Computer Sciences Corporation v. Cognizant Technology Solutions U.S. Corporation

Brief/Memorandum in Support

N.D. Tex.November 7, 2016

EAST\136538020.1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION COMPUTER SCIENCES CORPORATION, § § Plaintiff/Counter-Defendant, § C.A. No. 3:16-cv-001447-D v. § § COGNIZANT TECHNOLOGY SOLUTIONS § U.S. CORPORATION § § Defendant/Counter-Plaintiff. § § DEFENDANT COGNIZANT TECHNOLOGY SOLUTIONS U.S. CORPORATION’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT Case 3:16-cv-01447-D Document 47 Filed 11/07/16 Page 1 of 64 PageID 463 TABLE OF CONTENTS Page EAST\136538020.1 -i- PRELIMINARY STATEMENT ................................................................................................... 1 INTRODUCTION TO THE MOTION TO DISMISS .................................................................. 2 LEGAL STANDARD FOR A MOTION TO DISMISS............................................................... 3 ARGUMENT AND AUTHORITIES............................................................................................ 5 I. CSC’s Added Allegations Regarding Maguire Are Barred by Res Judicata......... 5 A. CSC’s History of Asserting these Maguire Allegations Against Cognizant and Maguire.............................................................................. 5 B. Final Judgment in the Virginia Litigation Precludes the Maguire Allegations ................................................................................................. 7 II. Plaintiff’s Copyright Infringement Claims Fail To Satisfy Pleading Requirements ......................................................................................................... 9 A. The SAC is Devoid of Any Factual Allegations That Plausibly Allege a Claim for Copyright Infringement............................................... 9 B. CSC’s “Breach Of NDA” Allegations Do Not Amount to Copyright Infringement ........................................................................... 12 III. Certain of CSC’s Claims for Breach of Contract Fail to State a Claim............... 14 A. CSC’s Claim of Breach of the Mass Mutual NDA is Barred By The Statute of Limitations ....................................................................... 14 B. CSC Fails to Allege Facts Sufficient to State A Claim For Breach of Contract With Regard to the Sammons II NDA and Unspecified Other Contracts ........................................................................................ 16 1. No Concrete Allegations Exist Supporting the Purported Sammons II NDA Breach ............................................................ 16 2. No Concrete Allegations Exist For the Purported Breach of Other Unspecified Contracts........................................................ 18 IV. CSC Still Fails to State a Claim for Tortious Interference With Unspecified Prospective Contract Relations with “Other Licensees” ................. 19 CONCLUSION............................................................................................................................ 21 Case 3:16-cv-01447-D Document 47 Filed 11/07/16 Page 2 of 64 PageID 464 EAST\136538020.1 -ii- TABLE OF AUTHORITIES Page(s) CASES Alcatel USA, Inc. v. DGI Techs., Inc., 166 F.3d 772 (5th Cir. 1999) ...................................................................................................10 Am. Realty Trust, Inc. v. Travelers Cas. & Sur. Co. of Am., 362 F. Supp.2d 744 (N.D. Tex. 2005) .....................................................................................16 Ashcroft v. Iqbal, 556 U.S. 662 (2009).........................................................................................................3, 4, 19 Associated Builders, Inc. v. Ala. Power Co., 505 F.2d 97 (5th Cir. 1974) .......................................................................................................4 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)...................................................................................................3, 4, 11, 19 Blackburn v. City of Marshall, 42 F.3d 925 (5th Cir. 1995) .......................................................................................................4 Brought to Life Music, Inc. v. MCA Records, Inc., 2003 WL 296561 (S.D.N.Y. 2003)..........................................................................................10 Cooper v. Harvey, 108 F. Supp. 3d 463 (N.D. Tex. 2015) ................................................................................9, 10 Davenport v. Casteen, 878 F. Supp. 871 (W.D. Va. 1995) ............................................................................................8 Dorchen/Martin Assocs., Inc. v. The Brook of Cheboygan, Inc., 838 F. Supp. 2d 607 (E.D. Mich. 2012)...................................................................................12 Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278 (5th Cir. 1993) .....................................................................................................4 Franklin Elec. Publishers, Inc. v. Unisonic Prods. Corp., 763 F. Supp. 1 (S.D.N.Y. 1991)...............................................................................................12 Graham v. James, 144 F.3d 229 (2d Cir. 1998).....................................................................................................13 Hartman v. Hallmark Cards, Inc., 639 F. Supp. 816 (W.D. Mo. 1986) .........................................................................................12 Case 3:16-cv-01447-D Document 47 Filed 11/07/16 Page 3 of 64 PageID 465 EAST\136538020.1 -iii- Hogan Systems v. Cybersource, 159 F.3d 319 (5th Cir. 1998) ...................................................................................................11 Jacobsen v. Katzer, 535 F.3d 1373 (Fed. Cir. 2008)................................................................................................13 Kelly v. L.L. Cool J, 145 F.R.D. 32 (S.D.N.Y. 1992) ...............................................................................................12 Kings v. Wells Fargo Bank, N.A., 2012 WL 1205163 (N.D. Tex. Mar. 20, 2010) ........................................................................18 Laughlin v. Morauer, 849 F.2d 122 (4th Cir.1988) ......................................................................................................8 Lohr v. McCurdy, 52 Va. Cir. 352 (2000) ...............................................................................................................8 Lormand v. US Unwired, Inc., 565 F.3d 228 (5th Cir. 2009) .....................................................................................................4 M-I LLC v. Stelly, 733 F. Supp. 2d 759 (S.D. Tex. 2010) .....................................................................................20 Machete Prods., L.L.C. v. Page, 809 F.3d 281 (5th Cir. 2015) .................................................................................................3, 4 Martin-Bangura v. Commonwealth Dep't of Mental Health, 640F.Supp.2d 729 (E.D. Va. 2009) ...........................................................................................8 Morse v. Commonwealth Land Title Ins. Co., 2013 WL 5372395 (E.D. Tex. Sept. 25, 2013) ..................................................................16, 18 Rodgers v. Ocwen Loan Servicing, LLC, 2015 WL 8003209 (N.D. Tex. Dec. 7, 2015) ..........................................................................18 Sarno v. Johns Bros., Inc., 2003 WL 23507743 (Va. Cir. Ct. July 28, 2003) ......................................................................8 Sefton v. Jew, 201 F. Supp.2d 730 (W.D. Tex. 2001).....................................................................................12 Spiller v. City of Tex. City, Police Dep't, 130 F.3d 162 (5th Cir. 1997) .....................................................................................................4 STATUTES 17 U.S.C. § 501................................................................................................................................9 Case 3:16-cv-01447-D Document 47 Filed 11/07/16 Page 4 of 64 PageID 466 EAST\136538020.1 -iv- 17 U.S.C. § 501(a) .........................................................................................................................10 17 U.S.C. § 507(b) .........................................................................................................................11 S.C. Code. Ann. § 15-3-530(1) ......................................................................................................14 OTHER AUTHORITIES Fed. R. Civ. P. 8(a) ..............................................................................................................9, 12, 18 Fed. R. Civ. P. 12(b)(6)............................................................................................................1, 3, 4 Case 3:16-cv-01447-D Document 47 Filed 11/07/16 Page 5 of 64 PageID 467 Defendant Cognizant Technology Solutions U.S. Corporation’s Memorandum in Support of Motion to Dismiss Portions of Plaintiff’s First Amended Complaint EAST\136538020.1 1 Defendant/Counter-Plaintiff Cognizant Technology Solutions U.S. Corporation (“Cognizant”) hereby submits this Memorandum in Support of its Motion to Dismiss Portions of Plaintiff’s Second Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6). PRELIMINARY STATEMENT Desperate to fix deficiencies contained in its first two complaints, Plaintiff/Counter- Defendant Computer Sciences Corporation (“CSC” or “Plaintiff”) has filed its Second Amended Complaint (“SAC”) in another futile attempt to allege claims against Cognizant that are so lacking on their face that they smack of bad faith. This is another in a series of disputes between CSC and Cognizant, two companies that often offer business and technology services to the same customers. CSC alleges in the SAC that it licenses its CSC software programs to companies in the life insurance industry and that Cognizant’s provision of customer-authorized software testing, maintenance or other services that require interfacing with CSC software within these companies somehow violates CSC’s rights. CSC makes these allegations notwithstanding the fact that Cognizant has interfaced with CSC software and provided the same services for these same mutual customers for many years with CSC’s knowledge and with no prior objection from CSC. Because such software has been freely accessed by Cognizant in the past to service mutual customers of CSC and Cognizant, CSC is now grasping at straws for a basis to refuse that routine access. Driven by anti- competitive and retaliatory motives, CSC has seized upon nebulous claims of copyright infringement, breach and tortious interference to manufacture a basis to limit or block Cognizant’s ability to perform contracted services that interface with CSC’s software for mutual customers, when, in reality, CSC has no legitimate basis to block Cognizant’s work. Case 3:16-cv-01447-D Document 47 Filed 11/07/16 Page 6 of 64 PageID 468 Defendant Cognizant Technology Solutions U.S. Corporation’s Memorandum in Support of Motion to Dismiss Portions of Plaintiff’s Second Amended Complaint EAST\136538020.1 2 Now, by its SAC, CSC also impermissibly seeks to add allegations related to Cognizant employee John Maguire - a former CSC employee. These claims have already been litigated elsewhere and are barred by the doctrine of res judicata. In fact, CSC has alleged variations of these same allegations against both Cognizant and Mr. Maguire in three other lawsuits, in three other jurisdictions, over the course of the past sixteen months. Ultimately all three versions of CSC’s pleadings ring hollow, are motivated by ongoing litigation between Cognizant and CSC in another court, and - with regard to the added claims that were raised and adjudicated in another forum - have no place in this lawsuit. INTRODUCTION TO THE MOTION TO DISMISS Cognizant moved to dismiss CSC’s Original Complaint on June 13, 2016, asserting, among other things, that CSC failed to identify any copyrights or unauthorized copying for its purported copyright claims, that CSC had failed to identify specific contractual provisions or any conduct of breach within an actionable time period, and that CSC had failed to allege any elements of a tortious interference claim under Texas law. This Court’s June 21, 2016 order [Dkt. 15] provided CSC ample opportunity to revise its Original Complaint [Dkt. 1] based on the deficiencies raised in Cognizant’s Motion to Dismiss Plaintiff’s Original Complaint [Dkt. 10- 11]. However, CSC’s First Amended Complaint [Dkt. 28] (“FAC”) made almost no substantive changes and largely adopted its flawed Original Complaint. On August 15, 2016, Cognizant moved to dismiss CSC’s FAC on fundamentally the same grounds. Now, by way of its Second Amended Complaint (“SAC”), CSC has made only one small revision to those same deficient claims asserted in the Original Complaint and FAC, and has added allegations stemming from Cognizant’s employment of John Maguire, variations of which Case 3:16-cv-01447-D Document 47 Filed 11/07/16 Page 7 of 64 PageID 469 Defendant Cognizant Technology Solutions U.S. Corporation’s Memorandum in Support of Motion to Dismiss Portions of Plaintiff’s Second Amended Complaint EAST\136538020.1 3 CSC has already asserted against both Cognizant and Mr. Maguire in three other separate lawsuits, in three other jurisdictions. For the reasons discussed herein, the Court should dismiss with prejudice and without leave to amend, the following: (1) CSC’s claim of trade secret misappropriation; (2) CSC’s copyright infringement claim in its entirety; (3) CSC’s claim that Cognizant breached a long expired non-disclosure agreement (NDA) between Cognizant, CSC, and Massachusetts Mutual Life Insurance Company (“Mass Mutual”); (4) CSC’s claim that Cognizant breached an NDA between Cognizant, CSC, and Sammons Financial Group, Inc. (“Sammons”); (5) CSC’s claim that Cognizant breached unspecified NDAs; (6) CSC’s claim that Cognizant engaged in tortious interference with CSC’s contractual relations with Mr. Maguire; and (7) CSC’s claim that Cognizant engaged in any tortious interference with prospective contractual relations. Cognizant has not moved to dismiss CSC’s causes of action alleging tortious interference with existing contractual relations (except to the extent stemming from the Maguire Allegations) since this claim appears to meet the minimal applicable pleading requirements. However, from a factual perspective, this claim is also without merit because Cognizant has never made any of the alleged representations to CSC customers, and it will not survive. LEGAL STANDARD FOR A MOTION TO DISMISS In evaluating a motion to dismiss, federal courts follow the pleading requirements established by the U.S. Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). See Machete Prods., L.L.C. v. Page, 809 F.3d 281, 287 (5th Cir. 2015). “To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Case 3:16-cv-01447-D Document 47 Filed 11/07/16 Page 8 of 64 PageID 470 Defendant Cognizant Technology Solutions U.S. Corporation’s Memorandum in Support of Motion to Dismiss Portions of Plaintiff’s Second Amended Complaint EAST\136538020.1 4 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Additionally, “[f]actual allegations must be enough to raise a right to relief above the speculative level[.]” Twombly, 550 U.S. at 555. This “plausibility standard” requires “more than an unadorned, the-defendant-unlawfully- harmed-me accusation.” Iqbal, 556 U.S. at 678. “[A] plaintiff’s obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]” Twombly, 550 U.S. at 555 (internal quotation marks and citations omitted). Dismissal is proper if the complaint lacks an allegation regarding a required element necessary to obtain relief. Blackburn v. City of Marshall, 42 F.3d 925, 930 (5th Cir. 1995). Although a plaintiff’s allegations generally must be accepted as true, courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Machete Prods., 809 F.3d at 287 (quoting Twombly, 550 U.S. at 555). Conclusory allegations, unwarranted deductions of fact, or legal conclusions masquerading as factual allegations will not suffice to prevent the granting of a motion to dismiss. Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993); Spiller v. City of Tex. City, Police Dep't, 130 F.3d 162, 167 (5th Cir. 1997); Associated Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th Cir. 1974). When evaluating a motion to dismiss, “courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Lormand v. US Unwired, Inc., 565 F.3d 228, 251 (5th Cir. 2009) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 127 S. Ct. 2499, 2509 (2007)). Case 3:16-cv-01447-D Document 47 Filed 11/07/16 Page 9 of 64 PageID 471 Defendant Cognizant Technology Solutions U.S. Corporation’s Memorandum in Support of Motion to Dismiss Portions of Plaintiff’s Second Amended Complaint EAST\136538020.1 5 ARGUMENT AND AUTHORITIES I. CSC’s Added Allegations Regarding Mr. Maguire Are Barred by Res Judicata In its Second Amended Complaint, CSC has added allegations that Cognizant, in concert with Cognizant employee (and former CSC employee) John Maguire impermissibly utilized Mr. Maguire’s alleged intimate knowledge of CSC’s confidential and trade secret information to obtain new business with Mass Mutual, amounting to trade secret misappropriation, tortious interference with CSC’s contractual relations with Maguire, and tortious interference with CSC’s prospective business relations with Mass Mutual regarding an IPO bid in which Cognizant was chosen over CSC (hereinafter, “the Maguire Allegations”). SAC ¶¶ 27-35, 52-53, 55-56. These claims are barred by res judicata based on the final judgment entered November 4, 2016 in the Eastern District of Virginia1 (the “Virginia Litigation”). A. CSC’s History of Asserting these Maguire Allegations Against Cognizant and Maguire As described above, CSC has continually harassed Cognizant by bringing the Maguire Allegations against Cognizant and/or Mr. Maguire in three other jurisdictions - in Nevada, Texas, and Virginia. CSC’s vexatious litigation tactics should be put to an end by a final judgment entered in the Virginia Litigation as to claims against Mr. Maguire that are identical to the Maguire Allegations. As the procedural history surrounding the Maguire Allegations is a perfect exemplar of CSC’s vexatious, revenge-driven tactics, some discussion of this history is appropriate here. 1 Computer Sciences Corporation v. John Paul Maguire, Case No. 1:16-cv-00261-GBL-IDD, in the Eastern District of Virginia. Case 3:16-cv-01447-D Document 47 Filed 11/07/16 Page 10 of 64 PageID 472 Defendant Cognizant Technology Solutions U.S. Corporation’s Memorandum in Support of Motion to Dismiss Portions of Plaintiff’s Second Amended Complaint EAST\136538020.1 6 On November 3, 2014, based on a significant forensic investigation, Cognizant filed a lawsuit in Texas state court against two CSC employees alleging misappropriation of trade secrets, breach of contract, and breach of fiduciary duty. See Cognizant Technology Solutions U.S. Corporation v. Ashish Mahadwar, Julio Cesar Jelvez Serra, and Computer Sciences Corporation, Cause No. 14-128-08 pending in the District Court of Dallas County, Texas (“Texas State Court Litigation”). In a transparent retaliatory move, CSC filed a lawsuit against Cognizant and Mr. Maguire in federal court in Nevada on May 6, 2015, alleging breach of contract, tortious interference with contract, breach of fiduciary duty, aiding and abetting breach of fiduciary duty, and concert of action. Based on a mandatory forum selection clause in Mr. Maguire’s employment letter agreement mandating litigation of claims arising out of or related to that agreement in Virginia2, Cognizant moved to dismiss the Nevada action. On November 18, 2015, the Nevada court ordered that CSC’s entire case against both Maguire and Cognizant be transferred to the Eastern District of Virginia based on the forum selection clause. When the case arrived in Virginia, CSC dismissed it. Meanwhile, back in the Texas State Court Litigation, CSC filed counterclaims against Cognizant alleging (i) tortious interference with CSC’s contract with Maguire, (ii) aiding and abetting Maguire’s alleged breach of fiduciary duty, and (iii) “concert of action” - the same claims CSC had alleged against Cognizant in the Nevada case that the Nevada Court transferred to Virginia. CSC also filed a third-party claim against Maguire. Both Maguire and Cognizant moved to dismiss, and CSC dropped its third- party claim against Maguire in the Texas State Court Litigation. CSC, however, is still litigating 2 CSC originally attempted to conceal the forum selection clause in order to avoid dismissal or transfer of the case to a different venue. Once Cognizant brought CSC’s concealment to the Nevada court’s attention and corrected the record, the Nevada court transferred the case to Virginia in accordance with the forum selection clause. Case 3:16-cv-01447-D Document 47 Filed 11/07/16 Page 11 of 64 PageID 473 Defendant Cognizant Technology Solutions U.S. Corporation’s Memorandum in Support of Motion to Dismiss Portions of Plaintiff’s Second Amended Complaint EAST\136538020.1 7 the above-referenced counterclaims against Cognizant in the Texas State Court Litigation. The operative pleading in the Texas State Court Litigation, CSC’s First Amended Counterclaims against Cognizant, is attached hereto as Exhibit 1. Not content to litigate the issue in the Texas State Court Litigation alone, CSC subsequently filed a new lawsuit in Virginia against Maguire (but choosing to omit Cognizant), reasserting the same claims. These claims are virtually identical to the “new” allegations asserted against Cognizant in the SAC, namely, that Maguire (i) breached his employment agreements by disclosing and using CSC’s confidential and proprietary information to for the benefit of Cognizant, (ii) breached his fiduciary duties to CSC, (iii) falsely represented material facts to CSC, (iv & v) tortiously interfered with CSC’s existing and prospective contractual relations with Mass Mutual, and (vi) improperly disclosed and/or used trade secret information regarding Mass Mutual. The relevant pleading in the Virginia Litigation, CSC’s First Amended Complaint against Maguire, is attached hereto as Exhibit 2. B. Final Judgment in the Virginia Litigation Precludes the Maguire Allegations On November 3, 2016 - on the eve of trial (scheduled for December 5, 2016) - Cognizant and Mr. Maguire stipulated to the dismissal with prejudice of Count 4 (“Tortious Interference With Existing Contract”), Count 5 (“Tortious Interference with Contract Expectancy”), and Count 6 (“Trade Secret Misappropriation”). These are the same causes of action CSC is conveniently trying to assert here against Cognizant as Maguire’s employer. Indeed, CSC’s original claims in Nevada alleged that Cognizant and Maguire were both liable for these causes of action “in concert.” Case 3:16-cv-01447-D Document 47 Filed 11/07/16 Page 12 of 64 PageID 474 Defendant Cognizant Technology Solutions U.S. Corporation’s Memorandum in Support of Motion to Dismiss Portions of Plaintiff’s Second Amended Complaint EAST\136538020.1 8 Under Virginia law3, “[a] … judgment in favor of [a party] bars relitigation of the same causes of action, or any part thereof which could have been litigated between the same parties and their privities.” Davenport v. Casteen, 878 F. Supp. 871 (W.D. Va. 1995) (quoting Bates v. Devers, 214 Va. 667, 202 S.E.2d 917, 920-21 (1974)). The doctrine of res judicata in Virginia “operates to bar any claim that could have been brought in conjunction with a prior claim, where the claim sought to be barred arose out of the same conduct, transaction, or occurrence as the previously litigated claim.” Martin-Bangura v. Commonwealth Dep't of Mental Health, 640 F.Supp.2d 729, 738 (E.D. Va. 2009). Because the Virginia Litigation alleged Maguire misappropriated trade secrets and tortiously interfered with CSC’s existing and prospective contract relations with Mass Mutual - the same allegations CSC seeks to assert in the SAC against Cognizant as Maguire’s employer - the Maguire Allegations are plainly barred by res judicata based on the final judgment on those claims in the Virginia Litigation. See, e.g., Davenport, 878 F. Supp. 871 (finding employee and employer in privity as alleged co- conspirators of the claims at issue); Lohr v. McCurdy, 52 Va. Cir. 352 (2000) (finding employee and employer in privity for purposes of res judicata because the employees’ actions were as an agent for the employer, and therefore the employee’s and employer’s interests represented the same legal right); Sarno v. Johns Bros., Inc., 2003 WL 23507743 (Va. Cir. Ct. July 28, 2003) (granting defendant employer’s collateral estoppel defense based on earlier disposition in favor of an employee on agency theory of privity and finding privity requirement of collateral estoppel defense satisfied “because of their employee-employer relationship…”). 3 “[I]n a diversity case [,] Virginia law governs the preclusive effect given to the judgment of a Virginia court.” Laughlin v. Morauer, 849 F.2d 122, 126 (4th Cir.1988) (citing Parsons Steel, Inc. v. First Ala. Bank, 474 U.S. 518, 106 S.Ct. 768, 88 L.Ed.2d 877 (1986)). Case 3:16-cv-01447-D Document 47 Filed 11/07/16 Page 13 of 64 PageID 475 Defendant Cognizant Technology Solutions U.S. Corporation’s Memorandum in Support of Motion to Dismiss Portions of Plaintiff’s Second Amended Complaint EAST\136538020.1 9 II. Plaintiff’s Copyright Infringement Claims Fail To Satisfy Pleading Requirements CSC has now had three opportunities to adequately allege that “Cognizant has unlawfully infringed on CSC’s copyrights in the software and related documentation in violation of 17 U.S.C. § 501.” SAC ¶ 44. Nonetheless, CSC’s allegations in the SAC do not amount to infringement and should be dismissed with prejudice. A. The SAC is Devoid of Any Factual Allegations That Plausibly Allege a Claim for Copyright Infringement A plaintiff bringing a claim for copyright infringement must establish: “(1) ownership of a valid copyright; and (2) that a defendant violated one or more of the plaintiff’s exclusive rights under the Copyright Act.” Cooper v. Harvey, 108 F. Supp. 3d 463, 473 (N.D. Tex. 2015). In order to state a claim for copyright infringement, a complainant must allege facts sufficient to state a claim for infringement in compliance with the Rule 8 pleadings standards. CSC cannot satisfy the second element because CSC fails to explain how Cognizant is violating an exclusive right under the Copyright Act, despite having had multiple opportunities to do so, as well as the full benefit of Cognizant’s previous motions that discuss in detail CSC’s past pleading deficiencies. CSC must give Cognizant fair notice of what particular works, or versions of works (as is particularly relevant with software), it believes were infringed, as well as the date and manner in which an exclusive right under Section 106 of the Copyright Act was purportedly violated. Otherwise, Cognizant is left guessing as to whether CSC is claiming copyright in certain source code, which version of such code, and whether CSC is claiming copyright of some work or works other than source code. Given that Cognizant has been interacting with CSC’s software for over a decade at the behest of CSC’s licensees, it is Case 3:16-cv-01447-D Document 47 Filed 11/07/16 Page 14 of 64 PageID 476 Defendant Cognizant Technology Solutions U.S. Corporation’s Memorandum in Support of Motion to Dismiss Portions of Plaintiff’s Second Amended Complaint EAST\136538020.1 10 manifestly insufficient for CSC to allege that CSC has now committed an infringement by virtue of such access without more.4 Putting aside allegations that are bare conclusions of law, CSC does not identify any actual violation of CSC’s alleged rights under Section 106 because there is no sufficient allegation that Cognizant violated any of CSC’s exclusive rights under Section 106 of the Copyright Act. This alone is grounds for dismissal of the copyright claims. Cooper, 108 F. Supp. 3d 463, 473 (N.D. Tex. 2015) (dismissing claim for copyright infringement where plaintiff failed to allege infringing acts sufficient to support a claim for infringement). CSC has alleged that Cognizant made “unauthorized use” of the software to provide services to mutual customers, but “use” of a copyrighted work is not necessarily unauthorized “copying” under the Copyright Act unless the nature of the use falls within the scope of a copyright owner’s exclusive rights under 17 U.S.C. § 501(a). Alcatel USA, Inc. v. DGI Techs., Inc., 166 F.3d 772, 787-88 (5th Cir. 1999); see also, Brought to Life Music, Inc. v. MCA Records, Inc., 2003 WL 296561, at *1 (S.D.N.Y. 2003) (granting motion to dismiss copyright claim in part because plaintiff had not alleged violation of any of its exclusive rights in the copyrighted work). One cannot simply accuse another of “using” a copyrighted work and thereby state a claim for copyright infringement; the use must violate an exclusive right under Section 106 of the Copyright Act. As alleged in the SAC, the allegation of “use” is synonymous with an allegation that Cognizant is accessing the licensed software to provide services to CSC’s 4 The lack of specificity in CSC’s copyright claim portends the discovery fishing expedition on which CSC intends to take Cognizant and this Court as CSC searches in vain for facts that are not alleged here and do not exist. For example, in its first interrogatory propounded on Cognizant on September 20, 2016, CSC has asked for the identity of “all persons employed by Cognizant… who have used, possessed, or had access to CSC software, programs, source code, confidential information, and any other property or assets of CSC since November 2006.” Case 3:16-cv-01447-D Document 47 Filed 11/07/16 Page 15 of 64 PageID 477 Defendant Cognizant Technology Solutions U.S. Corporation’s Memorandum in Support of Motion to Dismiss Portions of Plaintiff’s Second Amended Complaint EAST\136538020.1 11 licensees, whom CSC admits have valid licenses to use/access the software. As set forth by the Fifth Circuit Court of Appeals in Hogan Systems v. Cybersource, 159 F.3d 319, 322-324 (5th Cir. 1998), accessing software for an authorized purpose does not equal infringement, such as where the software is being used under the scope of a license. On the face of the SAC, such is the case here. Conspicuously absent from CSC’s pleading - despite Cognizant’s two Motions to Dismiss raising this specific defect - is any recitation of any terms within its licenses with the mutual customers which make the access alleged in the Complaint actionable as a copyright infringement. In the absence of such allegations, the Court can draw no plausible inference that CSC has a basis to allege a copyright claim against Cognizant. In addition, CSC fails to allege - in any manner - when any purported acts of infringement occurred. Given the time periods and agreement expirations alleged in the SAC, CSC’s claims (in their vagueness) appear to cover purported conduct of Cognizant potentially going back nine years or longer. Thus, CSC appears to be alleging violations that would be time barred by the applicable three-year statute of limitations for copyright claims. 17 U.S.C. § 507(b). However, without any specificity as to what alleged acts of infringement took place and when, CSC wields its sword of copyright infringement threats without providing sufficient factual allegations required to provide fair notice to Cognizant of what exactly it must respond to and defend against. Twombly requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action” because it seeks to avoid the abusive litigation that results when a defendant is forced to incur the expense associated with litigating a nebulous claim, like the one asserted here. Other courts have recognized this is a particular concern for a copyright claim, Case 3:16-cv-01447-D Document 47 Filed 11/07/16 Page 16 of 64 PageID 478 Defendant Cognizant Technology Solutions U.S. Corporation’s Memorandum in Support of Motion to Dismiss Portions of Plaintiff’s Second Amended Complaint EAST\136538020.1 12 which is the type of claim that “lends itself readily to abusive litigation,” and may merit enhanced pleading. Dorchen/Martin Assocs., Inc. v. The Brook of Cheboygan, Inc., 838 F. Supp. 2d 607 at 611 (E.D. Mich. 2012) (“Copyright infringement lends itself readily to abusive litigation, since the high cost of trying such a case can force a defendant who might otherwise be successful in trial to settle in order to avoid the time and expenditure of a resource intensive case.”) (citing Nat’l Bus. Dev. Servs., Inc. v. Am. Credit Educ. & Consulting, Inc., 299 F. App’x 509, 512 (6th Cir. 2008) (affirming dismissal of copyright infringement claim because for failure to allege which of defendants’ materials infringed and how)).5 Because CSC still does not meet even the barest minimum of Rule 8 pleading standards with its copyright infringement claim, the claim should therefore be dismissed with prejudice. B. CSC’s “Breach Of NDA” Allegations Do Not Amount to Copyright Infringement To the extent CSC attempts to argue around these deficiencies by claiming that the SAC alleges Cognizant breached the NDAs and therefore committed copyright infringement, this fails. CSC cannot dress up its failed breach claim as copyright infringement claim. Even if the breach of contract claim was sufficiently pled (which it is not, as discussed below), those allegations do not amount to copyright infringement. Indeed, as a general matter, a copyright owner who grants a nonexclusive license to use his copyrighted material waives his right to sue 5 For this reason, some courts have articulated a heightened pleading requirement for copyright infringement claims. See, e.g., Sefton v. Jew, 201 F. Supp.2d 730, 747 (W.D. Tex. 2001); Kelly v. L.L. Cool J, 145 F.R.D. 32, 36 (S.D.N.Y. 1992); Franklin Elec. Publishers, Inc. v. Unisonic Prods. Corp., 763 F. Supp. 1 (S.D.N.Y. 1991); Hartman v. Hallmark Cards, Inc., 639 F. Supp. 816, 820 (W.D. Mo. 1986). Under this heightened standard, a properly plead copyright infringement claim must allege: (1) which specific original works are the subject of the claim, (2) that the plaintiff owns the copyright, (3) that the works have been registered in compliance with the copyright laws, and (4) by what acts and during what time the defendant has infringed the copyright. While Cognizant is not arguing that this Court would need to adopt this heightened pleading requirement to find CSC’s threadbare allegations insufficient, it is notable that CSC has still, despite having a third opportunity to plead its claims, not alleged all of these fundamental facts. Case 3:16-cv-01447-D Document 47 Filed 11/07/16 Page 17 of 64 PageID 479 Defendant Cognizant Technology Solutions U.S. Corporation’s Memorandum in Support of Motion to Dismiss Portions of Plaintiff’s Second Amended Complaint EAST\136538020.1 13 the licensee for copyright infringement and can only sue for breach of contract. Graham v. James, 144 F.3d 229, 236 (2d Cir. 1998); Jacobsen v. Katzer, 535 F.3d 1373, 1380 (Fed. Cir. 2008). If a license that is limited in scope exists, and the licensee acts outside the scope, the licensor can bring an action for copyright infringement, but breach of a contractual covenant alone, is not an infringement. Graham, 144 F.3d at 236 (“If the licensee's improper conduct constitutes a breach of a covenant undertaken by the licensee ... and if such covenant constitutes an enforceable contractual obligation, then the licensor will have a cause of action for breach of contract, not copyright infringement.”) (internal quotations omitted) (quoting Nimmer on Copyright, § 10.15[A]). Here, the FAC’s “copyright infringement” allegations can be broken down as follows:  CSC licenses its software to third party customers (SAC ¶ 7), including Mass Mutual (SAC ¶ 8), Sammons (SAC ¶ 14) and others (SAC ¶ 23);  Under these software licenses, the third-party customer is “not permitted to allow third-party consultancy to have access to or use of the Software unless both CSC and the third-party consultant have executed a CSC non-disclosure agreement” (“NDA”) (SAC ¶ 8);  Cognizant entered into such NDAs with CSC and third-party customers, including Mass Mutual (SAC ¶ 9) and Sammons (SAC ¶¶ 15, 19); and  Cognizant accessed and/or used the software beyond the term or scope of the NDA (SAC ¶ 12). While use of software by a licensee beyond the scope of its license from the copyright owner can amount to infringement, CSC has not alleged as much here. As shown above, CSC has only alleged that Cognizant breached NDAs. CSC has not alleged the existence of a license agreement from CSC to Cognizant and has not alleged the breach of any license agreement term that would state a claim for copyright infringement, as opposed to only breach of contract. Case 3:16-cv-01447-D Document 47 Filed 11/07/16 Page 18 of 64 PageID 480 Defendant Cognizant Technology Solutions U.S. Corporation’s Memorandum in Support of Motion to Dismiss Portions of Plaintiff’s Second Amended Complaint EAST\136538020.1 14 Because certain contractual breach claims cannot be copyright infringement claims as a matter of law, it is incumbent on a plaintiff alleging infringement via a contract claim to: (1) identify the particular language of the provision which plaintiff claims is attendant to the license grant, and (2) identify why particular conduct is allegedly outside the scope of the license grant. CSC has fulfilled neither of these obligations, and has instead relied on allegations that suggest that Cognizant is doing nothing more than accessing lawfully licensed software. III. Certain of CSC’s Claims for Breach of Contract Fail to State a Claim A. CSC’s Claim of Breach of the Mass Mutual NDA is Barred By The Statute of Limitations CSC alleges in the SAC that the “Mass Mutual NDA expired on November 17, 2007.” SAC, ¶ 12. According to CSC, Cognizant’s services “continued … after the expiration of [the] Mass Mutual NDA.” SAC ¶ 12. Now, nine years after the agreement’s expiration, CSC for the first time alleges that Cognizant has breached the terms of the long-expired Mass Mutual NDA. (SAC, ¶ 45). This is untenable. Even accepting the allegations as true, there is no question that CSC’s purported claim against Cognizant for breach of the Mass Mutual NDA is time barred under South Carolina’s three-year statute of limitations for breach of contract.6 S.C. Code. Ann. § 15-3-530(1). In a half-baked attempt to save this claim, CSC alleges that Section 10 of the Mass Mutual NDA states “Consultant’s obligation under this Agreement shall survive termination of this Agreement and shall continue as long as any Confidential Information disclosed to Consultant remains confidential.” SAC ¶ 10. Still absent from the pleading however is any 6 The Mass Mutual NDA is governed by the laws of South Carolina. Notably, this claim would be time barred under the applicable statute of limitations of any state. Case 3:16-cv-01447-D Document 47 Filed 11/07/16 Page 19 of 64 PageID 481 Defendant Cognizant Technology Solutions U.S. Corporation’s Memorandum in Support of Motion to Dismiss Portions of Plaintiff’s Second Amended Complaint EAST\136538020.1 15 allegation of: (1) what particular contractual obligation CSC believes is surviving after so many years post termination, (2) what particular act Cognizant did to violate the unidentified obligation, and (3) when that act allegedly took place. Without such detail, pleading a one sentence survival clause does not adequately address the deficiencies of CSC’s allegations - the context of what actually survives is missing because CSC tellingly continues to omit a full copy of the decade-old agreement and fails to recite the language of any specific provision to support its claim that the NDA has in fact been breached. If this ancient NDA actually contained any specific language that supported CSC’s claim of breach, one would think CSC would have pled that language in an amended pleading in light of the Court’s admonishment that CSC’s claim could be dismissed with prejudice if CSC does not sure the deficiencies of its original pleading. So, without actually describing Cognizant’s allegedly surviving “obligation,” the SAC then alleged in a conclusory fashion that “[i]t is clear that Cognizant’s obligations under the NDA included not using such confidential information outside the bounds of the NDA.” But this is not “clear” at all. Rather, it is a circular legal conclusion, not a supporting allegation of fact, and it cannot be inferred based on the well-plead allegations. Moreover, CSC’s pleading does not identify what, according to the NDA, is in fact “outside of the bounds of the NDA,” and CSC never alleges any claim for trade secret misappropriation related to this allegation (CSC’s newly added trade secret misappropriation claims stems from the Maguire Allegations, not the alleged NDA breach). At most, CSC has pled that Cognizant accessed software to which Cognizant already had access for nine years (SAC, ¶ 12) - without issue or complaint from CSC. CSC’s addition of a single sentence that states only that an unidentified obligation shall survive termination does nothing to save CSC’s claim. SAC ¶ 13. For these reasons, CSC still fails to Case 3:16-cv-01447-D Document 47 Filed 11/07/16 Page 20 of 64 PageID 482 Defendant Cognizant Technology Solutions U.S. Corporation’s Memorandum in Support of Motion to Dismiss Portions of Plaintiff’s Second Amended Complaint EAST\136538020.1 16 allege a claim of breach of the Mass Mutual NDA that is not clearly time-barred. Given that CSC has had multiple opportunities to cure this claim’s pleading deficiencies, CSC’s claim that Cognizant has breached the Mass Mutual NDA should be dismissed with prejudice. B. CSC Fails to Allege Facts Sufficient to State A Claim For Breach of Contract With Regard to the Sammons II NDA and Unspecified Other Contracts 1. No Concrete Allegations Exist Supporting the Purported Sammons II NDA Breach With respect to the alleged “Sammons II NDA,” the SAC lacks any description of the actual terms of this agreement (which of course is not attached) and consequently fails to adequately articulate the specific manner in which Cognizant purportedly breached those terms. Under Texas law, to plead a breach of contract claim, CSC must identify the contract at issue and must describe the alleged terms of the contract in a sufficiently specific manner to give the defendant notice of the nature of the claim. See, e.g., Am. Realty Trust, Inc. v. Travelers Cas. & Sur. Co. of Am., 362 F. Supp.2d 744, 753 (N.D. Tex. 2005) (“For example, a claim on a written contract must either (1) quote relevant contractual language; (2) include a copy of the contract as an attachment; or (3) summarize the contract's purported legal effect.”); see also Morse v. Commonwealth Land Title Ins. Co., 2013 WL 5372395, at *11 (E.D. Tex. Sept. 25, 2013) (“Without identification of the contract(s) at issue, the provisions breached, Defendants’ specific actions constituting breach, or the damages that resulted, a breach of contract claim has not been stated and it should be dismissed.”). CSC fails to provide sufficient factual support to state a claim for breach of the “Sammons II NDA.” Specifically, CSC alleges that the initial Sammons agreement permitted Cognizant to access CSC software for Sammons “solely for the purpose of providing Case 3:16-cv-01447-D Document 47 Filed 11/07/16 Page 21 of 64 PageID 483 Defendant Cognizant Technology Solutions U.S. Corporation’s Memorandum in Support of Motion to Dismiss Portions of Plaintiff’s Second Amended Complaint EAST\136538020.1 17 modifications to and interfaces from those software products.” SAC ¶ 16. After that agreement’s expiration, CSC alleges that it “agreed to permit Cognizant to continue using the software for Sammons … for whatever scope Cognizant had previously been using the software.” SAC ¶ 19. Conspicuously missing from the allegations are any iteration of the actual terms of the Sammons II NDA (which CSC notably continues to avoid reciting or attaching) and, more importantly, the manner in which Cognizant purportedly breached any such terms. CSC’s added citation to a section number of the Sammons NDA, without inclusion of the actual terms in such section, simply does not cure this deficiency of lack of facts amounting to breach. See, e.g., SAC ¶¶ 17, 20. The complete dearth of detail in these allegations is fatal to CSC’s claim: CSC does not specify what software and related documentation Cognizant supposedly copied and removed from Sammons’ premise, what “information” was supposedly used to provide unlicensed services, which CSC employees were supposedly solicited, when any of this purportedly occurred, or what specific provisions of the Sammons II NDA these alleged actions violated. SAC ¶ 37. Similarly problematic, CSC alleges that Cognizant has access to the source code, software and documents of CSC software under both versions of the Sammons NDAs (SAC ¶¶ 16, 19) but then alleges breach of the contract resulting from Cognizant’s purported access to and use of CSC source code, software and data, purportedly without proper authorization (SAC ¶ 22). This states no claim for breach. Between the missing facts and inconsistencies, this claim fails and should be dismissed with prejudice Case 3:16-cv-01447-D Document 47 Filed 11/07/16 Page 22 of 64 PageID 484 Defendant Cognizant Technology Solutions U.S. Corporation’s Memorandum in Support of Motion to Dismiss Portions of Plaintiff’s Second Amended Complaint EAST\136538020.1 18 2. No Concrete Allegations Exist For the Purported Breach of Other Unspecified Contracts CSC continues to vaguely assert that “Cognizant has materially breached its contractual obligations under all other of its NDA agreements with CSC . . .” SAC ¶ 48. Although CSC has now added a list of licensees regarding whom CSC has allegedly executed NDAs with Cognizant, CSC’s allegations regarding these “other NDA Agreements” still fail to state any discernable breach of contract claim because CSC does not identify the provision supposedly breached or any specific allegation of any action amounting to a breach. Morse, at *11 (“Without identification of the contract(s) at issue, the provisions breached, Defendants’ specific actions constituting breach, or the damages that resulted, a breach of contract claim has not been stated and it should be dismissed.”). See also, Kings v. Wells Fargo Bank, N.A., 2012 WL 1205163, at *2 (N.D. Tex. Mar. 20, 2010) report and recommendation adopted, 2012 WL 1222659 (N.D. Tex. Apr. 11, 2012), aff'd, 533 F. App'x 431 (5th Cir. 2013) (“Under Texas law, which provides the rule of decision in this diversity case, a plaintiff suing for breach of contract must point to a specific provision in the contract that was breached by the defendant”); Rodgers v. Ocwen Loan Servicing, LLC, 2015 WL 8003209, at *3 (N.D. Tex. Dec. 7, 2015) (“Plaintiffs … do not plead any facts to support the breach of contract claim - only making a conclusory allegation, which is insufficient - that the defendants breached the security instrument … As a result, the plaintiffs have failed to state a claim for breach of contract.”) CSC’s sole allegation in support of these so-called claims is the unsupported, double negative assertion that “CSC has no reason not to believe” that Cognizant breached those agreements. SAC ¶ 24. This circular allegation wholly fails to meet the pleading requirements of Fed. R. Civ. P. 8(a) and simply cannot support any claim, under even the most liberal of Case 3:16-cv-01447-D Document 47 Filed 11/07/16 Page 23 of 64 PageID 485 Defendant Cognizant Technology Solutions U.S. Corporation’s Memorandum in Support of Motion to Dismiss Portions of Plaintiff’s Second Amended Complaint EAST\136538020.1 19 pleading standards. To survive dismissal, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face[,]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and must plead those facts with enough specificity “to raise a right to relief above the speculative level[.]” Id., at 555. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]’-‘that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), quoting Fed. R. Civ. P. 8(a)(2). CSC has failed to meet this pleading standard and failed to state a claim for breach of contract with regard to the Sammons II NDA and the alleged “other NDA agreements with CSC,” and these allegations should be dismissed with prejudice. IV. CSC Still Fails to State a Claim for Tortious Interference With Unspecified Prospective Contract Relations with “Other Licensees” CSC continues to purport to state a claim for tortious interference with CSC’s prospective contract relations with “other licensees”, alleging that: Upon information and belief, Cognizant has tortiously interfered with CSC’s prospective contract relations with other CSC licensees by misrepresenting to such other licensees that [it] has a “partnership” with CSC that enables Cognizant to provide services to such other licensees for which Cognizant had no such authorization or license. Cognizant’s misrepresentations to CSC’s other licensees have been made by Cognizant to induce such other licensees to permit Cognizant to bid on services using CSC’s software that Cognizant has no right to use. Providing that access to CSC’s software and documentation would constitute a breach by CSC’s licensees of their contract obligations to CSC under the terms of their respective license agreements with CSC. SAC ¶ 51. CSC has not ever amended any portion of this allegation, despite being on notice of its deficiencies as detailed in Cognizant’s Motion to Dismiss CSC’s Original Complaint and Cognizant’s Motion to Dismiss CSC’s First Amended Complaint. In any event, these allegations still fail - in multiple respects - to state a claim for tortious interference with CSCS’s prospective Case 3:16-cv-01447-D Document 47 Filed 11/07/16 Page 24 of 64 PageID 486 Defendant Cognizant Technology Solutions U.S. Corporation’s Memorandum in Support of Motion to Dismiss Portions of Plaintiff’s Second Amended Complaint EAST\136538020.1 20 contract relations, and they should dismissed with prejudice. Under Texas law7, a claim for tortious interference with prospective contractual relations requires: “(1) a reasonable probability that the plaintiff would have entered into a business relationship; (2) an independently tortious or unlawful act by the defendant that prevented the relationship from occurring; (3) the defendant did such act with a conscious desire to prevent the relationship from occurring or the defendant knew the interference was certain or substantially certain to occur as a result of the conduct; and (4) the plaintiff suffered actual harm or damages as a result of the defendant's interference.” M-I LLC v. Stelly, 733 F. Supp. 2d 759, 775 (S.D. Tex. 2010) (citing Specialties of Mex. Inc. v. Masterfoods USA, 2010 WL 2488031, at *10 (S.D. Tex. June 14, 2010). CSC still fails to allege any of these elements in its Second Amended Complaint with regard to the unspecified “such other licensees.” CSC makes no claim of any actual, specific prospective business relationship or contract whatsoever (much less one that CSC had reasonable probability of entering into), makes no claim that Cognizant prevented such a relationship or contract, and - consequently - can make no claim as to Cognizant’s intent to do so or any resulting injury to CSC. Rather, CSC only alleges that Cognizant’s actions might hypothetically result in “breach by CSC licensees of their contractual obligations to CSC.” SAC ¶ 51. In other words, CSC asserts the potential for future breaches by unidentified existing contractual relations of CSC. An allegation of this nature amounts to nothing more than a nebulous claim that Cognizant’s alleged actions, authorized by CSC licensees, might cause unidentified CSC 7 For purposes of this motion, Cognizant addresses Texas law because Cognizant assumes that CSC was attempting to claim a violation under Texas law. By doing so, Cognizant does not concede that Texas law would be the appropriate choice of law to apply to any dispute between CSC and Cognizant. Case 3:16-cv-01447-D Document 47 Filed 11/07/16 Page 25 of 64 PageID 487 Defendant Cognizant Technology Solutions U.S. Corporation’s Memorandum in Support of Motion to Dismiss Portions of Plaintiff’s Second Amended Complaint EAST\136538020.1 21 licensees to be induced to breach their CSC licenses. This is vague, unripe and fails to state a cause of action under Texas law and should be dismissed with prejudice. CONCLUSION Because CSC’s Second Amended Complaint almost entirely adopts its deficient Original Complaint and because CSC’s added allegations are barred by res judicata based on the final judgment in Virginia, the Court should dismiss with prejudice the Maguire Allegations - namely, CSC’s newly added claims of trade secret misappropriation, tortious interference with CSC’s contractual relations with Mr. Maguire, and tortious interference with CSC’s prospective business relations with Mass Mutual - and (1) CSC’s copyright infringement claim in its entirety, (2) CSC’s claim that Cognizant breached a purported Mass Mutual NDA between Cognizant and CSC, (3) CSC’s claim that Cognizant breached the Sammons II NDA, (3) CSC’s claim that Cognizant breached unspecified NDAs, and (4) CSC’s claim of tortious interference with its prospective contractual relations with unspecified “other licensees.” Given the improper retaliatory context in which this action was filed, it is no surprise that CSC is trying to litigate the Maguire Allegations for a fourth time, and still cannot allege facts sufficient to support its other asserted claims, even having had this third opportunity to do so. Dated: November 7, 2016 Respectfully submitted, /s/ Gina Durham Gina Durham (admitted pro hac vice) California Bar No. 295910 gina.durham@dlapiper.com Stephanie Hall (admitted pro hac vice) California Bar No. 288369 stephanie.hall@dlapiper.com DLA PIPER LLP (US) 555 Mission Street, Suite 2400 Case 3:16-cv-01447-D Document 47 Filed 11/07/16 Page 26 of 64 PageID 488 Defendant Cognizant Technology Solutions U.S. Corporation’s Memorandum in Support of Motion to Dismiss Portions of Plaintiff’s Second Amended Complaint EAST\136538020.1 22 San Francisco, CA 94105-2933 (415) 836-2500 - telephone (415) 836-2501 - facsimile Eliot T. Burriss Texas Bar No. 24040611 eli.burriss@dlapiper.com Nicole Figueroa Texas Bar No. 24069716 nicole.figueroa@dlapiper.com DLA PIPER LLP (US) 1717 Main Street, Suite 4600 Dallas, TX 75201-4629 (214) 743-4500 - telephone (214) 743-4545 - facsimile Michael J. Sheehan (admitted pro hac vice) Illinois Bar No. 6195189 michael.sheehan@dlapiper.com DLA PIPER LLP (US) 203 North LaSalle Street, Suite 1900 Chicago, IL 60601-1293 (312) 368-4000 - telephone (312) 236-7516 - facsimile John Allcock (admitted pro hac vice) California Bar No. 098895 john.allcock@dlapiper.com DLA PIPER LLP (US) 401 B Street, Suite 1700 San Diego, CA 92101-4297 (619) 699-2700 - telephone (619) 699-2701 - facsimile ATTORNEYS FOR DEFENDANT COGNIZANT TECHNOLOGY SOLUTIONS U.S. CORPORATION Case 3:16-cv-01447-D Document 47 Filed 11/07/16 Page 27 of 64 PageID 489 Defendant Cognizant Technology Solutions U.S. Corporation’s Memorandum in Support of Motion to Dismiss Portions of Plaintiff’s Second Amended Complaint EAST\136538020.1 23 CERTIFICATE OF SERVICE I certify that, pursuant to L.R. 5.1(d), on November 7, 2016, a copy of the foregoing motion to dismiss and accompanying memorandum of law was served on the following counsel of record via the Court’s CM/ECF Filing System: Steve Sumner, Esq. ssumner@sumnerschick.com David H. Pace David.pace77@gmail.com David C. Schick, Esq. dschick@sumnerschick.com Gayle A. Boone, Esq. gboone@sumnerschick.com SUMNER SCHICK & PACE LLP 3811 Turtle Creek Blvd, Suite 600 Dallas, TX 75219 (214) 965-9229 - telephone (214) 965-9215 - facsimile /s/ Stephanie Hall Stephanie Hall Case 3:16-cv-01447-D Document 47 Filed 11/07/16 Page 28 of 64 PageID 490 EXHIBIT 1 Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 22 of 57 PageID 3397 11 0 9 64 491 COMPUTER SCIENCES CORPORATION’S FIRST AMENDED ORIGINAL COUNTERCLAIM: Cause No. 14-12808 Page 1 CAUSE NO. 14-12808 COGNIZANT TECHNOLOGY SOLUTIONS ) IN THE DISTRICT COURT U.S. CORPORATION, ) ) Plaintiff, ) ) v. ) OF DALLAS COUNTY, TEXAS ) ASHISH MAHADWAR, JULIO CESAR ) JELVEZ SERRA and COMPUTER ) SCIENCES CORPORATION ) ) Defendants. ) 44TH JUDICIAL DISTRICT COMPUTER SCIENCES CORPORATION’S FIRST AMENDED ORIGINAL COUNTERCLAIM AGAINST COGNIZANT TECHNOLOGY SOLUTIONS Computer Sciences Corporation (“CSC”), by and through its counsel Sumner, Schick & Pace, LLP, presents its First Amended Original Counterclaim against Plaintiff Cognizant Technology Solutions U.S. Corporation (“Cognizant”) as follows: I. PARTIES 1. CSC is a corporation organized and existing under the laws of the State of Nevada, with its principal place of business located at 3170 Fairview Park Drive, Falls Church, Virginia 22042. 2. Cognizant is a Delaware corporation which, on information and belief, maintains its principal place of business in College Station, Texas. 3. Upon information and belief, Cognizant is legally responsible for the events and happenings referred to herein and proximately caused damages to CSC as alleged herein. II. JURISDICTION AND VENUE 4. This Court has personal jurisdiction over Cognizant because Cognizant is qualified to do, and does do business in the State of Texas. Cognizant has acknowledged the FILED DALLAS COUNTY 2/29/2016 4:36:10 PM FELICIA PITRE DISTRICT CLERK Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 23 of 57 PageID 3407 11 0 30 64 492 COMPUTER SCIENCES CORPORATION’S FIRST AMENDED ORIGINAL COUNTERCLAIM: Cause No. 14-12808 Page 2 jurisdiction of this Court by filing its claims against CSC. III. FACTS COMMON TO ALL CAUSES OF ACTION A. Background Concerning Plaintiff CSC 5. CSC is a global provider of information technology (“IT”) and professional services and solutions to corporate customers. Since it was founded in 1959, CSC has helped its clients develop and integrate their IT assets in support of operational efficiency, new growth initiatives and other business objectives. CSC’s clients include commercial enterprises as well as state, local and non-U.S. government agencies. B. CSC’S Employment of Maguire 6. In April 2013, CSC hired John Maguire (“Maguire”) as its Vice President of Global Sales. In connection with his employment as an officer and high-ranking employee of CSC, Maguire received compensation including an annual salary of $625,000.00, another $625,000.00 in eligible annual bonuses, and participation in CSC’s incentive stock option program. 7. As the Vice President of Global Sales at CSC, Maguire was responsible for all sales activities of CSC on a global basis and enjoyed regular access to CSC’s confidential and proprietary information, including information concerning virtually all of CSC’s customers and prospective customers, CSC’s products, costs, pricing, sales processes and methodologies, global sales strategies, and the identities, skills, and aptitudes of CSC employees who were and are critical to CSC’s global sales and sales support efforts. C. Maguire’s Original Non-Solicitation Agreement 8. As a part of his employment with CSC, Maguire signed a Non-Competition/Non- Solicitation Agreement with CSC, dated April 19, 2013 (“Non-Solicitation Agreement”). This Non-Solicitation Agreement prohibited Maguire from (a) disclosing or misusing CSC’s Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 24 of 57 PageID 3417 11 0 31 64 493 COMPUTER SCIENCES CORPORATION’S FIRST AMENDED ORIGINAL COUNTERCLAIM: Cause No. 14-12808 Page 3 confidential and proprietary information, (b) soliciting CSC’s employees or customers for a defined period of time, and/or (c) competing against CSC for a defined period of time. 9. Upon entering into the Non-Solicitation Agreement, Maguire acknowledged that he “has carefully read and considered the [above-referenced restrictions] and agrees that [such restrictions] are fair and reasonable, are supported by valid consideration, and are reasonably required to protect legitimate business interests of CSC.” D. After Maguire Departs From CSC, CSC Agrees To Narrow The Non- Solicitation And Non-Competition Provisions Governing Maguire 10. Effective October 24, 2014, Maguire left the employ of CSC. Thereafter, on or about November 13, 2014, Maguire and CSC entered into a letter agreement (“Letter Agreement”) through which CSC agreed to narrow the non-solicitation and non-competition provisions contained in the Non-Solicitation Agreement -- provisions that Maguire had previously acknowledged were already reasonably tailored and necessary to protect CSC’s legitimate business interests. 11. Specifically, through the Letter Agreement, CSC and Maguire agreed that: a. For a period of six (6) months following Maguire’s separation from CSC, Maguire would not directly or indirectly associate with certain specifically listed entities, including Cognizant, without the written permission of CSC; b. For a period of twelve (12) months, Maguire would not hire, attempt to hire, or “assist[] any other person or entity in hiring or attempting to hire any current employee of CSC or any person who was a CSC employee within the 6-month period preceding such hiring or attempted hiring”; c. For a period of twelve (12) months, Maguire would not solicit or assist in the solicitation of certain named CSC clients; and d. Maguire’s obligations to protect and not misuse or disclose CSC’s confidential information would remain in effect as stated in the Non-Solicitation Agreement. Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 25 of 57 PageID 3427 11 0 32 64 494 COMPUTER SCIENCES CORPORATION’S FIRST AMENDED ORIGINAL COUNTERCLAIM: Cause No. 14-12808 Page 4 12. Two months later, in January 2015, Maguire approached CSC seeking yet another modification to the Non-Solicitation Agreement. This time, Maguire sought CSC’s consent for him to accept employment with Cognizant - one of the CSC direct competitors with whom Maguire was expressly prohibited from accepting employment under the terms of the Letter Agreement. 13. In a letter agreement dated January 19, 2015 (the “Second Letter Agreement”), CSC gave its consent for Maguire to accept employment with Cognizant effective February 9, 2015. In the Second Letter Agreement, Maguire affirmed that the original Letter Agreement (from November 2014) would otherwise “continue in full force and effect on the terms and conditions stated therein.” In the Second Letter Agreement, Maguire agreed that he would not “personally be involved in sales efforts or direct sales strategy on bids/proposals in which CSC is competing” until April 24, 2015. 14. Maguire then joined Cognizant as its Senior Vice President of Sales on February 9, 2015, violating his agreement not to compete in sales against CSC. In this position, Maguire is responsible for Cognizant’s overall sales effort, and in that regard, works in a directly competitive position to the position he held at CSC. Cognizant (and now Maguire) compete for the same customers, and same business, as CSC. Maguire’s innate and detailed knowledge of CSC’s confidential and proprietary information - including information concerning CSC’s customers and prospective customers, CSC’s products, costs, pricing, sales processes and methodologies, global sales strategies, and the identities, skills, and aptitudes of CSC employees who were and are critical to CSC’s global sales and sales support efforts - is of immeasurable competitive value and will cause irreparable harm to CSC if used by Maguire in connection with his role as the head of sales for Cognizant. Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 26 of 57 PageID 3437 11 0 33 64 495 COMPUTER SCIENCES CORPORATION’S FIRST AMENDED ORIGINAL COUNTERCLAIM: Cause No. 14-12808 Page 5 E. Maguire, on Behalf of Cognizant, Recruits CSC Employee Eddie Woods To Join Cognizant 15. On or about April 6, 2009, Eddie Woods (“Woods”) joined CSC as a Business Development Executive. Woods rose through the ranks at CSC, ultimately achieving the title of Director Offering Sales Applications. Prior to his departure, Maguire headed the sales organization in which Woods worked and formed a close working relationship with Woods. 16. As Director Offering Sales Applications for CSC, Woods was a high-ranking member of CSC’s sales organization and enjoyed regular access to CSC’s confidential and proprietary information, including information concerning CSC’s products, services, pricing and sales strategies. 17. On April 18, 2015, shortly after Maguire commenced his employment with Cognizant, Woods resigned from CSC and joined Cognizant as a member of its Strategic Engagement Team. Woods resigned from CSC only days after CSC incurred significant costs to repatriate Woods to the United States from the United Kingdom. 18. In his role at Cognizant, Woods is again working for Maguire. On information and belief, Maguire, on behalf of Cognizant, solicited or participated in the solicitation of Woods by Cognizant, including through the use of CSC’s confidential and proprietary information. Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 27 of 57 PageID 3447 11 0 34 64 496 COMPUTER SCIENCES CORPORATION’S FIRST AMENDED ORIGINAL COUNTERCLAIM: Cause No. 14-12808 Page 6 F. Maguire, on Behalf of Cognizant, Recruits Former CSC Employee Bill Hutton To Join Cognizant 19. In the year 2000, Bill Hutton (“Hutton”) joined CSC as Vice President of Business Development and Pricing. Thereafter, Hutton, after holding a number of positions, was named CSC’s Vice President of Global Deal Strategy in 2009, a position he kept until the end of his employment with CSC. Throughout the course of his employment, Hutton was responsible for managing pricing teams, development of pricing strategies and negotiations, and supporting both regional and global clients. 20. In all of these roles, Hutton enjoyed regular access to CSC’s confidential and proprietary information, including information concerning CSC’s products, services, pricing and sales strategies, business development, and negotiations. 21. At least as early as February 2015, Maguire, on behalf of Cognizant, solicited Hutton to join Cognizant as an employee. Although Hutton was not a current CSC employee at the time Maguire recruited him, Hutton was still subject to contractual responsibilities with CSC, including under his Non-Competition/Non-Solicitation Agreement, Covenant Against Disclosures and Assignment of Inventions Agreement, and his Separation and Release of Claims Agreement. Among other obligations, Hutton was barred from soliciting, diverting or causing a reduction in the business or patronage of CSC’s clients or prospective clients for a period of 24 months after his employment with CSC. Hutton further was obligated to refrain from disclosing to anyone outside CSC, or to use, “any confidential, proprietary or secret information or material relating to the products, services, customers or business operations, personnel or activities of CSC or its clients...” at any time after his employment. Upon information and belief, Maguire and Cognizant attempted to, or did tortuously interfere with CSC’s agreements with Hutton. Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 28 of 57 PageID 3457 11 0 35 64 497 COMPUTER SCIENCES CORPORATION’S FIRST AMENDED ORIGINAL COUNTERCLAIM: Cause No. 14-12808 Page 7 G. Cognizant’s Unlawful Use of CSC’s Confidential and Proprietary Information 19. Upon information and belief, Cognizant has and is continuing to use CSC confidential and proprietary information, in violation of Maguire’s Non-Solicitation Agreement, Letter Agreements, and applicable law. CSC will suffer immediate and irreparable harm unless Cognizant is restrained and enjoined from: (i) all further unauthorized use of CSC’s confidential and proprietary information; and (ii) all further attempts to improperly solicit CSC’s employees and/or customers. IV. FIRST CLAIM FOR RELIEF (Tortious Interference With Contract) 20. CSC repeats and re-alleges the allegations contained in Paragraphs 1 through 19 of this Counterclaim as though set forth fully herein. 21. The employment agreements and letter agreements between CSC and Maguire and CSC and Hutton constitute valid and enforceable contracts. 22. On information and belief, Cognizant had knowledge of those contracts and willfully and intentionally acted to disrupt the contractual relationship between CSC and Maguire. 23. On information and belief, Cognizant had knowledge of those contracts and willfully and intentionally acted to disrupt the contractual relationship between CSC and Hutton. 24. Cognizant’s acts of interference were not justified or taken in the exercise of any legitimate interests of Cognizant. 25. As a direct and proximate result of Cognizant’s interference with Maguire’s and Hutton’s contractual obligations, CSC has suffered, and will continue to suffer, immediate and irreparable injury, for which CSC has no adequate remedy at law, and for which CSC is entitled to temporary, preliminary, and permanent injunctive relief. Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 29 of 57 PageID 3467 11 0 36 64 498 COMPUTER SCIENCES CORPORATION’S FIRST AMENDED ORIGINAL COUNTERCLAIM: Cause No. 14-12808 Page 8 26. As a direct and proximate cause of Cognizant’s interference with Maguire’s and Hutton’s contractual obligations, CSC has suffered damages in excess of the minimum jurisdictional limits of this Court, including damages from the use and disclosure of its confidential and proprietary information, damages from Cognizant’s improper solicitation of employees and clients by Maguire on behalf of Cognizant, and the loss to CSC for its costs to repatriate Woods, who was then poached by Maguire and Cognizant in violation of Maguire’s contract. CSC is entitled to recover such from Cognizant. V. SECOND CLAIM FOR RELIEF (Aiding and Abetting Breach of Fiduciary Duty) 27. CSC repeats and re-alleges the allegations contained in Paragraphs 1 through 26 above. 28. As an officer and high-ranking employee of CSC, Maguire owed to CSC a fiduciary duty of utmost loyalty, candor, and good faith. 29. Upon information and belief, Maguire breached his fiduciary duties to CSC by taking or retaining CSC confidential and proprietary information with him upon leaving CSC’s employment, whether in physical form or otherwise, and using that information to benefit a CSC competitor - Cognizant. 30. Upon information and belief, Maguire breached his fiduciary duties to CSC by soliciting other CSC employees to leave their employment with CSC to join Cognizant. 31. Cognizant knew of the fiduciary duties owed by Maguire to CSC. 32. On information and belief, Cognizant knowingly and substantially participated in or encouraged Maguire’s breach of his fiduciary duties to CSC. 33. As a direct and proximate result of Cognizant’s aiding and abetting Maguire to breach his fiduciary duties, CSC has suffered, and will continue to suffer, immediate and Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 30 of 57 PageID 3477 11 0 7 64 499 COMPUTER SCIENCES CORPORATION’S FIRST AMENDED ORIGINAL COUNTERCLAIM: Cause No. 14-12808 Page 9 irreparable injury, for which CSC has no adequate remedy at law, and for which CSC is entitled to temporary, preliminary, and permanent injunctive relief. 34. As a direct and proximate cause of Cognizant aiding and abetting Maguire to breach his fiduciary duties, CSC has suffered damages in excess of the minimum jurisdictional limits of this Court and in an amount to be proven at trial. 35. Cognizant’s actions, in aiding and abetting Maguire to breach his fiduciary duties, were committed knowingly and intentionally. As a result, CSC is entitled to recover exemplary and punitive damages from Defendant Cognizant in an amount to be determined by the jury. VI. THIRD CLAIM FOR RELIEF (Concert of Action) 36. CSC repeats and re-alleges the allegations contained in Paragraphs 1 through 35 of this Counterclaim as though set forth fully herein. 37. On information and belief, Cognizant and Maguire, and/or others acting in concert with them, acted together to commit the tortious and otherwise unlawful acts discussed herein while acting in concert or pursuant to a common design to harm CSC. 38. As a direct and proximate result of Cognizant’s concert of action with Maguire, CSC has suffered, and will continue to suffer, immediate and irreparable injury, for which CSC has no adequate remedy at law, and for which CSC is entitled to temporary, preliminary, and permanent injunctive relief. 39. As a direct and proximate cause of Cognizant’s concert of action with Maguire, CSC has suffered damages in excess of the minimum jurisdictional limits of this Court and in an amount to be proven at trial. 40. Cognizant’s actions, in forming, agreeing to, and carrying out its concert of action with Maguire, were committed knowingly and intentionally. As a result, CSC is entitled to Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 31 of 57 PageID 3487 11 0 8 64 500 COMPUTER SCIENCES CORPORATION’S FIRST AMENDED ORIGINAL COUNTERCLAIM: Cause No. 14-12808 Page 10 recover exemplary and punitive damages from Cognizant in an amount to be determined by the jury. VII. PRAYER FOR RELIEF WHEREFORE, CSC prays that the Court enter a judgment in its favor, and against Cognizant, awarding CSC: 1. Temporary and permanent injunctive relief as follows: (a) Requiring Cognizant, and all others acting in concert with it, to return all of CSC’s confidential and proprietary information to the undersigned counsel for CSC in forensically sound fashion, preserving all pertinent metadata; (b) Enjoining Cognizant and all others acting in concert with it, from using, copying, uploading, downloading, transmitting, transferring, or disclosing any confidential or proprietary information of CSC; (c) Enjoining Cognizant, and all others acting in concert with it, from directly or indirectly soliciting CSC employees; and (d) Enjoining Cognizant from placing Maguire in any working capacity for Cognizant that would lead to actual or threatened disclosure or use of CSC’s confidential or proprietary information for a reasonable period of time, but no less than one year. 2. CSC’s actual damages established at trial, plus any incidental or consequential damages, and disgorgement of any amounts earned by Cognizant as a result of its use of CSC’s confidential and proprietary information. 3. Exemplary and punitive damages in an amount to be determined by the jury. Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 32 of 57 PageID 3497 11 0 9 64 501 COMPUTER SCIENCES CORPORATION’S FIRST AMENDED ORIGINAL COUNTERCLAIM: Cause No. 14-12808 Page 11 4. Pre-judgment and post-judgment interest at the highest lawful rate of interest. 5. All costs of Court incurred herein. 6. Such other and further relief, general or special, at law or in equity, to which CSC may be justly entitled. VIII. JURY DEMAND CSC hereby demands a trial by jury on all issues so triable. Respectfully submitted: /s/Steve Sumner Steve Sumner State Bar No. 19508500 E-Mail: ssumner@sumnerschick.com David Schick State Bar No. 17745700 E-Mail: dschick@sumnerschick.com David Pace State Bar No. 15392950 E-Mail: dpace@sumnerschick.com Gayle A. Boone State Bar No. 02628500 E-Mail: gboone@sumnerschick.com Sumner, Schick & Pace, LLP 3811 Turtle Creek Boulevard, Suite 600 Dallas, Texas 75219 (214) 965-9229 Telephone (214) 965-9215 Facsimile ATTORNEYS FOR COMPUTER SCIENCES CORPORATION Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 33 of 57 PageID 3507 11 0 40 64 502 COMPUTER SCIENCES CORPORATION’S FIRST AMENDED ORIGINAL COUNTERCLAIM: Cause No. 14-12808 Page 12 CERTIFICATE OF SERVICE I hereby certify that the foregoing Computer Sciences Corporation’s Original Counterclaim against Cognizant Technology Solutions has been served upon all counsel of record in this cause by email in accordance with the Texas Rules of Civil Procedure and the agreement of the parties, on this 29th day of February, 2016. /s/ Steve Sumner__________________ Steve Sumner Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 34 of 57 PageID 3517 11 0 41 64 503 EXHIBIT 2 Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 35 of 57 PageID 3527 11 0 42 64 504 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division COMPUTER SCIENCES CORPORATION Plaintiff. Case No. 1:16-cv-00261-GBL-IDD JOHN PAUL MAGUIRE, ) Defendant. ) ) FIRST AMENDED COMPLAINT Computer Sciences Corporation ("CSC-), for its First Amended Complaint against John Maguire ("Maguire"), alleges as follows: I. PARTIES, JURISDICTION AND VENUE CSC is a corporation organized under the laws of Nevada with a principal place of business in Falls Church, Virginia. 2. Defendant Maguire is a citizen of the State of Connecticut. Upon information and belief, Maguire resides at 305 Main Street, Ridgefield, Connecticut 06877. Maguire accepted service through his counsel of record. 3. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(a). H. FACTUAL BACKGROUND CSC's Employment of Maguire 4. CSC is a global provider of information technology ("Yr) and professional services and solutions to corporate customers. Since it was founded in 1959, CSC has helped its Case 1:16-cv-00261-GBL-IDD Document 29-1 Filed 05/27/16 Page 2 of 23 PageID# 451 Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 36 of 57 PageID 3537 11 0 43 64 505 clients develop and integrate their 1'1' assets in support of operational efficiency, new growth initiatives, and other business objectives. 5. In April 2013, CSC hired Maguire as an 1-1xecutive Vice President and General Manager of Global Sales and Regional Operations. In connection with his employment, and as an officer and high-ranking CSC employee, Maguire received compensation, which included a salary of $625,000.00, eligible bonuses of $625,000.00, and participation in CSC's incentive stock option program. 6. Prior to accepting employment with CSC in 2013. Maguire was in direct communications with Cognizant regarding potential employment. Maguire met and/or spoke directly with Frank D'Souza, Cognizant's CIA), prior to accepting employment with CSC. Two weeks after such discussions took place, Maguire ultimately chose not to engage further with Cognizant, but rather he left I lewlett Packard, his employer at that time, and joined CSC. 7. As Executive Vice President of Global Sales. Maguire was responsible for all sales activities of CSC on a global level. Ile enjoyed regular access to CSC's confidential and proprietary information; including information concerning virtually all of CSC's customers (current and prospective), CSC's products, costs, pricing, sales processes and methodologies, global sales strategies, and the identities. skills, and aptitudes of CSC employees who were critical to CSC's global sales and sales support efforts. By his own admission. Maguire was responsible for executing end-to-end strategies to advance CSC's position in high-growth markets, expand major accounts and pursue new clients, capitalize on strategic alliances, and strengthen brand recognition. CSC's products, costs, pricing, sales processes and methodologies are confidential and proprietary information and trade secrets that have independent economic value. Case 1:16-cv-00261-GBL-IDD Document 29-1 Filed 05/27/16 Page 3 of 23 PageID# 452 Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 37 of 57 PageID 3547 11 0 44 64 506 Maguire's Original Employment Agreement and Stock Option Award Agreements. 8. As part of his employment with CSC, Maguire signed a Non-Competition, Non- Solicitation Agreement ("Employment Agreement"), dated April 19, 2013. A genuine and complete copy of the Employment Agreement is attached hereto as Exhibit A.1 Pursuant to the Employment Agreement. Maguire was prohibited from (a) disclosing or misusing CSC's confidential and proprietary information, (b) soliciting CSC's employees or customers for a defined period of time, and/or (c) competing against CSC for a defined period of time. The Employment Agreement specifically lists Cognizant (among others) as a Competitor with which Maguire was prohibited from "directly or indirectly, as an employee, agent, contractor, consultant, member, partner, officer, director or stockholder, wherever CSC is marketing or providing its services or products, participatl Mg] in any activity as, or for, a Competitor of CSC which is the same or similar to the activities in which Employee was involved at CSC." 9. As part of his Employment Agreement, Maguire acknowledged that he "has carefully read and considered the [above-referenced restrictions] and agrees that [such provisions] are fair and reasonable, are supported by valid consideration, and are reasonably required to protect legitimate business interests of CSC." Exhibit A, 113. 10. Through the Employment Agreement, Maguire acknowledged that if he breached or threatened to breach his non-disclosure, non-solicitation, and/or non-competition obligations. CSC would suffer immediate and irreparable harm such that CSC would be entitled to (and Exhibits referenced herein arc identical to, and attached to, the original Complaint filed on March 9, 2016 (Docket No. 1). 3 Case 1:16-cv-00261-GBL-IDD Document 29-1 Filed 05/27/16 Page 4 of 23 PageID# 453 Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 38 of 57 PageID 3557 11 0 45 64 507 Maguire specifically stipulated to the entry of) injunctive relief prohibiting Maguire from further breaching such obligations. 1 1. Separate and apart from Maguire's Employment Agreement, and in connection with his participation in CSC's incentive stock option program, Maguire entered into live (5) separate stock option award agreements with CSC (collectively, "Stock Option Awards"). Genuine and complete copies of the Stock Option Awards are attached hereto, collectively, as Exhibit B. Each of the Stock Option Awards contained a recoupment and forfeiture provision, through which Maguire is required to return to CSC the value of gains realized on exercised options, and to forfeit unexercised options, in the event that Maguire (i) misuses or discloses CSC's confidential information; (ii) solicits CSC employees or clients; or (iii) competes against CSC in violation of his contractual obligations. Events Following Maguire's Departure from CSC 12. Maguire resigned from CSC. on October 24 2014. Thereafter, Maguire approached CSC to revise certain of his ongoing obligations with CSC. Maguire negotiated an agreement with CSC's general counsel, resulting in a letter agreement dated November 13, 2014, ("Letter Agreement No. 1"), through which CSC agreed to adjust certain of the non-solicitation and non-competition provisions contained in Maguire's Employment Agreement. A genuine and complete copy of Letter Agreement No. 1 is attached hereto as Exhibit C. In Letter Agreement No. 1. CSC and Maguire agreed that: (1) .For six months after his Separation Date, Maguire would not in any capacity (directly or indirectly) "associate with the following entities... I including I Cognizant ... without written permission of CSC" [until April 24, 2015]; Case 1:16-cv-00261-GBL-IDD Document 29-1 Filed 05/27/16 Page 5 of 23 PageID# 454 Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 39 of 57 PageID 3567 11 0 46 64 508 For a period of twelve (12) months, Maguire would not hire, attempt to hire, or "assist any other person or entity m hiring or attempting to hire, any current employee of CSC or any person who was a CSC employee within the 6-month period preceding such hiring or attempted hiring"; (iii) For a period of twelve (12) months, Maguire would not solicit or assist in the solicitation of certain named CSC clients, including MassMutual: and (iv) Maguire's obligation to protect and not misuse or disclose CSC's confidential information would remain in effective as stated in his Employment Agreement. 13. Two (2) months later, in January 2015, Maguire approached CSC seeking yet additional modifications to his Employment Agreement and Letter Agreement No. 1 . This time. Maguire sought CSC's consent to accept employment with Cognizant - one of the listed employers/competitors which Maguire was expressly prohibited from engaging with under the terms of both his Employment Agreement and Letter Agreement No. 1. 14. On January 19, 2015, based upon omission and misrepresentations. CSC provided its consent for Maguire to accept employment with Cognizant in Letter Agreement No. 2. ("Letter Agreement No. 2") In Letter Agreement No. 2, Maguire affirmed that Letter Agreement No. 1 would otherwise "continue in full force and effect on the terms and conditions stated therein." A genuine and complete copy of Letter Agreement No. 2 is attached hereto as Exhibit D. In Letter Agreement No. 2. Maguire also "agree[d] that until April 24, 2015, you will not personally be involved in sales efforts or direct sales strategy on bids/proposals in which CSC is competing." 15. Maguire then joined Cognizant as its Senior Vice President of Sales. In this position, Maguire is responsible for Cognizant's overall sales efforts, and in that regard, works in 5 Case 1:16-cv-00261-GBL-IDD Document 29-1 Filed 05/27/16 Page 6 of 23 PageID# 455 Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 40 of 57 PageID 3577 11 0 7 64 509 a directly competitive position to the position he held at CSC. In the relevant arena, Cognizant competes for the same customers, and same business, as CSC. Maguire's detailed knowledge of CSC's confidential and proprietary information including information concerning CSC's customers (current and prospective). CSC's products, costs, pricing, sales processes and methodologies, global sales strategies, and the identities, skills, and aptitudes of CSC employees who were and are critical to CSC's global sales and sales support efforts- --is of immeasurable competitive value and will cause irreparable harm to CSC if used by Maguire in connection with his role as head of sales for Cognizant. Maguire's Involvement with Cognizant 16. Cognizant began communicating with Maguire as early as October 1, 2014, via Michael DeSimone ("DeSimone") of CT Partners, a recruiting firm utilized by Cognizant, while Maguire was still a CSC employee. Ten days prior to resigning from CSC, IVIaguire communicated with DeSimone to coordinate a meeting in Texas for October 29, 2014 with 'Raj Mehta the CFO of l'1' Services with Cognizant. Mr. Mehta ultimately would become Maguire's boss. 17. Even after leaving CSC's employ, Maguire, still bound by his agreements with CSC. still sought to secure employment with Cognizant - a prohibited competitor. Maguire interacted with and negotiated with a number of high ranking Cognizant representatives throughout his hiring process with Cognizant, including Frank D'Souza ("D'Souza ), Cognizant's CEO. Cognizant began internally negotiating and drafting Maguire's employment contract, stock options, and compensation package as early as October 24, 2014. 18. On November 5, 2014, Cognizant issued its first offer letter to Maguire. With that Cognizant offer in hand, Maguire nonetheless signed Letter Agreement No. I with CSC on Case 1:16-cv-00261-GBL-IDD Document 29-1 Filed 05/27/16 Page 7 of 23 PageID# 456 Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 41 of 57 PageID 3587 11 0 8 64 510 November 13, 2014, specifically promising not to accept employment with Cognizant. On November 14th. only one clay after he signed Letter Agreement No. 1 with CSC, Maguire was in direct communication with Cognizant with regard to his employment. 1 9. Cognizant admitted in entails that hiring Maguire away from CSC must be "handled carefully.'' By December 4, 2014, Maguire had verbally accepted the position with Cognizant but was holding off for "key reasons' and to clear the background check before "taking further steps." At this time, Maguire was still obligated by his Employment Agreement and Letter Agreement No. 1 not to accept employment with Cognizant without written permission from CSC's CEO. 20. On December 13, 2014, after further lengthy discussions with Cognizant about the details of his employment, Maguire met with CSC to discuss his future employment with Cognizant and sought to be released from the provisions of Letter Agreement No. 1, the provisions of which he had already violated, unbeknownst to CSC. CSC did not grant Maguire permission or release him from his obligation to refrain from employment with Cognizant at that time. Yet, immediately after this meeting, Maguire reached out directly to Frank D'Souza and Raj Mehta to relay his discussions with CSC. Not long thereafter, D'Souza asked Maguire to meet with him personall„, to finalize the deal. 21. On January 16, 2015, Maguire signed Cognizant's offer letter and accepted a role as Senior Vice President. Maguire signed the offer letter while still bound by the terms of Letter Agreement No. 1. As of January 16, 2015. Maguire had not obtained permission from CSC to accept employment with Cognizant. It was not until January 19, 2015, that Maguire received the requisite written release, subject to certain limitations, to work for Cognizant via Letter Agreement No. 2. 7 Case 1:16-cv-00261-GBL-IDD Document 29-1 Filed 05/27/16 Page 8 of 23 PageID# 457 Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 42 of 57 PageID 3597 11 0 9 64 511 22. In Letter Agreement No. 2, Maguire expressly promised that, through April 24, 2015. he "would not personally be involved in sales efforts or direct sales strategies on bids/proposals on which CSC is competing." 2 . Maguire's first "official" day working for Cognizant was February 9, 2015. As Senior Vice President of Sales. Maguire's role involved Cognizant's sales efforts and sales strategies. Upon information and belief. Maguire, by the sheer expansiveness and high level of his position with Cognizant, participated in sales efforts and/or direct sales strategies on deals on which CSC was competing. Eddie Woods 24. On or about April 6, 2009, kiddie Woods ("Woods") joined CSC as a Business Development Executive. Woods rose through the ranks at CSC, ultimately achieving the title of Head of Application and Consulting Sales for the UK, Ireland, and Netherlands. Prior to his departure from CSC, Maguire headed the sales organization in which Woods worked. 25. In his role at CSC, Woods was a significant member of CSC's sales organization and enjoyed regular access to CSC's confidential and proprietary information, including information concerning CSC's products, services, pricing, and sales strategies. 26. In 2010, Woods had met with representatives from Cognizant about a possible position with the company. Cognizant did not extend an offer to -Woods at that time. Again, in early 2013, Woods had discussions with Cognizant, but Cognizant found that he was not a good fit. 27. On October 16. 2014, just days after Maguire spoke with Cognizant's recruiting firm. a representative from Cognizant contacted Woods. Thereafter, in November and December 2014. during the same period that Maguire was finalizing his new position with Cognizant. 8 Case 1:16-cv-00261-GBL-IDD Document 29-1 Filed 05/27/16 Page 9 of 23 PageID# 458 Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 43 of 57 PageID 3607 11 0 50 64 512 Cognizant also entered into discussions with Woods. Just weeks after Maguire f ormally accepted his position with Cognizant, an offer was made to Woods. 28. On April 18, 2015, shortly after Maguire commenced his employment with Cognizant, Woods resigned from CSC and joined Cognizant as an Assistant Vice Pr esident and Strategic Pursuit Lead. Woods resigned from CSC to join Maguire at Cognizant onl y clays after CSC incurred significant costs to repatriate Woods to the United States. 29. In Woods' new role with Cognizant, he is again working in Maguire's s ales organization. Based upon the timing of Cognizant contacting Woods just days after contacting Maguire, Maguire's joining Cognizant, and Woods' abrupt departure from CSC, and upon information and belief, Maguire solicited or participated in the solicitation of Woods , including through the use of CSC's confidential and proprietary information. Maguire's Unlawful Use of CSC's Confidential and Proprietary Information 30. Upon information and belief, Cognizant. Maguire, and Woods have used and disclosed, and continue to use and disclose, CSC's confidential and proprietary inf ormation in violation of their agreements and applicable law. Specifically, and further explaine d below in more detail, Maguire used CSC's confidential and proprietary business strategy(ies). and pricing information in an effort to wrongfully provide Cognizant with a competitive adva ntage in a recent bid on a large segment of Massachusetts Mutual Life Insurance Company ("MassMutual") business. 31. CSC will suffer immediate and irreparable harm unless Maguire is not restra ined and enjoined from (i) any further unauthorized use of CSC's confidential a nd proprietary information; (ii) any further attempts to improperly solicit CSC's employees and/or customers; Lind (iii) any further attempts to tortuously interfere with CSC's business relationships. Case 1:16-cv-00261-GBL-IDD Document 29-1 Filed 05/27/16 Page 10 of 23 PageID# 459 Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 44 of 57 PageID 3617 11 0 51 64 513 Ma ,wire and _MassMutual MassMutual has been a long existing CSC insurance customer to whom CSC licensed, and is still licensing, insurance solutions software. CSC also provides the insura nce company with various other services. On or about December 2013, MassMutual i ssued a Request for Information ("RFI") from CSC to bid on a large suite of Business Process Outsourcing Services. ("BPO") which would have significantly expanded the existing relationship. In response, CSC immediately began compiling a proposal ("Proposa l") by conducting due diligence, strategizing, negotiating, and preparing the Rough Order of Mag nitude Pricing ("ROM"). In March 2014, a meeting was held in Springfield, Massachusetts, and C SC submitted its Proposal with ROM for a 10-year, $474,000,000.00 project. Ult imately, MassMutual decided to 'hold off due to concerns with cost. (Notably, CSC was t he only company bidding for this business at the time.) Discussions between MassMutual an d CSC continued through 2014, and CSC provided MassMutual with a case study focusing on an nuities from May through July of 2014. flowever, MassMutual held off on making any commitm ents as far as to the BPO Proposal. While employed at CSC, Maguire held the role of Client Executive for CSC's MassMutual account. Other than CSC's CEO, and in terms of hierarchy on the M assMutual account, Maguire was the person ultimately responsible for the MassMutual account. In h is roles as Head of Global Sales and Client Executive for the M.assMutual account, Maguire had intimate knowledge of CSC's ROM pricing, strategy, negotiations, the Proposal, and its b usiness relationship as it related to MassMutual. Maguire was present on high-level executive strategy calls, kept apprised on strategy and negotiations, and certainly had access to the R OM pricing and the Proposal details --- all of which fell under the cloak of 'confidential infor mation' per 10 Case 1:16-cv-00261-GBL-IDD Document 29-1 Filed 05/27/16 Page 11 of 23 PageID# 460 Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 45 of 57 PageID 3627 11 0 52 64 514 Maguire's Employment Agreement. This high-level information was not generally available and Maguire was aware of its confidential nature. 34. When Maguire left CSC on October 24, 2014, he was fully aware that a major opportunity existed for the MassMutual business, still on the table - albeit. for "the right price." Thereafter, Maguire joined Cognizant as its Senior Vice President of Sales. Upon his resignation, Maguire was bound by his Employment Agreement, and then shortly thereafter by Letter Agreement No. 1 which specifically TICImed AlasAlittual as a customer -with whom he was' to have no contact.2 In January 2015, Maguire approached CSC seeking that the Letter Agreement No. 1 expiration date be shortened from twelve (12) months to six (6) months, or in terms of 'end-date,' from November 2015 shortened to April 24. 2015. Ultimately CSC, based on misrepresentation and omissions by Maguire, agreed to an amendment to Letter Agreement No. 1, thus creating Letter Agreement No. 2. Upon information and belief, and unbeknownst to CSC at the time, (much like Maguire's conduct concerning his Non-Competition Agreement), Cognizant and Maguire had been in talks with MassMutual regarding the additional MO business. 35. In June 2015, just two months after the April 24, 2015 expiration date in Letter Agreement No. 2, CSC received another RFI from MassMutual for virtually the same proposal CSC had bid on in 2014. CSC ultimately revamped its previous proposal, and submitted a new Proposal ("Proposal No. 2") with oral presentations occurring in July 2015. Unlike the 2014 Proposal. CSC was not the lone bidder this time - rather, Cognizant, with Maguire fresh on 2 T he fact that MassMutual was specifically named indicates Maguire's intimate knowledge of the account, and CSC's effort to protect itself from harm. 1 1 Case 1:16-cv-00261-GBL-IDD Document 29-1 Filed 05/27/16 Page 12 of 23 PageID# 461 Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 46 of 57 PageID 3637 11 0 53 64 515 board, was suddenly competing as well.' For approximately seven (7) months, MassMutual remained silent on its decision regarding the results for Proposal No. 2. 36. Remarkably, during this "silent period", Maguire entailed CSC's General Counsel on October 27, 2015, asking him the following: "Bill - I would like you to confirm that CSC agrees that any contractual agreement I had to not solicit clients or CSC employees has now expired. To he clear - if I contact any CSC employee or client (including the 8 ,Tecifically referenced in one last agreement) I am not in violation of any agreement with ('SC. Correct?" [emphasis added.) CSC's counsel responded on behalf of Mr. Deckelman, sending an email to counsel for Maguire: "Bill Deckelnian, CSC Executive Vice President and General Counsel, received an email yesterday from John Maguire. In light of the fact that we represent CSC in ongoing litigation with Mr. Maguire, please have Mr. Maguire direct all communications to CSC or its representatives to us. In his email to Mr. Deckelman, Mr. Maguire inquired as to his obligations under his agreements with CSC. As you are aware, Mr. Maguire's obligations are the subject of ongoing litigation. At this time. CSC reserves all of its rights, claims and remedies as they relate to Mr. Maguire. Thank you." 37. On February 25. 2016, approximately seven (7) months after Proposal No. 2, MassMutual telephoned CSC to inform them that MassMutual had awarded the BPO business to Cognizant, not CSC. Even more troubling, during this call. CSC was informed by MassMu tual that it was doing a great job, and MassMutual's decision wasn't based on a performance issue - rather, this was "a cost thing." Not surprisingly. Maguire, who was the CSC Client Executive on the MassMutual account during CSC's original Proposal, and privy to all of CSC's ROM pr icing information and other confidential terms contained in CSC's Proposal, was by then a Senior Vice President for Cognizant. "there were approximately six (6) or seven (7) other companies bidding for this pr oject- - inchuling Maguire's new employee, Cognizant. 12 Case 1:16-cv-00261-GBL-IDD Document 29-1 Filed 05/27/16 Page 13 of 23 PageID# 462 Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 47 of 57 PageID 3647 11 0 54 64 516 38. As a result of Maguire's breach and wrongful conduct, CSC's relationship with MassMutual has been irreparably harmed, and CSC has suffered significant pecuniary damages. 39. MassMutual: For ease of reference, the below is a timeline of events concerning 'Maguire and a. MassMutual reaches out to CSC in December 2013 requesting an RFI for a large suite of MO business. Maguire is the Client Executive on the MassMutual account. b. CSC submits the Proposal in March 2014. MassMutual decides to 'hold-off for now due to cost. c. Discussions with MassMutual continue into 2014 after the Proposal, and CSC is asked to locus on just the annuities, and to provide a case study for MassMutual from May through July. d. Maguire, already having communication with Cognizant as early as October 1. 2014, leaves CSC effectively October 24, 2014. c. Maguire communicates with Cognizant recruiter Michael DeSimone to coordinate a meeting in Texas for October 29, 2014 with Raj Mehta, the CEO of IT Services with Cognizant, who would ultimately become Maguirc's boss. 1. Maguire and CSC execute Letter Agreement No. 1 dated November 13, 2014 specifically naming Cognizant as an entity in which Maguire "will not associate with." Moreover, MassMutual is also specifically named as one of the 8 "exception clients... whose Non Solicitation restrictions will remain in effect." g. Maguire subsequently comes hack to CSC less than three (3) months later in January 2015 requesting (with misrepresentation and omission) an amendment to Letter Agreement No. 1 . Due to the misrepresentations and omissions made by Maguire during that negotiation, Letter Agreement No. 2 was executed on January 19, 2015 permitting Maguire to work for Cognizant, and shortening Maguire's 'competing sales efforts' period down to April 24, 2015. 1 3 Case 1:16-cv-00261-GBL-IDD Document 29-1 Filed 05/27/16 Page 14 of 23 PageID# 463 Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 48 of 57 PageID 3657 11 0 55 64 517 h. In June 2015, approximately two months after the I,etter No. 2 expiration date, CSC receives a new request for RFT from MassMutual for virtually all of the same BP0 services that it was seeking just a year earlier in 2014. i. In July 2015, CSC orally presents Proposal No. 2 for MassMutual and learns that Cognizant (who by then employed Maguire, CSC's former Client Executive on the account) is now a competitor for the BP() business. j. From July 2015 until February 2016, MassMutual remains silent - issuing no decision on the Proposal No. 2 results.` k. On October 27, 2015 Maguire entails CSC's General Counsel in an effort to confirm that he is permitted to contact CSC clients, "including the 8 specifically rekrenced in our last agreement." 'emphasis added.] 1. On February 25, 2016, approximately seven (7) months after the MassMutual RFP presentations. MassMutual telephoned CSC to inform it MassMutual had awarded the BP() business to Cognizant, not CSC, based on a cost thing. COUNT ONE Breach of Contract 40. CSC repeats and re-alleges the allegations set forth in paragraphs 1 through 40 o f this Complaint as though set forth fully herein. 41. The Employment Agreement, Stock Option Award Agreements, and L etter Agreements arc each valid, binding, and enforceable contracts between CSC and Maguire. 42. CSC performed all of its obligations under the Employment Agreement, Stock Option Award Agreements, and I,etter Agreements, or was excused from such perfo rmance. 43. Upon information and belief, Maguire has materially breached his Employmen t Agreement, Stock Option Award Agreements, and Letter Agreements by disclosing a nd using CSC's confidential and proprietary information to and for the benefit of Cognizan t. Upon information and belief, Maguire further breached his agreements by participating in the 4 Prior to the July 2015 REP. MassMutual was a customer of both CSC and Cognizant. Importantly. Cognizant was not included in the 2011 hid for virtually the same BPO business requested a year later in 2015 . However. after iVlaguire, CSC's Client Executive on the MassMutual account left and joined Cognizant. Cognizant Was includ ed in the 2015 RH. 14 Case 1:16-cv-00261-GBL-IDD Document 29-1 Filed 05/27/16 Page 15 of 23 PageID# 464 Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 49 of 57 PageID 3667 11 0 56 64 518 solicitation of CSC employees to come to work for Cognizant, in violation of his obligations not to solicit CSC employees. 44. Upon information and belief, Maguire breached his Employment Agreement by soliciting CSC's customers using CSC's confidential and/or trade secret and proprietary information. 45. Maguire has further breached the Stock Option Award Agreements through his failure and refusal to return gains that he realized on the exercise of CSC options. 46. As a direct and proximate result of Maguire's breaches of the Employment Agreement, Stock Option Award Agreements, and Letter Agreements, CSC has suffered, and will continue to suffer, immediate and irreparable injury, for which CSC has no adequate remedy at law, and for which CSC is entitled to preliminary and permanent injunctive relief. 47. As a direct and proximate result of Maguire's breaches of his Employment Agreement, Stock Option Award Agreements, and Letter Agreements, CSC has suffered damages, in excess of $75,000.00, in an amount to be proven at trial. 48. As a direct and proximate result of Maguire's breaches of his Employment Agreement, Stock Option Award Agreement, and Letter Agreements, CSC has incurred costs and attorneys' fees. COUNT TWO Breach of Fiduciary Duty 49. Plaintiff repeats and re-alleges the allegations contained in Paragraph I through 49 of this Complaint as though set forth hilly herein. 50. As an officer and high-ranking employee of CSC. Maguire owed fiduciary duties to CSC, including the duty of loyalty and the duty of care. 1 5 Case 1:16-cv-00261-GBL-IDD Document 29-1 Filed 05/27/16 Page 16 of 23 PageID# 465 Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 50 of 57 PageID 3677 11 0 7 64 519 51. Upon information and belief, Maguire breached his fiduciary duties to CSC by taking, and/or retaining, and/or using CSC's confidential, and/or trade secret and proprietary information, whether in physical form or otherwise, and using that information to Cognizant's benefit. As a direct and proximate result of Maguire's breaches of fiduciary duties, CSC has suffered, and will continue to suffer, immediate and irreparable injury, for which CSC has no adequate remedy at law, and for which CSC is entitled to preliminary and permanent injunctive 53. As a direct and proximate cause of the breaches of fiduciary duties. CSC has suffered damages in excess of $75,000.00, in an amount to be proven at trial. 54. Maguire's breaches of fiduciary duty were committed knowingly and intentionally. As a result, CSC is entitled to recover exemplary and punitive damages from Maguire in an amount to be determined at. trial. COUNT THREE Fraud 55. Plaintiff repeats and re-alleges the allegations contained in Paragraph 1 - 55 of this Complaint as though set forth fully herein. 56. Maguire made a false representation by either actively concealing that he had been engaging in employment discussions with Cognizant, or by affirmatively denying that he had been engaging with Cognizant. 57. Prior to his resignation from CSC, Maguire was discussing employment opportunities with Cognizant and was meeting with executives at the company, includinL, CEO Frank D'Souza. These discussions and meetings Violated the specific prohibitions in Maguire's 1 6 Case 1:16-cv-00261-GBL-IDD Document 29-1 Filed 05/27/16 Page 17 of 23 PageID# 466 Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 51 of 57 PageID 3687 11 0 8 64 520 employment agreement with CSC. Maguire's active concealment and/or affirmative denial were material facts. 58. Upon information and belief, Maguire was directly or indirectly involved in acquiring the Mass Mutual business in direct competition with CSC and in violation of Letter Agreement Number 1. 59. Maguire intentionally and knowingly actively concealed or affirmatively misrepresented the facts to CSC in regard to his discussions and meetings with Cognizant about employment. 60. Maguire intentionally and knowingly actively concealed or affirmatively misrepresented the facts to CSC in regard to his discussions and meetings with Cognizant about CSC customers. 61. Maguire intended to mislead CSC so that he could circumvent the agreed-upon provisions of his employment agreement to work with a prohibited competitor as well as shorten the time of the non-competition provisions m his employment agreement. 62. Upon information and belief, Maguire intended to mislead CSC so that he could circumvent the agreed-upon provisions of his Employment Agreement. which prohibited him from directly or indirectly soliciting, diverting or causing a reduction in the business or patronage of any CSC client or prospective client - in this case (thus far) Mass Mutual. 63. CSC reasonably relied on the false misrepresentation of material fact and was misled by Maguire's statements; and 64. As a direct and proximate cause of the fraud. CSC has suffered damages in excess of $75,000.00, in an amount to be proven at trial. 1 7 Case 1:16-cv-00261-GBL-IDD Document 29-1 Filed 05/27/16 Page 18 of 23 PageID# 467 Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 52 of 57 PageID 3697 11 0 9 64 521 65. Maguire's fraud was committed knowingly and intentionally. As a result, CSC is entitled to recover exemplary and punitive damages from Maguire in an amount to be determined at trial. COUNT FOUR Tortious Interference with Existing Contract 66. Plaintiff repeats and re-alleges the allegations contained in Paragraph I - 66 of this Complaint as though set forth fully herein. 67. CSC had an existing, valid contractual relationship with Mass Mutual at the time that Maguire interfered. 68. As the Client Executive over the MassMutual account while he was at CSC, Maguire had actual, detailed knowledge of the contractual relationship between CSC and Mass Mutual . 69. Upon information and belief Maguire used this information or in other ways interfered so as to induce or cause injury to the contractual relationship between MassMutual and CSC. 70. As a direct and proximate cause of the interference, CSC has suffered damages in excess of $75,000.00, in an amount to be proven at trial. 71. Maguire's interference was committed knowingly and intentionally. As a result, CSC is entitled to recover exemplary and punitive damages from Maguire in an amount to be determined at trial. 18 Case 1:16-cv-00261-GBL-IDD Document 29-1 Filed 05/27/16 Page 19 of 23 PageID# 468 Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 53 of 57 PageID 3707 11 0 60 64 522 COUNT FIVE Tortious Interference with Contract Expectancy, Prospective Business Relationship or Economic Advantage 72. Plaintiff repeats and re-alleges the allegations contained in Paragraph 1 - 72 of this Complaint as though set forth fully herein. 73. CSC was in the midst of negotiating additional business opportunities with Mass Mutual and would have, with reasonable probability, received a significant economic advantage from the continued relationship. 74. Maguire, as CSC's Client Executive over the MassMutual account, had knowledge of bid pricing and strategy. He also had knowledge of the contract expectancy, prospective business relationship or economic advantage, as well as pricing derived from the additional business opportunities being developed between CSC and MassMutual. 75. Maguire improperly used CSC's confidential business information and used the improper method of relying on knowledge he gained via his position as Client Executive over MassMutual in order to intentionally interfere with the contract expectancy, prospective business relationships and economic advantage. 76. It is reasonably certain that, absent Maguire's intentional misconduct, CSC would have expanded the relationship with Mass Mutual or realized the expectancy. 77. As a direct and proximate cause of Maguire's interference, CSC has suffered damages in excess of $75,000.00, in an amount to be proven at trial. 78. Maguire's interference was committed knowingly and intentionally. As a result, CSC is entitled to recover exemplary and punitive damages from Maguire in an amount to be determined at trial. 19 Case 1:16-cv-00261-GBL-IDD Document 29-1 Filed 05/27/16 Page 20 of 23 PageID# 469 Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 54 of 57 PageID 3717 11 0 61 64 523 COUNT SIX Trade Secret Misappropriation - the Uniform Trade Secrets Act 79. Plaintiff repeats and re-alleges the allegations contained in Paragraph 1 - 79 of this Complaint as though set forth fully herein. 80. Maguire acquired trade secrets during his tenure with CSC. 81. Maguire disclosed and/or used CSC's trade secret information regarding MassMutual without the consent, permission or knowledge of CSC, the owner of the trade secrets, and to whom he had a duty to maintain secrecy. 82. At the time that Maguire disclosed and/or used CSC's trade secret information, he knew or had reason to know that his knowledge of the trade secret was acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use. 83. As a direct and proximate cause of Maguire's disclosure and/or use of CSC's trade secrets, CSC has suffered damages in excess of $75,000.00, in an amount to be proven at trial. 84. Maguire's disclosure and/or use of trade secrets was committed knowingly and intentionally. As a result CSC is entitled to recover exemplary and punitive damages from Maguire in an amount to be determined at trial PRAYER FOR RELIEF WHEREFORE, Computer Sciences Corporation prays that the Court enter a judgment in favor of Computer Sciences Corporation and against John Maguire granting the following relief: 1. Preliminary and permanent injunctive relief as follows: a. Requiring John Maguire, and all others acting in concert with him, to return all of CSC's confidential and proprietary information to CSC in forensically sound fashion, preserving all pertinent metadata; 20 Case 1:16-cv-00261-GBL-IDD Document 29-1 Filed 05/27/16 Page 21 of 23 PageID# 470 Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 55 of 57 PageID 3727 11 0 62 64 524 b. Enjoining John Maguire, and all others acting in concert with him, from using, copying, uploading, downloading, transmitting, transferring, or disclosing any confidential information of CSC; c. Enjoining John Maguire, and all others acting in concert with him, from directly or indirectly soliciting CSC employees; d. Enjoining John Maguire, and all others acting in concert with him, from directly or indirectly tortiously interfering with CSC's agreements with its current and/or former employees: e. Enjoining John Maguire from working in any capacity, either directly or indirectly, with MassMutual or on any N4assMutual account or contract in any way that would cause Maguire to rely upon CSC's confidential information; f. Enjoining John Maguire from working j .n any capacity for Cognizant that would lead to actual or threatened disclosure of use of CSC's confidential or proprietary information for a reasonable period of time, but no less than one year. 2. The return of the value of gains realized by Maguire on exercised CSC stock options (currently valued at $627,600.00); 3. Refund of any and all consideration paid to Maguire under the Letter Agreement(s); 4. Refund of any and all costs associated with the repatriation of Eddie Woods; 5. Plaintiff's actual damages established at trial, sounding in breach of contract or in tort; plus any incidental or consequential damages, and disgorgement of any amounts earned by Maguire as a result of the use of CSC's confidential and proprietary information; 6. Exemplary and punitive damages in an amount to be determined by the jury; 2l Case 1:16-cv-00261-GBL-IDD Document 29-1 Filed 05/27/16 Page 22 of 23 PageID# 471 Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 56 of 57 PageID 3737 11 0 63 64 525 7. Pre judgment and post-judgment interest; 8. Attorneys' fees; 9. All costs of Court incurred herein; and 10. Such other and further relief, general or special, at law or in equity, to which CSC may be justly entitled. Respectfully submitted, Is/ J. David Folds J. David Folds, VSB No. 44068 Baker Donelson Bearman Caldwell & Berkowitz PC 901 K Street NW Washington, D.C. 20001 Telephone: (202) 508-3400 Facsimile• (202) 220-2241 dfolds@bakerdonelson.com and Steve Sumner, Texas Bar No. 19508500 E-Mail: ssumner@sumnerschick.com Admitted Pro Hac Vice David Schick, Texas Bar No. 17745700 E-Mail: dschick@sumnerschick.com Admitted Pro Hac Vice Gayle A. Boone, Texas Bar No. 02628500 E-Mail: gboone@sumnerschick.com Admitted Pro Hac Vice Justin Sumner, Texas Bar No. 24063022 E-Mail: jsumner@sumnerschick.com Admitted Pro Hac Vice Sumner, Schick, & Pace, LLP 3811 Turtle Creek Boulevard, Suite 600 Dallas, Texas 75219 (214) 965-9229 Telephone (214) 965-9215 Facsimile Attorneys for Computer Sciences Corporation 22 Case 1:16-cv-00261-GBL-IDD Document 29-1 Filed 05/27/16 Page 23 of 23 PageID# 472 Case 3:16-cv-01447-D Document 41 Filed 09/27/16 Page 57 of 57 PageID 3747 11 0 64 64 526