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Petition For Review Zekelman et al v Bowron and VectorMinima

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No. _____
______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOI...
2
letter asserting many of the same claims and arguments asserted in the TRO Motion. And, for
those eight months, Plaintif...
3
App. 3d 243, 248 (2nd Dist. 2004). A party seeking a temporary restraining order must establish,
by a preponderance of t...
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Petition For Review Zekelman et al v Bowron and VectorMinima

  1. 1. No. _____ ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS, FIRST DISTRICT ______________________________________________________________________________ ZEKELMAN INDUSTRIES, INC., Z-MODULAR LLC, and Z-MODULAR CANADA, INC. f/k/a VECTORBLOC CORP., Plaintiffs-Appellees, v. JULIAN BOWRON and VECTORMINIMA, INC., Defendants-Appellants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Rule 307(d) Appeal from the Circuit Court of Cook County, Illinois, County Department, Chancery Division, No. 20 CH 06539. The Hon. Judge Eve M. Reilly, Judge Presiding. MEMORANDUM IN SUPPORT OF APPELLANTS’ RULE 307(d)(1) PETITION FOR REVIEW OF ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER PRELIMINARY STATEMENT Defendants-Appellants Julian Bowron (“Bowron”) and VectorMinima, Inc. (“VectorMinima”) (together, “Defendants”) submit this memorandum of law in support of their Rule 307(d)(1) Petition for Review of Order Granting Motion for Temporary Restraining Order (the “Petition”). The facts in support of the Petition are set forth therein, as supplemented by the Supporting Record. Capitalized terms used herein and not otherwise defined have the respective meanings ascribed thereto in the Petition or the Supporting Record. There is no emergency here necessitating a temporary restraining order (“TRO”). Plaintiffs have known about Bowron, VectorMinima, and the Metaloq intellectual property since February 2020, eight months before filing their TRO Motion, even sending a cease and desist
  2. 2. 2 letter asserting many of the same claims and arguments asserted in the TRO Motion. And, for those eight months, Plaintiffs chose to do nothing. Aside from the lack of an emergency, Plaintiffs’ TRO Motion fails to raise a fair question of success on the merits justifying the granting of the extraordinary relief of a TRO. The non- competition and non-solicitation covenants in Bowron’s Agreement are so vague and overbroad that they are patently unenforceable under Illinois law, and the only fair reading of the Agreement is that the covenants have months ago expired on their own terms. Plaintiffs’ proffered interpretations of the Agreement in the trial court only further demonstrate that the covenants are so vague and ambiguous as to be unenforceable. Moreover, the alleged conduct by Defendants does not violate the plain language of the non-competition covenant. With respect to Plaintiffs’ misappropriation of trade secrets claims, the trial court incorrectly disregarded Plaintiffs’ complete failure to allege any well-pleaded facts supporting their contention that Defendants either misappropriated or used any of their trade secrets, including their alleged client lists. Similarly, the trial court’s finding that Plaintiffs have a likelihood of success on the merits of their trademark infringement claims is against the manifest weight of the evidence because Plaintiffs have proffered no evidence of actual confusion among the consuming public, other than a self-serving allegation from their own in-house employee. Finally, the balance of equities heavily favors Defendants in this matter. Accordingly, Defendants respectfully request that this Court reverse the trial court’s November 20 Order. ARGUMENT I. STANDARD OF REVIEW. A TRO is an emergency remedy issued to maintain the status quo until the case is disposed of on the merits. Wilson ex rel. Geiger v. Hinsdale Elementary Sch. Dist. 181, 349 Ill.
  3. 3. 3 App. 3d 243, 248 (2nd Dist. 2004). A party seeking a temporary restraining order must establish, by a preponderance of the evidence, that (1) it possesses a certain and clearly ascertainable right needing protection, (2) it has no adequate remedy at law, (3) it would suffer irreparable harm without the temporary restraining order, and (4) it has a likelihood of success on the merits. Id. Because a TRO is an “extraordinary remedy,” the party seeking one “must meet the high burden of demonstrating, through well-pled facts, that it is entitled to the relief sought.” Capstone Fin. Advisors, Inc. v. Plywaczynski, 2015 IL App (2d) 150957, ¶ 10 (citing McMann v. Pucinski, 218 Ill.App.3d 101, 108 (1991)). To be “well-pleaded,” the moving party’s “factual allegations must be supported by allegations of specific fact.” Id. (citing Patrick Eng’g, Inc. v. City of Naperville, 2012 IL 113148, ¶ 31) (emphasis in original). Review of a decision granting or denying a temporary restraining order is “limited to whether the trial court abused its discretion.” American Fed. of State, Cnty., and Mun. Emps. v. Ryan, 332 Ill. App. 3d 866, 870 (4th Dist. 2002). The question for the reviewing court is whether the trial court’s findings “are against the manifest weight of the evidence.” Nuding v. Bd. of Educ., 313 Ill. App. 3d 344, 351 (4th Dist. 2000). However, when the terms of a restrictive covenant are being interpreted, the trial court’s rulings on the enforceability of the restrictive covenants are reviewed de novo, and the trial court’s ultimate determination on the TRO is on an abuse-of-discretion standard. Plywaczynski, 2015 IL App (2d) 150957, ¶ 7. II. The November 20 Order Should Be Reversed. Defendants respectfully submit that the trial court erred in granting the November 20 Order. The underlying non-competition and non-solicitation covenants are not enforceable, and the only fair reading is that they have already expired on their own terms. Further, even if enforceable, the complained-of conduct is not a violation of the non-competition covenant. The
  4. 4. 4 trial court’s remaining findings with respect to Plaintiffs’ misappropriation and trademark claims are contrary to the manifest weight of the evidence, and the remaining factors favor Defendants. A. Bowron’s Restrictive Covenants Are Not Enforceable. 1. The non-competition and non-solicitation covenants are so vague as to be unenforceable. The review of a trial court’s rulings on the enforceability of the restrictive covenants are de novo. Plywaczynski, 2015 IL App (2d) 150957, ¶ 7. Here, Bowron’s Agreement is so vague and ambiguous regarding the duration of the non-competition and non-solicitation periods, and regarding the conduct that would constitute a violation, that they are unenforceable under Illinois law. The non-competition covenant’s prohibitions purport to run “at any time during the Term or during the [24-month] period following the later of the expiration of the Term or the Date of Termination.” (C 295 §7(a)). The non-solicitation provision is for 12 months but otherwise uses the same language to describe its duration. (Id. § 7(b)). The Agreement, however, defines “Term” as both the actual “term of employment” and, according to Plaintiffs, a static five-year period: Term of Employment. The term of employment under this Agreement (the “Term”) shall be for the period beginning on the Effective Date and ending on the fifth anniversary thereof (the “End Date”). (C 291 §2(b)) In the trial court, Plaintiffs asserted that “Term” meant a static, five-year period ending in May 2022. Yet, and as Plaintiffs did not contest before the trial court, as used elsewhere in the Agreement “Term” unambiguously refers to the actual duration of Bowron’s employment. (See, e.g., id. §2(c)) (“During the Term, Executive (A) shall serve as the Vice President, Design and Engineering...”); §3(a) (“During the Term, the Executive shall receive a base salary at a rate of ...”), and §3(d) (“During the Term, the Executive shall be entitled to paid
  5. 5. 5 vacation . . .”). It is undisputed that Bowron’s employment with Zekelman terminated in January 2018. (C 014 ¶ 10, C 283 ¶ 8.) Under Illinois law, a valid contract requires “that the promises and performances to be rendered by each party are reasonably certain.” Academy Chicago Publishers v. Cheever, 144 Ill. 2d 24, 29 (1991). “[W]here the material terms of a contract are ambiguous, the contract is unenforceable.” Wilson v. Middendork, 248 Ill. App. 3d, 870, 872 (3d Dist. 1993). Here, Plaintiffs’ interpretation of the covenants’ duration renders the Agreement so vague that Bowron, or anyone entering into the Agreement, would not know when their restrictions ended—after 12/24 months following termination of employment or, as Plaintiffs now assert, 12/24 months after May 2022. “[I]f the essential terms are so uncertain that there is no basis for deciding whether the agreement has been kept or broken, there is no contract.” Resse v. Forsythe Mergers Grp., Inc., 288 Ill. App. 3d 972, 980 (2nd Dist. 1997). Thus, the only reasonable interpretation of the Agreement that would prevent internal conflict and ambiguity is that “Term” means Bowron’s actual period of employment, which ended on January 31, 2018, meaning the 12- and 24-month restricted periods ran from that date. Otherwise, Bowron would be subjected to a six-year non-solicitation covenant and a seven-year non-competition covenant after being fired after just eight months of employment, which is grossly overbroad even in a sale-of-business context. The non-solicitation covenant, which seeks to prohibit Bowron and “any of his affiliates” from, among other things, “directly or indirectly, recruit[ing] or otherwise solicit[ing] or induc[ing]” any employee of the “Company” and from “establishing any business relationship” with any “customer, subscriber or supplier” of the Company for “any business purpose reasonably deemed competitive with the business of the Company,” (C 295 §7(b)), is also
  6. 6. 6 overbroad, vague, and unenforceable in two additional respects. First, it applies not only to customers and employees of Bowron’s former employer (Zekelman), but also to Zekelman’s “parents, related entities, and any of its direct or indirect subsidiaries.” (Id. § 7(d) (defining “Company”).) Second, it covers customers and employees of these numerous, unrelated entities irrespective of whether Bowron actually had personal contact with them or whether they were customers or employees of Zekelman during Bowron’s employment. Such provisions are too broad to be unenforceable under Illinois law. See, e.g., Cambridge Eng’g v. Mercury Partners 90 BI, Inc., 378 Ill. App. 3d 437, 455 (2007) (finding a covenant encompassing all customers and employees “regardless of whether [defendant] had contact with them” as an employee “far broader than necessary” to protect the employer’s interests). Indeed, while Plaintiffs first attempted to obtain a TRO on the basis of solicitation of prospective customers—which is not contemplated by the covenant—Plaintiffs changed tact in their reply, alleging that Defendants attempted to solicit a customer of Zekelman. But Plaintiffs do not allege that Bowron knew this individual was a current customer of Zekelman, much less that Bowron had knowledge of this during his employment. Similarly, the language seeking to prohibit Bowron and his “affiliates” from entering into any “business relationship” for “any business purpose reasonably deemed competitive” with the business of Zekelman or its parents, related entities, or direct and indirect subsidiaries is vague and overly broad. Bowron has no way of knowing which “business relationship” he or his “affiliates”—both undefined terms in the Agreement—enter into may be for “business purposes” that are “reasonably deemed competitive” with one of the many covered entities, or who would deem it to be so. Resse, 288 Ill. App. 3d at 980 (“[I]f the essential terms are so uncertain that there is no basis for deciding whether the agreement has been kept or broken, there is no
  7. 7. 7 contract.”). Plaintiffs’ interpretation would have this broad, open-ended prohibition continue until May 2023 and include customers that were never customers of Zekelman during Bowron’s employment. Plaintiffs have no legitimate business interest in such a broad prohibition and restraint of trade. 2. Defendants’ alleged conduct does not violate the non-competition covenant. Additionally, the November 20 Order should be reversed because Defendants’ alleged conduct is not a violation of the non-competition covenant, even if the non-competition covenant was enforceable and still in effect. Bowron is prohibited only from “directly or indirectly engag[ing] in . . . any Covered Business”—notably in any capacity, which itself an overly broad activity restriction—or “otherwise participat[ing] in a Covered Business.” (C 295 §7(a).) But the definition of “Covered Business” is very limited: [A]ny business, other than the Company and its subsidiaries, directly engaged in, or with significant shareholding operations that engaged in, the manufacture of welded or seamless steel tubular or pipe products with substantial manufacturing operations in North America or steel framed modular systems, steel framed modular fabrication or steel framed modular construction. (C 289 §1(k)) (emphasis added). Thus, the covenant prohibits only the “manufacture of” (i) “seamless steel tubular or pipe products” or (ii) “steel framed modular systems, steel framed modular fabrication or steel framed modular construction.” Both of those categories are subordinate clauses of “the manufacture of,” serving as the objects Bowron is prohibited from manufacturing. However, VectorMinima is solely an R&D company. (C 284 ¶ 12.) By the plain language of the Agreement, Defendant VectorMinima is not a competitor of Plaintiffs. In their reply materials in the trial court, Plaintiffs for the first time argued that “engaged in” means “greatly interested in” steel framed modular systems, steel framed modular fabrication, or steel framed modular construction. And it is in part on this basis that the trial court
  8. 8. 8 found that Plaintiffs raised a “fair question” on their breach of contract issue. (C 385 ¶ 13.) However, Plaintiffs’ argument would render the covenant’s scope so vague and overbroad as to be unenforceable. No party, including Bowron, would be able to determine what activities may constitute being “greatly interested in” something. Presumably, teaching a class on modular systems, writing an industry blog, or running an industry trade group would each constitute being “greatly interested in” modular systems, even though Plaintiffs have no plausible legitimate interest in preventing such activities. As Plaintiffs have interpreted the Agreement, Bowron will have no reasonable idea of when he may or may not be in breach of the covenant. Resse, 288 Ill. App. 3d at 980 (“[I]f the essential terms are so uncertain that there is no basis for deciding whether the agreement has been kept or broken, there is no contract.”). Accordingly, the restrictive covenants in Bowron’s Agreement are not enforceable, and the trial court’s granting of a TRO on the basis of Plaintiffs’ breach of contract claims should be reversed. B. The Trial Court Erred in Finding that Plaintiffs Raiseda Fair Question on the Likelihood of Success on Their Misappropriation Claims. Defendants respectfully submit that the trial court further erred in finding that Plaintiffs raised a “fair question” that they are likely to succeed on their misappropriation of trade secrets claims. In its November 20 Order, the trial court states that at the TRO stage, “it is enough [for the issuance of a TRO] that Plaintiffs allege their trade secrets involving its modular construction technology were used in constructing Metabloq [sic], a product that looks similar to the Plaintiffs’ Vectorbloc [sic] system, and that Defendants have used confidential client lists to solicit customers of Plaintiffs.” (C 387 ¶ 15.) The trial court misapplied the standard for granting a TRO on a misappropriation claim. To assert a violation of the Illinois Trade Secret Act, a plaintiff must demonstrate that a defendant misappropriated or used confidential data. A showing of misappropriation or use
  9. 9. 9 demands a showing of (1) an acquisition of a trade secret by improper means and (2) disclosure or use of the trade secret. 765 ILCS 1065/2. Failure to show the misappropriation or use of a trade secret is a “total failure of proof.” See Composite Marine Propellers, Inc. v. Van Per Woude, 962 F.2d 1263, 1267, 1268 (7th Cir. 1992). “It is not enough to point to broad areas of technology and assert that something there must have been secret and misappropriated.” Van Per Woude, 962 F.2d at 1266. Yet, that is precisely what Plaintiffs did here. In their TRO Motion materials, Plaintiffs never state what trade secrets Defendants allegedly misappropriated, instead providing a laundry list of purported trade secrets that perhaps could be at issue: The trade secrets at issue here are all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether how stored, compiled or memorialized physically, electronically, graphically, photographically, in writing or in the memory of Mr. Bowron. (C 132.) Derek Henderson’s declaration provides only conclusory statements that “Bowron is misappropriating Plaintiffs’ trade secrets[.]” (C 141 ¶ 5.) This fails to meet the “high burden of demonstrating, through well-pled facts, that [Plaintiffs are] entitled to the relief sought.” Plywaczynski, 2015 IL App (2d) 150957, ¶ 10) (citing McMann, 218 Ill.App.3d at 108). To be “well-pleaded,” the moving party’s “factual allegations must be supported by allegations of specific fact.” Id. (citation omitted). Rather than apply this standard, the trial court appears to have applied a standard akin to a motion to dismiss, construing allegations and inferences in the light most favorable to Plaintiffs and assuming they must be true to determine whether a claim has been stated. But whether Plaintiffs can survive a motion to dismiss and whether they have met the heightened standards for the extraordinary relief of a TRO are two completely different
  10. 10. 10 standards, and the trial court erred in conflating the two. Plaintiffs’ inevitable disclosure theory is similarly misguided. Plaintiffs provide no record that would support a substantial likelihood of success on this claim, and again provide mere conclusory statements rather than facts, saying Bowron was the “most knowledgeable person at [Zekelman] regarding the VectorBloc modular construction system” and therefore “it is more likely than not” he misappropriated their “technical trade secrets” and “inevitably used and disclosed Plaintiffs’ trade secrets and know-how.” (C 133.) Not only does Metaloq not involve Plaintiffs’ trade secrets (C 284 ¶ 12), but also Illinois courts do not often apply the inevitable disclosure doctrine, recognizing that “a broad application would be an effective bar against employees taking similar positions with competitive entities.” Quixote Trans. Safety, Inc. v. Cooper, 2004 WL 528011, at *6 (N.D. Ill. 2004) (applying Illinois law). An employer’s fear that its former employee will use trade secrets in his new position is insufficient to justify application of the inevitable disclosure doctrine, and the employer must demonstrate a “high probability” that the former employee will do so. Saban v. Caremark Rx, L.L.C., 780 F. Supp. 2d 700, 734 (N.D. Ill. 2011) (applying Illinois law). Plaintiffs simply failed to meet that burden. Plaintiffs’ allegations regarding the alleged trade secrets of their client lists is similarly supported by nothing but conjecture and supposition. Plaintiffs allege Defendants are “brazenly target[ing] clients and prospective clients from [Plaintiffs’] client lists,” (C 132), but they offer no proof their client lists constitute a trade secret, much less that Defendants took or are using such lists. In fact, Plaintiffs admit that “many” of the customers and prospective customers on their client list attended the 2020 World of Modular conference, (C 018-019 ¶ 73), which is an event open to the public that also provides a list of all attendees to anyone who attended, including Bowron—hardly the stuff of a trade secret. (C 285 ¶ 15.) “[W]here customer
  11. 11. 11 information is readily available to competitors through normal competitive means, no protectable interest exists.” Sys. Dev. Servs., Inc. v. Haarmann, 389 Ill. App. 3d 561, 575 (5th Dist. 2009). Moreover, Plaintiffs fail to address how any alleged client list allegedly taken by Bowron three years ago would not now be stale and still constitute a trade secret. In Plywaczynksi, the plaintiffs sought a TRO, in part, on alleged misappropriation of a client list. There, the plaintiffs alleged that “[i]n the course of just a few days, [the defendant] managed to solicit and convert forty one [of the plaintiff’s] accounts” to his new employer, and that “[g]iven the speed with which [the defendant] moved to solicit his former . . . accounts, it would be naïve to think he did so without a . . . client list.” Plywaczynski, 2015 IL App (2d) 150957, ¶11. Yet those allegations, which are far more detailed than the ones in Plaintiffs’ TRO Motion materials, were found by the appellate court to be “conclusory, inexplicably lacking in specifics.” Id. Indeed, the appellate court “emphasize[d] that the standard for injunctive relief is far too high for a court to rely solely on the moving party’s innuendo.” Id. Yet that innuendo is precisely what the trial court relied upon here for its findings on Plaintiffs’ client lists. In short, the trial court granted the TRO not only despite these conclusory statements but because of them, finding that “it is enough that Plaintiffs allege” them. But as the Plywaczynski court noted, the extraordinary relief of a TRO requires more. Defendants respectfully submit that the trial court’s finding that Plaintiffs have shown a likelihood of success on the merits of their misappropriation claim is against the manifest weight of the evidence and should be reversed. C. The Trial Court’s Finding that Plaintiffs Have Shown a Fair Question as to the Likelihood of Success on the Merits of their Trademark Infringement Claim is Against the Manifest Weight of the Evidence. The trial court abused its discretion when it found that the Plaintiffs raised a fair question as to the likelihood of success on the merits of its trademark infringement claim. This is because
  12. 12. 12 the trial court made this finding based on no credible evidence. It did so, based on the possibility that the relevant consuming public would be confused. But anything is “possible.” Possible confusion is not enough; confusion must be probable. Simply put, the trial court had no credible evidence before it to determine that those occupying the modular construction space were probably confused. In order to prevail on a trademark infringement claim, a plaintiff must demonstrate: (1) that its mark is a valid mark entitled to legal protection; (2) that a defendant is using a similar mark; and (3) that a defendant’s use of the similar mark creates a “likelihood of confusion” by the consuming public. Rosario D. Salerno’s Sons, Inc. v. Butta, 263 Ill. App. 3d 42 (1st Dist. 1994). In order to obtain a TRO to enjoin a defendant from using an allegedly infringing mark, a plaintiff must demonstrate by a preponderance of the evidence “the possession of a right which needs protection, irreparable injury without the protection, lack of an adequate remedy at law, and the probability of success on the merits.” Id. Plaintiffs provided to the trial court no credible evidence of a probability of success on the merits. In fact, the Plaintiffs’ original brief does not address the elements of likelihood of confusion at all. The only evidence of confusion in Plaintiffs’ original brief is an affidavit from the Plaintiffs’ in-house employee alleging that the consuming public is confused based on conversations he had with unnamed persons. (C 142 ¶ 8.) That is not sufficient evidence to warrant the entry of a temporary restraining order. As demonstrated at the trial court, the Plaintiffs’ mark is weak because it is in a crowded field of other trademark owners that use the word “vector.” There are no less than eleven (11) valid trademarks on file with the United States Patent and Trademark Office that are in the same class of Plaintiffs’ mark containing the word “vector.” (C 277-278.) Since Plaintiffs entered a
  13. 13. 13 crowded field, their rights are correspondingly weak and narrow. Eastland Music Group, LLC vs. Lionsgate Entertainment, Inc., 707 F.3d 869, 871-72 (7th Cir. 2013) (citing 2 McCarthy on Trademarks and Unfair Competition, at 11.85-.87 (4th ed. 2012)). Since Plaintiffs’ mark is weak, any differences between it and Defendants’ mark are of great importance. As Defendants articulated in their response brief, the sound, appearance and connotation of the Defendants’ mark is different from that of the Plaintiffs’ mark. (C 276.) Further, the keystone of trademark infringement is ‘likelihood of confusion’ as to source, affiliation, connection, or sponsorship of goods or services among the relevant class of customers and potential customers. Sorensen v. WD-40 Co., 792 F.3d 712, 726 (7th Cir. 2015) (citing Sands, Taylor & Wood Co. v. Quaker Oats Co., 978 F.2d 947, 957 (7th Cir. 1992)). “To decide whether there is a likelihood of confusion . . . a court must ask whether consumers, and specifically consumers who would use either product, would be likely to attribute them to a single source.” Bd. Of Regents v. Phx. Int’l Software, Inc., 653 F.3d 448, 455 (7th Cir. 2011). Possible confusion is not enough; rather, confusion must be “probable.” Sorensen, 792 F.3d at 726 (citing 4 McCarthy on Trademarks and Unfair Competition, at 23:3 (4th ed.)). The court had no credible evidence before it to determine actual confusion from the relevant consuming public, other than a self-serving affidavit of the Plaintiffs’ in-house employee. (C 142 ¶8.) This is not enough to warrant the entry of a TRO. Defendants respectfully submit that the trial court’s finding that Plaintiffs have shown a likelihood of success on the merits of their trademark infringement claim is against the manifest weight of the evidence—it was not based on any credible evidence—and should be reversed. D. The Trial Court Erred in Finding Plaintiffs Have Shown Imminent and Irreparable Harm. At the most basic level, Plaintiffs’ eight-month delay demonstrates there was and is no
  14. 14. 14 emergency requiring the “extraordinary relief” of a TRO. If Defendants’ actions were truly an emergency, Plaintiffs would have filed the TRO Motion in February 2020, but they instead waited eight months and claiming that “the need for an immediate TRO is clear” because Defendants planned to hold “an ongoing business development event” from October 28 – November 3, 2020. (C 136.) However, this event was advertised publicly weeks in advance, and the event was already over by the time of the hearing on the TRO Motion. There was and is no continuing harm requiring emergency relief. Moreover, nowhere in Plaintiffs’ TRO Motion materials do they show they lost actual customers or are at imminent risk of any such loss. Plaintiffs also have not shown why monetary damages stemming from lost customers would be insufficient for the alleged violations. Simply put, they have not met their burden of demonstrating emergency relief is necessary. E. The Balance of Harms Heavily Favor Defendants. As shown, Plaintiffs have not demonstrated any harm, let alone irreparable harm, if a TRO is not granted. On the other hand, Defendants will suffer real harm if they are enjoined from continuing their business and Mr. Bowron is prevented from earning a livelihood. (C 285- 286 ¶ 18.) A TRO would be severely detrimental to his family. In addition to being responsible for half of the childcare costs for his teenage daughter, Mr. Bowron is responsible for a significant portion of his current household costs, including its mortgage, and is supporting his current partner and her son. (Id.) The trial court’s TRO will have a substantial, immediate, and negative effect on his family. (Id.) Therefore, the balance of harms very heavily weighs in favor of Mr. Bowron, and the November 20 Order should be reversed.
  15. 15. 15 CONCLUSION This Court should reverse the November 20 Order and remand this case for further proceedings consistent with this Court’s decision and directions. Respectfully submitted, /s/ James L. Wideikis James L. Wideikis (#6278707) Matthew J. Feery (#6296353) Much Shelist, P.C. 191 N. Wacker Drive, Suite 1800 Chicago, IL 60606 Firm I.D. No. 48345 Telephone: 312-521-2000 Facsimile: 312-521-2100 jwideikis@muchlaw.com mfeery@muchlaw.com Counsel for Defendants Julian Bowron and VectorMinima, Inc.

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