Peak Organization Defendants

information, passing-off under the Lanham Act, unfair competition, unjust enrichment,

conversion, breach of contract, and tortious interference with Plaintiffs’ contractual

relations.

2. As explained more fully below, Plaintiffs developed unique and

specialized software designed to track, report, and provide metrics for the performance of

document reviewers in large e-discovery projects, which they licensed to Defendants for

the period August 2007 to June 2008 (the “Performance Metrics Software”). Plaintiffs

duly obtained a federal copyright registration for the Performance Metrics Software.

During Defendants’ business relationship with Plaintiffs, the Performance Metrics

Software became central to Defendants’ efforts to promote their temporary legal staffing

and e-discovery services to law firms and other consumers of e-discovery and legal

staffing services. The unique Performance Metrics Software gave Defendants the ability

to win business away from other e-discovery or legal staffing providers who could not

offer the same performance metrics capabilities.

3. After stealing a case of CD-ROMs containing the source code for

Plaintiffs’ proprietary software, Defendants terminated their relationship with Plaintiffs,

and are currently utilizing the Performance Metrics Software without any authorization or

license. Upon information and belief, during the nine-month period that Defendants have

utilized the Performance Metrics Software without authority, they have profited in the

amount of at least $28 million – all built on Plaintiffs’ innovative software and their

proprietary trade secrets.

2

PARTIES, JURISDICTION AND VENUE

4. Plaintiff Argentto Systems, Inc. (“Argentto”) is a software development

company with its principal place of business in New York, New York.

5. Plaintiff Nick Santino is the President of Argentto and its principal

software developer. Mr. Santino resides in New York, New York.

6. Defendant The Peak Organization, Inc. is a domestic corporation with its

principal place of business located in New York, New York.

7. Defendant Peak Counsel, Inc. is a domestic corporation with its principal

place of business located in New York, New York.

8. Defendant Peak Discovery, Inc. is a domestic corporation with its

principal 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 and

President of The Peak Organization, Inc. On information and belief, Mr. Eichenberg

resides in New York, New York.

10. Defendant Arnold Schlanger is the President of Peak Counsel, Inc. On

information and belief, Mr. Schlanger resides in New York, New York.

11. Defendant Michael Dalewitz is the President of Peak Discovery, Inc. On

information and belief, Mr. Dalewitz resides in New York, New York.

12. Defendant Philip Greenberg is the President of Peak Systems, Inc., a

subsidiary of Defendant The Peak Organization, Inc. On information and belief, Mr.

Greenberg resides in Palisades, New York.

3

13. The Court has subject matter jurisdiction over this action pursuant to 28

U.S.C. §§ 1331, 1338(a), and 1367. Plaintiffs allege claims for copyright infringement

arising under the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq., passing-off and unfair

competition under the Lanham Act, 15 U.S.C. § 1125(a), and for related common law

and state law claims of misappropriation of Plaintiffs’ trade secrets and other confidential

information, unfair competition, unjust enrichment, conversion, breach of contract, and

tortious 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, and

Defendants may be found in this District.

FACTUAL BACKGROUND

15. Nick Santino founded Argentto in 2001. Argentto is a software

development and consulting company that develops, customizes and provides computer

software solutions to businesses ranging from law firms to investment banks to computer

manufacturers. Argentto offers a full suite of software programs, from accounting

enterprise systems, to oil trading software platforms, securities portfolio management

software, legal case management software, and various interactive web applications. In

addition, Argentto provides information technology (“IT”) consulting and support

services to its clients.

16. As a leading developer of software based on proven Microsoft

technologies, Argentto has developed unique intellectual property unparalleled in its

industry, including multi-company accounting software that permits entities with multiple

business units to consolidate their general ledgers into a single database, investment

4

portfolio management software, and interactive web-based job posting software that

integrates the needs of job candidates, staffing services, and potential employers.

Argentto has applied for and/or obtained copyright registrations for these and other

software 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-discovery

industry had been able to find a solution to the problem of quality control and efficiency

management in the context of litigation discovery document review, Argentto developed,

with the investment of considerable expense and programmer time, a unique and

proprietary 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. The

Performance Metrics software enables supervisors to manage effectively the progress,

accuracy, and efficiency of individual reviewers and the review team as a whole. The

metrics 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, second

and QC level; (10) additional tags added at the first-level review; (11) document review

costs at issue level.

19. The Performance Metrics software (1) is platform agnostic, meaning it can

be used on any document review platform; (2) enables a user to manage multiple projects

5

simultaneously; (3) is web-based, so it is easy to use and secure; (4) has customizable

expense reporting; and (5) provides graphical displays of individual as well as group

performance.

20. With the Performance Metrics software supervisors can (1) access a

consolidated history of individual reviewer skills for use on future projects; (2) identify

under-performing reviewers; (3) identify inaccurate coders; (4) share performance data

with the review team, providing an incentive to achieve; and (5) export data into

spreadsheets 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 viewing

the software, exclaimed that that law firm had been trying for seven years, without

success, to create this document review management and metrics functionality. Although

it is based on proven Microsoft technologies such as the SQL Server 2005 database

software and the .NET programming language and framework, the user interface, data

algorithms, data tables, drivers, and database structure of the Performance Metrics

Software consist of numerous original constituent elements. It contains over 950,000

lines of software source code. Over 6,000 hours of Argentto programmer time, over a

period of 28 months, were required to write the Performance Metrics Software.

22. Nick Santino obtained a U.S. Copyright Certificate of Registration for the

Performance Metrics Software, Registration Number TX 6-901-797 (“Legal Review

Metrics”), effective December 3, 2007. A copy of this Certificate of Registration is

attached hereto as Exhibit A. Argentto is the exclusive licensee of the Performance

Metrics Software.

6

ARGENTTO’S EFFORTS TO PROTECT THE PERFORMANCE METRICS
SOFTWARE TRADE SECRET

23. Argentto maintains the confidentiality of its trade secrets, including its

proprietary source code, in many ways.

24. First, all Argentto employees and contractors are required to sign strict

confidentiality and non-disclosure agreements.

25. Second, Argentto’s programmers who develop, test, maintain and upgrade

its source code are the only individuals at Argentto who have access to the source code

through password-protected computers. Argentto provides each programmer with a user

name and password without which the programmer cannot access the system on which

the source code resides. Only Nick Santino, the company’s president, has the password

to directly access the server containing and running the Performance Metrics Software

source code.

26. Third, Argentto programmers are prohibited from working on Argentto

software, including the source code, outside the office. At the office, Argentto

programmers are permitted access only to their own workstations and computers.

27. Fourth, Argentto’s offices, including the servers on which its software

source code resides, are locked, secured, and protected by guard dog.

28. Finally, while Argentto provides its actual and prospective customers and

licensees 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 licensee

requires such access for daily use, absolutely no one other than Argentto’s own computer

programmers has access to the source code embodying that software.

7

29. The Performance Metrics Software source code was always maintained

and run on servers belonging to Argentto. Neither Peak nor any third party was ever

permitted 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 in

1970. Beginning as a staffing agency for internal audit personnel, Peak now comprises

thirteen operating divisions providing staffing services and technological solutions to the

accounting, legal, IT, marketing, and other industries.

31. Although Peak had been in existence for decades, its accounting systems

and other IT systems were in a shambles as late as 2001. Peak had clearly outgrown its

internal IT capability. For example, even though Peak had invested hundreds of

thousands of dollars in its accounting systems over the years, it still did not have a means

to write accounts-payable checks to clients.

32. In 1999, Peak attempted to enter the burgeoning e-discovery field in

complex litigation with a new subsidiary called Peak Document Solutions. This effort

failed miserably, and was ended in 2000.

33. In June 2002, Peak engaged Argentto to provide one of Argentto’s

existing software solutions for accounts payable, general ledger, and certain other

accounting functions. With the success of these first initiatives, Peak then requested that

Argentto provide software for accounts receivable, payroll, and additional accounting

functions. In January 2003, Argentto provided a “live payroll” software system, finally

bringing Peak’s payroll capabilities into the 21st century. Argentto consistently provided

this software ahead of schedule and under budget.

8

34. Argentto’s accounting systems, including its innovative “multi-company”

system permitting consolidation of the accounting for Peak’s multiple divisions, were

proprietary and unique. Argentto ran the accounting software, and maintained the “data

tables” for the underlying databases, on its own servers.

35. In the summer of 2003, Nick Santino, the president of Argentto, realized

that Peak was still using paper time slips and fax machines to keep track of the hours its

temporary employees were working; this system caused Peak’s billing, accounting, and

payroll functions to be slow, disconnected, and inefficient. Mr. Santino began

developing a “beta” version of a web-based solution for timecard entry and approval.

Despite Defendant Eichenberg’s apprehension, Argentto demonstrated the beta system

and 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 client

companies, to report and approve hours using a web-based interface catapulted Peak to a

leading position among staffing services. Because of the strong promotional benefit of

this innovative software solution, Santino was asked to accompany Peak executives in

sales calls to prospective clients. In numerous instances, new staffing client companies

cited Peak’s web-based timecard entry and approval system as the primary reason for

their choosing Peak for their staffing needs.

36. On information and belief, over the course of the time period from 2002 to

2006, Peak’s revenues grew from approximately $18 million in annual revenues (with a

net loss over $1 million) to approximately $24 million in revenues.

37. In 2004, Peak engaged Argentto’s consulting capacity to manage its entire

network, including e-mail. Peak asked Nick Santino, the president of Argentto, to

9

become an “outsourced CIO” (chief information officer).

38. In late 2005, Mr. Santino proposed that Peak add to its website Argentto’s

web-based staffing software, which would allow potential job candidates to post

availability and check listings, staffing companies (such as Peak or Monster.com) to post

listings and monitor needs, and potential client companies to post needs and check on job

candidates. Peak adopted Argentto’s web application, which became hugely popular

with 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 was

to become successful in the rapidly growing e-discovery field, which Peak had previously

tried and failed to do. Peak sought to re-launch its efforts with a new e-discovery

subsidiary, Defendant Peak Discovery, Inc. Peak intended to sell its e-discovery services

alongside the temporary legal staffing services offered by its existing subsidiary Peak

Counsel, 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 the

performance of document review, to measure individual reviewers’ and teams’ accuracy,

speed and efficiency. To an engineer like Santino, the significant variability in these

areas was a major flaw in the cost-efficiency of the entire e-discovery and document

review process.

41. Argentto then independently embarked upon development of the

Performance Metrics Software. When Santino demonstrated a “beta” version of the

software to Eichenberg in early 2007, Eichenberg was enthusiastic.

42. Argentto entered into an agreement with Peak for the use of Argentto’s

10

Performance Metrics Software. The agreement was reflected in the “Terms and

Conditions” printed on each and every invoice provided by Argentto to Peak in

connection with the Performance Metrics Software.

43. Section 5.1 of the Terms and Conditions of the agreement between

Argentto 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. Client's rights may not be
transferred except to a successor in interest of Client's
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, Client's 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

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 Client's 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 agreement

between Argentto and Peak. As set forth in the Terms and Conditions and agreed

between the companies, all intellectual property and proprietary trade secret rights to the

Performance Metrics Software belonged to Argentto, and Peak’s license to use the

software was expressly contingent on Argentto’s authorization.

47. In January 2008, without Plaintiffs’ prior knowledge or pre-approval, Peak

announced that it was offering the Performance Review Software as its “proprietary

software tool,” “Peak Review Metrics,” which formed the centerpiece of its e-discovery

and temporary legal document reviewer staffing services. Indeed, in Peak’s promotional

materials, the “Performance and Accuracy Metrics” software was frequently listed as the

most important benefit of engaging Peak to provide document review and e-discovery

services. Peak demonstrated the Performance Review Software at the annual American

Bar Association LegalTech event in February 2008, and utilized these demonstrations to

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 Performance

Review Metrics software in sales calls to prospective clients. Numerous potential clients

commented that they had never seen this capability offered by any e-discovery or legal

staffing provider. The performance metrics software gave Peak a unique edge in the e-

discovery and legal staffing markets, and Peak received numerous engagements based on

potential clients’ interest in the software’s capabilities. On information and belief, during

the 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 the

Performance Metrics Software that Peak claimed to own.

49. On information and belief, between 2006 and 2007, Peak’s revenues grew

from 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 Argentto

and steal its software as early as November 2007. On November 27, 2007, a Peak

executive wrote to Eichenberg, “There are many developers out there that could reverse

engineer what [Santino] has written especially if you have the source code and even if

you don't it can be done.”

51. The relationship between Peak and Argentto began to unravel in the spring

and summer of 2008.

52. In May 2008, Santino was working on a project late in the evening at

13

Peak. When he left the office in the evening, he accidentally left behind a flashlight, a

screwdriver, and a CD case with several CD-ROMs containing, among other files, the

source code for the Performance Metrics Software.

53. The next day, the items were not where Santino left them. When Santino

inquired about the location of his property, the flashlight and screwdriver were returned

to him, but the CD case was not. Santino made numerous inquiries, but the CD case and

the CD-ROMs within were never returned to him.

54. Shortly thereafter, in June 2008, Peak purported to terminate Argentto’s

services, and Santino was removed from his position as “outsourced CIO.”

55. At the time of the termination, Peak owed Argentto $30,000 in fees for

consulting and network administration services.

56. Nonetheless, Peak asked Argentto, and Argentto agreed, to maintain

Peak’s data on Argentto’s servers for another three months, until September 2008, so that

Peak could utilize new contractors to extract its accounting, payroll and other data from

the 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 for

JP Morgan Chase. Argentto expected that this relationship, which arose from HP’s

positive views of software Argentto had provided to Peak, would lead to hundreds of

thousands of dollars in revenue. In June 2008, however, shortly after the termination of

Argentto’s services, Defendant Phil Greenberg notified HP of the termination and

disparaged Argentto to HP, and thereby caused HP to end its relationship with Argentto

within weeks of the end of the Argentto-Peak relationship. On information and belief,

14

Greenberg destroyed the Argentto-HP relationship purely to harm Argentto, with no

discernible economic motivation whatsoever.

58. In September 2008, Argentto closed down Peak’s access to Argentto’s

servers. Peak still owed Argentto $21,004 in fees.

59. In the summer and fall of 2008, Peak repeatedly requested and demanded

that Argentto provide the source code for Argentto’s proprietary software. Argentto

steadfastly refused to give up its intellectual property and proprietary trade secrets.

60. After the termination of the Peak-Argentto relationship, Peak replaced its

Argentto accounting software with other software packages. Similarly, without the right

to use the Argentto software, Peak replaced the interactive web site,

“PeakInteractive.Net,” with non-interactive HTML pages. These changes are not

surprising, because Argentto strictly controlled access to its source code, and Peak lacked

such source code after Peak terminated the relationship.

61. In stark contrast, as Plaintiffs have now learned, Peak has continued to

use, distribute, market, and promote the Performance Review Software, without change,

since before the termination of the Argentto-Peak relationship. In other words, the only

software package that Peak has continued to use is the software for which Peak had

illicitly acquired the source code.

PEAK’S INFRINGEMENT AND MISAPPROPRIATION

62. In the first week of February 2009, the American Bar Association held its

annual LegalTech convention in New York City. Peak had announced the Performance

Review Metrics at the LegalTech convention one year earlier.

63. Later that month, Nick Santino learned from a friend who attended the

15

LegalTech conference that Peak had been promoting the “Peak Review Metrics” software

using paper handouts at the LegalTech conference itself. If prospective clients showed

interest in the software, Peak would then schedule “private demonstrations” of the

software. This behavior suggested that Peak was trying to keep the user interface and

other 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 promoted

the “Peak Review Metrics” software on its website and in brochures.

65. It would take a team of programmers many months, at great cost, to write

a program capable of the Performance Metrics Software, whether “from scratch” or

through “reverse engineering.” The Performance Metrics Software remains unique in the

industry.

66. Therefore, Plaintiffs believe that Defendants are continuing to infringe

Argentto’s valuable intellectual property, and to misappropriate Argentto’s proprietary

trade secrets, in the Performance Metrics Software.

67. On information and belief, Defendants Eichenberg, Schlanger and

Dalewitz have personally participated in and profited from the effort to misappropriate

Argentto’s intellectual property, to promote it to current and prospective clients as Peak’s

own, and to distribute or disclose it in violation of Plaintiffs’ rights.

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 as

though 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’ federally

registered copyright in the Performance Metrics Software by using the Performance

Metrics Software without Plaintiffs’ consent or authority, in violation of 17 U.S.C. § 106.

70. Defendants’ infringing conduct has caused and, unless restrained by this

Court, will continue to cause Plaintiffs irreparable injury. Plaintiffs have no adequate

remedy at law for Defendants’ infringement.

71. Plaintiffs are entitled to an injunction restraining Defendants, their

officers, agents, and employees, and all other persons acting in concert with them, from

engaging in further such acts in violation of the federal copyright laws.

72. Plaintiffs are further entitled to recover from Defendants the damages

Plaintiffs 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 at

present unable to ascertain the full extent of the gains, profits, and advantages Defendants

have obtained by reason of their acts in violation of the federal copyright laws.

17

74. By reason of the foregoing, Plaintiffs are entitled to damages in an amount

to 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 acts

complained of with oppression, fraud, and malice, and in conscious disregard of the

rights of Plaintiffs. Defendants’ infringing actions are willful and deliberate, and

Plaintiffs are entitled to statutory damages, as well as attorneys’ fees and costs pursuant

to 17 U.S.C. § 504 and 17 U.S.C. § 505.

SECOND CAUSE OF ACTION:
MISAPPROPRIATION OF TRADE SECRETS



77. The information reflected in the Performance Metrics Software and source

code, and the accompanying unique and proprietary techniques for structuring data and

distributing 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 over

its existing and would-be competitors, including but not limited to, Defendants The Peak

Organization, Inc., Peak Counsel, Inc., and Peak Discovery, Inc., to the extent

Defendants use the Performance Metrics Software capabilities to market their services

and to obtain engagements. This advantage would be lost if the Trade Secrets became

known to the public or to Plaintiffs’ competitors.

18

79. Plaintiffs have made reasonable efforts under the circumstances to

maintain the confidentiality of the Trade Secrets.

80. Plaintiffs’ Trade Secrets derive independent economic value from not

being generally known to the public or to other persons who can obtain economic benefit

from their disclosure.

81. Defendants misappropriated Plaintiffs’ Trade Secrets by (a) illicitly

procuring a copy of Plaintiffs’ source code, (b) illicitly using Plaintiffs’ Trade Secrets

without authorization, and (c) illicitly disclosing Plaintiffs’ Trade Secrets to third parties

without authorization. Defendants have utilized and disclosed Plaintiffs’ Trade Secrets

for 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 was

undertaken with blatant disregard for Plaintiffs’ valid and enforceable rights.

83. By reason of the foregoing, Defendants have been unjustly enriched and

Plaintiffs have suffered irreparable harm as a result of the misappropriations of their

Trade Secrets, and will continue to suffer irreparable harm, which cannot be adequately

redressed at law, unless Defendants, their agents, and all those acting in concert with

them are enjoined from engaging in further acts of misappropriation.






19


have obtained by reason of their misappropriation of Plaintiffs’ Trade Secrets.

86. By reason of the foregoing, Plaintiffs have suffered damages in an amount


($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



89. Defendants have, upon information and belief, appropriated in whole or in

part 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 of

Defendants, 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 the

functions of the Performance Metrics Software, representing that they had the right to use

Plaintiffs’ trade secrets and the operations of the Performance Metrics Software in order

to unfairly compete with Plaintiffs, in violation of Section 43(a) of the Lanham Act, 15

U.S.C. § 1125(a).

91. Defendants, in the course of their businesses, have intended by the

aforesaid acts to:

a) cause likelihood of confusion or misunderstanding as to the origin,

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 Software

creates a false indication of origin and is calculated to deceive the public into believing

that Defendants are the owners, creators and/or developers of the Performance Metrics

Software, 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 remedy

at law.

94. Unless Defendants are restrained from their wrongful conduct, Defendants

will continue to cause injury to the business and the business reputation of Plaintiffs.




21




have obtained by reason of their unfair competition and passing off.

97. By reason of the foregoing, Plaintiffs have suffered damages in an amount


($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 and

wrongful acts, Plaintiffs are entitled to an award of treble damages, attorneys’ fees, and

exemplary damages.

FOURTH CAUSE OF ACTION: BREACH OF CONTRACT



100. Defendants were bound by the Terms and Conditions of their agreement

with Argentto concerning the Performance Metrics Software.

101. In accordance with these contracts, Defendants were only entitled to

utilize the Performance Metrics Software with the authorization of Argentto.

102. In accordance with these contracts, Defendants were bound to hold all of

Plaintiffs’ Trade Secrets in strictest confidence.

103. In accordance with these contracts, all rights in and to the works created

were the property of Plaintiffs.

22

104. In breach of their contractual obligations, Defendants without Plaintiffs’

knowledge or consent have continued to utilize the Performance Metrics Software.


knowledge or consent have continued to use, disclose and/or share with third parties

Plaintiffs’ Trade Secrets.


knowledge or consent have held out the Performance Metrics Software to be their own

proprietary software.

107. The aforesaid acts of Defendants have caused and shall cause Argentto

Systems damages in an amount not yet fully determined, but believed to be in excess of

thirty million dollars ($30,000,000.00).

FIFTH CAUSE OF ACTION: UNJUST ENRICHMENT



109. Defendants’ adoption, reproduction, and/or use of Plaintiffs’ Trade Secrets

and confidential and proprietary business information including, among other things,

Plaintiffs’ source code and Performance Metrics Software, has unjust enriched

Defendants by depriving Plaintiffs of their profits from the sale or licensing of their

Performance Metrics Software.

110. Plaintiffs have suffered irreparable harm and damages as a result of

Defendants’ acts and are suffering money damages in an amount not yet fully

determined, but believed to be in excess of thirty million dollars ($30,000,000).

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SIXTH CAUSE OF ACTION: CONVERSION

111. Plaintiff repeats and realleges each and every allegation contained above

as though fully set forth herein.

112. The Trade Secrets and confidential and proprietary business information

including, among other things, Plaintiffs’ source code and Performance Metrics Software,

constitute Plaintiffs’ valuable property.

113. Upon information and belief, Defendants have taken Plaintiffs’ property

and used it for their own benefit, by means that include, but are not limited to, stealing

Plaintiffs’ back-up CD-ROM disks and utilizing the intellectual property contained

therein without authorization, in a business venture that competes with Plaintiffs.

114. By reason of the foregoing, Defendants have converted Plaintiffs’ valuable

property, 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)



116. A contract and advantageous business relationship existed between

Argentto and Hewlett-Packard.

117. A prospective advantageous business relationship existed between

Argentto and Hewlett-Packard.

118. Defendant Philip Greenberg was and is aware of the business relationship

and prospective business relationship that existed between Argentto and Hewlett Packard.

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119. Defendants Philip Greenberg knowingly and intentionally interfered with

Argentto’s current and prospective advantageous business relationship with Hewlett-

Packard.

120. Defendant’s acts were intentional and carried out for the purpose of

disrupting Argentto’s current and prospective advantageous relationships with its

customers. Defendant’s acts were malicious, designed to cause harm to Plaintiffs, and

had no economic justification.

121. As a result of Defendant Philip Greenberg’s intentional interference with

Plaintiffs’ contract and prospective advantageous business relationship with Hewlett

Packard, Plaintiffs have suffered damages in an amount to be determined at trial, but

believed to be in excess of one million dollars ($1,000,000).

EIGHTH CAUSE OF ACTION: UNFAIR COMPETITION
(Against All Defendants)



123. The acts described above constitute unfair competition under New York

law. The acts include, but are not limited to (a) misappropriation of trade secrets; (b)

conversion; and (c) tortious interference with contract and prospective advantageous

business relationships.

124. Defendants’ acts were and are intentional and carried out for the purpose

of competing unfairly with Plaintiffs.

125. Plaintiffs have been damaged by Defendants’ actions and are also

suffering irreparable harm for which they has no adequate remedy at law.

126. As a direct, proximate and foreseeable result of such unlawful conduct,

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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 their

favor 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

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,

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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 less

than $30 million, plus punitive damages to punish Defendants for their intentional

misconduct;

4. Awarding Plaintiffs damages against Defendant Philip Greenberg in an

amount to be determined at trial, but believed to be not less than $1 million, plus punitive

damages to punish Defendant Greenberg for his intentional misconduct;

5. Awarding Plaintiffs such statutory, exemplary or punitive damages as the

Court deems just and proper;

6. Awarding Plaintiffs their attorneys’ fees and costs incurred in connection

with this action; and

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