(b) Unreasonable Restraint of Trade.
Whether consolidated delivery constitutes an unreasonable restraint of trade can only be resolved at the trial on the merits of the antitrust charges, after the parties have had an opportunity to develop fully the factual setting out of which consolidated delivery emerged. For a discussion of factors to be considered in determining whether restraint of trade is unreasonable, see Board of Trade of the City of Chicago v. United States, 246 U.S. 231, 62 L. Ed. 683, 38 S. Ct. 242 (1917). On the evidence presented at this preliminary hearing I cannot say that it is an unreasonable restraint of trade, or that plaintiff has demonstrated a substantial probability that it will prevail ultimately on that issue. The four department stores had used UPS to deliver their packages for thirty years. Many other retail business establishments also used it. The volume thus generated made possible greater efficiency and economy in sorting, routing and handling packages, provided a greater concentration of deliveries into a given area, and generally resulted in more efficient service at lower cost. Nevertheless, notwithstanding these advantages to the users of the service, plaintiff may be able to show that the arrangement unreasonably restrains trade. If plaintiff does ultimately show unreasonable restraint of trade, it has an adequate remedy at law for the harm caused thereby.
II. Adequacy of Remedy at Law.
(a) Irreparable Harm.
Plaintiff has not persuaded me that its remedy at law is inadequate. It contends that it will be put out of business if it loses the S&C and Lits volume. I do not accept that. Instant knew when it was engaged by those stores that the arrangements were temporary and that both would seek a more permanent solution to their delivery problems as soon as the press of the 1967 Christmas season was over. Instant made its plans to handle the increased volume with the full realization that it might have to return to the smaller scale operation on short notice. Thus, it made no extensive investment in delivery equipment to handle the S&C and Lits business. It obtained vehicles from S&C and Lits (purchased by them from UPS) on short term lease, effective only for as long as Instant was delivering for them. While it increased the number of its employees, there is nothing to indicate that it will be unable to reduce the number. There was testimony that Instant entered into a lease for a facility at Cherry Hill, New Jersey, in addition to one it had at Gloucester, New Jersey, but beyond the fact that it was for a five year term, plaintiff offered no evidence as to the terms or conditions of the lease, or as to the size of the facility, or the future plans for it. The omission may be significant in light of the fact that the lease for the Gloucester facility had less than a year remaining as of the time of the preliminary hearing. In any event there is no evidence that Instant will be overburdened by the lease.
Just as it suffered growing pains when it expanded its operation, Instant will undoubtedly suffer some inconvenience and may sustain some losses in the contraction of its operations to pre-S&C-Lits proportions, but it will survive and will continue to do business. If it be ultimately determined that defendants' conduct was unlawful and that plaintiff was harmed thereby, its loss can easily be measured and compensated by an award of damages. The number of packages delivered for each of the stores will be a matter of record. The amount of profit is capable of computation. If Instant suffers a loss with respect to delivery equipment, or with respect to the lease of the Cherry Hill facility, such loss is capable of proof and is clearly compensable by an award of money damages. Graham v. Triangle Publications, Inc., 344 F.2d 775 (3d Cir. 1965), affirming 233 F. Supp. 825 (E.D. Pa. 1964).
Cases cited by plaintiff on irreparable harm (e.g., Bergen Drug Co., Inc. v. Parke, Davis & Co., 307 F.2d 725 (3d Cir. 1962); McKesson and Robbins, Inc. v. Charles Pfizer & Co., 235 F. Supp. 743 (E.D. Pa. 1964); Airfix Corp. of America v. Aurora Plastics Corp., 222 F. Supp. 703 (E.D. Pa. 1963)) are distinguishable. Each involves the wrongful withholding of a product line for re-sale by wholesalers with consequent hard to establish loss of trade and goodwill. The Bergen and McKesson cases deal with refusals by drug manufacturers to supply important drug products to a full line, full service wholesaler. It was emphasized that pharmacies prefer to deal with full line, full service wholesalers, and if a particular wholesaler is unable to fulfill all their requirements, they are apt to take their business, permanently, to a wholesaler who can. As stated by the Court of Appeals in Bergen, 307 F.2d at 728:
"It would be impossible to estimate or compute plaintiff's damages for the loss of goodwill which it will suffer as a result of being unable to provide its retail customers with service at least equally as good as that furnished by other wholesalers who have a continuing access to defendant's products."
In the case at bar there is no question of loss of "customers" other than S&C and Lits and, as pointed out above, the damages, if any, from that loss are ascertainable and compensable.
(b) Propriety of the Injunctive Relief Requested.
Even if a plaintiff is able to show irreparable harm, grant of preliminary injunctive relief is not inevitable. The grant of such relief lies in the discretion of the Court after a balancing of the interests of the parties and the possible harm to them. Yakus v. United States, 321 U.S. 414, 88 L. Ed. 834, 64 S. Ct. 660 (1944); Rice & Adams Corp. v. Lathrop, 278 U.S. 509, 73 L. Ed. 480, 49 S. Ct. 220 (1929); Zeaner v. Highway Truck Drivers and Helpers, Local 107, 234 F. Supp. 901 (E.D. Pa. 1964).
Arguing that it has shown irreparable harm, plaintiff has asked for a preliminary injunction "to preserve the status quo." The form of order it seeks would require S&C and Lits to continue to use Instant for deliveries until the trial on the antitrust charges. In the normal course of events in this district that trial will not take place for several years. That form of order would give to plaintiff more than the injunctive relief to which it would be entitled if it were to prevail at the trial on the merits of the antitrust charges. After trial, it is highly unlikely that the Court would do more than enjoin the defendants from acting in concert to accomplish consolidated delivery. Certainly it would not issue an injunction which would, in effect, award a franchise to a carrier to deliver for one or more of the stores.
Be that as it may, as I view the status quo, it is the absence of consolidated delivery. If plaintiff had satisfied me that its remedy at law is inadequate and that a preliminary injunction should issue, I would not have been disposed to do more than to prohibit the defendants from acting in concert to effect consolidated delivery.
The motion for preliminary injunction will be denied.
Conclusions of Law
1. This Court has jurisdiction over the parties and the subject matter.
2. The actions of the four department store defendants seeking to re-establish a consolidated delivery service and selecting Tose, Inc. as the carrier to perform that service did not constitute a per se violation of the antitrust laws.
3. Plaintiff has failed to show a substantial probability that it will prevail at the trial on the merits on its charges that the actions of the defendants in re-establishing a consolidated delivery service and selecting a carrier to perform it constitute violations of the antitrust laws.
4. In the event that plaintiff does prevail at the trial on the merits, its loss may be adequately compensated at law by an award of damages.
5. Plaintiff has failed to establish that it will be irreparably harmed if the requested preliminary injunction does not issue.
6. Greater harm would be caused to the defendants by the issuance of the requested preliminary injunction than will be caused to plaintiff by the denial thereof.
7. Plaintiff is not entitled to the issuance of a preliminary injunction.