One other thing has to do with the procedural posture. On a motion to dismiss, Courts are not generally supposed to evaluate facts at all. A motion to dismiss is essentially an argument by the defense that, even if all those accusations are true, they don’t amount to a legal claim.
By contrast, a preliminary injunction does look at facts. So one reason for different treatment of the Encode brief vs. the ex-employees brief is that they were submitted in response to different motions.
Strong downvoted, because this “guide” makes a lot of bold claims with zero backup.