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2450 St. Rose Parkway, Suite 120, Henderson, Nevada 89074
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Telephone: (702) 451-2055 Facsimile: (702) 451-2077
iMARKETSLIVE;
12 PLAINTIFF’S EMERGENCY
Plaintiffs, MOTION FOR AN EX PARTE
13 v. TEMPORARY RESTRAINING
ORDER AND PRELIMINARY
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BLUE CAPITAL FX, LLC, an Arizona INJUNCTION
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limited liability case; KEN IBIZUGBE, an
individual; HEATHER LOPEZ, an
16 individual; NATE BARNES, an individual;
17 Defendants.
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20 Pursuant to Federal Rule of Civil Procedure 65, Plaintiff International Markets Live,
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Inc. dba iMarketslive (hereinafter “IML”), respectfully moves the Court for an emergency ex
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parte temporary restraining order and a preliminary injunction against Defendants Blue
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Capital FX, LLC (hereinafter “BCFX”), Ken Ibizugbe (hereinafter “Ibizugbe”), Nate Barnes
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26 This Ex Parte Motion is based upon the pleadings and the records on file herein, the
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Declaration of Jason Brown In Support of Plaintiff’s Motion for Temporary Restraining Order
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and Preliminary Injunction (“Brown Decl.”), and the oral argument of counsel, if any. In
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2 support of this Motion, Plaintiff attaches the following Exhibits: the Declaration of Jason
3 Brown; and the [Proposed] Order Granting the Ex Parte Temporary Restraining Order and
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Preliminary Injunction.
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MEMORANDUM OF POINTS AND AUTHORITIES
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I. INTRODUCTION
8 Injunctive relief must be granted to IML against Defendants Ibizugbe, Barnes, and
9 Lopez, through their new company, Blue Capital FX, LLC are using confidential information
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improperly taken from IML in clear breach of their confidentiality agreements to steal IML
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customers and contractors. The Court must stop this illegal conduct as it is irreparably
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14 II. BACKGROUND
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IML is a company that provides its customers with educational tools and information to
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trade foreign and crypto currencies (“Forex Trading”). See Exhibit 1, Affidavit of Jason Brown.
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IML’s products are distributed under a direct sales model and are offered to individuals on a
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19 subscription basis. Id. IML’s products help IML provide customers with technology, education,
20 and research for Forex Trading. Id. IML contracts with IBOs in an independent contractor
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relationship as a way to effectuate the direct sales model of its products and services. Id. These
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contracts are called Independent Business Owner (“IBO”) Agreements. Id. All IML IBOs
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become IBOs of IML products only after entering into an IBO Agreement requiring the IML
25 distributor to agree to IML’s Policies and Procedures. See Exhibit 2, IML Policies and
26 Procedures. Ibizube, Lopez, and Barnes all became independent contractors for IML by signing
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the IBO Agreements.
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Ibizube, Lopez, and Barnes breached their IBO Agreements with IML by, among other
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2 things, by leaving IML and immediately starting a competing company BCFX. Defendants’
3 unconscionable actions run much deeper than simply breaching their contractual obligations. Id.
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Ibizube, Lopez, and Barnes have conspired to bribe, solicit, recruit, and entice other IML IBOs,
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customers, and traders away from IML and to BCFX. Id. Said Defendants then acted out their
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conspiracy by bribing, soliciting, recruiting, and enticing other IML IBOs and traders away from
8 IML and to BCFX. Id. Moreover, Defendants reprehensible behavior extends to knowingly and
9 intentionally stealing Confidential Information and intellectual property from IML for their own
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profit and gain. In order to halt Defendants’ duplicitous actions from further irreparably harming
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Plaintiff, this Court must grant injunctive relief by granting a temporary restraining order and
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19 and trade secrets. Said Defendants breached their obligations under their IBO Agreements and
20 engaged in a pattern of duplicitous conduct by: leaving IML and immediately starting a
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competing company BCFX; conspiring to bribe, solicit, recruit, and entice other IML IBOs,
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customers, and traders away from IML and to BCFX; bribing, soliciting, recruiting, and
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enticing other IML IBOs and traders away from IML and to BCFX; and knowingly and
25 intentionally stealing Confidential Information and intellectual property from IML for their
26 own profit and gain.
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Accordingly, Plaintiff respectfully requests that this Court to restrain Defendants from
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(1) bribing, soliciting, recruiting or enticing IML IBOs, customers, and traders; (2) and
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3 proprietary information. An ex parte order preserves the status quo ante and prevents
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irreparable harm. See Granny Goose Foods, Inc., v. Brotherhood of Teamsters, 415 U.S. 423,
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439 (1974). This is precisely the type of relief Plaintiff seeks here. In seeking an order
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restraining Defendants from further irreparably harming Plaintiff, Plaintiff is requesting this
8 Court’s assistance to preserve the status quo antebellum and prevent irreparable harm until
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the Court is able to hold a hearing on these issues. Courts may grant an ex parte temporary
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restraining order when: (1) immediate and irreparable injury, loss, or damage will result to the
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applicant before the adverse party can be heard; and (2) the moving party demonstrates the
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19 IML provide customers with technology, education, and research for Forex Trading. IML
20 contracts with IBOs in an independent contractor relationship as a way to effectuate the direct
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sales model of its products and services. These contracts are called Independent Business Owner
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(“IBO”) Agreements. See Exhibit 1. All IML IBOs become IBOs of IML products only after
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entering into an IBO Agreement requiring the IML distributor to agree to IML’s Policies and
25 Procedures.
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The IBO states that each distributor has carefully read and agrees to comply with IML’s
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Policies and Procedures. IML’s Policies and Procedures require, among other things, that:
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• IBOs may not directly or indirectly recruit other IBOs or customers for other
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24 requiring the IBO to agree to IML’s Policies and Procedures. See Exhibit 1. On or about May
25 15, 2018, Defendant Lopez entered into an IBO Agreement requiring the IBO to agree to
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IML’s Policies and Procedures. Id. On or about May 13, 2018, Defendant Barnes entered into
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an IBO Agreement requiring the IBO to agree to IML’s Policies and Procedures. Id. At all
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times relevant herein, Ibizube, Lopez, and Barnes knew and were aware of the terms of the
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2 IML Policies and Procedures, including the prohibitions against recruiting IML IBOs and
3 traders to leave IML, the prohibition against working for a competitor of IML, and the
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prohibition against providing Confidential Information and intellectual property to anyone
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outside of IML.
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IML believed that Ken Ibizugbe was a skilled Forex trader, and the company wanted
8 him to transfer to a different department in IML where he could hone his skills and eventually
9 become a Swipe Trade Master, a full-time trader. Id. In doing so, he could develop and use his
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skills as a trader to the betterment of IML and himself. Id. Before he became a Swipe Trade
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Master, Ibizube began misrepresenting to people in presentations at events that he was already
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13 a Swipe Trade Master. At the Tempo event in Tempe, Arizona, Ibizube was using this IML
14 platform to recruit IML IBOs, including prominent IBOs, to join a new company that he was
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forming. Id.
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In early August of 2018, Ibizube informed IML that instead of becoming a Swipe Trade
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Master, he no longer desired to work for IML, and that he was going to start his own trading
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19 business called Blue Capital FX (“BCFX”) using the confidential information he obtained from
20 IML. Ibizube has access to client and IBO lists which he used, and is currently using, to
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actively recruit IML customers and IBOs to BCFX. IML employees tried to persuade him not
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to violate his agreement with IML, but they were told that he was going to start BCFX with
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IML IBOs and customers anyway.
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IML asks this Court to issue a TRO against Defendants ordering Defendants to refrain from
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2 use of any and all confidential and trade secret information obtained from IML.
3 V. LEGAL ARGUMENT
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In light of the facts above, and applying the controlling law, the Court should award
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the temporary relief requested in this motion and described in the Proposed Order. First, IML
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is likely to prevail on the merits of this case because the company will be able to show that
8 Defendants are actively violating the confidentiality agreements they entered into with IML;
9 as well as committing tortious acts by unlawfully taking IML customers and IBOs by using
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IMLs confidential information. Second, Defendant’s wrongful activities are causing Plaintiff
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irreparable harm in the form loss of thousands of IBOs and customers and untold harm to
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13 Plaintiff’s good will and reputation among its consumers. Third, the balance of equities favors
19 public interest favors entering an injunction, because public policy favors enforcing contracts
20 and the Uniform Trade Secrets Act. Accordingly, Plaintiff respectfully asks this Court to grant
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Plaintiff’s requested relief, as set forth in the Proposed Order.
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A. PLAINTIFF IS ENTITLED TO A TEMPORARY RESTRAINING ORDER AND
23 PRELIMINARY INJUNCTION BECAUSE OF DEFENDANTS’ USE OF IML’S
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CONFIDENTIAL AND TRADE SECRET INFORMATION AND CONTINUED
COMMISSION OF TORTIOUS INTERFERENCE
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The sine qua non of injunctive relief is a showing of irreparable injury and the
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inadequacy of legal remedies which is exactly what we have in this situation. See Sampson v.
28 Murray, 415 U.S. 61, 88 (1974). The rule governing temporary restraining orders is contained
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13 demonstrate: (1) a likelihood of success on the merits; (2) irreparable harm in the absence of
14 an injunction; (3) that the balance of equities tips in plaintiff’s favor; and (4) that injunctive
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relief is in the public’s interest. See Munaf v. Geren, 553 U.S. 674, 689-690, 128 S.Ct. 2207,
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2218-2219, 171 L.Ed.2d 1 (2008); Amoco Production Co. v. Gambell, 480 U.S. 531, 542, 107
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S.Ct. 1396, 94 L.Ed.2d 542 (1987); Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-312,
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19 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982); Winter v. Natural Resources Defense Council, Inc.,
20 555 US 7 - Supreme Court 2008. AstraZeneca LP v. Apotex, Inc., 633 F.3d 1042, 1049 (Fed.
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Cir. 2010). The standard for a temporary restraining order is the same as the standard for a
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preliminary injunction. See Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., 240 F.3d
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832, 839 n. 7 (9th Cir. 2001). Nevada state law requires the same showing. University Sys. v.
25 Nevadans for Sound Gov't, 100 P. 3d 179 - Nev: Supreme Court 2004
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1. PLAINTIFF IS LIKELY TO SUCCEED ON THE MERITS
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Defendants Ibizuge, Lopez, and Barnes have clearly breached IML’s Policies and
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Procedures by using the confidential “genealogical and Downline reports, customer lists,
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steps to steal IML clients and IBOs, the business torts of intentional interference with
16 affidavit that the commission or continuance of some act, during the litigation, would
17 produce great or irreparable injury to the plaintiff.’" The Nevada Supreme Court states that
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the injunction is appropriate when “the defendant's conduct, if allowed to continue, will
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result in irreparable harm for which compensatory damages is an inadequate remedy.
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Number One Rent-A-Car v. Ramada Inns, 94 Nev. 779, 780, 587 P.2d 1329, 1330 (1978).”
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22 Sobol v. Capital Management Consultants, 726 P. 2d 335 - Nev: Supreme Court 1986. The
23 Sobol Court goes on to state, “acts committed without just cause which unreasonably
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interfere with a business or destroy its credit or profits, may do an irreparable injury and thus
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authorize issuance of an injunction. Guion v. Terra Marketing of Nev., Inc., 90 Nev. 237,
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240, 523 P.2d 847, 848 (1974).” Id. “Courts often use the terms ‘immediate’ and
28 ‘irreparable’ in the context of determining whether to grant injunctive relief. See NRCP
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65(b) (permitting temporary restraining orders if specific facts show "immediate and
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2 irreparable injury, loss, or damage"); Dixon v. Thatcher, 103 Nev. 414, 415-16, 742 P.2d
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411 S.E.2d 832, 839 (1991).” Hamm v. Arrowcreek HOA, 183 P. 3d 895 - Nev: Supreme
8 Court 2008.
9 Here, BCFX is using IML’s trade secret and confidential information to commit acts
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directly on point with the Sobol Court’s decision. Id. Defendants are wrongfully pursuing
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IML clients through engagement with IML clients at IML events. Defendants are using
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13 social media groups under the protection of the confidentiality agreement which were used
14 to recruit IBOs and customers to IML for BCFX. The lost of IBOs and customers to BCFX
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is causing immediate and irreparable harm to IML. IML’s IBOs, customers, and potential
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customers are currently being adversely affected by defamation, violations of the
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confidentiality provision of the IBO contract’s policy and procedures provisions, and
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19 tortious inference with clients and prospective clients. It will be very difficult to make an
20 accurate calculation as to the damage caused by these wrongful acts of the Defendants.
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3. THE BALANCE OF HARDSHIPS IS IN FAVOR OF IML
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The balance of hardships assesses the relative effect of granting or denying an
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injunction on the parties. See Clark Co. School Dist. v. Buchanan, 112 Nev. 1146, 1150,
25 924 P.2d 716, 719 (1996). In this case, the balance of hardships tips decidedly in IML’s
26 favor. First, as already discussed, IML will suffer irreparable harm if BCFX continues to
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use IML’s client lists and trade secrets to unlawfully recruit IML IBOs and customers. If
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BCFX continues to violate the agreement and commit tortious interference, IML’s current
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2 IBOs may believe that their contracts with IML are meaningless and they can violate the
3 contracts without repercussion. Additionally, IML IBOs may begin to lose trust in the
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company if IML does not protect their downline by not enforcing the contracts. IML has
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much to lose if the injunction is not granted.
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Defendants have the hardship of following their IML agreements in order to build a
8 customer base for BCFX. Defendants will have to generate business from methods of
9 marketing that do not tortuously interfere with IML’s current or prospective clients. These
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hardships only come from following the agreements they entered into with IML and other
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statutory and legal authority.
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14 The main public policy at issue in this case is the right to contract and to enforce
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valid contracts, namely confidentiality agreements. The confidentiality agreement in this
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case does not prevent Defendants from employment. See Exhibit 2. The agreement makes
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the reasonable restriction as to misappropriating Plaintiff’s trade secrets, confidential
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22 The standard for issuance of a preliminary injunction is the same as the standard for
23 issuance of a temporary restraining order. See Stuhlbarg Int’l Sales Co., Inc. v. John D.
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Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). IML has met its burden with respect
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that standard. Accordingly, IML respectfully requests that this Court issue a show-cause
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27 order requiring Defendant to demonstrate why the Court should not issue a preliminary
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VI. CONCLUSION
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2 For the reasons set forth above, IML respectfully requests that the Court enter
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materials, including downlines, back-office data, binary options trading software, and binary
14 including but not limited to, hard copies of documents and/or data, electronic copies of
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documents and/or data, emails, and any other material containing or referring to any IML
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customer list, trademark, trade secret, program information, or any other confidential
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information and/or materials;
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19 • Defendants shall immediately refrain from conducting and soliciting any business,
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traders; and
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IML also requests that the Court order Defendant to show cause regarding the
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2 issuance of a preliminary injunction, and set a hearing on IML’s request for a preliminary
3 injunction.
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Dated this 31st day of August, 2018.
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LAW OFFICES OF P. STERLING KERR
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