Adobe Systems Incorporated v. Last Chance Buys, Inc. et al
Filing
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ORDER by Judge Haywood S. Gilliam, Jr. Granting 47 Stipulated AMENDED PERMANENT INJUNCTION AGAINST DEFENDANTS LAST CHANCE BUYS, INC., AND OLUWATOSIN AJIBOYE; AND DISMISSAL OF ENTIRE ACTION WITH PREJUDICE. (ndrS, COURT STAFF) (Filed on 7/8/2016)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
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ADOBE SYSTEMS INCORPORATED, a
Delaware Corporation,
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AMENDED PERMANENT
INJUNCTION AGAINST
DEFENDANTS LAST CHANCE BUYS,
INC., AND OLUWATOSIN AJIBOYE;
AND DISMISSAL OF ENTIRE ACTION
WITH PREJUDICE
Plaintiff,
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Case No.: 3:15-cv-05038-HSG
v.
LAST CHANCE BUYS, INC., a Florida
Corporation; OLUWATOSIN AJIBOYE a/k/a
ZOE AJIBOYE a/k/a ZOE AERIN, an
Individual; and DOES 1-10, Inclusive,
Honorable Haywood S. Gilliam, Jr.
Defendants.
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The Court, pursuant to the Stipulation for Entry of Permanent Injunction & Dismissal
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(“Stipulation”) between Plaintiff ADOBE SYSTEMS INCORPORATED (“Plaintiff”), on the
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one hand, and Defendants LAST CHANCE BUYS, INC., and OLUWATOSIN AJIBOYE a/k/a
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ZOE AJIBOYE a/k/a ZOE AERIN (“Defendants”), on the other hand, hereby ORDERS,
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ADJUDICATES and DECREES that a permanent injunction shall be and hereby is entered
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against Defendants as follows:
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-1[PROPOSED] PERMANENT INJUNCTION & DISMISSAL – Case No.: 3:15-cv-05038-HSG
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1.
JURISDICTION.
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a.
This case involves Plaintiff’s claims of federal Trademark Infringement
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arising under 15 United States Code (“U.S.C.”) §1114, False Designation of Origin under 15
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U.S.C. §1125(a), Trademark Dilution under 15 U.S.C. §1125(c), federal Copyright Infringement
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arising under 17 U.S.C. §501(a), Unfair Business Practices pursuant to California Business &
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Professions Code §17200, and Breach of Contract.
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b.
The Court has personal and supplemental jurisdiction over Plaintiff’s
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claims arising under California statutory and common law pursuant to 28 U.S.C. §1367 because
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they are so related to the federal claims as to form part of the same case or controversy.
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2.
FINDINGS OF FACT. Plaintiff and Defendants have stipulated to the following
facts, which are hereby adopted by the Court:
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a.
principal place of business in San Jose, California.
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Plaintiff Adobe Systems Incorporated is a Delaware Corporation with its
b.
Defendant Last Chance buys, Inc., was a company incorporated in the
State of Florida with its principal place of business in Los Angeles, California.
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c.
Defendant Oluwatosin Ajiboye a/k/a Zoe Ajiboye a/k/a Zoe Aerin is a
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resident in Los Angeles, California, and was the sole shareholder and controlling officer of
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Defendant Last Chance Buys, Inc.
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d.
Plaintiff is the source of the ADOBE® line of products and services,
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including but not limited to ADOBE®-branded ACROBAT® and CREATIVE SUITE®
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products and services, and uses and owns various trademarks, copyrights and other intellectual
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property on and in connection with such products and services, including, among others, its
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ADOBE® word and design marks, its ACROBAT® word and design marks, its CREATIVE
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SUITE® word and design marks, its copyrights in and related to its software, websites, text and
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other works of authorship, along with various trademark and copyright applications and
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registrations therefor in the United States and abroad (collectively “Plaintiff’s Trademarks and
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Copyrights”).
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e.
Consumers and/or purchasers in the United States and worldwide have
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come to recognize Plaintiff’s Trademarks and Copyrights, including but not limited to the
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ADBOE®, ACROBAT®, and CREATIVE SUITE® marks and works, and Plaintiff has
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acquired a valuable reputation and goodwill among the public as a result of such association.
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Indeed, the ADOBE®, ACROBAT® and CREATIVE SUITE® marks are famous in the United
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States and worldwide.
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f.
Plaintiff has contended that Defendants have distributed and sold
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unauthorized ADOBE® software, and related products, bearing and/or utilizing one or more of
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Plaintiff’s Trademarks and Copyrights.
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g.
Defendants acknowledge and do not contest Plaintiff’s exclusive rights in
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and to Plaintiff’s Trademarks and Copyrights, including but not limited to the ADOBE®,
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ACROBAT® and CREATIVE SUITE® marks and works, and Plaintiff’s exclusive right to
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distribute products utilizing Plaintiff’s Trademarks and Copyrights, including the ADOBE®,
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ACROBAT® and CREATIVE SUITE® marks and works.
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h.
Plaintiff has no adequate remedy at law for the acts of Defendants
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complained of herein, or for the acts of any third parties who have acted in concert with and at
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the direction of Defendants, as injury to Plaintiff’s reputation and goodwill cannot be quantified
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and such injury cannot be compensated by monetary amounts.
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3.
LEGAL AUTHORITY.
a.
Pursuant to the Lanham Act, the Court “shall have power to grant
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injunctions according to the rules of equity and upon such terms as the court may deem
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reasonable, to prevent the violation of any right of the registrant of a mark registered in the
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Patent and Trademark Office or to prevent a violation under subsection (a), (c), or (d) of section
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1125 of this title.” 15 U.S.C. §1116(a). Similarly, in a copyright action, the Court has the
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authority to “grant temporary and final injunctions on such terms as it may deem reasonable to
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prevent or restrain infringement of a copyright.” 17 U.S.C. §502.
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b.
Plaintiff and Defendants have stipulated to the above findings of fact as
well as to entry of a permanent injunction against Defendants. Stipulations between parties are
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generally adopted by courts and should not be lightly set aside. Dexter v. Kirschner, 984 F.2d
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979, 984 (9th Cir. 1992), citing In re Lenox, 902 F.2d 737, 739 (9th Cir. 1990). In particular,
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“[w]hen parties have entered into stipulations as to material facts, those facts will be deemed to
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have been conclusively established.” U.S. v. Houston, 547 F.2d 104, 107 (9th Cir. 1976), citing
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Schlemmer v. Provident Life & Accident Ins. Co., 349 F.2d 682, 684 (9th Cir. 1965). Stipulations
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entering injunctions are typically upheld See Levi Strauss & Co. v. California Denim Resources
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Inc., 2001 WL 348973 (N.D. Cal. Mar. 16, 2001) (entering permanent injunction in connection
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with settlement based on stipulated facts); Bowles v. Dodge, 141 F.2d 969, 970 (9th Cir. 1944)
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(injunction upheld where law provided for entry of a permanent injunction and parties stipulated
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to the facts and form of the injunction); see also, e.g., Adobe Systems Incorporated v. Shamcy
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Alghazzy, CAND Case No. 5:15-cv-01443-BLF, Docket No. 60 (permanent injunction entered
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pursuant to settlement and stipulation); Adobe Systems Incorporated v. Jill Temple, CACD Case
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No. 2:14-cv-06329-CBM-JPR, Docket No. 58 (same); Adobe Systems Incorporated v. Los
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Angeles Computer Department LLC, CACD Case No. 2:15-cv-05549-PA-RAO, Docket No. 50
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(same); Adobe Systems Incorporated v. Tran, CAND Case No. 3:15-cv-04252-SI, Docket No. 36
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(same); Adobe Systems Incorporated v. Macpro LA Inc., CAND Case No. 3:15-cv-03541-CRB
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(same); Adobe Systems Incorporated v. Buy Mac Now LLC, CAND Case No. 3:15-cv-02367-
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MMC (same).
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4.
PERMANENT INJUNCTION. Defendants and any person or entity acting in
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concert with, or at their direction, including any and all agents, servants, employees, partners,
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assignees, distributors, suppliers, resellers and any others over which they may exercise control,
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are hereby restrained and enjoined, pursuant to 15 United States Code (“U.S.C.”) §1116(a) and
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17 U.S.C. §502, from engaging in, directly or indirectly, or authorizing or assisting any third
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party to engage in, any of the following activities in the United States and throughout the world:
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a.
importing, exporting, marketing, purchasing, downloading, selling,
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offering for sale, distributing or dealing in any product or service that uses, or otherwise making
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any use of, any of Plaintiff’s ADOBE® and/or ACROBAT® trademarks and copyrights
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(“Plaintiff’s Trademarks and Copyrights”), and/or any intellectual property that is confusingly or
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substantially similar to, or that constitutes a colorable imitation of, any of Plaintiff’s Trademarks
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and Copyrights, whether such use is as, on, in or in connection with any trademark, service mark,
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trade name, logo, design, Internet use, website, domain name, metatags, advertising, promotions,
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solicitations, commercial exploitation, television, web-based or any other program, or any
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product or service, or otherwise;
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b.
copying or downloading, other than for personal use of a validly licensed
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and registered software, of any software containing Plaintiff’s Trademarks and Copyrights,
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including but not limited to ADOBE® and ACROBAT®
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intellectual property that is confusingly or substantially similar to, or that constitutes a colorable
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marks and works, and/or any
imitation of, any of Plaintiff’s Trademarks and Copyrights;
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importing, exporting, marketing, purchasing, downloading, selling,
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offering for sale, distributing or dealing in any product or service that uses, or otherwise making
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any use of, any of Plaintiff ADOBE®’s original equipment manufacture (“OEM”) and education
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or academic version products;
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d.
importing, exporting, marketing, purchasing, downloading, selling,
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offering for sale, distributing or dealing in any product or service that uses, or otherwise making
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any use of any of Plaintiff ADOBE®’s serial activation keys or numbers;
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e.
importing, exporting, marketing, purchasing, downloading, selling,
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offering for sale, distributing or dealing in any product or service that uses, or otherwise making
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any use of any of Plaintiff ADOBE®’s products that are intended to be sold only outside of the
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United States of America;
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f.
performing or allowing others employed by or representing them, or under
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their control, to perform any act or thing which is likely to injure Plaintiff, any of Plaintiff’s
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Trademarks and Copyrights, including but not limited to ADOBE® and ACROBAT® marks and
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works, and/or Plaintiff’s business reputation or goodwill, including making disparaging,
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negative, or critical comments regarding Plaintiff or its products;
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-5[PROPOSED] PERMANENT INJUNCTION & DISMISSAL – Case No.: 3:15-cv-05038-HSG
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g.
engaging in any acts of federal and/or state trademark infringement, false
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designation of origin, unfair competition, dilution, federal copyright infringement, or other act
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which would tend damage or injure Plaintiff; and/or
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h.
using any Internet domain name or website that includes any of Plaintiff’s
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Trademarks and Copyrights, including but not limited to the ADOBE® and ACROBAT® marks
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and works.
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5.
Defendants are ordered to deliver immediately for destruction all unauthorized
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products, including counterfeit ADOBE® software products and related products, labels, signs,
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prints, packages, wrappers, receptacles and advertisements relating thereto in her possession or
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under her control bearing any of Plaintiff’s intellectual property or any simulation, reproduction,
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counterfeit, copy or colorable imitations thereof, to the extent that any of these items are in
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Defendants’ possession.
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6.
This Permanent Injunction shall be deemed to have been served upon Defendants
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at the time of its execution by the Court, and the case shall be dismissed in its entirety upon entry
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of this Permanent Injunction.
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7.
The Court finds there is no just reason for delay in entering this Permanent
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Injunction, and, pursuant to Rule 54(a) of the Federal Rules of Civil Procedure, the Court directs
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immediate entry of this Permanent Injunction against Defendants.
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8.
Defendants will be making agreed upon payments to Plaintiff, as more
particularly described in a separate Confidential Settlement Agreement.
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NO APPEALS AND CONTINUING JURISDICTION. No appeals shall be
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taken from this Permanent Injunction, and the parties waive all rights to appeal. This Court
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expressly retains jurisdiction over this matter to enforce any violation of the terms of the
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Confidential Settlement Agreement and this Permanent Injunction.
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10.
NO FEES AND COSTS. Each party shall bear their own attorneys’ fees and
costs incurred in this matter.
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DISMISSAL. The Court hereby dismisses this action in its entirety upon entry of
this Permanent Injunction against Defendants.
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IT
IS SO ORDERED, ADJUDICATED and DECREED this 8th day of
July, 2016.
________________________________________
HONORABLE HAYWOOD S. GILLIAM, JR.
United States District Judge
Northern District of California
San Francisco Courthouse
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-7[PROPOSED] PERMANENT INJUNCTION & DISMISSAL – Case No.: 3:15-cv-05038-HSG
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