Amended Cross Complaint

PATRICK PREMO (CSB No. 184915) [email protected]

2 DAN KO OBUHANYCH (CSB No. 255160) [email protected]

3 FENWICK & WEST LLP Silicon Valley Center

4 801 California Street Mountain View, CA 94041

5 Telephone: 650.988.8500 Facsimile: 650.938.5200

6 MICHAEL A. FARBSTEIN (CSB No. 107030)

7 [email protected] FARBSTEIN & BLACKMAN, APC

8 411 Borel Avenue, Suite 425 San Mateo, CA 94402

9 Telephone: 650.554.6200 Facsimile: 650.554.6240

10 Attorneys for Defendants

II ENSUANT, INC., PUNEET ARORA, BASANTH GOWDA and NELSON PETRACEK

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RECEIVED AUG 2 6 'lUll

DAVID H. YAMASAKI Chief Execu\1VO OfttC8,{CIorl< "-

$"_, Court of ~ Co{'i'3.~!.~EP'JlY ':Sf\..> •

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SANTA CLARA

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TIBCO SOFTWARE, INC., a Delaware Corporation,

Plaintiff, v.

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, 23 pUNEET ARORA, an Individual, NELSON

PETRACEK, an Individual, BASANTH 24 GOWDA, an Individual,

25 Cross-Complainants v.

26 TIBCO SOFTWARE, INC., a Delaware

27 Corporation, and DOES I through 100, inclusive

28 Cross-Defendants.

AMENDED CROSS-COMPLAINT

CASE No.: 1-lO-CV-174346

Case No.: 1-10-CV-174346

AMENDED CROSS-COMPLAINT FOR:

1) D ECLARATORY RELIEF; 2) INTENTIONAL INTERFERENCE

WITH ECONOMIC RELATIONSHIP; 3) INTENTIONAL INTERFERENCE

WITH CONTRACT; AND 4) UNFAIR COMPETITION

Second Amend. Compo Filed : July 25,2011

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28 1AMENDED CROSS-COMPLAINT CASE NO.: 1-10-CV-174346

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Defendants and Cross-Complainants Ensuant, Inc., Puneet Arora, Nelson Petracek. And

Basanth Gowda (collectively “Defendants” or “Cross-Complainants”) allege:

1. This is an action for declaratory relief, intentional interference with economic

relationship, intentional interference with contract, and unfair competition. The value of Cross-

Complainant’s rights at issue exceeds the jurisdictional minimum of this Court for unlimited

jurisdiction.

THE PARTIES

2. Defendant and Cross-Complainant Ensuant, Inc. (“Ensuant”) is now, and at all

times material hereto has been, a California corporation. Defendant and Cross-Complainant

Puneet Arora resides in Santa Clara County, California. He was a Chief Technical Officer at

TIBCO until his resignation in July of 2009. Mr. Arora founded Ensuant in October of 2009.

Defendant and Cross-Complainant Nelson Petracek resides in Calgary, Alberta, Canada. He was

Director of Field Operations at TIBCO until December of 2009 and is now employed by Ensuant.

Defendant and Cross-Complainant Basanth Gowda resides in Lake Bluff, Illinois. He was an

Architect at TIBCO until April of 2010 and is now employed by Ensuant.

3. Plaintiff and Cross-Defendant TIBCO Software Inc. (hereinafter referred to as

“TIBCO” or “Cross-Defendant”) is now, and at all times material hereto has been, a Delaware

corporation with its principal place of business located at 3303 Hillview Avenue, Palo Alto CA

94304.

4. The true names and/or capacities, whether individual, corporate, associate or

otherwise, of Cross-Defendant DOES I through 100, inclusive, are unknown to Cross-

Complainants who therefore sue said Cross-Defendants by such fictitious names. Cross-

Complainants are informed and believe and thereon allege that each of the Cross-Defendants

designated as ROE are responsible in some manner for the events and happenings herein referred

to and proximately caused injury and damage to Cross-Complainants as herein alleged. Cross-

Complainants will amend this Cross-Complaint to allege their true names and capacities when

ascertained.

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5. Cross-Complainants are also informed and believe, and thereon allege, that at all

times herein mentioned, each of the Cross-Defendants were the agent, servant, and employee of

each of the remaining Cross-Defendants, and were acting within the scope and purpose of such

agency, service and employment.

6. Cross-Complainants are also informed and believe and thereon allege that each of

the Cross-Defendant DOES I through 1-100 were, at all relevant times, a member, officer,

manager, and/or agent of TlBCO who acted in concert with and/or provided material assistance to

TlBCO for the purpose of violating Cross-Complainants’ rights, as hereinafter alleged. TlBCO

and Cross-Defendants DOES 1 through 100 are sometimes referred to collectively hereafter as the

“Cross-Defendants.” “Cross-Defendants” and “Cross-Complainants” are sometimes hereafter

collectively referred to as the “Parties.”

7. Defendant and Cross-Complainant Puneet Arora is a Silicon Valley entrepreneur

with expertise in Complex Event Processing (“CEP”). CEP software enables companies to

process the large amounts of data they accumulate relating to events occurring externally and

internally to their businesses. CEP software takes advantage of technological advances in

computer hardware and cloud computing to improve event monitoring and processing within

companies. Arora began working with TIBCO in 1999, and in 2003 led the team that developed

TIBCO’s CEP software, BusinessEvents.

8. After years of successfully leading TIBCO’s BusinessEvents software to a

dominant position in the market, Arora decided to leave TlBCO to explore different ideas. In

October 2009, he formed Ensuant, Inc. as a platform to use his skills and explore his ideas in

enterprise software applications including CEP software and services. Although not competing

directly with TIBCO, TIBCO immediately determined that Arora and Ensuant threatened its

market position. Rather than responding competitively in the marketplace, TIBCO proceeded to

file a lawsuit accusing Arora of soliciting TIBCO employees and inducing TlBCO employees to

break their non-competition clauses with TIBCO. TIBCO then moved to inform Ensuant’s

customers that TIBCO was suing Ensuant and warned them not to deal with Ensuant or Arora.

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9. TIBCO’s lawsuit is predicated on the enforcement of non-competition clauses in

its employment agreements prohibiting the solicitation of employees to seek other employment

and prohibiting employees from soliciting TIBCO customers after their employment with TIBCO

ends. These clauses are unenforceable under California law, as they are contrary to California

law and public policy prohibiting employment agreements that restrain employees from

practicing their professions and competing against their employers.

10. TIBCO’s actions in contacting Ensuant customers has interfered with Ensuant’s

contracts and economic relationships. TIBCO is simply trying to prevent its former employees

and Ensuant from offering services to TIBCO customers, and exclude competition to secure its

market position. TIBCO’s attempt to put a cloud over Ensuant’s ability to compete violates

California’s laws against tortious interference with contract and unfair competition.

11. Cross-Complainants seek declaratory relief that TIBCO’s non-competition

provisions are invalid and unenforceable under California law. Cross-Complainants further seek

monetary damages for TIBCO’s interference with its economic relationships and contracts, and

injunctive relief preventing TIBCO from further attempting to disrupt Ensuant’s economic

relationships and contract. Cross-Complainants also seek injunctive relief preventing

TIBCO’S further attempts to enforce its illegal non-competition provisions.

GENERAL ALLEGATIONS

12. Although there was growing academic and industry interest in Complex Events

Processing (“CEP”) in the early 2000s, no company offered effective software solutions. In 2003,

Arora, then a TIBCO Principal Architect, recognized that several companies had a set of common

problems that might be solved through a CEP software solution. He approached TIBCO with his

ideas to create and market software to these and similar customers, and develop another market

for TIBCO’s enterprise software solutions. Rather than invest in the technology directly, TIBCO

asked Arora to find a customer willing to fund the proposed software. Arora procured consulting

arrangements with customers to improve their business processes, and found a customer willing

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to invest in his ideas for CEP software. Arora led a team that developed the prototype for what

became TIBCO’s successful BusinessEvents products.

13. The Arora-led TIBCO team released BusinessEvents 1.0 in November 2004,

which became an immediate leader in the field of Complex Event Processing. Every year after

2004, the Arora-led Business Events division grew, creating hundreds of millions of dollars in

revenue for TIBCO.

14. BusinessEvents’ success led, of course, to competition, as other enterprise

software and service providers entered the CEP market. CEP also grew through the development

of complementary markets in consulting services and other products.

THE COMPLEX EVENT PROCESSING SOFTWARE MARKET

15. In addition to TIBCO, established enterprise software companies such as Oracle,

IBM, SAP, Sybase, and other independent software vendors (“ISVs”) now provide CEP products

that directly compete with TIBCO’s BusinessEvents software. TIBCO retains a dominant market

share, claiming to have a 40% share of the market, over twice the nearest competitor.

http://www.tibco.com/company/news/releases/2008/press926.jsp.

16. CEP is a customer driven market, much like other enterprise software. Customers

know they have a choice of products, and actively solicit bids for software packages from

competitors. Once a company has purchased and installed CEP software from a given ISV, it will

often need further assistance in administering the software and integrating it with its other

systems. CEP software will not be optimized if it is used in isolation. Customers often need to

harmonize their CEP programs with other business processing management software they have

procured. Third party system integrators rose to fill this customer need, offering consulting

services to customers employing a given CEP solution. Infosys, TCS, Wipro, Perficient,

Accenture, Deloitte, EDS, IBM Global Services and many other small and medium sized

companies offer consulting services to customers using software solutions from ISVs.

17. As a result, it is well known in the industry which customers are using which CEP

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vendors’ products. Customers have created this transparency in order to foster open competition

and better arrive at efficiently integrated business processing systems. For example, customers

actively solicit consultants to work on their TIBCO BusinessEvents software and integrate it with

their other 3 systems. Simply by searching for job postings by customers specifying their need

for consultants to work on TIBCO systems, one can find the customers who have procured

TIBCO BusinessEvents products. See, e.g., Exhibit A, attached hereto (posting for senior TIBCO

developer by Macy’s in Atlanta, GA); Exhibit B, attached hereto (posting for AT&T Systems

Manager to work with TIBCO software); and Exhibit C, attached hereto(posting for

Middleware/TIBCO Architect by Arc Aspicio). TIBCO itself discloses the customers using its

various enterprise software on its website. See, e.g., http://www.tibco.com/customers/ (attached

as Exhibit D), and specifically those who use BusinessEvents products. See Exhibits E and F,

attached hereto.

AFTER 10 YEARS SERVING TIBCO, ARORA LEAVES TO PURSUE OTHER IDEAS

18. Although the TIBCO BusinessEvents software maintained a dominant market

share, TIBCO never dedicated the resources to develop consulting services in the complementary

market. The BusinessEvents team also struggled with a lack of resources and staffing, despite

generating millions of dollars in revenue for TIBCO every year. Having developed and led

TIBCO’s CEP products for several 22 years, Arora decided to leave TIBCO and explore other

ideas. Arora left TIBCO in July 2009.

19. Arora first joined a company called Guavus, a start-up working on network traffic

analysis, unrelated to any of TIBCO’s businesses or products. Arora left Guavus several months

later, and took time off to consider his options.

20. Companies with CEP software were aware of Arora’s CEP expertise and began

reaching out to him to obtain consulting services. This included TIBCO customers, who solicited

his services as they might any third party system integrator.

21. As he did with TIBCO in 2003, Arora saw an opportunity to provide business

processing solutions to companies. He formally founded Ensuant, Inc. in November 2009, as a

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placeholder for his ideas, and began providing consulting services in January 2010. Building on

Arora and the Ensuant team’s skills in the CEP market, Ensuant is developing a software platform

to provide CEP solutions that take advantage of advances in network technology. It also provides

consulting services to companies with existing CEP solutions in the market for third party system

integrators.

22 As is common in the modern software industry, employees are not bound to stay

with one employer, and often leave to join start-ups or similar ventures. After Arora founded

Ensuant, he was approached by colleagues both at TIBCO and other companies who had an

interest in Arora’s plans. Two former TIBCO colleagues left TIBCO to join Ensuant. Nelson

Petracek, TIBCO Director of Field Operations, left TIBCO in December 2009. He joined

Ensuant in May 2010. Basanth Gowda, TIBCO Architect, left TIBCO in April 2010. He joined

Ensuant in June 2010.

TIBCO INTERFERES WITH ENSUANT’S ECONOMIC AND CONTRACTUAL

RELATIONSHIPS AND LAUNCHES A BASELESS LAWSUIT

23. As they might solicit other third party system integrators, TIBCO customers

approached Ensuant to assist with their CEP needs. Such customers were dissatisfied with the

support provided by TIBCO, or simply wanted the services of a company that could complement

TIBCO. In many such cases, Ensuant actually worked to help the customer optimize its TIBCO

software, making TIBCO products work more effectively for the client. Although not directly

competing with Ensuant, TIBCO determined that Ensuant posed a threat to its profitability and

market position, having seen first-hand Arora’s ability to successfully develop CEP solutions.

24. Retail customer Macy’s purchased TIBCO’S BusinessEvents software and

planned to deploy it at several stores and optimize its use with certain business customers.

Macy’s was looking for consulting expertise in the area of Customer Loyalty and CEP, as shown

in Macy’s job posting (attached as Exhibit A). Macy’s reached out to Ensuant based on Arora’s

reputation. It signed a service contract with Ensuant to obtain consulting services to meet its

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deadline, as a complement to the TIBCO support team. The project was scheduled to begin on

June 15, 2010 and was to conclude in September 2010.

25. TIBCO viewed Ensuant’s involvement as a threat to its profits. Ensuant is

informed and believes that TIBCO informed Macy’s that it was suing Ensuant based on

allegations that Arora solicited TIBCO employees and induced other TIBCO employees to breach

clauses in their employment agreements preventing them from soliciting TIBCO clients. Ensuant

is further informed and believes that TIBCO warned Macy’s not to deal with Ensuant given its

lawsuit. As a result, Macy’s suspended its service contract and all further engagements with

Ensuant.

26. Ensuant is informed and believes that TIBCO referenced its contact with Macy’s

in its Second Amended Complaint against Ensuant and Ensuant founder Puneet Arora. It

essentially asserts that it is the only solution for complex event processing, and that only TIBCO

employees have expertise in the field. TIBCO seeks to use non-solicitation and non-competition

clauses in its employment agreements to prevent employees from leaving TIBCO, and prevent

customers from using products and services from other companies. Indeed, after TIBCO filed the

lawsuit, it proceeded to contact Defendant and Cross-Complainant Gowda and request he return

to TIBCO. TIBCO actions in enforcing the illegal provisions in its employment agreements and

intimidating Ensuant customers and employees reflect its desire to secure its market position

through restraints on competition and its employees.

27. Through these provisions, TIBCO thus intends to put a cloud over Ensuant’s

ability to offer CEP solutions, and entrench itself as the only CEP provider to its customers.

TIBCO’s non-solicitation and non-competition clauses, and its disruption of Ensuant contracts by

threatening customers, violates California’s laws against restraints on trade in employment

agreements and against unfair competition.

28. Ensuant has already suffered damages due to TIBCO’s actions. Should TIBCO

continue to threaten Ensuant customers, Ensuant’s damages could run into the millions of dollars.

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FIRST CAUSE OF ACTION Declaratory Relief

Against TIBCO Software, Inc. and DOES 1 - 100

29. Cross-Complainants Ensuant, Arora, Petracek, and Gowda hereby incorporate by

reference each and every allegation from paragraphs 1 through 28 of this Cross-Complaint as

though said paragraphs were fully set forth herein.

30. An actual controversy has arisen and now exists between and among Cross-

Complainants and Cross-Defendants.

31. TIBCO requires many of its employees to sign employment agreements with

provisions that restrict their ability to practice their professions and seek other employment.

32. Arora entered into an employment agreement with TIBCO on April 12, 1999

(“Arora Employment Agreement”) (attached as Exhibit G). Section VI of the Arora Employment

Agreement, “Non-Solicitation of Employees” provides that “EMPLOYEE specifically agrees that

during the term of this agreement and for a period of one (1) year thereafter, EMPLOYEE shall

not, directly or indirectly, either for himself or for any other person, firm, corporation, or other

legal entity, solicit any then employee of EMPLOYER to leave the employment of

EMPLOYER.” (hereinafter “Arora Non-Solicitation Provision”).

33. On December 6,2001, in Calgary, Canada, Nelson Petracek entered into an

employment with TIBCO (“Petracek Employment Agreement”) (attached as Exhibit H). Section

5 (a) of the Petracek Employment Agreement requires that Petracek would “not directly or

indirectly solicit business from any customer or potential customer of TIBCO which was served

or solicited by TIBCO within the eighteen months immediately preceding the termination in

regards to goods competitive with TIBCO.”(“Petracek Non-Competition Provision”).

34. On August 31, 2005 in Dunwoody, Georgia, Basanth Gowda entered into an

employment agreement with TIBCO (Gowda Employment Agreement”) (attached as Exhibit I).

Section V of the Gowda Employment Agreement provides that during the term of the agreement

and for a period of one year thereafter, Gowda will not “call upon, divert, or solicit any of the

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customers of TIBCO that were or became customers during the term of my employment ...”

(“Gowda Non-Competition Provision”).

35. The Arora Non-Solicitation Provision, the Petracek Non-Competition Provision,

and the Gowda Non-Competition Provision are contrary to California law and public policy in

favor of open competition and employees’ freedom to practice their professions, including

California Business and Professions Code §§ 16600 et seq.

36. Cross-Defendants seek to enforce the illegal provisions in their employment

agreements to prohibit Cross-Complainants from engaging with certain customers or hiring

employees. Cross-Defendants warn Ensuant customers to not deal with Ensuant because of Cross-

Defendants’ illegal provisions. Cross-Defendants’ actions have and continue to cause Cross-

Complainants damages.

37. Cross-Complainants seeks a judicial determination of the Parties’ rights with

respect to the Arora Non-Solicitation Provision, the Petracek Non-Competition Provision, and the

Gowda Non-Competition Provision, and with respect to similar non-solicitation and non-

competition clauses in employment agreements that Cross-Complainants may seek to enforce, as

to whether they are void and unenforceable under California law.

38. Such a declaration is necessary and appropriate at this time under the

circumstances in order that Cross-Complainant may continue to compete in the marketplace and

not suffer continued damages from Cross-Defendants’ actions in attempting to enforce the illegal

provisions in its employment agreements and threaten Cross-Complainant’s customers.

39. WHEREFORE, Cross-Complainants pray for relief as set forth below.

SECOND CAUSE OF ACTION Intentional Interference with Economic Relationship


40. Cross-Complainant hereby re-alleges and incorporates by reference each and every

allegation from paragraphs 1 through 39 of the Cross-Complaint hereinabove set forth.

41. Ensuant entered into an economic relationship with Macy’s to provide consulting

services to support its TIBCO BusinessEvents software. Macy’s needed expertise in the area of

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Customer Loyalty and CEP in order to complement its existing vendors and staff. Macy’s

approached Ensuant to retain its services, and executed a contract to obtain CEP consulting

services. Ensuant was to begin work on June 15,2010. Ensuant was further prepared to provide

additional consulting services as Macy’s needs required.

42. Cross-Defendant knew of Ensuant’s economic relationship with Macy’s. Ensuant

is informed and believes that TIBCO referenced such knowledge in the Second Amended

Complaint. Prior to the date that Ensuant was to begin providing services, Cross-Defendants

contacted Macy’s and warned it of their impending lawsuit against Ensuant, and warned it not to

deal with Ensuant. As a result of Cross-Defendant’s actions, Macy’s suspended all current and

future engagements with Ensuant. Cross-Defendants seek to enforce illegal provisions in their

employment agreements and threaten TIBCO customers who seek to engage Ensuant for software

solutions or consulting services.

43. Cross-Defendants’ actions were based on their attempt to enforce non-solicitation

and non-competition clauses in employment agreements that are illegal under California Business

and Professions Code Section 16600, and also constitute acts of unfair competition under

California Business and Professions Code Section 17200. Cross-Defendants’ actions undertaken

to interfere with Ensuant’s economic relationship with Macy’s were unlawful and unjustified.

44. Cross-Defendants’ actions proximately caused Macy’s to suspend all current and

prospective engagements with Ensuant, depriving Cross-Complainant of the benefits of its

economic relationship with Macy’s. As a direct and proximate result, Cross-Complainant have

suffered damages in an amount to be proven at trial.

45. Cross-Defendants’ conduct was willful, malicious, oppressive, and fraudulent,

entitling Cross-Complainants to an award of punitive damages.

46. WHEREFORE, Cross-Complainant prays for relief as hereinafter set forth below.

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THIRD CAUSE OF ACTION Intentional Interference with Contract


47. Cross-Complainant Ensuant re-alleges and incorporates herein by reference the

allegations contained in paragraphs 1 through 46 of the Cross-Complaint hereinabove set forth.

48. Ensuant entered into the Vendor Staffing Agreement with Macy’s on June 7, 2010

to provide consulting services to support its TIBCO BusinessEvents software. Ensuant was to

begin work on June 15,2010. Macy’s needed expertise in the area of Customer Loyalty and CEP

in order to complement its existing vendors and staff. Macy’s approached Ensuant to retain its

services, and executed the Vendor Staffing Agreement to obtain CEP consulting services.

49. Cross-Defendants knew of Ensuant’s contract with Macy’s. Ensuant is informed

and believes that TIBCO referenced such knowledge in the Second Amended Complaint. Prior to

the date that Ensuant was to begin providing services, Cross-Defendants contacted Macy’s and

warned it of their impending lawsuit against Ensuant, and warned Macy’s not to deal with

Ensuant. As a result of Cross-Defendants’ actions, Macy’s suspended all current and future

engagements with Ensuant. Cross-Defendants seek to enforce illegal provisions in their

employment agreements and threaten TIBCO customers who seek to engage Ensuant for software

solutions or consulting services.

50. Cross-Defendants’ actions were based on their attempt to enforce non-solicitation

and non-competition clauses in employment agreements that are illegal under California Business

and Professions Code Section 16600, and also constitute acts of unfair competition under

California Business and Professions Code Section 17200. Cross-Defendants’ actions undertaken

to interfere with Ensuant’s service contract with Macy’s were unlawful and unjustified.

51. Cross-Defendants’ actions proximately caused Macy’s to suspend all current and

prospective engagements with Cross-Complainant, including the Vendor Staffing Agreement,

depriving Cross-Complainant of the benefits of its contractual relationship with Macy’s. As a

direct and proximate result, Cross-Complainant has suffered damages in an amount to be proven

at trial.

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52. Cross-Defendants’ conduct was willful, malicious, oppressive, and fraudulent,

entitling Cross-Complainant to an award of punitive damages.

53. WHEREFORE, Cross-Complainant prays for relief as hereinafter set forth below.

FOURTH CAUSE OF ACTION Unfair Competition


54. Cross-Complainants Ensuant, Arora, Petracek, and Gowda hereby incorporate by

reference the allegations contained in paragraphs 1 through 53 of the Cross-Complaint set forth

above.

55. Cross-Defendants’ activities in connection with enforcing the Arora Non-

Solicitation Provision, Petracek Non-Competition Provision, and Gowda Non-Competition

Provision, and in threatening Cross-Complainant’s customers and interfering with Cross-

Complainant’s contractual and economic relationships, seek to illegally prevent Cross-

Complainant from competing in the marketplace and hiring employees. Cross-Defendants’

actions further seek to prevent TIBCO employees from terminating their employment with

TIBCO. Cross-Defendants’ actions constitute acts of unfair competition.

56. Cross-Defendants’ unlawful, unfair, fraudulent, and deceptive business acts and

practices constitute unfair competition in violation of the California Unfair Trade Practices Act,

Business and Professions Code Section 17200. Cross-Defendants’ actions also violate California

laws against interference with contract and economic relationships.

57. As a result of these alleged actions, Cross-Defendants have been unjustly enriched

and Cross-Complainant has been injured and damaged. Unless Cross-Defendants alleged actions

are enjoined, Cross-Complainants will continue to suffer injury and damage, which includes

financial losses as well as loss of goodwill.

58. Pursuant to California Business and Professions Code Section 17203, Cross-

Complainants are entitled to preliminary and permanent injunctive relief ordering Cross-

Defendants to cease this unfair competition, as well as disgorgement of all of Cross-Defendants’

profits associated with this Unfair Competition.

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59. WHEREFORE, Cross-Complainants prays for relief as hereinafter set forth below.

PRAYER FOR JUDGMENT

WHEREFORE, Cross-Complainants pray for judgment against Cross-Defendants, and

each of them, as hereinafter set forth.

1. For declaratory relief that the Arora Non-Solicitation Provision, the Petracek Non-

Competition Provision, and the Gowda Non-Competition Provision, and similar

provisions in its employment agreements that TIBCO seeks to enforce, are void

and unenforceable;

2. For a preliminary and permanent injunction enjoining Cross-Defendants from

enforcing the Arora Non-Solicitation Provision, Petracek Non Competition

Provision, the Gowda Non-Competition Provision, and similar provisions in its

employment agreements that TIBCO seeks to enforce;


threatening Ensuant’s customers and interfering with Cross-Complainants’

economic and contractual relationships;


engaging in unfair competition;

5. For disgorgement of all Cross-Defendants’ profits associated with their unfair

competition.

6. For restitution of all sums unlawfully obtained by Cross-Defendants due to their

unfair competition.

7. For damages in an amount to be proven;

8. For costs of suit, interest, and reasonable attorneys fees; and

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9. For such other and further relief as the Court may deem just and proper.

Dated: August 26, 2011

AM EN DED CROSS-COMPLAINT

CASE No.: 1-IO-CV-174346

FENWICK & WEST LLP

By: ~~ dpt-t-'ri'-c:l-::EI'I. ~P~re~='--.l4-=~=-=~---

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

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Amended Cross Complaint

Documents

Transcript of Amended Cross Complaint