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MONSTER CONTENT, LLC v. HOMES.COM

United States District Court, Northern District of California


April 3, 2003

MONSTER CONTENT, LLC, A TENNESSEE LIMITED LIABILITY COMPANY, PLAINTIFFS,
v.
HOMES.COM, INC., A DELAWARE CORPORATION; ANDREW S FISHMAN, AN INDIVIDUAL; BRENT E. DAVIS, AN INDIVIDUAL; AND JOHN LORANCE, AN INDIVIDUAL DEFENDANTS. JOHN LORANCE PLAINTIFF (CROSS COMPLAINANT), V. HOMES.COM, INC. DEFENDANT (CROSS DEFENDANT)

The opinion of the court was delivered by: Samuel Conti, Senior United States District Judge.

FINAL INJUNCTION AND DISMISSAL ORDER AS TO THE COMPLAINT FILED BY MONSTER CONTENT, LLC
This case is before the Court on consideration of the Stipulation Regarding Entry of Final Injunction and Dismissal Order as to the Complaint Filed by Monster Content, LLC ("Stipulation"), filed in this cause, in which the parties have stipulated to the entry of this Order adopting and incorporating the stipulations and agreements contained therein as the Order of this Court. Upon consideration of the Stipulation, the agreement of counsel as evidenced by their signatures thereon, and the record as a whole, the Court hereby adopts the terms of the Stipulation, as set forth in paragraphs 1 through 16 of the Stipulation, inclusive, as the final Order in this action as to the Complaint filed by Monster Content, LLC. Upon the entry of this Order, each of the terms set forth in the Stipulation is hereby adopted as the Order of this Court.

Pursuant to Stipulation, and good cause shown, IT IS SO ORDERED.

STIPULATION REGARDING ENTRY OF FINAL INJUNCTION AND DISMISSAL ORDER AS TO THE COMPLAINT FILED BY MONSTER CONTENT, LLC
The parties to this action, by and through their respective counsel, hereby' enter into and submit for entry this Stipulation Regarding Entry of Final Injunction and Dismissal Order (the "Order"), in the form attached as Exhibit A hereto, incorporating and adopting as the Order of the Court the following terms.

RECITALS

1. On January 10, 2002, Plaintiff MONSTER CONTENT, LLC ("Plaintiff") filed its Complaint herein against Defendants HOMES.COM. INC. ("Homes"), ANDREW S. FISHMAN ("Fishman"). BRENT E. DAVIS ("Davis") and JOHN LORANCE ("Lorance") (collectively "Defendants").

2. In this action (the "Monster Action"), Plaintiff asserts causes of action against Defendants for alleged copyright infringement, misappropriation and misuse of trade secrets and confidential information, conversion, trademark infringement, unfair competition, violation of California Business & Professions Code Section 17200, inducement to breach and tortuous interference with contractual relations, and civil conspiracy (the "Monster Claims") with respect to what Monster Claims is a computer program called AgentLinkTM, which is the subject of a Certificate of Registration No. TXU 1-059-591 issued by the United States Register of Copyrights dated December 16, 2002. a copy of which is Exhibit C to the complaint in the Monster Action (collectively the "AgentLinkTM Program").

3. On or about February 3, 2003, Lorance filed his cross-claim for equitable and statutory indemnity, contribution and declaratory relief in the Monster Action as against Homes (the "Cross-Claim").

4. Homes developed, manufactured, marketed, licensed and/or distributed a technical product called AgentExpert (the "AgentExpert Product").

5. Concurrent with the execution of this Stipulation, and consistent with its terms and conditions. Plaintiff and Homes have entered into a Settlement and Release Agreement (the "Homes Release Agreement").

INJUNCTION

6. From and after entry of this order, Defendants and their officers, directors, agents, servants, employees, representatives. attorneys, related companies, successors, assigns, and all others in active concert or participation with them are hereby immediately and permanently enjoined and restrained from:

(a) reproducing. copying. duplicating, disseminating. publishing, transmitting, distributing, displaying. storing. uploading, downloading, offering or making available the AgentLinkTM Program:

(b) making, disseminating, or causing to be made or disseminated in any publication or advertising device, by' public proclamation or in any other manner whatsoever, any statement concerning the Plaintiff's AgentLinkTM Program that is untrue or misleading. and that is known or by the exercise of reasonable care should be known to be untrue or misleading, including, among other things. representing that the Defendants are the lawful owners of the AgentLinkTM Program, or representing that any program offered by Defendants is a new or authorized version of or otherwise affiliated with the AgentLinkTM Program; and

(c) developing, manufacturing, marketing, licensing or distributing any product or computer program that is derived from, uses, incorporates or relies upon Plaintiffs AgentLinkTM Program, with the stipulation that this provision shall not be read to prohibit the continued development. manufacture, marketing, licensing or distribution of the homes' AgentExpert Product. so long as no future modifications, additions or enhancements of said product or derivatives thereof use or rely upon files, programs, documents or data retained in violation of paragraph 7 of this Order.

DELIVERY/DESTRUCTION OF DOCUMENTS

7. Within ten (10) days of the entry of this Order, Defendants each shall deliver to counsel for the Plaintiff all copies of any files, programs, documents or data containing or referring to the source code or programming language for the AgentLinkTM Program and all copies of any documents identifying AgentLinkTM customers.

8. With respect to any such information contained on the hard drives of any computers in the possession, custody or control of the Defendants, Defendants shall each, within said time, provide a certification. verified by affidavit or declaration, that all files containing such information have been permanently deleted and removed from such computers. and that said information no longer exists in any form that can be retrieved or reproduced.

DISMISSALS

9. As to Homes and Lorance, the Monster Claims and any and all other claims that could have been asserted in the Monster Action concerning the AgentLinkTM Program based upon alleged acts or conduct occurring prior to the date of this Order and not resolved by the injunction set forth herein. are hereby dismissed with prejudice.

10. As to Homes, the dismissal of the Monster Action and the Monster Claims pursuant to this Order are further subject to the releases and other terms of the Homes Release Agreement.

11. As to Fishman and Davis, the Monster Action is dismissed without prejudice as to any and all claims for monetary damages or any other relief not expressly provided for herein.

12. As to all Defendants, the dismissal of the Monster Action and the Monster Claims is expressly made without prejudice as to any claims based upon or related to the License Agreement dated April 1, 2002 between MonsterDaata, Inc. and Homes and/or the License Agreement dated July 22, 2002 between Fishman & Davis, LLC and Homes, as to which agreements all claims are expressly reserved.

COSTS AND ATTORNEY'S FEES/NO ADMISSION

13. Except as max be adjudicated in the Cross-Claim filed by Defendant Lorance, each of the Parties shall bear its own costs and attorney's fees, and no discretionary costs shall be awarded.

14 Plaintiff and Defendants acknowledge and agree the entry of the Order, and as between Homes and Plaintiff the Homes Release Agreement, are the result of a settlement and compromise of disputed claims and shall not in any way be construed as an admission by Defendants of liability. alleged wrongdoing and/or damages asserted in the Monster Action.

LORANCE CROSS-CLAIM

15. This Order shall not affect the Cross-Claim filed by Lorance, and all rights of the parties with respect to issues raised in said Cross-Claim are reserved.

RETENTION OF JURISDICTION

16. The Court shall retain jurisdiction over this action for the purposes of enforcement of the terms of this Order.

20030403

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