Bruce Drug, Inc. And Richard Najarian D/B/A Bruce Medical Supply v. Hollister Incorporated

TORRUELLA, District Judge,

dissenting.

With all due respect to the opinion of the majority, I dissent.

In determining whether a preliminary injunction should issue, the district court must measure the evidence against the following standards, namely: (1) Whether plaintiff will suffer irreparable injury if the injunction is not granted; (2) Whether such injury outweighs any harm which granting injunctive relief would inflict on the defendant; (3) Whether plaintiff exhibits a likelihood of success on the merits; and (4) Whether the public interest will be adversely affected by the granting of the injunction. Garcia v. Barcelo, 671 F.2d 1 (1st Cir., 1982). The application of these criteria to the facts of a particular case is within the sound discretion of the trial court. He who seeks to overturn such a ruling has a “heavy burden.” Engine Specialities, Inc. v. Bombardier Ltd., 454 F.2d 527, 530 (1st Cir. 1972). A decision to issue a prelimi*861nary injunction should not be disturbed in the absence of a clear showing of abuse of discretion or error of law. Grimard v. Carlston, 567 F.2d 1171, 1173 (1st Cir., 1978). The fact that the appellate court might have reached a conclusion contrary to that of the district court does not automatically warrant reversal unless such a conclusion is brought about by applying the aforementioned standard. Celebrity, Inc. v. Trina, Inc., 264 F.2d 956 (1st Cir. 1959). Stated differently, mere disagreement with the conclusions of the district court is not sufficient for a reversal unless the appellate court finds that the court below is clearly erroneous. Aberdeen & Rockfish R. Co. v. Students Challenging Regulatory Agency Procedures, 409 U.S. 1207, 93 S.Ct. 1, 34 L.Ed.2d 21 (1972). The clearly erroneous standard is applicable even where, as here, findings are based on documentary evidence or undisputed facts. Nemeroff v. Abelson, 620 F.2d 339 (2nd Cir. 1980); Custom Paper Products Co. v. Atlantic Paper Box Co., 469 F.2d 178, 179 (1st Cir. 1972); Semmes Motors, Inc. v. Ford Motors Company, 429 F.2d 1197, 1205 (2d Cir., 1970).

Although the majority opinion uses “clearly erroneous” language, it does not appear to me that this standard has been applied but rather one bordering on de novo review. See Developments in the Law-Injunctions, 78 Harv.L.Rev. 994, 1070-1073 (1965). It cannot be otherwise, as on the record of this case it is difficult to say that one “is left with the definite and firm conviction that a mistake has been committed.” United States v. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).

Before reaching its conclusions, the court below reviewed voluminous documentary evidence as well as various affidavits and depositions. Based upon the totality of this evidence, the district court issued a comprehensive opinion in which it found that plaintiff-appellees were dealers who were terminated by defendant-appellants for price-related reasons at the request of its horizontal competition. It found that as part of this conspiracy, a boycott was organized and enforced by defendant-appellant. The court then concluded that plaintiff-appellee’s principal business would fail unless defendant-appellant was enjoined from refusing to sell to plaintiff-appellee.

As I read the majority opinion, it does not question the existence of evidence on the record supportive of those findings, but rather attacks its weight. This, of course, is not the function of the appeals court in an interlocutory appeal under 28 U.S.C. 1292(a):

“This limited review is necessitated because the grant or denial of a preliminary injunction is almost always based on an abbreviated set of facts, requiring a delicate balancing of the probabilities of ultimate success at the final hearing with the consequences of immediate irreparable injury which could possibly flow from the denial of preliminary relief. Weighing these considerations is the responsibility of the district judge; only a'dear abuse of his discretion will justify appellate reversal.”

U.S. Steel Corp. v. Fraternal Ass’n. of Steelhaulers, 431 F.2d 1046, 1048 (3rd Cir., 1970).

The majority’s holding to the effect that plaintiff-appellants have failed to demonstrate a substantial likelihood of success on the merits overlooks the fact of business life that conspiracies to restrain trade are not usually brought to light by direct evidence or frank admissions, nor does the law require that quality of proof. Trabert & Hoeffer, Inc. v. Piaget Watch Corp., 633 F.2d 477 (7th Cir., 1980). Such actions are not normally the result of express agreement nor within the knowledge of non-participators. They are rather the machinations of those who surreptitiously seek to avoid the detection of their deeds. Proof of such acts is therefore mostly circumstantial in nature, requiring judicious application of those inferences which arise from the conduct under scrutiny. Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998, reh. den. 390 U.S. 1018, 88 S.Ct. 1258, 20 L.Ed.2d 169 (1968); United States v. Parke, Davis & Co., 362 U.S. 29, 47, 80 S.Ct. 503, 513, 4 L.Ed.2d 505 (1960). In reaching its conclusions, the court below took such matters into account. The majority’s disconcertion with the conflicting evidence is understandable and tempts it to consider *862“let[ting] the chips lie where they fall” (see slip opinion, page 3). This, I believe, is what should be done. It is the duty of the trial court, and not the appeals court, to sift through those conflicts and come up with the facts. Nor should we blithely dismiss the affidavit of defendant-appellant’s president, Winn, with its false allegations (see footnote 4 of the majority opinion), in which he gives patently pretextual reasons for the severing of Bruce’s dealership. It is precisely that type of conduct, among others, which allowed the trial judge to conclude that the true reasons for Hollister’s actions were different from the stated ones. Cf. United States v. Smith, 680 F.2d 255, at 260 (1st Cir., 1982).

Although at this preliminary stage plaintiff-appellee’s case is not exactly a powerhouse, there is adequate evidence on the record to sustain the district court’s decision.