UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JAY BENNETT, an individual; SIV No. 23-16082 BENNETT, an individual; KESHA MARKETING, INC., a Nevada S- D.C. No. Corporation, 2:23-cv-01061- DGC Plaintiffs - Appellees,

v. OPINION ISAGENIX INTERNATIONAL LLC, an Arizona Limited Liability Corporation,

Defendant - Appellant,

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 likel