GAIN Capital, TIBCO Software reach conditional settlement in software overdeployment case

Maria Nikolova

The parties are said to be in the process of memorializing their agreement.

The civil lawsuit brought by TIBCO Software against online trading major GAIN Capital LLC may be close to its end, as indicated by a document submitted at the California Northern District Court earlier today. A notice filed by TIBCO Software states that the plaintiff (TIBCO) and the defendant (GAIN Capital) have reached a conditional settlement.

The companies are in the process of memorializing their agreement and expect to file their stipulation of dismissal of the case within 45 days. The agreement is set to dismiss TIBCO’s claims against GAIN with prejudice and dismissing GAIN’s counterclaims against TIBCO with prejudice.

In light of the conditional settlement, the plaintiff and the defendant stipulate to stay all upcoming deadlines, hearings, and discovery.

In this lawsuit, TIBCO alleges that it licensed certain software to GAIN during a limited term, but that GAIN deployed the TIBCO software outside that term in violation of its license agreements with TIBCO. TIBCO sues GAIN for breach of contract, breach of the covenant of good faith and fair dealing, and copyright infringement. TIBCO’s allegations of over-deployment and unauthorized use of the software by GAIN are based in large part on an audit conducted in 2016 at TIBCO’s request by KPMG.

GAIN denies TIBCO’s allegations, and counterclaims against TIBCO for fraud in the inducement, negligent misrepresentation, unfair competition, rescission based on unilateral mistake, and rescission based on mutual mistake. According to GAIN, KPMG did not perform the audit correctly, and TIBCO intentionally gave KPMG incorrect instructions on how to conduct the audit so that KPMG was certain to conclude that GAIN had exceeded the permissible scope of its licenses for TIBCO software.

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

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