Wells Fargo & Company; Wells Fargo Insurance Services USA, Inc. v. ABD INSURANCE & FINANCIAL SERVICES, INC., FKA Insurance Leadership Network, Inc.

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WELLS FARGO & COMPANY; WELLS
FARGO INSURANCE SERVICES USA,
INC.,
Plaintiffs - Appellants,
v.
ABD INSURANCE & FINANCIAL
SERVICES, INC., FKA Insurance
Leadership Network, Inc.; KURT DE
GROSZ; BRIAN HETHERINGTON,
Defendants - Appellees.
No. 13-15625
D.C. No. 4:12-cv-03856-PJH
Northern District of California,
Oakland
ORDER
Before: HAWKINS, GOULD, and PAEZ, Circuit Judges.
Appellee’s Petition for Rehearing is DENIED.
The full court has been advised of the Petition for Rehearing En Banc and no
judge of the court has requested a vote on the Petition for Rehearing En Banc. Fed.
R. App. P. 35. Appellee’s Petition for Rehearing En Banc is also DENIED.
The memorandum disposition filed on December 20, 2013, is AMENDED
as follows.
The second to last paragraph states:
We also note that although the district court did not abuse its
discretion by omitting consideration of the false affiliation claim
FILED
FEB 06 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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because it was not properly raised below, we see no reason why that
claim cannot be raised on remand and therefore hold that Wells Fargo
can address any false affiliation claims it has in further proceedings
consistent with this memorandum disposition.
The second to last paragraph is deleted in its entirety and replaced with the
following language:
We also note that although the district court did not abuse its
discretion by omitting consideration of the false affiliation claim
because it was not properly raised below, we see no reason why that
claim cannot be raised on remand and therefore hold that Wells Fargo
can address any false affiliation claims it has in further proceedings
consistent with this memorandum disposition. We further note that
the district court determined that Wells Fargo failed to establish that it
would likely suffer irreparable harm if a preliminary injunction did
not issue. In light of our recent decision in Herb Reed Enterprises,
LLC v. Florida Entertainment Management, Inc., 736 F.3d 1239 (9th
Cir. 2013), we decline to address this issue. Because neither the
district court nor the parties had the benefit of Reed, the district court
should revisit the issue of irreparable harm on remand. See id. at 1250
("Evidence of loss of control over business reputation and damage to
goodwill could constitute irreparable harm.").
No further petitions for rehearing or rehearing en banc will be
accepted.
IT IS SO ORDERED.

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