4. The TRO
In the Evergreen class action, the ex-CEO's testimony about the existence of a scheme was supplemented by plaintiff's depositions of PCEC's two expert witnesses. The class action alleged that both experts admitted under deposition that PCEC's ARO accounting was not in keeping with generally accepted accounting principles:​​​​​​​​​​​​​​​​​​​
In her dicta at a 1 Dec 2021 preliminary injunction hearing, the Honorable Judge Kuhl also took issue with PCEC's accounting:
​Later in the same hearing:​​​​​​​​​​​​
On 16 December 2021, Judge Kuhl granted plaintiffs a Temporary Restraining Order ("TRO") enjoining dissolution of the Trust. Her order recapitulated ​the accounting arguments advanced by Evergreen:​​​​​​​​​​
More important than the judge's endorsement of plaintiff's accounting arguments was the pleading standard that Evergreen had to meet in order to be granted the TRO: Judge Kuhl had to find that the moving party was likely to prevail on the merits. And she did:​
BNY was thus aware, as early as December 2021, that a court considered the Trust likely to win in a suit against PCEC. But when the Evergreen class action was eventually dismissed because it was ruled that only BNY has standing to sue PCEC, BNY declined to bring suit.