BUSINESS BLOGS
BUSINESS BLOGS
category: business
14 May 2008

Editor’s note: this week we commemorate the 2-year anniversary of the lawsuit that almost killed Mojo Supreme back in May 2006. See Part 1, 2, 3, 4, 5, 6, 7, or read on for Part 8, below:

Being Down 0-3, Facing Elimination

The way the lawyers for the Petitioners prepared for War, they effectively launched a hostile, pre-emptive strike that basically caught me by surprise and cornered me.

As such, going into the first day of the proceedings (which were slated for Wednesday May 10th), it could be said that I suddenly found myself down 0-3 facing elimination, so to speak. It was a bastardly move, but I realized that when people try to take you out, they don’t give you any warning signs.

To say things looked bleak is an understatement.

I was not sure if I had the wherewithal to avoid elimination in game 4, let alone the financial capacity to stretch the series to a seventh and deciding game.

The fact that on Wednesday the judge gave me a few more days to prepare made the series 1-3.

I had a few days to regroup, hit the legal books and strategize.

Friday’s training session with the injunction specialist made realize that I could overcome the obstacle, but the fact remained, going into Monday’s clash, I was facing elimination in Game 5.

As we covered in All About Injunctions, a loss at the Provisional Injunction stage would have marked the end of Mojo Supreme, that’s for sure, because I was not sure whether or not we would even touch on the fact that I was not competing with my former employer.

Looking back, the Provisional Injunction trial set for Monday represented Game 5, with the Interlocutory Injunction (date TBD) representing Game 6… and the Merits stage of the trial being the winner-takes-all clash in Game 7.

As too-many-lawyers had told me, getting to Game 7 would cost me upwards of $100,000; with one prominent lawyer telling me the final tab could be $250,000 if their lawyers were to sprinkle motions throughout the process.

Don’t Get Over-Confident, Ash

While I had grown more confident to win the battle on Monday, I knew that I could not get over-confident.

Sports teams sometimes come back to win 1 - or 2 - games after being down 3 games-to-none. But frequently, they cave in in Game 6 and get eliminated because they start to think ahead to Game 7 without realizing that they need to step up and show up for Game 6 to force that seventh game.

That’s what happened to my Montreal Canadiens this post-season. Down 1-3 in the Series, the were up in the third period of Game 5 but they began to think ahead to Game 6 (if not 7) and out-of-nowhere, the Philadelphia Flyers stormed back to defeat the Habs in Game 5, making talk of a Game 6 (or 7) moot.

But, we’re not talking hockey; we’re talking litigation.

Constructive Dismissal?

In fact, by Sunday night, I was confident that I could win the Provisional Injunction battle the next day and God willing, win again in the subsequent Interlocutory Injunction Showdown, too.

I did not know how, but I knew it was feasible.

Suffice to say, by now, I was certain about winning the eventual Merits stage of the trial, too; the problem was getting there without spending hundreds of thousands of dollars.

I had spent most of Saturday going through each paragraph and every single exhibit and turned each one against them; as good lawyers are supposed to do when limited to using evidence that is on the face of the record.

Sunday, I spent some time analyzing cases of constructive dismissal. While I was surely a victim of that, I decided to shift the focus away from even mentioning constructive dismissal as a defense theme.

As the name somewhat implies, constructive dismissal includes:

- loss of reponsibilities
- loss of salary
- loss of power and prestige
- being overlooked for a promotion you asked for and even if you deserved it…
- etc.

The point is, if company A buys company B at which you are a VP and after the deal your role changes and you resign, you are for all intents and purposes “dismissed” in the eyes of the courts. Please note, I am not a lawyer, I was just acting as one, so make sure you speak to an actual employment lawyer on this point.

However, much like I decided not to argue the validity of the non-competition agreement (without stating that it was indeed valid; for it was broad and ambiguous, something that the courts automatically strike down), I decided to argue that the businesses were not competitive.

I did this because ultimately that would be the crux of the argument, but I also was limited to the evidence that was on the face of the record.

The way their lawyers had mishandled their case, I could not really touch on the other points (was the non-competition agreement valid? Was I a victim of constructive dismissal?) but I could certainly turn the knife in their hand around and cut their necks off by stressing that “look, my lady, they themselves admit that we don’t compete”.

The decision to go with this argument was very much akin to sticking to a more conservative running game in order tto put up points on the board, instead of the more flamboyant but risky aerial assault of hurling hail marries in the hope of scoring big.

But, as I said, we’re not talking football, we’re talking litigation.

An Epic Battle Lurked Around the Corner

Regardless of the outcome, it would be epic: I would either put up a worthy resistance but succumb to the weight and vitriol of the offensive or find a way to destroy the enemy forces in a legendary fashion with no precedent: a mere mortal and commoner taking on a gargantuan empire represented by two litigators from one of Canada’s most distinguished - and feared - law firms, led by the outgoing President of the Bar Association.

What would happen the next day? Come back tomorrow…