Guidance Endodontics, LLC v. Dentsply International, Inc. (633 F. Supp. 2d 1257, 2008)

MEMORANDUM OPINION AND ORDER

JAMES 0. BROWNING, District Judge.

THIS MATTER comes before the Court on the Plaintiffs Application for Temporary Restraining Order, filed November 21, 2008 (Doc. 2)(“TRO Application”). The Court held evidentiary hearings on November 25 and 26, and on December 1, 5 and 8, 2008. The primary issue is whether the Court should enter a temporary restraining order (“TRO”) requiring Defendants Dentsply International, Inc. and Tulsa Dental Products, LLC, to immediately commence manufacture, and thereafter ship without delay, two outstanding purchase orders that the Defendants received. Because Plaintiff Guidance Endodontics, LLC has carried its burden with respect to one aspect of the requested TRO, which the Court concludes is not a disfavored form of relief, the Court will grant the TRO Application in part. Because, however, part of the requested relief is mandatory and alters the status quo, and because Guidance has not carried its burden on this disfavored relief, the Court will also deny the TRO Application in part.

FACTUAL BACKGROUND

This case concerns an action that Guidance has brought against the Defendants for breach of contract and unfair trade practices. Guidance, like the Defendants, sells endodontic equipment. Following a lawsuit and settlement, however, the Defendants became the exclusive manufacturer of Guidance products, and Guidance also received access to certain endodontic supplies it had never before been able to sell. This arrangement worked well for a short time, but soon ran into trouble. The Defendants ceased providing certain supplies to Guidance, asserting that Guidance had been informing potential and existing customers that the Defendants were manufacturing Guidance’s product, in breach of the confidentiality provisions in their contract. Guidance denies any wrongdoing, and asserts that the Defendants are the ones in breach of the contract because of their failure to provide supplies and because of what Guidance alleges are unreasonable and unprecedented demands for engineering drawings for the development of a new product. Guidance believes that the Defendants, whose endodontic supplies empire is vastly larger than Guidance’s slim slice of the market, are attempting to drive Guidance out of business. Guidance, fearing that it is on the verge of financial ruin, filed this lawsuit and seeks a TRO to prevent the Defendants from continuing to breach their agreement with Guidance.

1. Guidance, Dentsply, and the Market for Endodontic Instruments.

Endodonists specialize in root canal therapy and root canal surgery, and use their special training and experience to treat difficult cases that general dentists refer to them. See Verified Complaint and Demand for Jury Trial ¶ 9, at 3, filed November 21, 2008 (Doc. l)(“Complaint”). This specialized practice requires specialized tools, including three basic tools: (i) obturators; (ii) files, and (iii) ovens. See id. During a root canal, after the nerve is removed from the tooth, files are used to shape the tooth canal. The obturator is used to fill the tooth canal, and the oven heats the obturator to prepare for this operation. See id. ¶ 109, at 22. All three instruments thus work together and are key to any endodontist’s practice.

Most dentists maintain a limited inventory of endodontic instruments. They expect their endodontic supplier to ship promptly. See Declaration of Charles J. Goodis in Support of Plaintiffs Application for Temporary Restraining Order ¶ 34, at 8, filed November 21, 2008 (Doc. 5)(“Goo-dis Decl.”). Dr. Charles J. Goodis, Guidance’s founder and chief executive officer, estimates that approximately 50,000 dentists use endodontic products in their practices. See id. ¶ 18, at 4. Dr. Goodis estimates that 5,000 of these users are large-volume users, such as HMOs or corporate practices with multiple offices. See id. at 4-5. The market for obturators alone is worth approximately fifty million dollars. The total domestic endodontics market is approximately $300 million per year. See id. ¶ 15, at 4.

Guidance is a company that Dr. Goodis founded in September 2004. See id. ¶ 4, at 2. Dr. Goodis invested seven million dollars of his money in Guidance. See id. ¶ 5, at 5. Guidance currently has three full-time employees in addition to Dr. Goodis. See id. Guidance currently has about 5,400 customers. See id. ¶ 15, at 4. Using his training and experience as an endodontist and as a mechanical engineer, Dr. Goodis developed several innovative endodontic products for Guidance, including: (i) the V-Taper NiTi Rotary File (“V-Taper”); (ii) the EndoTaper 06 NiTi Rotary Files (“EndoTaper”); (iii) the OneFill Obturation System (“OneFill Obturator”); and (iv) the Guidance Obturator Oven. See Goodis Decl. ¶¶ 5-7, at 2; Complaint ¶¶ 10, 16-18, at 3-4. Most recently, Dr. Goodis has begun developing the V2 04 Taper File (“V2”). See id. ¶ 8, at 2.

Dentsply is a public company that has been in existence for over one-hundred years and has thousands of employees. It supplies approximately eighty percent of the endodontic products sold annually in the United States and Canada, and holds itself out as the largest manufacturer of products for the dental market, with annual sales over $2.3 billion. See id. ¶ 13, at 4.

2. Dentsply Becomes Guidance’s Manufacturer.

Guidance’s initial manufacturer was a French company known as Micro-Mega. See Complaint ¶ 12, at 4. In July 2007, Dentsply initiated an investigation against both Guidance and Micro-Mega before the United States International Trade Commission (the “ITC case”). Dentsply dropped the ITC case in February 25, 2008, apparently after Micro-Mega and Dentsply reached an agreement. See id. ¶ 38, at 8. On January 24, 2008, Dentsply commenced a patent infringement lawsuit against Guidance in the United States District Court for the Middle District of Pennsylvania. See id. ¶ 39, at 9. Guidance and Dentsply settled that case on July 29, 2008. See id. As consideration for the settlement, Guidance and Dentsply entered into the Manufacturing and Supply Agreement (“Supply Agreement”). See id. ¶ 41, at 9. Guidance has already spent more on legal fees defending itself in the ITC case and the patent case than it has made in net profit since opening its doors four years ago. See id. ¶ 120, at 24. In addition to being a competitor of Guidance, the Defendants are also Guidance’s sole and exclusive manufacturer under the Supply Agreement.

3. Guidance’s Purchase Orders.

After the parties executed the Supply-Agreement on July 29, 2008, Guidance submitted its initial orders for endodontic products, which the Defendants promptly filled. Specifically, the Defendants filled a July 30, 2008 purchase order for OneFill Obturators, which Guidance received less than thirty days later on August 26, 2008. See Exhibit 4 to Complaint, Guidance En-dodontics Purchase Order (Doc. 1-3).

Likewise, on July 29, 2008, Guidance submitted a purchase order for EndoTa-pers, and Guidance received a partial shipment of EndoTapers on September 30, 2008 — thirty days later — and additional shipments fully satisfying the order on October 17 and October 21, 2008. This TRO involves two purchase orders made more than two months ago. See Complaint ¶ 135, at 26. Guidance gave the Defendants two subsequent orders: (i) a second purchase order sent to and received by the Defendants on July 30, 2008 for OneFill Obturators (order # DENT 100108 — the “Obturator Order”) for eventual shipment to Guidance during the fourth calendar quarter; and (ii) an order sent to and received by the Defendants on September 2, 2008 for V2 endodontic files (order # DENT 100308 — the “V2 Order”), also for shipment to Guidance during the fourth quarter. See Complaint ¶¶ 58, 92, at 13,19.

One of the Defendants’ customer-service representatives subsequently confirmed to Guidance that the Obturator Order would be shipped on November 13, 2008. See id. ¶ 60, at 13. In two letters dated September 25, 2008, however, the Defendants stated that they did not intend to fill the Obturator Order. See id. ¶¶ 60-68, at 13-15. One letter stated that Guidance’s marketing was in violation of the Supply Agreement because, among other things, Guidance was disclosing that the Defendants made Guidance files and obturators, and that their products were the same. See Complaint ¶ 62, at 13-14.

On or about September 2, 2008, Guidance submitted “product specifications” for the V2, and a prototype acceptable to Guidance was developed at the plant. Id. ¶¶ 92, 102, at 19, 21. Subsequently, senior management advised Guidance that, to fill the V2 Order, Guidance must provide detailed “engineering drawings.” Because Guidance had not done so, the Defendants, in two separate communications, refused to acknowledged receipt of the V2 Order, and refused to manufacture or ship it to Guidance. See id. ¶¶ 91-98, at 19-21.

4. The Dispute Over the Development of the V2.

To develop the V2, which is a new product, Guidance provided product specifications to the Defendants’ employees at their Johnson City, Tennessee plant. In connection with the first two prototypes of the V2, Guidance submitted “product specifications” by communicating written, technical parameters for the products to the Defendants, and speaking with project managers at the plant to develop the prototypes. Complaint ¶ 102, at 21. The Defendants, in turn, made prototypes of the V2 for Guidance. The prototypes of endo-dontic instruments are usually produced through a combination of written product specifications that the instrument’s designer provided, and through collaborative discussions and electronic correspondence between the designer and manufacturer — in this case, between Guidance and the plant. See id. ¶ 106, at 22. In September 2008, Dr. Goodis froze the V2 design, but later decided to continue with more modifications. On September 24, 2008, William Newell, vice president and general manager of Tulsa Dental, on behalf of the Defendants, informed Guidance that detailed engineering drawings were needed before the Y2 would be ready for manufacturing. See id. ¶ 96, at 20.

Dr. Goodis testified that the Defendants never required him to submit any drawings during the development of the Endo-Taper, the first instrument on which Guidance and the Defendants had worked together. Instead, Dr. Goodis supplied specifications, and the process went through several rounds of prototypes, with each round producing hundreds of prototypes in several different sizes, often a thousand or more prototypes per round. See Transcript of TRO Hearing at 83:13-21 (taken November 26, 2008)(Doe. 26)(Goodis)(“II Tr.”). These prototypes were fully functional files that could be used. See id. at 84:17-85:8 (Kelly & Goo-dis). They were prototypes, because it was not certain whether a specific prototype design would be the final one. See id. at 85:9-13.

Newell explained that freezing a design meant that the frozen design would be the design used for manufacturing. See II Tr. at 160:5-24 (Gulley & Newell). Newell testified that Tulsa Dental would manufacture only products whose design was frozen, to ensure quality and that all details were considered. See id. at 160:21-161:5. The prototype phase was a stage along the road to freezing a design. Before the design would be frozen, detailed engineering drawings and tolerances were required. See id. at 161:10-162:6. Newell stated that manufacturing from a prototype was possible, but was against Tulsa Dental’s policies and quality control. See id. at 161:10-14.

Newell testified that he was aware of the e-mail exchange he had with Dr. Goo-dis, that Dr. Goodis promised to provide drawings, but that, to Newell’s knowledge, Dr. Goodis never provided them. See id. at 162:17-25. On cross-examination, New-ell testified that he was not aware whether it was Guidance or Dentsply that provided the mechanical drawings annexed to the Supply Agreement. See id. at 180:22-181:3 (Bisceglie & Newell). Newell testified that he had not checked to see if Tulsa Dental had sent Guidance prototypes of the V2 before he sent an e-mail requesting that Guidance supply detailed mechanical drawings. See id. at 183:3-184:19. New-ell was not aware whether Tulsa Dental would manufacture prototypes without detailed mechanical drawings. See id. at 185:1-9. While Newell testified that Guidance was the only wholesale customer from which he had requested drawings during his tenure with the Defendants, he also stated that Guidance was the only customer with which Tulsa Dental had worked with in developing new instruments. See id. at 187:5-22. Newell also admitted that he did not know whether Guidance had provided drawings before or whether Guidance would be able to provide drawings. See id. at 188:3-12. Newell testified that, based on information from Tulsa Dental employees, the V2 was not complete and ready for manufacture. See id. at 190:14-22.

5. Guidance’s Alleged Breach.

The Defendants decided to discontinue supplying Guidance with obturators based on what they considered objectionable statements made by Guidance’s sales representatives and in Guidance’s brochures and marketing materials. See Complaint ¶¶ 61-72, at 13-16. Guidance’s only sales representative, John Ferone, has denied making any of the objectionable statements that the Defendants alleged. See Declaration of John P. Ferone in Support of Application for Temporary Restraining Order, filed November 21, 2008 ¶¶ 2, 7-21, at 1-5 (executed November 20, 2008)(Doc. 6)(“Ferone Deck”). As soon as Guidance received the Defendants’ September 25, 2008 letter, Guidance took action to resolve the Defendants’ concern by removing the offensive language from its promotional material. Guidance ceased distributing the objectionable materials, removed them from its website, made revisions to both the website and brochures, and instructed its only sales representative to avoid making statements that could be construed as inconsistent with the Supply Agreement. See Complaint ¶ 79, at 17; Ferone Deck ¶¶ 21, 25-26, 29-30, 34-35, at 5-7. Guidance’s revised marketing materials have been on Guidance’s website for nearly a month, and the Defendants’ have expressed no objection to them in their current form. See Complaint ¶ 90, at 19.

In a letter dated October 1, 2008, Guidance informed the Defendants of its intention to cure. See id. ¶ 80, at 17. Notwithstanding Guidance’s efforts, the Defendants again by letter refused to “confirm or acknowledge receipt” of the Obturator Order “for the reasons already communicated.” Id. ¶ 83, at 18. On October 7, 2008, Guidance, through its patent attorneys, once again informed the Defendants of Guidance’s curative measures, including that Guidance would revise its promotional materials to accommodate the Defendants’ concerns. See id. ¶ 84, at 18. On October 14, 2008, the Defendants informed Guidance that its “conduct is such that there is no way to cure the impacts of it in the market” and that “the only appropriate action at this point in time is to discontinue supplying Guidance with the obturator product.” Id. ¶¶ 86-88, at 18-19.

Newell testified that the Defendants believed Guidance’s marketing tactics were in breach of the Supply Agreement. New-ell outlined two major concerns: (i) that Guidance was telling customers that Dentsply was manufacturing product for Guidance; and (ii) that Guidance was telling customers and clinicians that Guidance instruments were identical to Dentsply and Tulsa Dental instruments. See II Tr. at 166:1-22 (Gulley & Newell). Newell stated that he interpreted section 9.1 of the Supply Agreement, the confidentiality clause, to allow Guidance to disclose that it had a license for Dentsply patents, but that this provision did not apply to potential customers. See 168:3-15.

6. Consequences for Guidance.

Guidance’s customers are waiting for the launch of the V2 and shipment of OneFill Obturators. Guidance’s customers anticipate receiving their next shipment from Guidance in December 2008. See Complaint ¶ 113, at 23; Goodis Deck ¶¶ 32-34, at 8. If Guidance is unable to ship because of the Defendants’ refusal to manufacture, Guidance’s customers will run out of inventory. See Goodis Deck ¶ 34, at 8.

Guidance’s inventory of OneFill Obtura-tors will run out by December 1, 2008. See id. ¶ 32, at 8. Guidance believes the Supply Agreement prohibits it from using a manufacturer other than the Defendants and, in any event, the lead times to do so would make the option untenable given the harm that will occur absent shipment over the next few weeks. See id. ¶ 28, at 7.

If Guidance is unable to fill customers’ current outstanding orders during December, the customers will run out of product, and will have no choice but to switch to other suppliers, including to the Defendants. Given that the Defendants are the only other supplier of endodontic products in Guidance’s price and quality range, customers whose orders cannot be filled by Guidance will likely turn to the Defendants for the purchase of their obturators, files, and ovens. See id. ¶ 36, at 8.

Guidance believes that it risks losing customers, goodwill, and unique business opportunities. If Guidance is unable to meet its customers’ needs, it will lose their goodwill and trust, and they are likely to switch permanently to other suppliers because of the importance of dependability in the endodontic world. See id. ¶¶ 37-38, at 8-9. The next two years are an important time period for the endodontic instrument business generally. Certain of the Defendants’ key obturator patents will expire over the next several years. As a consequence, there will likely be additional entrants into the endodontic instrument marketplace, and Guidance will need a stable customer base to survive. See id. ¶ 40, at 9. Moreover, Guidance believes that, without more supplies, it will not only have to abandon plans to expand over the coming years, but will be forced out of business. See id. ¶ 42, at 9-10.

PROCEDURAL BACKGROUND

Guidance filed its Complaint on November 21, 2008, and filed its TRO Application the same day. Before filing, Guidance’s counsel contacted the office of Dentsply’s General Counsel in York, Pennsylvania, and informed the General Counsel’s assistant that Guidance was bringing a lawsuit and applying for a TRO. See TRO Application ¶ 13, at 4. At the time of filing, Dents-ply had not responded. Guidance anticipated — correctly—that the Defendants would oppose its application. Thomas P. Gulley appeared at the initial scheduled TRO hearing on behalf of the Defendants, and the Court conducted all evidentiary hearings with both parties represented.

Guidance requests, pursuant to rule 65 of the Federal Rules of Civil Procedure, that the Court enter a TRO “requiring Defendants ... to immediately commence manufacture, and thereafter ship without delay, two outstanding Guidance purchase orders that Defendants received more than two months ago, and to commence processing two additional purchase orders that Defendants will receive before the end of November.” TRO Application at 1. Guidance contends that its customers keep “only a 1-3 week reserve of endodontic products .... [and if] the customers run out of product, [they] will have no choice but to switch to other suppliers, including Defendants.” Id. ¶ 7, at 2. “Absent new product from Defendants, delivered in December,” Guidance maintains, it “will likely lose its customers, its reputation, its goodwill, and the unique opportunity it currently has to significantly grow its business.” Id. ¶ 8, at 2.

According to Guidance, if the Court orders the Defendants to commence manufacturing immediately, Guidance will be able to meet customer orders before their supplies are exhausted, thereby avoiding irreparable injury. See id. ¶ 10, at 3. Guidance states that it will soon move for a preliminary injunction, but “that the passage of even one week without a mandatory order directing Defendants to commence manufacturing will result in irreparable injury.” Id. ¶ 12, at 3. Guidance thus requests that the Court enter an order “requiring Defendants to immediately commence filling all outstanding Guidance orders that have been or will be placed, and to do so without unnecessary delays (including novel “engineering drawing” requirements).” Id. at 4. Guidance also requests that the Court not require security because the “Supply Agreement provides for compensation to the Defendants in return for manufacturing product.” Id. ¶ 14, at 4.

At the first hearing, Mr. Gulley argued that Guidance had failed to abide by the Supply Agreement’s mediation clause. See Transcript of TRO Hearing at 5:6-13 (taken November 25, 2008)(“Gulley”)(Doc. 25)(“I Tr.”). Mr. Gulley contended that Guidance “knew by late September that the [Defendants were not going to supply the products at issue” here, but “took no steps toward mediation.” Id. at 5:23-6:1. Mr. Gulley also maintained that Guidance was obligated to provide engineering drawings and specifications for the V2, but had failed to do so, and that Guidance was aware of this problem at least as early as September 24, 2008, two months before the filing of the Complaint and TRO Application. See I Tr. at 6:10-7:17 (Gulley). Mr. Gulley stated that safety concerns also motivated the Defendants’ actions. According to Mr. Gulley, without the engineering drawings, a safe V2 cannot be produced. See id. at 11:3-12:24 (Gulley & Court). Mr. Gulley also stated that the Defendants took the position that Guidance was in breach of the Supply Agreement because Guidance was informing people that Guidance was getting obturators from the Defendants. See id. at 13:16-16:22.

John J. Kelly, Guidance’s attorney, argued that the Court could issue a TRO, and later an injunction, despite the mediation clause because the injunction would make mediation a viable remedy. Mr. Kelly also argued that the mediation clause was not binding and that Guidance was willing to mediate, but needed a TRO and an injunction to be able to proceed with mediation without going out of business. See I Tr. at 43:21^17:25.

The Court heard testimony from Dr. Goodis on the first and second day of the evidentiary hearing. The Court also heard testimony from Newell on the second day of the hearing. At the end of the second day of hearings, the Court expressed its concerns about issuing a TRO without the parties making some good faith efforts to begin mediation. The Court heard continued testimony from Newell on December 1, 2008, the third day of the hearing. The Court then heard continued testimony from Dr. Goodis on December 5, 2008, the fourth day of the hearing. At the end of the fourth day, the Court heard testimony from Gary Higley, a Dentsply sales employee, and Marcie Littleton, an employee of the Defendants who worked in their Johnson City plant on the V2 process. On the fifth and final day of the evidentiary hearing, December 8, 2008, the Court heard testimony from Dr. William T. Henson, an endodontist from Dallas, Texas, and a consultant with Dentsply. The Court then heard testimony from Nathan Roy, a Dentsply employee based in Brunswick, Canada. Finally, the Court heard rebuttal testimony from Sharon Bettes-Grove, Guidance’s operations manager. The Court heard additional argument from counsel and took the matter under advisement.

Over the course of the hearings, in addition to the exhibits submitted during the hearing, the parties have also filed several other documents with the Court. Guidance filed several brochures for its products. See Guidance Brochures, filed December 1, 2008 (Docs.12-14). Guidance also submitted a memorandum of law in support of its TRO Application, see Plaintiffs Memorandum in Support of Application for Temporary Restraining Order, filed November 21, 2008 (Doc. 4)(“Memo. in Support”), and another addressing the standards governing preliminary relief in the Tenth Circuit, see Plaintiffs Bench Memorandum Concerning Temporary Restraining Order and Preliminary Injunction Standards, filed December 5, 2008 (Doc. 21). Finally, the Defendants’ submitted their written opposition to the TRO. See Defendants’ Summary of Salient Points in Opposition to Issuance of a Temporary Restraining Order, filed December 5, 2008 (Doc. 22)(“TRO Opposition”).

LAW REGARDING PRELIMINARY RELIEF

The requirements for the issuance of a TRO are similar to those for the issuance of a preliminary injunction. See 13 J. Moore, Moore’s Federal Practice ¶ 65.36(1), at 65-83 (3d ed.2004). The primary difference between a TRO and a preliminary injunction is that a TRO may issue without notice to the opposing party and that a TRO is of limited duration:

(1) Issuing Without Notice. The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:

(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the mov-ant before the adverse party can be heard in opposition; and

(B) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.

(2) Contents; Expiration. Every temporary restraining order issued without notice must state the date and hour it was issued; describe the injury and state why it is irreparable; state why the order was issued without notice; and be promptly filed in the clerk’s office and entered in the record. The order expires at the time after entry — not to exceed 10 days — that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension. The reasons for an extension must be entered in the record.

Fed.R.Civ.P. 65(b)(bolded in original).

Injunctive relief is an “extraordinary remedy,” and the movant must demonstrate a “clear and unequivocal right” to have a request granted. Leviton Mfg. Co., Inc. v. Nicor, Inc., No. CIV 04-0424 JB/RHS, CIV 04-1295 JB/ACT, 2007 WL 505796 (D.N.M.)(Browning, J.)(citing Greater Yellowstone Coalition v. Flowers, 321 F.3d 1250, 1256 (10th Cir.2003)). The Supreme Court and the United States Court of Appeals for the Tenth Circuit have explained that “[t]he purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can beheld.” Univ. of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). See Keirnan v. Utah Transit Auth., 339 F.3d 1217, 1220 (10th Cir.2003)(“ Tn issuing a preliminary injunction, a court is primarily attempting to preserve the power to render a meaningful decision on the merits.’ ’’(quoting Tri-State Generation & Transmission Ass’n v. Shoshone River Power, Inc., 805 F.2d 351, 355 (10th Cir.1986)).

To establish its right to preliminary relief, a moving party must demonstrate: “(1) the movant will suffer irreparable harm unless the injunction issues; (2) there is a substantial likelihood the movant ultimately will prevail on the merits; (3) the threatened injury to the movant outweighs any harm the proposed injunction may cause the opposing party; and (4) the injunction would not be contrary to the public interest.” Wyandotte Nation v. Sebelius, 443 F.3d 1247, 1254-55 (10th Cir.2006) (quoting Kiowa Indian Tribe of Okla. v. Hoover, 150 F.3d 1163, -1171 (10th Cir.1998)). If the moving party demonstrates that the first, third, and fourth factors “tip strongly in his favor, the test is modified,” and the moving party “may meet the requirement for showing success on the merits by showing that questions going to the merits are so serious, substantial, difficult, and doubtful as to make the issue for litigation and deserving of more deliberate investigation.” Okla. ex rel. Okla. Tax Comm’n v. Int’l Registration Plan, Inc., 455 F.3d 1107, 1113 (10th Cir.2006)(quotation marks omitted).

There are, however,

three types of specifically disfavored preliminary injunctions [for which] a movant must “satisfy an even heavier burden of showing that the four [preliminary injunction] factors ... weigh heavily and compellingly in movant’s favor before such an injunction may be issued”: (1) preliminary injunctions that alter the status quo; (2) mandatory preliminary injunctions; and (3) preliminary injunctions that afford the movant all the relief that it could recover at the conclusion of a full trial on the merits.

O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir.2004) (en banc)(“O Centro Espirita”), aff'd 546 U.S. 418, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006). Courts in the Tenth Circuit “must recognize that any preliminary injunction fitting within one of the disfavored categories must be more closely scrutinized to assure that the exigencies of the ease support the granting of a remedy that is extraordinary even in the normal course.” Id. “[M]ovants seeking such an injunction are not entitled to rely on this Circuit’s modified-likelihood-of-suecess-onthe-merits standard. Instead, a party seeking such an injunction must make a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms.... ” Id. at 976.

1. Disfavored Injunctions.

Two categories of disfavored relief are relevant here: (i) injunctive relief that would alter the status quo; and (ii) mandatory injunctive relief.

a. Injunctions Altering the Status Quo.

Preliminary injunctions that alter the status quo between parties are disfavored and subject to a heightened standard of review. The “historic purpose” of a preliminary injunction is “the preservation of the status quo pending a trial on the merits.” O Centro Espirita, 389 F.3d at 977 (Murphy, J.). “[T]he status quo is the last uncontested status between the parties which preceded the controversy until the outcome of the final hearing.” Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 269 F.3d 1149, 1155 (10th Cir.2001)(internal quotation marks omitted). “In determining the status quo for preliminary injunctions, [a] court looks to the reality of the existing status and relationship between the parties and not solely to the parties’ legal rights.” Id. In Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., EchoStar had been activating Dominion satellite customers even when they did not meet the criteria— known as the QRS criteria — that would obligate Echo Star to perform the activation. The Tenth Circuit therefore held that

the last uncontested status of the parties was the four years in which EchoStar activated Dominion subscribers regardless of whether the subscriber had met the QRS criteria. Even if EchoStar had the legal right under the contract to refuse activating new, non-QRS Dominion subscribers, the reality was that EchoStar activated Dominion subscribers whether or not they qualified for QRS status.

Id. (emphasis in original). The Tenth Circuit has declined to adopt the standard that the status immediately preceding the application for a preliminary injunction is the status quo because such an approach

would imply that any party opposing a preliminary injunction could create a new status quo immediately preceding the litigation merely by changing its conduct toward the adverse party. To treat such a new status quo as the relationship which an injunction should not disturb would unilaterally empower the party opposing the injunction to impose a heightened burden on the party seeking the injunction.

Id.

b. Mandatory Injunctions.

“There is no doubt that determining whether an injunction is mandatory as opposed to prohibitory can be vexing.” O Centro Espirita, 389 F.3d at 1006. Despite overlap between the categories of what is mandatory and what disturbs the status quo, the Tenth Circuit has recognized the two forms of disfavored injunctions as being distinct. See id. (“[T]he distinction between mandatory and prohibitory injunctions, however, cannot be drawn simply by reference to whether or not the status quo is to be maintained or upset.”)(quoting Abdul Wali v. Coughlin, 754 F.2d 1015, 1025-26 (2d Cir.1985), overruled on other grounds by O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 n. 2, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987)). Mandatory injunctions are those injunctions that “affirmatively require the nonmovant to act in a particular way, and as a result they place the issuing court in a position where it may have to provide ongoing supervision to assure that the nonmovant is abiding by the injunction.” SCFC ILC, Inc. v. Visa USA Inc., 936 F.2d 1096, 1099 (10th Cir.1991). In SCFC ILC, Inc. v. Visa USA, Inc., the Tenth Circuit noted in a footnote that the injunction at issue was mandatory because “it required Visa to take the affirmative step of approving issuance of the new cards, even though in this particular case that would not have required a substantial amount of court involvement in assuring that Visa complied with its terms.” Id. n. 6.

In contrast, the Tenth Circuit held the injunction in Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., which required EchoStar to continue activating Dominion subscribers, was non-mandatory. The Tenth Circuit noted that “the injunction ... prohibits EchoStar from refusing to activate new Dominion customers on the same terms and conditions previously applicable. It does not compel EchoStar to do something it was not already doing during the last uncontested period preceding the injunction.” 269 F.3d at 1055.

The Tenth Circuit held the injunction in O Centro Espirita to be non-mandatory, despite the government’s protests that the injunction contained “36 separate provisions requiring specific affirmative action by the government to facilitate the UDV’s use of hoasca.” 389 F.3d at 1005 (internal quotation marks omitted). In finding the injunction prohibitory, the Tenth Circuit noted that “the additional provisions were added to the injunction by the district court in response to the government’s insistence that the UDV be subject to some form of governmental oversight in its importation and use of hoasca.” Id. (italics in original). The Tenth Circuit noted that the original injunction:

temporarily prohibits the government from treating the UDVs sacramental use of hoasca as unlawful under the CSA or the treaty. It also orders the government not to intercept or cause to be intercepted shipments of hoasca imported by the UDV for religious use, prosecute or threaten to prosecute the UDV, its members, or bona fide participants in UDV ceremonies for religious use of hoasca, or otherwise interfere with the religious use of hoasca by the UDV, its members, or bona fide participants in UDV ceremonies....

Id. (quotation omitted).

2. Irreparable Harm.

The Tenth Circuit has acknowledged several different economic losses under the irreparable harm standard. The Tenth Circuit has acknowledged that loss of customer goodwill is a factor that supports an irreparable harm determination. See Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1263 (10th Cir.2004). Many other cases have found that loss of goodwill is an irreparable harm. For example, in Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 22 F.3d 546 (4th Cir.1994), the United States Court of Appeals for the Fourth Circuit held that, “when the failure to grant preliminary injunction creates the possibility of permanent loss of customers to a competitor or the loss of goodwill, the irreparable injury prong is satisfied.” Id. at 552. Similarly, the United States Court of Appeals for the Sixth Circuit in Basicomputer Corp. v. Scott, 973 F.2d 507 (6th Cir.1992), held that “[t]he loss of customer goodwill often amounts to irreparable injury because the damages flowing from such losses are difficult to compute.” Id. at 511-12 (citations omitted). See Ferrero v. Associated Materials, Inc., 923 F.2d 1441, 1449 (11th Cir.1991).

In Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12 (1 st Cir.1996), the United States Court of Appeals for the First Circuit considered a case similar to the one before the Court. In Ross-Simons of Warwick, Inc. v. Baccarat, Inc., a manufacturer refused to supply goods to a vendor, even though customers had already ordered the goods from the vendor and were expecting them. The First Circuit held that “[t]he harm to [the vendor’s] general goodwill stemming from its inability to fill such orders ... would be incalculable, and, thus, irreparable.” Id. at 19 n. 7 (citing cases).

The Tenth Circuit has also acknowledged that the loss of an opportunity to distribute a unique product, diminished competitive position, and loss of customers all support an irreparable harm determination. See Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d at 1263. In a comparable case, CPM Indus., Inc. v. Fayda Chemicals & Minerals, Inc., No. 15996, 1997 WL 762650, 1997 Del. Ch. LEXIS 175 (Del. Ch.1997), the Delaware Chancery Court acknowledged that a company’s inability to supply a product, even if it were temporary, could result in a permanent competitive disadvantage. In CPM Indus., Inc. v. Fayda Chemicals & Minerals, Inc., the plaintiff sought a preliminary injunction against a competitor to ensure its continued supplies of Ti02 (Titanium Dioxide). The competitor had arranged to cut off the plaintiffs supply of Ti02, which was the plaintiffs sole product and source of income. The Delaware Chancery Court explained that the plaintiff was likely to suffer irreparable harm if the preliminary injunction was not issued, because the “[plaintiff] cannot compete effectively if [its] customers come to doubt [its] ability to assure a steady supply of high quality futile Ti02.” Id. at *6. Further, “even if [the plaintiff] could eventually obtain Ti02 of the appropriate quality from a new supplier, by the time [it] did so [it] would be at a severe competitive disadvantage vis-a-vis [the defendant] ... because [the plaintiffs] customers may well by then have turned to [the defendant].” Id.

Numerous cases have acknowledged that losing current and future customers is an irreparable harm. For example, in Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., the Fourth Circuit held that, “when the failure to grant preliminary injunction creates the possibility of permanent loss of customers to a competitor or the loss of goodwill, the irreparable injury prong is satisfied.” Id. at 552. Similarly, in Spiegel v. City of Houston, 636 F.2d 997 (5th Cir.1981), the United States Court of Appeals for the Fifth Circuit explained:

[Pjlaintiffs need to establish that at the time of the injunction it was under a substantial threat of harm which cannot be undone through monetary remedies. Such a threat is the possibility of customers being permanently discouraged from patronizing one’s business. The District Court found more potential injury to plaintiff-appellees than merely the downturn of business. It found that appellants’ actions tended to discourage patrons from patronizing appellees’ businesses.

Id. at 1001 (quotation and citation omitted).

The Tenth Circuit has acknowledged that irreparable harm exists where losses are difficult to calculate with certainty. See Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 356 F.3d at 1263. In General Leaseways, Inc. v. National Truck Leasing Ass’n, 744 F.2d 588 (7th Cir.1984), a suit by a trucking franchise to block an attempted expulsion by a franchisor, the United States Court of Appeals for the Seventh Circuit upheld a preliminary injunction against expulsion, holding that the franchisee would suffer irreparable harm because “the difficulties of proving lost profits make it chancy to rely on a damage award to provide full compensation even where as in this case a preliminary injunction is not necessary to keep the plaintiff afloat while the suit is proceeding toward final judgement.” Id. at 591. See McClendon v. City of Albuquerque, 272 F.Supp.2d 1250, 1259 (D.N.M.2003)(holding that irreparable harm is suffered “when the court would be unable to grant an effective monetary remedy after a full trial because such damages would be inadequate or difficult to ascertain”).

In a suit by a cable company that had installed cable delivery systems in several apartment complexes, which had them switched to another cable supplier, the Fourth Circuit held:

[T]he historical average of Adelphia’s revenue does not provide an adequate basis for measuring the potential loss of revenue because Adelphia only began providing a la carte service in the summer of 1993. The relative novelty of such service clearly makes any calculation of Adelphia’s damages “difficult to ascertain” and, therefore, supports a finding that Adelphia would suffer irreparable harm.

Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 22 F.3d at 552.

The Supreme Court has held that where a party “would suffer a substantial loss of business and perhaps even bankruptcy ... the latter type of injury sufficiently meets the standards for granting interim relief, for otherwise a favorable final judgment might well be useless.” Doran v. Salem Inn, Inc., 422 U.S. 922, 932, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975). See Commodity Futures Trading Comm’n v. British American Commodity Options Corp., 434 U.S. 1316, 1322, 98 S.Ct. 10, 54 L.Ed.2d 28 (1977)(upholding stay of regulation on the grounds that the regulation would cause irreparable harm because it would have “potentially fatal consequences for a number of the firms”).

RELEVANT DELAWARE LAW

Under Delaware law, the elements of a breach of contract claim are: (i) a contractual obligation; (ii) a breach of that obligation; and (iii) resulting damages. See VLIW Technology, LLC v. Hewlett-Packard, Co., 840 A.2d 606, 612 (2003); Interim Healthcare, Inc. v. Spherion Corp. 884 A.2d 513, 548 (Del.Super.2005). Delaware law recognizes an implied covenant of good faith and fair dealing in every contract. See Dunlap v. State Farm Fire and Cas. Co., 878 A.2d 434, 442 (Del.2005). As the Supreme Court of Delaware explained:

[T]he implied covenant requires a party in a contractual relationship to refrain from arbitrary or unreasonable conduct which has the effect of preventing the other party to the contract from receiving the fruits of the bargain.... [I]t requires that the [contracting parties] act in a way that honors the [parties’] reasonable expectations.

Id. (internal citations and quotations omitted). Moreover, the Supreme Court of Delaware has held that terminating a contract for pretextual reasons violates the covenant of good faith and fair dealing. See E.I. DuPont de Nemours and Co. v. Pressman, 679 A.2d 436, 444 (1996).

ANALYSIS

The TRO that Guidance requests covers different orders, and the circumstances of those orders are different and warrant different treatment. The Court will grant the TRO and order the Defendants to cease breaching the Supply Agreement with respect to the Obturator Order, but the Court will deny the TRO as to the V2 Order. The threshold issue is whether Guidance’s request is disfavored under Tenth Circuit case law. The Court concludes that the TRO with respect to the Obturator Order would not be disfavored, but the TRO with respect to the V2 Order would be disfavored. As to the first order, the Court finds that a TRO should be granted. The Court concludes that the evidence clearly and unequivocally demonstrates that Guidance will suffer irreparable harm without a TRO, that the balance of harms favors Guidance, and that a TRO would not offend public policy. Because these three elements have been shown, Guidance is entitled to the Tenth Circuit’s modified-success-on-the-merits standard for part of its TRO. Accordingly, Guidance has met its burden as to its first requested order. The second half of the requested TRO, however, is disfavored, so Guidance must show a substantial likelihood of success on the merits. Guidance is not able to make that showing, specifically as to the alleged breach underlying this particular order. Both sides of this dispute have meritorious arguments and the issues are complex, both legally and factually.

I. WHETHER THE REQUESTED TRO IS DISFAVORED.

As in any case seeking a TRO or preliminary injunctive relief, the threshold issue here is whether the relief that is sought falls within a disfavored category. Of the three classes of disfavored injunctions in the Tenth Circuit, two are relevant here: (i) status-quo altering injunctions and (ii) mandatory injunctions. The TRO that Guidance seeks with respect to the V2 Order would both change the status quo and would be a mandatory injunction. The TRO with respect to the Obturator Order, in contrast, would preserve the status quo and would be a prohibitory injunction. Accordingly, the Court will analyze Guidance’s request for a TRO regarding the V2 Order as a disfavored form of relief, but will consider the request for a TRO regarding the Obturator Order under the usual standard or the modified sue-cess-on-the-merits standard.

A. THE REQUESTED TRO IS DISFAVORED WITH RESPECT TO THE V2 ORDER.

Ordering the Defendants to begin production, and later shipment, of the V2 would upset the status quo. “[T]he status quo is the last uncontested status between the parties which preceded the controversy until the outcome of the final hearing.” Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 269 F.3d at 1155. “In determining the status quo for preliminary injunctions, [a] court looks to the reality of the existing status and relationship between the parties and not solely to the parties’ legal rights.” Id. The reality of the situation between the parties on the V2 is that it remains at a pre-production stage and that, at best for Guidance, there is a dispute whether manufacturing can immediately commence.

The evidence indicates that the V2 remains in a developmental phase. Unlike the OneFill Obturators, no V2 order has ever been shipped or filled. Guidance has received prototypes, but not finished models. While Dr. Goodis has testified that the prototypes are functional, that falls short of being finished and ready for mass production and use. The Defendants provided credible evidence that they do not consider the V2 ready to manufacture. The Defendants indicate that they require detailed mechanical drawings and that further work is necessary before the design can be frozen and the V2 can be manufactured in a manner consistent with the Defendants’ quality and safety policies.

Guidance challenges the Defendants’ position and contends that the Defendants’ demand for drawings is nothing more than a ruse invented for purposes of delay. The Court is not convinced that the evidence before it would allow it to ascribe such impure motives to the Defendants. Moreover, this dispute regarding whether the V2 is ready for production is part of the underlying series of disagreements that have given rise to the case. This dispute indicates that the Court should look further back in time to find “the last uncontested status between the parties.” Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 269 F.3d at 1155. Turning back the clock even further, however, only makes it more certain that the status quo between the parties is one in which the V2 is an instrument that the parties are jointly designing, but that it is not a product that can be immediately manufactured and placed on the market.

In addition to disturbing the status quo, a TRO aimed at the V2 Order would also be a mandatory injunction. The Tenth Circuit has recognized “that determining whether an injunction is mandatory as opposed to prohibitory can be vexing.” O Centro Espirita, 389 F.3d at 1006. Mandatory injunctions “affirmatively require the nonmovant to act in a particular way, and as a result they place the issuing court in a position where it may have to provide ongoing supervision to assure that the nonmovant is abiding by the injunction.” SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d at 1099. The degree and number of affirmative actions that would be required of the Defendants, and the concomitant possibility that the Court would need to engage in substantial oversight to ensure compliance with the TRO, lead the Court to conclude that the TRO would be mandatory with respect to the V2 Order.

The fundamental disagreement between the parties regarding the status of the V2 and the amount of additional work necessary to bring the V2 to the point where it can be manufactured poses a significant possibility of entangling the Court in a number of different disputes. The Court might well, should a TRO issue, be required to resolve what the final design of the V2 is, whether more work is needed, who should be responsible for different tasks, whether safety concerns have been met, how long production will take, and a host of other issues large and small. This situation is not one where the TRO would obligate a party to continue a series of discrete, simple tasks that the defendant has long performed. See Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 269 F.3d at 1155 (holding that injunction prohibiting EchoStar from refusing to activate new Dominion customers on the same terms and conditions as EchoStar had been using was not mandatory). Instead, Guidance is asking the Court to embark into what is new territory for the parties and is requesting that the Court lead the way. The number of different individual tasks that the Defendants are likely to have to perform to make the V2 ready to manufacture, and to then manufacture and to ship the V2 to Guidance, together with the degree of supervision that Court would need to exercise over this process given the differences between the parties regarding how far along the process is, show that a TRO for the V2 Order would be mandatory.

A TRO that applied to the V2 Order would thus be disfavored on two separate grounds. Because the TRO, in this respect, has landed in the disfavored category, that portion of the TRO “must be more closely scrutinized to assure that the exigencies of the case support” granting the TRO. O Centro Espirita, 389 F.3d at 975. Guidance will also be barred from the benefit of the Tenth Circuit’s modified-likelihood-of-success-on-the-merits standard. Instead, Guidance “must make a strong showing ... with regard to the likelihood of success on the merits.” Id. at 976.

B. THE REQUESTED TRO IS NOT DISFAVORED WITH RESPECT TO THE OBTURATOR ORDER.

The requested TRO presents a different story regarding the Obturator Order. Granting the TRO with respect to the Obturator Order would not upend the status quo the way granting it with respect to the V2 Order would. The Defendants have supplied Guidance with this product. No further design work must be finished; no new modifications are necessary. New-ell testified that the Defendants have obturators in stock. See III Tr. at 271:17-21 (Bisceglie & Newell). All that the Defendants must do is manufacture and ship an existing product, pursuant to the terms of the Supply Agreement, just as the Defendants have done so in the past. The TRO would prohibit them from breaching an existing contract and only require them to continue to perform their duties as they have done before. The situation is similar to that in Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., where EchoStar had long been activating Dominion’s subscribers and the injunction required that EchoStar not depart from that course, but continue activating subscribers. See 269 F.3d at 1155. Although the practice is not as longstanding here as it was in Dominion Video Satellite, Inc. v. EchoStar Satellite Coi’p., the Court does not consider the length of the prior relationship to be a material difference. What is important here is that the Defendants have been providing obturators and that the Defendants were doing so before the present disputes and subsequent litigation broke out.

Although the TRO escapes being disfavored as altering the status quo, it must also not be mandatory in nature. That point is more complicated, but ultimately the TRO with respect to the Obturator Order is also not mandatory. The Tenth Circuit has upheld both the grant and the denial of injunction in circumstances similar to this case. Compare SCFC ILC, Inc. v. Visa USA Inc., 936 F.2d at 1099 n. 9 (noting that the injunction at issue was mandatory because “it required Visa to take the affirmative step of approving issuance of the new cards”), with Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 269 F.3d at 1155 (holding that injunction was not mandatory because, although EchoStar had to activate new subscribers, it prohibited “EchoStar from refusing to activate new Dominion customers on the same terms and conditions previously applicable”). The lesson to be drawn from these opposing results is that a TRO or injunction that prohibits the breach of an existing contract — or stated differently, one that enforces a contract — is not automatically within or outside of the disfavored classification. That the Defendants would be required to perform some specific acts is thus not, as the Defendants suggest, dispositive of the issue. The Defendants rely in particular on Schrier v. University of Colorado, 427 F.3d 1253 (10th Cir.2005), for the proposition that requiring performance of a contract is mandatory in nature. The Tenth Circuit does not specifically discuss the issue of enforcing a contract in coming to the conclusion that the relief sought in Schrier v. University Of Colorado was mandatory, and in light of cases such as Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., the Court cannot reasonably conclude that the requested remedy resembling specific performance is enough, standing alone, to make it mandatory. The Court must instead undertake a more nuanced inquiry.

That the TRO would not alter the status quo supports a finding that the TRO is not mandatory. The issues of mandatory quality and of the affect on the status quo are distinct — the one feature of not altering the status quo alone is not sufficient to find that the TRO would be prohibitory rather than mandatory. The Tenth Circuit has expressly decided to retain the distinction between the two forms of disfavored injunction. See O Centro Espirita, 389 F.3d at 1006. It would thus be impermissible to equate the two forms of disfavored injunction, but the Court believes it is appropriate to consider the status quo issue as a factor in its analysis whether the TRO is mandatory.

The Defendants’ preexisting contractual duties to Guidance also supports a finding that the TRO is not mandatory. While the disparate results of SCFC ILC, Inc. v. Visa USA Inc. and Dominion Video Satellite, Inc. v. EchoStar Satellite Corp. indicate that this fact alone will not suffice to decide the issue, the Court again believes it is an appropriate factor to place on the scales. As the Tenth Circuit has noted, whether something is mandatory or prohibitive is often semantic. See O Centro Espirita, 389 F.3d at 1006 (“In many instances, this distinction is more semantical than substantive. For to order a party to refrain from performing a given act is to limit his ability to perform any alternative act; similarly, an order to perform in a particular manner may be tantamount to a proscription against performing in any other.”)(quoting Abdul Wali v. Coughlin, 754 F.2d at 1025-26). In Schrier v. University Of Colorado, the Tenth Circuit found reinstatement of the plaintiff as the Chair of the University of Colorado’s Department of Medicine to be mandatory relief. This case provides a good example of how restoring the status quo or ensuring compliance with a contract can be mandatory. Before the dispute and the removal of the plaintiff from his position, the defendant’s obligation would have been to refrain from wrongly removing the plaintiff. After removal, however, ordering the defendant to continue existing duties under the contract would not preserve the contract or status quo. Instead, a new obligation, reinstatement, was necessary. In other words, enforcing a contract tends to be mandatory when the nature of the breach can only be remedied by the performance of actions different than those provided in the contract. Here, by contrast, no new duties must be imposed on the Defendants to ensure compliance with the contract. Only the exact same contractual obligations they were previously performing is required. There is something more essentially prohibitory about directing compliance with existing duties than with imposing new duties.

The most important factor in this situation, however, is the negligible chance that the Court will find itself having to constantly supervise the TRO. The importance of this factor is great. As the Tenth Circuit indicated in SCFC ILC, Inc. v. Visa USA, Inc., this concern is largely what motivates the rule. See 936 F.2d at 1099 (noting that mandatory injunctions “affirmatively require the nonmovant to act in a particular way, and as a result they place the issuing court in a position where it may have to provide ongoing supervision to assure that the nonmovant is abiding by the injunetion.”)(emphasis added). Although the Defendants suggest that the aspect of the TRO applicable to the Obtu-rator Order may also require court supervision, the likelihood of that possibility seems small. Any TRO, of course, might end up placing the Court in such a role. Simply filling and shipping an order for an existing product, however, is a routine business activity. Whether the Defendants are complying with the terms of a TRO preventing them from not complying with that particular provision of the contract will be readily ascertainable. A TRO on the Obturator Order is unlikely to drag the Court into a position where it has to oversee compliance.

When all these factors are added up, the Obturator Order of the requested TRO is prohibitory with respect to the Obturator Order. The Court does not see any significant feature that would make this part of the TRO mandatory, and the Court will thus follow the approach taken in Dominion Video Satellite, Inc. v. EchoStar Satellite Corp. Because this portion of the TRO is neither mandatory nor disruptive of the status quo, the Court will evaluate it under the normal standard of review, and Guidance will be able to rely on the modified-likelihood-of-suceess-on-the-merits standard for the request related to the Obturator Order.

II. GUIDANCE HAS DEMONSTRATED THAT IT FACES IRREPARABLE HARM IF THE COURT DOES NOTACT.

The first element of the test for injunctive relief is whether Guidance is in danger of irreparable harm if the Court does not grant a TRO or preliminary injunction. See Oklahoma, ex rel., Okla. Tax Comm’n v. International Registration Plan, Inc., 455 F.3d at 1113. Economic damage to a business can be a basis for preliminary relief. The evidence reveals that Guidance is in a precarious financial situation and that it is unlikely to obtain needed supply from any source other than the Defendants. This evidence sufficiently demonstrates that Guidance is threatened with irreparable injury.

Guidance paints a dire picture about its situation and raises a number of reasons why it will suffer irreparable harm absent injunctive relief: (i) loss of goodwill; (ii) loss of unique economic opportunities; (iii) loss of customers; (iv) loss of future profits; (v) diminishment of competitive advantage in the marketplace; and (vi) impending bankruptcy. Guidance contends that the Defendants are the only reasonable source of supply and that, unless Guidance receives more product soon, it will begin to suffer the six consequences laid out. The evidence strongly favors Guidance’s position.

The Tenth Circuit and many other federal courts of appeals recognize that loss of customer goodwill is a factor that supports an irr