Antitrust TRO: Delay in Seeking a TRO

My prior post noted that in Hart Intercivic, Inc. vs. Diebold, Inc., the District Court for the District of Delaware denied a request for a TRO but ordered discovery and scheduled a hearing for a preliminary injunction in a case in which one voting machine company challenged a merger between its dominant competitor and another failing company that would result in the merged company controlling 68% of the market for voting machines.

The defendant effectively argued the plaintiff’s delay, stating the following:

  1. ”On September 11, 2009, eight days after the public announcement of the Transaction, [Plaintiff] filed its initial complaint. That complaint never was served upon [Defendant]. Three days later, on September 14, 2009, [plaintiff] filed an amended complaint. Again, [Plaintiff] chose not to serve the pleading.”
  2. ”On September 23, 209, some twenty (20) days after the Transaction was publicly announced, Plaintiff suddenly was struck with a sense of urgency and filed its Motion for TRO. The following day, [Defendant] received by Federal Express a copy of the Amended Complaint, a request to waive service, the Motion for TRO and supporting papers. Two days later, without contacting Defendants’ counsel, [Plaintiff’s] counsel apparently contacted the Court and arranged for a hearing to be held on Tuesday, September 29, 2009.”

The title for this section was “Plaintiff’s Schizophrenic Litigation Approach.”