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And Preliminary Injunction and Injunctive Relief

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

JONATHAN VILLAREAL, 

individually and derivatively on behalf 

of ZROBLACK, LLC. 

Plaintiffs, 

v. 

JOHN SAENZ, MIGUEL

VILLARREAL, JR., and GUNN, 

LEE, & CAVE, P.C.

Defendants

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CIVIL ACTION NO.___________

__________________________________________________________________________

PLAINTIFF’S APPLICATION FOR SEIZURE, TEMPORARY RESTRAINING 

ORDER, PRELIMINARY INJUNCTION, AND PERMANENT INJUNCTIVE RELIEF

__________________________________________________________________________

Plaintiff, JONATHAN VILLAREAL, individually and derivatively on behalf of

ZROBLACK, LLC, (collectively the “Plaintiffs”), by and through its undersigned counsel, files

this, their verified application for seizure of a laptop computer owned by Plaintiff ZroBlack LLC 

which contains ZroBlack’s trade secrets, and for a temporary restraining order, preliminary 

injunction, and further injunctive relief ordering Defendant John Saenz assign ZroBlack’s

domain name back to ZroBlack, along with ZroBlack’s email server, and website and refrain 

from using any of ZroBlack’s trade secrets. In the event ZroBlack’s request for seizure of the 

laptop is denied, Plaintiff alternatively seeks a temporary restraining order, preliminary 

injunction, and permanent injunction ordered the return of the laptop computer and the trade 

secrets thereon.

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I. TABLE OF CONTENTS

I. TABLE OF CONTENTS .........................................................................................................2

II. TABLE OF AUTHORITIES.....................................................................................................3

III. NATURE OF THE ACTION....................................................................................................7

IV. FACTUAL BACKGROUND....................................................................................................7

A. Formation of ZroBlack ...............................................................................................7

B. ZroBlack Sings a Contract..........................................................................................9

C. Saenz Attempts to Shop Secret Code to Others........................................................11

D. Saenz Misappropriates $740,000 while Missing Key Meetings

with Customer and Providing No Services to ZroBlack...........................................11

E. Gunn, Lee, & Cave, P.C. and Michael Villareal’s Further

Involvement ..............................................................................................................12

F. Final Attempts to get Saenz to Return Money and Property

owed to ZroBlack......................................................................................................18

V. APPLICATION FOR CIVIL SEIZURE ....................................................................................19

A. An Order Pursuant to Fed. R. Civ. P. 65 Is Inadequate ............................................20

B. Plaintiff Has and Will Continue to Suffer Immediate Irreparable Injury .................21

C. Balance of Hardships Favors Seizure .......................................................................22

D. Plaintiff Owns Trade Secrets and Saenz Misappropriated Them .............................22

i. ZroBlack Possessed Trade Secrets................................................................23

ii. Defendant Saenz Misappropriated the Trade Secrets...................................24

E. Saenz Has Control of the Laptop ..............................................................................25

F. The Matter to Be Seized and its Location.................................................................25

G. Saenz May Destroy, Remove, Hide, or Make the Matter Inaccessible

to the Court ...............................................................................................................25

H. Applicant Has Not Publicized the Requested Seizure ..............................................26

VI. APPLICATION FOR TEMPORARY RESTRAINING ORDER, TEMPORARY INJUNCTION, AND 

PERMANENT INJUNCTION.................................................................................................26

A. Rule 65(b)(1) Certification .......................................................................................27

B. Grounds for Injunctive Relief...................................................................................28

C. Likelihood of Success on the Merits – Standard ......................................................29

D. Likelihood of Success on the Merits—Trade Secret Misappropriation....................29

a. ZroBlack Possessed Trade Secrets ...............................................................29

b. Defendant Saenz Misappropriated the Trade Secrets and

Threatens to Misappropriate Trade Secrets..................................................32

E. Likelihood of Success on the Merits—Computer Fraud and Abuse Act..................34

a. Saenz Accessed a Computer in Violation of the CFAA...............................35

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b. Loss Aggregating More than $5,000 ............................................................36

F. Likelihood of Success on the Merits—Anti-Cybersquatting Consumer

Protection Act ...........................................................................................................36

a. The ZroBlack Name is Distinctive, Entitling It to Protection ......................36

b. The Doman Name is Identical or Confusingly Similar to ZroBlack’s

Mark..............................................................................................................38

c. Saenz is Using the Domain Name in Bad a Faith Attempt to Profit

Therefrom .....................................................................................................38

G. Irreparable Harm.......................................................................................................40

H. No Adequate Remedy at Law...................................................................................42

I. Balance of Hardships Favors an Injunction..............................................................42

J. Public Interest ...........................................................................................................43

K. Bond..........................................................................................................................43

L. Relief Requested .......................................................................................................44

VII. PRAYER ...........................................................................................................................44

EXHIBITS ...........................................................................................................ATTACHED

II. TABLE OF AUTHORITIES

U.S. Supreme Court Cases

Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768 (1992)........................................36, 37

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) ..............................................28

U.S. Circuit Courts of Appeals Cases

Aspen Technology, Inc. v. M3 Technology, Inc.,

569 Fed. Appx. 259, 273 (5th Cir. 2014).....................................................................................43

Daniel Health Scis., LLC v. Vascular Scis., LLC,

710 F.3d 579, 585 (5th Cir. 2013) ........................................................................................ 40-41

E. & H. Gallo Winery v. Spider Webs Ltd.,

286 F.3d 270, 275-276 (5th Cir. 2002)........................................................................................38

FMC Corp. v. Varco Intern., Inc.,

677 F.2d 500, 503-504 (5th Cir. 1982).......................................................................................33

Heil Trailer Intern. Co. v. Kula,

542 Fed. Appx. 329, 336 (5th Cir. 2013).....................................................................................41

Janvey v. Alguire,

647 F.3d 585, 595-96 (5th Cir. 2011).........................................................................................29

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Panavision Intern., L.P. v. Toeppen,

141 F.3d 1316, 1325 (9th CIR. 1998)..........................................................................................38

Shields v. Zuccarini,

2001 WL 671607, *3 (3d Cir.2000) ...........................................................................................37

Southern Co. v. Dauben Inc.,

324 Fed. Appx. 309, 314 (5th Cir. 2009)....................................................................................36

Virtual Works, Inc. v. Volkswagen of America, Inc.,

238 F.3d 264, 268 (4th Cir.2001) ...............................................................................................40

U.S. District Court Cases

AHS Staffing, LLC v. Quest Staffing Group, Inc.,

335 F. Supp. 3d 856, 874 (E.D. Tex. 2018)................................................................................43

Am. Auto. Ass’n (Inc.) v. AAA Ins. Agency, Inc.,

618 F. Supp. 787, 792 (W.D. Tex. 1985) ...................................................................................37

Axis Steel Detailing, Inc. v. Prilex Detailing LLC,

No. 2:17–cv–00428–JNP, 2017 WL 8947964, at *2 (D. Utah, June 29, 2017) .........................21

AVX Corporation v. Kim,

No. 6:17-00624-MGL, 2017 WL 11316598, at *2 (D. S.C., March 13, 2017)..........................21

Blue Star Land Services v. Coleman,

No. CIV-17-931-C, 2017 WL 11309528, at *1 (W.D. Okla., August 31, 2017) .......................20

Courtroom Sci., Inc. v. Andrews,

No. 3:09-CV-251-o, 2009 WL 1313274, AT *3 (N.D.Tex. May 11, 2009) ..............................29

eBay Inc. v. Digital Point Solutions, Inc.,

608 F. Supp. 2d 1156, 1163-64 (N.D. Cal. 2009).......................................................................35

Emerald City Mgmt., LLC v. Khan,

No. 4:14-cv-358, 2016 WL 98751 *13 (E.D. Tex. Jan. 8, 2016) .........................................38, 39

Frisco Medical Center, L.L.P. d/b/a Baylor Medical Center at Frisco v. Bledsoe, 147 F. 

Supp. 3d 646, 659 (E.D. Tex. 2015).....................................................................................34, 35

Lamparello v. Falwell,

420 F.3d 309, 319 (4th Cir. 2005) ........................................................................................39, 40

Sirius Computer Solutions, Inc. v. Sparks,

138 F. Supp. 3d 821, 836 (W.D. Tex. 2015) ..............................................................................28

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Sporty's Farm L.L.C. v. Sportman's Market, Inc., 202 F.3d 489, 497 n. 10 (2d Cir.2000)........37

Texas Intern. Property Associates v. Hoerbiger Holding AG,

642 F. Supp. 2d 582, 589-590 (N.D. Tex. 2009)........................................................................40

TMX Funding, Inc. v. Impero Technologies, Inc.,

No. C10-00202 JF (PVT), 2010 WL 2509979 at * 4 (N.D. Cal. Jun. 17, 2010)...... 23-24, 24, 32

State Appellate Court Cases

American Derringer Corp. v. Bond,

924 S.W.2d 773, 777 (Tex. App.—Waco 1996, no pet.) ...........................................................31

Crutcher-Rolfs-Cummings, Inc. v. Ballard,

540 S.W.2d 380, 387 (Tex. Civ. App.—Corpus Christi 1976, writ ref’d n.r.e.)........................31

Miller Paper Co. v. Roberts Paper Co.,

901 S.W.2d 593, 600 (Tex.App.—Waco 1995, no writ)............................................................31

Rhodia, Inc. v. Harris County,

470 S.W.2d 415, 419 (Tex. Civ. App.—Houston [1st Dist.], no writ).......................................29

RP&R, Inc. v. Territo,

32 S.W.3d 396, 400-01 (Tex. App.—Houston [14th Dist.] 2000, no pet.) ................................29

Rugen v. Interactive Business Systems, Inc.,

864 S.W.2d 548, 552 (Tex. App.—Dallas 1993, no pet.)..................................................... 33-34

T-N-T- Motorsports, Inc. v. Hennessey Motorsports, Inc.,

965 S.W.2d 18, 24 (Tex. App.—Houston[1st Dist.] 1998, no pet.) ...........................................33

Weed Eater, Inc. v. Dowling,

562 S.W.2d 898, 902 (Tex. Civ. App.—Houston 1978, writ ref’d n.r.e.)..................................34

Zelios v. City of Dallas,

568 S.W.2d 173, 175 (Tex. Civ. App.—Dallas 1978, writ ref’d n.r.e.) ...............................29, 42

Federal Statutes and Rules

FED. R. CIV. P. 65..................................................................................................................20, 26

Fed. R. Civ. P. 65(b)(1) ........................................................................................................27, 28

15 U.S.C. 1125(a) .......................................................................................................................36

15 U.S.C. § 1125(c)(1)................................................................................................................37

15 U.S.C. § 1125(d)....................................................................................................................28

15 U.S.C. § 1125(d)(1)(A)..........................................................................................................36

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15 U.S.C. § 1125(d)(1)(B)(i) ................................................................................................39, 40

15 U.S.C. § 1125(d)(1)(C)..........................................................................................................36

18 U.S.C. § 1030.........................................................................................................................34

18 U.S.C. § 1030(a)(2)(c).....................................................................................................34, 35

18 U.S.C. § 1030(a)(4)..........................................................................................................34, 35

18 U.S.C. § 1030(a)(5)(B) ....................................................................................................35, 36

18 U.S.C. § 1030(a)(5)(C) ....................................................................................................35, 36

18 U.S.C. § 1030(c)(4)(A)(1)(I) .................................................................................................34

18 U.S.C. § 1030(c)(4)(A)(1)(I)-(V) ..........................................................................................34

18 U.S.C. § 1030(g)..............................................................................................................28, 34

18 U.S.C. § 1836(b)....................................................................................................................21

18 U.S.C. § 1836(b)(2) .........................................................................................................19, 21

18 U.S.C. § 1836(b)(2)(A)(i)......................................................................................................19

18 U.S.C. § 1836(b)(2)(A)(ii).....................................................................................................20

18 U.S.C. § 1836(b)(2)(A)(ii)(III) ..............................................................................................22

18 U.S.C. § 1836(b)(2)(A)(ii)(VII).............................................................................................25

18 U.S.C. § 1836(b)(2)(A)(ii)(VIII) ...........................................................................................26

18 U.S.C. § 1836(b)(2)(A)(IV)...................................................................................................23

18 U.S.C. § 1836(b)(3) ...............................................................................................................28

18 U.S.C. § 1836(b)(3)(A)(i)................................................................................................28, 33

18 U.S.C. § 1836(b)(3)(A)(ii).....................................................................................................28

18 U.S.C §1839(3)................................................................................................................23, 30

18 U.S.C §1839(3)(A), (3)(B) ..............................................................................................23, 30

18 U.S.C §1839(5)......................................................................................................................32

18 U.S.C §1839(6)......................................................................................................................32

State Statutes and Rules

TEX. CIV. PRAC. & REM. CODE ANN. § 134A.002(2)..................................................................32

TEX. CIV. PRAC. & REM. CODE ANN. § 134A.002(3)..................................................................32

TEX. CIV. PRAC. & REM. CODE ANN. § 134A.002(6)..................................................................30

TEX. CIV. PRAC. & REM. CODE ANN. § 134A.002(6)(A), (6)(B)................................................30

TEX. CIV. PRAC. & REM. CODE ANN. § 134A.003......................................................................28

TEX. CIV. PRAC. & REM CODE ANN. § 134A.003(a).............................................................28, 33

Tex. Civ. Prac. & Rem Code Ann. § 134A.003(c).....................................................................28

Secondary Sources

Charles Alan Wright, Arthur R. Miller, Mary Kay Kane,

11A Federal Practice & Procedure § 2948.3 (2d ed. 1995)........................................................29

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III. NATURE OF THE ACTION

1. This is a lawsuit involving computer technology that can wirelessly strip data from 

password protected cell phones. The software was designed by Plaintiff Jonathan Villareal and is 

owned by Plaintiff ZroBlack, LLC (pronounced “ZeroBlack” and hereinafter referred to as 

“ZroBlack”). Defendant John Saenz is the former CEO of ZroBlack and has misappropriated that 

technology by refusing to return a ZroBlack laptop, the keys to ZroBlack’s mailbox, and 

ZroBlack’s domain name, webpage, and email server after parting ways with ZroBlack. Saenz has 

also destroyed data owned by ZroBlack, including ZroBlack’s webpage and email server, which 

were hosted on a GoDaddy account owned by ZroBlack.

IV. FACTUAL BACKGROUND

2. Jonathan Villarreal is a talented programmer who suffers from agoraphobia, a 

condition which, due to acute anxiety, prohibits him from having too many people around him. 

Jonathan developed proprietary technology which allows one to access cell phones, including 

iPhones. This technology can be used to access a cell phone wirelessly and wipe the data. This is 

useful in that if a user’s phone is stolen, he can wipe its data remotely even if the security password 

has been changed. Jonathan’s company, Plaintiff ZroBlack, is one of the few companies in the 

world that can do this.

A. Formation of ZroBlack

3. In January of 2019 Jonathan was negotiating with a foreign company (hereinafter, 

“Foreign Customer”) for the licensing of the technology. John Saenz (“Saenz”), who is married to 

Jonathan’s cousin, wanted a piece of the action. Saenz claimed that he could fill voids Jonathan’s 

previous partner could not provide. Saenz falsely represented to Jonathan that he had the business 

experience and government contacts to market the technology to the government. He falsely 

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represented that he could use his “contacts” in the military and technology business sectors to 

bolster sales and proposed forming a company as a vehicle to market the technology. That 

company was to be ZroBlack. Jonathan believed him and, as a family member, trusted him. They 

agreed to form a limited liability company to market the software to Jonathan’s Foreign Customer, 

with Saenz as CEO and Jonathan taking on the technology role. See Exhibit 1 (Declaration of 

Jonathan Villareal).

4. On January 11, 2019, Saenz purchased ZroBlack’s domain name, 

www.zroblack.com, from GoDaddy. He held the name behalf of ZroBlack. The login and 

password information for accessing ZroBlack’s GoDaddy account is a trade secret of ZroBlack. 

See Exhibit 1.

5. On January 14, 2019, Jonathan and Saenz formed ZroBlack, LLC, organized under 

the laws of the State of Delaware. See Exhibit 2. They were its founding members and each owned 

fifty percent. ZroBlack was founded as an IT company to provide applications and services 

regarding cell phone data capture and erasure. ZroBlack planned to offer two different types of 

software, one for commercial use and one for governmental use. Saenz took the title of CEO and 

relegated Jonathan the title of Security Engineer. Jonathan Villareal was charged with performing 

all the in-house coding and servicing of the technology. Saenz was charged with client engagement 

and promoting the company. See Exhibit 1.

6. Jonathan and Saenz executed a Limited Liability Company Operating Agreement 

for ZroBlack, LLC (“Operating Agreement”). See Exhibit 3. A key term of that agreement 

pertained to ZroBlack’s ownership of property. Section 4.7 of the ZroBlack’s Limited Liability 

Company Agreement states:

Title to the Company's assets will be held in the Company's name or in the name 

of any nominee designated by the Members. The Members have power to enter 

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into a nominee agreement with any person, and that agreement may contain 

provisions indemnifying the nominee, except for his or her willful misconduct.

7. After the formation of ZroBlack, on March 31, 2019, Jonathan assigned to 

ZroBlack his intellectual property rights, which included the code for accessing cell phones 

wirelessly. See Exhibit 4. ZroBlack’s trade secrets included Villareal’s code for wiping 

information from cell phones. ZroBlack’s trade secrets included Villareal’s code for wiping 

information from cell phones, and the code for the software identified Exhibit 4, the intellectual 

property assignment. See Exhibit 1.

8. In connection with his duties as CEO, Saenz purchased a 15-inch Apple MacBook 

Pro on May 2, 2019 for $2,631.00. A copy of the purchase order and receipt is attached. The 

purchase order reflects that the laptop was ordered “John Saenz, Zroblack, at 1150 N. Loop 1604-

W, Ste 108-259, San Antonio, Texas 78248,” which was ZroBlack’s address. It was purchased 

with a debit card ending with the number 8032, which was a debit card issued in ZroBlack’s name.

See Exhibit 5.

9. After procuring a contract with its Foreign Customer, ZroBlack grew to as many as 

ten employees. See Exhibit 1.

B. ZroBlack Signs a Contract

10. On March 15, 2019, ZroBlack and its Foreign Customer executed a non-disclosure 

agreement (“NDA”). See Exhibit 6. The purpose of the NDA was to allow ZroBlack to disclose 

trade secrets to its Foreign Customer during contract negotiations while maintaining the secrecy 

of those trade secrets. The trade secrets included the software code. See Exhibit. 1.

11. ZroBlack and its Foreign Customer entered into a Professional Services Agreement 

(“PSA”) on or about April 15, 2019, wherein ZroBlack would pass down its knowledge of mobile 

devices, consult with its Foreign Customer on its software development and coding, hardware 

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development, and organize and document the process of supporting ability to identify, diagnose, 

clear, and validate certain devices. See Exhibit 7. The contract price was One Million Five Hundred 

Thousand Dollars ($1,500,000.00) up front and a fourteen and one-half percent (14.5%) earn out 

on new customer revenue and existing customer growth. The $1.5 million transferred into a Wells 

Fargo business account. Saenz then transferred $740,000 of those funds to his personal account. 

See Exhibit 8.

12. ZroBlack retained the services of Gunn, Lee & Cave (hereinafter, “Gunn, Lee law 

firm”) and specifically attorney Mike Villareal (hereinafter, “Mike”)1to advise them on the 

contract negotiations. Shortly before signing, on or about April 12, 2019, Jonathan emailed Mike 

discussing negotiations. In the mail, Jonathan stated:

John and I went through it last tonight, he had concerns, but at the end 

of our talks we worked out the logic behind the revenue sharing. I hope 

this closes today too, hard lessons have been learned for sure. If we sign 

today, it’s basically as though we are getting a $750,000 salary each for 

2019. Do you have a recommendation for an attorney that can setup a 

trust for me?

13. See Exhibit 9 (email). The email demonstrates that $1.5 million dollars was to 

constitute salary for Jonathan and Saenz through the end of 2019. The money was not a gift, nor 

was it deemed earned upon the signing of the contract.

14. The PSA included confidentiality provisions. Section 7.1 provided that all 

deliverables and inventions and all other information (including computer programs, technical 

drawings, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or 

not), schematics, and other technical, business, financial, and customer and product development 

plans, forecasts, strategies and information) that ZroBlack, Jonathan, and Saenz developed, 

learned, or obtained in connection with the services they rendered under the PSA constituted the 

1 Attorney Michael Villareal is not related to Jonathan.

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proprietary information of ZroBlack’s Foreign Customer. See Exhibit 7. ZroBlack, Jonathan, and 

Saenz were required to hold that information in confidence and not use or disclose it. Section 7.2 

of the PSA stated that upon termination of the PSA or as otherwise requested by ZroBlack’s 

Foreign Customer, ZroBlack, Jonathan, and Saenz would promptly return to the customer all items 

and copies containing or embodying proprietary information including all deliverables and workin-progress. See Exhibit 7.

C. Saenz Attempts to Shop Secret Code to Others

15. Although ZroBlack had signed the NDA and later the PSA (with its own 

confidentiality provisions) with its Foreign Customer, Saenz tried to shop the technology to others, 

including an individual named Roger Graham, who was formerly with UBS Financial and, at the 

time, employed by Wells Fargo; he ss currently a Senior Vice President-Investment Officer and 

PIM Portfolio Manager. Jonathan warned Saenz that he was in violation of the NDA and the 

confidentiality provisions of the PSA. Saenz threatened to continue to try to market the code. See

Exhibit 1.

D. Saenz Misappropriates $740,000 while Missing Key Meetings with Customer and 

Providing No Services to ZroBlack

16. While Saenz talked big, he did little to help the company. After ZroBlack signed

the contract with its Foreign Customer, Saenz took half of the upfront payment ($740,000) and 

failed to perform any more work for ZroBlack. See Exhibit 1, Exhibit 8.

17. For example, in May 2019, the Foreign Customer required both Jonathan and Saenz 

to travel to Finland. Saenz refused to leave at the same time as Jonathan, but eventually showed 

seven-days late. Two days after arriving in Finland, Saenz sent ZroBlack’s Foreign Customer an 

email stating that Jonathan would take care of 100% of the technical and that he (Saenz) would no 

longer be attending morning meetings but would check up from time to time:

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I wanted to send you a note to clarify my role on these calls. I will be 

on from time to time as an observer and to offer guidance from 

ZroBlack’s point of view. Jonathan can handle all the technical side of 

the conversations.

See Exhibit 10.

18. Jonathan was required to return to Finland during the week of June 8 to 15, 2019; 

Saenz refused to accompany him. Saenz was also charged with completing tax returns and paying 

the quarterly business taxes; he did not.

19. Rather than working to promote ZroBlack, Saenz was living the high life. Upon 

information and belief, Saenz used most of the $740,000 he took from ZroBlack. Saenz invested 

around $305,000 into the stock market. Saenz also used around $423,850 in property renovations. 

See Exhibit 1. As a result of Saenz’s refusal to perform his work, on or about June 26, 2019, 

Villareal notified Saenz by text message that he wished to dissolve ZroBlack. See Exhibit 11. In 

the notification, Jonathan took Saenz to task for not doing any work, stating:

You can’t sit back and expect a paycheck. You can’t say you front loaded the contract then 

dip out. Besides, I did a huge part to close out the contract, I did the entire due diligence 

and put the entire BRIX document together. I expected you to do work after we got paid, 

this isn’t a free ride man. [Foreign Customer] only wants to go forward with me for a reason 

and I don’t know what happened to you. I don’t know why you stopped working after 

getting paid $750k.

See Exhibit 11.

E. Gunn, Lee, & Cave, P.C. and Michael Villareal’s Further Involvement

20. When Mike and the Gunn, Lee law firm represented ZroBlack, the representation 

began as a normal corporate representation, where the law firm and the attorney (Mike) were 

advising the members on matters regarding the company. See Exhibit 12. Soon after ZroBlack 

executed the PSA with its Foreign Customer, however, Jonathan and Saenz came to cross purposes

over Saenz’s lack of performance and misappropriation of company funds. See Exhibit 1.

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21. After Jonathan threatened to dissolve ZroBlack, Saenz got Mike further involved. 

Though an obvious conflict of interest existed, Mike undertook to represent both Jonathan and 

Saenz in negotiations to settle their dispute. One of the main concerns was the $740,000 Saenz 

withdrew from the $1.5 million deposit that ZroBlack’s Foreign Customer paid under the PSA. 

Those monies were paid in advance, and the customer expected ZroBlack, Saenz, and Jonathan 

Villareal to perform under the contract. But Saenz refused to perform his obligations to ZroBlack 

and the customer. Nor would Saenz to agree to steps to ensure his performance, despite being told 

by Mike during a meeting in Mike’s office in July 2019 that he (Saenz) had breached his fiduciary 

duty to the company. To salve the relationship, on or about July 27, 2019, Mike suggested that 

Jonathan set tasks for Saenz (the putative CEO of ZroBlack). Saenz refused to have the tasks 

incorporated into any agreement, sending a text message to Jonathan stating he would not “tie a 

contract to daily tasks because that could be easily manipulated.” See Exhibit 13. Jonathan 

responded, “Seriously. Please dude. That’s not fair. I literally have my work planned out for an 

entire year I’m asking you for one month. Hello? How can I help you with it?” See Exhibit 13.

Saenz also refused Mike’s suggestion that his CEO duties be incorporated into the company 

operating agreement. Once he had $740,000 in his pocket, Saenz simply did not want to do any 

more work for ZroBlack or the customer.

22. After Defendant Saenz took the $740,000, ZroBlack was forced to cut salaries of 

its employees. Saenz refused to assist ZroBlack in paying bills and Jonathan was not able to make 

the tax payment. Jonathan was forced to incur serious debt in order to get the capital to complete 

obligations required under the PSA. Jonathan began selling his personal property including 

electronics and his wife’s wedding ring to ensure that ZroBlack could maintain working capital.

See Exhibit 1.

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23. Because Saenz was married to Jonathan’s cousin, their falling out began to cause 

strife in the family. The Family relationship was very important to Jonathan, and Mike began 

pressuring Jonathan that he needed to settle with Saenz by “thinking about the family.”

24. After Jonathan and Saenz disagreed on how to qualify his theft of $740,000 from 

ZroBlack, the two members decided it was time to part ways. The money that Saenz had stolen 

from the company was to be returned, on a basis to be structured by Mike and the Gunn, Lee law 

firm. Although Mike represented both Jonathan and Saenz and issued a waiver of conflict letter, 

no reasonable lawyer could believe that such representation of each client would not be materially 

affected. Moreover, he did not advise Jonathan or ZroBlack as to the consequences of what they 

were doing and structured an agreement that hurt both Jonathan Villarreal and ZroBlack.

25. On or about July 17, 2019, Jonathan sent a text message to Saenz, saying:

Thanks for the call, it’s disappointing that you had no idea we had a product released 

already. It’s disappointing that you were not on the phone call this morning for our morning 

meeting. It’s disappointing that you never responded to may emails letting me know what 

you did for our client that paid our company $1.5 million, it’s disappointing that you say 

you’re going to taking [sic] legal action against [Foreign Customer], it’s disappointing that 

you cannot provide me with what you have done for our client for the last 2 months.

See Exhibit 14 (Text message dated July 17, 2019).

26. Saenz began demanding that the $740,000 he took from ZroBlack be characterized 

as a “gift” for tax purposes; this, Jonathan refused to do as it would violate the law. See Exhibit 1 

(Declaration of Jonathan Villareal). For example, in a text message July 27, 2019 Saenz offered to 

assign all interest in ZroBlack to Jonathan if the $740,000 would be characterized as a gift. See

Exhibit 27.

27. Mike and the Gunn, Lee law firm eventually prepared a document titled “Release.” 

See Exhibit 15. The Release stated that Saenz would receive as consideration 2% (and ZroBlack 

12.5%) of the 14.5% Earn-Out Obligation under the PSA.

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28. Although the Release assigned all of Saenz’s interest in ZroBlack to Jonathan, it

made no express provision for the return of the $740,000 to ZroBlack, despite continued requests 

by Jonathan that the money be returned. The Release also contained no express requirement that 

Saenz return personal property to ZroBlack, which included not only the $740,000 and a laptop 

computer belonging to ZroBlack, but also ZroBlack’s proprietary and trade secret information, as 

well as ZroBlack’s domain name, webpage, and email server. Although it is ZroBlack’s contention 

that the Saenz’s assignment of all his interest in ZroBlack nonetheless requires return of the money, 

the computer and trade secrets, and the domain name, webpage, and email server, the lack of an 

express provision in the Release in this regard has necessitated this lawsuit because Saenz has 

refused to return all of these things.

29. Jonathan and Saenz executed the Release on August 9, 2019. Section 7 of the 

Release states that “Each Party hereto fully releases the other Parties from all claims and demands, 

known or unknown.” Section 7 goes on the discuss claims that are known and unknown. It does 

not address inchoate claims or claims that have not yet accrued. See Exhibit 15.

30. Jonathan and Saenz also executed a Unanimous Written Consent in Lieu of 

Meeting by ZroBlack’s membership (hereinafter, “Consent”). See Exhibit 16. The second 

“WHEREAS” in the Consent stated, “the undersigned wish to memorialize John Saenz’s 

assignment of his entire interest in ZroBlack LLC to Jonathan Villareal.” The first “RESOLVED” 

stated that “John Saenz hereby assigns his entire interest in ZroBlack LLC to Jonathan Villareal 

pursuant to Article VII of the ‘Limited Liability Company Operating Agreement for ZroBlack 

LLC’ dated January 14, 2019 and applicable laws, ...” Thus, Saenz assigned all his ownership 

interest to Jonathan, and relinquished all claims of any ownership of ZroBlack’s property. See 

Exhibit 16.

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31. After the deal for Saenz to exit ZroBlack was struck, Saenz refused to return the 

$740,000. Instead, Saenz continued to want the money he had taken from the company to be 

construed as a “gift.” This was an ongoing dispute between Saenz and Jonathan, who anticipated 

providing service to the United States federal government. Jonathan told Saenz the he (Jonathan) 

would never agree to qualify $740,000 Saenz embezzled as a gift. In fact, Jonathan gave Saenz an 

ultimatum: return the money, or face the harsh consequences. This was the same discussion he had 

with attorney Mike Villareal and his law firm, the Gunn, Lee law firm. See Exhibit 1.

32. On August 15, 2019, Jonathan asked Saenz to release ZroBlack’s webpage. Saenz 

said he would “look into it.” See Exhibit 18 and Exhibit 19. Despite requests for return, Saenz 

continues to hold the domain name. Adding insult to injury, Saenz blackmailed ZroBlack over the 

domain name, webpage, and email server, offering to sell it back to ZroBlack for $7,000. Saenz 

has taken the website down effectively terminating ZroBlack’s ability to gain new clients. Saenz 

also deleted the email server, thereby destroying hundreds of emails and documents supporting 

Jonathan’s claims, ZroBlack’s projects for its Foreign Customer, and other matters. Saenz 

currently holds access to ZroBlack’s domain name hostage, so Jonathan has no access to the site 

and no opportunity to attempt to recover the webpage and emails. GoDaddy is the service provider.

See Exhibit 1.

33. Jonathan asked Saenz to return the laptop computer belonging to ZroBlack. Saenz 

refused this request also. This computer contains proprietary code related to ZroBlack’s phone 

security project. See Exhibit 1.

34. On September 13, 2019, Jonathan emailed Mike advising him that Saenz had 

deleted all his emails. See Exhibit 20. Then, On September 13, 2019, Jonathan emailed Mike 

pleading for help:

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I’m beside myself right now, and really struggling with everything, I can’t eat, I can’t sleep, 

my anxiety and stress is so high, and for the next 3 years if I continue like this I’ll end up 

losing my contracts and not be able to work.

I have worked too hard to allow myself to slip like this. I need help Mike, this is not right. 

I’ve done nothing wrong. John got $750,000 cash, and there has to be a way for me to stop 

this madness, get him to give up the 2%, get my company website, my company 

documents, and my company computer. Like I said, I have a company that pays real taxes, 

has 10 real employees, we have a real physical location, and I can’t even put up my 

company website.

See Exhibit 21. Mike continued to try to negotiate a resolution between Jonathan and Saenz.

35. On or about September 19, 2019, Jonathan again emailed Saenz, copying Mike, 

demanding the return of ZroBlack’s property, including the laptop containing proprietary code, 

ZroBlack’s web domain and webpage, and ZroBlack’s emails. He also demanded return of the 

$740,000 Saenz misappropriated from ZroBlack. See Exhibit 22. Jonathan sent a similar email to 

Saenz and Mike on September 20, 2019, explaining why he believed Saenz should return the 

$740,000 and other property of ZroBlack. See Exhibit 23.

36. On or about September 26, 2019, Mike Villareal tried to arrange a meeting between 

Jonathan and Saenz to discuss settling their disagreement and offered his offices as a place to have 

the discussions. Mike gave his available days and stated that “we are trying to resolve your 

differences, not attempting to take advantage of each other. I appreciate you both willing to show 

good faith on both your parts in coming together and seeing if a resolution can be reached.” See

Exhibit 24.

37. Despite promises to appear for a meeting, Saenz kept putting it off with a litany of 

excuses until Jonathan, fed up, stated he would not be attending a meeting and had decided to go 

in a different direction See Exhibit 25. As of the filing of the complaint, Saenz has not returned the 

money he took from ZroBlack, nor has he returned the web domain and webpage, emails, laptop, 

and proprietary information belonging to ZroBlack. Saenz continues to hold on to ZroBlack’s 

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property and refuses to return it, including the ZroBlack laptop that contains proprietary 

information and trade secrets belonging to ZroBlack. Saenz also threatened Jonathan that he would 

“muck up” his life if Jonathan did not turn over the company and assign it to him. Jonathan begged 

Saenz not to do this to him. See Exhibit 1.

38. Furthermore, Jonathan Villareal rightfully placed his absolute trust in Michael 

Villareal and his law firm, the Gunn Law Firm. Jonathan Villareal is not an attorney and is not 

familiar with legal issues. He is, however, highly skilled in IT matters. He trusted and relied on 

Michael Villareal and his firm to guide him and navigate the transaction with Saenz. At all times 

relevant and material to this lawsuit, Jonathan Villareal rightfully placed his trust in his lawyer and 

law firm, just as ZroBlack did with its corporate counsel.

39. Unfortunately, Mike Villareal has a conflict of interest that he ignored. He also 

failed to disclose the extent of his relationship with Saenz to Jonathan. Mike’s relationship with 

Saenz was so cozy that Mike was cutting Saenz a discount of the share of fees he charged Saenz, 

while charging Jonathan for the full amount of Jonathan’s share. Mike continued to pressure 

Jonathan to resolve the dispute for “the sake of the family.” See Exhibit 1. Neither Jonathan 

Villareal nor ZroBlack anticipated they would be betrayed in the way they were.

F. Final Attempts to get Saenz to Return Money and Property owed to ZroBlack

40. On or about February 22, 2020, Jonathan Villareal attempted to contact Defendant 

Saenz to collect back the money that he had took at the close of the deal with ZroBlack’s Foreign 

Customer. After the Parties agreed to sign ZroBlack over to Jonathan, Saenz failed to turn in all 

company assets including money, computers, GoDaddy domain with email server and website, 

non-disclosure agreements, company contacts, original documents, and everything else that 

belonged to ZroBlack. See Exhibit 1.

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III. APPLICATION FOR CIVIL SEIZURE

41. Plaintiffs hereby adopt and re-allege the allegations previously set forth in this 

Application as if fully set forth herein.

42. ZroBlack requests a civil seizure of the ZroBlack laptop that contains its trade 

secrets in accordance with 18 U.S.C. § 1836(b)(2). Defendant Saenz is withholding the laptop and 

refusing to return it.

43. 18 U.S.C. § 1836(b)(2)(A)(i) provides, in pertinent part, that a civil seizure may be 

granted upon ex parte application but only in extraordinary circumstances. The order may provide 

for the seizure of property that is necessary to prevent the propagation or dissemination of a trade 

secret, in this instance, the ZroBlack lap in Saenz’s possession and containing ZroBlack’s trade 

secrets.

44. Prior to issuing an ex parte seizure order, the court must find that

i. An order issued pursuant to Rule 65 of the Federal Rules of Civil Procedure 

or another form of equitable relief is inadequate because the Defendant 

would evade, avoid, or otherwise not comply with such an order;

ii. Plaintiff has and will continue to suffer immediate and irreparable injury if 

seizure is not ordered;

iii. The harm the Plaintiff of denying the application outweighs the harm to the 

legitimate interests of the Defendant and substantially outweighs the harm 

to any third parties who may be harmed by such seizure;

iv. Plaintiff is likely to succeed in showing that the information is a trade secret 

and the person against whom seizure would be ordered misappropriated the 

trade by improper means;

v. The person against whom seizure would be ordered has actual possession 

of the trade secret and any property to be seized;

vi. Plaintiff can describe with reasonable particularity the matter to be seized 

and the location where the matter is to be seized;

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vii. The person against whom seizure would be ordered may destroy, move, 

hide, or otherwise make such matter inaccessible to the court if Plaintiff 

were to proceed and notify Defendant; and

viii. Plaintiff has not publicized the requested seizure. 

18 U.S.C. § 1836(b)(2)(A)(ii).

A. An Order Pursuant to Fed. R. Civ. P. 65 Is Inadequate

45. A preliminary injunction would be inadequate under the circumstances. The 

evidence offered by the Plaintiff in support of this Application clearly demonstrates that an ex 

parte seizure order is the only adequate means of ensuring that the Defendant will return the 

Plaintiff’s trade secrets. Given the Defendant’s practice of deleting the email server, taking down 

the website, and refusing to return the laptop with trade secrets thereon, it is almost certain that 

Defendant may evade, avoid, or otherwise fail to return Plaintiff’s laptop and trade secrets absent 

the issuance of an ex parte seizure order.

46. Plaintiff has made numerous requests for the return of ZroBlack’s laptop after the 

parties negotiated Saenz’s departure from ZroBlack, however Saenz refused each such request. 

Instead, Saenz kept the laptop. Further, in retaliation, he took down ZroBlack’s website knowing 

the ZroBlack company email addresses were all still dependent upon that domain. As a result, 

ZroBlack and Jonathan did not receive important communications from customer representatives 

and have since had to repair their relationship with their primary customer. ZroBlack still does not 

have access to communications which are key to their business moving forward. 

47. Courts have also held that seizure is proper when a Defendant could easily copy the 

information onto another computer or other storage media without the knowledge of the Plaintiff 

or the Court. See Blue Star Land Services v. Coleman, No. CIV-17-931-C, 2017 WL 11309528, at 

*1 (W.D. Okla., August 31, 2017). Saenz still maintains control over the laptop and trade secrets 

contained therein even after multiple requests for its return have been made. Saenz could easily 

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copy ZroBlack’s trade secrets and software code onto another computer or other storage media 

without the knowledge of the Plaintiff.

48. Saenz has shown and continues to show that he will evade, avoid, or otherwise not 

comply with requests to return the computer. For these reasons, the only adequate means of 

achieving the purpose of 18 U.S.C. § 1836(b), namely preventing the propagation and 

dissemination of trade secrets, is to issue an ex parte seizure order. 

B. Plaintiff Has and Will Continue to Suffer Immediate Irreparable Injury

49. Zroblack is suffering and will continue to suffer immediate and irreparable harm to 

its business and goodwill because of Saenz’ conduct.

50. Courts have held that injuries may include a continued disadvantage in the 

marketplace. Axis Steel Detailing, Inc. v. Prilex Detailing LLC, No. 2:17–cv–00428–JNP, 2017 

WL 8947964, at *2 (D. Utah, June 29, 2017). Furthermore, Courts have held that the possibility 

of a transfer or conveyance of the property to a third party or a competitor may cause immediate 

and irreparable harm. AVX Corporation v. Kim, NO. 6:17-00624-MGL, 2017 WL 11316598, at *2 

(D. S.C., March 13, 2017).

51. Saenz is in possession of ZroBlack’s trade secrets, including software code for 

accessing cell phones wirelessly and the usernames and passwords to access ZroBlack’s GoDaddy

account. The software code is located on the laptop, and the username and password for the 

GoDaddy account are also likely located there. ZroBlack’s continues to suffer continued 

disadvantage in the marketplace by being unable to access its domain on GoDaddy. ZroBlack’s 

webpage is currently down, and its email server has been wiped out, meaning customers and 

potential customers can’t email ZroBlack through ZroBlack’s domain name.

52. Furthermore, if Defendant Saenz continues to knowingly withhold ZroBlack’s 

property and trade secrets, ZroBlack will suffer significant and irreparable financial injury. 

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ZroBlack is deeply concerned that the software contained on the laptop may fall into the wrong 

hands or be used for unlawful purposes. The software on the ZroBlack laptop allows access to cell 

phones. ZroBlack has no control over Saenz’s activities or use of the ZroBlack laptop. 

C. Balance of Hardships Favors Seizure

53. Before issuing an ex parte seizure order, the court must find “that the harm to the 

applicant of denying the application outweighs the harm to the legitimate interests of the person 

against whom seizure would be ordered of granting the application and substantially outweighs 

the harm to any third parties who may be harmed by such seizure.” 18 U.S.C. § 

1836(b)(2)(A)(ii)(III). 

54. ZroBlack suffers irreparable harm to its consumer goodwill and business reputation 

each passing day Saenz controls a ZroBlack laptop and email server. Saenz has no legitimate 

interests or rights in the trade secrets of GoDaddy account, nor does he have a right to withhold 

them. By contrast, the only harm Saenz will suffer should a seizure order issue is seizure of a

laptop computer rightfully owned by ZroBlack. 

55. Additionally, the injury that ZroBlack will suffer outweighs any damage that will 

potentially be done to Defendant Saenz. Seizing ZroBlack’s laptop does not deprive Defendant of 

any legal remedy should he prevail in this lawsuit. The requested seizure of the laptop in Saenz’ 

possession will not foreseeably harm any third parties. 

56. The balance of hardships clearly favors Plaintiff’s position.

D. Plaintiff Owns Trade Secrets and Saenz Misappropriated Them

57. Before issuing an ex parte seizure order of trade secrets, the court must find that 

“the applicant is likely to succeed in showing that—

(aa) the information is a trade secret; and 

(bb) the person against whom seizure would be ordered—

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(AA) misappropriated the trade secret of the applicant by improper means; or

(BB) conspired to use improper means to misappropriate the trade secret of the 

applicant”

18 U.S.C. § 1836(b)(2)(A)(IV). 

i. ZroBlack Possessed Trade Secrets

58. The Defend Trade Secrets Act defines trade secrets to include “all forms and types 

of financial, business, scientific, technical, economic, or engineering information, including 

patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, 

techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether 

or how stored, compiled, or memorialized physically, electronically, graphically, 

photographically, or in writing.” 18 U.S.C §1839(3). Under the statute the owner must have taken 

steps reasonable under the circumstances to keep the information secret and the information must 

derive independent economic value, actual or potential, from not being generally known to, and 

not being readily ascertainable through proper means, by another person who can obtain economic 

value from disclosure. 18 U.S.C §1839(3)(A), (3)(B).

59. Here, the evidence shows that the laptop in Saenz’s possession contains trade 

secrets. See Exhibit 1. That information includes proprietary computer code. As evidenced by the 

contract between ZroBlack and its Foreign Customer ZroBlack’s proprietary Code is related to 

products or services used in interstate and foreign commerce. See Exhibit 7.

60. ZroBlack’s trade secrets also include the username and password used to access 

ZroBlack’s GoDaddy account. One federal court has concluded that login and password 

information to access company computers and networks can be a trade secret. TMX Funding, Inc. 

v. Impero Technologies, Inc., No. C10-00202 JF (PVT), 2010 WL 2509979 at * 4 (N.D. Cal. Jun. 

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17, 2010). According to the Court in TMX Funding, login and password information is generally 

not known outside of companies and their economic value is derived from not being generally 

known to others. Id. 

61. The evidence also shows that ZroBlack took steps reasonable under the 

circumstances to keep the information secret. Although ZroBlack had ten employees, only Saenz 

and Jonathan had access to the proprietary code, and access to the code was by password. See

Exhibit 1. When dealing with customers and potential customers, ZroBlack used non-disclosure 

and confidentiality agreements to protect the trade secrets. See Exhibit 7 and Exhibit 8. Regarding 

the GoDaddy login and password, only Saenz knew that information.

62. ZroBlack’s trade secrets also derived independent economic value, actual or 

potential, from not being generally known to, and not being readily ascertainable through proper 

means, by another person who can obtain economic value from disclosure. ZroBlack’s contract 

with its Foreign Customer demonstrates the economic value of the computer code. See Exhibit 7

and Exhibit 1. Login and password information also derives independent economic value from not 

being generally known. TMX Funding, 2010 WL 2509979 at * 4.

63. Finally, the evidence establishes that ZroBlack is the owner of the trade secrets. See

Exhibit 1.

ii. Defendant Saenz Misappropriated the Trade Secrets

64. Saenz misappropriated the trade secrets by refusing to return ZroBlack’s laptop that 

contained the software code and other proprietary information. Per the terms of the Release and 

Consent, Saenz relinquished all interest in ZroBlack, including all interest in any property owned 

by ZroBlack. See Exhibit 15 and Exhibit 16. That property included the laptop and the proprietary 

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code and other proprietary data on the laptop. The laptop also had the login and password 

information and software that controlled the emails and website URL for ZroBlack.

65. After Saenz parted ways with ZroBlack, his authorization to use the laptop and 

access the information on it was revoked. Furthermore, the Release and assignment of all his rights 

in ZroBlack included the assignment of rights in ownership of the laptop and the proprietary code 

on that laptop. Saenz refused requests to return the laptop, and his continued possession is 

unauthorized. See Exhibit 22 and Exhibit 23. Saenz knew he used improper means to acquire the 

trade secrets, thus misappropriating the trade secrets. Those trade secrets included the software 

code created and maintained by ZroBlack.

66. Defendant Saenz has the intent to convert the trade secret and knew the offense 

would injure the owner of the of the trade secret.

E. Saenz Has Control of the Laptop

67. Defendant Saenz maintains control of the laptop that contains ZroBlack’s trade 

secrets. Defendant Saenz has failed to return the laptop and trade secrets after multiple requests. 

See Exhibit 1 and Exhibit 22. 

F. The Matter to Be Seized and Its Location

68. The matter to be seized is a 15-inch Apple MacBook Pro, part number MR94LL/a, 

serial number C02YF1Y9JG5J. The matter to be seized can be located at 28710 Estin Height St., 

San Antonio, Texas 78260 as all trade secrets are contained therein.

G. Saenz may destroy, move, hide or make the matter inaccessible to the Court

69. Before issuing an ex parte seizure order, the court must find “the person against 

whom seizure would be ordered, or persons acting in concert with such person, would destroy, 

move, hide, or otherwise make such matter inaccessible to the court, if the applicant were to 

proceed on notice to such person”. 18 U.S.C. § 1836(b)(2)(a)(ii)(VII).

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70. As discussed above, Saenz will almost certainly move, hide, or destroy the laptop 

containing ZroBlack’s trade secrets, if he is given notice of this action and the relief sought. Saenz 

has already deleted the GoDaddy account email server, thereby destroying hundreds of emails and 

documents supporting Plaintiffs’ claims, and hundreds of emails and documents related to 

Plaintiffs’ projects. 

71. Saenz may continue to destroy, move, hide, or make the matter inaccessible to the 

Court so long as he maintains control of the ZroBlack laptop, and the trade secretes contained 

therein.

H. Applicant Has Not Publicized the Requested Seizure

72. Prior to issuing an ex parte seizure order relating to misappropriation of trade 

secrets, the court must find that the applicant has not publicized the requested seizure. 18 U.S.C. 

§ 1836(b)(2)(A)(ii)(VIII). Plaintiffs have not publicized the requested seizure. See Exhibit 1.

IV. APPLICATION FOR TEMPORARY RESTRAINING ORDER, TEMPORARY INJUNCTION, AND 

PERMANENT INJUNCTION

73. Plaintiffs hereby adopt and re-allege the allegations previously set forth in this 

Application as if fully set forth herein.

74. Plaintiffs requests a temporary restraining order and preliminary and permanent 

injunction ordering Saenz to release the domain for ZroBlack’s website and email servers to 

ZroBlack. FED. R. CIV. P. 65.

75. Furthermore, should the Court deny ZroBlack’s request for seizure, ZroBlack 

requests a temporary restraining order and preliminary and permanent injunction ordering

Defendant Saenz to return the ZroBlack-owned laptop that contains ZroBlack’s trade secrets. Id.

76. Injunctive relief is necessary to restore the status quo, namely, ZroBlack’s use and 

control of its laptop, email server, and website. Plaintiff has valid causes of action against 

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Defendant Saenz, has a high probability of succeeding on the merits of his causes of action, and 

would suffer probable, imminent, and irreparable harm if Defendant Saenz is not ordered to return 

the computer and turn over the login credentials for the ZroBlack, LLC website and email server 

hosted by GoDaddy.com.

77. A temporary restraining order may issue without prior notice to a party or its 

counsel, so long as specific facts clearly show immediate and irreparable injury, loss, or damage 

will result to the movant before the adverse party can be heard, and the movant’s attorney certifies 

in writing that any efforts made to give notice and the reasons why it should not be required. FED.

R. CIV. P. 65(b)(1). Defendant Saenz has already deleted ZroBlack’s webpage and email server

after ZroBlack requested their return. Notice may cause Defendant to do more damage to ZroBlack 

property, including the laptop computer and code and information thereon. Therefore, Plaintiffs 

seek an ex parte order.

78. Furthermore, if Defendant Saenz continues to withhold ZroBlack’s laptop, emails 

server, and website, Plaintiffs will suffer significant financial damages. Accordingly, Plaintiffs 

specifically ask this Court to enjoin Defendant from withholding any of the property and 

immediately return it to ZroBlack.

A. Rule 65(b)(1) Certification

79. As shown by the evidence in the Appendix of Exhibits attached, hereto, and the 

Declaration of Jonathan Villarreal, immediate and irreparable injury, loss, or damage will result to 

Plaintiff before the adverse party, Defendant John Saenz, can be heard. Specifically, the evidence 

shows that Saenz has already destroyed electronic data owned by Plaintiff, to wit Plaintiff’s web 

page and email server on its GoDaddy account, after Plaintiff requested transfer of the account

from Saenz’s name to ZroBlack’s name. Saenz is in possession of a laptop computer owned by 

ZroBlack, which contains electronic data owned by ZroBlack. Given Saenz’s prior history of 

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destroying data, there is real risk Saenz will destroy any remaining ZroBlack data on the computer. 

Additionally, nothing would prevent Saenz from copying trade secrets to a flash drive without the 

Court’s or Plaintiff’s knowledge. Therefore, ex parte relief is warranted. FED. R. CIV. P. 65(b)(1).

B. Grounds for Injunctive Relief

80. A plaintiff seeking a preliminary injunction must establish that (1) it is likely to 

succeed on the merits, (2) that it is likely to suffer irreparable harm in the absence of preliminary 

relief, (3) that it has no adequate remedy at law, (4) that the balance of equities tips in its favor, 

and that (5) an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 

U.S. 7, 20 (2008). “At the preliminary injunction stage, the procedures in district court are less 

formal, and the district court may rely on otherwise inadmissible evidence, including hearsay 

evidence.” Sirius Computer Solutions, Inc. v. Sparks, 138 F. Supp. 3d 821, 836 (W.D. Tex. 2015).

81. As the attached evidence shows, ZroBlack owns a laptop that contains its trade 

secrets. ZroBlack also owns its domain name, which includes its webpage and email server that 

Saenz has misappropriated and is under his control. Alternatively, ZroBlack has a greater right of 

possession to the domain name under the Anti-Cybersquatting Consumer Protection Act.

82. Injunctive relief is proper under the Defend Trade Secrets Act of 2016, 18 U.S.C. 

§ 1836(b)(3) and The Texas Uniform Trade Secrets Act, TEX. CIV. PRAC. & REM. CODE ANN. § 

134A.003 to preserve ZroBlack’s trade secrets and confidential information until the lawsuit is 

resolved. Additionally, both Acts authorize injunctive relief to protect against threatened 

misappropriation. 18 U.S.C. § 1836(b)(3)(A)(i); TEX. CIV. PRAC. & REM. CODE ANN. § 

134A.003(a). Both Acts also authorize use of affirmative acts compelled by court order to protect 

trade secrets. 18 U.S.C. § 1836(b)(3)(A)(ii); TEX. CIV. PRAC. & REM. CODE ANN. § 134A.003(c).

83. Injunctive relief is also proper under the Computer Fraud and Abuse Act, 18 U.S.C. 

§1030(g) and the Anti-Cybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d).

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84. Finally, under Texas law, there is clear case precedent supporting the use of 

injunctive relief to compel a party to return company assets which the party has wrongfully taken. 

See generally RP&R, Inc. v. Territo, 32 S.W.3d 396, 400-01 (Tex. App.—Houston [14th Dist.] 

2000, no pet.) (explaining mandatory injunction is proper to prevent irreparable injury or extreme 

hardship). Sometimes the status quo is condition of action, not of rest, and the condition of rest is 

exactly what will inflict the irreparable injury on the Plaintiff. Rhodia, Inc. v. Harris County, 470

S.W.2d 415, 419 (Tex. Civ. App.—Houston [1st Dist.], no writ). Additionally, a mandatory 

injunction is proper when the defendant acts with full knowledge that his acts are wrongful. Zelios 

v. City of Dallas, 568 S.W.2d 173, 175 (Tex. Civ. App.—Dallas 1978, writ ref’d n.r.e.) (internal 

citations omitted). 

C. Likelihood of Success on the Merits -- Standard

85. A party seeking injunctive relief need not show certainty of winning on the merits. 

Janvey v. Alguire, 647 F.3d 585, 595-96 (5th Cir. 2011); see also Charles Alan Wright, Arthur R. 

Miller, Mary Kay Kane, 11A Federal Practice & Procedure § 2948.3 (2d ed. 1995) (“All courts 

agree that plaintiff must present a prima facie case but need not show that he is certain to win.”). 

To assess the likelihood of success on the merits, courts look to “standards provided by the 

substantive law.” Id. Additionally, “the degree of persuasion necessary on the substantial 

likelihood of success factor may decrease as the level of persuasion in relation to the other three 

factors increases.” Courtroom Sci., Inc. v. Andrews, No. 3:09-CV-251-o, 2009 WL 1313274, AT 

*3 (N.D.Tex. May 11, 2009) (internal citations omitted).

D. Likelihood of Success on the Merits – Trade Secret Misappropriation

a. ZroBlack Possessed Trade Secrets

86. The Defend Trade Secrets Act and the Texas Uniform Trade Secrets Act have 

essentially the same definition for a trade secret. The Defend Trade Secrets Act defines trade 

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secrets to include “all forms and types of financial, business, scientific, technical, economic, or 

engineering information, including patterns, plans, compilations, program devices, formulas, 

designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether 

tangible or intangible, and whether or how stored, compiled, or memorialized physically, 

electronically, graphically, photographically, or in writing.” 18 U.S.C §1839(3). The Texas 

Uniform Trade Secrets Act defines trade secrets to mean “all forms and types of information, 

including business, scientific, technical, economic, or engineering information, and any formula, 

design, prototype, pattern, plan, compilation, program device, program, code, device, method, 

technique, process, procedure, financial data, or list of actual or potential customers or suppliers, 

whether tangible or intangible and whether or how stored, compiled, or memorialized physically, 

electronically, graphically, photographically, or in writing.” TEX. CIV. PRAC. & REM. CODE § 

134A.002(6). Under both statutes the owner must have taken steps reasonable under the 

circumstances to keep the information secret and the information must derive independent 

economic value, actual or potential, from not being generally known to, and not being readily 

ascertainable through proper means, by another person who can obtain economic value from 

disclosure. 18 U.S.C §1839(3)(A), (3)(B); TEX. CIV. PRAC. & REM. CODE § 134A.002(6)(A), 

(6)(B).

87. Here, the evidence shows that the laptop in Saenz’s possession contains trade 

secrets. See Exhibit 1. That information includes proprietary computer code and the login and 

password information to ZroBlack’s GoDaddy account. As evidenced by the contract between 

ZroBlack and its Foreign Customer, ZroBlack’s proprietary Code is related to products or services 

used in interstate and foreign commerce. See Exhibit 7.

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88. The evidence also shows that ZroBlack took steps reasonable under the 

circumstances to keep the information secret. Although ZroBlack had ten employees, only Saenz 

and Jonathan had access to the proprietary code, and access to the code was by password. See

Exhibit 1. When dealing with customers and potential customers, ZroBlack used non-disclosure 

and confidentiality agreements to protect the trade secrets. See Exhibit 7 and Exhibit 6.

89. Furthermore, although Saenz did not sign a non-disclosure agreement, Texas law 

imposes duties of confidentiality on those persons who know or have reason to know information 

is a trade secret. American Derringer Corp. v. Bond, 924 S.W.2d 773, 777 (Tex. App.—Waco 

1996, no pet.) (“Upon the formation of an employment relationship, certain duties arise apart from 

any written contract ... One of those duties forbids an employee form using confidential or 

proprietary information acquired during the relationship in a manner adverse to the employer.”)

(citing Miller Paper Co. v. Roberts Paper Co., 901 S.W.2d 593, 600 (Tex. App.—Waco 1995, no 

writ). This obligation survives termination of the employment relationship. Miller Paper, 901 

S.W.2d at 600. The rule is the same for those who go into business together. See Crutcher-RolfsCummings, Inc. v. Ballard, 540 S.W.2d 380, 387 (Tex. Civ. App.—Corpus Christi 1976, writ ref’d 

n.r.e.) (applying confidentiality obligation to joint venturers). As CEO of ZroBlack and Jonathan’s 

partner, Saenz was under a duty of confidence not to use ZroBlack’s confidential information in a 

manner adverse to ZroBlack’s interests.

90. ZroBlack’s trade secrets also derived independent economic value, actual or 

potential, from not being generally known to, and not being readily ascertainable through proper 

means, by another person who can obtain economic value from disclosure. ZroBlack’s contract 

with its Foreign Customer demonstrates the economic value of the computer code. See Exhibit 7

and Exhibit 1.

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91. Finally, the evidence establishes that ZroBlack is the owner of the trade secrets. Id.

b. Defendant Saenz Misappropriated the Trade Secrets or Threatens to 

Misappropriate Trade Secrets

92. Misappropriation under the Defend Trade Secrets Act and Texas Uniform Trade 

Secrets Act means acquisition of a trade secret of another by a person who knows or has reason to 

know that the trade secret was acquired by improper means; or disclosure or use of a trade secret 

of another without express or implied consent by a person who used improper means to acquire 

knowledge of the trade secret. 18 U.S.C §1839(5); TEX. CIV. PRAC. & REM. CODE § 134A.002(3).

Improper means includes theft or breach of a duty to maintain secrecy. 18 U.S.C §1839(6); TEX.

CIV. PRAC. & REM. CODE § 134A.002(2).

93. Saenz misappropriated the trade secrets by refusing to return a ZroBlack laptop that 

contained the software code and other proprietary information. Per the terms of the Release and 

Consent, Saenz relinquished all interest in ZroBlack. See Exhibit 15 and Exhibit 16. By assigning 

all his interest in ZroBlack to Saenz effectively transferred any ownership interest he had in 

ZroBlack’s personal and intellectual property to ZroBlack because the Operating Agreement 

provided that all property to be owned by ZroBlack was to be in its name or the name of a nominee.

See Exhibit 3, § 7; see also Exhibit 15 § 6 and Exhibit 16 (“RESOLVED, that John Saenz hereby 

assigns his entire interest in ZroBlack, LLC to Jonathan Villarreal ...”). That property included 

the laptop and the proprietary code and other proprietary data on the laptop. The laptop also had 

the software that controlled the emails and website URL for ZroBlack, including passwords and 

account names. Account names and passwords for accessing its website and email server are 

confidential and proprietary to ZroBlack. See TMX Funding, Inc. v. Impero Technologies, Inc., 

No. C10-00202 JF (PVT), 2010 WL 2509979 at * 4 (N.D. Cal. Jun. 17, 2010) (holding login and 

password information could be a trade secret).

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94. After Saenz parted ways with ZroBlack, his authorization to use the laptop and 

access the information on it was revoked. The Release and assignment of all his rights in ZroBlack

included the assignment of rights in ownership of the laptop and the proprietary code on that 

laptop. Saenz refused requests to return the laptop, and his continued possession is unauthorized. 

See Exhibit 22 and Exhibit 23. Saenz knew he used improper means to acquire the trade secrets, 

thus misappropriating the trade secrets. Those trade secrets included the software code created and 

maintained by ZroBlack.

95. Both the Defend Trade Secrets Act and the Texas Uniform Trade Secrets Act 

expressly authorize injunctive relief to prevent actual or threatened misappropriation of a trade 

secret. 18 U.S.C. § 1836(b)(3)(A)(i); TEX. CIV. PRAC. & REM. CODE ANN. § 134A.003(a). Saenz 

has misappropriated ZroBlack’s trade secrets and confidential information and should be enjoined 

from the further use or disclosure of the trade secrets and confidential information. Alternatively, 

threatened misappropriation exists because Saenz, as the former CEO of ZroBlack, was charged 

with marketing ZroBlack and its unique product. Saenz possesses ZroBlack’s trade secrets and 

confidential information and is in a position to use it. FMC Corp. v. Varco Intern., Inc., 677 F.2d 

500, 503-504 (5th Cir. 1982) (injunctive relief appropriate where defendant employee would be 

called upon to decide what he believes he can and cannot properly disclose to his new employer; 

“even assuming the best of good faith” the employee would “have difficulty preventing his 

knowledge from infiltrating his work.”); T-N-T- Motorsports, Inc. v. Hennessey Motorsports, Inc., 

965 S.W.2d 18, 24 (Tex. App.—Houston[1

st Dist.] 1998, no pet.) (because defendant possessed 

proprietary information and was in position to use it, threat of use or disclosure was enough to 

support injunctive relief); Rugen v. Interactive Business Systems, Inc., 864 S.W.2d 548, 552 (Tex. 

App.—Dallas 1993, no pet.) (holding defendant was in possession of plaintiff’s confidential 

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information and in position to use it, it was probably defendant would use the information absent 

injunctive relief); Weed Eater, Inc. v. Dowling, 562 S.W.2d 898, 902 (Tex. Civ. App.—Houston 

1978, writ ref’d n.r.e.) (Defendant “can hardly prevent his knowledge of his former employer’s 

methods from showing up in his work;” injunction sustained).

E. Likelihood of Success on the Merits – Computer Fraud and Abuse Act

96. Any person who suffers damage or loss by reason of a violation of the Computer 

Fraud and Abuse Act, 18 U.S.C. § 1030, may maintain a civil action against the violator to obtain 

compensatory damages and injunctive relief. 18 U.S.C. § 1030(g). A civil action may only be 

brought if the conduct involves one of the factors set forth in 18 U.S.C. § 1030(c)(4)(A)(1)(I)-(V), 

including loss to one or more persons during any 1-year period aggregating at least $5,000 in value. 

18 U.S.C. § 1830(g); 18 U.S.C. § 1030(c)(4)(A)(1)(I). “Loss” is defined under the CFAA as “any 

reasonable cost to [the] victim, including the cost of responding to an offense, conducting a damage 

assessment ...” and courts have held that the costs of a forensic investigation/damage assessment 

constitute loss under the CFAA. Frisco Medical Center, L.L.P. d/b/a Baylor Medical Center at 

Frisco v. Bledsoe, 147 F. Supp. 3d 646, 659 (E.D. Tex. 2015).

97. If this requirement is met, civil liability may be imposed under the CFAA where a 

defendant:

a. Intentionally accesses a computer without authorization or exceeds authorization 

and obtains information from that computer, 18 U.S.C. § 1030(a)(2)(c);

b. knowingly (and with intent to defraud) accesses a protected computer without 

authorization, or exceeds authorized access, and obtains anything of value, 18 

U.S.C. § 1030(a)(4);

c. intentionally accesses a protected computer without authorization, and as a result 

of such conduct, recklessly causes damage, 18 U.S.C. § 1030(a)(5)(B); or,

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d. intentionally accesses a protected computer without authorization, and as a result 

of such conduct, recklessly causes damage, 18 U.S.C. § 1030(a)(5)(B); or

e. intentionally accesses a protected computer without authorization, and as a result 

of such conduct, causes damage or loss, 18 U.S.C. § 1030(a)(5)(C).

See also Frisco, 147 F. Supp. at 658-659; eBay Inc. v. Digital Point Solutions, Inc., 608 F. Supp. 

2d 1156, 1163-64 (N.D. Cal. 2009).

a. Saenz Accessed A Computer in Violation of the CFAA

98. Once Saenz parted ways with ZroBlack, he was no longer authorized to access the 

laptop owned by ZroBlack; his authorization was revoked. Nonetheless, he has continued to use 

the laptop, despite being asked to return the computer several times. See Exhibit 22 and Exhibit 

23. Thus, not only did Saenz not have authorization to access the computer, he knew he did not 

have authorization to access the computer. Defendant Saenz has intentionally accessed a computer 

without authorization or exceeded authorized access and thereby obtained information from a 

protected computer. That information was ZroBlack’s proprietary information, including its code. 

Saenz’ theft and withholding of the computer violates 28 U.S.C. § 1030(a)(2)(c). That conduct 

also violates 18 U.S.C. § 1030(a)(4) because Saenz intended to defraud.

99. Saenz also intentionally accessed ZroBlack’s domain on GoDaddy and deleted 

ZroBlack’s webpage and email server. The domain, including the webpage and email server, were 

the property of ZroBlack. Saenz held the domain as nominee of ZroBlack. Once ZroBlack and 

Saenz parted ways, Saenz’s authorization to hold the domain as ZroBlack’s nominee was no longer 

authorized and he was required to hand over all access rights to ZroBlack. Because he no longer 

had authorization to access the domain, his access and deletion of the webpage and email server 

was unauthorized and violated 18 U.S.C. § 1030(a)(2)(c). His unauthorized access to the domain 

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also violated 18 U.S.C. § 1030(a)(5)(B) and 18 U.S.C. § 1030(a)(5)(C) because it caused damage 

when he deleted the webpage and email server.

b. Loss Aggregating More than $5,000

100. After execution of the Release and Consent, Saenz was required to return 

ZroBlack’s property to it upon request. Saenz refused to return the laptop and proprietary 

information and refused to release ZroBlack’s domain name. ZroBlack retained counsel (the Gun, 

Lee law firm) to obtain return of the computer, data, and domain name. ZroBlack spent in excess 

of $5,000 in attorney’s fees in attempting to resolve the issues between Saenz and ZroBlack and 

obtain the return of the computer, data, and domain to ZroBlack. See Exhibit 25. ZroBlack also 

spent more than $5,000 trying to resolve the problems caused by the loss of data.

F. Likelihood of Success on the Merits – Anti-Cybersquatting Consumer Protection 

Act

101. In order to prevail on an ACPA claim, Plaintiff must show that (1) its mark is a 

distinctive mark or famous mark entitled to protection; (2) the domain names are identical or 

confusingly similar to Plaintiff’s mark; and (3) the defendant uses the domain name with bad faith 

intent to profit from them. 15 U.S.C. § 1125(d)(1)(A); See Southern Co. v. Dauben Inc., 324 Fed.

Appx. 309, 314 (5th Cir. 2009). The ACPA authorizes a court to order the forfeiture or cancellation 

of a domain name or the transfer of a domain name to the owner of a mark in any civil action 

brought under the Act. 15 U.S.C. § 1125(d)(1)(C).

a. The ZroBlack Name is Distinctive, Entitling It to Protection

102. ZroBlack is entitled to common law trademark protection under the § 43(a) Lanham 

Act. 15 U.S.C. 1125(a). Trademarks are normally assigned to ‘categories of generally increasing 

distinctiveness’: (1) generic, (2) descriptive, (3) suggestive, (4) arbitrary, or (5) fanciful.’” Two 

Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768 (1992). “The latter three categories of marks, 

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because their intrinsic nature serves to identify a particular source of a product, are deemed

inherently distinctive and are entitled to protection.” Id.; see also Am. Auto. Ass’n (Inc.) v. AAA 

Ins. Agency, Inc., 618 F. Supp. 787, 792 (W.D. Tex. 1985) (“[A]n arbitrary or fanciful mark, as 

the name suggests, is one which neither describes nor suggests the nature of the product or service 

with which it is used. An arbitrary or fanciful mark is considered inherently distinctive and is 

entitled to the greatest degree of protection.”). The word “ZroBlack” bears no relation to the 

product or service it identifies. Because it is inherently distinctive, it meets the first requirement 

under the ACPA for protection.

103. Alternatively, in determining whether a mark is distinctive under the ACPA, a court 

may consider (1) the degree of inherent or acquired distinctiveness of the mark; (2) the duration 

and extent of use of the mark; (3) the duration and extent of advertising and publicity of the mark; 

(4) the geographical extent of the area in which the mark is used; (5) the channels of trade for 

which the goods or services with which the mark is used; (6) the degree of recognition of the mark 

in the trading areas and channels of trade used by the mark's owner and the person against whom 

the injunction is sought; (7) the nature and extent of use of the same or similar marks by third 

parties; and (8) whether the mark is registered. 15 U.S.C. § 1125(c)(1); see Shields v. Zuccarini, 

2001 WL 671607, *3 (3d Cir.2000); Sporty's Farm L.L.C. v. Sportman's Market, Inc., 202 F.3d 

489, 497 n. 10 (2d Cir.2000).

104. In this case, the mark is arbitrary or distinctive. This factor weighs heavily in favor 

or ZroBlack. It has been in use for a little over a year. This factor weighs in favor of ZroBlack. 

Although it has not received much advertising or promotion, it is known, particularly to ZroBlack’s

Foreign Customer. This factor weighs slightly in favor of ZroBlack. The mark has been used in 

Texas, in parts of the United States, and in Finland. This factor weighs in favor of ZroBlack. The 

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mark has some recognition in the areas of trade used by ZroBlack; namely, ZroBlack’s Foreign 

Customer recognizes the mark. This factor weighs slightly in favor of ZroBlack. No third parties 

use the same or a similar mark. This factor weighs heavily in favor of ZroBlack. Finally, the mark 

is not registered, but is entitled to protection under sec. 43(a) of the Lanham Act. This is only 

factor that is neutral or weighs against ZroBlack. Here again, under this framework, ZroBlack 

meets the test for distinctiveness and thus the first element under the ACPA.

b. The Domain Name is Identical or Confusingly Similar to ZroBlack’s Mark

105. The name of Plaintiff is ZroBlack, LLC. The domain name Saenz holds is 

www.zroblack.com. The domain is identical or confusingly similar to ZroBlack’s mark. ZroBlack

has met the second prong for protection under the ACPA.

c. Saenz is Using the Domain Name in a Bad Faith Attempt to Profit Therefrom

106. Saenz is holding, and continues to hold, the domain name in a bad faith attempt to 

profit therefrom. He has demanded $7,000 from ZroBlack for the domain. See Exhibit 1. Courts 

have held that intent to sell a domain name to the rightful owner of a mark is a bad faith attempt 

to profit from the registration. E. & H. Gallo Winery v. Spider Webs Ltd., 286 F.3d 270, 275-276

(5th Cir. 2002) (citing Panavision Intern., L.P. v. Toeppen, 141 F.3d 1316, 1325 (9th CIR. 1998)).

Here, Saenz offered to sell the domain back to ZroBlack for $7,000.

107. The Court may also consider nine nonexclusive factors to determine whether the 

Defendant acted in bad faith. Emerald City Mgmt., LLC v. Khan, No. 4:14-cv-358, 2016 WL 98751

*13 (E.D. Tex. Jan. 8, 2016). Those nonexclusive factors include, (1) the trademark or other 

intellectual property rights of the person, if any, in the domain name, (2) the extent to which the 

domain name consists of the legal name of the person or a name that is otherwise commonly used 

to identify that person, (3) the person's prior use, if any, of the domain name in connection with 

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the bona fide offering of any goods or services, (4) the person's bona fide noncommercial or fair 

use of the mark in a site accessible under the domain name, (5) the person's intent to divert 

consumers from the mark owner's online location to a site accessible under the domain name that 

could harm the goodwill represented by the mark, either for commercial gain or with the intent to 

tarnish or disparage the mark, by creating a likelihood of confusion as to the source, sponsorship, 

affiliation, or endorsement of the site, (6) the person's offer to transfer, sell, or otherwise assign the 

domain name to the mark owner or any third party for financial gain without having used, or having 

an intent to use, the domain name in the bona fide offering of any goods or services, or the person's 

prior conduct indicating a pattern of such conduct, (7) the person's provision of material and 

misleading false contact information when applying for the registration of the domain name, the 

person's intentional failure to maintain accurate contact information, or the person's prior conduct 

indicating a pattern of such conduct, (8) the person's registration or acquisition of multiple domain 

names which the person knows are identical or confusingly similar to marks of others that are 

distinctive at the time of registration of such domain names, or dilutive of famous marks of others 

that are famous at the time of registration of such domain names, without regard to the goods or 

services of the parties, and, (9) the extent to which the mark incorporated in the person's domain 

name registration is or is not distinctive and famous within the meaning of subsection (c). 15 

U.S.C. § 1125(d)(1)(B)(i); Emerald City, 2016 WL 98571 at * 13.

108. “The first four [factors] suggest circumstances that may tend to indicate an absence 

of bad-faith intent to profit from the goodwill of a mark, and the others suggest circumstances that 

may tend to indicate that such bad-faith intent exists.” Id. (citing Lamparello v. Falwell, 420 F.3d 

309, 319 (4th Cir. 2005). “In addressing these factors, a court is to consider the totality of the 

circumstances and ‘not simply count up which party has more factors in its favor after the evidence 

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is in.’” Id. “Because the factors are merely permissive, the court need not consider all factors in 

every case.” Id. 

109. The most important grounds, however, for determining bad faith “‘are the unique 

circumstances of th[e] case, which do not fit neatly into the specific factors enumerated by 

Congress, buy which may nonetheless be considered under the statute. Texas Intern. Property 

Associates v. Hoerbiger Holding AG, 642 F. Supp. 2d 582, 589-590 (N.D. Tex. 2009) (citing 

Virtual Works, Inc. v. Volkswagen of America, Inc., 238 F.3d 264, 268 (4th Cir.2001)). “Describing 

the analysis another way, other courts have emphasized that a bad faith determination under ACPA 

should be made with regard to the totality of the circumstances. Id. (citing Virtual Works, 238 F.3d 

at 270).

110. Turning to each of the 15 U.S.C. § 1125(d)(1)(B)(i) factors, it is apparent that 

Defendant Saenz maintains control and use of the ZroBlack website with a bad faith intent. Saenz 

does not have any the trademark or other intellectual property rights in the domain name. The 

“ZroBlack” name is a distinctive identifier for the products and services ZroBlack provides. After 

his termination, Saenz intended to divert consumers from ZroBlack’s online location to a site 

accessible under the domain name that could harm the goodwill represented by the mark, either 

for commercial gain or with the intent to tarnish or disparage the mark, by creating a likelihood of 

confusion as to the source, sponsorship, affiliation, or endorsement of the site. Saenz intentionally

failed to maintain accurate contact information.

G. Irreparable Harm

111. To successfully obtain injunctive relief, a plaintiff must show that it is likely to 

suffer irreparable injury, for which there is no adequate remedy at law. Daniel Health Scis., LLC 

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v. Vascular Scis., LLC, 710 F.3d 579, 585 (5th Cir. 2013). State law determines whether harm is 

irreparable. Heil Trailer Intern. Co. v. Kula, 542 Fed. Appx. 329, 336 (5th Cir. 2013).2

112. Generally, irreparable injury is one that cannot be undone by monetary damages or 

one for which monetary damages would be “especially difficult to calculate.” Id. However, when 

a defendant is in possession of trade secrets and in a position to use them, state courts have 

presumed irreparable harm will result absent injunctive relief. Id. As observed by the Fifth Circuit 

in Heil Trailer, Texas courts have frequently found irreparable harm in such cases, further noting 

that the Fifth Circuit itself had upheld similar findings by federal district courts. Id. at 336 (and 

cases cited therein).

113. Even without a presumption of irreparable harm, ZroBlack has nonetheless 

demonstrated irreparable harm. The evidence shows:

a. After ZroBlack executed an NDA with its Foreign Customer (and after execution 

of the PSA) Saenz nonetheless attempted to shop the technology to others. Saenz

also threatened to do so despite the fact ZroBlack had signed an NDA. Furthermore, 

Saenz has repeatedly refused to return the computer on which a copy of the code is 

stored. Under these circumstances ZroBlack has demonstrated that use or 

disclosure of the trade secrets is threatened and do irreparable injury to ZroBlack.

b. Saenz has refused to return the domain for ZroBlack’s webpage and email server

to ZroBlack despite repeated requests that he do so. Saenz deleted the webpage and 

email server, destroying valuable ZroBlack records. Finally, Saenz attempted to 

2 This rule is generally applied in state law diversity cases. However, where a federal court is analyzing state law 

under a pendant jurisdiction claim, the same principle applies. Here, however, the Court is presented with a horse 

of a slightly different color—the inclusion of a federal trade secrets misappropriation claim. Nonetheless, because 

the reasoning behind state law decisions on irreparable harm is equally compelling under the Defend Trade Secrets 

Act, Plaintiff respectfully suggests that the same rule should apply to injunctive relief sought under the Defend 

Trade Secrets Act.

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extort money from ZroBlack by offering to “sell” the domain back to ZroBlack for 

$7,000.

H. No Adequate Remedy at Law

114. The injury cannot be prevented or fully rectified by a final judgment following a 

trial, nor can Plaintiff be adequately compensated by damages. The inability of ZroBlack to access 

its laptop that contains its trade secrets and emails from its Foreign Customer and potential

customers will continue to cause ZroBlack to lose potential contracts and cause continuing injury 

to ZroBlack’s goodwill and reputation, for which ZroBlack has no adequate remedy at law. While 

the product and contracts do have monetary value, the painstaking process undertaken by Plaintiff 

in the development and an award of monetary damages alone cannot fully compensate ZroBlack 

for its injuries and ZroBlack’s lack an adequate remedy at law.

I. Balance of Hardships Favors an Injunction

115. ZroBlack has lost its webpage and email server while Saenz holds the domain 

hostage. ZroBlack has lost the use of the laptop appropriated by Saenz. ZroBlack also faces the 

risk that Saenz will use or disclose ZroBlack’s trade secrets and confidential information.

116. For his part, Saenz will only be required to return to ZroBlack that to which Saenz 

has no legal right or interest, and to release the domain name. The injury that ZroBlack will suffer 

and has suffered outweighs any damage that will potentially be done to Defendant Saenz. 

Additionally, Enjoining the Defendant from withholding ZroBlack’s laptop, email server, and 

website, and requiring him to release it to ZroBlack does not deprive Defendant of any legal 

remedy should he prevail in this lawsuit. Furthermore, the balance of hardships cannot be used by 

a party guilty of intentional wrong. Zelios, 568 S.W. 2d at 175. (internal citations omitted). 

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117. If an injunction is not granted, ZroBlack will continue to suffer from the inability 

to access its domain and reestablish its webpage. ZroBlack will also be prevented from trying to 

recover deleted emails.

118. The balance of hardships clearly favors Plaintiff’s position. Plaintiff will not only 

suffer monetary damages, but also damages to its business and reputation.

J. Public Interest

119. The public interest weighs heavily in favor of issuance of an injunction. It is in the 

interest of public policy to prohibit the sale and use of products that were derived from the 

improper misappropriation of trade secrets. Aspen Technology, Inc. v. M3 Technology, Inc., 569 

Fed. Appx. 259, 273 (5th Cir. 2014). A preliminary injunction serves the public interest by 

depriving Defendants of the benefit of the misappropriated trade secret and enforces better 

business ethics by depriving the wrongdoers of the benefit of their wrongdoing. AHS Staffing, LLC 

v. Quest Staffing Group, Inc., 335 F. Supp. 3d 856, 874 (E.D. Tex. 2018). Thus, granting the 

temporary restraining order and temporary and permanent injunction would not adversely affect 

the public interest.

K. Bond

120. No bond should be required because the injunction ZroBlack’s seeks would only 

require Seanz to return what does not belong to him. However, should a bond be required, 

ZroBlack respectfully suggests it should be equal to the value of the laptop computer, 

approximately $2,700.00. 

Case 5:20-cv-00571-OLG Document 2 Filed 05/08/20 Page 43 of 45
Plaintiffs’ Application for Seizure Page 44 of 45

And Preliminary Injunction and Injunctive Relief

L. Relief Requested

121. For the foregoing reasons, the Plaintiffs request the court to order the following:

a. Seizure of the laptop computer identified above or, alternatively, enter a temporary 

restraining order, preliminary injunction, and permanent injunction ordering 

Defendant John Saenz to return to laptop computer and trade secrets thereon;

b. A temporary restraining order and preliminary injunction ordering Defendant John 

Saenz to release to and assign the ZroBlack domain to ZroBlack, LLC, including 

the email server and webpage;

c. A temporary restraining order and preliminary injunction ordering Defendant John 

Saenz to return any trade secret and confidential information in his possession, 

custody, or control that is owned by Plaintiff ZroBlack; and

d. A temporary restraining order and preliminary injunction ordering Defendant John 

Saenz not to keep, maintain, use, or disclose any software code or trade secret

belonging to ZroBlack.

V. PRAYER

122. WHEREFORE, Plaintiffs pray that Plaintiffs be granted the relief requested herein, 

and all such other relief to which they may show themselves justly entitled at law or in equity. 

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Case 5:20-cv-00571-OLG Document 2 Filed 05/08/20 Page 44 of 45
Plaintiffs’ Application for Seizure Page 45 of 45

And Preliminary Injunction and Injunctive Relief

Respectfully submitted,

THE VETHAN LAW FIRM, PC

By: /s/ Charles M. R. Vethan

Charles M. R. Vethan 

Attorney-in-Charge

Texas Bar No. 00791852

Steven A. Costello

Texas Bar No. 24062677

Two Memorial City Plaza

820 Gessner, Suite 1510

Houston, Texas 77024

Tel: (713) 526-2222

Fax: (713) 526-2230

Email: edocs@vwtexlaw.com

Joseph L. Lanza

Texas Bar No, 00784447

VETHAN LAW FIRM – SAN ANTONIO

11459 Huebner, Suite 101

San Antonio, Texas 78230

Tel: (210) 824-2220

Fax: (713) 526-2230

Email: edocs@vwtexlaw.com

Attorneys for Plaintiffs

Case 5:20-cv-00571-OLG Document 2 Filed 05/08/20 Page 45 of 45