TORRUELLA, Chief Judge.
After having worked for some thirteen years in a series of sales positions at plaintiff Campbell Soup Co., defendant Paul Giles resigned to undertake similar employment at one of Campbell's chief competitors. Campbell promptly filed suit, alleging that Giles would inevitably use or disclose various trade secrets in the performance of his new duties. Among the relief sought was a preliminary injunction barring Giles from assuming his new position (at least through the end of the fiscal year) or from otherwise making use of Campbell's trade secrets. The district court denied the request for preliminary injunctive relief, finding that Campbell had satisfied none of the four criteria governing the award thereof. Campbell now appeals, complaining principally that the court erred in failing to conduct an evidentiary hearing prior to so ruling. We affirm.
Giles has worked in Campbell's New England division since 1981 in a progressively more responsible series of sales posts. In 1989, he became "Director of Retail," charged with managing the regional sales force. In February 1991, he was promoted to "Category Sales Manager" for soups, in which capacity he assisted in the development and implementation of Campbell's sales and marketing plans. And in October 1993, upon being named one of three "Area Directors," he assumed a greater role in implementing such plans (for both the soup and grocery product lines) and acquired direct responsibility for several large retail accounts.
On November 1, 1994, Giles left Campbell's employ to undertake analogous duties at Pet, Inc., the manufacturer of Progresso soups (among other products) and one of Campbell's chief competitors. His new position — as Sales Manager for Pet's New England Division — involves the management of several brokers selling the company's products (soup and other foods) to regional customers.
The trade secrets identified by Campbell as being in Giles' possession fall into two categories: (1) marketing information for the 1995 fiscal year (which runs from August 1994 through July 1995); and (2) the existence and nature of a secret project ("the project") involving a new product line scheduled to be launched in 1995. The marketing information was said to include such data as proposed sales expenditures, the timing of promotional efforts such as advertisements and coupons, pricing strategies and other efforts to compete with competitors, and projected net unit costs (including the lowest price that could be charged customers). Campbell asserted that such information was highly confidential, since its disclosure would enable a competitor to modify its marketing plans to counteract those of Campbell. It alleged that Giles was privy to all such information. And it claimed that Giles, in undertaking to market Progresso soups in direct competition with Campbell in the same region in which he used to operate, would be unable (even in good faith) to avoid using such information. In turn, Campbell stated that the project involved a new product line designed to compete directly with some of Pet's products. Only thirty to forty of its employees (out of a total work force of 40,000) were said to even know of the project's existence; Giles was one of the few who had been informed of the details. And any premature disclosure of the project, it argued, would enable a competitor to adapt its marketing plans so as to undermine the entire venture.
In response, Giles maintained that most of the marketing information was no longer confidential — having been disclosed to customers at the outset of the fiscal year and being otherwise available through published sales materials and syndicated data sources.
The district court declined to grant a temporary restraining order and thereafter, in a detailed decision, denied Campbell's motion for a preliminary injunction. Based on its review of the documentary evidence presented, it concluded that: (1) Campbell had failed to establish a likelihood of success on the merits; (2) withholding an injunction would not irreparably harm Campbell, whereas barring Giles from assuming his new position would likely damage his career; and (3) the public interest tilted in Giles' favor, especially given the absence of a non-competition agreement. More particularly, the court
On appeal, Campbell does not dispute that the district court properly enunciated the test governing the award of a preliminary injunction — one which requires consideration of (1) the movant's likelihood of success on the merits, (2) the potential for irreparable harm, (3) a balancing of the relevant equities, and (4) the effect on the public interest. See, e.g., Sunshine Dev., Inc. v. FDIC, 33 F.3d 106, 110 (1st Cir.1994); Gately v. Commonwealth of Massachusetts, 2 F.3d 1221, 1224-25 (1st Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1832, 128 L.Ed.2d 461 (1994). Nor, apart from one misplaced objection, does Campbell dispute that the district court properly applied Massachusetts trade secret law.
As this court has previously observed, "an evidentiary hearing is not an indispensable requirement when a court allows or refuses a preliminary injunction" under Fed.R.Civ.P. 65. Aoude v. Mobil Oil Corp., 862 F.2d 890, 893 (1st Cir.1988). Unlike some other courts that have adopted "categorical rules" in this regard, we have indicated that "the balancing between speed and practicality versus accuracy and fairness" should be entrusted to the district court's discretion. Jackson v. Fair, 846 F.2d 811, 819 (1st Cir.1988). As such, the lower court's determination as to the need for an evidentiary hearing will be overturned "only if a clear abuse of discretion is shown." Id. To be sure, when the parties' competing versions of the pertinent factual events are in sharp dispute, such that the propriety of injunctive relief hinges on determinations of credibility, "the inappropriateness of proceeding on affidavits [alone] attains its maximum." SEC v. Frank, 388 F.2d 486, 491 (2d Cir.1968); accord, e.g., Jackson, 846 F.2d at 819. Campbell argues that such was the case here. We nonetheless find no abuse of discretion, for several reasons.
First, it is apparent that Campbell was afforded "a fair opportunity to present relevant facts and arguments to the court, and to counter the opponent's submissions." Aoude, 862 F.2d at 894; accord, e.g., Schulz v. Williams, 38 F.3d 657, 658 (2d Cir.1994) (per curiam) (where material facts are contested, the district court need not engage in "a full evidentiary hearing conducted in open court" but must offer the parties "a reasonable opportunity to put forth, and to oppose,
Second, the extent to which material factual issues were genuinely in dispute here diminishes somewhat upon closer inspection. With regard to its marketing information, Campbell does not contest that most such data is disclosed to customers at the start of each fiscal year or is otherwise readily available. It focuses instead on a few discrete items — primarily the lowest net cost of its products and the timing of its promotional campaigns. Yet Campbell has not taken issue with Giles' assertions (1) that the height of the soup season ends in March or April and (2) that customers typically place their orders up to four months in advance. Together, these assertions suggest that there is minimal room left for competitive maneuvering in this fiscal year.
With regard to Giles' knowledge of the project, it can well be argued that the nature of the parties' respective submissions provided a supportable basis for crediting Giles' averments over those proffered by Campbell.
Finally, we reiterate what was emphasized in Aoude: "Even where Rule 65 factfinding is desirable, it is designed to be tentative — `preliminary' — in nature.... The web of conclusions upon which a preliminary injunction rests are `statements as to probable outcomes,' nothing more." 862 F.2d at 894 (quoting Goyco de Maldonado v. Rivera, 849 F.2d 683, 686 (1st Cir.1988)); accord, e.g., Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1423 (9th Cir.1984) (in preliminary injunction context, district court need not make "binding findings of fact" but instead need only "find probabilities that the necessary facts can be proved"). For the reasons discussed above, we think the documentary evidence was sufficient to permit an informed, albeit preliminary, conclusion that injunctive relief was unwarranted. While an evidentiary hearing would undoubtedly have been helpful in light of the number of disputed issues and the lack of discovery, we are unprepared to say that the court abused its discretion in failing to conduct one.
Also requiring resolution is Campbell's motion to impound all appellate papers, which has been allowed on a provisional basis only and which Giles opposes. Any confidential information contained in such papers is properly withheld from public disclosure. Yet the only information conceivably falling within that category are the few details provided about the project; nothing in the descriptions of Campbell's marketing information can possibly be deemed sensitive. Accordingly, the motion to impound is granted only until such time as the project is publicly announced, at which point all appellate papers will be unsealed. See, e.g., Pepsico, Inc. v. Redmond, 46 F.3d 29 (7th Cir.1995). Campbell is directed to notify this court when such announcement occurs.
The order of the district court dated December 23, 1994 is affirmed. The limited injunction entered by this court on January 12, 1995 is dissolved. The motion to impound all appellate papers is allowed on a temporary basis.
Campbell's only complaint in this regard is that the district court improperly focused on Giles' potential disclosure of trade secrets while ignoring his potential use thereof. Yet, while the court did refer solely to "disclosure" on various occasions, it elsewhere referred to improper or inevitable "use." It is evident that, rather than intending any distinction between the two terms, the court was simply employing a shorthand formula. Indeed, Campbell's counsel himself referred to the "inevitable disclosure doctrine" in a letter to the court.