In re Imprelis Herbicide Marketing Sales Practices and Products Liability Litigation
Filing
32
MEMORANDUM ORDER denying 17 MOTION for Preliminary Injunction Plaintiffs' Motion for Entry of Preliminary Injunction Requiring Notice of Protocol for Evidence Preservation. Signed by Judge Sue L. Robinson on 10/5/2011. (nmf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IN RE IMPRELlS® HERBICIDE MARKETING )
SALES PRACTICES AND PRODUCTS
) Civ. No. 11-624-SLR
LIABILITY LITIGATION
)
MEMORANDUM ORDER
At Wilmington this 5th day of October, 2011, having reviewed plaintiffs'1 motion
for entry of a mandatory preliminary injunction requiring notice of protocol for evidence
preservation (and the papers filed in connection therewith), and having heard oral
argument on same;
IT IS ORDERED that said motion (0.1. 17) is denied, for the reasons that follow:
1. Background facts. On October 4, 2010, defendant E.1. duPont de Nemours
and Company ("defendant") began selling Imprelis®, a selective herbicide product that
was intended to kill unwanted weeds while leaving other plant materials unharmed.
Consistent with an order of the U.S. Environmental Protection Agency (Region III)
requiring defendant to cease the sale, use and removal of Imprelis®, defendant
implemented a suspension of sale of Imprelis® in July 2011. (0.1. 19, exs. C, D)
Defendant thereafter has taken remedial measures to alleviate the harm caused by
Imprelis®, including a product return and refund program. (0.1. 27, exs. A, C, 0, E, F)
2. On July 14, 2011, plaintiffs filed the instant federal class action "on behalf of
purchasers and users" of Imprelis®, claiming damages "from tree deaths from coast to
coast." (0.1. 1 at,-r 2) More specifically, plaintiffs claim that, after Imprelis® was
1Plaintiffs include Washtenaw Acquisition, LLC, Polo Fields East, LLC, and The
Polo Fields Golf & Country Club, LLC. (0.1. 1 at,-r,-r 3-5)
applied, U[t]he trees affected by Imprelis® became unsightly and many died, adversely
affecting the property and plaintiffs' enjoyment of their property as well as diminishing
its value." (Id. at ~ 18) Plaintiffs bring causes of action on behalf of the "national class"
for consumer fraud and unjust enrichment.
3. On August 23, 2011, plaintiffs filed the motion in dispute, in which they seek
to have defendant adopt and distribute2 a proposed protocol "to preserve evidence of
Imprelis@-related injury" ("the Proposed Protocol"). (D.1. 19, ex. 8) In the Proposed
Protocol, plaintiffs direct consumers to: "(1) document the injuries to your trees; (2)
document the history of Imprelis® application; (3) preserve soil and foliage samples;
and, if you are removing any trees, (4) document the species, size, and function of
those trees." (ld.) Included among the materials submitted by plaintiffs are several
affidavits which support the proposition that, "[b]ecause of the unsightly appearance of
injured or dead trees on their properties, property owners may unwittingly dispose of
evidence that may be relevant to proving a claim for Imprelis-related damages by
cutting and removing the injured vegetation." (See, e.g., id. at exs. Nand P,
~
4)
4. Defendant opposes the relief sought, arguing generally that, because there
are numerous overlapping and competing putative class actions and individual actions
that have been filed in other jurisdictions by different putative class counsel and
individual counsel, "it is entirely appropriate - not abusive or misleading - for DuPont to
2Plaintiffs have since argued that, in the alternative, they would distribute the
Proposed Protocol if defendant were willing to (or ordered to) give plaintiffs exclusive
access to defendant's customer list. According to defendant, its "list of customers who
purchased Imprelis® is a trade secret which DuPont makes efforts to keep confidential.
See Uvewire Publishing, Inc. v. Best Software, Inc., 252 F. Supp.2d 74,85 (D. Del.
2003)." (0.1. 27 at 15)
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decline to tell unrepresented persons what one group of lawyers think they should
preserve." (0.1. 27 at 11) In further support of its position, defendant notes that
plaintiffs have not cited any case where such relief has been sought, let alone granted.
5. Standard of review. Traditional rules of equity apply to requests for
injunctive relief. See eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388,391 (2006).
The moving party for injunctive relief must establish: "(1) a likelihood of success on the
merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting
preliminary relief will not result in even greater harm to the nonmoving party; and (4)
that the public interest favors such relief." Id. (citation omitted). The burden lies with
the movant to establish every element in its favor or the grant of a preliminary injunction
is inappropriate. See P.C. Yonkers, Inc.
v. Celebrations, the Party and Seasonal
Superstore, LLC, 428 F.3d 504, 508 (3d Cir. 2005). If either or both of the fundamental
requirements - likelihood of success on the merits and probability of irreparable harm if
relief is not granted - are absent, an injunction cannot issue. See McKeesport Hosp.
v.
Accreditation Council for Graduate Med. Educ., 24 F.3d 519, 523 (3d Cir. 1994). "The
decision to grant or deny ... injunctive relief is an act of equitable discretion by the
district court." Id. The grant of a preliminary injunction is considered an "extraordinary
remedy" that should be granted only in "limited circumstances." See Kos Pharm., Inc.
V.
Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004) (citation omitted).
6. Analysis. Plaintiffs argue that they have satisfied the four-part test for
injunctive relief. First, they argue that they are likely to succeed on the merits of the
litigation, that is, likely to prove "that Imprelis® has caused injury or death to tens of
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thousands of valuable trees and has contaminated soil" without adequate warnings by
defendant of such damage. Second, they argue that they will suffer irreparable harm if
evidence of their injuries is not preserved. Third, according to plaintiffs, defendant will
not be harmed by either distributing the protocol or making available their customer lists
so that plaintiffs can distribute the protocol to putative class members. Finally, plaintiffs
argue that no public interest exists contrary to dissemination of the Proposed Protocol.
(D.I. 18 at 5)
7. The court declines to grant plaintiffs their requested relief. In the first
instance, the ultimate relief sought by plaintiffs in this case (money damages for lost or
injured trees) is not identical to the temporary relief requested (directing advice to
putative class members about preserving evidence). Preliminary injunctions "may
never be granted that address matters which in no circumstances can be dealt with in
any final injunction that may be entered." In re Microsoft Corporation Antitrust
Litigation, 333 F.3d 517, 525 (4th Cir. 2003) (quotations omitted); cf. Rochester Drug
Co-Operative v. Braintree Laboratories, Civ. No. 07-142,2011 WL 2669208 at *6 (D.
Del. July 7,2011). Indeed, plaintiffs characterize their "irreparable harm" as the
destruction of evidence they need to prove monetary damages, not any protection they
need from being further harmed by the illegality alleged in the complaint. Moreover,
plaintiffs admit that they are not "seeking relief akin to that which they would be entitled
only after prevailing in litigation." (D.I. 18 at 4) Therefore, plaintiffs have failed to
demonstrate that the identified harm is that which can be addressed by a preliminary
injunction.
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8. The court further concludes that there are public interests that strongly weigh
against dissemination of the Proposed Protocol at this time in this case. As noted
above, a class has not yet been certified, lead counsel has not yet been approved,
there are numerous other putative class actions pending in other jurisdictions and no
decision has yet been made as to which court the multi-district litigation2 will be
assigned for pretrial proceedings. The distribution of the Proposed Protocol to as yet
unrepresented members of the putative class by order of the court, whether the
distribution is by defendant or by ordering defendant to disclose its customer list to
plaintiffs' counsel, inappropriately marks plaintiffs' counsel as having the court's
imprimatur for the legal advice contained therein. 3
9. Conclusion. For all of these reasons, the court will exercise its discretion by
2See In re Imprelis Herbicide Marketing and Sales Practices Litigation (MOL
2284).
3The court is also concerned about its interfering in the competition between
defendant's remediation and plaintiffs' litigation.
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exercising restraint in ordering such extraordinary relief.4
United St tes District Judge
4As a final note, the court is mindful that, when dealing with living things, whether
it be the soil or plant materials, the "evidence" of harm is transient. However, the class
action process is intended to address the prospect that not all class members will be
able to prove their damages with the same quality of evidence. See, gen., Bigelow v.
RKO Radio Pictures, 327 U.S. 251,264 (1946) (while juries may not render a verdict
based on "speculation or guesswork," they are "allowed to act on probable and
inferential as well as upon direct and positive proof' of damages) (internal citation and
quotation omitted); In re Neurontin Antitrust Litig., Civ. Nos. 02-1830, 02-2731, MOL No.
1479, 2011 WL 286118, *10 (D.N.J. 2011) (collecting authority approving of the use of
an aggregate approach to measuring class-wide damages). For this reason as well, the
court does not find compelling the opinions of plaintiffs' experts submitted in support of
the request for injunctive relief.
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