Insulet Corp. v. Eoflow, Co. Ltd., Eoflow, Inc.

United States Court of Appeals
for the Federal Circuit
______________________
INSULET CORP.,
Plaintiff-Appellee
v.
EOFLOW, CO. LTD., EOFLOW, INC.,
Defendants-Appellants
STEVEN DIIANNI, LUIS J. MALAVE, IAN G.
WELSFORD, JESSE J. KIM, FLEXTRONICS
MEDICAL SALES AND MARKETING LTD.,
Defendants
______________________
2024-1137
______________________
Appeal from the United States District Court for the
District of Massachusetts in No. 1:23-cv-11780-FDS, Judge
F. Dennis Saylor, IV.
______________________
Decided: June 17, 2024
______________________
WILLIAM M. J AY , Goodwin Procter LLP, Washington,
DC, argued for plaintiff-appellee. Also represented by
MATTHEW G INTHER, J ENNY J. ZHANG; R OBERT CARROLL ,
G ERARD J. CEDRONE, WILLIAM EVANS , ROBERT
F REDERICKSON, III, Boston, MA; ALEXANDRA D. VALENTI,
New York, NY.
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ADAM G ERSHENSON, Cooley LLP, Boston, MA, argued
for defendants-appellants. Also represented by K IMBERLEY
A. SCIMECA ; ELIZABETH M. F LANAGAN, Minneapolis, MN;
P ATRICK HAYDEN, New York, NY; D USTIN K NIGHT , Wash-
ington, DC; L OWELL D. MEAD, Palo Alto, CA.
______________________
Before L OURIE, P ROST , and STARK, Circuit Judges.
L OURIE, Circuit Judge.
EOFlow, Co. Ltd. and EOFlow, Inc. (collectively,
“EOFlow”) appeal from an October 24, 2023 order of the
United States District Court for the District of Massachu-
setts granting a preliminary injunction sought by Insulet
Corp. (“Insulet”). See Insulet Corp. v. EOFlow, Co.,
No. 1:23-cv-11780-FDS, 2023 WL 7647573 (D. Mass. Oct.
24, 2023) (“Order”); J.A. 38−41. The injunction enjoined
EOFlow from manufacturing, marketing, or selling any
product that was designed, developed, or manufactured, in
whole or in part, using or relying on alleged trade secrets
of Insulet. On May 7, 2024, we issued a temporary stay of
the injunction pending this opinion. For the following rea-
sons, we lift our stay and reverse the district court’s order.
BACKGROUND
Insulet and EOFlow are medical device manufacturers
that make insulin pump patches. Insulet began developing
the wearable insulin pump OmniPod® in the early 2000s.
J.A. 190. The FDA approved the first OmniPod product in
2005, and a next-generation product, the OPI-2, came onto
the market soon thereafter in 2007. Id. at 202. Insulet
then began work on its next-generation Eros product,
which obtained FDA approval in 2012 and commercially
launched in 2013. Id. at 203.
EOFlow began developing its own flagship product, an
insulin pump patch called the EOPatch®, soon after the
company’s founding in 2011. J.A. 1078. The EOPatch
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received regulatory approval in South Korea in 2017, after
which EOFlow began developing its next-generation
EOPatch 2. Id. at 1747. Around that time, four former
Insulet employees joined EOFlow. See id. at 5, 230−31,
8979, 9079, 9744. In 2019 and 2022, respectively, the
EOFlow 2 received regulatory approval in South Korea and
Europe, after which it began commercial distribution in
those select geographic markets. Id. at 1747−51.
In early 2023, reports surfaced that Medtronic had
started a diligence process to acquire EOFlow. J.A.
1072−73, 1077−78. Soon thereafter, Insulet sued EOFlow
in the U.S. District Court for the District of Massachusetts
for violations of, among other things, the Defend Trade Se-
crets Act (“DTSA”), seeking a temporary restraining order
and a preliminary injunction to enjoin all technical commu-
nications between EOFlow and Medtronic in view of its
trade secrets claims.
On August 29, 2023, the district court temporarily re-
strained EOFlow from “disclosing products or manufactur-
ing technical information related to the EOPatch or
Omni[P]od products.” J.A. 1254. On October 4, 2023, the
court granted Insulet’s request for a preliminary injunc-
tion, finding that (1) “there is strong evidence that Insulet
is likely to succeed on the merits of its trade secrets claim
at least in part,” (2) there was “strong evidence of misap-
propriation” because EO Flow hired former Insulet employ-
ees who retained “Insulet’s confidential documents” that
“fall within the statutory definition of trade secret,” and
(3) that irreparable harm to Insulet crystallized when
EOFlow announced an intended acquisition by Medtronic,
which “would be a source of capital for EOFlow” and in-
crease competition with Insulet. Id. at 5−22.
The resulting preliminary injunction issued on October
6, 2023, and enjoined EOFlow “from manufacturing, mar-
keting, or selling any product that was designed, devel-
oped, or manufactured, in whole or in part, using or relying
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on the Trade Secrets of Insulet.” J.A. 35−37. EOFlow
moved to modify that injunction, citing concerns regarding
existing patient populations in international markets. The
district court subsequently amended the injunction on Oc-
tober 24, 2023, adding limited carveouts for certain patient
populations in South Korea, the European Union, and the
United Arab Emirates. EOFlow filed a notice of appeal
shortly thereafter. Order at *1−2; J.A. 38−41.
While this appeal was pending, both parties moved in
the district court to further modify the injunction. As a re-
sult, a second amended preliminary injunction issued on
April 24, 2024, limiting the carveouts contained in the Oc-
tober 24, 2023 order. Insulet Corp. v. EOFlow, Co.,
No. 1:23-cv-11780-FDS (D. Mass. Apr. 24, 2024), ECF No.
361.
Oral argument was heard at this court on May 6, 2024.
On May 7, 2024, we issued a temporary stay of the October
24, 2023 preliminary injunction pending this decision and
further suggested that the district court consider entering
a stay of the April 24, 2024 order that is not before us. The
district court subsequently stayed the April 24, 2024 order
on May 8, 2024. Id. at ECF No. 368.
We have jurisdiction over the October 24, 2023 prelim-
inary injunction order under 28 U.S.C. § 1292(c)(1).
D ISCUSSION
A preliminary injunction is “an extraordinary remedy
that may only be awarded upon a clear showing that the
plaintiff is entitled to such relief.” Winter v. NRDC, Inc.,
555 U.S. 7, 22 (2008) (citing Mazurek v. Armstrong,
520 U.S. 968, 972 (1997) (per curiam)). To establish such
entitlement, the court must find that “(1) the plaintiff has
a likelihood of success on the merits of his claim; (2) the
plaintiff does not have an adequate remedy at law such
that it will suffer irreparable harm without the injunction;
(3) this harm is greater than the injury the defendant will
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suffer if the injunction is granted; and (4) the injunction
will not harm the public interest.” Concrete Mach. Co. v.
Classic Lawn Ornaments, Inc., 843 F.2d 600, 611 (1st Cir.
1988).
We review a district court’s grant of a preliminary in-
junction under the law of the regional circuit. SoClean, Inc.
v. Sunset Healthcare Sols., Inc., 52 F.4th 1363, 1367 (Fed.
Cir. 2022). Here, that is the First Circuit, which reviews
grants of preliminary injunctions for an abuse of discretion.
Id. An abuse of discretion may be established by showing
that a material factor deserving significant weight has
been ignored, that an improper fact was relied upon, or that
the court made a serious mistake in weighing the facts. I.P.
Lund Trading ApS v. Kohler Co., 163 F.3d 27, 33 (1st Cir.
1998). That “deferential standard, however, applies to ‘is-
sues of judgment and balancing of conflicting factors,’ and
we still review rulings on . . . legal issues de novo and find-
ings of fact for clear error.” Water Keeper All. v. Dep’t of
Def., 271 F.3d 21, 30 (1st Cir. 2001) (quoting Cablevision of
Bos., Inc. v. Pub. Improvement Comm’n, 184 F.3d 88, 96
(1st Cir. 1999)).
EOFlow contends that the preliminary injunction was
issued in error and that the district court abused its discre-
tion by failing to consider factors relevant to Insulet’s like-
lihood of success on the merits and failing to meaningfully
evaluate the balance of harms and the public interest. We
address each argument in turn.
I
Trade secrets are an important form of intellectual
property that both Congress and the states have deemed
worthy of protection. See, e.g., 18 U.S.C. § 1836; Mass.
Gen. Laws ch. 93, §§ 42A, 42B. And even well before those
laws were enacted, the Founders also recognized the value,
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as well as the volatility, of an idea kept as a secret.1 In-
deed, once a trade secret has lost its secrecy, its value may
be gone because others may practice it to the detriment of
its owner. Trade secrets can thus deeply benefit from being
the subject of preliminary injunctive relief as much as
other forms of intellectual property. See Melvin F. Jager &
Brad Lane, Trade Secrets Law §§ 1:1, 7:4 (2023). But es-
tablishing entitlement to such injunctive relief still re-
quires a showing of the existence of the trade secret and
misappropriation, as well as the satisfaction of the usual,
established factors justifying the grant of a preliminary in-
junction.
Under the DTSA, the “owner of a trade secret that is
misappropriated” may bring a civil action “if the trade se-
cret is related to a product or service used in, or intended
for use in, interstate or foreign commerce.” 18 U.S.C.
§ 1836(b)(1). Here, Insulet alleged that it owns trade se-
crets relating to its OmniPod product that were misappro-
priated by EOFlow and several individually named
defendants. The district court subsequently granted its re-
quest for a preliminary injunction.
EOFlow argues that the district court abused its dis-
cretion in granting that preliminary injunction. EOFlow
first notes that even if Insulet owned protectable trade se-
crets, and even if those trade secrets were misappropriated
1 For example, in an August 13, 1813 letter to mer-
chant Isaac McPherson, Thomas Jefferson wrote: “[I]f na-
ture has made any one thing less susceptible, than all
others, of exclusive property, it is the action of the thinking
power called an Idea; which an individual may exclusively
possess as long as he keeps it to himself; but the moment it
is divulged, it forces itself into the possession of every one,
and the receiver cannot dispossess himself of it.” The
Founder’s Constitution, ed. Philip B. Kurland and Ralph
Lerner (Chicago: University of Chicago Press, 1987), 3:42.
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by the defendants, Insulet’s right to bring a civil action
would remain limited by 18 U.S.C. § 1836(d), which pro-
vides that such a civil action “may not be commenced later
than 3 years after the date on which the misappropriation
with respect to which the action would relate is discovered
or by the exercise of reasonable diligence should have been
discovered.” A likelihood of success analysis for a claim
brought under the DTSA must, according to EOFlow, con-
template whether or not that claim may be time barred un-
der § 1836(d) when a statute of limitations challenge is
raised.
The district court expressed no opinion on the matter;
although there are over twelve pages of analysis on In-
sulet’s likelihood of success, the statute of limitations is
never discussed. EOFlow notes that after having moved on
to an assessment of irreparable harm, the court noted that
it “express[ed] no opinion about the accrual of the statute
of limitations,” deeming it “not the issue here.” J.A. 15. It
is not clear whether the court meant that the statute of
limitations was irrelevant to assessing irreparable harm,
or that it was irrelevant to the grant of a preliminary in-
junction more generally. But that distinction matters not,
because, either way, the court did not assess the statute of
limitations in the context of evaluating Insulet’s likelihood
of success on the merits. The court thus ignored a material
factor deserving significant weight, which constitutes an
abuse of discretion. See I.P. Lund Trading, 163 F.3d at 33.
Indeed, if the three-year statute of limitations for filing a
DTSA claim had expired, Insulet’s claims would be time-
barred and therefore would have no chance of success.
But even if the district court had adequately dealt with
the statute of limitations issue, that would have been in-
sufficient to support the October 24, 2023 order. As
EOFlow further contends, the district court also abused its
discretion in its consideration of what constitutes a trade
secret.
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The DTSA defines “trade secrets” as:
All forms and types of financial, business, scien-
tific, technical, economic, or engineering infor-
mation, including patterns, plans, compilations,
program devices, formulas, designs, prototypes,
methods, techniques, processes, procedures, pro-
grams, or codes, whether tangible or intangible,
and whether or how stored, complied, or memorial-
ized physically, electronically, graphically, photo-
graphically, or in writing if—
(A) the owner thereof has taken reasonable
measures to keep such information secret; and
(B) the information derives independent economic
value, actual or potential, from not being gener-
ally known to, and not being readily ascertaina-
ble through proper means by, another person
who can obtain economic value from the disclo-
sure or use of the information[.]
18 U.S.C. § 1839(3)(A) (emphases added).
In contrast, the order granting this preliminary injunc-
tion broadly defines the term “trade secret” as including
“any and all Confidential Information of Insulet” and “any
information that contains, derives from, or incorporates
such Confidential Information.” Order at *1; J.A. 36. The
injunction further specifies that “‘Confidential Infor-
mation’ shall mean (a) any and all information or materials
that were marked ‘confidential’ by Insulet and (b) any and
all CAD files, drawings, or specifications created by In-
sulet, whether or not they were marked ‘confidential.’” Or-
der at *1; J.A. 36. That definition is severely overbroad.
Compounding the harm of that inaccurate definition
was the district court’s position that “it would be unfair to
require at this stage perfection as to the precise number
and contours of the trade secrets at issue.” J.A. 6. We dis-
agree. In order to secure a preliminary injunction, Insulet
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had to establish the likelihood of its success on the merits
for at least one, specifically defined, trade secret. It did not
do so. Rather, it advanced a hazy grouping of information
that the court did not probe with particularity to determine
what, if anything, was deserving of trade secret protection.
Instead, the preliminary injunction broadly prohibits
EOFlow from disclosing eight “items . . . , to the extent that
the Trade Secrets of Insulet were used in their design, de-
velopment, or creation.” Order at *1; J.A. 39. By way of
example, we look to the first of those eight items in the
analysis that follows, although our concerns run through
them all. Thus, for example, the district court enjoined
EOFlow from disclosing “design drawings and specifica-
tions for each physical component and subassembly” of
EOFlow’s own EOPatch 2. See Order at *1; J.A. 39. But
the court failed to assess what within the “design drawings
and specifications” for those physical components was
likely to have been a misappropriated trade secret.
Such an analysis requires evaluating which of the “de-
sign drawings and specifications” was alleged to have been
the intellectual property of Insulet, and whether, under
§ 1839(3)(A), Insulet took “reasonable measures” to keep
that specific information secret. Although the district court
found that “at least as to some substantial set of infor-
mation, Insulet took reasonable steps to protect the infor-
mation” and that “[d]ocuments were marked confidential,
employees were required to sign nondisclosure or confiden-
tiality agreements, systems were password protected, and
the like,” J.A. 5−6, that analysis was too general to support
the preliminary injunction. Finding that Insulet took
measures to protect some unidentified “set of information”
is not the same as finding that Insulet took reasonable
measures to protect specific information alleged to be a
trade secret, such as particular “design drawings and spec-
ifications for each physical component and subassembly,”
as the DTSA requires.
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The district court similarly failed to adequately assess
whether or not the information that Insulet sought to pro-
tect was generally known or reasonably ascertainable
through proper means. As set forth in 18 U.S.C.
§ 1839(6)(B), proper means for ascertaining information
that may otherwise constitute a trade secret include “re-
verse engineering, independent derivation, or any other
lawful means of acquisition[.]” See also Bonito Boats Inc.
v. Thunder Craft Boats, Inc., 489 U.S. 141, 155 (1989);
Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 476 (1974).
The district court initially held that it was “true that
[the OmniPod] can be broken down and to some extent re-
verse engineered” and that there was “some evidence” that
portions of the OmniPod were, in fact, “actually reverse en-
gineered.” J.A. 8−9. But the court nevertheless considered
any and all depictions or descriptions of those components
to be trade secrets. In so doing, it held that the “mere pos-
sibility that something could be reverse engineered without
more is not enough to defeat a trade secret claim.” J.A. 8−9.
That holding misstates the effect that reverse engineering
has on the ability of a plaintiff to assert a trade secret. To
be clear: if information is “readily ascertainable through
proper means” such as reverse engineering, it is not eligible
for trade secret protection. See Kewanee Oil, 416 U.S. at
475−76 (describing reverse-engineering as “starting with
the known product and working backward to divine the
process which aided in its development or manufacture”).
It was an error for the district court not to consider, in its
analysis of likelihood of success on the merits, whether the
alleged trade secrets would have been capable of being ob-
tained through reverse engineering, particularly given the
evidence of the public availability of the OmniPod, multiple
tear-down videos available on the internet, and Insulet’s
own publications providing “[a] look under the hood, fea-
turing core components of the OmniPod.” See, e.g., J.A.
829−39, 974−89.
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The district court similarly erred in declining to assess
another potential proper source for ascertaining infor-
mation concerning Insulet’s product: patent disclosures.
Noting that it was “true” that Insulet had patents that dis-
closed information relating to the OmniPod, the court dis-
missed those disclosures as irrelevant because “[t]his is not
a patent case.” J.A. 9. Such an analysis was an abuse of
discretion. It is “axiomatic that ‘matters of public
knowledge or of general knowledge in an industry cannot
be appropriated’ by an entity as a trade secret.” Allstate
Ins. Co. v. Fougere, 79 F.4th 172, 189 (1st Cir. 2023) (alter-
ation omitted) (quoting Burten v. Milton Bradley Co.,
763 F.2d 461, 463 n.2 (1st Cir. 1985)). Although “[n]ovelty,
in the patent law sense, is not required for a trade se-
cret, . . . some novelty will be required if merely because
that which does not possess novelty is usually known; se-
crecy, in the context of trade secrets, thus implies at least
minimal novelty.” Kewanee Oil, 416 U.S. at 476. If partic-
ular components of the OmniPod are not novel because
they have become matters of public knowledge either
through a patent disclosure or otherwise, then the specifi-
cations for those components are unlikely to merit trade
secret protection.
The analysis under § 1839(3)(B) further requires that
the information at issue have independent economic value.
See Allstate Ins., 79 F.4th at 190 (describing the economic
value prong as “a key factor for determining whether or
not . . . information may be defined as trade secrets”). Alt-
hough the district court identified that the “value of a small
number of secrets that solve critical problems can be
greater than the sum of its parts,” J.A. 11, it did not suffi-
ciently evaluate whether or not the information that In-
sulet asserted deserved trade secret protection had
independent economic value.
Inherent in the definition of misappropriation is that
there is a trade secret to be misappropriated. 18 U.S.C.
§ 1839(5). Because the court failed to identify any trade
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INSULET CORP . v. EOFLOW , CO. LTD. 12
secret with sufficient particularity, its analysis of misap-
propriation necessarily also fails.
Still further, there is a mismatch between the court’s
grant of a sweeping injunction and its recognition that In-
sulet had failed to establish that “EOFlow had knowingly
benefited from” the full swath of information covered in the
injunction. See J.A. 10 (noting that it “may be true” that
EOFlow did not knowingly benefit from “some subset of in-
formation. It’s hard to tell at this point. . . . It is certainly
possible that there are innocent explanations for some of
this.”); see also Dkt. No. 351 at 53−54 (acknowledging that
the court’s “initial preliminary injunction was sweeping, it
was intended to be sweeping”). Even if the timing of
EOFlow’s product development seemed suspiciously accel-
erated following the arrival of four former Insulet employ-
ees, that does not obviate the need to prove the existence of
trade secrets, or that the defendants knowingly benefited
from them, or the full satisfaction of each of the four pre-
liminary injunction factors.
In view of the failure to address the statute of limita-
tions, the lack of a tailored analysis as to what specific in-
formation actually constituted a trade secret, as well as the
finding that it was “hard to tell” what subset of that infor-
mation was likely to have been misappropriated by
EOFlow, we find that the district court abused its discre-
tion in granting the October 24, 2023 preliminary injunc-
tion. See Winter, 555 U.S. at 22 (holding that preliminary
injunctions “may only be awarded upon a clear showing
that the plaintiff is entitled to such relief” (emphasis
added)).
II
EOFlow further contends that the district court abused
its discretion in reaching its findings as to irreparable
harm and the public interest. We agree with EOFlow.
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In particular, the district court began by holding that,
under EEOC v. Astra USA, Inc., 94 F.3d 738 (1st Cir.
1996), “when [the] likelihood of success on the merits is
great, a movant can show somewhat less in the way of ir-
reparable harm.” J.A. 12. But to the extent the district
court was indicating that a strong showing on likelihood of
success meant the plaintiff did not also have to establish
irreparable harm, that is incorrect. In Winter, the Su-
preme Court held that even if the plaintiff demonstrates a
strong likelihood of prevailing on the merits, a preliminary
injunction may only be entered if the plaintiff further es-
tablishes that irreparable injury is likely in the absence of
an injunction. 555 U.S. at 21−22; see also Sosa v. Mass.
Dep’t of Corr., 80 F.4th 15, 25 (1st Cir. 2023) (confirming
that “a plaintiff ‘must establish’” all four preliminary in-
junction factors in view of Winter). Here, the court found
that the irreparable harm prong had been satisfied “partic-
ularly [] because the evidence of likely success on the mer-
its is strong.” J.A. 21−22. That conclusion was based on
an error of law.
But even if the district court had provided a more ful-
some analysis on irreparable harm, such a finding “must
be grounded on something more than conjecture, surmise,
or a party’s unsubstantiated fears of what the future may
have in store.” Charlesbank Equity Fund II v. Blinds To
Go., Inc., 370 F.3d 151, 162 (1st Cir. 2004). Here, the al-
leged harm that the court deemed irreparable was not the
acquisition, use, or disclosure of trade secrets but instead a
potential commercial transaction. In particular, the court
held that “[w]hat is immediate or reasonably immediate is
the acquisition by Medtronic that would be a source of cap-
ital for EOFlow, and, again, not just money but all the
other things that come with it, regulatory expertise, mar-
keting expertise, manufacturing expertise, customer sup-
port networks, the panoply of things that are required to
be a real competitor.” J.A. 20. But neither a generalized
fear of a larger competitor nor any theoretical sale that can
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be remedied with damages constitutes a cognizable irrepa-
rable harm. The district court found that the relevant com-
petitive harm was “losing market share and having your
pricing undercut by a competitor who did not have to spend
the same time and money on research and development.”
J.A. 21. But the court cites no evidence to support that
finding. The Medtronic acquisition may have been ex-
pected to cause these or other harmful results – but on the
record before the court such a finding was nothing more
than mere “conjecture.”
Finally, we share EOFlow’s view that the district court
failed to meaningfully engage with the public interest
prong, holding only that it “s[aw] little impact one way or
the other.” J.A. 22. That type of cursory analysis is gener-
ally deficient. See Winter, 555 U.S. at 26 (“Despite the im-
portance of assessing the balance of equities and the public
interest in determining whether to grant a preliminary in-
junction, the District Court addressed these considerations
in only a cursory fashion.”).
Insulet nevertheless suggests that even if the district
court’s rationales for granting the preliminary injunction
were lacking, under the law of the First Circuit, we could
nevertheless affirm “on any grounds supported by the rec-
ord.” Appellee’s Br. at 36 (quoting SEC v. Fife, 311 F.3d 1,
8 (1st Cir. 2002)). But that alternative path to affirmance
is inaccessible here. The record simply does not support an
injunction. See New Comm Wireless Servs., Inc. v. Sprint-
Com, Inc., 287 F.3d 1, 13 (1st Cir. 2002) (First Circuit “or-
dinarily will not uphold a preliminary injunction on a
ground that was not fully addressed by the trial court”).
Moreover, the concerns that Insulet raised as likely to
cause immediate irreparable harm have since been mooted.
During the pendency of this appeal, EOFlow confirmed
that the Medtronic acquisition deal “has since been killed.”
Appellants’ Reply Br. at 23. Although Insulet questions
the veracity of this representation, see, e.g., Appellee’s Br.
at 57–58, the record is one on which none of the purported
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rationales for irreparable harm remain, and without such
harm, there can be no injunction. See Charlesbank Equity
Fund II, 370 F.3d at 162 (“[I]rreparable harm constitutes a
necessary threshold showing for an award of preliminary
injunctive relief.”).
CONCLUSION
We conclude by noting what we have not decided. We
have not found that Insulet has failed to adequately allege
misappropriation of trade secrets or that it cannot succeed
on the merits of its claims. We are asked here only whether
Insulet has proven a likelihood of success on the merits
(and the other factors for a preliminary injunction) and we
find that, to date, it has not shown such a likelihood. The
ultimate disposition of Insulet’s claims will have to be de-
termined through further proceedings.
We have considered Insulet’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
lift our stay of the October 24, 2023 preliminary injunction
enjoining EOFlow, reverse the grant of that preliminary
injunction, and remand for further proceedings consistent
with this opinion.2
REVERSED AND REMANDED
COSTS
No costs.
2 The April 24, 2024 second amended preliminary in-
junction is not before us as part of this appeal, but to the
extent it relies on reasoning similar to that which resulted
in the October 24, 2023 order, the district court should con-
sider retracting the April 24, 2024 order in view of this
opinion.
Case: 24-1137 Document: 49 Page: 15 Filed: 06/17/2024

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