Case 1:17-cv-10943-GAO Document 1 Filed 05/22/17 Page 1 of 22

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

OOYALA, INC. and OOYALA MEXICO, S.

DE R.L. DE C.V.,
Civil Action No. 1:17-cv-10943
Plaintiffs,

v.

RAUL FRANCISCO GARCIA Jury Trial Demanded

DOMINGUEZ, DARIO PEREZ REAL, and Preliminary Injunction Requested
BRIGHTCOVE, INC.

Defendants.

COMPLAINT

Ooyala, Inc. (Ooyala) and its subsidiary Ooyala Mxico, S. de R.L. de C.V. (Ooyala

Mexico) (collectively Plaintiffs), by and through their attorneys, allege the following as and

for their Complaint against Defendants Brightcove, Inc. (Brightcove), Daro Prez Real

(Perez), and Ral Francisco Garca Domnguez (Garcia).

NATURE OF THE ACTION AND SUMMARY OF THE ALLEGATIONS

This is an action for misappropriation of trade secrets brought by Ooyala against

Defendants Brightcove, Daro Prez Real, and Ral Francisco Garca Domnguez. In the final

three months of Defendant Perezs employment as a senior sales executive at Ooyala, and while

he was being courted to join Ooyalas direct competitor Brightcove, Perez surreptitiously sent to

Brightcove a wealth of Ooyalas confidential and trade secret information, including contact

information for key decision makers of current and prospective clients, specific fees and prices

for clients, customized client specifications, expiration and renewal dates for customer contracts,

Salesforce reports containing detailed prospective client intelligence and market analysis,

communications with clients, and meeting dates with prospective and existing clients. The
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misappropriation of trade secrets was coordinated by Defendant Garcia, a former vice president

of Ooyala and current head of Brightcoves Latin America division. Not only did Garcia thank

Perez for the confidential information forwarded directly to his Brightcove email account, but

Garcia also supervised Perez in soliciting Plaintiff Ooyalas current and prospective clients on

behalf of Brightcove, requested that Perez send certain specific client information, and used an

Attack Plan to set up meetings with Ooyalas clientsall while Defendant Perez was still

employed at Ooyala. Defendants willing, deceitful, and malicious use of Ooyalas confidential

information has already resulted in a loss of current and prospective clients as well as contracts

that had to be renewed at lower prices as a direct result of Brightcoves interference. Defendants

have given no indication that they will stop. Accordingly, the Defendants illegal conduct has

caused and continues to cause irreparable harm and damages to Ooyala.

PARTIES

1. Plaintiff Ooyala is, and at all times relevant hereto was, a corporation organized

under the laws of Delaware with its principal place of business in Santa Clara, California.

2. Plaintiff Ooyala Mexico is, and at all times relevant hereto was, a corporation

organized under the laws of Mexico with its principal place of business in Mexico.

3. On information and belief, Defendant Brightcove is a corporation organized under

the laws of Massachusetts with its principal place of business in Boston, Massachusetts.

4. On information and belief, Defendant Perez is a natural person residing in

Mexico.

5. On information and belief, Defendant Garcia is a natural person residing in

Mexico.

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JURISDICTION AND VENUE

6. This court has subject matter jurisdiction pursuant to 28 U.S.C. 1331 because

Plaintiffs are asserting a claim under the Defend Trade Secrets Act of 2016, 18 U.S.C. 1836.

This court has jurisdiction over Plaintiffs state and common law claims pursuant to 28 U.S.C.

1367 because they form part of the same case or controversy as Plaintiffs federal claim.

7. Venue is proper in this Court pursuant to 28 U.S.C. 1391(b) because a

substantial part of the events giving rise to the claims alleged herein occurred in this judicial

district and because Defendant Brightcove is a resident of Massachusetts.

STATEMENT OF FACTS

OOYALA HIRES GARCIA AS HEAD OF LATIN AMERICA AND GARCIA RESIGNS

8. Ooyala is a technology company that provides a proprietary online cloud-based

video platform where clients can publish, monetize, and analyze online video content.

9. Defendant Brightcove is a major competitor of Ooyala. Brightcove also markets

an online cloud-based video platform where clients can publish, monetize, and analyze online

video content.

10. From October 2012 to April 2016, Raul Garcia was Ooyalas Regional Vice

President for Latin America, a senior sales executive position with responsibility for all of

Ooyalas sales and marketing throughout Latin America . As the head of Ooyalas Latin

America division, Garcia had access to some of Ooyalas most proprietary information,

including high-level sales and marketing strategy, proprietary technology and customized

product solutions, customer pricing strategy, client contact lists, customized client specifications,

as well as sales pitch materials for prospective clients.

11. In Section 14 of his Employment Agreement, Garcia acknowledged that as the

Regional Vice President for Latin America, he would have access to confidential information

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including information about Ooyalas clients, and agreed not to use such information even after

termination. Similarly, Section 16 of his Employment Agreement expressly prohibited Garcia

from using or disclosing information concerning the financial results, costs of operation,

strategic plans, and other information not readily available to the public.

12. Under Sections 15 and 18 of the Employment Agreement, Garcia was barred from

soliciting or hiring any Ooyala employee until three years after the date of his termination.

13. In April 2016, Garcia resigned from his position as Regional Vice President for

Latin America..

14. In November 2016, Garcia was hired as General Manager for Brightcoves Latin

America division. On information and belief, he leads all aspects of Brightcoves Latin America

operation, which includes building out a new team in Mexico and opening an office in Mexico

City.

UNBEKNOWNST TO OOYALA, GARCIA CONSPIRES WITH PEREZ TO STEAL

OOYALAS CONFIDENTIAL CLIENT INFORMATION

15. Defendant Dario Perez was a business development manager for Ooyalas Latin

America division from November 2014 through his resignation on February 23, 2017, working

directly under Defendant Garcia (until his termination) overseeing new business development for

Ooyala throughout Latin America. Like Garcia, in this role Perez had access to some of

Ooyalas most proprietary information, including high-level sales and marketing strategy,

proprietary technology and customized product solutions, customer pricing strategy, client

contact lists, customized client specifications, as well as sales pitch materials for prospective

clients.

16. Like Garcia, Perez executed an employment agreement with Ooyala that

prohibited the use or disclosure of any Ooyala confidential information. Furthermore, in Perezs

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Termination Agreement, Perez affirmed his continuing obligation not to circulate to any other

individual or entity . . . any information related to Ooyala Mxico not available to the general

public. Perez expressly agreed that such information included plans, strategies, prospects and

objectives, customer and supplier lists, strategic plans, business plans, marketing plans, and price

lists.

17. However, Ooyala has since discovered that even before resigning from Ooyala on

February 23, 2017, Perez had already signed his employment contract with Brightcove. Ooyala

has also discovered that in the months preceding his resignation, Perez had been conspiring with

Garcia by systematically sending confidential client data to Brightcove and soliciting Ooyalas

current and prospective customers on Brightcoves behalf.

18. For instance, on December 1, 2016, almost immediately after Garcia was hired by

Brightcove to head its Latin America division, Perez sent his resume to Garcias Brightcove

email address. By December 12, 2016, Perez was already sending Garcia communications

between Ooyala and a major prospective client in Argentina. In the forwarded communication,

the prospective clients CIO/CTO asked Ooyala for a proposal, noting that it has been taking

them too long already and that theyre beginning to look for an alternative.

19. On December 15, 2016, Perez sent to his personal email account

darioperez17@gmail.com Ooyala communications with a prospective Brazilian client.On

December 21, 2016, Perez forwarded communications between Ooyala and the CTO of a vendor

and potential referral partner to his personal email account. A few hours later, Perez resent an

updated resume to Garcia. An hour after that, Perez forwarded to Garcia a communication with

the same CTO regarding an upcoming meeting. Referral partners are significant assets in

Ooyalas industry because they help expand the companys regional footprint. This is

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particularly so in Latin America given the vast territory that must be covered. On January 23,

2017, in an email with the subject heading 17, Perez forwarded to Garcia (at Garcias

Brightcove email address) an email attaching a 2017 services renewal agreement between

Ooyala and one of its Peruvian clients. The agreement is marked Confidential and contains,

inter alia, the renewal date and term, services provided, description of all services, unit prices,

and yearly fees for each service.

20. In an email chain spanning from January 26 to January 30, 2017, Perez arranged

an interview with Carrie Walecka, a Boston-based sales and marketing recruiter at Brightcove.

Walecka noted that Garcia shared Perezs resume with her, and that she is working with Garcia

on building out his new team in Mexico.

21. On February 3rd, Perez forwarded to his personal email account (1) a Brightcove

competitive battlecard created by Ooyala to help Ooyala sales employees position Ooyala

against Brightcove with prospective and existing customers; (2) a conversation between Ooyala

and a prospective client attaching an 81-page presentation regarding the prospective clients

needs in terms of volume, length of agreement, and other customized client specifications; and

(3) a separate communication between Ooyala and a prospective client regarding the prospective

clients key requirements for Ooyalas video platform.

22. On February 6th, Perez sent Garcia a detailed report describing eight of Ooyalas

prospects and current clients throughout Latin America, including detailed contact information

with comments like he is the decision maker as well as screenshots and concrete descriptions

of the client projects underway at Ooyala. Garcia replied Goodie Goddie [sic] and praised

Darios report as the standard, noting it was concrete and to the point.

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WHILE PEREZ STILL WORKS FOR OOYALA, GARCIA AND PEREZ USE
OOYALAS CONFIDENTIAL INFORMATION TO SOLICIT CLIENTS ON
BRIGHTCOVES BEHALF

23. On February 7th, while still employed by Ooyala, in an email with the subject

heading 3 Points, Perez sent for Garcias approval a draft of key points for Perez to use when

soliciting clients on behalf of Brightcove. Perez noted to Garcia that he based the draft on

Brightcoves Manifesto and that he would call instead of sending mail. Garcia replied on the

same day thanking Perez and revising the draft of the key points. Garcia noted that they should

confirm as they could with the prospective clients in Brazil and Argentina before the 11th, and

that if the level of the meetings was high enough, he could invite the CEO who had expressed his

desire to travel in Latin America. Garcia also noted that it would be best to call in order to

receive details and validate the information regarding the future meetings.

24. On February 10th, Perez forwarded to his personal email account a

communication between Ooyala and a prospective Argentinian client, in which Ooyala and the

prospective client scheduled a training and demonstration of Ooyalas product.

25. On February 13th, Perez forwarded to his personal email account a

communication with a prospective Ooyala client in which they attempt to schedule a meeting.

On the same day, in an email with the subject heading Plan, Perez sent Garcia a detailed plan

including the contacts, numbers, and Action Items regarding the status of planned Brightcove

meetings with five of Ooyalas prospective Brazilian clients and four of Ooyalas prospective

Argentinian clients that were scheduled tentatively from March 6-10. The Action Items

included tasks for both Perez or Garcia, noting which clients had yet to be contacted and which

had already been contacted.

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26. On February 14th, Perez sent to his personal email account internal Ooyala

communications that (1) include a link to a Salesforce Report likely containing extensive data

regarding opportunities jointly pursued by Ooyala and one of its major strategic partners, and (2)

attaches a sample customer presentation slide deck. Salesforce reports contain detailed

intelligence about Ooyalas prospective clients as well as the analysis that provides the basis for

Ooyalas quarterly market strategies, including what stage the negotiations for each opportunity

in the pipeline are at (ranging from Stage 1 Discovery, Stage 2 Qualification, Stage 3 Evaluation,

Stage 4 Selection, and Stage 5 Negotiation / Contract), the employee responsible for bringing in

the opportunity, the client specifications for product lines, the close date, and detailed pricing

information. The major strategic partner is also a key draw for Ooyalas current and prospective

clients, and provides an immense competitive advantage for Ooyala.

27. On February 15th, Perez updated Raul on the status of an upcoming meeting with

one of Ooyalas prospective Argentinian clients, noting that he had talked to their IT manager to

schedule the meeting. Perez reported that the IT manager did not know BC and asked to send

him an email with information of who they are and what they do. Garcia replied the same day

with the single word perverso (a slang term for cool). Later that night, Garcia emailed one

of Ooyalas prospective Panama clients, whose contact information Perez had screenshotted and

sent to Garcia previously on February 6th.

28. In an email chain spanning from February 15 to February 21, 2017, with the

subject heading CONGRATULATIONS!!, Brightcove Recruiter Carrie Walecka congratulates

Perez for joining Brightcove and Perez signs contracts with Brightcove.

29. On February 16th, Perez sent an email updating the Plan with two additional

prospective Ooyala clients, one based in Argentina and the other based in Mexico. In the action

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items, Perez defers to Garcia as to how to approach the prospective Mexican client, but notes that

they are looking to start only with OVP (the equivalent of Backlot) and then evolve into a

hybrid model with ads and SVOD. The same day, Perez forwarded to his personal email

account Ooyalas Salesforce details on both the prospective clients as well as Ooyalas plans to

conduct a regional roadshow through Argentina, Ecuador, Colombia, Brazil, Mexico, Chile, and

Peru.

30. On February 20th, Perez forwarded Garcia an email from a Brazilian Ooyala

client noting that the client was organizing itself to release a test within two weeks, and sent

Garcia a separate email discussing plans to contact five Ooyala prospective clients. On the same

day, Garcia sent a solicitation email (copying Perez) to one of the five prospective Ooyala

clients, and arranged a meeting with the client. Perez also forwarded to his personal email

account (1) an internal Ooyala communication regarding a lead on a prospective Ooyala client

that includes contact information and what the prospective client is looking for, and (2) a

separate Ooyala internal communication in which Ooyalas Director of Strategic Accounts

Daniel Conde provides insight into the customized customer preferences of a prospective

Brazilian client.

31. On February 21st, in an email with the subject heading Jamaica Lead, Perez

sent to his personal email account a communication to Ooyala from a prospective Ooyala client

in Jamaica asking for the cost and requirements for certain video specifications. On the same

day, Perez sent Garcia a screenshot of Ooyalas Salesforce report with detailed contact

information for one of Ooyalas clients, including thirty contacts with descriptions of job titles,

emails, and phone numbers. Perez acknowledged the email, writing Cool.

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32. On February 22nd, Perez sent Garcia a request for proposal to Ooyala sent by one

of Ooyalas prospective Colombian clients which Brightcove had not been invited to participate..

Later that day, Perez forwarded to his personal email account a handbook on Ooyalas upcoming

sales kick-off conference, which identified every employee that would be attending the

conference by first and last name and included the dates of arrival and departure.

33. On February 23rd, Perez sent Garcia contact information and a greeting template

for the Chief Engineer of one of Ooyalas prospective Brazilian clients, and directed Garcia on

what to say to him. The contact information was the same information contained in the email

Perez had forwarded to his personal account three days earlier, in which Daniel Conde, Ooyalas

Director of Strategic Accounts, provided contact information for the Chief Engineer as well as

insight into what the client was looking for. Garcia followed up with an email to the Chief

Engineer an hour later, largely following the template Perez had provided.

34. On February 23rd, Perez resigned from Ooyala and signed a termination

agreement. Perez had previously told Patricio Cummins, the current Regional Vice President of

Latin America, that he would be leaving to work for Amazon Web Services. The day before

Perez left, Cummins asked Perez directly whether he would be leaving for Brightcove, and Perez

again denied it, saying everything was in limbo.

35. On February 25th, two days after Perezs termination, Perez sent Garcia a list of

five of Ooyalas prospective Argentinian clients and one of Ooyalas prospective Brazilian

clients. Garcia replied the same day by asking him to schedule meetings on March 13th and the

15th.

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OOYALA HAS BEEN, AND WILL BE, SEVERELY HARMED BY DEFENDANTS

MISAPPROPRIATION OF OOYALAS CONFIDENTIAL TRADE SECRET
INFORMATION

36. The theft of the client information stolen by Garcia, Perez, and Brightcove has

caused, and will continue to cause irreparable harm to Ooyala. Identifying, acquiring, and

cultivating new client relationships in this market is often an arduous business development and

negotiation process, requiring substantial investment of Ooyalas capital and resources, including

the time, effort, and expertise of Ooyala professionals. Ooyala markets its internet video

software solutions to large media-based corporations throughout Latin America. The typical

sales cycle in Latin America from first contact with a potential customer to closing the sale is

longer than in the U.S. or other regions, and averages up to nine months. During that time,

Ooyala goes through a long process of meetings with the potential client, learning who at the

client are the right decisionmakers, creating personal relationships with those decisionmakers,

learning how their business works and how Ooyalas solutions can better serve their businesses,

and educating them regarding Ooyalas software solutions. Ooyala makes similar substantial

investments to maintain its existing client relationships.

37. Ooyala goes to great lengths to protect its confidential and trade secret customer

information. Over the years, Ooyala has developed closely-guarded customer lists, customer

contact information, client pitches, slide decks, trade show materials, product development

roadmaps, pricing methods, sales and marketing plans, and corporate strategies. Ooyala

maintains the information in secure databases that contain a wealth of proprietary information.

38. To protect its proprietary customer, prospective customer, and product and

services information, Ooyala requires its employeesincluding Perez and Garciato agree to

keep such information confidential in their employment and termination agreements, maintains

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an up-to-date information security policy that is published on Ooyalas internal wiki, and

commission annual third party independent audits of Ooyalas security and confidentiality

controls, which are made available to Ooyalas customers.

39. Perez and Garcia were also subject to the policies in Ooyalas Employee

Handbook, which require them to avoid revealing confidential information about Ooyala, its

suppliers, [and] its customers unless it is necessary to do so in the performance of their duties.

The Handbook further limits confidential information to a need-to-know basis and notes that

all access to confidential information must be authorized by the employees supervisor.

40. Ooyalas confidential and trade secret customer information is particularly

valuable to a major competitor like Brightcove, who offers similar products and services and

competes with Ooyala for the same customers. By stealing the business intelligence Ooyala

gathered on our potential clientsincluding the names and contact information of the key

potential clients, the key decisionmakers at those clients, the client needs, as well as the proposed

deal terms and pricing that Ooyala is pitching to those clientsBrightcove is able to shave

months off the typical sales cycle and undercut Ooyalas prices with its major potential new

clients. Loss of such business will cause irreparable harm to Ooyala.

41. Ooyala has already lost one account to Brightcove, as well as several contracts

that were required to be renewed at a lower average contract value to counteract Brightcoves

misappropriation of Ooyalas confidential and trade secret information. In addition, multiple

prospective clients have stopped responding to Ooyalas communications following Brightcoves

systematic misappropriation of Ooyalas trade secret information.

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OOYALA ALERTS BRIGHTCOVE OF MISAPPROPRIATION BUT BRIGHTCOVE

CONTINUES ITS SOLICITATION AND PRAISES GARCIA IN RECENT PRESS
RELEASE AND EARNINGS CALL

42. On March 1, 2017, shortly after discovering Perezs conspiracy with Garcia,

Ooyala sent a cease and desist letter to Brightcove notifying the company of possible legal action

and detailing the illegal conduct of Perez and Garciaincluding the fact that Perez had

scheduled imminent meetings on behalf of Brightcove

43. Ooyala believed that Brightcoves internal investigation would be quick and

straightforward given the severity of the trade secret misappropriation, the short timeframe of the

emails, and the fact that the emails were sent directly to and from Garcias Brightcove email

address. Cease and desist letters written in Spanish were sent to Garcia and Perez on March 8th

and March 9th, respectively.

44. However, thirty days later, Brightcoves counsel called Ooyalas counsel and

claimed that they were handicapped by the fact that they did not know when the communications

occurred as well as the fact that most of the communications were in Spanish.

45. Upon information and belief, Brightcove did not stop the impending meetings

arranged with use of Ooyalas trade secrets. When Ooyala conducted their long-planned trip to

solicit their prospects in Brazil and Argentina, they found that many of the same prospects had

already been approached by Brightcove, often times just days before. One prospective client

expressed surprise that Ooyalas slide deck was so similar to Brightcoves. All of these

meetings, as well as Ooyalas sales decks, were known by Perez and part of the confidential

information he misappropriated on Brightcoves behalf.

46. In the month and a half since Brightcoves last contact, Brightcove has not

indicated any sign of further investigation into the illegal activity. Rather, Brightcove released a

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press release on April 19, 2017, titled Brightcove Grows Presence and Investment in Latin

America, in which Brightcove announced key customer wins as well as the addition of local

team members in Latin America to accelerate its growth in the region. The press release quoted

Garcia, who stated that Brightcove has been expanding its presence in Latin America and

bringing on new customers.

47. Furthermore, on May 4, 2017, Brightcoves CEO David Mendels told investors

on Brightcoves quarterly earning call that their Latin America presence is off to a good start,

that they are pursuing a number of significant deals in the region, that theres a lot of good

sales activity, and that the pipeline looks good.

48. Ooyala developed its prospective contacts, pricing, and customer information at

great expense and time. Defendants continued exploitation of Ooyalas stolen trade secrets has

caused and will continue to cause severe and irreparable harm to Ooyala. With this action,

Ooyala seeks to prevent any further use of Ooyalas confidential and trade secret information,

and obtain compensation for its damages and for Defendants unjust enrichment resulting from

their unlawful conduct.

Count I
Violation of the Defend Trade Secrets Act of 2016 (18 U.S.C. 1836)
(Brightcove, Perez, Garcia)

49. Ooyala incorporates by reference the foregoing paragraphs.

50. Ooyala owns and possesses client information constituting confidential and trade

secret information, as alleged above.

51. Ooyala took reasonable steps to protect and maintain the secrecy of its trade

secrets, including requiring its employeesincluding Perez and Garciato agree to keep such

information confidential in their employment and termination agreements, maintaining an up-to-

date information security policy that is published on Ooyalas internal wiki, commissioning

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annual third party independent audits of Ooyalas security and confidentiality controls, which are

made available to Ooyalas customers, and noting the employees obligations to keep

confidential information on a need-to-know basis in Ooyalas Employee Handbook

52. Ooyalas misappropriated confidential and trade secret information relates to

products and services used, sold, shipped, and/or ordered in foreign commerce. Ooyalas trade

secrets derive independent economic value from not being generally known to, and not being

readily ascertainable through proper means by, another person who could obtain economic value

from the disclosure or use of the information.

53. Defendants Perez and Garcia have, through improper meansincluding, but not

limited to, breaching confidentiality covenants each executedused and/or disclosed Ooyalas

confidential and trade secret information in an effort to lure clients away from Ooyala and obtain

their business, in direct violation of their express obligations.

54. Defendant Garcia was acting within the scope of his employment and Defendant

Brightcove received the benefit of the misappropriation. In addition, based on Defendant

Garcias position as General Manager of Brightcoves Latin America division as well as the

cease and desist letter sent to Brightcoves CEO David Mendels, Brightcove knew or should

have known of the misappropriation.

55. As a direct and proximate result of Defendants conduct, Ooyala has suffered and,

if Defendants conduct is not stopped, will continue to suffer, severe competitive harm,

irreparable injury, and significant damages. Ooyalas business operates in a competitive market

and will continue suffering irreparable harm absent injunctive relief.

56. Defendants misappropriation of Ooyalas trade secrets was willful and malicious,

and is entitled to an award of exemplary damages and attorneys fees.

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Count II
Massachusetts Trade Secret Misappropriation (M.G.L. c. 93, 42)
(Brightcove, Perez, Garcia)

57. Ooyalas re-alleges and incorporates by reference the foregoing paragraphs.

58. Ooyala owns and possesses client information constituting confidential and trade

secret information, as alleged above.

59. Ooyala took reasonable steps to protect and maintain the secrecy of its trade

secrets, including requiring its employeesincluding Perez and Garciato agree to keep such

information confidential in their employment and termination agreements, maintaining an up-to-

date information security policy that is published on Ooyalas internal wiki, commissioning

annual third party independent audits of Ooyalas security and confidentiality controls, which are

made available to Ooyalas customers, and noting the employees obligations to keep

confidential information on a need-to-know basis in Ooyalas Employee Handbook

60. Ooyalas confidential and trade secret information derives independent economic

value from not being generally known to, and not being readily ascertainable through proper

means by, another person who could obtain economic value from the disclosure or use of the

information.

61. Defendants Perez and Garcia have, through improper meansincluding, but not

limited to, breaching confidentiality covenants each executedused and/or disclosed Ooyalas

confidential and trade secret information in an effort to lure clients away from Ooyala and obtain

their business, in direct violation of their express obligations.

62. Defendant Garcia was acting within the scope of his employment and Defendant

Brightcove received the benefit of the misappropriation. In addition, based on Defendant

Garcias position as General Manager of Brightcoves Latin America division as well as the

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cease and desist letter sent to Brightcoves CEO David Mendels, Brightcove knew or should

have known of the misappropriation.

63. As a direct and proximate result of Defendants conduct, Ooyala has suffered and,

if Defendants conduct is not stopped, will continue to suffer, severe competitive harm,

irreparable injury, and significant damages. Ooyalas business operates in a competitive market

and will continue suffering irreparable harm absent injunctive relief.

Count III
Unfair or Deceptive Trade Practices (M.G.L. c. 93A, 11)
(Brightcove, Perez, Garcia)

64. Ooyala re-alleges and incorporates by reference the foregoing paragraphs.

65. At all times relevant to this action, Ooyala has been engaged in trade or

commerce within the meaning of M.G.L. c. 93A, 11.

66. Defendants Garcia and Perez have, through improper meansincluding, but not

limited to, breaching confidentiality covenants each executedconspired to use and actually

used Ooyalas confidential and trade secret information in an effort to lure clients away from

Ooyala and obtain their business for Brightcove, in direct violation of their express obligations.

Defendant Garcia was acting within the scope of his employment and Defendant Brightcove

received the benefit of the misappropriation.

67. Based on Defendant Garcias position as General Manager of Brightcoves Latin

America division as well as the cease and desist letter sent to Brightcoves CEO and received by

Bright Coves General Counsel, Brightcove knew or should have known of the misappropriation.

68. Upon information and belief, Brightcove knowingly and willingly continued to

use Ooyalas confidential information to solicit Ooyalas current and prospective clients even

after receiving the cease and desist letters.

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69. Further, approximately 50 days after receiving Ooyalas cease and desist letter,

Brightcove published a press release announcing its and Defendant Garcias success in the Latin

America region. Approximately 60 days after receiving Ooyalas cease and desist letter,

Mendels told his investors in an earnings call that there was a good pipeline of prospects in the

Latin America region.

70. As a direct and proximate result Defendants willful and knowing use of Ooyalas

trade secrets, Ooyala has suffered and will continue to suffer substantial and irreparable harm

and other damages, including, but not limited to, loss of current and prospective sales, loss of

profits, loss of reputation, and loss of value of trade secrets. Accordingly, Ooyala is entitled to

an award of treble or double damages and attorneys fees.

Count IV
Breach of Contract
(Garcia)

71. Ooyala re-alleges and incorporates by reference the foregoing paragraphs.

72. Ooyala and Defendant Garcia entered into a valid, enforceable Employment

Agreement in October 2012.

73. The Employment Agreement expressly prohibited Defendant Garcia from hiring,

attempting to hire, soliciting, or attempting to induce any Ooyala employee from terminating

their employment until April 2019.

74. Defendant Garcia breached the non-solicitation provision of the Employment

Agreement when he hired Defendant Perez in or around February 2017 to work at Defendant

Brightcove.

75. Defendant Garcia acknowledged in his Employment Agreement that he would

have access to confidential information including information about Ooyalas clients, and agreed

not to use such information even after termination. Additionally, Garcias Employment

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Agreement expressly prohibited him from using or disclosing information concerning the

financial results, costs of operation, strategic plans, and other information not readily available to

the public.

76. Defendant Garcia breached his express obligations in the Employment Agreement

not to disclose or make use of confidential information by using the confidential information of

Ooyala clients to obtain business for Defendant Brightcove.

77. Ooyala performed all obligations to Defendant Garcia under the Employment

Agreement.

78. Defendant Garcia failed to perform his obligations to Ooyala under the

Employment Agreement.

79. As a result of Defendant Garcias breaches of his contractual obligations under

the Employment Agreement to Ooyala, Ooyala has been and will continue to be irreparably

damaged.

Count V
Breach of Contract
(Perez)

80. Ooyala re-alleges and incorporates by reference the foregoing paragraphs.

81. Ooyala and Defendant Perez entered into a valid, enforceable Employment

Agreement in November 2014, and a valid, enforceable Termination Agreement in February

2017.

82. Defendant Perez executed an employment agreement with Ooyala that prohibited

the use or disclosure of any Ooyala confidential information. Perez acknowledged and

reaffirmed that his non-disclosure obligation continued past his termination date in his

Termination Agreement.

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83. Defendant Perez breached his express obligations in the Employment Agreement

and Termination Agreement not to disclose or make use of confidential information by using the

confidential information of Ooyala clients to obtain business for Defendant Brightcove.

84. Ooyala performed all obligations to Defendant Perez under both agreements.

85. As a result of Defendant Garcias breaches of his contractual obligations to

Ooyala, Ooyala has been and will continue to be irreparably damaged.

Count VI
Tortious Interference
(Brightcove, Perez, Garcia)

86. Ooyala re-alleges and incorporates by reference the foregoing paragraphs.

87. Ooyala had advantageous business relationships with clients and prospective

clients solicited by Defendants.

88. Defendants Brightcove, Perez, and Garcia knew that Ooyala had advantageous

business relationships with these clients and prospective clients.

89. Defendants knowingly and intentionally interfered with Ooyalas business

relationships for an improper purpose and by improper means.

90. Defendants Garcia and Perez knowingly and intentionally violated their express

confidentiality restrictive covenants by systematically misappropriating and using Ooyalas

confidential trade secret information.

91. Based on Defendant Garcias position as General Manager of Brightcoves Latin

America division as well as the cease and desist letter sent to Brightcoves CEO and received by

Bright Coves General Counsel, Brightcove knew or should have known of the misappropriation.

92. Upon information and belief, Brightcove knowingly and intentionally continued

to use Ooyalas confidential information to solicit Ooyalas current and prospective clients even

after receiving the cease and desist letters.

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93. As a direct and proximate result Defendants tortious interference, Ooyala has

suffered and will continue to suffer substantial and irreparable harm and other damages,

including, but not limited to, loss of current and prospective sales, loss of profits, loss of

reputation, and loss of value of trade secrets.

Prayer for Relief

WHEREFORE, Ooyala prays for the following relief:

A. Entry of a permanent injunction prohibiting (1) Defendants Brightcove, Garcia,

and Perez from using Ooyalas confidential and trade secret information; (2) Defendant

Brightcove from employing Garcia and Perez; and (3) Defendant Brightcove from

communicating with any clients for whom it has unlawfully accessed Ooyalas confidential and

trade secret information;

B. Entry of an award of damages to Ooyala, including actual damages and any

profits Brightcove, Garcia, and Perez have achieved as a result of this misappropriation and

tortious interference with its contractual relations;

C. Treble damages as a result of the willful and malicious conduct of Defendants

Brightcove, Garcia, and Perez;

D. Pre-judgment interest for any damages awarded;

E. The costs of suit occurred herein;

F. Ooyalas attorney fees reasonably expended in this action; and

G. Such other and further relief as the Court deems just and appropriate under the

circumstances.

Jury Trial Demanded

Pursuant to Federal Rule of Civil Procedure 38(b), Ooyala demands a trial by jury on all

of the claims so triable.

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Dated: May 22, 2017 Respectfully submitted,

/s/ William J. Trach

William J. Trach (BBO# 661401)
william.trach@lw.com
Steven J. Pacini (BBO# 676132)
steven.pacini@lw.com
LATHAM & WATKINS LLP
200 Clarendon Street
Boston, MA 02116
Telephone: (617) 948-4516
Facsimile: (617) 948-6001

Attorneys for Ooyala, Inc. and Ooyala Mexico S. de

R.L. de C.V.

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