Proofpoint, Inc. v. Vade Secure, Incorporated

Opinion

1 2 3 IN THE UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 6 PROOFPOINT, INC., et al., Case No. 19-cv-04238-MMC

7 Plaintiffs, ORDER GRANTING IN PART AND 8 v. DENYING IN PART DEFENDANT LEMARIÉ'S MOTION FOR PARTIAL 9 VADE SECURE, INCORPORATED, et SUMMARY JUDGMENT al., 10 Defendants.

11 12 Before the Court is defendant Olivier Lemarié's ("Lemarié") Motion for Partial 13 Summary Judgment, filed April 24, 2021. Plaintiffs Proofpoint, Inc. ("Proofpoint") and 14 Cloudmark LLC ("Cloudmark") have filed opposition, to which Lemarié has replied. 15 Having read and considered the parties' respective written submissions, the Court rules 16 as follows.1 17 BACKGROUND 18 In the operative complaint, the First Amended Complaint ("FAC"), plaintiffs allege 19 Cloudmark employed Lemarié as its Vice President of Gateway Technology from 2010 20 until November 11, 2016 (see FAC ¶¶ 30, 54), and that, in February 2017, Lemarié 21 began working for defendants Vade Secure, Incorporated and Vade Secure SASU 22 (collectively, "Vade Secure") as their Chief Technology Officer (see FAC ¶ 54). Plaintiffs 23 further allege "Vade [Secure] – like Cloudmark and Proofpoint2 – develops and markets 24 cyber security products." (See FAC ¶ 7.) 25 According to plaintiffs, Vade Secure and Lemarié entered into a "scheme" to 26 1 By order filed May 25, 2021, the Court took the matter under submission. 27 1 "misappropriate, misuse, and copy [p]laintiffs' proprietary and confidential information, 2 including valuable trade secrets, to gain an unfair competitive advantage in the 3 marketplace." (See FAC ¶ 1.) In particular, plaintiffs allege, Lemarié, in the course of his 4 employment with Vade Secure, has used "Cloudmark's confidential and trade secret 5 information for the development of Vade [Secure]'s . . . products" (see FAC ¶ 11), and 6 that he "still possess[es] one or more unauthorized copies of [p]laintiffs' confidential and 7 proprietary source code, which incorporates and implements [p]laintiffs' asserted trade 8 secret and proprietary technology" (see FAC ¶ 39). 9 Based on said allegations, plaintiffs assert, against all defendants, a claim for 10 misappropriation of trade secrets and a claim for copyright infringement. In addition, 11 plaintiffs assert against Lemarié four claims titled "Breach of Contract," each of which is 12 based on an alleged violation of an obligation set forth in Lemarié's employment 13 agreement. 14 LEGAL STANDARD 15 Pursuant to Rule 56 of the Federal Rules of Civil Procedure, a "court shall grant 16 summary judgment if the movant shows that there is no genuine issue as to any material 17 fact and that the movant is entitled to judgment as a matter of law." See Fed. R. Civ. P. 18 56(a). 19 The Supreme Court's 1986 "trilogy" of Celotex Corp. v. Catrett, 477 U.S. 317 20 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Electric 21 Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), requires that a party seeking 22 summary judgment show the absence of a genuine issue of material fact. Once the 23 moving party has done so, the nonmoving party must "go beyond the pleadings and by 24 [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on 25 file, designate specific facts showing that there is a genuine issue for trial." See Celotex, 26 477 U.S. at 324 (internal quotation and citation omitted). "When the moving party has 27 carried its burden under Rule 56[ ], its opponent must do more than simply show that 1 "If the [opposing party's] evidence is merely colorable, or is not significantly probative, 2 summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (citations 3 omitted). "[I]nferences to be drawn from the underlying facts," however, "must be viewed 4 in the light most favorable to the party opposing the motion." See Matsushita, 475 U.S. at 5 587 (internal quotation and citation omitted). 6 DISCUSSION 7 By the instant motion, Lemarié seeks summary judgment on the four breach of 8 contract claims asserted against him, which claims are asserted as Counts II through IV 9 in the FAC. The Court considers the four Counts, in turn.

10 A. Count II – "Unauthorized Disclosure and Failure to Maintain Confidentiality of Cloudmark Propriety Information" 11 In Count II, plaintiffs allege Lemarié violated the terms of his employment 12 agreement, titled "Employee Proprietary Information and Inventions Agreement ("PIIA"), 13 by using, without obtaining Cloudmark's permission, "Cloudmark's Proprietary Information 14 in the design and development of Vade [Secure]'s integration with Microsoft Office 365 15 products," and by using and disclosing to Vade Secure two types of Cloudmark's 16 proprietary information, specifically, information "relating to the design, development, and 17 operation of the Cloudmark Trident anti-spear phishing and related products" and 18 "relating to the design, development, and operation of the Cloudmark MTA technology." 19 (See FAC ¶¶ 1, 84.) 20 The provision of the PIIA precluding disclosure of Cloudmark's proprietary 21 information reads as follows: 22 At all times during my employment and thereafter, I will hold in strictest 23 confidence and will not disclose, use, lecture upon or publish any of the Company's Proprietary Information . . ., except as such disclosure, use or 24 publication may be required in connection with my work for the Company, or unless an officer of the Company expressly authorizes such in writing. 25 (See Budaj Decl. Ex. H ¶ 1.1)3 26 27 1 The PIAA defines "Proprietary Information" as follows:

2 The term "Proprietary Information" shall mean any and all confidential and/or proprietary knowledge, data or information of the Company. By way 3 of illustration but not limitation, "Proprietary Information" includes (a) trade secrets, inventions, mask works, ideas, processes, formulas, source and 4 object codes, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques 5 (hereinafter collectively referred to as "Inventions"); and (b) information regarding plans for research, development, new products, marketing and 6 selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, suppliers and customers; and (c) information 7 regarding the skills and compensation of other employees of the Company. 8 (See id. Ex. H ¶ 1.2) 9 In seeking summary judgment on Count II, Lemarié contends the above-quoted 10 provisions are void under § 16600 of the California Business & Professions Code and, 11 even if those provisions are not void, the relief plaintiffs seek is not available under state 12 contract law. 13 1. Business & Professions Code § 16600 14 Section 16600 of the California Business & Professions Code provides that "every 15 contract by which anyone is restrained from engaging in a lawful profession, trade, or 16 business of any kind is to that extent void." See Cal. Bus. & Prof. Code § 16600. Here, 17 Lemarié argues, the definition of "Proprietary Information" is "overly broad and 18 impermissibly vague," and, if enforced, would result in a "substantial restraint on . . . 19 Lemarié's future employment." (See Def.'s Mot. at 3:5-6, 20.) 20 In support of his argument, however, Lemarié fails to offer any evidence, whereas 21 parties that have successfully challenged a contractual provision under § 16600 ordinarily 22 have done so only after having submitted evidence clearly demonstrating enforcement of 23 such provision would result in a prohibited restraint. See, e.g., Golden v. California 24 Emergency Physicians Medical Group, 896 F.3d 1018, 1026 (9th Cir. 2018) (finding 25 provision in settlement agreement void under § 16600, where detailed "facts persuade[d]" 26 court such provision's "effect on [plaintiff's] medical practice [was] substantial"); Dowell v. 27 Biosense Webster, Inc., 179 Cal. App. 4th 564, 570, 575 (2009) (finding "noncompete 1 establishing how provision, if enforced, would preclude them from working in their chosen 2 professions); see also Whitewater West Industries, Ltd. v. Alleshouse, 981 F.3d 1045, 3 1056 (Fed. Cir. 2020) (holding "threshold ground for application of § 16600" is "evidence 4 of a restraining effect on [plaintiff's] ability to engage in his profession"). 5 Although circumstances may exist where the restraining effect of a contractual 6 provision is so obvious that no additional evidence need be offered, see e.g., Muggill v. 7 Reuben H. Donnelly Corp., 62 Cal. 239, 243 (1965) (holding "provision forfeiting plaintiff's 8 pension rights if he works for a competitor restrains him from engaging in a lawful 9 business and is therefore void"), in this instance, no such restraining effect is self-evident. 10 Indeed, courts that have considered provisions similar to ¶¶ 1.1 and 1.2 have found those 11 provisions enforceable in the absence of a factual showing as to a resulting restraint. 12 See Magic Leap, Inc. v. Xu, 2020 WL 3268659, at *3-*4 (N.D. Cal. June 17, 2020) 13 (rejecting facial challenge to provision precluding use of confidential information defined 14 "to include 'products,’ ‘processes,’ ‘technology,’ ‘customer lists and customers,’ and 15 ‘services,’ as well as broader concepts such as ‘know-how,’ ‘business information,’ 16 ‘processes,’ and ‘ideas’; finding determination of asserted restraint would require "fact- 17 intensive inquiry"); SPS Technologies, LLC v. Briles Aerospace, Inc., 2019 WL 6841992, 18 at *12-*13 (C.D. Cal. October 30, 2019) (rejecting facial challenge to provision's broadly 19 worded definition of confidential information; finding determination as to whether 20 "provision[ ] operate[s] as a substantial restraint for purposes of section 16600 is a fact- 21 intensive inquiry"). 22 Accordingly, the Court finds Lemarié has failed to show, on the present record, 23 ¶¶ 1.1 and 1.2 are void under § 16600. 24 2. Monetary Relief 25 In the FAC, and confirmed in plaintiffs' answers to Lemarié's interrogatories, 26 plaintiffs seek, as remedies for Lemarié's alleged breach of ¶ 1.1, both monetary and 27 equitable relief. (See FAC ¶¶ 85-86; Budaj Decl. Ex. I at 60-61.) 1 monetary relief sought by plaintiffs, specifically, plaintiffs' claim that he is required to 2 disgorge all compensation he received from Cloudmark. 4 3 Plaintiffs' disgorgement theory is set forth in an expert report authored by 4 Jonathan Arnold, Ph.D. ("Dr. Arnold"), wherein Dr. Arnold sets forth his opinions as to 5 available remedies if liability is established. (See Budaj Decl. Ex. J.) With respect to 6 plaintiffs' breach of contract claims, plaintiffs are, in Dr. Arnold's opinion, entitled to 7 recover from Lemarié "the compensation [plaintiffs] paid . . . Lemarié since the start of his 8 employment with [Cloudmark]." (See id. Ex. J at 30.) 9 Lemarié contends "[n]o legal principle" supports plaintiffs' position that an 10 appropriate remedy for the alleged disclosure and use of Cloudmark's proprietary 11 information is disgorgement of the compensation Cloudmark paid Lemarié. (See Def.'s 12 Mot. at 4:23.) The Court agrees. Although, "[u]nder California law, a defendant's unjust 13 enrichment can satisfy the 'damages' element of a breach of contract claim, such that 14 disgorgement is a proper remedy," see Foster Poultry Farms, Inc. v. SunTrust Bank, 377 15 Fed. Appx. 665, 669 (9th Cir. 2010), in the cases allowing such remedy, the defendant 16 had obtained a financial benefit from its breach of contract and was required to cede that 17 benefit to the plaintiff, see id. (holding defendant required to disgorge profits it obtained 18 by misuse of plaintiff's confidential information); Artifex Software, Inc. v. Hancom, Inc., 19 2017 WL 4005508, at *3-*4 (N.D. Cal. September 12, 2017) (finding plaintiff entitled to 20 disgorgement of profits as remedy for breach of licensing agreement; noting defendants, 21 as result of breach, "obtained a benefit they would not have otherwise obtained and 22 profited from that benefit"). Here, by contrast, Lemarié did not obtain his salary, bonuses, 23 or any other compensation from Cloudmark as a result of his alleged breach of the PIIA. 24 Indeed, the alleged breach occurred upon and after the termination of his employment. 25

26 4 Lemarié has not challenged plaintiffs' claim that they are entitled to recover sums they assertedly lost as a result of Lemarié's alleged breach, a basis for relief disclosed to 27 Lemarié in an answer to an interrogatory (see Budaj Decl. Ex. I at 59) and also in an 1 Accordingly, to the extent plaintiffs' claim for monetary relief is based on their 2 recovering the compensation Lemarié was paid as an employee of Cloudmark, Lemarié 3 is entitled to summary judgment. 4 B. Count III – "Failure to Disclose Inventions" 5 In Count III, plaintiffs allege Lemarié violated the terms of the PIIA by not 6 disclosing to Cloudmark "inventions" he developed. (See FAC ¶¶ 91.) 7 The provision of the PIIA setting forth Lemarié's obligations with respect to 8 disclosing inventions reads, in relevant part, as follows:

9 During the period of my employment and for six (6) months after termination of my employment with the Company, I will promptly disclose to the 10 Company fully and in writing all Inventions authored, conceived or reduced to practice by me, either alone or jointly with others. 11 (See Budaj Decl. Ex. H ¶ 2.5.) 12 Lemarié contends he is entitled to summary judgment, pointing out plaintiffs' failure 13 to identify in discovery any invention he did not disclose. (See id. Ex. I at 70.) In 14 opposition, plaintiffs argue a triable issue of fact exists in light of statements made by 15 Lemarié in the course of discovery, namely, his interrogatory response that, "[s]ince 16 2018, [he] has continued to run his Cloudmark Gateway MTA product on an online server 17 only as a honeypot[,] [which] server is open and continuously receiving spam emails from 18 the internet for purposes of conducting his own personal research," and that he has 19 "determined it is possible to create a honeypot receiving hundreds of thousands of emails 20 per day." (See Cheng Decl. Ex. 1 at 9-10.) Even assuming the above response 21 describes an "invention" within the meaning of the PIAA, however, it does not support a 22 finding that Lemarié violated ¶ 2.5, as plaintiffs offer no evidence to dispute Lemarié's 23 statement therein that any such invention was conceived no earlier than 2018 (see id.), a 24 date more than six months after November 11, 2016, the date on which Lemarié's 25 employment with Cloudmark was terminated. 26 // 27 // 1 Plaintiffs next argue summary judgment should not be granted because, they 2 contend, they cannot determine the timing of the above-described research, "in light of 3 Lemarié's destruction of relevant files." (See Pls.' Opp. at 13:20-21.) Plaintiffs have not, 4 however, identified any document they believe would show, had it not been destroyed, 5 the asserted invention was conceived during the six-month period following the 6 termination of Lemarié's employment with Cloudmark, nor have they identified any other 7 potential evidence warranting denial of summary judgment. 8 Accordingly, Lemarié is entitled to summary judgment on Count III. 5

9 C. Count IV – "Failure to Maintain and Make Available Cloudmark Company Records" 10 In Count IV, plaintiffs allege Lemarié violated the terms of the PIIA by not "making 11 available" to Cloudmark "Proprietary Information" that, during his employment with 12 Cloudmark, he "stored" in an "online file storage account registered through Evernote." 13 (See FAC ¶¶ 99-100.) Plaintiffs allege Lemarié failed to make the subject information 14 available, in that, on June 28, 2019, plaintiffs discovered Lemarié had "implemented 15 access restrictions to prevent Cloudmark and its employees from accessing the contents 16 of the Evernote account" and, "a few days later," found he had "deleted those contents 17 altogether." (See id.) 6 18 The provision of the PIIA setting forth Lemarié's obligations with respect to 19 maintaining and making proprietary information available to Cloudmark reads as follows: 20 21 5 Subsequent to the briefing on the instant motion, Magistrate Judge Robert M. 22 Illman, on June 1, 2021, issued a Report and Recommendation, in which he found defendants engaged in spoliation of various documents (see Doc. No. 566 at 14:21-27) 23 and recommends the Court instruct the jury to, inter alia, "presume that the lost or withheld information was unfavorable to [d]efendants" (see id. at 19:4-6). If this Court 24 adopts the Report and Recommendation, plaintiffs may seek reconsideration of its finding as to Count III. 25 6 Plaintiffs do not allege Lemarié took any steps, during his employment with 26 Cloudmark, to limit Cloudmark employees' access to the proprietary information stored in his Evernote storage account. Indeed, plaintiffs have offered evidence to show Lemarié 27 did make that information available to Cloudmark employees during his employment. 1 I agree to keep and maintain adequate and current records (in the form of notes, sketches, drawings and in any other form that may be required by 2 the Company) of all Proprietary Information developed by me and all Inventions made by me during the period of my employment at the 3 Company, which records shall be available to and remain the sole property of the Company at all times. 4 (See Budaj Decl. Ex. H ¶ 3.) 5 Lemarié argues plaintiffs lack evidence to support a finding that he breached the 6 above-quoted provision in the PIIA. In support of such argument, Lemarié offers 7 evidence that, in October 2014, he created a "notebook" in a "personal" account he had 8 with Evernote (see id. Ex. E at 10:8-11, Ex. F),7 that he labelled the notebook "DNS 9 Security," (see id. Ex. E at 10:11), that the purpose of the notebook was to "share content 10 with certain other Cloudmark employees" (see id. Ex. E at 10:11-12), and that he made 11 the contents of the notebook accessible to five other Cloudmark employees (see id. Ex. E 12 at 10:13-16; Ex. F). 13 Additionally, Lemarié offers evidence that, at the time he left Cloudmark in 2016, 14 "he was not aware of anyone at [Cloudmark] working on this project, and it appeared to 15 [him] that Cloudmark had abandoned it" (see id. Ex. E at 10:17-19), that he deleted "all 16 Cloudmark files and information that he could find" in his "Evernote account" (see id. Ex. 17 E at 10:20-22), that he advised "IT" he had deleted such information (see id. Ex. E at 18 10:23), and that IT "declined" his invitation to "review his personal devices and accounts 19 to confirm his deletion of that information" (see id. Ex. E at 10:23-25), after which, in 20 2018, he "happened across the DNS Security notebook in his Evernote account" (see id. 21 Ex. E at 11:3-4), and, "realiz[ing] it had been accidentally, passively retained," he 22 "immediately deleted" the notebook (see id. Ex. E at 11:5).8 23 // 24

25 7 Lemarié describes Evernote as a company that provides "applications and tools for notetaking and information." (See id. Ex. E at 10:3-4.) 26 8 As noted, plaintiffs allege Lemarié deleted the contents of the DNS Security 27 notebook in 2019. (See FAC ¶ 99-100.) For purposes of resolving the issues presented 1 Lemarié argues the obligations set forth in ¶ 3 of the PIIA ceased at the time his 2 employment with Cloudmark ended, and, consequently, he did not breach the provisions 3 set forth in ¶ 3 when, after his employment ended, he (1) allegedly stopping making his 4 personal Evernote account available to Cloudmark employees, and (2) concededly 5 deleted the contents of the DNS Security notebook. As set forth below, the Court agrees. 6 Under California law, "[a] contract must be so interpreted as to give effect to the 7 mutual intention of the parties as it existed at the time of contracting, so far as the same 8 is ascertainable and lawful." See Cal. Civ. Code § 1636. Here, as noted, the information 9 covered by ¶ 3 consists of material "developed by" Lemarié "during the period of [his] 10 employment" (see Budaj Decl. Ex. H ¶ 3), and it is readily ascertainable that the parties 11 intended Lemarié have custody of such information in order to fulfill his work obligations. 12 Plaintiffs fail to address, let alone explain, however, why the parties would have wanted 13 Lemarié to continue to maintain and make available to Cloudmark its own property, or 14 otherwise act as a custodian of Cloudmark's proprietary information, after he ceased his 15 employment. Although Cloudmark has an obvious interest in a former employee's 16 surrendering any proprietary information at the time such employee ends his 17 employment, Cloudmark's interest in that regard is fully addressed by another provision 18 of the PIIA, by which, as discussed below, an employee, upon termination of 19 employment, is required to return to Cloudmark all of Cloudmark's property in his 20 possession. 21 Accordingly, Lemarié is entitled to summary judgment on Count IV.

22 D. Count V – "Failure to Deliver Materials Containing Cloudmark Proprietary Information" 23 In Count V, plaintiffs allege Lemarié violated the terms of the PIIA by, at the time 24 his employment with Cloudmark ended, failing to "deliver and return to Cloudmark all of 25 the materials contained within the Evernote account." (See FAC ¶¶ 106-07.) 26 The provision of the PIIA setting forth Lemarié's obligations with respect to 27 delivering and returning proprietary information to Cloudmark reads, in relevant part, as 1 follows:

2 When I leave the employ of the Company, I will deliver to the Company any and all drawings, notes, memoranda, specifications, devices, formulas, and 3 documents, together with all copies thereof, and any other material containing or disclosing any Company Inventions . . . or Proprietary 4 Information of the Company. 5 (See Budaj Decl. Ex. H ¶ 6.) 6 In seeking summary judgment on Count V, Lemarié contends the evidence does 7 not support a finding of breach, and, even if a breach has been shown, the relief plaintiffs 8 seek is not available under state contract law. 9 1. Breach: Contents of DNS Security Notebook 10 Relying on the above-described evidence submitted in connection with Count IV, 11 Lemarié argues it is undisputed he did not breach ¶ 6 of the PIIA when he allegedly failed 12 to return the DNS Security notebook.9 In particular, Lemarié contends, he "fulfilled his 13 contractual obligation under any reasonable interpretation of ¶ 6" (see Def.'s Mot. at 14 7:18.5-19.5), because (a) other Cloudmark employees had access to the contents of the 15 DNS Security notebook during his employment with Cloudmark, (b) he believed the 16 project that was the focus of the DNS Security notebook had been abandoned by 17 Cloudmark, and (c) Cloudmark's IT Department declined to review his account to confirm 18 his belief he had deleted any Cloudmark information from his accounts. The Court is not 19 persuaded. 20 As quoted above, ¶ 6 unambiguously required Lemarié, at the time his 21 employment with Cloudmark ended, to "deliver" to Cloudmark all material, including 22 copies, that contained or disclosed any Cloudmark inventions or proprietary information. 23 (See Budaj Decl. Ex. H ¶ 6.) The evidence on which Lemarié relies, however, is 24 9 In their answers to Lemarié's interrogatories explaining the factual basis for 25 Count V, plaintiffs also identify source code and other documents Lemarié assertedly failed to deliver when he left Cloudmark. (See Budaj Decl. Ex. I at 64:8-65:7, 66:14-23, 26 100:4-18.) Lemarié does not address such additional documents in his moving papers. Although, in his Reply, Lemarié argues the scope of Count V should be limited to his 27 alleged failure to deliver the contents of DNS Security notebook, the Court has not 1 insufficient to support a finding that he, in effect, "deliver[ed]" the contents of the DNS 2 Security notebook to Cloudmark. In particular, given the undisputed deletion of the 3 subject notebook, any such arguable delivery was dependent on there being a duplicate 4 left with Cloudmark. Although, in his motion, Lemarié states he "confirm[ed] that other 5 employees had all the files they required" (see Def.'s Mot. at 8:15-16), he offers no 6 evidence to support that factual assertion. 7 Accordingly, Lemarié has failed to show he is entitled to summary judgment on the 8 issue of liability. 9 2. Monetary Relief 10 In the FAC, and confirmed in plaintiffs' answers to Lemarié's interrogatories, 11 plaintiffs seek, as remedies for Lemarié's alleged breach of ¶ 6, both monetary and 12 equitable relief. (See FAC ¶¶ 101-02; Budaj Decl. Ex. I at 87-88.) 13 Lemarié again seeks summary judgment to the extent plaintiffs seek to recover all 14 compensation he received as an employee of Cloudmark.10 For the reasons set forth 15 above with respect to Count II, Lemarié is entitled to summary judgment on that claim for 16 relief. 17 Accordingly, to the extent plaintiffs' claim for monetary relief is based on their 18 recovering compensation Lemarié was paid as an employee of Cloudmark, Lemarié is 19 entitled to summary judgment. 20 CONCLUSION 21 For the reasons stated above, Lemarié's motion for partial summary judgment is 22 hereby GRANTED in part and DENIED in part, as follows. 23 1. With respect to Counts III and IV, the motion is GRANTED. 24 2. With respect to Counts II and V, to the extent the motion seeks summary 25

26 10 Lemarié has not challenged plaintiffs' claim that they are entitled to recover sums they assertedly lost as a result of Lemarié's alleged breach, a basis for relief 27 disclosed to Lemarié in an answer to an interrogatory (see Budaj Decl. Ex. I at 100) and 1 judgment as to plaintiffs' claim for disgorgement of compensation paid by Cloudmark to 2 Lemarié, the motion is GRANTED. 3 3. In all other respects, the motion is DENIED. 4 IT IS SO ORDERED. 5 6 || Dated: June 4, 2021 “ . INE M. CHESNEY 7 United States District Judge 8 9 10 11 12

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