InterRad Medical, Inc. v. Aquilant Limited

              UNITED STATES DISTRICT COURT                           
                 DISTRICT OF MINNESOTA                               


InterRad Medical, Inc.,               File No. 23-cv-3709 (ECT/DTS)       

     Plaintiff,                                                      

v.                                       OPINION AND ORDER                

Aquilant Limited,                                                         

     Defendant.                                                      

________________________________________________________________________  
Brent  A.  Lorentz  and  Michael  Anthony  Gale-Butto,  Winthrop  &  Weinstine,  P.A., 
Minneapolis, MN, for Plaintiff InterRad Medical, Inc.                     
Rocco Eugene Testani and Tracey K. Ledbetter, Eversheds Sutherland (US) LLP, Atlanta, 
GA, and David L. Hashmall, Felhaber Larson, Minneapolis, MN, for Defendant Aquilant 
Limited.                                                                  
________________________________________________________________________  
Plaintiff InterRad Medical, Inc., a medical device company, brought this case 
against  its  former  exclusive  distributor  in  the  United  Kingdom,  Defendant  Aquilant 
Limited, claiming that Aquilant is violating its post-termination contractual obligations by, 
among other things, selling its remaining inventory of InterRad product.  InterRad seeks a 
preliminary injunction requiring Aquilant to comply with InterRad’s understanding of 
Aquilant’s post-termination contractual obligations.                      
InterRad’s motion will be denied for two primary reasons.  First, though the question 
is fairly debatable, InterRad has not demonstrated that its distribution agreement with 
Aquilant prohibits Aquilant from selling its remaining inventory.  For this reason, InterRad 
has not shown it is likely to prevail on the merits of its main breach-of-contract claim.  
Second, InterRad has not demonstrated it is likely to suffer irreparable harm absent an 
injunction.  Lost business can be compensated by monetary damages.  And a likelihood of 
harm to InterRad’s reputation and goodwill must be shown by more substantial proof than 

has been provided here.                                                   
                           I                                         
InterRad supplies SecurAcath, a medical device.  InterRad “is a medical device 
company located in Plymouth, Minnesota.”  ECF No. 27 ¶ 2.  InterRad’s “most successful 
commercial product is the SecurAcath,” a device that “can hold percutaneous catheters 

securely in place without sutures or adhesives.”  Id.  InterRad is the sole supplier of 
SecurAcath, and SecurAcath historically comprised all of InterRad’s revenue.  Id. ¶ 3.  
England, Scotland, and Wales, collectively, is InterRad’s most important market.  Id.   
Aquilant becomes InterRad’s exclusive distributor in England, Scotland, and Wales.  
Organized in the United Kingdom, Aquilant is a “medical device distributor offering sales, 

marketing, and technical services” for manufacturers.  ECF No. 36 ¶ 2.  In August 2016, 
Aquilant entered into a distribution agreement with InterRad.  ECF No. 36 ¶ 4; ECF No. 
27 ¶ 9.  The distribution agreement made Aquilant InterRad’s exclusive distributor in 
England and Wales.  ECF No. 36 ¶ 4.  When the August 2016 distribution agreement 
expired in October 2019, the parties entered into a second distribution agreement, adding 
Scotland to Aquilant’s exclusive territory.  Id.                          

The  Aquilant/InterRad  distribution  agreements  include  minimum-purchase 
requirements  referred  to  as  “forecasts.”    Under  the  2016  and  2019  distribution 
agreements,  the  parties  agreed  to  “forecasts  of  annual  purchases  by  Aquilant  from 
InterRad.”  ECF No. 36 ¶ 6.  For example, the annual forecast was 5,000 boxes in 2017, 
but rose to 14,919 boxes in 2020.  Id.  The parties describe the forecasts as minimum-
purchase requirements, see ECF No. 27 ¶¶ 9–10; ECF No. 31 at 15, meaning, in other 

words, Aquilant agreed to purchase at least 5,000 boxes of SecurAcath in 2017 and at least 
14,919 boxes of SecurAcath in 2020.                                       
Aquilant sells less SecurAcath than anticipated, resulting in an inventory surplus.  
At some point, Aquilant’s sales lagged behind the agreed-upon purchasing forecasts.  See 
ECF No. 36 ¶ 8.  Aquilant offers several explanations for this, including the COVID-19 

pandemic, ECF No. 38 ¶ 6, market saturation, id. ¶ 4, risks associated with incorrectly 
using SecurAcath, ECF No. 39 ¶ 4–5, and a limited range of product sizes, id. ¶ 6.  InterRad, 
on the other hand, claims “Aquilant chose to run-up its stored inventory of InterRad’s 
products significantly beyond what it was then selling.”  ECF No. 27 ¶ 14.  Regardless, 
Aquilant sold substantially less SecurAcath than it purchased.  ECF No. 36 ¶¶ 6, 8–9.  The 

result was an inventory surplus.  Id. ¶ 9.  It seems Aquilant first informed InterRad about 
this inventory surplus problem in late 2020.  ECF No. 33 ¶ 2.1  In 2021, Aquilant provided 
InterRad with an analysis of the inventory issue, predicting that it would continue past 
2024.  ECF No. 36 ¶ 9.  In January 2021, Aquilant was holding “over 12,000 units of 
InterRad stock,” nearly a year’s worth of inventory.  ECF No. 33 ¶ 3.  In late 2021, the 


1    The Chief Executive Officer of InterRad, Joe Goldberger, states, “InterRad was 
unaware of any significant issues with Aquilant’s excessive inventory until 2021, when 
Aquilant first communicated to InterRad that much of its then existing inventory was either 
expired or nearing expiration.”  ECF No. 27 ¶ 15.  However, there was at least some 
discussion of Aquilant’s inventory problem in late 2020.  See ECF No. 33-1 at 2–4.  
parties agreed to “rework 7,000 boxes of expired or expiring inventory” to extend the shelf-
life and expiration date of the InterRad products.  ECF No. 27 ¶ 15; ECF No. 36 ¶ 10.  But 
this did not solve Aquilant’s underlying inventory problem as sales continued to lag behind 

the annual forecasts.  See ECF No. 33 ¶¶ 3–4.  By February 2022, the inventory surplus 
had grown to roughly 19,000 units of InterRad stock.  Id. ¶ 4.            
The parties execute a third distribution agreement in 2022.  Because the 2019 
distribution agreement expired in October 2022, the parties negotiated a third distribution 
agreement in 2022 (the operative “Agreement”).  Aquilant forecasted that it would need to 

order 8,150 boxes of SecurAcath per year.  ECF No. 36 ¶ 11.  This was considerably below 
the 2021 annual forecast of 15,916 boxes, and the parties compromised on a forecast of 
11,000 boxes for 2023 and 10,000 boxes for 2024.  Id.  Exhibit D to the Agreement set 
monthly forecasts for 2023 and 2024 instead of annual ones.  ECF No. 27-1 at 14.  The 
2023 forecast was 917 boxes each month for 12 months, while the 2024 forecast was 834 

boxes each month for 12 months.  Id.                                      
Aquilant stops placing new orders of SecurAcath and cancels pending orders.  
Aquilant did not place a monthly order for January 2023, ECF No. 27 ¶ 17, and in early 
February canceled orders placed for October, November, and December 2022, id. ¶ 18.2  
On  February  14,  2023,  “InterRad  informed  Aquilant  that  it  would  terminate  the 


2    Because  of  supply-chain  problems,  Aquilant’s  orders  for  InterRad  product 
experienced delays.  ECF No. 36 ¶ 12.  “During the summer and fall of 2022, InterRad 
fulfilled orders approximately three months after they were placed, and by the summer of 
2023, InterRad was shipping orders 6 months after they were placed.”  Id.  This meant 
when Aquilant cancelled orders from previous months, those orders were not necessarily 
shipped or delivered.                                                     
[Agreement],” unless Aquilant reinstated the canceled orders and placed orders for January 
and February.  Id. ¶ 19.  Aquilant agreed to reinstate the canceled orders, id. ¶ 20, but 
requested further reductions to its minimum-purchase requirements.  See, e.g., ECF No. 35 

at 5–6.  Increasingly concerned with the size of its inventory surplus, Aquilant warned 
InterRad  in  February  that  “the  current  stock  holding  risk  is  unacceptable  to  both 
businesses.”  Id. at 4.  But the parties could not reach an agreement to reduce the forecasts.  
Id.; ECF No. 28-5.  In June, Aquilant renewed its request for a modification to the 2022 
distribution agreement, proposing a lower minimum order quantity of “7000 units a year 

increasing by 5% annually for the next 5 years.”  ECF No. 28-5 at 5.  Again, the parties 
failed to reach an agreement.  Id. at 2–5.                                
InterRad terminates the Agreement.  In July, Aquilant “suspended” all pending 
orders placed after December 2022.  ECF No. 27 ¶ 22; ECF No. 36 ¶ 13.  Moreover, 
Aquilant did not place SecurAcath orders for July or August.  ECF No. 27 ¶ 25.  On 

August 18, 2023, InterRad sent a notice of termination to Aquilant.  ECF No. 27-4.  The 
letter stated that termination of the Agreement “shall be effective September 17, 2023, at 
which time InterRad will transition to a new distributor.”  Id.           
InterRad appoints a new distributor, Vygon.  At some point in 2023, InterRad 
selected Vygon to succeed Aquilant as its exclusive distributor for Scotland, England, and 

Wales.  ECF No. 27 ¶ 24; ECF No. 36 ¶ 16.  In the August 18, 2023 termination letter, 
InterRad instructed Aquilant to assist with the transition to Vygon.  ECF No. 27-4.  
Aquilant initially agreed to “hand the business over to Vygon in the best possible fashion,” 
but warned “we have a substantial stock holding which needs to be dealt with as a priority.”  
ECF No. 28-6 at 3.  With years’ worth of inventory, Aquilant stated, “if no arrangements 
for the stock were made, Aquilant would need to sell its inventory into the market to avoid 
a total loss.”  ECF No. 36 ¶ 15.  A few weeks later on September 1, Aquilant disputed the 

validity of InterRad’s termination, contending the forecast requirements in Exhibit D were 
annual, not monthly, and offered to mutually terminate the Agreement so long as the parties 
could agree on “an equitable disposition for the stock currently held by Aquilant.”  ECF 
No. 28-7.                                                                 
Aquilant attempts to sell its remaining inventory in bulk to the NHS Supply Chain.  

The National Health Service Supply Chain is a centralized purchasing platform and one of 
the largest purchasers of SecurAcath in England, Scotland, and Wales.  ECF No. 27 ¶¶ 3, 
35.    In  September  2023,  Aquilant  attempted  to  negotiate  a  bulk  sale  of  Aquilant’s 
SecurAcath inventory to the NHS Supply Chain.  ECF No. 37 ¶ 2.  The NHS Supply Chain 
had received “CEO approval for the deal, as of 18 September 2023.”  Id.  However, “on 21 

September 2023, NHS Supply Chain informed [Aquilant] in a phone call that InterRad’s 
Joe Goldberger . . . threatened action against them if they purchased any products from 
Aquilant.”    Id.  ¶  3.    The  deal  fell  through,  leaving  Aquilant  with  “19,000  units  of 
SecurAcath product.”  Id.                                                 
The NHS Supply Chain stops purchasing SecurAcath.  Around the same time 

Aquilant was attempting to negotiate a bulk sale of its inventory, Vygon reached out to the 
NHS Supply Chain to “initiate the process of transferring the supply arrangement from 
Aquilant to Vygon.”  ECF No. 36 ¶ 16; ECF No. 36-2.  In response, Aquilant sent a cease-
and-desist letter to Vygon.  ECF No. 27 ¶ 31.  The NHS Supply Chain recognized that 
Vygon, not Aquilant, was now InterRad’s authorized distributor, but explained that a 
novation was required for Vygon to replace Aquilant as NHS Supply Chain’s supplier of 
SecurAcath.  ECF No. 28-9 at 5.  Aquilant does not appear to have agreed to a novation.  

See ECF No. 27 ¶ 36.  Without an agreement, the NHS Supply Chain discontinued 
purchases and sales of SecurAcath.  ECF No. 27 ¶ 38.                      
Aquilant contacts an InterRad board member directly.  On September 4, 2023, 
Aquilant reached out directly to an InterRad board member over LinkedIn.  ECF No. 27-5.  
Aquilant warned: “Unfortunately we are in a position now where we will now sell 3 years 

of stock into the market before termination,” explaining that “all that will happen is the 
customers will get a very good deal on stock and no one will be there to service or grow 
the market while the stock washes out.”  Id.  On September 14, 2023, InterRad sent a 
second termination letter “exercising its contractual right to terminate the agreement 
effective immediately.”  ECF No. 27-6 at 3.  Aquilant continued to sell SecurAcath.  ECF 

No. 38 ¶ 12; ECF No. 27-7.                                                
InterRad’s Claims.  InterRad filed its original Complaint on December 1, 2023.  
Compl. [ECF No. 1].  InterRad filed the operative four-count Amended Complaint on 
February 15, 2024.  Am. Compl [ECF No. 44].  Count I is for declaratory judgment.  Id. 
¶¶ 69–75.  Count II is for breach of contract.  Id. ¶¶ 76–85.  Count III is for breach of the 

implied covenant of good faith and fair dealing.  Id. ¶¶ 86–89.  Count IV is for tortious 
interference with contract or prospective economic advantage.  Id. ¶¶ 90–98.  InterRad 
seeks damages, injunctive relief, punitive damages, and attorneys’ fees.  Id. at 22 (prayer 
for relief).                                                              
                           II                                        
There  is  a  preliminary  matter  to  address  regarding  subject-matter  jurisdiction.  
InterRad filed this lawsuit alleging federal jurisdiction based on diversity of citizenship.  

Compl.  ¶¶  7–8.    But  InterRad  “failed  to  properly  plead  the  corporate  structure  and 
citizenship of [Aquilant].”  ECF No. 41 at 1.  For this reason, Magistrate Judge Schultz 
ordered InterRad to file an Amended Complaint “pleading the corporate structure of 
[Aquilant’s] business and the necessary indicia of citizenship.”  Id. at 2.  InterRad filed its 
Amended Complaint on February 15, 2024, in response to Judge Schultz’s order.  See Am. 

Compl.  Because courts must consider subject-matter jurisdiction sua sponte, see, e.g., Fort 
Bend Cnty. v. Davis, 587 U.S. ----, 

 (2019), it is necessary to decide 
whether InterRad’s Amended Complaint adequately pleads Aquilant’s corporate structure 
and citizenship.                                                          
District courts have jurisdiction of civil actions where the matter in controversy 

exceeds $75,000 and the citizens are diverse.  

(a).  The citizenship of a 
corporation  depends  on  its  principal  place  of  business  and  place  of  incorporation.  

(c)(1).  A non-corporate entity’s citizenship, such as a limited liability 
company, is the citizenship of each of its members.  OnePoint Sols., LLC v. Borchert, 

 (8th Cir. 2007).  Deciding whether a foreign entity should be treated as 

a corporation under § 1332 can be difficult.  Jet Midwest Int’l Co., Ltd v. Jet Midwest Grp., 
LLC, 

 (8th Cir. 2019) (adopting the approach employed by the Seventh 
Circuit for determining the citizenship of foreign entities).  “To account for linguistic and 
other differences between domestic and foreign business laws and the fact that other 
nations do not necessarily call entities that are in effect corporations by that name, a court 
examines whether the foreign entity is ‘equivalent in all legally material respects to a 
corporation under state law.’”  

 (quoting Lear Corp. v. Johnson Elec. Holdings Ltd., 

 (7th Cir. 2003)).  A foreign legal entity will be treated as a corporation if it 
has “‘the standard elements of personhood (perpetual existence, the right to contract and 
do business in its own name, and the right to sue and be sued),’ as well as the ability to 
‘issue[] shares to investors who enjoy limited liability’ and which ‘can be bought and sold, 
subject to restrictions that the business declares.’”  

 (quoting BouMatic, LLC v. Idento 

Operations, BV, 

 (7th Cir. 2014)).                       
With the standard in mind, InterRad alleges Aquilant “is a private company limited 
by shares,” that “is domiciled, incorporated, and registered in the United Kingdom.”  Am. 
Compl. ¶¶ 6, 8 (describing Aquilant as a “United Kingdom limited company”).  This 
description, though sparse, is enough to plausibly show that Aquilant is a United Kingdom 

private limited company.  See Lujan v. Defenders of Wildlife, 

 (1992) 
(recognizing that subject-matter jurisdiction “must be supported in the same way as any 
other matter on which the plaintiff bears the burden of proof, i.e., with the manner and 
degree of evidence required at the successive stages of the litigation”).  And a United 
Kingdom private limited company has all of the features of an American corporation: 

“separate legal identity with separate liability; at least one director and one secretary; 
marketable stocks, though they cannot be sold on the public exchange; required annual 
reports to the Companies House, the United Kingdom’s equivalent of a State Corporation 
Commission;  and  no  pass-through  taxation.”    Brink’s  Co.  v.  Chubb  Eur.  Grp.  Ltd., 
No. 3:20-CV-520-HEH, 

, at *6 (E.D. Va. Nov. 20, 2020); SNC-Lavalin 
Constructors Inc. v. Tokio Marine Kiln Ins. Ltd., Nos. GJH-19-873, GJH-19-1510, 

, at *6 (D. Md. June 21, 2021) (same); Green Coast Enters., LLC v. Certain 

Underwriters at Lloyd’s, No. 22-973, 

, at *4–5 (E.D. La. June 21, 2022) 
(same).  Because of these similarities, courts agree that a United Kingdom private limited 
company “is an analog to an American corporation.”  Brink’s, 

, at *5 
(collecting cases).  Therefore, Aquilant’s place of citizenship is determined by its place of 
incorporation and principal place of business.  See 

(c)(1). 

Because InterRad alleges Aquilant is incorporated in the United Kingdom with its 
principal place of business in Basingstoke, England, Am. Compl. ¶ 6, it adequately pleads 
that Aquilant is a citizen of the United Kingdom for purposes of diversity jurisdiction.  And 
because InterRad is a citizen of Delaware and Minnesota, 

 (alleging that InterRad is 
a Delaware corporation with its principal place of business in Plymouth, Minnesota), the 

parties are completely diverse.  The allegations in the Amended Complaint plainly satisfy 
the $75,000 amount-in-controversy requirement.  

.                  
                          III                                        
A preliminary injunction is an “extraordinary remedy.”  Winter v. Nat. Res. Def. 
Council, Inc., 

 (2008) (citation omitted); Watkins Inc. v. Lewis, 

 (8th Cir. 2003).  “In deciding whether to issue a preliminary injunction, the district 
court considers four factors: ‘(1) the threat of irreparable harm to the movant; (2) the state 
of the balance between this harm and the injury that granting the injunction will inflict on 
other parties litigant; (3) the probability that [the] movant will succeed on the merits; and 
(4) the public interest.’”  Sleep No. Corp. v. Young, 

 (8th Cir. 2022) 
(quoting Dataphase Sys., Inc. v. C L Sys., Inc., 

 (8th Cir. 1981) (en banc)).  
The core question is whether the equities “so favor[] the movant that justice requires the 

court to intervene to preserve the status quo until the merits are determined.”  Dataphase, 

 (footnote omitted).  “The burden of establishing the four factors lies with 
the party seeking injunctive relief.”  CPI Card Grp., Inc. v. Dwyer, 

 (D. Minn. 2018) (citing Watkins, 

).                    
                           A                                         

“While no single factor is determinative, the probability of success factor is the most 
significant.”  Home Instead, Inc. v. Florance, 

 (8th Cir. 2013) (citations 
and internal quotation marks omitted); Sleep No. Corp., 

.  Although this 
factor uses the term “probability,” the movant ordinarily need not show a greater than fifty 
percent likelihood of success.  Dwyer, 

.  And the movant “need only 

show likelihood of success on the merits on a single cause of action, not every action it 
asserts in its complaint.”  

 (citation omitted).  “[T]he absence of a likelihood of success 
on the merits strongly suggests that preliminary injunctive relief should be denied.”  CDI 
Energy Servs. v. W. River Pumps, Inc., 

 (8th Cir. 2009) (citation omitted). 
InterRad seeks an injunction to enforce what it says are Aquilant’s post-termination 

obligations, alleging Aquilant has breached, and is continuing to breach, § 19(a) of the 
Agreement.  Under Minnesota law, which the parties agree applies here, a breach-of-
contract claim requires: “(1) a valid contract; (2) performance by the plaintiff of any 
conditions precedent; (3) a material breach of the contract by the defendant; and (4) 
damages.”  Russo v. NCS Pearson, Inc., 

 (D. Minn. 2006) (citation 
omitted).  “[T]he primary goal of contract interpretation is to determine and enforce the 
intent of the parties.”  Motorsports Racing Plus, Inc. v. Arctic Cat Sales, Inc., 

 (Minn. 2003).  When contract language is unambiguous, the “language must be 
given its plain and ordinary meaning.”  Minneapolis Pub. Hous. Auth. v. Lor, 

 (Minn. 1999) (footnotes omitted).  A contract is ambiguous only when its terms 
“are susceptible to more than one reasonable interpretation.”  Staffing Specifix, Inc. v. 
TempWorks Mgmt. Servs., Inc., 

 (Minn. 2018).  “The determination 

of whether a contract is ambiguous is a question of law, but the interpretation of an 
ambiguous contract is a question of fact for the jury.”  Denelsbeck v. Wells Fargo & Co., 

 (Minn. 2003) (citations omitted).                     
                           1                                         
The parties do not dispute the Agreement’s validity; their first dispute centers on the 

second  element—the  performance  of  any  conditions  precedent.    Because  Aquilant’s 
contractual  obligations  in  §  19(a)  are  conditioned  “[u]pon  the  termination  of  this 
Agreement  for  any  reason,”  ECF  No.  28  §  19(a),  the  Agreement’s  termination  is  a 
condition precedent to Aquilant’s post-termination obligations, see Capistrant v. Lifetouch 
Nat’l Sch. Studios, Inc., 

 (Minn. 2018) (“[A] condition precedent is a 

fact that must occur before the promisor is obligated to perform.”) (citation omitted).  The 
parties dispute whether InterRad properly terminated the Agreement, triggering Aquilant’s 
post-termination obligations.                                             
The  Agreement  “may  be  terminated  immediately  upon  the  occurrence  of  the 
following . . . (viii) failure to meet or exceed forecast (Exhibit D).”  ECF No. 28 § 19.  
Exhibit D to the Agreement forecasts 11,000 boxes for 2023, with a line stating “917 boxes 

each month for 12 months.”  ECF No. 28 at 13.  Aquilant agrees that the forecasts attached 
as exhibits to the distribution agreements required it to purchase minimum amounts of 
SecurAcath.  See, e.g., ECF No. 31 at 15 (“That [distribution] agreement established a 
forecast that Aquilant would purchase 14,919 boxes of InterRad product in 2020, with later 
years’ minimums to be reviewed annually.  In 2021, the minimum was increased to 

approximately 15,900 boxes per year.” (citation omitted)).  The plain meaning of “917 
boxes each month for 12 months” is that Exhibit D’s minimum-purchase requirement was 
monthly for 2023.  Because Aquilant did not place a monthly order for July or August 
2023, and suspended all earlier pending orders for 2023, ECF No. 27 ¶¶ 22, 25, it is fair to 
conclude that Aquilant failed to meet or exceed the forecast contained in Exhibit D.  In 

response, InterRad exercised its right to terminate the Agreement on September 14, 2023.  
ECF No. 27 ¶ 32.  Therefore, InterRad will likely be able to show that the Agreement was 
terminated on September 14, 2023, triggering Aquilant’s post-termination obligations.3 
                           2                                         
The third element of InterRad’s breach-of-contract claim concerns whether Aquilant 

materially  breached  its  post-termination  obligations.    Because  InterRad  claims  that 


3    Because InterRad appears to have properly terminated the Agreement, there is no 
need to reach the parties’ repudiation arguments.                         
Aquilant “has breached” and “is continuing to violate” several of its post-termination 
obligations, ECF No. 25 at 22, each alleged breach will be addressed in turn. 
(a)  InterRad’s  main  concern  is  Aquilant’s  “ongoing  sales  in  violation  of  the 

contractual terms.”  ECF No. 25 at 21.  For this reason, it seeks an injunction ordering 
Aquilant to cease selling SecurAcath.  See ECF No. 30 at 8 ¶ 4.  Although Aquilant admits 
it has continued to sell SecurAcath, ECF No. 31 at 40 (discussing “the SecurAcath products 
being sold by Aquilant today”), it is necessary to examine whether the Agreement prohibits 
Aquilant from selling its remaining inventory after the Agreement is terminated. 

Start with the language of § 19(a):                                  
     Upon the termination of this Agreement for any reason: (i)      
     [Aquilant] shall return to [InterRad], within ten (10) days from 
     the effective date of the termination of this Agreement, all    
     Confidential Information and all materials given to [Aquilant]  
     by  or  on  behalf  of  [InterRad]  and  all  samples,  drawings, 
     models, designs and other information which [Aquilant] has      
     received from [InterRad] or has created for InterRad or its     
     customers; (ii) [Aquilant] shall immediately discontinue use of 
     any  and  all  trade  names,  trademarks,  labels,  copyrights, 
     customer lists and advertising media belonging to [InterRad]    
     or, supplied to [Aquilant] by [InterRad]; and (iii) at the option 
     of  [InterRad],  cease  contacting  current  or  prospective    
     customers concerning the sale of the Products or [InterRad] or  
     make  appropriate  introductions  for  any  of  [Aquilant’s]    
     successors; (iv) [Aquilant] shall provide a current customer list 
     including contact information, to help assure a uninterrupted   
     transition.                                                     
ECF No. 28 § 19(a).4  None of these provisions explicitly prohibit Aquilant from selling 
SecurAcath post-termination.  Nor does § 19(a), or any other provision in the Agreement, 
expressly dictate what Aquilant must do with its remaining inventory of SecurAcath.5   

InterRad argues that the Agreement’s failure to include an express term prohibiting 
post-termination sales “is immaterial when the Agreement explicitly precludes the means 
necessary to accomplish such sales.”  ECF No. 43 at 2.  Under Minnesota law, courts 
interpret contracts as a whole, Burke v. Fine, 

 (Minn. Ct. App. 2000), 
and sometimes recognize implied contract terms that necessarily result from the contract 

language or are indispensable to carrying out the parties’ intent, Advantage Consulting 
Grp., Ltd. v. ADT Sec. Sys., Inc., 

, 587 (8th Cir. 2002) (applying Minnesota 
law).  Post-termination obligations in § 19(a), including Aquilant’s obligation to return 
marketing materials, cease using InterRad’s trademarks, and provide its customer list “to 
help assure a uninterrupted transition,” ECF No. 28 § 19(a), are inconsistent with Aquilant 

continuing to sell SecurAcath.  In particular, it is hard to understand how Aquilant could 


4    Other provisions in the Agreement survive its termination: “Notwithstanding the 
termination of this Agreement, the parties shall be required to carry out all provisions of 
this Agreement which contemplate performance subsequent to such termination[.]”  ECF 
No. § 19(b).  And “[a]ll of the provisions of Sections 8-20 and 22 shall survive the 
expiration or termination of this Agreement.”  ECF No. 28 § 21.  InterRad does not point 
to any specific provision outside of § 19(a) that prohibits Aquilant from selling SecurAcath 
after the termination of the Agreement.  See generally, ECF No. 25.       

5    Upon termination, some distribution agreements provide the supplier with an option 
to repurchase the distributor’s remaining inventory or give the distributor a limited window 
of time to liquidate its inventory.  See, e.g., O.D.F. Optronics Ltd. v. Remington Arms Co., 
No. 08 CIV. 4746 (DLC), 

, at *2 (S.D.N.Y. Sept. 26, 2008).  Neither 
type of provision is included in the Agreement.                           
comply  with  its  obligation  to  “cease  contacting  current  or  prospective  customers 
concerning the sale of [SecurAcath]” while continuing to sell SecurAcath.   
However, courts are reluctant to read terms into a contract to effectuate the parties’ 

unexpressed intent.  Brookfield Trade Ctr., Inc. v. Cnty. of Ramsey, 

 
(Minn. 1998) (citing Carl Bolander & Sons, Inc. v. United Stockyards Corp., 

 (Minn. 1974)).  And “the expression of specific things in a contract implies the 
exclusion of all not expressed.”  Am. Nat. Bank of Minn. v. Hous. & Redevelopment Auth. 
for City of Brainerd, 

 (Minn. Ct. App. 2009) (quoting Maher v. All 

Nation Ins. Co., 

 (Minn. Ct. App. 1983)).  Here, § 19(a) lists 
Aquilant’s post-termination obligations, but does not include a term requiring Aquilant to 
cease selling SecurAcath.  Moreover, § 3(b) requires Aquilant to “cease marketing or 
selling”  any  product  that  InterRad  discontinues.    ECF  No.  28  §  3(b).    The  express 
contractual term requiring Aquilant to cease selling SecurAcath in § 3(b), contrasted with 

the  absence  of  such  an  express  term  listed  as  a  part  of  Aquilant’s  post-termination 
obligations, strongly indicates the parties could have, but chose not to, impose such a 
requirement.    Cf.  First  Nat’l  Bank  v.  Am.  Lenders  Facilities,  Inc.,  No.  00-cv-269 
(JRT/RLE), 

, at *6 (D. Minn. Sept. 23, 2002).             
Nor is it persuasive that Aquilant’s obligation to “discontinue use of any and all . . . 

trademarks,”  ECF  No.  28  §  19(a)(ii),  encompasses  an  obligation  to  stop  selling  its 
remaining inventory of SecurAcath.  A trademark is “[a] name, symbol, or other device 
identifying a product or service.”  The American Heritage Dictionary of the English 
Language 861 (5th. ed. 2012).  The product—SecurAcath—is distinct from the marks used 
to  identify  that  product.    Interpreting  §  19(a)(ii)  to  prohibit  Aquilant  from  selling 
SecurAcath would be inconsistent with the plain-language definition of trademark.  And 
because contracts should be examined as a whole, Burke, 

, § 19(a)(ii) 

must be considered in the context of § 10, the provision governing Aquilant’s use of 
InterRad’s  trademarks.    Section  10  allowed  Aquilant  to  “use  the  Trademarks  in  the 
Territory solely in connection with the sale of the Products.”  ECF No. 28 § 10(a).  By 
allowing Aquilant to use the marks “in connection with the sale of the Products,” the 
Agreement does not seem to contemplate the sale of SecurAcath as a use of the marks.  

And upon termination, Aquilant “shall cease from use of the Trademarks and shall destroy 
and/or return . . . all documents, instructions, stationery, advertisements, display items, 
pamphlets, sales literature, signs and the like bearing any of the Trademarks.”  Id. § 10(b).  
The parties could have, but did not, include SecurAcath in that list.  Because § 10(b) does 
not require Aquilant to return SecurAcath or cease sales of product bearing InterRad’s 

marks, interpreting § 19(a)(ii) to include such a requirement would be inconsistent with the 
text of § 10.                                                             
InterRad also turns to trademark law, relying on the proposition that when a license 
is silent about liquidating inventory, the licensee has no right to sell its remaining inventory 
after the license is terminated.  Ryan v. Volpone Stamp Co., 

 

(S.D.N.Y. 2000) (“[I]f a licensee could sell inventory manufactured during the term of the 
license over an indefinite period after its termination or expiration, the expiration date 
would have little force or meaning.”); 4 J. Thomas McCarthy, McCarthy on Trademarks 
and Unfair Competition § 25:31 (5th ed. Dec. 2023 Update) (same); Bill Blass, Ltd. v. SAZ 
Corp., 

 (3d Cir. 1984) (“The far more reasonable construction is that the 
licensee under the Men’s License undertook the risk that if it kept its inventory at too high 
a level the inventory might not be sold by the expiration date of the license.”).   

But  those  cases  involve  a  claim  for  trademark  infringement  under  a  license 
agreement.  For example, in Bill Blass, the plaintiff granted the defendant an exclusive 
right to use the “Bill Blass name and marks in connection with the manufacture and sale 
of menswear.”  Bill Blass, 

.  As a licensee, the defendant’s rights to 
manufacture and sell products bearing plaintiff’s marks depended upon the terms of the 

contract.  

.  Because the license was silent on liquidation of existing inventory, 
the court concluded the defendant’s license ended, and therefore the sale of any clothing 
bearing plaintiff’s marks was trademark infringement.  

  By contrast, InterRad brings a 
breach-of-contract claim.  To prevail, InterRad must identify the contractual provision that 
Aquilant breached (and is continuing to breach) by selling its remaining inventory of 

SecurAcath.  Cf. Knowles v. TD Ameritrade Holding Corp., 

 (8th Cir. 
2021)  (affirming  dismissal  when  plaintiff  failed  to  identify  the  contractual  provision 
purportedly breached).  Moreover, although a license agreement may be incorporated into 
a  distribution  agreement—as  is  the  case  here—the  concepts  are  distinct.    See,  e.g., 
Corporate Counsel’s Guide to International Distribution & Licensing § 1:1 (July 2022 

Update)  (“The distribution agreement should  establish  the  parameters  of  the  parties’ 
relationship and obligations to one another . . . .  The license agreement will need to grant 
to the distributor a license to use the various intellectual properties needed to market the 
products.”).  InterRad’s license-agreement cases involving trademark-infringement claims 
are not persuasive here.                                                  
“The party requesting injunctive relief bears the ‘complete burden’ of proving that 

an injunction should be granted.”  Ness v. City of Bloomington, 

, 722 
(D. Minn. 2020) (quoting Gelco Corp. v. Coniston Partners, 

 (8th Cir. 
1987)).  InterRad has failed to demonstrate that the Agreement prohibits Aquilant from 
selling SecurAcath.  At best, the Agreement is ambiguous.  But InterRad has not put 
forward any external evidence of the parties’ intent.  Staffing Specifix, Inc. v. TempWorks 

Mgmt. Servs., Inc., 

 (Minn. 2018) (“If the district court determines 
that a contract is ambiguous, it may admit parol, or extrinsic, evidence of the parties’ 
intent.”); Fredrich v. Indep. Sch. Dist. No. 720, 

 (Minn. Ct. App. 
1991).  Though the question is not free of doubt, the better answer is that InterRad has not 
met its burden at this preliminary stage to show it is likely to prevail on the merits of this 

breach-of-contract theory.6                                               
(b) InterRad also brings a breach-of-contract claim under § 19(a)(iii).  Am. Compl. 
¶ 80.  Section 19(a)(iii) states that “at the option of [InterRad], [Aquilant shall] cease 
contacting  current  or  prospective  customers  concerning  the  sale  of  the  Products  or 
[InterRad] or make appropriate introductions for any of [Aquilant’s] successors.”  ECF No. 

28 § 19(a)(iii).  Aquilant does not dispute that it has continued contacting customers to sell 
SecurAcath.    See  generally,  ECF  No.  31.    However,  it  contends  this  provision  is 

6    The only evidence in the record regarding Aquilant’s breach of § 19(a)(ii) is 
Aquilant’s sale of SecurAcath bearing InterRad’s marks.                   
disjunctive.  Id. at 33 (“[T]he Distribution Agreement requires that Aquilant either cease 
contacting customers or make appropriate introductions for the new distributor.”). 
Although “or” is normally interpreted as disjunctive to indicate an alternative, 

Quality Pork Processors, Inc. v. Am. Home Assur. Co., No. A10-1443, 

, 
at *2 (Minn. Ct. App. Apr. 12, 2011), it is often read as conjunctive depending on the 
context, Broadway Child Care Ctr., Inc. v. Minn. Dep’t of Hum. Servs., 

, 
634 (Minn. Ct. App. 2021); see also Smith v. United Television, Inc. Special Severance 
Plan, 

 (8th Cir. 2007) (“[C]ourts have recognized the principle 

of contract interpretation that the terms ‘and’ and ‘or’ may be interchanged, in context, to 
carry out the parties’ intent and the agreement’s purpose.”).  Here, it is reasonable to read 
Aquilant’s § 19(a)(iii) obligations as alternatives.  Section 19(a)(iii) starts with the phrase 
“at the option of InterRad.”  ECF No. 28 § 19(a)(iii).  Because option means “something 
available as a choice,” The American Heritage Dictionary of the English Language 589 

(5th ed. 2012), it makes sense to read this introductory phrase as giving InterRad the option 
to select between two alternative obligations.  And Aquilant could not simultaneously cease 
contacting its SecurAcath customers and make appropriate introductions for Vygon.  This 
incompatibility supports the conclusion that InterRad’s choice is disjunctive.  If Aquilant 
is correct, then InterRad has failed to elect which of the two obligations Aquilant is required 

to perform.  See ECF No. 30 at 8 ¶¶ 5–6 (requesting an injunction to enforce both 
obligations); Restatement (First) of Contracts § 325 (1932).  Without any argument from 
InterRad directed specifically at this issue, see generally ECF No. 43, it has failed to show 
it is likely to prevail on a breach-of-contract claim under § 19(a)(iii).  
(c) InterRad also brings a breach-of-contract claim based on Aquilant’s failure to 
provide a customer list.  Am. Compl. ¶ 80.  There is no dispute that § 19(a)(iv) requires 
Aquilant to “provide a current customer list including contact information,” ECF No. 28 § 

19(a), and Aquilant concedes it has not provided a customer list to InterRad, ECF No 31 at 
22.    But  Aquilant  contends  that  it  “may  not  provide  InterRad  with  Aquilant’s  UK 
customers’ personal information . . . under the UK’s data privacy legislation.”  Id. at 33.  
Because Aquilant raises this issue in its section on the merits, ECF No. 31 at 24–33, it 
seems to be raising an impossibility or impracticability affirmative defense. 

“Minnesota law recognizes the defense of impossibility, or impracticability, which 
can excuse performance under the terms of a contract.”  Aspenwood Condo. of Duluth, Inc. 
v. PMA Cos., No. A21-0719, 

, at *2 (Minn. Ct. App. Feb. 14, 2022).  
Minnesota courts explain the defenses as follows:                         
     [D]ue to the existence of a fact or circumstance of which the   
     promisor at the time of the making of the contract neither knew 
     nor had reason to know, performance becomes impossible, or      
     becomes impracticable in the sense that performance would       
     cast  upon  the  promisor  an  excessive  or  unreasonably      
     burdensome hardship, loss, expense, or injury.                  

 (quoting Powers v. Siats, 

 (Minn. 1955)).  A party’s performance 
under a contract may be made impracticable by a conflicting domestic or foreign law.  
Hansmeier v. Seaver, 

, 724–25 (D. Minn. 2020) (applying Minnesota law); 
Microsoft Corp. v. Ion Techs. Corp., 

 (D. Minn. 2007); Vill. of 
Minneota v. Fairbanks, Morse & Co., 

 (Minn. 1948).  “The regulation 
or order must directly affect a party’s performance in such a way that it is impracticable 
for him both to comply with the regulation or order and to perform.”  Restatement (Second) 
of Contracts § 264(b) (1981).                                             
When a defendant raises an affirmative defense in opposition to a preliminary 

injunction, the defendant bears the burden to show its likelihood of success because “the 
burdens  at  the  preliminary  injunction  stage  track  the  burdens  at  trial.”    Gonzales  v. 
O Centro Espirita Beneficente Uniao do Vegetal, 

 (2006).  David Boland, 
the Director of Aquilant, states in his declaration: “It is my understanding that, under the 
UK GDPR, Aquilant cannot send personal information, including names and business 

contact information, of individuals in the UK to someone in the United States without 
specific requirements being met.”  ECF No. 36 ¶ 21.  This seems correct for individuals.  
See,    Data    Protection  Act    2018,    c.    12,    §     73         
https://www.legislation.gov.uk/ukpga/2018/12/section/73.    However,  entities,  not 
individuals, purchase SecurAcath from Aquilant.  See, e.g., ECF No. 27 ¶ 35.  And the 

United Kingdom’s Data Protection Act does not seem to protect the names, addresses, or 
contact  information  for  entities.    See  Data  Protection  Act  2018,  c.  12,  §  3, 
https://www.legislation.gov.uk/ukpga/2018/12/section/3.7    Because  Aquilant  has  not 
shown it is likely to prevail on its impracticability defense, InterRad will likely prevail on 
its customer-list based breach-of-contract claim under § 19(a)(iv).       



7    To the extent Aquilant is prohibited from providing the contact information of 
individuals working for its customers, Aquilant has not explained why it is not “still 
practicable for [Aquilant] to render performance that is substantial.”  Restatement (Second) 
of Contracts § 270 (1981) (discussing partial impracticability).          
(d) Finally, InterRad brings a breach-of-contract claim based on Aquilant’s failure 
to return confidential information under § 19(a)(i).  Am. Compl. ¶ 80.  Section 19(a)(i) 
states that Aquilant “shall return to [InterRad] . . . all Confidential Information and all 

materials given to [Aquilant] by or on behalf of [InterRad] and all samples, drawings, 
models,  designs  and  other  information.”    ECF  No.  28  §  19(a)(i).    In  Goldberger’s 
declaration, he states that “Aquilant has not returned to InterRad all samples, drawings, 
models, designs and other information which Aquilant received from InterRad or created 
for InterRad or its customers.”  ECF No. 27 ¶ 33.  Aquilant does not seem to dispute this.  

See generally ECF No. 31.  Therefore, InterRad is likely to prevail on its breach-of-contract 
claim under § 19(a)(i).                                                   
                           B                                         
“Irreparable harm occurs when a party has no adequate remedy at law, typically 
because its injuries cannot be fully compensated through an award of damages.”  Gen. 

Motors Corp. v. Harry Brown’s, LLC 

 (8th Cir. 2009).  The harm must 
be “likely in the absence of an injunction,” Winter, 

, “great[,] and of such 
imminence that there is a clear and present need for equitable relief,” Iowa Utils. Bd. v. 
FCC, 

, 425 (8th Cir. 1996).  A plaintiff must show more than a future risk of 
irreparable harm; “[t]here must be a clear showing of immediate irreparable injury.”  

Berkley  Risk  Adm’rs  Co.,  LLC  v.  Accident  Fund  Holdings,  Inc.,  No.  16-cv-2671 
(DSD/KMM), 

, at *4 (D. Minn. Aug. 24, 2016) (citation and internal 
quotation marks omitted).  “Failure to show irreparable harm is an independently sufficient 
ground upon which to deny a preliminary injunction.”  Watkins Inc. v. Lewis, 

 (8th Cir. 2003).                                                      
(1) InterRad begins by arguing that it “will suffer irreparable harm if Aquilant is 

allowed to continue its campaign to destroy the market for InterRad’s products.”  ECF 
No. 25 at 28.  Normally, “lost profits and lost business can be readily calculated and 
redressed through monetary relief.”  Cenveo Corp. v. S. Graphic Sys., Inc., No. 08-cv-5521 
(JRT/AJB), 

, at *3 (D. Minn. Jan. 22, 2009).  However, “[l]ost profits 
that are difficult to quantify may constitute irreparable harm.”  Bison Advisors LLC v. 

Kessler, No. 14-cv-3121 (DSD/SER), 

, at *4 (D. Minn. Oct. 30, 2014).  
“The moving party bears the burden of showing lost profits would be difficult to quantify 
such that money damages would be difficult to ascertain.”  Katch, LLC v. Sweetser, 

 (D. Minn. 2015).  Even if the amount of financial harm is readily 
ascertainable, a preliminary injunction may be granted “when the potential economic loss 

is so great as to threaten the existence of the moving party’s business.”  11A Charles Alan 
Wright & Arthur R. Miller, Federal Practice & Procedure: Civil § 2948.1 (3d ed. Apr. 
2023 Update).                                                             
InterRad  claims  “the  harm  to  InterRad’s  viability  and  business  would  be  as 
immeasurable as it would be irreparable,” ECF No. 25 at 29, but the record evidence does 

not substantiate this assertion.  The NHS Supply Chain discontinuing access to SecurAcath 
“has been a significant detriment to InterRad,” ECF No. 27 ¶¶ 36, 38, Vygon is not “seeing 
the expected volume of orders on a direct basis,” ECF No. 28-14 at 2, and “Aquilant’s 
ongoing conduct” is causing “issues with InterRad’s suppliers, InterRad’s new distributor, 
and with customers,” ECF No. 27 ¶ 34.  Neither this evidence nor other record evidence 
demonstrates that InterRad and Vygon’s lost business is uniquely difficult to quantify.  See, 
e.g., 28-15 at 2 (an email from InterRad’s CEO stating: “Once this matter is resolved, we 

will mutually determine and amend the forecast to subtract sales directly lost due to the 
disruption from HC21/Aquilant.”).  This evidence does not demonstrate that Aquilant’s 
continued sales of SecurAcath pose an existential threat to InterRad’s business.   
InterRad relies on Bulova Corp. v. Bulova Do Brasil Com. Rep. Imp. & Exp. Ltda., 
for the proposition that threats to destroy the market can constitute irreparable harm.  

 (S.D. Fla. 2001).  But in Bulova Corp., the defendant “threatened to 
flood the Brazilian market with Bulova watches at very low prices to destroy the value of 
the Bulova brand.”  

.  By contrast, Aquilant attempted to bulk sell its inventory 
“at a discount,” but “above Aquilant’s total cost for the inventory to be sold.”  ECF No. 38 
¶ 11.  And despite an initial attempt to sell SecurAcath in bulk, it now seems to be selling 

SecurAcath “at a discount . . . just as and when the product is required.”  ECF No. 28-14 
at 4.  So not only has InterRad failed to demonstrate that Aquilant is likely to flood the 
market with SecurAcath, but Aquilant’s discounted sales do not seem comparable to the 
sale of Bulova watches at such low prices as to destroy the brand.  In other words, although 
the destruction of InterRad’s United Kingdom market could be irreparable harm, InterRad 

has not shown that harm is likely absent an injunction.                   
(2) InterRad next contends it will suffer irreparable harm to its reputation and the 
goodwill of its products.  ECF No. 25 at 30.  The Eighth Circuit has long recognized that 
“potential loss of consumer goodwill qualifies as irreparable harm.”  Iowa Utils. Bd., 109 
F.3d at 426; Med. Shoppe Int’l, Inc. v. S.B.S. Pill Dr., Inc., 

 (8th Cir. 
2003) (“Harm to reputation and goodwill is difficult, if not impossible, to quantify in terms 
of dollars.”).  However, “courts ‘may choose to require more than a loss of goodwill to 

demonstrate irreparable harm,’ and, with respect to the loss of goodwill itself, may also 
determine  ‘whether  an  alleged  harm  requires  more  substantial  proof.’”    Mainstream 
Fashions Franchising, Inc. v. All These Things, LLC, 

, 1202 (D. Minn. 
2020) (quoting Rogers Grp., Inc. v. City of Fayetteville, 

 (8th Cir. 2010)).  
And there are times where harm to reputation and goodwill can be remedied by money 

damages.  See Novus Franchising, Inc. v. Dawson, 

 (8th Cir. 2013). 
InterRad’s loss of control over its marks could be irreparable harm; lost control often 
poses a substantial threat of injury to the trademark owner’s reputation and goodwill built 
on the brand.  Buffalo Wild Wings Int’l, Inc. v. Grand Canyon Equity Partners, LLC, 

, 845–46 (D. Minn. 2011).  For example, courts have found that a former 

franchisee’s sale of unapproved goods under the franchisor’s trademark, Tim Hortons USA, 
Inc. v. Tims Milner LLC, No. 18-CV-24152, 

, at *5 (S.D. Fla. June 17, 
2019), and a former distributor’s sale of outdated military equipment, O.D.F. Optronics 
Ltd. v. Remington Arms Co., No. 08 CIV. 4746 (DLC), 

, at *8 (S.D.N.Y. 
Sept.  26,  2008),  would  likely  result  in  harm  to  intangible  assets  that  could  not  be 

compensated with monetary damages.  But InterRad does not claim (or demonstrate) that 
Aquilant is selling expired product, outdated product, or altered product.  Nor has InterRad 
identified any specific conduct by Aquilant that would tarnish the SecurAcath brand other 
than Aquilant’s continued sale of its inventory.                          
Instead, InterRad relies on evidence of confusion in the marketplace.  See ECF 
No. 27 ¶¶ 39–41; ECF No. 28-11 (email from the Wales branch of the National Health 
Service);  ECF  No.  28-12  (email  chain  from  the  Clatterbridge  Cancer  Centre  NHS 

Foundation Trust).  Although “a finding that likelihood of confusion exists results in a 
presumption that a threat of irreparable harm exists” in a trademark case, Warner Bros. 
Ent. v. X One X Prods., 

 (8th Cir. 2016), this is a breach-of-contract case 
to which that presumption does not apply.  Without that presumption, confusion is relevant 
in conjunction with a loss of control.  Buffalo Wild Wings, 829 F. Supp. 2d at 845–46.  But 

as was previously discussed, InterRad has not adequately connected its loss of control here 
with likely harm to its reputation or goodwill.  And InterRad otherwise fails to explain how 
confusion in the marketplace—as to the authorized distributor of SecurAcath—will likely 
damage its reputation or goodwill absent an injunction.  The better answer is that InterRad 
must demonstrate likely harm to its intangible assets by more substantial proof.  See Gen. 

Motors Corp., 

.                                            
(3) InterRad also claims that its relationships with its suppliers and subsequent 
distributor (Vygon) will be irreparably harmed absent an injunction.  ECF No. 25 at 32–
34.    Courts  have  found  irreparable  harm  when  an  obligor’s  refusal  to  abide  by  its 
contractual obligations will impair the obligee’s relationships.  Perdue Premium Meat Co. 

v. Mo. Prime Beef Packers, LLC, No. 6:22-CV-03009-MDH, 

, at *4 
(W.D. Mo. Jan. 20, 2022) (finding that a third party’s refusal to process grass-fed cattle 
would result in a ranch being unable to fulfill its obligation to provide finished meat 
products to customers); Borgwarner PDS (Anderson), L.L.C. v. Indus. Molding Corp., No. 
20-10607, 

, at *1, *6 (E.D. Mich. Mar. 11, 2020) (finding that without 
a continued supply of parts, plaintiff’s production lines would soon grind to a halt, leaving 
plaintiff unable to supply automotive products to a car manufacturer); Rex Med. L.P. v. 

Angiotech Pharms. (US), Inc., 

 (S.D.N.Y. 2010) (finding that 
plaintiff would suffer irreparable harm if the sole distributor stopped selling plaintiff’s 
medical device).                                                          
There is some evidence in the record about InterRad’s relationship with suppliers.  
“InterRad has long term contracts with two manufacturers and material suppliers.”  ECF 

No. 27 ¶ 6.  Aquilant’s cancellation of orders and competition with Vygon “has caused 
InterRad to miss its minimum purchase obligations with certain suppliers.”  Id. ¶ 7.  
InterRad’s relationship with its suppliers is particularly important because of the limited 
number of suppliers capable of serving InterRad’s needs.  Id. ¶ 8.  And “Aquilant’s ongoing 
conduct has caused and is continuing to cause issues with InterRad’s suppliers.”  Id. ¶ 34. 

The types of irreparable harm found in Perdue, Borgwarner, and Rex Medical are 
not readily apparent here.  Because customers are continuing to receive SecurAcath, the 
risk of permanent market loss as customers turn to substitute products is not presented here.  
And InterRad has not shown its suppliers’ production lines will soon grind to a halt or that 
it will imminently be unable to satisfy its contractual obligations absent an injunction.  

Although InterRad missed certain minimum-purchase obligations in 2023, see ECF No. 27 
¶ 7, there is insufficient evidence in the record to conclude it will likely be forced to breach 
those minimum-purchase obligations with suppliers again absent an injunction.  Moreover, 
the causal chain here is more attenuated than in the typical supply-chain case.  A distributor 
is not refusing to distribute product, nor is a supplier refusing to supply it.  Instead, InterRad 
claims Aquilant’s sales are driving down Vygon’s sales, reducing InterRad’s sales to 
Vygon and making InterRad’s sales projections less certain.  Without more substantial 

proof, InterRad has not made “a clear showing of immediate irreparable injury.”  Berkley 
Risk Adm’rs, 

, at *4 (citation and internal quotation marks omitted).  
Rather, its chief complaint appears to be lost business compensable with money damages.8  
                           C                                         
The balance-of-harms factor involves “assess[ing] the harm the movant would 

suffer absent an injunction,” as well as the harm the other parties “would experience if the 
injunction issued.”  Katch, 

.  This factor doesn’t change anything.  
Aquilant’s  continued  sale  of  SecurAcath  will  harm  InterRad’s  business,  perhaps 
substantially so.  But an injunction would likely lead to a total loss of Aquilant’s remaining 
inventory, in the amount of “approximately $2.6 million.”  ECF No. 36 ¶ 20.  In other 

words, Aquilant would be substantially harmed by an injunction, and InterRad will be 
substantially harmed without an injunction.  Aquilant could be compensated by a bond, 
while InterRad can be compensated with monetary damages.                  
                           D                                         
The public interest favors enforcing contracts.  Menzies Aviation (USA), Inc. v. 

Wilcox, 

 (D. Minn. 2013).  And here Aquilant has failed to abide 


8    To be clear, any delay in bringing its motion for a preliminary injunction has not 
been weighed against InterRad.  See, e.g., Safety-Kleen Sys., Inc. v. Hennkens, 

 (8th Cir. 2002).                                                 
by some of its contractual obligations.  But the most consequential injunction InterRad 
seeks is to prohibit Aquilant from selling its remaining inventory of SecurAcath.  And it 
has not demonstrated that Aquilant is obligated to cease selling SecurAcath under the 

Agreement.  The parties’ remaining public-interest arguments are not persuasive in a way 
that might change the outcome.                                            
                           *                                         
InterRad’s primary objective in seeking a preliminary injunction was to prevent 
Aquilant “from continuing to sell InterRad products while this matter is resolved on the 

merits.”  ECF No. 25 at 36.  As analyzed above, InterRad has not shown that it is likely to 
prevail on the merits of its breach-of-contract claim, nor has it shown irreparable harm 
specific to this issue.  Primarily for these reasons, InterRad’s motion will be denied.  
Though InterRad has shown a likelihood of success as to its breach-of-contract claim 
seeking a customer list, it did not seek this relief in its proposed order.  See ECF No. 30 at 

7–8.    Regardless,  InterRad  did  not  show  a  likelihood  of  irreparable  harm  flowing 
specifically from this breach or arising from Aquilant’s failure to return confidential 
information under § 19(a)(i).  For these reasons, it would not be appropriate to enter a 
preliminary injunction directed at these particular issues.               

Based on the foregoing, and on all the files, records, and proceedings herein, IT IS 
ORDERED THAT Plaintiff InterRad Medical Inc.’s Motion for a Preliminary Injunction 

[ECF No. 23] is DENIED.                                                   
       LET JUDGMENT BE ENTERED ACCORDINGLY.                          

Dated: March 4, 2024               s/ Eric C. Tostrud                     
                              Eric C. Tostrud                        
                              United States District Court           

              UNITED STATES DISTRICT COURT                           
                 DISTRICT OF MINNESOTA                               


InterRad Medical, Inc.,               File No. 23-cv-3709 (ECT/DTS)       

     Plaintiff,                                                      

v.                                       OPINION AND ORDER                

Aquilant Limited,                                                         

     Defendant.                                                      

________________________________________________________________________  
Brent  A.  Lorentz  and  Michael  Anthony  Gale-Butto,  Winthrop  &  Weinstine,  P.A., 
Minneapolis, MN, for Plaintiff InterRad Medical, Inc.                     
Rocco Eugene Testani and Tracey K. Ledbetter, Eversheds Sutherland (US) LLP, Atlanta, 
GA, and David L. Hashmall, Felhaber Larson, Minneapolis, MN, for Defendant Aquilant 
Limited.                                                                  
________________________________________________________________________  
Plaintiff InterRad Medical, Inc., a medical device company, brought this case 
against  its  former  exclusive  distributor  in  the  United  Kingdom,  Defendant  Aquilant 
Limited, claiming that Aquilant is violating its post-termination contractual obligations by, 
among other things, selling its remaining inventory of InterRad product.  InterRad seeks a 
preliminary injunction requiring Aquilant to comply with InterRad’s understanding of 
Aquilant’s post-termination contractual obligations.                      
InterRad’s motion will be denied for two primary reasons.  First, though the question 
is fairly debatable, InterRad has not demonstrated that its distribution agreement with 
Aquilant prohibits Aquilant from selling its remaining inventory.  For this reason, InterRad 
has not shown it is likely to prevail on the merits of its main breach-of-contract claim.  
Second, InterRad has not demonstrated it is likely to suffer irreparable harm absent an 
injunction.  Lost business can be compensated by monetary damages.  And a likelihood of 
harm to InterRad’s reputation and goodwill must be shown by more substantial proof than 

has been provided here.                                                   
                           I                                         
InterRad supplies SecurAcath, a medical device.  InterRad “is a medical device 
company located in Plymouth, Minnesota.”  ECF No. 27 ¶ 2.  InterRad’s “most successful 
commercial product is the SecurAcath,” a device that “can hold percutaneous catheters 

securely in place without sutures or adhesives.”  Id.  InterRad is the sole supplier of 
SecurAcath, and SecurAcath historically comprised all of InterRad’s revenue.  Id. ¶ 3.  
England, Scotland, and Wales, collectively, is InterRad’s most important market.  Id.   
Aquilant becomes InterRad’s exclusive distributor in England, Scotland, and Wales.  
Organized in the United Kingdom, Aquilant is a “medical device distributor offering sales, 

marketing, and technical services” for manufacturers.  ECF No. 36 ¶ 2.  In August 2016, 
Aquilant entered into a distribution agreement with InterRad.  ECF No. 36 ¶ 4; ECF No. 
27 ¶ 9.  The distribution agreement made Aquilant InterRad’s exclusive distributor in 
England and Wales.  ECF No. 36 ¶ 4.  When the August 2016 distribution agreement 
expired in October 2019, the parties entered into a second distribution agreement, adding 
Scotland to Aquilant’s exclusive territory.  Id.                          

The  Aquilant/InterRad  distribution  agreements  include  minimum-purchase 
requirements  referred  to  as  “forecasts.”    Under  the  2016  and  2019  distribution 
agreements,  the  parties  agreed  to  “forecasts  of  annual  purchases  by  Aquilant  from 
InterRad.”  ECF No. 36 ¶ 6.  For example, the annual forecast was 5,000 boxes in 2017, 
but rose to 14,919 boxes in 2020.  Id.  The parties describe the forecasts as minimum-
purchase requirements, see ECF No. 27 ¶¶ 9–10; ECF No. 31 at 15, meaning, in other 

words, Aquilant agreed to purchase at least 5,000 boxes of SecurAcath in 2017 and at least 
14,919 boxes of SecurAcath in 2020.                                       
Aquilant sells less SecurAcath than anticipated, resulting in an inventory surplus.  
At some point, Aquilant’s sales lagged behind the agreed-upon purchasing forecasts.  See 
ECF No. 36 ¶ 8.  Aquilant offers several explanations for this, including the COVID-19 

pandemic, ECF No. 38 ¶ 6, market saturation, id. ¶ 4, risks associated with incorrectly 
using SecurAcath, ECF No. 39 ¶ 4–5, and a limited range of product sizes, id. ¶ 6.  InterRad, 
on the other hand, claims “Aquilant chose to run-up its stored inventory of InterRad’s 
products significantly beyond what it was then selling.”  ECF No. 27 ¶ 14.  Regardless, 
Aquilant sold substantially less SecurAcath than it purchased.  ECF No. 36 ¶¶ 6, 8–9.  The 

result was an inventory surplus.  Id. ¶ 9.  It seems Aquilant first informed InterRad about 
this inventory surplus problem in late 2020.  ECF No. 33 ¶ 2.1  In 2021, Aquilant provided 
InterRad with an analysis of the inventory issue, predicting that it would continue past 
2024.  ECF No. 36 ¶ 9.  In January 2021, Aquilant was holding “over 12,000 units of 
InterRad stock,” nearly a year’s worth of inventory.  ECF No. 33 ¶ 3.  In late 2021, the 


1    The Chief Executive Officer of InterRad, Joe Goldberger, states, “InterRad was 
unaware of any significant issues with Aquilant’s excessive inventory until 2021, when 
Aquilant first communicated to InterRad that much of its then existing inventory was either 
expired or nearing expiration.”  ECF No. 27 ¶ 15.  However, there was at least some 
discussion of Aquilant’s inventory problem in late 2020.  See ECF No. 33-1 at 2–4.  
parties agreed to “rework 7,000 boxes of expired or expiring inventory” to extend the shelf-
life and expiration date of the InterRad products.  ECF No. 27 ¶ 15; ECF No. 36 ¶ 10.  But 
this did not solve Aquilant’s underlying inventory problem as sales continued to lag behind 

the annual forecasts.  See ECF No. 33 ¶¶ 3–4.  By February 2022, the inventory surplus 
had grown to roughly 19,000 units of InterRad stock.  Id. ¶ 4.            
The parties execute a third distribution agreement in 2022.  Because the 2019 
distribution agreement expired in October 2022, the parties negotiated a third distribution 
agreement in 2022 (the operative “Agreement”).  Aquilant forecasted that it would need to 

order 8,150 boxes of SecurAcath per year.  ECF No. 36 ¶ 11.  This was considerably below 
the 2021 annual forecast of 15,916 boxes, and the parties compromised on a forecast of 
11,000 boxes for 2023 and 10,000 boxes for 2024.  Id.  Exhibit D to the Agreement set 
monthly forecasts for 2023 and 2024 instead of annual ones.  ECF No. 27-1 at 14.  The 
2023 forecast was 917 boxes each month for 12 months, while the 2024 forecast was 834 

boxes each month for 12 months.  Id.                                      
Aquilant stops placing new orders of SecurAcath and cancels pending orders.  
Aquilant did not place a monthly order for January 2023, ECF No. 27 ¶ 17, and in early 
February canceled orders placed for October, November, and December 2022, id. ¶ 18.2  
On  February  14,  2023,  “InterRad  informed  Aquilant  that  it  would  terminate  the 


2    Because  of  supply-chain  problems,  Aquilant’s  orders  for  InterRad  product 
experienced delays.  ECF No. 36 ¶ 12.  “During the summer and fall of 2022, InterRad 
fulfilled orders approximately three months after they were placed, and by the summer of 
2023, InterRad was shipping orders 6 months after they were placed.”  Id.  This meant 
when Aquilant cancelled orders from previous months, those orders were not necessarily 
shipped or delivered.                                                     
[Agreement],” unless Aquilant reinstated the canceled orders and placed orders for January 
and February.  Id. ¶ 19.  Aquilant agreed to reinstate the canceled orders, id. ¶ 20, but 
requested further reductions to its minimum-purchase requirements.  See, e.g., ECF No. 35 

at 5–6.  Increasingly concerned with the size of its inventory surplus, Aquilant warned 
InterRad  in  February  that  “the  current  stock  holding  risk  is  unacceptable  to  both 
businesses.”  Id. at 4.  But the parties could not reach an agreement to reduce the forecasts.  
Id.; ECF No. 28-5.  In June, Aquilant renewed its request for a modification to the 2022 
distribution agreement, proposing a lower minimum order quantity of “7000 units a year 

increasing by 5% annually for the next 5 years.”  ECF No. 28-5 at 5.  Again, the parties 
failed to reach an agreement.  Id. at 2–5.                                
InterRad terminates the Agreement.  In July, Aquilant “suspended” all pending 
orders placed after December 2022.  ECF No. 27 ¶ 22; ECF No. 36 ¶ 13.  Moreover, 
Aquilant did not place SecurAcath orders for July or August.  ECF No. 27 ¶ 25.  On 

August 18, 2023, InterRad sent a notice of termination to Aquilant.  ECF No. 27-4.  The 
letter stated that termination of the Agreement “shall be effective September 17, 2023, at 
which time InterRad will transition to a new distributor.”  Id.           
InterRad appoints a new distributor, Vygon.  At some point in 2023, InterRad 
selected Vygon to succeed Aquilant as its exclusive distributor for Scotland, England, and 

Wales.  ECF No. 27 ¶ 24; ECF No. 36 ¶ 16.  In the August 18, 2023 termination letter, 
InterRad instructed Aquilant to assist with the transition to Vygon.  ECF No. 27-4.  
Aquilant initially agreed to “hand the business over to Vygon in the best possible fashion,” 
but warned “we have a substantial stock holding which needs to be dealt with as a priority.”  
ECF No. 28-6 at 3.  With years’ worth of inventory, Aquilant stated, “if no arrangements 
for the stock were made, Aquilant would need to sell its inventory into the market to avoid 
a total loss.”  ECF No. 36 ¶ 15.  A few weeks later on September 1, Aquilant disputed the 

validity of InterRad’s termination, contending the forecast requirements in Exhibit D were 
annual, not monthly, and offered to mutually terminate the Agreement so long as the parties 
could agree on “an equitable disposition for the stock currently held by Aquilant.”  ECF 
No. 28-7.                                                                 
Aquilant attempts to sell its remaining inventory in bulk to the NHS Supply Chain.  

The National Health Service Supply Chain is a centralized purchasing platform and one of 
the largest purchasers of SecurAcath in England, Scotland, and Wales.  ECF No. 27 ¶¶ 3, 
35.    In  September  2023,  Aquilant  attempted  to  negotiate  a  bulk  sale  of  Aquilant’s 
SecurAcath inventory to the NHS Supply Chain.  ECF No. 37 ¶ 2.  The NHS Supply Chain 
had received “CEO approval for the deal, as of 18 September 2023.”  Id.  However, “on 21 

September 2023, NHS Supply Chain informed [Aquilant] in a phone call that InterRad’s 
Joe Goldberger . . . threatened action against them if they purchased any products from 
Aquilant.”    Id.  ¶  3.    The  deal  fell  through,  leaving  Aquilant  with  “19,000  units  of 
SecurAcath product.”  Id.                                                 
The NHS Supply Chain stops purchasing SecurAcath.  Around the same time 

Aquilant was attempting to negotiate a bulk sale of its inventory, Vygon reached out to the 
NHS Supply Chain to “initiate the process of transferring the supply arrangement from 
Aquilant to Vygon.”  ECF No. 36 ¶ 16; ECF No. 36-2.  In response, Aquilant sent a cease-
and-desist letter to Vygon.  ECF No. 27 ¶ 31.  The NHS Supply Chain recognized that 
Vygon, not Aquilant, was now InterRad’s authorized distributor, but explained that a 
novation was required for Vygon to replace Aquilant as NHS Supply Chain’s supplier of 
SecurAcath.  ECF No. 28-9 at 5.  Aquilant does not appear to have agreed to a novation.  

See ECF No. 27 ¶ 36.  Without an agreement, the NHS Supply Chain discontinued 
purchases and sales of SecurAcath.  ECF No. 27 ¶ 38.                      
Aquilant contacts an InterRad board member directly.  On September 4, 2023, 
Aquilant reached out directly to an InterRad board member over LinkedIn.  ECF No. 27-5.  
Aquilant warned: “Unfortunately we are in a position now where we will now sell 3 years 

of stock into the market before termination,” explaining that “all that will happen is the 
customers will get a very good deal on stock and no one will be there to service or grow 
the market while the stock washes out.”  Id.  On September 14, 2023, InterRad sent a 
second termination letter “exercising its contractual right to terminate the agreement 
effective immediately.”  ECF No. 27-6 at 3.  Aquilant continued to sell SecurAcath.  ECF 

No. 38 ¶ 12; ECF No. 27-7.                                                
InterRad’s Claims.  InterRad filed its original Complaint on December 1, 2023.  
Compl. [ECF No. 1].  InterRad filed the operative four-count Amended Complaint on 
February 15, 2024.  Am. Compl [ECF No. 44].  Count I is for declaratory judgment.  Id. 
¶¶ 69–75.  Count II is for breach of contract.  Id. ¶¶ 76–85.  Count III is for breach of the 

implied covenant of good faith and fair dealing.  Id. ¶¶ 86–89.  Count IV is for tortious 
interference with contract or prospective economic advantage.  Id. ¶¶ 90–98.  InterRad 
seeks damages, injunctive relief, punitive damages, and attorneys’ fees.  Id. at 22 (prayer 
for relief).                                                              
                           II                                        
There  is  a  preliminary  matter  to  address  regarding  subject-matter  jurisdiction.  
InterRad filed this lawsuit alleging federal jurisdiction based on diversity of citizenship.  

Compl.  ¶¶  7–8.    But  InterRad  “failed  to  properly  plead  the  corporate  structure  and 
citizenship of [Aquilant].”  ECF No. 41 at 1.  For this reason, Magistrate Judge Schultz 
ordered InterRad to file an Amended Complaint “pleading the corporate structure of 
[Aquilant’s] business and the necessary indicia of citizenship.”  Id. at 2.  InterRad filed its 
Amended Complaint on February 15, 2024, in response to Judge Schultz’s order.  See Am. 

Compl.  Because courts must consider subject-matter jurisdiction sua sponte, see, e.g., Fort 
Bend Cnty. v. Davis, 587 U.S. ----, 

 (2019), it is necessary to decide 
whether InterRad’s Amended Complaint adequately pleads Aquilant’s corporate structure 
and citizenship.                                                          
District courts have jurisdiction of civil actions where the matter in controversy 

exceeds $75,000 and the citizens are diverse.  

(a).  The citizenship of a 
corporation  depends  on  its  principal  place  of  business  and  place  of  incorporation.  

(c)(1).  A non-corporate entity’s citizenship, such as a limited liability 
company, is the citizenship of each of its members.  OnePoint Sols., LLC v. Borchert, 

 (8th Cir. 2007).  Deciding whether a foreign entity should be treated as 

a corporation under § 1332 can be difficult.  Jet Midwest Int’l Co., Ltd v. Jet Midwest Grp., 
LLC, 

 (8th Cir. 2019) (adopting the approach employed by the Seventh 
Circuit for determining the citizenship of foreign entities).  “To account for linguistic and 
other differences between domestic and foreign business laws and the fact that other 
nations do not necessarily call entities that are in effect corporations by that name, a court 
examines whether the foreign entity is ‘equivalent in all legally material respects to a 
corporation under state law.’”  

 (quoting Lear Corp. v. Johnson Elec. Holdings Ltd., 

 (7th Cir. 2003)).  A foreign legal entity will be treated as a corporation if it 
has “‘the standard elements of personhood (perpetual existence, the right to contract and 
do business in its own name, and the right to sue and be sued),’ as well as the ability to 
‘issue[] shares to investors who enjoy limited liability’ and which ‘can be bought and sold, 
subject to restrictions that the business declares.’”  

 (quoting BouMatic, LLC v. Idento 

Operations, BV, 

 (7th Cir. 2014)).                       
With the standard in mind, InterRad alleges Aquilant “is a private company limited 
by shares,” that “is domiciled, incorporated, and registered in the United Kingdom.”  Am. 
Compl. ¶¶ 6, 8 (describing Aquilant as a “United Kingdom limited company”).  This 
description, though sparse, is enough to plausibly show that Aquilant is a United Kingdom 

private limited company.  See Lujan v. Defenders of Wildlife, 

 (1992) 
(recognizing that subject-matter jurisdiction “must be supported in the same way as any 
other matter on which the plaintiff bears the burden of proof, i.e., with the manner and 
degree of evidence required at the successive stages of the litigation”).  And a United 
Kingdom private limited company has all of the features of an American corporation: 

“separate legal identity with separate liability; at least one director and one secretary; 
marketable stocks, though they cannot be sold on the public exchange; required annual 
reports to the Companies House, the United Kingdom’s equivalent of a State Corporation 
Commission;  and  no  pass-through  taxation.”    Brink’s  Co.  v.  Chubb  Eur.  Grp.  Ltd., 
No. 3:20-CV-520-HEH, 

, at *6 (E.D. Va. Nov. 20, 2020); SNC-Lavalin 
Constructors Inc. v. Tokio Marine Kiln Ins. Ltd., Nos. GJH-19-873, GJH-19-1510, 

, at *6 (D. Md. June 21, 2021) (same); Green Coast Enters., LLC v. Certain 

Underwriters at Lloyd’s, No. 22-973, 

, at *4–5 (E.D. La. June 21, 2022) 
(same).  Because of these similarities, courts agree that a United Kingdom private limited 
company “is an analog to an American corporation.”  Brink’s, 

, at *5 
(collecting cases).  Therefore, Aquilant’s place of citizenship is determined by its place of 
incorporation and principal place of business.  See 

(c)(1). 

Because InterRad alleges Aquilant is incorporated in the United Kingdom with its 
principal place of business in Basingstoke, England, Am. Compl. ¶ 6, it adequately pleads 
that Aquilant is a citizen of the United Kingdom for purposes of diversity jurisdiction.  And 
because InterRad is a citizen of Delaware and Minnesota, 

 (alleging that InterRad is 
a Delaware corporation with its principal place of business in Plymouth, Minnesota), the 

parties are completely diverse.  The allegations in the Amended Complaint plainly satisfy 
the $75,000 amount-in-controversy requirement.  

.                  
                          III                                        
A preliminary injunction is an “extraordinary remedy.”  Winter v. Nat. Res. Def. 
Council, Inc., 

 (2008) (citation omitted); Watkins Inc. v. Lewis, 

 (8th Cir. 2003).  “In deciding whether to issue a preliminary injunction, the district 
court considers four factors: ‘(1) the threat of irreparable harm to the movant; (2) the state 
of the balance between this harm and the injury that granting the injunction will inflict on 
other parties litigant; (3) the probability that [the] movant will succeed on the merits; and 
(4) the public interest.’”  Sleep No. Corp. v. Young, 

 (8th Cir. 2022) 
(quoting Dataphase Sys., Inc. v. C L Sys., Inc., 

 (8th Cir. 1981) (en banc)).  
The core question is whether the equities “so favor[] the movant that justice requires the 

court to intervene to preserve the status quo until the merits are determined.”  Dataphase, 

 (footnote omitted).  “The burden of establishing the four factors lies with 
the party seeking injunctive relief.”  CPI Card Grp., Inc. v. Dwyer, 

 (D. Minn. 2018) (citing Watkins, 

).                    
                           A                                         

“While no single factor is determinative, the probability of success factor is the most 
significant.”  Home Instead, Inc. v. Florance, 

 (8th Cir. 2013) (citations 
and internal quotation marks omitted); Sleep No. Corp., 

.  Although this 
factor uses the term “probability,” the movant ordinarily need not show a greater than fifty 
percent likelihood of success.  Dwyer, 

.  And the movant “need only 

show likelihood of success on the merits on a single cause of action, not every action it 
asserts in its complaint.”  

 (citation omitted).  “[T]he absence of a likelihood of success 
on the merits strongly suggests that preliminary injunctive relief should be denied.”  CDI 
Energy Servs. v. W. River Pumps, Inc., 

 (8th Cir. 2009) (citation omitted). 
InterRad seeks an injunction to enforce what it says are Aquilant’s post-termination 

obligations, alleging Aquilant has breached, and is continuing to breach, § 19(a) of the 
Agreement.  Under Minnesota law, which the parties agree applies here, a breach-of-
contract claim requires: “(1) a valid contract; (2) performance by the plaintiff of any 
conditions precedent; (3) a material breach of the contract by the defendant; and (4) 
damages.”  Russo v. NCS Pearson, Inc., 

 (D. Minn. 2006) (citation 
omitted).  “[T]he primary goal of contract interpretation is to determine and enforce the 
intent of the parties.”  Motorsports Racing Plus, Inc. v. Arctic Cat Sales, Inc., 

 (Minn. 2003).  When contract language is unambiguous, the “language must be 
given its plain and ordinary meaning.”  Minneapolis Pub. Hous. Auth. v. Lor, 

 (Minn. 1999) (footnotes omitted).  A contract is ambiguous only when its terms 
“are susceptible to more than one reasonable interpretation.”  Staffing Specifix, Inc. v. 
TempWorks Mgmt. Servs., Inc., 

 (Minn. 2018).  “The determination 

of whether a contract is ambiguous is a question of law, but the interpretation of an 
ambiguous contract is a question of fact for the jury.”  Denelsbeck v. Wells Fargo & Co., 

 (Minn. 2003) (citations omitted).                     
                           1                                         
The parties do not dispute the Agreement’s validity; their first dispute centers on the 

second  element—the  performance  of  any  conditions  precedent.    Because  Aquilant’s 
contractual  obligations  in  §  19(a)  are  conditioned  “[u]pon  the  termination  of  this 
Agreement  for  any  reason,”  ECF  No.  28  §  19(a),  the  Agreement’s  termination  is  a 
condition precedent to Aquilant’s post-termination obligations, see Capistrant v. Lifetouch 
Nat’l Sch. Studios, Inc., 

 (Minn. 2018) (“[A] condition precedent is a 

fact that must occur before the promisor is obligated to perform.”) (citation omitted).  The 
parties dispute whether InterRad properly terminated the Agreement, triggering Aquilant’s 
post-termination obligations.                                             
The  Agreement  “may  be  terminated  immediately  upon  the  occurrence  of  the 
following . . . (viii) failure to meet or exceed forecast (Exhibit D).”  ECF No. 28 § 19.  
Exhibit D to the Agreement forecasts 11,000 boxes for 2023, with a line stating “917 boxes 

each month for 12 months.”  ECF No. 28 at 13.  Aquilant agrees that the forecasts attached 
as exhibits to the distribution agreements required it to purchase minimum amounts of 
SecurAcath.  See, e.g., ECF No. 31 at 15 (“That [distribution] agreement established a 
forecast that Aquilant would purchase 14,919 boxes of InterRad product in 2020, with later 
years’ minimums to be reviewed annually.  In 2021, the minimum was increased to 

approximately 15,900 boxes per year.” (citation omitted)).  The plain meaning of “917 
boxes each month for 12 months” is that Exhibit D’s minimum-purchase requirement was 
monthly for 2023.  Because Aquilant did not place a monthly order for July or August 
2023, and suspended all earlier pending orders for 2023, ECF No. 27 ¶¶ 22, 25, it is fair to 
conclude that Aquilant failed to meet or exceed the forecast contained in Exhibit D.  In 

response, InterRad exercised its right to terminate the Agreement on September 14, 2023.  
ECF No. 27 ¶ 32.  Therefore, InterRad will likely be able to show that the Agreement was 
terminated on September 14, 2023, triggering Aquilant’s post-termination obligations.3 
                           2                                         
The third element of InterRad’s breach-of-contract claim concerns whether Aquilant 

materially  breached  its  post-termination  obligations.    Because  InterRad  claims  that 


3    Because InterRad appears to have properly terminated the Agreement, there is no 
need to reach the parties’ repudiation arguments.                         
Aquilant “has breached” and “is continuing to violate” several of its post-termination 
obligations, ECF No. 25 at 22, each alleged breach will be addressed in turn. 
(a)  InterRad’s  main  concern  is  Aquilant’s  “ongoing  sales  in  violation  of  the 

contractual terms.”  ECF No. 25 at 21.  For this reason, it seeks an injunction ordering 
Aquilant to cease selling SecurAcath.  See ECF No. 30 at 8 ¶ 4.  Although Aquilant admits 
it has continued to sell SecurAcath, ECF No. 31 at 40 (discussing “the SecurAcath products 
being sold by Aquilant today”), it is necessary to examine whether the Agreement prohibits 
Aquilant from selling its remaining inventory after the Agreement is terminated. 

Start with the language of § 19(a):                                  
     Upon the termination of this Agreement for any reason: (i)      
     [Aquilant] shall return to [InterRad], within ten (10) days from 
     the effective date of the termination of this Agreement, all    
     Confidential Information and all materials given to [Aquilant]  
     by  or  on  behalf  of  [InterRad]  and  all  samples,  drawings, 
     models, designs and other information which [Aquilant] has      
     received from [InterRad] or has created for InterRad or its     
     customers; (ii) [Aquilant] shall immediately discontinue use of 
     any  and  all  trade  names,  trademarks,  labels,  copyrights, 
     customer lists and advertising media belonging to [InterRad]    
     or, supplied to [Aquilant] by [InterRad]; and (iii) at the option 
     of  [InterRad],  cease  contacting  current  or  prospective    
     customers concerning the sale of the Products or [InterRad] or  
     make  appropriate  introductions  for  any  of  [Aquilant’s]    
     successors; (iv) [Aquilant] shall provide a current customer list 
     including contact information, to help assure a uninterrupted   
     transition.                                                     
ECF No. 28 § 19(a).4  None of these provisions explicitly prohibit Aquilant from selling 
SecurAcath post-termination.  Nor does § 19(a), or any other provision in the Agreement, 
expressly dictate what Aquilant must do with its remaining inventory of SecurAcath.5   

InterRad argues that the Agreement’s failure to include an express term prohibiting 
post-termination sales “is immaterial when the Agreement explicitly precludes the means 
necessary to accomplish such sales.”  ECF No. 43 at 2.  Under Minnesota law, courts 
interpret contracts as a whole, Burke v. Fine, 

 (Minn. Ct. App. 2000), 
and sometimes recognize implied contract terms that necessarily result from the contract 

language or are indispensable to carrying out the parties’ intent, Advantage Consulting 
Grp., Ltd. v. ADT Sec. Sys., Inc., 

, 587 (8th Cir. 2002) (applying Minnesota 
law).  Post-termination obligations in § 19(a), including Aquilant’s obligation to return 
marketing materials, cease using InterRad’s trademarks, and provide its customer list “to 
help assure a uninterrupted transition,” ECF No. 28 § 19(a), are inconsistent with Aquilant 

continuing to sell SecurAcath.  In particular, it is hard to understand how Aquilant could 


4    Other provisions in the Agreement survive its termination: “Notwithstanding the 
termination of this Agreement, the parties shall be required to carry out all provisions of 
this Agreement which contemplate performance subsequent to such termination[.]”  ECF 
No. § 19(b).  And “[a]ll of the provisions of Sections 8-20 and 22 shall survive the 
expiration or termination of this Agreement.”  ECF No. 28 § 21.  InterRad does not point 
to any specific provision outside of § 19(a) that prohibits Aquilant from selling SecurAcath 
after the termination of the Agreement.  See generally, ECF No. 25.       

5    Upon termination, some distribution agreements provide the supplier with an option 
to repurchase the distributor’s remaining inventory or give the distributor a limited window 
of time to liquidate its inventory.  See, e.g., O.D.F. Optronics Ltd. v. Remington Arms Co., 
No. 08 CIV. 4746 (DLC), 

, at *2 (S.D.N.Y. Sept. 26, 2008).  Neither 
type of provision is included in the Agreement.                           
comply  with  its  obligation  to  “cease  contacting  current  or  prospective  customers 
concerning the sale of [SecurAcath]” while continuing to sell SecurAcath.   
However, courts are reluctant to read terms into a contract to effectuate the parties’ 

unexpressed intent.  Brookfield Trade Ctr., Inc. v. Cnty. of Ramsey, 

 
(Minn. 1998) (citing Carl Bolander & Sons, Inc. v. United Stockyards Corp., 

 (Minn. 1974)).  And “the expression of specific things in a contract implies the 
exclusion of all not expressed.”  Am. Nat. Bank of Minn. v. Hous. & Redevelopment Auth. 
for City of Brainerd, 

 (Minn. Ct. App. 2009) (quoting Maher v. All 

Nation Ins. Co., 

 (Minn. Ct. App. 1983)).  Here, § 19(a) lists 
Aquilant’s post-termination obligations, but does not include a term requiring Aquilant to 
cease selling SecurAcath.  Moreover, § 3(b) requires Aquilant to “cease marketing or 
selling”  any  product  that  InterRad  discontinues.    ECF  No.  28  §  3(b).    The  express 
contractual term requiring Aquilant to cease selling SecurAcath in § 3(b), contrasted with 

the  absence  of  such  an  express  term  listed  as  a  part  of  Aquilant’s  post-termination 
obligations, strongly indicates the parties could have, but chose not to, impose such a 
requirement.    Cf.  First  Nat’l  Bank  v.  Am.  Lenders  Facilities,  Inc.,  No.  00-cv-269 
(JRT/RLE), 

, at *6 (D. Minn. Sept. 23, 2002).             
Nor is it persuasive that Aquilant’s obligation to “discontinue use of any and all . . . 

trademarks,”  ECF  No.  28  §  19(a)(ii),  encompasses  an  obligation  to  stop  selling  its 
remaining inventory of SecurAcath.  A trademark is “[a] name, symbol, or other device 
identifying a product or service.”  The American Heritage Dictionary of the English 
Language 861 (5th. ed. 2012).  The product—SecurAcath—is distinct from the marks used 
to  identify  that  product.    Interpreting  §  19(a)(ii)  to  prohibit  Aquilant  from  selling 
SecurAcath would be inconsistent with the plain-language definition of trademark.  And 
because contracts should be examined as a whole, Burke, 

, § 19(a)(ii) 

must be considered in the context of § 10, the provision governing Aquilant’s use of 
InterRad’s  trademarks.    Section  10  allowed  Aquilant  to  “use  the  Trademarks  in  the 
Territory solely in connection with the sale of the Products.”  ECF No. 28 § 10(a).  By 
allowing Aquilant to use the marks “in connection with the sale of the Products,” the 
Agreement does not seem to contemplate the sale of SecurAcath as a use of the marks.  

And upon termination, Aquilant “shall cease from use of the Trademarks and shall destroy 
and/or return . . . all documents, instructions, stationery, advertisements, display items, 
pamphlets, sales literature, signs and the like bearing any of the Trademarks.”  Id. § 10(b).  
The parties could have, but did not, include SecurAcath in that list.  Because § 10(b) does 
not require Aquilant to return SecurAcath or cease sales of product bearing InterRad’s 

marks, interpreting § 19(a)(ii) to include such a requirement would be inconsistent with the 
text of § 10.                                                             
InterRad also turns to trademark law, relying on the proposition that when a license 
is silent about liquidating inventory, the licensee has no right to sell its remaining inventory 
after the license is terminated.  Ryan v. Volpone Stamp Co., 

 

(S.D.N.Y. 2000) (“[I]f a licensee could sell inventory manufactured during the term of the 
license over an indefinite period after its termination or expiration, the expiration date 
would have little force or meaning.”); 4 J. Thomas McCarthy, McCarthy on Trademarks 
and Unfair Competition § 25:31 (5th ed. Dec. 2023 Update) (same); Bill Blass, Ltd. v. SAZ 
Corp., 

 (3d Cir. 1984) (“The far more reasonable construction is that the 
licensee under the Men’s License undertook the risk that if it kept its inventory at too high 
a level the inventory might not be sold by the expiration date of the license.”).   

But  those  cases  involve  a  claim  for  trademark  infringement  under  a  license 
agreement.  For example, in Bill Blass, the plaintiff granted the defendant an exclusive 
right to use the “Bill Blass name and marks in connection with the manufacture and sale 
of menswear.”  Bill Blass, 

.  As a licensee, the defendant’s rights to 
manufacture and sell products bearing plaintiff’s marks depended upon the terms of the 

contract.  

.  Because the license was silent on liquidation of existing inventory, 
the court concluded the defendant’s license ended, and therefore the sale of any clothing 
bearing plaintiff’s marks was trademark infringement.  

  By contrast, InterRad brings a 
breach-of-contract claim.  To prevail, InterRad must identify the contractual provision that 
Aquilant breached (and is continuing to breach) by selling its remaining inventory of 

SecurAcath.  Cf. Knowles v. TD Ameritrade Holding Corp., 

 (8th Cir. 
2021)  (affirming  dismissal  when  plaintiff  failed  to  identify  the  contractual  provision 
purportedly breached).  Moreover, although a license agreement may be incorporated into 
a  distribution  agreement—as  is  the  case  here—the  concepts  are  distinct.    See,  e.g., 
Corporate Counsel’s Guide to International Distribution & Licensing § 1:1 (July 2022 

Update)  (“The distribution agreement should  establish  the  parameters  of  the  parties’ 
relationship and obligations to one another . . . .  The license agreement will need to grant 
to the distributor a license to use the various intellectual properties needed to market the 
products.”).  InterRad’s license-agreement cases involving trademark-infringement claims 
are not persuasive here.                                                  
“The party requesting injunctive relief bears the ‘complete burden’ of proving that 

an injunction should be granted.”  Ness v. City of Bloomington, 

, 722 
(D. Minn. 2020) (quoting Gelco Corp. v. Coniston Partners, 

 (8th Cir. 
1987)).  InterRad has failed to demonstrate that the Agreement prohibits Aquilant from 
selling SecurAcath.  At best, the Agreement is ambiguous.  But InterRad has not put 
forward any external evidence of the parties’ intent.  Staffing Specifix, Inc. v. TempWorks 

Mgmt. Servs., Inc., 

 (Minn. 2018) (“If the district court determines 
that a contract is ambiguous, it may admit parol, or extrinsic, evidence of the parties’ 
intent.”); Fredrich v. Indep. Sch. Dist. No. 720, 

 (Minn. Ct. App. 
1991).  Though the question is not free of doubt, the better answer is that InterRad has not 
met its burden at this preliminary stage to show it is likely to prevail on the merits of this 

breach-of-contract theory.6                                               
(b) InterRad also brings a breach-of-contract claim under § 19(a)(iii).  Am. Compl. 
¶ 80.  Section 19(a)(iii) states that “at the option of [InterRad], [Aquilant shall] cease 
contacting  current  or  prospective  customers  concerning  the  sale  of  the  Products  or 
[InterRad] or make appropriate introductions for any of [Aquilant’s] successors.”  ECF No. 

28 § 19(a)(iii).  Aquilant does not dispute that it has continued contacting customers to sell 
SecurAcath.    See  generally,  ECF  No.  31.    However,  it  contends  this  provision  is 

6    The only evidence in the record regarding Aquilant’s breach of § 19(a)(ii) is 
Aquilant’s sale of SecurAcath bearing InterRad’s marks.                   
disjunctive.  Id. at 33 (“[T]he Distribution Agreement requires that Aquilant either cease 
contacting customers or make appropriate introductions for the new distributor.”). 
Although “or” is normally interpreted as disjunctive to indicate an alternative, 

Quality Pork Processors, Inc. v. Am. Home Assur. Co., No. A10-1443, 

, 
at *2 (Minn. Ct. App. Apr. 12, 2011), it is often read as conjunctive depending on the 
context, Broadway Child Care Ctr., Inc. v. Minn. Dep’t of Hum. Servs., 

, 
634 (Minn. Ct. App. 2021); see also Smith v. United Television, Inc. Special Severance 
Plan, 

 (8th Cir. 2007) (“[C]ourts have recognized the principle 

of contract interpretation that the terms ‘and’ and ‘or’ may be interchanged, in context, to 
carry out the parties’ intent and the agreement’s purpose.”).  Here, it is reasonable to read 
Aquilant’s § 19(a)(iii) obligations as alternatives.  Section 19(a)(iii) starts with the phrase 
“at the option of InterRad.”  ECF No. 28 § 19(a)(iii).  Because option means “something 
available as a choice,” The American Heritage Dictionary of the English Language 589 

(5th ed. 2012), it makes sense to read this introductory phrase as giving InterRad the option 
to select between two alternative obligations.  And Aquilant could not simultaneously cease 
contacting its SecurAcath customers and make appropriate introductions for Vygon.  This 
incompatibility supports the conclusion that InterRad’s choice is disjunctive.  If Aquilant 
is correct, then InterRad has failed to elect which of the two obligations Aquilant is required 

to perform.  See ECF No. 30 at 8 ¶¶ 5–6 (requesting an injunction to enforce both 
obligations); Restatement (First) of Contracts § 325 (1932).  Without any argument from 
InterRad directed specifically at this issue, see generally ECF No. 43, it has failed to show 
it is likely to prevail on a breach-of-contract claim under § 19(a)(iii).  
(c) InterRad also brings a breach-of-contract claim based on Aquilant’s failure to 
provide a customer list.  Am. Compl. ¶ 80.  There is no dispute that § 19(a)(iv) requires 
Aquilant to “provide a current customer list including contact information,” ECF No. 28 § 

19(a), and Aquilant concedes it has not provided a customer list to InterRad, ECF No 31 at 
22.    But  Aquilant  contends  that  it  “may  not  provide  InterRad  with  Aquilant’s  UK 
customers’ personal information . . . under the UK’s data privacy legislation.”  Id. at 33.  
Because Aquilant raises this issue in its section on the merits, ECF No. 31 at 24–33, it 
seems to be raising an impossibility or impracticability affirmative defense. 

“Minnesota law recognizes the defense of impossibility, or impracticability, which 
can excuse performance under the terms of a contract.”  Aspenwood Condo. of Duluth, Inc. 
v. PMA Cos., No. A21-0719, 

, at *2 (Minn. Ct. App. Feb. 14, 2022).  
Minnesota courts explain the defenses as follows:                         
     [D]ue to the existence of a fact or circumstance of which the   
     promisor at the time of the making of the contract neither knew 
     nor had reason to know, performance becomes impossible, or      
     becomes impracticable in the sense that performance would       
     cast  upon  the  promisor  an  excessive  or  unreasonably      
     burdensome hardship, loss, expense, or injury.                  

 (quoting Powers v. Siats, 

 (Minn. 1955)).  A party’s performance 
under a contract may be made impracticable by a conflicting domestic or foreign law.  
Hansmeier v. Seaver, 

, 724–25 (D. Minn. 2020) (applying Minnesota law); 
Microsoft Corp. v. Ion Techs. Corp., 

 (D. Minn. 2007); Vill. of 
Minneota v. Fairbanks, Morse & Co., 

 (Minn. 1948).  “The regulation 
or order must directly affect a party’s performance in such a way that it is impracticable 
for him both to comply with the regulation or order and to perform.”  Restatement (Second) 
of Contracts § 264(b) (1981).                                             
When a defendant raises an affirmative defense in opposition to a preliminary 

injunction, the defendant bears the burden to show its likelihood of success because “the 
burdens  at  the  preliminary  injunction  stage  track  the  burdens  at  trial.”    Gonzales  v. 
O Centro Espirita Beneficente Uniao do Vegetal, 

 (2006).  David Boland, 
the Director of Aquilant, states in his declaration: “It is my understanding that, under the 
UK GDPR, Aquilant cannot send personal information, including names and business 

contact information, of individuals in the UK to someone in the United States without 
specific requirements being met.”  ECF No. 36 ¶ 21.  This seems correct for individuals.  
See,    Data    Protection  Act    2018,    c.    12,    §     73         
https://www.legislation.gov.uk/ukpga/2018/12/section/73.    However,  entities,  not 
individuals, purchase SecurAcath from Aquilant.  See, e.g., ECF No. 27 ¶ 35.  And the 

United Kingdom’s Data Protection Act does not seem to protect the names, addresses, or 
contact  information  for  entities.    See  Data  Protection  Act  2018,  c.  12,  §  3, 
https://www.legislation.gov.uk/ukpga/2018/12/section/3.7    Because  Aquilant  has  not 
shown it is likely to prevail on its impracticability defense, InterRad will likely prevail on 
its customer-list based breach-of-contract claim under § 19(a)(iv).       



7    To the extent Aquilant is prohibited from providing the contact information of 
individuals working for its customers, Aquilant has not explained why it is not “still 
practicable for [Aquilant] to render performance that is substantial.”  Restatement (Second) 
of Contracts § 270 (1981) (discussing partial impracticability).          
(d) Finally, InterRad brings a breach-of-contract claim based on Aquilant’s failure 
to return confidential information under § 19(a)(i).  Am. Compl. ¶ 80.  Section 19(a)(i) 
states that Aquilant “shall return to [InterRad] . . . all Confidential Information and all 

materials given to [Aquilant] by or on behalf of [InterRad] and all samples, drawings, 
models,  designs  and  other  information.”    ECF  No.  28  §  19(a)(i).    In  Goldberger’s 
declaration, he states that “Aquilant has not returned to InterRad all samples, drawings, 
models, designs and other information which Aquilant received from InterRad or created 
for InterRad or its customers.”  ECF No. 27 ¶ 33.  Aquilant does not seem to dispute this.  

See generally ECF No. 31.  Therefore, InterRad is likely to prevail on its breach-of-contract 
claim under § 19(a)(i).                                                   
                           B                                         
“Irreparable harm occurs when a party has no adequate remedy at law, typically 
because its injuries cannot be fully compensated through an award of damages.”  Gen. 

Motors Corp. v. Harry Brown’s, LLC 

 (8th Cir. 2009).  The harm must 
be “likely in the absence of an injunction,” Winter, 

, “great[,] and of such 
imminence that there is a clear and present need for equitable relief,” Iowa Utils. Bd. v. 
FCC, 

, 425 (8th Cir. 1996).  A plaintiff must show more than a future risk of 
irreparable harm; “[t]here must be a clear showing of immediate irreparable injury.”  

Berkley  Risk  Adm’rs  Co.,  LLC  v.  Accident  Fund  Holdings,  Inc.,  No.  16-cv-2671 
(DSD/KMM), 

, at *4 (D. Minn. Aug. 24, 2016) (citation and internal 
quotation marks omitted).  “Failure to show irreparable harm is an independently sufficient 
ground upon which to deny a preliminary injunction.”  Watkins Inc. v. Lewis, 

 (8th Cir. 2003).                                                      
(1) InterRad begins by arguing that it “will suffer irreparable harm if Aquilant is 

allowed to continue its campaign to destroy the market for InterRad’s products.”  ECF 
No. 25 at 28.  Normally, “lost profits and lost business can be readily calculated and 
redressed through monetary relief.”  Cenveo Corp. v. S. Graphic Sys., Inc., No. 08-cv-5521 
(JRT/AJB), 

, at *3 (D. Minn. Jan. 22, 2009).  However, “[l]ost profits 
that are difficult to quantify may constitute irreparable harm.”  Bison Advisors LLC v. 

Kessler, No. 14-cv-3121 (DSD/SER), 

, at *4 (D. Minn. Oct. 30, 2014).  
“The moving party bears the burden of showing lost profits would be difficult to quantify 
such that money damages would be difficult to ascertain.”  Katch, LLC v. Sweetser, 

 (D. Minn. 2015).  Even if the amount of financial harm is readily 
ascertainable, a preliminary injunction may be granted “when the potential economic loss 

is so great as to threaten the existence of the moving party’s business.”  11A Charles Alan 
Wright & Arthur R. Miller, Federal Practice & Procedure: Civil § 2948.1 (3d ed. Apr. 
2023 Update).                                                             
InterRad  claims  “the  harm  to  InterRad’s  viability  and  business  would  be  as 
immeasurable as it would be irreparable,” ECF No. 25 at 29, but the record evidence does 

not substantiate this assertion.  The NHS Supply Chain discontinuing access to SecurAcath 
“has been a significant detriment to InterRad,” ECF No. 27 ¶¶ 36, 38, Vygon is not “seeing 
the expected volume of orders on a direct basis,” ECF No. 28-14 at 2, and “Aquilant’s 
ongoing conduct” is causing “issues with InterRad’s suppliers, InterRad’s new distributor, 
and with customers,” ECF No. 27 ¶ 34.  Neither this evidence nor other record evidence 
demonstrates that InterRad and Vygon’s lost business is uniquely difficult to quantify.  See, 
e.g., 28-15 at 2 (an email from InterRad’s CEO stating: “Once this matter is resolved, we 

will mutually determine and amend the forecast to subtract sales directly lost due to the 
disruption from HC21/Aquilant.”).  This evidence does not demonstrate that Aquilant’s 
continued sales of SecurAcath pose an existential threat to InterRad’s business.   
InterRad relies on Bulova Corp. v. Bulova Do Brasil Com. Rep. Imp. & Exp. Ltda., 
for the proposition that threats to destroy the market can constitute irreparable harm.  

 (S.D. Fla. 2001).  But in Bulova Corp., the defendant “threatened to 
flood the Brazilian market with Bulova watches at very low prices to destroy the value of 
the Bulova brand.”  

.  By contrast, Aquilant attempted to bulk sell its inventory 
“at a discount,” but “above Aquilant’s total cost for the inventory to be sold.”  ECF No. 38 
¶ 11.  And despite an initial attempt to sell SecurAcath in bulk, it now seems to be selling 

SecurAcath “at a discount . . . just as and when the product is required.”  ECF No. 28-14 
at 4.  So not only has InterRad failed to demonstrate that Aquilant is likely to flood the 
market with SecurAcath, but Aquilant’s discounted sales do not seem comparable to the 
sale of Bulova watches at such low prices as to destroy the brand.  In other words, although 
the destruction of InterRad’s United Kingdom market could be irreparable harm, InterRad 

has not shown that harm is likely absent an injunction.                   
(2) InterRad next contends it will suffer irreparable harm to its reputation and the 
goodwill of its products.  ECF No. 25 at 30.  The Eighth Circuit has long recognized that 
“potential loss of consumer goodwill qualifies as irreparable harm.”  Iowa Utils. Bd., 109 
F.3d at 426; Med. Shoppe Int’l, Inc. v. S.B.S. Pill Dr., Inc., 

 (8th Cir. 
2003) (“Harm to reputation and goodwill is difficult, if not impossible, to quantify in terms 
of dollars.”).  However, “courts ‘may choose to require more than a loss of goodwill to 

demonstrate irreparable harm,’ and, with respect to the loss of goodwill itself, may also 
determine  ‘whether  an  alleged  harm  requires  more  substantial  proof.’”    Mainstream 
Fashions Franchising, Inc. v. All These Things, LLC, 

, 1202 (D. Minn. 
2020) (quoting Rogers Grp., Inc. v. City of Fayetteville, 

 (8th Cir. 2010)).  
And there are times where harm to reputation and goodwill can be remedied by money 

damages.  See Novus Franchising, Inc. v. Dawson, 

 (8th Cir. 2013). 
InterRad’s loss of control over its marks could be irreparable harm; lost control often 
poses a substantial threat of injury to the trademark owner’s reputation and goodwill built 
on the brand.  Buffalo Wild Wings Int’l, Inc. v. Grand Canyon Equity Partners, LLC, 

, 845–46 (D. Minn. 2011).  For example, courts have found that a former 

franchisee’s sale of unapproved goods under the franchisor’s trademark, Tim Hortons USA, 
Inc. v. Tims Milner LLC, No. 18-CV-24152, 

, at *5 (S.D. Fla. June 17, 
2019), and a former distributor’s sale of outdated military equipment, O.D.F. Optronics 
Ltd. v. Remington Arms Co., No. 08 CIV. 4746 (DLC), 

, at *8 (S.D.N.Y. 
Sept.  26,  2008),  would  likely  result  in  harm  to  intangible  assets  that  could  not  be 

compensated with monetary damages.  But InterRad does not claim (or demonstrate) that 
Aquilant is selling expired product, outdated product, or altered product.  Nor has InterRad 
identified any specific conduct by Aquilant that would tarnish the SecurAcath brand other 
than Aquilant’s continued sale of its inventory.                          
Instead, InterRad relies on evidence of confusion in the marketplace.  See ECF 
No. 27 ¶¶ 39–41; ECF No. 28-11 (email from the Wales branch of the National Health 
Service);  ECF  No.  28-12  (email  chain  from  the  Clatterbridge  Cancer  Centre  NHS 

Foundation Trust).  Although “a finding that likelihood of confusion exists results in a 
presumption that a threat of irreparable harm exists” in a trademark case, Warner Bros. 
Ent. v. X One X Prods., 

 (8th Cir. 2016), this is a breach-of-contract case 
to which that presumption does not apply.  Without that presumption, confusion is relevant 
in conjunction with a loss of control.  Buffalo Wild Wings, 829 F. Supp. 2d at 845–46.  But 

as was previously discussed, InterRad has not adequately connected its loss of control here 
with likely harm to its reputation or goodwill.  And InterRad otherwise fails to explain how 
confusion in the marketplace—as to the authorized distributor of SecurAcath—will likely 
damage its reputation or goodwill absent an injunction.  The better answer is that InterRad 
must demonstrate likely harm to its intangible assets by more substantial proof.  See Gen. 

Motors Corp., 

.                                            
(3) InterRad also claims that its relationships with its suppliers and subsequent 
distributor (Vygon) will be irreparably harmed absent an injunction.  ECF No. 25 at 32–
34.    Courts  have  found  irreparable  harm  when  an  obligor’s  refusal  to  abide  by  its 
contractual obligations will impair the obligee’s relationships.  Perdue Premium Meat Co. 

v. Mo. Prime Beef Packers, LLC, No. 6:22-CV-03009-MDH, 

, at *4 
(W.D. Mo. Jan. 20, 2022) (finding that a third party’s refusal to process grass-fed cattle 
would result in a ranch being unable to fulfill its obligation to provide finished meat 
products to customers); Borgwarner PDS (Anderson), L.L.C. v. Indus. Molding Corp., No. 
20-10607, 

, at *1, *6 (E.D. Mich. Mar. 11, 2020) (finding that without 
a continued supply of parts, plaintiff’s production lines would soon grind to a halt, leaving 
plaintiff unable to supply automotive products to a car manufacturer); Rex Med. L.P. v. 

Angiotech Pharms. (US), Inc., 

 (S.D.N.Y. 2010) (finding that 
plaintiff would suffer irreparable harm if the sole distributor stopped selling plaintiff’s 
medical device).                                                          
There is some evidence in the record about InterRad’s relationship with suppliers.  
“InterRad has long term contracts with two manufacturers and material suppliers.”  ECF 

No. 27 ¶ 6.  Aquilant’s cancellation of orders and competition with Vygon “has caused 
InterRad to miss its minimum purchase obligations with certain suppliers.”  Id. ¶ 7.  
InterRad’s relationship with its suppliers is particularly important because of the limited 
number of suppliers capable of serving InterRad’s needs.  Id. ¶ 8.  And “Aquilant’s ongoing 
conduct has caused and is continuing to cause issues with InterRad’s suppliers.”  Id. ¶ 34. 

The types of irreparable harm found in Perdue, Borgwarner, and Rex Medical are 
not readily apparent here.  Because customers are continuing to receive SecurAcath, the 
risk of permanent market loss as customers turn to substitute products is not presented here.  
And InterRad has not shown its suppliers’ production lines will soon grind to a halt or that 
it will imminently be unable to satisfy its contractual obligations absent an injunction.  

Although InterRad missed certain minimum-purchase obligations in 2023, see ECF No. 27 
¶ 7, there is insufficient evidence in the record to conclude it will likely be forced to breach 
those minimum-purchase obligations with suppliers again absent an injunction.  Moreover, 
the causal chain here is more attenuated than in the typical supply-chain case.  A distributor 
is not refusing to distribute product, nor is a supplier refusing to supply it.  Instead, InterRad 
claims Aquilant’s sales are driving down Vygon’s sales, reducing InterRad’s sales to 
Vygon and making InterRad’s sales projections less certain.  Without more substantial 

proof, InterRad has not made “a clear showing of immediate irreparable injury.”  Berkley 
Risk Adm’rs, 

, at *4 (citation and internal quotation marks omitted).  
Rather, its chief complaint appears to be lost business compensable with money damages.8  
                           C                                         
The balance-of-harms factor involves “assess[ing] the harm the movant would 

suffer absent an injunction,” as well as the harm the other parties “would experience if the 
injunction issued.”  Katch, 

.  This factor doesn’t change anything.  
Aquilant’s  continued  sale  of  SecurAcath  will  harm  InterRad’s  business,  perhaps 
substantially so.  But an injunction would likely lead to a total loss of Aquilant’s remaining 
inventory, in the amount of “approximately $2.6 million.”  ECF No. 36 ¶ 20.  In other 

words, Aquilant would be substantially harmed by an injunction, and InterRad will be 
substantially harmed without an injunction.  Aquilant could be compensated by a bond, 
while InterRad can be compensated with monetary damages.                  
                           D                                         
The public interest favors enforcing contracts.  Menzies Aviation (USA), Inc. v. 

Wilcox, 

 (D. Minn. 2013).  And here Aquilant has failed to abide 


8    To be clear, any delay in bringing its motion for a preliminary injunction has not 
been weighed against InterRad.  See, e.g., Safety-Kleen Sys., Inc. v. Hennkens, 

 (8th Cir. 2002).                                                 
by some of its contractual obligations.  But the most consequential injunction InterRad 
seeks is to prohibit Aquilant from selling its remaining inventory of SecurAcath.  And it 
has not demonstrated that Aquilant is obligated to cease selling SecurAcath under the 

Agreement.  The parties’ remaining public-interest arguments are not persuasive in a way 
that might change the outcome.                                            
                           *                                         
InterRad’s primary objective in seeking a preliminary injunction was to prevent 
Aquilant “from continuing to sell InterRad products while this matter is resolved on the 

merits.”  ECF No. 25 at 36.  As analyzed above, InterRad has not shown that it is likely to 
prevail on the merits of its breach-of-contract claim, nor has it shown irreparable harm 
specific to this issue.  Primarily for these reasons, InterRad’s motion will be denied.  
Though InterRad has shown a likelihood of success as to its breach-of-contract claim 
seeking a customer list, it did not seek this relief in its proposed order.  See ECF No. 30 at 

7–8.    Regardless,  InterRad  did  not  show  a  likelihood  of  irreparable  harm  flowing 
specifically from this breach or arising from Aquilant’s failure to return confidential 
information under § 19(a)(i).  For these reasons, it would not be appropriate to enter a 
preliminary injunction directed at these particular issues.               

Based on the foregoing, and on all the files, records, and proceedings herein, IT IS 
ORDERED THAT Plaintiff InterRad Medical Inc.’s Motion for a Preliminary Injunction 

[ECF No. 23] is DENIED.                                                   
       LET JUDGMENT BE ENTERED ACCORDINGLY.                          

Dated: March 4, 2024               s/ Eric C. Tostrud                     
                              Eric C. Tostrud                        
                              United States District Court