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IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
MCAFEE, LLC,

§
§
Plaintiff,
§
§
v.
§
§
JENNIFER E. KINNEY; ALAN P. COE; §
PERCY O. TEJEDA; AND TANIUM, §
INC.;
§
§
Defendants.
§

CASE NO. ____________

ORIGINAL COMPLAINT
Summary of Action
This is an action for trade secret misappropriation under 18 U.S.C. § 1836, and includes
claims under state law for trade secret misappropriation, breach of contract, tortious interference,
breach of fiduciary duty, aiding and abetting, and conspiracy. Plaintiff MCAFEE, LLC (“McAfee”
or “Plaintiff”) formerly employed Defendants JENNIFER KINNEY (“Kinney”) ALAN P. COE
(“Coe”), and PERCY O. TEJEDA (“Tejeda”) (collectively, the “Employee Defendants”) in highly
compensated positions supporting McAfee’s sales staff.

The job functions of each of the

Employee Defendants required an intimate knowledge of the “secret sauce” underlying McAfee’s
sales tactics and customer strategies, and each of the Employee Defendants executed an
Employment Agreement containing confidentiality and non-solicitation provisions as a condition
of their employment.
Late last year, Tejeda resigned from McAfee and accepted a position with a direct
competitor, Defendant Tanium, Inc. (“Tanium”). Earlier this year, Tejeda began soliciting Kinney,
who Tejeda had supervised at McAfee, to join Tanium. Kinney resigned from McAfee on March
28, 2019, and accepted a comparable sales management position at Tanium reporting to Tejeda.
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After learning about Tejeda’s recruitment of Kinney, McAfee wrote to Tejeda (with a copy to
Tanium) to remind Tejeda of the continuing obligations not to use confidential information or to
solicit employees that he owed to McAfee. Tejeda did not respond. Instead, an in-house lawyer
for Tanium, sent a letter on May 13, 2019, informing McAfee that Tanium was hiring Coe, another
sales support executive who formerly reported to Tejeda, in addition to Kinney.
Faced with a competitor replicating McAfee’s sales support team, McAfee commissioned
a forensic analysis of the McAfee computers used by Kinney and Coe to determine whether they
had taken confidential information upon their departures. That analysis revealed they had. In fact,
those two Employee Defendants engaged in a pattern of accessing confidential McAfee
information both before and after announcing their resignations from McAfee. Unauthorized
actions by Kinney included emailing confidential McAfee sales documents to her private email
address after she announced her resignation, creating Google Drive1 folders entitled “MCAFEE
– Google Drive” and “WORK – Google Drive” during her last week, and accessing those cloud
storage folders concurrent with confidential McAfee files.

Coe also accessed numerous

confidential files while using unauthorized USB devices on his last day at McAfee.
The information taken by the Employee Defendants for the benefit and/or at the direction
of Tanium constitutes trade secrets of McAfee. The actual and threatened disclosure and use of
these trade secrets violates the Defend Trade Secrets Act, the Texas Uniform Trade Secrets Act,
the contracts signed by the Employee Defendants, and the common law of the State of Texas.
McAfee brings this action to remedy those violations and to prevent further harm from the
Defendants’ actions.

1

A Google Drive is a cloud-based, file hosting service offered by Google. Google Drive allows
users to store files on the Google servers, synchronize files across devices, and share files. See
https://www.google.com/drive/using-drive/.
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I.
1.

PARTIES

Plaintiff McAfee is a Delaware limited liability company with its principal place of

business in California.
2.

Defendant Jennifer E. Kinney is an individual who resides in Frisco, Collin County,

Texas. Kinney may be served at her place of residence at 7448 Ravenhill Drive, Frisco, TX 75035.
3.

Defendant Alan P. Coe is an individual who resides in Bethesda, Montgomery

County, Maryland. Coe may be served at his place of residence, 5007 Allan Rd., Bethesda, MD
20816-2719. Alternatively, because Coe engages in business in this State but does not maintain a
regular place of business or a designated agent for service here and this lawsuit arises out of that
business, Coe may be served with process by serving the Texas Secretary of State at Service of
Process, Secretary of State, P.O. Box 12079, Austin, TX 78711-2079. See FED. R. CIV. P. 4(e);
TEX. CIV. PRAC. & REM. CODE § 17.044(b).
4.

Defendant Percy O. Tejeda is an individual who resides in Elk Grove, Sacramento,

County, California. Tejeda may be served at his place of residence, 6825 Fox Cliff Way, Elk
Grove, CA 95758. Alternatively, because Tejeda engages in business in this State but does not
maintain a regular place of business or a designated agent for service here and this lawsuit arises
out of that business, Tejeda may be served with process by serving the Texas Secretary of State at
Service of Process, Secretary of State, P.O. Box 12079, Austin, TX 78711-2079. See FED. R. CIV.
P. 4(e); TEX. CIV. PRAC. & REM. CODE § 17.044(b).
5.

Defendant Tanium, Inc. is a Delaware corporation with its principal place of

business in Emeryville, California. Tanium is registered to do business in the State of Texas and
may be served through its registered agent in the State of Texas, Cogency Global, Inc., 1601 Elm
St., Suite 4360, Dallas, TX 75201.

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II.
6.

JURISDICTION AND VENUE

This is an action for trade secret misappropriation arising under Title 18 of the

United States Code, as well as statutory, contractual, and tort claims under the laws of the State of
Texas.
7.

This Court has original jurisdiction under 28 U.S.C. § 1331, and supplemental

jurisdiction over Plaintiff’s claims under Texas Law pursuant to 28 U.S.C. § 1367.
8.

Venue is proper in this judicial district under 28 U.S.C. §§ 1391(b), as a district

within which a defendant resides and as a district in which a substantial part of the events and
omissions giving rise to the claims occurred.
9.

The Defendants are each subject to personal jurisdiction in this Court. Each

Defendant has sufficient minimum contacts with the State of Texas to satisfy due process and/or
the requirements of the Texas Long Arm Statute and each Defendant has purposefully availed
her/his/itself of the benefits and burdens of Texas law and/or the privileges of conducting business
in the State of Texas, including as follows:
(1) Defendant Kinney is a domiciliary, resident, and citizen of the State of Texas;
(2) Defendant Coe has contractually consented to the application of Texas law, has
consented to jurisdiction and venue in the State of Texas2, and has participated in the commission
of intentional torts with a resident of the State of Texas;

2

Coe expressly consented in §12(d) of his Proprietary Information Agreement to the exercise of
personal jurisdiction and venue in the “state and Federal courts located in the Northern District of
Texas” for any dispute arising under that agreement. With Coe having consented to jurisdiction
in Texas in a neighboring district and having participated with the other Defendants in the wrongful
conduct alleged herein, McAfee contends that it would be fundamentally fair, substantially just,
and judicially efficient for this Court to exercise personal jurisdiction over all Defendants in a
single action. If Coe objects and the Court finds that jurisdiction and/or venue in this district is
improper, McAfee respectfully requests that the Court sever the claims against Coe and transfer
the severed action to the Northern District of Texas pursuant to 28 U.S.C. § 1406(a) with a
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(3) Defendant Tejeda has intentionally directed tortious conduct at McAfee’s
operations in this State with the knowledge that the effects of that wrongful conduct would be felt
here. Specifically, Tejeda has reached into Texas in bad faith to solicit Kinney for employment at
Tanium, tortiously interfered with Kinney’s obligations under her Employment Agreement, aided
and abetted Kinney’s breach of fiduciary duties owed to McAfee, and misappropriated and
conspired with Kinney and others to misappropriate McAfee’s trade secrets in Texas.
(4) Defendant Tanium, through its agent Tejeda, has also intentionally directed
tortious conduct at McAfee’s operations in this State with the knowledge that the effects of that
wrongful conduct would be felt here. In addition, Tanium has registered to do business in Texas—
willingly submitting itself to the benefits and burdens of Texas law for the business it conducts
here—and has specifically consented to the service of legal process through an agent located in
this State.
III.
10.

BACKGROUND FACTS

The allegations set forth in paragraphs 1 – 10 and the Summary of Action are

incorporated herein.
11.

McAfee is a leading-edge cybersecurity company that provides advanced security

solutions to consumers, small and large businesses, enterprises, and governments. Security
technologies from McAfee use a unique, predictive capability that is powered by McAfee Global
Threat Intelligence, which enables home users and businesses to stay a step ahead of the next wave
of fileless attacks, viruses, malware, and other online threats.

suggestion that the action be transferred back to this Court for coordinated or consolidated pretrial
proceedings pursuant to 28 U.S.C. § 1407.
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12.

Tanium is a direct competitor of McAfee. Both Tanium and McAfee provide

cybersecurity products and services, and both companies target the same or similar clients
throughout the United States for sales of those products and services.
A.

The Employee Defendants Worked with Key McAfee Clients.
13.

Kinney, Coe, and Tejeda are all former McAfee employees who worked together as

part of McAfee’s sales support team. Kinney and Coe each held the title of “Key Deal Manager,”
and they reported to Tejeda whose title was “Director, Finance.” As Key Deal Managers for McAfee,
Kinney and Coe earned six-figure base salaries and were eligible for bonuses. Tejeda was the former
global head of sales support within finance and was also highly compensated with a base salary and
potential bonuses exceeding those of Kinney and Coe.
14.

In their roles at McAfee, the Employee Defendants supported McAfee’s sales teams

by helping them to solicit, obtain, and keep the business the sales people targeted. The Employee
Defendants helped the sales teams that they supported to formulate presentations to clients, structure
contracts, negotiate pricing, and otherwise establish and maintain client relationships. Performing
these support functions required the Employee Defendants to gain and maintain an intimate
knowledge of the “secret sauce” underlying McAfee’s sales tactics and customer strategies, including
McAfee’s pricing information, marketing plans, customer lists, deal flow, negotiating methods,
personnel, and other confidential and proprietary sales information.

Though the Employee

Defendants were assigned to different McAfee offices (Kinney in Texas, Coe in Virginia, and Tejeda
in California), they frequently collaborated in their sales support roles.
15.

The sales and customer relationships that Kinney and Coe managed at McAfee and

that Tejeda supervised were large and important to the finances of the Company—hence “Key
Deals.” These sales and customer relationships involved tens-of-millions of dollars in revenues for
McAfee, and the confidential and proprietary sales information described above helps McAfee to
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acquire, maintain, and grow these relationships. McAfee has spent many years and many millions of
dollars developing and refining this “secret sauce” of sales tactics, marketing plans, pricing, and
customer strategies. If a competitor were to acquire this information without similar expenditure of
time, money, and effort, McAfee’s market position and customer goodwill would suffer, jeopardizing
millions of dollars in annual sales.
B.

The Employee Defendants Signed Confidentiality Agreements.
16.

Due to the nature of McAfee’s business, McAfee prohibits the unauthorized

disclosure, modification, use, or loss of its proprietary and confidential information because such
unauthorized actions could damage McAfee; undermine its competitive advantage; give
competitors vital business, financial, technical or marketing information; and/or impair the value
of McAfee’s intellectual property.
17.

McAfee imposes both physical and technological barriers to accessing its

confidential and proprietary information. For example, McAfee controls physical access to its
facilities with external and internal locked doors, by employing security personnel, and by
requiring the use of access badges for employees and visitors. McAfee similarly restricts computer
system access by, among other things, the use of security software; by requiring unique usernames
and passwords for employees; by limiting access to computer files to employees with a need-toknow; and by tracking the computer usage of those with access to the system.
18.

In addition, to protect McAfee’s proprietary and confidential information, McAfee

requires its employees to execute confidentiality agreements. For example, each of the Employee
Defendants executed an “Employment Agreement” with McAfee containing confidentiality
provisions. True and correct copies of each of those Employment Agreements are attached as
Exhibits A-C to the Declaration of Brent Sturman that is attached hereto as Exhibit 1.

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19.

In their respective Employment Agreements, each Employee Defendant agreed and

acknowledged that she or he would keep all non-public information learned in connection with
McAfee’s business confidential, both during and after employment:
During and after my McAfee employment, I will hold in strict confidence and not
disclose or use any Confidential Information connected with McAfee business or the
business of McAfee’s suppliers, customers, employees, or contractors unless (i) such
disclosure or use is required in connection with my McAfee work, (ii) such
information becomes lawfully and publicly known outside McAfee, or (iii) [a]
McAfee officer expressly authorizes such disclosure or use in advance and in writing.
Employment Agreement §3.
20.

The Employment Agreement defines “Confidential Information” to include, without

limitation “technical information . . . business information . . . personnel information . . . and other
non-public McAfee data and information of similar nature.” Id.
21.

Each Employee Defendant further agreed, “to return to McAfee all of its Confidential

Information (hard or soft copies; originals and copies) as well as all devices and equipment belonging
to McAfee (including computers, handheld electronic devices, telephone equipment and other
electronic devices) either at the termination of [her] McAfee employment or upon McAfee’s request.”
Id.
22.

In addition, each Employee Defendant agreed that “any violation of this provision

[§3] will result in immediate and irreparable injuries and harm to McAfee, and that McAfee shall be
entitled to all available legal and equitable remedies, including injunctive relief and specific
performance, without having to post bond.” Id.
23.

The Employee Defendants also agreed that they would not utilize any Confidential

Information learned in the course of their employment with McAfee to help any third party target,
identify, or solicit business from McAfee customers or induce McAfee employees to leave their
employment:

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I further agree that I shall not use or disclose McAfee Confidential Information to aid
any third party to target, identify, and/or solicit McAfee customers or McAfee
employees to leave McAfee employment and/or misappropriate McAfee trade secrets
or assist or aid any third party in any manner to do the same.
Employment Agreement §6.
24.

As with the confidentiality provisions, the Employee Defendants agreed that a

violation of this non-solicit provision would warrant the issuance of injunctive relief against them:
I agree that any violation of this provision [§6] will result in immediate and irreparable
injuries and harm to McAfee, and that McAfee shall be entitled to all available legal
or equitable remedies, including injunctive relief and specific performance, without
having to post bond.
Id.
25.

In exchange for these promises by the Employee Defendants in the Employment

Agreement, McAfee employed each Employee Defendant and provided Confidential Information to
each of them during the course of their employment that McAfee would not otherwise have given
them, but for the promises each made in their respective Employment Agreement.
26.

In addition to signing an Employment Agreement, Coe also signed a “Proprietary

Information and Inventions Assignment Agreement” (the “Proprietary Information Agreement”)
with McAfee that contains confidentiality provisions. A true and correct copy of the Proprietary
Information Agreement is attached as Exhibit D to the Declaration of Brent Sturman.
27.

In the Proprietary Information Agreement, Coe specifically acknowledged the

confidential nature of his relationship with McAfee and agreed to keep McAfee’s proprietary
information confidential:
(a) Employee’s employment by the Company creates a relationship of confidence
and trust between the Company and Employee with respect to the “Proprietary
Information of the Company” (as defined below); (b) the Proprietary Information
of the Company has commercial value in the business in which the Company is
engaged; and (c) during the term of Employee’s employment by the Company
and at all times thereafter, Employee will hold all Proprietary Information of
the Company that Employee has received prior to the date hereof, and that
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Employee receives following the date hereof, in strict confidence and will neither
use any such Proprietary Information of the Company nor disclose it to anyone,
except to the extent necessary to carry out Employee’s responsibilities and services
as an employee of the Company. Employee will promptly notify the Company, in
writing, of any misappropriation or misuse of Proprietary Information of the
Company of which Employee becomes aware.
Proprietary Information Agreement §2.
28.

The Proprietary Information Agreement defines “Proprietary Information of the

Company” to include all information in any form pertaining to McAfee or its business:
“Proprietary Information of the Company”, whether in tangible or intangible
form, means any and all information pertaining in any manner to the Company or
its business, including without limitation: (i) information concerning the
techniques, processes, formulas, improvements, ideas, and methods of the
Company; . . . (vi) the Company’s business plans and methods; . . . (viii) the
Company’s marketing or sales strategies and techniques; (ix) information about
pricing of the Company’s products or services; (x) lists of and information
concerning existing or potential clients, customers, consultants, suppliers, vendors,
strategic partners and other business relations; (xi) employee personnel files and
information about employee compensation and benefits . . . .
Id. §3(b).
29.

In addition, Coe undertook affirmative obligations in the Proprietary Information

Agreement to return technology resources of the Company, like email, and not to keep copies of
those resources when his employment ended:
Employee agrees (a) to comply with all of the Company’s security policies and
procedures as in force from time to time, including those regarding computer,
telephone and voicemail equipment and systems . . . e-mail systems, computer
networks, document storage systems, . . . and communication technologies
(collectively, “Technology Resources”), and (b) not to access or use any
Technology Resources except as authorized by the Company . . . Upon the
voluntary or involuntary termination of Employee’s employment with the
Company for any reason, or upon the Company’s request at any time during
Employee’s employment with the Company, Employee will immediately deliver to
the Company, and will not keep in Employee’s possession, recreate or deliver to
anyone else, any and all Technology Resources or Proprietary Information of the
Company that is in Employee’s possession or control, whether developed by
Employee pursuant to Employee’s employment with the Company, obtained by
Employee in connection with Employee’s employment with the Company or
otherwise belonging to the Company.
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Id. § 8.
30.

Further, Coe agreed to the application of Texas law and consented to jurisdiction

and venue in Texas for disputes arising under the Proprietary Information Agreement. Id. § 12(c)
& (d).
31.

As with the Employment Agreement, McAfee employed Coe and provided

Proprietary Information of the Company to Coe during the course of that employment that McAfee
would not otherwise have given Coe, but for the promises Coe made in the Proprietary Information
Agreement.
C.

Tejeda and Tanium Induced Kinney and Coe to Resign from McAfee.
32.

On March 28, 2019, Kinney resigned her employment at McAfee. Unknown to

McAfee at the time, Kinney had spent the preceding weeks being recruited by Tejeda and
interviewing for employment with Tanium. Kinney officially received and accepted an offer of
employment at Tanium the day before she resigned her employment at McAfee. In this position at
Tanium, Kinney is likely to face many of the same sales teams and customers that she formerly
managed at McAfee.
33.

Upon learning of Kinney’s recruitment by Tejeda to join Tanium, McAfee wrote to

Tejeda with a copy to Tanium, reminding Tejeda of his contractual obligation not to solicit McAfee
employees.
34.

Tejeda did not respond to McAfee’s letter. Instead, an in-house lawyer for Tanium

responded to McAfee on May 13, 2019. Though the Tanium letter claimed that Tanium would police
its employees, the letter also informed McAfee that Tanium had just hired Coe, the third member of
the former McAfee sales support team.
35.

With Tanium now targeting multiple McAfee employees and placing them in

positions with the same job responsibilities and reporting structure, McAfee sent another letter on
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May 16, 2019, addressed individually to Tanium, Kinney, Coe, and Tejeda. McAfee again insisted
that its former employees comply with their contractual obligations and that Tanium not interfere with
those contractual relationships. McAfee demanded assurances from the Employee Defendants that
they would abide by their contractual obligations, and McAfee demanded that they take specific
actions to protect against further use or disclosure of McAfee’s trade secrets.
36.

The Employee Defendants did not respond to McAfee’s May 16, 2019, letter.

Instead, Tanium sent a three-paragraph response on May 23, 2019, claiming that it “takes these
matters seriously” while ignoring McAfee’s specific demands.
D.

Forensic Analysis of the McAfee Computers Show Misappropriation of McAfee’s
Confidential and Proprietary Information.
37.

Given this targeting of a McAfee team by Tanium and the refusal of those former

employees to provide requested assurances, McAfee commissioned a forensic review and analysis of
the computers McAfee had provided Kinney and Coe for use in their jobs at McAfee (the “McAfee
Computers”).
38.

Through the use of computer forensics, McAfee has discovered that Kinney and

Coe each accessed numerous confidential McAfee sales documents while pursuing employment at
Tanium—and even after announcing their resignations from McAfee—for which neither appears to
have had a legitimate McAfee business purpose.
39.

For example, after interviewing with Tanium and a few days before Kinney resigned

from McAfee, Kinney used a McAfee Computer to search google.com for “how to store files on
Google drive.”3 Kinney then used the McAfee Computer to access numerous Google Drive folders—

3

A Google Drive is a cloud-based, file hosting service offered by Google. Google Drive allows
users to store files on the Google servers, synchronize files across devices, and share files. See
https://www.google.com/drive/using-drive/.
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including storage folders entitled “MCAFEE – Google Drive” and “WORK – Google Drive”.
Kinney also used several unauthorized USB devices on the McAfee Computer during this recruitment
period.
40.

Though the forensics could not determine definitively the extent to which Kinney

copied McAfee files to the unauthorized cloud storage or USB devices,4 the forensics show Kinney
accessed confidential McAfee sales documents concurrently with her use of the Google Drives and
USB devices. For example, Kinney repeatedly used Google Docs to access a file entitled “Work
Financials” in the WORK – Google Drive folder in the days leading up to her resignation. A file with
the same name had previously existed on the McAfee Computer, but Kinney deleted it from the
McAfee Computer the same day she created the WORK folder on Google Drive, suggesting she had
moved the file to the Google Drive. Kinney’s use of Google Docs also coincides with her accessing
multiple McAfee network folders containing information about McAfee contracts, suggesting she
copied information from files in those folders to the Google document.
41.

In addition, it appears from the computer forensic analysis that Kinney emailed

highly confidential and valuable sales and marketing information out of the Company while she
was still an employee of McAfee. Specifically, the forensic analysis of the McAfee Computer
shows that Kinney composed an email using one of her personal Gmail accounts
(jekinney77@gmail.com) the day before Kinney resigned from McAfee (which was the day
Kinney received her official offer of employment from Tanium). The computer records show that
Kinney opened two files on the McAfee Computer while creating that email—Chris_DAM Proposal
3yr (Q-00059789).xlsx and Deak Desk Deal Tracker.xlsx—meaning Kinney likely attached those

4

To obtain additional proof, McAfee will need access to the Google Drives and USB devices.
Accordingly, McAfee is submitting a motion for expedited discovery concurrently with this
complaint to gain access to those materials.
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documents to the email. While both of these Excel files contain confidential McAfee customer
information, the Deal Tracker file is particularly sensitive. The Deal Tracker file contains detailed
information about hundreds of actual and potential McAfee sales—including the name of the client,
type of deal, forecasts, quotes, costs, representatives, and pricing notes—from the first quarter of
2017 through the first quarter of 2019. The Gmail account Kinney used for this email is the same
Gmail account that she used to communicate with Tanium regarding her potential employment.
42.

In addition to these unauthorized activities before Kinney’s resignation, Kinney also

committed numerous unauthorized acts after she resigned. For example, Kinney again accessed the
Deal Tracker file after she announced her resignation. There was no legitimate McAfee business
purpose for Kinney to be accessing this confidential sales and marketing information at that time.
43.

Similarly, Kinney accessed an internal McAfee database containing detailed

information about customer orders. The information in those files includes pricing, product orders,
contract renewal dates, and other proprietary information. The files Kinney reviewed on the day she
resigned from McAfee included orders that would be up for renewal in the coming months—precisely
the kind of confidential information a competitor (like Tanium) could use to solicit that business.
There was no legitimate McAfee business purpose for Kinney to be accessing this confidential
pricing, product, and customer information at that time.
44.

In addition, some of Kinney’s last acts on the McAfee Computer were to forward

nineteen emails to another of her personal email accounts (onesweetlime@gmail.com). Several of
those emails contained McAfee business files relating to recent sales, sales projections, customers,
and the McAfee sales team. For example, one file summarized McAfee’s sales results in the western
region for the fourth quarter of 2018 (the last complete quarter before Kinney’s resignation), discussed
performance of McAfee sales personnel, and contained information about McAfee’s top accounts.

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Another file contained similar information for McAfee’s eastern region and focused on McAfee’s
sales strategies. The third file discussed a multi-million dollar sale to a specific client and contained
information about the client, the McAfee products sold, the sales team responsible, and the reasons
for their success. When Kinney sent those files to her personal email account, she had no work to
perform for McAfee, those files had not become lawfully and publicly known outside McAfee, and
no McAfee officer had pre-authorized the disclosure of those files.
45.

Through the forensic computer analysis, McAfee has also discovered that Coe, like

Kinney, used his McAfee Computer to access numerous confidential McAfee documents on his
last day of employment with McAfee.
46.

Particularly problematic with Coe is his access to email archives containing

information about some of McAfee’s largest clients. One archive, in particular, contains emails
relating to a multi-million dollar client of McAfee whose business is currently up for renewal. Coe
was working on that renewal project before he resigned, and Tanium is competing with McAfee
for that business. The forensic analysis shows that Coe accessed that archive and then one minute
later plugged a USB printer with storage capability into the McAfee Computer.
47.

The forensic analysis further showed that Coe accessed at least a dozen other files

and folders containing confidential and proprietary McAfee information on the day he resigned.
Given Coe’s resignation, there was no further work for him to perform for McAfee and no McAfee
business purpose for him to access that information.
48.

Attached hereto as Exhibit 2 is the Declaration of Lee Whitfield describing results

from the forensic analysis of the McAfee Computers used by Coe and Kinney.
IV.

CAUSES OF ACTION

Claim I – Misappropriation of Trade Secrets Under 18 U.S.C. § 1836, et seq.
(All Defendants)

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49.

McAfee re-alleges and incorporates the allegations in the preceding paragraphs.

50.

McAfee is the owner of certain trade secrets relating to sales tactics and customer

strategies, including pricing information, marketing plans, customer lists, deal flow, negotiating
methods, personnel, and similar confidential and proprietary sales information.
51.

These trade secrets relate to products used in, and intended for use in, interstate

commerce.
52.

McAfee has taken reasonable measures to keep this information secret. Such

measures include the requirement that each of the Employee Defendants enter into the
Employment Agreements shown in Exhibits A-C and that Coe enter into the Proprietary
Information Agreement shown in Exhibit D. McAfee has also restricted physical access and
computer system access to such information as described herein.
53.

McAfee’s trade secrets derive independent economic value, both actual and

potential, from not being generally known to, and not readily ascertainable through proper means
by, another person (like Tanium) who can obtain economic value from the disclosure or use of the
information.
54.

The Defendants, individually and/or acting in concert, have misappropriated

McAfee’s trade secrets by accessing, copying, duplicating, downloading, uploading, e-mailing,
and/or otherwise conveying McAfee’s trade secrets without authorization and in knowing violation
of the confidentiality agreements signed by the Employee Defendants and other restrictions
imposed by law.
55.

The Defendants, individually and/or acting in concert, threaten further

misappropriation. McAfee and Tanium are direct competitors. Tanium has recreated a McAfee
sales support team by hiring two Key Deal Managers and placing them in comparable positions

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reporting to the same individual at Tanium who formerly supervised them at McAfee. The
similarity of the positions, responsibilities, and reporting structure of the Employee Defendants at
the two companies makes it is unlikely that the Employee Defendants can perform their jobs at
Tanium without using McAfee’s confidential and proprietary information to aid Tanium in the
solicitation of McAfee’s customers and employees. Rather, it is probable that the Employee
Defendants will continue to misappropriate McAfee’s trade secrets for the benefit of Tanium
unless restrained by the Court from doing so.
56.

To prevent further threatened and actual misappropriation by Defendants, McAfee

requests that the Court enter temporary and permanent injunctive relief, as provided by 18 U.S.C.
§ 1836(b)(3)(A), and has filed an Emergency Motion for Temporary Restraining Order,
Preliminary Injunction, and Permanent Injunction contemporaneously herewith.
57.

In addition, McAfee has suffered actual loss from this misappropriation and

threatened misappropriation of its trade secrets, and/or Defendants have been unjustly enriched by
their misappropriation, entitling McAfee to an award of damages under 18 U.S.C. § 1836(b)(3)(B).
Moreover, Defendants’ misappropriation was willful and malicious, supporting an award of
exemplary damages under 18 U.S.C. § 1836(b)(3)(C).
Claim II – Misappropriation of Trade Secrets Under TUTSA (Tex. Civ. Prac. & Rem.
Code §134A.001, et seq.) (All Defendants)
58.

McAfee re-alleges and incorporates the allegations in the preceding paragraphs.

59.

McAfee’s confidential information regarding its financial data (including highly

sensitive and non-public correspondence and agreements; financial records, statements, and
related documents; pricing information; customer information; personnel information; and similar
non-public data) have economic value to McAfee because such information is not generally known
or readily ascertainable through proper means by persons including competitors of McAfee, who

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may obtain economic value from its use. McAfee takes reasonable efforts to protect the secrecy
of such confidential and proprietary information through physical security, confidentiality
agreements, and electronic and data security measures. As such, this information qualifies as trade
secrets under the Texas Uniform Trade Secrets Act (“TUTSA”).
60.

TUTSA specifically authorizes injunctive relief both to remedy existing

misappropriation and to prevent the threatened misappropriation of trade secrets.
61.

McAfee provided the Employee Defendants with information constituting trade

secrets within the meaning of TUTSA during the course of their employment, as described above.
Those trade secrets are the exclusive property of McAfee.
62.

By taking such trade secret information without permission, the Employee

Defendants have committed actual misappropriation in violation of TUTSA.
63.

In addition or in the alternative, because Tanium, a direct competitor of McAfee,

now employs the Employee Defendants in positions comparable to the positions they held at
McAfee and with a comparable reporting structure, it is probable that the Employee Defendants
will use or disclose McAfee’s trade secrets for the benefit of their new employer, Tanium. This
threat of further use or disclosure is also a violation of TUTSA.
64.

This actual and/or threatened misappropriation of McAfee’s trade secrets has or

will cause irreparable harm for which monetary compensation is insufficient. McAfee is thus
entitled to temporary, preliminary, and permanent injunctive relief to prevent Defendants from
continuing to misappropriate, or to threaten to misappropriate, McAfee’s trade secrets.
65.

McAfee also prays that it recover its monetary damages for Defendants’ actual and

threatened misappropriation of McAfee’s trade secrets. Moreover, because Defendants’ actions

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constitute willful and malicious misappropriation, McAfee requests an award of exemplary
damages as provided by TUTSA.
Claim III – Breach of Contract (Against Employee Defendants)
66.

McAfee re-alleges and incorporates the allegations in the preceding paragraphs.

67.

The Employment Agreements are valid and enforceable contracts between McAfee

and the Employee Defendants. Likewise, the Proprietary Information Agreement is a valid and
enforceable agreement between McAfee and Coe.
68.

In breach of those agreements, Employee Defendants have failed to hold

Confidential Information and Proprietary Information of the Company (as defined in those
agreements) in strict confidence, and they have used, disclosed, and/or failed to return such
information as required by those agreements.
69.

In addition or in the alternative, Employee Defendants have failed to perform in

good faith and have breached those agreements (as applicable) by using and/or disclosing
information to assist or aid third parties (e.g., Tanium) to target, identify, and/or solicit McAfee
customers or employees and/or to misappropriate McAfee trade secrets.
70.

Employee Defendants’ breaches of these agreements and use and/or disclosure of

McAfee’s Confidential Information and/or Proprietary Information of the Company have caused or
will cause McAfee injury—and Tanium unjust enrichment—by undermining McAfee’s
competitive advantage, providing its competitor with vital business, financial, technical or
marketing information, and/or impairing the value of McAfee’s intellectual property and goodwill.
71.

The Employee Defendants each acknowledged and agreed that violations of their

agreements would result in immediate and irreparable injuries and harm to McAfee and would entitle
McAfee to receive all available legal and equitable remedies, including injunctive relief and specific
performance, without the need of posting a bond.
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72.

Unless the Court restrains the Employee Defendants from these violations of their

contractual obligations, McAfee will continue to suffer these irreparable injuries for which it has no
adequate remedy at law. These irreparable injuries include the potential for further disclosure, use,
or destruction of McAfee’s confidential and proprietary information, which includes highly sensitive
and non-public technical information, business information, personnel information, and other
McAfee data and information of similar nature.
73.

The threatened injury to McAfee outweighs any injury or legal right, which might be

asserted by the Employee Defendants. McAfee has a substantial likelihood of success on the merits
of this action; thus, the issuance of a temporary restraining order, preliminary injunction, and
permanent injunctive relief will not injure the public interest.
74.

Accordingly, McAfee prays that the Court issue a temporary restraining order,

preliminary injunction, and permanent injunction in this case.
75.

In addition, McAfee prays that it recover monetary damages based on the Employee

Defendants’ breaches of their contractual duties.
Claim IV – Tortious Interference with Contract (Tejeda and Tanium)
76.

McAfee re-alleges and incorporates the allegations in the preceding paragraphs.

77.

McAfee has valid, enforceable agreements with each of the Employee Defendants.

78.

Tejeda has, at all relevant times, had actual knowledge of these contracts—indeed

Tejeda has executed a substantively identical Employment Agreement—and Tanium has imputed
knowledge through Tejeda as its agent. Moreover, McAfee informed Tanium and Tejeda of the
agreements after it learned that Tanium had recruited Kinney.
79.

Tejeda and Tanium interfered with the obligations of Kinney and Coe under their

agreements by inducing Kinney and Coe to violate those agreements. In addition, Tanium

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interfered with Tejeda’s agreement by inducing Tejeda to violate his agreement by recruiting
Kinney and/or Coe.
80.

McAfee has suffered harm, and Tejeda and Tanium have been unjustly enriched,

as a result of these wrongful actions, and McAfee prays that it recover the damages Tejeda and
Tanium have caused. In addition, the actions of Tejeda and Tanium were willful and malicious and
support an award of exemplary or punitive damages.
Claim V – Breach of Fiduciary Duty (Kinney and Coe)
81.

McAfee re-alleges and incorporates the allegations in the preceding paragraphs.

82.

While employed by McAfee, Kinney and Coe owed fiduciary duties of loyalty,

candor, and care to act in the best interests of McAfee as employees. Even after resigning, Kinney
and Coe retained a fiduciary duty not to use or divulge McAfee’s trade secrets.
83.

Kinney and Coe, however, breached these fiduciary duties when each accessed,

downloaded, uploaded, e-mailed, or otherwise took McAfee’s confidential and proprietary
business information and trade secrets without permission or a business purpose for McAfee while
still employed by McAfee.
84.

In addition, after their respective resignations from McAfee, Kinney and Coe

continued to possess McAfee’s trade secrets and probably disclosed and used those McAfee trade
secrets in comparable positions with Tanium.
85.

McAfee has suffered, and will suffer, harm from these breaches of fiduciary duties,

and Defendants—especially Tanium—have been, and will be, unjustly enriched.
86.

McAfee prays that it recover monetary damages for these breaches of fiduciary duties.

In addition, the actions of Kinney and Coe were willful and malicious and support an award of
exemplary or punitive damages.

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Claim VI – Aiding and Abetting Breach of Fiduciary Duty (Tejeda and Tanium)
87.

McAfee re-alleges and incorporates the allegations in the preceding paragraphs.

88.

A third party that knowingly induces a fiduciary to breach a duty or participates in

the breach is liable as a joint tortfeasor.
89.

Tanium and Tejeda knew of the fiduciary duties Kinney and Coe owed as

employees of McAfee, but induced those McAfee employees to violate their fiduciary duties and
participated in those violations.
90.

Such actions have caused, and will continue to cause, harm to McAfee and unjust

enrichment to Tanium, as described herein.
91.

McAfee prays that Tanium and Tejeda be held jointly and severally liable with Kinney

and Coe for this harm, and that they be found liable for exemplary or punitive damages as well.
Claim VI – Conspiracy to Misappropriate Trade Secrets, Tortiously Interfere with
Contracts, and Breach Fiduciary Duties (All Defendants)
92.

McAfee re-alleges and incorporates the allegations in the preceding paragraphs.

93.

Defendants Tanium, Kinney, Coe, and Tejeda, conspired and agreed with and

among some or all of each other to misappropriate McAfee’s trade secrets, tortiously interfere with
McAfee’s contracts, and breach fiduciary duties owed to McAfee.
94.

In furtherance of and to accomplish the object of their agreement, Defendants

committed the overt acts of misappropriation, interference, and breaches described herein.
95.

Such actions have caused, and will continue to cause, harm to McAfee and unjust

enrichment to Tanium, as described herein.
96.

McAfee prays that Defendants be held jointly and severally liable for this harm,

and that they be found liable for exemplary or punitive damages as well.

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Claim VII – Attorneys’ Fees (All Defendants)
97.

McAfee re-alleges and incorporates the allegations in the preceding paragraphs.

98.

McAfee has presented its claims to Defendants, but Defendant have either failed to

respond or failed to correct their behavior. Defendants’ actions have forced McAfee to retain the
undersigned attorneys in connection with the litigation of this matter, and McAfee has agreed to
pay the undersigned attorneys a reasonable fee for their services.
99.

McAfee asks that this Court award McAfee its reasonable attorneys’ fees and other

costs pursuant to Chapter 38 and/or Section 134A.005 of the Texas Civil Practice & Remedies
Code, or other applicable laws.
100.

Additionally, Defendants’ misappropriation of McAfee’s trade secrets was done

willfully and maliciously. To that end, McAfee requests that the Court award McAfee its
reasonable attorneys’ fees under 18 U.S.C. § 1836(b)(3)(D).
PRAYER
For the foregoing reasons and circumstances, created wholly by the conduct of Defendants,
Plaintiff respectfully requests that the Court enter judgment against Defendants for all of the
following:
a) Injunctive relief, including a temporary restraining order, preliminary injunction, and
permanent injunction;
b) Actual damages;
c) Exemplary Damages;
d) Prejudgment and post judgment interest;
e) Costs;
f) Attorneys’ fees; and
g) Such other relief, both at law and in equity, to which McAfee may be entitled.

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DATED:

June 24, 2019
Respectfully submitted,
KATTEN MUCHIN ROSENMAN LLP
/s/ Kelly D. Hine
Kelly D. Hine
State Bar No. 24002290
kelly.hine@kattenlaw.com
Emily Travis
State Bar No. 24079229
emily.travis@kattenlaw.com
Dorlin Lafer-Sousa
State Bar No. 24098960
dlsousa@kattenlaw.com
1717 Main Street, Suite 3700
Dallas, Texas 75201
214.765.3600 Telephone
214.765.3602 Facsimile
ATTORNEYS FOR PLAINTIFF
MCAFEE, LLC

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