Time Warner Entertainment Co. v. DOES NOS. 1-2

876 F.Supp. 407 (1994)

TIME WARNER ENTERTAINMENT COMPANY, L.P., et ano., Plaintiffs,
v.
Jane DOES # 1-2 and John Does # 1-10, Defendants.

No. CV-94-5713 (CPS).

United States District Court, E.D. New York.

December 19, 1994.

Gibney, Anthony & Flaherty, New York City, for plaintiffs.

MEMORANDUM AND ORDER

SIFTON, District Judge.

In this action for copyright infringement and violation of the Lanham Act, 15 U.S.C. § 1051, et seq., plaintiffs apply ex parte for a preliminary injunction and an order of seizure. Plaintiffs request that this Court authorize a private investigative service to break into and enter the residence and business location of two named defendants and to search for, seize, and impound apparel and other products allegedly infringing plaintiffs' copyrighted designs and trademarks.^[1] Plaintiffs also request that the Court files in this case be maintained under seal until the seizure order is granted. For the following reasons, plaintiffs' ex parte application for an order of seizure is denied. The application to seal the Court files created in this case (with the exception of this opinion) is granted, subject to further order of this or any reviewing court.

BACKGROUND

Plaintiffs allege that defendants are manufacturing, selling, or otherwise distributing merchandise bearing plaintiffs' copyrighted designs and trademarks without authorization. In support of their application, the plaintiffs have provided (1) the declaration of Nils Victor Montan, a vice president at the Warner Bros. division of Time-Warner, (2) the declaration of Angela Small, a vice president at Saban Entertainment, (3) the declaration of the president of a private investigative agency retained by the plaintiffs, and (4) the declaration of plaintiffs' attorney. Annexed to these affidavits and to the complaint are numerous photocopies depicting the plaintiffs' marks. Plaintiffs have also provided a T-shirt allegedly obtained from one of the defendants.

From these papers, submitted ex parte, it appears that plaintiff Time Warner Entertainment Company ("Warner") is the owner of all copyrights, trademarks, and other proprietary rights in and to the internationally famous Looney Tunes characters, among which are Bugs Bunny, Daffy Duck, Tazmanian Devil, Wile E. Coyote, Yosemite Sam, Foghorn Leghorn, Sylvester, Sylvester Jr., Henery Hawk, Road Runner, Porky Pig, Speedy Gonzales, and Tweety. Since as early as 1930, Warner has produced and distributed hundreds of animated copyrighted cartoons with the Looney Tunes characters. In addition, Warner has sold and licensed merchandised apparel and other goods bearing Warner's copyrighted and trademarked Looney Tunes characters.

Plaintiff Saban Entertainment, Inc. ("Saban") is engaged in the business of producing and distributing live action television programs. Among these programs is the internationally famous live action television program series "Mighty Morphin Power Rangers." Saban is the exclusive owner in the United States of all copyrights, trademarks, and other proprietary rights in the Mighty Morphin Power Rangers. The Mighty Morphin characters have appeared in over 80 episodes produced and distributed by Saban. Moreover, Saban has authorized and licensed the manufacture and sale of numerous products, including toys and apparel, bearing Saban's copyrighted and trademarked Mighty Morphin characters.^[2]

Both plaintiffs state that their marks have been subject to extensive counterfeiting by unidentified third parties as a result of the wide popularity of the characters. Their attorney states that in his experience these counterfeiters "often" hide or remove merchandise and assets when aware that a court proceeding is imminent.

Defendant Jane Doe 1 is a person identified by name in the sealed affidavits who allegedly does business in Flushing, New York. Defendant Jane Doe 2 is a business entity located in Brooklyn, New York. The names and, indeed, the existence of defendants John Does 1 through 10 are unknown to plaintiffs and the Court at this time. They are described as entities or individuals who are principals, supervisory employees, or suppliers of defendants Jane Does 1 and 2.

According to the declaration of plaintiffs' investigative firm, an investigator visited defendant Jane Doe 1's premises, which includes what is described as Jane Doe 1's residence, in September 1994, some two months ago. The investigator was taken to the back of a commercial establishment and went through a trap door to a basement showroom where the investigator saw a screen printing facility in the room next door and purchased from defendant Jane Doe 1 two dozen T-shirts bearing Saban's Mighty Morphin Power Ranger mark and copyrighted design. One of these T-shirts is apparently that submitted with plaintiffs' papers. An investigator called defendant Jane Doe 1 in November 1994 to inquire about purchasing Looney Tunes items but was told that the items were sold out and to call back since "they go very quickly." An investigator returned to Jane Doe 1's premises in December 1994 and observed apparel bearing plaintiffs' Looney Tunes and Mighty Morphin copyrighted designs and trademarks. The investigator was unable to purchase any products at that time, as the person with whom the investigator spoke stated he would not sell merchandise to people he did not know.

An investigator visited defendant Jane Doe 2's premises in November 1994 and observed T-shirts bearing plaintiffs' Looney Tunes copyrighted designs and trademarks. The declarations submitted by plaintiffs' investigator allege that defendant Jane Doe 2 is a screen printing operation that manufactures counterfeit merchandise for a wholesaler, but the declarations do not indicate the investigator's basis for this assertion. In December 1994, an investigator returned to defendant Jane Doe 2's premises but was unable to gain access to the building in which defendant was located, which are (or were) protected by security cameras and include a garage and storage facility and contain printing machines and dryers.

On this showing, plaintiffs seek an order (i) directing the U.S. Marshal, other law enforcement officials, or plaintiffs' security firm the right to break into and enter defendants' premises (one of which is a home) as well as "any location in New York [sic] where counterfeit or infringing merchandise ... is manufactured, distributed, sold ... and stored" to search for, inventory, and seize any infringing goods, materials, and machinery used to make such goods and any business records detailing the purchase or sale of such infringing goods, (ii) granting expedited discovery of defendants with respect to their manufacture, receipt, and sale of goods bearing plaintiffs' copyrighted designs and marks, and (iii) temporarily restraining defendants from infringing plaintiffs' copyrights and trademarks, destroying the infringing goods, and destroying any other materials used to make the infringing goods or any business records detailing the sale or purchase of such goods, and from communicating about this order to anyone other than their attorneys.

In the proposed order, plaintiffs thus seek authorization to search defendants' premises and inventory and seize any infringing products bearing likenesses of plaintiffs' copyrighted designs and trademarks. The order does not define what copyrighted designs and trademarks are to be looked for, but rather refers back generally to plaintiffs' other papers. In addition to seizing such infringing products, plaintiffs seek authorization to seize any materials or equipment that can be used to manufacture infringing products. Plaintiffs also seek authorization to seize any business records "believed to concern the manufacture, distribution, purchase, advertising, sale or offering for sale of any labels, tags, logos, decals, emblems, or other markings and any products bearing Plaintiffs' Copyrighted Designs and/or Trademarks."

Plaintiffs request authorization for their investigators to break into and enter the premises to be searched, including locked or unlocked vehicles, rooms, closets, cabinets, containers and desks.

Finally, an order is sought directing defendants to give the individuals conducting the search their correct name, residential address, and telephone number.

DISCUSSION

Proceeding under the authority of the Lanham Act, 15 U.S.C. § 1114 et seq., and the Copyright Act of 1976, 17 U.S.C. § 501 et seq., plaintiffs seek an order of extraordinary scope to say the least. Because of this, the order deserves a more detailed review than such orders often receive.

Under the Copyright Act of 1976, impoundment is authorized by Section 503(a), which states:

At any time while an action under this title is pending, the court may order the impounding, on such terms as it may deem reasonable, of all copies ... claimed to have been made or used in violation of the copyright owner's exclusive rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies ... may be reproduced.

17 U.S.C. § 503(a).

Similarly, where a violation of the Lanham Act is shown with respect to a counterfeit mark, the Act authorizes a "seizure of goods and counterfeit marks involved in such violation and the means of making such marks, and records documenting the manufacture, sale or receipt of things involved in the violation." 15 U.S.C. § 1116.

Where plaintiffs have shown that a danger exists of destroying or transferring infringing goods, courts in this Circuit have not hesitated to grant ex parte orders under either the Lanham Act or the Copyright Act. Century Home Entertainment, Inc. v. Laser Beat, Inc., 859 F.Supp. 636, 638 (E.D.N.Y. 1994) (citing cases). Moreover, even if equipment may be used for a legitimate purpose, it is not protected from seizure if it has been employed for the illegal purposes alleged. Id. at 639. Though in ordinary cases orders that disrupt the status quo are frowned upon, in infringement cases the policy allowing ex parte seizure and impoundment is clear: "If notice is required, that notice all too often appears to serve only to render fruitless further prosecution of the action. This is precisely contrary to the normal and intended role of `notice,' and it is surely not what the authors of the rule either anticipated or intended." Matter of Vuitton et Fils, S.A., 606 F.2d 1, 4-5 (2d Cir.1979); Vuitton v. White, 945 F.2d 569 (3d Cir.1991). Even in infringement cases, however, a seizure order should not be granted lightly. Warner Bros Inc. v. Dae Rim Trading, Inc., 877 F.2d 1120, 1125 (2d Cir.1989).

Congress gave voice to similar principles when enacting the 1984 amendments to the Lanham Act, which explicitly provided the authority for ex parte seizure in cases of counterfeited marks. Congress explained the propensity of

those who deal in counterfeits ... to destroy or transfer counterfeit merchandise when a day in court is on the horizon. The ex parte seizure procedure is intended to thwart this bad faith tactic, while ensuring ample procedural protections for persons against whom such orders are issued.

130 Cong. Rec. H12076 at 12080 (Oct. 10, 1984), quoted in 4 McCarthy on Trademarks § 30.16[2][b].

Such orders should not be granted injudiciously. In amending the Lanham Act to authorize ex parte seizure, Congress enacted explicit safeguards to protect the rights of prospective defendants. A court "shall not grant such an application unless —

A. the person obtaining an order under this subsection provides the security determined adequate by the court for the payment of such damages as any person may be entitled to recover as a result of a wrongful seizure or wrongful attempted seizure under this subsection; and

B. the court finds that it clearly appears from specific facts that —

i. an order other than an ex parte seizure order is not adequate to achieve the purposes of ... this Act;

ii. the applicant has not publicized the requested seizure;

iii. the applicant is likely to succeed in showing that the person against whom seizure would be ordered used a counterfeit mark in connection with the sale, offering for sale, or distribution of goods or services;

iv. an immediate and irreparable injury will occur if such seizure is not ordered;

v. the matter to be seized will be located at the place identified in the application;

vi. the harm to the applicant of denying the application outweighs the harm to the legitimate interests of the person against whom seizure would be ordered of granting the application; and

vii. the person against whom seizure would be ordered, or persons acting in concert with such person, would destroy, move, hide, or otherwise make such matter inaccessible to the court, if the applicant were to proceed on notice to such person."

15 U.S.C. § 1116(d)(4)(B).

These requirements clearly reflect Congress' concern with defendants' Fourth and Fifth Amendment rights. Discussing the security requirement, Congress noted that

[t]he provision of a bond is one of the critical procedural protections designed to ensure that the defendant's rights are adequately protected during the course of an ex parte seizure. In setting the amount of security, courts should err on the side of caution — that is, toward larger bonds — in light of the need to protect the unrepresented defendant, and to ensure that the defendant will have an effective remedy if he or she is the victim of a wrongful seizure.

With respect to requirement that the application identify the place where the matter to be seized may be found, Congress acknowledged that courts will have to be flexible —

but should require as great a degree of specificity as is possible under the circumstances, and should not grant orders, for example, permitting seizure to take place "anywhere in downtown Washington, DC."

130 Cong. Rec. H12076, quoted in McCarthy, Appendix A8 at A8-18 to A8-20.

As this Court has previously noted, similar concerns are involved in seizures under the Copyright Act. See Paramount Pictures v. Doe, 821 F.Supp. 82 (E.D.N.Y. 1993);^[3]see also Warner Bros., 877 F.2d at 1126 (2d Cir.1989) (noting Fourth and Fifth Amendment concerns in ex parte seizures).

It is by now well settled that seizures pursuant to civil actions are subject to Fourth Amendment scrutiny.^[4]See Soldal v. Cook County, Ill., ___ U.S. ___, ___, 113 S.Ct. 538, 543, 121 L.Ed.2d 450 (1992); see also Marshall v. Barlow's, Inc., 436 U.S. 307, 312, 98 S.Ct. 1816, 1820, 56 L.Ed.2d 305 (1978) (Fourth Amendment "protects against warrantless intrusions during civil as well as criminal investigations"). As the Supreme Court has held, "[a] `seizure' of property ... occurs when `there is some meaningful interference with an individual's possessory interests in that property.'" Id. (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984)). The Fourth Amendment protects against governmental intrusions in the form of both searches and seizures. Id. Furthermore, seizures may be considered unreasonable even if not accompanied by a meaningful "search" or if no privacy or liberty interest is impaired. Id. ___ U.S. at ___ - ___, 113 S.Ct. at 545-47.

The 1984 Amendments to the Lanham Act are constitutional under the Fourth Amendment. Reebok Int'l Ltd. v. Su Youn Pak, 683 F.Supp. 929, 930 (S.D.N.Y.1987). However, this statute must be construed in accordance with the Constitution — the statute itself may pass constitutional muster, but clearly it may not be applied in an unconstitutional manner. Though the Fourth Amendment principles of probable cause and particularity do not apply with the same force in civil proceedings, they inform and restrict the statute's implementation. Paramount, 821 F.Supp. at 90.

Plaintiffs' proposed order would violate the Fourth Amendment in several respects. First, in direct contravention of the Second Circuit's recommendation, plaintiffs would have a private investigator conduct the seizure and impoundment.^[5]Warner Bros. Inc., 877 F.2d at 1124-26. In Warner Bros., the Second Circuit expressed its disapproval of search and seizure by a private agent in a copyright case, holding that "tradition and established law dictate that such drastic acts as seizure and impoundment be conducted by neutral and impartial persons" and that "many Fourth and Fifth Amendment problems may be avoided" when a sheriff or other officer of the law is used to effect the seizure. Moreover, the 1984 amendments to the Lanham Act explicitly provide that seizures must be effected by "a United States Marshal or other law enforcement officer." 15 U.S.C. § 1116(d)(9); Warner Bros., 877 at 1125.

Second, the plaintiffs have failed to provide sufficient particularity for the premises to be searched or the articles to be seized. As the Supreme Court has explained,

[t]he manifest purpose of this particularity requirement was to prevent general searches. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit. Thus, the scope of a lawful search is `defined by the object of the search and the places in which there is probable cause to believe that it may be found.'

Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 1016, 94 L.Ed.2d 72 (1987) (quoting United States v. Ross, 456 U.S. 798, 824, 102 S.Ct. 2157, 2172, 72 L.Ed.2d 572 (1982)); see also Andersen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976).

Plaintiffs' declarations express personal knowledge of only two locations where infringing goods are known to be produced or stored. Nevertheless, they seek an order which would allow their agents

to search for, inventory, seize, and impound all of the following [items] in Defendants' possession, custody, or control, including any vehicles in the possession, custody or control of Defendants at any location in New York where counterfeit or infringing merchandise bearing Plaintiff's copyrighted Designs and Trademarks is manufactured, distributed, sold, offered for sale and stored....

Pls.' Proposed Order at 11 (emphasis added). Not only does this order not come close to the particularity required by the Fourth Amendment, it is exactly the kind of order Congress intended to prohibit with 15 U.S.C. § 1116(d)(4)(B)(v). To allow the U.S. Marshals — or worse, plaintiffs' agents alone — to engage in such a roving search would violate both the Constitution and the law.

As noted above, one of the sites plaintiffs allege infringing merchandise is located is a private residence; yet the investigators' affidavits do not adequately establish that infringing merchandise is located there. Moreover, the search of a private residence raises other constitutional issues that neither plaintiffs' papers nor their proposed order adequately address. The order would grant the marshals

the right to enter the premises of Defendants and/or the locations to be searched, regardless of whether said premises and/or locations are locked or unlocked or occupied or unoccupied using such force as is necessary to accomplish this, and to inspect the contents of any rooms, closets, cabinets, vehicles, containers or desks.

Pl. Proposed Order at 11. "Physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed," Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 1379, 63 L.Ed.2d 639 (1980) (citations omitted), and plaintiffs have provided no cause for such a broad search. Their investigator has examined certain facilities — there is neither evidence nor even reasonable inference that infringing goods might be found elsewhere in the home of the named defendants.^[6]

Plaintiffs' proposed order is equally sweeping with respect to the materials to be seized. In order to prevent unconstitutionally intrusive searches, "[a] warrant must enable the executing officer to ascertain and identify with reasonable certainty those items that the magistrate has authorized him to seize." United States v. George, 975 F.2d 72, 75 (2d Cir.1992). Plaintiffs' papers, however, are not sufficiently descriptive of infringing materials. Plaintiff Saban has only provided murky photocopies of its marks from which a marshal would be hard-pressed to determine if a particular depiction is an infringement.^[7] Moreover, plaintiff's order contains no internal references to the "LOONEY TUNES" or "POWER RANGERS" marks but instead broadly covers all of plaintiffs' trademarks, in the discretion of the attorney participating in the search. See id. (warrant invalid where it granted executing officers "virtually unfettered discretion to seize anything they [saw].").

Plaintiffs' papers also fail to show that an order of a more limited scope or remedy would not be adequate in these circumstances. 15 U.S.C. § 1116(d)(4)(B)(i). This requirement was addressed by the Third Circuit Court of Appeals in Vuitton v. White, 945 F.2d 569 (3d Cir.1991). The court there recognized that under section 1116(d) a court must find both that notice will thwart effective relief and that a temporary restraining order would be ineffective. Id. at 575. Several of the defendants in Vuitton were already subject to a permanent injunction and yet were still producing counterfeit merchandise — in these circumstances, the Court of Appeals held that it would be an abuse of discretion to deny a seizure order "without explaining how an ex parte restraining order can be expected to effectively alter the defendants' behavior." Id.

Here, plaintiffs have not shown that the facts warrant the broad search and seizure powers they request. They have not directed the Court to any prior injunction against these defendants, nor have they shown that notice plus an injunction would thwart all relief; these defendants are not street vendors but manufacturers, with printing equipment and machinery that presumably cannot be easily moved or destroyed. It is not at all clear why an injunction prohibiting sale, transfer, or destruction of evidence, plus the expedited discovery sought by plaintiffs, including an order to enter on land to inspect and photograph the premises after the injunction is entered would not suffice. See Fed.R.Civ.P. 34, 45(a)(1)(C). Such an order would be backed by the power of the Court to hold defendants in contempt, including criminal conduct, if it were violated. Moreover, plaintiffs do not even explain why a more limited seizure would not suffice. When identified with particularity as to description and location, infringing goods and manufacturing materials that are easily transferred or destroyed might be seized upon a lesser showing than that which would justify the expansive and invasive relief they currently seek.

Aside from the Fourth Amendment issues, two other provisions of this proposed order are troublesome. First, in the section of the order restraining defendants from selling, distributing or destroying infringing goods is a provision that would bar defendants from "communicating, directly or indirectly, with any person or persons from whom they purchased or to whom they sold [infringing] products ... or who they know possess or control or have access to such products ... or any other person or persons (except their attorneys) about this action of Plaintiffs' request for this Order." In similar cases brought by these plaintiffs in this Court, Judges Amon and Ross of this District have stricken this provision from the orders when granting an injunction or seizure.

Second, plaintiffs request an order as follows:

Defendants are hereby required to give a correct name, residential address, and telephone number where each of them can be reached to the United States Marshal's service, the New York Police, or other law enforcement officers, and that failure to give such correct name, address, and telephone number may result in contempt of Court.

Pls.' Proposed Order at 15. Aside from the Fifth Amendment issues, plaintiffs offer no authority for having the marshal conduct their discovery at this stage of the proceeding.

The activities of the defendants are perhaps illicit, but the law provides for procedures through which those activities may be fairly brought to a halt which respects the interests of both plaintiffs and defendants. As the Court has noted elsewhere, proceeding in this fashion has only delayed the plaintiffs' cause. With a more carefully drafted and supported order, plaintiffs might well have an adequate remedy in hand.

Finally, plaintiffs' attorneys have neglected the well-established rule of professional responsibility that a lawyer shall not "fail to disclose ... legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client." Model Rule 3.3; Code of Professional Responsibility DR 7-106(B)(1). Plaintiffs' attorneys have breached this responsibility in two instances: failing to point out that Warner Bros. and the Lanham Act allow only marshals to conduct searches and failing to point out that other courts in this district have declined to grant the injunction on communication by defendants. See generally 1 Hazard & Hodes, The Law of Lawyering § 3.3:207 (2d ed. 1990).^[8] In an ex parte proceeding, in which the adversary system lacks its usual safeguards, the duties on the moving party must be correspondingly greater. See Model Rule 3.3(d) (requiring disclosure of adverse material facts in ex parte proceedings).

Accordingly, plaintiffs' application for an ex parte application for a temporary injunction and restraining order is hereby denied, without prejudice. The application to have the case sealed is granted, with the exception of this opinion.

The Clerk is directed to mail a copy of the within to the plaintiffs.

SO ORDERED.

NOTES

[1] The application seeks much more as noted below, including like authority for the United States Marshal the New York City police and any other law enforcement agency, should plaintiffs' lawyers choose to use them.

[2] According to both plaintiffs, "[a] significant portion of [their] business has been the creation and commercial exploitation of [these] Characters in connection with the sale of products through licensees, including apparel." Montan Decl. ¶ 8; Small Decl. ¶ 7.

[3] In Paramount Pictures, this court employed a five part test to determine whether a proposed seizure order for copyright infringement complied with the requirements of due process. A plaintiff must show

(1) the availability of ex parte prejudgment seizure must be limited to situations where plaintiff has established that the property to be seized is of a type that can be readily concealed, disposed of, or destroyed; (2) the plaintiff must allege specific facts based on actual knowledge supporting the underlying action and the right off plaintiff to seize the property; (3) the application for the order of seizure must be made to a judge rather than to a clerk; (4) the defendant has a right to a prompt, postseizure hearing to challenge the seizure; and (5) the defendant must be able to recover damages from the plaintiff if the taking was wrongful and to regain possession of the seized items by filing a bond.

821 F.Supp. at 88-89 (citing Mitchell v. W.T. Grant Co., 416 U.S. 600, 616-18, 94 S.Ct. 1895, 1904-05, 40 L.Ed.2d 406 (1974)). Plaintiffs have complied with the standards of due process set forth in Paramount. At least some of the property involved — T-Shirts and the like — is readily concealed or destroyed; plaintiffs have produced the affidavit of a private investigator who has personal, actual knowledge of the infringements; and plaintiffs have come before a court with an order directing a prompt postseizure hearing and offering to file a bond as security.

[4] The Fourth Amendment provides that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. Amend. IV.

[5] They order states that either U.S. Marshals "or" a private investigator from a specified firm shall conduct the search — presumably, the choice would be plaintiffs'.

[6] As the Supreme Court has observed, "Just as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase." See Maryland v. Garrison, 480 U.S. at 84, 107 S.Ct. at 1016-17 (quoting Ross, 456 U.S. at 824, 102 S.Ct. at 2172). Similarly, here, where screenprinting machines and dryers have been observed in a basement and a commercial building, there is no cause to believe that infringing materials might be found in a bedroom closet or desk.

[7] The proposed order provides that plaintiffs' attorneys shall accompany the Marshals to determine what items (merchandise, machinery and business records) are infringing their rights, but this still places expansive judicial power in plaintiffs' hands, as the broadly worded order and the muddled exhibits would foreclose the Marshals from making independent judgments.

[8] While plaintiffs cite this court's earlier decision in Paramount Pictures, supra, they do so in a context with little bearing on the issues raised by their papers. This has not misled the author of this opinion, but it might mislead another judge dealing with plaintiffs' emergency application, particularly since plaintiffs offer by affidavit string cites of other cases in which other judges have signed plaintiffs' order without altering a line.