying the preliminary

injunction standard, because the injunction that it issued was a

preliminary injunction.

          NACM next contends that, even if the District Court

issued a preliminary -- rather than a permanent -- injunction, the

District Court still erred.     NACM contends that the District Court

did so by failing to find sufficient evidence of irreparable harm

to support the injunction.     See Winter v. Nat. Res. Def. Council,

Inc., 555 U.S. 7, 20 (2008) (holding that a party seeking a

preliminary injunction "must establish [1] that he is likely to

succeed on the merits, [2] that he is likely to suffer irreparable

harm in the absence of preliminary relief, [3] that the balance of

equities tips in his favor, and [4] that an injunction is in the

public interest").   Our review of the District Court's irreparable

harm finding is for abuse of discretion.      See Johnson-Powell, 129

F.3d at 2-3.

          The general rule in our Circuit is that "traditional

economic damages can be remedied by compensatory awards, and thus

do not rise to the level of being irreparable."          Vacquería Tres


                                    - 8 -
Monjitas, Inc. v. Irizarry, 587 F.3d 464, 485 (1st Cir. 2009)

(citing P.R. Hosp. Supply, Inc. v. Bos. Sci. Corp., 426 F.3d 503,

507 (1st Cir. 2005)).     Injunctive relief is permissible, however,

"where the potential economic loss is so great as to threaten the

existence of the movant's business."          Id. (quoting Performance

Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373, 1382

(6th Cir. 1995)).

             As an initial matter, NACM argues that the District

Court's analysis and explanation of the irreparable harm factor

was so deficient as to constitute an abuse of discretion.             But,

the District Court, after hearing testimony from both parties,

found "that BCI ha[d] demonstrated a serious risk of irreparable

harm in the absence of an injunction."       Moreover, the record shows

that   the   District   Court,   after   hearing   nearly   four   days   of

testimony, concluded that "[d]isclosure of [BCI's] membership list

to NACM Connect would" -- and thus not merely that such disclosure

could -- "be devastating." (emphasis added).          The District Court

also found that BCI faced a "real threat of harm" from the

disclosure, Matos ex rel. Matos v. Clinton Sch. Dist., 367 F.3d

68, 73 (1st Cir. 2004), and the District Court did so after finding

that, upon NACM's disclosure of lists of BCI members that are

protected by the 2011 agreement to NACM Connect, BCI's competitor

would have "all necessary information at its disposal to poach

BCI's clients"; that NACM Connect has previously taken customers


                                  - 9 -
away from BCI; that BCI operates on a "break even basis"; and that

"a significant loss of members, . . . about 20%, could cause BCI

to become insolvent" following testimony from BCI that "if we lost

20% of our members, we will be out of business."

           Thus, at least with respect to the finding of irreparable

harm that would flow from disclosure, we are able to discern what

factors   were    weighed   and   "the    [D]istrict       [C]ourt's    thought

process[.]"      Coutin v. Young & Rubicam P.R., Inc., 124 F.3d 331,

337 (1st Cir. 1997).      We thus see no abuse of discretion based on

a failure to make the basis for the finding known.

           NACM also contends that the finding of irreparable harm

was based on nothing "more than conjecture, surmise, or a party's

unsubstantiated fears of what the future may have in store."

Charlesbank Equity Fund II, Ltd. v. Blinds To Go, Inc., 370 F.3d

151, 162 (1st Cir. 2004).            But, our review is for abuse of

discretion, and the supportable findings that the District Court

made concerning BCI's precarious financial state and the prospect

of   poaching    that   would   follow   from    the   violation   of   NACM's

obligations with respect to disclosure suffice to refute this

ground of objection with respect to the finding of irreparable

harm concerning disclosure.

           Insofar as NACM means to argue that the District Court's

finding of irreparable harm is not sustainable because the record

shows   that    BCI's   membership    list      is   not   "confidential    and


                                   - 10 -
protectable," we disagree.           To support the contention, NACM points

only to the compilation of conference attendance lists that include

members   and    non-members      and      to   its    own   provision      of    BCI's

membership list to companies like UPS for purposes of member

discounts.        That    evidence,        however, does       not     concern        the

disclosure of a complete membership list to a direct competitor in

a manner that facilitates poaching.

            NACM also contends that, absent a finding that NACM's

"bare-bones"     list    of    BCI's    members       constitutes    "the     specific

membership list, or portions thereof, of any Affiliate" within the

meaning of the 2011 Agreement, the District Court "could not have

determined BCI succeeded (or was likely to succeed) on the merits

of its claim that NACM's provision of its own list to a replacement

Affiliate violated the 2011 Agreement and should be enjoined."

And, NACM contends, the District Court made no such finding.

            But, the District Court found that BCI was likely to

succeed   on    its   breach    of     contract   claim      not    because      of   any

disclosure that NACM had made prior to the termination of the 2011

Agreement but because BCI was likely to succeed in showing that

NACM breached that agreement by failing to terminate the agreement

"for cause."      And, insofar as NACM believes the scope of the

injunction is unclear as to which lists it covers, we note that

the relevant portion of the District Court's injunction is, by its

terms,    coextensive     with       the   2011   Agreement's        non-disclosure


                                        - 11 -
provision, which prohibits NACM from disclosing "the specific

membership list, or portions thereof, of any affiliate."                 In any

event, NACM may seek -- as BCI rightly points out -- clarification

from the District Court to the extent it is not clear as to the

scope of the injunction concerning disclosure.

             There does remain NACM's challenge to the portion of the

District Court's injunction that orders that the 2011 Agreement

"remain   in   place"   and   that   NACM     "continue    to   honor   all   its

obligations thereunder."        NACM contends that the District Court

did not make the requisite finding that irreparable harm would

occur if NACM were not required to honor its obligations -- other

than   its     obligation     not    to     disclose      certain   membership

lists -- under the 2011 Agreement.             NACM argues that, for this

reason, the injunction is overbroad.

             Here, we agree with NACM that the record shows -- as

BCI's counsel candidly acknowledged at oral argument -- that the

District Court did not make any such finding of irreparable harm.

Thus, we conclude that the District Court abused its discretion

when it ordered as part of the injunctive relief that the 2011

Agreement "remain in place and [that the parties must] continue to

operate in accordance with its terms and NACM shall continue to

honor all its obligations thereunder."           See Tamko Roofing Prods.,

Inc. v. Ideal Roofing Co., 282 F.3d 23, 40 (1st Cir. 2002)

("[I]njunctive relief should be no more burdensome to the defendant


                                     - 12 -
than necessary to provide complete relief to plaintiffs and courts

must closely tailor injunctions to the harm that they address."

(alteration in original)(internal quotation marks and citations

omitted)).     We therefore vacate and remand the portion of the

injunction that requires NACM to abide by any terms of the 2011

Agreement other than those prohibiting disclosure of "the specific

membership list, or portions thereof" of BCI to any person or

entity providing "core services."

                                      III.

             We turn next to the various challenges that NACM makes

to the declaratory relief that the District Court ordered.                   The

District Court entered a declaratory judgment in favor of BCI after

finding, "as a matter of law, that NACM did not properly terminate

the   2011   Agreement      and,   therefore,   did   not   have   'cause'    to

terminate BCI's affiliation agreement on November 17, 2017."

             NACM   first    challenges   the   District    Court's   "cause"

ruling by asserting that the record fails to support the District

Court's findings regarding the process that NACM used to replace

the 2011 Agreement.         But, in doing so, NACM takes issue with the

District Court's credibility determinations and factual findings

without supplying an adequate basis for us to reject them.                   See

United States v. 15 Bosworth St., 236 F.3d 50, 53-54 (1st Cir.

2001) (explaining the deferential standard of review of bench

trials).


                                     - 13 -
             Moreover, the District Court did not ultimately base its

conclusion that NACM lacked "cause" to terminate the 2011 Agreement

on the findings that it made about the nature of the overall

process that NACM used to attempt to replace that agreement with

a new one.     Rather, the District Court based that conclusion on a

more particular finding:    that NACM had failed to provide BCI with

the kind of notice of its intention to do so that the 2011 Agreement

required NACM to provide.       Yet, insofar as NACM takes on that

finding by the District Court, NACM merely sets forth a possible

construction of a series of emails between NACM and BCI that the

District Court reasonably construed differently.     See id. at 53.

             Separately, NACM does contend that the District Court

erred in its ruling as to "cause," because it evaluated whether

NACM had "cause" to terminate the agreement without properly

applying Maryland law, which, NACM contends, controls under the

2011 Agreement's choice of law provision.       In fact, NACM notes,

the District Court failed to cite to any Maryland law in reaching

its conclusion that the termination was not for "cause," as the

District Court cited only to Massachusetts cases that applied

Massachusetts law.

             But, even if NACM were right to contend the District

Court did commit this "legal error," we then would merely be

required to vacate and remand the declaratory judgment so that

findings could be made by a proper factfinder under the proper


                                - 14 -
legal standard.   Yet, NACM separately contends that the District

Court erred in entering the declaratory judgment because it did so

without submitting BCI's breach of contract claim to a jury,

thereby depriving NACM of its right under the Seventh Amendment of

the Federal Constitution to a have a jury make the requisite

factual findings.    Accordingly, we may proceed straight to the

Seventh Amendment issue, given that we agree with NACM on that

score.

           The Seventh Amendment provides:

                In Suits at common law, where the value
                in controversy shall exceed twenty
                dollars, the right of trial by jury shall
                be preserved, and no fact tried by a
                jury, shall be otherwise re-examined in
                any Court of the United States, than
                according to the rules of the common law.

U.S. Const. amend. VII.    An order of declaratory relief on a claim

for breach of contract is "essentially legal [in] nature."    Simler

v. Conner, 372 U.S. 221, 223 (1963) (per curiam).           Thus, by

entering the declaratory judgment on the breach of contract claim

without a jury trial, the District Court violated NACM's Seventh

Amendment rights.    Id.    Moreover, NACM was prejudiced thereby,

for, as BCI's counsel acknowledged at oral argument, the District

Court did not itself find -- let alone supportably so -- that no

reasonable jury could find for NACM on the breach of contract

claim.   See Fed. R. Civ. P. 50(a)(1).




                               - 15 -
          BCI    does   contend   that     "NACM   cannot   now   create   a

constitutional issue by insinuating . . . that it didn't know the

merits of BCI's contract claim would be at issue in a permanent

injunction hearing that by definition focuses on those merits."

But, at oral argument, counsel for BCI, who was also counsel at

the hearing in question, conceded that BCI was not sure at the

start of that hearing whether it would be for a permanent or a

preliminary injunction.    And, NACM, at the start of that hearing,

did object to having a "trial on the merits" -- insofar as that

was the purpose of the hearing -- on the basis that it had demanded

a jury trial.2   Accordingly, pursuant to the Seventh Amendment, we

vacate and remand the entry of the declaratory judgment on BCI's

breach of contract claim.

                                   IV.

          The September 24, 2018 order of the District Court

granting injunctive and declaratory relief to BCI is vacated in

part and affirmed in part, and the matter is remanded for further

proceedings consistent with this opinion.          Each party shall bear

its own costs.




     2 NACM also contends that the entry of the declaratory
judgment violated its procedural due process rights. But, we need
not reach this contention, as we vacate the entry of the
declaratory judgment on Seventh Amendment grounds.


                                  - 16 -
