dissenting:
I respectfully dissent. I do not believe the trial court abused its discretion in finding that the plaintiffs’ allegations of irreparable harm were too speculative to support the issuance of a preliminary injunction.
A preliminary injunction is an extraordinary remedy which should be issued only where the moving party clearly shows that if the injunction is not granted, he is likely to suffer irreparable harm before a decision on the merits can be rendered. Summit Electric Co. v. Mayrent, 17 Ill. App. 3d 545, 550, 308 N.E.2d 313 (1974); see also Kamerling v. Massanari, 295 F.3d 206, 214 (2d Cir. 2002) (showing of irreparable harm is perhaps the “ ‘single most important prerequisite for the issuance of a preliminary injunction’ ”), quoting Bell & Howell Mamiya Co. v. Masel Supply Co., 719 F.2d 42, 45 (2d Cir. 1983). Plaintiffs have failed to make such a showing.
In this case, plaintiffs have attempted to establish irreparable harm based on the theory of “inevitable disclosure.” Plaintiffs contend they will suffer irreparable harm if the individual defendants are permitted to conduct business with APC because defendants would “inevitably disclose” plaintiffs’ trade secrets to APC giving the organization an unfair competitive advantage. Much of plaintiffs’ attack is directed at the credibility of defendant Mazur. Plaintiffs maintain that Mazur has demonstrated a willingness to use or disclose trade secrets and that his testimony that he no longer possesses the price books is incredible, arguing that Mazur would inevitably disclose this information in his new position at Aerico.
Like the plaintiffs, the majority apparently does not believe in Mazur’s version of events and finds that it was against the manifest weight of the evidence for the trial court to conclude that Mazur did not successfully copy trade secret pricing information onto a CD before deleting the information from his laptop. I disagree and see no reason to upset the trial judge’s credibility determination.
Although a trial court’s finding is always subject to review, a “reviewing court will not substitute its judgment as to the credibility of witnesses for that of the trial court, unless the findings are manifestly against the weight of the evidence.” Brown v. Zimmerman, 18 Ill. 2d 94, 102, 163 N.E.2d 518 (1959). A finding is against the manifest weight of the evidence only where the opposite conclusion is clearly evident. In re C.N., 196 Ill. 2d 181, 208, 752 N.E.2d 1030 (2001). Underlying this rule is a recognition that the trial judge, as the trier of fact, was in a position to actually see the witnesses testify, observe their demeanor, and assess their credibility. Clean World Engineering, LTD. v. MidAmerica Bank, FSB, 341 Ill. App. 3d 992, 997, 793 N.E.2d 110 (2003).
The manifest weight of the evidence adduced at the hearing supports the trial court’s conclusion that the plaintiffs have failed to present evidence that Mazur has violated or is likely to violate his obligation to keep plaintiffs’ information secret. There is no evidence that Mazur has made any disclosure of confidential information to anyone in any part of the APC organization, nor is there any evidence that he would need to do so in order to fulfill his responsibilities at Aerico. There is no evidence that Zonatherm has suffered lost sales or customers or that anyone at APC or Aerico has used plaintiffs’ confidential business information. The lack of evidence of harm is not conclusive, but it tends to corroborate Mazur’s testimony that no such disclosures have occurred.
In essence, all that is alleged is that the defendants could use or disclose plaintiffs’ trade secrets while working at Aerico, and plaintiffs fear they will inevitably do so. Such allegations alone are insufficient to demonstrate irreparable harm. As stated in Smith Oil, the “requirement of the showing of imminent injury is not satisfied by proof of a speculative possibility of injury and ‘such relief will not be granted to allay unfounded fears or misapprehensions.’ ” Smith Oil Corp. v. Viking Chemical Co., 127 Ill. App. 3d 423, 431, 468 N.E.2d 797 (1984), quoting Barco Manufacturing Co. v. Wright, 10 Ill. 2d 157, 166 (1956). At this stage of the proceedings, there is no evidence that defendants have used or disclosed plaintiffs’ trade secrets, and any suggestion that they will inevitably do so is purely speculative.