Mantek Division of Nch Corporation v. Share Corporation, David J. Denton, Dennis Lenahan, Kenneth C. Roten, and Malcolm Maurice Slayden

GORDON, Senior District Judge,

dissenting in part.

The majority concludes that by failing to receive evidence on the defendants’ charge of “commercial bribery” the district court committed reversible error in granting the plaintiff’s application for a preliminary injunction. I believe that conclusion to be wrong both as to law and as applied to the facts of this case. It was observed in Aurora Bancshares Corporation v. Weston, 777 F.2d 385, 386-87 (7th Cir., 1985) that unclean hands is a possible defense to a request for a preliminary injunction. Nevertheless, there remains broad discretion in the district court regarding the exclusion of such proffered evidence. United States v. Zenon, 711 F.2d 476, 478 (1st Cir.1983). The legal basis for this rule was *712recently stated by this court in Donna Shondel and Mark J. McKechnie v. Thomas M. McDermott, 775 F.2d 859, 869-70 (7th Cir.1985):

“In this age of legalism, when relatively few plaintiffs are wholly free from any trace of arguable misconduct at least tangentially related to the objective of their suit, the right to injunctive relief, especially to preliminary injunctive relief, would have little value if the defendant could divert the proceeding into the byways of collateral misconduct.”

As to the application of such rule to the case at bar, the record clearly demonstrates that the district judge gave ample consideration to the relevant claims, balanced them, and then exercised the discretion vested in him. The evidentiary hearing below consumed two full days. The trial judge entertained the defendants’ offer of proof regarding the plaintiff’s gift-policy, and nevertheless persisted in his view that it would be “a waste of everybody’s time” to explore the sales practices of this industry.

Although the defendants labeled the plaintiff's program as “commercial bribery,” there is no suggestion that it was secretly or covertly pursued. Judge No-land regarded the plaintiff’s practice as one comparable to the giving of small gifts or novelties; thus, he commented that he could “take judicial notice that the Fuller Brush Company has had door-to-door salesmen since the beginning of time and they have always had door openers in the form of some little gift or other.”

Given the clarity of the restrictive covenants which the defendant salesmen had signed, the trial judge’s exercise of discretion after a two-day evidentiary hearing can hardly be deemed to have been ill-considered or precipitous. Under these circumstances, I find no basis for an order compelling the district court to hold an additional evidentiary hearing as to a speculative, collateral defense. I therefore respectfully dissent.