likelihood of success on the merits", is frequently adjusted to a less demanding standard. For example, some courts require movant to show only the "non-frivolity" of the appeal. Philadelphia Council of Neighborhood Organizations v. Adams, 451 F. Supp. 114 (E.D.Pa.1978). Indeed, it is appropriate to adjust the burden regarding the "likelihood of success on appeal" where the other factors weigh heavily in favor of a stay.
In the case at bar, plaintiff, Republic Industries, Inc., (Republic) originally attacked the Multiemployer Pension Plan Act Amendments of 1980 (MPPAA), 29 U.S.C. § 1381 et seq., as violative of the Fifth and Seventh Amendments. One month ago, we denied plaintiff's motion for a preliminary injunction and granted defendant's motion to dismiss. See Republic Industries, Inc. v. Central Pennsylvania Teamsters Pension Fund, 534 F. Supp. 1340 (E.D.Pa.1982). Three weeks later we denied plaintiff's motion for reconsideration.
Plaintiff's argument has been consistent throughout the course of this litigation. It has urged that MPPAA is unconstitutional as applied to it and that it need not resort to non-judicial remedies before pressing that argument. In support of this assertion, plaintiff argues that exhaustion would amount to a futility. Susquehanna Valley Alliance v. Three Mile Island, 619 F.2d 231 (3d Cir. 1980)
While we do not dispute the legal principle upon which plaintiff relies, we have held that under the facts here presented and pursuant to the decisional law of this Circuit, exhaustion of non-judicial remedies will not subject plaintiff to an exercise in legal futility. Hence, it is required.
Notwithstanding these views, however, plaintiff's appeal is clearly "non-frivolous". Currently, seventy-seven similar cases are pending in the district courts. A number of courts have, by order, granted plaintiffs the injunction which Republic originally sought here. Additionally, the basis for our order dismissing the complaint, failure to exhaust, was recently described as "one of the most unsettled areas in the law". Bethlehem Steel Corp. v. Environmental Protection Agency, 669 F.2d 903, 907 n. 1 (3d Cir. 1982).
Given the fact that courts have apparently reached conflicting conclusions regarding MPPAA and the fact that our prior holding (which we still believe to be correct) is predicated upon an unsettled area of law, we grant plaintiff's motion.
We believe that maintenance of the status quo pending appeal will best serve the interest of the parties while comporting with our own sense of justice. Moreover, neither defendant nor the public generally will be injured by the stay. Plaintiff, on the other hand, could conceivably suffer injury if we failed to grant the current motion.
An appropriate order will issue.
AND NOW, this 27th day of April, 1982, upon plaintiff's Motion for Stay pursuant to F.R.C.P. 62(c), IT IS ORDERED that, during the pendency of the appeal of this matter, the effect of the orders of this Court of March 24, 1982, and April 19, 1982, is STAYED, and defendant is barred during the pendency of appeal from initiating or prosecuting any claim against plaintiff under Section 4219 or Section 4221 of the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA), 29 U.S.C. § 1399 or § 1401.
IT IS FURTHER ORDERED that plaintiff shall post a bond on appeal in the amount of two hundred thousand dollars ($ 200,000.00).