Posted in: commodities-and-mining
RE: Frontera Archive8 Jun 2019 10:40
Posted by Taffy52 @ 08:21 :-
Court order
To obtain preliminary relief, a plaintiff must âestablish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.â Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The Ninth Circuit has elaborated on that standard by suggesting the likelihood of success on the merits is subject to a âsliding scale.â All. for Wild Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011) (â[T]he âserious questionsâ version of the sliding scale test for preliminary injunctions remains viable after the Supreme Courtâs decision in Winter.â). As quoted in Cottrell, under the sliding scale test, â[a] preliminary injunction is appropriate when a plaintiff demonstrates . . . that serious questions going to the merits were raised and the balance of hardships tip sharply in the plaintiffâs favor,â provided, of course, that âplaintiffs must also satisfy the other [Winter] factors.â Id. at 1135. III. DISCUSSION As with their application for a TRO, Plaintiffs acknowledge their motion for preliminary relief is based only on the first two claims of its FAC: (1) breach of fiduciary duty and the duty of loyalty, and (2) intentional interference with prospective economic relations, both against Hope. (Mot. at 15, 17.) As to these claims, Plaintiffs have failed to carry their burden under Winter. A. Likelihood of Success on the Merits Plaintiffsâ allegations and proffered evidence do not support entitlement to preliminary relief. The bulk of their motion focuses on allegations regarding Hopeâs pre-2016 conduct; allegations which are irrelevant since they predate his appointment as a director of FRC and so have no bearing on whether he breached his fiduciary duties as a director. Similarly, they have no impact on Plaintiffsâ claims for intentional interference with economic relations as those too are pegged to Hopeâs service as a director. (FAC ¶ 38.) Moreover, Plaintiffsâ pre-2016 allegations appear to have been fully settled and released in connection with a Mediation Settlement Agreement between the parties in a prior bankruptcy action and related adversary proceeding in the Southern District of Texas. As for Hopeâs conduct after his board appointment, Plaintiffs