ACCEPTED
05-18-00617-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
6/7/2018 11:57 AM
LISA MATZ
CLERK
Monica W. Latin
Partner
FILED IN
5th COURT OF214.855.3075
APPEALS
mlatin@ccsb.com
DALLAS, TEXAS
6/7/2018 11:57:46 AM
June 7, 2018
LISA MATZ
Clerk
Via E-Filing
Fifth Court of Appeals
George L. Allen, Sr. Courts Building
600 Commerce Street, Suite 200
Dallas, Texas 75202-4658
Re: Mark Smith, et al., v. Nerium International, LLC, Case No. 05-18-00617-CV
(Tex. App.—Dallas)
To the Honorable Court:
Appellee Nerium International, LLC, opposes Appellants’ Motion for Temporary
Emergency Relief and respectfully submits it should be summarily denied. By their motion,
Appellants purport to seek “very narrow emergency temporary relief.” But the motion presents
no emergency, and the relief it seeks is not “narrow”—instead, it goes to the heart of the
temporary injunction the trial court, in its discretion, found appropriate. The motion articulates
no legitimate basis to gut that injunction or to preempt merits briefing while this accelerated
interlocutory appeal is pending.
The temporary injunction issued by the trial court (CR.700) preserves the status quo
pending trial by enforcing a contractual non-solicitation provision prohibiting Appellants from
luring away Nerium International’s “Brand Partners”—the network of independent contractors
who comprise Nerium’s sales force. Each Defendant/Appellant agreed to that non-solicitation
provision.
Despite the label on their motion, Appellants have demonstrated no “emergency” at all—
and certainly no exigency that is not adequately accounted for by the expedited schedule that
already governs this interlocutory appeal. Their motion embodies an inappropriate attempt to
accelerate briefing even further, to bypass the normal appellate processes, and to do so even
before they have managed to have the Reporter’s Record filed with this Court. The arguments
Appellants advance would require the Court to resolve multiple issues of fact and law, issues that
are basic to and intertwined with the ultimate merits of their appeal. The absence of any true
emergency therefore magnifies the impropriety and unnecessary burden Appellants would
impose by their attempt to shortcut the established briefing schedule.
Carrington, Coleman, Sloman & Blumenthal, L.L.P.
www.ccsb.com 901 Main Street, Suite 5500 • Dallas, Texas 75202 • fax: 214.855.1333
Fifth Court of Appeals
June 7, 2018
Page 2
Further, the relief they seek is hardly “narrow.” It strikes at the core of the temporary
injunction. When the Reporter’s Record is filed, it will demonstrate that the issues they attempt
to rush to decision here were extensively argued to the trial court and therefore are central to the
merits of this appeal and the proper scope of the injunction. Their initial demand, for example—
that the injunction should be modified to let them recruit to their new employer, Jeunesse,
Nerium Brand Partners whom they personally sponsored at Nerium (Motion at 6–10)—was
featured in their brief filed just before the temporary injunction hearing and, as the Reporter’s
Record will show, was emphasized to an even greater degree in their arguments at that hearing.
See, e.g., Defendants’ Trial Brief Regarding Temporary Injunctive Relief (CR.671, 686–87, 688,
689). Their second request—that the injunction be modified to prohibit solicitation only of those
persons whom they “know” to be Nerium Brand Partners—invites gamesmanship and “willful
blindness” on their part. Again as the Reporter’s Record and full briefing on the merits will
show, Nerium demonstrated a clear and reasonable basis (grounded in evidence of the
Appellants’ own conduct) for the scope of the covenant agreed to by the parties. Appellants
argued to the trial court that they should not even be required to ask their prospective recruits
whether that person is a Nerium Brand Partner. The suggestion the contract should be rewritten
and limited to those whom Appellants “know” to be Brand Partners—without requiring that they
even ask—injects a subjective qualifier or requirement not present in the underlying contract and
is too narrow to protect Nerium’s legitimate interests.
With the temporary injunction in place, as is, Appellants can recruit anyone in the world
to their new sales group at Jeunesse—anyone except Nerium Brand Partners. They should not be
allowed to preempt the merits briefing in this accelerated appeal, unduly burdening Appellee and
the Court, by racing to put forth two of their leading arguments on the even more expedited path
of motions briefing.
As noted at the outset, Appellants’ purported “emergency” motion should be summarily
denied. The issues Appellants advance should be resolved through merits briefing and argument.
There is no legitimate reason to bypass that process, especially in light of the shortened schedule
that already governs this interlocutory appeal. But if the Court is inclined to entertain the motion,
Nerium respectfully asks that the Court establish a briefing schedule to allow Nerium the time
and opportunity to respond fully.
Sincerely,
Monica W. Latin
MWL/mtk
Carrington, Coleman, Sloman & Blumenthal, L.L.P.
www.ccsb.com 901 Main Street, Suite 5500 • Dallas, Texas 75202 • fax: 214.855.1333
Fifth Court of Appeals
June 7, 2018
Page 3
Certificate of Service
I hereby certify that a true copy of the foregoing was delivered to all counsel of record
via the Court’s Electronic E-Filing System on the 7th day of June, 2018.
Richard A. Illmer
Rick.illmer@huschblackwell.com
Elizabeth G. (Heidi) Bloch
Heidi.bloch@huschblackwell.com
Attorneys for Defendants
_______________________________
Monica Latin
Carrington, Coleman, Sloman & Blumenthal, L.L.P.
www.ccsb.com 901 Main Street, Suite 5500 • Dallas, Texas 75202 • fax: 214.855.1333