IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION FUNDSXPRESS FINANCIAL NETWORK, INC., Plaintiff, v. DIGITAL INSIGHT CORPORATION, JOHN DORMAN, VINCENT BRENNAN, RONALD GOFFMAN, ERIC EDWARDS, STEPHEN CRAIN Defendants. ANSWER AND AFFIRMATIVE DEFENSES OF DEFENDANT RONALD GOFFMAN Defendant Ronald Goffman ("Goffman") by and through his undersigned counsel, hereby sets forth his Answer and Affirmative Defenses to the Plaintiff's Third Amended Complaint (the "Complaint"), as follows: ANSWER 1. Defendant admits the allegations of Paragraph 1. 2. Defendant admits the allegations of Paragraph 2. 3. Defendant admits the allegations of Paragraph 3. 4. Defendant admits that Brennan is a Senior Vice President of Sales of Digital Insight Corporation ("Digital"). Defendants deny the remaining allegations of Paragraph 4. 5. Defendant admits the allegations of Paragraph 5. 6. Defendant admits the allegations of Paragraph 6. 7. Defendant admits the allegations of Paragraph 7. 8. Defendant admits that for now, this Court has subject matter jurisdiction over all of the causes of action asserted in Paragraph 8. 9. Defendant denies that a substantial part of the events and omissions giving rise to Plaintiff's claims occurred in this District, and Defendant denies that a substantial part of the property that is the subject of this action is situated in this District, as alleged in Paragraph 9. 10. Defendant denies the allegations of Paragraph 10. 11. Defendant denies the allegations of Paragraph 11 because the allegations call for a legal conclusion and therefore no further response is required. 12. Defendant denies the allegations of Paragraph 12. 13. Defendant denies the allegations of Paragraph 13. 14. Defendant admits that FundsXpress and Digital Insight Corporation (hereafter "Digital") compete in providing internet banking services. As to the remainder of the allegations of Paragraph 14, Defendant is without sufficient knowledge or information upon which to form a belief. 15. Defendant denies the allegations of Paragraph 15. 16. Defendant admits that he, along with Gifford Dunn ("Dunn") and Stephen Crain ("Crain"), previously worked at John Harland & Company; that Brennan and Edwards joined Digital and that Crain formerly worked for FundsXpress. Defendant denies the remaining allegations of Paragraph 16. 17. Defendant admits that Plaintiff FundsXpress has developed various products and services which it provides to financial institutions to allow their customers to have internet banking products and services and that FundsXpress customers utilize FundsXpress' ASP services to obtain those products and services. As to the remainder of the allegations of Paragraph 17, Defendant is without sufficient knowledge or information upon which to form a belief. 18. Defendant admits that the allegations of Paragraph 18 are generally true, however, Defendant is without sufficient knowledge or information regarding Plaintiff's capabilities to admit or deny the allegations set forth in Paragraph 18. 19. Defendant admits that FundsXpress offers its customers a portal product and that the portal contains certain information about the financial institution as well as offering them access to other services. As to the remainder of the allegations of Paragraph 19, Defendant is without sufficient knowledge and information upon which to form a belief. 20. Defendant admits the allegations of Paragraph 20. 21. Defendant is without sufficient knowledge or information upon which to form a belief as to the allegations of Paragraph 21. 22. Defendant is without sufficient knowledge or information upon which to form a belief as to the allegations of Paragraph 22. 23. Defendant admits that Plaintiff maintains a database it calls "Goldmine" which contains certain information about financial institutions. As to the remainder of the allegations of Paragraph 23, Defendant is without sufficient knowledge or information upon which to form a belief. 24. Defendant admits that Plaintiff maintained a "Pricing Suite". Defendant denies that the "Pricing Suite" provides Plaintiff with "distinctive advantages over its competitors, including Digital Insight." Defendant is without sufficient knowledge or information upon which to form a belief as to the remaining allegations of Paragraph 24. 25. Defendant denies that the "Goldmine database, the Pricing Suite" and the unidentified "FundsXpress proprietary marketing and sales strategies" constitute trade secrets. Defendant is without sufficient knowledge or information upon which to form a belief as to the remaining allegations of Paragraph 25. 26. Defendant is without sufficient knowledge or information upon which to form a belief as to the allegations of Paragraph 26. 27. Defendant is without sufficient knowledge or information upon which to form a belief as to the allegations of Paragraph 27. 28. Defendant is without sufficient knowledge or information upon which to form a belief as to the allegations of Paragraph 28. 29. Defendant admits that Plaintiff hired Gifford Dunn and that he was the National Sales Manager for Plaintiff at some point during his employment. As to the remainder of the allegations of Paragraph 29, Defendant is without sufficient knowledge or information upon which to form a belief. 30. Defendant admits that Dunn was an employee of Plaintiff. As to the remainder of the allegations of Paragraph 30, Defendant is without sufficient knowledge or information upon which to form belief. 31. Defendant admits that Plaintiff hired Crain as a sales representative and his territory was the southeast area of the United States. As to the remaining allegations of Paragraph 31, the Defendant is without sufficient knowledge or information upon which to form a belief. 32. Defendant admits that he was hired by Plaintiff as a sales executive responsible for the states of Michigan and Wisconsin, that he reported to Dunn and that he had access to certain information of Plaintiff while employed there, but not all of the information alleged in Paragraph 32. Defendant denies the remaining allegations in Paragraph 32. 33. Defendant admits that he knew he was required to keep Plaintiff's trade secrets and proprietary information secret and that he signed a non-disclosure agreement with Plaintiff. As to the remaining allegations of Paragraph 33, the Defendant is without sufficient knowledge or information upon which to form a belief. 34. Defendant admits that he was hired by Digital on or around June, 2001 and he signed a nondisclosure agreement. As to the remaining allegations of Paragraph 34, Defendant is without sufficient knowledge or information upon which to form a belief. 35. Defendant admits that he had a notebook computer, that it contained certain information of Plaintiff and that he provided Edwards with a document that purported to be a FundsXpress copy of Goffman's personal pipeline. Defendant denies the remaining allegations of Paragraph 35. 36. Defendant admits that he was hired as a salesperson and that his job was to conduct telemarketing and sales via telephone for Digital. Defendant denies the remaining allegations of Paragraph 36. 37. Defendant neither admits nor denies the allegations of Paragraph 37, as he is without sufficient knowledge or information upon which to form a belief. 38. Defendant neither admits nor denies the allegations of Paragraph 38, as he is without sufficient knowledge or information upon which to form a belief. 39. Defendant neither admits nor denies the allegations of Paragraph 39, as he is without sufficient knowledge or information upon which to form a belief. 40. Defendant admits that Digital hired Dunn to market and sell products of Digital, some of which were directly competitive to Plaintiff's products and services. Defendant denies the remaining allegations of Paragraph 40. 41. Defendant denies the allegations of Paragraph 41. 42. Defendant neither admits nor denies the allegations of Paragraph 42, as he is without sufficient knowledge or information upon which to form a belief. 43. Defendant neither admits nor denies the allegations of Paragraph 43, as he is without sufficient knowledge or information upon which to form a belief. 44. Defendant neither admits nor denies the allegations of Paragraph 44, as he is without sufficient knowledge or information upon which to form a belief. 45. Defendant neither admits nor denies the allegations of Paragraph 45, as he is without sufficient knowledge or information upon which to form a belief. 46. Defendant neither admits nor denies the allegations of Paragraph 46, as he is without sufficient knowledge or information upon which to form a belief. 47. Defendant neither admits nor denies the allegations of Paragraph 47, as he is without sufficient knowledge or information upon which to form a belief. 48. Defendant neither admits nor denies the allegations of Paragraph 48, as he is without sufficient knowledge or information upon which to form a belief. 49. Defendant neither admits nor denies the allegations of Paragraph 49, as he is without sufficient knowledge or information upon which to form a belief. 50. Defendant is without sufficient knowledge or information to admit or deny the allegations of Paragraph 50. Further, as to the remaining allegations of Paragraph 50, Defendant answers that the allegations call for legal conclusions regarding the status of such proprietary information and no further response is required. 51. Defendant denies the allegations of Paragraph 51, except to admit that Edwards assumed the title of Vice-President at Digital. 52. Defendant is without sufficient knowledge or information to admit or deny the allegations of Paragraph 52. 53. Defendant is without sufficient knowledge or information to admit or deny the allegations of Paragraph 53. 54. Defendant denies the allegations of Paragraph 54. 55. Defendant denies the allegations of Paragraph 55. 56. Defendant is without sufficient knowledge or information to admit or deny the allegations of Paragraph 56. 57. Defendant admits that in or about February or March, 2002, he sent an email containing substantially the same information paraphrased in Paragraph 57. Defendant further admits that he made the inquiries alleged and that Brennan gave the approval alleged in Paragraph 57. Defendant lacks sufficient knowledge or upon which to form a belief as to the remaining factual allegations of Paragraph 57, except to deny that any statements made as alleged in Paragraph 57 were false, or that they were intended to damage the Plaintiff. 58. Defendant is without sufficient knowledge or information to admit or deny the allegations of Paragraph 58. 59. Defendant denies the allegations of Paragraph 59. 60. Defendant denies the allegations of Paragraph 60. 61. Defendant denies that Plaintiff directly lost contracts with financial institutions as a result of Defendant's activities as alleged in Paragraph 61. Defendant lacks sufficient knowledge or information upon which to form a belief as to the truth or falsity of the remaining allegations of Paragraph 61. 62. Defendant denies the allegations of Paragraph 62. 63. Defendant denies the allegations of Paragraph 63, except that Defendants admit that it accurately quotes a portion of Comment F of Section 45 of the Restatement of Unfair Competition. 64. Defendant denies that any or all of those financial institutions were added as a result of any allegations contained in Plaintiff's Complaint, or the allegedly misappropriated information of which Plaintiff complains. To the extent the allegations in Paragraph 64 are based upon calculations of value or sets forth damages the Defendant neither admits nor denies the allegations as he lacks sufficient knowledge or information upon which to form a belief. Defendant also denies the allegations of Paragraph 64 to the extent they call for a legal conclusion. 65. Defendant denies the allegations of Paragraph 65. 66. Defendant denies the allegations of Paragraph 66. 67. Defendant denies the allegations of Paragraph 67. 68. Defendant denies the allegations of Paragraph 68. 69. Defendant denies the allegations of Paragraph 69. 70. Defendant denies the allegations of Paragraph 70. 71. Defendant denies the allegations of Paragraph 71. 72. Defendant denies the allegations of Paragraph 72. 73. Defendant denies the allegations of Paragraph 73. 74. Defendant denies the allegations of Paragraph 74. 75. Defendant denies the allegations of Paragraph 75. 76. Defendant denies the allegations of Paragraph 76. 77. Defendant denies the allegations of Paragraph 77. 78. Defendant denies the allegations of Paragraph 78. 79. Defendant denies the allegations of Paragraph 79. 80. Defendant denies the allegations of Paragraph 80. 81. Defendant denies the allegations of Paragraph 81. 82. Defendant denies the allegations of Paragraph 82. 83. Defendant denies the allegations of Paragraph 83. 84. Defendant denies the allegations of Paragraph 84. 85. Defendant denies the allegations of Paragraph 85. 86. Defendant denies the allegations of Paragraph 86. 87. Defendant denies the allegations of Paragraph 87. 88. Defendant is without sufficient information or knowledge to form a belief as to the truth of the allegations of Paragraph 88. 89. Defendant is without sufficient information or knowledge to form a belief as to the truth of the allegations of Paragraph 89. 90. Defendant is without sufficient information or knowledge to form a belief as to the truth of the allegations of Paragraph 90. 91. Defendant is without sufficient information or knowledge to form a belief as to the truth of the allegations of Paragraph 91. 92. Defendant is without sufficient information or knowledge to form a belief as to the truth of the allegations of Paragraph 92. 93. Defendant denies that Plaintiff has been substantially damaged by the alleged infringement set forth in Paragraph 93. Defendant is without sufficient knowledge or information to admit or deny the remaining allegations of Paragraph 93. 94. Defendant admits that Digital requires its employees to sign nondisclosure agreements and he believes that Plaintiff required some of its employees to sign nondisclosure agreements. Defendant is without sufficient knowledge or information to admit or deny the remaining allegations of Paragraph 94. 95. Defendant denies the allegations of Paragraph 95. 96. Defendant denies the allegations of Paragraph 96. 97. Defendant denies the allegations of Paragraph 97. 98. Defendant denies the allegations of Paragraph 98. 99. Defendant denies the allegations of Paragraph 99. 100. Defendant denies the allegations of Paragraph 100. 101. Defendant denies the allegations of Paragraph 101. 102. Defendant denies the allegations of Paragraph 102. 103. Defendant denies the allegations of Paragraph 103. 104. Defendant denies the allegations of Paragraph 104. 105. Defendant denies the allegations of Paragraph 105. 106. Defendant denies the allegations of Paragraph 106. 107. Defendant denies the allegations of Paragraph 107. 108. Defendant denies the allegations of Paragraph 108. 109. Defendant denies the allegations of Paragraph 109. 110. Defendant denies the allegations of Paragraph 110. 111. Defendant denies the allegations of Paragraph 111. 112. Defendant is without sufficient knowledge or information to admit or deny the allegations in Paragraph 112 related to the Credit Union Times article or the public statements of Dorman. Defendant denies all the remaining allegations of Paragraph 112. 113. Defendant denies the allegations of Paragraph 113. II. AFFIRMATIVE DEFENSES 1. One or more of the claims in Plaintiff's Complaint fails to state a claim upon which relief can be granted. 2. One or more of Plaintiff's claims are barred by the equitable doctrines of waiver, estoppel, or unclean hands. 3. Any damages Plaintiff sustained occurred because of its own acts or omissions, and not because of any conduct by the Defendant. 4. One or more of Plaintiff's claims fail to state a claim upon which relief can be granted, because Plaintiff has failed to join Gifford Dunn as a defendant, who is an indispensable party. 5. To the extent Plaintiff claims that Defendant defamed it, Defendant states that his statements were opinion statements and that such statements were true. 6. This action should be dismissed for improper venue. Respectfully submitted, A. Boone Almanza State Bar No. 01579001 Bo Blackburn State Bar No. 24006853 Akin & Almanza, L.L.P. 1717 West Sixth Street, Suite 230 Austin, Texas 78703 (512) 474-9486 (512) 478-7151 - Fax ATTORNEYS FOR DEFENDANT RONALD GOFFMAN CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document has been sent certified mail, return receipt requested or first-class mail to all counsel of record listed below on this the 6th day of September, 2002. R. James George, Jr. Nanneska N. Hazel George & Donaldson, L.L.P. 114 West 7th Street, Suite 1100 Austin, Texas 78701 via CMRRR Martha Dickie Minton, Burton, Foster & Collins A Professional Corporation 1100 Guadalupe Street Austin, Texas 78701 via First-Class Mail Barry K. Bishop Clark, Thomas & Winters, A Professional Corporation P.O. Box 1148 Austin, Texas 78767-1148 via First-Class Mail John W. Cotton Cotton & Gundzik Cotton & Gundzik LLP 725 South Figueroa Street, 34th Floor Los Angeles, California 90017 via First-Class Mail A. Boone Almanza