                                                         NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT


                                No. 09-2192
                               ____________

                       SECRETARY OF LABOR,
               UNITED STATES DEPARTMENT OF LABOR

                                     v.

  JOHN J. KORESKO, V; JEANNE BONNEY; PENN-MONT BENEFIT SERVICES,
INC.; KORESKO & ASSOCIATES, P.C.; KORESKO LAW FIRM P.C.; COMMUNITY
      TRUST COMPANY; PENN PUBLIC TRUST; REGIONAL EMPLOYERS
      ASSURANCE: LEAGUES VOLUNTARY EMPLOYEES’ BENEFICIARY
 ASSOCIATION TRUST; SINGLE EMPLOYER WELFARE BENEFIT PLAN TRUST

                                  John J. Koresko, V; Penn-Mont Benefit
                                  Services, Inc.; Koresko & Associates, P.C.;
                                  Koresko Law Firm, P.C.; Regional Employers
                                  Assurance: Leagues Voluntary Employees’
                                  Beneficiary Association Trust; Single Employer
                                  Welfare Benefit Plan Trust,
                                                                Appellants
                               ____________

         APPEALS FROM THE UNITED STATES DISTRICT COURT
           FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                       (D.C. Civ. No. 2:09-cv-00988 )
               District Judge: Honorable C. Darnell Jones, II
                               ____________

                 Submitted Under Third Circuit L.A.R. 34.1(a)
                              February 22, 2010
     Before: SCIRICA, Chief Judge, CHAGARES, and WEIS, Circuit Judges.

                            Filed: April 28, 2010

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                                          OPINION


WEIS, Circuit Judge.

               On March 6, 2009, while her petition to enforce subpoenas duces tecum

was pending before the District Court, the Secretary of Labor filed this suit, charging

violations of ERISA, 29 U.S.C. § 1001 et seq., by defendants Koresko and Bonney, along

with seven associated entities. A subset of those defendants responded with emergency

motions to place the case under seal and for injunctive relief. After an immediate hearing

and supplemental briefing, the District Court denied both requests, finding the

defendants’ arguments insufficient to justify such actions. We agree with the District

Court’s conclusions and will affirm.

               Because we write only for the parties, we need not describe the extensive

history of litigation between the Department of Labor and many of the defendants.

Suffice it to say that, in this case, the self-styled “Koresko defendants” asked for

injunctive relief that would have required the Secretary of Labor to not only recall a press

release about the institution of this lawsuit, but also direct all recipients of the release to

remove its contents from the public domain. They further sought to enjoin the Secretary

from issuing any additional publications regarding this suit, except for a press release

detailing the terms of the injunction, if granted. The District Court denied relief because

defendants had not, at that time, filed any responsive pleadings. As a result, the Court



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could not determine whether they were likely to succeed on the merits of their (as yet

non-existent) counterclaims. See P.C. Yonkers, Inc. v. Celebrations The Party and

Seasonal Superstore, LLC, 428 F.3d 504, 508 (3d Cir. 2005) (to obtain “extraordinary

remedy” of preliminary injunction, moving party must show, inter alia, likelihood of

success on merits of its claim (citation omitted)).

              Among the defendants are lawyers who have been actively litigating related

issues in the federal courts and who may be expected to follow the appropriate rules of

practice. Although there may exist some emergency circumstances in which injunctive

relief may be appropriate before a counterclaim is filed, such circumstances are not

present here. We do not find that the District Court erred in requiring a responsive

pleading as a prerequisite to the desired injunction. See id. (in reviewing denial of

preliminary injunction, “we exercise plenary review over the district court’s conclusions

of law and its application of law to the facts, but review its findings of fact for clear

error”). Nor was the Court wrong in declining to “read into” the defendants’ motion a

claim under the Administrative Procedure Act, 5 U.S.C. § 702, or any other claim, where

defendants had failed to demonstrate a reasonable chance of success on these hypothetical

allegations. We do not necessarily disagree with the defendants’ argument that substance

trumps (or should trump) form. However, the vague and speculative assertions of

reputational injury set forth in the defendants’ motion were well short of the level of

“substance” required to obtain preliminary injunctive relief.



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               Because we conclude that the District Court acted appropriately in denying

the motions, we do not reach the due process arguments raised by defendants on appeal.

In addition, although defendants apparently do not challenge the denial of their motion to

seal, we find that the District Court did not abuse its discretion in concluding that the

defendants’ nebulous and unsupported allegations of injury to reputation did not

sufficiently specify the actual harm to which they claimed this lawsuit would subject

them. See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 781 (3d Cir. 1994) (“[t]he

balancing of factors for and against access is a decision committed to the discretion of the

district court . . . .” (citation omitted)).

               Accordingly, the order of the District Court will be affirmed.




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