Free Answer to Amended Complaint - District Court of California - California

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LEIV BLAD (State Bar No. 151353) CLIFFORD CHANCE US LLP 2001 K Street NW Washington, D.C. 20006 Telephone: (202) 912-5000 Facsimile: (202) 912-6000 [email protected] JOSEPH E. ADDIEGO III (State Bar No. 169522) SAM N. DAWOOD (State Bar No. 178862) DAVIS WRIGHT TREMAINE LLP 505 Montgomery Street, Suite 800 San Francisco, California 94111-6533 Telephone: (415) 276-6500 Facsimile: (415) 276-6599 [email protected] Attorneys for Defendants BNP PARIBAS and BNP PARIBAS SECURITIES (ASIA) LIMITED UNITED STATES DISTRICT COURT

12 NORTHERN DISTRICT OF CALIFORNIA 13 SAN FRANCISCO 14 15 16 17 18 19 20 21 22 23 24 25 Asia ) hereby answer plaintiffs First Amended Complaint and state in response to the allegations 26 27 28 therein as follows: 1. BNP and BNPP Asia state that the paragraph contains legal conclusions to which no BNP PARIBAS AND BNP PARIBAS SECURITIES (ASIA) LIMITED S ANSWER TO PLAINTIFFS FIRST AMENDED COMPLAINT THOMAS WEISEL PARTNERS LLC, a Delaware limited liability company, and THOMAS WEISEL INTERNATIONAL PRIVATE LIMITED, an Indian company, Plaintiff, vs. BNP PARIBAS, a French corporation, BNP PARIBAS SECURITIES (ASIA) LIMITED, a Hong Kong company, and PRAVEEN CHAKRAVARTY, an individual, Defendant. Case No. CV-07-06198 MHP DEFENDANTS BNP PARIBAS AND BNP PARIBAS SECURITIES (ASIA) LTD. S ANSWER TO PLAINTIFFS FIRST AMENDED COMPLAINT (JURY TRIAL DEMANDED)

Defendants BNP Paribas ( BNP ) and BNP Paribas Securities (Asia) Limited ( BNPP

admission or denial is warranted, and BNP and BNPP Asia respectfully refer all questions of law to

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the Court. To the extent a response is necessary, BNP and BNPP Asia deny each and every one of these allegations. 2. BNP and BNPP Asia are without knowledge or information sufficient to form a belief

as to the truth of the allegations in Paragraph 2, and therefore deny each and every one of these 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 6. 20 21 22 23 24 25 26 27 28 -2shutting down Discovery Research. BNP and BNPP Asia are without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 6, and therefore deny each and every one of these allegations. BNP and BNPP Asia admit that plaintiffs announced in late-2007 that they were remaining allegations in Paragraph 3, and therefore deny each and every one of these allegations. 4. BNP and BNPP Asia admit that Mr. Chakravarty worked for Thomas Weisel BNP and BNPP Asia are without knowledge or allegations. 3. BNP and BNPP Asia deny that they obtained and used confidential information from

Thomas Weisel Partners LLC s ( TWP LLC ) computers, deny that they misappropriated TWP LLC s confidential and trade secret information, and deny that they damaged TWP LLC s existing and potential business relations. BNP and BNPP Asia deny that they acted unlawfully. BNP and BNPP Asia are without knowledge or information sufficient to form a belief as to the truth of the

International Private Limited ( TWIPL ).

information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 4, and therefore deny each and every one of these allegations. 5. Denied.

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1 2 3 4 allegations. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 8. 7.

THE PARTIES BNP and BNPP Asia are without knowledge or information sufficient to form a belief

as to the truth of the allegations in Paragraph 7, and therefore deny each and every one of these

BNP and BNPP Asia are without knowledge or information sufficient to form a belief

as to the truth of the allegations in Paragraph 8, and therefore deny each and every one of these allegations. 9. 10. Admitted. BNP and BNPP Asia admit that BNPP Asia is a brokerage operation organized under

the laws of Hong Kong and headquartered in Hong Kong. BNP and BNPP Asia admit that BNP s 2006 Annual Report states that BNPP Asia has sales teams in the United States (New York and San Francisco) and in Europe (London, Paris and Milan). BNP and BNPP Asia deny that BNPP Asia

provides equity research and/or brokerage services to clients located in California. 11. BNP and BNPP Asia are without knowledge or information sufficient to form a belief

as to the truth of the allegations in Paragraph 11, and therefore deny each and every one of these allegations. JURISDICTION AND VENUE

20 21 22 23 24 25 26 27 allegations. 28 -315. 12. 13. 14. Denied. Denied. Denied. GENERAL ALLEGATIONS BNP and BNPP Asia are without knowledge or information sufficient to form a belief

as to the truth of the allegations in Paragraph 15, and therefore deny each and every one of these

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16.

BNP and BNPP Asia are without knowledge or information sufficient to form a belief

as to the truth of the allegations in Paragraph 16, and therefore deny each and every one of these allegations. 17. BNP and BNPP Asia are without knowledge or information sufficient to form a belief

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 as to the truth of the allegations in Paragraph 21, and therefore deny each and every one of these 20 21 22 23 24 25 26 27 allegations. 28 -4allegations. 22. BNP and BNPP Asia are without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 19, and therefore deny each and every one of these allegations. 20. BNP and BNPP Asia are without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 17, and therefore deny each and every one of these allegations. 18. BNP and BNPP Asia are without knowledge or information sufficient to form a belief

as to the truth of the allegations in Paragraph 18, and therefore deny each and every one of these allegations. 19. BNP and BNPP Asia are without knowledge or information sufficient to form a belief

as to the truth of the allegations in Paragraph 20, and therefore deny each and every one of these allegations. 21. BNP and BNPP Asia are without knowledge or information sufficient to form a belief

as to the truth of the allegations in Paragraph 22, and therefore deny each and every one of these allegations. 23. BNP and BNPP Asia are without knowledge or information sufficient to form a belief

as to the truth of the allegations in Paragraph 23, and therefore deny each and every one of these

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24.

BNP and BNPP Asia are without knowledge or information sufficient to form a belief

as to the truth of the allegations in Paragraph 24, and therefore deny each and every one of these allegations. 25. BNP and BNPP Asia are without knowledge or information sufficient to form a belief

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 as to the truth of the allegations in Paragraph 29, and therefore deny each and every one of these 20 21 22 23 24 25 26 27 allegations. 28 -5allegations. 30. BNP and BNPP Asia are without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 27, and therefore deny each and every one of these allegations. 28. BNP and BNPP Asia are without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 25, and therefore deny each and every one of these allegations. 26. BNP and BNPP Asia are without knowledge or information sufficient to form a belief

as to the truth of the allegations in Paragraph 26, and therefore deny each and every one of these allegations. 27. BNP and BNPP Asia are without knowledge or information sufficient to form a belief

as to the truth of the allegations in Paragraph 28, and therefore deny each and every one of these allegations. 29. BNP and BNPP Asia are without knowledge or information sufficient to form a belief

as to the truth of the allegations in Paragraph 30, and therefore deny each and every one of these allegations. 31. BNP and BNPP Asia are without knowledge or information sufficient to form a belief

as to the truth of the allegations in Paragraph 31, and therefore deny each and every one of these

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32.

BNP and BNPP Asia are without knowledge or information sufficient to form a belief

as to the truth of the allegations in Paragraph 32, and therefore deny each and every one of these allegation. 33. Denied. BNP and BNPP Asia admit that there were conversations between BNPP Asia and

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 37. 20 21 22 23 24 25 26 27 40. 28 deny that they acted unlawfully. BNP and BNPP Asia are without knowledge or information -6BNP and BNPP Asia deny that they improperly solicited any TWIPL employee and 38. 39. Denied. BNP and BNPP Asia deny that they were involved in the alleged conspiracy and that Denied. as to the truth of the allegations in Paragraph 35, and therefore deny each and every one of these allegations. 36. BNP and BNPP Asia admit that Mr. Chakravarty and a number of research analysts 34.

Mr. Chakravarty regarding his desire to leave TWIPL and some other TWIPL employees desire to leave TWIPL. BNP and BNPP Asia are without knowledge or information sufficient to form a belief as to the truth of the other allegations in Paragraph 34, and therefore deny each and every one of these allegations. 35. BNP and BNPP Asia are without knowledge or information sufficient to form a belief

employed by TWIPL were seeking employment opportunities elsewhere and that after learning of that fact, Mr. Harris and Mr. Rousseau discussed employment opportunities with some TWIPL employees. BNP and BNPP Asia deny the remaining allegations in Paragraph 36.

they acted unlawfully. BNP and BNPP Asia admit that seventeen employees of Discovery Research gave notice of their resignation from TWIPL. BNP and BNPP Asia are without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 39, and therefore deny each and every one of these allegations.

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sufficient to form a belief as to the truth of the allegations in Paragraph 40, and therefore deny each and every one of these allegations. 41. BNP and BNPP Asia deny that they received any confidential information of TWP

LLC and TWIPL and deny that they acted unlawfully. BNP and BNPP Asia are without knowledge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 45. 20 21 22 23 24 25 26 27 50. 28 -7Denied. 46. 47. Denied. BNPP and BNPP Asia deny the first sentence of this paragraph. BNP and BNPP Asia Denied. as to the truth of the allegations in the first sentence of Paragraph 43, and therefore deny this allegation. BNP and BNPP Asia deny the allegation in the second sentence of Paragraph 43. 44. BNP Paribas and BNPP Asia admit that BNPP Asia issued the press release referred or information sufficient to form a belief as to the truth of the allegations in Paragraph 41, and therefore deny each and every one of these allegations. 42. BNP and BNPP Asia are without knowledge or information sufficient to form a belief

as to the truth of the allegations in Paragraph 42, and therefore deny each and every one of these allegations. 43. BNP and BNPP Asia are without knowledge or information sufficient to form a belief

to in paragraph 44. That press release speaks for itself. To the extent paragraph 44 sets forth any allegations other than what is expressly stated in the press release, BNP Paribas and BNPP Asia deny each and every one of these allegations.

are without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 47, and therefore deny each and every one of these allegations. 48. 49. Denied. Denied.

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1 2 3 4 52. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 allegations. 20 21 22 23 24 25 26 27 62. 28 63. Denied. Denied. 60. Paragraph 57. 58. 57. 53. 54. 55. 56. Denied. Denied. Denied. Denied. Denied. 51. Paragraph 51.

FIRST CAUSE OF ACTION To the extent a response is required, BNP and BNPP Asia deny the allegations in

SECOND CAUSE OF ACTION To the extent a response is required, BNP and BNPP Asia deny the allegations in

BNP and BNPP Asia are without knowledge or information sufficient to form a belief

as to the truth of the allegations in Paragraph 58, and therefore deny each and every one of these allegations. 59. BNP and BNPP Asia are without knowledge or information sufficient to form a belief

as to the truth of the allegations in Paragraph 59, and therefore deny each and every one of these

BNP and BNPP Asia are without knowledge or information sufficient to form a belief

as to the truth of the allegations in Paragraph 60, and therefore deny each and every one of these allegations. 61. BNP and BNPP Asia are without knowledge or information sufficient to form a belief

as to the truth of the allegations in Paragraph 61, and therefore deny each and every one of these allegations.

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64. 65.

Denied. Denied. THIRD CAUSE OF ACTION

66. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 allegations.. 20 21 22 23 24 25 26 27 74. 28 Paragraph 74. 71. allegations.. 69. Paragraph 66. 67.

To the extent a response is necessary, BNP and BNPP Asia deny the allegations in

BNP and BNPP Asia are without knowledge or information sufficient to form a belief

as to the truth of the allegations in Paragraph 67, and therefore deny each and every one of these allegations.. 68. BNP and BNPP Asia are without knowledge or information sufficient to form a belief

as to the truth of the allegations in Paragraph 68, and therefore deny each and every one of these

BNP and BNPP Asia are without knowledge or information sufficient to form a belief

as to the truth of the allegations in Paragraph 69, and therefore deny each and every one of these allegations.. 70. BNP and BNPP Asia are without knowledge or information sufficient to form a belief

as to the truth of the allegations in Paragraph 70, and therefore deny each and every one of these

BNP and BNPP Asia are without knowledge or information sufficient to form a belief

as to the truth of the allegations in Paragraph 71, and therefore deny each and every one of these allegations.. 72. 73. Denied. Denied. FOURTH CAUSE OF ACTION To the extent a response is required, BNP and BNPP Asia deny the allegations in

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75. 76. 77.

Denied. Denied. Denied. FIFTH CAUSE OF ACTION

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 as to the truth of the allegations in Paragraph 86, and therefore deny each and every one of these 20 21 22 23 24 25 26 27 92. 28 -10Denied. allegations. 87. 88. 89. 90. 91. Denied. Denied. Denied. Denied. Denied. 85. Paragraph 85. 86. BNP and BNPP Asia are without knowledge or information sufficient to form a belief 83. 84. Denied. Denied. SIXTH CAUSE OF ACTION To the extent a response is required, BNP and BNPP Asia deny the allegations in 78. Paragraph 78. 79. 80. 81. 82. Denied. Denied. Denied. Denied. To the extent a response is required, BNP and BNPP Asia deny the allegations in

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1 2 3 4 94. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 103. 20 21 22 23 24 25 26 27 107. 28 Paragraph 107. 102. 99. 100. 101. Denied. Denied. Denied. 93. Paragraph 93.

SEVENTH CAUSE OF ACTION To the extent a response is required, BNP and BNPP Asia deny the allegations in

BNP and BNPP Asia are without knowledge or information sufficient to form a belief

as to the truth of the allegations in Paragraph 94, and therefore deny each and every one of these allegations. 95. 96. 97. 98. Denied. Denied. Denied. Denied.

EIGHTH CAUSE OF ACTION To the extent a response is required, BNP and BNPP Asia deny the allegations in

Paragraph 102. BNP and BNPP Asia are without knowledge or information sufficient to form a belief

as to the truth of the allegations in Paragraph 103, and therefore deny each and every one of these allegations. 104. 105. 106. Denied. Denied. Denied. NINTH CAUSE OF ACTION To the extent a response is required, BNP and BNPP Asia deny the allegations in

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108. 109. 110. 111.

Denied. Denied. Denied. Denied. TENTH CAUSE OF ACTION

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 SECOND AFFIRMATIVE DEFENSE 21 22 23 24 25 proximately or otherwise caused by BNP and/or BNPP Asia s acts or omissions, or the acts or 26 27 28 -12omissions of any other defendant. Plaintiffs have failed to allege their claims with sufficient particularity. THIRD AFFIRMATIVE DEFENSE Plaintiffs claims are barred because they have not sustained any cognizable injury FIRST AFFIRMATIVE DEFENSE Plaintiffs do not state a claim upon which relief can be granted. Any allegations not specifically admitted herein are denied. AFFIRMATIVE DEFENSES BNP and BNPP Asia assert the following additional defenses, without assuming the burden of proof on such defenses that would otherwise rest on Plaintiffs: 112.

To the extent a response is required, BNP and BNPP Asia deny the allegations in

Paragraph 112. 113. 114. 115. Denied. Denied. Denied.

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FOURTH AFFIRMATIVE DEFENSE Plaintiffs claims are barred because they have suffered no damages or the damages suffered are too speculative and uncertain. FIFTH AFFIRMATIVE DEFENSE Any alleged injury, if suffered by Plaintiffs, was not caused by BNP and/or BNPP Asia. Any injury or damage that has been suffered by Plaintiffs was the result of lawful business activities and

8 9 10 11 12 alleged damages, if any. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -13This Court lacks jurisdiction over BNPP Asia. TENTH AFFIRMATIVE DEFENSE These answering Defendants are informed and believe and thereon allege that Plaintiffs are estopped from bringing forth its claims as set forth in the First Amended Complaint. EIGHTH AFFIRMATIVE DEFENSE This Court lacks jurisdiction over plaintiffs claims. NINTH AFFIRMATIVE DEFENSE SEVENTH AFFIRMATIVE DEFENSE Plaintiffs claims are barred because the alleged conduct did not constitute an unlawful conspiracy. decisions. SIXTH AFFIRMATIVE DEFENSE Plaintiffs claims are barred in whole or in part because plaintiffs failed to mitigate their

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ELEVENTH AFFIRMATIVE DEFENSE These answering Defendants are informed and believe and thereon allege that Plaintiffs waived any and all of the claims set forth in Plaintiffs First Amended Complaint, and therefore Plaintiffs claims are barred. TWELFTH AFFIRMATIVE DEFENSE These answering Defendants are informed and believe and thereon allege that Plaintiffs lack

8 9 10 11 12 standing to maintain this lawsuit. 13 14 15 16 17 18 19 20 21 22 23 commenced and has not been prosecuted in good faith and for a proper purpose. 24 25 26 27 28 -14SIXTEENTH AFFIRMATIVE DEFENSE Plaintiffs claims are barred by the doctrine of independent development. Defendants. FIFTEENTH AFFIRMATIVE DEFENSE No relief may be obtained under the First Amended Complaint by reason of the Plaintiffs failure to do equity in the matters alleged in the First Amended Complaint, which was not FOURTEENTH AFFIRMATIVE DEFENSE These answering Defendants are informed and believe and thereon allege that as a result of the acts and omissions in the matters relevant to this First Amended Complaint, Plaintiffs have unclean hands and are therefore barred from asserting any claims against these answering the capacity to maintain this lawsuit. THIRTEENTH AFFIRMATIVE DEFENSE These answering Defendants are informed and believe and thereon allege that Plaintiffs lack

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SEVENTEENTH AFFIRMATIVE DEFENSE Plaintiffs claims for punitive damages are brought pursuant to a procedure which is unconstitutional in that it deprives Defendants due process of law. EIGHTEENTH AFFIRMATIVE DEFENSE Plaintiffs are not entitled to recover punitive or exemplary damages because Plaintiffs cannot establish facts sufficient to show that Defendants are guilty of oppression, fraud or malice within the

8 9 10 11 12 transactions referred to or described in the First Amended Complaint, and any and all injuries or 13 14 15 16 17 18 19 20 fault of Plaintiffs and their agents, and any recovery by Plaintiffs must be reduced or denied 21 22 23 24 25 requisite degree of intent or fault. 26 27 28 -15accordingly. TWENTIETH AFFIRMATIVE DEFENSE Plaintiffs claims are barred, in whole or in part, because Defendants did not act with the damages, if any, sustained therefrom, were proximately caused, in whole or in part, by the fault, breach of contract and/or other misconduct of and/or chargeable to Plaintiffs. As a result thereof, plaintiffs recovery, if any, should be reduced by an amount proportionate to the amount by which the fault, breach of contract and/or other misconduct of and/or chargeable to plaintiffs contributed to any and all injuries and damages sustained therefrom. To the extent Plaintiffs have suffered any injury, such injury was caused in whole or in part by the actions and contributory or comparative meaning of California Civil Code § 3294. NINETEENTH AFFIRMATIVE DEFENSE Defendants are informed and believe, and based thereon allege, that each of the incidents and

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TWENTY-FIRST AFFIRMATIVE DEFENSE Without conceding any of the allegations in Plaintiffs First Amended Complaint, Defendants allege that plaintiffs' Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh causes of action, inter alia, all are preempted by California Civil Code § 3426.7. TWENTY-SECOND AFFIRMATIVE DEFENSE Plaintiffs claims are barred because some or all of them are governed by Indian law.

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -16By: /s/ Joseph E. Addiego III Leiv Blad CLIFFORD CHANCE US LLP Attorneys for Defendants BNP PARIBAS, BNP PARIBAS, and BNP SECURITIES (ASIA) LIMITED DATED: September 10, 2008 DAVIS WRIGHT TREMAINE LLP PRAYER WHEREFORE, BNP and BNPP Asia pray that the Court will dismiss all claims asserted by plaintiffs and award costs, attorney s fees, and any other relief permitted by law to BNP and BNPP Asia.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: September 10, 2008

DEMAND FOR JURY TRIAL Defendants BNP Paribas and BNP Paribas Securities (Asia) Limited hereby demand a jury trial of all issues so triable as provided by Rule 38(a) of the Federal Rules of Civil Procedure. DAVIS WRIGHT TREMAINE LLP

By: /s/ Joseph E. Addiego III Leiv Blad CLIFFORD CHANCE US LLP Attorneys for Defendants BNP PARIBAS, BNP PARIBAS, and BNP SECURITIES (ASIA) LIMITED

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