Thereafter, counsel for the Asgrow companies assisted in
preparation of the Judgment for Class Defendants, the order
from which the Asgrow companies now appeal. After obtaining the
approval of plaintiff, the Judgment for Class Defendants was
submitted to this court.
Notice of the Judgment for Class Defendants and its proposed
entry was sent by plaintiff at the direction of the court to
the members of the class. Counsel for plaintiff has
represented, and it remains undenied, that the notice was sent
prepaid to the Asgrow companies. The Asgrow companies made no
objection to the entry of the Judgment for Class Defendants.
Prior to the entry of the Consent Judgment Order and the
Judgment for Class Defendants, counsel for the Asgrow companies
joined the other defense counsel in requesting that this court
enter a finding that the orders and decrees entered as a part
of the settlement of this action were in accordance with the
preponderance of evidence of record, with specific regard to
all patent and antitrust defenses which had been raised. Such
a finding was drafted by defense counsel, submitted to the
court, and entered with the approval of plaintiff and the
It is undisputed that none of the named defendants
represented by counsel for the Asgrow companies have, as of the
date of this order, complied with the Consent Judgment Order
entered January 22, 1970. All of the other named defendants
have complied with the order. After carefully considering all
facts relevant to the entry of the Judgment for Class
Defendants, it is this court's opinion that the staying of the
judgment would be grossly unfair to the plaintiff and to the
remaining members of the class. The Asgrow companies have
failed to show sufficient cause for granting a stay of the
injunctive provisions set forth in the Judgment for Class
Defendants, and their motion must be denied.
Despite the Asgrow companies' contentions to the contrary,
this court has full power and jurisdiction to enforce its
injunctive order pending appeal, absent a stay granted under
either Rule 62(c) or Rule 62(g), Federal Rules of Civil
Procedure. In re Federal Facilities Realty Trust, 227 F.2d 651,
654 (7th Cir. 1955); Gullet v. Gullet, 85 U.S.App.D.C. 12,
174 F.2d 531, 533 (1949). Therefore, the Asgrow companies' motion
to strike the plaintiff's motion for a contempt order is
totally without merit. However, contempt proceedings will be
stayed pending disposition of this matter in the United States
Court of Appeals.
It is therefore ordered that the defendants' motion for an
order to stay the relief granted in this court's judgment order
of January 22, 1970, be, and it is hereby denied.
It is further ordered that the plaintiff's motion for an
order of contempt and appropriate sanctions be, and it is
hereby stayed until disposition of the appeal pending in the
United States Court of Appeals.
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