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Software Over-Deployment Case Headed to Mediation

Monday, January, 22, 2018

TIBCO Software and GAIN Capital Group have decided to use mediation to resolve their dispute after a California Norther District Court judge sided with the latter and dismissed some of the claims brought by TIBCO.  It seems both parties are optimistic the dispute can now be resolved out of the courtroom.


TIBCO’s original complaint claims breach of contract, breach of implied covenant of good faith and fair dealing, and copyright infringement against GAIN regarding the company’s alleged over-deployment of certain products.


In May 2016, TIBCO notified GAIN that it would audit the company’s compliance regarding its use of license, and then hired KPMG to do the audit in late summer of that year.  KPMG determined GAIN had over-deployed TIBCO software.


GAIN moved for dismissal of the action and disputed TIBCO’s claims.  The company stated it had met its pleading burden for two breach of contract claims, and the copyright infringement and good faith and fair dealing claims were “fatally deficient”.


That December, the court sided with GAIN and dismissed the copyright infringement and breach of implied covenant of good faith and fair dealing claims, giving TIBCO time to file an amended complaint.


Most recently, both parties have notified the court they will participate in a private mediation session on January 30th, extending TIBCO’s deadline to file the amended complaint.  They also agreed to continue the Case Management Conference on January 18th, but reschedule it to March 8th instead.  Both sides believe a resolution could be reached in the upcoming mediation and that further action by the court might not be necessary.