Electro Scientific Industries, Inc. et al v. SD Acquisition, Inc.

Filing 25

STIPULATED INJUNCTION AND ORDER OF DISMISSAL OF CLAIMS - Plaintiffs' Complaint is hereby DISMISSED without costs or legal fees to any party, but with the Court retaining jurisdiction for purposes of enforcing this Stipulated Order. This Order shall terminate and expire at 11:59 p.m. on November 15, 2012, without further order of the Court or action of any party. Ordered by Judge Joseph F. Bataillon. (AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
Electro Scientific Industries, Inc., an Oregon
corporation, and Electro Scientific Industries
Europe Limited, an English corporation,
Plaintiffs,
v.
SD Acquisition, Inc., a Nebraska corporation,
d/b/a CETAC and d/b/a CETAC
Technologies,
Defendant.

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Civil No. 8:11-cv-00382

STIPULATED INJUNCTION AND
ORDER OF DISMISSAL OF CLAIMS

The parties to this litigation, by and through their undersigned counsel of record having
requested entry of this Order, and the Court being fully advised in the premises, now, therefore,
and based upon all the files, records, and proceedings herein,
IT IS HEREBY ORDERED that:
1.

Effective as of 4:30 p.m. Central Standard Time on November 15, 2011, and until 11:59
p.m. on February 29, 2012, SD Acquisition, Inc., a Nebraska corporation, d/b/a CETAC
and d/b/a CETAC Technologies (“CETAC”) may employ Dr. Damon Green, of 5
Mussons Close, Corby Glen, Grantham, Lincolnshire, NG33 4NY, England (“Dr.
Green”), and Damon Green may be employed by CETAC, only in CETAC’s
nebulizers/liquids line and/or in CETAC’s mercury products line.

2.

Effective as of 4:30 p.m. Central Standard Time on November 15, 2011, and until 11:59
p.m. on February 29, 2012, CETAC and its officers, employees, and agents shall ensure
that Dr. Green shall not work, perform services for, be associated with, or otherwise

71016918.5 0026860-00128

provide assistance with or to CETAC Research and Development, Technical Support or
product and services relating to Laser Ablation.
3.

Effective as of 4:30 p.m. Central Standard Time on November 15, 2011, and until
January 1, 2012, CETAC shall furthermore not allow Dr. Green to have contact of any
nature or manner with the 22 companies set forth on a list provided via e-mail to
CETAC’s counsel Mary L. Hewitt, Esq. and Erin R. Robak, Esq., by Plaintiff’s counsel
Marc A. Al, Esq., on Tuesday, November 15, 2011, at 1:52 p.m. Central Standard Time
(the “List”). This Injunction bars both direct and indirect contact by or through Dr.
Green with the companies set forth on the List, including contact through their
employees, agents, distributors, representatives, joint venturers, partners, parents,
affiliates, subsidiaries, collaborators, or otherwise.

4.

The List has been provided to Dr. Green by Ms. Hewitt, as agreed with Plaintiffs, but the
List shall not (in written, oral, verbal or non-verbal form or otherwise) be reviewed,
obtained, copied, or stored by CETAC or any of its other officers, employees, agents,
distributors, representatives, joint venturers, partners, parents, affiliates, subsidiaries, or
collaborators.

5.

CETAC and its officer, employees, and agents have not and shall not review Plaintiffs’
trade secrets, seek or accept disclosure of Plaintiffs’ trade secrets in any form or fashion
from Dr. Green, or allow the use of Plaintiffs’ trade secrets in or for CETAC’s business
operations, including, but not limited to, CETAC’s research and development, CETAC’s
sales, and CETAC’s services, and the ongoing protection rights of the Plaintiffs to their
trade secrets shall expressly survive the dismissal of Plaintiffs’ Complaint and the
termination of this Order.

71016918.5 0026860-00128

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6.

CETAC denies the allegations in the Complaint, expressly denies that there has been any
disclosure of ESI trade secrets by Dr. Green to CETAC and expressly denies that its
employment of Dr. Green violates any non-compete agreement of ESI. In light of the
stipulated nature of this Order and its entry as part of settlement of this litigation, it is
expressly acknowledged by the parties and this Court that the entry of this Order shall not
constitute a concession or admission of any fact or allegation set forth in the Complaint in
this action or in Plaintiffs’ Motion for Temporary Restraining Order and Permanent
Injunction, nor constitute an admission of any liability or wrongdoing, and this Order
shall not act to toll any period of limitations nor toll any non-compete period as such
periods relate to Dr. Green’s employment with CETAC.

7.

Plaintiffs shall pay one-half (1/2) the CETAC salary earned by Dr. Green from November
15, 2011, through February 29, 2012, as more fully set forth in a Settlement Agreement
signed contemporaneously with this Stipulation.

8.

It is understood that the Court shall be entitled to exercise jurisdiction over all officers,
employees, agents, and representatives of both Plaintiffs and CETAC in the event of any
alleged violation of this Order.

9.

CETAC’s counsel shall forthwith provide a copy of this Order to CETAC’s officers, who
shall forthwith provide a copy to all relevant employees, agents, distributors,
representatives,

joint

venturers,

partners,

parents,

affiliates,

subsidiaries,

and

collaborators, including, but not limited to, Dr. Green.
10.

Plaintiffs’ Complaint is hereby DISMISSED without costs or legal fees to any party, but
with the Court retaining jurisdiction for purposes of enforcing this Stipulated Order. This

71016918.5 0026860-00128

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Order shall terminate and expire at 11:59 p.m. on November 15, 2012, without further
order of the Court or action of any party.

LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED this 8th day of December, 2011
BY THE COURT:

S/ JOSEPH F. BATAILLON
CHIEF UNITED STATES DISTRICT JUDGE

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AGREED AS TO FORM AND CONTENT:
STOEL RIVES LLP
s/ Marc A. Al
Marc A. Al (MN Bar ID 247923)
33 South Sixth Street
Suite 4200
Minneapolis, MN 55402
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
and
STOEL RIVES LLP
Brian C. Park (WA Bar No. 25584)
James Shore (WA Bar No. 28095)
600 University Street
Suite 3600
Seattle, WA 98101-4109
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]

s/ Mary L. Hewitt
Robert L. Lepp, #15711
Mary L. Hewitt, #19826
Erin R. Robak, #23407
McGILL, GOTSDINER, WORKMAN
& LEPP, P.C., L.L.O.
11404 West Dodge Road, Suite 500
Omaha, NE 68154
Telephone: [phone]
Facsimile: 402-492-9222
Attorneys for SD Acquisition, Inc., a Nebraska
corporation, d/b/a CETAC and d/b/a CETAC
Technologies

and
SPENCER FANE BRITT & BROWNE
LLP
Joshua C. Dickinson, NE Bar Number 23700
9420 Underwood Avenue, Suite 200
Omaha, NE 68114
Telephone: [phone]
Fax: [phone]
[e-mail]
Attorneys for Plaintiffs
Electro Scientific Industries, Inc., and
Electro Scientific Industries Europe Limited

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