dissenting.
Because the affirmance of the district court’s opinion in this case appears to me to create an unfortunate judicial precedent regarding the exercise of the powers of an equity court, I respectfully dissent.
Briefly reviewed, the facts are as follows: The plaintiff (LTD) was the owner of computer materials it used in its business. These tangible materials were in possession of defendant (Data), a computer service bureau which utilized in its processing the materials owned by LTD. The parties fell out. The nature of LTD’s business was such that there would have been irreparable injury to it if it was deprived of the use of the computer materials.1 LTD went to court seeking, inter alia, a temporary restraining order (TRO) and a preliminary injunction. The suit filed also sought relief on various commercial claims as to which there was no independent federal jurisdiction. Federal jurisdiction was achieved, notwithstanding that the allegations basically concerned an ordinary commercial dispute between contracting businessmen, by virtue of the assertion that Data’s fraud in attempting to collect more money than was due Data violated the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968.2
The court granted a TRO requiring certain of the property of LTD to be turned over to it by Data. Originally LTD had only sought access to the materials but the TRO was modified to provide that all LTD programs and systems would be turned over to it. Data’s claim for allegedly unpaid services was $127,960.19.3 Although Data *410did not contest LTD’s ownership, it contended that it was entitled to possession of the property pursuant to its contract and also pursuant to an artisan’s lien.4 Because of the mandatory aspects of the TRO, LTD posted a letter of credit in excess of Data’s claim.
Subsequently, the court denied a preliminary injunction because LTD, having recovered all of the computer materials as a result of the TRO, had obtained all the relief that it sought, and there was no longer a threat of irreparable injury.
It is at this point that I begin to fail to follow the district court’s reasoning. Data had turned the property over pursuant to a court order and it would seem if that court order was not extended by a preliminary injunction then the property should have been returned to the status quo ante. I fail to understand why the district court did not continue the effect of the TRO as a preliminary injunction and leave the letter of credit posted to secure Data’s claim in the event Data should ultimately prevail at trial. This would seem to be the normal, equitable procedure. Instead the district court at the time of denying the preliminary injunction ordered that there be drawn out of the letter of credit the total amount of Data’s claim which amount was to be turned over to Data without any security for its return in the event Data should not ultimately prevail.
The hearing on the preliminary injunction was concluded on March 4, 1982. At that time the district court, after rendering its opinion from the bench, entered an order denying LTD’s motion for a preliminary injunction and as a part of that order further ordered that:
Defendant, 'Beacon Data Processing Service Corporation, is hereby given leave, and may, draw the sum of One Hundred Twenty-Seven Thousand Nine Hundred Sixty and 19/100 Dollars ($127,-960.19) against First National Bank of Chicago Irrevocable Letter of Credit No. 1266-00302056, (opener’s reference no. 302056), dated February 17, 1982, as amended February 19, 1982.
It seems clear to me that this turnover order, a part of the order denying the preliminary injunction, and certainly intertwined with the injunctive issue, is very much, as it should be, an issue before this court.
The majority opinion refers to the order of the district judge “requiring irrevocable payment of money in advance of trial as rather unusual and unorthodox.” This characterization is an understatement of what I regard as a flagrant abuse of the equity power of the court. I recognize that LTD had received its property back and was able to use it pursuant to a court order which it could not have done if there had been a valid lien entitling Data to keep possession of the property. If LTD, however, had gone into a state court, as probably it should have rather than attempting the somewhat bizarre, and certainly questionable, RICO approach in federal court, and had sought relief by way of a traditional conversion action, Data to retain possession would have had to post security for the retention and in the absence of such posting LTD could have taken under the writ but also only after posting security to protect Data.
Here the district court’s action was such that rather than treating the letter of credit as security for the payment of such sums to which Data might ultimately be entitled on its counterclaim, it was paid in full on that counterclaim without any obligation or protection to LTD. It was given the money just as though it had been successful in establishing its counterclaim and a judgment had already been entered in its favor. *411Yet at the time the order was entered all that Data had was a claim in the form of its counterclaim. The majority opinion refers to “conditions which are fair to both parties and enable each to obtain what it thought was essential to protect its vital interest.” Unfortunately, when a litigant is forced to pay a claim before that claim has been judicially established, it is not being treated fairly. The most the opponent should be entitled to have is security that it will be paid upon the establishment of its claim. The procedure here, to me, seems simply to violate well established equity principles of fair treatment of litigants.
The district court in denying the preliminary injunction stated that LTD now had “only a pecuniary claim.” This, of course, is correct. What the district court did not say was that LTD has now only “an unsecured pecuniary claim.” There was some indication that the financial condition of Data was not an entirely healthy one. If it should be determined at the conclusion of this litigation, in this period of failing businesses, that Data indeed had no claim as a result of second guessing on its billings, LTD’s only alternative would be to join the ranks of unsecured creditors. The court’s action perhaps might be understandable if tangible personal property such as computer hardware had been security and was turned over to Data for its use during the pendency of its action and then could have been returned to LTD if Data’s claim was not established. Unfortunately, here we are dealing with money which can be readily dissipated without any replacement if the dissipator has become insolvent.
The only troublesome aspect to me of the position I have taken is that to some extent the record could be construed as indicating LTD consented to the turnover action. A careful reading of the record, however, indicates to me that such an unusual intent as here involved on the part of any litigant cannot be properly, or lightly, inferred from this record. Even though LTD, because of the nature of its business, had a desperate need for immediate possession of its property I do not think the record indicates it was prepared through its counsel to engage in this Faustian potential giveaway. The record does not show that there was a clear understanding between the court and counsel and in view of the ambiguous colloquies between court and counsel,5 it appears to me that it was the responsibility of the court to follow ordinary procedures of fairness and equity.
Further, there is no reference to any agreement by plaintiff’s counsel in the findings of fact or conclusions of law. There is no indication that the district court relied on any such agreement in reaching its decision. This would have been an agreement of waiver which should only be found to exist where the proof is clear and explicit. It wasn’t here.
. The district court finding in this respect reads as follows:
LTD has no adequate remedy at law. If this TRO does not issue, LTD will be irreparably injured. If the relief requested is not granted, LTD’s business will incur severe damage, present and future, including loss of prospective business and customer good will, all of which is highly substantial, but extremely difficult to specifically ascertain.
. The district court ruled that the complaint stated a claim under RICO and that the pleadings, and not the actual facts, are determinative of federal jurisdiction.
. Data’s contention in this respect was that although it had previously billed and been paid *410for its services, a special low rate had been given because of its expectation with regard to the duration of its contract and when this contract was in the process of being terminated it submitted a supplemental billing in the amount mentioned above.
. Although it is not perhaps material at this point of the proceedings in connection with my dissent, I do note that my examination of the briefs and record failed to reveal any provision of the contract justifying continued possession and no reference to Illinois law creating a lien under the circumstances here involved.
. Thus, the following occurred:
Mr. Spitz (plaintiffs counsel): So let us take that analysis.
If you preliminarily determine that they have a claim, and a valid lien, or a valid right to this money, fine, but why should they get the money only because if I am not successful in my preliminary injunction? Why isn’t there a determination, if you are going to turn over $127,000 to them, that their [sic] entitled, at least in some preliminary fashion, to that money?
Why, if it is not security for the wrongful issuance of the preliminary injunction, why would it turn on that?