1 2 3 4 5 6 7 8 9 10 I!! I 11 (I) c '0 E 12 rJ) 0- (I) ....J 5 ....J .1;; 13 :r: al I- ~ E $! en .9- 14 Cl .t: W r! W ~ a:: -c:: 15 III a. ~ :0 ~ 16 ." ~ !i - ;!: :0 ~ 16 E ,§ « 17 18 19 20 21 22 23 24 25 26 27 28 E. Arora Resigns, Establishes Ensuant, And Immediately Begins Soliciting TIBCO Employees And Clients. 32. On July 29, 2009, after over ten years as a TIBCO employee, Arora tendered his resignation. That same day, he received a letter from TIBCO Corporate Human Resources reminding him of his obligations to TIBCO pursuant to the terms of his Employment Agreement. These obligations included a restriction on not improperly using or disclosing TIBCO's proprietary information, and not soliciting TIBCO employees for a period of one year after leaving TIBCO. Attached hereto as Exhibit B is a true and correct copy ofthis letter. 33. On October 16,2009, fewer than three months after his departure from TIBCO, Arora established Ensuant as a California corporation. The solicitation and hiring of TIBCO employees began almost immediately . 34. Nelson Petracek was the first TIBCO employee to resign and join Ensuant in the wake of Arora's departure. On December 6, 2001, TIBCO Software Canada, Inc. hired Petracek as a Senior Systems Engineer. He joined the Quantum Leap Group's Business Events team in late 2005, where he quickly rose to second-in-command after Arora. Petracek's expertise was principally in field operations, where he managed all Business Events pre-sales and post-sales representatives. He also demonstrated a strong understanding of the technical aspects of Business Events. During his tenure as a member of the Quantum Leap Group, he developed a close relationship with Arora. Petracek announced his resignation from TIBCO on December 19,2009. He joined Ensuant shortly thereafter where he serves, according to the Ensuant website, as "Co-Founder" of Ensuant, a corporation established fully two months prior to his resignation from TIBCO. Upon information' and belief, Petracek is fulfilling many of the same job responsibilities at Ensuant as he was at TIBCO. -11- US_ACTIVE·106637593.3-LMBONACH SECOND AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 ~ OJ ~ 11 OJ a; c '0 i 12 a. ~ ....I ....I .!;; 13 J: "0 I- Q) :E E .e en Q. 14 0 :c !!! w ! w 0::: "t: 15 OJ Q. ~ ~ ~ 16 ~ ~ « 17 18 19 20 21 22 23 24 25 26 27 28 35. After months of solicitation by and contact with Arora, another key Business Events team member, Basanth Gowda, left TIBeO in May 2010 in order to join Ensuant-a move Gowda had been planning for months before his actual departure. Arora emailed Gowda on multiple occasions between October 27, 2009 and April 27, 2010. On at least one occasion in April 2010, Arora arranged to meet Gowda and two other TIBeO colleagues in Atlanta. Gowda finally announced his resignation from TIBeO in an email to TIBeO colleagues on May 7, 2010. By that time, Gowda's professional relationship with Arora and Petracek had become so close that he included Arora's and Petracek's email addresses in the blind carbon copy field of that email. Immediately thereafter, Gowda began working for Ensuant. TIBeO is informed and believes and thereon alleges that, prior to his departure from TIBeO, Gowda improperly disclosed TIBeO trade secrets and/or confidential information to Arora and/or others at Ensuant. Upon information and belief, Gowda is fulfilling many of the same job responsibilities at Ensuant as he was at TIBeO. 36. Nick Leong was another Business Events team member to resign from TIBeO. He and Arora communicated via email at least once on May 12, 2010. On June 3, 2010-less than a month later-Leong announced his own resignation. TIBeO is informed and believes and thereon alleges that Arora was involved in soliciting Leong to leave TIBeO and join Ensuant, in violation of Arora's contractual obligations to TIBeo. 37. Since his resignation from TIBeO, Arora has contacted, in addition to Petracek, Gowda, and Leong, numerous other TIBeO employees. Upon information and belief, several of these contacts involved Arora's solicitation of TIBeO employees. TIBeO is further informed and believes and thereon alleges that Petracek and Gowda were involved in soliciting one or more of these and/or other TIBeO employees to leave their employment at TIBeO and join Ensuant. 38. After filing this lawsuit, TIBeO initially believed that Defendants had stopped soliciting TIBeO's employees. However, it is now apparent that Defendants are continuing to solicit TIBeO employees. TIBeO is informed and believes and thereon alleges that such TIBeO -12- US_ACTIVE-106637593.3-LMBONACH SECOND AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 i!! OJ ~ 11 " 0 '5 ~ 12 0- ~ ..J ..J .6; 13 :r: "5l I- ~ ~ en .9- 14 Cl ~ W I!! W i! cr: t:: 15 OJ a. ~ :s ~ 16 " ~ ~ « 17 18 19 20 21 22 23 24 25 26 27 28 employees are being encouraged by Defendants to breach their contractual obligations to TIBCO by disclosing and/or using TIBCO's trade secrets and/or confidential information. TIBCO is further informed and believes and thereon alleges that one or more additional TIBCO employees have left TIBCO to join Ensuant as a result of Defendants' improper solicitations. 39. TIBCO is further informed and believes and thereon alleges that, in addition to recruiting Arora's former Business Events colleagues, Defendants have been communicating with TIBCO clients in an attempt to steal them away. TIBCO is informed and believes and thereon alleges that Ensuant is now doing business with several of TIBCO's Business Events clients. TIBCO is further informed and believes and thereon alleges that Defendants are wrongfully using TIBCO's trade secrets and/or confidential information to solicit and/or work with those customers. F. Ensuant Sells Products And Services To Business Events Clients. 40. Upon information and belief, Ensuant offers both its own proprietary software products as well as related installation and consulting services. Upon information and belief, Ensuant utilizes a technology known as iNDUS-the Ensuant Applications Network, "a model driven platform that takes advantage of Moore's law and declarative languages." Upon information and belief, Ensuant also offers information technology and product strategy consulting services based on the Ensuant Application Network. These services include technology evaluations and selection, and mapping business requirements to the correct technology set. 41. TIBCO is informed and believes and thereon alleges that Defendants are using trade secrets and other confidential information misappropriated from TIBCO in connection with Ensuant's business. For example, Defendants are soliciting former TIBCO customers - customers about whom Defendants know many non-public and confidential details as a result of their employment with TIBCO. TIBCO is informed and believes and thereon alleges Defendants are wrongfully using such information to try to solicit TIBCO' s customers. F or example, TIBCO is -13- US_ACTIVE-106637593.3-LMBONACH SECOND AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 i!! j 11 " c '0 i 12 Q. ~ ...J ...J .6; 13 J: 11 I- ~ E .e en .9- 14 0 .' .. \ ....... Page 3 records and other materials in any way relating to any Confidential Infonnation without TIBCO's prior written pennission. (c) I confirm: • that I do not have in my possession Confidential Information belonging to others, and therefore will not use or disclose same to TmCO during my employment, and • that my employment will not require me to violate any obligation to or confidence with any other party, including, without limitation, any previous employers. (d) I agree to comply with any procedures that TIBCO may adopt from time to time to preserve the confidentiality of any Confidential Information. (e) I agree that the absence of any notice indicating confidentiality on any material will not imply that it is not Confidential Information. (f) Without granting any right or license, TmCO agrees that the obligations imposed by this Section 3 on me shall not apply to information which: • at the time it is received is in the public domain; • subsequently comes into the public domain through no fault of mine; • is lawfully received by me from a third party on an unrestricted basis; • is already legitimately known to me prior to disclosure; or • is required by law to be disclosed; provided, however, that I shall first have given prompt notice to TIBCO of any possible or prospective order or proceeding pursuant to which any order may result; and TIBCO shall have been afforded a reasonable opportunity to prevent or limit any such disclosure of any of the Confidential Information. 4. COMMITMENT TO DISCLOSE INVENTIONS (a) During my employment with TmCO and at any time thereafter, I will notify my immediate supervisor promptly in writing of all Inventions. (b) I agree that all Inventions shall be the sole property of TIBCO. I waive in whole any moral rights I may have in each of the Inventions and any part or parts thereof, Page 4 including but not limited to the right to the integrity of the work, the right to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous. Such agreement to waive is applicable regardless of whether the Inventions are considered works made in the course of employment or whether they are copyrightable. I will assist the Company andlor its nominees (without charge but at no expense to me) at any time and in every proper way to obtain for its andlor their own benefit, patents and copyrights for all such Inventions anywhere in the world and to enforce its andlor their rights in legal proceedings. As used herein, the term "Inventions" includes, but is not limited to, all discoveries, improvements, inventions, processes, developments, artworks, designs, know-how, data, computer programs (including source code), materials, inventions and formulae, whether patentable or unpatentable. (c) I hereby assign to TIBCO all rights and interests in all such Inventions which pertain to a business in which TIBCO is engaged, is reasonably expected to engage in, or in which it has previously expressed an intention to enter, except any Pre-Employment Inventions which I cannot assign to TIBCO because of a prior invention agreement with: --------------------------------------------------- which is effective until ________ , (d) I have set out below (if applicable) a complete list of all Pre-Employment Inventions, including numbers of all applicable registrations or pending applications in all applicable countries, and a brief description of all unpatented inventions or ideas, which I made prior to my employment by TIBCO, which are to be excluded from this Agreement. (e) Every Invention disclosed to anyone other than TIBCO within six (6) months after the termination of my employment with TIBCO will be presumed to be the property ofTIBCO,.unless it is proved that such Invention was first made or conceived after termination of my employment with TIBCO. (f) During my employment with TIBCO and at any time thereafter, I will, at the request and expense ofTIBCO, complete and return to TIBCO all documents necessary for the preparation and filing of applications covering the registration of intellectual property rights in Inventions in all countries, as well as perform all other acts which TIBCO may deem necessary or advisable for the purpose of protecting or recognizing TIBCO's rights to same. (g) I acknowledge that TIBCO from time to time may have agreements with other persons or with the Canadian government or its agencies that impose obligations or restrictions on TIBCO regarding Inventions made during the course of work under such agreements or regarding the confidential nature of such work. I agree to be ( ; . ' ~ ' : \ \ .. :::.:. Page 5 bound by all such obligations or restrictions and to take all action necessary to discharge the obligations TIDCO may have under such agreements. (h) Upon the tennination of my employment with TIBCO, I agree to surrender promptly to TIBCO all records or other evidence of any fuventions. 5. NON-COMPETITION AND NON-SOLICITATION (a) I agree that for a period of one year following the termination of my employment, regardless ofthe manner of such termination, I will not directly or indirectly solicit business from any customer or potential customer of TIBCO which was served or solicited by TIDCO within the eighteen months immediately preceding the termination in regards to goods competitive with TIBea. (b) I further agree that for a period of one year following the termination of my employment, regardless of how the termination should occur, I will not directly or indirectly hire or take away or cause to be hired or taken away any employee of TIDCO or, following the termination of employment, any employee who was in the employ of TIBCO during the six months preceding termination. (c) I acknowledge and confirm that the scope of these covenants are in all respects and particularly in respect of time and subject matter, no more than is reasonable to protect TIBCO. 6. INJUNCTIVE RELIEF (a) I understand and agree that the damages which TIBCO might suffer from my violation of any of my obligations listed in this Agreement would be difficult or impossible to measure and that TmCO is entitled to, in addition to all other remedies it may have, injunctive relief for any such violation (including interim, interlocutory and permanent injunctive relief). 7. GENERAL AGREEMENT PROVISIONS (a) Should any provision in this Agreement be determined by a court to be invalid, such provision will be severable from this Agreement and the validity of the other provisions shall not be affected since they constitute separate and distinct agreements. (,":Aim loasfonn do M01>&lUNt, A COMfYl (;ltV ltA 11 ON tJ _No inventions or improvements _Additional Sheets Attached Signature: "C-IY) • Name:._ ..... P, ..... ___ _ Date.: ___ D_3-----:.3_'_-_l.O_D_r ________ _ 04/02 Identifying Number or Brief Description 1 2 3 4 5 6 7 8 9 10 ~ '" ~ 11 '" 0 '0 j 12 c.. l ....I ....I .£ 13 J: u I- '" ~ E .E II) a. 14 0 :;: ~ w '" w " t: 0:: '" 15 a. ~ :c jg 16 u . .m ~ « 17 18 19 20 21 22 23 24 25 26 27 28 TIBCO SOFTWARE INC. v. ENSUANT, INC., et al. Santa Clara Superior Court No. Case No.: 1-10-CV-174346 PROOF OF SERVICE I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is REED SMITH LLP, 101 Second Street, Suite 1800, San Francisco, CA 94105-3659. On July 25, 2011, I served the following document(s) by the method indicated below: SECOND AMENDED COMPLAINT FOR 1. TRADE SECRETS MISAPPROPRIATION; 2. BREACH OF CONTRACT (TWO COUNTS); 3. TORTIOUS INTERFERENCE WITH CONTRACT (TWO COUNTS); AND 4. UNFAIR COMPETITION UNDER CAL. BUS. & o o II/ PROF. CODE § 17200 by transmitting via facsimile on this date from fax number + 1 415 391 8269 the document( s) listed above to the fax number(s) set forth below. The transmission was completed before 5:00 PM and was reported complete and without error. The transmission report, which is attached to this proof of service, was properly issued by the transmitting fax machine. Service by fax was made by agreement of the parties, confirmed in writing. The transmitting fax machine complies with Ca1.R.Ct 2.306. by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at San Francisco, California addressed as set forth below. I am readily familiar with the firm's practice of collection and processing of correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if the postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in this Declaration. by placing the document(s) listed above in a sealed envelope(s) and consigning it to an express mail service for guaranteed delivery on the next business day following the date of consignment to the addressees) set forth below. A copy of the consignment slip is attached to this proof of service. by transmitting via email to the parties at the email addresses listed below: Michael A. Farbstein Farbstein & Blackman A Professional Corporation 411 Borel Avenue, Suite 425 San Mateo, CA 94402 maf@farbstein.com Patrick E. Premo, Esq. Fenwick & West LLP Silicon Valley Center 801 California Street Mountain View, CA 94041-2008 PPremo@fenwick.com -1- Proof of Service e> '" ~ a; 0 '5 f;l iii 0.. ~ ~ ~ ,I; I '0 f- Ol ~ E .E en a. 0 :c i!! w Ol W r: 0:: t '" a. ~ :0 :m '0 J!l ~

Second Amended Complaint

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