any change in control of Grumman. Plaintiffs also claim that the absence of any notification of the 1993 amendments in the materials filed with the SEC constitutes material misrepresentations in violation of the Securities and Exchange Act of 1934.
In April prior to the merger and armed with Northrop's attractive bid of $ 62 per share, the Trustees informed the EIP participants that, pursuant to their powers and the terms of the EIP, they had decided to tender all of the Grumman stock in the EIP to Northrop. Defendants contend that this decision was made after seeking an opinion from an "independent investment advisor." The parties dispute the role of this advisor, Rothschild & Co., and whether procuring its involvement and acting upon its advice satisfied the Trustees' duties under ERISA. Plaintiffs contend that Rothschild determined only that the merger was fair from "a financial point of view," thus falling short of the role of independent advisor contemplated by ERISA. Defendants argue that Rothschild fulfilled this role and, and in addition to the financial considerations, found that the tender offer "represents adequate consideration to the Plan."
Based on the facts presented thus far, it appears to the Court that while the then management Trustees may have been aware of the January 1993 amendments, they had, by virtue of their "golden parachutes" and their personal ownership of a substantial amount of Grumman shares, conflicts of interest. Therefore, they were required to be aware of the admonishment of this Court and the Second Circuit in the Donovan v. Bierwirth case so as to know, inter alia, that a thorough independent investigation was necessary.
Plaintiffs' motion for a preliminary injunction must be denied because plaintiffs have not established that the possibility, or even actuality, of being terminated from their jobs constitutes irreparable harm. It is axiomatic that in order to obtain a preliminary injunction, the movant must establish that a) irreparable harm will result otherwise, and b) either 1) there is a substantial likelihood of success on the merits or 2) a preliminary injunction is appropriate after considering the balance of the hardships on the parties. Jackson Dairy Inc. v. H.P. Hood & Sons, 596 F.2d 70, 72 (2d Cir. 1979); JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2d Cir. 1990); Microsoft Corp. v. Harmony Computers & Electronics, Inc., 846 F. Supp. 208, 210 (E.D.N.Y. 1994). For purposes of a preliminary injunction, the movant must provide evidence of damages that can not be rectified by financial compensation. Loveridge v. Pendleton Woolen Mills, Inc., 788 F.2d 914, 917 (2d Cir. 1986).
Plaintiffs contend that they will be irreparably harmed by the consequences of the December 8, 1994 deadline. Indeed, many of the plaintiffs who have worked for Grumman for decades and who are near retirement age, are now in the unenviable position of being required to choose between early retirement under a plan with diminished benefits, or to stay with Northrop Grumman and face possible termination in early 1995. Thus, the ultimate harm that plaintiffs are attempting to avoid here is losing their jobs at Northrop Grumman.
In this Circuit, however, it is established that dismissal from employment does not constitute irreparable harm. Savage v. Gorski, 850 F.2d 64, 68 (2d Cir. 1988) (holding that dismissed employee can be made whole by reinstatement and money damages); Williams v. State University of New York, 635 F. Supp. 1243 (E.D.N.Y. 1986) (irreparable harm did not exist where a dismissed employee failed to show that extraordinary circumstances would result, such as personal bankruptcy, if stay was not granted). As this Court has stated before,
little doubt exists in the mind of this Court that [plaintiffs] may indeed suffer some anguish and some economic hardship in the course of this litigation. Nevertheless, sympathy for plaintiffs has no place in the application of the Second Circuit's standard to the facts of this case. The sole issue confronting this Court . . . is whether the plaintiffs['] circumstances are such that a refusal to issue a preliminary injunction in [their] favor will wreak irreparable harm upon [them].