OPINION
In life, sometimes its better to show up late than not at all. But in law, tardiness can be costly. Here, the parties’ counsel received several extensions of this courts briefing deadlines. In the meantime, the clock struck midnight on the underlying issue. As a result, this appeal is now moot.
I.
Brianna Shaw left her job at Marketing Displays International (MDI) and began working for another company. But MDI thought Shaws new employment violated her one-year noncompete agreement, so it sued. During the litigation, MDI sought a preliminary injunction, which the district court granted on December 14, 2022. Mktg. Displays Intl v. Shaw, 646 F. Supp. 3d 897, 900 (E.D. Mich. 2022). Relevant here, the injunction prevented Shaw from working for her new employer for one year. Id. at 908.
Shaw appealed in January 2023. After several months of mediation, the parties began filing their appellate briefs in June. But because of six deadline extensions—three requested by each party—the parties didnt finish their briefing until January 2024.
On appeal, Shaw challenges only the part of the injunction that prevented her from working for her new employer. But that part expired on December 14, 2023, so this appeal is moot. See, e.g., Radiant Glob. Logistics, Inc. v. Furstenau, 951 F.3d 393, 395–96 (6th Cir. 2020) (per curiam).
II.
Shaw argues otherwise. She posits that a ruling in this appeal would impact (1) her ability to recover from MDI any damages, including reputational harms, caused by the preliminary injunction and (2) MDIs ability to recover attorney fees from her. See Coal. for Govt Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435, 458 (6th Cir. 2004) (“The test for mootness is whether the relief sought would, if granted, make a difference to the legal interests of the parties.” (internal quotation marks omitted)). But this appeal doesnt impact either of those interests. So neither saves this appeal from mootness.
Shaws Recovery Against MDI. When a preliminary injunction is wrongfully issued, defendants may recover damages that they incurred by complying with it. See, e.g., Fed. R. Civ. P. 65(c). This prospect of recovery keeps a case from becoming moot, even after the preliminary injunction expires—and even if, as here, the plaintiff didnt post an injunction bond. See Intl Union, UAW v. LaSalle Mach. Tool, Inc., 696 F.2d 452, 459 (6th Cir. 1982). Indeed, as the district court noted when it granted the preliminary injunction, MDI might be subject to “collection” if it doesnt prevail on the merits. Mktg. Displays Intl, 646 F. Supp. 3d at 908.
That said, Shaw cant collect these damages until she acquires a final judgment in her favor. See Univ. of Tex. v. Camenisch, 451 U.S. 390, 396–97, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). And here, the district court hasnt issued a final judgment on MDIs breach-of-contract claim. To be sure, the court found that MDI was likely to succeed on the merits. Mktg. Display Intl, 646 F. Supp. 3d at 902–06. But thats not a final judgment. So anything we might say about it on appeal wouldnt affect Shaws ability to recover damages. See Camenisch, 451 U.S. at 394, 101 S.Ct. 1830. Thus, her possible recovery at the end of the case doesnt save this appeal from mootness.
Attorney Fees. Under Shaws noncompete agreement, she agreed “to pay all costs incurred by MDI in enforcing the provisions of this Agreement, including reasonable attorney fees.” R. 3-3, Pg. ID 102. At the outset, there are at least two ways to read this provision. As written, it suggests MDI can recover any reasonable legal fees it incurs in enforcing the agreement—whether or not MDI prevails. See Kelly Servs., Inc. v. De Steno, 760 F. Appx 379, 383–84 (6th Cir. 2019) (endorsing this interpretation). On the other hand, under Michigan law, contractual attorney fees are a form of damages, not costs. E.g., Fleet Bus. Credit, LLC v. Krapohl Ford Lincoln Mercury Co., 274 Mich.App. 584, 735 N.W.2d 644, 648 (2007) (per curiam); see also R. 3-3, Pg. ID 102 (stipulating Michigan law controls). And to recover damages on a contract, a party must first prove a breach. Miller-Davis Co. v. Ahrens Constr., Inc., 495 Mich. 161, 848 N.W.2d 95, 104 (2014); see also Kelly, 760 F. Appx at 386 (Gibbons, J., concurring). In other words, under this interpretation, MDI wouldnt be able to recover attorney fees unless it first succeeds on its breach-of-contract claim. It hasnt yet.
We need not pick between these competing interpretations. Under either, MDIs right to attorney fees doesnt hinge on the validity of the preliminary injunction. Thus, attorney fees cant resuscitate this appeal, either.
Neither Shaws ability to recover damages nor MDIs right to attorney fees can save this appeal from mootness. They do, however, prevent this case from being moot. See Ohio v. EPA, 969 F.3d 306, 309 (6th Cir. 2020); Camenisch, 451 U.S. at 396, 101 S.Ct. 1830. So while we dismiss this appeal, we remand the case for further proceedings on the merits. The outcome of MDIs breach-of-contract claim will determine whether Shaw can recover from MDI. And it might impact MDIs ability to recover attorney fees.
III.
Lastly, Shaw asks us to vacate the moot portion of the preliminary injunction. The decision to vacate a lower courts moot order is left to our equitable discretion. See Coal. for Govt Procurement, 365 F.3d at 484; United States v. Munsingwear, Inc., 340 U.S. 36, 39–40, 71 S.Ct. 104, 95 L.Ed. 36 (1950). Three criteria guide our exercise of that discretion. First, a party must ask for vacatur. See Munsingwear, 340 U.S. at 40, 71 S.Ct. 104; Radiant, 951 F.3d at 397. Second, and most importantly, well vacate an order only if leaving it in place would have a preclusive effect on subsequent litigation. See Radiant, 951 F.3d at 397; see also Fialka-Feldman v. Oakland Univ. Bd. of Trs., 639 F.3d 711, 716 (6th Cir. 2011). And third, were unlikely to grant vacatur when the party seeking it played a role in causing the orders mootness. U.S. Bancorp Mortg. Co. v. Bonner Mall Pship, 513 U.S. 18, 24–25, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994). As the party requesting relief, Shaw carries the burden of showing that she meets these criteria. Id. at 26, 115 S.Ct. 386. Since Shaw fails to satisfy the second and third prongs, vacatur is unwarranted.
Preclusive Effect. A district courts order sometimes precludes parties from relitigating the issues underlying that order. See Munsingwear, 340 U.S. at 40, 71 S.Ct. 104. But it wouldnt be fair to “compel [a] losing party to live with the ․ preclusive effects of [an] adverse ruling without having had a chance to appeal it.” Fialka-Feldman, 639 F.3d at 716. Thus, to “clear[ ] the path for future relitigation,” we typically vacate final orders that become moot pending appeal. Munsingwear, 340 U.S. at 40, 71 S.Ct. 104.
A moot preliminary injunction doesnt present these same issues. Moot preliminary-injunction orders usually have “no preclusive effect.” Radiant, 951 F.3d at 397 (quoting Gjertsen v. Bd. of Election Commrs, 751 F.2d 199, 202 (7th Cir. 1984) (Posner, J.)). Indeed, a courts resolution of issues in a preliminary-injunction order is never binding on a cases underlying merits. Camenisch, 451 U.S. at 395, 101 S.Ct. 1830. Thus, our circuit usually doesnt vacate them. See, e.g., Radiant, 951 F.3d at 396–97.
There are exceptions to this rule because, in some extraordinary cases, a moot preliminary injunction can have a preclusive effect on future litigation. See, e.g., Ohio, 969 F.3d at 310; cf. Lummus Co. v. Commonwealth Oil Refin. Co., 297 F.2d 80, 89 (2d Cir. 1961) (Friendly, J.). For example, consider our decision in Ohio v. Environmental Protection Agency. There, a district court denied the plaintiffs’ motion to preliminarily enjoin a 2015 EPA regulation. Ohio, 969 F.3d at 308. While the appeal of that denial was pending, the EPA repealed and replaced the challenged regulation. Id. We therefore dismissed the appeal as moot. Id. at 310. Contrary to the general rule, however, we also vacated the district courts preliminary-injunction order. Id. Thats because, at the time, it was “reasonably likely” the new regulation would be enjoined nationwide, causing the 2015 regulation to take effect again. Id. And if that happened, the district courts original order might have precluded plaintiffs from resuming their quest for a preliminary injunction. Because that wouldnt have been fair—the plaintiffs might have been estopped by an order they couldnt challenge on appeal—we vacated the order. See id.
Here, theres no chance that the challenged portion of the district courts order will have a preclusive effect on Shaw. The orders factual findings and legal conclusions do not bind the final resolution of MDIs breach-of-contract claim. And theres no possibility that the order will have a preclusive effect on a future preliminary injunction, either. Shaw challenges only the portion of the order that enforced the one-year noncompete clause in her contract. That clause has since expired, so MDI cant seek a similar preliminary injunction in the future. Thus, the now-moot portion of the courts order wont have any preclusive effect.
Shaws Role in Causing Mootness. As an equitable remedy, vacatur is subject to equitys “clean-hands” requirement. See U.S. Bancorp, 513 U.S. at 25, 115 S.Ct. 386. So were unlikely to vacate a moot order when the losing party contributed to the appeals mootness. See Coal. for Govt Procurement, 365 F.3d at 485; Radiant, 951 F.3d at 397. Here, Shaw requested three deadline extensions while the injunctions one-year timer was ticking down—albeit two in the pursuit of a settlement. Thus, Shaw contributed to this appeals mootness.
To be sure, MDI also bears its fair share of the blame. After all, MDI requested three extensions of its own. But absent any indication that MDI was seeking to run out the clock, we cant say that Shaw was “frustrated by the vagaries of circumstance” or that “mootness result[ed] from unilateral action of the party who prevailed below.” U.S. Bancorp, 513 U.S. at 25, 115 S.Ct. 386 (“The denial of vacatur is merely one application of the principle that ‘[a] suitors conduct in relation to the matter at hand may disentitle him to the relief he seeks.’ ” (quoting Sanders v. United States, 373 U.S. 1, 17, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963))).
In sum, courts must consider three factors when determining whether to vacate a moot order. The most significant consideration is whether the order has preclusive effect. Here, it does not. Therefore, even though Shaws role in causing this appeals mootness stemmed from her laudable settlement efforts, vacatur is inappropriate here. 1
* * *
We dismiss this appeal as moot and remand the case for further proceedings.
FOOTNOTES
1
. Of course, nothing here should discourage parties from discussing settlement while an appeal is pending. Courts “historically have counted on the resolution of disputes to conserve limited judicial resources.” Borror Prop. Mgmt., LLC v. Oro Karric North, LLC, 979 F.3d 491, 496 (6th Cir. 2020); see also Aro Corp. v. Allied Witan Co., 531 F.2d 1368, 1372 (6th Cir. 1976) (“Public policy strongly favors settlement of disputes without litigation.”).
THAPAR, Circuit Judge.