During several sales presentations to advertisers, however, Messrs. Hoffman and Keller told the advertisers that the signing of the June 7th order demonstrated that the Times' circulation figures were false. For example, Mr. Keller testified as follows regarding a meeting he and Mr. Hoffman had with Sears executives at Sears headquarters:
"QUESTION: Did you bring any document with you?
"ANSWER: I'm sure we presented a court order at that second meeting.
"QUESTION: Why are you sure of that?
"ANSWER: Just because we did.
"QUESTION: Who presented it?
"ANSWER: Mr. Hoffman.
"QUESTION: When you referred to the court order, you were referring to the order regarding Times' circulation, right?
"QUESTION: Why was that brought up?
"ANSWER: Because we felt it was essential that we could establish that the Times was cheating or fraudulent, whatever, in their circulation. In other words, if the ABC's were out, circulation was very even. We thought that a true circulation figure on the Trenton Times by an independent audit would establish us being number one by a large majority in this market. So we thought it was essential to convey to them that the figures the Times was giving them were false.
"QUESTION: How did presenting the court order do that?
"ANSWER: The fact that it prohibited the Times from discussing any circulation after March 31, 1982, would give the assumption that the figures that were presented in December were false. In other words, this court order would say, there must be something wrong with those figures because they can't discuss them.
"QUESTION: Did you convey that to Mr. Stevenson or Kramer?
"QUESTION: Did Mr. Hoffman?
Mr. Keller testified that he made similar representations to other advertisers, including Cabot Advertising, National Co-op Couponing, and Hahne's Department Stores.
Plaintiff stresses that neither Mr. Keller nor Mr. Hoffman actually told advertisers that this court had made an explicit finding regarding the Times' circulation figures. As Mr. Hoffman testified, "I indicated that the order had been signed which prohibited the Trenton Times from giving any figures after September 30, 1982, and that in my opinion, there was enough evidence to justify the issuance of the order by the Court . . . ." Mr. Hoffman did testify, however, that he had indicated to an advertiser that, "We believe there was evidence presented so that the judge would feel that the order should be invoked or placed into being." This incorrect view of the facts underlying the signing of the June 7th order stemmed, Mr. Hoffman explained, from his mistaken belief that certain affidavits regarding the Times' circulation practices had been presented to the Court, as well as his ignorance of the law regarding consent orders. He explained that, "As a layman . . . I did not realize that a federal court would issue an order unless there was some reason for so doing . . ."
Following discovery that the June 7th order was being used by plaintiff in this matter, the Defendant Times sought emergent relief to halt this conduct. On August 15, 1983, the Times sought and obtained a temporary restraining order (TRO), from my colleague, Judge Debevoise, preventing the plaintiff from making any further statements or suggestions, and from using the June 7th order itself to suggest, that the June 7th order in any way reflects the court's opinion as to the validity or invalidity of the circulation figures of the Times.
A preliminary injunction hearing on this issue was scheduled for August 25, 1983.
A number of actions were taken by the plaintiff in response to the TRO. First, on August 18, 1983, Mr. Hoffman circulated to all Trentonian employees a memorandum advising them of the entry of the TRO, and of their consequent obligations. Second, on that same day, the Trentonian advised its national advertising agency, Landon Associates, of the TRO, and that it, too, was to follow its dictates. Finally, on August 23, 1983, one day before my colleague, Judge Brotman, was scheduled to hold the preliminary injunction hearing on this issue, plaintiff sent out a letter to advertisers, allegedly in an attempt to "correct any misimpressions" which had been conveyed by Messrs. Hoffman and Keller.
Defendant Times suggests that this letter, while neutralizing some of the initial damage, leaves the reader with a replacement set of misimpressions concerning the meaning and effect of the June 7th order. This concern centers around plaintiff's " res ipsa loquitur " statement that the Defendant Times' agreement to withhold current circulation figures "in the face of the injunction motion . . . speaks for itself."
Thereafter, the hearing on the Times' application for a preliminary injunction was adjourned by all parties and the TRO extended to remain in force until this matter could be heard.
It is well-settled in the Third Circuit that:
"A preliminary injunction is not granted as a matter of right. Eli Lilly & Co. v. Premo Pharmaceutical Laboratories, Inc., 630 F.2d 120, 136 (3d Cir.) cert. denied, 449 U.S. 1014 [101 S. Ct. 573, 66 L. Ed. 2d 473] (1980). It may be granted, however, if the moving party demonstrates both a reasonable probability of eventual success in the litigation and that the party 'will be irreparably injured pendente lite if relief is not granted.' See page 136 of the Lilly opinion; Kennecott Corp. v. Smith, 637 F.2d 181 at 187 (3d Cir.1980). The trial court may also consider the possibility of harm to other interested persons from the grant or denial of the injunction, as well as harm to the public interest. Eli Lilly & Co., 630 F.2d at 136. The grant or denial of a preliminary injunction is committed to the sound discretion of the district judge, who must balance all of these factors in making a decision."
Kershner v. Mazurkiewicz, 670 F.2d 440 (3d Cir.1982) (en banc).
With this standard in mind, I turn first to consider the arguments of the parties regarding irreparable harm. As I have previously intimated, the burden rests on the party moving for preliminary injunctive relief to demonstrate that it will be irreparably injured if such relief is not granted. See Sampson v. Murray, 415 U.S. 61, 94 S. Ct. 937, 39 L. Ed. 2d 166 (1974); Koppers Co., Inc. v. Krupp-Koppers GmbH, 517 F. Supp. 836, (W.D.Pa.1981). As Judge Garth noted in Oburn v. Shapp, 521 F.2d 142 (3d Cir.1975), "A finding of no irreparable harm is itself sufficient to uphold the district court's denial of a preliminary injunction as a proper exercise of discretion." Id. at 151 quoting Commonwealth of Pennsylvania, ex rel. Creamer v. United States Department of Agriculture, 469 F.2d 1387, at 1388 (3d Cir.1972). While "what may constitute irreparable harm in a particular case is, of course, dependent upon the particular circumstances of the case," see Oburn at 151, the moving party must show an "imminent threat" which is more than mere speculation or fear as to what may ensue in the future. See Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 356 (3d Cir.1980); Nissin Foods, U.S.A., Co., Inc. v. NLRB, 515 F. Supp. 1154, 1156 (E.D.Pa.1981). Justice White, speaking for the Supreme Court in the City of Los Angeles v. Lyons, 461 U.S. 95, , 103 S. Ct. 1660, 1668, 75 L. Ed. 2d 675 (1983), noted that the required showing of irreparable injury "cannot be met where there is no showing of any real or immediate threat that the moving party will be wronged again."
For the purposes of this motion, I find that the Defendant Times has not met its burden of demonstrating irreparable injury for two reasons: First, I find that it has not demonstrated a likelihood that plaintiff would again misuse the June 7th order. While the uncontradicted evidence before me suggests that both Mr. Keller and Mr. Hoffman conducted themselves improperly in their meetings with advertisers, there is nothing to suggest that they will again attempt to misrepresent or mischaracterize the proceedings in this matter, or, in particular, that they will utilize the June 7th order for competitive purposes. As to this issue I rely especially on the memorandum to all Trentonian employees and its advertising representative which clearly instructs them to refrain from any use of that order. Second, the injury alleged by the Times is essentially a loss of advertising revenue, and a consequent loss of profits. The Times has not alleged a loss of revenue or threat thereof sufficient to destroy it as an economic entity, nor has it alleged an irreversible loss of advertising goodwill.
I find, therefore, that the Defendant Times has not demonstrated that its injury is irreparable, since it appears that any harm which has been suffered can be undone by monetary remedies. See Deerfield Medical Center v. City of Deerfield Beach, 661 F.2d 328, (5th Cir.1981); Hummel v. Brennan, 469 F. Supp. 1180 (E.D.Pa.1979). "The possibility that adequate compensatory or other corrective relief will be available at a later date in the ordinary course of litigation weighs heavily against the claim of irreparable injury." Sampson v. Murray, 415 U.S. 61, 90, 94 S. Ct. 937, 953, 39 L. Ed. 2d 166 (1974), quoting Virginia Petroleum Job Association v. Federal Power Commission, 104 U.S. App. D.C. 106, 259 F.2d 921, 925 (D.C.Cir.1958).
I similarly find that the Defendant Times has not demonstrated a likelihood of ultimate success on this issue. Assuming that Defendant Times' application is based on an allegation of fraud, I cannot find on the facts before me that it was likelier than not that either Mr. Keller or Mr. Hoffman acted with the requisite scienter. While it is possible to ascribe to either or both an intent to mislead, it is equally likely, based on the evidence before me on this motion, that they made their statements on the basis of a combination of mistaken assumptions and overzealousness. Because proof of such an intent to mislead is an essential element of a fraud claim, I find that the Defendant Times has not met its burden on this issue as well.
Having found that the Defendant Times has shown neither that it will be irreparably injured pendente lite if relief is not granted, nor that it has a reasonable probability of eventual success on this claim, I must deny its application for a preliminary injunction.
This determination is, of course, not to be taken as a decision on the ultimate merits of any claim by any of the parties, but it is equally not to be understood as a condonation of Messrs. Keller and Hoffman's conduct.
As a final matter, I must address the question of the propriety of the "corrective" letters dated August 23, 1983 which were sent out by the plaintiffs to various advertisers. Plaintiff urges me to accept the fact that these letters were sent in good faith to resolve any misunderstanding that Hoffman and Keller may have created. In my opinion, however, the letters had a tendency to create new misimpressions concerning the import of the June 7th order. In light of the history of this case, I feel that institutionally and in the interest of fairness it is the obligation of both parties to set the record absolutely straight with all advertisers who may have been contacted by the plaintiff. It seems to me that the best modality to accomplish this is for the plaintiff and the Defendant Times to send a joint letter, approved by the Court, setting forth in clear and unmistakable terms the context and meaning of the June 7th order, and emphasizing that no inference regarding the validity of either party's circulation figures is to be drawn from it. Therefore, based on this Court's inherent power to protect and enforce its orders, I will order that this letter be prepared and sent out forthwith.
In sum then, I have denied Defendant ABC's Rule 12(b)(6) motion to dismiss plaintiff's complaint, and its motion to dismiss or stay proceedings. I have denied Defendant Times' 12(b)(6) motion to dismiss certain counts of plaintiff's complaint and its application for a preliminary injunction, and I have ordered that a joint letter be sent by plaintiff and Defendant Times regarding my June 7th order.