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Actually at this point there will not be any mediators involved. I understand without any details on the specifics of the situation, your advice will be limited, but would you know what would a first meeting (phone call) generally entail? I do not think that any agreements would be locked in on a first call, so what are some suggestions to discuss or approach this initial conversation?
I agree that at least right off the bat we will not agree on the merits of each other's position. And I suppose knowing this will help me in not even trying to go there. We'll see how that goes. Out of curiosity, I've read about how non-compete cases can get costly. Why is this so, compared to other business litigation cases(?) Perhaps these could be talking points in the conference.
Right now there was an action filed, to which we filed a motion to dismiss (which is now pending for the court's decision). Are we past the TRO phase? or can they still do that?
Well this maybe slightly outside the scope of this question (and I can certainly post another one if needed), but the complaint does state an injunctive relief and I quote "...This is an action for damages and injunctive relief arising from the breach and..." and one of the requests is "Preliminarily and permanently enjoining [defendant]..." now, without having to go through the actual complaint, and based solely on those statements, it seems they may have asked for it but failed to follow proper procedure? My response was to file a motion to dismiss (reasons for which should be irrelevant to this question), and they filed an answer to the motion to which I filed a answer, now waiting on the oral hearing.
How does the TRO (if that's the same as a preliminary injuction) falls within the scope of the complaint, and within the process? This was filed back in February.
Well, again, I don't want to overstep the bounds of the original question, but your answers open up other lines of questioning, and I will certainly rate and reward accordingly if we can continue this conversation. Even if they chose not to go with a TRO (and based on your assessment of the time that's elapsed), their claim of breach of the compete would still allow them to pursue lost profits and unjust enrichment damages. In a way, that they are not pursuing a TRO, is it possible to come with some affirmative defense that, as you say, the business effect of the compete isn't very crucial? Even if I'm competing since February, I could be making $1/month or be at a loss. In that case lost profits or damages would be non existent even if they won?
No, I completely understand that damages calculation isn't part of actually establishing liability for the breach. My point was simply to the fact that you stated they didn't follow due process (or flat out pursue) in trying to get a TRO in place, and as such you stated it was an odd behavior. It still does not invalidate the fact that a breach on the compete is still to be determined.
My question was really towards whether or not them not pursuing a TRO affects the case in any other way, and I suggested as a possible effect, the fact that there would be an assumption that the damages would _not_ be irreparable (and I used the $1/month example). In other words, as per what you stated, if urgency on filing for a TRO supports the notion of irreparable damage, does the lack of it imply that damages might not be 'too serious' (for lack of better word).
To tie this to the phone conversation that I will be having, would there be an assumptions to be made related to the TROs? if they felt my competition would undermine their business why didn't they request a proper TRO? and that they didn't, might it mean that perhaps they are fighting this over a much less strong belief that the competition will harm (and as such it might hint that they might not want to go the extra mile in terms of costs or time to fight this). To tie it to your experience more directly, do you see a difference in cases when TROs are in place and not in place? and if so, how so.
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