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Instinet Incorporated, Instinet Holdings Incorporated, Instinet v. Ariel (Uk) Limited

September 26, 2011


The opinion of the court was delivered by: John F. Keenan, United States District Judge:


Before the Court is Defendant Ariel (UK) Ltd.'s ("Ariel" or "Defendant") motion for leave to amend its answer. For the reasons set forth below, the motion is denied and a scheduling order is in effect.

I. Background

This action arises from a dispute regarding the scope of Ariel's rights in the computerized securities trading software developed by the Plaintiff Instinet entities (collectively "Instinet" or "Plaintiff") pursuant to a series of licensing agreements signed in the 1970's. Unless otherwise noted, the facts below are taken from Instinet's Complaint and Ariel's Answer.

A. The Parties and Their Business Relationship Instinet is a successor in interest to Institutional Networks Corporation, which was founded in 1969 to develop and operate a computerized trading system for securities. Ariel is a British company established in 1971 by a group of London-based merchant banks which also sought to establish a computerized trading system that could trade blocks of stock between large institutions.

In or around 1970, Instinet obtained both European and American patents on an early computerized securities trading system. Ariel was then attempting to develop its own trading system and entered into a licensing agreement with Instinet on August 11, 1972, under which Ariel could develop its own computerized securities trading system based on the design of the Instinet System. The agreement had a term of 14 years, subject to certain conditions that would provide Ariel licensing rights under the agreement in perpetuity.

On December 24, 1975, Ariel sent a proposal to Instinet's attorney by cable to renegotiate the 1972 Agreement. Under the terms of this proposal, Ariel would pay Instinet $175,000 provided that, among other things, Ariel would receive "a non-exclusive license in all those territories where Instinet has patents granted or pending" and "full and unencumbered access to and right to make use of the Instinet Two System and documentation on same terms as though [the 1972 Agreement] were still in force." This proposal was subject to the condition that the parties' attorneys would "draw up such legal documentation . . . as will give effect to the preceding agreement and conditions."

On December 26, 1975, Instinet responded by telex, accepting the offer on the "terms set forth in [the] Ariel cable." In the telex, Instinet also urged that Ariel's lawyers "send confirming papers [to Instinet's lawyers] soonest."

In April 1976, the parties finalized their agreement by signing a written contract with an effective date of December 31, 1975. ("1975 Agreement"). The 1975 Agreement provided that the 1972 Agreement "be treated as terminated" after the effective date, "on the basis the obligations of both parties . . . shall wholly cease on that date."

B. Procedural History

In June 2008, Ariel sent a demand letter to Instinet, claiming that it has a right of ingress in Instinet's current trading technology and software. On August 11, 2008, Instinet commenced this action seeking a declaratory judgment addressing the rights and obligations of the parties. Instinet requested that the Court declare: (a) "[t]hat the 1975 Agreement terminated the 1972 Agreement in its entirety"; (b) "[t]hat pursuant to the 1975 Agreement, the technology and software being licensed to Ariel is limited to such technology and software as it existed no later than June 30, 1976"; (c) "[t]hat Ariel has no rights in or to Instinet's current technology or software"; and (d) "[t]hat Ariel does not have any of the rights claimed in the Demand Letter, whether pursuant to the 1972 Agreement, the 1975 Cable Agreement, the 1975 Agreement, or otherwise."

On September 9, 2009, Instinet filed a motion for summary judgment, asserting that the 1975 Agreement is both integrated and unambiguous, and thus it is entitled to the requested declaratory relief as a matter of law. On March 5, 2010, the Court held that the 1975 Agreement is integrated, unambiguous, and terminated the parties' prior agreement in its entirety, and that the 1975 Agreement did not provide Ariel perpetual rights to technology developed by Instinet. Whether Instinet's current securities trading platform still incorporates components of the 35-year-old computer technology to which Ariel has licensing rights under the 1975 Agreement was an issue of material fact, however, so the Court declined to declare that Ariel had no rights in technology that comprises Instinet's current computerized securities trading platform. Instinet, Inc. v. Ariel (UK) Ltd., No. 08 Civ. 7141, 2010 WL 779324, at *4 (S.D.N.Y. Mar. 5, 2010).

In July 2010, after the Court denied Ariel's motion for reconsideration of its March 5, 2010, Memorandum Opinion and Order, Ariel requested that Instinet produce the source code and the documentation of the Instinet II System (referred to as the "1976 software") "as at midnight of June 30, 1976." (Bainton Decl., Ex. D.) After claiming that Ariel's request was barred because discovery had closed, Instinet admitted that it did not have "in its possession, custody, or control a copy of the 1976 software or documentation." (Bainton Decl., Ex. F.) In response, Ariel provided Instinent with a written "notice of election to rescind" the 1975 agreement based on Instinet's breach of Paragraph 5.4 of the 1976 Agreement.

At the pretrial conference on September 8, 2010, the Court set a schedule for cross-motions for summary judgment. Briefs were due on November 5, 2010, responses by December 10, 2010, and replies by January 7, 2011. Just before Instinet was set to file its renewed motion for summary judgment, Ariel made a motion ...

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