the protection of Plaintiff's rights, a long delay in seeking relief indicates that speedy action is not required.").
Third, a preliminary injunction would not be easy to administer as it was in Bergen. The nature of the parties in this case is unlike a manufacturer and distributor where an order is placed and then filled by the other party. In the film distribution industry, simply because a movie theater places a bid does not mean it will receive the film. Defendant has the choice whether or not to license a film to a theater, and the decision to license a film involves various factors such as the terms of the bid, the type of the film, its anticipated audience, and public reaction to the film. See Theee Movies of Tarzana v. Pacific Theatres, Inc., 828 F.2d 1395, 1397 (9th Cir. 1987), cert. denied, 484 U.S. 1066, 98 L. Ed. 2d 992, 108 S. Ct. 1028 (1988) (for a discussion of this process). Should a preliminary injunction be ordered, it would be beyond the expertise of any court to determine whether or not defendant was complying with the injunction. With any given film, defendant's refusal to license could be the result of a sound business judgment, or it could be the result of a willful attempt to violate the injunction. However, the court would have no way of knowing why a particular film was not being licensed to plaintiff, nor could it properly order defendant to license a particular film to plaintiff.
Fourth, while plaintiff makes a valid attempt to argue that it will be unable to secure witnesses for trial because of other movie theaters' fear of retaliation, unlike Bergen, there is no evidence to support this, and as such, the argument amounts to sheer speculation. Plaintiff's other arguments are equally unconvincing. Any loss of business or goodwill, if any, from defendant's actions, are compensable by money damages. Frank's GMC Truck Center, Inc. v. G.M.C., 847 F.2d 100, 102 (3rd Cir. 1988) (plaintiff's loss of sales and service customers from defendant's actions were compensable by money damages). See also DFW Metro Line Serv. v. Southwestern Bell Telephone Co., 901 F.2d 1267, 1269 (5th Cir. 1990) (district court correctly concluded that any injury, including going out of business, could be calculated and recompensed in the form of money damages, especially any lost goodwill for a business which only operated for a short period of time).
The final distinguishing factor between this case and Bergen is that in this case defendant has asserted that granting plaintiff's motion will be oppressive to defendant. Defendant claims that if it is required to license its films to plaintiff, then other theaters in Philadelphia will decline to exhibit those same films, thereby resulting in money losses to defendant, as well as harm to its business relationships with other Philadelphia exhibitors. Given that plaintiff is able to obtain films from other distributors, and that there is no irreparable injury here, balancing of the harms to the parties weighs in favor of denying the preliminary injunction. See Government of the Virgin Islands v. Virgin Islands Paving, Inc., 714 F.2d 283, 285 (3rd Cir. 1983) (court must consider potential harm to the nonmoving party as well as other interested parties).
Not only is this case distinguishable from Bergen, but it is also distinguishable from plaintiff's other cited cases. In Reuters Limited v. United Press Internat'l, Inc., 903 F.2d 904 (2nd Cir. 1990), the court cited Bergen for the proposition that a preliminary injunction was warranted to avoid disruption of plaintiff's supply of its unique product during the pendency of the main lawsuit. However, the court also recognized other reasons for granting the injunction, namely, plaintiff's customers had indicated a strong preference for the product, and had threatened to stop dealing with plaintiff should the product become unavailable. There is no such evidence of this presented by plaintiff in the present case. Further, while the court in Blackwelder Furniture Co. v. Seilig Manu. Co., 550 F.2d 189 (4th Cir. 1976) held that the preliminary injunction should have been granted, in part, due to the public interest rationale recognized in Bergen, the court also articulated other reasons for granting the injunction, such as the presence of irreparable harm to the plaintiff. Interestingly, neither case cited by plaintiff is a third circuit case.
Furthermore, while the third circuit recognized Bergen's public interest rationale for preliminary injunctions in Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 803 (3rd Cir. 1989) and stated that a court may substitute a finding of irreparable harm with a showing of probable cause that a statute authorizing preliminary injunctive relief has been violated, there has been no probable cause showing by plaintiff that defendant violated the antitrust laws in this case. In fact, plaintiff has not made any type of showing regarding the likelihood of success on the merits as is required for a preliminary injunction. See Ecri, 809 F.2d at 226. Other third circuit cases that have also considered Bergen have declined to follow it for various reasons. See Hollander v. American Oil Co., 329 F. Supp. 1300 (W.D. Pa. 1971) (Bergen inapplicable despite alleged anti-trust violations where situation involved landlord-tenant relationship and plaintiff wanted to compel continuation of a lease); Instant Delivery Corp. v. City Stores Co., 284 F. Supp. 941 (E.D. Pa. 1968) (Bergen inapplicable to compel department stores to continue to use package delivery company because loss of customers was compensable and ascertainable, and Bergen scenario differed because court was not dealing with a full line, full service wholesaler).
Finally, another factor which contributed to the decision to deny plaintiff's motion merits discussion here. As previously stated, plaintiff does not actually seek to maintain the status quo by its request for a preliminary injunction. Rather, in plaintiff's initial proposed order (plaintiff submitted a second proposed order with its reply after defendant made this very argument), plaintiff seeks to have the availability of ten films of its own choice offered on the same terms as is offered to the Ritz for twelve months following the entry of this order. This clearly surpasses any agreement that existed between the parties prior to the institution of the antitrust lawsuit. In fact, plaintiff concedes that it in the past year and a half, out of fourteen films licensed to plaintiff, all but two were subsequent releases. When the facts before us indicate that there is no irreparable harm in this case nor is there any indication about plaintiff's likelihood of success on the merits, plaintiff cannot try to gain from the Court what it could not even gain through its own dealings with defendant. To impose a preliminary injunction on plaintiff's proposed terms would not only give plaintiff a windfall, but it would set an unfortunate precedent that would benefit any plaintiff who seeks a preliminary injunction during the pendency of an antitrust lawsuit. We do not read Bergen as being so broad.
In sum, plaintiff has not met the standard for proving that a preliminary injunction is warranted, nor do the facts of this case fit within the narrow confines set out in Bergen. Accordingly, plaintiff's motion for a preliminary injunction to restore the status quo will be denied. An appropriate order follows.
AND NOW, this 9th day of November, 1993, upon consideration of plaintiff's motion for injunctive relief to restore the status quo during the pendency of the litigation, and all responses thereto, it is hereby ORDERED that plaintiff's motion is DENIED.
BY THE COURT:
J. Curtis Joyner, J.