Recent federal cases demonstrate a trend toward requiring concrete proof that irreparable harm will occur in order for the court to grant a preliminary injunction. Preliminary injunctive relief remains an extraordinarily equitable remedy. Courts are requiring more and more evidence and data to demonstrate more than just a mere risk of irreparable harm is threatened. Practitioners must be vigilant to prove not only the reality of irreparable harm, but also that equity compels injunctive relief.

In Showhomes Franchise v. Estes, No. 3:25-cv-00982, 2026 WL 597705 (M.D. Tenn. March 3, 2026, the franchisor sought a preliminary injunction against post-termination competition by its former franchisees. The former franchisees simply continued to have the same business methods as the franchisor in the same geography. The franchisor asserted that it was threatened with irreparable harm. The former franchises were said to have impeded refranchising the area. The franchisor cited the likelihood of brand confusion and customer confusion through its supporting declaration. The district court nevertheless denied the request for preliminary injunction.

The district court held that the franchisor had not carried its burden to show that these parade of horribles were in fact likely to occur as a result of the defendants’ conduct. The district court noted that the declarations of the CEO set out only generalized concerns that the defendants’ conduct would harm Showhomes, rather than concrete evidence of likely future injury. The district court needed more than mere conclusory statements and wanted actual data points to show that irreparable harm was occurring, and that it was not merely a theoretical threat.

The U.S. Court of Appeals for the Sixth Circuit also decided a recent injunction case, Fetch! Pet Care v. Atomic Pawz, Case No. 25-1638 (6th Cir. Mar. 20, 2026)(Gibbons, Larsen, Murphy, JJ.) reminding us of the equitable nature of injunctive relief and the balancing of the harms. The court of appeals affirmed a district court’s partial denial of a franchisor’s request for a preliminary injunction, finding that the franchisor’s inequitable conduct barred some but not all of the injunctive relief, even where the franchisor showed a likelihood of success on certain claims.

In Fetch!, the franchisees broke away from the franchisor, stopped paying royalties, continued to use the trademark, downloaded client contact information, prepared transition plans and continued operating substantially the same business after the franchisor terminated their franchise agreements. The franchisor applied for a temporary restraining order to enjoin the continued breach of contract, trademark infringement and trade secret misappropriation.

The district court granted limited relief prohibiting the use of Fetch! trademarks and restrictions on communications but declined to enjoin the defendants from continuing to operate competing businesses. The defendant franchisees defended on the basis that the unclean hands of the franchisor supported a denial of an injunction against competition. The franchisees asserted that the franchisor fraudulently induced the franchises to enter into the franchise agreements, that the franchise offerings were misleading and that when a dispute occurred during the franchise relationship, the franchisor improperly cut off access to the franchisor’s systems.

On appeal, the Sixth Circuit reminded us that equitable doctrines, such as unclean hands, may independently bar equitable relief, and that preliminary injunctions were intended to put the parties in a holding pattern until final disposition of the merits. The circuit court recited the four-factor test used by most courts as explained in eBay v. MercExchange, 547 U.S. 338 (2006): likelihood of success on the merits; irreparable harm if the injunction is not granted; the balance of hardships between the parties; and the public interest.

With respect to proof of irreparable harm, the court held that competitive harms, such as loss of goodwill and customer relationships can qualify as irreparable harm precisely because they are difficult to quantify. The Sixth Circuit also held that irreparable harm does not require the existence of the entire business to be threatened.

Courts do vary on whether it is necessary to prove the likely destruction of a business in order to prove irreparable harm. In Autobar Systems of New Jersey, dba Total Liquor Controls v. Berg, (3d. Cir. 2025), the case was remanded to the district court for determination of whether the movant’s business would be destroyed if an injunction is not granted. Judge Stephanos Bibas writing for the panel referenced Instant Air Freight v. C.F. Air Freight, 882 F.2d 797, 802-03 (3d. Cir. 1989), noting merely losing 80% of its revenue is not proof of irreparable harm where the business could have replaced that revenue.

The courts are trending toward requiring more than recitation of possible threats of irreparable harm, and looking for tangible proof. If the irreparable harm is loss of market share or price erosion, courts might expect an expert opinion on the proof of that type of loss. Artificial intelligence will not replace the required lawyering to prove up facts and equities for preliminary injunction motions.

Reprinted with permission from April 24, 2026 issue of The Legal Intelligencer© 2026 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.