SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
UNLIMITED CIVIL JURISDICTION
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STIPULATION FOR DISMISSAL WITH PREJUDICE
Plaintiff LUMOS ANALYTICS INC. ("Lumos" or "Plaintiff"), by and through its counsel of record, Calderwood & Harkness LLP, and Defendants NOVASPARK TECHNOLOGIES INC. ("NovaSpark"), RAJIV ANAND ("Anand"), SERENA MALLICK ("Mallick"), and DEREK YUN ("Yun") (collectively, "Defendants"), by and through their counsel of record, Whitfield, Raines & Gerber LLP, hereby stipulate and agree to the dismissal with prejudice of the above-captioned action, Case No. 23-CV-004871, pending in the Superior Court of the State of California, County of Santa Clara, before the Honorable David Rutherford, on the terms and conditions set forth below.
RECITALS. A. On January 19, 2023, Plaintiff filed a Verified Complaint against Defendants in this Court asserting the following causes of action: (1) misappropriation of trade secrets in violation of the California Uniform Trade Secrets Act, California Civil Code sections 3426 through 3426.11; (2) breach of contract arising from the Proprietary Information and Inventions Assignment Agreements entered into by each of the Individual Defendants during their respective employment with Lumos; (3) breach of the duty of loyalty owed by each of the Individual Defendants to Lumos during their employment; (4) unfair business practices in violation of California Business and Professions Code section 17200 et seq.; and (5) conversion of Lumos's proprietary data, source code, and related tangible and intangible property. The Verified Complaint sought, among other things, injunctive relief, compensatory damages, exemplary damages, restitution, disgorgement, and attorneys' fees and costs.
B. On January 23, 2023, this Court granted Plaintiff's ex parte application for a Temporary Restraining Order, restraining and enjoining Defendants from, among other things, using, disclosing, copying, or otherwise misappropriating any of Lumos's trade secrets or confidential proprietary information pending a hearing on Plaintiff's motion for a preliminary injunction. Thereafter, following a contested evidentiary hearing held on February 13–14, 2023, the Court issued its Preliminary Injunction Order on February 17, 2023, granting Plaintiff's motion for a preliminary injunction on substantially the same terms as the Temporary Restraining Order and imposing additional forensic examination and remediation requirements.
C. On October 4, 2023, the Court entered a Stipulated Permanent Injunction (Injunction-by-Consent) in this matter (the "Stipulated Permanent Injunction"), which was negotiated by the parties as part of their comprehensive settlement and which permanently enjoins Defendants from using, disclosing, reproducing, or otherwise exploiting any of Lumos's trade secrets and proprietary information, as more particularly described in the Stipulated Permanent Injunction. The Stipulated Permanent Injunction shall remain in full force and effect and shall survive the dismissal of this action in accordance with its express terms.
D. The parties have reached a full and final settlement of all claims, counterclaims, cross-claims, disputes, and controversies between and among them arising out of or relating to the facts and circumstances alleged in this action, the terms and conditions of which are memorialized in a confidential Settlement Agreement and Mutual Release dated September 22, 2023 (the "Settlement Agreement"). The Settlement Agreement, which is not being filed with the Court and the terms of which shall remain confidential, governs the parties' respective rights and obligations in connection with the settlement of this matter.
E. The parties have satisfied all conditions precedent to the dismissal of this action as set forth in the Settlement Agreement, including but not limited to: (i) NovaSpark's timely payment of the full settlement amount specified in the Settlement Agreement, receipt of which has been confirmed and acknowledged by Lumos; (ii) the completion of all forensic remediation measures required under both the Court's Preliminary Injunction Order and the Settlement Agreement, as performed by the Court-approved independent forensic examiner, Brindoval Digital Forensics LLC, and as certified by the Final Forensic Remediation Certification dated October 31, 2023, a copy of which has been provided to counsel for all parties; and (iii) the entry by this Court of the Stipulated Permanent Injunction on October 4, 2023, as referenced in Recital C above.
F. Having satisfied all conditions precedent, the parties now wish to dismiss this entire action with prejudice, with each party bearing its own attorneys' fees and costs except as otherwise specifically provided in the Settlement Agreement and in the Court's prior orders, pursuant to the terms set forth herein.
STIPULATED TERMS. NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual agreements set forth herein, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties stipulate and agree as follows:
1. Dismissal with Prejudice. The parties hereby stipulate that the above-captioned action, Case No. 23-CV-004871, including all claims and causes of action asserted in the Verified Complaint filed by Plaintiff on January 19, 2023, and all counterclaims, cross-claims, and affirmative defenses asserted or that could have been asserted by any party in this action, be dismissed in their entirety and with prejudice. This dismissal shall be as to all parties — namely, Plaintiff Lumos Analytics Inc. and Defendants NovaSpark Technologies Inc., Rajiv Anand, Serena Mallick, and Derek Yun — and shall constitute a final adjudication on the merits for purposes of res judicata, collateral estoppel, and all other applicable doctrines of claim and issue preclusion.
2. Survival of the Stipulated Permanent Injunction. Notwithstanding the dismissal of this action, the Stipulated Permanent Injunction entered by this Court on October 4, 2023, shall survive the dismissal and shall remain in full force and effect in accordance with its terms. Nothing in this Stipulation or the proposed Order of Dismissal shall be construed to modify, limit, vacate, or otherwise affect the enforceability of the Stipulated Permanent Injunction. The Court shall retain jurisdiction to enforce the Stipulated Permanent Injunction in accordance with the terms set forth therein, including, without limitation, jurisdiction to adjudicate any application for contempt sanctions, modification, or other relief arising from an alleged violation of the Stipulated Permanent Injunction.
3. Retention of Jurisdiction. The Court shall retain jurisdiction over the parties and over this action solely for the following limited purposes: (a) enforcement of the Stipulated Permanent Injunction entered on October 4, 2023, as provided in Paragraph 2 above; and (b) enforcement of the Settlement Agreement dated September 22, 2023, to the extent that any party seeks to enforce the terms thereof through proceedings in this Court and to the extent that retention of such jurisdiction is permitted by applicable law. Except as expressly set forth in this Paragraph 3 and in Paragraph 2 above, the Court's jurisdiction over this action shall terminate upon entry of the Order of Dismissal.
4. Attorneys' Fees and Costs. Each party shall bear its own attorneys' fees, costs, and expenses incurred in connection with this action, including but not limited to filing fees, service fees, discovery costs, deposition costs, expert witness fees, and all other litigation-related expenses, except as otherwise specifically provided in: (a) the Settlement Agreement dated September 22, 2023; and (b) the Court's prior orders in this action, including, without limitation, the Court's order dated March 15, 2023, allocating the costs of the forensic examination and remediation performed by Brindoval Digital Forensics LLC between the parties. Nothing in this Stipulation shall be deemed a waiver of any party's rights under the Settlement Agreement or the Court's prior orders with respect to attorneys' fees, costs, or forensic examiner costs.
5. Authority to Execute. Each signatory to this Stipulation represents and warrants that he or she has been duly authorized to execute this Stipulation on behalf of the party or parties he or she represents, and that such execution is binding upon the party or parties represented. Counsel for each party represent that they have obtained all necessary authorizations and approvals from their respective clients to enter into this Stipulation and to consent to the entry of the proposed Order of Dismissal.
6. Counterparts and Electronic Signatures. This Stipulation may be executed in counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. Facsimile and electronic signatures (including signatures transmitted by email in portable document format) shall be deemed original signatures for all purposes and shall have the same force and effect as original ink signatures.
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[SIGNATURES ON FOLLOWING PAGE]
DATED: November 1, 2023
CALDERWOOD & HARKNESS LLP
By: ________
Marcus Delgado Responsible Partner
555 California Street, 40th Floor San Francisco, California 94104 Telephone: (415) 555-7200 Facsimile: (415) 555-7201
Email: mdelgado@calderwoodharkness.com
Attorneys for Plaintiff LUMOS ANALYTICS INC.
DATED: November 1, 2023
WHITFIELD, RAINES & GERBER LLP
By: ________
Patricia Whitfield Lead Partner
235 Montgomery Street, Suite 1800 San Francisco, California 94104 Telephone: (415) 555-3400 Facsimile: (415) 555-3401
Email: pwhitfield@whitfieldraines.com
Attorneys for Defendants NOVASPARK TECHNOLOGIES INC., RAJIV ANAND, SERENA MALLICK, and DEREK YUN
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
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ORDER OF DISMISSAL WITH PREJUDICE
The Court has reviewed and considered the Stipulation for Dismissal with Prejudice filed by Plaintiff Lumos Analytics Inc. and Defendants NovaSpark Technologies Inc., Rajiv Anand, Serena Mallick, and Derek Yun on November 1, 2023. The Court has further considered the record in this action, including the Verified Complaint, the Temporary Restraining Order issued January 23, 2023, the Preliminary Injunction Order issued February 17, 2023, and the Stipulated Permanent Injunction entered October 4, 2023. The Court finds that the parties have freely and voluntarily entered into the Stipulation and that the Stipulation reflects a good-faith resolution of the disputes in this action.
Good cause appearing therefor, and pursuant to the parties' Stipulation:
IT IS HEREBY ORDERED AS FOLLOWS:
1. The above-captioned action, Case No. 23-CV-004871, Lumos Analytics Inc. v. NovaSpark Technologies Inc., et al., is hereby dismissed in its entirety and with prejudice as to all parties, including Plaintiff Lumos Analytics Inc. and Defendants NovaSpark Technologies Inc., Rajiv Anand, Serena Mallick, and Derek Yun. All claims, counterclaims, cross-claims, causes of action, and affirmative defenses asserted or that could have been asserted in this action are dismissed with prejudice. This dismissal constitutes a final disposition of all matters in controversy between the parties in this action.
2. The Stipulated Permanent Injunction entered by this Court on October 4, 2023, shall survive and remain in full force and effect notwithstanding this Order of Dismissal. Nothing in this Order shall be construed to modify, limit, vacate, dissolve, or otherwise affect the terms or enforceability of the Stipulated Permanent Injunction. The parties shall remain bound by all obligations set forth in the Stipulated Permanent Injunction in accordance with its terms.
3. This Court retains jurisdiction over the parties and this action solely for the following limited purposes: (a) enforcement of the Stipulated Permanent Injunction entered on October 4, 2023, including the power to adjudicate motions for contempt, modification, or other relief arising from any alleged violation of, or dispute concerning, the Stipulated Permanent Injunction; and (b) enforcement of the parties' confidential Settlement Agreement and Mutual Release dated September 22, 2023, to the extent that any party seeks to enforce the terms thereof through proceedings in this Court and to the extent that such jurisdiction is permitted by applicable law. Except as expressly set forth in this Paragraph, the Court's jurisdiction over this action is terminated.
4. Each party shall bear its own attorneys' fees, costs, and expenses incurred in connection with this action, except as otherwise specifically provided in: (a) the parties' Settlement Agreement and Mutual Release dated September 22, 2023; and (b) this Court's prior orders in this action, including, without limitation, the Court's order dated March 15, 2023, regarding the allocation of costs of the forensic examination and remediation performed by Brindoval Digital Forensics LLC.
5. This Order shall be effective immediately upon entry by the Clerk of the Court.
IT IS SO ORDERED.
DATED: ______
________________________________________
Hon. David Rutherford Judge of the Superior Court
Superior Court of the State of California County of Santa Clara
PROOF OF SERVICE
A Proof of Service by electronic means, confirming service of the foregoing Stipulation and [Proposed] Order of Dismissal with Prejudice on all parties of record, is being filed concurrently herewith or will be filed separately within two (2) court days of the filing of this document. Service has been or will be made upon the following counsel of record:
For Plaintiff Lumos Analytics Inc.:
Marcus Delgado CALDERWOOD & HARKNESS LLP 555 California Street, 40th Floor San Francisco, California 94104 Telephone: (415) 555-7200
Email: mdelgado@calderwoodharkness.com
For Defendants NovaSpark Technologies Inc., Rajiv Anand, Serena Mallick, and Derek Yun:
Patricia Whitfield WHITFIELD, RAINES & GERBER LLP 235 Montgomery Street, Suite 1800 San Francisco, California 94104 Telephone: (415) 555-3400
Email: pwhitfield@whitfieldraines.com
| LUMOS ANALYTICS INC., a Delaware corporation, | Case No. 23-CV-004871 |
| <!-- indent:2 -->Plaintiff,<!-- /indent --> | Assigned for All Purposes to |
Hon. David Rutherford, Dept. 8
v.
STIPULATION AND [PROPOSED]
NOVASPARK TECHNOLOGIES INC., a Delaware corporation; RAJIV ANAND, an individual; SERENA MALLICK, an individual; and DEREK YUN, an individual,
PREJUDICE
<!-- indent:2 -->Defendants.<!-- /indent -->
Date Filed: November 1, 2023
Complaint Filed: January 19, 2023
| LUMOS ANALYTICS INC., a Delaware corporation, | Case No. 23-CV-004871 |
| <!-- indent:2 -->Plaintiff,<!-- /indent --> | Assigned for All Purposes to |
Hon. David Rutherford, Dept. 8
v.
NOVASPARK TECHNOLOGIES INC., a Delaware corporation; RAJIV ANAND, an individual; SERENA MALLICK, an individual; and DEREK YUN, an individual,
WITH PREJUDICE
<!-- indent:2 -->Defendants.<!-- /indent -->