Defendants have satisfied their burden in this matter. A court should stay an order pending the outcome of a petition for writ of certiorari where there is: (1) a reasonable probability that certiorari will be granted; (2) a significant possibility that the judgment below will be reversed; and (3) a likelihood of irreparable harm if the judgment is reversed, and is not stayed. See Barnes v. E-Systems, Inc., 501 U.S. 1301, 112 S. Ct. 1, 2, 115 L. Ed. 2d 1087 (1991). The Keystone Defendants have not demonstrated any of these three requirements. Most obviously, they cannot show the likelihood of irreparable harm. The court's orders compelling production of the attorney billing statements were very narrowly tailored. If, in fact, there are billing statements tending to show that the attorneys advised the Keystone Defendants to take assets out of the corporation in light of the potential for CERCLA liability, it is other parties who stand to suffer irreparable harm, not the Keystone Defendants.
In any case, as to the other two factors governing the request for stay, the court found no compelling indication in the cases cited by the Keystone Defendants to suggest that this court's order is likely to be overturned. The court has been most patient and generous in granting stays to the Keystone Defendants on this matter up to this point, and finds that with the disposition of the preliminary injunction matter, and the pending judicial review, and the impending need to consider permanent injunction relief in this matter, the time is ripe to complete the discovery on this issue. Accordingly, the Keystone Defendants' June 21, 1995, motion to stay will be denied.
Finally, the Generator Defendants have asked to be excused from posting a bond for the preliminary injunction. That requirement is waived only in extraordinary circumstances, and the court sees no grounds for doing so in this case, especially where it will be shared among eight Defendants.
The Generator Defendants' motions for injunctive relief and all related motions and requests, along with the Keystone Defendants' motion to stay production of documents, will be disposed of in accordance with this memorandum. An appropriate order will be entered.
SYLVIA H. RAMBO, Chief Judge
Middle District of Pennsylvania
Dated: August 14, 1995.
And now, in accordance with the accompanying memorandum, IT IS HEREBY ORDERED THAT:
(1) The Generator Defendants' motion to amend crossclaim against Keystone Defendants is GRANTED;
(2) On or before August 31, 1995, the Generator Defendants may assert a fraudulent conveyance crossclaim against the Keystone Defendants;
(3) The Generator Defendants' motion to join additional defendants to amended crossclaim is GRANTED in part and DENIED in part;
(4) The Generator Defendants may join only the following entities and individuals as additional Defendants to the fraudulent conveyance cross-claim: Flatbush Golf Course, Inc.; The Noel Family Trust; the Bart F. Noel Separate Trust; the Brian K. Noel Separate Trust; the Lisa A. Noel Separate Trust; the Lori J. Noel Separate Trust; Bart F. Noel; Brian K. Noel; Lisa A. Noel; Lori J. Noel; and Mary E. Keller, in her capacity as Trustee;
(5) The Generator Defendants' motions for preliminary injunctive relief are GRANTED in part and DENIED in part;
(6) Subject to the conditions set forth herein, the Keystone Sanitation Company, Inc; Kenneth Noel; Anna Noel; the Flatbush Golf Course; the Noel Family Trust; the Bart F. Noel Separate Trust; the Brian K. Noel Separate Trust; the Lisa A. Noel Separate Trust; the Lori J. Noel Separate Trust; Bart F. Noel, Brian K. Noel, Lisa A. Noel, and Lori J. Noel; Trustee Mary E. Keller; and the officers, agents, employees, successors, and attorneys of Keystone Sanitation Company, Flatbush Golf Course, and the trusts named herein, are hereby enjoined until further notice from transferring, dissipating, encumbering, or otherwise adversely affecting the value of any cash, real or other property, or any other assets now in the possession of Keystone Sanitation Company, the Flatbush Golf Course, or any of said Trusts, except as specifically permitted otherwise herein;
(7) The injunction set forth in paragraph (6), above, is immediately subject until further notice to an ordinary business exception parallel to that set forth in paragraph (2) of the August 12, 1994, stipulated preliminary injunction between Keystone and the Generator Defendants, which shall apply to the business of Flatbush Golf Course, and the named trusts, but which business exception is immediately further qualified as follows:
(a) Flatbush, its officers, agents, employees, successors, and attorneys, along with the additional Defendants trusts and Trustee, are hereby enjoined from repaying to Kenneth Noel and/or Anna Noel, in their personal capacity or otherwise, any loans made by either or both of them to Flatbush from 1990 to this date, or from paying any amount due on their $ 900,000.00 in employment contracts, without express permission of this court;
(b) Keystone, Flatbush, the Trusts, their officers, agents, employees, successors, and attorneys, and Trustee Mary Keller are hereby enjoined from increasing the salaries of, or otherwise disbursing additional funds other than current salaries outside the ordinary course of business to Kenneth and Anna Noel, the four Noel children, or the Trustee, from Keystone, Flatbush, or the Trusts, without express permission of this court;