Case 2:17-cv-04350-AB Document 3 Filed 09/29/17 Page 1 of 16
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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`Plaintiff,
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`Civil Action No. 2:17-cv-04350- AB
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`v.
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`ELEV3N, LLC,
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`VANBEX GROUP, INC.
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`Defendant.
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`DEFENDANT’S RESPONSE IN OPPOSITION TO
`PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER
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`Defendant, Vanbex Group, Inc. (“Vanbex”) by and through their undersigned attorneys
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`submit this Brief in Opposition to Plaintiff’s Motion for Temporary Restraining Order.
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`I.
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`PRELIMINARY STATEMENT
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`In “Plaintiff’s Motion for a Temporary Restraining Order,” Plaintiff Elev3n, LLC
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`(“Elev3n”) has grossly overreached.
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`There is no emergency. Vanbex provided consulting and strategy services to help Elev3n
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`develop a compelling case to use a cryptocurrency token for a product or application/ Elev3n,
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`months after filing suit in Vancouver in May 2017 over the identical contractual dispute raised
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`her, now seeks a TRO based on alleged copying or misappropriation of completely dissimilar
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`documents that have been publicly available on Etherparty’s website for many weeks.
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`There is no showing of harm. The speculative harm from an SEC prosecution is both
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`speculative and remote. Plaintiff has made no showing as to how it could be exposed to an
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`enforcement proceeding by the SEC so as to warrant injunctive relief. Elev3n is not making a
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`securities offering and there is no harm to them and no risk of an enforcement action by the SEC.
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`The specific emergency relief sought is unclear from this TRO, as no proposed order was
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`Case 2:17-cv-04350-AB Document 3 Filed 09/29/17 Page 2 of 16
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`attached, in violation of local rule, may prevent Etherparty, a different company with an entirely
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`different business model, from raising funds. Elev3n’s claimed and the injunction could be
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`deemed a “disqualifying event” under the SEC regulation which could cause Vanbex and its
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`officers to be prevented from supporting initial offerings in the United States for five years. The
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`proposed injunction could drastically impair Vanbex from working in its core business. Vanbex
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`will suffer substantial harm if am not permitted to continue its core business, which will prevent
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`its owners and employees from earning a livelihood.
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`Elev3n spends much of its memorandum discussing several garden variety contract
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`issues, and without showing the harm that would warrant the drastic relief of an emergency
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`injunction.
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`Elev3n has made no showing of copying, no showing of substantial similarity of the
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`works. The works at issue are entirely and substantively dissimilar. Elev3n cannot make out a
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`claim for copyright infringement as it has no copyright registrations.
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`Elev3n cannot show a violation of the Computer Fraud and Abuse Act as there has been
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`no sabotage of its computer system. The documents that Vanbex created for Elev3n were stored
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`on a cloud based google drive that were shared and were later moved to a larger parent archived
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`folder. Elev3n has the ability to see who the larger archived client folder was shared with, but
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`none of the Elev3n documents were accessed or copied or used in relation to the ICO for
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`Etherparty that Elev3n seeks to enjoin.
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`The other garden variety claims in the complaint do not indicate the need for emergency
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`relief.
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`Plaintiff has not established personal jurisdiction over Vanbex to seek relief in a
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`Pennsylvania federal court.
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`Case 2:17-cv-04350-AB Document 3 Filed 09/29/17 Page 3 of 16
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`Factual Background
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` See declarations of Lisa Cheng and Brandon Kostinuk, attached as Exhibits 1 and 2.
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`Vanbex is in Vancouver, Canada. Elev3n approached Elev3n initially sued over the contract
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`dispute in court in Canada, seeking both a full refund and apparent .
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`Vanbex has been in the consulting business of developing blockchain and cryptocurrency
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`businesses since 2013. As such, Vanbex has garnered business insight and a well-developed
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`understanding of how blockchain technology can impact existing business infrastructure and
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`operations. Vanbex has become highly specialized in building out the elements of a successful
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`client strategy relating to blockchain and cryptocurrency businesses.
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`A blockchain is a digitized, decentralized, public ledger of all cryptocurrency
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`transactions. The public leger of transactions is constantly growing as “completed” blocks (the
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`most recent transactions) are recorded and added to it in chronological order, the technology
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`allows market participants to keep track of digital currency transactions without central
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`recordkeeping. Blockchain employs open source coding as technology, meaning publically
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`available coding, but many users of blockchain technology modify the open source coding to
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`customize the coding to a particular software application.
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`A cryptocurrency is a digital or virtual currency that uses cryptography for security, such
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`as Bitcoin or Ethereum.
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`Vanbex provides communication and marketing services and has a team of blockchain,
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`smart contract, and cryptocurrency experts, to work with clients to take the client brand’s vision
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`and showcase it to various audiences. For example, Vanbex assists clients in preparing white
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`papers and documentation to illustrate blockchain and cryptocurrency value for clients who
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`intend to use blockchain, Bitcoin and Ethereum technology.
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`Case 2:17-cv-04350-AB Document 3 Filed 09/29/17 Page 4 of 16
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`Vanbex provides consulting and strategy services to help clients develop a compelling
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`case to use a cryptocurrency token for a product or application and works with clients to develop
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`a clear demonstration of the technology for clients.
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`While Vanbex’s services are tailored to each client, the presentation and strategy of the
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`business will very often be derived from other works and contain similar or common elements,
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`given our niche market of developing blockchain and cryptocurrency businesses.
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`Vanbex provides investment marketing services surrounding Initial Coin Offering
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`(“ICO”) fundraising. An ICO is a crowd sourcing event, when a company releases its own
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`cryptocurrency with a purpose of funding. An ICO typically involves a release of a certain
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`number of crypto-tokens to be sold to an intended audience, most commonly in exchange for
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`Bitcoins, or other forms of currency. Vanbex’s ICO-related services include communicating the
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`unique value and use case for a client’s token or project. These services include, for example,
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`preparing and drafting ICO announcement, prospectus, and other ICO materials. Documents
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`prepared in connection with ICO’s are tailored to each client’s token or project, but such
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`documents will necessarily contain similar or common elements, since all ICO’s necessarily
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`involve blockchain and cryptocurrency as a key component of the project.
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`Typically, Vanbex works on projects that have a clear need for a cryptocurrency tokens
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`that support the business model.
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`In this case, Elev3n approached Vanbex in October 2016 to fit a cryptocurrency token
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`concept into a shifting business model because an ICO is what Elev3n decided to use as a vehicle
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`to raise money.
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`As of December 6, 2016, the Elev3n project was held out as a health marketplace for
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`complementary health and alternative medicine with a patient records database digitally secured
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`Case 2:17-cv-04350-AB Document 3 Filed 09/29/17 Page 5 of 16
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`by blockchain technology. Elev3n understood that the ICO documents prepared by Vanbex for
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`the Elev3n project were based, in part, and modified from, other ICO documents that Vanbex
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`had previously prepared for other ICO’s. Elev3n understood and expected that Vanbex would
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`using its prior experience in preparing ICO documents for other clients to prepare the Elev3n
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`ICO documents.
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`In May 2017, Elev3n subsequently filed a contract action against Vanbex in Vancouver,
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`BC, seeking the full amount paid for services rendered, $39,000 USD and also seeking to keep
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`the materials prepared by Vanbex, and also demanding that Vanbex remove and delete materials
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`prepared by Vanbex for Elev3n.
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`The Elev3n concept has changed since the engagement with Vanbex ended in December
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`2016. Elev3n has subsequently applied to register ELEV3N as a trademark for several concepts,
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`none of which include patient medical records databased digitally secured by blockchain
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`technology. Since ELEV3N no longer intends to use blockchain technology, it would have no
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`use for crypto-tokens or to raise funds by ICO. Vanbex was not asked, and did not, perform
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`blockchain coding services for Elev3n’s project.
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`Vanbex has not used the ICO materials specifically tailored for Elev3n for the Etherparty
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`ICO, which is scheduled to begin October 1, 2017. The Etherparty ICO has been promoted in
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`the relevant media for many months and the ICO materials are found on the Etherparty website,
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`https://etherparty.io/.
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`At the time Elev3n first approached Vanbex for services in October 2016, the Etherparty
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`project was at significantly more mature stage than the Elev3n project.
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`For example, the Etherparty project was announced to the public in June 2016 and the
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`project was in beta (live user) testing as of end of summer 2016, meaning the software
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`Case 2:17-cv-04350-AB Document 3 Filed 09/29/17 Page 6 of 16
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`application related to the use of the Fuel token already was built and was ready for user testing,
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`for the purpose of receiving user feedback on the software application. See example articles in
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`the relevant media at Exhibit D in Lisa Cheng Delcaration.
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`The Etherparty project substantially predated the less mature Elev3n project and the ICO
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`materials prepared for the Etherparty project, related to a very different business idea having a
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`distinctly different application for cryptocurrency. As such, materials prepared for the
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`Etherparty ICO were created separately from materials the Elev3n project by Vanbex.
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`The Etherparty ICO documents consist of: Etherparty Whitepaper; Presentation Deck;
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`and Terms and Conditions drafted by legal counsel. Similar types of documents were not
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`prepared for the Elev3n project. The Etherparty ICO documents have been publicly available for
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`many weeks.
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`If an injunction were to issue against Vanbex in supporting the Etherparty ICO, the
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`damaging consequences of not being able to go forward the ICO include: a loss of credibility in
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`the relevant community, including seed money sponsors; lost opportunity to raise capital in this
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`specific ICO. These negative consequences will significantly damage Vanbex.
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`II.
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`ARGUMENT
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`A temporary restraining order is an extraordinary remedy which is granted in limited
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`circumstances:
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`Preliminary injunctive relief is an “extraordinary remedy” and “should be granted
`only in limited circumstances.” Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700,
`708 (3d Cir. 2004). “A temporary restraining order is a 'stay put,' equitable
`remedy that has as its essential purpose the preservation of the status quo while
`the merits of the cause are explored through litigation.” J.O. v. Orange Twp. Bd.
`of Educ., 287 F.3d 267, 273 (3d Cir. 2002) (citation omitted). The standard for
`granting a temporary restraining order under Federal Rule of Civil Procedure 65 is
`the same as that for issuing a preliminary injunction. Bieros v. Nicola, 857 F.
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`Case 2:17-cv-04350-AB Document 3 Filed 09/29/17 Page 7 of 16
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`Supp. 445, 446 (E.D. Pa. 1994). A plaintiff must demonstrate: (1) a likelihood of
`success on the merits; (2) the probability of irreparable harm if the relief is not
`granted; (3) that granting injunctive relief will not result in even greater harm to
`the other party; and (4) that granting relief will be in the public interest. Id. (citing
`Frank's GMC Truck Ctr., Inc. v. Gen. Motors Corp., 847 F.2d 100, 102 (3d Cir.
`1998)); see also Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir.
`1999) (setting forth the four elements for demonstrating need for preliminary
`injunction).
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`Zaslow v. Coleman, 103 F. Supp. 3d 657 (E.D. Pa. May 5, 2015)(temporary restraining order
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`denied on copyright and trademark infringement claims). Elev3n does not satisfy any of the
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`four elements. Accordingly, its Motion must be denied. ]
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`A.
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`A Pennsylvania Court Lacks Specific Jurisdiction Over Vanbex
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`A federal district court exercises personal jurisdiction over a defendant to the extent permissible
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`under the law of the state in which the district court sits. Pennzoil Products Co. v. Colelli &
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`Assoc., 149 F.3d 197, 200 (3d Cir. 1998). Pennsylvania’s long-arm statute “permits personal
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`jurisdiction over non-resident defendants ‘to the constitutional limits of the Due Process Clause
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`of the Fourteenth Amendment.’” Pennzoil, 149 F.3d at 200 (quoting Mellon Bank (East) PSFS,
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`National Assoc. v. Farino, 960 F.2d 1217, 1221 (3d Cir. 1992)). Accordingly, the exercise of
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`personal jurisdiction over Vanbex is proper only if it comports with due process. See, Farino,
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`960 F.2d at 1221.
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`Due Process requires that non-resident defendants have “certain minimum contacts with
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`[the forum state] such that maintenance of the suit does not offend traditional notions of fair play
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`and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L.
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`Ed. 95 (1945) (internal quotation omitted). Requiring minimum contacts with the forum state
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`assures fair warning to a defendant that he may be subject to suit in that state. Kehm Oil Co. v.
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`Texaco, Inc., 537 F.3d 290, 300 (3d Cir. 2008). Where a defendant asserts that the court lacks
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`Case 2:17-cv-04350-AB Document 3 Filed 09/29/17 Page 8 of 16
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`personal jurisdiction over it, the plaintiff bears the burden of establishing jurisdiction over the
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`defendant is proper. Farino, 960 F.2d at 1221.
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`Personal jurisdiction can be either general or specific. Kehm Oil, 537 F.3d at 300.
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`General personal jurisdiction allows a defendant to be sued in the forum regardless of whether
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`the cause of action is related to the forum. Pennzoil, 149 F.3d at 200. A non-resident’s contacts
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`with the forum must be “continuous and systematic” to establish general jurisdiction.
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`Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U.S. 408, 416, 104 S. Ct. 1868, 80 L.
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`Ed. 2d 404 (1984).
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`Specific personal jurisdiction exists where the claim “arises from or relates to conduct
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`purposely directed at the forum state.” Kehm Oil, 537 F.3d at 300. To determine whether
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`specific jurisdiction exists, the court must first determine whether the defendant had minimum
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`contacts with the forum state such that it could have “‘reasonably anticipated being hauled into
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`court there.’” Pennzoil, 149 F.3d at 201 (quoting World-wide Volkswagen Corp. v. Woodson,
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`444 U.S. 286, 297, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980)). If the court determines there were
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`sufficient minimum contacts, it must then determine whether asserting personal jurisdiction over
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`the defendant would comport with the notions of fair play and substantial justice. Id. As
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`discussed below, neither form of personal jurisdiction is applicable here, and this Court cannot
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`hear this action.
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`Here, Elev3n approached Vanbex to perform services. The services were performed in
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`Vancouver, BC and not in Pennsylvania. No one from Vanbex came to Pennsylvania. Work was
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`shared on the internet in a google drive saved on the i-cloud. Vanbex’s passive website does not
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`allow direct purchase of services and does not specifically solicit business in Pennsylvania.
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`While Defendant has a website, the Third Circuit has held that “the mere operation of a
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`Case 2:17-cv-04350-AB Document 3 Filed 09/29/17 Page 9 of 16
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`commercially interactive web site should not subject the operator to jurisdiction anywhere in the
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`world.” Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 454 (3d Cir. 2003). Rather, Plaintiff
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`must establish the defendant “‘purposely availed’ itself of conducting activity in the forum state,
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`by directly targeting its web site to the state, knowingly interacting with residents of the forum
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`state via its web site, or through sufficient other related contacts.” Id. Here, Elev3n even
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`recognized this jurisdictional issue by filing suit initially in Canada. There is no evidence of
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`systematic contacts with Pennsylvania to invoke general jurisdiction.
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`In light of the above, this Court lacks personal jurisdiction over Vanbex. Because none
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`of the operative facts occurred in this forum, plaintiff cannot establish specific jurisdiction.
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`Under the heightened general jurisdiction standard, plaintiff also lacks sufficient evidence, as
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`Vanbex has no meaningful connection with this venue to establish general personal jurisdiction.
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`Therefore, Defendant respectfully submits this case should be dismissed
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`B.
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`Plaintiff is Not Likely to Prevail on The Merits
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`Plaintiff’s underlying claims of (1) injunctive relief to enforce copyright claims, (2)
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`breach of contract, (3) breach of confidentiality agreement; (4) Computer Fraud and Abuse Act;
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`(5) conversion; (6) unjust enrichment and (7) declaratory action, are without merit. Thus,
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`Plaintiff is unlikely to prevail on the merits of these claims. Vanbex has not violated copyright
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`and did not breach the contract. Vanbex has not improperly access Elev3n’s “computer system”
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`The documents prepared by Vanbex were stored on shared google drive in the i-cloud and later
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`moved to an archived google drive on the cloud. The archived Elev3n folders on the cloud were
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`sub-folders of a parent folder containing older client files. Elev3n could see when access to the
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`larger folder was shared. However, the Elev3n folder was not used or misappropriated by
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`Vanbex. Any claimed violations of confidentiality agreement or the causes of action described
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`Case 2:17-cv-04350-AB Document 3 Filed 09/29/17 Page 10 of 16
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`in the Complaint can be entirely remedied by money damages and the request for injunctive
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`relief is entirely inappropriate. Further, the very fact that Plaintiff seeks a declaration that it
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`holds exclusive ownership the entirety of a derivative work. This speaks to the tenuous nature of
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`its claim, as it does not have exclusive rights to the entirety of a work built off a template.
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`Standards to Enforce Copyright
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`C.
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`As a threshold matter, Elev3n must demonstrate that it owns a valid copyright to the
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`claimed written works. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S. Ct.
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`1282, 113 L. Ed. 2d 358 (1991) (citation omitted). Section 411 of the Copyright Act requires that
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`a plaintiff must have a registered copyright before filing an infringement claim based upon that
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`copyright. Zaslow v. Coleman, 103 F. Supp. 3d 657 (E.D. Pa. 2015))(temporary restraining order
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`denied on copyright and trademark infringement claims) (citing 17 U.S.C. § 411; Patrick
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`Collins, Inc. v. Does 1-26, 843 F. Supp. 2d 565, 569 (E.D. Pa. 2011)). With regard to a claim for
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`copyright infringement, “the Court should first consider whether there has been infringement by
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`comparing each of the allegedly infringing works against the restored work. The test for
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`copyright infringement is well-established. There are two essential elements: ownership of
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`copyright, and copying by the defendant.” Dam Things from Denmark, a/k/a Troll Co. ApS v.
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`Russ Berrie & Co., Inc., 290 F.3d 548, 561 (3d Cir. 2002). “[A] complaint based on copyright
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`infringement must allege: (1) which specific original works are the subject of the copyright
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`claim; (2) ownership of the copyrights in those works; (3) registration of the works in question
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`with the Copyright Office in accordance with 17 U.S.C. §§ 101 et seq.; and (4) by what acts the
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`defendant infringed the copyright.” Key Consolidated 2000, Inc. v. Troost, 432 F. Supp. 2d 484,
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`488 (M.D. Pa. 2006) (citation omitted).
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`Case 2:17-cv-04350-AB Document 3 Filed 09/29/17 Page 11 of 16
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`Elev3n cannot show ownership of the copyrights to the works at issue and cannot show
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`registration of the works, and cannot show by what acts the documents used in the Etherparty
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`ICO infringed any copyright. Accordingly, Plaintiff cannot meet its burden and its motion
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`should be denied.
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`Further, just because Company A gives Company B rights in a derivative work, that does
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`not have any impact on ownership of the underlying work. The copyright in a compilation of
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`data extends only to the selection, coordination or arrangement of the materials or data, but not to
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`the data itself. In the case of a collective work containing “preexisting works”—works that were
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`previously published, previously registered, or in the public domain— the registration will only
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`extend to the selection, coordination or arrangement of those works, not to the preexisting
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`works themselves. 17 U.S.C. 103(b). Dealing with derivative works would include, as was done
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`here, something built off a template. Nobody has improperly copied or the specific work that
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`was tailored for the Elev3n project. Further, there is nothing indicating any work prepared by
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`Vanbex in the Elev3n project was used for the Etherparty ICO.
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`Elev3n Cannot Show Irreparable Harm
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`In the Third Circuit, a finding of no irreparable harm is itself sufficient to deny a request
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`for a preliminary injunction. Nat’l Land & Investment Co. v. Specter, 428 F.2d 91, 97 (3d Cir.
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`1970); see also New Dana Perfumes Corp. v. Disney Store, Inc., 131 F. Supp. 2d 616, 626 (M.D.
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`Pa. 2001) (“Perhaps the single most important prerequisite for the issuance of a preliminary
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`injunction is a demonstration that if it is not granted the applicant is likely to suffer irreparable
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`harm before a decision on the merits can be rendered.”) (internal quotations marks and citation
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`omitted). “An injury is 'irreparable' only if it cannot be undone through monetary remedies.”
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`Cunningham v. Adams, 808 F.2d 815, 821 (11th Cir. 1987).
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`Case 2:17-cv-04350-AB Document 3 Filed 09/29/17 Page 12 of 16
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`In its Complaint, Elev3n alleges, in boilerplate fashion, that it has no adequate remedy at
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`law, yet it also seeks damages in the form of money damages (Complaint, Prayer for relief,
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`paragraphs in each count). Based on Elev3n’s own request for relief, then, it appears that any
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`harm suffered by Elev3n can be quantified into an award of damages. This claim for money
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`damages was already quantified as $39,000 by Elev3n in the Canada litigation. Nothing in the
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`record indicates Elev3n actually lost business or was not provided services rendered, had any
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`confidential or trade secret information disclosed or suffered a competitive disadvantage as a
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`result of any actions taken by Defendants. There is no indication in the record that Elev3n still
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`intends to use blockchain technology for its anticipated business and it would not be doing an
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`ICO. Thus, Elev3n has not shown it will suffer irreparable harm if the injunction does not issue.
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`The claim of irreparable harm is, at best, speculative. See Siegelv. LePore, 234 F.3d 1163
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`234 F.3d 1163 at 1176-77 (11th Cir. 2000) (emphasizing that irreparable injury must be neither
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`remote nor speculative, but actual and imminent). Indeed, if there was foreseeable harm to
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`Elev3n in the Etherparty ICO proceeding to raise funds, the harm would not be irreparable but
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`compensable through money damages. Pirtek USA, LLC, v. Zaetz, 408 F. Supp. 2d 81, 86 (D.
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`Conn. 2005); see also Siegel, at 1194 n.4 (indicating that the injury suffered by a plaintiff is
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`irreparable only if it cannot be undone through monetary remedies). This Court should also
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`discredit any claim by Elev3n that it has suffered irreparable harm, as Elev3n waited weeks to
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`seek the extraordinary injunctive relief it now seeks.
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`Here, Elev3n has failed to show any harm, let along irreparable harm, will result from the
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`Etherparty ICO going forward in Canada. In the context of a preliminary injunction, the asserted
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`irreparable harm must be actual and imminent rather than remote or speculative. Siegel v.
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`LePore, 234 F.3d 1163, 1176 (11th Cir. 2000). Elev3n has not shown it suffers or has suffered
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`Case 2:17-cv-04350-AB Document 3 Filed 09/29/17 Page 13 of 16
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`any actual or imminent harm due to the Etherparty ICO. Elev3n argues Vanbex may have shared
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`google folders, but has identified no specific access to the Elev3n client folders or how the
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`contents of those folders were downloaded or misused.
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`Elev3n’s claim of irreparable harm due to the potential misappropriation of IP material,
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`which in fact has nothing to do with the documents used in the Etherparty ICO, is remote and
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`speculative at best. In the Third Circuit, a finding of no irreparable harm is itself sufficient to
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`deny a request for a preliminary injunction. Nat’l Land & Investment Co. v. Specter, 428 F.2d 91,
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`97 (3d Cir. 1970); see also New Dana Perfumes Corp. v. Disney Store, Inc., 131 F. Supp. 2d 616,
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`626 (M.D. Pa. 2001) (“Perhaps the single most important prerequisite for the issuance of a
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`preliminary injunction is a demonstration that if it is not granted the applicant is likely to suffer
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`irreparable harm before a decision on the merits can be rendered.”) (internal quotations marks
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`and citation omitted).
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`Granting an Injunction will Result in Substantially Greater Harm to Vanbex
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`While there is no harm to Elev3n if no injunction issued, there would be very substantial
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`harm to Vanbex and its officers if the injunction on the Etherparty ICO issue. The request for
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`drastic emergency injunctive relief after several months delay and prior to any expedited
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`discovery is substantially unfairly prejudicial to Vanbex and to Etherparty, who is not a party to
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`this action. If an injunction were to issue against Vanbex in supporting the Etherparty ICO, the
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`damaging consequences of not being able to go forward the ICO include: a loss of credibility in
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`the relevant community, including seed money sponsors; lost opportunity to raise capital in this
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`specific ICO. These negative consequences will substantially damage Vanbex.
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`By SEC regulation, the imposition of a court injunction or restraining order in connection
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`with the purchase or sale of a security are a “disqualifying event” from the Rule 506 of
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`Case 2:17-cv-04350-AB Document 3 Filed 09/29/17 Page 14 of 16
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`Regulation D “safe harbor” for the private offering exemption of Section 4(a)(2) of the Securities
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`Act. 17 CFR 230.506. Moreover, Elev3n is not exposed as it has no plans to issue any ICO.
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`Accordingly, issuance of any injunction concerning the Etherparty ICO could prevent Vanbex
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`and its officers from soliciting or participating in future ICOs in the United States for the next
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`five years. The timing of this motion smacks of an attempt unfairly leverage the situation to
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`extort money from Vanbex.
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` Elev3n has not identified how damages would not compensate for any of the causes of
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`action pleaded. Accordingly, Court must deny a TRO for that reason as well.
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`Plaintiff must post a substantial bond.
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`“The Court may issue a . . .temporary restraining order only if the movant gives security
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`in an amount that the court considers proper to pay the costs and damages sustained by any party
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`found to have been wrongfully enjoined or restrained.” F.R.C.P. 65(c). This requirement is
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`interpreted strictly in the Third Circuit, with the only exception to the bond requirement is when
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`there is no risk of monetary loss to the defendant. Frank’s GMC Truck Ctr., Inc. v. Gen Motors
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`Corp., 847 F.2d 100, 103 (3d Cir. 1988). The purpose of the bond is to guaranty that an enjoined
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`party can be made whole in the event the court subsequently determines the initial injunction was
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`improvidently granted. As outlined above, Vanbex has a substantial risk of monetary loss, for
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`this particular ICO and for reputation and future business. The evidence in the record
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`demonstrates that the potential loss to Defendant as a result of an injunction could exceed tens of
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`millions of dollars. Indeed, Plaintiff is well aware of the potential harm that could be caused by
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`issuance of an injunction. This Court must require Plaintiff to post a substantial bond.
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`Case 2:17-cv-04350-AB Document 3 Filed 09/29/17 Page 15 of 16
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`III. CONCLUSION
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`Elev3n has entirely failed to set forth why injunctive relief is needed. The request for
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`injunctive relief should be denied.
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`Dated: September 29, 2017
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`ECKERT SEAMANS CHERIN &
` MELLOTT, LLC
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`By: /s/ Elizabeth S. Gallard
`Elizabeth S. Gallard, Esquire (#63258)
`Two Liberty Place
`50 S. 16th Street, 22nd Floor
`Philadelphia, PA 19102
`egallard@eckertseamans.com
`Tel: (215) 851-8418
`Fax: (215) 851-8383
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`Attorneys for Defendant
`Vanbex Group Inc.
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`15
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`Case 2:17-cv-04350-AB Document 3 Filed 09/29/17 Page 16 of 16
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`CERTIFICATE OF SERVICE
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`I hereby certify that on September 29, 2017, I electronically filed the foregoing document
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`with the Clerk of the Court using the CM/ECF system which will send notification of such filing
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`to all attorneys of record and serve the foregoing document upon the following:
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`Julia B. Klein, Esquire
`Klein LLC
`919 N. Market Street, Suite 600
`Wilmington, DE 19801
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`John A. Kirk, Esquire
`GrowthCounsel
`448 N. 10th Street, Suite 301
`Philadelphia, PA 19123
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`/s/ Elizabeth S. Gallard
`Elizabeth A. Gallard
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