IN THE SUPREME COURT OF OHIO

AERO FULFILLMENT SERVICES, INC. On Appeal from the Hamilton CountyCourt of Appeals,

Appellant, . First Appellate District

V.

BRENT TARTAR,

Appellee.

Court of AppealsCase No. C-060071

Supreme Court Case No. 03-0393

MEMORANDUM IN OPPOSITION OF JURISDICTIONOF APPELLEE BRENT TARTER

Randolph H. Freking (0009158) (COUNSEL OF RECORD)Tod J. Thompson (0076446) (COUNSEL OF RECORD)Freking & Betz, LLC525 Vine Street, Sixth FloorCincinnati, Ohio 45202

(513) 721-1975Fax No. (513) 651-2570randy@,frekingandbetz.comtthompson@frekingandbetz, com

COUNSEL FOR APPELLEE,BRENT TARTAR

M. Scott McIntyre (0075298) (COUNSEL OF RECORD)Baker & Hostetler LLP312 Walnut Street, Suite 3200Cincinnati, Ohio 45202(513) 852-2622Fax No. (513) 929-0303mmcintyre@bakerlaw.com

Nicholas L. White (0079956)Baker & Hostetler LLP3200 National City Center, 1900 East 91" StreetCleveland, Ohio 44114(216) 861-7664Fax No. (216) 696-0740

IF r^ ^L^ I!-, ^

APR 4 2007

SUPREM^ OURTLOHOK® I

COUNSEL FOR APPELLANT,AERO FULFILLMENT SERVICES, INC.

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I

EXPLANATION OF WHY THIS CASE IS NOT OF PUBLIC OR GREAT GENERALINTEREST ...................................................................1

A. Appellant's Assertion that The Aero Decision Creates A "Product-BasedPrerequisite to Establish Irreparable Harm for Injunctive Relief' Is WithoutFoundation ....................................................... 1

B. The Court of Appeals' Decision Does Not Imply A "Literal Misreading ofStoneham" Rather, The Court of Appeals' Expressly Applied Stoneham.Appellant's Assertion to The Contrary Conflates the Court of Appeals' Recitationof The Abundant Evidence In Stoneham With Its Actual Holding ............ 2

STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. Tartar's Current Employer Was Not A Competitor of Aero's . . . . . . . . . . . . . . . . 4

B. Tartar Did Not Take "Trade Secrets" and "Confidential" Documents To His NewEmployment at Wilde . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

C. Aero's Assertion That Tartar Admits That He Induced or Attempted to hiduce orInfluence Aero Employees to Terminate Employment Is False . . . . . . . . . . . . . . . 6

ARGUMENT IN OPPOSITION TO APPELLANT'S PROPOSITIONS OF LAW . . . . . . . . . . . 8

Tartar's Response to Proposition of Law I:

Appellant's Assertion That the First District Has Deployed a "Product-BasedPrerequisite for Establishing Irreparable Harm for Injunctive Relief' Is False. TheAero decision Implies Nothing of the Sort . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Tartar's Response to Pronosition of Law lI:

Appellant's Assertion That the Aero Holding Is Based on a Literal Misreading ofStoneham Blatantly Conflates the Aero Court's Reiteration of Stoneham's Factswith the Aero Court's Actual Holding. The Aero Court's Reiteration ofStoneham's Facts Is Benign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Tartar's Response to Pronosition of Law IlI:

Appellant's Bare Assertion That the Aero Court Failed to "Analyze and WeighSeparately Each Category of Aero's Confidential Materials" Is Without Merit................................................................10

Tartar's Response to Proposition of Law IV:

the Aero Court Did Not "Distort" the Terms of Tartar's Employment Agreement.There Has Never Been a Dispute in this Matter as to the Language of Tartar'sAgreement. The Aero Court Was Fully Briefed, Without Controversy, as to ThatLanguage ........................................................ 12

Tartar's Response to Proposition of Law V:

the Aero Court's Decision Does Not Evoke the Doctrine of Laches . . . . . . . . . . . . . . . . 13

CONCLUSION ...........:..........................:.......................14

PROOF OF SERVICE ........................................................ 14

AUTHORITIES

Ohio State Constitution, § 6, Article IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CASES

George Basch Co. v. Blue Coral, Inc. (C.A.2, 1992) 968 F.2d 1532, 1542) . . . . . . . . . . . . . . . . 13

Procter & Gamble v. Stoneham (2000), 140 Ohio App.3d 272, 747 N.E.2d 278 .... ....... 1, 8

Williamson v,Rubich, ( 1960),171 OhioSt. 253; 168 N.E.2d 876 . . . . . . . . . . . . . . . . . . . . . . . . 1

STATUTES

Revised Code§1333.61 ......................... .............................. 10

11

EXPLANATION OF WHY THIS CASE IS NOTOF PUBLIC OR GREAT GENERAL INTEREST

Ohio's Constitution, § 6, Article IV provides that judgments of the state courts of appeals

shall serve as the ultimate and final adjudication of all cases except those involving constitutional

questions, conflict cases, felony cases, cases in which the court of appeals has original

jurisdiction, and cases of public or great general interest. Except in those special circumstances,

in Ohio, a party to litigation has a right to but one appellate review of his cause. Williamson v.

Rubich, (1960), 171 Ohio St. 253; 168 N.E.2d 876. "The sole issue for detemiination at the

hearing upon such motion is whether the cause presents a question or questions of public or great

general interest as distinguished from questions of interest primarily to the parties." Id.

A. Appellant's Assertion that The Aero Decision Creates A "Product-BasedPrerequisite to Establish Irreparable Harm for Injunctive RelieP'' IsWithout Foundation.2

Appellant's assertion that this Court has jurisdiction over this matter because it involves a

matter of public or great general interest is based almost entirely upon its misrepresentation of

the First District Court of Appeals' opinion. Appellant falsely asserts that the Court of Appeals

has created a new "product-based prerequisite" to obtain injunctive relief under Ohio's Trade

Secrets Act and Procter & Gamble v. Stoneham (2000), 140 Ohio App,3d 272, 747 N.E.2d 278.

However, the Aero opinion neither entails nor implies any such prerequisite. Rather, the Court of

Appeals held, quite uncontroversially, that the trial court did not abuse its discretion in denying

Aero injunctive relief because Aero failed to demonstrate the threat of irreparable harm. The

lIn addition to the fact that the Court of Appeals in no way deployed a "product-based prerequisite,"Appellant fails to provide any support for its central assertion that "product" entails manufacturing. It should gowithout saying that most any industry is toward the end of a product, whether that product is an a good, service oridea. In this respect Appellant's apparent anxiety regarding Ohio businesses reduces to its strained and dated use oftetminology.

2 Ohio Chamber of Commerce's Amicus Curiae Memorandum rests entirely on this false presumption as

well.

Court of Appeals found Appellant's arguments and assertions on appeal "circumlocutious,"

"specious," and "meritless." (App. Dec. at 1119, 20, 38.) The Court of Appeals also held

"Stoneham is factually distinguishable from this case ... that the record fails to show irreparable

harm because Aero (1) was not reasonably prompt in its motion for injunctive relief, (2) failed to

treat the Brock Study as confidential, and (3) failed to show a threat of harm sufficient to justify

equitable relief- in other words, Aero had an adequate remedy at law." (App. Dec. at 24)

But, at no point in its decision did the Court of Appeals utter an additional "product-

based prerequisite" to obtaining injunctive relief. Rather, the Court of Appeals reiterated the

ample evidence of the threat of irreparable harm in Stoneham in order to contrast the utter lack of

evidence of any threat of harm in Appellant's case. To provoke alann, Appellant conflates the

Court of Appeals' recitation of Stoneham's facts with the holding in Aero. But, any "product-

based prerequisite" to injunctive relief is imputable only to Appellant's mentation. Neither

Appellant's misrepresentation of the Court of Appeals' decision nor Appellant's failure to

demonstrate a threat harm under Stoneham constitute matters of public or great general interest.

B. The Court of Appeals' Decision Does Not Imply A "Literal Misreading ofStoneham." Rather, The Court of Appeals Expressly Applied Stoneham.Appellant's Assertion to The Contrary Conflates the Court of Appeals'Recitation of The Abundant Evidence In Stoneham With Its Actual Holdin

Appellant asserts that the Court of Appeals misread Stoneham's holding, and proceeds to

quote the Aero Court's recitation of the facts in Stoneham to support its assertion: (Mem. Supp.

at 4.) Because the Court of Appeals emphasized the poverty of evidence in Appellant's case in

contrast with the abundance of evidence in the Stoneham case, Appellant concludes that the

Court of Appeal's somehow misread Stoneham. But this is to ignore the actual Aero holding.

The employee in Stoneham possessed knowledge of his former employer's trade secrets, began

working in a position in direct competition with his former employer and competed in the same

2

product line, as a simple matter of fact. (App. Dec. at ¶ 25.) In contrast, the Aero Court found:

"In this case, Aero failed to identify any specific trade secrets or confidential information that

Tartar had misappropriated - or could have even used to Aero's detriment. In fact, Aero did

nothing more than make unsubstantiated allegations that it would suffer incalculable or

irreparable harm absent injunctive relief" (Id.)

The problem with Appellant's case is not that the trial court or the Court of Appeals

misread, misapplied or amended the holding of Stoneham. Rather, throughout the course of this

litigation Appellant has apparently presumed that conclusory assertions of confidential

information, trade secrets and direct competition constitute sufficient evidence of a threat of

irreparable hann. As the Court of Appeals expressly held, "Aero did not establish that it had lost

any customers, or that it would have lost any customers absent an injunction." (App. Dec. at ¶

39.) Appellant insists that the Court of Appeals' decision implies that one must prove that the a

fonner employee "used" the trade secret. (Mem. Supp. at 5.) (Appellant's emphasis.) But, the

Court of Appeals was clear that Appellant failed to prove that Tartar either actually used,

intended to use, or would have used any of the "confidential trade secrets" Appellant alleged he

possessed. To use Appellant's terminology, the only thing "muddled and confusing" about the

Aero decision is Appellant's present misrepresentation of the decision to this Court. (Memo

Supp. at 6.) And Appellant's misrepresentation does not constitute a matter of public or great

general interest.

3

STATEMENT OF THE CASE AND FACTS

The Procedural Posture of this matter is not in dispute.

A. Tartar's Current Employer Was Not a Competitor of Aero's.

Aero misstates the record by asserting that the Court of Appeals concluded that Aero and

Wilde are direct competitors. (Mem. Supp. at 7.) The Court only noted that Aero and Wilde

compete in the same industry - not against each other. (Opinion at ¶ 30.)

Pursuant the employment agreement Aero seeks to enforce, a competitor constitutes "any

mailing or fulfillment operation located within one hundred (100) miles of Ciricinnati Ohio,

within one hundred miles of any mailing or fulfillment company that Employer has an interest in,

or any successor to any such company."3 At all relevant times Wilde had any two operations, in

Brockton and Holliston Massachusetts."

Wilde's Executive V.P. testified that Wilde has never been a competitor of Aero's, no

customers of Wilde were ever Acro customers, and Wilde's services are distinguishable from

Aero's because Aero provides "pick, pack and ship" fulfillment services while Wilde's

predominant business is at the "front end."5

During Tartar's employment with Aero, Aero itself did not deem Wilde a competitor.b

Aero's President and COO admits that when Tartar left Aero for employment with Wilde he

"didn't think [Tartar] would be a threat if he was working out of [Wilde's] Boston operation."' It

3(Ex. A to Complaint at § 5(c); T.p. Vol. 2 at 40.)

4(T.p. Vol. 1 at 65-68, 79, 89.)

5(T.p. Vol. 1 at 80-82, 102.)

6(T.p. Vol. 1 at 65-68.)

7(T.p. Vo12 at 40.)

4

is undisputed that both Aero and Tartar felt good about the opportunity Tartar was given at

Wilde.$

B. Tartar Did Not Take "Trade Secrets" and "Confidential" DocumentsTo His New Employment at Wilde.

Aero's assertion that Tartar "admits" to taking "confidential and trade secret infonnation

with him to Wilde after leaving Aero" grossly manipulates the record. (Mem. Supp. at 14-15.)

Tartar kept some documents but prior to leaving Aero, Tartar gave Aero "full access to my laptop

computer that I had which had a variety of stored information over probably the last three years

of my employment, as well as all file drawers, boxes of information that I had on archive,

probably from my full 16 years of employment.s9

Aero offers little to support its assertion that any Aero documents and/or information

constitute "trade secrets" and/or are "confidential." Aero focuses its attention on old client lists,

its AeroNavigator computer program and the Brock Study. But the evidence indicates that Aero's

customer list is not confidential: a fulfillment company's client list is common knowledge, and

Aero has identified its clients on its own web page.10

While Aero's Director of Operations testified that the "source code" of AeroNavigator

constitutes a confidential trade secret." Aero can offer no evidence that Tartar has any

knowledge of the "source code."'Z

8(T.p. Vo1.2 at 40.)

9(T.p. Vol. 1 at 39.)

10(T.p. Vol. 1 at 78; T.p. Vol. 2 at 179-180.)

"(T.p. Vol. 2 at 89.)

12 (T.p. Vo1.2at41.)

5

Aero's President admitted that the Brock Study utilized a process identical to that

employed by other companies in the United States, that Aero applied no limitations to the

individual who conducted the study with respect to conducting identical studies for Aero's

competitors, and that Mr. Brock would not be prohibited from conducting the very same market

study specifically for Wilde.13 Aero's President also admits to no knowledge as to whether

access to the Brock Study was limited to Aero employees who were subject to confidentiality

agreements.14

Aero's assertion that Tartar has caused Aero harm that is "impossible to calculate" is

false. Aero's Director of Onerations, Aero's Director of Account Managemant, and Aero's

Senior Account Manager are all unaware of any harm to Aero caused by Tartar since his

employment with Aero terminated in January of 2005.15 Aero's President admits that any dip in

Aero's revenue was caused by the loss of Old Mutual and AstraZeneca (the only two clients Aero

has lost since Tartar's departure), that Tartar had nothing to do with the loss of those accounts,

and that Aero has been much healthier subsequent to Tartar's departure in terms of cash flow."

C. Aero's Assertion That Tartar Admits That He Induced or Attempted toInduce or Influence Aero Employees to Terminate Employment Is False.

The statement Aero alleges to have encouraged its Director of Account Services'

temporary resignation ("Aero is crazy. We should all just leave.") was also made by others at

Aero, and the employee did not find Tartar's making such a comment improper."

13 (T.p. Vol. 2 at 216-218.)

14(T.p. Vol. 2 at 228.)

15(T.p. Vol. 2 at 94-95, 99, 113, 125.)

16 (T.p. Vol. 2 at 192-210.)

17(T.p. Vol. 2 at 109-110.)

6

Aero asserted that this "disparaging" comment also encouraged Sales Executive Don

Eger and Vice President Jennifer Kendall to leave Aero, but Aero does not know why Jennifer

Kendall left Aero, and Aero has offered no evidence of the cause of Mr. Eger's departure.tg Aero

alleges that Tartar made this "disparaging" comment in Fall of 2004, but Kendall did not end her

employment with Aero until Spring of 2006.19 Aero has no evidence that Tartar recruited any

Aero employee to work for Wilde, and no former Aero employee other than Tartar works for

Wilde.20

Aero's assertion that Tartar encouraged Aero employee Chuck Smith to leave Aero for a

competitor is false. Smith testified that as friends Tartar would "compliment" Smith stating that

his skills would be marketable at "any company."21 Smith can identify no harm to Aero that

would have resulted from those compliments and Tartar has never solicited Smith's

employment.ZZ

Aero's assertion that Tartar encouraged Senior Account Manager Kim Meyers to resign

her employment is false. Meyers testified that she recalls no specific negative or derogatory

comment made about Aero; and Tartar allegedly told Meyers that her resignation was "the right

thing to do" after Ms. Meyers had made up her mind to resign from Aero.Z' Meyers admits that

"(T.p. Vol. 2 at 109-112.)

19(T.p. Vol. 2 at 105-106.)

20(T.p. Vol. 2 at 93-94, 111, 112, 116.)

Zl(T.p. Vol. 2 at 93-95.)

2Z(T.p. Vol. 2 at 93-95.)

23(T.p. Vol. 2 at 116, 122.)

7

whatever Tartar said did not result in her resignation.24 Aero's witnesses to these conversations

testified that they knew of no hann to Aero that resulted.z5

IV. ARGUMENT IN OPPOSITION TO APPELLANT'S PROPOSITIONS OF LAW

Tartar's Response to Proposition of Law I:

Appellant's Assertion That the First District Has Deployed a "Product-BasedPrerequisite for Establishing Irreparable Harm for Injunctive Relief' Is False. TheAero decision Implies Nothing of the Sort.

Appellant attempts to demonstrate a public or great general interest by misstating the

Aero Court's holding. (Mem. Supp. At 10.) While the Aero Court emphasized the lack of

evidence of the threat of irreparable harm by emphasizing the abundance of evidence of

irreparable harm in Stoneham, this factual contrast does not constitute the Court's holding. (App.

Dec. at ¶¶ 4-5.) Nowhere in its decision does the Aero Court imply that Appellant failed to prove

a threat of irreparable harm because it is not in the business of manufacturing products. Rather,

the Court of Appeals held that Aero failed to demonstrate by any mean that it faced a threat of

irreparable harm. To be clear, the Aero decision's holding is expressed in the following

passages:

In this employment-agreement case, we hold that the trial court did not err inrefusing to grant an injunction. Harm was speculative and a legal remedy wasavailable. And though we approve and follow Proctor & Gamble v. Stoneham, itdoes not apply to the facts here.

(App. Dec. at ¶ 1.)

We hold that Stoneham is factually distinguishable from this case. And we furtherhold that the record fails to show irreparable harm because Aero (1) was notreasonably prompt in its motion for injunctive relief, (2) failed to treat the BrockStudy as confidential, and (3) failed to show a threat of harm sufficient to justifyequitable relief- in other words, Aero had an adequate remedy at law.

24(T.p. Vol. 2 at 122.)

ZS(T.p. Vol. 2 at 95, 110, 113, 122-125.)

8

(App. Dec. at ¶ 24.)

We hold that, at the injunction hearing, Aero did not establish that it had lost anycustomers, or that it woutd have lost any customers absent an injunction.Likewise, Aero did not establish that any employees had left Aero because ofTartar's communications, or that any employee would have left Aero absentinjunctive relie£ And it did not establish that the inevitable disclosure doctrine

applied.

(App. Dec. At ¶ 2.)

Appellant's asserted "product-based prerequisite" appears nowhere in any of the Aero Court's

express holdings.

Nor is there any indication in the decision that Appellant's "service-based" enterprise

precluded a finding in its favor. Rather, the Aero Court applied the unremarkable premise that

even under Stoneham "[t]here must be evidence to support that allegation [of the threat of

harm]," and that "[m]erely concluding that irreparable harm will result is not sufficient - the law

does not recognize an injunction by accusation." (App. Dec. at ¶¶ 26-27.)

Appellant's present assertion that the Aero Court deployed a "product-based

prerequisite," is all the more puzzling, because the Aero Court fully analyzed Appellant's case

under Stoneham. (App. Dec. at ¶¶ 30-38.) As a result, the Court of Appeals noted that "Tartar

used general marketing data...[that] Aero's competitors could have easily and properly

ascertained... through their own market research," and that "Aero failed to explain how this

information would bave given Tartar and Wilde any competitive advantage whatsoever." (App.

Dec. at ¶¶ 30-31.)

Furthermore, Appellant's assertion that the Court of Appeals' decision runs afoul of the

"broad definition" of "trade secret" ignores the fact that the Aero Court reached no conclusion as

to whether the information Appellant alleges to be in Tartar's possession constitutes trade

secrets: "on the testimony presented at the injunction hearing, we refuse to conclude that the

9

divulged information was not a trade secret. The question whether a particular knowledge or

process is a trade secret is one of fact to be determined by the trier of fact on the greater weight of

the evidence." (App. Dec. at ¶ 40.)

Tartar's Response to Proposition of Law II:

Appellant's Assertion That the Aero Holding Is Based on a Literal Misreading of

Stoneham Blatantly Conflates the Aero Court's Reiteration of Stoneham's Facts

with the Aero Court's Actual Holding. The Aero Court's Reiteration of Stoneham's

Facts Is Benign.

Appellant merely incorporates its assertion that the Aero Court "misread" Stoneham.

(Mem. Supp. At 11.) However, this assertion is specious. The Court of Appeals reiterated the

facts in Stoneham. Such reiteration, it should go without saying, is necessary to a comparison of

the two cases. Appellant does not go so far as to assert that the Aero Court misstated Stoneham's

facts. And, as noted already, Appellant's asserted "product-based prerequisite" appears nowhere

in the Court of Appeals' holdings.

Tartar's Response to Proposition of Law III:

Appellant's Bare Assertion That the Aero Court Failed to "Analyze and WeighSeparately Each Category of Aero's Confidential Materials" Is Without Merit.

Appellant presently asserts that the Court of Appeals erred by concluding that "Aero

failed to identify any specific trade secrets or confidential information that Tartar had

misappropriated." (Mem. Supp. at 11.) And Appellant's assertions to this end are only further

indicative of the problem with its case. Throughout the course of this litigation, Appellant has

never specifically identified, let alone demonstrated that any of the information it presently refers

to as "all this information" constitutes confidential materials or trade secrets under Ohio law.

(Memo. Supp. at 11.)

10

Pursuant to R.C. § 1333.61, a "trade secret" must "derive independent economic value,

actual or potential, from not being generally known to, and not being readily ascertainable by

proper means by, other persons who can obtain economic value from its disclosure or use." To

prevail on its motion for injunctive relief, Appellant would also have demonstrated facts

establishing that it employed "efforts that are reasonable under the circumstances to maintain [the

information's] secrecy." Id. During the course of this litigation Appellant has asserted neither.

And Appellant asserts neither presently. (Mem. Supp. at 11-12.)

Evidence of a trade secret is shown by facts demonstrating "(1) the extent to which the

information is known outside the business; (2) the extent to which it is known to those inside the

business, i.e., by the employees; (3) the precautions taken by the holder of the trade secret to

guard the secrecy of the information; (4) the savings effected and the value to the holder in

having the information withheld from competitors; (5) the amount of effort or money expended

in obtaining and developing the information; and (6) the amount of time and expense it would

take for others to acquire and duplicate the information:i26

Yet, Appellant still can only gesture toward "documents" that it concludes without

demonstration to constitute "trade secrets." Appellant fails to demonstrate that any particular

document actually constitutes a trade secret - and fails to even identify any particular document

that the Court of Appeals should have considered but did not. Appellant's Proposition of Law III

is without merit.27

z6Stoneham (2000), 140 Ohio App.3d 272, 747 N.E.2d 278.

27 This is further demonstrated by Appellant's present reliance on documents recently discoveredby Tartar, as noted in the statement of facts. Of course, those documents are irrelevant to the presentmatter. Nonetheless; with respect to those documents Appellant simply asserts its conclusion that theyconstitute trade secrets and confidential information, without offering the slightest demonstration to thatend. (Mem. Supp. at 8-9, 15.)

11

Tartar's Response to Proposition of Law IV:

the Aero Court Did Not "Distort" the Terms of Tartar's Employment Agreement.

There Has Never Been a Dispute in this Matter as to the Language of Tartar's

Agreement. The Aero Court Was Fully Briefed, Without Controversy, as to That

Language.

Appellant's present assertion that the Court of Appeals "distorted" the terms of Tartar's

employment agreement apparently derives solely because the Court paraphrased the provisions of

the contract as opposed to quoting them outright. (App. Dec. at ¶¶ 13-18.) Furthermore,

Appellant's assertion that Tartar admitted "to making plainly violative conunents to Aero

employees" both ignores the record and the fact that the Court of Appeals expressly considered

the very statements Appellant presently complains o£ (App. Dec. At ¶ 37.)

But, at the hearing, Appellant's own employee admitted that one of the statements was

also made by others at Aero, and she found nothing improper about Tartar's making such a

comment 28 Other allegedly "disparaging" comments, again according to Appellant's own

testimony, were not perceived as such, and had no effect on Appellant's employee retention29

Appellant's own witnesses testified that they knew of no harm to Aero that resulted from these

alleged "disparaging" comments).30

At no point during the course of this litigation has Tartar stipulated to a breach of any of

the provisions of the employment agreement, and Appellant's present assertion to the contrary is

beyond the pale. (Memo. Supp. at 13-14.) Rather, as the Appellate Court noted: "[iln fact,

Tartar consistently maintained his resolve to abide by the agreement." (App. Dec. at ¶ 14.)

Appellant wishes to corrupt Tartar's consistent, express willingness to abide by the agreement to

Za (T.p. Vol. 2 at 109-110.)

29 (T.p. Vol. 2 at 93-95.)

3o (T.p. Vol. 2 at 95, 110, 113, 122-125.)

12

constitute "stipulations" of irreparable harm and breach. (Mem. Supp. at 13-14.) Such

arguments have no place before a Court sitting in equity.

Tartar's Response to Proposition of Law V:

the Aero Court's Decision Does Not Evoke the Doctrine of Laches.

The Court of Appeals did not reach its decision based on "Tartar's admitted withholding

of key evidence" because documents discovered by Tartar long after the hearing and produced to

Appellant out of an abundance of caution were not even subject to review before the trial court.

(Mem. Supp. at 14-15.) But again, Appellant makes assertions without any record support about

documents that are not even the subject of this appeal. (Mem. Supp. At 15.) Appellant's weak

process of induction is revealed by its undemonstrated assertions that these documents constitute

confidential trade-secret information - and are further indicative of the problem with its case.

Moreover, Appellant's present assertion that "the court of appeals should have considered

Tartar's admitted withholding of Aero property for 14 months - despite promising it had been

returned-as indicative of Tartar's utter lack of candor," is without precedent. (Mem. Supp. at

15.) The Court of Appeals obviously couldn't have considered the documents, by Appellant's

own account based on the timing of their production. (Mem. Supp. at 15.) Tartar produced these

documents only after he realized they'd been stored away, precisely to maintain candor.

Nonetheless, the matter has not been properly raised before this Court for review.

Finally, Appellant's assertion that the Court of Appeals' conclusion in anyway

"derogates" the doctrine of laches misses the point entirely. The Court of Appeals found as to

Appellant's burden of demonstrating a threat of irreparable harm:

Aero's assertion that it has been or will be incalculably or irreparably harmedabsent an injunction is substantially weakened by the fact that it waited aconsiderable length of time before moving for an injunction. Where injunctiverelief is requested, actions speak louder than words, and motions speak loudest of

13

all. Aero moved for injunctive relief in October 2005 - about three months afterthe action was filed, almost ten months after Tartar had left, and two and a halfmonths before the expiration of the noncompete and nonsolicitation of employees'covenants. The lack of urgency in filing the injunctive-relief motion militatedagainst a finding of irreparable harm. Though the facts of each case will differ,we are not persuaded that the "confidential information and trade secrets"involved in this. case warranted the extraordinary relief that Aero sought at theinjunctive-relief hearing.

(App. Dec. at ¶ 33, citing George Basch Co. v. Blue Coral, Inc. (C.A.2, 1992) 968 F.2d 1532,

1542).

V. CONCLUSION

For the above reasons, this case does not involve a matter of public and great general

concem. Appellee Brent Tartar respectfully requests that this Court decline jurisdiction over this

matter.

on(0076446)Ran^(fIp Freki^(,AQ99i'S8^Trial At ys for PlaintiffFREKING & BETZ, LLC525 Vine Street, Sixth FloorCincinnati, OH 45202(513) 721-1975(513) 651-2570 FAXtthompsona frekingandbetzrandy@frekingandbetz. com

VI. PROOF OF SERVICE

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was served on M. Scott Mclntyre, Esq., Baker

& Hostetler LLP, 312 Walnut Street, Suite 3200, Cincinnat, OH 45202, via courier delivery, this

d day of Apri12007.