The opinion of the court was delivered by: DAVIS
On October 29, 1968, I denied the plaintiff's motion to preliminarily enjoin the tie-in sale of certain instruments and instrument panels currently being produced by the defendant's Kiekhafer Mercury Division.
Essentially, I determined that there was at least a preliminary showing of "technological interdependence" between the defendant's MerCruiser engines, and the instruments employed to monitor their performance.
Although the plaintiff's motion for a preliminary injunction was denied, I felt constrained to impose three conditions upon the defendant, all of which are regarded as consistent with and in furtherance of the antitrust statutes, specifically Section 3 of the Clayton Act, 15 U.S.C. § 14.
The defendant, however, has filed an appeal specifically directed against these three conditions. In the interim, it has applied for a stay of my Order of October 29, 1968, which is presently before the Court.
Rule 8 of the recently effective Appellate Rules requires that application for a stay or an injunction "must ordinarily be made in the first instance in the District Court."
In addition, Federal Civil Rule 62(c) states that a Court, "in its discretion may suspend, modify, restore or grant an injunction during the pendency of an appeal . . ."
In determining the propriety of entering a stay (or injunction) pending appeal, the discretion of the Court is properly and equitably exercised principally to preserve the status quo pending resolution by the appellate Court. Newton v. Consolidated Gas Co., 258 U.S. 165, 177, 66 L. Ed. 538, 42 S. Ct. 264 (1922); Pugach v. Dollinger, 280 F.2d 521 (2nd Cir. 1960). In addition, there must be a showing by the petitioner that irreparable injury will result if the application for a stay is denied Eastern Greyhound Lines v. Fusco, 310 F.2d 632 (6th Cir. 1962), citing Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 262, 62 L. Ed. 260, 38 S. Ct. 65 (1917).
Accordingly the standards set forth above will be applied to the three "conditions" placed upon the defendant, in the decision of October 29, 1968.
Initially, the defendant was required to "take back for full credit or refund, all unused Keikhafer Mercury instrument panels which have been heretofore furnished to OEM [original equipment manufacturer] accounts, as part of its stern drive package." While I continue to perceive the necessity of this condition for reasons set forth in my October 28 decision, implementation may properly be deferred pending resolution of the appeal solely as a practical consideration thereby avoiding any unnecessary transportation of the instruments and panels at issue.
Since the defendant has indicated that it "can live" with the second condition, it is apparent that no irreparable harm will result. In addition, the essential purpose of this condition is to preserve the status quo regarding plaintiff's participation in the so-called non-critical instrument market, and to purchase the defendant's critical ...