IN THE HIGH COURT OF IUSTICE
`BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
`COMMERCIAL COURT (QBD)
`CL-2017-000749
`
`CL-201
`
`n0«T Op \
`
`0° ^rH o
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`*
`★
`t 21 Dec 2018 §
`«$
`0749
`
`BEFORE THE HONOURABLE MR JUSTICE ROBIN KNOWLES CBE
`ON 21 DECEMBER 2018
`
`SITTING IN PRIVATE
`
`BETWEEN:-
`
`WORLD PROGRAMMING LIMITED
`Defendant/Ap b I i ca nt
`
`and
`
`SAS INSTITUTE INC.
`
`Claimant/Respondent
`
`INJUNCTION AND ORDER
`
`TO:
`
`SAS INSTITUTE INC., 100 SAS Campus Drive, Cary, 27513, North
`Carolina, United States.
`
`PENAL NOTICE
`
`IF YOU, SAS INSTITUTE INC., DISOBEY THIS ORDER YOU MAY BE
`HELD TO BE IN CONTEMPT OF COURT AND YOU MAY BE FINED AND
`HAVE YOUR ASSETS SEIZED AND ANY OF YOUR DIRECTORS,
`OFFICERS, EMPLOYEES, REPRESENTATIVES OR AGENTS MAY BE
`IMPRISONED, FINED OR HAVE THEIR ASSETS SEIZED.
`
`1
`
`SAS Institute Inc.
`EXHIBIT 2010
`Page 1 of 14
`
`
`BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
`COMMERCIAL COURT (QBD)
`CL-2017-000749
`
`CL-201
`
`n0«T Op \
`
`0° ^rH o
`
`*
`★
`t 21 Dec 2018 §
`«$
`0749
`
`BEFORE THE HONOURABLE MR JUSTICE ROBIN KNOWLES CBE
`ON 21 DECEMBER 2018
`
`SITTING IN PRIVATE
`
`BETWEEN:-
`
`WORLD PROGRAMMING LIMITED
`Defendant/Ap b I i ca nt
`
`and
`
`SAS INSTITUTE INC.
`
`Claimant/Respondent
`
`INJUNCTION AND ORDER
`
`TO:
`
`SAS INSTITUTE INC., 100 SAS Campus Drive, Cary, 27513, North
`Carolina, United States.
`
`PENAL NOTICE
`
`IF YOU, SAS INSTITUTE INC., DISOBEY THIS ORDER YOU MAY BE
`HELD TO BE IN CONTEMPT OF COURT AND YOU MAY BE FINED AND
`HAVE YOUR ASSETS SEIZED AND ANY OF YOUR DIRECTORS,
`OFFICERS, EMPLOYEES, REPRESENTATIVES OR AGENTS MAY BE
`IMPRISONED, FINED OR HAVE THEIR ASSETS SEIZED.
`
`1
`
`SAS Institute Inc.
`EXHIBIT 2010
`Page 1 of 14
`
`
`
`UPON the application of World Programming Limited ("WPL") dated 19
`December 2018 for an interim anti-suit injunction (the "Anti-Suit
`Injunction Application") made without notice to the Defendant, and
`heard in private
`
`AND UPON reading the Second and Third witness statements of
`Alexander Carter-Silk dated 19 and 21 December 2018 and Joel Miliband
`dated 18 December 2018
`
`AND UPON reading WPL's skeleton argument dated 19 December 2018
`(as revised on that date) and WPL's supplemental note dated 21
`December 2018 and WPL's table of points of full and frank disclosure and
`fair presentation dated 21 December 2018 (the "F&F Table").
`
`AND UPON hearing Leading Counsel (Paul Lowenstein QC and Thomas
`Raphael QC) for WPL on 21 December 2018
`
`AND UPON the court having decided to sit in private and having made an
`order preserving the confidentiality of certain materials
`
`AND WHEREAS the SAS Institute Inc. ("SAS") has not yet been served
`with this Application and this order was made in SAS's absence
`
`AND WHEREAS WPL envisages that it may seek further or amended anti
`suit relief at the Return Date (defined below)
`
`AND WHEREAS WPL contends that paragraphs 12 and 151 of the Second
`Witness Statement of Alexander Carter-Silk and paragraph 5(b) of the
`third Witness Statement of Alexander Carter-Silk contain sensitive
`commercial information which should be protected as confidential
`information and is defined as the "Confidential information".
`AND UPON WPL giving the undertakings to the Court set out in Schedule
`A hereto
`
`AND WHEREAS certain terms in this Order are defined in Schedule B
`hereto
`
`IT IS HEREBY ORDERED that:
`
`2
`
`SAS Institute Inc.
`EXHIBIT 2010
`Page 2 of 14
`
`
`
`This Order and Further Hearings
`
`1. This order was made at a hearing without notice to SAS. SAS has a
`right to apply to the Court to vary or discharge the order (see
`paragraph 11 below).
`
`2. There shall be a further hearing in relation to this application for the
`purpose of directions, to be listed on 18 January 2019 with a time
`estimate of 2 hours ("the Directions Hearing"). There shall also be
`a subsequent hearing of the application on a later date ("the Return
`Date”) as provided for more fully in paragraph 13 below.
`
`Injunctions
`3. Until further order of the Court, SAS shall not, whether by itself, its
`directors, officers, employees, legal representatives, or agents:
`
`a. Pursue, continue or take any further steps in: (i) the Assignment
`Order Motion so far as it is pursued for the purposes of seeking
`the in personam relief identified in the Indicative Assignment
`Order Ruling, (ii) the Turnover Order Application, and (iii) the First
`and Second Limited Remand Motions (save for the purposes of
`withdrawing those motions/applications, moving to stay them or
`otherwise seeking to have action on such application held in
`abeyance). (For the avoidance of doubt, this order shall not
`prevent the pursuit of the Assignment Order Motion so far as it is
`confined to in rem relief as granted by the In Rem Assignment
`Order.)
`
`b. Seek to obtain from the USDC, or any other court of the USA
`(state or federal), the orders foreshadowed by and/or
`contemplated in (i) the Indicative Assignment Order Ruling and
`(ii) the Indicative Turnover Order Ruling, or any similar orders.
`
`3
`
`SAS Institute Inc.
`EXHIBIT 2010
`Page 3 of 14
`
`
`
`c. Commence, bring, continue, pursue or take any steps in, any
`claims, proceedings, applications, or motions before any court of
`the USA (state or federal), which seek any relief, remedy,
`judgment, decree or order (hereinafter "relief") of any the
`following kinds:
`
`i. Relief of similar nature and/or effect to that referred to in
`3(a) and/or (b) above;
`
`ii. Relief which imposes (or purports to impose) requirement
`or requirements on WPL to assign or transfer to SAS (or its
`agents or representatives or any other person) any assets
`and/or receivables of WPL and/or any debts owed to WPL,
`and/or any assets, receivables or debts that may in the
`future be owed to WPL. For the avoidance of doubt, the
`aforesaid shall cover any requirement(s) imposed indirectly
`on WPL by means of requirements imposed on any officer,
`employee, agent, legal representative or other person who
`has, or is said to have, authority to act on behalf of WPL.
`
`iii. Relief which expands or amends or varies the In Rem
`Assignment Order to have in personam effects of the kinds
`identified in paragraph 3(c)(ii) above. This encompasses
`adjustments or modifications to any prior order or ruling to
`impose such a requirement.
`
`d. File its final brief in the Second Limited Remand Motion, due to
`be filed on 21 December 2018 unless, by the time this order is
`communicated to SAS or its agents by the means identified in
`paragraph 8 below, SAS's brief has already been filed.
`
`4
`
`SAS Institute Inc.
`EXHIBIT 2010
`Page 4 of 14
`
`
`
`4. SAS shall, as soon as reasonably practical, and in any event by no later
`than 4.00 pm Pacific Standard Time on Friday 28 December 2018 take
`all reasonable steps to procure before the USDC and/or the USCA 9th
`(as appropriate) a stay or stays of the following applications / motions:
`
`a. The Assignment Order Motion (or any application or motion in
`respect thereof) so far as it
`is pursued for the purposes of
`seeking the
`in personam relief
`identified
`in the Indicative
`Assignment Order Ruling:
`b. Any motion or request to
`the USDC
`to make the order
`contemplated in the Indicative Assignment Order Ruling;
`c. The Turnover Order Application;
`d. Any motion or request to
`the USDC
`to make the order
`contemplated in the Indicative Turnover Order Ruling;
`e. The First and Second Limited Remand Motions.
`
`The stay or stays to be sought pursuant to this paragraph 4 shall be
`sought so as to remain in effect until on or after such time as the
`finalisation of this Court's order made upon the hearing of the Return
`Date (see paragraphs 2 above and 13 below).
`
`5. SAS shall take all reasonable steps to procure that the orders
`foreshadowed by and/or contemplated in (i) the Indicative Assignment
`Order Ruling and (ii) the Indicative Turnover Order Ruling, or any
`similar orders, shall not be made between the date of this order and
`the Return Date.
`
`6. Until further order of the Court, SAS shall not (whether by itself, its
`directors, officers, employees, legal representatives, or agents)
`commence, bring, continue, pursue or take any steps in, any claims,
`proceedings, applications, or motions before any court of the USA
`(state or federal) which-
`
`5
`
`SAS Institute Inc.
`EXHIBIT 2010
`Page 5 of 14
`
`
`
`a. Prevent or restrain, or seek to prevent or restrain, WPL from:
`
`i. Pursuing, continuing, or taking steps in: this Anti-Suit
`Injunction Application, any related application before this
`Court, and/or this action;
`
`ii. Commencing, bringing, continuing, pursuing, or taking any
`steps in, any further application or claim before this Court
`for anti-suit injunction relief or related relief, or damages or
`compensation, in relation to: (1) the California Enforcement
`Proceedings, applications or motions therein, (2) the North
`Carolina Liability Proceedings; or (3) any other
`proceedings, applications or motions in the USA that are or
`may in the future be on foot arising out of the North
`Carolina Liability Proceedings, including efforts to enforce
`the North Carolina Money Judgment there, and/or the
`enforcement of judgments given therein;
`
`For the avoidance of doubt the potential anti-suit applications in
`this Court covered by 6(a)(i) and (ii) above shall include any
`applications for injunctive relief in relation to the Discovery
`Orders, the In Rem Assignment Order and/or the Assignment
`Order Motion.
`
`b. Require WPL to cease to pursue or continue or take steps in the
`English applications or proceedings or claims (actual or potential)
`referred to in 6(a)(i) and (ii) above.
`
`c. Interfere with the English applications or proceedings.
`
`Interpretation of this Order
`
`6
`
`SAS Institute Inc.
`EXHIBIT 2010
`Page 6 of 14
`
`
`
`7. Where SAS is ordered not to do something by the orders herein, it must
`not and shall not do those things, or materially the same acts, or acts
`having materially the same effect, by itself or by any other persons.
`Nor shall SAS procure or encourage other persons to do such acts or
`materially the same acts. The class of other persons comprises all
`natural or legal persons and is not limited in any way (but does, for the
`avoidance of doubt, include, without limitation, SAS's directors,
`officers, partners, employees and agents).
`
`Service
`
`8. WPL may serve this Order (and the associated documents listed in
`Schedule A, any further applications and supporting documents in
`relation to the continuation or variation of this order) on SAS:
`
`a. by emailing the same to SAS's solicitors, Macfarlanes LLP, at
`the addresses Matt.McCaheartvOmacfarlanes.com and/or
`Christopher.Charlton(Q) macfarlanes.com
`b. Delivering the same to Macfarlanes LLP, by hand or by courier,
`for the attention of Christopher Charlton and/or Matthew
`McCahearty at the address 20 Cursitor Street, London, EC4A
`1LT.
`c. By emailing the same to SAS, at the address:
`iohn.boswell@5as.com
`
`d. By delivering the same to SAS, by hand or courier, at 100 SAS
`Campus Drive, Cary, 27513, North Carolina in the USA.
`
`9. Where WPL effects service on SAS by one of the methods prescribed
`above under paragraph 8 before 16:30 local time on any particular
`day, any document so served will be deemed to have been served on
`that day.
`
`7
`
`SAS Institute Inc.
`EXHIBIT 2010
`Page 7 of 14
`
`
`
`10.
`
`To the extent that service pursuant to paragraph 8 above would not
`otherwise be valid service, it shall be valid alternative service. For the
`avoidance of doubt, service of this Order pursuant to paragraph 8(a),
`(b) and/or (c) shall be alternative service under CPR 81.8(2)(b). Further,
`if service is effected in those ways or any of them, personal service of
`this Order for the purposes of CPR Part 81 is dispensed with pursuant
`to CPR 81.8(2)(a).
`
`Variation or discharge of this order
`
`11.
`
`Anyone served with or notified of this order may apply to the Court
`at any time to vary or discharge this order (or so much of it as affects
`that person) but they must first inform WPL's solicitors, the details of
`whom are given below. If any evidence is to be relied upon in support
`of the application, the substance of it must be communicated to WPL's
`solicitors in advance.
`
`12. Liberty to apply to WPL.
`
`The Return Date and costs
`
`13. The Return Date is to be fixed at the Directions Hearing provided for
`in paragraph 2. At the Return Date, the Court will consider whether
`this Order shall be continued and/or what further order shall be made.
`WPL shall file any application to continue and/or this Order (without
`prejudice to any further application to continue and/or vary this Order
`that may be appropriate prior to the Return Date) no less than seven
`clear days in advance of the Directions Hearing.
`
`14.
`
`Costs reserved to the Judge hearing the application on the Return
`Date.
`
`8
`
`SAS Institute Inc.
`EXHIBIT 2010
`Page 8 of 14
`
`
`
`Restriction / Prohibition of use of documents disclosed
`
`15.
`
`Pursuant to CPR 31.22(2), the parties and (as appropriate) their
`legal advisers, experts and witnesses may only make use of the
`Confidential Information and the parts of the documents within which it
`is contained (which includes without limitation, the witness statements,
`the F&F Table and the skeleton arguments) for the purposes of these
`proceedings, notwithstanding that they were read to the court or
`referred to at the hearing or referred to in the electronic and hard copy
`transcripts of the proceedings. No other person may make use of the
`Confidential Information. This prohibition does not restrict the use of
`documents which are otherwise in the public domain (e.g. certain US
`court filings). Further, SAS may use the Confidential Information in any
`proceedings in relation to the California Enforcement Proceedings or
`the North Carolina Liability Proceedings provided that SAS takes all
`necessary steps to maintain the confidentiality of that information
`(whether by filing documents under seal or otherwise).
`
`Dated: 21 December 2018
`
`COMMUNICATIONS WITH THE COURT
`All communications with the Court about this order should be sent to the
`Admiralty and Commercial Court Listing Office, 7 Rolls Building, Fetter
`Lane, London, EC4A 1NL quoting the case number. The telephone
`number is 020 7947 6826.
`The offices are open between 10 a.m. and 4.30p.m. Monday to Friday.
`
`NAME AND ADDRESS OF THE APPLICANT’S LEGAL
`REPRESENTATIVES
`
`The Applicant's legal representatives are:
`
`9
`
`SAS Institute Inc.
`EXHIBIT 2010
`Page 9 of 14
`
`
`
`Alex Carter-Silk and Claire Blewett of Brown Rudnick LLP, 8 Clifford Street,
`London, W1S 2LQ. +44 (0) 20 7851 6152, +44 (0) 7502 348 153,
`ACarter-silkcabrownrudnick.com and Cblewett(a>brownrudnick.com (if
`contact is made by email, both email addresses must be used).
`
`10
`
`SAS Institute Inc.
`EXHIBIT 2010
`Page 10 of 14
`
`
`
`SCHEDULE A - UNDERTAKINGS
`
`Undertakings given to the Court by the WPL:
`
`(l)To serve on SAS as soon as practicable the Application Notice,
`evidence in support of the application, this order, any other documents
`provided to the Court on the making of the application, and/or any note
`or transcript of the hearing.
`
`(2)lf the Court later finds that this order has caused loss to SAS, and
`decides SAS should be compensated for that loss, WPL will comply with
`any order the Court may make, this undertaking being limited to such
`loss caused to SAS: (i) in additional legal costs incurred in complying
`with this injunction and/or (ii) in taking any consequential additional
`steps in the Californian litigation to comply with this injunction and/or
`(iii) interest losses and/or (iv) losses arising out of loss of use of money.
`
`(3)lf the injunction is discharged, not to oppose any steps SAS may
`reasonably need to take to seek leave to be permitted to file its final
`brief on the Second Limited Remand Motion (which was due to be filed
`by 21 December 2018) at such later date as may be appropriate. This
`shall be without prejudice to WPL's jurisdictional and other objections
`to the aforesaid Motion and all of WPL's rights.
`
`[End of Schedule]
`
`11
`
`SAS Institute Inc.
`EXHIBIT 2010
`Page 11 of 14
`
`
`
`SCHEDULE B - DEFINED TERMS
`
`In this Order:
`
`1. The "Court" refers to the Commercial Court, Queen's Bench Division,
`of the High Court of Justice of England and Wales.
`
`2. "USA" refers to the "United States of America".
`
`3. The "USDC" refers to the United States District Court, Central District
`of California, USA.
`
`4. The "USCA 9th" refers to the United States Court of Appeals for the
`Ninth Circuit.
`
`5. The "California Enforcement Proceedings” refers to the
`enforcement proceedings brought by SAS before the USDC, with docket
`reference number 2:18-cv-603-VAP (PJWx).
`
`6. In the California Enforcement Proceedings:
`
`a. The "Assignment Order Motion" refers to the application /
`motion filed by SAS on 18 June 2018 before the USDC (docket
`entry 65).
`
`b. The "In Rem Assignment Order" refers to the Order made in
`the USDC by Chief United States District Judge Virginia A. Phillips
`("Judge Phillips") on 5 September 2018 (docket entry 98), and
`now under appeal by WPL (docket entry 105, appeal case
`reference number 18-56215) to the USCA 9th.
`
`c. The "In Personam Assignment Order" refers to the amended
`Order made in the USDC by Judge Phillips on 13 September 2018
`
`12
`
`SAS Institute Inc.
`EXHIBIT 2010
`Page 12 of 14
`
`
`
`(docket entry 110), later vacated by the USDC on 20 September
`2018 (docket entry 118).
`
`d. The “Indicative Assignment Order Ruling" refers to the
`decision of Judge Phillips in the USDC dated 20 September 2018
`(docket entry 118).
`
`e. The "First Limited Remand Motion" refers to the application /
`motion made by SAS to the USCA 9th on 10 October 2018 in
`appeal case reference number 18-56215 (docket entry 10).
`
`f. The "Turnover Order Application" refers to the ex parte
`application / motion to the USDC issued by SAS on 11 October
`2018 (docket entry 120).
`
`g. The "Indicative Turnover Order Ruling" refers to the decision
`of Judge Phillips in the USDC dated 14 November 2018 (docket
`entry 127).
`
`h. The "Second Limited Remand Motion” refers to the
`application / motion made by SAS to the USCA 9th on 4 December
`2018 in appeal case reference number 18-56215 (docket entry
`22).
`
`i. The "Discovery Orders" refers order of Flanagan J in the United
`States District Court for the Eastern District of North Carolina
`Western Division dated 2 March 2018 and any other similar
`orders.
`
`7. The "English Enforcement Proceedings" refers to this action,
`namely CL-2017-00749, and all claims, counterclaims, and
`applications, therein.
`
`13
`
`SAS Institute Inc.
`EXHIBIT 2010
`Page 13 of 14
`
`
`
`8. The "North Carolina Liability Proceedings" refers to the
`proceedings brought by SAS against WPL on 19 January 2010 before
`the U.S. District Court for the Eastern District of North Carolina with
`docket reference number 5:10-cv-25-FL.
`
`9. The "North Carolina Money Judgment" refers to the amended
`judgment and second amended judgment issued by the U.S. District
`Court for the Eastern District of North Carolina with docket reference
`number 5:10-cv-25-FL (docket entries 610, 753).
`
`[End of Schedule and of Order]
`
`14
`
`SAS Institute Inc.
`EXHIBIT 2010
`Page 14 of 14
`
`
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