(concurring in part and dissenting in part):
I concur in Section “I.” and Section “II. A” of the majority opinion. However, I dissent from Section “II. B” to the extent that it precludes the entry on remand of a revised preliminary injunction barring Karp from commencing or continuing a business relationship with Rothschild or Alko and from disclosing confidential information belonging to Buckingham.
The majority’s assumption that a preliminary injunction against Karp could not possibly induce Rothschild or Alko to return to Buckingham is based on (1) statements of Rothschild and Alko that they would not do so and (2) post-argument news reports to the effect that they had signed an agreement with Heublein Co. As for the first of these reasons, Rothschild and Alko’s statements are self-serving, and nothing prevents them from changing their stance. They might well be inclined to do so if Karp remained unavailable to them, especially since a resumption of their relations with Buckingham might enable them to induce Whitbread to drop its pending suit against them. The second reason — a rumored agreement with Heublein — is on this record speculation.
Certainly Karp’s conduct at the time of the district court hearing threatened irreparable harm to Buckingham. The “facts” now relied upon by the majority as a basis for reversing the grant of preliminary relief on the ground that this threatened harm does not continue are far from established. Indeed, the district court seems to have impliedly found to the contrary. For these reasons I favor continuing the preliminary injunction in effect pending further findings by the district court on remand with respect to any continuing irreparable injury, including whether Rothschild and Alko have entered into a firm distributorship agreement with Heublein or anyone else which would preclude their renewing relations with Buckingham, and pending a revision of the terms of the injunction to eliminate any ambiguity as to (1) the prohibition of Karp from using Buckingham’s trade secrets, and (2) the requirement that he return the purloined confidential corporate documents to it. If, upon remand, the district court should find that Rothschild and Alko have entered into a binding agreement with Heublein or someone else, precluding their resumption of relations with Karp or Buckingham, nothing would prevent the district court from then vacating that portion of the preliminary injunction prohibiting Karp from entering into a business relationship with Rothschild and Alko.