FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAY BENNETT, an individual; SIV 

BENNETT, an individual; KESHA 

MARKETING, INC., a Nevada SCorporation, 

Plaintiffs - Appellees, 

 v. 

ISAGENIX INTERNATIONAL 

LLC, an Arizona Limited Liability 

Corporation, 

Defendant - Appellant,

No. 23-16082

D.C. No.

2:23-cv-01061-

DGC

OPINION

Appeal from the United States District Court

for the District of Arizona

David G. Campbell, District Judge, Presiding

Argued and Submitted March 5, 2024

Las Vegas, Nevada

Before: Milan D. Smith, Jr., Mark J. Bennett, and Daniel 

P. Collins, Circuit Judges.

Filed September 30, 2024
2 BENNETT V. ISAGENIX INT’L LLC

Opinion by Judge Collins;

Dissent by Judge Bennett

SUMMARY*

Preliminary Injunction / Arizona Contracts Law

The panel vacated the district court’s preliminary 

injunction barring Isagenix International LLC from 

terminating a business relationship with plaintiffs Jay and 

Siv Bennett. 

Plaintiffs were contracted to be associates with Isagenix. 

In May 2023, Isagenix informed plaintiffs that it had decided 

not to renew their accounts. 

The panel noted that the only question before the panel 

was whether plaintiffs had shown that they were likely to 

succeed on the merits of their claims under the preliminary 

injunction Winter factors. Whether they will succeed on the 

merits remains to be determined in the parties’ arbitration. 

The plaintiffs’ claims ultimately hinged on whether the 

contracts at issue were validly modified to include the new 

provisions converting their contracts to ones that Isagenix 

could elect, at its sole discretion, not to renew. 

Applying Arizona law concerning the modification of 

contracts, the panel held that if a contract is bilateral, then its 

terms cannot be modified absent an additional offer, 

acceptance, and consideration; but if the contract is 

unilateral, a business can change its standard contract terms 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
BENNETT V. ISAGENIX INT’L LLC 3

if consumers receive reasonable notice of the change with an 

opportunity to opt out without penalty. The panel concluded 

that the contracts at issue here were likely bilateral, and the 

plaintiffs were likely to succeed in establishing that the 

Arizona requirements for modifying such a contract have not 

been satisfied. The panel agreed with the district court’s 

conclusion that the plaintiffs had shown the requisite 

likelihood of success to support preliminary injunctive 

relief. 

Next, the panel turned to the question of irreparable 

harm. The panel held that a bargained-for limitation on 

otherwise available legal relief did not give rise to 

“irreparable harm” for purposes of equity. The panel held 

that the district court erred in treating the parties’ contractual 

limitation on consequential damages as a basis for finding 

irreparable harm. Because the district court did not address 

plaintiffs’ other theories of irreparable injury, the panel 

vacated the preliminary injunction and remanded for further 

proceedings. 

Judge Bennett dissented. He agreed with the majority 

that the district court failed to properly analyze whether the 

plaintiffs faced irreparable harm absent an injunction. But 

because he believed that Demase v. ITT Corp., 984 P.2d 

1138 (Ariz. 1999) (evaluating bilateral agreements under 

Arizona law), did not resolve the contract analysis here, and 

the majority’s reading of the case was too broad, he would 

reverse the district court’s grant of a preliminary injunction 

as the plaintiffs failed to show a likelihood of success on the 

merits.
4 BENNETT V. ISAGENIX INT’L LLC

COUNSEL

Dominic E. Draye (argued), Andrew F. Halaby, and Kacie 

M. Donovan, Greenberg Traurig LLP. Phoenix, Arizona; 

Shalayne L. Pillar, Littler Mendelson PC, Phoenix, Arizona; 

for Defendant-Appellant.

Scott W. Wellman (argued), Wellman & Warren LLP, 

Laguna Hills, California, for Plaintiffs-Appellees.

OPINION

COLLINS, Circuit Judge: 

For over two decades, Plaintiffs Jay and Siv Bennett, 

who are husband and wife, contracted to be “associates” with 

Defendant Isagenix International LLC (“Isagenix”), 

meaning that they were independent contractors who helped

sell products as part of Isagenix’s multi-level marketing 

business model. The Bennetts’ relationship with Isagenix 

has been extremely lucrative. Jay Bennett has ranked among 

Isagenix’s best-performing associates, and since 2002 the 

couple “ha[s] received and accepted a total of 

$22,316,170.55 in commissions and other bonus payments 

from Isagenix.” The promise of such “long-term residual 

income and other benefits” is part of how Isagenix recruits 

associates and encourages them to devote time and effort to 

the company. In May 2023, Isagenix informed the Bennetts 

that it had decided not to renew their accounts, which were 

set to expire in June 2023. After this point, the Bennetts 

would cease to receive commission payments on the sales 

associated with those accounts. These sales constitute the 

Bennetts’ sole source of income. The Bennetts sued 
BENNETT V. ISAGENIX INT’L LLC 5

Isagenix for various claims and obtained a preliminary 

injunction barring Isagenix from terminating their business 

relationship. This case involves Isagenix’s appeal of that 

order.

“A plaintiff seeking a preliminary injunction must 

establish [1] that [it] is likely to succeed on the merits, 

[2] that [it] is likely to suffer irreparable harm in the absence 

of preliminary relief, [3] that the balance of equities tips in 

[its] favor, and [4] that an injunction is in the public 

interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 

7, 20 (2008). We affirm the district court’s ultimate 

conclusion with respect to the likelihood-of-success factor. 

However, we hold that the district court erred in treating the 

parties’ contractual limitation on consequential damages as 

a basis for finding irreparable harm. Because the district 

court did not address the Bennetts’ other theories of 

irreparable injury, we vacate its preliminary injunction and 

remand for further proceedings. 

I

Plaintiffs Jay and Siv Bennett enrolled as Isagenix 

“associates” in March 2002. Associates are independent 

contractors through whom Isagenix sells its products, which 

largely focus on health and wellness. An Isagenix associate 

receives a “position,” which is an account corresponding to 

the associate’s business transactions, and which Isagenix 

uses to track the associate’s success for purposes of 

compensation. Once an associate has reached the maximum 

amount of compensation available for any given position 

under Isagenix’s compensation plan, that associate may 

request additional positions (“re-entry positions”) from 

Isagenix for the purposes of expanding his or her business. 

Isagenix is a multi-level marketing company, which means 
6 BENNETT V. ISAGENIX INT’L LLC

that its business model involves inducing associates to 

recruit more associates, who in turn form a selling 

organization below the associate who recruited them. This 

organization is known as a “downline.” Associates 

communicate with and manage their downlines through an 

online Isagenix portal called the “Backoffice,” and the 

success of any individual associate’s downline determines in 

part how much residual income that associate makes 

through, among other things, sales commissions, bonus 

payments, and additional income-generating memberships.

At the time the Bennetts became associates in 2002, they 

entered into the “Isagenix Independent Associate 

Agreement” (the “IIAA”), which incorporated various 

Isagenix documents including the Isagenix “Policies & 

Procedures” (“P&Ps”), the Isagenix “Terms and 

Conditions,” and the Isagenix “Compensation Plan.” Over 

the course of their many years dealing with Isagenix, the 

Bennetts entered into two additional contracts that provided 

them with “re-entry positions,” thus allowing them to 

expand their business and earn additional income. Isagenix 

granted the Bennetts the third and final of these “re-entry 

positions” in a May 2016 contract, the consideration for 

which included that all existing associate positions (as 

enumerated in the contract) became subject to the thenexisting P&Ps and Compensation Plan. Unlike the Bennetts’ 

original contract, which had incorporated the Terms and 

Conditions in addition to the P&Ps and the Compensation 

Plan, the May 2016 contract did not specifically reference 

the Terms and Conditions. Nor did the then-existing P&Ps 

purport to incorporate the Terms and Conditions. This 

contract also stated that the associate positions would be 

subject to the P&Ps and Compensation Plan “as amended in 

the future.” Finally, the May 2016 contract stated that, 
BENNETT V. ISAGENIX INT’L LLC 7

“[e]xcept as otherwise provided . . . , [the May 2016 

contract] constitutes and contains the entire agreement and 

understanding between the parties concerning the subject 

matter of [the May 2016 contract], and supersedes and 

replaces all prior negotiations, proposed agreements or 

agreements, written or oral.”

The associate positions listed in the May 2016 contract 

were all held in the name of Jay Bennett, though 

subsequently, on June 1, 2016, Siv Bennett also acquired a 

position in her own name. As both of these contracts were 

executed in 2016, all associate positions became subject to 

the P&Ps that were in effect between September 1, 2013 and 

March 27, 2017.1 These P&Ps provided for termination for 

cause and a process by which associates could renew their 

membership, but they did not include any right for Isagenix 

to terminate associate positions at will. The P&Ps

additionally stated that in “no event shall any Isagenix 

officer, director, employee, affiliate, successor, or assignee 

be liable for any . . . consequential damages, for any claims 

or actions resulting from or arising out of these Policies and 

Procedures or any other agreement you have entered into 

with Isagenix.” “Isagenix” in this section was defined as 

“Isagenix International, LLC or any of its affiliates.” The 

P&Ps also provided that the Isagenix membership could be 

renewed annually, including automatically, and did not state 

that Isagenix could decide not to agree to renewal of its own 

accord.

1 The contract associated with the June 1, 2016 creation of Siv Bennett’s 

own associate position is not in the record, but the parties appear to agree 

that it would have incorporated the then-existing P&Ps, Terms and 

Conditions, and Compensation Plan. The district court should clarify 

this point on remand.
8 BENNETT V. ISAGENIX INT’L LLC

Effective March 27, 2017, Isagenix published a new set 

of P&Ps, included in which was a provision allowing 

Isagenix “at its sole discretion” to “elect not to renew [an] 

Associate Contract.” Effective January 1, 2020, Isagenix 

also published a new set of Terms and Conditions, included 

in which was a provision stating that “Isagenix may . . . 

terminate your [Independent Associate Application and 

Agreement (‘IAAA’)] or Position at any time for any 

reason.” Also included in the January 2020 Terms and 

Conditions was a provision stating that the offeree “agree[s] 

to hold harmless, indemnify, and release Isagenix, its 

shareholders, officers, directors, employees and agents from 

and against . . . any claims for consequential . . . damages . . . 

for any reason whatsoever.” Isagenix subsequently updated 

its P&Ps, effective August 20, 2020, but these continued to 

mirror the language regarding consequential damages that 

had been in the P&Ps between September 1, 2013 and March 

27, 2017. As a result, the Terms and Conditions as updated 

in January 2020 and the P&Ps as updated in August 2020 

contained slightly different language regarding the 

availability of consequential damages. Isagenix eventually, 

in March 2023, updated its P&Ps to make the consequentialdamages exclusion explicit there as well. The August 2020 

P&Ps also did not contain the provision in the January 2020 

Terms and Conditions stating that Isagenix could terminate 

an associate position “at any time for any reason,” but it 

continued to include the provision (initially added in the 

March 2017 P&Ps) that Isagenix could at its sole discretion 

elect not to renew an associate contract.

The Isagenix website requires associates to acknowledge 

that they agree to the P&Ps whenever they place an order. 

The Bennetts placed at least nine orders using the website 

between March 27, 2017 and May 30, 2020. In January 
BENNETT V. ISAGENIX INT’L LLC 9

2020, Isagenix also implemented a pop-up notice linking to 

its updated “Independent Associate Business Contract” and 

stating that it had made “some important amendments.” On 

five occasions between January 5, 2020 and February 14, 

2020, the Bennetts clicked a box stating that they had “read, 

underst[oo]d, and agree[d] to the terms and conditions of the 

Independent Associate Business Contract.” It is unclear 

whether this was referencing the same document as the 

“Terms and Conditions of the Isagenix Independent 

Associate Application and Agreement” that had been 

updated on January 1, 2020. Isagenix also sent an email 

newsletter to all of its associates on August 30, 2020 that 

included, among many other things, a notification that P&Ps 

section 3.5 (“Reenrolling After Cancellation; Eligibility”) 

had been amended, and a hyperlink to the P&Ps. The 

Bennetts received, and Siv Bennett opened, this email. On 

May 1, 2020, Isagenix also emailed the Bennetts a 

disciplinary letter based on actions unrelated to this lawsuit. 

The letter stated that Isagenix was placing the Bennetts on 

probation for one year, during which Isagenix stated that it 

would conduct an investigation and assessment—the results 

of which it warned might result in a fine or termination. 

Nothing in the record suggests that these consequences ever 

materialized. 

On May 25, 2023, Isagenix sent the Bennetts a letter 

stating that, pursuant to the P&Ps as incorporated into their 

associate contracts, it had decided not to renew the associate 

positions held by the Bennetts, which were set to expire in 

June 2023.

The Bennetts, together with their related closely held 

corporation (“Kesha Marketing, Inc.”), filed a complaint in 

the United States District Court for the District of Arizona 

on June 9, 2023, seeking a declaratory judgment that the 
10 BENNETT V. ISAGENIX INT’L LLC

nonrenewal provision added to the P&Psin 2017 was invalid 

as applied to them. The Bennetts also sought damages based 

on claims for breach of contract under different iterations of 

the IIAA, breach of the implied covenant of good faith and 

fair dealing, breach of oral contract, promissory estoppel, 

fraud, negligent misrepresentation, and tortious interference 

with business expectancy. Also on June 9, 2023, the 

Bennetts filed an application seeking a temporary restraining 

order (“TRO”) “enjoining Defendant Isagenix from further 

withholding their residual income and restricting access to 

their Backoffice.” On June 20, 2023, after holding a hearing, 

the district court denied the Bennetts’ application for a TRO 

based on the insufficiency of the evidence and arguments 

before it. The order denying the TRO stated that the 

Bennetts would file a preliminary injunction brief, which 

they subsequently did. The district court entered the 

preliminary injunction on July 17, 2023.

Isagenix filed a motion to compel arbitration on July 28, 

2023, and both parties stipulated to arbitration on August 7, 

2023. They also stipulated to a stay of all the Bennetts’ 

claims save for those proceedings involving provisional 

relief such as the preliminary injunction. On August 8, 2023, 

Isagenix timely filed its notice of appeal from the district 

court’s grant of the preliminary injunction. Isagenix did not 

seek a stay of the injunction pending appeal.

II

The district court had subject matter jurisdiction over the 

Bennetts’ lawsuit pursuant to 28 U.S.C. § 1332. This court 

has appellate jurisdiction pursuant to 28 U.S.C. 

§ 1292(a)(1). We review the district court’s issuance of a 

preliminary injunction for abuse of discretion. AK Futures 

LLC v. Boyd St. Distro, LLC, 35 F.4th 682, 688 (9th Cir. 
BENNETT V. ISAGENIX INT’L LLC 11

2022). We review the district court’s “underlying legal 

conclusions de novo” and its “factual findings for clear 

error.” Id. We may affirm a district court’s grant of a 

preliminary injunction “on any ground supported by the 

record.” Sony Comput. Ent., Inc. v. Connectix Corp., 203 

F.3d 596, 608 (9th Cir. 2000) (citation omitted). 

As noted earlier, the decision whether to grant a 

preliminary injunction involves the application of a fourfactor test. “To obtain a preliminary injunction, a plaintiff 

must establish that (1) it is likely to prevail on the merits of 

its substantive claims, (2) it is likely to suffer imminent, 

irreparable harm absent an injunction, (3) the balance of 

equities favors an injunction, and (4) an injunction is in the 

public interest.” Alliance for the Wild Rockies v. Petrick, 68 

F.4th 475, 490 (9th Cir. 2023) (citing Winter, 555 U.S. at 20, 

22–23). We have adopted a sliding-scale approach to the 

Winter factors, stating that “‘serious questions going to the 

merits’ and a hardship balance that tips sharply toward the 

plaintiff can support issuance of an injunction, assuming the 

other two elements of the Winter test are also met.” Alliance

for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th 

Cir. 2011) (emphasis added). We have also held that if a 

movant fails to meet the threshold inquiry of likelihood of 

success on the merits (or serious questions going to them), a 

court may decide to deny a preliminary injunction without 

considering the other factors. Disney Enters., Inc. v. 

VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017).

III

In applying the Winter factors, we begin by analyzing the 

likelihood that the Bennetts will succeed on their substantive 

claims. In doing so, we emphasize that we have only been 

presented with the question whether the Bennetts have 
12 BENNETT V. ISAGENIX INT’L LLC

shown that they are likely to succeed on the merits. Whether 

they will succeed on the merits remains to be determined in 

the parties’ arbitration, and nothing in our ruling is meant to 

dictate the outcome of those proceedings.

A

The Bennetts’ claims ultimately hinge on whether the 

contracts at issue were validly modified to include the new 

provisions converting their contracts to ones that Isagenix 

could elect, at its sole discretion, not to renew. This raises 

an issue of state law, and the parties have provided no basis 

for questioning the district court’s assumption that the 

relevant contract issues were likely to be governed by 

Arizona law. Accordingly, rather than rely (as the district 

court did) on Ninth Circuit contract cases (which happened 

to involve California law), we consider this issue in light of 

the applicable Arizona precedents.

As the Arizona Supreme Court explained in Cornell v. 

Desert Financial Credit Union, 524 P.3d 1133 (Ariz. 2023), 

Arizona law concerning the modification of contracts 

“distinguishes between bilateral contracts and unilateral 

contracts.” Id. at 1136. “Bilateral contracts consist of an 

exchange of promises,” whereas “unilateral contracts are 

formed upon the offeree’s acceptance by performance.” Id.

If a contract is bilateral, then “its terms cannot be modified 

absent an additional offer, acceptance, and consideration.” 

Id. (citing Demasse v. ITT Corp., 984 P.2d 1138, 1144 (Ariz. 

1999)). But with respect to unilateral contracts, the Arizona 

Supreme Court in Cornell adopted § 3 of the Restatement of 

Consumer Contracts, under which “a business’s changes of 

its standard contract terms are binding on its at-will

consumers if (1) the consumers received reasonable notice 

of the changes and of an opportunity to opt out without 
BENNETT V. ISAGENIX INT’L LLC 13

penalty; and (2) the consumer continues to do business past 

a reasonable rejection period.” 524 P.3d at 1139 (citing 

RESTATEMENT OF CONSUMER CONTRACTS § 3 (Am. L. Inst., 

Tentative Draft No. 2, 2022)). Given this important 

distinction concerning the applicable contract-modification 

principles, we first address whether the Bennetts’ contracts 

with Isagenix are best characterized as bilateral or unilateral 

contracts. 

In distinguishing between a bilateral and a unilateral 

contract, Cornell noted that an exchange of promises 

involving an expressed expectation of an enforceable 

“security” in the parties’ continuing relationship (such as an 

employment relationship) would indicate that the parties’ 

contract is bilateral. 524 P.3d at 1137–38. By contrast, an 

“at-will” agreement, even one involving “on-going, 

consumer-business relationships,” would be a unilateral 

contract. Id.; see also id. at 1135–37 (holding that the 

contract at issue in Cornell, even though in writing, was one 

that either side could cancel at will “at any time” and was 

“unilateral”). Viewed through that lens, we conclude that 

the contracts at issue here likely should be viewed as 

bilateral. 

The relevant agreements here are not open invitations 

that can only be accepted by performance. Rather, they are 

an exchange of promises between the company and the 

contractor—most fundamentally, the promise to sell 

Isagenix products in exchange for a commission, bonus 

payments, and additional income-generating memberships 

depending on the associate’s success. The terms governing 

these contracts are memorialized in written agreements and 

signed by both parties. Importantly, they contain the sort of 

indicia of relationship security that Cornell noted would 

signify a bilateral contract rather than a unilateral one. The 
14 BENNETT V. ISAGENIX INT’L LLC

P&Ps in place when all the accounts at issue in this case were 

either opened or last reincorporated provided for an annual, 

renewable term of membership, and specified the causes for 

which an associate position could be terminated. Such 

provisions, at least prior to the modification that is at issue 

in this case, stand in marked contrast to the “at-will” 

employment and consumer contracts that the Arizona 

Supreme Court characterized as “unilateral” in Cornell. See

id. at 1136–37. 

Having concluded that the agreements here should likely 

be characterized as bilateral, the next question is whether the 

requirements for modifying such a contract under Arizona 

law have been met. We conclude that the Bennetts are likely 

to succeed in establishing that they have not been satisfied.

As explained in Demasse, once a bilateral contract has 

been formed, the following requirements must be met in 

order to modify it: “(1) an offer to modify the contract, 

(2) assent to or acceptance of that offer, and 

(3) consideration.” 984 P.2d at 1144 (citations omitted); see 

also Cornell, 524 P.3d at 1136 (“Once a bilateral contract is 

formed, its terms cannot be modified absent an additional 

offer, acceptance, and consideration.”). Moreover, a mere 

continuation of the relationship “is not sufficient 

consideration to support a modification.” Demasse, 984 

P.2d at 1145. 

Isagenix contends that the Bennetts agreed to the 2017 

nonrenewal provision in the P&Ps (under which they were 

eventually terminated) by placing product orders on the 

Isagenix website that were accompanied by a conspicuous 

notice stating that “[b]y placing this order, you are agreeing 

to the Isagenix International Policies and Procedures,” 

together with a hyperlink to the document. Isagenix 
BENNETT V. ISAGENIX INT’L LLC 15

additionally argues that the Bennetts agreed to the 2020 atwill termination provision in the Terms and Conditions by 

clicking a box acknowledging that they had “read, 

underst[oo]d, and agree[d] to the [latest] terms” when 

logging into their Backoffice. Finally, Isagenix argues that 

the Bennetts had adequate notice of the change to the 

associate contract because it sent them an email that, among 

other things, included a hyperlinked notice that the P&Ps had 

been updated and because it sent them a disciplinary letter 

informing them that they had to comply with company 

policies.

Even if the email notice and letter or the login 

acknowledgement had provided the Bennetts with adequate 

notice of a change to the P&Ps or Terms and Conditions, 

respectively, neither involved any additional exchange or 

consideration. Of the three vehicles for modification that 

Isagenix proposes, therefore, only the order placements even 

arguably include adequate consideration under Demasse. 

However, Isagenix runs into a different problem in trying to 

tie its contract modification to the order placement, namely,

Demasse’s notice requirement. According to Demasse, 

valid consent to a contract modification requires that an 

offeree have more than simple “awareness of or receipt” of 

the proposed modification. 984 P.2d at 1146 (citation 

omitted). Instead, the offeree “must be informed of any new 

term, aware of its impact on the pre-existing contract, and 

affirmatively consent to it to accept the offered 

modification.” Id. Accordingly, even assuming arguendo

that placing orders in furtherance of one’s contractual duties 

as an associate constitutes independent consideration rather 

than a mere continuation of the relationship, Isagenix seems 

unlikely to meet its “burden . . . to show that the [Bennetts] 

assented with knowledge of the attempted modification and 
16 BENNETT V. ISAGENIX INT’L LLC

understanding of its impact on the underlying contract.” Id. 

In comparison to the clear statement reincorporating the 

P&Ps into existing account positions that were contained in 

previous contract modifications executed between the 

Bennetts and Isagenix, the order placements, without more,

do not show that the Bennetts knew of and understood the 

attempted modification and its impact.

We do not think that a different conclusion is warranted 

based on the fact that the relevant agreements contained a 

provision stating that the Bennetts’ account positions would 

be subject to the P&Ps “as currently published or as amended 

in the future.” That language, without more, does not 

establish that Isagenix thereby had a unilateral right to 

amend any and all provisions of the agreement, including the 

crucially important associate-security provisions providing 

for automatic renewal and providing only for termination for 

cause.

2

B

Isagenix nonetheless argues that the Bennetts cannot 

establish the requisite likelihood of success on the merits for 

2 The dissent would read Demasse’s “stringent modification rule,” 

Cornell, 524 P.3d at 1137, as being limited strictly to the employment 

context and as not applicable to other types of contractual arrangements 

involving long-term relationships and specific provisions creating an 

expectation of continued security in such relationships. See Dissent at 

27–28. We disagree. What distinguished the employment relationship 

in Demasse from the “at-will, on-going, consumer-business 

relationship[]” at issue in Cornell was the “expectation of job security” 

reflected in the employment contract. Cornell, 524 P.3d at 1137–38 

(citation omitted). As this case illustrates, employment relationships are 

not the only ones that involve clear contractual expectations of 

relationship security, and we are reluctant to conclude that the Arizona 

Supreme Court would construe Demasse as narrowly as the dissent 

would.
BENNETT V. ISAGENIX INT’L LLC 17

purposes of preliminary injunctive relief because the 

Bennetts’ very ability to seek such relief itself assertedly 

rests on the very same contract modifications that they are 

attacking. This argument is unavailing.

The arbitration agreement to which all of the Bennetts’ 

accounts were subject prior to 2017 stated that “[a]ny 

controversy or claim arising out of, or relating to” the P&Ps 

“shall be settled by arbitration.” It was the March 2017 

update to the P&Ps—the update that the Bennetts argue was 

not a valid modification—that added a provision explicitly 

stating that “[n]othing in the arbitration provision prohibits 

either party from obtaining . . . equitable relief.” Isagenix’s 

argument sounds in estoppel, but for that argument to 

succeed, Isagenix would have to show that, in the prior 

absence of that express disclaimer, the Bennetts 

affirmatively lacked any right to obtain preliminary 

injunctive relief in court. However, without a further 

showing, the mere existence of an arbitration provision does 

not necessarily preclude a district court from awarding 

preliminary injunctive relief to preserve the status quo in 

advance of, and in support of, the arbitration. See Toyo Tire 

Holdings of Ams. Inc. v. Continental Tire N.A., Inc., 609 

F.3d 975, 979–82 (9th Cir. 2010); cf. Capriole v. Uber 

Techs., Inc., 7 F.4th 854, 867–68 (9th Cir. 2021). On this 

point, Isagenix has not shown that, under the prior 

agreements, the court lacked all authority to award 

injunctive relief. 

* * *

For the foregoing reasons, we agree with the district 

court’s conclusion that the Bennetts had shown the requisite 

likelihood of success to support preliminary injunctive 

relief.
18 BENNETT V. ISAGENIX INT’L LLC

IV

We turn, then, to the question of irreparable harm. The 

district court based its finding of irreparable harm in this case 

solely on the fact that the applicable agreements limited the 

availability of consequential damages.

3

 The district court 

reasoned that, although the Bennetts arguably might 

normally be able to recover consequential damages for the 

asserted harms that the Bennetts claimed they would incur 

as an indirect consequence of suddenly losing access to their 

Isagenix income stream, the agreements’ consequentialdamages limitation would prevent them from doing so. 

Therefore, in the district court’s view, those harms were 

irreparable for purposes of deciding whether to award 

injunctive relief. In this respect, we conclude that the district 

court erred.

Preliminary injunctive relief is an “‘extraordinary’

equitable remedy that is ‘never awarded as of right.’”

Starbucks Corp. v. McKinney, 602 U.S. 339, 144 S. Ct.

1570, 1576 (2024) (citation omitted). Courts will therefore 

not grant a preliminary injunction unless there is “no 

adequate legal remedy” for the harm toward which it is 

directed. East Bay Sanctuary Covenant v. Biden, 993 F.3d 

640, 677 (9th Cir. 2021) (citation omitted). But the fact that 

a party has voluntarily chosen to forego a legal remedy does 

not mean that “no adequate legal remedy” exists in the sense 

traditionally required to obtain the extraordinary remedy of 

3 The district court mistakenly cited the provision in the amended March 

2023 P&Ps “specifically provid[ing] that [the Bennetts] cannot recover 

consequential damages from [Isagenix].” But the error is irrelevant, 

because (as Isagenix conceded at argument) the P&Ps in effect between 

September 1, 2013 and March 27, 2017—to which all of the Bennetts’ 

account positions were undisputedly subject—already contained a 

consequential-damages limitation.
BENNETT V. ISAGENIX INT’L LLC 19

a preliminary injunction. We have generally stated that, 

when a harm is “largely self-inflicted,” that fact “severely 

undermines [a] claim for equitable relief.” Al Otro Lado v. 

Wolf, 952 F.3d 999, 1008 (9th Cir. 2020) (simplified); see 

also 11A CHARLES ALAN WRIGHT, ARTHUR R. MILLER &

EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE

§ 2948.1, at p. 138 (3d ed. 2013) (“[A] party may not satisfy 

the irreparable harm requirement if the harm complained of 

is self-inflicted.” (internal citation omitted)). To the extent 

that a relinquishment of what would otherwise be an 

adequate legal remedy results in a self-inflicted 

irreparability to the claimant’s injury, similar reasoning 

suggests that such a self-inflicted posture should not suffice 

for purposes of this extraordinary equitable remedy.

While we have not previously spoken to the particular

fact pattern presented here, the Third Circuit has stated that 

irreparable injury does not exist where the parties 

“contracted” into the harm they allegedly fear and thus 

“acted to permit the outcome which they find unacceptable.” 

Caplan v. Fellheimer Eichen Braverman & Kaskey, 68 F.3d 

828, 839 (3d Cir. 1995); see also Al Otro Lado, 952 F.3d at 

1008 (citing Caplan, 68 F.3d at 839). We see no reason why 

the rule should be different in this case. As we have 

explained, it would be strange to say that parties who have

consciously waived a right to seek relief at law thereby

acquire instead the extraordinary right to seek relief at 

equity. Indeed, such an argument would be hard to square 

with the settled principle that “the terms of a contract alone 

cannot require a court to grant equitable relief.” Barranco v. 

3D Sys. Corp., 952 F.3d 1122, 1130 (9th Cir. 2020); see also 

id. (“Although there is a contractual provision that states that 

the company has suffered irreparable harm if the employee 

breaches the covenant and that the employee agrees to be 
20 BENNETT V. ISAGENIX INT’L LLC

preliminarily enjoined, this by itself is an insufficient prop.” 

(citation omitted)). While the present case—unlike 

Barranco—does not involve an explicit contractual 

stipulation that one or another harm is “irreparable,” see id. 

at 1125, finding irreparable harm based on the waiver of 

consequential damages in this case would nevertheless

effectively allow the parties to bargain for what, in practical 

terms, would be a right to injunctive relief. Such a result 

does not cohere with equity’s role as an extraordinary 

backstop for the inadequacy of legal relief. We therefore

hold that a bargained-for limitation on otherwise available

legal relief does not give rise to “irreparable harm” for 

purposes of equity. 

In setting forth our holding, we have emphasized the 

word “otherwise,” because if there were in fact no adequate 

legal remedy to begin with, then the parties cannot be said to 

have inflicted injury upon themselves simply by reciting that 

fact in their contract. But the district court here did not reach 

that distinct question—i.e., it did not consider whether, in the 

absence of the parties’ contractual limitation of the recovery 

of consequential damages, the remedies available to the 

Bennetts under the common law would still have been 

inadequate. We express no view on that question.

Because the district court explicitly declined to address 

the Bennetts’ remaining alternative arguments for finding

irreparable harm, we leave those issues for the district court 

on remand. We hold only that the particular ground that the 

district court gave for finding irreparable harm was 

erroneous.4 

4 On remand, in the event that the district court finds irreparable injury, 

it will then need to reassess, in light of its conclusions on that score, the 
BENNETT V. ISAGENIX INT’L LLC 21

* * *

For the foregoing reasons, we vacate the district court’s

preliminary injunction and remand for further proceedings.

VACATED and REMANDED.

BENNETT, Circuit Judge, dissenting:

I agree with the majority that the district court failed to 

properly analyze whether the Bennetts face irreparable harm 

absent an injunction. But because I believe that Demasse v. 

ITT Corp., 984 P.2d 1138 (Ariz. 1999), does not resolve our 

contract analysis here, I would reverse the district court’s 

grant of a preliminary injunction. 

Since at least 2013, the Bennetts have agreed to and 

operated under Isagenix’s Policies and Procedures 

(“P&Ps”).1 The P&Ps contain a unilateral modification 

provision, which, “[u]pon proper notification,” enables 

Isagenix “at its sole discretion, [to] amend the [Independent 

Associate Application and Agreement (“IAAA”)] Terms 

and Conditions, the Policies, the Compensation Plan, the 

Guidance Documents, and any other materials pertaining to 

[their] Isagenix business.” Since at least March 2017, the 

P&Ps have permitted Isagenix to elect not to renew an 

associate’s contract. 

remaining factors concerning the balance of equities and the public 

interest.

1 As the majority explains, the contract creating Siv Bennett’s associate 

position is not in the record. Maj. at 7 n.1. I assume that Siv Bennett’s 

June 2016 contract incorporated the then-existing P&Ps, Terms and 

Conditions, and Compensation Plan.
22 BENNETT V. ISAGENIX INT’L LLC

As the majority notes, under Arizona law, bilateral 

agreements such as the one here are evaluated under 

Demasse. Maj. at 14–16. Demasse requires “(1) an offer to 

modify the contract, (2) assent to or acceptance of that offer, 

and (3) consideration.” 984 P.2d at 1144. The requisite 

“offer to modify” involved here is the 2017 P&Ps’ 

nonrenewal provision allowing Isagenix to elect to not renew 

an associate’s contract. The majority concludes that it 

“seems unlikely” that Isagenix satisfied the second Demasse 

requirement through a conspicuous notice included on the 

Isagenix website, informing users that “[b]y placing this 

order, you are agreeing to the Isagenix International Policies 

and Procedures.” Maj. at 14–16. I disagree. 

While Arizona has yet to rule on the enforceability of 

sign-in wrap agreements, Isagenix’s website and 

accompanying notice satisfy our court’s test for inquiry 

notice as stated in Oberstein v. Live Nation Entertainment, 

Inc., 60 F.4th 505, 515 (9th Cir. 2023). While Oberstein

applied California law, it did so through analysis of general 

contract principles. Id. at 512–15. Those same basic 

contract principles apply in evaluating contracts in Arizona. 

See Jones v. Chiado Corp., 670 P.2d 403, 405 (Ariz. Ct. App. 

1983) (“[W]hen a party has an equal opportunity to read and 

examine a contract with the other party, it is his duty to do 

so, and, if he fails, he will not be permitted to avoid it on the 

ground that he did not read it or supposed it was different in

its terms from what it really was.” (alteration in original) 

(quoting Mut. Benefit Health & Accident Ass’n v. Ferrell, 27 

P.2d 519, 523 (Ariz. 1933), overruled in part on other 

grounds by Occidental Life Ins. Co. v. Bocock, 266 P.2d 
BENNETT V. ISAGENIX INT’L LLC 23

1082, 1087–88 (Ariz. 1954))). Thus, I would find Isagenix 

satisfied the second Demasse requirement.2

The majority holds that the notice here is insufficient to 

precipitate valid consent to the contract modification 

because it does not inform the offeree of “any new term” or 

make the offeree “aware of its impact on the pre-existing 

contract.” Maj. at 15 (quoting Demasse, 984 P.2d at 1146). 

But the Arizona Supreme Court has recently confirmed that 

“[t]here is no actual notice requirement” in Arizona for the 

unilateral modification of contract terms. Cornell v. Desert 

Fin. Credit Union, 524 P.3d 1133, 1139 (Ariz. 2023). The 

dispositive facts in Demasse were that the employees “were 

not informed that continued employment—showing up for 

work the next day—would manifest assent, constitute 

consideration, and permit cancellation of any employment 

rights to which they were contractually entitled,” and as such

“that consideration would not have been bargained for and 

would not support modification.” 984 P.2d at 1146. 

The website notice from Isagenix clearly informed the 

Bennetts that “[b]y placing this order, you are agreeing to the 

Isagenix International Policies and Procedures” and 

provided a link to the express terms of the P&Ps. For many 

2 Of course, this would just be a prediction of how the Arizona Supreme 

Court would rule. “When interpreting state law, a federal court is bound 

by the decision of the highest state court.” In re Kirkland, 915 F.2d 1236, 

1238 (9th Cir. 1990) (citing Dimidowich v. Bell & Howell, 803 F.2d 

1473, 1482 (9th Cir. 1986), as modified on denial of reh’g, 810 F.2d 

1517 (9th Cir. 1987)). “In the absence of such a decision, a federal court 

must predict how the highest state court would decide the issue using 

intermediate appellate court decisions, decisions from other 

jurisdictions, statutes, treatises, and restatements as guidance.” Id. at 

1239 (citing Dimidowich, 803 F.2d at 1482; Molsbergen v. United States, 

757 F.2d 1016, 1020 (9th Cir. 1985)).
24 BENNETT V. ISAGENIX INT’L LLC

years, the Bennetts ranked among Isagenix’s bestperforming associates, and since 2002 have received and 

accepted “a total of $22,316,170.55 in commissions and 

other bonus payments” from Isagenix. This case is not one 

involving a short-term contractual relationship between 

unsophisticated parties; it is one involving two wealthy 

parties with a longstanding and lucrative business 

agreement. 

I disagree with the majority that Isagenix somehow 

failed to sufficiently parse out the individual modifications 

for the Bennetts to review. Maj. at 15–16. The Bennetts had 

“an equal opportunity to read and examine [the] contract,” 

they had the “duty to do so,” and their failure to discern the 

changed terms does not constitute permission to avoid the 

contract on the ground that they “supposed [the agreement] 

was different in its terms from what it really was.” Jones, 

670 P.2d at 405 (quoting Mut. Benefit Health, 27 P.2d at 

523). The Bennetts understood that the Associate Contract 

was periodically updated by Isagenix and that they would be 

bound to those changes. The P&Ps were updated in 2003, 

2005, 2006, 2007, 2008, 2013, 2017, and 2020, and the 

Bennetts continued operating under these P&Ps after each 

change. When Jay Bennett became an Associate in 2002, 

the then-current terms of the P&Ps included a provision 

permitting Isagenix to amend the P&Ps over time. The same 

was true when Siv Bennett became an associate in 2016.

Even beyond the P&Ps themselves, the Bennetts 

reaffirmed their understanding of Isagenix’s ability to 

unilaterally modify the terms by executing additional 

agreements. For instance, in 2012, Jay Bennett entered into 

a “Special Access Confidentiality and Non-Solicitation 

Agreement” with Isagenix, in which he acknowledged that 

his “special access” may be revoked “if [he] violate[d] . . . 
BENNETT V. ISAGENIX INT’L LLC 25

the Isagenix [P&Ps], as may be amended from time to time,” 

and he agreed to “understand and comply with the P&Ps” 

and “all of the applicable rules, guidelines and best practices 

as may be published from time to time.” When Jay Bennett 

applied for and received additional positions from Isagenix 

in 2013 and 2016, he again reaffirmed his agreement and 

promised to comply with “all Isagenix Policies and 

Procedures and the Compensation Plan as currently 

published or as amended in the future.” When Isagenix 

amended the P&Ps to allow for unilateral nonrenewal of 

Associate contracts in 2017, it did so by amending the P&Ps, 

to which all Associates, including the Bennetts, agreed.

Isagenix posted the revised P&Ps on its website through 

which every Associate accesses the Isagenix ordering 

platform. By using the website, each Associate 

acknowledges that “[b]y placing this order, you are agreeing 

to the Isagenix International Policies and Procedures,” and 

that acknowledgment provides a hyperlink to the P&Ps that 

contain the unilateral nonrenewal provision. From March 

27, 2017, when Isagenix implemented the nonrenewal 

provision, to May 30, 2020, the Bennetts placed at least nine 

orders via the online ordering platform. Therefore, the 

Bennetts specifically affirmed that they agreed to the 

nonrenewal provision at least nine times. When Isagenix 

again revised the P&Ps in 2020, this time to update its 

privacy policy, it implemented a pop-up notice requiring 

each Associate to check a box stating that he or she had 

“read, understood, and agreed to the terms.” Five times on 

three separate dates, the Bennetts logged into the Isagenix 

website and clicked the box affirming that they read, 

understood, and agreed to the Terms and Conditions of the 

Associate agreement. Those terms included the unilateral 

nonrenewal provision. In total, there were at least fourteen 
26 BENNETT V. ISAGENIX INT’L LLC

times that the Bennetts affirmed they understood the P&Ps 

or their Associate agreement when those procedures and 

agreements contained the unilateral nonrenewal provision.

Even if this were incorrect and the website notice was 

lacking, there is no claim that the termination letter itself 

failed to put the Bennetts on notice that the terms of the 

P&Ps had changed. That letter clearly stated that Isagenix 

had the discretionary authority not to renew the agreement 

with the Bennetts and referenced Section 3.4 of the amended 

P&Ps. While the notice provided by the termination letter 

would not impact the Bennetts’ rights prior to receipt of the 

letter, it settles the issue of notice for future activity, such 

that a preliminary injunction would not be warranted, as, 

obviously, an injunction covers only future actions. 

The primary issue in this case is whether Isagenix’s 2017 

nonrenewal modification satisfies the third Demasse

requirement: consideration. The majority recognizes a 

distinction, which in my mind is dispositive, between this 

case and Demasse. Different from Demasse, “the relevant 

agreements [here] contained a provision stating that the 

Bennetts’ account positions would be subject to the P&Ps 

‘as currently published or as amended in the future.’” Maj. 

at 16. 

As the Arizona Supreme Court noted, the contract at 

issue in Demasse “did not expressly allow unilateral changes 

to the terms.” Cornell, 524 P.3d at 1137 (citing Demasse, 

984 P.2d at 1141). As explained by Cornell, the Demasse 

court answered a specific certified question about 

employment contract modifications, and analyzed a contract 

that did not “allow unilateral changes to the terms,” and 

“assumed that the contract was bilateral,” treating the term 

at issue as “creating an implied-in-fact, bilateral, contractual 
BENNETT V. ISAGENIX INT’L LLC 27

term.” Id. (citing Demasse, 984 P.2d at 1141–42). We have 

no employment contract here, nor an implied-in-fact 

contractual term. Instead, we have an express unilateral 

modification provision, which the parties have mutually 

agreed to and operated under for more than a decade. 

I believe the majority’s reading of Demasse is far too 

broad. Demasse focused specifically on employment 

agreements. The question certified to the Arizona Supreme 

Court asked:

Once a policy that an employee will not be 

laid off ahead of less senior employees 

becomes part of the employment contract . . . 

, as a result of the employee’s legitimate 

expectations and reliance on the employer’s 

handbook, may the employer thereafter 

unilaterally change the handbook policy so as 

to permit the employer to layoff employees 

without regard to seniority? 

Demasse, 984 P.2d at 1140. The Arizona Court of Appeals 

has since clarified that “Demasse was an employment

security case based on the employee handbook” and refused 

to extend Demasse’s analysis to employment benefits cases. 

Gamez v. Brush Wellman, Inc., 34 P.3d 375, 381 (Ariz. Ct. 

App. 2001) (emphasis added). The majority contends 

Demasse extends to all relationships with “clear contractual 

expectations of relationship security,” Maj. at 16 n.2, but the 

question certified to the Arizona Supreme Court and 

subsequent interpretation by the Arizona Court of Appeals 

are not nearly so broad.

In Demasse, the court found continued employment to 

be insufficient consideration to enforce a unilateral 
28 BENNETT V. ISAGENIX INT’L LLC

modification (with no modification term in the contract), 

because “[a]ny other result brings [the court] to an absurdity: 

the employer’s threat to breach its promise of job security,” 

that is firing a senior employee, “provides consideration for 

its rescission of that promise.” 984 P.2d at 1145. But there 

is no absurdity here; indeed the reverse is true. The Bennetts 

were independent contractors, not employees, meaning they 

did not enjoy the seniority protections at issue in Demasse. 

And Demasse established a special rule for a limited subset 

of employment cases, which the Arizona courts have not 

even extended to a broader set of employment cases. Thus, 

Demasse is not dispositive here—especially when, unlike in 

Demasse, the Bennetts and Isagenix agreed to a unilateral 

modification provision expressly allowing the modification 

at issue. 

The majority’s view holds the agreed-to unilateral 

modification provision meaningless based on a case that 

involved no such provision. However, “the contract rule is 

and has always been that one should keep one’s promises.” 

Id. at 1148. The majority’s restriction of this unilateral 

modification provision is contrary to the plain text of a 

provision that places no such limitation on Isagenix’s ability 

to modify the terms in the future so long as it notifies its 

contractors, which it has done. And here, unlike in Demasse, 

there is no unfairness of any kind. The Bennetts profited 

from their contractual arrangement to the tune of roughly $2 

million per year since the nonrenewal provision was added 

in 2017. The Bennetts reaped over $20 million in earnings 

over the course of their two-decade relationship with 

Isagenix, but now they want to disavow one term because 

allowing Isagenix to enforce the agreed-to contractual 

provision would be to the Bennetts’ financial detriment. But 

that is simply not how contract law works—in Arizona or 
BENNETT V. ISAGENIX INT’L LLC 29

anywhere else, to my knowledge. I would reverse the district 

court’s grant of a preliminary injunction, as the Bennetts 

have failed to show a sufficient likelihood of success on the 

merits, and thus I respectfully dissent.