2 2

- 1206 Nielsen Consumer LLC v. The NPD Group, Inc.



## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT ’ S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “ SUMMARY ORDER ” ). A PARTY CIT ING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 1 4 t h da y of O c t o b e r , two thousand twenty

- two

. 3 4 PRESENT: 5 JOHN M. WALKER, JR. , 6 RO SEMARY S. POOLER , 7 MICHAEL H. PARK , 8 Circuit Judges. 9 10

_____________________________________ 11 12 NIELSEN CONSUMER LLC, D/B/A 13 NIELSENIQ , 14 15 Plaintiff

- Appell ant, 16 17

v. 2 2

- 1 206 18 19 THE NPD GROUP, INC. , 20 21 Defendant

- Appell ee
. 22

_____________________________________ 23 24 FOR PLAINTIFF

- APPELLANT: L AURA L OGSDON ( Joshua A. Berman

, 25 Matthew R. Wisnieff, Timothy Keegan, 26 Hannah Rubashkin, on the brief ), White & 27 Case LLP, New York, NY

. 28 29 FOR DEFENDANT

- APPELLEE : L AURENCE F. P ULGRAM (Dean Kristy, 30 Todd R. Gregorian, Shannon E. Turner, on 31 the brief ), Fenwick & West LLP, San 32 Francisco, CA

. 332 Appeal from a n order of the United States District Court for the Southern District of New 1

York ( Oetken

, J .). 2

UPON DU E CONSIDERATIO N, IT IS HEREBY ORDERED, ADJUDGED, AND 3

DECREED that this matter is REMANDED

. 4

In 2018, Plaintiff

- Appellant Nielsen Consumer LLC (“ Nielsen ”) entered into a contract 5

(the “Agreement”) with Defendant

- Appellee T he NPD Group, Inc. (“NPD”) to license data from 6

and enhance “ReceiptPal,” a market research application developed by NPD

. On April 7, 2022, 7

after several years of collaboration with Nielsen, NPD publicly announced a potential merger with 8

Nielsen’s competito r , Information Resources, Inc. (“IRI”). That same week, Nielsen filed this 9

action, alleging that NPD breached the Agreement and misappropriated Nielsen’s proprietary and 10

confidential information and trade secrets. 1 N ielsen sought damages and moved for a preliminary 11

injunction, asking the district court to enjoin the merger “until adequate assurances are provided ” 12

that data licensed to Nielsen under the Agreement “ will not be used by any third parties without 13

Ni e lsenIQ’s express, written consent

. ” Confidential App’x at 106

. Nielsen also sought a similar 14

injunction as to its “exclusive confidential information and trade secrets” outside of the licensed 15

data. Id. On May 2 , 2022, i n an effort to moot Nielsen’s request for injunctive relief, NPD’s 16

co unsel sent Nielsen a letter “outlin[ing] a series of commitments that NPD is willing to make ” 17

pending the district court’s decision on the merits. Id. at 332

– 3 4

. 18

The district court conducted a two

- hour oral argument on May 17, 2022, and issued an 19

order t he following day , granting in part and denying in part Nielsen’s motion. The district court 20

found “that a preliminary injunction against the anticipated merger is unwarranted in light of 21

1 Nielsen asserted numerous causes of action, including breach of contract, anticipatory breach of contract, breach of duty of good faith and fair dealing, promissory estoppel, misappropriation of trade

secrets under both federal and state law, unfair competition, unjust en richment, and conversion.3 NPD’s assurances, provided that those assurances are subject to cour t order.” Special App’x at 2

. 1

The district court thus declined to enjoin the merger but incorporated NPD’s May 2, 2022 letter 2

into its order, requi ring NPD to abide by its commitments. Nielsen appealed

, arguing that the 3

district court abused its discretion in rejecting Nielsen’s proposed order and adopting NPD’s 4

proposed commitments

. We assume the parties’ familiarity with the underlying facts, procedural 5

history of the case, and issues on appeal. 6

I. Legal Framework 7

We review a district court’s d ecision to deny or grant a preliminary injunction for abuse of 8

discretion. See, e.g.

, Corning Inc. v. PicVue Elecs., Ltd. , 365 F.3d 156, 157 (2d Cir. 2004). “A 9

district court has abused its discretion if it based its ruling on an erroneous view of the la w or on a 10

clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within 11

the range of permissible decisions.” Faiveley Transp. Malmo AB v. Wabtec Corp. , 559 F.3d 110, 12

116 (2d Cir. 2009) (citation omitted)

. 13

A party see king a preliminary injunction in this Circuit must establish (1) 14 irreparable harm; (2) either (a) a likelihood of success on the merits

, or (b) 15 sufficiently serious questions going to the merits of its claims to make them fair 16 ground for litigation, plus a balance of the hardships tipping decidedly in favor of 17 the moving party; and (3) that a preliminary injunction is in the public interest. 18 19 Conn. State Police Union v. Rovella , 36 F.4th 54, 62 (2d Cir. 2022) (cleaned up). 20

A district court must “state the findings and conclusions” that support its grant or denial of 21

an “interlocutory injunction.” Fed. R. Civ. P. 52(a) (2) . The district court’s “findings and 22

conclusions should provide a clear understanding of the basis for the trial court’s decision.” Fair 23

Hous. in Huntington Comm. Inc. v. Town of Huntington , 316 F.3d 357, 364 (2d Cir. 2003). 24

Similarly, “[e]very order granting an injunc tion” must “state the reasons why it issued,” “state its 254 terms specifically,” and “describe in reasonable detail

— and not by referring to the complaint or 1

other document

— the act or acts restrained or required.” Fed. R. Civ. P. 65(d)(1). 2

II. Discussion 3

Nielse n argues that the district court’s order runs afoul of Rule 65(d) because the district 4

court failed to make the necessary findings or describe in sufficient detail the acts to be restrained. 5

We agree , and find that the district court failed to comply with Rule 52(a) for similar reasons

. 6

First, the district court’s order failed to comply with Rule 52(a)(2) because the district court 7

did not explain the reasons for its grant of alternative relief. The district court’s order determined 8

that Nielsen was not likely to suffer irreparable injury “ in the absence of an injunction against the 9

merger ” and that “the balance of hardships does not justify enjoining the merger given the 10

availability of a more tailored remedy.” Special App’x at 2. The district court th en granted 11

narrower relief by requiring NPD to “comply with the commitments” set forth in NPD’s letter, 12

which the district court “incorporated in th[e] order by reference.” Id. But absent from the 13

district court’s decision are any findings explaining why this form of relief was warranted, and 14

whether it adequately protects Nielsen’s proprietary and confidential information

. 2 15

Second, for similar reasons, the district court’s order did not comply with Rule 65(d)(1). 16

The district court’s order, which required NPD to abide by its proposed commitments, did not 17

2 T he district court incorporated its reasoning from the preliminary injunction hearing into the orde r. NPD emphasizes certain comments made by the district court at that hearing, such as that the district court noted that it did not think “the scope of what is protected that’s argued by Nielsen . . . [is] justified in terms of a likelihood of success on the merits.” Joint App’x at 361. These statements, however, do not provide sufficient findings and conclusions to enable a meaningful review of the district court’s decision. See Tekkno Lab ’ys , Inc. v. Perales , 933 F.2d 1093, 1097 (2d Cir. 1991) (expla ining that the district court’s findings must “enable us to be sure of the basis of the decision below”) . The district court did not explain why it found Nielsen’s arguments to be lacking merit. Moreover, at the preliminary injunction hearing, the distri ct court focused on Nielsen’s request to enjoin the NPD

- IRI merger. It did not consider irreparable harm, likelihood of succes s , or the balance of hardships as to Nielsen’s request for an injunction prohibiting NPD from disclosing Nielsen’s proprietary in formation

.5 explain why such an injunction was necessary. And instead of describing the “acts” to be 1

restrained, the order simply “incorporated” NPD’s letter “by reference

. ” Id. ; s ee Fed . R. Civ. P. 2

65(d)(1)(C) (providing that an order granting an injunction m ay not “refer[] to the complaint or 3

other document” when describing the restrained acts). 4

We therefore remand this matter pursuant to the procedures adopted in United States v. 5

Jac obson , 15 F.3d 19, 22 (2d Cir. 1994). The district court is directed to enter an order clarifying 6

its rationale for finding that NPD’s commitments adequately protect Nielsen . The district court 7

should clearly state its findings on the record and , if warr anted, issue an order that specifies the 8

enjoined acts without incorporating NPD’s letter. 3 No later than ten days after the district court’s 9

supplementation of the record, either party may restore the matter to the active docket of this Court 10

by filing a letter. If either party seeks further action from this Court, the matter will be referred 11

to this panel. 12

* * * 13

For the foregoing reasons, we hereby REMAND this matter to the district court for further 14

proceedings consistent with this order. 15

FOR THE COURT: 16 Catherine O ’ Hagan Wolfe, Clerk of Court 17

3 A t the preliminary injunction hearing, the district cour t warned the parties that the order might not include the “full analysis” because the district court did not “want to write something that has lots of confidential agreement language in it.” Joint App’x at 365 . These concerns, however, should not preclude the district court from providing a full explanation of its findings on the record. If the district court finds that supplementing the record will entail a discussion of confidential information, it should determine whether such information meets our sealing standards before publicly filing a redacted version of its analysis. S ee generally Lugosch v. Pyramid Co. of Onond a ga , 435 F.3d 110 (2d Cir. 2016)

.