[00:00:00] Speaker 00: Case number 23-7116, Chas Kleminger versus Advocacy Holdings, Inc., Dutton Businesses, One Click Politics at Balance, Raymond Zankeek et al. [00:00:11] Speaker 00: Mr. Romano for the balance, Mr. Chase for the ability. [00:00:17] Speaker 02: Good morning, Mr. Romano. [00:00:18] Speaker 02: You may proceed when you are ready. [00:00:22] Speaker 04: Good morning and may it please the court. [00:00:24] Speaker 04: My name is Anand Ramana, counsel for the Appellant Advocacy Holdings. [00:00:29] Speaker 04: I would like to reserve three minutes for rebuttal. [00:00:32] Speaker 04: This is an appeal, an interlocutory appeal of a denied preliminary injunction motion seeking to enforce a non-compete against his former CEO. [00:00:42] Speaker 04: The district court analyzed only one of the four preliminary injunction factors, whether we established irreparable harm, and concluded that despite [00:00:52] Speaker 04: it concluding that it was, quote, a close call that we had not. [00:00:57] Speaker 04: We present one assignment of error, but there are actually two questions before this court. [00:01:03] Speaker 04: The first question is whether we, in fact, or at law, established irreparable harm. [00:01:08] Speaker 04: And the second is, if so, does this court have the record to make the full determination that we are entitled to a preliminary injunction? [00:01:16] Speaker 04: The first question is dispositive, so I'd like to start there, whether we established irreparable harm. [00:01:22] Speaker 04: We established four facts in the preliminary injunction proceeding, three of which are undisputed. [00:01:29] Speaker 04: And of those three, one is dispositive. [00:01:33] Speaker 04: The dispositive fact is the non-compete agreement itself. [00:01:37] Speaker 04: That agreement contains a contractual stipulation by Mr. Clevenger that irreparable harm would result if he violated the agreement. [00:01:48] Speaker 03: That agreement is also government you please speak to whether you forfeited your argument about that stipulation for the district court. [00:01:56] Speaker 04: I don't believe that we did your honor. [00:01:58] Speaker 04: We submitted the evidence in our original preliminary injunction motion. [00:02:02] Speaker 04: The court ruled on that motion in the footnote footnote to and then on reconsideration. [00:02:09] Speaker 04: The preliminary injunction, the initial preliminary injunction motion was denied without prejudice. [00:02:13] Speaker 04: So our view is that all of the issues are live if we bring them back. [00:02:17] Speaker 04: When we brought them back on reconsideration, we supplemented and there's extensive briefing on that. [00:02:22] Speaker 03: I think as a general rule, you can't make arguments on reconsideration that you could have or should have made in the original motion. [00:02:34] Speaker 03: And it sounds like from what you're saying, you didn't make any argument about the stipulation in your original motion. [00:02:42] Speaker 03: It's in the contract, and you included the contract in the evidence. [00:02:48] Speaker 03: But was the district court right that you did not make any argument about the stipulation? [00:02:55] Speaker 04: I don't know if the district court ruled on that but your honor is right we did not have any I we did not present any explicit argument on that on that subject I think the difference here though is that this wasn't just a straight denial of a preliminary injunction motion the way that the denial was structured was that it was a denial without prejudice. [00:03:14] Speaker 04: So this isn't something where the court has ruled on it, let's move on. [00:03:18] Speaker 04: It was the court has ruled on it, but we're really not sure. [00:03:21] Speaker 04: I'm inviting you to bring it back, which is what we did. [00:03:25] Speaker 04: And so I agree, though, that, Your Honor, we didn't make any explicit arguments in the initial preliminary injunction motion. [00:03:32] Speaker 02: But there's no issue about it. [00:03:33] Speaker 02: I mean, you had the base. [00:03:34] Speaker 02: You had the stipulation. [00:03:36] Speaker 02: And if you were going to rely on that, it was fully available. [00:03:41] Speaker 02: And in fact, already before the court, [00:03:44] Speaker 02: it in the initial motion for a preliminary injunction. [00:03:47] Speaker 04: That's correct, Your Honor. [00:03:48] Speaker 04: Not only in the initial preliminary injunction, but in the five preceding TROs, all of which were granted in full by both the Eastern District of Virginia and the lower court here and the district court here. [00:03:59] Speaker 04: So the evidence has been in the records [00:04:02] Speaker 04: Really, since we filed the complaint in the beginning, but I can't say that we made the explicit argument on preliminary junction. [00:04:09] Speaker 04: So, Delaware law controls this issue as far as we're concerned. [00:04:12] Speaker 04: This is a substantive issue. [00:04:14] Speaker 04: Why? [00:04:14] Speaker 04: Because Delaware law breeds life into the stipulation, the strength of the stipulation. [00:04:20] Speaker 04: And what Delaware law says, the Marietta case, the Martin Marietta case is, this is alone sufficient to establish the second prong of the winter test, the irreparable harm. [00:04:31] Speaker 04: That's the end of the inquiry. [00:04:33] Speaker 04: Why? [00:04:33] Speaker 04: Because when you sign a contractual stipulation like that, Delaware says you are waiving your right to contest second prong [00:04:43] Speaker 04: in a preliminary injunction here. [00:04:44] Speaker 04: Now that doesn't mean that we don't have to prove substantial likelihood of success. [00:04:49] Speaker 04: It doesn't mean we don't have to prove balance of the equities or the public interest. [00:04:52] Speaker 04: We still have to prove that on a preliminary injunction. [00:04:54] Speaker 04: But Delaware law says you are waiving your right to contest what is really the hardest, in many cases, the hardest prong to prove. [00:05:04] Speaker 04: So that in and of itself is dispositive. [00:05:07] Speaker 01: That's an error of law. [00:05:08] Speaker 01: Mr. Romano, that case, that was chance to record 2012. [00:05:13] Speaker 01: I believe it was the Supreme Delaware Supreme Court 2012. [00:05:15] Speaker 01: I'm sorry, Supreme Court 2012. [00:05:16] Speaker 01: Correct. [00:05:18] Speaker 01: And since then, we have three instances from the Chancery Court, 2015, 2022, 2024, observing that the stipulation of that sort is not finding on the court if there's not some evidence [00:05:43] Speaker 01: beyond the stipulation to support a finding of irreparable harm. [00:05:48] Speaker 04: Right. [00:05:48] Speaker 04: And the difference here, I agree with that, Your Honor. [00:05:51] Speaker 04: That's what the Chancery Court said. [00:05:52] Speaker 04: I don't think the Supreme Court has said anything. [00:05:54] Speaker 04: But the difference here is. [00:05:55] Speaker 01: Well, in Martin Maria itself, when the Court says the contractual stipulations as to irreparable harm alone suffice, [00:06:06] Speaker 01: It also noted that there were facts supporting. [00:06:09] Speaker 01: Correct. [00:06:10] Speaker 01: The difference, I think, the distinction. [00:06:11] Speaker 01: I agree. [00:06:12] Speaker 01: We get conflicting statements, but there's never relief in any of these cases unless there were also facts in the record to support. [00:06:22] Speaker 04: I agree with that, Your Honor. [00:06:23] Speaker 04: I think the very nuanced distinction is, is it alone sufficient? [00:06:28] Speaker 04: Yes. [00:06:28] Speaker 04: Is it mandatory? [00:06:30] Speaker 04: And I think that's what those Chancery cases are saying. [00:06:33] Speaker 04: Is that a mandatory result? [00:06:35] Speaker 04: No, but alone it can be sufficient. [00:06:38] Speaker 04: But that's what we have here as well. [00:06:40] Speaker 01: There are three other facts. [00:06:41] Speaker 01: Alone it can be sufficient. [00:06:43] Speaker 01: You mean to say without supporting facts at all? [00:06:45] Speaker 01: That's what the Martin Marietta case is. [00:06:47] Speaker 01: The difference being it is sufficient. [00:06:49] Speaker 01: Martin Marietta is susceptible to that reading, but in fact there were facts there. [00:06:54] Speaker 01: And the Chancery court has thrice read it the way I'm suggesting. [00:06:58] Speaker 04: I don't think they're inconsistent, actually. [00:07:00] Speaker 04: Just because something alone is sufficient doesn't mean that it's mandatory. [00:07:05] Speaker 04: But I would like to get to why this case also has other supporting facts, strong supporting facts. [00:07:11] Speaker 04: The first one. [00:07:12] Speaker 02: Before you move on to that, Mr. Romano, I took you to be suggesting that you thought that Delaware law applies under an eerie analysis. [00:07:22] Speaker 02: The briefing doesn't really go into this, but isn't the question that we would have to conduct an analysis under Erie versus Tompkins to determine whether federal procedural rules apply or whether Delaware law applies on this matter. [00:07:40] Speaker 04: That's a great point. [00:07:42] Speaker 04: We make a substantive law argument. [00:07:44] Speaker 04: The district court and the appellee are saying, no, it's procedural law. [00:07:48] Speaker 04: What is irrelevant depends on circuit by circuit. [00:07:52] Speaker 04: I'm not sure you have to conduct that analysis because as Judge Ginberg says, there are, as it's said, but has raised, [00:07:58] Speaker 04: Is there are other facts here so even under the sun tag analysis is Smith Buckley the DC circuit case that they site and that the district court site. [00:08:06] Speaker 04: There is a loss of customers Mister Clevinger testified at trial that he said 8 to 12 customers he took over the invoice is a 18 out of 15. [00:08:15] Speaker 04: but he took those customers that's a violation of five there's no dispute that he's this he started a competing company that's the biggest issue here that's held that those are not incalculable damages the ones flowing from loss of customers that's that's monetary and wouldn't support uh [00:08:36] Speaker 02: a finding of irreparable harm. [00:08:37] Speaker 02: What's wrong there? [00:08:40] Speaker 04: Correct. [00:08:41] Speaker 04: And that is an error. [00:08:42] Speaker 04: If this were one contract, then you can calculate. [00:08:44] Speaker 04: This isn't a breach of contract case. [00:08:46] Speaker 04: This isn't loss of contracts. [00:08:48] Speaker 04: This is loss of customer relationships that have, in each of which, have indefinite revenue streams absent the interference. [00:08:55] Speaker 04: And what we have is interference, which is what the non-compete is intended to avoid. [00:09:03] Speaker 04: You are disrupting revenue streams. [00:09:04] Speaker 04: Yes, these were annual subscriptions. [00:09:06] Speaker 04: But absent his interference, this would have been and had been up until the interference, back to back to back, indefinite revenues. [00:09:13] Speaker 04: Those are not calculable at trial. [00:09:15] Speaker 04: What happens for one year, they are. [00:09:19] Speaker 04: But if you're interfering with the relationship for an indefinite period of, we don't know when these relationships would have otherwise ended if they weren't interfered with. [00:09:28] Speaker 04: They could have gone on for 10 straight years. [00:09:29] Speaker 04: We won't be able to do that. [00:09:30] Speaker 04: That's speculative damages. [00:09:32] Speaker 04: And I'm not allowed to put on speculative damages at trial. [00:09:35] Speaker 04: So I think it's an error to say that these are monetizable injuries. [00:09:41] Speaker 04: They are in the very short term. [00:09:43] Speaker 04: But the relationship itself, you can't monetize. [00:09:45] Speaker 04: It could be indefinite. [00:09:46] Speaker 04: It could go 20 years into the future. [00:09:49] Speaker 04: And we never will know because of the interference that the non-compete was designed to obstruct. [00:09:57] Speaker 04: Your Honor, I'm already at 10 minutes. [00:09:59] Speaker 04: I'd like to reserve the remainder of my time [00:10:05] Speaker 02: All right, we'll hear from Mr. Chase. [00:10:13] Speaker 05: Good morning, Your Honors. [00:10:14] Speaker 05: Kenneth Chase for the Appellees. [00:10:17] Speaker 05: This case presents a circumstance where the trial court's factual findings preclude a finding of irreparable harm. [00:10:25] Speaker 05: And therefore, the trial court correctly denied the motion for preliminary injunction. [00:10:29] Speaker 05: That is the case under a pre-winter standard. [00:10:32] Speaker 05: That is the case in a post-winter world. [00:10:36] Speaker 05: And that is dispositive of whether a preliminary injunction should be entered. [00:10:43] Speaker 05: As the court discussed during the argument of the appellant, [00:10:47] Speaker 05: The argument of whether a contractual stipulation is dispositive wasn't raised in the trial court below. [00:10:56] Speaker 05: So that issue wasn't raised, could have been raised, admitted that it had been available to have been raised, wasn't raised, and therefore isn't for the court. [00:11:07] Speaker 05: But even if it was, it's not sufficient. [00:11:10] Speaker 05: Even the Delaware courts have held that a contractual so-called stipulation is not mandatory. [00:11:18] Speaker 05: It does not divest a federal court of its equitable power to deny a motion for a preliminary injunction. [00:11:27] Speaker 05: This record contains findings that the trial court that are unchallenged [00:11:33] Speaker 05: The appellant does not challenge any of the factual findings of the trial court. [00:11:37] Speaker 05: And those factual findings are completely dispositive. [00:11:41] Speaker 05: The findings are that the appellant has hundreds of customers. [00:11:46] Speaker 05: The appellant continued to gain customers. [00:11:49] Speaker 05: The appellant's business is about the same. [00:11:52] Speaker 05: There's no risk of the appellant's business imminently going out of business. [00:11:59] Speaker 05: And there's been essentially no change in the business at all. [00:12:03] Speaker 05: Those findings preclude, as the trial court held, a finding of irreparable harm as to economic damages. [00:12:11] Speaker 05: Moreover, in the trial court, the appellant agreed that as to loss of customers, those are quantifiable [00:12:18] Speaker 05: as monetary damages should they prevail at trial. [00:12:21] Speaker 05: They admitted that. [00:12:23] Speaker 05: That takes economic damages off the table. [00:12:25] Speaker 02: Why isn't that just belt and suspenders? [00:12:27] Speaker 02: They're planning to try to calculate, but Mr. Romano makes an argument today that the indefiniteness going forward, the length of the customer relationship is a factor that interferes with the economic calculus. [00:12:42] Speaker 05: Sure, Your Honor. [00:12:43] Speaker 05: And that is why it's not irreparable harm and imminent risk of irreparable harm, which is required under Rule 65. [00:12:50] Speaker 05: What they're saying is 20 years from now, perhaps there'll be some attrition problem. [00:12:55] Speaker 05: But that is the inverse of what is required for a preliminary injunction, which is imminent risk of irreparable harm. [00:13:03] Speaker 05: And they agreed that they stipulate that the court made a factual finding that they don't dispute that monetary damages calculated at trial would address the economic damages claim. [00:13:20] Speaker 02: Mr Clevenger solicit clients and customers using the contact information that he exported from his OCP work email. [00:13:29] Speaker 05: That's a disputed factor honor. [00:13:30] Speaker 05: And that wasn't determined. [00:13:32] Speaker 05: None of the what was striking about the appellant's brief is the lack of citations. [00:13:38] Speaker 05: All these assertions weren't in the opinion. [00:13:42] Speaker 05: Mr Clevenger's so called contacts that he downloaded [00:13:45] Speaker 05: or his own contacts, his professional contacts that he's had for 20 years. [00:13:50] Speaker 05: And so the notion that he downloaded the contacts, they're his contacts. [00:13:55] Speaker 05: They're his professional contacts. [00:13:56] Speaker 02: Well, those are going to be issues for a trial court. [00:13:59] Speaker 02: But if you come in and you're a principal at a business and you [00:14:03] Speaker 02: render your contacts the customers of a business, there may be an issue whether they're still your contacts in that context. [00:14:13] Speaker 02: So the notion that telling customers that their service provider is shutting down is not incalculable damage to the service provider's reputation in your view. [00:14:28] Speaker 05: Certainly not your honor and that was addressed by the trial court judge judge Cobb she held as to the reputation damages that there's not much in the record that there's no evidence that the. [00:14:44] Speaker 05: customers would migrate back. [00:14:47] Speaker 05: The assertion that there was a representation that the appellant's business is shutting down is actually a necessary assertion for the relief that they're seeking. [00:14:58] Speaker 05: But in fact, that's not what they testified to. [00:15:01] Speaker 05: They deny that the appellant's business is shutting down. [00:15:05] Speaker 05: Who knows? [00:15:06] Speaker 05: But then in their briefs, they say, well, all these costs might put the company out of business. [00:15:11] Speaker 05: So that renders the allegation that an assertion by Mr. Clevenger was made as to the future of advocacy holdings, that renders it probably true, according to what they would actually have to show in this motion, which was denied. [00:15:29] Speaker 05: They didn't show it. [00:15:31] Speaker 05: Their principal testified. [00:15:33] Speaker 05: Unlike any of the other cases where there was some support for a finding of irreparable harm, they pled themselves and they admitted themselves out of it. [00:15:46] Speaker 05: That makes this case more clear than any of the other cases in the record, because not only is there an insufficient showing of irreparable harm, there is the factual findings, which are not challenging. [00:15:59] Speaker 05: preclude, prevent the court from making that finding, addressing the pre-winter and post-winter standards. [00:16:07] Speaker 05: Under the pre-winter standard with city fed 1995 case, the DC Circuit held that a finding that irreparable harm was not shown is sufficient to deny a motion for preliminary injunction. [00:16:21] Speaker 05: The court needs to go no further. [00:16:24] Speaker 05: That's finding precedent in the Third Circuit, the Tenth Circuit, [00:16:28] Speaker 05: The 11th Circuit and CitiFed in the DC Circuit said, once the trial court determines that there's no irreparable harm, then what are we doing here? [00:16:38] Speaker 05: Why do they need to be discussed? [00:16:43] Speaker 05: But even if they did need to be discussed, they were discussed. [00:16:47] Speaker 05: And if there's one factor that's zero, then the other factors are not applicable. [00:16:53] Speaker 05: Winter only raised the rigor of the standard, requiring an independent showing [00:16:58] Speaker 05: of irreparable harm, some showing. [00:17:01] Speaker 05: The argument might be that a lower showing of irreparable harm might be sufficient if there was a higher showing of likelihood of success on the merits. [00:17:12] Speaker 05: There was no finding of a likelihood of success on the merits as to any breach of a non-compete. [00:17:17] Speaker 05: There was no finding of likelihood of success on the merits. [00:17:22] Speaker 05: And then as to irreparable harm, there was also a zero in the record here. [00:17:26] Speaker 02: It appears on the irreparable harm that the district judge applied federal law. [00:17:34] Speaker 02: If we think that Delaware law applies to or might apply to the standard for what constitutes irreparable harm, do we need to reverse and remand? [00:17:48] Speaker 05: No. [00:17:48] Speaker 02: Why not? [00:17:49] Speaker 05: Because Delaware law and DC Circuit law as to the issue of whether a so-called contractual stipulation constitutes irreparable harm are not inconsistent. [00:17:58] Speaker 05: Both bodies of law indicate that even if there was a contractual stipulation, which an argument they waived, but even if they hadn't, that's not binding on a federal court to. [00:18:10] Speaker 02: What about the other inputs to irreparable harm? [00:18:15] Speaker 05: Those are also not established. [00:18:19] Speaker 02: What law applies to them? [00:18:21] Speaker 02: If Delaware law governs the entire irreparable harm element and that wasn't recognized by the district court, do we need to [00:18:30] Speaker 05: Federal law, Your Honor, irreparable harm analysis is not part of a cause of action. [00:18:34] Speaker 05: As to likelihood of success on the merits, that's a state law issue. [00:18:38] Speaker 05: As to whether irreparable harm is shown to the degree that's required under Rule 65, that's under DC Circuit federal law precedent. [00:18:48] Speaker 02: I'm not sure that it's just positive for purposes of an eerie analysis, whether it's part of a cause of action. [00:18:55] Speaker 02: I think it's a much more nuanced [00:18:58] Speaker 05: It's absolutely nuanced, Your Honor. [00:19:00] Speaker 05: It's apples and oranges and it ships passing in the night. [00:19:03] Speaker 05: Whether it could be irreparable harm in Delaware is irrelevant because the contractual issue under Delaware law is as to the issue of likelihood of success on the merits. [00:19:19] Speaker 05: Irreparable harm is not a state law question under federal rule 65. [00:19:24] Speaker 05: They brought the case in federal court. [00:19:26] Speaker 05: They moved for an injunction under federal rule 65 for them to then say, wait a minute, Delaware law should control a federal judge sitting in a court of equity. [00:19:36] Speaker 05: There's no precedent for that at all. [00:19:38] Speaker 05: And they didn't cite a single federal case that supports that. [00:19:41] Speaker 02: So that sounds more like a forfeiture argument than a substantive law argument. [00:19:45] Speaker 05: Well, it's forfeiture. [00:19:46] Speaker 05: But even if it wasn't forfeited, it is federal law that governs the standard under rule 65. [00:19:55] Speaker 03: Thank you. [00:19:55] Speaker 03: Thank you, your honor. [00:19:59] Speaker 02: Did Mr. Romano reserve any time for a button? [00:20:04] Speaker 04: I will. [00:20:05] Speaker 04: Thank you, your honor. [00:20:06] Speaker 04: I just want to make two points here, and it goes to your [00:20:10] Speaker 04: judge pillars and judge Ginsburg's points of stipulation versus stipulation plus facts that constitutes there again like I said there are 4 facts is the stipulation which under the Marietta case says by itself is sufficient there are 3 other facts that were established the first was the loss of customer relationships through [00:20:28] Speaker 04: Mr. Clevenger's testimony in the invoices. [00:20:30] Speaker 04: The second, the trial court found, which is the theft and misuse of the proprietary information, the theft of the new website and implementation. [00:20:39] Speaker 04: The trial court found that fact. [00:20:41] Speaker 04: That is an established fact. [00:20:43] Speaker 04: And the third is the reputational damage in counsel is right. [00:20:45] Speaker 04: There was, quote, not much in the record, but there was something. [00:20:48] Speaker 04: There was an affidavit from a client of ours that said that there was some chatter around whether they were confused and whether we were [00:20:55] Speaker 04: whether we were shutting down or not. [00:20:57] Speaker 01: Was there a finding or not? [00:20:58] Speaker 04: There was not a finding. [00:20:59] Speaker 04: The trial court held that there was, quote, not much on reputational damage. [00:21:04] Speaker 04: Now, that's something. [00:21:06] Speaker 04: And it's something when there is proven customer relationships that were stolen. [00:21:11] Speaker 04: It's something when there is a found fact of theft and misuse of proprietary information. [00:21:17] Speaker 02: The district judge did enter partial preliminary information with respect to the use of the website. [00:21:22] Speaker 02: correct that was under that not the relief relating to the harm that you're just discussing. [00:21:30] Speaker 04: No that was that was pursuant to the second cause of action which is a breach of fiduciary duty what we're trying to enforce here and what we think the district court aired on was that we were count one which is the breach of the noncompete we're trying to enforce the noncompete 3 provisions of it one is that he can't even have her own a business that competes [00:21:47] Speaker 02: he's he's established that he's done that he can't solicit and steal customers and he can't steal proprietary information so that third piece is also under breach of contract the posture here is a little bit unusual in that we're some many months down the road um the you haven't didn't seek expedition on this no um and there's been [00:22:10] Speaker 02: water under the bridge is any any imminent harm likely to occur already occurred. [00:22:16] Speaker 04: There was a lot of discussion about this I have been dressed down in the past for seeking emergency relief when courts have said this is a life or death situation. [00:22:22] Speaker 04: The district court in this case and our client testified we're not on the brink of collapse. [00:22:28] Speaker 04: The second point I wanted to make was that [00:22:30] Speaker 04: It can't be that the linchpin of enforcement of a non-concrete agreement is, are you on the brink of collapse? [00:22:35] Speaker 04: Coca-Cola would never be able to enforce a non-conquered agreement. [00:22:38] Speaker 04: Also, the law upon which they rely for that is when there's only monetary damages. [00:22:43] Speaker 04: That's not what we're talking about here. [00:22:45] Speaker 04: We're talking about relationships and proprietary information. [00:22:48] Speaker 04: and in reputational damage here. [00:22:51] Speaker 04: So there's no no the answer to your question is we are not on the brink of collapse we are headed that way and we are prepared to move if we get there but it doesn't seem right justice at all if we have to wait until we're about ready to go out of business before we enforce a non-compete against our former CEO. [00:23:07] Speaker 03: Can I ask about maybe some overlap between the reputational injury and the monetary injury where the alleged misrepresentations we find [00:23:16] Speaker 03: Only to Clevengers, sorry, only to the advocacy customers that Clevenger was soliciting. [00:23:23] Speaker 03: In other words, is Clevenger alleged to have misrepresented to anyone other than the advocacy customers he was soliciting? [00:23:34] Speaker 04: There's nothing in the record to suggest that it was outside of that. [00:23:37] Speaker 04: But of course, the only contacts that we have in a short period of time are our own customers. [00:23:41] Speaker 04: And so we thought that that was the most important thing. [00:23:43] Speaker 04: I don't know in real life if that's the case. [00:23:46] Speaker 04: But there's nothing in the record that suggests that Clevenger was, other than on his website to the world at large, that he was contacting non-customers to spread rumors about that. [00:24:00] Speaker 04: Thank you very much. [00:24:01] Speaker 02: Thank you. [00:24:02] Speaker 02: Case is submitted.