Proofpoint, Inc. v. Vade Secure, Incorporated

Background

Plaintiffs Proofpoint, Inc. and Cloudmark moved for summary judgment on affirmative defenses asserted in response to their First Amended Complaint. Summary judgment is a decision based on the evidence when the opposing party has not shown a genuine factual dispute requiring a trial. The motion concerned particular defenses, not the claims as a whole.

Defenses Vade Secure Agreed Not to Pursue

The court granted the motion as to Vade Secure’s Fourth, Fifth, Sixth, and Eleventh Affirmative Defenses, titled estoppel, unclean hands, waiver, and copyright misuse. Vade Secure stated that it agreed not to advance those defenses at trial.

Defenses Lemarié Did Not Oppose

The court granted the motion as to Lemarié’s Third, Fourth, Fifth, Eighth, Ninth, Fifteenth, Seventeenth, and Twentieth Affirmative Defenses. The opinion states that Lemarié did not oppose the motion as to those defenses. The listed defenses were modification, privilege, offset, estoppel, unclean hands, copyright misuse, merger, statute of limitations, and laches. The opinion’s numbering and its corresponding list of titles appear not to align perfectly, but the conclusion identifies the defenses by number.

Lemarié’s Waiver Defense

The court also granted summary judgment on Lemarié’s Tenth Affirmative Defense, waiver. Under California law, waiver means intentionally giving up a known right after learning the relevant facts. In response to an interrogatory asking for the factual and legal basis of each defense, Lemarié did not provide information or even refer to his waiver defense. The court concluded that the plaintiffs had therefore met their initial burden by showing an absence of evidence supporting that defense.

Lemarié argued that the waiver defense applied to Count V, which alleged that after his employment with Cloudmark ended, he failed to return all materials in an Evernote account as required by contract. He claimed that he returned relevant files to Cloudmark colleagues, confirmed they had all required documents, and deleted the Evernote notebook. He further argued that Cloudmark knew these facts and declined to seek the notebook’s return, leading him reasonably to conclude that Cloudmark had given up that right. The court found that Lemarié offered no evidence that he returned the files or confirmed that his colleagues had everything they needed. He therefore failed to show a triable factual dispute on waiver.

Ruling

The court granted plaintiffs’ motion for summary judgment on Vade Secure’s Fourth, Fifth, Sixth, and Eleventh Affirmative Defenses and on Lemarié’s Third, Fourth, Fifth, Eighth, Ninth, Tenth, Fifteenth, Seventeenth, and Twentieth Affirmative Defenses. Judge Maxine Chesney did not state in this order that the ruling resolved the entire case.