The opinion of the court was delivered by: SCHEINDLIN
MEMORANDUM OPINION AND ORDER
SHIRA A. SCHEINDLIN, U.S.D.J.
After the issuance of a preliminary injunction in this matter by the Court's Opinion and Order of January 17, 1996, both parties moved for additional relief.
I. Request for Supplemental Order
Plaintiffs ("Warner-Lambert") correctly point out that the Court's Order issuing a preliminary injunction did not address Plaintiffs' request that Defendants ("Quality King") be enjoined from secreting or destroying evidence in this case. Plaintiffs' request for a supplemental order enjoining such activity is granted. Plaintiffs also request that the Court require Defendants to file with the Court and serve on Warner-Lambert a written report specifying how Defendants have complied with the injunction. The request is granted. An appropriate order follows.
Warner-Lambert is appealing this Court's partial denial of its motion for a preliminary injunction. Pending appeal, Plaintiffs seek an injunction enjoining Defendants from selling HALLS brand cough drops for which the freshness date has passed. Quality King does not dispute Plaintiffs' recitation of the standard for granting a stay or injunction pending appeal. Pl. Mem. at 3; Def. Mem. at 3. One prong of the four-part test requires the movant to "demonstrate 'a substantial possibility, although less than a likelihood, of success' on appeal." Hirschfeld v. Board of Elections, 984 F.2d 35, 39 (2d Cir. 1993). For the reasons stated in the January 17 Opinion (which are the reasons that caused the Court twice to deny Plaintiffs the requested relief), I find that the Plaintiffs have not made such a showing. Their request for an injunction pending appeal is denied.
III. Request for Clarification of Existing Injunction
The preliminary injunction enjoined Defendants "from shipping HALLS brand cough drops in packaging (shippers and trays) that omits the freshness date printed on all Warner-Lambert shipments." Opinion and Order of January 17, 1996 at 16. Defendants now ask whether they may ship in quantities smaller than 24-bag trays, and if so, whether they must mark the freshness date on the containers in which these smaller quantities are shipped.
Marilyn Goller, Senior Manager of Sales Administration for the American Chicle Group of Warner-Lambert, testified that Warner-Lambert allows its authorized wholesalers to sell HALLS cough drops in quantities less than 24-bag trays. Tr. at 180. She acknowledged that delivery from wholesalers to retailers of quantities less than 24 bags "neither necessitates nor makes sensible the use of the HALLS shipper or display tray." Tr. at 181.
On the one hand, Defendants should not be placed in a position worse than that of authorized wholesalers, who are allowed to sell small quantities of HALLS cough drops in packaging other than trays or shippers that bear Warner-Lambert's freshness date. However, allowing Defendants to do the same would defeat the purpose of the preliminary injunction, which is to make the Warner-Lambert freshness date known to Defendants' customers. For the purpose of this injunction only, Defendants may sell HALLS cough drops in shipments of less than 24 bags (thus obviating the need for a tray or shipper) as follows:
a) If the cough drops to be shipped are at or past Warner-Lambert's freshness date (that is, if the cough drops are 24 months old or older), then Defendants must notify the customer of Warner-Lambert's freshness date by marking the date on the shipping packaging in letters large enough to be seen and read by the customer.
b) If the cough drops to be shipped have not reached the Warner-Lambert freshness date (that is, if they are less than 24 months old), then Defendants may ship them without marking the freshness date on the packaging.
Defendants are reminded that these conditions apply only to shipments of less than 24 bags. Any HALLS brand cough drops shipped in shippers and trays must bear the freshness date ...