Arbor Networks, Inc. v. Arroyo Networks LLC et al

Filing 24

Judge Richard G. Stearns: PERMANENT INJUNCTION ORDER & ELECTRONIC ORDER entered granting 23 Motion for Permanent Injunction pursuant to the parties' joint motion. (RGS, int2) Modified text on 5/9/2016 (Seelye, Terri). (Additional attachment(s) added on 5/9/2016: # 1 Exhibit A, # 2 Exhibit B) (Seelye, Terri).

Case 1:16-cv-10500-RGS Document 23-1 Filed 05/06/16 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
ARBOR NETWORKS, INC.,
Plaintiff,
v.

Civil Action No. 16-cv-10500-RGS

ARROYO NETWORKS, LLC,
MATTHEW ELLISON, and MARIO LORIA,
Defendants.
PERMANENT INJUNCTION ORDER
This case is before the Court upon the Joint Motion for Entry of Permanent Injunction
Order (the “Motion”) of Plaintiff Arbor Networks, Inc. (“Arbor”) and Defendants Arroyo
Networks, LLC (“Arroyo”), Matthew Ellison (“Ellison”), and Mario Loria (“Loria”). The Court
has reviewed the Motion and the record in this case, and is otherwise advised on the premises. In
light of the foregoing, the Court will grant the Motion and adopt the terms of the parties’
Proposed Permanent Injunction Order. Accordingly, it is hereby:
I.

ORDERED AND ADJUDGED that:

Defendants shall not, without the prior written permission of Plaintiff Arbor Networks,
Inc. (“Arbor”), directly or indirectly, for any purpose, utilize or disclose to anyone outside Arbor
any Confidential Information (as defined herein), or any information received by Arbor in
confidence from or about third parties, as long as such matters remain trade secrets or
confidential.
For purpose of this Order, “Confidential Information” shall mean the trade secrets and
other confidential information of Arbor which is not generally known to the public, and which

Case 1:16-cv-10500-RGS Document 23-1 Filed 05/06/16 Page 2 of 5

(a) is or was generated, collected by, or utilized in the operations of Arbor and relates to the
actual or anticipated business, research, or development of Arbor or Arbor’s actual or
prospective vendors or customers; or (b) was suggested by or resulted from any task assigned to
Ellison or Loria by Arbor or work performed by Ellison or Loria for or on behalf of Arbor or any
customer of Arbor. Confidential Information shall not be considered generally known to the
public if revealed improperly to the public without Arbor’s express written consent and/or in
violation of any obligation of confidentiality to Arbor. Confidential Information shall include,
without limitation, customer and supplier identification and contacts, information about
customers, Voice of the Customer data, reports or analyses, business relationships, contract
terms, pricing, price lists, pricing formulas, margins, business plans, projections, prospects,
opportunities or strategies, acquisitions, divestitures or mergers, marketing plans, advertising or
promotions, financial data (including, but not limited to, the revenues, costs, or profits associated
with any products or services of Arbor), business and customer strategy, techniques,
formulations, technical information, technical know-how, formulae, production information,
inventions, invention disclosures, discoveries, drawings, invention methods, systems,
information regarding all or any portion of the Danaher Business System, lease structure,
processes, designs, plans, architecture, prototypes, models, software, source code, object code,
solutions, personal or performance information about employees, Talent Review and
Organizational Plans, research and development, copyrights, patent applications, and plan or
proposals related to any of the foregoing. In no event shall Confidential Information include any
development conceived of by Ellison or Loria during their employment by Arbor for which no
equipment, supplies, facilities or trade secret or Confidential Information of Arbor was used, and
which was developed entirely on Ellison or Loria’s own time unless (a) the development relates:
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Case 1:16-cv-10500-RGS Document 23-1 Filed 05/06/16 Page 3 of 5

(i) to the actual or anticipated business of Arbor; or (ii) to Arbor’s actual or demonstrably
anticipated research or development or (b) the development resulted from any work performed
by Ellison or Loria for Arbor. Such developments do not themselves constitute Confidential
Information. In addition, Confidential Information shall not include any ideas conceived of by
Ellison or Loria after the termination of their employment with Arbor related to potential new
products in the field of systems testing and/or traffic generation/simulation which are based on
publicly available information or available products in the marketplace, to the extent such ideas
are not based on and do not incorporate Confidential Information.
II.

FURTHER ORDERED AND ADJUDGED that:

Defendants shall not develop, produce, market, sell, or release any product designed for
the purpose of network testing or any product designed for the purpose of network traffic
generation that incorporates Arbor’s Confidential Information, or that is based in any way on, or
that incorporates code from, the Arbor network testing and traffic generation program known as
Streamer (“Streamer”), including, without limitation,
(i) any product designed for the purpose of network testing or any product designed for
the purpose of network traffic generation wherein a central user-interface controls an array of
network traffic generation units,
(ii) any product that increases the speed and efficiency of network testing by generating
only client-side network traffic, or
(iii) any product that incorporates or benefits from the software optimizations developed
during the coding of Streamer or any other product designed for the purpose of network testing
or any product designed for the purpose of network traffic generation coded by Defendants
during their employment with Arbor, meaning specifically optimizations concerning packet
assembly that allow a system running Streamer to focus only on the variations between packets
and optimizations concerning the implementation of a hardware abstraction layer into Streamer,
to the extent that any of the above incorporate any Confidential Information.

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III.

FURTHER ORDERED AND ADJUDGED that:

Defendants shall not develop, produce, market, sell, or release any product designed for
the purpose of network testing or any product designed for the purpose of network traffic
generation for a period of twelve (12) months from the date of this order. To the extent that
Defendants choose to develop, produce, market, sell, or release any product designed for the
purpose of network testing or any product designed for the purpose of network traffic generation
after that time, they shall, upon Arbor’s reasonable request, allow an independent third-party
analyst, as selected by agreement of the parties, to perform a confidential inspection of such
product and its code. For any material provided to the analyst for the inspection as evidence of
Arbor’s Confidential Information, Arbor shall identify, redact, or exclude those portions of the
material that Arbor knows to be publicly available (and thus not Confidential Information) and
those portions of the material that might constitute Confidential Information but arose after the
termination of Ellison’s and Loria’s employment with Arbor. The analyst shall not share any
information about Defendants’ product with Arbor other than an opinion as to whether
Defendants’ product violates the terms of Section II above. The opinion shall identify the basis
of such opinion sufficient to determine the accuracy of that opinion. Arbor and Defendants shall
be informed of the analyst’s opinion at the same time. If Defendants disagree with the analyst’s
opinion, and if the disagreement cannot be settled through good faith business negotiation, Arbor
and Defendants will first to try in good faith to settle the dispute by mediation administered by
the American Arbitration Association under its Commercial Mediation Procedures before
resorting to arbitration, litigation, or some other dispute resolution procedure. Arbor shall bear
the full cost of any inspection and shall not be entitled to request an inspection more often than

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