Chazz Clevinger v. Advocacy Holdings, Inc., D/b/a Oneclickpolitics

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 26, 2024 Decided April 25, 2025
No. 23-7116
CHAZZ CLEVINGER,
APPELLEE
v.
ADVOCACY HOLDINGS, INC., D/B/A ONECLICKPOLITICS,
APPELLANT
RAYMOND ZENKICH, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:23-cv-01159)
Anand Vijay Ramana argued the cause for appellant. With
him on the briefs was Lyndsey Marie Wajert.
Kenneth E. Chase argued the cause and filed the brief for
appellee.
Before: PILLARD and WALKER, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge WALKER.

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WALKER, Circuit Judge: Advocacy Holdings sued its
former CEO for breach of a noncompete agreement. The
district court partially denied Advocacy’s motion for a
preliminary injunction, holding that Advocacy had not
established a likelihood of irreparable harm. We affirm.
I. Background
Advocacy Holdings helps clients influence public policy.
Among its tools is an online platform called
OneClickPolitics. The platform connects a client’s supporters
to legislators and other policymakers through emails, social
media, and telephone calls. Who We Are,
OneClickPolitics, https://perma.cc/D6CS-ALE6; Testimoni-
als, OneClickPolitics, https://perma.cc/AV4A-W7WR.
In 2016, Advocacy made Chazz Clevinger its Vice
President. Later, it promoted him to CEO. After that,
Clevinger signed an employment agreement, which includes a
noncompete provision. It provides that when Clevinger’s
employment ends, he cannot compete with Advocacy for one
year, cannot solicit its customers for one year, and cannot use
its confidential information for five years. The agreement also
contains a stipulation that Advocacy will suffer “irreparable
harm” if Clevinger “violates any of the restrictions or
obligations set forth.” JA 74.
In 2023, Clevinger resigned and — according to
Advocacy — flagrantly violated the noncompete agreement.
He allegedly stole Advocacy’s customer list, started two
competing businesses, solicited Advocacy’s customers, falsely
told them Advocacy was closing its lobbying services, and
created a near duplicate of a soon-to-be-released version of
Advocacy’s OneClickPolitics platform. Advocacy says that

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Clevinger even replicated OneClickPolitics’ typos on his new
platform.
Advocacy sued Clevinger for breach of the noncompete
agreement. It moved to preliminarily enjoin Clevinger’s
alleged conduct. But the district court denied the motion,
holding that Advocacy had not established that it would suffer
irreparable harm absent injunctive relief.
Advocacy moved for reconsideration, attaching additional
evidence that it says shows how Clevinger copied
OneClickPolitics. In response, the district court partially
granted Advocacy’s motion and enjoined Clevinger “from
using Advocacy Holdings’ platform design and interface.”
Clevinger v. Advocacy Holdings, Inc., Nos. 23-1159, 23-1176,
2023 WL 5220570, at *3 (D.D.C. Aug. 15, 2023). But the court
declined to enjoin Clevinger from operating his competing
businesses or from soliciting Advocacy’s customers.
Advocacy then appealed the district court’s partial denial
of the preliminary injunction.
We affirm.
II. Analysis
To obtain a preliminary injunction, a movant “must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter v. Natural
Resources Defense Council, Inc., 555 U.S. 7, 20 (2008).
We review a district court’s legal conclusions de
novo — including its legal conclusion about the likelihood of

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irreparable harm. Huisha-Huisha v. Mayorkas, 27 F.4th 718,
726 (D.C. Cir. 2022). We review any weighing of the
preliminary injunction factors for abuse of discretion. Id. And
we accept a district court’s factual findings unless they are
clearly erroneous. Id.
A. Advocacy Has Not Shown Irreparable Harm
Advocacy Holdings says it will suffer two principal
injuries without a preliminary injunction: (1) loss of customers
(because Clevinger allegedly solicited its clients); and (2)
reputational harm (because Clevinger allegedly misrepresented
Advocacy’s future plans).1 We agree with the district court
that, in the context of this case, those injuries are not
irreparable.
1 Advocacy devotes two sentences to a third alleged injury, “loss of
customer trust and goodwill” from Clevinger’s alleged “misuse
of . . . confidential and or proprietary information.” Appellant’s Br.
34. To the extent this argument is preserved, it fails on the merits.
See Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 2005)
(“It is not enough merely to mention a possible argument in the most
skeletal way, leaving the court to do counsel’s work” (cleaned up)).
The only case Advocacy cites in support of this alleged injury dealt
with a far different situation. See Appellant’s Br. 34 (citing Morgan
Stanley DW Inc. v. Rothe, 150 F. Supp. 2d 67, 77 (D.D.C. 2001)).
There, a former employee took “extremely private and sensitive”
client financial information from his employer “without the clients’
permission,” risking “a loss of trust and goodwill” from clients who
may “feel that their personal information is not safe with the
plaintiff.” Rothe, 150 F. Supp. 2d at 77-78. Here, Advocacy alleges
only that Clevinger took customer “contacts” — information far less
likely to impair “customer trust and goodwill” than the sensitive
financial information at issue in Rothe. Id. at 77.

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1. The Standard for Irreparable Harm
We are mindful of the “high standard for irreparable
injury.” Chaplaincy of Full Gospel Churches v. England, 454
F.3d 290, 297 (D.C. Cir. 2006). Such an injury “must be both
certain and great.” Wisconsin Gas Co. v. FERC, 758 F.2d 669,
674 (D.C. Cir. 1985). “Mere injuries, however substantial, in
terms of money, time and energy necessarily expended in the
absence of a” preliminary injunction “are not
enough.” Virginia Petroleum Jobbers Association v. Federal
Power Commission, 259 F.2d 921, 925 (D.C. Cir. 1958).
We are also mindful that rigid rules and equity principles
mix like oil and water. So not surprisingly, no categorical rule
precludes preliminary injunctions that protect noncompete
agreements. In some cases, breaches of a noncompete must be
preliminarily enjoined because “economic losses from the
breach are either incalculable or so substantial as to threaten
the employer’s ability to stay in business.” Hospitality Staffing
Solutions, LLC v. Reyes, 736 F. Supp. 2d 192, 199 (D.D.C.
2010). But in other cases, courts can remedy the breach of a
noncompete agreement with compensatory relief. And the
“possibility that adequate compensatory or other corrective
relief will be available at a later date, in the ordinary course of
litigation, weighs heavily against a claim of irreparable
harm.” Virginia Petroleum, 259 F.2d at 925.
2. Loss-of-Customers Injury
Advocacy says that without a preliminary injunction, it
will lose customers. But Advocacy has failed to show that its
loss of customers will mean more than lost revenue — a
financial injury. And financial injuries are rarely irreparable
because they are presumptively remediable through monetary
damages. Wisconsin Gas, 758 F.2d at 674.

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Advocacy asserts that it would be impossible “to even
generally calculate the loss of future revenues from stolen
customers.” Appellant’s Br. 35. But Advocacy doesn’t
substantiate that claim. To the contrary, courts often find
damages from the loss of customers to be calculable. See,
e.g., Economic Research Services, Inc. v. Resolution
Economics, LLC, 140 F. Supp. 3d 47, 52-53 (D.D.C. 2015);
Reyes, 736 F. Supp. 2d at 200. Advocacy has provided no
persuasive reason why that isn’t true here.
Nor is Advocacy’s financial injury so great as to threaten
its continued existence. Indeed, Advocacy stated in its opening
brief that it is “performing better than ever.” Appellant’s Br.
36. And it told the district court that it is “roughly cash flow
break even” and “not going out of business any time soon.”
JA 692. Accordingly, the district court did not clearly err in
finding that Advocacy is not going out of business. Clevinger
v. Advocacy Holdings, Inc., Nos. 23-1159, 23-1176, 2023 WL
4560839, at *6 (D.D.C. July 15, 2023).
In short, Advocacy has failed to show that its loss of
customers cannot be remedied through monetary damages
should it prevail at the close of litigation.
3. Reputational Injury
Next up is Advocacy’s reputational injury. It stems from
alleged misrepresentations Clevinger made to Advocacy’s
customers while soliciting them. Clevinger allegedly led
customers to believe that (1) Advocacy was “closing,” (2) there
were “major changes underway,” and (3) Advocacy was
“transitioning to another platform.” Appellant’s Br. 36.

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The problem for Advocacy is that there’s “nothing in the
record to suggest” that Clevinger directed the claimed
misrepresentations to anyone besides the Advocacy customers
he solicited. Oral Arg. Tr. 21. Nor has Advocacy demonstrated
that those customers passed along those misrepresentations to
anyone else. So Clevinger’s alleged misrepresentations led, at
worst, to a loss of Advocacy’s customers. And that returns us
to a loss-of-customers injury that is remediable with monetary
damages. See supra Section II.A.2.
4. The Stipulation of Irreparable Harm
Finally, Advocacy points to a stipulation of irreparable
harm in the noncompete agreement. But Advocacy
acknowledges that it “didn’t make any explicit arguments”
about the stipulation “in the initial preliminary injunction
motion,” and it has no excuse for not doing so when the
stipulation was fully available to Advocacy before it filed its
initial motion for a preliminary injunction. Oral Arg. Tr.
5. Because Advocacy forfeited reliance on the stipulation, we
decline to consider it. See GSS Group Ltd. v. National Port
Authority, 680 F.3d 805, 812 (D.C. Cir. 2012).
B. Advocacy Cannot Obtain a Preliminary Injunction
Without Showing Irreparable Harm
Advocacy also argues that the district court erred by not
evaluating all four preliminary injunction factors under a
“holistic, sliding-scale analysis.” Appellant’s Reply Br. 6.
Under that approach, a movant’s failure to establish one of the
four factors does not always doom its motion for a preliminary
injunction. On the sliding scale, at least sometimes, “a strong
showing on one factor could make up for a weaker showing on
another.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir.
2011).

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It is questionable that the sliding scale approach remains
good law after 2008, when the Supreme Court decided Winter
v. Natural Resources Defense Council, Inc. That opinion can
be read to require movants to establish each preliminary
injunction factor independently. 555 U.S. 7, 20-22 (2008).
But we have (somehow) gone seventeen years without needing
to say if Winter really meant what it can be read to have said.2
One day, we will need to answer that question. But not
today. Advocacy forfeited its sliding-scale argument by not
raising that argument until its reply brief. See McBride v.
Merrell Dow & Pharmaceuticals, Inc., 800 F.2d 1208, 1210-
11 (D.C. Cir. 1986). And in any event, even under the sliding-
scale approach, a “movant’s failure to show any irreparable
harm is . . . grounds for refusing to issue a preliminary
injunction, even if the other three factors . . . merit such
relief.” Chaplaincy, 454 F.3d at 297; see also CityFed
Financial Corp. v. Office of Thrift Supervision, 58 F.3d 738,
747 (D.C. Cir. 1995); cf. Labrador v. Poe ex rel. Poe, 144 S.
Ct. 921, 929 (2024) (Kavanaugh, J., concurring) (“If the
moving party has not demonstrated irreparable harm, then this
Court can avoid delving into the merits.”).3 So the district court
2 See, e.g., Davis v. Pension Benefit Guaranty Corp., 571 F.3d 1288,
1292 (D.C. Cir. 2009); Sherley, 644 F.3d at 393; Aamer v. Obama,
742 F.3d 1023, 1043 (D.C. Cir. 2014); League of Women Voters of
United States v. Newby, 838 F.3d 1, 7 (D.C. Cir. 2016); Archdiocese
of Washington v. Washington Metropolitan Area Transit Authority,
897 F.3d 314, 334 (D.C. Cir. 2018); Changji Esquel Textile Co. v.
Raimondo, 40 F.4th 716, 726 (D.C. Cir. 2022); cf. Starbucks Corp.
v. McKinney, 144 S. Ct. 1570, 1574 (2024) (“the traditional four-
factor test”); see also id. at 1579 (four “equitable factors”).
3 We have also declined to “proceed to review the other three
preliminary injunction factors” when the movant has “shown no

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did not err in declining to evaluate the remaining preliminary
injunction factors.
III. Conclusion
We understand the contempt for Clevinger’s alleged
conduct expressed in Advocacy’s briefs. But Advocacy has not
demonstrated that it needs a preliminary injunction to fix the
injuries at issue in this appeal. If Advocacy can prove what it
alleges, the district court can order Clevinger to compensate
Advocacy for its injuries with monetary damages.
For that reason, we affirm the order of the district court.
So ordered.
likelihood of success on the merits.” Arkansas Dairy Cooperative
Association, Inc. v. U.S. Department of Agriculture, 573 F.3d 815,
832 (D.C. Cir. 2009); see also Apotex, Inc. v. FDA, 449 F.3d 1249,
1253-54 (D.C. Cir. 2006).

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