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PATRICK PREMO (CSB No. 184915) ppremo@fcnwick.com DAN KO OBUHANYCH (CSB No. 255160) dobuhanych@fenwick.com FENWICK & WEST LLP Silicon Valley Center 80 1 California Street Mountain View, CA 94041 Telephone: 650.988.8500 Facsimile: 650.938.5200 MICHAEL A. FARBSTEIN (CSB No. 107030) maf@farbstein.com FARB STEIN & BLACKMAN, APC 411 Borel Avenue, Suite 425 San Mateo, CA 94402 Telephone: 650.554.6200 Facsimile: 650.554.6240 Attorneys for Defendants ENSUANT, INC., PUNEET ARORA, BASANTH GOWDA and NELSON PETRACEK SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA TIBCO SOFTWARE, INC., a Delaware Corporation, Plaintiff,
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Case No.: 1-10-CV-174346

ANSWER TO UNV.: RIFrED SECOND AMENDED COMPLAINT

ENSUANT, INC., a California Corporation, PUNEET ARORA, an Individual, NELSON PETRACEK, an Individual, BASANTH GOWDA, an Individual, and DOES 1 through 100, inclusive, Defendants, ENSUANT, INC., a California Corporation, PUNEET ARORA, an Individual, NELSON PETRACEK, an Individual, BASANTH GOWDA, an Individual, Cross-Complainants
v.

Second Amend. CompoFiled: July 25,2011

nBCO SOFTWARE, INC., a Delaware Corporation, and DOES 1 through 100, inclusive Cross-Defendants.
ANSWER TO UNVERIfiED SECOND AMENDED COMP LAINT

No.:

1-I O-CV-1 74346

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F ENWICK & W EST LLP
ATTORNEYS AT LAW 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. 1
ANSWER TO UNVERIFIED SECOND AMENDED COMPLAINT CASE NO.: 1-10-CV-174346

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F ENWICK & W EST LLP
ATTORNEYS AT LAW 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. 2
ANSWER TO UNVERIFIED SECOND AMENDED COMPLAINT CASE NO.: 1-10-CV-174346

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F ENWICK & W EST LLP
ATTORNEYS AT LAW 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. 3
ANSWER TO UNVERIFIED SECOND AMENDED COMPLAINT CASE NO.: 1-10-CV-174346

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F ENWICK & W EST LLP
ATTORNEYS AT LAW 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. /// /// /// /// 4
ANSWER TO UNVERIFIED SECOND AMENDED COMPLAINT CASE NO.: 1-10-CV-174346

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F ENWICK & W EST LLP
ATTORNEYS AT LAW 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. 5
ANSWER TO UNVERIFIED SECOND AMENDED COMPLAINT CASE NO.: 1-10-CV-174346

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WHEREFORE, Defendants respectfully request that the Court enter judgment as follows: 2 3 4 5 6 7 8 9 10
II

A. That Plaintiff takes nothing by reason of its Second Amended Complaint and that judgment is rendered in favor of Defendants; B. That Defendants are awarded their costs of suit incurred in defense of this action including reasonable attorneys' fees, according to proof at trial; and C. For such other and further relief as the Court may deem just and proper.

Dated: August 26, 2011

FENWICK & WEST LLP

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Attorneys for Defendants ENSUANT, INC., PUNEET ARORA, BASANTH GOWDA and NELSON PETRACEK

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ANSWER TO UNVERIFIED SECOND AMENDED COM PLAINT

CASE No.: J-IO-CY-174346