TIBCO Software, GAIN Capital clash over documents about software deployment

Maria Nikolova

The broker refuses to produce all documents related to deployment of TIBCO software by GAIN UK.

A lawsuit brought by TIBCO Software against online trading major GAIN Capital continues at the California Northern District Court, with the parties now clashing over evidence.

The underlying dispute concerns software deployment. Beginning in 2008, GAIN licensed TIBCO software on a worldwide “enterprise basis,” meaning GAIN was entitled to deploy an unlimited number of software units during a designated “enterprise term,” the latest of which ended in 2012. According to TIBCO, GAIN did not have a license to deploy any units outside of that enterprise term- e.g. past 2012.

In August 2016, KPMG audited GAIN and determined GAIN had deployed hundreds of software units outside of the enterprise term, that is, without a valid license. After the KPMG Audit, GAIN executed a new software license (the “2016 License”) for approximately $5 million, and then refused to pay. TIBCO sued for breach of contract, breach of the covenant of good faith and fair dealing, and copyright infringement.

In its essence, this lawsuit is about:

  • the software licenses executed in 2008 and 2010, and the “order form” signed in 2016, between TIBCO Software Inc. and GAIN Capital Group, LLC pursuant to which GAIN was permitted use certain TIBCO software—Enterprise Message Service (EMS), Hawk, and, allegedly, ActiveSpaces Enterprise Edition;
  • the purported “over-deployment” and “unauthorized use” of that software by GAIN Capital Group, LLC as identified by KPMG in what GAIN calls a flawed 2016 audit.

The latest focus of the arguments between the parties in the lawsuit is discovery.

TIBCO claims that it is entitled to communications about the subject matter of this lawsuit, including but not limited to the deployment of all TIBCO software by GAIN U.K.

GAIN, however, is said to refuse to produce any documents related to deployment of TIBCO software by GAIN UK on the grounds that “any such software would be subject to a wholly distinct contract which is not at issue in this action and therefore not relevant to any party’s claim or defense.”

GAIN stresses that GAIN Capital Limited U.K. (GAIN UK) is not a party to this action. And GAIN U.K.’s use of TIBCO software is governed by different licenses with TIBCO, which are not even alleged as part of the Complaint.

GAIN notes that it has agreed to produce, as TIBCO has requested, non-privileged communications related to the subject matter of this lawsuit—i.e. the 2008 and 2010 licenses and the 2016 “order form” between TIBCO and GAIN Capital Group, LLC for EMS, Hawk, and, allegedly, ActiveSpaces; and the purported “over-deployment” and “unauthorized use” of that software as identified by KPMG in its flawed 2016 audit.

GAIN also stresses that it has agreed to produce “relevant non-privileged responsive documents from relevant custodians relating to GAIN’s communications with GAIN U.K. regarding the TIBCO contracts and software at issue in this action, which pertains to TIBCO software used by GAIN in the United States.” In other words, GAIN agreed to produce exactly what TIBCO seeks in the document request, and its production will include documents from custodians in the U.K., including Steven McCarthy. Nevertheless, TIBCO alleges that GAIN’s response is deficient.

TIBCO argues that GAIN stops short of explaining why communications between GAIN and GAIN U.K. regarding the subject matter of this case, including deployment by GAIN’s U.K. office, are not relevant.

TIBCO wants the Court to compel GAIN to provide the full information requested.

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

Read this next

Retail FX

Weekly Roundup: John Oliver rips into MetaTrader, Binance to pay $10 billion

Welcome to this week’s roundup, where we delve into the latest developments in the Forex, Fintech, and cryptocurrency markets. Stay ahead of the curve with our comprehensive overview of the week’s most impactful events and trends across these dynamic sectors.

Retail FX

Lark Funding reopens to US traders, MyFundedFX picks cTrader

Canada-based prop trading firm Lark Funding announced it will once again welcome clients from the United States.

Institutional FX

Cboe FX volume falls to lowest level since summer

Cboe’s institutional spot FX platform, known as Cboe Spot, today announced its trading volume for the month ending February 2024, which took a step back after a strong rebound in December.

Retail FX

ThinkMarkets secures lucrative DFSA license in Dubai

Melbourne-based broker ThinkMarkets has secured a license from the Dubai Financial Services Authority (DFSA) after it has already incorporated its new subsidiary in the Dubai International Financial Center (DIFC).

Digital Assets

New Horizen Lays Out Its Vision Of A Modular, Proof Verification Layer For Web3 Networks

Horizen is forging a new path for the future of blockchain with its New Horizen initiative, which is building a modular Proof Verification layer that’s dedicated to verifying cryptographic proofs for any settlement layer, beginning with Ethereum. 

Digital Assets

Karma3 Labs Raises a $4.5M Seed Round Led By Galaxy and IDEO CoLab to Build OpenRank, a Decentralized Reputation Protocol

Using OpenRank, developers and web3 companies can build consumer apps where people can discover, use, fund, read, or buy something on-chain without worrying about getting spammed or scammed.

Digital Assets

Worldcoin down as Elon Musk sues OpenAI CEO Sam Altman

Worldcoin’s (WLD) token dropped following news of a lawsuit against related company OpenAI. The lawsuit was filed by Elon Musk and accused OpenAI and CEO Sam Altman of breach of contract.

Institutional FX

Exegy’s Liquidity Lamp adds intraday data to outperform S&P 500 by 31.8%

Exegy has incorporated intraday signals into its AI-powered iceberg order detection tool, Liquidity Lamp. By adding intraday data to a baseline mean reversion strategy, Exegy’s model outperformed the baseline by 10.5% and the S&P 500 (SPY) by 31.8%, respectively in the out-of-sample testing.

Industry News

Think Elon Musk backed your crypto exchange? ASIC’s latest reveal may shock you

In an absolutely shocking turn of events that nobody could have possibly seen coming, the Australian Securities and Investments Commission (ASIC) has bravely stepped forward to reveal that, yes, those videos of Elon Musk passionately endorsing a cryptocurrency exchange are as fake as a three-dollar bill.

<