                           Case 4:17-cv-04414-JST Document 264 Filed 12/17/19 Page 1 of 6



                      1   BAKER BOTTS L.L.P.
                          Kurt M. Pankratz (SBN 24013291) (Pro Hac Vice)
                      2   matthewhall@example.org
                          Chad C. Walters (SBN 24034730) (Pro Hac Vice)
                      3   matthewhall@example.org
                          James Williams (SBN 24075284) (Pro Hac Vice)
                      4
                          matthewhall@example.org
                      5   Harrison Rich (SBN 24083730) (Pro Hac Vice)
                          matthewhall@example.org
                      6   Clarke Stavinoha (SBN 24093198) (Pro Hac Vice)
                          matthewhall@example.org
                      7   Morgan Grissum (SBN 24084387) (Pro Hac Vice)
                          matthewhall@example.org
                      8   Bryan Parrish (SBN 24089039) (Pro Hac Vice)
                          matthewhall@example.org
                      9   Casey L. Shomaker (SBN 24110359) (Pro Hac Vice)
                     10   matthewhall@example.org
                          2001 Ross Avenue, Suite 900
BAKER BOTTS L.L.P.




                     11   Dallas, TX 75201
                          Tel: 520.988.6596
                     12   Fax: 520.988.6596

                     13   Wayne O. Stacy (SBN 341579)
                          matthewhall@example.org
                     14   101 California Street, Suite 3600
                          San Francisco, CA 94111
                     15   Tel: 520.988.6596
                          Fax: 520.988.6596
                     16
                          Attorneys for Plaintiffs
                     17   SYMANTEC CORPORATION and
                          SYMANTEC LIMITED
                     18
                                                  UNITED STATES DISTRICT COURT
                     19                       NORTHERN DISTRICT OF CALIFORNIA – OAKLAND
                     20
                          SYMANTEC CORPORATION, and                    Case No. 4:17-CV-04414-JST
                     21   SYMANTEC LIMITED
                                                                       PLAINTIFFS’ REPLY IN SUPPORT OF
                     22                          Plaintiffs,           MOTION UNDER FED. R. CIV. P. 25(C)
                                                                       TO JOIN NEW PATENT OWNER CA,
                                     vs.                               INC. AS A PLAINTIFF
                     23
                          ZSCALER, INC.,                               The Honorable Jon S. Tigar
                     24
                                                 Defendant.            Date Filed: June 22, 2017
                     25
                                                                       Trial Date: June 14, 2021
                     26

                     27

                     28
                                            Symantec’s Reply ISO Motion to Join New Patent Owner CA, Inc.
                                                               Case: 4:17-cv-04414-JST
                               Case 4:17-cv-04414-JST Document 264 Filed 12/17/19 Page 2 of 6



                      1   I.      INTRODUCTION

                      2           Symantec Corporation and Symantec Limited (collectively, “Symantec” or “Plaintiffs”)

                      3   request that the Court join new patent owner CA as a co-plaintiff under Federal Rule of Civil

                      4   Procedure 25(c). In opposition, Zscaler argues that the Court should substitute CA in place of

                      5   Symantec or otherwise require Symantec Corporation to appear in the case as NortonLifeLock,

                      6   Inc. Each of Zscaler’s arguments should be rejected.

                      7           First, Zscaler contends that the Court should deny joinder and instead order substitution of

                      8   CA. Yet, Zscaler has not identified a single case denying the requested relief of joinder, let alone

                      9   ordering substitution over joinder. Moreover, Zscaler’s primary basis for opposing joinder—that

                     10   joinder is only proper where an original party retains an interest, and Symantec did not retain an
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                     11   interest in the asserted patents—directly conflicts with Rule 25(c).           That rule explicitly

                     12   contemplates joinder of a transferee with an original party where, as here, the original party

                     13   transferred full interest in the action. Indeed, as explained in Symantec’s motion, this District has

                     14   frequently denied substitution and, instead, ordered joinder of a transferee with an original party

                     15   after a patent transfer.

                     16           Second, Zscaler argues that if the Court allows Symantec to remain in the case, then

                     17   Symantec Corporation should be required to amend the pleadings to reflect its new name—

                     18   NortonLifeLock, Inc. As an initial matter, unlike the Western District of Washington case upon

                     19   which Zscaler relies, Zscaler has not moved to amend the case caption. Regardless, at this stage

                     20   of litigation, changing Symantec Corporation’s name to NortonLifeLock would result in nothing

                     21   more than jury confusion. This is particularly true given that Symantec Limited—a plaintiff in

                     22   this action—still operates under the same name; it did not change its name to NortonLifeLock.

                     23           For at least these reasons and the additional reasons set forth below, the Court should join

                     24   CA as a plaintiff in this case.

                     25   II.     ZSCALER’S JOINDER ANALYSIS IS FLAWED

                     26           Without any support, Zscaler rewrites the standard for joinder under Rule 25(c). In

                     27   particular, Zscaler argues that joinder is not proper because Symantec “transferred away all rights

                     28   at issue in this case” and thus “has no continued interest in (or basis to litigate) it.” See, e.g.,
                                    Symantec’s Reply ISO Motion to Join New Patent Owner – Case: 4:17-cv-04414-JST
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                      1   Opposition (Dkt. No. 262) at 1. Zscaler’s argument should be rejected.

                      2             First, Zscaler rewrites Rule 25(c) to exclude joinder where, as here, an interest is fully

                      3   transferred. According to Zscaler, joinder is only appropriate where an original party retains some

                      4   interest. Id. But Rule 25(c) is not so constrained. Rule 25(c) provides that “[i]f an interest is

                      5   transferred, the action may be continued by . . . the original party unless the court, on motion,

                      6   orders the transferee to be substituted in the action or joined with the original party.” Fed. R. Civ.

                      7   P. 25(c) (emphasis added). The plain language of Rule 25(c) permits joinder when “an interest is

                      8   transferred,” not when, as Zscaler suggests, “an interest is partially transferred.” Because the

                      9   asserted patents have transferred from Symantec to CA, the predicate condition of Rule 25(c)—

                     10   “an interest [that has been] transferred”—is met, and joinder is permissible.
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                     11             Second, Zscaler’s attempt to rewrite Rule 25(c)’s joinder provision is unsupported.

                     12   Zscaler has not identified a single case denying joinder of a transferee with an original party where

                     13   the original party transferred all interest to the transferee. See Opposition (Dkt. No. 262) at 2-4.

                     14   Nor has Zscaler identified any case finding substitution more appropriate than joinder.1 See id.

                     15   Zscaler’s suggestion that substitution is more appropriate where an original party does not retain

                     16   a continued interest is thus unsupported. The Court should reject Zscaler’s unsupported attempt

                     17   to rewrite Rule 25(c).

                     18   III.      JOINDER OF CA IS APPROPRIATE

                     19             Joinder of CA with Symantec is appropriate because it would allow this action to continue

                     20   unabated. See, e.g., Motion (Dkt. No. 369) at 1-2; In re Bernal, 207 F.3d at 598 (“Rule 25(c) is

                     21   not designed to create new relationships among parties to a suit but is designed to allow the action

                     22   to continue unabated when an interest in the lawsuit changes hands.”). Although Zscaler filed a

                     23   lengthy brief in opposition to Symantec’s motion, Zscaler has not identified any harm or prejudice

                     24   that would result from the requested relief. Nor could it. As even Zscaler acknowledges, joinder

                     25
                          1
                     26       Symantec moved for joinder, and not substitution, under Rule 25(c). Zscaler’s attempt to request

                     27   substitution of CA in place of Symantec under Rule 25(c) in its opposition appears to be

                     28   procedurally improper, as Zscaler did not move for substitution.
                                      Symantec’s Reply ISO Motion to Join New Patent Owner – Case: 4:17-cv-04414-JST
                                                                            2
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                      1   would have no impact on the substantive rights or interests of the parties. Opposition (Dkt. 262)

                      2   at 2.

                      3            Finally, Zscaler’s assertion that it “did not raise a standing issue” is without merit, as

                      4   Zscaler has yet to answer Symantec’s complaint. Given that Zscaler could raise an issue of

                      5   standing if and when it provides an answer, joinder is appropriate for at least the additional reason

                      6   that it would alleviate any concerns that Symantec or CA lacks standing to pursue this action. See,

                      7   e.g., Uniloc USA Inc. v. LG Elecs. U.S.A. Inc., Case No. 18-cv-06737-JST, 2019 WL 690290, *1-

                      8   3 (N.D. Cal. Feb. 19, 2019) (ordering joinder of a transferee, rather than substitution of that entity,

                      9   to facilitate the resolution of any standing issues).

                     10   IV.      SYMANTEC’S NAME SHOULD REMAIN AS “SYMANTEC CORPORATION”
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                     11            Since its inception nearly two and a half years ago, this case has proceeded under the case

                     12   caption Symantec Corporation and Symantec Limited vs. Zscaler, Inc., and the parties have

                     13   referred to Plaintiffs as Symantec Corporation and Symantec Limited. At this advanced stage in

                     14   litigation—after the parties have conducted substantial discovery—amending the pleadings to

                     15   change Plaintiff Symantec Corporation’s name to “NortonLifeLock, Inc.” would be confusing and

                     16   prejudicial.2 Indeed, jurors will see significant numbers of documents, including assignment and

                     17   transfer agreements, data sheets, internal presentations, and competitive intelligence, among

                     18   others, and products that are labeled with Symantec branding without any reference to

                     19   “NortonLifeLock, Inc.” And Zscaler provides no evidence or explanation suggesting otherwise.

                     20            The only case Zscaler cites to support its contention that Symantec Corporation’s name

                     21   should be changed is Curwan v. Dynan, No. C11-5598-BHS, 2012 WL 1977968 (W.D. Wash.

                     22   June 1, 2012). But the facts in Curwan are distinguishable from those here. First, Curwan was in

                     23   its early stages of litigation. Second, unlike Curwan, here Zscaler has not moved to amend the

                     24   case caption.     As such, the Court should decline Zscaler’s invitation to change Symantec

                     25   Corporation’s name.

                     26

                     27
                          2
                     28       Plaintiff Symantec Limited has not changed its name. See Opposition at 5, n.3.
                                      Symantec’s Reply ISO Motion to Join New Patent Owner – Case: 4:17-cv-04414-JST
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                      1   V.      CONCLUSION

                      2           For at least the foregoing reasons, Symantec requests that the Court (1) grant its motion to

                      3   join CA as a plaintiff, and (2) deny Zscaler’s request to substitute CA or otherwise require

                      4   Symantec Corporation to appear in the case as NortonLifeLock, Inc.

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                                    Symantec’s Reply ISO Motion to Join New Patent Owner – Case: 4:17-cv-04414-JST
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                            Case 4:17-cv-04414-JST Document 264 Filed 12/17/19 Page 6 of 6


                          Dated: December 17, 2019               Respectfully submitted,
                      1
                                                                 BAKER BOTTS L.L.P.
                      2

                      3                                           /s/ Morgan Grissum
                                                                 Kurt M. Pankratz
                      4                                          Chad C. Walters
                                                                 James Williams
                      5                                          Harrison Rich
                                                                 Clarke Stavinoha
                      6
                                                                 Morgan Grissum
                      7                                          Bryan Parrish
                                                                 Casey L. Shomaker
                      8
                                                                 Wayne O. Stacy (SBN 341579)
                      9                                          matthewhall@example.org
                     10                                          101 California Street, Suite 3600
                                                                 San Francisco, CA 94111
BAKER BOTTS L.L.P.




                     11                                          Tel: 520.988.6596
                                                                 Fax: 520.988.6596
                     12
                                                                 Attorneys for Plaintiffs
                     13                                          SYMANTEC CORPORATION and SYMANTEC
                     14                                          LIMITED

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                                  Symantec’s Reply ISO Motion to Join New Patent Owner – Case: 4:17-cv-04414-JST
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