7. Chemical Bank was well aware of its fiduciary obligation to Plaintiff Washington Steel and Defendants Talley and TW, and as a matter of law the Defendant Chemical Bank had a duty not to act adversely to the interests of Plaintiff Washington Steel under the circumstances; and further, the Defendant Chemical Bank had a duty to disclose all relevant facts which Chemical Bank knew or should have known that were relevant to allowing Plaintiff Washington Steel to make an informed decision as to whether or not Plaintiff Washington Steel should allow a dual agency relationship with adverse parties to continue.
8. Contrary to their duty and obligation to their principal, Plaintiff Washington Steel, Defendant Chemical Bank, by concealing the fact that it was operating in an adverse agency relationship and a dual agency relationship with an adverse party, did then and there make itself liable for said breach of duty to said Plaintiff Washington Steel.
9. Defendant Chemical Bank did further breach its duty to the Plaintiff Washington Steel by overtly and actively directing its employees to conceal from the Plaintiff Washington Steel the fact that it, Chemical Bank, was acting in concert with Defendants Talley and TW, who were engaged in a plan to take over and control all of Plaintiff Washington Steel's assets, all of which action of Defendant Chemical Bank was contrary to their duty as agent for Plaintiff Washington Steel, and as a matter of law the said Defendant Chemical Bank is liable to Plaintiff Washington Steel for said breach of duty.
10. The evidence of the aforementioned breaches of a duty by Defendant Chemical Bank; namely, that said Defendant Chemical Bank did not advise the Plaintiff Washington Steel of its adverse and dual agency relationship with Defendants Talley and TW; and secondly, that it, in fact, actively and overtly concealed from Plaintiff Washington Steel that such adverse and dual agency relationship existed was admitted by Defendant Chemical Bank's employee, Mr. Fitzgerald.
11. The evidence in its entirety indicates beyond a reasonable doubt that the facts found heretofore by this Court are absolutely certain of proof at a final hearing in this matter, and as a consequence the probability of success on the part of Plaintiff Washington Steel in proving this case of breach of an agency fiduciary obligation is without doubt.
12. The Court finds that inasmuch as Plaintiff Washington Steel potentially would suffer the loss of control over all of its assets indicates beyond question that Plaintiff Washington Steel would be irreparably injured if relief were not granted in this matter.
13. Further, it is the finding of this Court that the questions of law as to the agency relationship are serious questions and go to the merits of this litigation and make them a fair ground for determination by a court of law such as the United States District Court.
14. The balance of hardship under the facts of this case, and in light of the egregious and unethical conduct of the Defendant Chemical Bank, decidedly tips the balance of hardship in favor of the Plaintiff Washington Steel and requires that we grant Plaintiff Washington Steel the preliminary relief requested.
15. The Court is expressly acting to grant injunctive relief on the basis of Count IV only, and the Court is not granting preliminary relief as a consequence of the allegations set forth in Counts I, II and V.
Note: (The Court notes that the Plaintiff failed to include a Count III in the Complaint; obviously, this is an error in identifying the several Counts in the Complaint).
D. ORDER OF COURT
AND NOW, this 16th day of February, 1979, after a hearing and based on the Court's findings of fact and conclusions of law, IT IS HEREBY ORDERED AND DECREED that Defendants Talley Industries, Inc., TW Corporation, their officers, directors, and all persons or entities acting in concert with them, be preliminarily enjoined for a period of 90 days, and/or until a final hearing on the merits can be held, from the date of this Order from in any way associating with or utilizing the agency relationship that is now maintained with the Defendant Chemical Bank, and that all of said Defendants, and specifically Defendant Chemical Bank, are enjoined from in any way participating in the financing, conducting, planning or arranging the tender offer of the Defendants Talley Industries, Inc., and TW Corporation for the acquisition of the common stock of Plaintiff Washington Steel Corporation.
This Order expressly does not prohibit Defendants Talley Industries, Inc., and TW Corporation from seeking another lead bank for the arranging of short-term or long-term financing for the tender offer for the acquisition of the common stock of Plaintiff Washington Steel Corporation.
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