information, passing-off under the Lanham Act, unfair competition, unjust enrichment,conversion, breach of contract, and t...
PARTIES, JURISDICTION AND VENUE       4.      Plaintiff Argentto Systems, Inc. (“Argentto”) is a software developmentcompa...
13.     The Court has subject matter jurisdiction over this action pursuant to 28U.S.C. §§ 1331, 1338(a), and 1367. Plaint...
portfolio management software, and interactive web-based job posting software thatintegrates the needs of job candidates, ...
simultaneously; (3) is web-based, so it is easy to use and secure; (4) has customizableexpense reporting; and (5) provides...
ARGENTTO’S EFFORTS TO PROTECT THE PERFORMANCE METRICS                   SOFTWARE TRADE SECRET       23.     Argentto maint...
29.     The Performance Metrics Software source code was always maintainedand run on servers belonging to Argentto. Neithe...
34.     Argentto’s accounting systems, including its innovative “multi-company”system permitting consolidation of the acco...
become an “outsourced CIO” (chief information officer).       38.     In late 2005, Mr. Santino proposed that Peak add to ...
Performance Metrics Software. The agreement was reflected in the “Terms andConditions” printed on each and every invoice p...
certain Trade Secrets that have been developed by Argentto               Systems at great expense and that have required  ...
gain numerous new clients for Peak’s e-discovery and document review services.       48.     Santino was repeatedly asked ...
Peak. When he left the office in the evening, he accidentally left behind a flashlight, ascrewdriver, and a CD case with s...
Greenberg destroyed the Argentto-HP relationship purely to harm Argentto, with nodiscernible economic motivation whatsoeve...
LegalTech conference that Peak had been promoting the “Peak Review Metrics” softwareusing paper handouts at the LegalTech ...
FIRST CAUSE OF ACTION:   COPYRIGHT INFRINGEMENT PURSUANT TO THE COPYRIGHT ACT (Against Defendants The Peak Organization, I...
74.       By reason of the foregoing, Plaintiffs are entitled to damages in an amountto be determined at trial, but believ...
79.     Plaintiffs have made reasonable efforts under the circumstances tomaintain the confidentiality of the Trade Secret...
present unable to ascertain the full extent of the gains, profits, and advantages Defendantshave obtained by reason of the...
sponsorship, or approval of the goods and services of Defendants;                   and/or                b) cause likelih...
96.       Plaintiffs are further entitled to recover from Defendants the gains, profits,and advantages Defendants have gai...
104.    In breach of their contractual obligations, Defendants without Plaintiffs’knowledge or consent have continued to u...
SIXTH CAUSE OF ACTION: CONVERSION (Against Defendants The Peak Organization, Inc., Peak Counsel, Inc., Peak Discovery,    ...
119.    Defendants Philip Greenberg knowingly and intentionally interfered withArgentto’s current and prospective advantag...
plaintiffs have suffered money damages in an amount to be determined at trial.                                   JURY DEMA...
person representing them or acting on their behalf: (i) that relate to     Plaintiff or any affiliated entities; or (ii) t...
licensing, disseminating, transferring, operating, or otherwise utilizing the               copyrighted Performance Review...
Peak Organization Defendants
Peak Organization Defendants
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Peak Organization Defendants

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THE PEAK ORGANIZATION, INC.,PEAK COUNSEL, INC, PEAK DISCOVERY, INC., RICHARD EICHENBERG, ARNOLD SCHLANGER,
MICHAEL DALEWITZ, and PHILIP GREENBERG, DEFENDANTS
COPYRIGHT INFRINGMENT

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Peak Organization Defendants

  1. 1. information, passing-off under the Lanham Act, unfair competition, unjust enrichment,conversion, breach of contract, and tortious interference with Plaintiffs’ contractualrelations. 2. As explained more fully below, Plaintiffs developed unique andspecialized software designed to track, report, and provide metrics for the performance ofdocument reviewers in large e-discovery projects, which they licensed to Defendants forthe period August 2007 to June 2008 (the “Performance Metrics Software”). Plaintiffsduly obtained a federal copyright registration for the Performance Metrics Software.During Defendants’ business relationship with Plaintiffs, the Performance MetricsSoftware became central to Defendants’ efforts to promote their temporary legal staffingand e-discovery services to law firms and other consumers of e-discovery and legalstaffing services. The unique Performance Metrics Software gave Defendants the abilityto win business away from other e-discovery or legal staffing providers who could notoffer the same performance metrics capabilities. 3. After stealing a case of CD-ROMs containing the source code forPlaintiffs’ proprietary software, Defendants terminated their relationship with Plaintiffs,and are currently utilizing the Performance Metrics Software without any authorization orlicense. Upon information and belief, during the nine-month period that Defendants haveutilized the Performance Metrics Software without authority, they have profited in theamount of at least $28 million – all built on Plaintiffs’ innovative software and theirproprietary trade secrets. 2
  2. 2. PARTIES, JURISDICTION AND VENUE 4. Plaintiff Argentto Systems, Inc. (“Argentto”) is a software developmentcompany with its principal place of business in New York, New York. 5. Plaintiff Nick Santino is the President of Argentto and its principalsoftware developer. Mr. Santino resides in New York, New York. 6. Defendant The Peak Organization, Inc. is a domestic corporation with itsprincipal place of business located in New York, New York. 7. Defendant Peak Counsel, Inc. is a domestic corporation with its principalplace of business located in New York, New York. 8. Defendant Peak Discovery, Inc. is a domestic corporation with itsprincipal place of business located in New York, New York. On information and belief,Peak Discovery, Inc. is the successor in interest to Peak Off-Site, Inc. 9. Defendant Richard Eichenberg is the Chief Executive Officer andPresident of The Peak Organization, Inc. On information and belief, Mr. Eichenbergresides in New York, New York. 10. Defendant Arnold Schlanger is the President of Peak Counsel, Inc. Oninformation and belief, Mr. Schlanger resides in New York, New York. 11. Defendant Michael Dalewitz is the President of Peak Discovery, Inc. Oninformation and belief, Mr. Dalewitz resides in New York, New York. 12. Defendant Philip Greenberg is the President of Peak Systems, Inc., asubsidiary of Defendant The Peak Organization, Inc. On information and belief, Mr.Greenberg resides in Palisades, New York. 3
  3. 3. 13. The Court has subject matter jurisdiction over this action pursuant to 28U.S.C. §§ 1331, 1338(a), and 1367. Plaintiffs allege claims for copyright infringementarising under the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq., passing-off and unfaircompetition under the Lanham Act, 15 U.S.C. § 1125(a), and for related common lawand state law claims of misappropriation of Plaintiffs’ trade secrets and other confidentialinformation, unfair competition, unjust enrichment, conversion, breach of contract, andtortious interference with Plaintiffs’ contractual relations. 14. Venue is proper in this District under 28 U.S.C. §§ 1391(b) and 1400(a),as a substantial part of the events giving rise to this action occurred in this District, andDefendants may be found in this District. FACTUAL BACKGROUND 15. Nick Santino founded Argentto in 2001. Argentto is a softwaredevelopment and consulting company that develops, customizes and provides computersoftware solutions to businesses ranging from law firms to investment banks to computermanufacturers. Argentto offers a full suite of software programs, from accountingenterprise systems, to oil trading software platforms, securities portfolio managementsoftware, legal case management software, and various interactive web applications. Inaddition, Argentto provides information technology (“IT”) consulting and supportservices to its clients. 16. As a leading developer of software based on proven Microsofttechnologies, Argentto has developed unique intellectual property unparalleled in itsindustry, including multi-company accounting software that permits entities with multiplebusiness units to consolidate their general ledgers into a single database, investment 4
  4. 4. portfolio management software, and interactive web-based job posting software thatintegrates the needs of job candidates, staffing services, and potential employers.Argentto has applied for and/or obtained copyright registrations for these and othersoftware packages it has developed for sale to its clients. THE PERFORMANCE METRICS SOFTWARE 17. In 2006 and early 2007, recognizing that no one in the e-discoveryindustry had been able to find a solution to the problem of quality control and efficiencymanagement in the context of litigation discovery document review, Argentto developed,with the investment of considerable expense and programmer time, a unique andproprietary software system to analyze and chart the progress and performance of large-scale review of documents in the course of complex legal proceedings. This software,which no one in the e-discovery or staffing industries had previously been able to create,provides unprecedented control over the document-review process in large litigations. 18. Successful discovery management requires complex metrics. ThePerformance Metrics software enables supervisors to manage effectively the progress,accuracy, and efficiency of individual reviewers and the review team as a whole. Themetrics include: (1) documents per hours and averages; (2) pages per hours and averages;(3) hours logged by reviewers; (4) documents reviewed; (5) documents re-reviewed; (6)documents with no tags; (7) pages reviewed; (8) tags made; (9) tags at the first, secondand QC level; (10) additional tags added at the first-level review; (11) document reviewcosts at issue level. 19. The Performance Metrics software (1) is platform agnostic, meaning it canbe used on any document review platform; (2) enables a user to manage multiple projects 5
  5. 5. simultaneously; (3) is web-based, so it is easy to use and secure; (4) has customizableexpense reporting; and (5) provides graphical displays of individual as well as groupperformance. 20. With the Performance Metrics software supervisors can (1) access aconsolidated history of individual reviewer skills for use on future projects; (2) identifyunder-performing reviewers; (3) identify inaccurate coders; (4) share performance datawith the review team, providing an incentive to achieve; and (5) export data intospreadsheets for storage and internal use. 21. The implementation of these features was and is unprecedented in the e-discovery industry. An IT specialist at one top New York law firm, upon first viewingthe software, exclaimed that that law firm had been trying for seven years, withoutsuccess, to create this document review management and metrics functionality. Althoughit is based on proven Microsoft technologies such as the SQL Server 2005 databasesoftware and the .NET programming language and framework, the user interface, dataalgorithms, data tables, drivers, and database structure of the Performance MetricsSoftware consist of numerous original constituent elements. It contains over 950,000lines of software source code. Over 6,000 hours of Argentto programmer time, over aperiod of 28 months, were required to write the Performance Metrics Software. 22. Nick Santino obtained a U.S. Copyright Certificate of Registration for thePerformance Metrics Software, Registration Number TX 6-901-797 (“Legal ReviewMetrics”), effective December 3, 2007. A copy of this Certificate of Registration isattached hereto as Exhibit A. Argentto is the exclusive licensee of the PerformanceMetrics Software. 6
  6. 6. ARGENTTO’S EFFORTS TO PROTECT THE PERFORMANCE METRICS SOFTWARE TRADE SECRET 23. Argentto maintains the confidentiality of its trade secrets, including itsproprietary source code, in many ways. 24. First, all Argentto employees and contractors are required to sign strictconfidentiality and non-disclosure agreements. 25. Second, Argentto’s programmers who develop, test, maintain and upgradeits source code are the only individuals at Argentto who have access to the source codethrough password-protected computers. Argentto provides each programmer with a username and password without which the programmer cannot access the system on whichthe source code resides. Only Nick Santino, the company’s president, has the passwordto directly access the server containing and running the Performance Metrics Softwaresource code. 26. Third, Argentto programmers are prohibited from working on Argenttosoftware, including the source code, outside the office. At the office, Argenttoprogrammers are permitted access only to their own workstations and computers. 27. Fourth, Argentto’s offices, including the servers on which its softwaresource code resides, are locked, secured, and protected by guard dog. 28. Finally, while Argentto provides its actual and prospective customers andlicensees with access to its software user interfaces to view its form and functionality,and may offer limited access to underlying data to the extent the customer or licenseerequires such access for daily use, absolutely no one other than Argentto’s own computerprogrammers has access to the source code embodying that software. 7
  7. 7. 29. The Performance Metrics Software source code was always maintainedand run on servers belonging to Argentto. Neither Peak nor any third party was everpermitted access to the source code for the Performance Metrics Software. THE RELATIONSHIP BETWEEN ARGENTTO AND PEAK 30. The Peak Organization (“Peak”) was founded by Richard Eichenberg in1970. Beginning as a staffing agency for internal audit personnel, Peak now comprisesthirteen operating divisions providing staffing services and technological solutions to theaccounting, legal, IT, marketing, and other industries. 31. Although Peak had been in existence for decades, its accounting systemsand other IT systems were in a shambles as late as 2001. Peak had clearly outgrown itsinternal IT capability. For example, even though Peak had invested hundreds ofthousands of dollars in its accounting systems over the years, it still did not have a meansto write accounts-payable checks to clients. 32. In 1999, Peak attempted to enter the burgeoning e-discovery field incomplex litigation with a new subsidiary called Peak Document Solutions. This effortfailed miserably, and was ended in 2000. 33. In June 2002, Peak engaged Argentto to provide one of Argentto’sexisting software solutions for accounts payable, general ledger, and certain otheraccounting functions. With the success of these first initiatives, Peak then requested thatArgentto provide software for accounts receivable, payroll, and additional accountingfunctions. In January 2003, Argentto provided a “live payroll” software system, finallybringing Peak’s payroll capabilities into the 21st century. Argentto consistently providedthis software ahead of schedule and under budget. 8
  8. 8. 34. Argentto’s accounting systems, including its innovative “multi-company”system permitting consolidation of the accounting for Peak’s multiple divisions, wereproprietary and unique. Argentto ran the accounting software, and maintained the “datatables” for the underlying databases, on its own servers. 35. In the summer of 2003, Nick Santino, the president of Argentto, realizedthat Peak was still using paper time slips and fax machines to keep track of the hours itstemporary employees were working; this system caused Peak’s billing, accounting, andpayroll functions to be slow, disconnected, and inefficient. Mr. Santino begandeveloping a “beta” version of a web-based solution for timecard entry and approval.Despite Defendant Eichenberg’s apprehension, Argentto demonstrated the beta systemand Peak ultimately adopted the use of this web-based solution as “PeakInteractive.net”in February 2004. The ability for temporary employees, and their supervisors at clientcompanies, to report and approve hours using a web-based interface catapulted Peak to aleading position among staffing services. Because of the strong promotional benefit ofthis innovative software solution, Santino was asked to accompany Peak executives insales calls to prospective clients. In numerous instances, new staffing client companiescited Peak’s web-based timecard entry and approval system as the primary reason fortheir choosing Peak for their staffing needs. 36. On information and belief, over the course of the time period from 2002 to2006, Peak’s revenues grew from approximately $18 million in annual revenues (with anet loss over $1 million) to approximately $24 million in revenues. 37. In 2004, Peak engaged Argentto’s consulting capacity to manage its entirenetwork, including e-mail. Peak asked Nick Santino, the president of Argentto, to 9
  9. 9. become an “outsourced CIO” (chief information officer). 38. In late 2005, Mr. Santino proposed that Peak add to its website Argentto’sweb-based staffing software, which would allow potential job candidates to postavailability and check listings, staffing companies (such as Peak or Monster.com) to postlistings and monitor needs, and potential client companies to post needs and check on jobcandidates. Peak adopted Argentto’s web application, which became hugely popularwith Peak’s own employees, as well as Peak’s clients and staffing job candidates. 39. In 2006, Defendant Eichenberg told Santino that his “dream” for Peak wasto become successful in the rapidly growing e-discovery field, which Peak had previouslytried and failed to do. Peak sought to re-launch its efforts with a new e-discoverysubsidiary, Defendant Peak Discovery, Inc. Peak intended to sell its e-discovery servicesalongside the temporary legal staffing services offered by its existing subsidiary PeakCounsel, Inc., and thereby increase revenues from both. 40. Santino began researching IT solutions in the document review and e-discovery industries, and realized that no one had ever created software to monitor theperformance of document review, to measure individual reviewers’ and teams’ accuracy,speed and efficiency. To an engineer like Santino, the significant variability in theseareas was a major flaw in the cost-efficiency of the entire e-discovery and documentreview process. 41. Argentto then independently embarked upon development of thePerformance Metrics Software. When Santino demonstrated a “beta” version of thesoftware to Eichenberg in early 2007, Eichenberg was enthusiastic. 42. Argentto entered into an agreement with Peak for the use of Argentto’s 10
  10. 10. Performance Metrics Software. The agreement was reflected in the “Terms andConditions” printed on each and every invoice provided by Argentto to Peak inconnection with the Performance Metrics Software. 43. Section 5.1 of the Terms and Conditions of the agreement betweenArgentto and Peak provides: OWNERSHIP RIGHTS 5.1 Ownership. As between Client and Argentto Systems, Inc., except as set forth below in this Section 6, all right, title, and interest, including copyright interests and any other intellectual property, in and to the Software produced or provided by Argentto Systems under this Agreement shall be the property of Argentto Systems, Inc.. To the extent of any interest of Client therein, Client agrees to assign and, upon its creation, automatically assigns to Argentto Systems the ownership of such Software, including copyright interests and any other intellectual property therein, without the necessity of any further consideration. 44. Section 6.1 of the Terms and Conditions provides: RESPONSIBILITIES OF Client FOR SOFTWARE 6.1 Limitations on Use. Client may not use, copy, or modify the Software, or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by Argentto Systems hereunder. Clients rights may not be transferred except to a successor in interest of Clients entire business who assumes the obligations of this Agreement. No service bureau work, multiple-user license, or time-sharing arrangement is permitted. If Client uses, copies, or modifies the Software or transfers possession of any copy, adaptation, transcription, or merged portion of the Software to any other party in any way not expressly authorized hereunder, Clients license is automatically terminated. 45. Section 7.1 and 7.2 of the Terms and Conditions provide: PROPRIETARY INFORMATION 7.1 Trade Secrets. Client acknowledges that in order to perform the services called for in this Agreement, it shall be necessary for Argentto Systems to disclose to Client 11
  11. 11. certain Trade Secrets that have been developed by Argentto Systems at great expense and that have required considerable effort of skilled professionals. Client further acknowledges that the Software will of necessity incorporate such Trade Secrets. Client agrees that it shall not disclose, transfer, use, copy, or allow access to any such Trade Secrets to any employees or to any third parties, excepting those who have a need to know such Trade Secrets in order to give effect to Clients rights hereunder and who have bound themselves to respect and protect the confidentiality of such Trade Secrets. In no event shall Client disclose any such Trade Secrets to any competitors of Argentto Systems, Inc.. 7.2 Scope of Restriction. As used herein, the term “Trade Secrets” shall mean any scientific or technical data, information, design, process, procedure, formula, or improvement that is commercially valuable to Argentto Systems and not generally known in the industry. 46. These Terms and Conditions were essential terms in the agreementbetween Argentto and Peak. As set forth in the Terms and Conditions and agreedbetween the companies, all intellectual property and proprietary trade secret rights to thePerformance Metrics Software belonged to Argentto, and Peak’s license to use thesoftware was expressly contingent on Argentto’s authorization. 47. In January 2008, without Plaintiffs’ prior knowledge or pre-approval, Peakannounced that it was offering the Performance Review Software as its “proprietarysoftware tool,” “Peak Review Metrics,” which formed the centerpiece of its e-discoveryand temporary legal document reviewer staffing services. Indeed, in Peak’s promotionalmaterials, the “Performance and Accuracy Metrics” software was frequently listed as themost important benefit of engaging Peak to provide document review and e-discoveryservices. Peak demonstrated the Performance Review Software at the annual AmericanBar Association LegalTech event in February 2008, and utilized these demonstrations to 12
  12. 12. gain numerous new clients for Peak’s e-discovery and document review services. 48. Santino was repeatedly asked to assist Peak in promoting the PerformanceReview Metrics software in sales calls to prospective clients. Numerous potential clientscommented that they had never seen this capability offered by any e-discovery or legalstaffing provider. The performance metrics software gave Peak a unique edge in the e-discovery and legal staffing markets, and Peak received numerous engagements based onpotential clients’ interest in the software’s capabilities. On information and belief, duringthe latter half of 2008, Peak derived revenues of at least $28 million from such clients,who retained Peak primarily because of the performance metrics capability of thePerformance Metrics Software that Peak claimed to own. 49. On information and belief, between 2006 and 2007, Peak’s revenues grewfrom approximately $24 million to approximately $50 million. During 2007 and 2008,Peak grew from one office in New York to add five new locations. THE THEFT OF ARGENTTO’S SOFTWARE AND TERMINATION OF THE RELATIONSHIP BETWEEN ARGENTTO AND PEAK 50. On information and belief, Peak began to hatch plans to betray Argenttoand steal its software as early as November 2007. On November 27, 2007, a Peakexecutive wrote to Eichenberg, “There are many developers out there that could reverseengineer what [Santino] has written especially if you have the source code and even ifyou dont it can be done.” 51. The relationship between Peak and Argentto began to unravel in the springand summer of 2008. 52. In May 2008, Santino was working on a project late in the evening at 13
  13. 13. Peak. When he left the office in the evening, he accidentally left behind a flashlight, ascrewdriver, and a CD case with several CD-ROMs containing, among other files, thesource code for the Performance Metrics Software. 53. The next day, the items were not where Santino left them. When Santinoinquired about the location of his property, the flashlight and screwdriver were returnedto him, but the CD case was not. Santino made numerous inquiries, but the CD case andthe CD-ROMs within were never returned to him. 54. Shortly thereafter, in June 2008, Peak purported to terminate Argentto’sservices, and Santino was removed from his position as “outsourced CIO.” 55. At the time of the termination, Peak owed Argentto $30,000 in fees forconsulting and network administration services. 56. Nonetheless, Peak asked Argentto, and Argentto agreed, to maintainPeak’s data on Argentto’s servers for another three months, until September 2008, so thatPeak could utilize new contractors to extract its accounting, payroll and other data fromthe Argentto databases. 57. In early 2008, Argentto began performing work directly for Hewlett-Packard (“HP”), in connection with a consulting services contract HP was performing forJP Morgan Chase. Argentto expected that this relationship, which arose from HP’spositive views of software Argentto had provided to Peak, would lead to hundreds ofthousands of dollars in revenue. In June 2008, however, shortly after the termination ofArgentto’s services, Defendant Phil Greenberg notified HP of the termination anddisparaged Argentto to HP, and thereby caused HP to end its relationship with Argenttowithin weeks of the end of the Argentto-Peak relationship. On information and belief, 14
  14. 14. Greenberg destroyed the Argentto-HP relationship purely to harm Argentto, with nodiscernible economic motivation whatsoever. 58. In September 2008, Argentto closed down Peak’s access to Argentto’sservers. Peak still owed Argentto $21,004 in fees. 59. In the summer and fall of 2008, Peak repeatedly requested and demandedthat Argentto provide the source code for Argentto’s proprietary software. Argenttosteadfastly refused to give up its intellectual property and proprietary trade secrets. 60. After the termination of the Peak-Argentto relationship, Peak replaced itsArgentto accounting software with other software packages. Similarly, without the rightto use the Argentto software, Peak replaced the interactive web site,“PeakInteractive.Net,” with non-interactive HTML pages. These changes are notsurprising, because Argentto strictly controlled access to its source code, and Peak lackedsuch source code after Peak terminated the relationship. 61. In stark contrast, as Plaintiffs have now learned, Peak has continued touse, distribute, market, and promote the Performance Review Software, without change,since before the termination of the Argentto-Peak relationship. In other words, the onlysoftware package that Peak has continued to use is the software for which Peak hadillicitly acquired the source code. PEAK’S INFRINGEMENT AND MISAPPROPRIATION 62. In the first week of February 2009, the American Bar Association held itsannual LegalTech convention in New York City. Peak had announced the PerformanceReview Metrics at the LegalTech convention one year earlier. 63. Later that month, Nick Santino learned from a friend who attended the 15
  15. 15. LegalTech conference that Peak had been promoting the “Peak Review Metrics” softwareusing paper handouts at the LegalTech conference itself. If prospective clients showedinterest in the software, Peak would then schedule “private demonstrations” of thesoftware. This behavior suggested that Peak was trying to keep the user interface andother aspects of the Peak Review Metrics software from being revealed to the public and,more importantly, Argentto. 64. In the month since the LegalTech show, Peak has more openly promotedthe “Peak Review Metrics” software on its website and in brochures. 65. It would take a team of programmers many months, at great cost, to writea program capable of the Performance Metrics Software, whether “from scratch” orthrough “reverse engineering.” The Performance Metrics Software remains unique in theindustry. 66. Therefore, Plaintiffs believe that Defendants are continuing to infringeArgentto’s valuable intellectual property, and to misappropriate Argentto’s proprietarytrade secrets, in the Performance Metrics Software. 67. On information and belief, Defendants Eichenberg, Schlanger andDalewitz have personally participated in and profited from the effort to misappropriateArgentto’s intellectual property, to promote it to current and prospective clients as Peak’sown, and to distribute or disclose it in violation of Plaintiffs’ rights. 16
  16. 16. FIRST CAUSE OF ACTION: COPYRIGHT INFRINGEMENT PURSUANT TO THE COPYRIGHT ACT (Against Defendants The Peak Organization, Inc., Peak Counsel, Inc., Peak Discovery, Inc., Richard Eichenberg, Arnold Schlanger, and Michael Dalewitz) 68. Plaintiff repeats and realleges each and every allegation set forth above asthough fully set forth herein. 69. By means of the actions complained of above, pursuant to 17 U.S.C. §501, Defendants have infringed and will continue to infringe Plaintiffs’ federallyregistered copyright in the Performance Metrics Software by using the PerformanceMetrics Software without Plaintiffs’ consent or authority, in violation of 17 U.S.C. § 106. 70. Defendants’ infringing conduct has caused and, unless restrained by thisCourt, will continue to cause Plaintiffs irreparable injury. Plaintiffs have no adequateremedy at law for Defendants’ infringement. 71. Plaintiffs are entitled to an injunction restraining Defendants, theirofficers, agents, and employees, and all other persons acting in concert with them, fromengaging in further such acts in violation of the federal copyright laws. 72. Plaintiffs are further entitled to recover from Defendants the damagesPlaintiffs have sustained and will sustain as a direct result of Defendants’ wrongful acts.The amount of such damages cannot be determined at this time. 73. Plaintiffs are further entitled to recover from Defendants the gains, profits,and advantages Defendants have gained as a result of their wrongful acts. Plaintiffs are atpresent unable to ascertain the full extent of the gains, profits, and advantages Defendantshave obtained by reason of their acts in violation of the federal copyright laws. 17
  17. 17. 74. By reason of the foregoing, Plaintiffs are entitled to damages in an amountto be determined at trial, but believed to be in excess of thirty million dollars($30,000,000). 75. Defendants are willfully engaged in, and are willfully engaging in, the actscomplained of with oppression, fraud, and malice, and in conscious disregard of therights of Plaintiffs. Defendants’ infringing actions are willful and deliberate, andPlaintiffs are entitled to statutory damages, as well as attorneys’ fees and costs pursuantto 17 U.S.C. § 504 and 17 U.S.C. § 505. SECOND CAUSE OF ACTION: MISAPPROPRIATION OF TRADE SECRETS (Against Defendants The Peak Organization, Inc., Peak Counsel, Inc., Peak Discovery, Inc., Richard Eichenberg, Arnold Schlanger, and Michael Dalewitz) 76. Plaintiff repeats and realleges each and every allegation set forth above asthough fully set forth herein. 77. The information reflected in the Performance Metrics Software and sourcecode, and the accompanying unique and proprietary techniques for structuring data anddistributing such data to and from various databases and document review platforms,constitute Plaintiffs’ confidential and proprietary information and trade secrets (the“Trade Secrets”). 78. The Trade Secrets give Plaintiffs a significant competitive advantage overits existing and would-be competitors, including but not limited to, Defendants The PeakOrganization, Inc., Peak Counsel, Inc., and Peak Discovery, Inc., to the extentDefendants use the Performance Metrics Software capabilities to market their servicesand to obtain engagements. This advantage would be lost if the Trade Secrets becameknown to the public or to Plaintiffs’ competitors. 18
  18. 18. 79. Plaintiffs have made reasonable efforts under the circumstances tomaintain the confidentiality of the Trade Secrets. 80. Plaintiffs’ Trade Secrets derive independent economic value from notbeing generally known to the public or to other persons who can obtain economic benefitfrom their disclosure. 81. Defendants misappropriated Plaintiffs’ Trade Secrets by (a) illicitlyprocuring a copy of Plaintiffs’ source code, (b) illicitly using Plaintiffs’ Trade Secretswithout authorization, and (c) illicitly disclosing Plaintiffs’ Trade Secrets to third partieswithout authorization. Defendants have utilized and disclosed Plaintiffs’ Trade Secretsfor the benefit of themselves without Plaintiffs’ consent and without regard to Plaintiffs’rights, and without compensation, permission, or license. 82. Defendants’ conduct was, is, and remains willful and wanton, and wasundertaken with blatant disregard for Plaintiffs’ valid and enforceable rights. 83. By reason of the foregoing, Defendants have been unjustly enriched andPlaintiffs have suffered irreparable harm as a result of the misappropriations of theirTrade Secrets, and will continue to suffer irreparable harm, which cannot be adequatelyredressed at law, unless Defendants, their agents, and all those acting in concert withthem are enjoined from engaging in further acts of misappropriation. 84. Plaintiffs are further entitled to recover from Defendants the damagesPlaintiffs have sustained and will sustain as a direct result of Defendants’ wrongful acts.The amount of such damages cannot be determined at this time. 85. Plaintiffs are further entitled to recover from Defendants the gains, profits,and advantages Defendants have gained as a result of their wrongful acts. Plaintiffs are at 19
  19. 19. present unable to ascertain the full extent of the gains, profits, and advantages Defendantshave obtained by reason of their misappropriation of Plaintiffs’ Trade Secrets. 86. By reason of the foregoing, Plaintiffs have suffered damages in an amountto be determined at trial, but believed to be in excess of thirty million dollars($30,000,000). 87. Plaintiffs also reserve the right to see punitive and exemplary damages,and attorneys’ fees, as a result of Defendants’ willful and wanton conduct. THIRD CAUSE OF ACTION: UNFAIR COMPETITION AND PASSING OFF UNDER THE LANHAM ACT (Against Defendants The Peak Organization, Inc., Peak Counsel, Inc., Peak Discovery, Inc., Richard Eichenberg, Arnold Schlanger, and Michael Dalewitz) 88. Plaintiff repeats and realleges each and every allegation set forth above asthough fully set forth herein. 89. Defendants have, upon information and belief, appropriated in whole or inpart the Performance Metrics Software, and used the same as a service of Defendants,thereby passing off Plaintiffs’ goods and services as the goods and services ofDefendants, in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). 90. Defendants, upon information and belief, have also traded off of thefunctions of the Performance Metrics Software, representing that they had the right to usePlaintiffs’ trade secrets and the operations of the Performance Metrics Software in orderto unfairly compete with Plaintiffs, in violation of Section 43(a) of the Lanham Act, 15U.S.C. § 1125(a). 91. Defendants, in the course of their businesses, have intended by theaforesaid acts to: a) cause likelihood of confusion or misunderstanding as to the origin, 20
  20. 20. sponsorship, or approval of the goods and services of Defendants; and/or b) cause likelihood of confusion or misunderstanding as to Defendants’ affiliation, connection, or association with Plaintiffs; c) represent that Plaintiffs’ goods and services are the goods and services of Defendants; and/or d) represent that Defendants’ goods and services are the goods and services of Plaintiffs; and/or e) engage in other conduct which has similarly created a likelihood of confusion or misunderstanding as to the source of origin of the Performance Metrics Software. 92. Defendants’ use and promotion of the Performance Metrics Softwarecreates a false indication of origin and is calculated to deceive the public into believingthat Defendants are the owners, creators and/or developers of the Performance MetricsSoftware, in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). 93. Plaintiffs have suffered irreparable harm and there is no adequate remedyat law. 94. Unless Defendants are restrained from their wrongful conduct, Defendantswill continue to cause injury to the business and the business reputation of Plaintiffs. 95. Plaintiffs are further entitled to recover from Defendants the damagesPlaintiffs have sustained and will sustain as a direct result of Defendants’ wrongful acts.The amount of such damages cannot be determined at this time. 21
  21. 21. 96. Plaintiffs are further entitled to recover from Defendants the gains, profits,and advantages Defendants have gained as a result of their wrongful acts. Plaintiffs are atpresent unable to ascertain the full extent of the gains, profits, and advantages Defendantshave obtained by reason of their unfair competition and passing off. 97. By reason of the foregoing, Plaintiffs have suffered damages in an amountto be determined at trial, but believed to be in excess of thirty million dollars($30,000,000). 98. Pursuant to Section 35(a) of the Lanham Act, 15 U.S.C. § 1117(a),because of Defendants’ malicious, fraudulent, deliberate and willful misconduct andwrongful acts, Plaintiffs are entitled to an award of treble damages, attorneys’ fees, andexemplary damages. FOURTH CAUSE OF ACTION: BREACH OF CONTRACT (Against Defendants The Peak Organization, Inc., Peak Counsel, Inc., Peak Discovery, Inc., Richard Eichenberg, Arnold Schlanger, and Michael Dalewitz) 99. Plaintiff repeats and realleges each and every allegation set forth above asthough fully set forth herein. 100. Defendants were bound by the Terms and Conditions of their agreementwith Argentto concerning the Performance Metrics Software. 101. In accordance with these contracts, Defendants were only entitled toutilize the Performance Metrics Software with the authorization of Argentto. 102. In accordance with these contracts, Defendants were bound to hold all ofPlaintiffs’ Trade Secrets in strictest confidence. 103. In accordance with these contracts, all rights in and to the works createdwere the property of Plaintiffs. 22
  22. 22. 104. In breach of their contractual obligations, Defendants without Plaintiffs’knowledge or consent have continued to utilize the Performance Metrics Software. 105. In breach of their contractual obligations, Defendants without Plaintiffs’knowledge or consent have continued to use, disclose and/or share with third partiesPlaintiffs’ Trade Secrets. 106. In breach of their contractual obligations, Defendants without Plaintiffs’knowledge or consent have held out the Performance Metrics Software to be their ownproprietary software. 107. The aforesaid acts of Defendants have caused and shall cause ArgenttoSystems damages in an amount not yet fully determined, but believed to be in excess ofthirty million dollars ($30,000,000.00). FIFTH CAUSE OF ACTION: UNJUST ENRICHMENT (Against Defendants The Peak Organization, Inc., Peak Counsel, Inc., Peak Discovery, Inc., Richard Eichenberg, Arnold Schlanger, and Michael Dalewitz) 108. Plaintiff repeats and realleges each and every allegation set forth above asthough fully set forth herein. 109. Defendants’ adoption, reproduction, and/or use of Plaintiffs’ Trade Secretsand confidential and proprietary business information including, among other things,Plaintiffs’ source code and Performance Metrics Software, has unjust enrichedDefendants by depriving Plaintiffs of their profits from the sale or licensing of theirPerformance Metrics Software. 110. Plaintiffs have suffered irreparable harm and damages as a result ofDefendants’ acts and are suffering money damages in an amount not yet fullydetermined, but believed to be in excess of thirty million dollars ($30,000,000). 23
  23. 23. SIXTH CAUSE OF ACTION: CONVERSION (Against Defendants The Peak Organization, Inc., Peak Counsel, Inc., Peak Discovery, Inc., Richard Eichenberg, Arnold Schlanger, and Michael Dalewitz) 111. Plaintiff repeats and realleges each and every allegation contained aboveas though fully set forth herein. 112. The Trade Secrets and confidential and proprietary business informationincluding, among other things, Plaintiffs’ source code and Performance Metrics Software,constitute Plaintiffs’ valuable property. 113. Upon information and belief, Defendants have taken Plaintiffs’ propertyand used it for their own benefit, by means that include, but are not limited to, stealingPlaintiffs’ back-up CD-ROM disks and utilizing the intellectual property containedtherein without authorization, in a business venture that competes with Plaintiffs. 114. By reason of the foregoing, Defendants have converted Plaintiffs’ valuableproperty, and are liable to Argentto Systems in an amount to be determined at trial. SEVENTH CAUSE OF ACTION: TORTIOUS INTERFERENCE WITH CONTRACT AND PROSPECTIVE ADVANTAGEOUS BUSINESS RELATIONSHIPS (Against Defendant Philip Greenberg) 115. Plaintiff repeats and realleges each and every allegation contained aboveas though fully set forth herein. 116. A contract and advantageous business relationship existed betweenArgentto and Hewlett-Packard. 117. A prospective advantageous business relationship existed betweenArgentto and Hewlett-Packard. 118. Defendant Philip Greenberg was and is aware of the business relationshipand prospective business relationship that existed between Argentto and Hewlett Packard. 24
  24. 24. 119. Defendants Philip Greenberg knowingly and intentionally interfered withArgentto’s current and prospective advantageous business relationship with Hewlett-Packard. 120. Defendant’s acts were intentional and carried out for the purpose ofdisrupting Argentto’s current and prospective advantageous relationships with itscustomers. Defendant’s acts were malicious, designed to cause harm to Plaintiffs, andhad no economic justification. 121. As a result of Defendant Philip Greenberg’s intentional interference withPlaintiffs’ contract and prospective advantageous business relationship with HewlettPackard, Plaintiffs have suffered damages in an amount to be determined at trial, butbelieved to be in excess of one million dollars ($1,000,000). EIGHTH CAUSE OF ACTION: UNFAIR COMPETITION (Against All Defendants) 122. Plaintiff repeats and realleges each and every allegation contained aboveas though fully set forth herein. 123. The acts described above constitute unfair competition under New Yorklaw. The acts include, but are not limited to (a) misappropriation of trade secrets; (b)conversion; and (c) tortious interference with contract and prospective advantageousbusiness relationships. 124. Defendants’ acts were and are intentional and carried out for the purposeof competing unfairly with Plaintiffs. 125. Plaintiffs have been damaged by Defendants’ actions and are alsosuffering irreparable harm for which they has no adequate remedy at law. 126. As a direct, proximate and foreseeable result of such unlawful conduct, 25
  25. 25. plaintiffs have suffered money damages in an amount to be determined at trial. JURY DEMAND 127. Plaintiff hereby demands a trial by jury on all issues so triable. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that judgment be entered in theirfavor and against Defendants as follows: 1. Granting Plaintiffs preliminary injunctive relief, as follows: a. Defendants, and all those acting in concert and participation with them, are prohibited from, directly or indirectly, utilizing, divulging, copying, cloning, recreating and/or modifying Plaintiffs’ confidential and proprietary information and/or trade secrets, inc1uding but not limited to Plaintiffs’ source codes and other computer codes, computer programs and software, algorithms, strategic plans, customer information and any and all documents, computer files, computer diskettes, or information that Defendants may have derived from Plaintiffs’ confidential and proprietary information and/or trade secrets, including without limitation, the software currently or formerly identified by Defendants as Peak Review Metrics; and b. Defendants are ordered to preserve and retain, and are enjoined from destroying, deleting, transferring or modifying in any way, all documents, tangible items and information (including information stored electronically), whether in their custody or control or the custody or control of their lawyers, agents, family members, friends, or any other 26
  26. 26. person representing them or acting on their behalf: (i) that relate to Plaintiff or any affiliated entities; or (ii) that otherwise relate to the subject matter of this dispute.2. Granting Plaintiffs the following permanent injunctive relief: a. prohibiting Defendants, and all those acting in concert and participation with them, from, directly or indirectly, utilizing, divulging, copying, cloning, recreating and/or modifying Plaintiffs’ confidential and proprietary information and/or trade secrets, including but not limited to, Plaintiffs’ source codes and other computer codes, computer programs and software, algorithms, strategic plans, customer information and any and all documents, computer files, computer diskettes, or information that Defendants may have derived from Plaintiffs’ confidential and proprietary information and/or trade secrets; including without limitation, the program currently or formerly identified by Defendants as Peak Review Metrics; b. Requiring Defendants to provide immediately to Plaintiffs, the originals and all copies – whether on paper, in computer memory, file, disk or stored on any other kind of medium – of Plaintiffs’ confidential and proprietary information and/or trade secrets in Defendants’ possession, custody, or control, or in the possession, custody or control of their lawyers, agents, family members, friends or any other persons representing Defendants or acting on their behalf; c. Enjoining Defendants from distributing, selling, marketing, 27
  27. 27. licensing, disseminating, transferring, operating, or otherwise utilizing the copyrighted Performance Review Metrics computer program in perpetuity, including any of the source code, components or subsystems of the program; e. Enjoining Defendants from distributing, selling, marketing, licensing, disseminating, transferring, operating, or otherwise utilizing any computer software or program based in whole or in part on Plaintiffs’ confidential and proprietary information and/or trade secrets in perpetuity; f. Enjoining Defendants from interfering with the current and prospective advantageous business relationships between Plaintiffs and its customers; 3. Awarding Plaintiffs damages against Defendants The Peak Organization,Inc., Peak Counsel, Inc., Peak Discovery, Inc., Richard Eichenberg, Arnold Schlanger,and Michael Dalewitz in an amount to be determined at trial, but believed to be not lessthan $30 million, plus punitive damages to punish Defendants for their intentionalmisconduct; 4. Awarding Plaintiffs damages against Defendant Philip Greenberg in anamount to be determined at trial, but believed to be not less than $1 million, plus punitivedamages to punish Defendant Greenberg for his intentional misconduct; 5. Awarding Plaintiffs such statutory, exemplary or punitive damages as theCourt deems just and proper; 6. Awarding Plaintiffs their attorneys’ fees and costs incurred in connectionwith this action; and 28

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