1008-00005 · Lumos Analytics Inc · Pleadings

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SANTA CLARA

[PROPOSED] TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION

The Ex Parte Application of Plaintiff Lumos Analytics Inc. ("Lumos" or "Plaintiff") for a Temporary Restraining Order and Order to Show Cause re: Preliminary Injunction having come before this Court on January 19, 2023, and the Court having reviewed and considered the following papers and submissions:

(a) The Verified Complaint for Trade Secret Misappropriation, Breach of Contract, and Related Claims, filed January 19, 2023;

(b) The Ex Parte Application for Temporary Restraining Order and Order to Show Cause re: Preliminary Injunction, filed January 19, 2023;

(c) The Declaration of Priya Chandrasekaran, Chief Executive Officer of Lumos Analytics Inc., in Support of the TRO Application, filed January 19, 2023;

(d) The Declaration of Rachel Fong, Vice President of Engineering of Lumos Analytics Inc., in Support of the TRO Application, filed January 19, 2023;

(e) The Memorandum of Points and Authorities in Support of Preliminary Injunction, filed January 19, 2023; and

(f) All other papers, pleadings, and records on file herein;

AND THE COURT HAVING FOUND, based upon the verified allegations in the Complaint, the declarations submitted in support thereof, and all supporting evidence presented, that Plaintiff has demonstrated: (i) a likelihood of prevailing on the merits of its claims for misappropriation of trade secrets under the California Uniform Trade Secrets Act, California Civil Code §§ 3426–3426.11, breach of contract (specifically the Proprietary Information and Inventions Assignment Agreement executed by each individual Defendant), breach of the duty of loyalty, unfair business practices under California Business and Professions Code § 17200 et seq., and conversion; (ii) that Plaintiff will suffer immediate and irreparable harm absent the entry of temporary restraining relief; and (iii) that the balance of hardships tips decidedly in Plaintiff's favor;

AND THE COURT HAVING FURTHER FOUND that the trade secrets at issue in this matter are specifically identified and include the following five categories of proprietary information:

(1) The LumosEdge ensemble machine-learning model architecture, including proprietary neural-network topology, layer configurations, activation functions, dropout schedules, and hyperparameter configurations developed by Lumos over a period of approximately four years at a cost exceeding $23 million in research and development expenditures;

(2) Proprietary feature-engineering libraries containing two thousand eight hundred forty-seven (2,847) individual engineered features for financial signal generation, representing the core intellectual property underlying Lumos's competitive advantage in the quantitative analytics market;

(3) The "DataStream" ETL (Extract, Transform, Load) pipeline codebase and data-schema definitions covering data ingestion from forty-three (43) alternative-data vendors, including custom connectors, transformation logic, data-quality assurance routines, and schema-mapping configurations;

(4) A curated and labeled training dataset of approximately fourteen and six-tenths (14.6) terabytes of historical financial and alternative data, painstakingly assembled, cleaned, labeled, and validated over a period of more than three years; and

(5) Confidential product roadmap documents, including but not limited to the unreleased LumosEdge 3.0 specifications, a thirty-seven (37) page document detailing Lumos's next-generation product strategy, planned feature releases, pricing models, and go-to-market timelines;

AND THE COURT HAVING FURTHER FOUND that the evidence submitted demonstrates specific acts of exfiltration of Lumos trade secrets by the individual Defendants, including:

(a) Defendant Rajiv Anand's transfer of approximately 3.2 gigabytes (GB) of files—including source code, model configuration files, and proprietary documentation—to a personal Hollowell Health IT account on September 26, 2022, and his subsequent forwarding of the complete LumosEdge 3.0 Product Roadmap to his personal email address r.anand.personal@vaultmail.com on September 28, 2022, both actions taken while still employed by Lumos and in direct violation of Lumos's information security policies;

(b) Defendant Serena Mallick's cloning of the entire DataStream ETL pipeline repository, comprising approximately 780 megabytes (MB) of proprietary source code and configuration files, to a personal external USB drive bearing serial number WD-4837291 on October 10, 2022, approximately five days prior to her resignation from Lumos; and

(c) Defendant Derek Yun's downloading of forty-seven (47) proprietary Jupyter notebooks containing feature-engineering code, model-training scripts, and associated documentation to a personal Larkspur Technologies account on October 18, 2022, approximately one week prior to his resignation from Lumos;

AND THE COURT HAVING FURTHER FOUND that each of the individual Defendants—Rajiv Anand, Serena Mallick, and Derek Yun—executed a Proprietary Information and Inventions Assignment Agreement ("PIIAA") with Lumos Analytics Inc. as a condition of their employment, each of which contains restrictive covenant provisions including: (a) confidentiality and non-disclosure obligations surviving termination of employment for a period of three (3) years; (b) a covenant not to use or disclose Lumos trade secrets at any time during or after employment; (c) an obligation to return all company materials, documents, and property upon termination of employment for any reason; and (d) a non-solicitation of employees clause for a period of twelve (12) months following separation from Lumos; and that none of the three individual Defendants returned company materials or confirmed the deletion of Lumos proprietary information upon their respective departures from Lumos;

AND THE COURT HAVING FURTHER FOUND that Defendant NovaSpark Technologies Inc. was incorporated in the State of Delaware on October 3, 2022, is headquartered at 88 Bluxome Street, Floor 4, San Francisco, California 94107, and that the timing and circumstances of its formation—approximately one week after the first documented exfiltration event—strongly suggest that the misappropriated trade secrets were taken for the purpose of establishing and operating NovaSpark as a competitor to Lumos;

AND THE COURT HAVING BEEN ADVISED that Defendants NovaSpark Technologies Inc., Rajiv Anand, Serena Mallick, and Derek Yun have been or will be served with notice of this application and the Verified Complaint in accordance with applicable law;

NOW, THEREFORE, IT IS HEREBY ORDERED AS FOLLOWS:

I. TEMPORARY RESTRAINING ORDER — INJUNCTIVE RELIEF

A. Prohibition on Use, Disclosure, and Exploitation of Trade Secrets

Defendants NovaSpark Technologies Inc. (a Delaware corporation headquartered at 88 Bluxome Street, Floor 4, San Francisco, California 94107), Rajiv Anand (an individual residing at 1482 Mariposa Avenue, Palo Alto, California 94306), Serena Mallick (an individual residing at 578 Guerrero Street, Apt 3B, San Francisco, California 94110), and Derek Yun (an individual residing at 2241 Cowper Street, Apt 12, Palo Alto, California 94301), and each of their officers, agents, servants, employees, attorneys, and all persons in active concert or participation with any of them who receive actual notice of this Order, are hereby RESTRAINED and ENJOINED from the following acts:

(1) Using, disclosing, disseminating, publishing, copying, reproducing, distributing, transmitting, displaying, licensing, sublicensing, selling, or exploiting, in any manner whatsoever, directly or indirectly, any trade secrets, confidential information, or proprietary materials belonging to Lumos Analytics Inc., including but not limited to:

(a) The LumosEdge ensemble machine-learning model architecture, including without limitation all proprietary neural-network topology designs, layer configurations, attention mechanisms, ensemble weighting schemes, and hyperparameter configurations;

(b) The proprietary feature-engineering libraries containing two thousand eight hundred forty-seven (2,847) individual engineered features for financial signal generation, including all associated documentation, transformation logic, and feature-selection methodologies;

(c) The DataStream ETL pipeline codebase and data-schema definitions, including all source code, configuration files, API connectors, data-quality routines, and schema-mapping logic covering data ingestion from forty-three (43) alternative-data vendors;

(d) The curated and labeled training dataset of approximately fourteen and six-tenths (14.6) terabytes of historical financial and alternative data, including all labels, annotations, cleaning scripts, and validation protocols;

(e) The confidential product roadmap documents, including without limitation the LumosEdge 3.0 specifications (37-page document), any drafts, versions, or excerpts thereof, and any related strategic planning materials, pricing models, and go-to-market analyses; and

(f) Any and all other confidential, proprietary, or trade-secret information of Lumos Analytics Inc., however stored, maintained, or embodied, whether in electronic, printed, handwritten, or any other form.

(2) Incorporating, integrating, embedding, adapting, or otherwise utilizing any Lumos trade secrets, proprietary materials, or confidential information, or any derivative thereof, into any product, service, technology, platform, algorithm, model, software application, or offering of NovaSpark Technologies Inc. or any other entity, whether existing or under development.

(3) Disclosing, revealing, communicating, or transmitting any Lumos trade secrets, proprietary materials, or confidential information to any third party, including but not limited to investors, venture capital firms, potential acquirers, customers, prospective customers, independent contractors, consultants, employees, prospective employees, or prospective business partners of NovaSpark Technologies Inc. or any other entity.

B. Prohibition on Destruction, Alteration, or Concealment of Evidence

Defendants NovaSpark Technologies Inc., Rajiv Anand, Serena Mallick, and Derek Yun, and each of their officers, agents, servants, employees, attorneys, and all persons in active concert or participation with any of them who receive actual notice of this Order, are further RESTRAINED and ENJOINED from the following acts:

(1) Destroying, deleting, erasing, altering, modifying, overwriting, wiping, encrypting (for the purpose of concealment), defragmenting, degaussing, shredding, or otherwise rendering inaccessible any documents, files, data, electronically stored information ("ESI"), metadata, communications, or other materials that contain, reflect, reference, or relate to Lumos trade secrets, proprietary information, or the subject matter of this action, regardless of the medium or format in which such materials exist.

(2) Destroying, disposing of, reformatting, reimaging, selling, transferring, or altering any electronic device, storage medium, or account that has been used to access, store, transmit, receive, or process Lumos proprietary materials, including but not limited to:

(a) All personal and work laptops, desktop computers, tablets, and mobile devices (including but not limited to smartphones) of Defendants Rajiv Anand, Serena Mallick, and Derek Yun, whether owned by the individual Defendants personally, by NovaSpark Technologies Inc., or by any other person or entity;

(b) The external USB drive bearing serial number WD-4837291 used by Defendant Serena Mallick to clone the DataStream ETL pipeline repository on October 10, 2022, and any other external storage devices used to store or transfer Lumos proprietary materials;

(c) All NovaSpark Technologies Inc. servers, workstations, network-attached storage devices, backup systems, and any other computing infrastructure located at 88 Bluxome Street, Floor 4, San Francisco, California 94107, or at any other NovaSpark location, data center, or co-location facility; and

(d) All cloud storage accounts, including but not limited to all Hollowell Health IT accounts (personal and corporate), Larkspur Technologies accounts, Ridgeway Industries accounts, Crestline Systems accounts, Aldermere Technologies accounts, Aldermere Data Systems or Aldermere Software repositories, personal email accounts (specifically including r.anand.personal@vaultmail.com), corporate email accounts, Meridian Solutions workspaces, and any other NovaSpark corporate cloud infrastructure or software-as-a-service platforms that may contain Lumos proprietary information.

(3) Instructing, directing, encouraging, advising, requesting, or assisting any other person or entity to destroy, delete, alter, conceal, or render inaccessible any of the foregoing materials, devices, accounts, or repositories, whether such instruction is given directly or indirectly, orally or in writing.

C. Preservation of Electronic Devices and Storage Media

Defendants shall immediately, and in no event later than twenty-four (24) hours following receipt of actual notice of this Order, take all reasonable steps to preserve in their current state all electronic devices, storage media, cloud accounts, email accounts, code repositories, collaboration platforms, and any other repositories or systems that may contain Lumos proprietary information, including but not limited to those specifically identified in Section I.B.(2) above. Without limiting the generality of the foregoing:

(a) Defendants shall not remove any such devices from their current locations or transfer physical or logical control of any such accounts, repositories, or systems to any third party pending further order of this Court.

(b) Defendants shall not factory-reset, reimage, reformat, or otherwise restore any device to factory settings or to any prior state.

(c) Defendants shall implement, or cause to be implemented, litigation hold procedures reasonably designed to prevent the automatic or routine deletion of any electronically stored information that falls within the scope of this Order, including the suspension of any document-retention or data-destruction policies that might otherwise result in the deletion of relevant materials.

(d) Defendants shall preserve all system logs, access logs, audit trails, version-control histories, and metadata associated with any Lumos proprietary information or any device, account, or repository identified in this Order.

D. Return and Sequestration of Materials

Defendants shall immediately sequester and refrain from accessing, viewing, copying, printing, or otherwise interacting with any and all materials, whether in physical or electronic form, that constitute or contain Lumos trade secrets or proprietary information. Such materials shall be maintained in their current state and location, without alteration, pending further order of this Court or a written agreement between the parties, approved by the Court, regarding the manner and protocol for the return or forensic deletion of such materials. Nothing in this paragraph shall be construed to relieve Defendants of their obligation to preserve all such materials in accordance with Section I.C above.

II. SCOPE AND APPLICATION

This Order shall apply to Defendants NovaSpark Technologies Inc. (Employer Identification Number: 88-3291047; Delaware Secretary of State File Number: 7294183), Rajiv Anand, Serena Mallick, and Derek Yun, and to their respective officers, directors, agents, servants, employees, representatives, attorneys, successors, assigns, subsidiaries, affiliates, and all persons in active concert or participation with them who receive actual notice of this Order by personal service or otherwise.

This Order is effective immediately upon entry by this Court and shall remain in full force and effect until the earlier of: (a) the hearing on Plaintiff's Motion for Preliminary Injunction and entry of a ruling thereon by this Court; or (b) further order of this Court modifying, amending, or dissolving this Order upon noticed motion by any party.

Any violation of this Order may be punishable as contempt of court pursuant to California Code of Civil Procedure § 1209 et seq., and may subject the violating party to sanctions, including monetary sanctions, evidentiary sanctions, issue sanctions, and such other and further relief as the Court deems just and appropriate.

III. ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION

Defendants NovaSpark Technologies Inc., Rajiv Anand, Serena Mallick, and Derek Yun are hereby ORDERED TO SHOW CAUSE why a preliminary injunction should not issue in the terms set forth in Plaintiff's Ex Parte Application for Temporary Restraining Order and Order to Show Cause re: Preliminary Injunction and the accompanying Memorandum of Points and Authorities in Support of Preliminary Injunction, filed January 19, 2023.

The hearing on the Order to Show Cause re: Preliminary Injunction is set as follows:

Date: February 10, 2023

Time: 9:00 a.m.

Department: Department 8

Location: Superior Court of the State of California, County of Santa Clara, 191 North First Street, San Jose, California 95113

Judicial Officer: The Honorable David Rutherford

The following briefing schedule shall govern the parties' submissions in connection with the Order to Show Cause:

(a) Any opposition papers, responsive declarations, or other materials Defendants wish to submit in opposition to the issuance of a preliminary injunction shall be filed with this Court and served on Plaintiff's counsel of record no later than February 2, 2023.

(b) Any reply papers Plaintiff wishes to submit in further support of the issuance of a preliminary injunction shall be filed with this Court and served on Defendants' counsel of record, if any, no later than February 7, 2023.

All papers shall be filed and served in compliance with the California Rules of Court and the Local Rules of the Superior Court of the State of California, County of Santa Clara.

IV. SERVICE OF THIS ORDER

Plaintiff's counsel of record, Calderwood & Harkness LLP (555 California Street, 40th Floor, San Francisco, California 94104), shall serve a copy of this Order, together with copies of the Ex Parte Application, the Verified Complaint, and all supporting declarations, on all Defendants and their counsel of record, if any, by personal service or such other means as are reasonably calculated to provide actual notice of this Order, no later than two (2) business days after entry of this Order by the Court.

Proof of service shall be filed with this Court promptly, and in no event later than five (5) calendar days, after service is effected on each Defendant. Plaintiff's counsel shall use best efforts to effect service on all Defendants as expeditiously as possible given the nature of the relief granted herein.

V. BOND / SECURITY

Pursuant to California Code of Civil Procedure § 529, the Court has considered whether to require Plaintiff to post an undertaking or bond as a condition of the issuance of this Temporary Restraining Order. Having considered the strength of the evidence presented by Plaintiff, including the detailed forensic evidence of specific acts of exfiltration, the nature of the trade-secret claims at issue, the significant risk of irreparable harm to Plaintiff's business and competitive position, and the balance of hardships between the parties, the Court finds that Plaintiff shall post an undertaking in the amount of Fifty Thousand Dollars ($50,000.00) within five (5) business days of entry of this Order. Plaintiff's failure to timely post the required undertaking may result in the dissolution of this Order upon application by any Defendant.

VI. RESERVATION OF RIGHTS

Nothing in this Order shall be construed as a final adjudication on the merits of any of Plaintiff's claims or any of Defendants' defenses. This Order is based solely on the showing made by Plaintiff at the ex parte stage and the standards applicable to the issuance of temporary restraining orders under California law.

The Court expressly reserves the right to modify, amend, expand, or dissolve this Order at any time upon noticed motion by any party, upon a showing of changed circumstances, or upon such other grounds as the Court deems appropriate.

This Order is without prejudice to Plaintiff's right to seek additional, different, or further injunctive relief, including but not limited to expedited discovery, the appointment of a forensic examiner or special master, or such other relief as may be appropriate in aid of the Court's jurisdiction and the effective enforcement of this Order.

This Order is further without prejudice to Defendants' right to seek modification or dissolution of this Order upon noticed motion and a proper showing.

IT IS SO ORDERED.

Dated: ______

________________________________________

HON. DAVID RUTHERFORD Judge of the Superior Court County of Santa Clara Department 8

SUBMITTED BY:

CALDERWOOD & HARKNESS LLP

By: ________

Marcus Delgado (SBN 198452) Responsible Partner

Catherine Bloom (SBN 214783) Billing Partner

Wendy Schultz (SBN 287341) Lead Associate

Omar Siddiqui (SBN 312876) Working Associate

555 California Street, 40th Floor San Francisco, California 94104 Telephone: (415) 555-2200 Facsimile: (415) 555-2201

Email: mdelgado@calderwoodharkness.com

Attorneys for Plaintiff LUMOS ANALYTICS INC.

PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO

I am employed in the County of San Francisco, State of California. I am over the age of eighteen (18) years and not a party to the within action. My business address is Calderwood & Harkness LLP, 555 California Street, 40th Floor, San Francisco, California 94104.

On ____, 2023, I served the foregoing document described as [PROPOSED] TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION on the interested parties in this action as follows:

BY PERSONAL SERVICE: I caused a true and correct copy of the foregoing document to be personally delivered to each of the following parties at the addresses indicated below:

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed on ____, 2023, at San Francisco, California.

________________________________________

Name: ______

LUMOS ANALYTICS INC., a Delaware corporation,	Case No. 23-CV-004871
Plaintiff,	Assigned to: Hon. David Rutherford
v.	[PROPOSED] TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION

NOVASPARK TECHNOLOGIES INC., a Delaware corporation; RAJIV ANAND, an individual; SERENA MALLICK, an individual; and DEREK YUN, an individual,

Filed: January 19, 2023

Defendants.	(Submitted with Ex Parte Application)
Party	Address
NovaSpark Technologies Inc. (Attn: Rajiv Anand, CEO)	88 Bluxome Street, Floor 4, San Francisco, CA 94107
Rajiv Anand (individually)	1482 Mariposa Avenue, Palo Alto, CA 94306
Serena Mallick (individually)	578 Guerrero Street, Apt 3B, San Francisco, CA 94110
Derek Yun (individually)	2241 Cowper Street, Apt 12, Palo Alto, CA 94301
Whitfield, Raines & Gerber LLP (counsel for Defendants, if appeared)	235 Montgomery Street, Suite 1800, San Francisco, CA 94104

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
[PROPOSED] TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION
The Ex Parte Application of Plaintiff Lumos Analytics Inc. ("Lumos" or "Plaintiff") for a Temporary Restraining Order and Order to Show Cause re: Preliminary Injunction having come before this Court on January 19, 2023, and the Court having reviewed and considered the following papers and submissions:
(a) The Verified Complaint for Trade Secret Misappropriation, Breach of Contract, and Related Claims, filed January 19, 2023;
(b) The Ex Parte Application for Temporary Restraining Order and Order to Show Cause re: Preliminary Injunction, filed January 19, 2023;
(c) The Declaration of Priya Chandrasekaran, Chief Executive Officer of Lumos Analytics Inc., in Support of the TRO Application, filed January 19, 2023;
(d) The Declaration of Rachel Fong, Vice President of Engineering of Lumos Analytics Inc., in Support of the TRO Application, filed January 19, 2023;
(e) The Memorandum of Points and Authorities in Support of Preliminary Injunction, filed January 19, 2023; and
(f) All other papers, pleadings, and records on file herein;
AND THE COURT HAVING FOUND, based upon the verified allegations in the Complaint, the declarations submitted in support thereof, and all supporting evidence presented, that Plaintiff has demonstrated: (i) a likelihood of prevailing on the merits of its claims for misappropriation of trade secrets under the California Uniform Trade Secrets Act, California Civil Code §§ 3426–3426.11, breach of contract (specifically the Proprietary Information and Inventions Assignment Agreement executed by each individual Defendant), breach of the duty of loyalty, unfair business practices under California Business and Professions Code § 17200 et seq., and conversion; (ii) that Plaintiff will suffer immediate and irreparable harm absent the entry of temporary restraining relief; and (iii) that the balance of hardships tips decidedly in Plaintiff's favor;
AND THE COURT HAVING FURTHER FOUND that the trade secrets at issue in this matter are specifically identified and include the following five categories of proprietary information:
(1) The LumosEdge ensemble machine-learning model architecture, including proprietary neural-network topology, layer configurations, activation functions, dropout schedules, and hyperparameter configurations developed by Lumos over a period of approximately four years at a cost exceeding $23 million in research and development expenditures;
(2) Proprietary feature-engineering libraries containing two thousand eight hundred forty-seven (2,847) individual engineered features for financial signal generation, representing the core intellectual property underlying Lumos's competitive advantage in the quantitative analytics market;
(3) The "DataStream" ETL (Extract, Transform, Load) pipeline codebase and data-schema definitions covering data ingestion from forty-three (43) alternative-data vendors, including custom connectors, transformation logic, data-quality assurance routines, and schema-mapping configurations;
(4) A curated and labeled training dataset of approximately fourteen and six-tenths (14.6) terabytes of historical financial and alternative data, painstakingly assembled, cleaned, labeled, and validated over a period of more than three years; and
(5) Confidential product roadmap documents, including but not limited to the unreleased LumosEdge 3.0 specifications, a thirty-seven (37) page document detailing Lumos's next-generation product strategy, planned feature releases, pricing models, and go-to-market timelines;
AND THE COURT HAVING FURTHER FOUND that the evidence submitted demonstrates specific acts of exfiltration of Lumos trade secrets by the individual Defendants, including:
(a) Defendant Rajiv Anand's transfer of approximately 3.2 gigabytes (GB) of files—including source code, model configuration files, and proprietary documentation—to a personal Hollowell Health IT account on September 26, 2022, and his subsequent forwarding of the complete LumosEdge 3.0 Product Roadmap to his personal email address r.anand.personal@vaultmail.com on September 28, 2022, both actions taken while still employed by Lumos and in direct violation of Lumos's information security policies;
(b) Defendant Serena Mallick's cloning of the entire DataStream ETL pipeline repository, comprising approximately 780 megabytes (MB) of proprietary source code and configuration files, to a personal external USB drive bearing serial number WD-4837291 on October 10, 2022, approximately five days prior to her resignation from Lumos; and
(c) Defendant Derek Yun's downloading of forty-seven (47) proprietary Jupyter notebooks containing feature-engineering code, model-training scripts, and associated documentation to a personal Larkspur Technologies account on October 18, 2022, approximately one week prior to his resignation from Lumos;
AND THE COURT HAVING FURTHER FOUND that each of the individual Defendants—Rajiv Anand, Serena Mallick, and Derek Yun—executed a Proprietary Information and Inventions Assignment Agreement ("PIIAA") with Lumos Analytics Inc. as a condition of their employment, each of which contains restrictive covenant provisions including: (a) confidentiality and non-disclosure obligations surviving termination of employment for a period of three (3) years; (b) a covenant not to use or disclose Lumos trade secrets at any time during or after employment; (c) an obligation to return all company materials, documents, and property upon termination of employment for any reason; and (d) a non-solicitation of employees clause for a period of twelve (12) months following separation from Lumos; and that none of the three individual Defendants returned company materials or confirmed the deletion of Lumos proprietary information upon their respective departures from Lumos;
AND THE COURT HAVING FURTHER FOUND that Defendant NovaSpark Technologies Inc. was incorporated in the State of Delaware on October 3, 2022, is headquartered at 88 Bluxome Street, Floor 4, San Francisco, California 94107, and that the timing and circumstances of its formation—approximately one week after the first documented exfiltration event—strongly suggest that the misappropriated trade secrets were taken for the purpose of establishing and operating NovaSpark as a competitor to Lumos;
AND THE COURT HAVING BEEN ADVISED that Defendants NovaSpark Technologies Inc., Rajiv Anand, Serena Mallick, and Derek Yun have been or will be served with notice of this application and the Verified Complaint in accordance with applicable law;
NOW, THEREFORE, IT IS HEREBY ORDERED AS FOLLOWS:
I. TEMPORARY RESTRAINING ORDER — INJUNCTIVE RELIEF
A. Prohibition on Use, Disclosure, and Exploitation of Trade Secrets
Defendants NovaSpark Technologies Inc. (a Delaware corporation headquartered at 88 Bluxome Street, Floor 4, San Francisco, California 94107), Rajiv Anand (an individual residing at 1482 Mariposa Avenue, Palo Alto, California 94306), Serena Mallick (an individual residing at 578 Guerrero Street, Apt 3B, San Francisco, California 94110), and Derek Yun (an individual residing at 2241 Cowper Street, Apt 12, Palo Alto, California 94301), and each of their officers, agents, servants, employees, attorneys, and all persons in active concert or participation with any of them who receive actual notice of this Order, are hereby RESTRAINED and ENJOINED from the following acts:
(1) Using, disclosing, disseminating, publishing, copying, reproducing, distributing, transmitting, displaying, licensing, sublicensing, selling, or exploiting, in any manner whatsoever, directly or indirectly, any trade secrets, confidential information, or proprietary materials belonging to Lumos Analytics Inc., including but not limited to:
(a) The LumosEdge ensemble machine-learning model architecture, including without limitation all proprietary neural-network topology designs, layer configurations, attention mechanisms, ensemble weighting schemes, and hyperparameter configurations;
(b) The proprietary feature-engineering libraries containing two thousand eight hundred forty-seven (2,847) individual engineered features for financial signal generation, including all associated documentation, transformation logic, and feature-selection methodologies;
(c) The DataStream ETL pipeline codebase and data-schema definitions, including all source code, configuration files, API connectors, data-quality routines, and schema-mapping logic covering data ingestion from forty-three (43) alternative-data vendors;
(d) The curated and labeled training dataset of approximately fourteen and six-tenths (14.6) terabytes of historical financial and alternative data, including all labels, annotations, cleaning scripts, and validation protocols;
(e) The confidential product roadmap documents, including without limitation the LumosEdge 3.0 specifications (37-page document), any drafts, versions, or excerpts thereof, and any related strategic planning materials, pricing models, and go-to-market analyses; and
(f) Any and all other confidential, proprietary, or trade-secret information of Lumos Analytics Inc., however stored, maintained, or embodied, whether in electronic, printed, handwritten, or any other form.
(2) Incorporating, integrating, embedding, adapting, or otherwise utilizing any Lumos trade secrets, proprietary materials, or confidential information, or any derivative thereof, into any product, service, technology, platform, algorithm, model, software application, or offering of NovaSpark Technologies Inc. or any other entity, whether existing or under development.
(3) Disclosing, revealing, communicating, or transmitting any Lumos trade secrets, proprietary materials, or confidential information to any third party, including but not limited to investors, venture capital firms, potential acquirers, customers, prospective customers, independent contractors, consultants, employees, prospective employees, or prospective business partners of NovaSpark Technologies Inc. or any other entity.
B. Prohibition on Destruction, Alteration, or Concealment of Evidence
Defendants NovaSpark Technologies Inc., Rajiv Anand, Serena Mallick, and Derek Yun, and each of their officers, agents, servants, employees, attorneys, and all persons in active concert or participation with any of them who receive actual notice of this Order, are further RESTRAINED and ENJOINED from the following acts:
(1) Destroying, deleting, erasing, altering, modifying, overwriting, wiping, encrypting (for the purpose of concealment), defragmenting, degaussing, shredding, or otherwise rendering inaccessible any documents, files, data, electronically stored information ("ESI"), metadata, communications, or other materials that contain, reflect, reference, or relate to Lumos trade secrets, proprietary information, or the subject matter of this action, regardless of the medium or format in which such materials exist.
(2) Destroying, disposing of, reformatting, reimaging, selling, transferring, or altering any electronic device, storage medium, or account that has been used to access, store, transmit, receive, or process Lumos proprietary materials, including but not limited to:
(a) All personal and work laptops, desktop computers, tablets, and mobile devices (including but not limited to smartphones) of Defendants Rajiv Anand, Serena Mallick, and Derek Yun, whether owned by the individual Defendants personally, by NovaSpark Technologies Inc., or by any other person or entity;
(b) The external USB drive bearing serial number WD-4837291 used by Defendant Serena Mallick to clone the DataStream ETL pipeline repository on October 10, 2022, and any other external storage devices used to store or transfer Lumos proprietary materials;
(c) All NovaSpark Technologies Inc. servers, workstations, network-attached storage devices, backup systems, and any other computing infrastructure located at 88 Bluxome Street, Floor 4, San Francisco, California 94107, or at any other NovaSpark location, data center, or co-location facility; and
(d) All cloud storage accounts, including but not limited to all Hollowell Health IT accounts (personal and corporate), Larkspur Technologies accounts, Ridgeway Industries accounts, Crestline Systems accounts, Aldermere Technologies accounts, Aldermere Data Systems or Aldermere Software repositories, personal email accounts (specifically including r.anand.personal@vaultmail.com), corporate email accounts, Meridian Solutions workspaces, and any other NovaSpark corporate cloud infrastructure or software-as-a-service platforms that may contain Lumos proprietary information.
(3) Instructing, directing, encouraging, advising, requesting, or assisting any other person or entity to destroy, delete, alter, conceal, or render inaccessible any of the foregoing materials, devices, accounts, or repositories, whether such instruction is given directly or indirectly, orally or in writing.
C. Preservation of Electronic Devices and Storage Media
Defendants shall immediately, and in no event later than twenty-four (24) hours following receipt of actual notice of this Order, take all reasonable steps to preserve in their current state all electronic devices, storage media, cloud accounts, email accounts, code repositories, collaboration platforms, and any other repositories or systems that may contain Lumos proprietary information, including but not limited to those specifically identified in Section I.B.(2) above. Without limiting the generality of the foregoing:
(a) Defendants shall not remove any such devices from their current locations or transfer physical or logical control of any such accounts, repositories, or systems to any third party pending further order of this Court.
(b) Defendants shall not factory-reset, reimage, reformat, or otherwise restore any device to factory settings or to any prior state.
(c) Defendants shall implement, or cause to be implemented, litigation hold procedures reasonably designed to prevent the automatic or routine deletion of any electronically stored information that falls within the scope of this Order, including the suspension of any document-retention or data-destruction policies that might otherwise result in the deletion of relevant materials.
(d) Defendants shall preserve all system logs, access logs, audit trails, version-control histories, and metadata associated with any Lumos proprietary information or any device, account, or repository identified in this Order.
D. Return and Sequestration of Materials
Defendants shall immediately sequester and refrain from accessing, viewing, copying, printing, or otherwise interacting with any and all materials, whether in physical or electronic form, that constitute or contain Lumos trade secrets or proprietary information. Such materials shall be maintained in their current state and location, without alteration, pending further order of this Court or a written agreement between the parties, approved by the Court, regarding the manner and protocol for the return or forensic deletion of such materials. Nothing in this paragraph shall be construed to relieve Defendants of their obligation to preserve all such materials in accordance with Section I.C above.
II. SCOPE AND APPLICATION
This Order shall apply to Defendants NovaSpark Technologies Inc. (Employer Identification Number: 88-3291047; Delaware Secretary of State File Number: 7294183), Rajiv Anand, Serena Mallick, and Derek Yun, and to their respective officers, directors, agents, servants, employees, representatives, attorneys, successors, assigns, subsidiaries, affiliates, and all persons in active concert or participation with them who receive actual notice of this Order by personal service or otherwise.
This Order is effective immediately upon entry by this Court and shall remain in full force and effect until the earlier of: (a) the hearing on Plaintiff's Motion for Preliminary Injunction and entry of a ruling thereon by this Court; or (b) further order of this Court modifying, amending, or dissolving this Order upon noticed motion by any party.
Any violation of this Order may be punishable as contempt of court pursuant to California Code of Civil Procedure § 1209 et seq., and may subject the violating party to sanctions, including monetary sanctions, evidentiary sanctions, issue sanctions, and such other and further relief as the Court deems just and appropriate.
III. ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION
Defendants NovaSpark Technologies Inc., Rajiv Anand, Serena Mallick, and Derek Yun are hereby ORDERED TO SHOW CAUSE why a preliminary injunction should not issue in the terms set forth in Plaintiff's Ex Parte Application for Temporary Restraining Order and Order to Show Cause re: Preliminary Injunction and the accompanying Memorandum of Points and Authorities in Support of Preliminary Injunction, filed January 19, 2023.
The hearing on the Order to Show Cause re: Preliminary Injunction is set as follows:
Date: February 10, 2023
Time: 9:00 a.m.
Department: Department 8
Location: Superior Court of the State of California, County of Santa Clara, 191 North First Street, San Jose, California 95113
Judicial Officer: The Honorable David Rutherford
The following briefing schedule shall govern the parties' submissions in connection with the Order to Show Cause:
(a) Any opposition papers, responsive declarations, or other materials Defendants wish to submit in opposition to the issuance of a preliminary injunction shall be filed with this Court and served on Plaintiff's counsel of record no later than February 2, 2023.
(b) Any reply papers Plaintiff wishes to submit in further support of the issuance of a preliminary injunction shall be filed with this Court and served on Defendants' counsel of record, if any, no later than February 7, 2023.
All papers shall be filed and served in compliance with the California Rules of Court and the Local Rules of the Superior Court of the State of California, County of Santa Clara.
IV. SERVICE OF THIS ORDER
Plaintiff's counsel of record, Calderwood & Harkness LLP (555 California Street, 40th Floor, San Francisco, California 94104), shall serve a copy of this Order, together with copies of the Ex Parte Application, the Verified Complaint, and all supporting declarations, on all Defendants and their counsel of record, if any, by personal service or such other means as are reasonably calculated to provide actual notice of this Order, no later than two (2) business days after entry of this Order by the Court.
Proof of service shall be filed with this Court promptly, and in no event later than five (5) calendar days, after service is effected on each Defendant. Plaintiff's counsel shall use best efforts to effect service on all Defendants as expeditiously as possible given the nature of the relief granted herein.
V. BOND / SECURITY
Pursuant to California Code of Civil Procedure § 529, the Court has considered whether to require Plaintiff to post an undertaking or bond as a condition of the issuance of this Temporary Restraining Order. Having considered the strength of the evidence presented by Plaintiff, including the detailed forensic evidence of specific acts of exfiltration, the nature of the trade-secret claims at issue, the significant risk of irreparable harm to Plaintiff's business and competitive position, and the balance of hardships between the parties, the Court finds that Plaintiff shall post an undertaking in the amount of Fifty Thousand Dollars ($50,000.00) within five (5) business days of entry of this Order. Plaintiff's failure to timely post the required undertaking may result in the dissolution of this Order upon application by any Defendant.
VI. RESERVATION OF RIGHTS
Nothing in this Order shall be construed as a final adjudication on the merits of any of Plaintiff's claims or any of Defendants' defenses. This Order is based solely on the showing made by Plaintiff at the ex parte stage and the standards applicable to the issuance of temporary restraining orders under California law.
The Court expressly reserves the right to modify, amend, expand, or dissolve this Order at any time upon noticed motion by any party, upon a showing of changed circumstances, or upon such other grounds as the Court deems appropriate.
This Order is without prejudice to Plaintiff's right to seek additional, different, or further injunctive relief, including but not limited to expedited discovery, the appointment of a forensic examiner or special master, or such other relief as may be appropriate in aid of the Court's jurisdiction and the effective enforcement of this Order.
This Order is further without prejudice to Defendants' right to seek modification or dissolution of this Order upon noticed motion and a proper showing.
IT IS SO ORDERED.
Dated: ______
________________________________________
HON. DAVID RUTHERFORD Judge of the Superior Court County of Santa Clara Department 8
SUBMITTED BY:
CALDERWOOD & HARKNESS LLP
By: ________
Marcus Delgado (SBN 198452) Responsible Partner
Catherine Bloom (SBN 214783) Billing Partner
Wendy Schultz (SBN 287341) Lead Associate
Omar Siddiqui (SBN 312876) Working Associate
555 California Street, 40th Floor San Francisco, California 94104 Telephone: (415) 555-2200 Facsimile: (415) 555-2201
Email: mdelgado@calderwoodharkness.com
Attorneys for Plaintiff LUMOS ANALYTICS INC.
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
I am employed in the County of San Francisco, State of California. I am over the age of eighteen (18) years and not a party to the within action. My business address is Calderwood & Harkness LLP, 555 California Street, 40th Floor, San Francisco, California 94104.
On ____, 2023, I served the foregoing document described as [PROPOSED] TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION on the interested parties in this action as follows:
BY PERSONAL SERVICE: I caused a true and correct copy of the foregoing document to be personally delivered to each of the following parties at the addresses indicated below:
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed on ____, 2023, at San Francisco, California.
________________________________________
Name: ______
LUMOS ANALYTICS INC., a Delaware corporation, | Case No. 23-CV-004871
Plaintiff, | Assigned to: Hon. David Rutherford
v. | [PROPOSED] TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION
NOVASPARK TECHNOLOGIES INC., a Delaware corporation; RAJIV ANAND, an individual; SERENA MALLICK, an individual; and DEREK YUN, an individual,
Filed: January 19, 2023
Defendants. | (Submitted with Ex Parte Application)
Party | Address
NovaSpark Technologies Inc. (Attn: Rajiv Anand, CEO) | 88 Bluxome Street, Floor 4, San Francisco, CA 94107
Rajiv Anand (individually) | 1482 Mariposa Avenue, Palo Alto, CA 94306
Serena Mallick (individually) | 578 Guerrero Street, Apt 3B, San Francisco, CA 94110
Derek Yun (individually) | 2241 Cowper Street, Apt 12, Palo Alto, CA 94301
Whitfield, Raines & Gerber LLP (counsel for Defendants, if appeared) | 235 Montgomery Street, Suite 1800, San Francisco, CA 94104