Apple Inc. v. Psystar Corporation

Filing 238

STIPULATION REGARDING DISPOSITION OF CLAIMS by Apple Inc.. (Gilliland, James) (Filed on 12/1/2009)

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Apple Inc. v. Psystar Corporation Doc. 238 Case3:08-cv-03251-WHA Document238 Filed12/01/09 Page1 of 4 1 TOWNSEND AND TOWNSEND AND CREW LLP JAMES G. GILLILAND, JR. (State Bar NO.1 07988) 2 MEHRNAZ BOROUMAND SMITH (State Bar No. 197271) MEGAN M. CHUNG (State Bar No. 232044) 3 1. JEB B. OBLAK (State Bar No. 241384) Two Embarcadero Center, Eighth Floor 4 San Francisco, CA 94111 Telephone: (415) 576-0200 5 Facsimile: (415) 576-0300 Email: jggililandętownsend.com 6 mboroumandętownsend.com mmchungętownsend.com 7 jboblakętownsend.com 8 O'MELVENY & MYERS LLP GEORGE RILEY (State Bar No. 118304) 9 Two Embarcadero Center, 28th Floor San Francisco, CA 94111 10 Telephone: (415) 984-8700 Facsimile: (415) 984-8701 11 Email: grileYęomm.com 12 Attorneys for Plaintiff and Counterdefendant APPLE INC. 13 14 15 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION 16 i7 18 APPLE INC., 20 v. 22 23 19 Plaintiff, Defendant. Case No. 08-3251 WHA STIPULATION REGARDING DISPOSITION OF CLAIMS 21 PSYSTAR CORPORATION, a Florida corporation, AND RELATED COUNTERCLAIMS. . 24 25 Whereas on November 13,2009, the Court issued its Order Re Cross Motions for 26 Summary Judgment; 27 Whereas the Court wil hear and determine the request of plaintiff, Apple Inc. ("Apple"), 28 for a permanent injunction on December 14, 2009; and STIPULATION REGARDING DISPOSITION OF CLAIMS -1- townsend. CASE NO. 08-3251 WHA Dockets.Justia.com Case3:08-cv-03251-WHA Document238 Filed12/01/09 Page2 of 4 Whereas the parties desire to have a final judgment entered in this matter once a decision is 2 3 rendered by the Court regarding a permanent injunction; Now, therefore, it is hereby stipulated by and between Apple and Psystar Corporation ("Psystar"), as follows: 4 5 1. With respect to Apple's First Claim for Relief (Copyright Infringement) in the 6 7 8 Amended Complaint, judgment may be awarded in favor Qf Apple and against Psystar. 2. With respect to Apple's Second Claim for Relief (Contributory and Induced Copyright Infringement) in the Amended Complaint, judgment may be awarded in fŕvor of Apple and against Psystar. " .) . With respect to Apple's Third Claim for Relief (Violation of 9 10 11 the Digital Milennium Copyright Act) in the Amended Complaint, judgment may be awarded in ü:ivor of Apple and against Psystar. 4. Amended Complaint 12 13 With respect to Apple's Fourth Claim tor Relief (Breach of Contract) in the 14 15 judgment may be entered in favor of Apple and against Psystar. 5. With respect to Apple's Fifth Claim tor Relief (Inducing Breach of Contract) in the 16 17 Amended Complaint judgment may be entered in favor of Apple and against Psystar. 6. With respect to Apple's First through Fifth Claims for Relief in the Amended 18 Complaint, damages may be awarded in favor of Apple, and against Psystar, in the amount of $1,337,550. 7. With respect to Apple's First, Second and Third Claims for Relief 19 20 21 in the Amended Complaint, attorneys' fees and costs in addition to and separate from the damages set forth in 22 23 paragraph 6, above, may be awarded in favor of Apple, and against Psystar, in the amount of $1,337,500. 8. Apple agrees it will not seek to execute on the money judgments set forth in 24 25 paragraphs 6 and 7, supra, until any and all appeals in this matter are concluded or the time for fiing any such appeal has lapsed. 26 27 9. Pursuant to Fed. R. Civ. P. 41 (a), Apple wil dismiss without prejudice to its right 28 STIPULATION REGARDING DISPOSITION OF CLAIMS - 2- townsend. CASE NO. 08-3251 WHA Case3:08-cv-03251-WHA Document238 Filed12/01/09 Page3 of 4 1 to refie in the future the Sixth Claim tor Relief (Trademark Infringement), Seventh Claim for Relief (Trademark Infringement), Eighth Claim tor Relief (Trade Dress Infringement), Ninth Claim for Relief (Trademark Dilution), Tenth Claim for Relief (State Unfair Competition) and Eleventh Claim for Relief (Common Law Unfair Competition) in the Amended Complaint. Psystar agrees to toll the statute of limitations applicable to each of these claims for relief 2 3 4 5 until a 6 7 date thirty days after Apple is required to file an Answer in the matter Psysiar Coiporation v. Apple, Inc., whether that case proceeds in the Southern District of Florida, the Northern District of 8 California, or some other district. 10. Judgment may be entered in favor of Apple, and against Psystar, on Psystar's First Amended Counterclaim (Declaration of Un 9 10 11 enforceability for Copyright Misuse (EULA)) and on Un Psystar's Second Amended Counterclaim (Declaration of enforceability for Copyright Misuse 12 (DMCA)). 13 11. 14 15 With respect to all issues (including but not limited to liability) other than the stipulated damages and attorneys' fees and costs awards, the parties reserve their fights to appeal with respect to the final judgments entered on Apple's First through Fifth Claims for Relief in the 16 17 Amended Complaint as well as Psystar's First and Second Amended Counterclaims. II 18 II 19 II 20 II 21 II 22 II 23 II 24 II II II -) ') ~ 26 27 II 28 STIPULATION REGARDING DISPOSITION OF CLAIMS -3- townsend. CASE NO. 08-3251 WHA Case3:08-cv-03251-WHA Document238 Filed12/01/09 Page4 of 4 12. The parties agree that neither the fact of this Stipulation, nor the terms of it, shall be 2 argued by either of them either in favor of, or against, any contention that venue in the Southern 3 District of Florida is appropriate, or is not appropriate, in the matter Psystar COlporation v. Apple Inc., S.D. Fla. Case No. 09-22535 CIV -Hoeveler/Gardner. 4 5 6 IT is SO AGREED. 7 8 DATED: November 30, 2009 9 10 1i TOWNSEND AND TOWNSEND AND CREW LLP By~4= APPLE INC. 12 13 Attorneys for Plaintiff and Counterdefendant DATED: November 30, 2009 14 15 CAMARA & SIBLEY 16 B~ .. K.A.D. CAMARA 17 18 62325485 vI Attorneys for Defendant and Counterclaimant PSYSTAR CORPORATION 19 20 21 22 23 24 25 26 27 28 STIPULA nON REGARD.NG D.SPOSITION OF CLAIMS - 4- townsend. CASE NO. 08.3251 WHA

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