Constellation Wants to Stay an Injunction by Turning the Status Quo on Its Head

Keep everything the same—by letting us leave. That captures the practical problem with Constellation’s November 6 motion to stay CDC’s preliminary injunction pending appeal. After a judge preserved its 18-year relationship with Molson Coors-owned Coors Distributing Company, Constellation now wants permission to proceed toward the exit. The supplier says maintaining the relationship threatens its brands. Ending it would eliminate the relationship the injunction protects.

Our earlier coverage examined Colorado’s termination statute and the contract provisions that put distributors under pressure. This round asks what remains of temporary protection if the losing party can obtain substantially the opposite practical result through a stay.

Now the Supplier Claims Irreparable Harm

Constellation’s supporting declaration alleges that CDC now requires 72 hours’ notice for access to point-of-sale materials, has changed business reviews, and has resisted longer-term signage investments. It also complains that CDC demanded written proof of Constellation’s SpikedAde acquisition. These remain allegations, not established misconduct. See Declaration ¶11.

The supplier’s claimed injuries sound familiar: lost retail placements, weakened relationships, missed promotions, and damage that sales figures cannot fully capture. Yet its motion tells CDC that a contractual termination-payment formula supplies an adequate remedy. CDC’s goodwill apparently comes with a ready-made price tag; Constellation’s brand momentum resists valuation. Different parties can suffer different injuries, of course. But Constellation must substantiate that distinction, not merely reverse the original injunction arguments.

Reconsideration Dressed Up as a Stay?

That describes the filing’s practical ambition. It revisits termination rights, compensation, and irreparable harm to undo the protection CDC just obtained. But repetition alone does not make a stay improper: Rule 62(c) expressly permits interim suspension or modification during appeal.

The important qualification appears in Molitor v. Anderson, 795 P.2d 266, 270 (Colo. 1990). While recognizing Rule 62(c)’s exception to appellate divestiture, the Supreme Court recounted Rivera’s limit: the rule does not authorize an order “which alters the rights granted or created by the original order.” Molitor itself concerned a Rule 60(b) request to vacate an appealed judgment—not this type of stay motion. Its discussion nevertheless makes the limitation impossible to ignore.

In Rivera v. Civil Service Commission, 529 P.2d 1347, 1348–49 (Colo. App. 1974), the court distinguished preserving rights pending appeal from substantively altering them. For the latter modification, it directed the movant to “petition the appellate court to remand the case.” It ultimately arranged a limited remand rather than treating the injunction as untouchable.

So jurisdiction has not simply vanished. The question concerns the relief requested: temporary protection during appellate review, or a substantive alteration that requires appellate permission? CDC can argue that allowing termination and transfer would strip away the protection under review before the arbitrator can act. A stay label cannot answer that objection.

Arbitration Should Not Arrive After the Exit

Colorado’s Supreme Court explained why interim protection matters in Hughley v. Rocky Mountain Health Maintenance Organization, 927 P.2d 1325, 1332–33 (Colo. 1996): parties need recourse to ensure “the promise of arbitration is not hollow.” The court preserved the distinction between protecting an effective arbitral remedy and deciding the merits reserved for arbitration. That healthcare case does not guarantee relief in a beer dispute, but its procedural point matters here.

C.R.S. §13-22-208 permits provisional judicial protection before an arbitrator can act and restricts further judicial intervention afterward. As quoted on page 2 of Constellation’s motion, this injunction anticipates the arbitrator deciding whether protection should continue, while also reserving further court orders. It does not permanently award CDC the franchise.

Constellation’s conclusion declares: “The parties bargained for arbitration and a damages remedy, not an injunction.” Yet CDC’s complaint, ¶18, quotes §11.4’s reservation of “equitable proceedings to enforce its rights under this Agreement.” The payment clause must be reconciled with that reservation, not discussed as though it erased it.

The Termination Right Is Not the Whole Fight

Constellation has a serious textual argument under §44-3-408(3), which permits termination “at any time” on the prescribed 90-day notice. CDC has a separate, serious compensation argument: can §6.2’s advance release and two-times/one-times payment formula cut off greater damages the statute allows for an unlawful termination? Section 44-3-408(5)(a) entitles an aggrieved party to “recovery of damages caused by the violation.” Proven losses could substantially exceed twice the preceding year’s defined Net Effective Profit on Modelo brands and once that profit on other covered brands. The multiplier does not establish the value of CDC’s loss or settle whether the contractual limitation controls.

That does not mean every termination triggers a statutory fair-market-value buyout. Subsection (4)’s valuation process addresses specified successor-supplier transactions; subsection (5)(a) requires a statutory violation and proof of resulting damages. The question here concerns the enforceability of the contractual limitation, not an automatic statutory valuation.

Colorado’s beer statute contains no blanket antiwaiver clause. Still, Poudre School District R-1 v. Stanczyk, 2021 CO 57, ¶22, explains that “the ability to contract away statutory rights is limited by ‘countervailing public policy’ interests.” That employment decision preserved voluntary, arm’s-length waivers; it did not resolve this commercial agreement. Given the purpose of most franchise statutes it is not hard to fashion the story that to allow waiver of CDC’s fair market value by limiting it to the contractual amounts violates the public policy behind the statute.

Meanwhile, CDC must move arbitration forward. The motion says that, as of November 6, CDC had not filed its demand and had agreed to commence arbitration by November 18. Temporary protection should support prompt adjudication, not substitute for it.

For suppliers and wholesalers, the drafting lesson remains concrete: coordinate termination payments, statutory remedies, interim relief, and continued performance during a challenge. Letting the supplier leave does not preserve this distributorship. It changes it before the chosen decision-maker rules.