SYKES, Circuit Judge.
Ali Alforookh manages and operates restaurants in Wisconsin, Illinois, and Missouri under franchise agreements with International House of Pancakes ("IHOP"). He created several companies to hold the IHOP franchises he acquired over the years, including A & F Enterprises, Inc. II. Alforookh and his companies (collectively "A & F") are currently in Chapter 11 bankruptcy proceedings. Their primary assets are 17 separate IHOP franchise agreements and the corresponding building and equipment leases.
The issue for us on this appeal, however, is slightly different. A & F and IHOP fought this legal battle in bankruptcy court, and A & F lost on the merits. The bankruptcy judge issued orders deeming the building leases rejected and the franchise agreements and equipment leases expired. A & F appealed this decision to the district court. A & F also sought a stay pending appeal, which both the bankruptcy court and the district court denied. Both courts thought that A & F's position lacked merit because the text of § 365(d)(4) contains no exception for leases tied to franchises. A & F filed this appeal seeking review of the district court's order denying the stay and also moved for an emergency stay. We granted the emergency motion and issued a stay order freezing the status quo during the
The standard for granting a stay pending appeal mirrors that for granting a preliminary injunction. In re Forty-Eight Insulations, Inc., 115 F.3d 1294, 1300 (7th Cir.1997). Stays, like preliminary injunctions, are necessary to mitigate the damage that can be done during the interim period before a legal issue is finally resolved on its merits. The goal is to minimize the costs of error. See Stuller, Inc. v. Steak N Shake Enters., Inc., 695 F.3d 676, 678 (7th Cir.2012); Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 388 (7th Cir.1984). To determine whether to grant a stay, we consider the moving party's likelihood of success on the merits, the irreparable harm that will result to each side if the stay is either granted or denied in error, and whether the public interest favors one side or the other. See Cavel Int'l, Inc. v. Madigan, 500 F.3d 544, 547-48 (7th Cir.2007); Sofinet v. INS, 188 F.3d 703, 706 (7th Cir.1999); In re Forty-Eight Insulations, 115 F.3d at 1300. As with a motion for a preliminary injunction, a "sliding scale" approach applies; the greater the moving party's likelihood of success on the merits, the less heavily the balance of harms must weigh in its favor, and vice versa. Cavel, 500 F.3d at 547-48; Sofinet, 188 F.3d at 707. An unusual twist here is that the stay issue comes to us in the context of a bankruptcy appeal to the district court. But our jurisdiction is secure under 28 U.S.C. § 1292(a). See In re Forty-Eight Insulations, 115 F.3d at 1300. The district judge denied the stay after concluding that A & F was not likely to succeed on the merits; although other aspects of a stay decision are reviewed deferentially, this is a legal conclusion that we review de novo. Id. at 1301.
The contractual relationship between the parties is undisputed. For all but four of the restaurants, there are three separate contracts: a franchise agreement, a building sublease (IHOP leases the buildings from third parties and subleases them to A & F), and an equipment lease, all of which contain cross-default provisions
IHOP maintains that the text of § 365(d)(4) plainly controls, leaving no room for an exception for franchise-bound leases. It cites Sunbeam Products, Inc. v. Chicago American Manufacturing, LLC, 686 F.3d 372 (7th Cir.2012), in which we warned bankruptcy courts not to create equitable exceptions to clear provisions of the bankruptcy code. But the code is not so clear in this case. While it's undeniable that § 365(d)(4)'s 120-day time limit controls stand-alone leases, it's equally undeniable that § 365(d)(2)'s longer time limit controls stand-alone franchise agreements. When a franchise agreement and a lease are inseparable, one time limit or the other will control both. In the same way that applying § 365(d)(2)'s time limit to the entire arrangement creates an "exception" for certain leases, applying § 365(d)(4)'s time limit creates an "exception" for certain franchises. Granted, the two possibilities are not perfectly symmetrical because one result permits something the code forbids (assuming a lease beyond 120 days) while the other result prevents something the code permits (assuming a franchise agreement beyond 120 days). This is a distinction without a difference, however, because a legal entitlement is lost either way: Either franchisees lose the right to assume franchise agreements at any time before confirmation of a plan, or lessors lose the right to have their leases assumed or rejected within 120 days. Creating an exception is unavoidable, so we have no choice but to look beyond the text.
There are powerful arguments in favor of A & F's position. Chapter 11 is premised on giving debtors a full opportunity to reorganize, and provisions like § 365(d)(4) that limit this opportunity are the exception, not the rule. The franchise agreement is clearly the dominant contract and the focus of the parties' bargaining, so prioritizing the lease lets the tail wag the dog. Furthermore, what little caselaw there is on this precise issue favors A & F's position. Two bankruptcy courts have held on nearly identical facts that § 365(d)(4) does not apply to a lease that is so tightly connected to a franchise arrangement. In re FPSDA I, LLC, 450 B.R. 392 (Bankr.E.D.N.Y.2011), petition for interlocutory appeal denied by 470 B.R. 257, 271 (E.D.N.Y.2012) (finding that
Because the legal issue does not have a clear-cut answer, we rest our decision on whether to grant the stay primarily on the balance of potential harms. We don't have the benefit of any factual findings — the bankruptcy judge denied A & F's request for an evidentiary hearing because he concluded that the legal question wasn't even close — but that doesn't preclude us from deciding whether to grant a stay. This analysis is at best a rough estimation, and we are persuaded that A & F has more to lose than IHOP.
A & F fears that it will permanently lose its franchises without a stay. If a stay is denied, IHOP, which wants to sell the franchises, may do so before A & F's appeal has finished. Both parties assume that if IHOP were able to find new franchisees, A & F would have no way to recover the franchises, even if it were to win on appeal. Although neither side offers support for that assumption, we note that under equitable principles in bankruptcy law, courts sometimes refuse to undo certain business transactions. SEC v. Wealth Mgmt. LLC, 628 F.3d 323, 331-32 (7th Cir.2010) (noting that it is a "fact-intensive" inquiry that weighs, among other things, "the effects ... on innocent third parties" and the "difficulty of reversing consummated transactions"); see also United States v. Buchman, 646 F.3d 409, 410 (7th Cir.2011) ("[A] completed [foreclosure] sale will not be upset."); In re UNR Indus., Inc., 20 F.3d 766, 769-70 (7th Cir. 1994). Therefore, we will assume without deciding that the parties are correct and that the sale of the franchises could not be undone.
Even so, IHOP argues that the loss of the franchises would not be irreparable because A & F could be fully compensated by money.
Valuation problems aside, damages are also insufficient to protect Alforookh's interest in continuing to operate his business of choice. See Roland Mach., 749 F.2d at 386 ("`[T]he right to continue a business in which William Semmes had engaged for twenty years and into which his son had recently entered is not measurable entirely in monetary terms; the Semmes want to sell automobiles, not to live on the income from a damages award.'" (quoting Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1205 (2nd Cir.1970))); Stuller, Inc. v. Steak N Shake Enters., Inc., 10-CV-3303, 2011 WL 2473330, at *11 (C.D.Ill. June 22, 2011) ("The loss or threatened loss of a franchise can constitute irreparable harm." (citing Semmes Motors, 429 F.2d at 1205)), aff'd, 695 F.3d 676 (7th Cir.2012). Chapter 11 is intended to "permit[ ] business debtors to reorganize and restructure their debts in order to revive the debtors' businesses." Toibb, 501 U.S. at 163, 111 S.Ct. 2197. We have held, along with other circuits, that a conversion from Chapter 11 to Chapter 7 is a final appealable order in part because the loss of an opportunity to reorganize is irreparable. In re USA Baby, Inc., 674 F.3d 882, 883 (7th Cir.2012) (holding that conversion is "final in the practical sense that a Chapter 7 proceeding results in liquidation, depriving the debtor of the chance he would have in a Chapter 11 proceeding to reorganize and continue as a going concern"); In re Rosson, 545 F.3d 764, 770 (9th Cir.2008) ("[B]ecause a conversion to Chapter 7 takes control of the estate out of the hands of the debtor, it seriously affects substantive rights and may lead to irreparable harm to the debtor if immediate review is denied."). And as we've already noted, a sale of the restaurants would put an end to A & F's hopes of reorganization. IHOP's only response is that A & F is unlikely to be able to achieve a successful reorganization, but IHOP can't expect us to assess the likely outcome of the entire bankruptcy at this stage. We have no trouble finding that there would be significant, irreparable harm to A & F were we to deny the stay.
On the other side, IHOP contends that the goodwill associated with its trademark will be damaged if A & F continues to operate its restaurants while the appeal is pending. IHOP points us to customer complaints, failed inspections, some bad press at one location, and a temporary shutdown at two other locations due to a licensing issue. As IHOP reminds us, we have frequently said that trademark violations are irreparable, primarily because injuries to reputation and goodwill are nearly impossible to measure. E.g., Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 16 (7th Cir.1992). A & F responds that a few isolated problems are a normal part of operating restaurants and that it has dealt swiftly with them as they've come up. We have no way of determining who is right, especially without the benefit of any evidentiary findings below. That said, IHOP does not argue (at least to us) that any of these issues are material breaches that themselves would warrant termination of the franchise agreements. And all the cases that IHOP cites in which franchisees were preliminarily enjoined from continued use of the franchisor's trademark involved franchise agreements that had either already terminated or were clearly breached. E.g., Re/Max N. Cent., Inc. v. Cook, 272 F.3d 424 (7th Cir.2001) (repeated attempts to negotiate renewal terms had failed and the franchise agreement
Because A & F has demonstrated a likelihood of success on the merits and the potential harm to A & F is greater than that to IHOP, a stay is warranted. Accordingly, the district court's order denying A & F's motion for a stay is REVERSED. Our emergency stay shall remain in place. Enforcement of the bankruptcy court orders dated August 5, 2013, and September 18, 2013, deeming the debtors' leases and subleases rejected, and the order dated September 23, 2013, deeming the debtors' franchise agreements and equipment leases expired, is stayed until final disposition of A & F's appeal.