Marchand v. Taylor & Francis Group LLC

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Greg J Marchand,
Plaintiff,
v.
Taylor & Francis Group LLC,
Defendant.
No. CV-25-04391-PHX-DJH
ORDER
Before the Court is Plaintiff Greg J. Marchand’s (“Marchand”) Motion for a
Temporary Restraining Order and in the alternative, a Motion for a Preliminary Injunction
(“Motion”). (Doc. 2). Defendant, Taylor & Francis Group, LLC (“T & F”) has filed a
Response. (Doc. 11). Having reviewed the briefing, the Court will deny the Motion.
I. Background
Marchand is a surgeon in this state, practicing gynecologic medicine, and a
researcher with more than 120 published articles. (Doc. 1 at ¶¶ 20–21). T & F is a publisher
of journals and books centered on topics that are academic, scholarly, or scientific. (Id.
at ¶ 7). One of the journals published by T & F is called Human
Vaccines & Immunotherapeutics (the “Journal”). (Id. at ¶ 8). The Journal publishes
research on vaccines and immunotherapy with its primary audience being those in various
medical professions and related fields. (Id. at ¶ 11). Marchand’s article about the
relationship between Covid-19 and death inducing heart disease was selected for
publication by T & F on June 25, 2023. (Id. at ¶ 23). He paid T & F $3,175.00 to have it
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published for free online, or have it be an open access publication. (Id. at ¶ 27).
The journal received and published two letters to its editor criticizing the article and
its methodology. (Id. at ¶¶ 38–44). Marchand was allowed to respond to the first letter and
T & F published it as well. (Id. at ¶ 41). The second letter triggered corrections to the
article. (Id. at ¶ 45). A back and forth ensued between the parties about the sufficiency of
the corrections and whether the corrected article would be published. (Id. at ¶¶ 50–59). At
some point, during the back and forth on corrections, T & F told Marchand they might
retract the article entirely. (Id. at ¶ 71). They also told him he could submit a response
detailing his position on T & F’s concerns by November 24, 2025. (Id. at ¶ 78). On that
same day, Marchand filed his Complaint and the TRO currently pending before the Court.
(Docs. 1 & 2). He asks that the Court grant his TRO to prevent T & F from retracting his
article. (Doc. 2). For reasons explained below, the Court will not do so.
II. Legal Standard
The analysis for a temporary restraining order is “substantially identical” to that of
a preliminary injunction. Stuhlbarg Intern. Sales Co, Inc. v. John D. Brush & Co., Inc., 240
F.3d 832, 839 n.7 (9th Cir. 2001). A party seeking a preliminary injunction must establish
four elements: “(1) a likelihood of success on the merits, (2) that the plaintiff will likely
suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities
tip in its favor, and (4) that the public interest favors an injunction.” Wells Fargo & Co. v.
ABD Ins. & Fin. Servs., Inc., 758 F.3d 1069, 1071 (9th Cir. 2014), as amended (Mar. 11,
2014) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)). However,
“if a plaintiff can only show that there are serious questions going to the merits,” rather
than a likelihood of success, “a preliminary injunction may still issue if the balance of
hardships tips sharply in the plaintiff's favor, and the other two Winter factors are satisfied.”
Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (citation
modified). This is because the “elements of the preliminary injunction test must be
balanced, so that a stronger showing of one element may offset a weaker showing of
another.” Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012). A plaintiff must meet all
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four requirements—failure to satisfy his burden on even a single factor justifies denying
relief. See DISH Network Corp. v. FCC, 653 F.3d 771, 776–77 (9th Cir. 2011). Ultimately,
a preliminary injunction is “an extraordinary and drastic remedy, one that should not be
granted unless the movant, by a clear showing, carries the burden of persuasion.” Lopez,
680 F.3d at 1072 (citation modified). A preliminary injunction is never awarded as of right.
Winter, 555 U.S. at 24.
III. Discussion
The Court finds that none of the Winter factors weigh in favor of granting the
requested injunctive relief. To begin with, Marchand has not established a likelihood of
success on his breach of contract claim, his negligence claim, or his request for a
declaratory judgment. He has also not shown that he will suffer irreparable harm in the
absence of an injunction or that the balance of equities tip in his favor. The last factor of
public interest, instead of favoring Marchand, favors T & F.
A. Likelihood of Success on the Merits
A reasonable probability of success is all that needs to be shown for preliminary
injunctive relief—an overwhelming likelihood is not necessary. Candrian v. RS Indus.,
Inc., 2013 WL 2244601, at *3 (D. Ariz. May 21, 2013) (citing Gilder v. PGA Tour, Inc.,
936 F.2d 417, 422 (9th Cir. 1991)). “Serious questions are ‘substantial, difficult and
doubtful, as to make them a fair ground for litigation and thus for more deliberative
investigation.’” Gilder, 936 F.2d at 422 (quoting Hamilton Watch Co. v. Benrus Watch
Co., 206 F.2d 738, 740 (2nd Cir. 1953)). “Serious questions need not promise a certainty
of success, nor even present a probability of success, but must involve a ‘fair chance of
success on the merits.’” Id. (quoting National Wildlife Fed'n v. Coston, 773 F.2d 1513,
1517 (9th Cir. 1985)).
i. Breach of Contract
A cognizable claim for breach of contract under Arizona law must allege that “(1)
a contract existed, (2) it was breached, and (3) the breach resulted in damages.” Riverwalk
Condo. Unit Owners Ass’n v. Travelers Indem. Co., 2018 WL 3774084, at *2 (D. Ariz.
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June 28, 2018) (citing Steinberger v. McVey ex rel. Cty. of Maricopa, 318 P.3d 419, 434
(Ariz. Ct. App. 2014)).
Marchand argues that T & F’s acceptance and publication of his article, T & F’s
internal policies, and guidelines published by the Committee on Publication Ethics1
established a valid contract between him and T & F. (Doc. 2 at 8). He argues that he fully
performed his part of the contractual agreement by participating in the editing, pre-
publication peer review process, and paying T & F publication charges, as well as
correcting his article when asked. (Id.) Marchand says “T&F’s threatened retraction of the
Article [is] in violation of T&F’s policies and COPE guidelines [and] would materially
breach the contract and the implied covenant of good faith and fair dealing.” (Doc. 2 at 8).
T & F counters that no contract between the parties exists; that if one did, T & F complied
with its terms; but that regardless, the damages Marchand has alleged cannot be recovered
on a breach of contract claim. (Doc. 11 at 6–8).
a. Existence of a Contract
For there to be an existence of a contract, the following elements are crucial: (1)
offer; (2) acceptance; (3) consideration; and (4) enough specificity for the court to
ascertain its terms. Rogus v. Lords, 804 P.2d 133, 135 (Ariz. Ct. App. 1991).
Establishing the existence of a valid contract requires Marchand to point the Court
to its specific terms. Williams v. Alhambra Sch. Dist. No. 68, 234 F. Supp. 3d 971, 985
(D. Ariz. 2017) (requiring “sufficiently specific terms” for the court to find that a contract
does in fact exist between the parties). Marchand has not done so. He concedes he “did
not specifically receive or sign an Author Publishing Agreement related to the Article,
but the specific terms T&F proposed were present in the emails sent to and from Dr.
Marchand at the time T&F accepted the Article.” (Doc. 2 at 8, fn. 3). But he does not
identify the specific terms from these emails such that the Court can assess his likelihood
of success on a breach of contract claim under Arizona law. Hannibal-Fisher v. Grand
1 It appears that the Committee on Publication Ethics (“COPE”) is not directly affiliated
with T & F but rather is a non-profit whose purpose is to establish guidelines and advise
editors and publishers on best practices. (Doc. 1-1 at 105, Ex. 13).
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Canyon Univ., 523 F. Supp. 3d 1087, 1093 (D. Ariz. 2021) (stating that while precision
is not required to make out a contract’s terms, the court must be able to discern a required
material obligation). Indeed, even giving the most charitable interpretation to Marchand
that there was an implied contract, one which was created by “conduct rather than words
to convey the necessary assent and undertakings,” Corbin on Contracts § 18, at 39 (1963),
Marchand still has not laid out the terms of the implied contract. By not specifying the
terms of the contract, Marchand has not shown that he is likely to establish the existence
of a contract between the parties.
b. Breach
Even assuming an enforceable agreement exists between the parties, the Court also
finds that Marchand is unlikely to establish that T & F has breached any of the alleged
policies or guidelines he says governs the agreement between himself and T & F.
Marchand alleges that T & F has an internal policy that says: “a decision to retract an article
will be made in accordance with both [T & F] policies and COPE guidelines after a full
investigation by T & F’s editorial staff in collaboration with the journal’s editorial team.”
(Doc. 2 at 9) (quoting internal T & F policies). COPE and T & F guidelines clarify that
“[r]etraction is a mechanism for correcting the literature and alerting readers to article that
have seriously flawed or erroneous content or date that their findings and conclusions
cannot be relied upon.” (Id.) Marchand says “T&F’s threatened retraction of the Article
[is] in violation of T&F’s policies and COPE guidelines [and] would materially breach the
contract and the implied covenant of good faith and fair dealing.” (Doc. 2 at 8).
Assuming T & F’s editorial staff and team are bound to conduct a “full
investigation” before making a decision to retract Marchard’s article, nothing in the Motion
or Complaint suggests they are doing otherwise. And it is undisputed that no retraction has
yet occurred. In fact, it appears that after publishing Marchand’s response to the first letter
critical of his article, T & F then conducted a post-publication review of Marchand’s article.
(Id. at 3). After this post-publication review, Marchand was given another opportunity to
provide a detailed written response to T & F’s concerns that were unearthed by the review
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process. (Id.) When Marchand protested incorporating additional corrections into his
article, T & F explained the basis for these corrections and the difference between a
corrected article and an addendum. (Id. at 4). Initially satisfied that Marchand’s corrections
complied with T & F’s requests, T & F stated that they would publish the article. (Id.)
However, T & F then alerted Marchand to yet another issue with his use of a “fixed-effects
analysis rather than a random-effects analysis,” which prevented T & F from publishing
his corrected article. (Id.) In July of 2025, T & F informed Marchand that after consulting
with their data integrity editor, they found even more concerns with his article and gave
Marchand a deadline of September 5, 2025 (later extended to September 14, 2025), to
address the new concerns identified by the data integrity editor. (Id. at 5). Marchand
complied with this request, but not to the satisfaction of T & F. (Id.) T & F emailed
Marchand that: “some of our major concerns regarding your article still remain
unaddressed.” (Id.) In that same email, Marchand was asked to provide any new evidence
he could to placate T & F’s concerns by November 24, 2025. (Id.) Instead, Marchand filed
the current Complaint and accompanying TRO. Nowhere in the above chronology can the
Court find that T & F breached the terms in the guidelines that Marchand has identified.
The Court finds that Marchand has not presently established a likelihood of success on this
element.
c. Damages
Marchand is also unlikely to be able to establish damages relating to any breach.
To date, T & F has not actually retracted the article, so no damages have materialized. At
best, Marchand’s damages are speculative and disallowed for a breach of contract claim.
See Griffey v. Magellan Health Inc., 562 F. Supp. 3d 34, 51 (D. Ariz. 2021) (stating that a
calculation of damages cannot be speculative or remote). And of course, emotional and
reputational damages are not recoverable under Arizona law for breach of contract claims.
Manns v. PennyMac Loan Servs. LLC, 2024 WL 3183130, at *3 (D. Ariz. June 26, 2024)
(emphasizing that emotional and reputational harm is not recoverable under a breach of
contract claim). Because Marchand cannot show he is entitled to contract damages, the
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Court finds that he has no reasonable probability of success on his breach of contract claim.
ii. Negligence
Marchand says he has a strong likelihood of success of his negligence claim because
T &F failed to conform to industry publishing standards. (Doc. 2 at 10–11). In response,
T & F argues that Marchand cannot establish T & F owed him a duty of care or that he
sustained any damages. (Doc. 11 at 8–9).
Success on a negligence claim in Arizona requires the following: (1) duty requiring
defendant to conform to certain standard of care; (2) a breach of that standard by the
defendant; (3) a causal connection between the defendant’s conduct and the resulting
injury; and (4) actual damages. Gipson v. Kasey, 150 P.3d 228, 230 (2007).
Marchand’s negligence claim stalls before it even starts. He has not highlighted for
the Court, nor can the Court find any authority supporting the proposition that a publisher
owes a legally cognizable duty under Arizona negligence law to authors who publish in
their publication. Absent a recognizable duty under Arizona law, Marchand has not shown
he is likely to succeed on the merits of his negligence claim. The Court finds that Marchand
has no reasonable likelihood of success on the merits for his negligence claim.
iii. Declaratory Judgment
In his Complaint and Motion, Marchand asks the Court to declare that T & F
breached an existing contract, and that T&F failed to conform to its own internal policies.
(Docs. 1 & 2). T & F argues that Marchand is unlikely to succeed on the declaratory
judgment claim because Marchand cannot make out his other claims on their merits.
(Doc. 11 at 10–11). The Court agrees with T & F.
“[C]ourts in this district have found that the Federal Declaratory Judgment Act is a
procedural statute, and therefore, under the Erie doctrine, Federal courts should apply the
Federal Declaratory Act rather than the Arizona uniform Declaratory Judgment Act.
McNeill v. CP Boulders LLC, 2025 WL 2161578, at *3 (D. Ariz. July 30, 2025). The
Federal Declaratory Act allows the district courts to “declare the rights and other legal
relations of any interested party seeking such declaration, whether or not further relief is
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or could be sought.” 28 U.S.C. § 2201(a). The authority is entirely discretionary, and the
district courts are not mandated to do anything.
The Court agrees with T & F that because has not established that he is likely to
succeed on the merits of any of his claims at this juncture, he also cannot establish a
likelihood that the Court will grant declaratory relief.
B. Irreparable Harm
Marchand states that he will suffer irreparable harm because his reputation as a
credible scholar will be tarnished if his article is retracted. (Doc. 2 at 11).
“An irreparable harm is one that cannot be redressed by a legal or equitable remedy
following trial.” Optinrealbig.com. LLC v. Ironport Sys., 323 F.Supp.2d 1037, 1051 (N.D.
Cal. 2004) (citing Public Util. Comm’n v. FERC, 814 F.2d 560, 562 (9th Cir. 1987)). Mere
financial injury is not enough to support a finding of irreparable harm if adequate
compensatory relief will be available during litigation. Sampson v. Murray, 415 U.S. 61,
89–90 (1974). In some cases, damage to reputation to or goodwill constitute irreparable
harm, provided it is not too speculative. Rent–A–Center, Inc. v. Canyon Television &
Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991); Stuhlbarg Intern. Sales Co., Inc.
v. John D. Brush and Co., Inc., 240 F.3d 832, 841 (9th Cir. 2001).
The Court notes that Marchand’s alleged harm has not yet materialized and indeed
may never materialize. The potentiality of Marchand suffering some injury to his
reputation as a scholar as a result of T & F retracting his article is too speculative for the
Court to conclude that he will suffer irreparable harm. See All. for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (stating that plaintiffs must establish that
irreparable harm is likely, not just a possibility). At this juncture, the Court cannot find
that Marchand will suffer irreparable harm.
C. Balance of the Equities
In arguing that the balance of equities tip in his favor, Marchand mainly pushes what
he deems to be the parties’ agreement and contractual duties as the reason why the Court
should find in his favor. (Doc. 2 at 12). On the other hand, T & F focuses its argument on
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its First Amendment right to be free from prior restraints. (Doc. 11 at 12–13).
To determine the balance of equities, the court must “balance the interests of all
parties and weigh the damage to each.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1138 (9th
Cir. 2009) (citation omitted).
Having found that Marchand is unlikely to succeed on the merits of his breach of
contract claim, the Court is hard-pressed to find that the balance of equities favors
Marchand. Conversely, T & F’s First Amendment rights certainly hang in the balance.
Were the Court to grant the injunction, T & F would be forced to accommodate speech it
may have no desire to accommodate or endorse. See Rumsfeld v. Forum for Acad. &
Institutional Rights, Inc., 547 U.S. 47, 61 (2006) (“Rumsfeld”) (“Some of this Court’s
leading First Amendment precedents have established the principle that freedom of speech
prohibits the government from telling people what they must say.”); Nat’l Rifle Ass’n of
Am. v. City of Los Angeles, 441 F. Supp. 3d 915, 943 (C.D. Cal. 2019) (holding that
compelled speech involved “violations where the complaining speaker’s own message was
affected by the speech it was forced to accommodate.”). The balance of equities disfavors
Marchand, not T & F.
D. Public interest
Again, Marchand centers his public interest argument on contractual rights by
stating: “The public interest is served by protecting a party’s contractual rights.” (Doc. 2
at 14). To counter, T & F highlights its right to be free from government interference in its
editorial decisions and telling it what it can and cannot publish. (Doc. 11 at 12). The Court
agrees that as the facts of this case stand, it has no right to interfere in T & F’s publishing
decisions.
“Whereas the balance of equities focuses on the parties, ‘[t]he public interest inquiry
primarily addresses impact on non-parties rather than parties,’ and takes into consideration
‘the public consequences in employing the extraordinary remedy of injunction.’ ” hiQ
Labs, Inc., 31 F.4th at 1202 (quoting Bernhardt v. Los Angeles Cnty., 339 F.3d 920, 931-
32 (9th Cir. 2003) (modification in original)).
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While the Court recognizes the importance of the enforcement of contracts in a
commercial transactions and settings, here Marchand has failed to sufficiently identify the
enforceable terms of any agreement between the parties. See First 100, LLC v. Omni Fin.,
LLC, 2016 WL 3511252, at *3 (D. Nev. June 27, 2016) (“There is a public interest in the
enforcement of contracts and judgments and in predictability in commercial
transactions.”). And publishers like T & F have genuine First Amendment rights and
concerns. The Supreme Court has long held that private publishers have a First
Amendment right to control the content of their publications as they see fit, free from the
hawkish eye of the government. Miami Herald Co. v. Tornillo, 418 U.S. 241, 254–44
(1974). Absent clear contractual obligations that would limit these rights, the Court
declines to impose restraints on a publisher’s editorial discretion, which would go against
the very firmament on which the First Amendment stands. Nebraska Press Ass’n v. Stuart,
427 U.S. 539, 557 (1976) (quoting Patterson v. Colorado ex rel. Attorney General, 205
U.S. 454, 462 (1907) (“(T)he main purpose of (the First Amendment) is ‘to prevent all such
previous restraints upon publications as had been practiced by other governments.”)). The
public interest is best served by not granting Marchand’s requested injunctive relief.
Accordingly,
IT IS ORDERED that Plaintiff Greg J. Marchand’s Motion for a Temporary
Restraining Order and in the alternative, a Motion for a Preliminary Injunction (Doc. 2)
is denied.
Dated this 11th day of December, 2025.
Honorable Diane J. Humetewa
United States District Judge
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