two, serious, irreparable injuries, detailed by the Court, supra, either
of which tips the balance of hardships considerably in its favor.
Weighed against this consideration are Liberty's wholly speculative
claims of the harms it will suffer if Emons's request for a preliminary
injunction is granted. Those injuries are alleged to be twofold: First,
that permitting the Anderson Firm to represent Emons in the DES cases
will provide the Anderson Firm with opportunities to violate the
Disciplinary Rules by discussing the unrelated coverage actions with
Liberty employees. As the Court has already stated, supra, the Court will
not, ex ante, conclude that members of the Bar in good standing will
lightly disregard the professional responsibility standards of the
profession. Liberty has not alleged that the Anderson Firm has ever
improperly sought to communicate with Liberty employees to date, and
there is no reason to speculate that that will change. Moreover, if
improper communications were to occur, appropriate action could and would
be taken by the Court at such time.
Liberty also asserts that granting injunctive relief to Emons would
force Liberty "to provide financial aid and comfort to an established
adversary," the Anderson Firm, thereby requiring Liberty "to play the
role of the sacrificial lamb." Brief of Liberty Mutual Insurance Company
in Opposition to Plaintiff's Application for a Preliminary Injunction at
2. Setting aside the hyperbolic aspects of this phrasing, it is difficult
to see how the fact that the Anderson Firm may benefit from its
representation of Emons will unfairly affect Liberty. The Court rejects
Liberty's zero-sum view of the relationships among the entities involved
in the present action. The Court concludes that the balance of hardships
weighs decidedly in favor of Emons, and thus issuance of a preliminary
injunction is proper.
Pursuant to Fed.R.Civ.P. 65(c), Emons shall post a bond with the Clerk
of the Court in the amount of $50,000. "The purpose of the injunction
bond rule is to provide protection to a defendant who is under injunction
in an equity action, but who ultimately prevails on the merits." Commerce
Tankers Corp. v. National Maritime Union of America, AFL-CIO, 553 F.2d 793,
800 (2d Cir.), cert. denied, 434 U.S. 923, 98 S.Ct. 400, 54 L.Ed.2d 280
(1977). "[T]he amount of the security given by an applicant for an
injunction is a matter for the discretion of the district court. . . ."
Holborn Oil Trading Ltd. v. Interpetrol Bermuda Ltd., 658 F. Supp. 1205,
1211 (S.D.N.Y. 1987); see also United States v. Bedford Associates,
618 F.2d 904, 916-17 n. 23 (2d Cir. 1980). A bond of $50,000 is
sufficient to provide Liberty with the protection it requires.
For the reasons stated herein, Emons's motion for a preliminary
injunction is granted. Liberty is hereby enjoined from: (a) interfering
in any way with the attorney-client relationship between Emons and the
Anderson Firm in connection with the defense of the DES cases, whether or
not now pending; (b) attempting in any way to substitute alternative
defense counsel with respect to Emons's defense of the DES cases, whether
or not now pending; and (c) modifying or terminating the Coverage
Payments to be made pursuant to the Settlement Agreement.
Emons shall post a bond with the Clerk of the Court in the amount of
$50,000. The effectiveness of the injunction granted by this order is
conditioned on the posting of such a bond.