This case was last updated from San Francisco County Superior Courts on 04/12/2016 at 17:46:54 (UTC).

RIVERBED TECHNOLOGY, INC., A DELAWARE CORPORATION et al VS. SCOTTISH EQUITY PARTNERS LLP, A LIMITED LIABILITY

Case Summary

On 10/26/2012 RIVERBED TECHNOLOGY, INC , A DELAWARE CORPORATION filed an Other - Declaratory Judgment lawsuit against SCOTTISH EQUITY PARTNERS LLP, A LIMITED LIABILITY. This case was filed in San Francisco County Superior Courts, Civic Center Courthouse located in San Francisco, California. The case status is Not Classified By Court.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******5496

  • Filing Date:

    10/26/2012

  • Case Status:

    Not Classified By Court

  • Case Type:

    Other - Declaratory Judgment

  • Court:

    San Francisco County Superior Courts

  • Courthouse:

    Civic Center Courthouse

  • County, State:

    San Francisco, California

 

Party Details

Plaintiffs and Cross Defendants

RIVERBED TECHNOLOGY LIMITED, A PRIVATE LIMITED COMPANY FORMED UNDER THE LAWS OF

RIVERBED TECHNOLOGY, INC., A DELAWARE CORPORATION

RIVERBED TECHNOLOGY LIMITED, A PRIVATE LIMITED COMPANY FORMED UNDER THE LAWS OF ENGLAND

RIVERBED TECHNOLOGY, INC.

RIVERBED TECHNOLOGY LIMITED

Appellants and Cross Defendants

RIVERBED TECHNOLOGY, INC.

RIVERBED TECHNOLOGY LIMITED

Defendants, Others and Cross Plaintiffs

OCT-26-2012 COMPLAINT $1450.00 PAYMENT

SCOTTISH EQUITY PARTNERS LLP, A LIMITED LIABILITY PARTNERSHIP FORMED UNDER THE LAWS OF SCOTLAND, AS

SEP II

ESPRIT NOMINEES LIMITED

SCOTTISH EQUITY PARTNERS LLP

SEP IIB

SCOTTISH EQUITY PARTNERS LLP, A LIMITED LIABILITY PARTNERSHIP FORMED UNDER THE LAWS OF SCOTLAND, AS LEAD DEFENDANT AND PROPOSED DEFENDANT CLASS REPRESENTATIVE, ON BEHALF OF ITSELF AND ALL OTHERS SIMILARLY SITUATED

COVINGTON & BURLING LLP

Not Classified By Court

KONDEL, PAUL

METREWELI, KOSTEN

HOBLEY, CHARLES

DARRAGH, JAMES

Attorney/Law Firm Details

Plaintiff, Cross Defendant and Appellant Attorneys

BROWN FREDERICK

DAVIS, THAD A.

Attorney at GIBSON, DUNN AND CRUTCHER LLP

555 Mission Street, Suite 3000

San Francisco, CA 94105-2933

BROWN, FREDERICK

Attorney at GIBSON, DUNN & CRUTCHER LLP

555 Mission Street,, Ste. 3000

San Francisco, CA 94105-2933

Defendant, Other, Cross Plaintiff and Not Classified By Court Attorneys

DEFENDANT

BROWN, DONALD WESLEY

Attorney at COVINGTON & BURLING LLP

One Front Street

San Francisco, CA 94111

SHIN, CLARA J

Attorney at COVINGTON & BURLING LLP

One Front St, 35Th Fl

San Francisco, CA 94111

 

Court Documents

Plaintiffs and Cross-Defendants Riverbed Technology, Inc.s and Riverbed Technology Limiteds Notice of Motion for Judgment on the Pleadings

MOTION AND NOTICE OF MOTION FOR JUDGMENT ON THE PLEADINGS (TRANSACTION ID # 49548008) FILED BY PLAINTIFF RIVERBED TECHNOLOGY, INC., A DELAWARE CORPORATION RIVERBED TECHNOLOGY LIMITED, A PRIVATE LIMITED COMPANY FORMED UNDER THE LAWS OF ENGLAND HEARING SET FOR MAR-21-2013 AT 09:00 AM IN DEPT 304 (Fee:60.00)

Plaintiffs and Cross-Defendants Riverbed Technology Inc.s and Riverbed Technology Limiteds Memorandum of Points and Authorities in support of Motion for Judgment on the Pleadings

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS (TRANSACTION ID # 49548008) FILED BY PLAINTIFF RIVERBED TECHNOLOGY, INC., A DELAWARE CORPORATION RIVERBED TECHNOLOGY LIMITED, A PRIVATE LIMITED COMPANY FORMED UNDER THE LAWS OF ENGLAND

Notice of Motion and Motion to Strike Riverbeds Untimely Motion for Judgment on the Pleadings

MOTION AND NOTICE OF MOTION TO STRIKE RIVERBEDS UNTIMELY MOTION FOR JUDGMENT ON THE PLEADINGS (TRANSACTION ID # 49650534) FILED BY DEFENDANT SCOTTISH EQUITY PARTNERS LLP HEARING SET FOR MAR-25-2013 AT 09:00 AM IN DEPT 304 (Fee:60.00)

Memorandum of Points and Authorities in Support of Objection and Motion to Strike Riverbeds Untimely Motion for Judgment on the Pleadings

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OBJ AND MOTION TO STRIKE UNTIMELY MOTION (TRANSACTION ID # 49650534) FILED BY DEFENDANT SCOTTISH EQUITY PARTNERS LLP

Declaration of Clara J. Shin in Support of Objection and Motion to Strike Riverbeds Untimely Motion for Judgment on the Pleadings

DECLARATION OF CLARA J. SHIN IN SUPPORT OF OBJECTION AND MOTION TO STRIKE RIVERBEDS UNTIMELY MOTION FOR JUDGMENT ON THE PLEADINGS (TRANSACTION ID # 49650534) FILED BY DEFENDANT SCOTTISH EQUITY PARTNERS LLP

Exhibits 1-8 to Declaration of Clara J. Shin in Support of Objection and Motion to Strike Riverbeds Untimely Motion for Judgment on the Pleadings

EXHIBITS 1-8 TO DECLARATION OF CLARA J. SHIN IN SUPPORT OF OBJECTION AND MOTION TO STRIKE RIVERBEDS UNTIMELY MOTION FOR JUDGMENT ON THE PLEADINGS (TRANSACTION ID # 49650534) FILED BY DEFENDANT SCOTTISH EQUITY PARTNERS LLP

Notice of Withdrawal of Riverbed Technology, Inc. and Riverbed Technology Limiteds: Notice of Motion for Judgment on the Pleadings; Motion for Judgment on the Pleadings; [Proposed] Order Granting Plaintiffs Motion for Judgment on the Pleadings; and Declaration of Service.

NOTICE OF WITHDRAWAL OF RIVERBED TECHNOLOGY, INC. AND RIVERBED TECHNOLOGY LIMITEDS: NOTICE OF MOTION FOR JUDGMENT ON THE PLEADINGS; MOTION FOR JUDGMENT ON THE PLEADINGS; [PROPOSED] ORDER GRANTING PLAINTIFFS MOTION FOR JUDGMENT ON THE PLEADINGS; AND DECLARATION OF SERVICE. (TRANSACTION ID # 49686015) FILED BY PLAINTIFF RIVERBED TECHNOLOGY, INC., A DELAWARE CORPORATION RIVERBED TECHNOLOGY LIMITED, A PRIVATE LIMITED COMPANY FORMED UNDER THE LAWS OF ENGLAND

ORDER

ORDER VACATING HEARING DATES FOR: (1) PLAINTIFFS' MOTION FOR CLASS CERTIFICATION, (2) PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS, (3) PLAINTIFFS' MOTION FOR PROTECTIVE ORDER, (4)PLAINTIFFS' MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT, (5) DEFENDANT'S MOTION TO STRIKE PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS (CROSS-COMPLAINT), (6) DEFENDANTS' MOTION TO COMPEL DISCOVERY SERVED VIA FILE & SERVE XPRESS (TRANSACTION #49737062)

Plaintiff and Cross-Defendants Riverbed Technology, Inc.s and Riverbed Technology Limiteds Notice of Motion for Judgment on the Pleadings

PLAINTIFF AND CROSS-DEFENDANTS RIVERBED TECHNOLOGY, INC.S AND RIVERBED TECHNOLOGY LIMITEDS NOTICE OF MOTION FOR JUDGMENT ON THE PLEADINGS (TRANSACTION ID # 51886580) FILED BY PLAINTIFF RIVERBED TECHNOLOGY, INC., A DELAWARE CORPORATION RIVERBED TECHNOLOGY LIMITED, A PRIVATE LIMITED COMPANY FORMED UNDER THE LAWS OF ENGLAND HEARING SET FOR MAY-14-2013 AT 09:00 AM IN DEPT 304 (Fee:60.00)

Plaintiffs Riverbed Technology, Inc. and Riverbed Technology Limiteds Motion for Judgment on the Pleadings; Memorandum of Points and Authorities in Support Thereof

PLAINTIFFS RIVERBED TECHNOLOGY, INC. AND RIVERBED TECHNOLOGY LIMITEDS MOTION FOR JUDGMENT ON THE PLEADINGS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF (TRANSACTION ID # 51886580) FILED BY PLAINTIFF RIVERBED TECHNOLOGY, INC., A DELAWARE CORPORATION RIVERBED TECHNOLOGY LIMITED, A PRIVATE LIMITED COMPANY FORMED UNDER THE LAWS OF ENGLAND

Declaration of Thad A. Davis in Support of Plaintiff Riverbed Technology, Inc. and Riverbed Technology Limiteds Motion for Judgment on the Pleadings

DECLARATION OF THAD A. DAVIS IN SUPPORT OF PLAINTIFF RIVERBED TECHNOLOGY, INC. AND RIVERBED TECHNOLOGY LIMITEDS MOTION FOR JUDGMENT ON THE PLEADINGS (TRANSACTION ID # 51886580) FILED BY PLAINTIFF RIVERBED TECHNOLOGY, INC., A DELAWARE CORPORATION RIVERBED TECHNOLOGY LIMITED, A PRIVATE LIMITED COMPANY FORMED UNDER THE LAWS OF ENGLAND

Exhibit A (Part 1 of 10) to Declaration of Thad A. Davis in Support of Plaintiff Riverbed Technology, Inc. and Riverbed Technology Limiteds Motion for Judgment on the Pleadings

EXHIBIT A (PART 1 OF 10) TO DECLARATION OF THAD A. DAVIS IN SUPPORT OF PLAINTIFF RIVERBED TECHNOLOGY, INC. AND RIVERBED TECHNOLOGY LIMITEDS MOTION FOR JUDGMENT ON THE PLEADINGS (TRANSACTION ID # 51886580) FILED BY PLAINTIFF RIVERBED TECHNOLOGY, INC., A DELAWARE CORPORATION RIVERBED TECHNOLOGY LIMITED, A PRIVATE LIMITED COMPANY FORMED UNDER THE LAWS OF ENGLAND

Exhibit A (Part 2 of 10) to Declaration of Thad A. Davis in Support of Plaintiff Riverbed Technology, Inc. and Riverbed Technology Limiteds Motion for Judgment on the Pleadings

EXHIBIT A (PART 2 OF 10) TO DECLARATION OF THAD A. DAVIS IN SUPPORT OF PLAINTIFF RIVERBED TECHNOLOGY, INC. AND RIVERBED TECHNOLOGY LIMITEDS MOTION FOR JUDGMENT ON THE PLEADINGS (TRANSACTION ID # 51886580) FILED BY PLAINTIFF RIVERBED TECHNOLOGY, INC., A DELAWARE CORPORATION RIVERBED TECHNOLOGY LIMITED, A PRIVATE LIMITED COMPANY FORMED UNDER THE LAWS OF ENGLAND

Exhibit A (Part 3 of 10) to Declaration of Thad A. Davis in Support of Plaintiff Riverbed Technology, Inc. and Riverbed Technology Limiteds Motion for Judgment on the Pleadings

EXHIBIT A (PART 3 OF 10) TO DECLARATION OF THAD A. DAVIS IN SUPPORT OF PLAINTIFF RIVERBED TECHNOLOGY, INC. AND RIVERBED TECHNOLOGY LIMITEDS MOTION FOR JUDGMENT ON THE PLEADINGS (TRANSACTION ID # 51886580) FILED BY PLAINTIFF RIVERBED TECHNOLOGY, INC., A DELAWARE CORPORATION RIVERBED TECHNOLOGY LIMITED, A PRIVATE LIMITED COMPANY FORMED UNDER THE LAWS OF ENGLAND

Exhibit A (Part 4 of 10) to Declaration of Thad A. Davis in Support of Plaintiff Riverbed Technology, Inc. and Riverbed Technology Limiteds Motion for Judgment on the Pleadings

EXHIBIT A (PART 4 OF 10) TO DECLARATION OF THAD A. DAVIS IN SUPPORT OF PLAINTIFF RIVERBED TECHNOLOGY, INC. AND RIVERBED TECHNOLOGY LIMITEDS MOTION FOR JUDGMENT ON THE PLEADINGS (TRANSACTION ID # 51886580) FILED BY PLAINTIFF RIVERBED TECHNOLOGY, INC., A DELAWARE CORPORATION RIVERBED TECHNOLOGY LIMITED, A PRIVATE LIMITED COMPANY FORMED UNDER THE LAWS OF ENGLAND

Exhibit A (Part 5 of 10) to Declaration of Thad A. Davis in Support of Plaintiff Riverbed Technology, Inc. and Riverbed Technology Limiteds Motion for Judgment on the Pleadings

EXHIBIT A (PART 5 OF 10) TO DECLARATION OF THAD A. DAVIS IN SUPPORT OF PLAINTIFF RIVERBED TECHNOLOGY, INC. AND RIVERBED TECHNOLOGY LIMITEDS MOTION FOR JUDGMENT ON THE PLEADINGS (TRANSACTION ID # 51886580) FILED BY PLAINTIFF RIVERBED TECHNOLOGY, INC., A DELAWARE CORPORATION RIVERBED TECHNOLOGY LIMITED, A PRIVATE LIMITED COMPANY FORMED UNDER THE LAWS OF ENGLAND

Exhibit A (Part 6 of 10) to Declaration of Thad A. Davis in Support of Plaintiff Riverbed Technology, Inc. and Riverbed Technology Limiteds Motion for Judgment on the Pleadings

EXHIBIT A (PART 6 OF 10) TO DECLARATION OF THAD A. DAVIS IN SUPPORT OF PLAINTIFF RIVERBED TECHNOLOGY, INC. AND RIVERBED TECHNOLOGY LIMITEDS MOTION FOR JUDGMENT ON THE PLEADINGS (TRANSACTION ID # 51886580) FILED BY PLAINTIFF RIVERBED TECHNOLOGY, INC., A DELAWARE CORPORATION RIVERBED TECHNOLOGY LIMITED, A PRIVATE LIMITED COMPANY FORMED UNDER THE LAWS OF ENGLAND

Exhibit A (Part 7 of 10) to Declaration of Thad A. Davis in Support of Plaintiff Riverbed Technology, Inc. and Riverbed Technology Limiteds Motion for Judgment on the Pleadings

EXHIBIT A (PART 7 OF 10) TO DECLARATION OF THAD A. DAVIS IN SUPPORT OF PLAINTIFF RIVERBED TECHNOLOGY, INC. AND RIVERBED TECHNOLOGY LIMITEDS MOTION FOR JUDGMENT ON THE PLEADINGS (TRANSACTION ID # 51886580) FILED BY PLAINTIFF RIVERBED TECHNOLOGY, INC., A DELAWARE CORPORATION RIVERBED TECHNOLOGY LIMITED, A PRIVATE LIMITED COMPANY FORMED UNDER THE LAWS OF ENGLAND

775 More Documents Available

 

Docket Entries

  • 04/12/2016
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  • PROOF OF SERVICE OF LETTER TO JUDGE KARNOW (TRANSACTION ID # 58850342) FILED BY DEFENDANT SCOTTISH EQUITY PARTNERS LLP SEP II SEP IIB ESPRIT NOMINEES LIMITED

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  • 04/11/2016
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  • NOTICE TO REPORTER TO PREPARE TRANSCRIPT

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  • 04/11/2016
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  • NOTICE TO REPORTER TO PREPARE TRANSCRIPT

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  • 04/11/2016
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  • CLERK'S NOTICE OF FILING OF NOTICE OF APPEAL

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  • 04/08/2016
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  • ORDER GRANTING IN PART AND DENYING PART RIVERBED MOTION TO TAX COSTS (TRANSACTION #58840077)

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  • 04/08/2016
  • ORDER ISSSUED ON MOTION TO TAX COSTS.

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  • 04/06/2016
  • FEE TO COVER TRIAL COURT COSTS ASSOCIATED WITH ADMINISTERING TRUST ACCOUNTS FOR PAYMENT OF REPORTER'S TRANSCRIPT COSTS IN CIVIL APPEALS (CRC 8.130(B)(1); GC 70632) (Fee:50.00)

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  • 04/06/2016
  • DEPOSIT FEE FOR REPORTERS TRANSCRIPT, TRAN # R8716406A001, TAG # 033986 (TRANSACTION ID # 58815293) FILED BY APPELLANT RIVERBED TECHNOLOGY, INC. RIVERBED TECHNOLOGY LIMITED (Fee:160.00)

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  • 04/05/2016
  • HEARING ON APR-05-2016 TAKEN UNDER SUBMISSION ON APR-05-2016 BY CURTIS KARNOW. JUDGE CURTIS E.A. KARNOW, CLERK DANIAL LEMIRE, REPORTER BALINDA DUNLAP CSR 10710.

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  • 04/05/2016
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  • MINUTES FOR APR-05-2016 2:00 PM

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883 More Docket Entries
  • 12/17/2012
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  • ANSWER TO COMPLAINT FILED BY DEFENDANT SCOTTISH EQUITY PARTNERS LLP

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  • 11/30/2012
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  • SUMMONS ON COMPLAINT, PROOF OF SERVICE ONLY, FILED BY PLAINTIFF RIVERBED TECHNOLOGY, INC., A DELAWARE CORPORATION RIVERBED TECHNOLOGY LIMITED, A PRIVATE LIMITED COMPANY FORMED UNDER THE LAWS OF ENGLAND SERVED NOV-16-2012, PERSONAL SERVICE ON DEFENDANT SCOTTISH EQUITY PARTNERS LLP, A LIMITED LIABILITY PARTNERSHIP FORMED UNDER THE LAWS OF SCOTLAND, AS LEAD DEFENDANT AND PROPOSED DEFENDANT CLASS REPRESENTATIVE, ON BEHALF OF ITSELF AND ALL OTHERS SIMILARLY SITUATED

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  • 11/30/2012
  • RESPONSE TO DEFT'S RESPONSE TO APPLICATION FOR APPROVAL OF COMPLEX LITIGATION DESIGNATION FILED BY PLAINTIFF RIVERBED TECHNOLOGY, INC., A DELAWARE CORPORATION RIVERBED TECHNOLOGY LIMITED, A PRIVATE LIMITED COMPANY FORMED UNDER THE LAWS OF ENGLAND

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  • 11/21/2012
  • DECLARATION OF CLARA J. SHIN 1 FILED BY CROSS COMPLAINANT SCOTTISH EQUITY PARTNERS LLP

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  • 11/21/2012
  • RESPOSNE TO RIVERBED'S APPLICATION FOR APPROVAL OF COMPLEX LITIGATION DESIGNATION FILED BY CROSS COMPLAINANT SCOTTISH EQUITY PARTNERS LLP

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  • 11/21/2012
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  • CROSS COMPLAINT FILED BY CROSS COMPLAINANT SCOTTISH EQUITY PARTNERS LLP AS TO CROSS DEFENDANT RIVERBED TECHNOLOGY, INC. RIVERBED TECHNOLOGY LIMITED

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  • 11/21/2012
  • CIVIL CASE COVER SHEET RE: JOINDER IN COMPLEX CASE DESIGNATION FILED BY DEFENDANT SCOTTISH EQUITY PARTNERS LLP (Fee:1450.00)

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  • 11/19/2012
  • APPLICATION FOR APPROVAL OF COMPLEX LITIGATION DESIGNATION FILED BY PLAINTIFF RIVERBED TECHNOLOGY, INC., A DELAWARE CORPORATION RIVERBED TECHNOLOGY LIMITED, A PRIVATE LIMITED COMPANY FORMED UNDER THE LAWS OF ENGLAND (Fee:60.00)

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  • 10/26/2012
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  • NOTICE TO PLAINTIFF

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  • 10/26/2012
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  • DECLARATORY RELIEF, COMPLAINT FILED BY PLAINTIFF RIVERBED TECHNOLOGY, INC., A DELAWARE CORPORATION RIVERBED TECHNOLOGY LIMITED, A PRIVATE LIMITED COMPANY FORMED UNDER THE LAWS OF ENGLAND AS TO DEFENDANT SCOTTISH EQUITY PARTNERS LLP, A LIMITED LIABILITY PARTNERSHIP FORMED UNDER THE LAWS OF SCOTLAND, AS LEAD DEFENDANT AND PROPOSED DEFENDANT CLASS REPRESENTATIVE, ON BEHALF OF ITSELF AND ALL OTHERS SIMILARLY SITUATED SUMMONS ISSUED, JUDICIAL COUNCIL CIVIL CASE COVER SHEET FILED CASE MANAGEMENT CONFERENCE SCHEDULED FOR MAR-27-2013 PROOF OF SERVICE DUE ON DEC-26-2012 CASE MANAGEMENT STATEMENT DUE ON MAR-12-2013 COMPLEX LITIGATION ASSIGNMENT REQUESTED BY FILING PARTIES; FEE INCLUDED IN FILING FEE (Fee:1450.00)

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Complaint Information

GIBSON, DUNN & CRUTCHER LLP FREDERICK BROWN, SBN 65316 tbrown({@gibsondunn.com

THAD A. DAVIS, SBN 220503 ELECTRONICALLY tadavis(@gibsondunn.com | 1 | CHRISTINE FUJITA, SBN 274750 Supeg,, 20}; o}%a},%m,-a, ctujita@gibsondunn.com County of San Francisco 555 Mission Street, Suite 3000

San Francisco, CA 94105-0921 (I!/niQKYOf‘ltl?e %?)33‘? Telephone: 415.393.8200 BY: JUDITH NUNEZ

Facsimile: 415.393.8306 Deputy Clerk Attorneys for Plaintiffs and Cross-Defendants

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO

RIVERBED TECHNOLOGY, INC., and RIVERBED TECHNOLOGY LIMITED,

CASE NO. CGC 12-525496

CLASS ACTION

Plaintiffs, Judge Curtis Karnow V. RIVERBED TECHNOLOGY, INC. AND

RIVERBED TECHNOLOGY LIMITED’S

ANSWER TO SEP 11, SEP 11B, AND ESPRIT NOMINEES LIMITED, ON BEHALF OF THE CLASS, AND SCOTTISH EQUITY

PARTNERS LLP’S SECOND AMENDED CROSS-COMPLAINT FOR BREACH OF CONTRACT AND DECLARATORY JUDGMENT

SCOTTISH EQUITY PARTNERS LLP,

Defendant.

PRELIMINARY STATEMENT

1. This 1s a breach of contract case arising from the July 19, 2011 Share Purchase Agreement (“SPA”) between Riverbed, the Former Shareholders of Zeus Technology Limited (the “Former Shareholders™), and Scottish Equity Partners LLP (“SEP”) as Seller’s Agent for the Former Shareholders, whereby Riverbed purchased from the Former Shareholders certain shares of Zeus. 2. Riverbed paid a purchase price of approximately $110 million in cash, and the Former Shareholders had the ability to earn an additional payment under an earn-out provision, Section 1.6 of the SPA. Under this provision, the Former Shareholders could receive an earn-out payment if Riverbed’s “bookings” of “Specified Company Products” in “Qualified Transactions” in the year following the acquisition exceeded $25 million. Every dollar over the threshold earned the Former Shareholders two dollars of earn-out consideration, up to a $27 million cap. 3. The parties to the SPA negotiated the earn-out mechanism to address the gap between Riverbed’s and Zeus’s views regarding the growth potential and normal revenue-generating capability of Zeus’s business. During the negotiations, the Former Shareholders, and their agents, SEP and others, provided to Riverbed Zeus’s historical bookings and projections for those bookings. The parties set the $25 million earn-out threshold based on this data, and on the optimistic projections provided to Riverbed that its Zeus business would have $31 million in “bookings™ of “Specified Company Products” in “Qualified Transactions™ in the year following the acquisition. (RB0012418). These projections, as well as the historical data, were based solely on the sale and license of Zeus products in the ordinary course of business. Those products, all of which were m object code, sold for thousands of dollars, not the tens of millions of dollars which would be paid for source code, 1f

sold or licensed. None of the historical or projected bookings provided to Riverbed, by the Class or

sold or licensed. None of the historical or projected bookings provided to Riverbed, by the Class or their agents, including SEP, included the license or sale of source code, as admitted in SEP’s

their agents, including SEP, included the license or sale of source code, as admitted in SEP’s

deposition. Those on the Class’s side of this case, including SEP, never brought up source code at all

B (Ver. 20, 2014 Dep. Tr. at 75:15-16.)

4, Zeus believed that the $25 million threshold was ambitious and unlikely to be achieved. For

example, the Chairperson of Zeus’s Board of Directors believed the earn-out element was too risky and did not consider 1t of value. (RB0922301). Arma Partners LLP, an advisor to Zeus, also warned that the earn-out was “at risk” because Zeus’s “bookings” projection was “quite an ambitious target.” Arma Partners also noted that Zeus had “underperformed its ambitious bookings targets by an average of 13%7” in the last quarters. (RB0948635).

5. Documents produced 1n this litigation show that SEP, Seller’s Agent for the Former Shareholders, also believed that reaching the $25 million threshold was aspirational and unlikely to be achieved, and therefore the sellers should focus more on the cash purchase price. For example,

Andrew Davison, a partnerlead partner on SEP’s investment in Zeus, stated to

the CEO of Zeus: | — ” (SEP0009653). Similarly, Gordon Beveridge also stated to Mr. Davison: _ B (5:P0007760).

6. If bookings had been meant to include the sale or license of source code, the trigger to pay the

earn-out would have been set much higher than $25 million.

7. Sections 1.6(a) of the SPA set forth the definitions and requirements for bookings:

“Section 1.6(a)(vi): “Product Bookings” shall mean the bookings (as the term “bookings” is commonly understood) (net of applicable discounts as approved in accordance with Purchaser’s discount authorization policy, referral fees, back end rebates, marketing development funds and other adjustments to sales prices) that are derived by Purchaser and 1ts Subsidiaries (including the Company) solely from the sale or license of any of the Company’s products 1dentified on Schedule 1.6(a)(vi1) and products for which only minor cosmetic changes have been made (as long as the same support terms as those applied to the products identified on Schedule 1.6(a)(vii) apply) (collectively the “Specified Company Products™) and the sale or license of any future releases by Purchaser or its Subsidiaries of the Specified Company Products, in each case only to the extent that such sales or licenses meet the conditions set forth in clauses “(A)” and “(B)” of this sentence:

“Section 1.6(a)(vi): “Product Bookings” shall mean the bookings (as the term “bookings” is commonly understood) (net of applicable discounts as approved in accordance with Purchaser’s discount authorization policy, referral fees, back end rebates, marketing development funds and other adjustments to sales prices) that are derived by Purchaser and 1ts Subsidiaries (including the Company) solely from the sale or license of any of the Company’s products 1dentified on Schedule 1.6(a)(vi1) and products for which only minor cosmetic changes have been made (as long as the same support terms as those applied to the products identified on Schedule 1.6(a)(vii) apply) (collectively the “Specified Company Products™) and the sale or license of any future releases by Purchaser or its Subsidiaries of the Specified Company Products, in each case only to the extent that such sales or licenses meet the conditions set forth in clauses “(A)” and “(B)” of this sentence: (A) such sales or licenses are made during the One-Year Period to Qualified Customers in Qualified Transactions; and (B) the software and related software keys to enable a fully functional software product under the sale or license from Product Bookings are delivered to the customer during the One-Year Period.”

(A) such sales or licenses are made during the One-Year Period to Qualified Customers in Qualified Transactions; and (B) the software and related software keys to enable a fully functional software product under the sale or license from Product Bookings are delivered to the customer during the One-Year Period.”

Section 1.6(a)(x): “Service Bookings” shall mean the bookings (as the term “bookings 1s commonly understood) (net of applicable discounts as approved in accordance with Purchaser’s discount authorization policy, referral fees, back end rebates, marketing development funds and other adjustments to sales prices) that are derived by Purchaser and 1its Subsidiaries (including the Company) solely from the sale during the One-Year Period of initial or renewal maintenance services and nitial or renewal support services and solely to the extent related to the sale of Specified Company Products during the One-Year Period to Qualified Customers n Qualified Transactions at terms acceptable to Purchaser for services available without enhancement at the time of booking (it being understood that the Services Bookings shall not include bookings related to: (A) services for delivery beyond one year from the booking date; (B) professional services, including OEM development work other than as specified in Schedule 1.6(a)(x) for delivery beyond the One Year Period; and; and (C) training services for deliver beyond the one year period).

Section 1.6(a)(ix): “Qualified Transactions” shall mean transactions which include sales agreement terms and purchase order terms acceptable to Purchaser in 1ts sole discretion; provided, however, that sales agreement terms that were contractedAcquired Companies prior to the Closing shall be deemed acceptable to Purchaser for the purpose of this sentence. Qualified Transactions shall exclude: (A) transactions with respect to products or services which are refundable, returnable, cancellable or of a contingent nature; (B) transactions including commitments for functionality, services or products that are not available as of the bookings date, or transactions in which all committed obligations to the customer are not documented as part of the sales agreement or purchase order documentation; or (C) new products, services and related pricing not approved by Purchaser.

8. Documents produced in this hitigation show that Zeus created the list of “Specified Company Products” based on the “current retail products™ on Zeus’s price lists. (RB0845833). Only object code products were listed on Zeus’s price list. There were no source code products on those price lists.

9. Schedule 1.6(a)(v1i) also states that “through certain channels, [Zeus] currently sells . . . custom configurations of Zeus Traffic Manager and Zeus Load Balancer to several OEM partners.” All of the custom configurations of Zeus Traffic Manager and Zeus Load Balancer then currently sold to OEM partners included object code licenses, not source code licenses.

10. The SPA defined “Qualified Transactions™ to specifically exclude “transactions which contain in part or in whole, products or services not on [Riverbed’s] published price list.” Riverbed’s price

list contains commercially available products in object code that it licenses for thousands of dollars. 3

list contains commercially available products in object code that it licenses for thousands of dollars. 3 No source code licenses are listed on Riverbed’s price list at any price. No tools used to develop and test Riverbed products are listed on Riverbed’s price list at any price. No source code engineering services on Riverbed products or knowledge transfer services that would enable a third party to modify and build Riverbed products are listed on Riverbed’s price list at any price.

No source code licenses are listed on Riverbed’s price list at any price. No tools used to develop and test Riverbed products are listed on Riverbed’s price list at any price. No source code engineering services on Riverbed products or knowledge transfer services that would enable a third party to modify and build Riverbed products are listed on Riverbed’s price list at any price.

11. “Bookings” of “Specified Company Products™ in “Qualified Transactions” in the year following the acquisition fell short of the $25 million threshold, and therefore the Former Shareholders were not entitled to any earn-out consideration.

12. This dispute arises from the Former Shareholders’ and SEP’s claim that a June 14, 2012 transaction between Riverbed Technology, Inc. and Juniper Networks, Inc. (“Juniper”) constituted a “booking” of “Specified Company Products”™ in “Qualified Transactions” qualifying towards the earn-out, therefore requiring Riverbed to pay the full $27 million in earn-out consideration.

13. The transaction between Riverbed Technology, Inc. and Juniper involved three agreements signed on the same date and were part of a single technology partnership: the ADC Source Code License Agreement (“ADC License”), Technology Integration Agreement relating to a joint offering of Riverbed WAN optimization technology with Juniper’s virtual private networking technology, and Joint Marketing Agreement relating to Juniper exiting the WAN optimization product line and

providing to Riverbed all software and 1intellectual property relating to Juniper’s WAN optimization

terms between Riverbed and Juniper as part of a technology partnership. The accounting treatment of the transaction treated the three agreements as a single arrangement, resulting in product revenue to Riverbed based on valuation of all three agreements together. Riverbed would not have entered into the ADC License without also entering into the Technology Integration Agreement and Joint Marketing Agreement.

14. Specifically, the ADC License provides Juniper with a perpetual source code license to Riverbed’s Stingray Traffic Manager in exchange for $75 million. The ADC License provides that of the $75 million, $65 million will be paid upon the acceptance date of the source code and $10 million

will be paid 1n one year. The ADC License allows Juntper to modify and make enhancements to the

will be paid 1n one year. The ADC License allows Juntper to modify and make enhancements to the source code to Stingray Traffic Manager. Under the ADC License, after twelve months from the effective date of the ADC License, Riverbed will provide the updated source code to Stingray Traftic Manager.

source code to Stingray Traffic Manager. Under the ADC License, after twelve months from the effective date of the ADC License, Riverbed will provide the updated source code to Stingray Traftic Manager.

15. The ADC License also provides that 1n the first three years of the agreement, Juniper could only license Stingray Traffic Manager as an integrated product in its hardware product. After the inttial three-year distribution period, Juniper will have the right to sell a software-only version of the Stingray Traffic Manager and will have to pay royalties for each software-only sale.

16. Further, the ADC License required Riverbed:

[T]o provide to Juniper Networks and/or its Affiliates the services of two FTEs to perform (a) those knowledge transfer services specified in Exhibit C (the “Transition Services”) and (B) source code engineering level support as Juniper Networks may reasonably request, in order to facilitate Juniper Networks’ efforts to understand, modify, build, test, market, sell and support the Licensed Software as or as integrated in, or bundled with Juniper Networks Products and to maintain such products, which support may include without himitation additional training as well as consulting on solutions for issues related to any of the Licensed Software and Licensed Tools (the “Engineering Services”).

17. The ADC License also required Riverbed, in the second through fourth years of the

18. In addition to licensing the source code of Stingray Traffic Manager to Juniper, Riverbed also licensed to Juniper (1) all of the files and related libraries for Stingray Traffic Manager, (2) all the tools required for the development of Stingray Traffic Manager, (3) all build scripts required to build both the Linux version and the virtual version of Stingray Traffic Manager, (4) all software and scripts required to run the automated tests, (5) a soft copy version of the user documentation provided to external customers, (6) build server documentation detailing the build and installation process for building Stingray Traffic Manager on a Linux server and virtual machine, (7) developer documentation consisting of Stingray Traffic Manager architecture, design documents, documentation relating to the build system and test system and other internal documentation, and (8) an inventory of all manual tests. A listing of all of the items Riverbed licensed to Juniper under the ADC License 1s provided in Exhibit A to the ADC License. A true and correct copy of Exhibit A to

the ADC License 1s attached hereto as Exhibit A.

the ADC License 1s attached hereto as Exhibit A. 19. As part of the ADC License, Riverbed had to provide Juniper with the following: (1) Stingray license key generation code, (2) Application Firewall and Aptimizer code, (3) various third-party software, and (4) Riverbed trademarks and branding, because such items are included in the Stingray Traffic Manager source code that Riverbed uses to create its own commercially available versions of Stingray Traffic Manager. These items, however, were not licensed to Juniper under the ADC License and Juniper was required to modify the Stingray Traffic Manager source code to remove all such 1tems before it could distribute, license, or sell any products incorporating the products licensed under the ADC License. 20. The ADC License does not meet the requirements of a “booking” of “Specified Company Products™ in “Qualified Transactions™ as those terms are defined in the SPA. Among other reasons, the ADC License was not a “booking” of a “Specified Company Product” in a “Qualified Transaction” because it is not a “booking™ as the term “is commonly understood”; the ADC License was not a sale or license in the ordinary course of business; the agreement was part of a broader, multi-part technology partnership, that included the provision of knowledge transfer and engineering services to Juniper; the parties intended bookings only to include sales and licenses in the ordinary course of business, as demonstrated by Zeus’s historical bookings and projections based on its retail products; the source code to Zeus Traffic Manager 1s not listed as a “Specified Company Product” on Schedule 1.6(a)(v1i); Zeus’s and Riverbed’s price lists included licenses to only the object code of their software, never source code; and the knowledge transfer and engineering services, build tools, test scripts, hibraries, and developer documentation provided under the ADC License have never appeared on Zeus’s or Riverbed’s price lists.

19. As part of the ADC License, Riverbed had to provide Juniper with the following: (1) Stingray license key generation code, (2) Application Firewall and Aptimizer code, (3) various third-party software, and (4) Riverbed trademarks and branding, because such items are included in the Stingray Traffic Manager source code that Riverbed uses to create its own commercially available versions of Stingray Traffic Manager. These items, however, were not licensed to Juniper under the ADC License and Juniper was required to modify the Stingray Traffic Manager source code to remove all such 1tems before it could distribute, license, or sell any products incorporating the products licensed under the ADC License. 20. The ADC License does not meet the requirements of a “booking” of “Specified Company Products™ in “Qualified Transactions™ as those terms are defined in the SPA. Among other reasons, the ADC License was not a “booking” of a “Specified Company Product” in a “Qualified Transaction” because it is not a “booking™ as the term “is commonly understood”; the ADC License was not a sale or license in the ordinary course of business; the agreement was part of a broader, multi-part technology partnership, that included the provision of knowledge transfer and engineering services to Juniper; the parties intended bookings only to include sales and licenses in the ordinary course of business, as demonstrated by Zeus’s historical bookings and projections based on its retail products; the source code to Zeus Traffic Manager 1s not listed as a “Specified Company Product” on Schedule 1.6(a)(v1i); Zeus’s and Riverbed’s price lists included licenses to only the object code of their software, never source code; and the knowledge transfer and engineering services, build tools, test scripts, hibraries, and developer documentation provided under the ADC License have never appeared on Zeus’s or Riverbed’s price lists.

GENERAL DENIAL

21. Pursuant to Section 431.30 of the California Code of Civil Procedure, Riverbed hereby generally denies each and every allegation in the Cross-Complaint, and further denies that the Class has suffered any damages or 1s entitled to any relief whatsoever. 22. Without admitting any of the facts alleged in the Cross-Complaint, Riverbed hereby submits the following defenses, without prejudice to Riverbed’s right to argue that the Class bears the burden

21. Pursuant to Section 431.30 of the California Code of Civil Procedure, Riverbed hereby generally denies each and every allegation in the Cross-Complaint, and further denies that the Class has suffered any damages or 1s entitled to any relief whatsoever. 22. Without admitting any of the facts alleged in the Cross-Complaint, Riverbed hereby submits the following defenses, without prejudice to Riverbed’s right to argue that the Class bears the burden of proof as to one or more of said defenses. Furthermore, all such defenses are pled in the alternative and do not constitute an admission of liability or an admaission that the Class 1s entitled to any rehef whatsoever. Riverbed may have additional affirmative defenses of which they are not currently fully aware and reserve the right to assert additional defenses after they are ascertained.

of proof as to one or more of said defenses. Furthermore, all such defenses are pled in the alternative and do not constitute an admission of liability or an admaission that the Class 1s entitled to any rehef whatsoever. Riverbed may have additional affirmative defenses of which they are not currently fully aware and reserve the right to assert additional defenses after they are ascertained.

FIRST DEFENSE

(Waiver) 23. The Cross-Complaint is barred, in whole or in part, by the doctrine of waiver.

SECOND DEFENSE

(Estoppel)

24. The Cross-Complaint is barred, in whole or in part, by the doctrine of estoppel.

THIRD DEFENSE

(Unclean Hands) 25. The Cross-Complaint is barred, in whole or in part, by the doctrine of unclean hands.

FOURTH DEFENSE

(Acts or Omissions of the Class)

26. The Cross-Complaint is barred, 1n whole or in part, to the extent that damages, 1f any, resulted from the Class’s acts and/or omissions.

FIFTH DEFENSE

(Class’s Breach)

27. The Cross-Complaint 1s barred, in whole or in part, by the Class’s breach of the Agreement and the implied covenant of good faith and fair dealing therein.

SIXTH DEFENSE

(Failure of Condition Precedent)

28. The Cross-Complaint is barred, in whole or in part, because the conditions precedent to the

triggering of the earn-out provision in the contract did not occur.

triggering of the earn-out provision in the contract did not occur. (Full Performance)

(Full Performance)

29, ",{‘hé ‘(sts»a(fl@mplaii}i?‘iS.'.'bail‘.f-‘i“fid{ifi.Wh@lc?:f;drf,i;r.!ffpar;t{,,’ifin that Riverbed has fully performed and | discharged each and every obligation .théy owe to the Class under the 8PA, or otherwise, not excused.

EIGHTH DEFENSE

(Unjust Enrichment) 19. The Cross-Complaint is barred, in whole or in part, because allowing the Class to prevail on its claims would result in unjust enrichment to the Class.

NINTH DEFENSE

(Election of Remedies) | 20. The Cross-Complaint is barred, in whole or in part, by the doctrine of election of remedies,

TENTH DEFENSE

(Claim Splitting) | 25. The Cross-Complaint is barred, m whole or in part, because the Class has improperly split its | claims.

PRAYER FOR RELIEF

Wherefore, Plaintiffs pray for ‘-:re’i;ief.asfffillews: 1. That the Class takes nothing by its Cross-Complaint; 2 That the Cross-Complaint be dismissed with prejudice; 3. That Riverbed be awarded its costs of suit and reasonable attorneys” fees; and 4

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

| DATED: May 16,2014 GIBSON, DUNN & CRUTCHER LLP