decline, respectively, in the value of the affiants present stock. Owens and Jessup, whose activities include stud services, state that if "the Revised Standard remains in effect, my stud services business will suffer dramatically, possibly forcing me out of business." Jessup and Owens Affidavits at P 6 (emphasis added). Plaintiffs repeatedly assert that the reputation necessary to compete in the market for breeding cannot be established overnight and that Championship Stock Labrador Retrievers are produced from breeders who have spent decades developing their breeding programs and reputations. Conspicuously absent from the Affidavits, however, is the height of the affiants' existing dogs and bitches and any discussion of the timing of when the destruction to their business and/or their reputation would occur. Moreover, Plaintiffs, by their own admission, concede that, at most, 69% of AKC champion Labrador Retriever bitches and 43% of AKC champion Labrador Retriever dogs would fall below the height requirements -- this does not amount to a total destruction in business. Schnare Affidavit at P 11.
The law in this Circuit requires Plaintiffs to show a likelihood of irreparable injury, not a possibility of irreparable injury, and "likelihood sets, of course, a higher standard than 'possibility'". JSG Trading Corp., 917 F.2d at 79. Plaintiffs' evidence and arguments that they will suffer "possible" irreparable harm is of no legal moment. See, e.g., Jessup and Owens Affidavits (quoted above); Hearing Transcript at 82 ("The Second Circuit says possible irreparable injury. The breeders say I am possibly going out of business") (emphasis added); Hearing Transcript at 19, 77 (same). After reviewing the Affidavits, the Court is not persuaded as a matter of fact that there is a likelihood of irreparable injury to Plaintiffs as opposed to a more remote possibility.
The Court further finds that the evidence submitted does not reflect loss of goodwill or destruction of business sufficient to support a finding of likelihood of irreparable injury. There is no imminent threat to Plaintiffs' business as a whole (as opposed to a temporary or partial disruption). See Jack Kahn Music, 604 F.2d 755 (threat has to be imminent and rejecting loss of goodwill as a basis for injunctive relief where, among other things, entire business not destroyed); Truglia v. KFC Corp., 692 F. Supp. at 279 ("loss or destruction of an entire business has also widely been held to constitute irreparable harm, at least when the business has been in operation for some time") (citations omitted). Plaintiffs' stock, by their own admission, will retain significant value. For example, Ms. Vaughn states that "the estimated value of my current stock is $ 75,000" and that the Revised Standard has "reduced the value of my present stock by at least $ 8,000." Vaughn Affidavit at PP 1, 4. Similarly, Plaintiffs admit that a significant percentage of AKC champion Labrador Retriever dogs and bitches are unaffected by the Revised Standards.
Moreover, the Court concludes that Plaintiffs' Affidavits and arguments as well as statements of Plaintiffs' counsel demonstrate that Plaintiffs' damages, if any, are quantifiable in terms of lost future profits; thus, there is no irreparable injury necessitating preliminary injunctive relief. See Loveridge v. Pendleton, 788 F.2d at 917; Jackson Dairy, 596 F.2d at 72 ("For it has always been true that irreparable injury means injury for which a monetary award cannot be adequate compensation and that where money damages is adequate compensation a preliminary injunction will not issue").
Additionally, here Plaintiffs seek to enjoin the use of the new standards, which are already in effect, and to restore the former standards. Movants, such as Plaintiffs, seeking a mandatory preliminary injunction, undoing the status quo, are subject to a heightened standard of proof. See SEC v. Unifund SAL, 910 F.2d 1028, 1039 (2d Cir. 1990) ("plaintiffs have been put to a more rigorous burden in obtaining preliminary injunctions that order some form of mandatory relief"); Christian v. New York State Board of Law Examiners, 1994 U.S. Dist. LEXIS 1876 (S.D.N.Y. Feb. 18, 1994) (same). Plaintiffs have not met that heightened standard.
The Court, having found that Plaintiffs have not demonstrated irreparable injury, need not address the issue of likelihood of success on the merits or the balance of hardships. See Reuters Ltd. v. United Press Int'l Inc., 903 F.2d 904, 907 (2d Cir. 1990) ("Because a showing of probable irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction . . . the moving party must first demonstrate that such injury is likely before the other requirements for the issuance of an injunction will be considered") (citations omitted) (internal quotations omitted). Nevertheless, the Court observes that the merits of Plaintiffs' claims, in particular their antitrust claims are, at best, weak. Plaintiffs' antitrust causes of action, as discussed above, are predicated upon an alleged conspiracy among Plaintiffs' competitors who are said to have caused LRC to recommend and AKC to adopt the Revised Standard. Neither the Complaint, nor the affidavits submitted in support of the instant motion, identify or refer to specific acts or activities suggesting any illegal agreement or concerted action by Defendants. Although reference is made to certain individuals connected with LRC and AKC, no concerted action is identified that would support a finding of illegal action. Moreover, the record is bereft of any evidence or allegation of illegal conduct by AKC. Indeed, the Court has reservations concerning whether (1) a conspiracy has been adequately pled and, if adequately pled, whether a conspiracy can be proved, (2) certain of Plaintiffs' causes of action may be maintained against LRC and/or AKC since neither entity competes with Plaintiffs, and (3) there is harm to competition and/or an effect on the price of Championship Stock Labrador Retrievers as a result of the Revised Standard.
With respect to the balance of hardships, the Court observes that the relief requested by Plaintiffs would deprive Defendants of their ability to regulate the sport of purebred dogs and to define purebred conformity standards. Significantly, Defendants' experience and expertise in the area of purebred dogs is unchallenged. In the absence of a clear showing of irreparable injury and likelihood of success on the merits, the Court resists the suggestion that it should undertake to interfere with the conduct of the affairs of these sanctioning organizations and to substitute its judgment concerning matters affecting purebred dogs. Moreover, the Court finds that the relief requested by Plaintiffs, prior to an adverse determination on the merits, would pose hardship to Defendants and that their credibility as sanctioning organizations would be undermined. Courts have recognized that injury to a sanctioning body's authority and reputation is sufficient to deny injunctive relief. See Heldman v. U.S. Lawn Tennis Ass'n, 354 F. Supp. 1241, 1252 (S.D.N.Y. 1973) (in denying preliminary injunction against USLTA, Judge Pollack observed "it would unduly damage the prestige and the operation of the USLTA to enjoin its rules before an adverse determination on the merits").
For the reasons set forth above, Plaintiffs' request for preliminary injunctive relief is denied. The parties are directed to appear for a pre-trial conference on September 21, 1994 at 9:00 a.m. in Courtroom 2703. The parties shall be prepared to discuss, among other things, the timing of a class certification motion and a discovery schedule.
Dated: New York, New York
September 12, 1994
ALLEN G. SCHWARTZ, U.S.D.J.