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DUANE MORRIS LLP John Dellaportas R. Terry Parker 1540 Broadway New York, New York 10036-4086 Tel. No.: (212) 692-1000 and Mark A. Fischer (applying to be admitted pro hac vice) 100 High Street, Suite 2400 Boston, MA 02110-1724 Tel. No.: (857) 488-4266 Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FRAMEWELD LLC, Plaintiff, v. RYAN MAHONEY and VIRTUE CENTER FOR ART AND TECHNOLOGY LLC Defendants. ) ) ) Case No.: 11-CV-7103 (PAE) ) ) ECF Case ) ) ) ) ) )

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS MOTION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND EXPEDITED HEARING

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TABLE OF CONTENTS Page PRELIMINARY STATEMENT .....................................................................................................1 ARGUMENT ...................................................................................................................................5 I. DEFENDANTS SHOULD BE ENJOINED FROM FURTHER USE, INFRINGEMENT, AND DISCLOSURE OF PLAINTIFFS SOFTWARE ......................5 A. B. C. II. Plaintiff Is Likely To Succeed On the Merits of Its Claims ................................... 6 Plaintiff Will Suffer Immediate and Irreparable Injury If a Preliminary Injunction Is Not Issued .......................................................................................... 9 The Balancing of the Hardships Weighs Heavily in Favor of Plaintiff ................ 11

AN EXPEDITED HEARING IS WARRANTED .............................................................12

CONCLUSION ..............................................................................................................................12

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TABLE OF AUTHORITIES Cases Abdul Wali v. Coughlin, 754 F.2d 1015 (2d Cir. 1985) ...................................................................6 AIM Intl Trading, LLC v. Valcucine Spa, 188 F. Supp. 2d 384 (S.D.N.Y. 2002) ..........................5 Buffalo Forge Co. v. Ampco-Pittsburgh Corp., 638 F.2d 568 (2d Cir. 1981) ...............................11 Dynamic Solutions, Inc. v. Planning & Control, Inc., 646 F. Supp. 1329 (S.D.N.Y. 1986) ...........9 Ecolab Inc. v. Paolo, 753 F. Supp. 1100 (E.D.N.Y. 1991)..............................................................6 Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110 (2d Cir. N.Y. 2009) ...................8, 10 Federal Express Corp. v. Federal Espresso, Inc., 201 F.3d 168 (2d Cir. 2000) .............................5 FMC Corp. v. Taiwan Tainan Giant Indus. Co., 730 F.2d 61 (2d Cir. 1984) ...............................10 Fonar Corp. v. Domenick, 105 F.3d 99 (2d Cir. 1997) ...................................................................6 Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159 (2nd Cir. 1971) ...................................................................................................................................7 IBM Corp. v. Johnson, 629 F. Supp. 2d 321 (S.D.N.Y. 2009) ......................................................11 MGM, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) ..........................................................................7 Q-Co Indus., Inc. v. Hoffman, 625 F. Supp. 608 (S.D.N.Y. 1984) ..................................................8 Random House v. Rosetta Books Llc, 150 F. Supp. 2d 613 (S.D.N.Y. 2001) .................................9 SCS Commc'ns., Inc. v. Herrick Co., 360 F.3d 329 (2d Cir. 2004) .................................................9 Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304 (2d Cir. 1963) ....................................7 Tactica Intl v. Atl. Horizon Intl, 154 F. Supp. 2d 586 (S.D.N.Y. 2001) .......................................6 Trandes Corp. v. Guy F. Atkinson Co., 996 F.2d 655 (4th Cir. 1993).............................................8 Twin Peaks Productions v. Publications Int'l. Ltd., 996 F.2d 1366 (2d Cir. 1993).........................6 Wainwright Sec., Inc. v. Wall Street Transcript Corp., 558 F.2d 91 (2d Cir. 1977) .......................9

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Yurman Design Inc. v. Chaindom Enters., 1999 U.S. Dist. LEXIS 18382 (S.D.N.Y. Nov. 29, 1999) ..................................................................................................................................10 Statutes 17 U.S.C. 410(c) ...........................................................................................................................6 Other Authorities Rule 65 of the Federal Rules of Civil Procedure .............................................................................5

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PRELIMINARY STATEMENT Plaintiff Frameweld LLC (Plaintiff) respectfully brings this motion for a temporary restraining order, a preliminary injunction, and an expedited hearing before the Court in order to protect its legitimate business interests and assets from further, irreparable harm by defendants Ryan Mahoney (Mahoney) and Virtue Center for Art and Technology LLC (Virtue Center) (together, Defendants). Mahoney was Plaintiffs Chief Technology Officer until recently, when it was discovered that he had stolen Plaintiffs proprietary, confidential software programs and secretly used them to launch a rival business, Virtue Center, all while still under the payroll of Plaintiff. All efforts to convince Mahoney to cease his infringing activities failed, requiring Plaintiff to bring this action to save itself from irreparable injury. The key facts1 are as follows. Plaintiff is a provider of online video and rich media solutions and cutting-edge websites for clients. Plaintiff sets itself apart from its competition by enabling its clients to enhance their Internet presence and to quickly and efficiently search, organize and navigate their video and rich media. Among Plaintiffs current clients are the Pennsylvania Department of Education. See Cartsos Decl. at 5. On February 11, 2006, Mahoney became Chief Technical Officer of Plaintiff and a holder of a 20 percent membership interest in Plaintiff. In signing the Amended Operating Agreement of Frameweld LLC, Mahoney agreed not to enter into any transaction or to be involved in any technology or service that may be considered to be competitive with Plaintiff. See id. at 7.

The facts of this case are fully set forth in detail in the accompanying declaration of Sotiris Cartsos (Cartsos Decl.). In order to avoid burdening the Court with duplicative submissions, only the key facts are summarized here.

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As Chief Technical Officer of Plaintiff, Mahoney oversaw the design and development of two software products that have become crucial to the success of Plaintiffs business, Automvc and its later derivative, bAC (collectively, Plaintiffs Software). Automvc and bAC are both novel and, potentially, immensely profitable programs used in the software platform that Plaintiff uses as an application development framework and tool for the development of websites and content management systems for clients. See id. at 11-17. The primary developer for Automvc was an employee of Plaintiff named Edward Drapkin (Drapkin). Mahoney, as Plaintiffs CTO, was the primary developer for the derivative work bAC. Drapkin and Mahoney created Automvc and bAC, respectively, in the course of their duties at Plaintiff. Accordingly, both Automvc and bAC are works made for hire as defined by the copyright laws of the United States with full authorship and ownership belonging to Plaintiff. Indeed, in the attribution notices of both Automvc and bAC, Plaintiff was identified as the owner of the code and the code was designated as available only as a closed licensed software, as opposed to open source license.2 See id. The Automvc and bAC code are confidential. Plaintiff does not distribute its copyrighted software to its clients but uses it exclusively to design, construct, host and maintain websites for its clients. The distribution, assignment, sublicensing, rental, transfer or resale of any of Plaintiffs source code, individual components, system architectures and designs of the software are prohibited without the explicit written permission of Plaintiff. See id. at 18.

In the software industry, the term closed license means the source code is not released to the public. The public is only allowed access to a compiled executable state of the software under a closed license. In contrast, the term open source license generally refers to a license that allows users to view and modify a products source code, under the theory that the quality of the software product will be improved by the acceptance and teamwork provided by a public community of software developers.

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Beginning in 2010, Mahoney became increasingly absent from his job at Plaintiff. Mahoney was granted a raise in pay under the explicit condition that he devote his full time and attention to Plaintiff. Despite the increase in salary and promises to devote more time to his responsibilities at Plaintiff, Mahoney became less productive, more confrontational, negative and divisive. See Cartsos Decl. at 8. On March 23, 2011, Mahoney told the senior partners, Ashish Shah and Sotiris Cartsos, that he wanted to leave Plaintiff, and asked them to purchase his share of ownership in Plaintiff. He claimed he wanted to withdraw from Plaintiff because he was tired of programming and wanted to be more involved in teaching. He stated that his lawyer would approach them with a buyout price. See id. at 9. To its shock, at the end of May 2011, Plaintiff learned that Mahoney had largely neglected his responsibilities to Plaintiff and remained largely absent from Plaintiffs office not because he was disillusioned with programming, but because he was busy starting up a rival company, Virtue Center, which he operated in direct competition with Plaintiff. Indeed, while serving as a member and officer of Plaintiff, Mahoney opened an office for Virtue Center only 400 feet from Plaintiffs office and used Plaintiffs employees, proprietary software and money to solicit and carry out business for Virtue Center in competition with Plaintiff. See id. at 10. The true extent of Mahoneys misconduct has only recently become known to Plaintiff. Most outrageously, Mahoney, unbeknownst to Plaintiff and without authorization from Plaintiff, publicly disclosed Plaintiffs confidential and proprietary software by unlawfully copying the Automvc code and placing the Automvc code on the website http://code.google.com/ (Google Code), a public website where software developers share projects. After placing Automvc on Google Code, Mahoney then altered attribution notices in the code to designate the code as

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open source, as oppose to closed source, without authorization from Plaintiff and unknown to Plaintiff. See id. at 19-27. Mahoney also publicly disclosed Plaintiffs confidential and proprietary software by unlawfully copying the bAC code and placing the bAC code on the project hosting website www.github.com (Github). After placing bAC on Github, Mahoney, without authorization from Plaintiff and unknown to Plaintiff, altered attribution notices in the code to designate the code as open source, as opposed to closed source. In addition, Mahoney secured the domain name businessandcode.com, and then used that website to offer bAC as a free and open source software to the public, available for download, instructing users to use and modify bAC and share their contributions to the code. By designating Plaintiffs Software as open source, Mahoney has purposefully caused the perpetual infringement of Plaintiffs proprietary software and deprived Plaintiff of its valuable property rights. See id. at 28-42. On May 27, 2011, Plaintiff terminated Mahoney as Chief Technical Officer of Plaintiff. From June through July of 2011, Mahoney and Plaintiff, through their respective attorneys, attempted to negotiate a resolution. Importantly for Plaintiff, Mahoney agreed, among other things, to cease and desist all use of the Plaintiffs Software and any proprietary rights and assets, to shutdown his website www.businessandcode.com, and all other websites and accounts that made Plaintiffs Software available to the public. The primary remaining issue to be resolved among the parties was the calculation of an appropriate sum for Mahoneys ownership interest in Plaintiff, given his conduct. Based on Mahoneys representations and commitment to cease all infringing activity, Plaintiff did not seek injunctive relief at that time. See id. at 53. However, in late August, Plaintiff learned that Mahoney had, contrary to representations made during settlement negotiations, continued to use Plaintiffs Software and had continued to

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post new updates of Plaintiffs Software on Github. It was not until September that Plaintiff could confirm that Mahoney had altered the copyright attribution notices of Plaintiffs Software. Upon this discovery, it became clear to Plaintiff that a true resolution with Mahoney was impossible. See id. For all the reasons set forth herein, Plaintiff respectfully requests that this Court: (a) enter a temporary restraining order preventing further harm to Plaintiff pending a hearing on its application for a preliminary injunction; (b) enter a preliminary injunction, and (c) grant an expedited discovery hearing on its application for a preliminary injunction.

ARGUMENT I. DEFENDANTS SHOULD BE ENJOINED FROM FURTHER USE, INFRINGEMENT, AND DISCLOSURE OF PLAINTIFFS SOFTWARE The standards for granting a temporary restraining order and a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure are identical. See AIM Intl Trading, LLC v. Valcucine Spa, 188 F. Supp. 2d 384, 386 (S.D.N.Y. 2002). A party seeking a preliminary injunction must demonstrate (1) the likelihood of irreparable injury in the absence of such an injunction, and (2) either (a) likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation plus a balance of hardships tipping decidedly toward the party requesting the preliminary relief. Federal Express Corp. v. Federal Espresso, Inc., 201 F.3d 168, 173 (2d Cir. 2000). As set forth below, Plaintiff satisfies both prongs of the controlling test for a temporary restraining order and a preliminary injunction, and, therefore, is entitled to the relief sought.

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A.

Plaintiff Is Likely To Succeed On the Merits of Its Claims

Success at trial on the merits need not be shown with absolute certainty before it is appropriate to issue a preliminary injunction; all that is needed is a demonstration that the probability of prevailing is better than fifty percent. Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1985); Tactica Intl v. Atl. Horizon Intl, 154 F. Supp. 2d 586, 597 (S.D.N.Y. 2001); Ecolab Inc. v. Paolo, 753 F. Supp. 1100, 1109-1110 (E.D.N.Y. 1991) (quoting Brunswick Corp. v. Jones, 784 F.2d 271, 275 (7th Cir. 1986) (the injunction should be granted as long as the probability is better than negligible.). Plaintiffs claims include: copyright infringement (Claims 1-4); misappropriation of trade secrets (Claim 5); Computer Fraud and Abuse (Claim 6); and Mahoneys unlawful conduct as a member of Plaintiff, i.e., Breach of Contract and of Fiduciary Duty (Claim 7-8). Plaintiff is highly likely to succeeed on most or all of these claims. In order to establish a prima facie case for direct copyright infringement, the plaintiff must establish (1) ownership of a valid copyright, and (2) unauthorized copying of the copyrighted work. See Twin Peaks Productions v. Publications Int'l. Ltd., 996 F.2d 1366, 1372 (2d Cir. 1993); Fonar Corp. v. Domenick, 105 F.3d 99, 103 (2d Cir. 1997) (holding same). Moreover, pursuant to section 410(c) of the Copyright Act, a certificate of copyright registration raises a presumption that the copyright is valid. See 17 U.S.C. 410(c). In the instant case, as evidenced by United States Copyright Registration Nos. TX0007416017, TX0007416019, and TX0007415969, Plaintiff is the exclusive owner of the copyrights in both Automvc and bAC. See Cartsos Decl. at 18. Defendants have, without authorization, accessed both Automvc and bAC from Plaintiffs secured servers and copied them to the servers used for their business and to the servers at Google Code and Github. See Cartsos Decl. at 13, 16. Indeed, by unlawfully copying Plaintiffs Software onto these servers 6

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and unlawfully designating Plaintiffs Software as open source, Defendants have attempted to ensure the perpetual and viral infringement of Plaintiffs software. Thus, Plaintiff is very likely to succeed in its copyright infringement claim. Plaintiff is also likely to succeed on its indirect copyright infringement claims. A defendant is liable for contributory infringement if he or she, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another. Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2nd Cir. 1971). Defendants knowingly caused others to infringe Plaintiffs Software by making Plaintiffs Software available to the public and instructing other developers to unlawfully copy Plaintiffs Software and create derivative works of it. Similarly, a defendant is liable for vicarious infringement where the defendant (1) has the right and ability to control the infringers acts and (2) receives a financial benefit from the infringement. Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 306 (2d Cir. 1963). Here the Defendants hired freelance software developers, over whom Defendants had a controlling relationship, and benefited from the developers infringement of Plaintiffs Software. Moreover, a defendant is liable for inducement of infringement where, without knowledge or intent, he or she takes active steps to encourage infringement leading to actual infringement taking place. See MGM, Inc. v. Grokster, Ltd., 545 U.S. 913, 923-24 (2005). In the instant case, Defendants have clearly induced infringement by unlawfully placing Plaintiffs Software on publicly available websites and encouraging the public to copy and create derivative works of that software. Moreover, Plaintiff is nearly certain to succeed in its misappropriation of trade secrets claim. To succeed on a claim for the misappropriation of trade secrets under New York law, a party must demonstrate: (1) that it possessed a trade secret, and (2) that the defendants used that

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trade secret in breach of an agreement, confidential relationship or duty, or as a result of discovery by improper means. Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 117 (2d Cir. N.Y. 2009) (citing N. Atl. Instruments, Inc. v. Haber, 188 F.3d 38, 43-44 (2d Cir. 1999) (applying New York law). Courts have consistently found computer programs to constitute a trade secret. See, e.g., Q-Co Indus., Inc. v. Hoffman, 625 F. Supp. 608, 617 (S.D.N.Y. 1984) (finding source code of plaintiff's computer program was likely to be a trade secret); Trandes Corp. v. Guy F. Atkinson Co., 996 F.2d 655, 664 (4th Cir. 1993) (The source code can and does qualify as a trade secret . . . [because it] is not readily ascertainable by proper means . . . .). Plaintiffs confidential, proprietary software, Automvc and bAC, constitutes information that is protected by trade secrets law. The Automvc and bAC code was not known to the public, and its confidential nature was guarded by Plaintiff as a result of the competitive advantage the code provided Plaintiff. See Cartsos Decl. at 6, 18. Defendants have misappropriated Plaintiffs trade secrets by publicly and without authorization disclosing Plaintiffs Software to the public. See id. at 19, 28. Defendants have further misappropriated Plaintiffs Software by designating, without authorization, Plaintiffs Software as available to the public, for free, under an open source license. See Cartsos Decl. at 20-27, 29-39. Moreover, Defendants have misappropriated Plaintiffs trade secrets by using, without authorization, Plaintiffs Software to steal business from Plaintiff. See Cartsos Decl. at 44-49. Accordingly, Plaintiff is also very likely to succeed on its misappropriation of trade secrets claims. Lastly, while it is not necessary for a preliminary injunction, Plaintiff is also very likely to succeed on its claims for breach of contract and breach fiduciary duty. The elements of a claim for breach of fiduciary duty under New York law are breach by a fiduciary of a duty owed to plaintiff; defendant's knowing participation in the breach; and damages. SCS

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Commc'ns., Inc. v. Herrick Co., 360 F.3d 329, 342 (2d Cir. 2004) (citing Diduck v. Kaszycki & Sons Contractors, Inc., 974 F.2d 270, 281-82 (2d Cir. 1992)). Similarly, a defendant is liable for breach of contract where under New York law where there is: (1) the existence of an agreement; (2) adequate performance of the contract by the plaintiff; (3) breach of contract by the defendant; and (4) damages. See Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co., 375 F.3d 168, 177 (2d Cir. 2004). As noted above, Mahoney had contractual obligation and a fiduciary duty not to compete with Plaintiff. See Cartsos Decl. at 7. However, while on the payroll as Plaintiffs CTO, stole Plaintiffs Software and used it to develop a competing business just down the street. See id. at 40-49. It would be hard to imagine a greater breach of the duty of loyalty. Here, Mahoney had a clear fiduciary duty as an officer and member of Plaintiff. He breached that duty by knowingly stealing from Plaintiff and using those stolen assets to directly compete with Plaintiff. His breach has caused clear damage by depriving Plaintiff not only of potential customers but of depriving Plaintiff of key assets, its exclusive rights to license and control the use of its software.

B.

Plaintiff Will Suffer Immediate and Irreparable Injury If a Preliminary Injunction Is Not Issued

The Second Circuit has defined irreparable harm as an injury that is not remote or speculative but actual and imminent, and for which a monetary award cannot be adequate compensation. Tom Dohert Assocs., Inc. v. Saban Entm't, Inc., 60 F.3d 27, 37 (2d Cir. 1995) (quoting Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979)). However, if the moving party establishes a prima facie case of copyright infringement, then a presumption of irreparable harm arises. Random House v. Rosetta Books Llc, 150 F. Supp. 2d 613, 617 (S.D.N.Y. 2001). See Abkco Music, 96 F.3d at 64; Wainwright Sec., Inc. v. Wall Street

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Transcript Corp., 558 F.2d 91, 94 (2d Cir. 1977); Dynamic Solutions, Inc. v. Planning & Control, Inc., 646 F. Supp. 1329, 1337 (S.D.N.Y. 1986). Courts presume irreparable harm from copyright infringement because the confusion created in the marketplace will damage the copyright holder in incalculable and incurable ways . . . . Yurman Design Inc. v. Chaindom Enters., 1999 U.S. Dist. LEXIS 18382, at *20-*21 (S.D.N.Y. Nov. 29, 1999). Moreover, irreparable harm is also presumed where a trade secret has been misappropriated. In the words of the Second Circuit, [a] trade secret once lost is, of course, lost forever and, as a result, such a loss cannot be measured in money damages. FMC Corp. v. Taiwan Tainan Giant Indus. Co., 730 F.2d 61, 63 (2d Cir. 1984) (the loss of a trade secret is not measurable in terms of money damages). The Second Circuit has held that misappropriation of trade secrets by a competitor causes irreparable harm where there is a danger of further dissemination or that a misappropriator will impair the value of trade secrets. See Faiveley Transport Malmo AB v. Wabtec Corp., 559 F.3d 110, 118-119 (2d Cir. 2009) (internal citations and quotation marks omitted). As demonstrated above, Plaintiffs have established a prima facie case of both copyright infringement and misappropriation of trade secrets. Even if irreparable harm were not presumed, emergency intervention is necessitated in light of the irreparable harm that will be suffered by Plaintiff as a result of Defendants acts of copyright infringement. While Defendants egregious conduct has caused, and continues to cause, substantial economic injury to Plaintiff, its right to money damages alone will not be adequate. As set forth above, Plaintiff and Defendants are direct competitors. Defendants further disclosure and infringement of Plaintiffs Software could result in the demise of Plaintiff because Plaintiffs business is completely dependent on the software at issue, thereby rewarding Defendants for their misconduct.

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C.

The Balancing of the Hardships Weighs Heavily in Favor of Plaintiff

Moreover, where an applicant for a preliminary injunction-cannot establish a likelihood of success on the merits, a court nevertheless may grant injunctive relief if it determines that the applicant has raised questions going to the merits so serious, substantial, difficult, and doubtful, as to make them a fair ground for litigation and thus for more deliberate investigation. IBM Corp. v. Johnson, 629 F. Supp. 2d 321, 329 (S.D.N.Y. 2009) (quoting Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir. 1953)). As courts have held, this is a less rigorous and more lenient standard and requires that the applicant establish that the harm which it would suffer is greater than the harm his opponent would suffer. See, e.g., Buffalo Forge Co. v. Ampco-Pittsburgh Corp., 638 F.2d 568, 569 (2d Cir. 1981) (quoting Buffalo Courier-Express, Inc. v. Buffalo Evening News, Inc., 601 F.2d 48, 58 (2d Cir. 1979)). The balance of hardships resulting from the denial of the injunctive relief weighs decidedly in Plaintiffs favor. As discussed above, unless Defendants acts of copyright infringement and misappropriation of trade secrets are enjoined by this Court, Plaintiff will suffer irreparable injury through the destruction of its valuable business assets, i.e., its proprietary software, and the competitive advantages it provides Plaintiff. Conversely, if the requested preliminary injunctive relief and temporary restraining order are granted, Defendants would suffer no legitimate injury. Far from causing hardship to Defendants, injunctive relief would merely restore the status quo which existed before Defendants violation of the law. Although such enforcement would preclude Defendants from improperly using Plaintiffs Software, the requested injunctive relief would certainly not impose undue hardship upon Defendants since they would be precluded only from unfairly and illegally utilizing information and materials that were not theirs. Any injury to Defendants resulting from the issuance of an injunction is fully compensable, whereas damage to Plaintiff if the injunction is not awarded is 11

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irrevocable and totally non-compensable. When considering the balance of hardships, it should be remembered that Defendants conduct precipitated and necessitated the need for injunctive relief. Any harm to Defendants resulting from the issuance of an injunction is harm which Defendants brought upon themselves. Accordingly, the balance of hardships must weigh decidedly in Plaintiffs favor; thus the requested relief should be granted.

II.

AN EXPEDITED HEARING IS WARRANTED In light of the ongoing irreparable injury that Plaintiff will suffer if preliminary injunctive

relief is not granted, Plaintiff requests a hearing on its motion for a preliminary injunction no later than 14 days after its filing, or as soon as practicable, unless the Court earlier decides the motion on the papers. As set forth above, expedition is essential because every day that Defendants continue to disclose Plaintiffs software as an open source product, Plaintiff is deprived of its exclusive right to license its proprietary software and enjoy the benefits of its investments in creating that software.

CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that this Court grant this Motion and enjoin Defendant, as outlined in the attached Proposed Order, pending the outcome of an expedited hearing to be held before this Court, and grant such other and further relief as this Court deems just and proper.

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Dated: New York, NY October 12, 2011

DUANE MORRIS LLP By: /s/R. Terry Parker

DUANE MORRIS LLP John Dellaportas R. Terry Parker 1540 Broadway New York, New York 10036-4086 Tel. No.: (212) 692-1000 and Mark A. Fischer (applying to be admitted pro hac vice) 100 High Street, Suite 2400 Boston, MA 02110-1724 Tel. No.: (857) 488-4266 Attorneys for Plaintiff

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CERTIFICATE OF SERVICE

I, R. Terry Parker, certify that I caused a true and correct copy of the foregoing Memorandum Of Law In Support Of Plaintiffs Motion For Temporary Restraining Order, Preliminary Injunction And Expedited Hearing to be delivered by FedEx to the following this 12th day of October, 2011: Mr. Hyder a. Naqvi, Esq. Ahmad & Naqvi, LLP 22 Cortlandt Street, Suite 1628 New York, NY 10007

_____/s/R. Terry Parker________________

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