*1 VI. carefully
We have considered each and conclude that he is not
Cheek’s claims requested
entitled to the relief. The order denying
of the District Court Cheek’s motion affirmed. SYSTEMS,
MODERN COMPUTER
INC., Appellant, SYSTEMS, INC.;
MODERN BANKING Banking Systems of Southern
Wisconsin, Appellees.
No. 88-1393. Appeals,
United States Court
Eighth Circuit.
Submitted June 14, 1988.
Decided Oct.
Rehearing Opinion En Banc Granted and 17, 1988.
Vacated Nov. *2 for the district court we remand to
and with this proceedings consistent further opinion. Minn., for
Jeffrey Keyes, Minneapolis, J.
appellant. I. Omaha, Neb., for Fitzgerald, James P. Computer Systems, Modern Plaintiff appellees. distributorship agree- Inc., into a entered Banking Sys- MAGILL, Modern ment with defendant HEANEY and Before LARSON,* time, Inc., October, Judges, tems, Senior At the Circuit and Judge. compa- District two-person start-up was a plaintiff a form contract ny. agreement was The LARSON, Judge. District Senior by Banking, the substan- presented Modern Systems, Computer Plaintiff Modern non-negotiable. of which were tive terms deci- Inc., appeals the court’s from district right gave plaintiff to the for a denying its motion sion turn-key Banking’s data distribute Modern Claiming injunction. violations computer systems, which includ- processing Comput- Modern Minnesota Franchise purchased from Texas ed both hardware sought enjoin Modern er to defendant developed by and Instruments software it terminating Banking Systems, from by commercial for use Modern selling from or market- as a distributor banks.1 computer Banking’s software ing Modern territory. through plaintiff pur- The dis- plaintiff’s exclusive From Franchise the Minnesota $3,614,739.41 trict court held of hardware worth chased apply Act did not because distributor- defendant, up and built software from parties con- ship agreement between of 86 financial institutions. a customer base provision which stat- a choice of law tained people currently employs Plaintiff govern any ed that Nebraska law by been endorsed and has Minnesota part disputes them. Based between of Minne- Independent Bankers Association that the Franchise upon its determination plaintiff’s Approximately 72.5% sota. apply, the court concluded Act did not from sale and mainte- arises to show the Computer failed Modern Banking’s pack- software nance of Modern necessary justify in- injury to comput- ages, maintenance of the sale and junctive relief. hardware, supplies to er and the sale of find the Minnesota We reverse. We utilizing Bank- banking Modern customers applied under the Franchise Act should be system. ing’s this case and that Modern circumstances of distributing began Plaintiff of suc- a likelihood Computer has shown of Minneso- Banking's systems the state on the merits of its claims under cess ta, sell at least five and was injunctive relief is the Act. Because systems, application soft- computer remedy for violations available ware, year. The during each distributor- law, remedy plaintiff’s will Minnesota plaintiff right agreement gave ship preliminary relief meaningless if largely be open adjoin- territories refusal for the first Accordingly, we find is denied. well, and in ing Minnesota injury support requisite has shown were of North and South Dakota preliminary injunction, the states issuance * LARSON, Instruments di- from Texas Texas Instruments EARL R. Senior The HONORABLE cost, purchased Judge rectly District District a lesser United States Minnesota, sitting designation. by system order to base from defendant pur- Plaintiff defendant’s software. obtain are Texas Instru- 1. Both and defendant ancillary from Texas Instru- hardware chased Although plaintiff ob- could ments distributors. directly. ments computer system tain the base manufactured plaintiffs territory.2 ing, by included within failing complete proper pa- perwork, by installing hardware not sought Plaintiff also to take over the purchased from Banking.3 territory Wisconsin when became avail- *3 1983, posi- able but defendant took the In November, Banking Modern twice re- plaintiffs right tion that of first did refusal accept plaintiffs $1,000 fused to check for Wisconsin, not extend to since Wisconsin renewal of distributorship, its and in early “open” was not at the time the distributor December, it returned an plain- order from signed. sought Plaintiff tiff, stating flatly that Computer Modern 1986, again through to enter Wisconsin longer was no a Modern distribu- assignment rights under a settlement tor. agreement between defendant and its Wis- Modern Computer present then filed the again consin distributor. Defendant action in the United States District Court move, threatening blocked this to sue and for Nebraska, District alleging inter- compete directly to enter Minnesota to prospective ference with contractual rela- plaintiff attempted if to service tions, defamation, contract, breach of any Wisconsin customers. promissory estoppel, violations, antitrust 1986, sought In defendant convert competition, unfair and violations of the licensees, distributors to all distribu- Minnesota Franchise Act and the Wisconsin except plaintiff agreed tors enter into Fair Dealership sought law. Plaintiff agreement. time, new license Since this preliminary injunction, and evidence in the pricing, defendant has revised its and has form of affidavits was submitted charged plaintiff, distributor, as a more for parties. The district court plain- denied copyrighted charges software than it request preservation tiffs for of the status licensees. quo until the parties’ merits claims fully litigated, could be appeal and this II. followed. 4, August 1987, plaintiff On filed suit seeking Minnesota state court declaration III. rights distributorship agree- under the ment, including (1) preliminary injunction Whether a specifically whether existing (1) could issue involves service consideration of Wisconsin customers, (2) movant, threat of bank harm to the whether defendant (2) require plaintiff purchase could state of the between this Texas balance (3) injury harm and the defendant, granting Instruments from the in hardware junction on parties whether defendant could will inflict the other tie the sale (3) (4) litigant, probability software, hardware to the movant will sale merits, (4) charge succeed on the the public whether defendant could its distrib- Dataphase Systems, more interest. utors than its licensees. v. C.L. 109, (8th Systems, Inc., 640 F.2d Cir. 19,1987, October On the Minnesota court 1981). single dispositive; No factor is suit, exercised its discretion to dismiss the each case all factors must considered to holding agreed had that venue they weigh determine whether on balance any disputes them lie between would granting towards injunction. Id. at exclusively Douglas County, Nebraska. month, That same filed defendant suit court, against plaintiff in proving Nebraska state Plaintiff bears the burden of alleging Computer preliminary injunction that a breached should be distributorship by installing granted, Corp. Gelco v. Coniston Part- Banking’s ners, 414, (8th Cir.1987), pay- software without 1984, part Computer subsequently South Dakota was withdrawn as 3. Modern removed this Computer’s territory of Modern because of Mod- action to federal court. Computer's performance ern failure to meet the criteria for that state. of Conflict denial the Restatement may district court’s
we reverse the Laws, had hon- and noted that Nebraska if its discre of relief the court abused past cases. provisions on an erroneous ored or based its decision tion Quail, Inc., Dain, & Klein Cosmetics Kalman legal premise. Calvin See Shull 517, (1978); Laboratories, 815 201 Neb. Corp. v. Lenox Tamerius, (8th Cir.1987); Co. v. Exchange Publish Bank & Trust West F.2d Central, Inc., 265 N.W.2d 200 Neb. ing Co. v. Mead Data Cir.1986), cert. de 1222-23 provision in the distrib- of law The choice nied, L.Ed. 107 S.Ct. 479 U.S. signed by utorship agreement (1987); Wyrick, 642 2d 1010 Randall *4 governed Agreement shall be states: “this (8th Cir.1981). 304, of Nebraska.” by the laws of the State provides the in this case based 187 of Restatement The district court Section by the on law of the state chosen primarily relief that the preliminary of denial unless to do so applied harm. plaintiff’s to show will be failure conclusion, policy contrary to fundamental challenges court’s be a Plaintiff the “would greater materially entitled to state which has a arguing protections that the Minne- in the deter- under the interest than the chosen state a Minnesota franchise as which, meaning- particular the issue and Act are rendered mination of sota Franchise 188,4 the state remedy rendered inade- of would be legal and its under the rule less § preliminary of an by denial in the absence of quate applicable the court’s of the parties.” held the Minneso- by district court the relief. The effective not con- inapplicable, (Second) hence did ta Act and Conflict of Laws Restatement of deciding plaintiff’s mo- impact (1971). 187(2)(b) g sider its reflects the Comment § tion. “Fulfillment of the of this rule: rationale only value expectations not the parties’ injunc- granting propriety of While the law; regard also be had must in contract law, the of federal question relief is tive regula- and for state for state interests We right plaintiff claims state-created. tion.” must, therefore, address the district first Nebraska, rather court’s conclusion that Minnesota have Nebraska and Both Minnesota, law controls the substan than perform- in the construction interest Opera System tive issues the case. See agreement distributorship ance of the tions, Develop Inc. v. Games case, Minnesota has the we but believe Scientific (3d Cir. Corp., 555 F.2d the Re- relationship under significant most 1977). primary Nebraska’s criteria.5 statement there. is located is that defendant contact deciding questions of conflict laws Although plaintiff has traveled to Nebras- sitting this, court a federal district such as occasions, the ka on several con- must follow Nebraska’s in Nebraska be- telephone conversations negotiated in rules. Klaxon Co. Stentor flict of laws parties in Nebraska and tween the Co., Manufacturing 313 U.S. Electric place per- Minnesota is the Minnesota. 85 L.Ed. 61 S.Ct. contract, the as well as of the Inns, formance (1941); Holiday Birdsell plaintiff. De- place incorporation Cir.1988). The district to Minnesota products fendant delivers follows determined Nebraska court domicil, residence, nationality, place (e)the by of law of an effective choice In the absence place incorporation of business governing provides parties, § parties. has the most be the state which shall that of of Laws of Conflict Restatement significant relationship to the transaction 188(2) § taking parties, consideration into i.e., states, (a) contracting, place Although Wisconsin and other contract, Dakota, por- (b) place negotiation may interest in of the have some North (c) dispute, purposes performance, place of tions subject is whether Minnesota (d) this case the issue matter of relief in the location of the applied. be contract, law should or Nebraska substantive arrangements and enters into contractual chise relationship. Id. 80C.04 and §§ in Minnesota with Minnesota customers for 80C.06. A franchise can be terminat packages. Plainly, use of its “good software ed for cause” and franchisees must appli- Minnesota would be the state of the given advance written notice and an cable of an law the absence effective opportunity to any pri- correct deficiencies parties. choice 80C.14(3). or to termination. Id. § remedy sole for commission of an “unfair Nonetheless, distributorship inequitable” practice or respect to ter ap states Nebraska law should mination of injunctive a franchise is relief. ply, Restatement, and under this choice 80C.14(1); Id. Mason v. Farmers Insur must application be honored unless of Ne Cos., 281 ance (Minn. contrary braska law would be funda 1979). Attorney mental of Minnesota. The In addition foregoing, to the the Act con- Minnesota, amicus, urges General provision tains an anti-waiver which states: result, just application arguing such Any condition, stipulation or deprive plaintiff, Nebraska law would *5 purporting any to person acquiring bind corporation, protections Minnesota of the any franchise to Act, compliance waive of the Minnesota Franchise with Minn.Stat. any provision (1986 of sections Supp.1987). 80C.01 to Ch. 80C any 80C.22 or or rule order thereunder Chapter adopted re 80C 1973 as void. legislation designed protect medial to fran Minn.Stat. 80C.21. § chisees within Minnesota from unfair con previously unregulated tracts and other Nebraska has a similar Franchise Prac- growing abuses in a national franchise in tices seq. Neb.Rev.Stat. 87-401 et §§ dustry. Peterson, Clapp (1987), 327 N.W.2d coverage but its extends to (Minn.1982); Investors, Martin franchisees within the state of Nebraska. Bie, Inc. v. 87-403(1). Vander N.W.2d Attorney Id. The Minnesota § (Minn.1978). It protection extends to argues application all General of Nebraska (1) “franchises” within the state if fran law would leave without the reme- right chisee a to use the franchiser’s dies available under either state franchise symbol, (2) trade name or commercial pub- act and would offend the fundamental “community policies franchisee shares a inter lic negating Minnesota marketing est” with the franchiser in the legislature decision to offer fran- goods services, (3) or protection franchisee chisees in Minnesota more than pay to remedies, a franchise fee. Minn. the traditional common law 80C.01(4). Stat. proven regulating See RJM & Sales Mar which § ineffective keting, Corp., Inc. v. industry. Products abuses the franchise See Banfi F.Supp. (D.Minn.1982); Note, Regulation Chase 59 Minn. Franchising, addition, Manhattan Bank v. Clusiau & Sales L.Rev. 1028-36 Rental, Inc., (Minn. 308 N.W.2d Attorney application General contends 1981); Investors, Martin of Nebraska law would vitiate the 874 n. expressed 6.6 provision the anti-waiver permitting not to franchiser circumvent requires registration The Act state- protections imposing the Act by ment to be filed any before franchise can choice of another state’s law. state, lawfully be offered or sold within the 80C.02, public Minn.Stat. argues well as a Defendant enforcement of the offering statement certain parties’ disclosures with is consistent about the proposed franchiser and the public policies fran- Minnesota and Ne- criteria, purposes Because the district court found the Franchise and we assume for of this inapplicable, any Act it did not make factual that is a re- decision "franchise.” On findings concerning whether falls with- mand, specific the district court shall make statutory in the definition aof "franchise." findings regarding this issue. Plaintiff submitted evidencethat it met all three provisions. negotiation enforce choice of counsel. No
braska to law of the choice of provision It law occurred. suggests organization that as a national application interest in the has an negate Our has not hesitated to Court single body relationships of law to all of regarding the litigation contractual choices with distributors.7 disputes to parties’ when enforce the be unfair and would unreason- general While as rule both Minnesota able. Farmland Industries v. Frazier- willingness have evidenced and Nebraska Commodities, Inc., Parrott parties’ agree enforce (8th Cir.1986). We find 851-52 such is the ments, in the case of franchiser-franchisee here, hold, case and we under Restate- relations, expressed both states have a con 187(2), of Conflict Laws § through trary of anti- intent enactment parties’ of the choice of enforcement provisions. waiver 80C.21 Minn.Stat. § contrary would be funda- 87-406(1) (1987). (1986); Neb.Rev.Stat. § public policy.8 mental provisions recognize supe These the often bargaining power rior re economic IV. franchiser, pro sources and seek ap- Minnesota power conclusion that against the use of that tect to avoid not, however, plies inquiry. does end the law. See Southern International whether, We must now consider under Sales Co. v. Potter & Division Brumfield factors, Dataphase the district court AMF, Inc., F.Supp. erred 1341-43 of (S.D.N.Y.1976); request prelimi- denying plaintiff’s Business Incentives Co. v. *6 nary 63, (S.D.N. preventing ter- F.Supp. relief defendant from Sony Corp., 397 66-67 minating Y.1975); Motors, plaintiff competing and from Jaguar Winer Inc. v. it Inc., 666, against sales 208 within exclusive territo- Triumph, NJ.Super. Rover stated, test, (1986). ry. The g as we have 506 820 of “wheth- A.2d Comment 187(2) equities er the balance of so favors the recognizes section Restatement justice requires movant to policy that court “fundamental” a in a stat embodied quo protect person preserve intervene to the status until designed against ute to Dataphase are determined.” oppressive superior bargaining use of merits Inc., Systems, Systems, 640 power, Inc. v. C.L. such as the insurer-insured rela (8th Cir.1981). F.2d tionship. 113 See Restatement of 187(2), g Conflict of Laws comment § application of the Assuming Minne Act,9plaintiff will like very sota Franchise distributorship agreement ly proving The the Act has succeed been not, very has at form contract defend- violated. Defendant case drafted least, provided ant the written notice termi presented Act, plaintiff or see on a “take it leave it” At nation under the Minn. basis. 80C.14(3) agree- (Supp.1987), nor has the time the entered into the Stat. it ment, two-person complied op start-up the contract notice and with provisions. unrepresented by legal portunity to cure See company which was Paul argument Tele-Save Court did not have the benefit This latter loses some force since plaintiff apparently Attorney position defendant's distribu- state General’s that fundamen- record does not reflect whether de- policies tor. The implicated, tal state were such as is the agreements licensees contain fendant’s Nonetheless, to extent case the Tele- here. provisions. similar majority public Save "fundamental" finds no by a choice thwarted recognize our decision a somewhat We takes protections which circumvents statute position than the deci different Sixth Circuit’s re- similar to the Minnesota Franchise we Merchandising Co. v. Consum sion in Tele-Save spectfully disagree, analy- find the dissent's Co., Distributing Cir. ers 1120 persuasive sis more in the context this case. however, Tele-Save, 1987). empha the court See id. 1124-26. freely negotiated contract at issue “was sized the by aggressive and successful business execu equal bargaining strength, supra. id. at tives” of 9.See note 6 Moreover, our case. which is not true in
1345 only in loss its termination will result not Corp., F.Supp. 449 Dynaforce Reilly v.Co. goodwill. Approxi (injunctive relief of sales but also loss (E.D.Wis.1978) Computer’s comply mately with notice of Modem busi granted for failure to 72.5% Dealership Fair ness involves the sale and maintenance of provisions under Wisconsin software, law). Banking’s in the public policies embodied the sale and support hardware, above Act and discussed maintenance of and the sale of Franchise in this case. preliminary using relief supplies banking the award of customers Mod Culli Culligan Banking’s system. International Co. v. processing ern data F.Supp. gan Conditioning, 563 Water precluded would not be While 1265, 1272(D.Minn.1983); Agen Bishop Al performing from some of these services National cy, distributor, Lithonia-Division be terminated as a Industries, F.Supp. Service very sig plaintiff would nonetheless lose (E.D.Wis.1979). business, percentage nificant of its and an goodwill. immeasurable amount See Al hard We also find the balance of F.Supp. (poten Bishop Agency, at 835 quo. preservation the status ships favors of plaintiff’s justi tial loss of 60% finding The district court’s preventing fied relief dealer harm was no threat suffered termination); Co., ship Reilly Paul premise, upon legal based erroneous (potential goodwill F.Supp. at 1035 loss of applied. namely, that Nebraska “[T]he marketplace ir and confusion constitute relief in the federal injunctive basis of terminated); reparable injury dealership if irreparable harm always been courts Brennan Petroleum Products Co. v. Pas inadequacy legal remedies.” Gelco Co., F.Supp. co Petroleum 1316- Partners, 811 Corp. v. Coniston (D.Ariz.1974)(potential goodwill loss of (8th Cir.1987)(citing Sampson v. Mur ability compete effectively mar 937, 952, 61, 88, ray, 415 U.S. 94 S.Ct. relief). ketplace justified preliminary (1974)). L.Ed.2d 166 plaintiff has success- The record shows Act, in- the Minnesota Franchise Under turn-key sys- fully marketed defendant’s junctive remedy for plaintiffs relief is sole *7 past, plaintiff in and the same tems the has wrongful Minn.Stat. termination. See today. performance interest in successful 80C.14(1) prelimi (Supp.1987). Unless distributorship Continuing the rela- with plaintiff's remedy nary granted, relief is tionship will pending trial on the merits largely meaningless. will be See Janmort in far less harm to defendant thus result International, Leasing, Inc. Econo-Car plaintiff if the rela- than would result (E.D.N.Y.1979) 1282, 1294 F.Supp. 475 tionship were terminated. See Menominee (granting preliminary relief where ultimate Gould, Inc., Rubber Co. v. futile). While remedy may otherwise be Cir.1981); (7th Culligan International alleged other common law and has 1272; Co., Co., Reilly F.Supp. at Paul violations, may antitrust recover dam find, on F.Supp. at 1035. We thus claims, the Franchise Act ages for these balance, sup- factors Dataphase that the inadequacy was enacted because injunction of an in this case. port issuance unique these in the circum alternatives relationships. stances of franchise See
Note, The lack 59 Minn.L.Rev. 1028-36. Y. legal adequate remedy provides a
of an reasons, foregoing re-we For all of the granting injunctive for relief. basis of the district court judgment verse the F.Supp. Claytor, & Co. v. Collins request for denying plaintiff’s (N.D.Ga.1979)(preliminary grant relief relief, this case for further and remand fully damage remedy did not ed where remand, On the district consideration. compensate plaintiff). concern- specific findings court shall make Fran- addition, plain- ing application of the Minnesota portion In substantial and, to meet if found chise Act is tiffs is derived from its relation- defendant, for “franchise” under ship alleges the criteria pend- negotiation an appropriate injunction signing shall issue of the ing Nebraska, on the place trial merits. took in and the choice of provision calls use of Nebraska
MAGILL, Judge, dissenting. Circuit law, majority’s apparent so I believe the all important conclusion that of the most Today public the court concludes that the Minnesota, contacts this case are in is policy of Minnesota overrides the choice of mistaken. provision agreed upon by parties. majority Because I believe that majority particularly unpersuasive is bargaining power underestimated parties possessed in its conclusion that the Computer Systems, (MCS) Modern Inc. had disparate significantly bargaining levels agreed when it terms of its franchis- case, power. prior In proceedings ing agreement Banking Sys- with Modern specifically Minnesota state court found tems, (MBS) applicability and the agreement, that at the time of their MCS Merchandising Tele-Save v.Co. Consum- bargaining unequal and MBS were not of Co., Distributing ers F.2d 1120 power. Computer Systems Cir.1987), case, I respectfully to this dis- Systems, slip No. sent. Minnesota, op., County, Dakota October opinion).1 (unpublished memorandum Tele-Save, upheld the Sixth Circuit The court concluded that contract provision supply agree- in a “[t]he not adhesive. There no evidence of a despite the existence of an Ohio stat- great bargaining disparity power be- (like Act) ute that the Minnesota Franchise * * parties tween *.” Id. provision. includes a non-waiver The court obligated concluded that it was to enforce Although recognize I that the literature following for the reasons: the franchising reports law is strewn with parties agreed advance the law to sophisticated financially powerful fran- applied disputes; to future contacts be- advantage taking relatively chisors inex- parties fairly evenly tween were divid- franchisees, perienced I do not believe that ed between the state chosen in the contract stereotype. the facts this case fit that state; plaintiffs and the were This matter involves multi-million-dollar unequal bargaining strength; not of and dealings computer companies between two the application of the law chosen in the encompassing region. in a market a tristate public repugnant contract was not to the give protection To MCS the benefit of un- plaintiffs state. Id. at 1123. Franchising der the Minnesota Act after analysis An like Tele-Save (it knowingly they protection waived that *8 applied have in been this case and the same significant they did note that so without result should have been reached. attempting negotiate for more favorable terms) party unduly Neither here denies that the fran- choice of law strikes me as agreement (signed 22, paternalistic. oppressive, chise on of October Some evidence 1980) application calls for superior of unreasonable or unfair use of Nebraska bar- dispute. Paragraph gaining position, law in the a in a event of contract adhe- sion, justified plainly states that before a court is parties agree disregarding mutually agreed upon in this “[t]he governed by shall provision. the laws of Nebras- choice of law No such extreme Further, incorporated prin- ka.” MBS is and has circumstances exist this case. Nebraska, cipal place majority seems to enunciate standard- Ordinarily, unpublished opin- parties 1. we do not cite action." Since causes action Eighth ions in this 8(i) circuit. Circuit Local Rule instant case are identical to those in the case, 8(i) party may opin- County indicates that cite an District Rule “[no] Dakota Court See, publication by e.g., Judge ion that was not intended for this authorizes this citation. Ar- * * any majority opinion Mabry, or However, other federal or state court *.” v. nold’s Jones (there 8(i) goes (1983) excep- impropriety Rule on to make an no opinion by unpublished tion “when identity are the cases related virtue an the use of an when causes identical). between the or the causes of of action are and “un- of “unfairness” per se rule less LOVE;
reasonableness.”
James M.
Northwest
Food Pro
Association;
Valley
cessors
Tualatin
argu
unpersuaded
I am
Lastly,
Inc.;
Marketing,
Plaintiffs-Ap
Fruit
public policy of Minnesota
that the
pellees;
Minnesota law in
application of
demands
Granted,
Minnesota Fran
this case.
Frohnmayer, Attorney
Dave
General for
policy in favor of offer
chise Act evinces
Oregon,
on
State of
behalf of the
in Minnesota remedies
ing franchisees
Oregon,
people of
the state
Inter
under tradi
those available
greater than
venor-Appellee;
law,
what of Minneso
but
tional common
par
willingness to enforce
v.
ta’s traditional
agreements?
Mil
choice of law
ties’
THOMAS, Administrator,
Lee M.
United
Co., 295
Packaging
Eagle
and Co. v.
liken
States Environmental Protection
(enunciating the rule
(1980)
N.W.2d 377
Agency, Defendant-Appellant;
the law of
parties agree that
that when
govern
agreement,
their
state shall
another
Congress
American Federation
Labor -
apply
interpret
will
courts
Minnesota
Organizations; Natural
of Industrial
agree
an
such
law of the state where
Council, Inc.;
Resources Defense
Unit
Insur
made);
Combined
ment is
see also
State;
Washington
ed
Farmworkers
Bode, 247 Minn.
America
ance Co.
Campesinos
Y
Pineros
Unidos Del No
(1956)
(parties to a
Therefore, I Nebraska law believe agreed per upon applied as
have been provision, and this court *9 the district court’s have affirmed of MBS’ injunctive relief because
denial of injury. to demonstrate
failure