To: Ausdauer who wrote (7164 ) 9/29/1999 6:17:00 PM From: Art Bechhoefer Read Replies (1) | Respond to
This is from a layman, but with some experience in regard to injunctions. The only kind of injunction that counts is a permanent injunction. Granting a motion for a preliminary injunction merely shows that the court thinks there are triable facts in the complaint, which if proven true, would hurt the complainant. Therefore, the court says it wants the practice (presumably referring to alleged false advertising) stopped temporarily until the facts can be proven at trial. When this complaint originally surfaced a few months ago, I recall that SNDK indicated the superiority of its card specs over Lexar's was based on Lexar's own test results on earlier model cards. If SNDK proves that it used legitimate data for its claims, even if the Lexar specs have improved since that time, it's going to be difficult for Lexar to prove damage. Damage might occur if the data had been falsified (unlikely) or if SNDK had KNOWINGLY compared its cards with Lexar models that had been upgraded, without making any reference to newer, better performing cards. This is also unlikely, but if this is the crux of the complaint, then the answer is simply that each company has new cards, with new specs. That's probably the case. So the bottom line is that the whole issue is probably overblown. And even if there had been a legitimate complaint earlier, it is probably no longer applicable. Furthermore, in order to obtain damages, Lexar must be able to prove SPECIFIC damages, not just nice round numbers, but actual losses based on cancelled orders, etc. How are they going to prove that? Are they going to submit affidavits from, say, Kodak that state that as soon as Kodak heard about all the great specs from SNDK, it immediately cancelled its previous order from Lexar? That's the kind of proof Lexar would need in order to go forward with its claim.
