GAIN Capital, TIBCO Software agree on mediation in software over-deployment case

Maria Nikolova

The latest court filings hint at prospects of resolving the case, as the parties agree to have mediation later this month.

Shortly after Judge Edward J Davila of California Northern District Court sided with GAIN Capital Group LLC and dismissed some of the claims in a software over-deployment case brought by TIBCO Software, the parties in the case have updated the Court on the latest developments.

The latest court filings indicate that the prospects of resolving the case are high.

Let’s recall that TIBCO’s complaint asserts a number of claims against GAIN, including breach of contract; breach of the implied covenant of good faith and fair dealing; and copyright infringement. The claims all relate to GAIN’s alleged over-deployment of certain products of TIBCO. On May 18, 2016, TIBCO notified GAIN that it intended to audit GAIN’s compliance with its use of the license. TIBCO hired KPMG to conduct an on-site audit in August 2016. KPMG produced a final deployment report, based on its August 2016 audit, which indicated that GAIN had over-deployed TIBCO software.

GAIN Capital moved for dismissal of the action. It disputed TIBCO’s allegations but acknowledged that “TIBCO has met its pleading burden for its two breach of contract claims.” Its copyright infringement and good faith and fair dealing claims, however, GAIN said, are fatally deficient as a matter of law.

In December 2017, the Court sided with GAIN Capital, with the Judge assigned to the case dismissing the copyright infringement claim and the breach of the implied covenant of good faith and fair dealing claim. Both claims were dismissed with leave to amend.

Tibco was given time until December 29, 2017 to file an amended complaint.

As per the latest court filings, the parties in the case have informed the Court that they have agreed to have a private mediation scheduled with Judge Cahill at JAMS in San Francisco on January 30, 2018. As a result, the parties agree to extend TIBCO’s deadline to file an Amended Complaint.

Given the scheduled mediation and the resulting prospect of resolving the case, the parties agree to continue the Case Management Conference scheduled for January 18, 2018 for a later date. Judge Edward J. Davila ordered that the Conference be postponed until March 8, 2018.

The case is captioned TIBCO Software Inc., v. Gain Capital Group, LLC (5:17-cv-03313).

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