Apple Inc. v. Psystar Corporation

Filing 239

STIPULATION AND ORDER REGARDING DISPOSITION OF CLAIMS. Signed by Judge Alsup on December 1, 2009. (whalc1, COURT STAFF) (Filed on 12/1/2009)

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: [phone]
5 Facsimile: [phone]

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: [phone]

Facsimile: [phone]
11 Email: grileYęomm.com

12 Attorneys for Plaintiff and Counterdefendant APPLE INC.
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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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18 APPLE INC.,

20 v.
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19 Plaintiff,
Defendant.

Case No. 08-3251 WHA

STIPULATION REGARDING DISPOSITION OF CLAIMS AND ORDER

21 PSYSTAR CORPORATION, a Florida corporation,

AND RELATED COUNTERCLAIMS.

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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

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STIPULATION REGARDING DISPOSITION OF CLAIMS AND ORDER

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Whereas the parties desire to have a final judgment entered in this matter once a decision is
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rendered by the Court regarding a permanent injunction;

Now, therefore, it is hereby stipulated by and between Apple and Psystar Corporation
("Psystar"), as follows:

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1.

With respect to Apple's First Claim for Relief (Copyright Infringement) in the

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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

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the Digital

Milennium Copyright Act) in the Amended Complaint, judgment may be awarded in ü:ivor of
Apple and against Psystar.
4.
Amended Complaint

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With respect to Apple's Fourth Claim tor Relief (Breach of Contract) in the

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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

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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

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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

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in the Amended

Complaint, attorneys' fees and costs in addition to and separate from the damages set forth in

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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

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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.

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9. Pursuant to Fed. R. Civ. P. 41 (a), Apple wil dismiss without prejudice to its right

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STIPULATION REGARDING DISPOSITION OF CLAIMS AND ORDER

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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

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until a

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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

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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

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enforceability for Copyright Misuse (EULA)) and on
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Psystar's Second Amended Counterclaim (Declaration of

enforceability for Copyright Misuse

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(DMCA)).
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11.
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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

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Amended Complaint as well as Psystar's First and Second Amended Counterclaims.
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II

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12. The parties agree that neither the fact of this Stipulation, nor the terms of it, shall be
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argued by either of

them either in favor of, or against, any contention that venue in the Southern

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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.

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IT is SO AGREED.

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DATED: November 30, 2009
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TOWNSEND AND TOWNSEND AND CREW LLP

By~4=
APPLE INC.

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Attorneys for Plaintiff and Counterdefendant

DATED: November 30, 2009
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CAMARA & SIBLEY

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B~

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K.A.D. CAMARA

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62325485 vI

Attorneys for Defendant and Counterclaimant PSYSTAR CORPORATION

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The stipulation is hereby APPROVED. The sole issue remaining to be decided is Apple, Inc.'s request for a permanent injunction.
UNIT ED

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ISTRIC ES D TC AT T

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IS T RIC T

townsend. CASE NO. 08.3251 WHA

STIPULA nON REGARD.NG D.SPOSITION OF CLAIMS AND ORDER

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Dated: December 1, 2009.

______________________________ WILLIAM ALSUP ER C N UNITED STATES DISTRICT JUDGE OF D
RT
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FO

Judge W

illiam A

lsup

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R NIA

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IT IS SO ORDERED.

OO IT IS S

D RDERE

RT U O

NO