answer to second amended complaint
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8/3/2019 Answer to Second Amended Complaint
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PATRICK PREMO (CSB No. 184915)[email protected] KO OBUHANYCH (CSB No. 255160)[email protected] & WEST LLPSilicon Valley Center801 California StreetMountain View, CA 94041Telephone: 650.988.8500Facsimile: 650.938.5200MICHAEL A. FARBSTEIN (CSB No. 107030)[email protected] STEIN & BLACKMAN, APC411 Borel Avenue, Suite 425San Mateo, CA 94402Telephone: 650.554.6200Facsimile: 650.554.6240A torneys for DefendantsENSUANT, INC., PUNEET ARORA, BASANTHGOWDA and NELSON PETRACEK
. V
SUPERIOR COURT OF THE STATE OF CALIFORNIACOUNTY OF SANTA CLARA
TIBCO SOFTWARE, INC., a DelawareCorporation,Plaintiff,
v.ENSUANT, INC., a California Corporation,PUNEET ARORA, an Individual, NELSONPETRACEK, an Individual, BASANTHGOWDA, an Individual, and DOES 1 through100 , inclusive,
Defendants,
ENSUANT, INC., a California Corporation,PUNEET ARORA, an Individual, NELSONPETRACEK, an Individual, BASANTHGOWDA, an Individual,
Cross-Complainantsv.
nBCO SOFTWARE, INC., a DelawareCorporation, and DOES 1 through 100, inclusiveCross-Defendants.
ANSWER TO UNVERIfiED SECOND AMENDED COMPLAINTCASE No.: 1-I O-CV-1 74346
Case No.: 1-10-CV-174346ANSWER TO UNV.:RIFrED SECONDAMENDED COMPLAINTSecond Amend. CompoFiled:July 25,2011
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ANSWER TO UNVERIFIED SECOND AMENDED COMPLAINT
CASE NO.: 1-10-CV-174346
FENWICK&WESTLLP
ATTORNEYSATLAW
MOUNTAIN
VIEW
Defendant Ensuant, Inc. (Ensuant), Defendant Puneet Arora (Arora), Defendant
Basanth Gowda (Gowda), and Defendant Nelson Petracek (Petracek) (hereinafter collectively
referred to as Defendants), upon knowledge as to their own conduct and conduct observed by
them, and upon information and belief as to all other matters, for their answer respond and answer
the Second Amended Complaint of Plaintiff TIBCO Software Inc. (hereinafter referred to as
Plaintiff) as follows:
GENERAL DENIAL
Answering each and every paragraph contained in the Second Amended Complaint
globally and pursuant to Section 431.30 of the California Code of Civil Procedure, Defendants,
both generally and specifically, deny each and every allegation contained in the Second Amended
Complaint and Defendants specifically deny that Plaintiff has been damaged in any way or is
entitled to any amount at all as a result of any action or failure to act by Defendants, or that
Plaintiff is entitled to any relief at all.
AFFIRMATIVE DEFENSES
For further and separate affirmative defense to each purported cause of action in the
Second Amended Complaint, Defendants allege as follows:
FIRST AFFIRMATIVE DEFENSE(Failure to State a Claim)
As a first and separate affirmative defense, and solely by way of an alternative defense,
not to be construed as an admission, Defendants allege that the Second Amended Complaint, and
each purported cause of action contained therein, fails to state a claim upon which relief can be
granted.
SECOND AFFIRMATIVE DEFENSE
(Waiver)
As a second and separate affirmative defense, and solely by way of an alternative defense,
not to be construed as an admission, Defendants are informed and believe, and on that basis
allege, that Plaintiffs claims are barred by the doctrine of waiver.
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ANSWER TO UNVERIFIED SECOND AMENDED COMPLAINT
CASE NO.: 1-10-CV-174346
FENWICK&WESTLLP
ATTORNEYSATLAW
MOUNTAIN
VIEW
THIRD AFFIRMATIVE DEFENSE
(Estoppel)
As a third and separate affirmative defense, and solely by way of an alternative defense,
not to be construed as an admission, Defendants are informed and believe, and on that basis
allege, that Plaintiffs claims are barred by the doctrine of estoppel.
FOURTH AFFIRMATIVE DEFENSE
(Laches)
As a fourth and separate affirmative defense, and solely by way of an alternative defense,
not to be construed as an admission, Defendants are informed and believe, and on that basis
allege, that Plaintiffs claims are barred by the doctrine of laches.
FIFTH AFFIRMATIVE DEFENSE
(Unclean Hands)
As a fifth and separate affirmative defense, and solely by way of an alternative defense,
not to be construed as an admission, Defendants are informed and believe, and on that basis
allege, that Plaintiffs claims are barred from recovery by the doctrine of unclean hands.
SIXTH AFFIRMATIVE DEFENSE
(Set-Off)
As a sixth and separate affirmative defense, and solely by way of an alternative defense,
not to be construed as an admission, Defendants allege that, should Plaintiff recover from
Defendants, then Defendants are entitled to a set-off of any amounts found owing against sums
owed by Plaintiff to Defendants.
SEVENTH AFFIRMATIVE DEFENSE
(Fair Competition)
As a seventh and separate affirmative defense, and solely by way of an alternative
defense, not to be construed as an admission, Defendants are informed and believe, and on that
basis allege, that Plaintiffs claims are barred because Defendants actions as alleged in the
Second Amended Complaint were and are protected by the privilege of fair competition.
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ANSWER TO UNVERIFIED SECOND AMENDED COMPLAINT
CASE NO.: 1-10-CV-174346
FENWICK&WESTLLP
ATTORNEYSATLAW
MOUNTAIN
VIEW
EIGHTH AFFIRMATIVE DEFENSE
(Justification)
As an eighth and separate affirmative defense, and solely by way of an alternative
defense, not to be construed as an admission, Defendants are informed and believe, and on that
basis allege, that Plaintiffs action is barred because Defendants acted reasonably, with
justification and in good faith, based upon all known relevant facts and circumstances.
NINTH AFFIRMATIVE DEFENSE
(Unenforceability of Contract)
As a ninth and separate affirmative defense, and solely by way of an alternative defense,
not to be construed as an admission, Defendants are informed and believe, and on that basis
allege, that Plaintiffs claims are barred because the contractual agreements alleged to be
breached in Plaintiffs Second Amended Complaint are void and unenforceable under California
law.
TENTH AFFIRMATIVE DEFENSE
(Trade Secret Privilege)
As a tenth and separate affirmative defense, and solely by way of an alternative defense,
not to be construed as an admission, Defendants allege that Plaintiff cannot recover the damages
alleged against Defendants in each cause of action in the Second Amended Complaint because
the relief sought in the Second Amended Complaint relates to the disclosure of Defendants trade
secrets and proprietary information and is privileged and therefore its disclosure is protected by
California Evidence Code Section 1060.
ELEVENTH AFFIRMATIVE DEFENSE
(Preemption Under the Uniform Trade Secret Act)
As an eleventh and separate affirmative defense, and solely by way of an alternative
defense, not to be construed as an admission, Defendants allege that Plaintiff cannot recover
damages for certain claims alleging tortious interference with contract, and unfair competition
because such claims are preempted by the Uniform Trade Secret Act.
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ANSWER TO UNVERIFIED SECOND AMENDED COMPLAINT
CASE NO.: 1-10-CV-174346
FENWICK&WESTLLP
ATTORNEYSATLAW
MOUNTAIN
VIEW
TWELFTH AFFIRMATIVE DEFENSE
(Copyright Preemption)
As a twelfth and separate affirmative defense, and solely by way of an alternative defense,
not to be construed as an admission, Defendants allege that Plaintiff cannot recover damages for
certain claims alleging trade secret misappropriation, breach of contract, tortious interference with
contract, and unfair competition because such claims are preempted by the Copyright Act.
THIRTEENTH AFFIRMATIVE DEFENSE
(Lack of Standing)
As a thirteenth and separate affirmative defense, and solely by way of an alternative
defense, not to be construed as an admission, Defendants allege that Plaintiff lacks standing to
bring certain claims alleged in the Second Cause of Action.
FOURTEENTH AFFIRMATIVE DEFENSE
(Implied License)
As a fourteenth and separate affirmative defense, and solely by way of an alternative
defense, not to be construed as an admission, Defendants allege that Plaintiff cannot recover the
damages alleged against Defendants in each cause of action in the Second Amended Complaint
because Defendants had an implied license to perform the alleged conduct.
FIFTEENTH AFFIRMATIVE DEFENSE
(Alleged Trade Secrets Properly Obtained)
As a fifteenth and separate affirmative defense, and solely by way of an alternative
defense, not to be construed as an admission, Defendants allege that Plaintiffs trade secret
misappropriation claim is barred, in whole or in part, in that Defendants obtained the alleged trade
secrets by proper means or independently developed them.
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ANSWER TO UNVERIFIED SECOND AMENDED COMPLAINT
CASE NO.: 1-10-CV-174346
FENWICK&WESTLLP
ATTORNEYSATLAW
MOUNTAIN
VIEW
SIXTEENTH AFFIRMATIVE DEFENSE
(Lack of Subject Matter Jurisdiction)
As a sixteenth and separate affirmative defense, and solely by way of an alternative
defense, not to be construed as an admission, Defendants allege that, because certain claims are
preempted by the Copyright Act, the Court lacks subject matter jurisdiction to hear these claims.
SEVENTEENTH AFFIRMATIVE DEFENSE
(Improper Venue)
As a seventeenth and separate affirmative defense, and solely by way of an alternative
defense, not to be construed as an admission, Defendants allege that venue is improper.
EIGHTEENTH AFFIRMATIVE DEFENSE
(Bad Faith Claim of Trade Secret Misappropriation)
As an eighteenth and separate affirmative defense, and solely by way of an alternative
defense, not to be construed as an admission, Defendants allege that Plaintiffs claims are
otherwise barred because Plaintiff is prosecuting its claims in bad faith and for an improper
purpose; therefore, Defendants are entitled to an award of reasonable expenses and attorneys fees
pursuant to Civil Code Section 3426.4.
NINETEENTH AFFIRMATIVE DEFENSE(Acquiescence)
As a nineteenth and separate affirmative defense, and solely by way of an alternative
defense, not to be construed as an admission, Defendants allege that Plaintiffs claims are barred
by Plaintiffs acquiescence to Defendants acts.
TWENTIETH AFFIRMATIVE DEFENSE
(Failure to Mitigate Damages)
As a twentieth and separate affirmative defense, and solely by way of an alternative
defense, not to be construed as an admission, Defendants allege that Plaintiff has failed, and
continues to fail, to act reasonably to mitigate the damages alleged in the Second Amended
Complaint.
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