• December 2, 2019

Mr. David Modeen allegedly left his employer PetroChoice last April. He allegedly fibbed about the next stop in his professional life, claiming to take “an executive marketing position with a promotional products company.” Instead, PetroChoice alleges, Mr. Modeen went to a direct competitor of PetroChoice, Como Lube. Moreover, he is alleged to have misappropriated PetroChoice confidential and proprietary information.

PetroChoice suspected Mr. Modeen of this subterfuge (see here at p. 10). And, in September, a PetroChoice employee (that is, Mr. Modeen’s son!) told a co-worker that his father was selling environmental services for Como. (Id.) In fact, PetroChoice allegedly knew about it in August. (Id. at p. 13).

In PetroChoice’s complaint and accompanying motion for a restraining order (TRO) filed the day before Thanksgiving, PetroChoice suggests “has good reason to believe that Defendant misappropriated, retained, and disclosed PetroChoice proprietary property, confidential information, and trade secrets…” (id. at p. 11). “This belief is supported by the ease with which Defendant successfully solicited-away business from PetroChoice,” PetroChoice contends. (id. at 12).

So why did PetroChoice wait until the Wednesday before Thanksgiving for the motion for an expedited TRO? Just a naked act of opportunism or vindictiveness? Of course, the timing inconveniences the defendant, defense counsel, and court personnel. And does it really confer a strategic advantage worth the bad PR?

In PetroChoice’s defense, we emphasize that we have not read all of the filings accompanying PetroChoice’s motion (the accompanying affidavits and attachments).

Perhaps there is an innocent, maybe even compelling, explanation for the timing. However, in our view, if there were, ProChoice should have made that clear up front and early in its memorandum of law.

Courts do not and should not punish aggressive or “zealous” lawyering, per se. Even if PetroChoice’s sole motive was to inconvenience its adversary, nothing that PetroChoice or its lawyers have done is improper. On the other hand, TROs are “extraordinary remedies.” See GreatAmerica Leasing Corp. v. Dolan, No. 10-4631 (JRT/JJK), 2011 U.S. Dist. LEXIS 9301, at *14 (D. Minn. Jan. 31, 2011) (denying a motion for a TRO in a “brain raid” case).

The movant has the burden of proving all four of the so-called “Dataphase factors,” one of which is irreparable harm. A delay of weeks, if not months, in seeking a TRO might count against the movant and a court might be more inclined to place emphasis on a movant’s delay if it suspects the timing was calculated for strategic advantage rather than necessity, of course.

Also, seeking emergency injunctive relief at the very start of litigation is, of course, a party’s (and its lawyers’) self-introduction to the judge in a lawsuit. Such timing, especially if viewed as tactical rather than of necessity, might not create the best first impression, which could have a lingering and lasting effect. (On the other hand, we note that a vast majority of these “brain raid” cases settle quite promptly. So perhaps counsel and clients feel they don’t need to worry all that much about the court’s first impression.)

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