
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 96-1619                        ROSS-SIMONS OF WARWICK, INC., ET AL.,                                Plaintiffs, Appellees,                                          v.                                   BACCARAT, INC.,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                 [Hon. Francis J. Boyle, Senior U.S. District Judge]                                         __________________________                              _________________________                                        Before                                Selya, Cyr and Lynch,                                   Circuit Judges.                                   ______________                              _________________________               Jeffrey A.  Oppenheim, with whom Kane Kessler, P.C., John H.               _____________________            __________________  _______          Blish,  Joseph V. Cavanagh, Jr.,  Michael W. Carroll  and Blish &          _____   _______________________   __________________      _______          Cavanagh were on brief, for appellant.          ________               Steven E. Snow, with whom Thomas R. Noel and Partridge, Snow               ______________            ______________     _______________          & Hahn were on brief, for appellees.          ______                              _________________________                                  December 13, 1996                              _________________________                    SELYA,  Circuit  Judge.   Defendant-appellant Baccarat,                    SELYA,  Circuit  Judge.                            ______________          Inc. (Baccarat) implores us to dismantle a preliminary injunction          that compels it to continue selling its wares to the plaintiffs.1          Discerning  neither  error of  law  nor abuse  of  discretion, we          affirm.          I.  BACKGROUND          I.  BACKGROUND                    We  divide  our  account  of  the  relevant  background          material into four segments.                             A.  The Commercial Climate.                             A.  The Commercial Climate.                                 ______________________                    Baccarat is a subsidiary of Compagnie des Cristalleries          de Baccarat, a prestigious French  lead crystal manufacturer.  It          is  the  exclusive  distributor  in  the  United  States of  this          aristocratic product line.                    Ross-Simons  sells  jewelry,  tableware,  crystal,  and          sundry other  merchandise from  retail stores located  in several          states.  Roughly eighty-five percent of its business, however, is          generated   through   catalog  and   telemarketing  sales.     It          distributes 45,000,000 catalogs annually and maintains a bustling          distribution  center in  Cranston, Rhode Island.   A  bridal gift          registry  comprises an  integral part of  Ross-Simons' business.2                                        ____________________               1Ross-Simons,  Inc.,  Ross-Simons  of  Warwick,  Inc., Ross-          Simons of  Barrington, Inc.,  Ross-Simons of Atlanta,  L.L.C. and          Ross-Simons of  North Carolina,  L.L.C. are all  named plaintiffs          herein.  For simplicity's  sake we refer to them  collectively as          "Ross-Simons."               2The mechanics of a  bridal gift registry are uncomplicated.          In its  simplest iteration,  betrothed couples select  items that          they would like  to possess  and "register" with  a merchant  who          carries those items.   Persons who wish to give  wedding presents          or  gifts  for other  occasions  can then  contact  the merchant,                                          2          The firm  acquires approximately 15,000 new  registrants annually          and has about 30,000  active registrations at any given time.  In          1995 Ross-Simons grossed  $150,000,000 from  all its  operations,          including  $1,000,000  attributable to  Baccarat  crystal (mostly          from catalog sales).                    Ross-Simons  carved its  niche as  a discount  or "off-          price" retailer,  frequently advertising prices as  much as fifty          percent below  suggested retail  prices.  Baccarat  comes from  a          different  school, having  steadfastly  resisted discounting  and          discounters.  For many years Baccarat refused to sell its crystal          to  Ross-Simons.   Moreover, when  Baccarat became  the exclusive          American  distributor of  Haviland  Limoges porcelain  dinnerware          (not a  product that Baccarat manufactured),  it terminated Ross-          Simons as an authorized dealer for that line.                    Rather  than  turning   the  other  cheek,  Ross-Simons          responded by filing  an antitrust  suit.   Its complaint  alleged          inter  alia that Baccarat refused to deal with Ross-Simons due to          _____  ____          the latter's  proclivity for  discount pricing.   In  November of          1992,  the  parties  entered  into  a  written  accord  (the 1992          Agreement)  that settled  their differences.3   Pursuant  to that          agreement,  the federal  district court  dismissed  the antitrust          suit without prejudice.                                        ____________________          choose  an  item from  the list,  and  have it  delivered  to the          registrant(s).               3In  addition  to  Baccarat,  other  named  defendants  were          parties  to  both   the  lawsuit  and  the  settlement.     Their          involvement does not affect this appeal.                                          3                               B.  The 1992 Agreement.                               B.  The 1992 Agreement.                                   __________________                    An understanding  of the 1992 Agreement  is critical to          reasoned consideration  of the issues  on appeal.   Baccarat  and          Ross-Simons styled the  pact as an  "Agreement of Compromise  and          Settlement"  and stipulated that  it would  be governed  by Rhode          Island  law.  They memorialized  it "as a  compromise between the          parties  for  the settlement  of  their  claims, differences  and          causes of action."  However, they  did not ask the district court          either  to  approve the  settlement terms  or  to enter  a decree          embodying those terms.                    By virtue  of  the 1992  Agreement, Baccarat  appointed          Ross-Simons  as an  authorized dealer  "entitled to  purchase and          resell  [Baccarat crystal] products at  such prices and upon such          terms as are available to other authorized dealers."  In addition          Baccarat  agreed "not  [to] terminate  Ross-Simons' status  as an          authorized dealer, nor otherwise discriminate against Ross-Simons          in  any manner, [for its  refusal] to adhere  to suggested resale          prices  or  due  to  Ross-Simons'  marketing through  direct-mail          catalogs."   The 1992 Agreement contains no  durational term, but          it specifically  provides that  its covenants and  conditions are          not terminable on the basis of changed facts.                             C.  The Proposed Agreement.                             C.  The Proposed Agreement.                                 ______________________                    Ross-Simons sold  Baccarat  products for  three  years,          without  incident,  until  a   series  of  events  shattered  the          increasingly fragile  business  relationship.   A new  management          regime took control of Baccarat in 1994 and Jean-Luc Negre became                                          4          the firm's chief executive  officer.  Early on, Negre  made known          his  view that  it was  inappropriate for  retailers to  discount          luxury items.  He then reshaped Baccarat's marketing  strategy in          an attempt,  as he  put it,  to  improve the  "overall image  and          prestige . . .  of [Baccarat's] world-renowned name."   Under the          revised plan, Baccarat limited the number of retailers to whom it          would  sell  its products  and  simultaneously  introduced a  new          "Authorized  Dealer Program."   To  retain authorized  dealership          status in 1996  and beyond, a  retailer had to sign  a particular          form of  dealer agreement (the Proposed Agreement)  no later than          December 15, 1995.                     Although Baccarat invited  Ross-Simons (along with 379          other retailers)  to participate in this  neoteric program, there          was  a rub;  by its  terms the  Proposed Agreement  prohibits the          advertising of  Baccarat products in any catalog or other printed          medium that promotes at  off-prices more than twenty-five percent          of  the items  advertised.   In  addition, Baccarat  reserved the          right to determine in its sole discretion "whether an advertising          or promotional practice  is damaging to  the image, prestige  and          goodwill" of its products.   If Baccarat found any  such practice          offensive, it could terminate  the dealership forthwith.  Because          Ross-Simons (alone among Baccarat's invitees) devotes most of its          catalog  to discounted  items, and  because Negre  previously had          proclaimed that off-pricing was inconsistent with prestige, Ross-          Simons  viewed the proposal as a "suicide note," asserted that it          violated  the terms of the  1992 Agreement, and  refused to sign.                                          5          Presumably in anticipation that  Baccarat would follow through on          its  threat  of  termination,  Ross-Simons   stockpiled  Baccarat          products  in late  1995.   The  precaution  proved justified,  as          Baccarat refused  to  fill Ross-Simons'  orders  (including  1995          orders  previously received  but  theretofore unfilled)  from and          after January 1, 1996.                              D.  The Proceedings Below.                              D.  The Proceedings Below.                                  _____________________                    Ross-Simons  sued  Baccarat  in a  Rhode  Island  state          court, claiming breach of contract, breach of an implied covenant          of good  faith and fair  dealing, and tortious  interference with          advantageous business  relationships.  Baccarat  removed the case          to  the federal  district  court.    See  28  U.S.C.      1332(a)                                               ___          (diversity jurisdiction),  1441 (permitting  removal of cases  in          which  diversity  jurisdiction  exists).   In  short  order,  the          district court conducted an evidentiary hearing and granted Ross-          Simons'  motion to compel Baccarat, pendente lite, to continue to                                              ________ ____          sell products  in pursuance of the 1992 Agreement.  In its ruling          the court  predicted that  Ross-Simons probably would  prevail on          the   theory   that  the   Proposed   Agreement  constituted   an          impermissible attempt by Baccarat  to subvert the 1992 Agreement.          Relatedly,  the court  concluded  that  Ross-Simons would  suffer          irreparable harm  in the absence of  mandatory injunctive relief,          and conversely, that Baccarat would undergo scant hardship should                                          6          a preliminary injunction issue.  This appeal ensued.4          II.  ANALYSIS          II.  ANALYSIS                    In the  sections that  follow, we peruse  the checklist          applicable  to preliminary  injunction  determinations  and  then          assess how well the  district court's order withstands Baccarat's          multi-pronged attack.                       A.  The Preliminary Injunction Standard.                       A.  The Preliminary Injunction Standard.                           ___________________________________                    Over time,  we have  crafted a four-part  framework for          use  in determining  whether the grant  or denial  of preliminary          injunctive relief is appropriate.   Under this formulation, trial          courts must consider (1) the likelihood of success on the merits;          (2)  the  potential for  irreparable  harm 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.          See Weaver v.  Henderson, 984 F.2d 11, 12 &  n.3 (1st Cir. 1993);          ___ ______     _________          Narragansett  Indian Tribe v. Guilbert,  934 F.2d 4,  5 (1st Cir.          __________________________    ________          1991).                    An  appellate court  affords considerable  deference to          the  district  court's  evaluative  judgment  of  these  discrete          factors and of their interrelationship.  See  Anthony v. Sundlun,                                                   ___  _______    _______          952 F.2d 603, 605 n.2 (1st Cir. 1991).  Thus, a party who appeals                                        ____________________               4Baccarat's endeavors to secure  a stay were unavailing, and          the preliminary injunction is in force.                                          7          from  the   issuance  of  a  preliminary   injunction  bears  the          considerable  burden  of  demonstrating   that  the  trial  court          mishandled the four-part framework.  See EEOC v. Astra USA, Inc.,                                               ___ ____    _______________          94  F.3d 738, 743 (1st Cir. 1996).   In sum, unless the appellant          can show that the lower court misapprehended the law or committed          a palpable abuse  of discretion,  the court of  appeals will  not          intervene.    See  Narragansett  Indian  Tribe, 934  F.2d  at  5;                        ___  ___________________________          Independent  Oil &  Chem. Workers  of Quincy,  Inc. v.  Procter &          ___________________________________________________     _________          Gamble Mfg.  Co., 864  F.2d  927, 929  (1st Cir.  1988).   Though          ________________          mistake of law is a rubric that requires no elaboration, abuse of          discretion is a fuzzier concept.   That inquiry is case-specific,          see Weaver, 984 F.2d  at 13; Narragansett Indian Tribe,  934 F.2d          ___ ______                   _________________________          at 5-6, and  a finding  of abuse usually  entails proof that  the          nisi  prius  court,  in  making the  challenged  ruling,  ignored          pertinent  elements  deserving  significant   weight,  considered          improper criteria,  or, though  assessing all appropriate  and no          inappropriate  factors,  plainly  erred  in balancing  them,  see                                                                        ___          Procter & Gamble, 864 F.2d at 929.          ________________                    We proceed  to scrutinize the  district court's  ruling          under this  deferential glass.  In so  doing, we address only the          first  two rungs of the four-part framework, as Baccarat does not          challenge the district court's analysis anent either the third or          fourth rung.                            B.  The Likelihood of Success.                            B.  The Likelihood of Success.                                _________________________                    Likelihood of success is  the main bearing wall  of the          four-factor framework.  See  Weaver, 984 F.2d at 12;  Auburn News                                  ___  ______                   ___________                                          8          Co. v. Providence Journal Co., 659 F.2d 273, 277 (1st Cir. 1981),          ___    ______________________          cert. denied, 455 U.S. 921 (1982).  Here, Baccarat challenges the          _____ ______          district court's assessment of  this factor in two respects.   We          examine each  in turn.   Before  doing  so, however,  we deem  it          prudent to  remind the reader that,  just as the trial  court, at          the preliminary  injunction stage, need not  predict the eventual          outcome on  the merits with absolute  assurance, see Narragansett                                                           ___ ____________          Indian Tribe,  934  F.2d  at  6  (cautioning  that  decisions  on          ____________          preliminary  injunction "are  to be  understood as  statements of          probable   outcomes"   only),  an   appellate   court   need  not          conclusively  determine the  merits of  the underlying  claims to          execute abuse-of-discretion review.                    1.    The  Nondiscrimination  Clause.    As  previously                    1.    The  Nondiscrimination  Clause.                          ______________________________          mentioned,  see supra Part I(B),  Baccarat agreed in  1992 not to                      ___ _____          "discriminate against  Ross-Simons in any manner"  because of its          predilection for off-pricing.  The district  court relied on this          clause  in holding that  Ross-Simons likely would  prevail on its          breach of  contract claim.   However, Baccarat maintains  that it          terminated Ross-Simons for failing to sign the Proposed Agreement          and,  in  doing so,  treated Ross-Simons  the  same as  any other          dealer who refused to honor this uniform set of terms.  Since the          lower  court's  order  requires  Baccarat  to  treat  Ross-Simons          differently than  other  dealers    that is,  more favorably,  by          allowing Ross-Simons  to buy Baccarat crystal  without abiding by          the Proposed Agreement's uniform terms   it is the court's order,          not Baccarat's conduct, this  thesis holds, which contradicts the                                          9          nondiscrimination clause  contained in the 1992  Agreement.  This          resupinate reasoning  stands the nondiscrimination clause  on its          head and ignores the district court's factual findings.                    Judge  Boyle  found  that  of the  380  retailers  whom          Baccarat invited to become authorized dealers, only one of them            Ross-Simons   engaged in systematic off-pricing.  Thus, while the          proscription against widespread discounting  was part and  parcel          of  a uniform contract (i.e., the Proposed Agreement), only Ross-          Simons would feel  its sting.   Building on  this foundation  the          judge  drew  the  eminently  reasonable inference  that  Baccarat          (which had not previously attempted to impose a monolithic set of          dealer  agreements)  wrote  these  particular  provisions  in   a          deliberate  effort to  circumvent the  1992 Agreement.    On this          basis, he  concluded that  Ross-Simons probably would  succeed on          the   merits   inasmuch   as  the   proscription   violated   the          nondiscrimination clause.5                    To be sure, these findings are not inevitable, but they          reflect a  plausible rendition  of the  evidence then  before the          court.    The findings,  in turn,  support  the court's  chain of          reasoning  and give  meaningful  effect to  the 1992  Agreement's          nondiscrimination  clause.    That  ends  the  matter:   at  this          preliminary  stage, it is both  the trial court's prerogative and          its  duty   "to  assess  the  facts,   draw  whatever  reasonable                                        ____________________               5Among other things, Baccarat's former president (who signed          the  1992   Agreement  on  its  behalf)   executed  an  affidavit          supporting  Ross-Simons' view  of  the nondiscrimination  clause.          This testimony buttresses the district court's application of the          clause.                                          10          inferences it might favor,  and decide the likely ramifications."          Procter & Gamble, 864 F.2d at 933.          ________________                    2.  The  Uniform Commercial  Code.  In  its next  foray                    2.  The  Uniform Commercial  Code.                        _____________________________          Baccarat  attempts  to  characterize  the  1992  Agreement  as  a          contract for the sale  of goods, thus bringing into  play Article          Two of the Uniform Commercial Code (UCC), R.I. Gen. Laws    6A-2-          101 to  6A-2-725 (1992), and, in particular, R.I. Gen. Laws   6A-          2-309(2)   ("Where   the   contract   provides   for   successive          performances  but is  indefinite in  duration it  is valid  for a          reasonable time, but unless otherwise agreed may be terminated at          any  time by either party.").   In Baccarat's  view, this statute          renders the 1992 Agreement terminable at will and thus undermines          Ross-Simons'  contract claims.   This argument,  though burnished          with considerable care, builds on a false premise.                    We  begin with  bedrock.   Courts look to  the apparent          intentions   of   the  contracting   parties   when  interpreting          contracts.  See  United States  v. Seckinger, 397  U.S. 203,  212                      ___  _____________     _________          n.17 (1970); McCarthy v. Azure, 22 F.3d 351, 355 (1st Cir. 1994);                       ________    _____          Fashion House,  Inc. v. K  mart Corp.,  892 F.2d 1076,  1084 (1st          ____________________    _____________          Cir. 1989); Johnson v. Western Nat'l Life Ins. Co., 641  A.2d 47,                      _______    ___________________________          48 (R.I. 1994).   A valid settlement agreement is  an enforceable          contract subject to  this basic principle  of construction.   See                                                                        ___          ITT Corp. v.  LTX Corp., 926 F.2d 1258,  1266-67 (1st Cir. 1991);          _________     _________          Mathewson  Corp. v. Allied Marine Indus., Inc., 827 F.2d 850, 856          ________________    __________________________          (1st Cir. 1987); T & T Mfg. Co. v.  A.T. Cross Co., 587 F.2d 533,                           ______________     ______________          537  (1st  Cir. 1978),  cert. denied,  441  U.S. 908  (1979); cf.                                  _____ ______                          ___                                          11          Langton v. Johnston, 928 F.2d 1206, 1221 (1st Cir. 1991) (stating          _______    ________          that  consent decrees  between  private parties  in a  commercial          setting are  treated as contracts).   Thus,  whether Article  Two          applies to the  1992 Agreement hinges  primarily on the  parties'          intentions.                    The  district  court  eschewed  any  reference  to  the          statute, apparently convinced  that it  did not  govern the  1992          Agreement.   We believe that this action is supportable.  Article          Two  does not purport to regulate nonsale transactions.  See R.I.                                                                   ___          Gen.  Laws    6A-2-102.   Furthermore, if  a contract  contains a          blend of sale and  nonsale elements, Article Two applies  only if          the  dominant  purpose  behind  the  contract  reflects  a  sales          transaction.  See ITT, 926 F.2d at 1266; Cianbro Corp. v. Curran-                        ___ ___                    _____________    _______          Lavoie, Inc., 814  F.2d 7,  13-14 (1st Cir.  1987); Bonebrake  v.          ____________                                        _________          Cox, 499 F.2d 951, 960 (8th  Cir. 1974); see generally 1 J. White          ___                                      ___ _________          &  R.  Summers, Uniform  Commercial Code     1-1 (4th  ed. 1995).                          ________________________          Consequently,  Article Two is not in play if the dominant purpose          of  an agreement  is to settle  litigation.  See,  e.g., ITT, 926                                                       ___   ____  ___          F.2d  at 1266;  New Eng.  Power Co.  v. Riley  Stoker Corp.,  477                          ___________________     ___________________          N.E.2d 1054, 1060-61 (Mass. App.  Ct.), review denied, 481 N.E.2d                                                  ______ ______          197 (Mass. 1985).                    While it  is not  necessary definitively to  decide the          issue  of predominant purpose  at this stage  in the proceedings,          the  record strongly  suggests  that  the  parties  to  the  1992          Agreement  intended first  and foremost  to settle  the antitrust          litigation.  For one thing, the title of the pact   "Agreement of                                          12          Compromise  and Settlement"   is a good barometer of the parties'          intentions.  Though  the label that contracting  parties affix to          an agreement is not  necessarily determinative of the agreement's          predominant purpose,  it can  constitute potent evidence  of that          purpose.   See, e.g.,  Triangle Underwriters, Inc.  v. Honeywell,                     ___  ____   ___________________________     __________          Inc.,  604  F.2d 737,  742-43 (2d  Cir.  1979) (holding  a hybrid          ____          contract  entitled  "Agreement for  the  Sale of  [Goods]"  to be          precisely that);  Riley Stoker, 477 N.E.2d  at 1060-61 (declining                            ____________          to characterize  a document labelled "Settlement  Agreement" as a          contract for the sale of goods).                    For  another  thing, the  body  of  the 1992  Agreement          contains  language  that  is  more consistent  with  the  purpose          suggested  by its  title  than  with  any  other  purpose.    The          agreement  opens  with  a   declaration  that  it  represents  "a          compromise  between  the  parties  for the  settlement  of  their          claims,  differences  and causes  of action  with respect  to the          dispute."  A  later section reiterates that the  parties executed          the document "for  the sole purpose of  compromising and settling                                 ____          the  matters involved  in  [the antitrust]  dispute."   (Emphasis          supplied).   These excerpts  comprise powerful evidence  that the          primary impetus  for  the  agreement  was to  abate  the  pending          litigation.                    Baccarat tries to throw cold water on this proposition.          Since  the  antitrust  suit  was   dismissed  without  prejudice,          Baccarat suggests that Ross-Simons  could have revived the claims          at  any  time, and,  thus, the  predominant  purpose of  the 1992                                          13          Agreement  must have been the sale of  goods.  We think that this          is  a classic non sequitur.   Dismissing a  lawsuit, even without          prejudice, is not an idle matter; it has consequences in terms of          costs,  legal expenses,  time bars,  and the  like.   Because the          parties' intentions (and, therefore, the contract's meaning) must          be  gleaned from  all the  surrounding circumstances,  see, e.g.,                                                                 ___  ____          Seckinger, 397 U.S. at 212 n.17, the dismissal without prejudice,          _________          by itself, cannot support Baccarat's characterization.                    There is  a second  problem with Baccarat's  attempt to          invoke  Article Two:  even  this scant record  indicates that the          parties never  intended the  1992 Agreement  to be  terminable at          will.  Indeed,  the parties  must have understood  that the  1992          Agreement would operate at  some length because they specifically          provided  in section  four that  each party  assumed the  risk of          changes in  the operative  facts and  relinquished  any right  to          terminate  the  agreement on  the basis  of such  factual shifts.          This proviso would be  nonsensical if either party had  the right          to terminate the agreement at will.                    Raw logic bolsters this evidence.  In exchange for  the          covenants   contained   in   the   1992   Agreement,  Ross-Simons          surrendered the  opportunity to pursue colorable antitrust claims          against Baccarat.  A  reasonable factfinder easily could conclude          that Ross-Simons would not have abandoned such  an opportunity in          exchange for a settlement that, in Judge Boyle's phrase, Baccarat          could  have ripped up  the next morning.   Based  on the parties'          intent, made manifest by  the language of the 1992  Agreement and                                          14          the circumstances of the settlement itself, it seems quite likely          that the Agreement was not meant to be terminable at will.                    We have said enough on this score.   For the reasons we          have enumerated, the  lower court's four major actions in respect          to this  issue   namely,  its refusal  to apply Article  Two, its          determination that  the terms  of the  1992  Agreement remain  in          effect,  its interpretation  of those  terms, and  its conclusion          that  Ross-Simons had  demonstrated a  significant likelihood  of          success on the merits of its contract claims   are  impervious to          Baccarat's assault.                                C.  Irreparable Harm.                                C.  Irreparable Harm.                                    ________________                    Civil  Rule  65(a),  as  interpreted  in  this circuit,          places  the  burden of  demonstrating  that a  denial  of interim          injunctive relief would cause  irreparable harm squarely upon the          movant.   See Narragansett Indian Tribe, 934 F.2d at 6.  Baccarat                    ___ _________________________          questions whether Ross-Simons carried this burden.                    The  burden  is  substantial,  but it  is  possible  to          overstate  its dimensions.    Baccarat falls  into  this trap  by          insisting that,  since Baccarat  crystal comprises less  than one          percent  of Ross-Simons'  total  annual sales,  there  can be  no          irreparable  harm   because  withholding   the  line  could   not          jeopardize  Ross-Simons'  economic   viability.    To   establish          irreparable harm, however, a  plaintiff need not demonstrate that          the  denial of injunctive relief  will be fatal  to its business.          See General Leaseways, Inc. v. National  Truck Leasing Ass'n, 744          ___ _______________________    _____________________________          F.2d  588, 591  (7th Cir.  1984).   It is  usually enough  if the                                          15          plaintiff shows  that its  legal  remedies are  inadequate.   See                                                                        ___          Weinberger   v.  Romero-Barcelo,   456  U.S.   305,  312   (1982)          __________       ______________          (collecting cases); Lopez v.  Garriga, 917 F.2d 63, 68  (1st Cir.                              _____     _______          1990).  If the plaintiff suffers a substantial injury that is not          accurately measurable or adequately compensable by money damages,          irreparable harm is a  natural sequel.  See, e.g.,  Multi-Channel                                                  ___  ____   _____________          TV Cable Co. v.  Charlottesville Quality Cable Operating  Co., 22          ____________     ____________________________________________          F.3d  546, 551 (4th Cir.  1994); K-Mart Corp.  v. Oriental Plaza,                                           ____________     _______________          Inc., 875 F.2d 907, 915 (1st Cir. 1989); Danielson v.  Local 275,          ____                                     _________     __________          Laborers Int'l Union,  479 F.2d 1033, 1037 (2d Cir. 1973).  Thus,          ____________________          a cognizable threat of such harm can support a restraining order.                    Even so, whether Ross-Simons made the requisite showing          in  this  case poses  a close  question.   Although  there  is no          mechanical test that permits a court to make an exact calculation          of  the quantum  of  hard-to-measure harm  that  will suffice  to          justify  interim  injunctive  relief,  there  are  some  relevant          guideposts.   In the  first place, the  plaintiff's showing  must          possess some substance; a preliminary injunction is not warranted          by a tenuous or overly speculative forecast of anticipated  harm.          See  Narragansett Indian Tribe, 934 F.2d at 6-7; Public Serv. Co.          ___  _________________________                   ________________          v. Town of W. Newbury, 835 F.2d 380, 383 (1st Cir. 1987).  In the             __________________          second  place,  an attempt  to  show irreparable  harm  cannot be          evaluated in a vacuum;  the predicted harm and the  likelihood of          success on the merits  must be juxtaposed and weighed  in tandem.          See  Astra USA, 94  F.3d at 743 (explaining  that the greater the          ___  _________          likelihood  of merits success, the  less that is  required in the                                          16          way of irreparable harm); Gately v. Commonwealth of Mass., 2 F.3d                                    ______    _____________________          1221,  1232  (1st Cir.  1993)  (noting  the same  phenomenon  and          suggesting that irreparable harm is subject to a  "sliding scale"          analysis),  cert. denied, 114 S. Ct. 1832 (1994).  Finally, it is                      _____ ______          clear  that battles  over the  quality and  quantity of  the harm          alleged most often will be  won or lost in the trial court.   See                                                                        ___          K-Mart, 875 F.2d at  915 ("District courts have  broad discretion          ______          to  evaluate  the irreparability  of  alleged  harm  and to  make          determinations  regarding the  propriety of  injunctive relief.")          (citation and internal quotation marks omitted).                    In this  instance  the district  court determined  that          Ross-Simons  made   the  requisite  showing   because,  absent  a          restraining  order,  it  would  lose  incalculable  revenues  and          sustain  harm  to  its  goodwill.     The  court  grounded   this          determination  on two  factual  findings.    First,  due  to  the          uniqueness  of Baccarat  crystal,  Ross-Simons  could not  simply          replace the Baccarat line with some other brand, and, without the          availability of  Baccarat,  its bridal  registry  business  would          suffer.   The resultant  damage,  including lost  sales of  other          registry items, alienation of future registrants, and harm to its          reputation,  would defy  accurate quantification.    Second, when          Baccarat  ceased filling Ross-Simons' orders, Ross-Simons already          had  printed  and  distributed  millions of  copies  of  its 1996          catalog,6 and  that catalog held Ross-Simons out as an authorized                                        ____________________               6Following its  usual praxis, Ross-Simons prepared  its 1996          catalog in the fall of 1995 and began mailing it later that year.          The  catalog identifies  Ross-Simons  as  an authorized  Baccarat                                          17          purveyor of Baccarat crystal.  The court found that the inability          to  supply products  as advertised  would wreak  substantial (but          immeasurable)   damage   to   the   goodwill   that   Ross-Simons          painstakingly had created  over the years.   The court  dismissed          Baccarat's  counter-argument  that  Ross-Simons'  stockpiling  of          Baccarat crystal safeguarded it  from this type of harm,  finding          that  Ross-Simons would  deplete  its  beefed-up  inventory  well          before the litigation ended.                    Like  the district  court, we  think that  Ross-Simons'          bridal registry  business is the focal point  of irreparable harm          in this case.   Similar to full-line distributors who  hawk "one-          stop  shopping" as a means of meeting all their customers' needs,          Ross-Simons promotes  its bridal registry as  offering a complete          line  of giftware, including  many choices of  crystal.  Although          not among Ross-Simons' best-selling  lines, Baccarat crystal is a          prestigious  item      a  unique,  top-shelf   line  that  boasts          considerable allure and that is capable of serving as a beacon to          attract  potential  customers.    In  the  context  of  a  bridal          registry,  as  in a  variety  of other  commercial  settings, the          availability  of  a product  line is  as  important, if  not more          important, than  the  amount  of  sales generated.    See,  e.g.,                                                                ___   ____          Supermarket Servs., Inc.  v. Hartz Mountain  Corp., 382 F.  Supp.          ________________________     _____________________          1248, 1256 (S.D.N.Y. 1974) (noting  the importance of offering  a          particular  brand  lest  customers  go   elsewhere).    Potential          registrants,  unable  to  include  Baccarat  crystal among  their                                        ____________________          dealer and contains a listing of available Baccarat products.                                          18          selections, may  choose not to register at  all with Ross-Simons,          enlisting instead with a competitor  who offers the full spectrum          of desired products.                    To  be sure,  the district  court's findings  anent the          bridal registry  rest  on a  number  of assumptions  about  Ross-          Simons' business,  its customers' attitudes, and the way in which          the marketplace operates.  But the assumptions are reasonable and          are  consistent with  the available  evidence; thus,  the court's          subsidiary findings are not unduly speculative.  These subsidiary          findings, in  turn, are  enough  to bottom  the court's  ultimate          finding  of  irreparable  injury.   After  all,  if  the  court's          subsidiary findings are correct, it could never be shown how many          brides opted not to associate themselves with Ross-Simons because          Baccarat  products   were  unavailable,   and  it  would   follow          inexorably  that neither  the  adverse impact  on  sales nor  the          concomitant  insult to  goodwill could  be measured  accurately.7          See Interphoto Corp. v. Minolta Corp., 417 F.2d 621, 622 (2d Cir.          ___ ________________    _____________                                        ____________________               7While the  district court's finding of  irreparable harm is          sustainable  on this basis alone, the fact that the 1996 catalogs          already were in circulation  when the contretemps arose increases          the  threat  to Ross-Simons'  goodwill.    Absent an  injunction,          catalog  recipients  might place  orders  for  Baccarat products,          believing  that Ross-Simons  could supply  advertised  items, and          then  be disappointed.  The harm to Ross-Simons' general goodwill          stemming from its inability to fill such orders likewise would be          incalculable,  and, thus,  irreparable.   See,  e.g., Blackwelder                                                    ___   ____  ___________          Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189, 196-97 (4th  Cir.          _____________    _______________          1977); Bascom Food Prods.  Corp. v. Reese Finer Foods,  Inc., 715                 _________________________    ________________________          F. Supp.  616, 637-38 (D.N.J. 1989)  (collecting cases); Robinson                                                                   ________          v. United  States Postal Serv., 573  F. Supp. 244, 245  (D. Mass.             ___________________________          1983); see also Hypertherm,  Inc. v. Precision Prods.,  Inc., 832                 ___ ____ _________________    _______________________          F.2d 697, 700 (1st Cir. 1987) (holding that substantial damage to          business reputation  is a sufficient showing  of irreparable harm          to justify preliminary injunctive relief).                                          19          1969) (per curiam); Supermarket Servs., 382 F. Supp. at 1256-57.                              __________________                    This is far from  an aberrational result.  By  its very          nature  injury to goodwill and reputation  is not easily measured          or  fully compensable in damages.  Accordingly, this kind of harm          is often  held to be irreparable.  See, e.g., K-Mart, 875 F.2d at                                             ___  ____  ______          915;  Camel Hair & Cashmere Inst.  of Am., Inc. v. Associated Dry                _________________________________________    ______________          Goods Corp.,  799 F.2d 6, 14-15  (1st Cir. 1986).   Of particular          ___________          interest  for  purposes  of  this  appeal,  several  courts  have          recognized that the loss  of a prestigious brand or  product line          may create a  threat of irreparable injury  if it is  likely that          customers (or prospective customers) will turn to competitors who          do not labor under  the same handicap.  See,  e.g., Multi-Channel                                                  ___   ____  _____________          TV, 22 F.3d  at 552; Jacobson  & Co. v.  Armstrong Cork Co.,  548          __                   _______________     __________________          F.2d 438, 444-45 (2d Cir. 1977); Bergen Drug  Co. v. Parke, Davis                                           ________________    ____________          & Co., 307  F.2d 725, 728 (3d Cir. 1962);  Hendricks Music Co. v.          _____                                      ___________________          Steinway,  Inc.,  689  F.  Supp.  1501, 1512  (N.D.  Ill.  1988);          _______________          Supermarket Servs., 382  F. Supp. at 1256-57; see  also Automatic          __________________                            ___  ____ _________          Radio Mfg. Co. v. Ford Motor Co., 390 F.2d 113, 116-17 (1st Cir.)          ______________    ______________          (suggesting  in  dictum that  irreparable  harm  to a  retailer's          goodwill may result  from an inability  to supply a full  line of          products),  cert. denied, 391 U.S.  914 (1968); Leone  v. Town of                      _____ ______                        _____     _______          New Shoreham, 534 A.2d 871, 874 (R.I. 1987) (holding that loss of          ____________          goodwill   due  to   inability  to   serve  returning   customers          constitutes irreparable harm).                    Baccarat's  other  arguments regarding  the  nature and          degree  of  the harm  that  Ross-Simons  alleges  do not  require                                          20          comment.8   Mindful of the preliminary stage  of the proceedings,          the  strong  likelihood  that  Ross-Simons will  prevail  on  the          merits, and  the trial court's  broad discretion,  we uphold  the          finding  that  Ross-Simons  faced  irremediable  harm if  interim          injunctive relief were withheld.          III.  CONCLUSION          III.  CONCLUSION                    We  need  go  no further.    Here,  the district  court          applied  the  traditional  four-part framework  to  the  evidence          before it.   In doing so,  the court mulled  all the  appropriate          criteria,  eschewed reliance  on inappropriate  criteria, weighed          the relevant factors with  considerable care, and determined that          Ross-Simons made a sufficient showing to justify the  issuance of          an  injunction pendente  lite.   Given the  case-specific factual                         ________  ____          findings that anchor this determination,  we cannot say that  the          court's action constituted an abuse of discretion.          Affirmed.          Affirmed.          ________                                        ____________________               8For example, Baccarat suggests that Ross-Simons could   and          still  can     avoid any  harm  simply  by  signing the  Proposed          Agreement.   This is  sheer persiflage.   The law    much  less a          court of equity   should  not compel a litigant to sign  away the          farm in order to save the crops.                                          21
