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BOYERTOWN BURIAL CASKET CO. v. WALCO NATL. CORP.

June 21, 1972

Boyertown Burial Casket Co.
v.
Walco National Corp.


Joseph S. Lord, III, C. J.


The opinion of the court was delivered by: LORD, III

Joseph S. LORD, III, C. J.

 In its complaint, Boyertown alleges that Walco has taken steps to effect an immediate acquisition of Boyertown through a cash tender offer to Boyertown's shareholders. Boyertown alleges that an acquisition of Boyertown by Walco would substantially lessen competition and tend to create a monopoly in the market for caskets in violation of § 7 of the Clayton Act. Boyertown further alleges that Walco's actions to date have disrupted and threatened to disrupt its relationships with its customers and employees and that further action by Walco to effect the acquisition will result in irreparable injury to Boyertown. Boyertown seeks a preliminary injunction restraining Walco from taking any action to acquire Boyertown.

 On May 3, 1972, we entered a temporary restraining order which enjoined Walco from "acquiring or seeking to acquire shares or assets of Boyertown; soliciting, contacting or communicating with shareholders or directors of Boyertown for the purpose of seeking representation on its Board of Directors or seeking proxies; soliciting, contacting or communicating with customers or employees of Boyertown for the purpose of promoting or effecting any such tender offer, merger or acquisition." On May 11, 1972, we continued this order pending final decision on the application for preliminary injunction. An evidentiary hearing on plaintiff's motion for a preliminary injunction was held on May 8-9, 11-12, 1972.

 Section 16 of the Clayton Act, 15 U.S.C.A. § 26, empowers a federal court to grant injunctive relief in a private action

 
"* * * against threatened loss or damage by a violation of the antitrust laws, * * * when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, * * * and upon the execution of a proper bond against damages for an injunction improvidently granted and a showing that the danger of irreparable loss or damage is immediate, * * *."

 In a suit seeking a preliminary injunction against a threatened violation of § 7 of the Clayton Act, this Circuit explained the criteria to be applied by a district court in ruling on a motion for preliminary relief as follows:

 
"Recognizing that preliminary relief is a serious remedy, and because application for such relief, particularly in a complex case, is often based on a record less comprehensive than that which a full adjudication would yield, the courts have required that a plaintiff show a reasonable chance of ultimately prevailing on the merits. In an action by a private party, the plaintiff must also show that it will suffer irreparable injury unless relief is granted."
 
Allis-Chalmers Mfg. Co. v. White Consolidated Industries, Inc., 414 F.2d 506, 510-511 (C.A. 3, 1969).

 Therefore, we must determine (1) whether plaintiff has established a reasonable probability that it will prevail at final trial on the charge of a § 7 violation; and (2) whether plaintiff has established that it will suffer irreparable harm if an injunction pendente lite is not granted.

 Section 7 of the Clayton Act prohibits a corporation engaged in commerce from acquiring "directly or indirectly, the whole or any part of the stock * * * of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be ...


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