Robert Wolfe Lawsuit - Memorandum in Opposition.pdf
STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
Orange Unit Docket No. 24-2-19 Oecv
ENOCHIAN BIOSCIENCES DENMARK, ApS, )
and ENOCHIAN BIOSCIENCES, INC., )
CROSSFIELD, INC., and ROBERT E. WOLFE, )
DEFENDANTS’ COMBINED MEMORANDUM OF LAW: (1) IN OPPOSITION TO
PLAINTIFFS’ MOTION TO DISMISS, AND (2) IN SUPPORT OF DEFENDANTS’
CROSS-MOTION FOR ENTRY OF JUDGMENT IN DEFENDANTS’ FAVOR
Pursuant to V.R.C.P. 78(b)(1), Defendants Crossfield, Inc. and Robert E. Wolfe
(collectively, “Defendants”) hereby submit their Opposition to Plaintiffs’ Motion to Dismiss,
which Plaintiffs filed suddenly and abruptly on April 17 with virtually no warning to Defendants.
Plaintiffs Enochian Biosciences Denmark, ApS and Enochian Biosciences, Inc. (collectively,
“Plaintiffs”) now request, under V.R.C.P. 41(a)(2), voluntary dismissal of this lawsuit “with
prejudice and with the parties each to bear their own attorneys’ fees, expenses, and costs.”1 Pls.
Mot. at 2. In other words, Plaintiffs desire to simply dismiss this fourteen (14) months’ long
litigation as if it never happened. As the Court will see, Plaintiffs suddenly want to abandon this
lawsuit because, after fourteen months of aggressively litigating against Defendants, they now do
not want to have to answer Defendants’ discovery requests, which Defendants believe will show
1 Plaintiffs’ citation to V.R.C.P. 41(a)(2) is incorrect, as that rule applies to stipulations of dismissal. The applicable
rule is V.R.C.P. 41(a)(3), which provides that “an action shall not be dismissed at the plaintiff’s request except upon
order of the court and upon such terms and conditions as the court deems proper” (emphasis added). Here, the
proper terms and conditions include a judgment in Defendants’ favor on all counts in Plaintiffs’ Verified Complaint.
FILED: 4/30/2020 9:09 AM
Vermont Superior Court
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the groundlessness and bad faith of Plaintiffs’ claims. For the reasons set forth below, that result
is unfair and unjust, and this Court instead should grant Defendants’ Cross-Motion (filed
herewith) and enter a judgment in favor of Defendants.
A. A Dismissal on the Terms Requested by Plaintiffs is Unfair, Unjust, and Prejudicial
As Defendants have explained in prior filings and also showed at the November 5, 2019
evidentiary hearing on Plaintiffs’ motion for preliminary injunction, Plaintiffs terminated Mr.
Wolfe (and Crossfield) as their Chief Financial Officer (CFO) in January 2019 because – as the
CFO of a publicly-traded company with fiduciary duties to shareholders and legal obligations to
the Securities Exchange Commission (SEC) – Mr. Wolfe persisted in questioning what he
believed were serious financial improprieties at the company. Upon wrongfully firing Mr. Wolfe
(after asking him to stay on for extra time to allow Plaintiffs to transition to his successor, Luisa
Puche), Plaintiffs promised, in writing, to pay him everything he was owed, but then reneged on
that promise. Consistent with the venue provision in his CFO Services Agreement (drafted by
Plaintiffs), Mr. Wolfe filed a legal complaint in Denmark on February 7, 2019, seeking the
unpaid compensation owed under his contract due to the termination. But before filing his
complaint – which set forth the reasons why Mr. Wolfe believed he was terminated, including
what Plaintiffs subsequently claimed in this litigation was “confidential information” – Mr.
Wolfe’s Danish counsel actually sent a draft of it to Plaintiffs. Plaintiffs responded, but said
nothing whatsoever about the complaint’s supposed disclosure of “confidential information.”2
2 Nor did Plaintiffs take any swift legal action in Denmark (e.g., for injunctive relief or to seal) after Mr. Wolfe
made his filing. Rather, nearly three (3) weeks later, on February 26, 2019, Plaintiffs casually asked the Danish
court to limit access to Mr. Wolfe’s filing “to the widest extent possible” and to permit Plaintiffs to submit a
pleading before access to such information was granted.
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Then, just days after Mr. Wolfe made his filing in Denmark, but without taking any
action in Denmark or warning him in any way, Plaintiffs sued Mr. Wolfe here in Vermont –
despite the Denmark venue and Danish governing law provisions in Plaintiffs’ own CFO
Services Agreement; despite the fact that Mr. Wolfe was subject to jurisdiction in Denmark; and
despite the fact that there was already a lawsuit between the parties pending in Denmark –
seeking only injunctive relief (not damages). Plaintiffs’ Vermont lawsuit alleged breach of
contract (i.e., breach of the same CFO Services Agreement that was the subject of the already-
pending Danish lawsuit), breach of fiduciary duty, and breach of the duty of loyalty. These
claims stemmed from the disclosure of purportedly “confidential information” in Mr. Wolfe’s
Danish filing, despite, as noted above, Plaintiffs having said nothing of the sort after receiving an
advance draft of that filing. Plaintiffs also moved ex parte for a temporary restraining order and
preliminary injunction on the grounds that Mr. Wolfe had disclosed “confidential information”
and that Plaintiffs had suffered and would continue to suffer irreparable harm unless Defendants
were enjoined from disclosing Plaintiffs’ “confidential information.” Plaintiffs sought this ex
parte relief even though Mr. Wolfe was at the time less than a half hour away from the
courthouse at his home in Randolph, Orange County, Vermont. On February 12, 2019, and in
reliance upon Plaintiffs’ one-sided presentation, the Court granted Plaintiffs’ ex parte motion and
issued a TRO, which remained in effect until December 26, 2019, as noted below.
Upon being served with the suit papers and the TRO, Defendants opposed Plaintiffs’
motion for preliminary injunction and moved to dismiss this litigation pursuant to V.R.C.P.
12(b)(3) and 12(b)(6). The Court denied Defendants’ motion to dismiss on the grounds that
Plaintiffs’ allegations met Vermont’s liberal pleading standards and, on July 15, 2019, set an
evidentiary hearing on Plaintiffs’ motion for preliminary injunction for August 26, 2019.
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Several weeks later, Plaintiffs moved to continue the hearing on the grounds that their “most
appropriate witness,” Luisa Puche, would be unavailable on August 26 and “there was no clear
substitute for Ms. Puche.” Given that the TRO, which had been issued back in February 2019,
remained in place, Defendants urgently desired to proceed on August 26 and were prepared to do
so, and therefore opposed the motion to continue. Following additional submissions in response
to the Court’s questions, the Court granted Plaintiffs’ requested continuance, reconvening the
August 26 hearing on November 5.
The Court held an all-day evidentiary hearing on Plaintiffs’ motion for preliminary
injunction on November 5, 2019. Despite the extensive time they had had to prepare,3 and
despite the fact that it had been nine (9) months since Mr. Wolfe’s Danish filing (supposedly
disclosing Plaintiffs’ “confidential information”), Plaintiffs – through their “most appropriate”
and irreplaceable witness Ms. Puche – were unable to identify any harm (much less irreparable
harm) they had actually suffered due to the disclosures in Mr. Wolfe’s Danish filing.4 At the
conclusion of the hearing, the Court expressed doubt over Plaintiffs’ claim for breach of contract,
given that (a) plaintiff Enochian Biosciences, Inc. was not even a party to the CFO Services
Agreement, and (b) the alleged “confidential information” at issue clearly was not covered under
the CFO Services Agreement’s confidentiality provisions. In view of that observation, Plaintiffs
asked the Court for the opportunity to submit additional legal argument on their fiduciary duty
3 In fact, in its written decision on Plaintiffs’ motion, the Court expressly pointed out that “all Parties had ample
time to prepare for the evidentiary preliminary injunction hearing.” Dec. 26, 2019 Entry Order, at 2.
4 Nor were Plaintiffs able to show that, prior to the allegedly improper disclosure of “confidential information” in
Mr. Wolfe’s Danish filing, Plaintiffs actually considered the disclosed information to be confidential and actually
treated it as such.
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and duty of loyalty claims, which claims they had barely mentioned at any point in the case up to
Following post-hearing briefing on Plaintiffs’ claims for breach of fiduciary duty and
breach of the duty of loyalty, the Court issued an Order on December 26, 2019, denying
Plaintiffs’ motion for preliminary injunction and dissolving the previously-issued TRO.5 In its
written decision, the Court specifically found that Plaintiffs’ breach of contract claim failed as a
matter of fact and law because the “confidential information” at issue was not covered by the
clear and unambiguous terms of the CFO Services Agreement. Dec. 26, 2019 Entry Order, at 6.
The Court also found, based upon the facts adduced and the applicable law, that Plaintiffs were
not likely to succeed on the merits of their fiduciary duty and duty of loyalty claims, and that the
other elements for preliminary injunctive relief had not been satisfied. Id. at 6-11. In the course
of its ruling, the Court noted its “significant reservations” as to the value of the “confidential
information” claimed by Plaintiffs, and at best could only characterize it as “limited confidential
information.” Id. at 9. The Court further concluded it could not find that Mr. Wolfe’s “limited
disclosure of the limited confidential information . . . in these circumstances was either unfair to
Enochian U.S. or a misuse of power,” and instead was in good faith. Id.
In the conclusion of its Order denying Plaintiffs’ preliminary injunction and dissolving
the TRO, the Court inquired of the parties as to whether this lawsuit should even continue on to a
final merits hearing, with discovery to take place in the interim. Plaintiffs responded by taking
5 Notably, despite their prior claims that Ms. Puche was their “most appropriate” and irreplaceable witness – whose
schedule led to the postponement of the preliminary injunction hearing until November 5 – Plaintiffs attempted with
their post-hearing brief to submit a factual affidavit from a different witness, who had not testified at the hearing –
namely, Rene Sindlev, a Director and the Chairman of Enochian Biosciences, Inc.’s Board of Directors. The Court
correctly rejected the affidavit as an improper post-hearing attempt to submit evidence that was available at the time
of the hearing.
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the position that both discovery and a final merits hearing absolutely were needed, and then on
January 16, 2020 moved to alter or amend the Court’s preliminary injunction Order or,
alternatively, for permission to take an interlocutory appeal. Defendants opposed the motion and
argued instead that, because (a) Plaintiffs’ Verified Complaint sought no remedies beyond
injunctive relief, and (b) the Court had ruled based upon the facts and law that Plaintiffs were not
entitled to injunctive relief, the case should be dismissed. Plaintiffs sought to prolong the
litigation against Defendants and on February 12, 2020 opposed Defendants’ motion to dismiss,
arguing that “[a]t this point, Plaintiffs are entitled to conduct discovery and use any evidence
obtained through such discovery during a final merits hearing.” Pls. Feb. 12, 2020 Opp., at 4.
Plaintiffs further advised the Court that “discovery is contemplated and not yet completed.” Id.
The Court denied all post-hearing motions, noting in pertinent part “the right to discovery
in civil matters” (Feb. 20, 2020 Entry Order, at 1), and ordered the parties to submit a discovery
schedule, which the parties jointly filed on March 16, 2020. Among other items, the schedule
contemplated written fact discovery, expert disclosures, and fact and witness depositions. Three
(3) days later, on March 19, Defendants served interrogatories and requests to produce on
Plaintiffs.6 Defendants’ detailed discovery requests were carefully crafted to probe in depth (a)
Plaintiffs’ alleged “confidential information”; (b) Plaintiffs’ relationship with the person about
whom the supposed “confidential information” pertained; (c) Plaintiffs’ actions and efforts (or
lack thereof) to designate and keep such information (and other information) “confidential”; (d)
the alleged justification for treating the information as “confidential” in the first place; (e)
6 On the other hand, Plaintiffs did not serve any discovery requests on Defendants – nor have Plaintiffs done so to
date, despite arguing to the Court on multiple occasions that they needed to conduct discovery.
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Plaintiffs’ actions (or lack thereof) in response to the disclosure of such information in Mr.
Wolfe’s Danish lawsuit; and (f) Plaintiffs’ claimed “irreparable harm.” Plaintiffs’ responses to
these discovery requests were due April 22.
Following the submission of the discovery schedule on March 16 and Defendants’
service of their written discovery requests on March 19, and carrying on into April, the parties
communicated regarding potential settlement of this litigation as well as Mr. Wolfe’s pending
case in Denmark. On April 7, Plaintiffs made what they claimed was a “best and final offer” to
Mr. Wolfe, and threatened at that time to “proceed with discovery as planned” in the event Mr.
Wolfe did not agree to their settlement offer.7 On April 10, Mr. Wolfe rejected Plaintiffs’ offer
and made a counter-proposal, requesting that Plaintiffs respond no later than April 17. In that
communication, Mr. Wolfe made clear that he expected Plaintiffs to respond to Defendants’
discovery requests by the approaching April 22 due date. Then, suddenly, at 9:05 a.m. on April
17 – just five (5) days before their discovery responses were due – Plaintiffs sent an email asking
Defendants if they “would be willing to stipulation [sic] to the dismissal of this action, with
prejudice, and with each party to bear its own attorneys’ fees, expenses, and costs,” and
demanded a response by 2:00 p.m. that same day. (Plaintiffs’ email simply ignored and made no
mention of the prior and ongoing exchanges over possible settlement, as if they had never taken
place.) When Defendants were unable to respond within Plaintiffs’ arbitrary and unreasonable
five-hour deadline, Plaintiffs proceeded to file their present motion for voluntary dismissal,
7 Plaintiffs’ “best and final offer” (a) did not come close to covering the full amount of what Mr. Wolfe is owed –
and was expressly promised – by Plaintiffs when he was improperly terminated in January 2019; (b) did not come
anywhere near what Mr. Wolfe is entitled to recover in his Danish lawsuit (under the governing law specified in the
contract with Mr. Wolfe) for a wrongfully terminated employee; and (c) did not provide anything at all for Mr.
Wolfe’s expenses and other damages in defending this lawsuit for more than a year, or for reputational harm the
lawsuit has caused to Mr. Wolfe.
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which represents a complete reversal and abandonment of their repeated insistence that they
needed to conduct discovery (which they never served) and have a final merits hearing.
Plaintiffs now proffer the COVID-19 pandemic as an excuse for suddenly wanting to drop this
lawsuit. Notably, not once during any prior communications did Plaintiffs mention or raise any
concerns about “the business disruptions and economic uncertainty caused by the COVID-19
pandemic” and the need for Plaintiffs “to focus their resources elsewhere,” as they suddenly now
do in their pending motion to dismiss.8
In short, the circumstances leading up to and surrounding Plaintiffs’ abrupt decision to
simply walk away and end this litigation readily support the conclusion that Plaintiffs’ true
motivation is to avoid responding under oath to Defendants’ discovery requests and having to
produce documents. Based upon what has transpired to date, Defendants’ expectation is that the
responses to these discovery requests would have revealed that Plaintiffs’ claims regarding the
“confidential information” at issue in the case were completely unfounded and that this lawsuit
was merely a tactical ploy commenced by Plaintiffs for the sole purpose of giving it settlement
leverage over Mr. Wolfe in the Danish lawsuit. Yet now, and without suffering any penalty for
what they have done, Plaintiffs want to pretend that this whole contentious, expensive,
burdensome, ill-founded, and time-consuming case never happened and that no harm was done
to Defendants (or this Court or the public) because of it.
8 The World Health Organization declared the COVID-19 outbreak a Public Health Emergency of International
Concern (PHEIC) on January 30, 2020, and then declared it a global pandemic on March 11, 2020 – well over a
month before Plaintiffs’ sudden desire to abandon this lawsuit. Prior to April 17, all Plaintiffs said regarding the
pandemic was in reference to when the ongoing litigation matters might be resolved in the courts – specifically that
“the COVID-19 pandemic will almost certainly lead to delays [in the pending litigation matters between the parties]
in both the U.S. and Denmark.”
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It should not be that simple and easy for Plaintiffs. They have wasted fourteen (14)
months of this Court’s time, the taxpayers’ funds, and Mr. Wolfe’s time, resources, legal fees,
and emotional energy on what so far has proven to be an unfounded, tactical, and cynical legal
misadventure. Plaintiffs stretched out this harassing litigation as long as they possibly could
before having to make any factual disclosures. They vehemently refused the Court’s prior
suggestion of, and Defendants’ prior demand for, dismissal after their complete failure of proof
in the preliminary injunction hearing, instead seeking reconsideration or an interlocutory appeal
of the Court’s denial of the preliminary injunction. Plaintiffs said they wanted discovery, but
never served any. And now that it is no longer convenient, advantageous, or feasible for
Plaintiffs to continue this lawsuit, and now that they are on the deadline for responding to
discovery seeking the true basis for their claims and the motivation for this lawsuit, they simply
want to walk away unscathed. That simply is not fair, just, or appropriate.
Finally, a dismissal under the terms requested by Plaintiffs also is unfair and prejudicial
to Defendants because it could materially hinder or complicate Defendants’ pursuit of any
follow-on claims they have against Plaintiffs with respect to this litigation – such as for
malicious prosecution or abuse of process – by creating the risk of unnecessary litigation over
whether Plaintiffs’ claims were terminated favorably to Defendants. Issuing a judgment in
Defendants’ favor, for the reasons discussed below, is thus a more fair and appropriate
disposition of the case. After all, V.R.C.P. 41(a)(3) authorizes the Court to dismiss a case at the
plaintiff’s request – which is what Plaintiffs are seeking here – “upon such terms and conditions
as the court deems proper.” Allowing Plaintiffs to engage in a fourteen-month long campaign of
harassment of Defendants but then suddenly walk away with no consequences the moment
Defendants seek discovery from them is not “proper.”
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B. This Court Should Enter Judgment in Favor of Defendants on All Counts in the
Plaintiffs’ Verified Complaint alleges three causes of action: breach of contract (Count
I), breach of fiduciary duty (Count II), and breach of the duty of loyalty (Count III). Fourteen
(14) months into this litigation, Plaintiffs have failed to substantiate any of the three counts, and
at this point judgment in Defendants’ favor is plainly warranted on each of them.
As to Count I, breach of contract based solely upon the CFO Services Agreement, this
Court indisputably ruled at the preliminary injunction stage that the claim fails as both a matter
of fact and law. Dec. 26, 2019 Entry Order, at 6. And, in fact, in their motion to alter/amend or
for permission to appeal, Plaintiffs took no issue with that ruling. Thus, there can be no question
that Defendants are entitled to a judgment on Count I.9
As to Count II, breach of fiduciary duty, and Count III, breach of the duty of loyalty, the
Court has the authority to rule in Defendants’ favor even though there was no explicit
consolidation of the preliminary injunction hearing with a trial on the merits pursuant to Vt. R.
Civ. P. 65(b)(2). While formal, advance consolidation of the preliminary injunction hearing and
merits hearing might be the “typical” course of action, courts in many circumstances have issued
final decisions following preliminary injunction proceedings even where consolidation was not
ordered. See, e.g., Berry v. Bean, 796 F.2d 713, 719 (4th
Cir. 1986) (reversing grant of
preliminary injunction and remanding with directions to dismiss where “precedent dictates a
resolution in favor of [defendant], and no proffered evidence could change the result,” such that
9 In addition, given (a) that Plaintiffs’ own CFO Services Agreement required that all disputes arising out of the
contract be litigated in Denmark under Danish law; (b) that there was already pending litigation between the parties
over the contract in Denmark when Plaintiffs filed this lawsuit here; and (c) Plaintiffs could have raised and litigated
the alleged “confidential information” issues in that pending Danish proceeding, it was entirely improper from the
outset for Plaintiffs to sue Defendants here alleging breach of contract.
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further consideration on the merits would be “futile” and “a useless gesture”); Libertad v. Welch,
854 F. Supp. 19, 34 (D.P.R. 1993) (dismissal is warranted following preliminary injunction
hearing where no material disputes of fact remain, additional discovery would not substantially
assist plaintiffs, and law dictates that plaintiffs will not succeed on merits); Martin v. Patterson,
975 So.2d 984, 991-92 (Ala. App. 2007) (dismissal is proper following preliminary injunction
hearing “when parties in fact presented their entire cases and no evidence of significance would
be forthcoming at trial”); George P. Ballas Buick-GMC, Inc. v. Taylor Buick, Inc., 449 N.E.2d
503, 505, 507 (Ohio App. 1982) (affirming dismissal of case following preliminary injunction
hearing where court held extensive hearing and evidence revealed that plaintiff could not show a
right to relief and that no conflict of material fact existed to justify a full merits trial); see also
Standard Oil Co. of Tex. V. Lopeno Gas Co., 240 F.2d 504, 510 (5th
Cir. 1957) (“It is settled
beyond controversy that if, at the hearing on an application for preliminary injunction, the
evidence shows clearly that the plaintiff has not stated a claim upon which relief can be granted
and cannot state such a claim, the court should dismiss the plaintiff’s complaint.”); Illinois High
School Ass’n v. GTE Vantage, Inc., 99 F.3d 244, 248 (7th
Cir. 1996) (“Not only was the
preliminary injunction sought by [plaintiff] rightly denied, but since the suit appears to lack any
merit, the district court on remand should enter judgment for the defendant.”).
In arguing against Defendants’ motion to dismiss following the injunction decision,
Plaintiffs pointed out that the key purpose behind “clear and unambiguous notice” of
consolidation is to “ensure that a party has not withheld evidence based upon the mistaken belief
that the matter at issue was only a preliminary injunction.” Pls. Feb. 12, 2020 Opp., at 4 (quoting
Campbell Inns, Inc. v. Banholzer, Turnure & Co., 148 Vt. 1, 4 (1987)). But in the present case,
where injunctive relief was and is the only relief sought by Plaintiffs, they cannot claim that they
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withheld evidence or stopped short of making their strongest possible case at the preliminary
injunction hearing. First, Plaintiffs successfully sought to continue the August 26 injunction
hearing for the specific reason of having their essential witness, Ms. Puche (for whom, by
Plaintiffs’ own averment, there was no substitute), available to testify. Second, the relief sought
at the preliminary injunction hearing – i.e., to enjoin Defendants from disclosing Plaintiffs’
“confidential information” – was precisely the same (and only) relief Plaintiffs seek in their
Verified Complaint.10 This clearly was known to Plaintiffs from the beginning and, therefore,
further amplified the importance of the preliminary injunction hearing. As Plaintiffs’ themselves
readily acknowledged, “the only relief Plaintiffs seek is an order enjoining [D]efendants from
disclosing their confidential information,” and “Plaintiffs have repeatedly made it clear
throughout this litigation that they are seeking an injunction preventing Defendants from
disclosing their confidential information.” Pls. Feb. 12, 2020 Opp., at 6-7. In short, Plaintiffs
had plenty of time, opportunity, and, most importantly, motivation to put their best foot forward
at the preliminary injunction hearing. It is simply inconceivable that Plaintiffs had relevant
evidence that they did not introduce at the hearing, and, notably, they have identified no such
evidence in the more than five (5) months since the hearing. After all, the alleged disclosure of
“confidential information” by Mr. Wolfe and the claimed “irreparable harm” resulting from it
were so critical that Plaintiffs felt justified in initially seeking ex parte relief from the Court
(despite the fact that Mr. Wolfe was close by and readily available to be heard). If Plaintiffs
were now to deny that they put on anything but their absolute best case at the hearing, then they
10 Plaintiffs have never sought to amend their Verified Complaint to seek damages. And the reason is obvious: the
testimony of Plaintiffs’ own witness at the November 5 hearing confirmed that Plaintiffs have suffered zero
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essentially would be admitting that the hearing was little more than a waste of the Court’s and
Along these same lines, the second requirement enunciated by the Vermont Supreme
Court in Campbell Inns – i.e., that the parties had a “full opportunity to present their respective
cases” – also is satisfied here given the circumstances. The Court held a day-long evidentiary
hearing and permitted the parties to submit whatever exhibits they wanted, as well as post-
hearing briefing, for the Court’s consideration. And, importantly, this is not a case where
Plaintiffs filed their Verified Complaint and then had only a short window of time to prepare for
a preliminary injunction hearing with limited information available to them. On the contrary,
after filing their case Plaintiffs had nine (9) months to prepare for the hearing, with full
knowledge that every issue in the case would be on the table.11 And, after the hearing, Plaintiffs
extensively briefed the fiduciary duty and duty of loyalty issues, which the Court found
unavailing. See Plaintiffs’ November 19, 2019 (post-hearing) Supplemental Memorandum in
Support of Motion for Preliminary Injunction; January 16, 2020 Motion to Alter or Amend Order
(i.e., for reconsideration) or for Permission to Appeal; and February 12, 2020 Reply in Support
of Motion to Alter or Amend or for Permission to Appeal.
At this point, judgment in Defendants’ favor is plainly warranted on each of the three
counts in Plaintiffs’ Verified Complaint.
WHEREFORE, for the foregoing reasons, Defendants respectfully request that this
11 Even so, as noted above, Plaintiffs, by their own choice, have never sought any discovery from Defendants.
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(1) DENY Plaintiffs’ Motion to Dismiss;
(2) Enter judgment in Defendants’ favor on Count I (breach of contract) in Plaintiffs’
(3) Enter judgment in Defendants’ favor on Count II (breach of fiduciary duty) in
Plaintiffs’ Verified Complaint;
(4) Enter judgment in Defendants’ favor on Count III (breach of the duty of loyalty)
in Plaintiffs’ Verified Complaint; and
(5) Award Defendants’ their attorneys’ fees and costs in this action.
Dated at Burlington, Vermont this 30th
day of April, 2020.
CROSSFIELD, INC. and
ROBERT R. WOLFE
By: ___/s/ Walter E. Judge, Jr.________
Walter E. Judge, Jr.
Matthew S. Borick
Downs Rachlin Martin PLLC
Attorneys for Defendants
199 Main Street
P.O. Box 190
Burlington, VT 05402-0190
Phone: (802) 863-2375
Attorneys for Defendants
cc: Christopher J. Valente, Esq.
Michael R. Creta, Esq.
David Pocius, Esq.
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DEFENDANTS’ RULE 7(a)(1)(B) CERTIFICATION
Pursuant to Rule 7(a)(1)(B) of the Vermont Rules for Public Access to Court Records,
undersigned counsel certifies that he has reviewed the foregoing filing, and that the filing
contains no nonpublic records under the Vermont Rules for Public Access to Court Records.
___/s/ Matthew S. Borick____________
Matthew S. Borick
CERTIFICATE OF SERVICE
Pursuant to Rule 5(h) of the Vermont Rules of Civil Procedure, undersigned counsel
hereby certifies that a copy of the above document was served on April 30, 2020, via email, on
the following attorneys of record in the above-captioned action:
Christopher J. Valente, Esq.
Michael R. Creta, Esq.
K&L GATES LLP
State Street Financial Center
One Lincoln Street
Boston, MA 02111
David M. Pocius, Esq.
PAUL FRANK + COLLINS P.C.
One Church Street
P.O. Box 1307
Burlington, VT 05402-1307
___/s/ Matthew S. Borick____________
Matthew S. Borick