An incoming preliminary injunction against Automattic & Matt Mullenweg
Assorted thoughts about, and takeaways from, the hearing for a preliminary injunction on November 26, 2024.
There are quite a few takeaways from the hearing for a preliminary injunction yesterday, November 26, between WP Engine and Automattic / Matt Mullenweg, but I think the biggest one is this: it’s hard to overstate what a high-quality judge Araceli Martínez-Olguín appears to be. That is, naturally, my personal, not legal take, as I am not a lawyer, but I think it’s a fair one given what I observed.
I joined the stream quite early, before any of the scheduled conferences or hearings had started, as I wanted to hear how Judge Martínez-Olguín (“AMO”, going forward) reasoned and worked with all parties. There were four cases on her docket for the day—I’ll do a run down of the other three at the end of this post—and in each one, Judge AMO came well-prepared, was able to adjust her temperament and tone to meet the specific situation, and was curious and willing to listen, knowing her blind spots. Those three things are not only what you want from a judge, but what you want from any leader. Whomever you are, and wherever you work, it’s worth thinking about leaders broadly, in terms those of us outside of the legal industry can understand.
Imagine working for a CEO (or any leader), who regularly jumps from meeting to meeting—necessarily so—with different divisions on varied topics. Today, she’s meeting with you and your team, hoping to help resolve an internal dispute and make a final decision. Your CEO arrives to the meeting grumpy—she just met with another team and was very unhappy with them, and now she’s taking it out on you. She also didn’t read the overview or other documents you shared ahead of time, so has little context. As you’re explaining things to her, it’s clear that not only doesn’t she fully grasp the situation, but she’s unwilling to truly listen and learn. In turn, she ends up making a rash decision.
That situation—which I’ve personally been in before—really sucks, and is quite demoralizing for everyone. It’s also quite common, as C-suite executives start to lose the thread over time.
That is not what we saw yesterday. Instead, Judge AMO came to each session with a strong understanding of the cases and the players involved, changed her temperament to meet those cases, and asked questions when she needed more information instead of assuming she had all of the information, or understood it all correctly.
If there’s one single takeaway from yesterday’s hearing, it should be that, from all appearances, we’ve hit the judge jackpot—she is a solid judge and will make rational and reasonable decisions. This is key, as Judge AMO will be the assigned judge on this case well into the future, over the months and years to come. I’m certain I will not, personally, agree with all of her decisions—that’s okay, she’s working in the best interests of the law and country, which will not always align with what I want or believe.
But, there isn’t only one single takeaway. Let’s run through what else happened.
A preliminary injunction
Early on, the judge seemed to be interested in issuing a preliminary injunction. In asking WP Engine’s attorney for their “best argument” on that aspect of the Winter test[1], the judge came in quite soft, seemingly interested in solidifying her opinion that a preliminary injunction should be issued.
A bit over midway through the hearing, while WP Engine’s lawyers explained the more technical aspects, Judge AMO explicitly stated her intentions. Quoting from the unofficial transcript I posted (emphasis mine):
Having reviewed everything, I am inclined to grant some sort of injunction. Here’s the problem that I have with your proposed injunction, though: this is a nonstarter because it is exceedingly vague. So to the extent that you all, to the extent that I conclude that you are likely to succeed on the merits of any of your claims, this isn’t particularly narrowly tailored. It’s really broad, and in the grand scheme, I couldn’t enforce this if you tried to seek enforcement of it. This isn’t specific enough for me to do it.
So here’s my question to both sides. Is there any interest in you all trying to narrow this together, or do you just want to see what I produce?
(Note that the “this” refers directly to the proposed preliminary injunction order, which the judge held up while she was speaking.)
Once it was clear that a preliminary injunction would be issued, the question from the judge was: “what will it look like?” The proposed order, drafted by WP Engine, is certainly quite broad.
Mike Dunford (QuestAuthority on Twitch and Bluesky)—who, without his knowledge or consent, I have unofficially named the WordPress community’s legal sage—was able to join the hearing virtually and live streamed a few hours afterwards, outlining this thoughts.[2] As Dunford noted on the live stream, when a judge wants to act in your favour, the only correct response is the one Rachel Kassabian, WP Engine’s lead attorney, offered: “Absolutely.”
Given the technical complexity of this case, the judge recognizes that she is not the best person to draft the order for a preliminary injunction—it’s better if the two parties (WP Engine and Automattic) draft one together, that the judge can modify or sign as-is.
To be clear, I do not believe this will happen. I find it incredibly unlikely that Automattic will negotiate in good faith to draft a reasonable preliminary injunction, given what we’ve seen from them over the past ~2 months. However, the two sides agreed on the following schedule:
- Wednesday, November 27, EOD: WP Engine’s attorneys will deliver a drafted, more specific order for preliminary injunction to Automattic’s attorneys.
- November 28 through December 2: WP Engine and Automattic’s attorneys will “meet and confer” on the draft and make changes, hopefully coming to agreement.
- Monday, December 2, EOD: WP Engine and Automattic’s attorneys will deliver a final, joint draft to the court, or “dueling” drafts, one from each party, for the judge to consider.
Assuming dueling drafts, I would still expect the judge to make a final decision sometime next week, and issue a preliminary injunction before the week is over.
No further acts (for now)
As discussion of the preliminary injunction wound down, WP Engine’s lawyer pushed on the idea that they would request “no further acts of wrongdoing,” between now and when the proposed order is due (Monday EOD). Naturally, Automattic’s lawyer pushed back.[3]
Kassabian: That is fine, Your Honor. And I would just hope and ask that no further acts of wrongdoing occur between now and Monday so that the parties can have this time to put their proposed orders together. Otherwise, our proposed order list is going to grow longer. That would be my sincere hope that both sides, in particular, defendants will honor the court’s ruling from the bench and allow the lawyers to sort this out by Monday.
Shaw: And Your Honor, I think I’ve addressed that point. I think there’s a fundamental difference between the parties as to what is competition and what is unlawful conduct.
Judge: I get that. So let me ask you, Ms. Shaw, because I think in part what I hear in part what I’m hearing from plaintiffs counsel is a request that between now and Monday you get… We essentially… I think I’m sure this is not exactly what you’re saying, Ms. Kassabian, but it seems to, it strikes me at this moment as the best thing, which is given the holiday weekend and given that that’s why we’re extending this, presumably the idea is that as of today, it’s status quo as of today until at least Monday, so that even so the competition holds off until at least Monday until we figure out how what status quo to what that looks like come.
Judge: Is that still November, December? That’s December already. December 2nd. So I think the idea is do you try and maintain status quo from now until Monday?
Shaw: Understood, Your Honor.
Kassabian: That’s right. Thank you, Your Honor. We certainly wouldn’t want the extension to be taken advantage of in any way.
(More about “competition” in a section below.)
Time will soon tell if this is honoured, but the judge was clear that the current “status quo” should be maintained between now and Monday as, if not for the holiday, we would likely see a preliminary injunction as quickly as today. Mullenweg, in particular, has not been keen on holding back his words or actions.
A few, light slaps
Judge AMO is a relatively new judge—she received her judicial commission on March 3, 2023, having been nominated by President Biden on August 1, 2022. Every judge operates in their own way—we’re all human after all—and Judge AMO is no different. However, because she’s relatively new, lawyers aren’t yet certain how to operate in her court, and need to find their bearings. In the context of WP Engine v Automattic, this resulted in a few, light “slaps”, setting the lawyers straight on the process the judge wants followed.
Early on, while the judge was asking WP Engine’s counsel to outline their best argument, she turned her attention to actions that happened outside of court, and outside of the official record. Dunford, in his aforementioned live stream, made a best guess as to what transpired. It’s very “inside baseball” but, effectively, Automattic’s counsel had raised an objection directly with the courtroom deputy, and not with the judge. The exchange is quite a good one (my emphasis added):
Judge: I was going to leave this for as a housekeeping matter, but let me actually say this right now, just because it’s worthwhile. Objections are never to be sent to my courtroom deputy. My courtroom deputy does not resolve objections. You all do not raise objections to her. You want to make objections? You make them to me. You don’t take her time on things like that. You are not alone in having done this, I just feel the need to now scold every counsel that does it because, invariably, to the extent that she is an extension of me, you all should treat her with more respect. To the extent that she is not an extension of me and cannot resolve your disputes for you: stop. This isn’t y’all—this was someone else last week. But truly, I’ve seen the e-mail exchanges on which they either have forgotten she’s there or then try to couch it in better terms because she’s there for the court. No.
Shaw: My apologies, your Honor. Understood.
(Anna Shaw is the attorney who represented Automattic and Matt Mullenweg at the hearing.)
Later in the hearing, as WP Engine’s counsel was outlining more of their argument, they started to bring in information that was not part of their submissions, specifically referencing Mullenweg’s speech in Mexico City on November 9. The judge, correctly, pushed back and had counsel move on.
Kassabian: Mr. Mullenweg gave a speech on November 9th in Mexico City, after briefing on this matter had closed, where he claimed, “oh, those other, you know, hosting providers, they're not saying ‘managed WordPress.’ They're not saying ‘hosted WordPress.’ Only WP Engine is.” And that is false. You can visit the websites.
Judge: It’s also not in front of me because it’s after the briefing in this matter closed. So, keep it moving.
To be clear, any actions that happen after briefings are filed cannot be considered within the hearing. In this instance, the judge firmly, but politely, reminded counsel of this and kept things moving. This was never going to be a “big deal”, but it’s good to see Judge AMO establishing the bounds on both sides.
After it was clear that a preliminary injunction was likely to be issued, WP Engine’s lawyer pushed on the fact that Automattic’s team had not raised any issue with the proposed order, which they should have done in their filings. The judge shut that down, almost immediately.
Kassabian: Your Honor, I’ll just point out that defendants did not take any issue with our proposed order. Obviously, they did not file objections. They did not file their own competing proposed order.
Judge: I do, though.
Kassabian: I understand.
Finally, Judge AMO has made it clear that she is a “stickler for the rules.” In an exchange about the filing of the amended complaint from WP Engine:
Judge: One final housekeeping matter. So and I’ve now lost my notes, but it's this. I did note that and I believe that it was also flagged again by defense counsel, which is that the complaint was late. So I just want to… it was filed three hours late.
Kassabian: The amended complaint?
Judge: The amended complaint was filed three hours late. So here’s the part I just want to make sure that that you understand: I tend to be a stickler for the rules, so that’s your freebie this time. Things filed late, things that don’t comport with the rules. I won't accept them. And you’ll start to see things stricken from the record.
Kassabian recovered quickly, and noted that there were two separate deadlines and that the Ninth Circuit court had ruled that, in these instances, they had additional time. The judge showed a keen interest to learn, and asked for the citation.[4]
Seizing this opportunity, Automattic’s attorney attempted to push on the use of footnotes in the legal briefs that WP Engine has filed. The judge clarified that footnotes are allowed[5], but will not be considered as additional arguments. (My emphasis.)
Shaw: I do appreciate you raising this issue about the rules. And I would like to flag something just because I think it’s important for both parties to be treated the same. We know in your order, you do not allow footnotes in your briefing. We have taken steps to avoid that.
Judge: I have that note as well. Well, you’ll see there's language there about… Footnotes are allowed. They’re just not allowed to be used to try and get or to put in extra argument to try and get around the page limits. And, as a matter of course, that results in usually I don’t, I just don't address arguments and footnotes if they get over long. It’s like, you didn’t put it in the body and you’re at your full length.
Automattic’s attorney pushed a bit harder at this point. In listening to it live, it felt like a stretch, like she was pushing too hard, versus letting the judge notice and call out problematic behaviour. At this stage, almost an hour in, Judge AMO was not having any of it. Automattic’s attorney suggested that WP Engine had filed their reply late:[6]
Shaw: And I would also note that their P.I. reply was late as well.
Kassabian: I don’t. That is not correct, Your Honor. We have a timestamp.
Judge: No, no, no, no, no.
If you have children, you’ve probably experienced a situation where your child tries to come up with yet another excuse to something. You aren’t having it. What do you say? “No. No, no, no, no, no, no, no.” It shuts down the conversation, and they stop complaining. Let’s hope Judge AMO does not need to treat counsel like children for the entirety of this case.
Sub-licenses, plural
Early in the saga that started on September 20, we heard that Newfold Digital has a sub-license to use the WordPress trademark in specific ways. Prior to this, the broader community did not have an understanding of how the WordPress trademarks were licensed or available to be used. Yes, there existed (and still exists) a trademark policy on the WordPress Foundation’s website, but the details were unclear.
Yesterday, we heard something new (my emphasis):
Judge: Have defendants required a license agreement of any entity other than WP Engine?
Shaw: Yes, they do have sub-licenses in place for their trademarks.
Automattic’s attorney has explicitly noted that there are sub-licenses, plural. Beyond Newfold Digital, there are other entities that have sub-licensed the trademark from Automattic. Who are these entities? We do not know. Hopefully, this will come out in discovery someday, as I think part of WP Engine’s case revolves around how much other entities are paying for a trademark license.
Considering a bond, based on past invoices and costs
In a very brief exchange, Judge AMO asked Automattic’s attorney about any invoices Automattic or Mullenweg may have sent WP Engine prior to September 20.
Judge: Let me ask you one thing with respect to the bond. I did see an argument about WP Engine being in debt to defendants. I wanted to ask what invoices, if any, defendants sent to WP Engine prior to September 20th.
Shaw: There were no invoices, Your Honor.
On the call, Shaw’s face changed quite quickly, almost as if she did not even want the question to come up, much less have to answer it. In responding quickly and succinctly, Shaw did the best she could, given the hand she was dealt.
The reason the judge asked this question is to narrow down what a bond could look like, if any. Automattic has requested a significant payment from WP Engine, should the preliminary injunction be ordered. This is quite normal to request—if a company is going out of its way to take actions due to a preliminary injunction, the opposition should pay for those actions. However, at the core of this case, it’s clear that WP Engine has never paid for such actions, and that no one in the community has. In asking this question, Judge AMO was pushing on the “bond” button, to see if Automattic had a leg to stand on. In my opinion, they do not.
Healthy competition and antitrust
During the hearing, Automattic’s lawyer also pushed on the idea of healthy competition. Judge AMO’s response is notable, given the amended complaint from WP Engine.
Shaw: Thank you, Your Honor. I'd like to make two points. The first is that we agree that the injunction and the injunctive relief as drafted is is frankly difficult to understand what's even being requested, especially the fourth relief, which is to enjoin all extortion and tortious interference. I'm not sure what that means. And I think that highlights a concern here that we as defendants have. There is a line between an unlawful act and healthy competition, and plaintiffs have seemed to be taking the position that anything that results in the migration of customers away from them is somehow an unlawful act, which is simply not the case in this instance.
Shaw: And so, you know, we are happy to meet and confer and try to reach some resolution. But I hope this court can appreciate the importance of any resolution respecting that line between healthy competition and unlawful activity.
Judge: I have a five week antitrust trial in the new year. So that was the pretrial conference yesterday. I've already started well down the path of anti-competitive, of cognizing and thinking about anti-competitive conduct. We want competitive. I get that. We want competition.
Within WP Engine’s amended complaint, they have explicitly called WordPress a monopoly (along with three other “monopolies”), and are accusing Automattic and Mullenweg of unfair competition on antitrust grounds under the Sherman Act. It is both interesting and refreshing to know that Judge AMO has an upcoming antitrust trial, as it will help prepare her for making effective and balanced decisions on antitrust claims.
Did Mullenweg break the law yesterday?
Outside of Automattic’s General Counsel, Jordan Hinkes, no employees of either company were present in the courtroom, as best as I could tell.[7] This is not uncommon. At trial, however, we expect to see all parties present, from both companies and Mullenweg individually as he is a named party. The Zoom room, in turn, had a cap of 100 participants, and many people were unable to get in.
According to a viewer of Dunford’s livestream yesterday, over on the Post Status Slack,[8] Mullenweg said the following:
kudos to [name redacted], I guess y’all were the reason I couldn’t get on the Zoom! We were able to set up a re-stream internally so I got to watch everything. It was awesome to see the legal system functioning, makes you really appreciate how important it is to our democracy and free society. 🤠
In re-streaming, Mullenweg may have broken the court rules which, for Zoom video conferences, explicitly prohibit recording or rebroadcasting of court proceedings (my emphasis):
PLEASE NOTE: Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings (including those held by telephone or videoconference). […] Any recording of a court proceeding held by video or teleconference, including “screen-shots” or other visual copying of a hearing, is absolutely prohibited. Violation of these prohibitions may result in sanctions, including removal of court-issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the court.
In a separate email sent directly to me, Mullenweg offered (my emphasis):
If you share when your internet dropped maybe we can help you fill out the transcript for the parts you missed, I think we have our own recordings.
While I am not a lawyer, my understanding is that the transcript can be requested from the court,[9] but I was not aware that a recording was available.
Mullenweg must have been unaware of the court’s restriction, or he would have not have violated the court rules. However, I would hope his counsel, both internal and external, would ensure he does not break these rules again. Dunford noted that, while judges generally look unfavourably on such actions, a first time offence would likely be met with only a stern reminder.[10]
The other cases
I won’t spend too long on the other cases on Judge AMO’s docket. For followers of the law, I’m sure there are some very interesting pieces, but nothing notable from me. That said, I’d like to highlight parts about Judge AMO, and how she interacted with the parties.
Tremblay et al v. OpenAI, Inc. et al
Second on the docket, but first up due to Zoom issues with the other case, was a “status conference” with this case. Judge AMO and the parties discussed how things were going, broadly, and specifically a request for additional time. With this case, the judge came very prepared, which turned out to be a pattern for her. There is, apparently, another related case out of the Southern District of New York, and Judge AMO noted that she had spoken with that judge and aligned with them on the case.
With the parties, Judge AMO was incredibly cordial, but also forceful, ensuring she balanced both parties requests as well as the courts needs. In this instance, the question at hand was entirely around timing, as one party wanted to extend the timeline. The judge firmly called out what sounded like a white lie from one party, then planned on next steps, which were outlined in the official record.
DFND Security, Inc. v. CrowdStrike, Inc.
This case moved to Judge AMO’s docket in May 2023. In turn, a ruling (and a possible related hearing) had been missed during the shuffle. The judge immediately said (paraphrasing): “I know why we’re here, I know why you requested this, I’m sorry this got missed, you have not been forgotten.”
Again, Judge AMO came in very, very prepared to this “case management” conference. She was also very cordial, as were both of the parties, and outlined a new plan to keep things moving.
Al-Mansur v. County of Alameda et al
The final case before WP Engine v Automattic was heard, was a bit more complex. This was, technically, a preliminary injunction hearing, as well as a hearing to respond to two other motions. What makes this case more complex is not what was at issue, but rather that one of the parties (Al-Mansur) was representing himself (“pro se”) and, thus, unfamiliar with aspects of how the court operates.
I think this case was the best example of how Judge AMO operates. Yes, she came well-prepared, having a deep understanding of the case and the aspects of the law at hand. But, she was also prepared to speak to the pro se plaintiff, in a way that was both respectful and firm.
Throughout the proceeding, Judge AMO was incredibly patient, explaining why she was denying the motion for preliminary injunction, piece by piece. She listened to the plaintiff, letting him outline his reasoning, despite knowing that it was not valid. The ending felt quite rough, not because Judge AMO was inappropriate in any way, but because the plaintiff was unhappy and did not understand the legal process or the laws at hand.
Notably, this hearing was referenced twice by counsel and the judge during the WP Engine hearing. I am not a lawyer, but I suspect lawyers are privately amused by pro se parties… when they aren’t on their cases.[11]
All in all, I was very, very impressed with Judge AMO. I had not previously listened to these kind of legal proceedings, and it was fascinating listening to her work.
The “Winter” test is a four-part “balancing” test that courts use to decide if a preliminary injunction should be issued. It’s based on a 2008 SCOTUS decision in Winter v Natural Resources Defense Council, in which the court balanced these four things: 1) the likelihood of success for a plaintiff; 2) the likelihood of “irreparable harm” (e.g. money alone cannot resolve the harm); 3) the balance of equities and hardships (e.g. how strong WP Engine’s interest in an injunction is compared to the hardship, or cost, Automattic / Matt Mullenweg would face); and 4) the public interest (e.g. the benefit to WP Engine’s users, and the broader community). ↩︎
Dunford utilized the unofficial transcript I posted, screen sharing and running through it as a way to talk through what happened in court. ↩︎
To be clear, I would expect any lawyer to push back, as they are acting in the best interests of their client. ↩︎
At the very end of the hearing, Kassabian received the citation from a colleague and provided it to the judge. For those interested, it is Ramirez v. Cnty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015), which you can read on Casetext. ↩︎
I’m not sure that I, personally, could live without footnotes. I clearly don’t have what it takes to be a lawyer. ↩︎
I have no idea what Shaw was referring to here. In looking at the order from Judge AMO, which set a new timeline for the preliminary injunction hearing, we can clearly see that Automattic had to file their opposition on or before October 30 (they did) and WP Engine had to file their reply on or before November 4. Looking in PACER, I clearly see that WP Engine filed their reply on November 4, which should not be considered late. IANAL, but calling this “late” feels like an attempt at being petty, which could only backfire… why even try? ↩︎
Certainly, no others were announced, but it’s possible that certain employees were present (e.g. if they are local to the Bay Area), but immaterial to the hearing and unannounced. ↩︎
Which, to be clear, I do not have access to. I have never been a member of the Post Status Club, nor invited to that Slack instance, though apparently a lot of fun conversations happen over there. ↩︎
Both WP Engine and Automattic requested that transcript shortly after the hearing yesterday. ↩︎
And hey, Matt, since you’re likely reading this, you now know better, even if your counsel does not explicitly inform you. ↩︎
Judge AMO explicitly called out the defendant’s attorney for being patient with the plaintiff and even supporting him through some of the process. For his part, the defendant’s attorney was completely silent at the hearing until the Judge called him out. ↩︎
