Notice OF Errata

NOTICE OF ERRATA
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Brad Greenspan, Pro Se
14938 Camden Ave
Suite 47
San Jose, CA 95124

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

EUNICE HUTHART, ) Case No. CV 13-4253 MWF
)
Plaintiff, ) Honorable Michael W. Fitzgerald
v. )
)
)
)
)
) NOTICE OF ERRATA
REGARDING MOTION
TO INTERVENE
NEWS CORPORATION, NI GROUP
LIMITED f/k/a NEWS )
INTERNATIONAL LIMITED, )

NEWS GROUP NEWSPAPERS )
LIMITED, and JOHN and JANE )
DOES 1-10 )
)
Defendants. )
)
)

NOTICE OF ERRATA

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TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE

Petitioner respectfully submit the following corrections to certain limited portions of

the pleadings Entered into the Court filing system on May 6, 2014.

Specifically, petitioner wishes to correct certain pleadings as set forth below.

Plaintiff Motion to Intervene Conclusion section And Exhibits.

Because of the last minute clerical changes to the numbering of certain exhibits and

conversion of pleadings from a Word document - prior to filing the document the

spacing and formatting and certain sections were omitted and inserted erroneously

from incorrect versions. Plaintiff did not realize the error in these citations until after

the Pleadings were filed and Defendants May 19, 2014 claims were reviewed. In

particular, Plaintiff wishes to make the following corrections to certain Documents in

the pleadings

A. Correction #1 on page 22 of filed May 2, 2014 Motion To Intervene:

39. The Intervenor further respectfully requests the Court grant in such
motion, the right to serve the Complaint in Intervention (Exhibit #2) , Motion for
Partial Summary Judgment (Exhibit #3) , and Motion for Preliminary 17200
Injunction
and/or Motion of Contempt for Violation 2006 California State Attorney 17200
Permanent Injunction entered into consent decree on behalf of Defendant News
Corporation with State Attorney (Exhibit #4) related and precedential rulings and
briefings attached as herein.

be replaced with the phrase

NOTICE OF ERRATA

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motion, the right to serve the Complaint in Intervention (Exhibit #2) , Motion for
Consolidation and/or Motion of Contempt for Violation 2006 California State
Attorney 17200 Permanent Injunction entered into consent decree on behalf of
Defendant News Corporation with State Attorney (Exhibit #3) related and
precedential rulings and briefings attached as herein.

B. Correction #2

Corrected Complaint in Intervention as Exhibit A is attached

C. Correction #3

Corrected Motion for Consolidation as Exhibit B.

DATED: May 23, 2014 respectfully submitted,

Brad Greenspan, in Pro Per

NOTICE OF ERRATA

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EXHIBIT A-

NOTICE OF ERRATA

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EXHIBIT B

COMPLAINT IN INTERVENTION
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264 South La Cienega
Suite 1216
Beverly Hills, CA 90211


)
v. )
)
)
)
)
NEWS CORPORATION, NI GROUP ) COMPLAINT IN INTERVENTION
DOES 1-10 )
)
Defendants. )
)
)
)

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TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN:

PRELIMINARY STATEMENT

1. This is a civil action brought against Defendants for damages for violations of
Plaintiffs right to privacy; for the unlawful access to stored communicationl and for the intrusion into,
interception of, email and other wire communications while Plaintiff was living in Los Anglees in violation of
18 U.S.C. 2701, 2707; 18 U.S.C. 2510, 2511, 2520; Article I, Section 1of the California State Constituion; 630-
637.0 of the California Penal Code; 1708.8 of the California Civil Code; and California common law.

JURISDICTION AND VENUE

This action is brought pursuant to 18 U.S.C. 2701 and 2707, 18 U.S.C. 2510, 2511 and 2520. This Court has
jurisdiction of the action pursuant to 28 U.S.C. 1331, as this is a civl action arising under the laws of the United
States. This Court has jurisdiction over the supplemental claims arising under the Constituion of the State of
California, California State law and California common law pursuant to 28 U.S.C. 1367(a).

Venue is proper in the United States District Court for the Central District of California pursuant to 28 U.S.C
1391(a) and (b)(2) because the claims arose in this district.

PARTIES

2. Plaintiff BRAD GREENSPAN Plaintiff is a citizen of the United States.

Petitioner owned approximately 3.9 million of a 35 million share class certified in Federal Court June 2009 in
the Brown v. Brewer Federal Security Fraud Class Action, 2:0603731.over 4000+ individual victim shareholders
of the public company that stopped traded when Defendant News Corporation forced cash out of all shareholders
that hadnt thrown in the towel at $12.00 per share.

3. Plaintiff SubClass A Federal Brown v. Brewer shareholders

i. Subclass B- UK and US victims of at list one of Defendants or Rico Associated in Fact Enterprise-

HANDs privacy invasion or predicate act.

ii. Subclass C U.S. employees part of HiTech Class in San jose Federal certified class action who were
victims of privacy violation by Google, Defendants, or Rico Associated in Fact Enterprise: HAND

B. Defendants are also RICO Defendants and members Of HAND criminal Associated in Fact
Enterprise HAND

3. Defendant NEWS CORPORATION, a Delaware incorporated company.

Defendant NI GROUP LIMITED f/k/a NEWS INTERNATIONAL LIMITED (NEWS INTERNATIONAL)
IS A BRITISH newspaper publisher, and a wholly-owned subsidiary of NEWS CORPORATION. It is the
holding company of NEWS GROUP NEWSPAPERS LIMITED (NEWS ROUP NEWSPAPERS), the
publisher of The Sun newspaper,

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4. Defendant NEWS GROUP NEWSPAPERS, a subsidiary of NEWS INTERNATIONAL, is a United
Kingdom company
5. (Hereinafter, NEWS CORP, NEWS CORPORATION, NEWS INTERNATIONAL and NEWS
GROUP NEWSPAPERS, are referred to, collectively as the NEWS CORP Defendants

6. Defendants JOHN and JANE DOES 1-3, whose identities are presently unknown to the Plaintiff., are
private investigators who work or worked for on

9. Defendants JOHN and JANE DOES 4-7, whose identities are presently known tio the Plaintiff, are
journalists, who were employed y agents ofm, and/or independent contractors some or all of the
NEWS CORPORATION

10. Defendants JOHN and JANE DOES 8-10, whose identities presently unknwont ot the Plaintiff, are
current or former officers and executives of some or all of the NEWS CORPORAITON Defendants
(collectively, the UNIDENTIFIED EXECUTIVES), and in such capacity, ivilated laws nad Plaintiffs right ot
privacy, and with some or all of the Defendants, knew, or should have known of and did nothing to stop the
unlawful access to stored communications, the intrusioninto, the interceptio fo, the interference with, Plaintiffs
email communications with other Class Members during July 18, 2005 thru December 31, 2012.

11. Google, Inc.
i. Defendant Marissa Meyer, on Google EMG during Rico and antitrust predicate acts between
2005 thru at least 2011.

ii. Defendant Sheryl Sandberg, on Google EMG during Rico and antitrust predicate acts between
2005 thru at least 208.
iii. Larry Page
iv. Defendant Sergey Brin
v. Defendant Alan Eustace

vi. Defendant David Drummond

vii. Defendant Pinchette, Google CFO.

viii. Defendant Amazon.com

12. Defendants eUniverse Inc. aka Intermix, Inc. ( MySpace Parent Company)

22. MySpace, Inc.

23. Defendant Brett Brewer. Brewer was former President but not a founder or cofounder of
eUniverse Inc. Brewer is a citizen of California. Brewer was a director throughout the Relevant Period
and was responsible for the preparation, review and/or dissemination of the 2003 Proxy and the 2005
Proxy, both of which were false and misleading when filed with the SEC, disseminated to Intermix
shareholders and voted upon by shareholders at the January 2004 and September 2005 shareholder
meetings. By preparing, reviewing and/or disseminating the false and misleading 2003 Proxy, Brewer
was able to maintain his seat on the Intermix Board, procure millions of dollars worth of personal

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benefits in the form of continued employment and stock option grants and ensure that the VantagePoint
Transactions were approved by Intermix shareholders. Brewer also received material personal benefits in
connection with the Acquisition and his preparation, review and/or dissemination of the 2005 Proxy,
including the expectation that the consummation of the Acquisition would extinguish his liability in the
existing derivative suits, indemnify him for prior and contemporaneous misconduct, and immediately
monetize his illiquid stock holdings in the CompanyDefendant Brewer signed or authorized the signing
of the false andmisleading Registration and Proxy Statements
24.Defendant Edell. Defendant Edell signed or authorized the signing of
the false and misleading Registration and Proxy Statements.

25. Defendant Chris DeWolfe DeWolfe its uncontested was in a critical position to determine what
law firm to retain for Fog Cutter and the budget and amounts paid to FogCutter counsel for each of the years
2003, 2004, and 2005.
26. Defendant Dan Mosher

27. Defendant Tom Flahie
28. Defendant Richard Rosenblatt
30. Defendant VantagePoint Partners, LLC.

31. Defendant Alan Salzman, principal& managing Partner VantagePoint Partners,LLC.

32. Defendant Carlick. Defendant Carlick signed or authorized the signing of the false and
misleading Registration and Proxy Statements.
33. Defendant Sheehan. signed or authorized the signing of the false
and misleading Registration and Proxy Statements.
34.Defendant Orrick Herrick law firm was the outside counsel for Fog Cutter Capital
Group, Inc. since at least 2002..
i. FogCutter held at least its 2002 and 2003 Annual meetings at the Orrick Herrington NY
headquarters, according to companys November 22, 2002 14A filing
ii. Orrick Herrick law firm was sued by the city of San Diego in November 2005 and paid
$2.8 million to settle charges of negligence, breach of fiduciary duty, and breach of contract. Orrick law firm
according to former city employees failed to report disclosure problems of their paying client the city of San
Diego prior to 2005. Orrick law firm according to the city of San Diegos attorneys,
[Orrick] possessed for many years all the information one would need to know that the disclosures
regarding the status of the citys pension system were false.
35.Defendant Richard Harroch who was employed by Orrick in 2003 thru 2004 and sometime in
2005 hired and began and to work for VantagePartners LLC solely. Harroch worked as the lead corporate
counsel for VantagePoint whileTeaming with Carlick to consummate the 2003 investment intoeUniverse.

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36. Latham Watkins
37. Defendant Richard Rosenblatt. Rosenblatt signed or authorized the signing of the false and
misleading Registration and Proxy Statements
38. Defendant Ask Jeeves, Inc.
39. Defendant Geoff Yang. Principal and owner of Defendant RedPoint. Redpoint Ventures was
founded in 1999 by top partners from Brentwood Venture Capital and Institutional Venture Partners
(Redpoint), two leading venture firms in Silicon Valley. Redpoint has over $1.7 billion under management.
Since its inception, Redpoint has demonstrated a deep knowledge and insight into the emerging convergence of
media and broadband networks, having successfully invested in companies such as Excite, Ask Jeeves, TiVo,
Netflix, WebTV, MySpace.com, Juniper Networks, Foundry Networks, MMC Networks, and Bay Networks. Geoff
Yang, one of the managing partners of Redpoint Ventures, is a founding member of the M2Z Board.
40. Defendant RedPoint Partners
41. Defendant Allen & Co.Managing Partner Nancy Peretsman admits in Fortune Magazine in 2009
Article titled, 50 Most Powerful Women: M&A specialist Peretsman helped broker Googles 11
th
- hour, $1
billion bid for a 5% stake in AOL (and an advertising partnership) that thwarted an AOL Microsoft alliance.
ii. On December 5, 2005, an article appears in Business Week, 'Googling For Gold'
(BusinessWeek),, where Quincy smith an Allen & Co. banker is quoted, stating and described,
"Google's own bankers have also seen the possibilities lurking in the company's $120 billion shadow.
"You almost bank on other companies becoming successful because of Google," says banker Quincy Smith of
Allen & Col. Which represents Google. He points to Advertising.com, an e-marketing client that appeared on his
radar when he noticed that 40% of its revenue came through Google. Allen & Co. helped sell the company"

i. The Underwriter Defendants drafted and disseminated the offering
documents and were paid millions of dollars in connection therewith. The Underwriter Defendants failure to
conduct an adequate diligence and failed to Report to SEC under SEC Statue 306 and 307
42. Defendant Stan Shuman was and is a Managing Director of Allen & co. and has served on the
Board of News Corp since at least 2004.one of News Corps long time directors was senior Allen & Co.
investment banker Stan Shuman who resigned October 3, 2005, days after the News Corp acquisition of
MySpace closed and about one month before Comscore perhaps accidentally discloses a list of Search engine
assets ranked by # of unique users visiting each search websites. MySpace Search was growing at such a rapid
rate that the very month after the shareholder vote MySpace is ranked for October 2005 for by 3
rd
party audit
firm Comscore as having 25% of the Search audience as AOL with over 8 million unique users. The Comscore
disclosure is made first in November 2005 reporting the October 2005 data and proving that the fast growing
MySpace.com unique user audience had been hiding a parallel not disclosed fast growing Search Engine
audience and therefore undisputed asset that had never been disclosed to Intermix shareholders prior to
September 30, 2005.

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ii. Defendant John Doerr, Director Google, Inc.
ii. Intuit , Chairman and Director Bill Campbell
43. Defendant IAC Corp. IAC entered the search engine business upon signing a merger agreement
with Ask Jeees, Inc. In March 2005 and also needed to find partners with large online audiences to further such
its commercal business.IAC closed its merger with Ask Jeeves giving ASK Jeeves a $1.8 billion
dollar value in its stock for stock merger deal on July 19, 2005.IACs SEC filings in 2005 state clearly that IAC
had historically retained Allen & Co. to provide Investment banking services and strategy consulting services.
One of IACs Directors Charles Kenough served during the relevant period as Chairman of Allen & Co.
44. Defendant Dara Khosrowshai was CEO of IAC in 2005 and was previously an investment banker
at Allen & Co.
45. Defendant Jonathan Miller who between March 2005 and December 2005 is the CEO of AOL.i.
Miller was a top aide to IAC Chairman Mr. Diller until 2002.Defendant Jonathan Miller was CEO of Time
Warner internet unit, AOL during the 2005 year and period many of the predicate acts and damages incurred by
Petitioner.
iii. In 2007 Miller left AOL as CEO and replaced News CorpsExecutive Ross Levinsohn where
he currently continues to serve as head of digital media.
47. Defendant JP Morgan. Defendant J.P. Morgan Securities Inc. (JP Morgan) is the U.S.
investment banking arm of financial services giant JPMorgan Chase & Co. Morgan acted as joint book-running
manager and underwriter for Googles 2005 $4.2 billion dollar Secondary, helping to draft and disseminate the
offering documents.
48. Defendant Zakour, worked on the investment banking team for Citibank that was retained by
AskJeeves, Inc. in early 2005 at the Direction of AskJeeves Directors Carlick and Yang. Zakour on or around
May 2005 went to work at JP Morgan. At JP Morgan and on or around July 13, 2005 he was that paid and
engaged by News Corp to serve as their banker to acquire MySpaces Parent Company.
Zakour was paid and received compensation in his role for JPMorgan
advising and providing a $1.4 Billion dollar valuation report of MySpace.coms value as of July 13, 2005 which
only News Corp had the advantage and received the benefit of such information by signing a merger agreement
on July 18, 2005 to acquire MySpace.com and its parent company for an aggregate total of $650 million dollars.
However, Zakours Citibank arranged deal where he was compensated for the
AskJeeves acquisition by Carlick and Yang did not close until July 19, 2005.
50. Defendant Eric Schmidt
51. Defendant John Doerr. Doerr sat on the board of Excite@Home on behalf of MF until it went
bankrupt in 2001 and was co-investors with Geoff Yang, also a board member for most of the life of

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Excite@Home. MFs Caufield and Barksdale were since 2001 and thru all relevant periods, lead directors of
Time Warner/AOL. Time Warners controlled AOL subsidiary was in acquisition and strategic discussions with
Intermix thru at least July 18, 2005. AOLs decision in the summer of 2005 as to whether they would sign a new
search engine partnership with Google, or opt to work with a new partner was well followed by the media. The
process was coined a search partnership auction that was widely speculated about during this period
culminating in Google paying AOL $1 billion dollars while valuing AOL at $20 billion based on the terms of the
investment and search partnership Time Warner/AOL was able to command.
On or around August 2005, Geoff Yang and Google Director John Doerr co-invest together into broadband
startup, M2Z, Inc. Yang and Doerr having invested together behind M2Z CEO Milo Medin years ago when he
was part of the Excite@Home group of companies merged together that both Yangs Institutional Venture
Partners (IVP) and Doerrs Kleiner Perkins Caufield Byers (MFB) had financed before the company went
bankrupt in 2001.Both Yang and Doerr are Directors of M2Z according to same filing.The M2Z filing with FCC
states investors have committed in excess of $400 million M2Zs financial backers are Kleiner Perkins
Caufield & Byers, Charles River Ventures, and Redpoint Ventures. And
Kleiner Perkins Caulfield & Byers was formed in 1972;
John Doerr, a managing partner of the firm, is a founding board member of M2Z.
ii. Doerr is on WhiteHouse Economic Counsel, including Paul Otellini, and Richard D.
Parsons, Sheryl Sandberg, and Matthew Rose,
53. Defendant Time Warner. Time WarnerAOLs AOL subsidiary and IACs AskJeeves subsidiary
appear to benefit the most from Intermixs first search assets precipitous p demise when Intermix volunteers to
cease operating the division in June 2005 as part of settlement where Intermix also agrees to pay out penalties to
the NY AG of $7.5 million dollars which is approximately 90% of its cash on hand at the time. Both Time
Warner/AOL & IAC almost immediately benefit and indeed publicly brag of unexpected gains in their Paid
Search divisions in a July 21, 2005 press release made by these companies in conjunction with Comscore. The
press release cites the percentage share of the U.S. search marketplace attributed to AskJeeves & AOL
compared to the previous 12 month percentage share.

54. Defendant Caulfield. Caufield has made significant political donations in California and the
Unied States.Ten years ago, Caulfield was featured in NY Times article,
Politicians Getting a Warm Reception February 10, 2002 by Shawn Hubler,

Venture capitalist Frank Caufield and his wife, Karen, said they, too, had familiarity in
mind when they asked Pelosi to preside over their wedding at Caufield's sprawling second home
in Montecito. Caufield, a longtime contributor to Democratic causes, also lives in SanFrancisco, a
block from Pelosi in Pacific Heights. "Frank's been involved in Washington, D.C., quite a bit, so

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he knew she could do it," said Karen Caufield. "And she was just darling. She did a beautiful job.
She had to fly in on Saturday afternoon because they were in session because of Sept. 11.

Haig has had a long relationship with Henry Kissinger, to whom Haig became senior military advisor in
1969. January 1982, Reagan replaced his national security advisor, Richard Allen, with William P. Clark,
another Paperclip person, and who was Haig's deputy. Nixon said, "When you see the lights burning late
in Henry's [Kissinger] office, it's usually Al Haig." (*War In The Falklands, the Full Story* by the
*Sunday Times* of London Insight Team, Harper & Row, New York, 1982, p. 123.)
55. Defendant Jim Barksdale is a partner of Kleiner Perkins and also sat on board of
TimeWarner/AOL during period of claims.
56. Defendant Kleiner Perkins. Kleiner Perkins Caufield Byers LLC (MF)
scheme to control Time Warner.FTC's Facebook-Instagram Inquiry Ensnares Google, Twitter:
SourceBy Alexei Oreskovic(Reuters) - The U.S. Federal Trade Commission has reached out to Google
Inc and Twitter inan investigation into Facebook Inc's $1 billion acquisition of photo-sharing service
Instagram, asource familiar with the probe told Reuters
57. Defendant Thomas J. Perkins ("Perkins") if founding partner of MF. Perkins was lead Director
and controlled News Corporation from 1996 until his resignation as head of Audit and Nominating Governance
Committee of News Corp in October 2011.Defendant Perkins was a member of the Board's Audit, Nominating
and Corporate Governance and Compensation committees. For the fiscal year ended 2010, Perkins
earned$258,000 for his role at the Company. Because of defendant Perkin's experience and positions at News
Corp, his access to internal corporate documents, conversations and connections with
other corporate offices and employees, attendance at management and Board meetings and
committees thereof and via reports and other information provided to him in connection
therewith, he knew adverse non-public information about the business o fNews Corp, its lack of
internal controls and the existence and cover up of the widespread hacking scandal at the

Company. Thomas Perkins of Perkins was since 1995 and thru all relevant times, one of two lead directors of
News Corp that occupy the committees of Audit, Compensation, and Nominating and Corporate Governance.
Perkins would have been significant beneficiary if Google was
able to reach A commercial search partnership in 2005 with MySpace instead of competitors such as Yahoo and
Microsoft. Perkins partner Doerr would have been a significant beneficiary also. Both owned Google stock in
significant amounts thru MF and/or other designated holding companies entities or personally.
58. Defendant K. Rupert Murdoch ("Murdoch") has been CEO of the Company
since 1979 and its Chairman since 1991. The Murdoch family owns 12% of the overall equity
of the Company and the Murdoch family trust owns almost 40% ofNews Corp's voting Class B
common stock, and thus has effective control over corporate matters. Defendant Murdoch is the

father of defendants James and Lachlan Murdoch. For the fiscal year of 2008, Defendant

Murdoch received over $30 million in compensation from News Corp. For each of 2009 and

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2010, defendant Murdoch received $22 million. Because of defendant Murdoch's experience

and positions at News Corp, his access to internal corporate documents, conversations and

connections with other corporate offices and employees, attendance at management and Board

meetings and committees thereof and via reports and other information provided to him in

connection therewith, he knew adverse non-public information about the business of News

Corp, its lack of internal controls and the existence and cover up of the widespread hacking

scandal at the Company. Plaintiff is informed and believes that defendant Murdoch is a citizen

of the State of New York. CEO Admits April 2012, he has been victim and Company has been victim of

Coverup. This is critical date that fraudulent concealment of evidence activities admitted by

CEO. CEO thru April 2012 admission under oath at Leveson Inquiry is significant in that

it also is admitting that based on defective internal controls and systems the Directors and CEO
were not aware of the actions of the executives beneath them. Thus admitting gross negligence.

While Gross Negligence is all that is necessary to prove Petitioners damages under
Dodd Frank, Petitioner also believes certain actions defendants will be to found willfully aware
Of criminal activity including the Under Fair market bid rigging benefitting Google, MF, and
News Corp.

59. Defendant Les Hinton was formerly the Executive Chairman of News International. On 7
December 2007 he ceased to be Executive Chairman of News International and was appointed Chief Executive
of Dow Jones, which had recently been acquired by News Corporation. He resigned on 15 July 2011 and cited
the phone-hacking scandal .resignation. He gave oral evidence to the Committee on 25 March 2003, 6 March
2007and 15 September 2009.

60. Defendant Julia Angwin has been and is an employee of NewsCo since 2007.

61.Defendant Ross Levisohn was an executive and employee of NewsCo in 2005 thru 2007.

62. Defendant James R. Murdoch ("James Murdoch") has been a Director since

2007. As of March 30, 2011, James Murdoch became Deputy Chief Operating Officer as well
as Chief Executive Officer of the Company's international divisions. James Murdoch is the son
-of defendant Murdoch and the brother of defendant Lachlan Murdoch. Defendant James

Murdoch received over $17 million in News Corp compensation for the fiscal year of 2008. In

each of 2009 and 2010, defendant James Murdoch received over $10 million. Because of

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Defendant James Murdoch's experience and positions at News Corp, his access to internal

corporate documents, conversations and connections with other corporate offices and

employees, attendance at management and Board meetings and committees thereof and via

reports and other information provided to him in connection therewith, he knew adverse non
public information about the business of News Corp, its lack of internal controls and the

existence and cover up ofthe widespread hacking scandal at the Company. Plaintiff is informed

and believes that defendant James Murdoch is a citizen of the State of Connecticut. As Director,

Proxys are sent to the shareholders which is a violation of RICO 1431, predicate act of

mail fraud by causing 2005 -2012 false annual Proxy statements, known as Def14as, to be

distributed which is illegal in United States that omitted the UK hacking facts including that there

as the CEO described in September 2010, just one rogue hacker as well as also omitting
the fact NewsCorp was violating the FCPA and UK anti-bribery rules thru
bribing public officials in the UK including,

63. Defendant Lachlan K. Murdoch ("Lachlan Murdoch") has been a Director of the
Company since 1996. He served as an advisor to the Company from 2005 to 2009, and served

as its Deputy Chief Operating Officer from 2000 to 2005. For the fiscal year ended June 30,

2010, Lachlan Murdoch received almost $2 million for his role with the Company. Because of

Defendant Lachlan Murdoch's experience and positions at News Corp, his access to internal



reports and other information provided to him in connection therewith, he knew the adverse

non-public information about the business of News Corp, its lack of internal controls and the
existence and cover up of the widespread hacking scandal at the Company.
64. Defendant Chase Carey ("Carey") has been the President, Chief Operating

Officer and Deputy Chairman of the Board since July 2009. Carey previously served the

Company and its affiliates as Co-Chief Operating Officer from 1996 to 2002, consultant from

2002 to 2003 and as a Director from 1996 to 2007. For the fiscal year ended June 30, 2010

2002 to 2003 and as a Director from 1996 to 2007. For the fiscal year ended June 30, 2010

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Carey received over $26 million in compensation from News Corp. Because of defendant

Carey's experience and positions at News Corp, his access to internal corporate documents,

conversations and connections with other corporate offices and employees, attendance at

management and Board meetings and committees thereof and via reports and other information

provided to him in connection therewith, he knew adverse non-public information about the

business of News Corp, its lack of internal controls and the existence and cover up of the
widespread hacking scandal at the Company.
65. Defendant David F. DeVoe ("DeVoe") has been a Director of the Company and

its Chief Financial Officer since 1990. Defendant DeVoe has served as Senior Executive Vice

President since 1996. Defendant DeVoe received News Corp compensation for the fiscal years

ended 2008 through 2010 of almost $10 million, $9 million and $7 million respectively.

Because of defendant DeVoe's experience and positions at News Corp, his access to internal



reports and other information provided to him in connection therewith, he knew the adverse

existence and cover up of the widespread hacking scandal at the Company.
66. Defendant Joel Klein ("Klein") joined the Board in January 2011 and currently

serves as Executive Vice President, Office of the Chairman. Defendant Klein is also the Chief

Executive Officer ofNews Corp's education division. Defendant Klein is expected to receive a

yearly salary of $2 million, and an annual bonus of at least $1.5 million, in addition to his $1

million signing bonus. Because of defendant Klein's experience and positions at News Corp,

his access to internal corporate documents, conversations and connections with other corporate

offices and employees, attendance at management and Board meetings and committees thereof

and via reports and other information provided to him in connection therewith, he knew adverse


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existence and cover up of the widespread hacking scandal at the Company. Plaintiff is informed

and believes that defendant Klein is a citizen of the State ofNew York. Klein is married to

Defendant Seligmann who is employed as CFO of Defendant Sony USA Corp.

67. Defendant Arthur M. Siskind ("Siskind") has been a Director of the Company

since 1991 and senior advisor to defendant Murdoch since 2005. Defendant Siskind served as

the Company's Group General Counsel from 1991 to 2005, as Senior Executive Vice President

from 1996 to 2005 and as Executive Vice President from 1991 to 1996. For the fiscal year

ended June 30, 2010, Siskind earned almost $4 million for his role with the Company. Because

of defendant Siskand's experience and positions at News Corp, his access to internal corporate
documents, conversations and connections with other corporate offices and employees,

attendance at management and Board meetings and committees thereof and via reports and

other information provided to him in connection therewith, he knew adverse non-public

information about the business of News Corp, its lack of internal controls and the existence and

cover up of the widespread hacking scandal at the Company.
68. Defendant Sir Roderick I. Eddington ("Eddington") is employed by JP Morgan

currently and during the 2005 period. Eddington has been a Director of News Corp since 1999,

and serves as the Chairman of the Board's Audit Committee and as a member of the

Compensation Committee. For the fiscal year ended June 30, 2010, Eddington

earned $274,000 for his role with the Company. Because of defendant Eddington's experience

and positions at News Corp, his access to internal corporate documents, conversations and

connections with other corporate offices and employees, attendance at management and Board
meetings and committees thereof an via reports and other information provided to him in

connection therewith, he knew the adverse non-public information about the business of News
Corp, its lack of internal controls and the existence and cover up of the widespread hacking
scandal at the Company.
69. Defendant Andrew S.B. Knight ("Knight") has been a Director of the Company

since 1991 and serves as a member of the Board's Audit and Compensation Committees.

Defendant Knight was the Chairman of News International, a subsidiary of the Company and

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parent of News of the World from 1990 to 1995. For the fiscal year ended June 30, 2010,

defendant Knight earned $281,690 for his role with the Company. Because of defendant

Knight's experience and positions at News Corp, his access to internal corporate documents,



provided to him in connection therewith, he knew the adverse non-public information about the

business of News Corp, its lack of internal controls and the existence and cover up of the

widespread hacking scandal at the Company.
70. Defendant Peter L. Barnes ("Barnes") has been a Driector of the Company since
2004 and is a member of the Board's Audit Committee. For the fiscal year ended June 30,

2010, defendant Barnes earned $236,000, for his role with the Company. Because of defendant

Barnes' experience and positions at News Corp, his access to internal corporate documents,

provided to him in connection therewith, he knew adverse non-public information about thebusiness of News
Corp, its lack of internal controls and the existence and cover up of thewidespread hacking scandal at the
Company.

71. Defendant Natalie Bancroft ("Bancroft") has been a Director of the Companysince 2007. For the
fiscal year ended June 30, 2010, Bancroft earned $220,000 for her role withthe Company. Because of defendant
Bancroft's experience and positions at News Corp, heraccess to internal corporate documents, conversations and
connections with other corporate
and via reports and other information provided to him in connection therewith, she knewadverse non-public
information about the business of News Corp, its lack of internal controlsand the existence and cover up of the
widespread hacking scandal at the Company

72. Defendant Kenneth E. Cowley ("Cowley") has been a Director of the Company
since 1979. Defendant is a member of the Board's Nominating and Corporate Governance

Committee. Defendant Cowley served as a senior executive of News Limited, a subsidiary of

the Company from 1964 to 1997, including as its Chairman and Chief Executive from 1980 to

1997. For the fiscal year ended June 30, 2010, defendant Cowley earned $231,000 for his role

with the Company. Because of defendant Cowley's experience and positions at News Corp, hisaccess to internal
corporate documents, conversations and connections with other corporate

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and via reports and other information provided to him in connection therewith, she knew the

adverse non-public information about the business of News Corp, its lack of internal controls

and the existence and cover up of the widespread hacking scandal at the Company.

73. Defendant Viet Dinh ("Dinh") has been a Director of the Company since 2004.
Defendant Dinh is a member of the Board's Nominating and Corporate Governance and

Compensation Commitees. For the fiscal year ended June 30, 2010, Dinh earned $258,000 forhis role with the
Company. Because of defendant Dinh's experience and positions at News

Corp, his access to internal corporate documents, conversations and connections with othercorporate offices and
employees, attendance at management and Board meetings and
committees thereof and via reports and other information provided to him in connection

therewith, he knew adverse non-public information about the business of News Corp, its lack of

internal controls and the existence and cover up of the widespread hacking scandal at the Company.
74. Defendant John L. Thornton ("Thornton") has been a Director of the Companysince 2004.
Defendant Thornton serves as a member of the Board's Nominating and CorporateGovernance and
Compensation Committees. Because of defendant Thornton's experience and

positions at News Corp, his access to internal corporate documents, conversations and

connections with other corporate offices and employees, attendance at management and Boardmeetings and
committees thereof and via reports and other information provided to him inconnection therewith, he knew
adverse non-public information about the business of NewsCorp, its lack of internal controls and the existence
and cover up of the widespread hackingscandal at the Company.

75. Defendant Hogan & Lovell Law LLC, HHLAW is conflicted by having fraudulently concealed
the fact that HHLAW was working for News Corp while creating the merger agreement in July 2005.(60b3
Declaration Exhibits104,105), and should be disqualified as Counsel in Brown v. Brewer and from acting as
counsel for News Corp in this or related State or Federal actions because of such conflict.
New Evidence reveals from the May 2012 Leveon Inquiry in the UK that
Hogan and Lovell was conducting and leading the BskyB acquisitions dealings and negotiations with the UK
Government and multiple regulatory bodies there that began as early as December 2010 and continued thru July
2011 when the bid was dropped by News Corporation according to its public statements. (Exhibit)

75. Defendant Richard Stone a lawyer working for Hogan Lovell and News
Corporation and representing defendants in Brown v. Brewer case in Federal Court which is securities fraud
Class Action.

76. Defendant Julie Shephard a lawyer working for Hogan Lovell and News Corporation and
representing defendants in Brown v. Brewer case in Federal Court which is securities fraud Class Action.

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77. Defendant Christine Varney lobbyist for News Corp and Hogan Lovell now Swarthmore Cravin
law firm. Varney was nominated for the position of Assistant Attorney General forthe Antitrust Division of the
Department of Justice on February 23, 2009, and confirmed by the Senate on April 20, 2009.[8] Before her
appointment, Varney had experience working in both the
Private and public sectors. After the election of President Barack Obama, Varney served as
Personnel Counsel on the Obama-Biden Transition Project.[9] Before joining the Obama

campaign, Varney was a fundraiser for the Hillary Clinton campaign during the 2008 United

States Presidential Election.[3] Until her appointment as an Assistant Attorney General, Varney

was a partner at the Washington, D.C. law firm Hogan and Hartson, where she led the internet

practice group.[1][10] As a lawyer and lobbyist, Varney represented and advised companies on

matters such as antitrust, privacy,business planning and corporate governance, intellectual property, and general
liability issues. Notably, she represented Netscape during U.S. v. Microsoft and its merger with
AOL.[11] Other clients included eBay,DoubleClick, The Washington Post Company's
Washingtonpost and Newsweek interactive businesses, Dow Jones & Company, AOL, Synopsys,
Compaq, Gateway, the Liberty Alliance, and Real Networks.[12] According to the Center for
Responsive Politics, as a lobbyist Varney represented mostly computer and internet firms, but
also oil & gas interests.

77. Sharis Arnold Posen, On or around April 2009, Sharis transitioned from Hogan & Lovell into the
Antitrust division,

78. Defendant Mary Ellen Callahan lobbyist for News Corp and Hogan Lovell

79. Defendant Mark Hurd. Hurd was CEO of HP a public company from 2005 thru 2010. Hurd was
on Board of News Corp between 2007-2011 and a member of the Governance and Nominating Committee of
News Corp.Hurd gave evidence to Congress and admitted his role in illegal conduct as

80. Vinod Khosla

81. Khosla Ventures

82. Samir Kaul

83. Amryis
84. Defendant Jim Breyer (Breyer) is the largest preferred stock holder of FaceBook, inc. , and
serves on the News Corp Board as of October 2011. According to its S1:
James W. Breyer directors Accel Partners, Brightcove Inc., Dell, Inc., , Prosper Marketplace,
Inc., Wal-Mart Stores, Inc., where he is the lead/presiding independent director.
Defendant serves as head of News Corp Nominating and Governance

85. Accel Partners LLC

87. Defendant Sheryl Sandberg. According to faceBooks s1, Sandbegr has:

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seved as Chief Operating Officer since March 2008. From November 2001 to March 2008,
Ms. Sandberg served in various positions at Google, Inc., most recently as Vice President, Global Online
Sales & Operations. Ms. Sandberg also is a former Chief of Staff of the U.S. Treasury Department and
previously served as a consultant with McKinsey & Company, a management consulting company, and
as an economist with The World Bank. In addition to serving as our Chief Operating Officer,
Ms. Sandberg has been a member of the board of directors of the Walt Disney Company since December
2009. Ms. Sandberg holds an A.B. in economics from Harvard University and an M.B.A. from Harvard
Business School.
88. Defendant David A. Ebersman according to the Facebook S1:

has served as our Chief Financial Officer since September 2009. Prior to joining us, Mr. Ebersman
served in various positions at Genentech, Inc., a biotechnology company, including as its Chief Financial
Officer
89. Marc L. Andreessen directors Opsware, Inc. (formerly known as Loudcloud Inc.), as Chief
Technology Officer of America Online, Inc., , directors of eBay Inc. and the Hewlett-Packard Company.

90. Donald E. Graham Chief Executive Officer of The Washington Post Company, Defendant signed
or authorized the signing of the false and misleading Registration Statement.

91. Washington Post Corporation
94. Defendant Alex Voxman of Latham & Watkins
Latham & Watkins was conflicted from their role as both Intermix counsel in the very transaction in
dispute. In addition, Lathams Alex Voxman has been Rosenblatts corporate attorney and an investor in his
business ventures. Voxmans bio also states he was also involved in,
Representation of Intermix Media in connection with the formation, recapitalization and preferred stock
financing of its majority-owned subsidiary MySpace.com and the sale of Intermix/MySpace to News Corp and
Representation of emand Media in connection withpreferred stock equity financing and its acquisition of
eHow.com, BulkRegister.com, Intermix Networks, expertvillage.com, Pluck Corporation and numerous other
Internet Media.
95. Defendant Ernst & Young LLC
96. Defendant RGRD Law LLC
97. Defendant Jim Brown,
98. Defendant Randall Baron is lead partner for Defendant RGRDLAW
.
99. Defendant Darren Robbins
101. Defendant Sony 550 LLC

102. Defendant SonyMusic Corp.,

103. Defendant Sony USA Corp (Sony).

104. Defendant Lisa Seligman, C Legal Officer of Sony USA Corp. and Married to

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103. News Corps Joel Klein. Assistant Attorneyy General April 29 and Holder as Deputy Attorney
General on June 13, 1997. 105
th
Congress, they are approved.

In 2002-2003, Richard Clark, Special Advisor to the President and Ray Lane.
105. Robert Wiesenthal, Chief Financial Officer of Sony Corporation
106. Howard Stringer, CEO Sony USA Corporation.
107. Elliot Spitzer, 2004-2005 member of WAVC, Western Association oof Venture Capitalists,
along with, John Muleta, Chief FCC Wiresless Telecommunications Bureau Robert Klein II, Klein Financing
Corporation, Philip Zlikow, Executive Directoor 9/11 Commissions, Eliot Spitzer, New York State Attorney
General, Brian Robert, CEO Comcast,
107. EMI Music Corporation
108. Warner Music Corporation
109. Arent Fox Law Firm
110. Defendant Answers.com, Inc.

111. Defendant Joe Klein

113. Defendant Andreeson Horowitz LLC

115. Defendant Covington Burlington

113. Plaintiff is currently unaware of the names, addresses, and/or involvement of all of
the other individuals who may have participated in some/all of the tortuous and/or illegal
activities that are described herein- and/or who may have benefitted financially from the

operations of one or more of the Business Entities. In this regard, the Plaintiff reserves the right to

amend this Verified Complaint to include those other individuals as that information becomes
available during the discovery process in this lawsuit.
Plaintiff is currently unaware of the names, addresses, and/or involvement of all of
the other law firms and attorneys who may have participated in some/all of the tortuous and/or illegal activities
that are described herein- and/or who may have benefitted financially from the operations of one or more of the
Business Entities. In this regard, the Plaintiff reserves the right to amend this Verified Complaint to include those
other individuals as that information becomes available during the discovery process in this lawsuit.

IV - CLASS ACTION ALLEGATIONS
23. Plaintiffs bring this action on behalf of themselves and all others similarly situated (the Class)
pursuant to Federal Rules of Civil Procuedre 23(a), 23(b)(2), and 23(b)(3). The Class is defined as follows:
The questions of law or fact common to the Class include but are not limited to:
whether the conduct of Defendants violated the Clayton Act, Sherman Act or Cartwright Act, or RICO

b. whether Defendants conspiracy and associated agreements, or any one of
them, constitute a per se violation of the Clayton Act, Sherman Act or Cartwright Act;

c.hether Defendants agreements are void as a matter of law under California

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Business and Professions Code 16600;
d.whether the conduct of Defendants violated California Business and
Professions Code 17200, et seq.;
whether Defendants fraudulently concealed their conduct or obstructed
justice.whether Defendants conspiracy and associated agreements restrained trade,
commerce, or competition for internet acquisitions or search engine commercial agreements.Whether Plaintiffs
and the sub Classes suffered antitrust or RICO injury or were threatened with injury;The difference between the
acquisition compensation received by subclass Plaintiffs , and the acquisition compensation Plaintiffs and the
Class would have received from Defendants in the absence of the illegal acts, contracts, combinations, and

The type and measure of damages suffered by Plaintiffs and the Sub Classes.conspiracy allged herein; Whether
Defendants engaged in a pattern of mail and wire fraud in direct violation of RICO statutes;Plaintiffs claims are
typical of the claims of the Class as they may include antitrust injuries and Rico and Privacy InvasionPlaintiff
will fairly and adequately represent the interestes of the Class and have no conflict with the interest of the Class.

FACTUAL ALLEGATIONS

THE HACKING SCANDAL- A Pervasive Scheme

Over the past decade, employees at News Corp subsidiaries engaged in a

widespread scheme to eavesdrop on voicemail and other forms of electronic communication inorder to obtain
stories for their publications.
NewsCorps CEO Rupert Murdoch and Janet Nova, the Deputy Group General

Counsel of News Corp were on the News International Board thru late 2011. Resigning shortly after executive
Mockridge stated to the Leveson Inquiry in October 2010, the board of directors of NI Group Limited continues
to play a key role in ensuring the appropriate corporate governance standards of the company and its
subsidiaries. (Leveson Report 2.41, pg. 106)

Most recently, News Corp told the Leveson Inquiry audits were planned at NI in

relation to, inter alia, advertising revenue, circulation revenue, compliance with the UK Bribery Act and NIs
digital media operations

Ms. Brooks' comments to the British House of Commons Culture committee in

March 2003 are particularly disturbing. Ms. Brooks told the committee that the story of MillyDowler was an
example of how News of the World handled stories sensitively and respected thewishes of grieving parents
because the paper only sent one reporter and one photographer to theMs. Dowler's funeral.
Although she deceived the committee about the true nature of the papers

egregious actions with regard to Milly Dowler, Ms. Brooks did hint at the scandal to come whenshe admitted
before the committee that News of the World "paid the police for information inthe past."

In November 2005, Clive Goodman, News of the World's royal editor wrote a brief story revealing that Prince
William had strained a tendon in his knee and sought medical advice. A week later, he revealed that the prince
had borrowed broadcasting equipment from a friend. Another article quoted verbatim a hacked voicemail in
which Prince William imitatedhis girlfriend. Mr. Goodman garnered his information through the unlawful
hacking of PrinceWilliam's voicemail. In 2005, Prince William's staff notified authorities that his phone hadbeen
hacked after intimate details were reported in Mr. Goodman's articles.
An initial police investigation into the police's misconduct resulted in the January 2007 convictions of Clive
Goodman and Glenn Mulcaire. A desk editor who was working for Andy Coulson, News of the Worlds, editor
when police arrested Goodman was the only one who went down.Despite this, Mr. Coulson represented to the
public that the Royal hacking was a one-off instance and the work of rogue reporters. Les Hinton, News

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International Group's then executive director and close confidant of defendant Murdoch made similar

misrepresentations.News Corp misled the public regarding its internal controls and its failure to properly
respond to the unlawful activities alleged herein. The misconduct not only has caused harm to News Corp's
reputation but has resulted the shuttering of a 168-year-old newspaper.

Additionally, the scandal has scuttled the Company's attempted acquisition of BSkyB.

NEWS CORPORATION ANTI-RETALIATORY ATTACKS

breaches of the Individual Defendants fiduciary duty, abuse of control, gross

mismanagement, waste of corporate assets and unjust enrichment, as well as the aiding and abetting thereof, by
the Individual Defendants. News Corp and other Defendants that are part of a RICO Associate in Enterprise are
named as a defendant because they have benefitted from the anti-retaliatory acts of omission, harassment, and
violations of Section 1513 (e) and (f) its employees carry out for the financial gain of the overall company.

However, the Individual Defendants are responsible for failing to oversee the internal
Controls of a publicly traded company even as they have collected millions in compensation for turning a blind
eye to the criminal and civil anti-retaliatory violations generated by the many subsidiaries of News Corporation
whose executives operate and carry out the predicate criminal and civil violations of law and generally illegal
conduct.

Therefore, by NewsCorp having compromised internal controls and Directors willing to accept 100% of the
money for serving as an SEC Director of a public company but Failing to discharge 100% of the duty, time, and
effort needed to operate as a Director and Operate a
compliant Board and that Board operate a compliant group of managers which included the CEO, Rebekah
Brooks, Les Hinton, Ross Levinsohn, as the top executives.

Instead, the Directors and Board of News Corporation and other Defendants
such as Hogan Lovell and Ernst & Young utterly failed and turned a blind eye and did not attempt over years of
neglect, to sound the alarm to outside auditors or Regulators. Therefore, any victims of News Corporation anti-
retaliatory Attacks under Dodd Frank and Sarbanes Oxley. the individual News Corporation Directors are liable
for The News Corporations defective and broken internal controls and compliance safeguards,
Because these Directors have allowed false public filings to mask and hide the
true State of danger the public was under because the entire business could be operated in an unlawful or
corrupt or recklessly illegal way, and the Directors and Company would conceal and not disclose the true set of
facts. Worse the Directors gladly buried years of illegal predicate actsin their SEC Financials by simply omitting
them and allowing their CEO and CFO to liein their Officer Certificates and the individual Directors turned a
blind eye to the criminalconduct. Finally with the 2011 July breaking of the UK phone hacking, the public could
begin to notice the United States SEC significant defective Enron like financial off balance sheet, omitted from
legal liabilities and frauds the Officers were allowing including admitting they were

paying bribes to police and as the MET POLICE Sue Akers said in January 2012, News
Corporation had operated one of its newspapers as an operation to payout thousands of illegal bribes and
coverup the bribes by mislabeling the use of proceeds. News Corporation admitted its financial statements were
defective which was yet more proof of the defective internal controls and systems of News Corporation
historically and currently.
The Company has admitted in its 14A Proxy Statement filed with the SEC on

October 15, 2010 that defendants Murdoch, James Murdoch, Lachlan Murdoch, Chase Carey,David F. DeVoe,
Joel Klein, and Arthur M. Siskind and are not independent directors pursuant to the requirements of the
NASDAQ Capital Markets, including NASDAQ Listing Rule5605(a)(2), and applicable SEC regulations.
Additionally, defendants Knight, Dinh,Eddington, Perkins and Thornton lack independence from defendants
Murdoch, James

Murdocn, Carey, and DeVoe as they are defendants who are not disinterested and/or

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independent and who exert influence over the compensation for defendants Murdoch, JamesMurdoch, Carey,
and DeVoe by virtue of their positions as members of the Compensation Committee. The Compensation
Committee annually reviews and approves corporate goals and

objectives relevant to the compensation for defendants Murdoch, James Murdoch, Carey, and

DeVoe evaluates their performance in light of those goals and objectives, and approves their compensation level
based upon these evaluations. This lack of independence renders

defendants Knight, Dinh, Eddington, Perkins and Thornton incapable of impartially.

Defendants face a substantial likelihood of being held liable for breaching their

fiduciary duties of loyalty and good faith as alleged herein, and are therefore incapable of disinterestedly and
independently providing relief for Petitioners thru fixing the defective internal controls and compliance of News
Corporation including the reckless managementof outside law firms like Hogan Lovell and Connolly Law,
Covington Burlington.

The principal professional occupation of defendants Murdoch, Carey, James
Murdoch and DeVoe is their employment with the Company, pursuant to which they received significant
compensation from the Company .

26. The entire News Corp Board and senior management participated in the wrongs

complained of herein. For the reasons described herein, New Corp's directors are not

disinterested or independent. Pursuant to their specific duties as Board members, each was

charged with the management of the Company and the conduct of its business affairs. Each of

the above referenced defendants breached the fiduciary duties they owed to News Corp and its

shareholders in that they failed to prevent and correct the dissemination of the Company's false

and misleading statements. Thus, the News Corp Board cannot exercise independent objective
judgment because its members are personally interested in the outcome because their actions
have subjected News Corp to millions of dollars in potential liability for violations of applicable
securities laws;
Defendants Murdoch and DeVoe certified certain of News Corp's SEC filings.

Amd face a substantial likelihood of liability for breach of fiduciary duties owed to News Corp;
The Individual Defendants concealed the true scope of the hacking scandal and

Petitioners whistleblower evidence and News Corporations legal liabilities during the Relevant

Period; Defendants Eddington, Barnes, Knight and Perkins were aware of the

Company's ongoing unlawful and improper business practices and the dissemination of

materially false and misleading statements and, yet, still permitted the Company to portray to

the public the Company's false and misleading information despite their heightened fiduciary

obligations as members of the Company's Audit Committee. Defendant Eddington served as Chair of News
Corp's Audit Committee during the Relevant Period and defendants Barnes,Knight and Perkins served as

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members of News Corp's Audit Committee during the RelevantPeriod.
The purpose of News Corp's Audit Committee was to assist the Board in fulfilling Its oversight
responsibilities. Specifically, the Audit Committee was to assist the Board in overseeing: (1) the integrity of the
Company's financial reporting processes and systems of internal control (2) the qualifications, independence,
and performance of the Company's independent registered public accounting firm; (3) the Company's
compliance with legal and regulatory requirements, involving financial, accounting, and internal control matters,
(4) investigations into complaints concerning financial matters, (5) risks that may have a significant impact on
the Company's financial statements, and (6) the review, approval and ratification of transactions with related
parties. Moreover, as part of its oversight role with respect to the Company's financial statements and the public
disclosure of the Company's financial results, the Company's Audit Committee regularly reviewed and discussed
with New Corp's management the financial statements included in the Company's annual reports onForm 10-K
and quarterly reports on Form 10-Q. The Audit Committee also met regularly in separate executive sessions with
News Corp's CFO, Chief Accounting Officer, and other
members of the Company's executive management team. The Company's Audit Committee also operates
pursuant to a written charter approved by the Company's Board, which provides, among other things, that Audit
Committee members must: "[r]eport to the Board of Directors on a regular basis, and this report shall include a
review of any issues that arise with respect to the quality or integrity of the Company's financial statements, the
Company's legal and regulatory requirements, the qualifications, independence and performance of the
Company's independent registered public accounting firm and the performance of the corporate audit function."
As a result, defendants Eddington, Barnes, Knight and Perkins knew, or should have known, of the Company's
wrongdoing alleged herein, but intentionally or recklessly violated their duties as members of the Audit
Committee. The failure of defendants Eddington, Barnes, Knight and Perkins to perform their duties as members
of the Audit Committee with loyalty and in good faith raises a substantial likelihood of non-exculpated personal
liability on their part.
Each of the key officers and directors knew of and/or directly
benefited from the wrongdoing complained of herein thereby rendering demand futile;
The Individual Defendants approved and/or permitted the wrongs alleged herein

to have occurred and participated in efforts to conceal or disguise those wrongs from News Corp's stockholders
and the public or recklessly and/or negligently disregarded the wrongs complained of herein, and are therefore
not disinterested parties;

All of News Corp's directors have extensive business and personal entanglements,
which they will not do, thereby excusing demand;
The acts complained of constitute violations of the fiduciary duties owed by News Corp's
officers and directors and these acts are incapable of ratification;
Each of the Individual Defendants authorized and/or permitted the false
statements disseminated directly to the public and which were made available and distributed
to shareholders, authorized and/or permitted the issuance of various of the false and misleading
statements and are principal beneficiaries of the wrongdoing alleged herein,.

GOOGLE-AUC-NONCOMPETE (GAN) association-in-fact enterprise,
Each of the Defendants at all times relevant to this action, qualify as a RICO
person within the meaning of 18 U.S.C. 1961(3) and 1962(c).

Defendants have used an association-in-fact enterprise, within the meaning of 18 U.S.C. 1961(4), to carry
out its pattern of racketeering activity. This enterprise consists of Defendants: News Corporation, Ernst &
Young, Connolly Law Firm, Google, TimeWarner/AOL, New News, 21
st
Century Fox, Allen & Co., Kleiner
Perkins Caufield, Hogan Lovell, Latham & Watkins, Orrick Herrington, VantagePoint Partners, RedPoint,
JPMorgan, Facebook Inc., Intel Corporation, Khosla Ventures LLC, Washington Post Corporation,
Amazon.com, Accell Partners LLC, RGRD Law LLC, Sony Corporation, LOUIS A. KARASIK , ALSTON &
BIRD LLCBRENDAN V. SULLIVAN, JR. , TOBIN J. ROMERO ,JOSEPH M. TERRY, JONATHAN B.
PITT, WILLIAMS & CONNOLLY LLP,Sony Music Corporation, Arent Fox, EMI, Warner Brothers Music,
MySpace Inc., Intermix Inc., Ernst & Young, Markel Foundation, Varney, Mary Beth Callahan, Viet Dinh,
Mary Jo white, JPMorgan, Jamie Dimon, Comcast, Rodin, Stephen Burke, Seligman, CLO of Sony USA, Robert

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Wiesenthal, Barry Diller, Sheryl Sandberg, Mark Andreeson, Mark Hurd, Dan Evans, Rebekah Wade Brooks,
Andy Coulson, Clive Goodman, Les Hinton, Marrisa Meyer, Larry Page, Jonathan Rosenberg, Eric Schmidt,
Bill Campbell, HP, Kleiner Perkins Caufield, James Barksdale, Joel, Rupert Murdoch, James Murdoch, Paul
Otellini, John Thompson, Jim Breyer,Covington Burlington, Vinod Khosla, Al Gore Jr Apple Director, Mark
Zuckerberg, Donald Graham, Keker & Co Law, as well as certain of their Officers, Directors, and
employees (Enterprise). This Enterprise possessed and continues to possess a common purpose and
goal, a membership, organizational structure, and ongoing relationships.with sufficient longevity to permit and
enable pursuit of the Enterprises purpose and long-term objective through a continuous course of conduct that
affected and continues to affect interstate and foreign commerce. Google and other defendants qualify as a
person under the civil RICO statute because each knowingly and fraudulently conducted and participated in
the conduct, the management and the operation of the Enterprises affairs, directly or indirectly, through a
pattern of racketeering activity in violation of 18 U.S.C. 1962(c). Google and Defendants engaged in such
unlawful interstate mail and wire fraud. Pursuit of profit is not per se violative of the mail and wire fraud statutes
or civil RICO. Google and defendants violated RICO and injured Plaintiffs and class members in their business
or property by reason of its conduct of the Enterprise not to pursue gain, but to do so by unlawful means: to
maximize its gain and profit through a pattern
and practice of misrepresentation and concealment of the systematic decisions that placed financial goals above
safety considerations, that was conducted in violation of applicable laws and regulations, that made such
operation perilous to human and environmental health and safety, and that rendered Google, Defendants and the
Enterprise unable to prevent, criminal acts from manifesting in the operations of fellow RICO defendants such as
News Corporation Phone Hacking, bribery, and coverup announced by CEO inApril 2012. As the direct,
proximate and foreseeable result of this violative pattern And disasters created, Plaintiffs and the class have been
injured in their businesses and property.

The Enterprise exists separate and apart from its pattern of racketeering activity, in as much as Google Inc. and
other Defendants and the Enterprise have multiple goals, not all of which are fraudulent. The lawful activity
engaged in by the Enterprise includes ongoing partnerships to sell online advertising, selling public and
private internet company stock generating commissions, trying to identify and
investing control or non control equity stakes in new internet technology, advertising,
or marketing companies, offering for sale intellectual property drivencontent thru pay
per view or subscription sales, legal and accounting vendor services are bought and
sold.Google and other defendants have, since at least 2004, used this enterprise to conduct the related acts of
mail and wire fraud along with other RICO violations comprising the pattern of racketeering.Plaintiffs allege a
conspiracy of multiple RICO persons an example and evidence

This RICO & Antitrust Class Action Complaint makes allegations of, and places Defendants on notice that
Plaintiffs may seek, certification of one or more classes and/or subclasses, as appropriate, for the classwide
determination of common issues of law and/or fact relating to the liability of Defendants to the members of such
classes and/or subclasses for actual, compensatory, and treble damages for the economic harm and damage to
business and property Plaintiffs have incurred as a result of Defendants culpable knowledge, fraudulent conduct,
acts and omissions as set forth herein, and for appropriate equitable relief. Plaintiffs will seek to maintain this
action as a class action, and/or the class certification of particular issues herein, under Rule 23 of
the Federal Rules of Civil Procedure, including, as appropriate, Rule 23(a)(1)-(4);

(b)(1)(B); (b)(2); (b)(3); (c)(4); and (c)(5).

PREDICATE ACTS & THE PATTERN OF RACKETEERING ACTIVITY
Defendants and Enteprise engaged in a fraudulent scheme to defraud shareholders of its acquisition targets,
competitors in online advertising and search markets, victims of criminal wiretap violations, phone hacking, and
bribery in the US and UK, employees working for defendants, petitioner, and the public.
For the purpose of devising and carrying out their scheme and artifice to defraud the government re gulators and
plaintiff victims by means of false and fraudulent pretenses, representations and promises, Defendants did place
in an authorized depository for mail, or did deposit or cause to be deposited with private commercial interstate
carriers and knowingly caused to be delivered by the United States postal service, letters, memoranda, and other

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matters, in violation of 18 U.S.C. 1341, or aided and abetted in such criminal acts, as previously described,
under 18 U.S.C. 2. For the purpose of devising and carrying out their schemes and artifice to defraud the
government regulators and plaintiff victims by means of false and fraudulent pretenses, representations and
promises, Defendants and Enterprise caused to be transmitted by means of wire communication in interstate
commerce, writings, signals and sounds, to wit, interstate electronic mail messages and/or facsimile in violation
of 18 U.S.C. 1343, or aided and abetted in such criminal acts, as previously described, under 18 U.S.C. 2.
The Pattern Of Racketeering Activity
Defendantss alleged RICO predicate acts in furtherance of its scheme to defraud governmental regulators
constituted a pattern of racketeering activity within the meaning of 18 U.S.C. 1961(5) because the predicate
acts are related and continuous. Each predicate act had the same or similar purpose: the predicate acts
involved material misrepresentations, omissions and concealment in a scheme to
defraud the regulators into believing Defendants would conduct operations legally.Included in these predicate
acts are those situations where Defendants communicated by mail, interstate wire or interstate carrier giving
approval for Defendants various actions. This pattern of racketeering is separate from and distinct
from the legitimate online advertising sales activity or investment banking or cquisition business of the
Enterprise alleged herein.Additionally, under Dodd Frank and Sarbanes Oxley, Plaintiff prior employment, as
individual claims exist to allege that a wrongful predicate act, retaliation under 18 U.S.C. 1513(e),
proximately caused his injuries. Rico Defendants engaged in retaliatory acts against Petitioner starting in 2003
in violation of 18 U.S.C. 1513(e)-(f) by terminating his employment, filing a lawsuit against him, and
disseminating defamatory statements to the press. pattern of racketeering activity under 1962(c).

Relatedness And Continuity Of The Racketeering Activity

All of the predicate acts alleged above are related to the scheme of Defendants and Enterprise
defrauding regulators and plaintiff victims thru their operations. Continuity is demonstrated by the predicate acts
alleged above because the pattern of racketeering involves multiple predicate acts and related predicate acts tha
have taken place over many years. These predicate acts in furtherance of its scheme illustrate a threat of
continued racketeering activity and evince that the predicate acts constitute the regular way that Defendants and
Enterprise conduct business.

As a proximate result of the pattern of racketeering activity and RICO violations engaged in by Defendants,
Plaintiffs and the Class members have suffered injury to their business and property.

The RICO Defendants acts were not isolated, but rather formed a pattern of conduct through which the RICO
Defendants used the enterprise to defraud and to silence Plaintiffs from complaining about and exposing such
illegal and fraudulent acts.Alternatively, the RICO Defendants, through an agreement to commit two
or more predicate acts, conspired to conduct or participate in the conduct of an
enterprise, although not a legal entity . . . ." 18 U.S.C. 1961(4) (1982).
From approximately 2003 and continuing through present, the RICO Enterprise and the Defendants, as well as
others known or unknown, being persons employed by and associated with Enterprise and Defendants and,
which were engaged in and the activities of which affected and affect interstate commerce, unlawfully and
knowingly conducted or participated, directly or indirectly, in the affairs of the enterprise through a pattern of
racketeering activity, that is, through the commission of two or more racketeering acts set forth
herein.PlaintiffS seek to prohibit the RICO Defendants from utilizing the patternof unlawful conduct in which
they have continually engaged during the relevant time period.The pattern of the RICO Defendants illegal
racketeering activity, as defined by 18 U.S.C. 1961(1)(B) and 1961(5) and 1962(c), includes:

a. Multiple instances of mail fraud in violation of 18 U.S.C. 1341;

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b. Multiple instances of wire fraud in violation of 18 U.S.C. 1343.

c. Multiple instances of violation of 18 U.S.C. 1512 (relating to tampering with a witness, victim, or an
informant)

d. Multiple instances of violation of 18 U.S.C. 1519 (relating to destruction, alteration, or falsification of
records in Federal investigation and bankruptcy)

e. Multiple instances of violation of 18 U.S.C. 1513 (relating to retaliating against a witness,victim, or an
informant

f. 18 U.S.C. 201 (relating to bribery)

18 U.S.C. 1028 (relating to fraud and related activity in connection with identification documents)

18 U.S.C. 1029 (relating to fraud and related activity in connection with access devices)

18 U.S.C. 1084 (relating to the transmission of gambling information)

18 U.S.C. 1344 (relating to financial institution fraud)

18 U.S.C. 1503 (relating to obstruction of justice)

18 U.S.C. 1510 (relating to obstruction of criminal investigations)

18 U.S.C. 1511 (relating to the obstruction of State or local law enforcement)

18 U.S.C. 1512 (relating to tampering with a witness, victim, or an informant)

18 U.S.C. 1513 (relating to retailiating against a witness, victim, or an informant)

18 U.S.C. 1546 (relating to fraud and misuse of visas, permits, and other documents)

18 U.S.C. 1951 (relating to interference with commerce, robbery, or extortion)

18 U.S.C. 1952 (relating to to racketeering)

18 U.S.C. 1956 (relating to the laundering of monetary instruments)

18 U.S.C. 1957 (relating to engaging in monetary transactionsin property derived from specified unlawful
activity)

18 U.S.C. 1960 (relating to illegal money transmitters)

18 U.S.C. 2314 (relating to interstate transportation of stolen property)

18 U.S.C. 2315 (relating to

18 U.S.C. 2319A (relating to ybaytgiruzed fixation of and trafficking in sound recordings)

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29 U.S.C. 186 (dealing with restrictions payments and loans to labor organizations)

(F) any act which is indictable under the Immigration and Nationality Act, section 274 (relating to bringing in
and harboring certain aliens), section 277 (relating to aiding or assisting certain aliens to enter the United
StateS), or section 278 (relating to importation of alien for immoral purpose) if the act indictable under such
section of such Act was committd for the purpose of financial gain, or

18 U.S.C. 1346 (relating to bribery)and are based on the following facts and examples of these predicate acts
(but are not limited to as upon information and belief, numerous others will be identified in the
process of discovery):

Therefore, a recent decision Federal Court must take note of Is precedential decision that found News Corp and
Jobs negotiated Directly 2010-2011 and were found in 2013 by DOJ guilty of
Antitrust violations. So Campbell worked with News Corp directly
For example and spoke and dealt with Murdoch who is on the Email correspondence meetings that encompass
the anti-competitive Agreements Judge Koh already ruled several other companies besideNews Corp were guilty
of, and these companies admitted the unlawfulAgreements existed.

The Jury will find the News Corp privacy violations of Subclass CAre identical or close to identical to the types
of damages and harm and invasions of privacy sufferered by Subclass B also. Therefore Sandberg and her
associates will be found to be guilty of the same sort of offenses as Rebecca Brooks who will go on trial with
other News Corp employeesin September 2013 for criminal offenses. Therefore, this complaint
and Plaintiffs are in agreement that the Jury trial in this case will be delayed and in the interests of justice be
after the September 2013 News Corp Brooks trial in the UK where if crime is found for Brooks and NewsCorp,
then the SubClass A, B, C, and D this complaint and Motion for Class Certification filed hberin will
both want to be part of record and facts for Jury and Judge going forward less
being able to apply to Sandberg, Schmidt, Page, Murdoch, Campbell, Doerr,
Perkins, whose character and level of liability in the privacy violations will need
be judged to be honest mistake of busy executives with large Compensation packages will be applied by a Jury.
And criminal findingsIn the UK will be fair evidence to draw an analogous aspirsion of the
Google defendant and alternatively and jointly Google as part of Antitrust and Rico Noogle Association in fact
Enterprise or GooglesAiding and abetting the unlawful actions of one or more public companies
Or private including sponsorship of Markel Foundation between at least 2005-2013.

Therefore, an additional RICO and Antitrust conspiracy formed around existing commercial online advertising
and this conspiracy included: (1) agreements allowing AskJeeves Director Jeff Yang to purchase 30% of
MySpace, Inc. in February 2005 at below fair market value using his RedPoint fund where he is managing
Director; (2) agreements allowing Google, TimeWarner/AOL, News Corporation, AskJeeves, IAC,
and other defendants to collude to gain economic benefits by A) Defendants, ongoing, systematic and
fraudulent scheme to maximize financial gain Facilitated by the conduct of Google, and Intel,
Objective unlawful scheme was to obtain billions of dollars in proceeds and profits from i.
rigging the sales of competing internet assets at below fair market prices ii) benefitting from
profits generated from illegal phone hacking iii) benefitting and trading confidential
information received from the illegal phone hacking iv) covering up the illegal activity
using their media properties iv) extorting silence from victims and/or government
regulators including bribing police, UK Government ministers, United States Senators,
California State Senators and California State Congressmen and Congresswomen

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and United States Congressmen and Congress serving women, and several related and
affiliated lobby qualified law firms, and other agency intermediators, v) offering ad
credits and ad promotion in kind without disclosing such transactions to the public or
accounting for them in their SEC GAAP Accounting, and government ministers.
4. Without intervention, plaintiff will be further harmed. The intervention is
also necessary to raise additional matters, facts, and Claims while providing to the court,
supporting evidence. The claims were created from a behind the scenes series of
meetings and communications since late 2003 thru May 1, 2014 between : i)
Intermix/MySpace, Inc. ii) News Corp iii) Yahoo iv) Google v) MSN, vi) AskJeeves
vii) JP Morgan viii) Iac Corp ix) Time Warner, Inc.,x) Aol Inc. xi) Fox Interactive xii)i)
fabricating prior sale

of MySpace stock with backdated agreement in November 2004 and ii) delaying closing

of a competitive EUNI MySpace search engine auction for a new commercial search
engine agreement in the months leading up to News Corporation acquiring 100% of
eUniverse in September 2005; (3) agreements allowing Google to ensure its $4.4 Billion
dollar August 2005 secondary is completed by tying up the fast growing online
audience of MySpace, significantly growing its share of online search engine
advertising while shrinking share of main rival #2 Yahoo; (4) agreements allowing
News Corporation to purchase MySpace.com at below fair market value, growing its
market valuation and generating billions in incremental profits and a massive online
audience to seed new online assets for years to come, while preventing a competitive
auction with main rival Viacom. (5) Violating the privacy of thousands of Citizens of
the United States and the United Kingdom for commercial benefit. (6) Google, Ask
Jeeves, Inc. IAC, Intel, and News Corporation fraudulently concealed the agreements and failed to disclose
them in their SEC filings, violating security law and fiduciary
obligations Boards and executives of those companies had between 2005-2010.

The intended and actual effect of these agreements was to fix and suppress
Competition. Defendants conspiracy and agreements restrained trade and are per se
Unlawful under Federal law. Plaintiffs seek injunctive relief and damages.shows an additional member of the no
poach illegal antitrust agreements was News Corporation scheme co-leader to fix and
suppress the compensation of their employees. Without the knowledge or consent of
their employees, Defendants senior executives entered into an interconnected web of
express agreements to eliminate competition among them for skilled labor. This
conspiracy included: (1) agreements not to recruit each others employees; (2)
agreements to notify each other when making an offer to anothers employee; and (3)
agreements that, when offering a position to another companys employee, neither company would counteroffer
above the initial offer.

II. JURISDICTION AND VENUE

This Court has jurisdiction over the subject matter of this action pursuant to
18 U.S.C. 1961, 1962, and 1964, 28 U.S.C. 1331, 1332, 1367, 1337, and
jurisdiction pursuant to Sections 4 and 16 of the Clayton Act (15 U.S.C. 15 and 26).

This Court has personal jurisdiction over the Defendants pursuant to 18 U.S.C.

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1965(b) and (d). This Court has supplemental jurisdiction over the state law claims
pursuant to 28 U.S.C. 1367.Venue is proper in this district pursuant to 18 U.S.C. 1965(a), 28 U.S.C.1391(b),
12 of the Clayton Act, 15 U.S.C. 22, and 28 U.S.C. 1391(b), (c), and (d)

A. AOL, AskJeeves, IAC participated in the anti-solicitation agreements.

Documents disclosed by Bill Campbell in 2013 and and other defendants in the Hitech Class Action Case
5:1102509 prove that both Time Warner/AOL, Ask Jeeves Inc., and IAC Corporation participated in the anti-
soliciation agreements. Specifically:Page 3 of Document 428-10, disclosed publicly filed May 17, 2013
is a version distributed to Bill Campbell by Google sometime after January 7, 2008 and
is titled: Special Agreement Hiring Policy Protocol for Restricted Hiring, Do
Not Cold Call, and Sensitive Companies. Below the title is a bold line and under
The bold line the document further states,

Due to our partnerships, the following companies (and by association, their subsidiaries listed in
Appendix B) fall under the Sensitive companies list:

Parent Companies: lists AOL, Inc. and Ask.comPage 9-10 of Document 428-10, disclosed
publicly filed May 17, 2013 has a list titled: Appendix B and in such section both AOL,
Inc. and Ask.com are listed. Since AOL was owned by Time Warner as of 2008 and Ask.com
is owned by IAC, both have a designation of N/A under Parent Company.In addition, AOL is
listed as the Parent Company in Appendix B for another Company it owns, Advertising.com.

i)July 17, 2005 at 4:13AM, Lang emails Sheehan, Subject: 'Purchase Agreement' and states,
"On the issues, let's close on the remaining ones in a fair and reasonable way-- so we can build out relationship.
1. We are willing to pay the liquidation preference upon sale
2. from the beginning we've appreciatred your commitment to selling your shares. This is thereason why
Peter gave on the upside protection in the event of a Fox counter - to ask for profit if we hose is a stretch
Please appreciate how our Management may feel in this scenario, and we believe the break up is really not
relevant to this issue.
3. We feel like we have given indemnification on the shares and the purchase agreement itself to do so on any
issue we have had no involvement in whatsoever (i.e. Greenspan) - that seems like too much.

Andy, I know we are very eager to get this done. Let do it so both sides can feel good and move forward aon
our longer-term relationship."

New Evidence includes, Resignation and Report on Les Hintons involvement in CEOs confessed Coverup .
Hinton reported up to CEO from 2008-2011, the senior executive was President of Dow Jones where he oversaw
and orchestrated the Angwin Stealing MySpace scheme to coverup the legal liabilities and true facts related to
the value of the September 2005 acquisition of MySpace and to defame, harass, and violate
Section 1533 of Dodd Frank against Petitioner.

2009 COMPUTER INTRUSION:

Retaliatory Attack of the RICO Defendant Law Firms and Partners
199. Defendants leverage their relationship with acquiror to create defamatory and
fabricated lies thru publication Petitioner first reads in late 2010 which Les Hinton instructed News Corp
employee Angwin to publish in late 2009 book, Stealing MySpace which:
Petitioner is also aware of the relationship and status of Google in 2003. This
information is critical and without such information, Petitioner and Class could not make Significant and
valuable new Anti-Trust Claims including a Clayton Act Violation of Section 8 for Interlocking

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Directors.Petitioner is main fact witness in Federal Class Action Security Fraud case Brown v. Brewer, and in
2009, NewsCo uses Hinton in series of schemes to obstruct justice and coverup the legal Facts that would give
rise to NewsCo disclosing it had billions more in legal liability in its 10Qs and 10KS. This disclosure if made
would have lowered NewsCo stock
price and earnings and lowered the salary and payment and bonuses for Officers that operate NewsCo.Petitioner
brings individual claims of breach of contract and breach of the covenant of good faith with Defendants.
Petitioner individually pleads an unjust enrichment claim against all Defendants, and a claim of contractual
tortious interference.

It was part of the RICO Defendants scheme to use the United States Postal
Service to deliver fraudulent audit reports for News Corporation and SEC 10Q and 10K public
filings to shareholders and to the SEC and public in 2005, 2006, 2007, 2008, 2009, 2010, 2011,
and 2012 And omit and conceal the errors contained in violation of 18 U.S.C. 1341.

In May 2009 by filing a Joint Motion after RGRD and Hogan Lovell is
Aware of Hogan Lovell agreement to depose and receive evidence from Petitioner for
Federal Security fraud Class Action Brown v. Brewer case.
Defendants induced RGRD and Randall Baron to sign May 2009

Joint Stipulation to eliminate role, evidence and testimony of Petitioner, days before Petitioner

was set to fulfill an agreement to be deposed and provide such information to the Defendants as

part of Discovery.RGRD was reckless because at the time they struck agreement to remove
Petitioner on or around May 1, 2009,RGRD could not predict if in future the lay witness would

be needed. It does not appear that RGRD ever read the Julia Anwin Stealing MySpace book before making a
terminal decision to bet the Classs legal asset future on Acquirors version of the story uncontested. It appears
the book was first published inApril 2009. So RGRD expect the Court to believe that somehow they knew a
controversial set of facts had been produced by Acquirors employee and RGRD both read it cover to cover,
checked the facts against discovery but did not discuss these with the petitioner the previous sole historical
witness they used, but determined the book was so credible it could be used as a one stop fact replacement with
the largest common stockholder, Chairman and CEO who was volunteering to put the proper facts into the
record and was scheduled to be deposed imminently.

MySpace Search was omitted from consideration by Classs damage experts. RGRD had poisoned the Classs
legal asset greatly diluting the upside. RGRD thru its actions, robs the Class of receiving fair shake in the
Federal Judiciarysystem, specifically the right of an equitable discovery process. The Class gets neither: i) A
Class Counsel Fiduciary acting in good faith during discovery, or ii) its Rule 701 lay witness adding new
evidence or decoding discovery for RGRD in similar manner before RGRD eliminated Petitioner first as source
of evidence, later from Settlement mediation and later from using a scheme to ban Petitioner as member of Class
after previously confirming to Petitioner he was a member of the Class in 2009. After RGRD realizes they could
have used Rule 701 fact witness who is petitioner, instead of righting their wrong, RGRD continues down path
of further transgressions.

Additional act of fraudulent concealment is part of scheme by defendants tied

to 2009 Angwin published book that uses fabricated documents to support critical contentions.
altering, destroying, mutilating, or concealing a document with the intent to obstruct justice in violation of 18
U.S.C. 1512(c)(1);
Plan of RICO Defendant Edell, News Corp, Hinton, Angwin, Hogan Lovell launched in 2009 as Edell works
with News Corporations Les Hinton
and Julia Angwin to create and promote publication Stealing MySpace. Such scheme benefits and is used by
Defendants to corrupt, damage, and diminish the Federal Class Action Brown v. Brewer Damage Experts and
claims. Edell conspires and working with News Corp employee Julia Angwin and other Defendants using

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inaccurate defamatory false statements in highly
promoted Book published in April 2009.Petitioner a fact witness with testimony that was adverse to Defendants
was excluded and obstructed from entering evidence into the Brown v. Brewer case, immediately before
Defendants plugged in Angwins false facts and testimony while using Stealing MySpace as an uncontested
source of facts to corrupt the Classs case And damage/expert reports.

RICO Defendants destroyed the following evidence and have kept it from being submitted into Federal Court
including blocking Petitioner testimony fromappearing which damages Petitioner and violates Section
1512(d) which criminalizes the actions of

[w]hoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person
from appearing before an official proceeding, law enforcement officer, or United States judge.

Angwin fraudulently conceals evidence of Edells true work
experience and back ground and his violation of SEC rules in 2003 and 2004. Rico Defendants
conceal their knowledge of this scheme thru the March 19, 2012 Approval of the Federal Brown

Brewer settlement that Petitioner and 4 other Class members attempted to object to or
Intervene To remove RGRD and Jim Brown from representing the Federal Class and agreeing to

An Inadequate consideration for the settlement and failure to assert more valuable claims and evidence into the
Court prior to approving settlement.
Angwin, Hinton, News Corporation, Hogan Lovell, RGRD, and RICO Defendants violate in violation of 18
U.S.C. 1512(c)(1) and 18 U.S.C. 1519.by hiding evidence of Edells two resignations on his bio that were
really his last two jobs instead of submitting an accurate bio, defendants stretched the job of Edell that was
actually 3 jobs prior, and increased this 3rd job by another 2 years, to the year 2002 (from 2000). Edell
both omits to accomplish his end goal of making detection and disclosure of his true track
record and financial history as difficult as possible.
Edell in the section where individuals are supposed to declare if any
company Went bankrupt within last five years (more recently the rule changed to 10 years)
names a Company called the failures of the two most recent corporations where Edell was CEO,
resigned in both cases, and one which he lists as ShoWorks appear to be less then positive end
results. Edell admits in his D&O Questionaire on October 2, 2005 that.
RICO Defendants , Angwin, News Corporation, Hinton, Murdoch and
Orrick Conceal the false revised BIO of Edell filed in July 2004 SEC filings:

"Mr. Edell was the Chief Executive Officer of Showorks Entertainment Group. Inc., a Delaware corporation that
later changed its name to Media Technology Source of Delaware, Inc. Within two years of the time that Mr.
Edell resigned from that company, it filed a petition for relief under the United States Bankruptcy Code."

Based on information and belief, Defendants scheme entailed Creating a
fictitious Glowing work experience for Edell using a fabricated Resume in 2003 that
News Corporation, Hinton, Angwin, and Murdoch determined would be used to harm Petitioner
In a book thatwas published called Stealing MySpace and was sent in US Mail to bookstores
Across the United States and overseas with the fabricated false facts related to Edells true work
Experience and his SEC violations in 2003, 2004, 2005 in violation of Rule 401, this violated section 18 U.S.C.
1341.Petitioner also is victim of Defendants illegal tampering with a witness
in violation of U.S.C. 1512(b)(3) and of 1512b(2). RGRD Law, News Corporation, Les Hinton, Julia
Angwin, News Corporation, Orrick Herrick, Rupert Murdoch, Jim Brown, and Hogan Lovell violated and
tampered with Rule 702 expert and fact witness by misleading the Federal Court in May 2009 thru the Joint
Motion to agree to not use Greenspan testimony or

Evidence in Federal Court even though Rico defendants knew this was tampering with a witness

and obstruction of justice and was removing and destroying evidence that would have inurred to
the benefit of Petitioner claims and Federal Shareholder claims.

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Therefore NewsCorp inherits fraudulently concealed Dodd Frank, Sarbane Oxley, and liability freely Admits in
the following email not submitted by Class Counsel RGRD into the record as an Anti-retaliatory attack on
Petitioner in May 2009.

Defendants have omitted key discovery previously that caused key evidence and
facts to be fraudulently concealed. The fraudulent concealment includes affirmative acts like the
planning to coordinate planting the false story via News Corp employee Angwin who omits
many key facts to protect News Corp & Defendants. Therefore, tolling would not take place until the fraudulent
concealment is fully disclosed. 7th Circuit Baker v. F&F Investment, 420 F.2d
1191 (7th Cir. 1970), cert. den., 400 U.S. 821 (1970) (self-concealing conspiracy demonstrates fraudulent
concealment)

2009- a Predicate Act is the publishing of Hintons false facts
into U.S., Europe and around the world thru Stealing MySpace
employee of News Corp published and generated revenue and income for herself
in addition to the salary received by News Corporation yearly thru her employment at that company between
2007-2012.Angwins book summarizes 10% shareholder/Viacom bid by omitting any mention of Viacom and
misleadingstocholders, he couldnt muster enough support, and a few days later, the News Corp., deal was
approved.And Once again Greenspan took his fight for Intermix to court.
New Evidence includes, Resignation and Report on Les Hintons involvement in
CEOs confessed Coverup . Hinton reported up to CEO from 2008-2011, the senior executive
was President of Dow Jones where he oversaw and orchestrated the Angwin Stealing MySpace scheme to
coverup the legal liabilities and true facts related to the value of the September 2005 acquisition of MySpace
and to defame, harass, and violate Section 1533 of Dodd Frank against Petitioner.
New Evidence in May 2012 of Fabrication a regular occurrence,

During October 2010, RGRD was again disloyal by working with defendants to i) keep MySpace Founder
fromappearing at settlement meeting ii) Then facilitating joint motion to ban containing facts RGRD knew to be
false.In December 2010, RGRD was again disloyal by changing the Class Certification to reduce the # of
eligibleshares. Another sign of class counsel RGRDs lack of adequate representation is display of a generally
lack of knowledge about background of Intermix including the # of shares which were part of original certified
class. RGRD could not identify number of shareholders or shares that makeup the Federal Class. RGRD
concealed the fact that they knew once they altered the Class definition 50% of previous stated 35 million Class
shares were instantly eliminated. RGRD expects the Court to forget that RGRD in 2009 argued in front of court
to preserve the same definition from being changed by defendants motion.

Based upon information and belief, defendants bribed and extorted Class
Counsel RGRD to destroy the Class Action Brown v. Brewer legal asset that
was the property of the shareholders. RGRD agreed to a sham $45 million dollar settlement in 2011
while at the same time committing fraud against the shareholders and breached

their fiduciary duty.After the Federal Class Action survived the Demurrer stage in

a 2008 Victory for the Plaintiff shareholders, and the uncorking of evidence from

discovery in summer of 2009 and depositions and summary judgement, News

Corporation knew it had significant liability with its MySpace.com asset that had

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already generated billions in profits for the $50 Billion dollar market valued media
company. Most importantly, News Corporation had been able to use the audience

and traffic from MySpace.com to populate multiple new internet assets it owned 100%

or major stakes in such as i.Hulo.com and IGN gaming network.Digital Ad Network Companies launched,
mobile new entities launched
v.most or all of the Audience that exists for 100% of its current

online websites across globe News Corp determined to effectively upload the data of

most or all of the MySpace.com user base registered to News Corp controlled

or affiliated Ad Networks that then interacted with Google, Inc., FaceBook, Inc.,

WashingtonPost, sharing the data that MySpace.com contributed in a one time exchange of data for a long term
revenue share that News Corp was able to
Spread and recognize thru other subsidiaries relationships with the same RICO

Defendants News Corporation further recognized that FaceBook, Inc. could

exist without the legal liability that threatened to rescind or cause siginificant

legal damages to force sale of Myspace.com.Such facts included the Violation and evidence that Petitioner sent
to Mr. Randall Baron and RGRD and other defendants in 2010 and 2011 which RGRD refused and
DefendantJim Brown refused to submit into Federal Court prior to the Settlement Effort began in

September 2010. This was a breach of fiduciary duty owed to Petitioner and also a breach

Of agreement from a 2006 agreement made between Brown, RGRD, and Petitioner.

Petitioner its uncontested recruited Brown for Federal Brown v. Brewer in

2006.However, RGRDs 100% position to date in Federal Court during period of

2010-2012 is opposite of fact in part (i).

Additionally RGRD and the $45 Million dollar settlement in such case

Being fair and equitable relies on RGRD and Barons validity and statements taken

By Judge King as true. Yet RGRD has fraudulently concealed the evidence by destroying all

copies and versions of the signed 2007 Common Interest Agreement that RGRD owes a duty

To that is ehanced above and beyond the scope of the fiduciary duty that was owed to

Petitioner when RGRD took the prior actions that are clearly breaches of fiduciary duty

Not withstanding the RICO predicate violations that Baron is guilty of , lap dog of a corrupt organization that
wanted $15 million in contingency fee and thus guilty of breach of agreement,

plus fiduciary duty to Petitioner thru violating RICO predicate acts to underwrite the damages

and harassment to Petitioner since 2009 thru present . and its statements consist
Of claims that no agreement was ever entered into with Petitioner despite clear evidence

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RGRD has not disputed. Above Defendants violated further 18 U.S.C. 1512 (relating to

tampering with a witness, victim, or an informant) 18 U.S.C. 1513 (relating to retaliating
against a witness,victim, or an informant) and 18 U.S.C. 1519 (relating to destruction,

alteration, or falsification of records in Federal investigation and bankruptcy) by omitting
and destroying the evidence they possessed at the time the above actions were taken

that would have provided new facts and information and claims not raised or in State

proceeding and that would have the effect of voiding the defendants motion.

At end of 2010 RGRD launches a new scheme to create an economic kick back

for defendant. RGRD then argues June 2009 motion that the changed wording was not a

mistake. That RGRD gives this economic asset to defendants for no disclosed consideration and

RICO Defendants file false Summary Judgement facts to obstruct justice

i.Summary Judgement Fact #1 is fals and Defendants violate Document Destruction Under 1519c Section,

Aguilar thus makes clear that nexus requires more than mere knowledge of a pending proceeding.187 262 See
id. (citing Lewy v. Remington Arms Co., 836 F.2d 1104, 1112 (8th Cir. 1988)
([A] corporation cannot blindly destroy documents and expect to be shielded by a seemingly innocuous
document retention policy.)). these newer statutes as well. In many respects, 1512(c)(2) appears destined to
become the new Omnibus Clause.By obstructing Petitioner, following facts have been obstructed from Federal
Court thru clear breach of fiduciary duty of Class Counsel and violation of
Section Violation of Section 1519.

Plaintiff was directly injured by the RICO Defendants acts of racketeering activity.

The June 17, 2010 Federal Summary Judgement Ruling related To certain defendants and facts related to the
September 30, 2005 Acquisition and Security Class Action breaches of fiduciary duty and Proxy Fraud claims.
Case 2:0603731 Judge George King. Central district Los Angeles.

NewsCorp & creator and/or aider and abettor of causing to be
Published on or about April 2005, Stealing MySpace,
Using the resources and John Doe 1-10 of the Dow Jones Company
Purchased in 2007, and other assets where Hinton lived and worked
During and thru the time he was employed by Dow Jones after
Resigning as CEO of NI.

Les Hinton was called to testify before the British House of Commons Culture
Committee regarding the alleged hacking. A July 10, 2011 article by The Guardian regardingthe incident stated:

Hinton, who then ran NI, which is owned by News Corp, spoke to the Commons
culture committee looking into the Goodman affair on 6 March 2007. He was asked whether the News of the
World had "carried out a full rigorous internal inquiry" into phone hacking and whether he was
"absolutelyconvinced" the practice was limited to a single reporter.

Describing the News International Investigation into the incident The GuardianReported:

The NI investigation began after Clive Goodman, the News of the World's former

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royal editor, and Glenn Mulcaire, its 100,000-a-year private investigator, were jailed for hacking into phones
belonging to aides of Prince William and Harry. It was conducted with the help of lawyers Harbottle & Lewis,
and was led by NTs director of legal affairs, Jon Chapman, who has since left the company.Lawrence Abramson,
managing partner of Harbottle & Lewis, wrote to Chapman to say that they had not found anything irregular in
their examination of the internal emails.

The letter, which was presented to the select committee, concluded:

"We did not find anything in those emails which appeared to us to be reasonable evidence that Clive
Goodman's illegal actions were known about and supported by both or either of Andy Coulson, the editor, and
Neil Wallis, the deputy editor, and/or that Ian Edmondson, the news editor, and others were carrying out similar
illegal procedures."
News International performed the investigation prior to Mr. Hinton's providing
testimony to the committee. Additionally, in contrast to Mr. Hinton's testimony and NewsInternational's
representations to the committee, The Guardian alleges that the internal report conducted in 2007 found evidence
that the phone hacking was more widespread than the admitted by the Company. According to The Guardian,
Mr. Hinton was among five executives who had access to the report. Mr. Hinton's misrepresentations to the
Culture Committee allowed the scandal to continue. The Company was later chastised for its handling of
thescandal by the British Government which in a February 9, 2010 report on the incident, that stated that Clive
Goodman was a scapegoat and the Company failed to carry out a full investigation. In 2006, the police focused
their investigations on two men. Both went to jail.But the News of the World and News International failed to
get to the bottom of repeated wrongdoing that occurred without conscience or legitimate purpose. As a result, the
News of the World. News International, and News Corp. wrongly maintained that these issues were confined to
one reporter.

It was part of the RICO Defendants scheme to interfere with Plaintiffs livelihood by disseminating defamatory
statements about Plaintiff to the public through various media outlets in retaliation for providing truthful
information to the SEC, DOJ, FTC, andFederal and State court relating to the RICO Defendants scheme, in
violation of 18 U.S.C. 1513(e).

It was part of the RICO Defendants scheme to conspire to interfere with Plaintiffs livelihood by disseminating
defamatory statements about Plaintiff to the public through various media outlets in retaliation for providing
truthful information to the SEC, DOJ, FTC, andFederal and State court relating to the RICO Defendants
scheme, in violation of 18 U.S.C. 1513(e) and 1513(f), including:

In September 2010, by RGRD, Baron, Hogan Lovell, Stone, News Corporation and other RICO Defendants
filing a Joing Motion to ban fact witness and Petitioner from the Federal Class to delay and harass Petitioner
from appearing before Federal Judge. Orrick knew the motion to ban the petitioner could not be true unless

Orrick could continue to suppress new evidence and discovery from entering the Federal Brown V. Brewer
ongoing case. Other Evidence destroyed by Orrick included their ties and business

with MySpace Parent Company executive Chris DeWolfe. Orrick and DeWolfe work together in 2004 and 2005
to document a fabricated sale of equity of MySpace at rock bottom prices for DeWolfe.

RGRD, Defendant, HHLAW and News Corp are also guilty of anti-

Retaliatory violations against petitioner which damaged petitioner personally and the Class thru

damaging and lessening value of the legal asset when compared to a similar legal asset where defendants had
already fully disposed of and disclosed similar facts such as a whistleblower notification.

In 2010, Baron and News Corporation and Hogan & Lovell, and Stone, and RGRD
and Orrick violated 18 U.S.C. 1341 (relating to mail fraud) by sending notice of the Joint
Motion to Brief the Motion to Ban Brad Greenspan for purported res judicata they intended to file in Federal
Court via email to Petitioners then lawyer Mr. Lawrence.

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Above Defendants violated further 18 U.S.C. 1512 (relating to
tampering with a witness, victim, or an informant) 18 U.S.C. 1513 (relating to retaliating
against a witness,victim, or an informant) and 18 U.S.C. 1519 (relating to destruction,
alteration, or falsification of records in Federal investigation and bankruptcy) by omitting
and destroying the evidence they possessed at the time the above actions were taken
that would have provided new facts and information and claims not raised or in State
proceeding and that would have the effect of voiding the defendants motion.
RGRD, Baron, Wissbroecker violated their fiduciary duty to Petitioner as well as aiding and abetting above
violations of other Defendants.

UK Leveson Report and Testimony of News Corporation employees

UK Members of Parliament 11th edition report on phone hacking, News International and ruling CEO Murdoch
Unfit based on his and Les Hinton testimony over server years

In 2010, Defendants further violated Federal Law obstructing Justice, initiating
plan to induce Randall Baron into a below fair market settlement after Class won favorable
Summary Judgement decision in June 2010.

In 2011 Defendants lied to Federal Court and induced Lead Representative and
Randall Barons RGRD Law firm to also file false statements and conceal evidence from Court.

Such acts harmed Petitioner and Class of Federal Shareholders. Defendants efforts and scheme to

coverup Search was part of the same effort to Coverup and fraudulently conceal the June 2005

Whistleblower Notification, the Fabricated Director Edell, the Fabricated MySpace Purchase

Agreement released by issuer in November 2004 MySpace, and the violation of Clayon Act for

having Interlocking Directors on the Issuer and MySpace Board conflicted by serving as
Directors of competitor Ask Jeeves. The evidence further triangulates that there was collusion
that effectively precluded the public issuer from securing a timely new commercial search
partner. RICO Defendants destroy the following evidence and keeps it from being submitted into Federal Court
including blocking Petitioner testimony fromappearing which damages Petitioner and violates Section
1512(d) RGRD knew petitioner was valuable Federal 701 lay witness for the Class in

April 2009, October 2010, and May 2011 as RGRD filed pleadings which aided and abetted defendants efforts
to cover up & obstruct new evidence from entering this case. RGRD was notified by petitioner of new evidence
on multiple occasions such as in July 2010 regarding: i) Heckmans admissions in Angwin book about the
Searchauction timing and economics of January
2006 Microsoft bid ii) value of missing MySpace Search. Rule 701 allows for the admission of

lay testimony, where three requirements are met. The Eleventh Circuit recently considered the

application of these requirements in a case in which an agent was permitted to provide lay

testimony concerning code words concerning international terrorism activities. In United States

v. Jayyousi, F.3d (11th Cir. Sept. 19, 2011), the majority concluded testimony was admissible

under FRE 701. 23RGRD and News Corporation starting in May 2009 obstructed

justice by eliminating Petitioner as a fact witness and instead put forth false

information to dilute and suppress new claims and damages that had become

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available.lying publicly to attempt to fraudulently conceal facts. First
Ross Levinsohn lies in 2011 in violation of Section 1341as his lie is published via wire service and printed in
newspapers that are sold and transported and carried across state lines in the United States.
i.Newsco admitted it had violated AS 340 450 and its CEO among
Other Officers had filed false 10Q Officer Certificates on November 8, 2011 (Exhibit #4) and possibly Other
financial statements.
A number of the anti-retaliatory attacks Petitioner seeks relief from are caused by
breaches of fiduciary duty by certain of defendants, namely RGRD which serves as Class Counsel in the State
and Federal Class Actions related to the September 2005 acquisition of Myspaces
Parent Company, eUniverse (1999-2004) aka Intermix (after July 2004). The definitionof Juduciary for purposes
of this complaint and evaluation Of the many anti-retaliatory attacks of Defendants include:
2012

In 2012, as Petitioner and other shareholders sought to put this new

evidence into the record for Brown v. Brewer, the intervenors and objectors

were attacked thru having their email hacked, defamation, and other fraudulent

acts by RGRD and News Corporation.

Petitioner as whistleblower and fact witness has resisted the criminal acts including anti-retaliatory
attacks by defendants and has now found new evidence put forth herein that shows RGRD and
defendants obstructed justice and fraudulently concealed antitrust claims, additional security fraud, RICO
claims, and violations of Federal Wiretap statue.

In 2012 after shareholders including Petitioner discovered yet newevidence of obstruction of justice,
RGRD aided defendants in falsifying facts to push thru the sham settlement against 4 objecting
shareholders and intervenors. In 2012, Petitioner is harassed and the Class is damaged
by Defendants including News Corporation, HHLAW, Ross Levinsohn, and Rupert Murdoch

inducing RGRD and Baron to ignore new evidence raised by Shareholders and members

of the Class like the CA Doctor who sent in an objection to the Federal Judge in Los

Angeles George King.Thru violation of 1341 andThru violation of 1513(e) and (f)

In 2005, 2006, 2007, 2008, 2009, 2010, 2011, and 2012, It was part of the RICO

Defendants scheme to alter, destroy and falsify business records to impede the

Petitioners discovery of the errors and omissions contained in its Proxy Reports in

2005, and the RICO Defendants illegal concealment thereof, in violation of 18 U.S.C. 1519.Defendants
benefitted from fraudulently concealing key State discovery

email evidence and the JP Morgan Valuation Report showing a $1.4 Billion Valuation for MySpace was known
as of July 16, 2005 or earlier. evidence of bribery, and email discovery in the State Class Action and Petitioners
action related to News Corps acquisition of
the MySpace Parent company in September 2005.iii.Additionally the acts were done to obstruct the availability
of these records in any future proceedings brought by the DOJ, SEC, FTC, or Petitioner or Federal or State Class
Member or other regulators against RICO Defendants and MF , in violation of 18 U.S.C.
1512(c)(1).Defendants also took actions to impede and derail the Federal Class Action in Brown v. Brewer
where Petitioner was one of Class Members, violating Section 1519. Section 1519 does not require that the
defendant act corruptly, but merely that the defendant knowingly destroy documents with intent to hamper a
federal investigation.Moreover, 1519
requires only that the defendant engage in document destruction in. . . contemplation of an official proceeding.

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Defendants destroyed evidence of the MySpace Search value and the dealbetween defendants to reap the
benefit of a deal with Google by delaying the opportunity until after the sale on September 30, 2005. Defendant
RGRD also destroyed evidence brought to them by Petitioner showing violations by defendants of the Clayton
Act Section Eight for violationsof interlocking Directors.Ceo and Chairman of News Corporation admits this
Coverup occurred and CEO admits in April 2012 that the defective internal controls of News Corp allowed such
Coverup.
RICO Defendants admit violation of Section 1519 for destroying the evidence
of as CEO in April 12 admitted Coverup he and Petitioner were Victim to was several
layers down inside News Corporation.
An 18 U.S.C. 2511 violation includes a claim of damages suffered by

Victim. If any of Class members can prove or show the Court damage has been

received by a Class Member from an action caused or aided and abetted by RGRDLaw
and/or Jim Brown then inadequate representation is proven.

Violations of law by Defendants and RGRDLaw ofDodd Frank
The court erred in overlooking allegations in Interveners pleadings

When making ruling March 19, 2012. The Court first failed to consider the Valid
Federal New Claims under Dodd Frank claims being put into Court for disposition in the

January 30, 2012 Motion of Intervention.Nelson in his Intervention Motion clearly requests if Judge provides no
relief for Summary Judgement then Nelson requests right to file claims under Rico & Dodd Frank for Anti-
Retaliatory Damages and Relief that victims have De Novo right to

The Court never responded or ruled that Mr. Nelson nor Mr. Greenspan nor

Dr. Bordow is not eligable to receive or file claims for relief under Dodd Frank Anti-

Retaliatory statues a Jury Hearing in Federal Court for disposition of such claims and for relief.Additional
overlooked allegation by the Court was the claim and evidence

in Mr. Nelsons pro se Judicial Notice Motion on March 5, 2012. Providing evidence of a 2nd new Dodd Frank
Anti-Retaliatory Act which included report of new evidence (against two
other Class member Bordow and Greenspan) and notice of claim and request for Relief
from court.Breach of Duty of Candor and inadequate representation by RGRDLaw was an additional allegation
overlooked by Court.

Prior to the March 19, 2012 order approving settlement, the Court overlooked the evidence from Nelson,
Bordow, and Greenspan U.S.C. 2511(1)(d) (prohibiting the disclosure or use of the contents of an electronic
communication obtained through .. interception . . . in violation of this subsection.).
The court had a fiduciary duty to absentee Class to protect the Shareholders from becoming victim of further
schemes, frauds, or losses caused by breaches of fiduciary duty or violations of the duty of candor. allegation

FIRST CLAIM FOR RELIEF

(Violation Of The Stored Communications Act, 18 U.S.C. 2701 and 2707- All Defendants)
Plaintiff repeats and realleges each and ever allegation contained herein

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The Stored Communications Act (the SCA) broadly defines an electronic
communication as any transfer of signs, signals, writing, images, sounds, data, or

intelligence of any nature transmitted in whole or in part by a wire, radio,

electromagnetic, phottoelectronic or photooptical system that affects interstate or

foreign commerce 18 U.S.C. 2711(1); 18 U.S.C. 2510(12).

The SCA broadly defines a wire communication as any aural transfer made in

whole or in part through the use of facilities for the transmission of communications

by the aid of wire, cable, or other like connection between the point of origin and the

point of reception (including the use of such connection in a switching station)

furnished or operated by any person engaged in providing or operating such

facilities for the transmission of interstate or foreign communications or

communications affecting interstate or foreign commerce 18 U.S.C 2711(1); 18

U.S.C. 2510(1).Pursuant to the SCA, electronic storage means (a) temporary, intermediate

storage of a wire or electronic communication incidental to the electronic

transmission thereof, and (b) any storage of such communication by an electronic

communication service for purposes of backup protection of such communication.

178 U.S.C 2711(1); 18 U.S.C 2510(17)(A)(B). This type of electronic storage includes
communications in intermediate electronic storage that have not yet been delivered

to their recipient.Congress enacted the SCA to prevent unauthorized persons deliberately gaining

access to, and sometimes tampering with, electronic or wire communications that

are not intended to be available to the public. Senate Report No. 99-541, S. REP. 99-

541, 35, 1986 U.S.C.C.A.N. 355, 3589.

45. As such, the SCA mandates, among other thing, that it is unlawful for a person to

obtain access without authorization to stored communications, including communications sent to and
temporarily stored on a cellular telephones voice-mail system. 18 U.S.C. 2701(a).

SUB-CLASS A: EUNICE & SIMILAR SITUATED;Est 5000 victims UK&US
Defendants violated 18 U.S.C. 2701 (a)(1), in that they accessed a facility

through which an electronic communication service is provided. (18 U.S.C.

2701(a)) by intentionally accessing Plaintiffs voicemails without authorization and
obtaining and/or altering authorized access to a wire or electronic communication while
in electronic storage by collecting and accessing temporarily stored voicemails or
those maintained for purposes of backup protection. This occurred while Plaintiff or

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Plaintiffs relatives and/or Spouse visited and traveled in or through Los Angeles in

2004 and 2005 Defendants had actual knowledge of, participated in, directed

and/or approved of, and benefitted from, this practice. Additionally, Defendants violated 18 U.S.C. 2701(a)(2)
because they
intentionally exceeded or had no authorization to access Plaintiffs communications

and obtained, altered, or prevented authorized access to a wire or electronic

communication while in electronic storage by interfering with Plaintiffs

temporarily stored voicemails, as disclosed hereinabove. Defendants had actual

knowledge of, participated in, directed and/or approved of, and benefitted from, this

practice.As a result of Defendants conduct described herein, and their violation of 2701,
Plaintiff has suffered injuries and seeks an award of the maximum staturoty actual
damages, including profits made by Defendants, plus reasonable attorneys fees and
costs pursuant to 18 U.S.C. 2707.
SECOND CLAIM FOR RELIEF

(Violation of Wiretap Act, 18 U.S.C. 2510, 2511 & 2520 All Defendants)

49. Plaintiff repeats and realleges each and every allegation contained herein
18 U.S.C. 2511 provides, in relevant part, that
any person who intentionally discloses, or endeavors to disclose, to any other
person the contents of any wire, oral, or electronic communication, knowing or
having reason to know that the information was obtained through the interception

of a wire, oral, or electronic communication in violation of this subsection;
The Wiretap Act generally prohibits the interception of wire,oral,or electronic
communications. 18 U.S.C. 2511(1)

The Wiretap Act provides a private right of action against any person who
intentionally intercepts, endeavors to intercept, or procures any other person to
intercept or endeavor to intercept, any wire, oral, or electronic communication,
be subject to [civil liability]. See 18 U.S.C. 2511(1) (West Supp. 1999) (emphasis

added)18 U.S.C. 2511(1)(a), or who intentionally uses, or endeavors to use, the

contents of any wire, oral, or electronic communication,knowing or having reason to
know that the information was obtained through the interception of a wire, oral, or

electronic communication in violation of [the Wiretap Act.] 2511(1)(c) (intentionally

discloses, or endeavors to disclose, to any other person the contents).
The statue prohibits interceptions of electronic communications and defines

intercept as the aural or other acquisition of the content s of any wire, electronic,

or oral communication through the use of any electronic, mechanical, or other

device. 2510(4). The contents of a communication, in turn, are defined in the

statues as any information concerning the substance, purport, or meaning of that

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communication. 2510 (8). Any transfer of signs, signals, writing, images, sounds,

data, or intelligence of any nature transmitted in whole or in part by a wire, radio,

electromagnetic, photoelectronic or photooptical system that affects interstate or

foreign commerce, with certain exceptions, qualifies as an electronic

communication. 2510(12). Content includes information the user intended to

communicate, such as the words spoken during a phone call that are preserved in

voice-mail messages, which were wrongfully hacked and intercepted.

SUB-CLASS A: UK & EUNICE Defendants intercepted wire, oral or electronic

communications and used or disclosed their contents, by contemporaneously

hacking into Plaintiffs cellular telephone system. Defendants captured and obtained

voice-mail messages intended for Plaintiff before Plaintiff could access them.

Defendants listened to these messages, copied their contents and/or disseminated

them in violation of the Wiretap Act. This occurred while Plaintiff or Plaintiffs

relatives and/or Spouse visited and traveled in or through Los Angeles in 2004 and

2005 Defendants had actual knowledge of, participated in, directed and/or

approved of, and benefitted from, this practice. As a direct result of Defendants actions as alleged here, Plaintiff
suffered irreparable harm in his personal and professional life and is entitled to the greater
of actual damages and any profits made by Defendants due to their violations of 18

U.S.C. 2520 and 2511 or statutory damages, pursuant to 18 U.S.C. 2520.As a result of Defendants actions as
alleged here, Plaintiff is also entitled to punitive damages, as well as reasonable attorneys fees and costs,
pursuant to 18 U.S.C. 2520.

SUB-CLASS B: NELSON, MEMBER FEDERAL JUDGE KING PLAINTIFF CLASS
SUB-CLASS C: Employees or opportunity seekers who interviewed
With at least 1 officer
THIRD CLAIM FOR RELIEF

(Violation of Article I, Section I Of The California State Constitution All Defendants)

Plaintiff repeats and realleges each and every allegation contained herein The aforementioned wrongful actions
and practices of Defendants violated Plaintiffs rights under Article I, Section 1 of the California State
Constitution which provides:

All people are by nature free and independent and have inalienable rights. Among these are enjoying and
defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety,
happiness and privacy. (Emphasis added.)

58. The California State Constitution was amended to add the constitutional right to

privacy following a 1972 ballot initiative. The California Supreme Court has since

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suggested the State Constitutions enumerated right to privacy is sometimes greater

than the United States Constitutions unenumerated right to privacy.

SUB CLASS A: EUNICE/UK

59. During 2004 and 2005, Defendants repeatedly intercepted, accessed

and listened to voice-mail messages intended solely for Plaintiffs private cellular

telephone system. Further, Defendants knew and/or should have known that the

voice mail messages were intended solely for Plaintiff, and yet they continued to

intercept, access and listen to them. Defendants actions rendered Plaintiff unable to retrieve voice-mail
messages intended solely for him, which were on Plaintiffs cellular telephone system.

61. Defendants published information, including articles in The Sun and News Of

The World, using sensitive, private and confidential information intended solely for

Plaintiff. Defendants unauthorized interceptions of Plaintiff\s voice-mail messages were

an egregious breach of well-established social norms that recognize the need to

maximize individual control over the dissemination and use of such information in

order to prevent unjustified embarrassment and indignity, and violated Plaintiffs

reasonable expectation of privacy.As a result of Defendants actions, Plaintiff was unable to make intimate

decisions or conduct personal activities relating to both his family and career

without observation, intrusion, or interference.Defendants actions violated Plaintiffs specific, legally protected
privacy interest and reasonable expectation of privacy through conduct that was sufficiently

serious in its nature, scope and actual or potential impact to constitute an egregious

breach of the social norms underlying the privacy right.As a result of Defendants action as alleged here,
Plaintiff was caused irreparable harm in his personal and professional life and is entitled to general and
specific damages. Pursuant to 28 U.S.C. 1367, this Court has pendent or supplemental jurisdiction to hear and
adjudicate such claims.

FOURTH CLAIM FOR RELIEF

(Violation of California Penal Code 630, 631, 632, 632.7 & 637(2)(a) All Defendants)

. Plaintiff repeats and realleges each and every allegation contained herein.
The actions and practices of Defendants violated Plaintiffs rights under
the California Penal Code 630, 631, 632, 632.7 and 637.2(a).The purpose of the California Penal Code 630 is to
protect private communications in an era of ever improving technology. California Penal Code 630
begins as follows:

The Legislature hereby declares that advances in science and technology have led to the development of
new devices and techniques for the purpose of eavesdropping upon private communications and that the
invasion of privacy resulting from the continual and increasing use of such devices and techniques has

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created a serious threat to the free exercise of personal liberties and cannot be tolerated in a free and
civilized society.

CA Statue 637.2 states,

(a) Any person who has been injured by a violation of this chapter may bring an action against the
person who committed the violation for the greater of the following amounts:

(1) Five thousand dollars ($5,000).

(2) Three times the amount of actual damages, if any, sustained by the plaintiff.

California Penal Code 631(a) defines the acts that violate the law as follows:

Any person who, by means of any machine, instrument, or contrivance, or in any other manner,
intentionally taps, or makes any unauthorized connection, whether physically, electrically, acoustically,
inductively, or otherwise, with any telegraph or telephone wire, line, cable, or instrument, including the
wire, line, cable, or instrument of any internal telephonic communication system, or who willfully and without
the consent of all parties to the communication, or in any unauthorized manner, reads, or attempts
to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit
or passing over any wire, line, or cable, or is being sent from, or received at any place within this state; or who
uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so
obtained, or who aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit,
or cause to be done any of the acts or things mentioned above in this section,

While Plaintiff or spouse or relatives traveled thru or visited California in 2004 and 2005, Defendants and/or
their agents, employees or representatives intentionally intercepted, interfered with, accessed and
hacked Plaintiffs voice-mail messages on his cellular telephone system or directed, caused, permitted, and/or
conspired for Plaintiffs cellular telephone voice-mail to be intercepted, interfered with, accessed and hacked.
Defendants intentionally made unauthorized connections to the voice-mail
on Plaintiffs cellular telephone system without the consent of Plaintiff or any
other party to the voice-mail communications.
Defendants also made unauthorized attempts to learn the contents of
confidential communications contained in the voice-Mail of Plaintiffs cellular
telephone system. Defendants used or attempted to use and/or communicated
information that was obtained through such activities. Defendants actions were

thus in violation of 631 of the California Penal Code. Defendants had actual

knowledge or, participated in, directed and/or approved of, and benefitted from,
this practice .A violator of California Penal Code 632(a) is defined as Every person

who, intentionally and without the consent of all parties to a confidential

communication, by means of any electronic amplifying or recording device,

eavesdrops upon or records the confidential communication, whether the

communication is carried on among the parties in the presence of one another or by

means of a telegraph, telephone, or other device, except a radio,

California Penal Code 632 (b) defines person in this context as including any individual, business
association, partnership, corporation, limited liability company.

SUBCLASS C: HiTech employees

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California Penal Code 632(c) defines the term "confidential communication" to include any communication
carried on in circumstances as may reasonably indicate that any party to the communication desires it to be
confined to the parties thereto, excluding public proceedings or other instances where there
would not be an expectation of privacy.

SUBCLASS C: Hitech Employees:A Violator of California Penal Code 632.7(a) is defined as every person

who, without the consent of all parties to a communication, intercept or receives

and intentionally records, or assists in the interception or reception and

intentional recordation of, a communication transmitted between two cellular radio

telephones, a cellular radio telephone and a landline telephone, two cordless

telephones, a cordless telephone and a landline telephone, or a cordless telephone

and a cellular radio telephone

While Plaintiff traveled thru or visited California in 2004 and 2005,
Defendants and/or their agents, employees or representatives intentionally, and

without the consent of all parties to the communications, used an electronic dvice

to access and to record Plaintiffs voice-mail messages on his cellular telephone

system, including voice-mail messages generated by calls from other cellular phones

and landlines. Defendants then used or attempted to use the information obtained in

this manner. The voice-mail messages left and stored on Plaintiffs

cellular telephone system were private and confidential because at least

one party to the communication reasonably expected the communication
to be limited to the parties. Defendants actions were thus in violation of

631, 632, and 632.7 of the California Penal Code. Defendants had actual

knowledge of, participated in, directed and/or approved of, and benefitted from , this practice.

As a result of Defendants actions as alleged here, Plaintiff was caused

irreparable harm in his personal and professional life. Plaintiffs actual damages
include but are not limited to, emotional distress, anxiety, embarrassment,

humiliation, the deterioration of family relationships, and the fear of, or actual loss

of, professional credibility and integrity. Defendants actions were a substantial

factor in causing this harm. Under 637.2(a) of the California Penal Code, any person
who has been injured by a violation of this chapter may bring an action against the

person who committed the violation.By reason of the foregoing, Plaintiff is entitled to the greater of statutory

damages, pursuant to 637.2(a)(1), or three times the actual damages suffered for
each instance in which Defendants violated 631, 632, and 632.7 of the California

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Penal Code, pursuant to 637.2(a)(2).Pursuant to 28 U.S.C. 1367, this Court has pendent or supplemental

jursidction to hear and adjudicate such claims.. Any person who trespasses on

property for the purpose of committing any

Every person not a party to a telegraphic or telephonic communication

who willfully discloses the contents of a telegraphic or telephonic message, or any

part thereof, addressed to another person, without the permission of that person,

unless directed so to do by the lawful order of a court, is punishable by

imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not

exceeding one year, or by fine not exceeding five thousand dollars ($5,000), or by

both that fine and imprisonment. Every person not connected with any telegraph or telephone office

who, without the authority or consent of the person to whom the same may be

directed, willfully opens any sealed envelope enclosing a telegraphic or telephonic

message, addressed to another person, with the purpose of learning the contents of

such message, or who fraudulently represents another person and thereby procures
to be delivered to himself any telegraphic or telephonic message addressed to such

other person, with the intent to use, destroy, or detain the same from the person

entitled to receive such message, is punishable as provided in Section 637.

confidential communications sent or delivered by one or more of foreclosing defendants to Plaintiff related to
the subject of Plaintiffs mortgage and/or the December 2012 foreclosure public sale. Defendant Ray hid such

information and communications and the topics revealed from such communications from lawful recipient,
Plaintiff.Plaintiff also under CA Statue 637.2(b) petitions Court to enjoin and restrain Defendants from further
violations.

FIFTH CLAIM FOR RELIEF

(Violation of California Civil Code 1708.8(b), 1708.8(d) & 1708.8(e) All Defendants)

Plaintiff repeats and realleges each and every allegation contained herein
The actions and practices of Defendants violated Plaintiffs rights under the California Civil Code 1708.8(b),
1708.8(d) & 1708.8(e).California Civil Code 1708.8(b) states:

A person is liable for constructive invasion of privacy when the defendant attempts to capture, in a
manner that is offensive to a reasonable person, any type of visual image, sound recording, or other
physical impression of the plaintiff engaging in a person or familial activity under circumstances in
which the plaintiff had a reasonable expectation of privacy, through the use of a visual or auditory
enhancing device, regardless of whether there is a physical trespass, if this image, sound recording, or
other physical impression could not have been achieved without a trespass unless the visual or auditory
enhancing device was used.

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California Civil Code 1708.8(e) states:

A person who direct, solicits, actually induces, or actually causes another person, regardless of whether
there is an employer-employee relationship, to violate any provision of subdivision (a), (b), or (c) is
liable for any general, special, and consequential damages resulting from each said violation
Defendants constructively invaded Plaintiffs privacy when they and/or their agents, employees, or represent
aibgces, directed, induced, caused, or employed others to attempt or themselves attempted to capture a sound
recording, in a manner that was offensive to a reasonable person. The sound recording that
Defendant scaputrued or attempted ot capture involved matters related to Plaintiffs

personal and/or familial activity and otherwise could not have been captured without trespass. In doing so,
Defendants and/or their agents, employees, or representtaitves iviolated California Civil Code 1708.8(b) and
1708.8(e).Defendants invaded Plaintiffs priuvacy for a commercial purpose, with the
intention of selling, publishing, or otherwise transmitting these records for financial
gain or other consideration.As a result of Defendants actions alleged here, Plaintiff was caused irreparable

harm in his personal and professional life.By reason of the foregoing, pursuant to California Civil Code

1708.8(d) Plaintiff is entitled to up to three times his general and specific damages,

as well as punitive damages, as a result of the violations of 1708.8(b). Under California Civil Code 1708.8(d),
Defendants are also subject to disgorgement upon a demonstration that Defendants committed the invation of
privacy for a commercial purpose. Because Defendants committed the invasion of
privacy primarily for commercial purposes, including publishing articles in the
publications The Sun and News Of The World, Defendants are subject to
disgorgement of any proceeds or other consideration obtained as a result of [these
violations.Pursuant to 28 U.S.C. 1367, this Court has pendent or supplemental jurisdiction
to hear and adjusdicate such claims.

SIXTH CLAIM FOR RELIEF

(Intrusion Into Private Affairs California Common Law All Defendants)

Plaintiff repeats and realleges each and every allegation contained herein
While Plaintiff was living, traveling thru, and visiting Los
Angeles in 2004 to 2005, he had a reasonable expectation of privacy concerning his
voice-mail messages on his cellular telephone system. However, Defendants
intercepted, interfered with, accessed and hacked his voice-mail messages on his
cellular telephone system. In so doing, Defendants surreptitiously intruded upon

Plaintiffs private affairs, concerns and communications.
Defendants actions and conduct in intentionally and willfully
intercepting, interfering with, intruding upon, accessing and hacking Plaintiffs

voice-mails on his cellular telephone system even though Plaintiff had clearly never
authorized Defendants to do so, was highly offensive and highly objectionable to
Plaintiff and to a reasonable person of ordinary sensibilities.
Defendants acted with reckless disregard of Plaintiffs privacy
rights and for the fact that a reasonable person of ordinary sensibilities would find

such invasion and intrusion highly offensive. Defendants had actual knowledge of,
participated in, directed and/or approve of, and benefited from this practice.
Defendants actions were highly offensive because the degree of
intrusion into Plaintiffs personal and professional life was significant, the context,
conduct and circumstances surrounding the intrusion revealed a complete
disregard of Plaintiffs privacy rights, and the Defendants motives and objectives

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were for financial profit at Plaintiffs expense.Defendants intercepting, interfering with, intruding upon,
accessing and hacking Plaintiffs voicemails on his cellular telephone was malicious and served no

legitimate public interest. The facts publicly disclosed and published by Defendant s were private and

confidential matters- involving Plaintiff, and Plaintiffs close friends and business
associates which were offensive and objectionable to a reasonable person and not
of legitimate public concern, and which Plaintiff was entitled ot keep private and
confidential.Defendants were motivated for financial profit and gain and to exploit

Plaintiffs private and confidential information for their own ends without regard to
Plaintiffs privacy rights.As a direct and proximate result of Defendants wrongful conduct,
Plaintiff suffered emotional distress, an invasion of his rights of privacy and other
incidential and consequential damages. Plaintiff was harmed and Defendants
conduct was a substantial factor in causing such harm.By reason of the foregoing, Plaintiff is entitled ot actual
damages in an amount to be determined by the Court.By reason of Defendants actions, which constitiued
outrageous conduct, were reckless, showed a callous indifference to, and willful disregard, of Plaintiffs
rights of priuvacy, and were contrary to the public policy of the State of California,
Plaintiff is also entitled to punitive damages in an amount to be determined by the Court.Pursuant to 28 U.S.C.
1367, this Court has pendent or supplemtnal jurisdiction to hear and adjudicate such claims.

SEVENTH CLAIM FOR RELIEF

(Violation of 17200 2006 Consent Decree with California State Attorney, after consent by News
Corporation Director Perkins was required after its December 7, 2006 filing and being entered into All
Defendants-For additional specific evidence please see Motion for Consolidation Injunction)
NINTH CLAIM FOR RELIEF

(Violation Of 18 U.S.C. 1962(d) By Conspiring To Violate 18 U.S.C. 1962(c))

Plaintiffs reallege and incorporate by reference all previous paragraphs.
The Racketeering Influenced and Corrupt Organizations Act (RICO) provides:It shall be unlawful for any
person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section. 18 U.S.C.
1962(d).Defendants violated 18 U.S.C. 1962(d) by conspiring to engage in the predicate acts
alleged to form the violation of 18 U.S.C. 1962(c), as described
The relevant time period for conspiracy stems from at least the year 2004, and likely earlier but at this point
in discovery as yet unknown, and continues to the filing of this RICO Class Action Complaint.
As a proximate result of the overt acts taken by Defendants, Plaintiffs and the Class Members have
suffered injury to their business and property.
As alleged with particularity above, the facts demonstrate that the RICO Defendants
conspired to violate 18 U.S.C. 1962(c) by conducting, or participating directly or
indirectly in the conduct of, the affairs of Enterprise through a pattern of racketeering
activity. greed to the objective of this conspiracy. BP took overt acts, along with Transocean, in
furtherance of that conspiracy.As alleged with particularity above, as a direct and proximate result of the
RICO Defendants aforementioned RICO conduct, Plaintiffs s and Class Members have suffered injury to their
business and property As alleged with particularity above, the RICO Defendants are jointly and severally
liable to Plaintiff for treble damages, together with all costs for this action, plus
reasonable attorneys fees as provided by 18 U.S.C. 1964.
To the extent permitted by law, Plaintiff is entitled to damages, plus court costs, and
pre and post-judgment interest at the legally allowable limit.
Section 1962(d) of RICO makes it unlawful for any person to conspire to violate any

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of the provisions of subsection (a), (b) or (c) of this section.
Each RICO Defendant agreed to participate, directly or indirectly, in the conduct of the affairs of through a
pattern of racketeering activity comprised of numerous acts of mail
fraud, tampering and retaliation, and each RICO Defendant so participated in violation
of 18 U.S.C. 1962(c).
Plaintiff incorporates by reference and realleges each allegation set forth above.

First RICO Predicate Offense

Defendants, acting in concert and with criminal purpose, are in violation of 18 U.S.C. 1961 concerning
racketeering activity in that they, in violation of 18 U.S.C. 1512, have tampered with witnesses or informants
namely each of the Plaintiffs to attempt to hinder or prevent the Plaintiffs through threats and other actions within
their employment, from providing evidence to officials regarding violations of Federal Law,

Second RICO Predicate Offense

That the Defendants, in furtherance of their criminal enterprise and corrupt organization
have conspired together to violate 18 U.S. C. 1513 by retaliating against a witness or an
informant by taking actions harmful to Plaintiffs including interference with the lawful
employment or livelihood of the Plaintiffs for providing information to authorities

. Defendants violations of RICO laws have caused damages to the Plaintiffs in the form
of general and special damages and each Plaintiff is entitled to recover from Defendants,
jointly and severally, Treble damages in an amount to be determined at Trial together with
Plaintiffs Attorneys fees.

Section 18 U.S.C. 1964(c) (1982):
Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue
therefor in any appropriate United States district court and shall recover threefold the damages he sustains and
the cost of the suit, including a reasonable attorney's fee.

PRAYER FOR RELIEF AS TO RICO COUNTS WHEREFORE, Plaintiff respectfully requests that this Court
grant the following relief:
a. Treble the amount of all wages and benefits Plaintiff would have received but for Defendants
unlawful conduct, including but not limited to back pay, front pay, and pre-judgment interest;
b. Compensatory damages in an amount to be determined at trial to compensate Plaintiff for the damage
to reputation, loss of career, humiliation, anguish an

a. Treble the amount of all wages and benefits Plaintiff would have received but for Defendants
unlawful conduct, including but not limited to back pay, front pay, and pre-judgment interest;
b. Compensatory damages in an amount to be determined at trial to compensate Plaintiff for the damage
to reputation, loss of career, humiliation, anguish and emotional distress caused by the RICO Defendants
unlawful conduct; c. Treble and/or punitive damages as allowed by law;
d. An award of reasonable attorneys fees, costs and litigation expenses pursuant to 18 U.S.C. 1964(c)
and all other applicable statutes; and
e. Such other relief as the Court may deem just or equitable.

PRAYER FOR RELIEF
1. An award of the maximum statutory actual damages, including profits made by Defendanrts, pursuant to
18 U.S.C. 2707;Punitive damages, pursuant to 18 U.S.C. 2707(b)(3);Reasonable attorneys fees and costs,
pursuant to 18 U.S.C. 2707(b)(3)l andSuch other and further relief as the Court may deem just, proper and
equitable.On the Second Claim for Relief.

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The greater of actual damages and any profits made by Defendants by their violations of 18 U.S.C. 2520 and
2511, or statutory damages, pursuant to 18 U.S.C. 2520. Punitive damages, pursuant to 18 U.S.C. 2520
1. Reasonable attorneys fees and costs, pursuant to 18 U.S.C. 2520
Such other and further relief as the Court mauy deem just, proper and equitable.

On the Third Claim for Relief

1. General and specific damages, in an amount to be determined by the Court; and
The greater of statutory damages, pursuant to 637(2)(a)(1) or three times the actual damages Plaintiff
suffered for each instance in which Defendants violated 631 and 632 of the California Penal Code,
pursuant to 637(2)(a)(2)l and Such other and further relief as the Court may deem just, proper and equitable.

On the Fifth Claim for Relief.

An award of three times Plaintiffs general and specific damages, pursuant to 1708.8(d) of the California Civil
Code;Disgorgement of any proceeds or other consideration obtained by Defendants as a result of thei violations
of Plaintiffs rights under 1708.8(d) of the Californai Civil Code;Punitive damages by reason of Defendants
violations of Plaintiffs rights under 1708.8(d) of the California Civil Code; andSuch other and further relief as
the Court may deem just, proper and equitable. On the Sixth Claim for Relief:
1. Actual damages in an amount to be determined by the court;
2. Punitive Damages in an amount to be determined by the Court; and
3. Such other and further relief as the Court may deem just, proper and equitable.
Plaintiff demands trial by jury.

Dated: May 2, 2014

BRAD D. GREENSPAN, PRO SE
264 South La Cienega,
Suite 1216

EXHIBIT #1

Other Predicate Acts:

However the jig was up for News Corporation in 2012 as it became clear thru the May 1, 2012 release of UK
Parliamentary report and the November 29, 2012 Leveon Inquiry Report, concluding that News Corporation,
Directors and officers were running a criminal organization: hiding evidence, hacking, and bribing police and
other public officials. News Corp had indemnified the other defendants in Brown v. Brewer and
was operating the cases U.S. legal strategy,

i. News Corporations general counsel resigned in 2011

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ii. NewsCorp CEO appearing under oath at the Leveson Inquiry admitted
he was the victim of a coverup and that all the criminal acts exposed had gone on
without his knowledge.

iii. News Corporation conceded its internal controls were defective as a
result of the exposure of years of bribes its UK subsidiaries had paid out and hidden by
falsifying its financials.

In November 2012, News Corporations top executives Brooks and Coulson were charged with criminal
bribery in the UK. Bribery is also the key illegal act NewsCorp and defendants used to damage Plaintiffs
during 2005 purchase of MySpace.com for $650 million instead of the fair value of $96 Billion. At least
one of the Defendants, News Corporation, has already

conceded a defense for the illegal acts proven in the UK.
According to the CEO Rupert Murdoch, News Corporations internal controls were defective and the
CEO didnt know what was going on and was a victim of
a coverup.Therefore, News Corporation must use the same defense for the criminal actions its accused
of herein.
News Corporations lack of credibility and proven defective internal controls
can be seen thru comparing a) The statements and communications of News Corporation
key Directors in 2006 and 2007 related to illegal phone hacking vs. b)
The actions of News Corporation between 2005-2011 in regards to
Investigating phone hacking vs. c) The false statements at the 2010 Annual Meeting by the

CEO, Viet Dinh, Director and member of the Nominations and Governance Committee,

Sir Rod Eddington Director and member of the Audit Committee vs. d) the findings by the

Parliament Committee in May 2012, the findings by the Leveson Inquiry in November

2012, and admissions by News Corporation in 2012:

A)

i. June 19, 2006 at 1:18PM, Tom Perkins emails HP Counsel Sonsini,
Subject: HP Confidential, stating,

Today I was at a NewsCorp board meeting in London, and I discussed the events of the most recent HP
board meeting, with a fellow director, Viet Dinh, as you probably know, Viet is a professor of Law at
Georgetown, and his most popular course is Corporate Governance.

Viet was shocked at the HP chairmans recording of board members telephone and computer inter-
connections. I emphasized that no communications were actually transcribed. He said that even
monitoring connections and/or e-mail addresses requires a subpoena (which as far as I know was never
obtained) but, with or witheout a subpoena, such monitoring was simply unconscionable.

June 20, 2006 at 10:00AM, Tom Perkins emails HP Counsel Sonsini, Subject:RE: HP Confidential,

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the investigation was unknown to the board, except perhaps in the most vague and imprecise terms,
with the possible exception of Mark, who she may have briefed.

In view of Viets unqualified opinion that it was illegal, I think, the board needs to know the potential
risks, if any. I resigned from the board and as chair of the N&G committee before I could look into this
personally. If it was illegal, it occurred under my purview, and on my watch, so to speak, and I would
like to know whether or not I share some responsibility.

iii. July 18, 2006 at 3:22AM, TOM PERKINS emails Sonsini, Mark Hurd, and
Ann Baskins, Subject: RE: Minutes, and states,

Thank you for sending the draft minutes of the May 18
th
meeting.
As written the minutes state that I concurred in the nature of the investigation it
is not true. I was under the impression that the investigation involved examining
calendars, travel schedules, and such. I had no idea that personal communications
were involved and had I known that this was the case I would have brought the
matter (of the intrusive nature of the investigation) to the board, for full
examination, well in advance of this May 18
th
meeting.

iv. July 28, 2006, at 1:52PM, Tom Perkins emails Sonsini, Baskins,
Babbio, Sbaldauf, Dunn, Hurd, Hammergren, and others, Subect: Confidential:
May 18
th
HP Board of Directors Meeting.

Dear Ann and HP Board Members; the essential point to be acknowledged is that the sub-rosa
surveillance of the HP Board members personal communications was, and is, illegal. I attach a memo
from Larry Sonsini, in which he acknowledges that HP hired consultants who engaged in pretextings, a
practice using an illegal misrepresentation the pretext- of identity to carrier companies in order ot
obtain confidential telecommunications records. This is a fraudulent practice. Interestingly, HP has on its
board an expert in the matter, namely Larry Babbio, whose company Verison, has testied before the
F.C.C. on the illegality of the practice, and has filed suits against consultants who engage in
pretexting;That the illegal pretext was done by a consultant is no excuse or defense to HP, which
authorized, induced, and benefited from the illegal fraud.

As Chairman of HPs Nominating and Governance Committee, had I been
informed of these illegal activities prior to the May 18
th
meeting, I would have stopped them, or failing
that, brought them to the attention of the full board. Now, I must insist that the HP board undertake a full
investigation of the practices, via an independent committee of the board (not including the Chairman,
who initiated the illegal behavior) and take whatever disclosure and/or corrective action is required.
This is an extremely serious matter, and I have engaged counsel for advice. I
attach a copy of his CV from the Georgetown U. Law School, where he is a
professor. I did not resign from the board for frivolous reasons, but because HP was
standing into dangerous waters waters hazardous with both illegal and
unconscionable governance practices- and because my advice was being ignored.

October 9, 2006, Maria Bartiromo CNBC interview states, Viet Dinh represents Tom Perkins;He is
generally credited with authoring the controversial USA Patriot Act.

How did you first learn of the spying at HP? Tom Perkins approached
me at a News Corp. (NWS) dinner and asked me for advice. [Both

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Perkins and Dinh are on the News Corp. board] He laid out a rather
dramatic tale about how he had just resigned from HP in protest over an
investigation

Do you have any sense of how widespread snooping on employees or
even journalists is in Corporate America?

Not as a general matter, but my phone has been ringing quite steadily
since the publicity about HP-matters relating to pretexting and spying on
competitors

the silver lining to this episode is that everyone in Corporate America is on notice that this type of
activity has no place in our country, and least of all in corporate leadership.

You mean rival companies to HP are calling you?

Well, some rival companies, but more so other companies unrelated to HP who think competitors have
been spying on them. They also are worried about pretexting their employees.

Youre widely considered the chief architect of the Patriot Act. Do you see any irony that you are a
voice of outrage over alleged privacy violations at HP? No. There is a distinct difference between the
government using its power of subpoena and search warrants to protect America against security threats
and private citizens and companies breaking the law in order to pursue their own interests and personal
agendas.

Vi.Decmber 6, 2006, Susan Beck writes Where will the Troubles End for Sonsini for the American
Lawyer, stating,

Perkins version of the boardroom discussions is supported by an e-mail he sent a week later, on May
31, to the directors of News Corp. Perkins, who also sits on the News Corp. board, explained in the
message that he wanted to spike the rumors about why he resigned from the HP board. (This email
was turned over to Congress)

One of the people who got this message was Dinh, who is also a News Corp. director and chairs that
companys corporate governance committee. (Dinh was not representing Perkins at the time he resigned.)
Dinh told Perkins that the gathering of third party phone records was illegal and unconscionable. (At this
point, Perkins and Dinh did not know that pretexting was involved. )) Dinh, as it turns out, is one of the
nations legal expers on surveillance tactics. A former assistant attorney general for legal policy at the
U.S. Department of Justice, the 38-year-old is credited with authoring the Patriot Act.

The day after recieving that letter, Dinh opted to get the power of the government behind him. He called
the SECs deputy general counsel of enforcement, told him about this dispute and gave him the e-mails
and letters that had bounced back and forth between him, his client, HP and Sonsini. He also contacted
the U.S. Attorneys Office in San Francisco and the California attorney general to tell them about the
prexting.

The corporate law professor objected to the choice of Wilson Sonsini to do an investigation. In an Aug
23 letter to Sonsinis partner, Boris Feldman, Dinh questioned how the firm could legitimately

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investigate events that involved the key participation of its Chairman: My personal respect for your
and Mr. Sonsinis legal ability and professional integrity does not mitigate the conflicts of interest
arising from your firms longstanding relationship as counsel to [HP].

I only know one way to practice law, and that is to call things the way I see it,
said Dinh.

Over a Washington, D.C. lunch in which Dinh quickly downed three glasses of
wine, three orders of oysters and a seafood gumbo, the former government
lawyer recalled he was startled when Perkins first told him about the
leaksinvestigation, I had an instant and almost instinctive recognition [of illegal investigative
methods], he recalls. Title Three of the Omnibus Crime Act prescribes that [the government] must get
judicial approval for a [telephone] track and trace device, and [access to] phone records requires a
subpoena or a search warrant. He states, I could not see how a private entity could get such access
without consent.

Dinh stresses that he called the authorities only after months of trying to get HP to do the right thing.
There is literally no internal corporate governance mechanism that can substitute for this type of
sunshine, he notes.

I do what I do, I say what I say, I think what I think, and I leave the labeling to others, he
said. I dont think of myself as a fellow traveler or an ideologue or a rubber-stamper. Or a
renegade.
In fact, there is a label for Mr. Dinh. In Washington, people who see Mr. Dinhs ebullient,
easy demeanor as opportunistic politicking have coined it Viet Spin.
Here, possibly, is an example of Viet Spin at work: Mr. Dinh is making headlines these days
representing venture capitalist Tom Perkins, the former Hewlett-Packard board member
whose outrage over the methods used to uncover a leaker on the companys board triggered a
full-blown scandal at the company.
Just as aggressively as he argued that the government could use wiretaps to root out
terrorists, he is now arguing that the company overstepped its bounds in allowing unethical
and possibly illegal techniques to be used to obtain board members phone records.
I guess my expertise in national security and electronic surveillance and the U.S.A. Patriot
act helped me very easily to recognize the legality or propriety of certain investigative
techniques, said Mr. Dinh.
At issue at Hewlett-Packard is the use of pretextingthe technique whereby investigators
pose as clients of a phone service, providing Social Security numbers and the like, in order to
obtain phone records. The phone records of Mr. Perkins, other board members and
journalists who were the recipients of the leaks were accessed, the company has disclosed.
On Tuesday, chairwoman Patricia Dunnwho had called for the investigation but says she
was unaware of the methods usedwas stripped of her title and replaced by company chief
executive Mark Hurd, though Ms. Dunn will remain on the board.

I asked Tom whether he had given consent, and he said no, Mr. Dinh said. Even without

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knowing the method of the investigation, having been around this town and having seen and
participated in a lot of leak investigations, you know, these are not easy things to do even
when you have full subpoena and search-warrant power.
Traveling on his boat in the Mediterranean, Mr. Perkins could not be reached for comment,
but he released a statement over the weekend calling for Ms. Dunns resignation.
MR. DINH WAS 10 YEARS OLD when he fled Saigon in 1978, part of a wave of boat people
who were fleeing communist rule. His father, a city councilman, had been sent to a reeducation
camp. Mr. Dinh, his mother and five siblings left on a small fishing boat, on which
they spent 12 days without food and water. They finally docked in Malaysia. Mr. Dinhs
mother quickly realized that the Malaysians would probably send them right back out to sea,
so that night she hacked at the boat with an ax to destroy its seaworthiness.
After some months in a refugee camp, the Dinhs were sent to Portland, Ore. The family
picked strawberries for menial wages, but when Mount St. Helens erupted, the crop damage
was so severe that the family relocated to Fullerton in Southern California. There, Mr. Dinh
worked alongside his mother in a sewing shop and flipped burgers after school. He earned a
scholarship to Harvard and then attended Harvard Law School.
His public profile rose steadily from there. He wrote an op-ed in The New York Times in
1992 on his sisters struggle to enter the United States, and his odyssey was described by
Times columnist Anthony Lewis the following year as an inspiring counter-example to those
concerned about the immigrant threat.
After law school, he clerked for Judge Laurence Silberman, a Reagan appointee, whose
alumni network of mostly conservative lawyers form a tight clique. The next year, he clerked
for Sandra Day OConnor.

44. SEPTEMBER 13, 2006, 8:58 AM ET
H-P: Bill Lockyer, Viet Dinh, Morgan Lewis
& More!By Peter Lattman

Lets catch you up on the H-P scandal. Heres whats going down:
The NewsHour with Jim Lehrer broke some news yesterday when California AG Bill
Lockyer told the show that state investigators have sufficient evidence to bring criminal
charges against individuals inside Hewlett-Packard as well as outside the company.
Lockyer added: Peoples identities were taken falsely, and its a crime. People
accessed computer records that have personal information. Thats a crime.

H-P has said that it hired a P.I. firm to carry out its
inquiry, and that firm in turn hired a second entity that used pretexting, or false identification, to obtain
the private phone records of board members and journalists.
Both the New York Observer and the WSJ today profile Viet Dinh, a Georgetown University law
professor and former Justice OConnor law clerk. Dinh has served as counsel to venture capitalist
Thomas Perkins in his recent dealings with H-Ps board, from which Perkins resigned in May. In June,
the 38-year-old Dinh emboldened Perkins to press concerns about H-Ps probe of board leaks that
involved obtaining directors personal phone records.
The Recorder reports that theres another outside lawyer besides Larry Sonsini working for H-P. The
tech company has hired lawyers at Morgan, Lewis & Bockius, which sat down with San Francisco
federal prosecutors on Monday as part of a proffer session. In proffer session, a company offers up
information to the feds in an effort to show cooperation with the investigation. John Hemann, a Morgan Lewis
partner who until last year was an AUSA in San Fran, reportedly attended the meeting.

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NY Times, published September 12, 2006 article from Damon Darlin,

titled, E-Mail Offers Peek Into Debate

On Sunday, Mr. Perkins lawyer, Viet D. Dinh, sent a message with the subject line This is
funny to Mr. Perkins and George A. Keyworth II, the director at the center of the board
controversy after being identified as a source of news leaks. It passed along a column from the
Houston Chronice mocking Ms. Dunn, and also referred to the cover story in this weeks issue of Newsweek,
which focused on her as well.

Kaplans piece was perfect, the message said, referring to David A. Kaplan, the author of the Newsweek
article. Tom, loved the helicopter story-perfect color, it added, referring to an anecdote about a prank Mr.
Perkins had played on Ms. Dunn at a dinner party. Mr. Perkins,

Perkins forwarded the e-mail to two dozen people. They included Lucilee S. Salhany, a former TV executive
who serves on the H.P. board, and Shane V. Robison, the companys executive vice president and chief strategy
and technology officer. Among the recipients were Rupert Murdoch, the Chief executive ofr News Corporation,
Judith Regan, the publisher with her own imprint at HarperCollins, Stanley S. Shuman, managing director at
Allen & Company, the investment firm, two partners at Kleiner Perkins Caulfield & Byers, the Silicon Valley
venture capital firm of which Mr. Perkins was a founder; and Mr. Kaplan, the Newsweek reporter, who is
writing a book about a yacht that Mr. Perkins recent had built.A copy of the message was provided to a reported
by someone to whom it had in turn been forwarded, apparently in error. Mr. Dinh could not be reached for
comment, but Mr. Perkins spokesman, Mark Corallo did not dispute the emails authenticity.

Corallo was an employee of the Department of Justice for the United States. immediately before taking
role of Spokesman for Tom Perkins.

c) the statements of the company denying any employees had been involved in
phone hacking or bribery since 2007. On October 15, 2010, News Corp at its annual
shareholder meeting in response to questions of shareholder Stephen Mayne who

published the following transcript on his website www.maynereport.com:

Stephen Mayne: what's your personal view of the phone bugging issue in theUK

Rupert Murdoch: we have very very strict rules. There was an incident more than 5 years ago. The
person who bought a bugged phone conversation was immediately fired and in fact he subsequently went
to jail. There has been two parliamentary inquires, which have found no further evidence or any other
thing at all. If anything was to come to light, we challenge people to give us evidence, and no one has
been able to. If any evidence comes to light, we will take immediate action like we took before.

Stephen Mayne: did you read the 5000-word piece in the New York Times claiming they had spoken to
no less than 12 former editors and reporters for the News of the World, confirming that the practice was
wide spread?

Rupert: no.

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Stephen Mayne: you haven't read that New York Times piece?

Rupert Murdoch: no.

Stephen Mayne: The actual committee said in its report, there was "deliberate obfuscation" by our
executives, there was "collective amnesia" by the executives and you've just demonstrated this again,

Rupert Murdoch: I'm sorry. Journalists who have been fired, who are unhappy, or work for other
organizations - I don't take them as an authority, and least of all I don't take The New York Times as
authority which is the most motivated of all.

Stephen Mayne: I would like to refer to page 16 of the proxy statement, where you say "directors are
encouraged to attend and participate" in the company's annual meeting to stockholders, I would like to
direct a couple of questions now to both Viet Dinh and Sir Rod Eddington. Sir Rod is our lead
independent director and Viet Dinh as our chair of our nomination and corporate governance committee.
Gentlemen, could you please tell shareholders what steps you've taken to ensure that the code of ethics
that this company has on its website and claims to adhere to, has been followed in relation to the phone
hacking issue in the UK.

Viet Dinh: The code of ethics and standards of business conduct obviously describe the overall
framework through which we govern ourselves. We trust our executives, our management and our
personnel to follow them, and where infractions are made, appropriate actions are taken as the chairman
has indicated. At the board level the audit committee obviously has oversight over any allegations of
financial mismanagement or impropriety. The board, including its nominated corporate governance
committee has oversight over other risk areas and other allegations of impropriety. I think these
procedures have served us well in the past, and will continue to serve us well into the future.

Sir Rod Eddington: To add to that Mr. Mayne, the audit committee also, we have a sensible and
comprehensive whistle blower policy, and in addition to the things Viet Dinh has mentioned,
when concerns are raised internally, confidentially, by employees about conduct within the
organization, they are handled and reviewed in a substantial way, and those concerns are brought
to the audit committee. So the audit committee also uses that mechanism, and in my experience,
the organization takes seriously any breaches of conduct and the code of ethics.

Rupert Murdoch: I think that answers you filly and can we move on to the next
question?

a) the fact over 50 News Corporation employees have been arrested and/or charged

for the very same criminal conduct denied in October 2010.

7. News Corporations SEC corporate counsel Hogan Lovell was proven to have

led the coverup between 2005-2012 in the UK, and is responsible for the coverup of the

matters alleged herein.

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i. May 2012 UK Parliament report

ii. The Leveson Inquiry: which included: nine months of oral hearings, 337 witnesses gave
evidence in person and the statements of nearly 300 others (individuals or groups) were read into
the evidence(pg. 4 Leveson Report Executive Summary)

iii. News Corps insistence and Coverup that it had investigated the 2005 hacking and determined
there was not other employees engaged in phone hacking, bribery, or other criminal acts. Versus
2012 admissions by News Corp plus Information current at 31 October 2012 is as follows.
Operation Weeting concerned with interception of mobile phone messages has led to 17 arrests;
8 have been charged; 7 are also charged with conspiracy to pervert the course of justice.
Operation Elveden (payments to public officials) has led to 52 arrests involving 27 current or
former journalists (over three newspaper groups) and 12 current or former public officials: 5 have
been charged. Operation Tuleta (dealing with other complaints of data intrusion such as computer
hacking and access to personal records) has, to date, led to 17 arrests and one further person
interviewed under caution.
1

8. Therefore, incorporate by reference the following and petitioner should get full

benefit of the inferences and findings from the following reports and cases along with the

concessions already made by key defendant, News Corporation.
After the Brown v. Brewer Class won summary judgement in June 2010,

petitioner in 2011 tried to bring new evidence to the attention of Class Counsel indicating

the true damages were related to the value of MySpaces search value, the claims and facts

which had never been put before the Federal Court. Petitioner also provided a Rule 701

damage report providing New Evidence shows damages of $32 Billion for

MySpace Shareholders. stock.
Class Counsel ignored the evidence and breached its fiduciary duty by

joining with defendants in a brazen scheme to: i) mislead and initiate a fraud upon the

Court by changing the definition of the certified class to eliminate upwards of 60% of the

1
See the final st atement of DAC Sue Akers dated 31 October 2012 at
http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Fourth-Witness-Statement-of-
DAC-Sue-Akers.pdf together with the public statement of the CPS on 20 November 2012 at
http://cps.gov.uk/news/press_statements/charging_announcement_in_relation_to_operation_elvede
n/.

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eligible shares and shareholders and ii) enter into a sham settlement for pennies on the

dollar accepted by the Federal Court in March 2012.

Bribery and corruption!"#! Again, the present state of affairs in relation to Operation Elveden is set out
elsewhere.!" $% of 31 October 2012 (Deputy Assistant Commissioner Sue Akers fourth witness statement) a
total of 52 individuals had been arrested by officers working on Operation Elveden; of these, 27 were current
and former journalists (including journalists from The Sun; the Daily Mirror and its sister paper, the Sunday
Mirror; and the Daily Star Sunday).18 In an important piece of evidence, DAC Akers pointed out that offences
of this nature were suspected to have been committed in at least three separate newspaper groups right up to
early 2012.19 !"#% The fact that these arrests have occurred does not of course prove that an unlawful and
unethical practice existed within the press of inducing, or seeking to induce, public officials to disclose
confidential information about individuals or organisations; given the test required to justify arrest in the first
place, it merely raises reasonable grounds to suspect that various offences may have been committed. Further,
the ongoing crimin al investigation hampers the ability of the Inquiry to explore the available evidence.
Recognising these constraining factors, these developments cannot be dismissed as irrelevant. (pg. 475)

PLEA AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND ZAO HEWLETT-
PACKARD A.O.,

HP Russia Manager 2 had an employment contract with HP RUSSIA between in or about 1994 and 2012.

HP Russia Manager 2 also worked as a Finance Manager for the ESG business unit in the ISE sub-region

Concurrent with these misrepresentations and internal control violations

conspirators e-mailed a diagram purporting to identify all payment so subcontractos, but that ocne agains
omitted any reference to the slush fund payments and recipients. Based on these false reprsentations, Credit
Officer granted credit approval, observing the the approval memor that the subcontractual relations are clearly
illustrated in the Scheme attached; i.e. who has subcontract with whom and on which conditions.
The SBC was promulgated at HP CO.s headquarters in the Northern District of California.

On or about November 19, 2003, , HP Russia Executive 1 falsely certified that there are no deficienceies in
internal controls that would impact ESGs ability to record, process, summarize and report financial data, and
I am not aware of any fraud involving employees in ESGs management or other employees that have a
significant role in ESGs internal controls.

HP #2

The Company admits, accepts, and acknowledges that it is responsible under United
States law for the acts of its officers, directors, employees, and agents as set forth in the
Statement of Facts attached hereto as Attachment A and incorporated by reference into this
Agreement, and that the facts described in Attachment A are true and accurate. The Company
and HP Co. expressly agree that they shall not, through present or future attorneys, officers,
directors, employees, agents, or any other person authorized to speak for the Company or HP
Co., make any public statement, in litigation or otherwise, contradicting the acceptance of
responsibility by the Company set forth above or the facts described in the Statement of Facts

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attached hereto as Attachment A.

Criminal Conduct
8. Beginning by at least mid-2008, HP MEXICO began presales activities and
discussions with Petroleos Mexicanos, Mexicos state-owned petroleum company, commonly
known as Pemex, to sell to Pemex a suite of business technology optimization (BTO)
software, hardware, and licenses. BTO is a niche product that requires sophisticated knowledge
to integrate with other software products. The contracts for this software sale (collectively, the
BTO Deal) were for approximately $6 million.
9. HP MEXICO sales managers on the BTO Deal ultimately decided that they could
not win the business without working with, and making payments to, a Mexican informationtechnology
consulting company (collectively, with its affiliated companies and agents,
CONSULTANT). HP MEXICO sales managers knew that Pemexs Chief Operating Officer
(OFFICIAL A) was a former principal of CONSULTANT. HP MEXICO employees also
knew that OFFICIAL A supervised Pemexs Chief Information Officer (OFFICIAL B), who
was a key signatory on behalf of Pemex for the BTO Deal

maximum permissible under HPs policies without seeking additional approvalsthere was no
money left over for the INTERMEDIARYs fee. On or about December 12, 2008, HP MEXICO
executives involved in the BTO Deal sought permission from regional management to increase
CONSULTANTs authorized deal commission by 1.5% to 26.5%. In support of their request,
HP MEXICO executives sent an e-mail claiming that CONSULTANT deserved an increased
commission primarily because it had put in extra work and successfully managed discounts with
Pemex. The justification omitted any reference to the role of, or payments to, the
INTERMEDIARY. With little or no additional review, HP regional officials approved the
increased commission request on that same day.
14. On or about December 22, 2008, HP MEXICO signed the contracts with Pemex
for the BTO Deal. OFFICIAL B, among others, signed on behalf of Pemex.
15. On or about January 20, 2009, HP MEXICO advised the INTERMEDIARY that
it had received the INTERMEDIARYs payment request for recommending an HP solution to
your customer. Later that day, the INTERMEDIARY advised CONSULTANT of the expected
payment schedule from HP MEXICO. On or about January 23, 2009, HP MEXICO informed
the INTERMEDIARY that it had approved the payment request. HP MEXICOs records falsely
reflect that the INTERMEDIARY was due a commission for the BTO Deal.
16. The INTERMEDIARY submitted two invoiceson or about January 28, 2009,
and on or about February 5, 2009to HP MEXICO totaling $1,663,503, purportedly for
commissions on the BTO Deal.
17. HP MEXICO paid those two invoices on or about February 10 and 12, 2009. HP
MEXICO made those payments via wire transfer in U.S. dollars through a correspondent bank
account in the United States

18. On or about February 11, 2009, the INTERMEDIARY transferred approximately
$517,821 to CONSULTANT. On or about February 23, 2009, the INTERMEDIARY transferred
an additional $892,493.23 to CONSULTANT. Together, these two transfers totaled
approximately $1.41 million.
19. By arranging payments to be made through the INTERMEDIARY to
CONSULTANT, HP MEXICO was able to circumvent HP Co.s policies requiring pre-approval
of channel partners and written agreements for third-party payments. HP MEXICO further
circumvented HP Co.s controls by failing to identify the role of INTERMEDIARY in the BTO

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Deal when seeking a 1.5% increase in the commission for CONSULTANT. In addition, HP
MEXICOs books and records falsely reflected that the INTERMEDIARY was the deal partner
and principal recipient of the commission from the BTO Deal, which ultimately caused certain
HP Co. books and records to be falsified.
20. On or about March 2, 2009, within weeks of receiving its second commission
payment from HP MEXICO through the INTERMEDIARY, CONSULTANT made a cash
payment of approximately $30,000 to an entity controlled by OFFICIAL B. On or about March
30, 2009, CONSULTANT made three additional cash payments totaling approximately $95,000
to the OFFICIAL B-controlled entity.
21. In total, HP MEXICO received approximately $2,527,750 as its net benefit on the
BTO Deal.

HP #3

Defendant Hewlett-Packardd Polska, SP. Zo.o.

DEFERRED PROSPECUTION AGREEMENT BETWEEN THE UNITED STATES AND HEWLETT-
PACKARD POLSKA< SP. Zoo0.

$15, 450, 224 penalty

HP POLAND Exuective, a citizen of Poland

from in or around July 2005 to in or around January 2010. From 2006 through 2010, public sector sales at HP
Poland Accounted for approximately 50% of HP Polands gross revenue

KGP was the Polish National Policy agency

8. Polish Official was the Director of Information and Communcaitons Technology within the KGP, and later
a senior official within the Interior Minirsty, from in or around 2005 to in or around 2011.

11. Although HP Co. had certain anti-corruptiuon policies nad ocntrols in place during the relevant period,
those policies and controls were not adequate to prevent the conduct descriubed herein and were insufficient
implements at HP POLAND. This allowed onoe or more HP POLAND employees to circumvent HP Co.s
internal accounting controls and falsify its books and records.

Overview of Criminal conduct

12. From in or around 2006 through at least in or around 2010, one or more HP POLAND emplotyees together
with others, (i) cuased the falsification of HP CO.s books and records, and (ii) circumvented HP CO.s existing
internal controls, in connection with a scheme to make corrupt

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1. One or more Polan d employees facilitated the corrupt relationship with POLAND Official through covert
means. In addition to communicating through anonymous e-mail accounts and prepaid mobile telphones, HP
POLAND Executive would sometimes drive Polish Official in an HP POLALND-provided vehicle to remote
locations, and the two would type messages in a text file, passing the computer between themselves.
Communications were made in this fashio to avoid possible audio recording of the discussions by hidden
devices, and to circumvent HP CO.s internal controls. These messages addressed, among other topics,
information about upcoming tenders, and bdirbe amounts. In one text file about a particular tender, for example
Polish Official wrote that the finformation was difficult to obtaint , and if anyone were to discover that Polish
Official had given the materials to HP POLAND, Polish Offical and HP POLAND would have a BIG
PROBLEM!! In another message, Plish Official detailed amounts that one or more HP POLAND employees
and agents had paid to thim to date, and satest that THERE IS STILL 760K in Polish currentcy that was owed
him. Polish Official added that SOON he would need to be paid 1.2% from 22M + 1.2% with 5M. These
Satestmetns
were in reference to forthcoming contract awaredfs to HP POLAN Dby the Polish government, for which
Poliush Offical sought 1.2% of HP POLANDs net revenue.

In mid-2008, Polish Official was promoted to a new position with in the Interior Ministry. Whistel the corrupt
relationship continued, both the amount of bribes paid and the contracts HP POLAND received decreasesd.

19. In or about March 2007, Polish Official signed a KPGP Contract with HP POLAnd valued at
approximately $15.8 million. Around this date, HP POLAND Executive delived rto Polish Officials personal
residence a bag filled with approximately $150,000 in cahs. On another occasion in 2007, HP Officla

Poland Executive met Polish Official in a Warsaw parking lot and gave Polish Official another bag filled with
approximately 4100,000 I n cash.

MOTION TO CONSOLIDATE
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Suite 1216


)
v. )
)
)
)
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)
RELATED ACTIONS
MEMORANDUM OF POINTS
AND AUTHORITIES IN
SUPPORT THEREOF

DOES 1-10 )
)
Defendants. )
)
)
)

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TABLE OF CONTENTS
I. INTRODUCTION
II. ARGUMENT
III. CONCLUSION

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MEMORANDUM OF POINTS AND AUTHORITIES

TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD

PLEASE TAKE NOTICE that on June 30, 2014, at 10:00 a.m., or as soon thereafter as

the matter may be heard and hereby does, move the Court for an Order consolidating

the following actions for all purposes under Rule 42 of the Federal Rules of Civil

Procedure:

I. INTRODUCTION

1. Presently pending in this District are two related invasion of privacy

lawsuits, (Huthhart v. News Corporation & Petitioners Complaint in Intervention)

identified.Movant seeks to consolidate the above related actions pursuant to

Rule 42(a)
1
of the Federal Rules of Civil Procedure. Each action asserts substantially

the same claims and raises Substantially the same questions of fact and law.

Thus, consolidation of these actions is appropriate.

II. ARGUMENT

This Court Should Consolidate These Related Actions for Purposes of Efficiency

A. Consolidation pursuant to Rule 42(a)

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Rule 42(a) allows this Court to order consolidation of separate actions:
When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial
of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders
concerning proceedings therein as may tend to avoid unnecessary costs or delay.

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The grant of the injunction turned on Delaware law per the internal affairs doctrine.

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2. Consolidation is proper when actions involve common questions of law

and fact.
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Courts have recognized that class action shareholder suits, in particular, are

ideally suited to consolidation pursuant to Rule 42(a) because their unification expedites

pretrial proceedings, reduces case duplication, avoids the contacting of parties and

witnesses for inquiries in multiple proceedings, and minimizes the expenditure of time

and money by all persons concerned.

3. The actions pending before this Court present virtually identical factual

and legal issues, each one Alleges violations of the same sections of the Exchange Act

and each action names similar defendants. Because these actions are based on the same

facts and involve the same subject matter, the same discovery will be relevant to all

lawsuits. Thus, consolidation is appropriate here. Intervening Plaintiff has first 6 of 6

identical claims from same defendant causing injury and same facts as nexus:

FIRST CLAIM FOR RELIEF

(Violation Of The Stored Communications Act, 18 U.S.C. 2701 and 2707- All
Defendants)

SECOND CLAIM FOR RELIEF

(Violation of Wiretap Act, 18 U.S.C. 2510, 2511 & 2520 All Defendants)

THIRD CLAIM FOR RELIEF

(Violation of Article I, Section I Of The California State Constitution All Defendants)

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In re Equity Funding Corp. of Am. Sec. Litig., 416 F. Supp. 161, 175 (C.D. Cal.1976). This Court has broad discretion under this Rule
to consolidate cases pending within this District. Investors Research Co. v. United States Dist. Court for Cent. Dist., 877 F.2d 777 (9th
Cir. 1989); Perez-Funez v. District Director, Immigration & Naturalization Service, 611 F. Supp. 990, 994 (C.D. Cal. 1984)
("A court has broad discretion in deciding whether or not to grant a motion for consolidation,
although, typically, consolidation is favored.") (citation omitted).

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FOURTH CLAIM FOR RELIEF

(Violation of California Penal Code 630, 631, 632, 632.7 & 637(2)(a) All Defendants)

FIFTH CLAIM FOR RELIEF

(Violation of California Civil Code 1708.8(b), 1708.8(d) & 1708.8(e) All Defendants)

SIXTH CLAIM FOR RELIEF

(Intrusion Into Private Affairs California Common Law All Defendants)

4. This motion is brought on the grounds that these actions are substantially

identical because each Alleges claims for based upon similar factual

allegations against substantially the same defendants. The motion is also brought on the

ground that consolidation of these cases will promote efficiency.

This motion is based upon this notice of motion, memorandum of points

and authorities, the such oral argument as the Court May consider in deciding this

motion.Case should be determined by Delaware statue definition of preliminary

injunction.Since News Corporation Delaware Corporation and sells the most of its

products revenue recognized thru parent Delaware Corporation and its parent a

Delaware Corporation that invests and spends billions in film industry and television

industry, and its Delaware Corporation that is selling each day newspapers to consumers

in U.S. and UK and other countries. The grant of the injunction turns on Delaware law

per the internal affairs doctrine. Consolidation is proper when actions involve common

questions of law and fact.
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Courts have recognized consolidation expedites pretrial

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In re Equity Funding Corp. of Am. Sec. Litig., 416 F. Supp. 161, 175 (C.D. Cal.1976). This Court has broad discretion
under this Rule to consolidate cases pending within this District. Investors Research Co. v. United States Dist. Court for
Cent. Dist., 877 F.2d 777 (9th Cir. 1989); Perez-Funez v. District Director, Immigration & Naturalization Service, 611 F.
Supp. 990, 994 (C.D. Cal. 1984)

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proceedings, reduces case duplication, avoids the contacting of parties and witnesses for

inquiries in multiple proceedings, and minimizes the expenditure of time and money by

all persons concerned.
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B. The PSLRA Requires that the Question of Consolidation Be Decided
Prior to the Determination of the Appointment of Lead Plaintiff.

5.The PSLRA provides, among other things, for consolidation of

substantially similar actions. The PSLRA states in pertinent part:

If more than one action asserting substantially the same claim or claims

arising under this chapter has been filed, and any party has sought to consolidate those

actions for pretrial purposes or for trial, the court shall not make the determination [of

appointment of lead plaintiff under 21D(a)(3)(B)] until after the decision on the

motion to consolidate is rendered .... 15 U.S.C. 78u-4(a)(3)(B)(ii).

6. Thus, the PSLRA establishes a two-step process for resolving lead plaintiff

and consolidation Issues where more than one action on behalf of a class asserting

substantially the same claims has been filed. The court "shall" first decide the

consolidation issue and thereafter decide the lead plaintiff issue, "[a]s soon as

practicable" after the consolidation motion has been decided. Id. Given that the selection

of lead plaintiff and lead counsel is the necessary first step to prosecute the actions,

("A court has broad discretion in deciding whether or not to grant a motion for consolidation,
although, typically, consolidation is favored.") (citation omitted).

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Movant urges the Court to grant the consolidation motion as soon as practicable and

consolidate these related actions under the lowest case number. A prompt determination

is reasonable and warranted under Rule 42(a), given the common questions of fact and

law presented by the actions now pending in this District.

C. This Court Should Order the Preservation of Documents

7. Through this motion, Movant also requests that the Court order the

preservation of documents relating to this litigation in accordance with 15 U.S.C. 78u-

4(b)(3)(C)(i), both prior to and after the filing of any motion to dismiss. In complex

cases involving companies with numerous employees, such an order is appropriate and

will prevent the loss of key documents, whether through inadvertence or otherwise.

D. Consolidation and Injunction is appropriate under Rule 65. A(2)

8. Rule 65 A(2) states: (a) PRELIMINARY INJUNCTION.
(1) Notice. The court may issue a preliminary injunction only on notice to
the adverse party.
(2) Consolidating the Hearing with the Trial on the Merits. Before or after
beginning the hearing on a motion for a preliminary injunction, the court
may advance the trial on the merits and consolidate it with the hearing.
Even when consolidation is not ordered, evidence that is received on the
motion and that would be admissible at trial becomes part of the trial
record and need not be repeated at trial. But the court must preserve any
party's right to a jury trial.

E. DEL CODE 2598 VIOLATION OF ORDER OR INJUNCTION;
PENALTY

9. Injunction is appropriate under DEL CODE 2598 which states:

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(a) A person who violates any order or injunction issued pursuant to this chapter or who
breaches an agreement forming the basis of a cease and desist order issued pursuant to
this chapter shall forfeit and pay to the State a civil penalty of not more than $25,000
per violation.
(b) The Attorney General may petition the Superior Court in the county in which an
order, injunction or cease and desist order was issued, in order to obtain recovery of a
civil penalty as provided pursuant to this section. Such petition may be made whenever
it appears to the Attorney General that a person subject to any order, injunction or cease
and desist order issued pursuant to any provision of this chapter has violated such order
or injunction or breached a material term of an agreement forming the basis for such
cease and desist order.
(c) Nothing in this section shall prevent the Attorney General from initiating any
additional or alternative action under lawful powers which otherwise seeks enforcement
of any statute or requests sanctions for any such violation of an order, injunction or
cease and desist order. (71 Del. Laws, c. 470, 1; 70 Del. Laws, c. 186, 1.;)

F. 2521 - Injunction against illegal interception

10. Injunction is warranted under Sec. 2521 which states:

Injunction against illegal interception

Whenever it shall appear that any person is engaged or is about to engage in any
act which constitutes or will constitute a felony violation of this chapter, the
Attorney General may initiate a civil action in a district court of the United States
to enjoin such violation. The court shall proceed as soon as practicable to the
hearing and determination of such an action, and may, at any time before final
determination, enter such a restraining order or prohibition, or take such other
action, as is warranted to prevent a continuing and substantial injury to the United
States or to any person or class of persons for whose protection the action is
brought. A proceeding under this section is governed by the Federal Rules of
Civil Procedure, except that, if an indictment has been returned against the
respondent, discovery is governed by the Federal Rules of Criminal Procedure.

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IV. CONCLUSION

For the reasons stated above, and in order to promote judicial economy, Movant

respectfully requests that the Court consolidate the related actions identified herein,

permit the filing of a consolidated complaint within 60 days from entry of the Court's

Order granting this motion, and require the preservation of documents in this action.

Under Rule 65, and Sec 2521 Injunction should be granted Because Defendant is in

breach of Consent Order at Exhibit #1, specifically Mark Hurd and Tom Perkins who

served as Directors of HP And News Corporation Between 2005 thru 2012.

DATED: May 2, 2014

Respectfully submitted,

Brad D. Greenspan
Pro Se

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EXHI BI T #1

SUPERI OR COURT OF Ti l E STATE OF CALI FORNI A FOR THE COUNTY OF SANTA CLARA
106C V - 076U 8 ~ PEOPLE OF THE STATE OF CALI FORNI A, Pl ai nt i f f ,
v. HEWLETT- PACKARD COMPANY, a Del awar e Cor por at i on, Def endant .

1. This action is brought against Hewlett-Packard Company. a Delaware corporation (hereinafter"Hewlett-Packard"or"HP"),
who, inviolation ofCaliforniaBusinessand ProfessionsCodesection 17200,engaged in a nunlawful scheme to spy on its own
employees and directors. third parties and family members of these individuals (collectively "Victims").
2. HP'stactics violate the right to privacy of theVictims,violates everal PenalCode sections prohibiting the obtaining of
confidential information from telecommunications utilities under false pretenses, and constitute unfair business practices
within the meaning of California Business and Professions Code section 17200. Unless enjoined and restrained by an order
of the Court. HP will continue to engage in the unlawful acts and conduct set forth in this Complaint.

HP at all times mentioned herein has transacted business in the County of Santa Clara and elsewhere within the State of
California. HP authorized and directed the unlawful investigations at issue from its offices in the State of California, and the
violations of law described herein occurred in the County of Santa Clara and elsewhere in the State of California.

1. Whenever reference is made in this Complaint to any act or transaction of any corporation. partnership, business or
other organization, that allegation shall be deemed to mean that the corporation . partnership ,business or the
organization did or authorized the acts alleged in this Complaint through its principals. officers, directors, employees,
members, agents and representatives while they were acting within the actualor ostensible scope of their authority

DEFENDANT'S BUSINESSPRACTICES

7. In 2005, HP launched an investigation ostensibly to determine who among its HP board members had "leaked"
informationt othemedia. During the course of this investigation, Hl' authorized and permitted the usc of "pretexting'' or
"social engineering," by which HP investigators obtained the personal, home and cellular telephone records of current
and former liPdirectors and employees,several journalists,and their families (collectively"Victims"), by posing as the
Victims.
8. In 2006, after the 2005 investigation failed to reveal the source of the leaks, HP launched a second
investigationtodeterminethesource ofnew leaksto themediathattookplace in January 2006. (The 2005 and 2006
investigations arc hereafter collectively referred to as '"the Kona Investigation.")

9. During the KanaI nvestigation, HPutilized unlawful,unfair and deceptive investigative tactics to obtain confidential
personal information about the Victims, including:

a. using pretcxting to obtain the telephone or facsimile records of Hewlett-Packard employees, former or current Hewlett-
Packard Board members or their families, and journalists and their family members.
b. authorizing the use of pretcxting to obtain telephone or facsimile telephone call records by duping telecommunications
carriers into providing confidential information andl or by creating an online account using confidential information supplied
by Hewlett-Packard, including portions of the Victims' Social Security Numbers.

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c. permitting and authorizing the use and disclosure of Social Security Numbers and confidential personal
information to obtain, through pretexting, the telephone call information of employees, current or former
Hewlett-Packard Board members and journalists.

FIRST CAUSE OF ACTION VIOLATIONSOFBUSINESSANDPROFESSIONS CODE SECTION17200 (UNFAIR COMPETITION)
10. Plaintiffre alleges and incorporates by reference paragraphs 1-9 above, as though they arc set forth in full
herein.
I I. Beginning at an exact date unknown to plaintiff, HP engaged in unfair competition as defined in California Business
and Professions Code section 17200.
12. During the course of the Kona Investigation, HP's acts and practices of unfair competition include the
following:

a. HP deceptively obtained telecommunications consumer account information by Various means.sometimes termed
"prctcxting' and/or"social engineering,"which includes misrepresenting themselves as the Victim. an agent of the Victim
or someone acting on the Victim's behalf in calls to the Victim's telecommunications carrier's customer service
representatives or on the telecommunication carrier's websites. HP thus obtained the Victim's private and confidential
information, without the consent or authorization of the Victim.

b. HP, by means of false pretenses, induced telecommunications companies to provide confidential
information regarding the Victims to HP. in violation of California Penal Code section 538.5.

c. HP knowingly accessed and without permission used data, computers. computer systems or computer networks in order
to devise or execute a scheme to defraud or deceive telecommunications companies to provide HP with confidential
personal information about the Victims and/or to wrongfully obtain data regarding the Victims, in violation of California
PenalCodesection502(c)(I).
d. HP knowingly accessed and without permission took. copied, or made use of data from a computer, computer system, or
computer network and/or took or copied supporting documentation, in order to obtain confidential personal information
about the Victims, in violation of California Penal Code section 502(c)(2).
e. Consumers have an expectation of privacy in their telephone records and other personal information. This expectation of
privacy is guaranteed by Article L Section I of the California Constitution, as well as by California Public Utility Code section
2891 , which prohibits telecommunications companies from providing residential telephone call records of a consumer
without the consumer' s consent. HP violated the right to privacy of Victims by obtaining confidential telephone records and
other personal information about them without their knowledge or consent.
f. HP purchased, offered to purchase or conspired to purchase telephone calling pattern records or lists of the Victims
without their written consent and/or through fraud or deceit, attempted to procure or obtain the telephone calling pattern
records or lists of the Victims.
g. HP used false pretenses to willfully obtain personal identifying information about
BILL LOCKYER, Attorney General of the
State of California

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the Victims and used that information in violation of California Penal Code section 530.5.
h. HP' s investigative tactics during the course of the Kona Investigation, as described in part in
paragraphs 1-2 and 7-12 above. constitute unfair competition within the meaning of California Business
and Professions Code section 17200.
PRAYER FOR RELIEF WHEREFORE, plaintiff prays forjudgment as follows:
I. Pursuant to California Business and Professions Code section 17203. that HP, its successors, agents,
representatives, employees, and all persons who act in concert with HP be permanently enjoined from committing any
acts of unfair competition, including the violations alleged in the First Cause of Action.
2. Pursuant to California Business and Professions Code section 17206, that HP be ordered to pay a civil penalty in
the amount of Two Thousand Five Hundred Dollars ($2,500) for each violation of California Business and Professions Code
section 17200 by HP, as proved at trial.
J.
,
That Plaintiff recover its costs of suit herein, including costs of investigation.
4. For such other and further relief as the Court may deem just and proper.
Dated: December 2006

PEOPLE OF THE STATE OF CALI FORNI A, v. HEWLETT-PACKARD COMPANY, 106CV-076081 CASE NO. : "
* FI NAL J UDGMENT AND PERMANENT I NJ UNCTI ON

Plaintiff, the People of the State of California, appearing through its attorneys, Bill Lockyer, Attorney General of the State of
California, by Chief Assistant Attorney General Tom Greene, Senior Assistant Attorney General Albert Norman Shelden, and
Deputy Attorney General Catherine Z. Ysrael, and defendant Hewlett-Packard Company, a Delaware corporation
(hereinafter, "HP"), appearing through its attorneys Morgan, Lewis & Bockius LLP, by Michael J. Holston and John H.
Hemann, and it appearing to the Court that the parties hereto, in the Stipulation for Entry of Final Judgment and Permanent
Injunction (hereafter "Stipulation") on file herein, have stipulated and consented to the entry of this Final Judgment and
Permanent Injunction without the taking of proof and without trial or adjudication of any fact or law herein,

D. The injunctive provisions of this Final Judgment and Permanent Injunction shall be applicable to defendant HP,
as well as its subsidiaries; its successors and the assigns of all or substantially all of the assets of its businesses; and its
directors, officers, employees, agents, independent contractors, partners, associates and representatives of each of them.

PERMANENT I NJ UNCTI ON

E. Pursuant to California Business and Professions Code section 17203, HP shall be and hereby is permanently
enjoined and restrained from directly or indirectly doing any of the following acts or practices in connection with the
conduct of investigations:

(1) Using false or fraudulent pretenses, representations, personations, or promises to obtain from a public utility any
confidential, privileged, or proprietary information, including customer or billing records, in violation of California Penal Code
section 538.5.

(2) Obtaining and unlawfully using personal identifying information, including social security numbers, in
violation of California Penal Code section 530.5.

(3) Knowingly accessing and without permission using any data, computer, computer system, or computer network
in order to (a) devise or execute any scheme or artifice to defraud,deceive, or extort, or (b) wrongfully obtain property or
data, in violation of California Penal Code section 502(c)(1)

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(4) Knowingly accessing and without permission taking, copying, or making use of any data from a computer,
computer system, or computer network, or taking or copying any supporting documentation, whether existing or residing
internal or external to a computer, computer system, or computer network, in violation of California Penal Code section
502(c)(2).

(5) Violating California Penal Code section 638, effective January 1, 2007, which prohibits the purchasing, offering
to purchase or conspiring to purchase any telephone "calling pattern record or list" without the written consent of the
subscriber or, through fraud or deceit, attempting to procure or obtain any telephone "calling pattern record or list," as set
forth in the statute.

(a) With regard to the CECO's oversight of HP's investigative practices, the CECO shall provide reports to the Independent
Director. The CECO will be authorized to hire appropriate staff and obtain other appropriate resources to perform his
duties, and also will be authorized to engage independent legal
advisors as necessary without obtaining approval from the CEO or General
Counsel, subject to review by the Independent Director and the board of directors.

(b) The CECO shall review HP's investigative practices (both as performed internally and as conducted by third parties),
the SBC, and codes of conduct applicable to outside investigation firms. The CECO shall consult with the

Qualified Authority discussed in paragraph F(3) below in order to review the findings and recommendations provided by
the Qualified Authority. On or before July 31, 2007, the CECO will report the results of this review and make
recommendations for improvements in those practices to the CEO, the Independent Director, and the Board of Directors.
HP will provide a copy of such report to the California Attorney General, which shall be exempt from disclosure under the
California Public Records Act pursuant to Government Code sections 6254(b), 6254(f), and 6254.15. Thereafter, the
CECO will provide annual reports, and additional reports as appropriate, to the CEO and Board of Directors
regarding HP's compliance with recommendations for improvements in HP's practices with respect to its SBC, applicable
codes of conduct and other policies regarding business ethics and privacy protection.

(3) HP has employed a qualified authority ("Qualified Authority") who is in the process of performing a
comprehensive review of HP's compliance with applicable legal requirements and ethical standards, as these standards
apply to HP's policies and practices regarding investigations. The Qualified Authority shall make recommendations for
ensuring that any investigations performed by or on behalf of HP are legal, ethical and appropriate. The Qualified Authority
shall report his or her findings directly to the CECO, the Independent Director and the Board of Directors. Based on this
review, HP will adopt internal processes and controls designed to prevent misconduct in future HP investigations. The
Qualified Authority's conclusions and recommendations shall be incorporated into the initial report written by the CECO
referenced in paragraph F(2)(b) above.

(4) HP shall expand the duties and responsibilities of HP's Chief Privacy Officer to include responsibility for reviewing HP's
investigation protocols to ensure they appropriately address matters related to privacy and ethics. Such investigation
protocols shall ensure there are adequate approval and oversight policies with respect to investigations conducted either
within HP or by its outside vendors.

(5) HP shall establish a Compliance Council chaired by the CECO. The members of the Council will include the CECO (chair),
the Chief Privacy Officer, the Deputy General Counsel for compliance matters, the head of Internal Audit, and several Ethics
and Compliance liaisons (chosen by the CECO from each business segment and function). The Compliance Council will

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develop, initiate, maintain and revise policies and procedures for the general operation of HP's ethics and compliance
programs consistent with applicable laws and regulations. The Compliance Council will provide written semi-annual reports
to each of the CEO, the Audit Committee and the Nominating and Governance Committee, and written annual reports to the
Board. Additionally, the Council's liaisons shall report to the Compliance Council as needed with respect to
the investigatory methods used in investigations within their area of responsibility, including those conducted by outside
vendors.

(6) The CECO will report any material violation of the codes of conduct applicable to outside investigation firms to the
head of the appropriate business segment or function, who, in consultation with the CECO, will take appropriate action.
The CECO will also report any material violation of the SBC, with respect to investigations conducted in-house, to the head
of the appropriate business segment or function, who, in consultation with the CECO, will take appropriate action. Such
action may include adverse employment actions, reallocation of resources, corrective actions or other methods reasonably
necessary to remediate the violation. If the head of the appropriate business segment or function does not take
appropriate action, the CECO shall report the violation to the CEO and the Independent Director. The CECO will report in
writing to the Compliance Council semi-annually on all actions taken, and the Compliance Council shall review the
appropriateness of the action taken, including for consistency as compared to other actions taken.

(7) In the event of a dispute regarding the appropriateness of any action to be taken by the Independent Director, the
CECO, the Qualified Authority, the Chief Privacy Officer, or the Compliance Council pursuant to this Final Judgment and
Permanent Injunction, the matter shall be referred by the Independent Director or the CECO to the Audit Committee for
resolution.

(8) HP shall enhance its current training program as follows:

(a) Under the direction of the CECO and the Compliance Council, the existing annual training requirement will be redesigned
and updated to ensure that the business ethics component plays a more prominent role.

(b) Additional training will be required for those HP employees who are engaged in the conduct of investigations for HP.
That training will be designed by the CECO, with input from the Chief Privacy Officer and, as appropriate, independent
counsel.

(c) The Board and senior management will be given training on potential and actual conflicts of interest that may arise with
respect to outside attorneys representing not only HP but also the Board or any of its Committees. The Board shall be
trained regarding the hiring of independent counsel and conduct of investigations.

(d) The Chief Privacy Officer will review the training program implemented pursuant to this paragraph to ensure that it
appropriately addresses privacy matters.

(e) The Independent Director shall approve the training program implemented pursuant to this paragraph 8.

(f) In addition to the applicable supplier codes of conduct, all outside investigation firms will be provided written standards
of conduct, developed by HP, that pertain specifically to privacy and business ethics concerns regarding investigatory
methods used in the course of investigations. HP shall require these outside investigation firms to certify that their
employees who work on HP matters have reviewed, understand, and will comply with these written standards of conduct.
Compliance with these written standards of conduct, as well as the applicable codes of conduct for outside vendors, shall be
a material term of any contract HP enters into with any outside investigation firm.

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K. Conditioned upon HP making full payment as provided under Paragraphs G, H,

20 and I of this Final Judgment and Permanent Injunction, defendant and all of its present and former officers, directors,
shareholders, any parents or affiliates, subsidiaries, employees, successors, predecessors and assigns (collectively, the
"Released Parties") are discharged from all claims, to the extent permitted by law, related to or arising from the conduct of
HP directors, officers, employees, agents, and contractors in connection with the "Kona Investigation" as described in the
Complaint filed in this matter that the Attorney General could have brought pursuant to California Business and Professions
Code sections 17200, or Penal Code sections 502(c)(l)-(2), 530.5, or 538.5.

Provided, however, notwithstanding any term of this Judgment or this paragraph, specifically reserved and excluded from
the scope and terms of this paragraph as to any entity or person are any and all of the following:

(1) Any criminal liability, save and except that HP shall not be barred or prevented from raising and asserting the
defenses of res judicata, collateral estoppel, and double jeopardy to the extent such defenses are applicable to any matter
that served as the basis for this litigation;

(2) Any personal injury, property damage, indemnification, or contribution claims by the State;

(3) Any tax liability;

(4) Any obligations created under this Judgment; and

(5) Any unlawful conduct not covered by the injunctive terms of this Judgment

L. Nothing in this: Final Judgment and Permanent Injunction shall be deemed permit or authorize any violation of
any law or regulation of the State of California or otherwise be construed to relieve Defendant of any on-going duty
to comply with such applicable laws,rules and regulations; nor shall anything herein be deemed to constitute
permission to engage in any acts or practices prohibited by such laws, rules or regulations.

M. The waiver or failure of any party to exercise any rights under this Final Judgment and Permanent Injunction shall not be
deemed a waiver of any right or any future rights.

N. This Final Judgment and Permanent Injunction shall take effect entry thereof, without further notice to
HP.

O. The clerk is ordered to enter this Final Judgment and Permanent Injunction forthwith

DATED:

DEC - 7 2006
J ACK KOMAR

MEMORANDUM IN SUPPORT OF MOTION FOR SANCTIONS

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14938 Camden Ave
Suite 47
San Jose, CA 95124
Fax: (408)677-5655


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v. )
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) MEMORANDUM IN SUPPORT
NEWS CORPORATION, NI GROUP OF MOTION FOR SANCTIONS

DOES 1-10 )
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Defendants. )
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TABLE OF CONTENTS
I. INTRODUCTION
II. SUMMARY OF ALLEGATIONS
III. ARGUMENT
IV. CONCLUSION


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NOTICE OF MOTION

TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD

PLEASE TAKE NOTICE that on July 21, 2014, at 10:00 a.m., or as soon thereafter as

the matter may be heard.

This motion is based upon this notice of motion, memorandum of points and

authorities, the such oral argument as the Court May consider in deciding this motion.


I. INTRODUCTION

1. Petitioner moves the Court to grant sanctions against Defendant and

Its attorneys that filed or co-filed or aided and abetted the May 19, 2014 filing

DEFENDANTS EX PARTE APPLICATION TO CONTINUE
MOTION FOR INTERVENTION OF BRAD GREENSPAN
PENDING THE COURTS DETERMINATION ON DEFENDANTS
MOTION TO DISMISS


Petitioner files this Motion for sanctions for two reasons:

A. Defendants May 19, 2014 Pleading because it contains false
statements and is underpinned by lies.

2. MR 4.1 provides that a lawyer shall not knowingly (1) make a false

statement of material fact or law to a third person.

i. B&PC 6068(d) prohibits California lawyers from making false

statements of fact or law to any judge or judicial officer.

ii. B&PC 6106 provides that the commission of any act of moral


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turpitude or dishonesty constitutes a cause for disbarment or suspension. B&PC !

6106 is sufficiently broad to prohibit false statements by lawyers to third parties.

iii. DR 7-102(A)(5) provides that "[i]n his representation of a client, a

lawyer shall not . . . [k]nowingly make a false statement of law or fact."

3. It is also clear that a California lawyer may not make false or misleading

statements in affidavits or other court papers. See, e.g., Lee v. State Bar

(1970) 2 Cal.3d 927, 88 Cal.Rptr. 361, 472 P.2d 449 (disciplinary action against

lawyer who made false statements in sworn testimony); Sturr v. State Bar (1959)

52 Cal.2d 125, 338 P.2d 897 (involving affidavit containing false statements);

Vickers v. State Bar (1948) 32 Cal.2d 247, 196 P.2d 10 (disciplinary action

against lawyer who made false statement in proceeding for letters of special

administration that he was the surviving husband of decedent).

4. This broad interpretation is supported by the case law in California. For

example, in People v. Petas (1st Dist. 1989) 214 Cal.App.3d 70, 262 Cal.Rptr.

467, the court held that a lawyer could be charged with a misdemeanor where the

lawyer presented a false or fraudulent claim for payment of insurance by falsely

representing in insurance demand letters that the client's injuries resulted

from a single accident when the lawyer knew that they did not.

B. Defendants May 15, 2014 telephone call to Plaintiffs attorneys
And false representations related to Claims of Petitioner contained
in Complaint in Intervention

5. Besides prohibiting false statements, the provisions of the B&PC prohibit

all forms of deceit, including selective presentation of incomplete facts. For

example, a California lawyer may not author a legal opinion on a transaction

that discloses only facts favorable to his client where the lawyer is aware of

other adverse material facts that may affect another's decision in the

transaction. Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (2nd Dist. 1976) 57


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Cal.App.3d 104, 128 Cal.Rptr. 901. But see Price v. Superior Court (2nd Dist.

1983) 139 Cal.App.3d 518, 188 Cal.Rptr. 832 (criminal defense counsel must

disclose to prosecutor that another prosecutor had previously refused a plea

bargain that defense counsel was now proposing to the prosecutor). Moreover, a

California lawyer has an affirmative duty to correct prior misleading statements

by disclosing true facts or new information to persons who may act in reliance

on the original statement. Failure to disclose correct facts or new information

constitutes tortious abuse in California. See, e.g., Dyke v. Zaiser (4th Dist.

1947) 80 Cal.App.2d 639, 182 P.2d 344.

6. B&PC 6128 provides that "every attorney is guilty of a misdemeanor who

. . . is guilty of any deceit or collusion, or consents to any deceit or collusion, with

intent to deceive the court or any party." Taken together, B&PC 6068(d) and B&PC

6128 require California lawyers to be truthful in all statements, whether to the court,

opposing parties, clients, or third parties.

III- ARGUMENT

7. Plaintiff admits to receiving and being in possession of petitioners

proposed Complaint in Intervention as of May 2, 2014.

Greenspan additionally served on Defendants local counsel a proposed
Complaint in Intervention, (Document 65 Filed 05/19/14 Page 5 of 12)

FALSE STATEMENT #1: Document 65 Filed 05/19/14 Page 6 of 12

Greenspan does not allege he is the victim of any allegedly wrongful
conduct by Defendants similar to that complained of by Huthart. (Karasik
Decl., 4.)

8. To determine if Statement #1 is false, the Court must review and compare

Defendants claim Petitioner does not allege any allegedly wrongful


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conduct by Defendants similar to that complained of by Huthart

9. The Huthart complaints first claim:

i. FIRST CLAIM FOR RELIEF (Violation Of The Stored
Communications Act, 18 U.S.C. 2701 and 2707- All Defendants)

ii. is exactly the same as Petitioners first claim:

FIRST CLAIM FOR RELIEF (Violation Of The Stored
(pg. 54 COMPLAINT IN INTERVENTION Exhibit #2 attached to
Motion to Intervene)

10. The Huthart complaints second claim:

i. SECOND CLAIM FOR RELIEF (Violation of Wiretap Act, 18
U.S.C. 2510, 2511 & 2520 All Defendants)

ii. is exactlty the same as Petitioners second claim:

SECOND CLAIM FOR RELIEF (Violation of Wiretap Act, 18 U.S.C.
2510, 2511 & 2520 All Defendants)
Motion to Strike)

11. The Huthart complaints third claim:

i. THIRD CLAIM FOR RELIEF (Violation of Article I, Section I Of
The California State Constitution All Defendants)

ii. is exactly the same as Petitioners third claim:

THIRD CLAIM FOR RELIEF (Violation of Article I, Section I Of

12. The Huthart complaints fourth claim:

i. FOURTH CLAIM FOR RELIEF (Violation of California Penal
Code 630, 631, 632, 632.7 & 637(2)(a) All Defendants)


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ii. is exactly the same as Petitioners fourth claim:

FOURTH CLAIM FOR RELIEF (Violation of California Penal

13. The Huthart complaints fifth claim:

i. FIFTH CLAIM FOR RELIEF (Violation of California Civil Code
1708.8(b), 1708.8(d) & 1708.8(e) All Defendants)

ii. is exactly the same as Petitioners fifth claim:

FIFTH CLAIM FOR RELIEF (Violation of California Civil Code

14. The Huthart complaints sixth claim:

i. SIXTH CLAIM FOR RELIEF (Intrusion Into Private Affairs
California Common Law All Defendants)

iii. is exactly the same as Petitioners sixth claim:

SIXTH CLAIM FOR RELIEF (Intrusion Into Private Affairs


Greenspan does not allege he is the victim of any voicemail hacking

15. Defendants claim petitioner does not allege he is the victim of any

voicemail hacking is a false statement and lie when compared to

Petitioners Complaint in Intervention that Defendant admits Defendant has received


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and reviewed.

i. 46. Defendants violated 18 U.S.C. 2701 (a)(1), in that they
accessed a facility through which an electronic communication service is provided.
(18 U.S.C. 2701(a)) by intentionally accessing Plaintiffs voicemails without
authorization and obtaining and/or altering authorized access to a wire or electronic
communication while in electronic storage by collecting and accessing temporarily
stored voicemails or those maintained for purposes of backup protection.
47. Additionally, Defendants violated 18 U.S.C. 2701(a)(2) because
they intentionally exceeded or had no authorization to access Plaintiffs
communications and obtained, altered, or prevented authorized access to a wire or
electronic communication while in electronic storage by interfering with Plaintiffs
temporarily stored voicemails, as disclosed hereinabove. Defendants had actual
knowledge of, participated in, directed and/or approved of, and benefitted from, this
practice (pg. 55 COMPLAINT IN INTERVENTION Exhibit #2 attached to Motion
to Strike)


he has already filed a lawsuit in Delaware advancing these very claims.

FALSE STATEMENT #4: (At footnote 4: Document 65 Filed 05/19/14 Page 9 of 12)

the existence of a pending action in Delaware where Greenspan is
advancing the same claims that are the subject of the proposed
intervention.

16. Delaware action cited by Defendants:

VI. CLAIM COUNTS on page 25, has 16 counts which consist of following:

COUNT # 1 - 1503 (a) Violation
COUNT # 2 - 1503. (b) Violation
COUNT #3 - 1503 (c) Violation
COUNT # 4 - 1503(d) Violations.
COUNT # 5 1504 TRIGGERED PETITIONER RIGHT TO CIVIL REMEDY
UNDER 1505(f)
COUNT # 6 - (BREACH OF AGREEMENT)
COUNT # 7 - (inseparable fraud) VIOLATION
COUNT #8 PAREXEL TYPE FRAUD VIOLATION
THRU FAILURE TO DISCLOSE COMPLIANCE FAILURES


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COUNT #9 RULING BASED ON DELAWARE STATUE AND CODE 1304
THAT 2004 MYSPACE TRANSFER AND 2005 TRANSACTIONS
FRAUDULENT
COUNT #10 VIOLATION OF DODD-FRANK WHISTLEBLOWER STATUTE
SECTION 922) &18 U.S.C. 1513(e))
COUNT # 11 - Blasisus violation
COUNT # 12 - Contempt Violation
COUNT # 13 - Ruling certain transactions after October 17, 2003 are Void.
COUNT # 14 - VOID Defendants right to exculpation under 102(b)(7)
COUNT #15 - Ruling certain transactions after October 17, 2003 are Void.
COUNT #16 INDEMNIFICATION AND ADVANCEMENT CLAIMS

17. Defendants lied in May 19, 2014 pleading because they read page 20 of

Motion for Intervention filed May 2, 2014 which stated:

Claims And The Underlying Actions
33. The Proposed Intervenor claims are based upon same
violations of federal law as the underlying action.

And the first page of the Complaint in Intervention shows the Claims in the Complaint

in Intervention are identical to Plaintiff Huthart and are not the same claims filed in

Delaware which are listed in paragraph 16 above. Comparing:

1. This is a civil action brought against Defendants for damages for violations
of Plaintiffs right to privacy; for the unlawful access to stored communicationl
and for the intrusion into, interception of, email and other wire communications
while Plaintiff was living in Los Anglees in violation of 18 U.S.C. 2701, 2707;
18 U.S.C. 2510, 2511, 2520; Article I, Section 1of the California State
Constituion; 630-637.0 of the California Penal Code; 1708.8 of the California
Civil Code; and California common law.
JURISDICTION AND VENUE 2. This action is brought pursuant to 18 U.S.C.
2701 and 2707, 18 U.S.C. 2510, 2511 and 2520.

1 Among other things, Greenspans intervention pleadings violate Federal Rule
of Civil Procedure Rule 8, fail to state any coherent much less cognizable claim
for relief,

COMPARE PRAYER FOR RELIEF


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18. PAGE 35-37 HUTHART ORIGINALLY AND ONLY FILED
COMPLAINT:

1. An award of the maximum statutory actual damages, including profits made by
Defendanrts, pursuant to 18 U.S.C. 2707;
2. Punitive damages, pursuant to 18 U.S.C. 2707(b)(3);
3. Reasonable attorneys fees and costs, pursuant to 18 U.S.C. 2707(b)(3)l and

On the Second Claim for Relief.

1. The greater of actual damages and any profits made by Defendants by
their violations of 18 U.S.C. 2520 and 2511, or statutory damages, pursuant to 18
U.S.C. 2520
2. Punitive damages, pursuant to 18 U.S.C. 2520
4. Such other and further relief as the Court mauy deem just, proper and equitable.

2.Such other and further relief as the Court may deem just, proper and equitable.

On the Fourth Claim For Relief:
1. The greater of statutory damages, pursuant to 637(2)(a)(1) or three times the
actual damages Plaintiff suffered for each instance in which Defendants violated
631 and 632 of the California Penal Code, pursuant to 637(2)(a)(2)l and


1. An award of three times Plaintiffs general and specific damages, pursuant to
1708.8(d) of the California Civil Code;

2. Disgorgement of any proceeds or other consideration obtained by Defendants as a
result of thei violations of Plaintiffs rights under 1708.8(d) of the Californai
Civil Code;
3. Punitive damages by reason of Defendants violations of Plaintiffs rights under
1708.8(d) of the California Civil Code; and
4. Such other and further relief as the Court may deem just, proper and
equitable. On the Sixth Claim for Relief:


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DEMAND FOR JURY TRIAL:

VS.

19. PETITIONER COMPLAINT IN INTERVENTION: PRAYER FOR
RELIEF (pg. 67) (attached as Exhibit #1 in Motion to Strike)



U.S.C. 2520
4. Such other and further relief as the Court mauy deem just, proper and equitable.





result of their violations of Plaintiffs rights under 1708.8(d) of the Californai


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Civil Code;

20. Defendants misled Plaintiff on May 15, 2014

i. Page 2 ex parte application states:

Notice of this Application was provided to Plaintiffs counsel by telephone call on
May 15, 2014, and Plaintiffs counsel advises that Plaintiff does not joint the ex parte
and intends to oppose the motion to intervene. (Declaration of Louis A. Karasik
(Karasik Decl.), 7.)

IV. CONCLUSION

21. For the reasons stated above, namely false statements and lies in

Defendants pleading, Petitioner requests Court approve this Motion for Sanctions

22. Legal Standard for FRCP Rule 11

Under Rule 11, the Federal Rules of Civil Procedure require that every

paper presented to the court with factual contentions have evidentiary support, and

that denials of factual contentions are warranted on the evidence or, if specifically so

identified, are reasonably based on belief or a lack of information. Fed. R. Civ. P. 11.

The Rule provides for sanctions against any attorney, law firm, or party that violated

the rule or is responsible for the violation. Id.; see also Worrell v. Houston Can! Academy,

2008 WL 2753405 at *3 (5th Cir. July 16, 2008).


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AUTHORITY FOR SANCTIONS

23. CA Statue 2023.010 provides the statuatory authority for sanctions to be

awarded against Defendant and/or his attorney of record.

DEFENDANTS FALSE STATEMENTS

24. MR 4.1 provides that a lawyer shall not knowingly (1) make a false statement of material

fact or law to a third person.

i. B&PC 6068(d) prohibits California lawyers from making false statements of

fact or law to any judge or judicial officer.

ii. B&PC 6106 provides that the commission of any act of moral turpitude or

dishonesty constitutes a cause for disbarment or suspension. B&PC ! 6106 is sufficiently broad to

prohibit false statements by lawyers to third parties.

iii. DR 7-102(A)(5) provides that "[i]n his representation of a client, a lawyer

shall not . . . [k]nowingly make a false statement of law or fact."

FALSE CLAIMS









26. `Besides prohibiting false statements, the provisions of the B&PC prohibit all

forms of deceit, including selective presentation of incomplete facts. For




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1947) 80 Cal.App.2d 639, 182 P.2d 344.

ii. C.O.P.R.A.C. Op. 93-131 (lawyer may not indirectly communicate using a client as

a ploy to obtain an unfair advantage;

iii.B&PC 6128 provides that "every attorney is guilty of a misdemeanor who . . . is

guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the

court or any party." Taken together, B&PC 6068(d) and B&PC 6128 require California lawyers to

be truthful in all statements, whether to the court, opposing parties, clients, or third parties.

DATED: May 23, 2014


Brad D. Greenspan
Pro Se

MEMORANDUM IN SUPPORT OF MOTION TO STRIKE

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14938 Camden Ave
Suite 47
San Jose, CA 95124
Fax: (408)677-5655


)
v. )
)
)
)
)
) MEMORANDUM IN SUPPORT
OF MOTION TO STRIKE

DOES 1-10 )
)
Defendants. )
)
)


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TABLE OF CONTENTS
I. INTRODUCTION
III. ARGUMENT

IV. CONCLUSION


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I. INTRODUCTION

1. Petitioner moves the Court to strike its May 19, 2014 filed:

DEFENDANTS EX PARTE APPLICATION TO CONTINUE
MOTION FOR INTERVENTION OF BRAD GREENSPAN
PENDING THE COURTS DETERMINATION ON DEFENDANTS
MOTION TO DISMISS


2. Petitioner files this Motion to Strike Defendants May 19, 2014

Pleading because it contains false statements and is underpinned by lies.

3. Under 12(f) petitioner may file a Motion to Strike

any insufficient defense, redundancy, or scandalous matter

4. Further, MR 4.1 provides that a lawyer shall not knowingly (1) make a false

statement of material fact or law to a third person.

i. B&PC 6068(d) prohibits California lawyers from making false

statements of fact or law to any judge or judicial officer.

ii. B&PC 6106 provides that the commission of any act of moral

turpitude or dishonesty constitutes a cause for disbarment or suspension. B&PC !

6106 is sufficiently broad to prohibit false statements by lawyers to third parties.

iii. DR 7-102(A)(5) provides that "[i]n his representation of a client, a

lawyer shall not . . . [k]nowingly make a false statement of law or fact."






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6. This broad interpretation is supported by the case law in California. For

example, in People v. Petas (1st Dist. 1989) 214 Cal.App.3d 70, 262 Cal.Rptr.

467, the court held that a lawyer could be charged with a misdemeanor where the

lawyer presented a false or fraudulent claim for payment of insurance by falsely

representing in insurance demand letters that the client's injuries resulted

from a single accident when the lawyer knew that they did not.

7. Besides prohibiting false statements, the provisions of the B&PC prohibit

all forms of deceit, including selective presentation of incomplete facts. For












1947) 80 Cal.App.2d 639, 182 P.2d 344.

8. B&PC 6128 provides that "every attorney is guilty of a misdemeanor who

. . . is guilty of any deceit or collusion, or consents to any deceit or collusion, with


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intent to deceive the court or any party." Taken together, B&PC 6068(d) and B&PC

6128 require California lawyers to be truthful in all statements, whether to the court,

opposing parties, clients, or third parties.

ARGUMENT

9. Plaintiff admits to receiving and being in possession of petitioners

proposed Complaint in Intervention as of May 2, 2014.

Greenspan additionally served on Defendants local counsel a proposed
Complaint in Intervention, (Document 65 Filed 05/19/14 Page 5 of 12)


Greenspan does not allege he is the victim of any allegedly wrongful
conduct by Defendants similar to that complained of by Huthart. (Karasik
Decl., 4.)

10. To determine if Statement #1 is false, the Court must review and compare

Defendants claim Petitioner does not allege any allegedly wrongful

conduct by Defendants similar to that complained of by Huthart

11. The Huthart complaints first claim:

i. FIRST CLAIM FOR RELIEF (Violation Of The Stored

ii. is exactly the same as Petitioners first claim:

FIRST CLAIM FOR RELIEF (Violation Of The Stored

12. The Huthart complaints second claim:

i. SECOND CLAIM FOR RELIEF (Violation of Wiretap Act, 18


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U.S.C. 2510, 2511 & 2520 All Defendants)

ii. is exactlty the same as Petitioners second claim:

SECOND CLAIM FOR RELIEF (Violation of Wiretap Act, 18 U.S.C.
2510, 2511 & 2520 All Defendants)

13. The Huthart complaints third claim:

i. THIRD CLAIM FOR RELIEF (Violation of Article I, Section I Of

ii. is exactly the same as Petitioners third claim:

THIRD CLAIM FOR RELIEF (Violation of Article I, Section I Of

14. The Huthart complaints fourth claim:

i. FOURTH CLAIM FOR RELIEF (Violation of California Penal

ii. is exactly the same as Petitioners fourth claim:

FOURTH CLAIM FOR RELIEF (Violation of California Penal

15. The Huthart complaints fifth claim:

i. FIFTH CLAIM FOR RELIEF (Violation of California Civil Code

ii. is exactly the same as Petitioners fifth claim:

FIFTH CLAIM FOR RELIEF (Violation of California Civil Code


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16. The Huthart complaints sixth claim:

i. SIXTH CLAIM FOR RELIEF (Intrusion Into Private Affairs

iii. is exactly the same as Petitioners sixth claim:

SIXTH CLAIM FOR RELIEF (Intrusion Into Private Affairs


Greenspan does not allege he is the victim of any voicemail hacking

17. Defendants claim petitioner does not allege he is the victim of any

voicemail hacking is a false statement and lie when compared to

Petitioners Complaint in Intervention that Defendant admits Defendant has received

and reviewed.

i. 46. Defendants violated 18 U.S.C. 2701 (a)(1), in that they
accessed a facility through which an electronic communication
service is provided. (18 U.S.C. 2701(a)) by intentionally accessing
Plaintiffs voicemails without authorization and obtaining and/or
altering authorized access to a wire or electronic communication
while in electronic storage by collecting and accessing temporarily
stored voicemails or those maintained for purposes of backup
protection.
47. Additionally, Defendants violated 18 U.S.C. 2701(a)(2) because
they intentionally exceeded or had no authorization to access
Plaintiffs communications and obtained, altered, or prevented
authorized access to a wire or electronic communication while in
electronic storage by interfering with Plaintiffs temporarily stored


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voicemails, as disclosed hereinabove. Defendants had actual
knowledge of, participated in, directed and/or approved of, and
benefitted from, this practice
(pg. 54-69 COMPLAINT IN INTERVENTION Exhibit #2 attached to


he has already filed a lawsuit in Delaware advancing these very claims.


the existence of a pending action in Delaware where Greenspan is
advancing the same claims that are the subject of the proposed
intervention.

18. Delaware action cited by Defendants:

VI. CLAIM COUNTS on page 25, has 16 counts which consist of following:

COUNT # 5 1504 TRIGGERED PETITIONER RIGHT TO CIVIL REMEDY
UNDER 1505(f)
THRU FAILURE TO DISCLOSE COMPLIANCE FAILURES
COUNT #9 RULING BASED ON DELAWARE STATUE AND CODE 1304
THAT 2004 MYSPACE TRANSFER AND 2005 TRANSACTIONS
FRAUDULENT
COUNT #10 VIOLATION OF DODD-FRANK WHISTLEBLOWER STATUTE
SECTION 922) &18 U.S.C. 1513(e))
COUNT # 13 - Ruling certain transactions after October 17, 2003 are Void.
COUNT # 14 - VOID Defendants right to exculpation under 102(b)(7)
COUNT #15 - Ruling certain transactions after October 17, 2003 are Void.


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19. Defendants lied in May 19, 2014 pleading because they read page 20 of

Motion for Intervention filed May 2, 2014 which stated:

violations of federal law as the underlying action.

And the first page of the Complaint in Intervention shows the Claims in the Complaint

in Intervention are identical to Plaintiff Huthart and are not the same claims filed in

Delaware which are listed in paragraph 16 above. Comparing:

1. This is a civil action brought against Defendants for damages for violations
of Plaintiffs right to privacy; for the unlawful access to stored communicationl
and for the intrusion into, interception of, email and other wire communications
while Plaintiff was living in Los Anglees in violation of 18 U.S.C. 2701, 2707;
18 U.S.C. 2510, 2511, 2520; Article I, Section 1of the California State
Constituion; 630-637.0 of the California Penal Code; 1708.8 of the California
Civil Code; and California common law.
JURISDICTION AND VENUE 2. This action is brought pursuant to 18 U.S.C.
2701 and 2707, 18 U.S.C. 2510, 2511 and 2520.

COLLATERAL CHALLENGE AND ATTACK WITHOUT GRANTING
MOTION TO STRIKE INEQUITABLE, UNTIMELY, DEFENDANTS EX
PARTE APPLICATION TO CONTINUE MOTION FOR INTERVENTION
ERRONEOUSLY GIVES DEFENDANT EX PARTE UNREPLIABLE
SUMMARY JUDGEMENT PLEADING


1 Among other things, Greenspans intervention pleadings violate Federal Rule
of Civil Procedure Rule 8, fail to state any coherent much less cognizable claim
for relief,

COMPARE PRAYER FOR RELIEF

20. PAGE 35-37 HUTHART ORIGINALLY AND ONLY FILED
COMPLAINT:


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U.S.C. 2520
4. Such other and further relief as the Court mauy deem just, proper and
equitable.





result of thei violations of Plaintiffs rights under 1708.8(d) of the Californai
Civil Code;


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VS.

21. PETITIONER COMPLAINT IN INTERVENTION: PRAYER FOR
RELIEF (pg. 67) (attached as Exhibit #1)



U.S.C. 2520
4. Such other and further relief as the Court mauy deem just, proper and
equitable.





result of their violations of Plaintiffs rights under 1708.8(d) of the Californai
Civil Code;


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22. Defendants misled Plaintiff on May 15, 2014

i. Page 2 ex parte application states:

Notice of this Application was provided to Plaintiffs counsel by telephone call on
May 15, 2014, and Plaintiffs counsel advises that Plaintiff does not joint the ex parte
and intends to oppose the motion to intervene. (Declaration of Louis A. Karasik
(Karasik Decl.), 7.)

IV. CONCLUSION

For the reasons stated above, namely false statements and lies in Defendants pleading,

Petitioner requests Court approve this Motion to Strike May 19, 2014 Pleading by

Defendant.

DATED: May 23, 2014


Brad D. Greenspan
Pro Se


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EXHIBIT #1


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EXHIBIT #2


CIVIL MINUTESGENERAL

Case No. CV-13-04253-MWF (AJWx) Date: May 21, 2014
Title: Eunice Huthart -v- News Corporation, et al.

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CIVIL MINUTESGENERAL 1

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Present: The Honorable MICHAEL W. FITZGERALD, U.S. District J udge

Deputy Clerk: Court Reporter:
Rita Sanchez Not Reported

Attorneys Present for Plaintiff: Attorneys Present for Defendant:
None Present None Present

Proceedings (In Chambers): ORDER GRANTING DEFENDANTS MOTION TO
DISMISS FOR FORUM NON CONVENIENS [41],
DENYING MOTION TO INTERVENE AS MOOT
[61], AND DENYING EX PARTE APPLICATION
TO CONTINUE MOTION TO INTERVENE AS
MOOT [65]

This matter is before the Court on the Motion to Dismiss Under FRCP Rules
12(b)(2), 12(b)(6), and for Forum Non Conveniens (the Motion), filed by Defendants
News Corporation (News Corp.), NI Group Limited f/k/a News International
Limited (NI), and News Group Newspapers Limited (NGN). (Docket No. 41).
The Court read and considered the papers filed on this Motion, and held a hearing on
February 24, 2014. Following additional briefing, the Court GRANTS the Motion.
The underlying facts here do not seem to be in dispute, at least by these parties.
It appears, and certainly is alleged, that Plaintiff Eunice Huthart has suffered a
grotesque invasion of her privacy. This harm arose for no reasons other than Hutharts
successfully pursuing a demanding career associated with Los Angeles and having a
friend who likewise is at the summit of success in an industry associated with Los
Angeles. Nonetheless, for the reasons explained in this Order, the Court concludes that
Huthart must obtain her relief from the courts of England and Wales.
Background
Case 2:13-cv-04253-MWF-AJW Document 66 Filed 05/21/14 Page 1 of 22 Page ID #:2069
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On J une 13, 2013, Huthart initiated this action by filing a Complaint in this
Court. (Docket No. 1). The Complaint alleges that Huthart is a citizen of the United
Kingdom and resides in Liverpool, England. (Compl. 4). But between early J anuary
2004 to mid-J une 2004, and from mid-March 2005 to mid-May 2005, Huthart lived
and worked in Los Angeles, California as a professional stunt double for actress
Angelina J olie. (Compl. 4). The Complaint alleges that during this time period,
various British media companies, primarily agents working for two British
newspapers, The Sun and News of the World, unlawfully intercepted her voice-mail
messages on cellular telephone systems to obtain information about J olie. (Compl.
11, 12, 16-21, 45-68). The Complaint alleges that these actions were part of a large-
scale hacking scheme (Compl. 11-44), which have received much media attention
and will be referred to in this Order as the Hacking Scheme.
The Complaint alleges six claims: (1) violation of the Stored Communications
Act, 18 U.S.C. 2701, 2707; (2) violation of the Wiretap Act, 18 U.S.C. 2510,
2511, 2520; (3) violation of the California Constitution, art. I, 1; (4) violation of
California Penal Code 630, 631, 632, 632.7, 637(2)(a); (5) violation of California
Civil Code 1708.8(b), 1708.8(d), 1708.8(e); and (6) a common law claim for
intrusion into private affairs.
On September 20, 2013, Defendants filed this Motion. On December 10, 2013,
Huthart filed an Opposition to Defendants Motion to Dismiss (the Opposition).
(Docket No. 49). On J anuary 22, 2014, Defendants filed a Reply in Support of
Defendants Motion to Dismiss (the Reply). (Docket No. 54). The briefs complied
with the deadlines and page limits set by this Court. (See Docket Nos. 40, 47).
After the hearing on February 24, 2014, the Court ordered supplemental briefing
on two issues: (1) whether Englands managed litigation system set up to deal with
claims arising from the Hacking Scheme, the Mobile Telephone Voicemail
Interception Litigation (MTVIL), would accept Hutharts claim; and (2) whether
Huthart would otherwise be able to bring a lawsuit in the regular civil litigation system
in England. (Docket No. 56).
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On March 17, 2014, Defendants filed a Supplemental Briefing Pursuant to the
Courts February 25, 2014 Order (Defendants Brief). (Docket No. 57). That same
day, Huthart also filed a Supplemental Memorandum of Position and Authorities in
Opposition to Defendants Motion to Dismiss (Hutharts Brief). (Docket No. 58).
Both briefs were timely filed.
Evidentiary Objections
Both sides have submitted numerous evidentiary objections. (See Docket Nos.
50-1, 50-2, 50-3, 50-4, 50-5, 50-6, 54-9, 54-10, 54-11, 54-12). Most of these
objections are not aimed at the evidence relevant to the forum non conveniens analysis,
on which this Order turns. To the extent that the objections are relevant to the forum
non conveniens analysis, they challenge very specific details for lack of foundation.
However, the Hacking Scheme and the investigations and legal proceedings related to
it are set forth in sufficient detail in the Complaint itself. Moreover, these events have
been the subject of significant media attention worldwide. Furthermore, it does not
appear that the parties dispute Hutharts access to the regular civil litigation system of
England, as opposed to the specialized venues established to address the Hacking
Scheme. Accordingly, the Courts analysis and conclusion would have not differed,
regardless of whether the objections were sustained are overruled.
Therefore, both parties objections are OVERRULED as moot.
Requests for Judicial Notice
Pursuant to Federal Rule of Evidence 201, the Court may take judicial notice of
a fact that is not subject to reasonable dispute because it: (1) is generally known
within the trial courts territorial jurisdiction; or (2) can be accurately and readily
determined from sources whose accuracy cannot reasonably be questioned. Fed. R.
Evid. 201(b).
Defendants filed two requests for judicial notices: (1) Request for J udicial
Notice in Support of Motion to Dismiss (Defendants First Request) (Docket No. 41-
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8), and (2) Request for J udicial Notice in Support of Defendants Reply in Support of
Motion to Dismiss (Defendants Second Request). (Docket No. 54-1). Of the
documents for which Defendants seek judicial notice, only two are relevant to the
forum non conveniens analysis.
First, Exhibit 1 of the Declaration of Christa J ane Band (the Band
Declaration) (Docket No. 41-2) is a court order in the consolidated litigation in
England relating to the Hacking Scheme. (Band Decl., Ex. 1). Because that litigation
is related to this one, the Court order is appropriate for judicial notice. See United
States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004) (citing United States v.
Wilson, 631 F.2d 118, 119 (9th Cir. 1980)) (stating that a court may take judicial notice
of court records in another case).
Second, Exhibit 2 of the Band Declaration is the Terms of Reference of the
Leveson Inquiry, which investigated the Hacking Scheme. (Band Decl., Ex. 2).
Exhibit 2 was taken from the Leveson Inquirys website, and is appropriate for judicial
notice. See Matthews v. Natl Football Council, 688 F.3d 1107, 1113 & n.5 (9th Cir.
2012) (taking judicial notice of relevant statistics available on the NFLs website);
OToole v. Northrop Grumman Corp., 499 F.3d 1218, 1225 (10th Cir. 2007) (It is not
uncommon for courts to take judicial notice of factual information found on the world
wide web.).
Therefore, Defendants First Request is GRANTED as to these two Exhibits.
The remainder of Defendants First Request and Defendants Second Request is
DENIED as irrelevant.
On December 10, 2013, Huthart filed a Request for J udicial Notice in
Opposition to Motion to Dismiss (Hutharts Request). (Docket No. 49-1). Of the
documents for which Huthart seeks judicial notice, items 1-7, 13, and 15 are relevant to
the forum non conveniens analysis. These documents consist of relevant public
documents found online and documents filed in relevant litigation. For the reasons
stated above, both of these categories of documents are appropriate for judicial notice.
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Therefore, Hutharts Request is GRANTED as to items 1-7, 13, and 14. The
remainder of Hutharts Request is DENIED as irrelevant.
Motion to Dismiss
The Motion seeks dismissal of this action on four grounds: (1) forum non
conveniens; (2) lack of personal jurisdiction, under Federal Rule of Civil Procedure
12(b)(2), as to NI and NGN, which are citizens of the United Kingdom; (3) failure to
state a claim, under Rule 12(b)(6), as to News Corp., on the ground that the Complaint
fails to establish a basis to pierce the corporate veil; and (4) failure to state a claim,
under Rule 12(b)(6), on the grounds that two of the statutes governing Hutharts claims
do not apply to extraterritorial conduct, three of her claims lack sufficient factual
allegations, and all claims are time-barred. (Mot. at 6-7).
This Court can examine the merits of the forum non conveniens argument before
addressing the jurisdictional issues. The Supreme Court has stated:
We hold that a district court has discretion to respond at once to a defendants
forum non conveniens plea, and need not take up first any other threshold
objection. In particular, a court need not resolve whether it has authority to
adjudicate the cause (subject-matter jurisdiction) or personal jurisdiction over
the defendant if it determines that, in any event, a foreign tribunal is plainly the
more suitable arbiter of the merits of the case.
Sinochem Intl Co. Ltd. v. Malaysia Intl Shipping Corp., 549 U.S. 422, 425, 127 S. Ct.
1184, 167 L. Ed. 2d 15 (2007).

Because the proposed alternative forum in this action is England, the appropriate
analysis is the forum non conveniens doctrine, as opposed to a motion to transfer
pursuant to 28 U.S.C. 1404. See Atl. Marine Constr. Co., Inc. v. U.S. Dist. Court for
W. Dist. of Tex., 571 U.S. __, 134 S. Ct. 568, 580 (2013) (stating that 1404 is the
appropriate mechanism when the transferee forum is within the federal court system,
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but that courts should apply the doctrine of forum non conveniens in cases seeking
transfer to a nonfederal forum); Sinochem Intl, 549 U.S. at 430 (same).

Under the forum non conveniens doctrine, the party moving to dismiss bears the
burden of showing that (1) there is an adequate alternative forum for this action, and
(2) the balance of private and public interest factors favors dismissal. See Sinochem
Intl, 549 U.S. at 429 (summarizing the legal standard for forum non conveniens).
Adequate Alternative Forum
The first requirement for a forum non conveniens dismissal is that an adequate
alternative forum is available to the plaintiff. Lueck v. Sundstrand Corp., 236 F.3d
1137, 1143 (9th Cir. 2001). The Supreme Court has held that an alternative forum
ordinarily exists when the defendant is amenable to service of process in the foreign
forum. Id. Moreover, [t]he foreign forum must provide the plaintiff with some
remedy for [her] wrong in order for the alternative forum to be adequate. Id.
Here, England provides an adequate alternative forum.
With regard to jurisdiction and service of process, England would have
jurisdiction over NI and NGN because they are incorporated, registered, and
headquartered in England. (Declaration of Craig Wyndham Orr QC 22-24 (the Orr
Declaration) (Docket No. 41-4)). England would also have jurisdiction over News
Corp., the only non-English Defendant, because it has agreed to waive any challenge to
personal jurisdiction in the English courts. (Orr Decl. 25; see also Mot. at 8).
Moreover, it appears that England may have jurisdiction over News Corp., even if it
did not submit to personal jurisdiction there. (Orr Decl. 26-27).
With regard to the entity consenting to personal jurisdiction, Defendants explain
that on J une 28, 2013, News Corp. separated into two independent publicly traded
companies. (Declaration of Gerson A. Zweifach 2 (the Zweifach Declaration)
(Docket No. 41-7)). The entity named in the Complaint, News Corp., changed its
name to 21st Century Fox, Inc. (21st Century) and continued to be the parent
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company of most of News Corp.s entertainment-related entities. (Zweifach Decl. 2).
A new company was also created bearing the name News Corporation (New News
Corp.) and became the parent company of most of News Corp.s news media-related
entities. (Zweifach Decl. 2). News Corp.s successor, 21st Century, agrees to waive
any challenge to personal jurisdiction. (Zweifach Decl. 3).
In the supplemental briefing, Huthart argues for the first time that she cannot
bring her claims against all Defendants in England because the real party in interest is
not 21st Century, but New News Corp., which did not consent to jurisdiction.
(Hutharts Brief at 2-4). Huthart argues that the print media entities involved in the
Hacking Scheme are now attributed to New News Corp., that it can be inferred that the
bulk of relevant documentary evidence is maintained by New News Corp., and that
Securities and Exchange Commission filings confirm that New News Corp. is liable
for civil claims arising out of the hacking scheme. (Hutharts Brief at 3).
In response, Defendants filed an Objection to Plaintiffs Supplemental
Memorandum and Request to File Supplemental Declaration (Defendants
Objection) on March 21, 2014, after the deadline for supplemental briefing. (Docket
No. 59). Defendants object to Hutharts insinuation that Defendants misled the Court
when they asserted that 21st Century would consent to personal jurisdiction.
(Defendants Objection at 1). Defendants explain that 21st Century was the entity that
consented to personal jurisdiction because News Corp., the defendant named in the
Complaint, essentially became 21st Century. (Id.). Defendants also request leave to
file the Second Declaration of Gerson A. Zweifach (the Second Zweifach
Declaration) (Docket No. 59-1), attesting that if Huthart also sues New News Corp. in
England, New News Corp. would consent to personal jurisdiction. (Second Zweifach
Decl. 3; see also Defendants Objection at 2).
Huthart, in turn, objects to the Defendants Objection and the Second Zweifach
Declaration because they were filed after the deadline for supplemental briefing. (See
Plaintiffs Objection to Defendants March 21, 2014 Filing and Request That It Be
Stricken from the Record at 2 (Docket No. 60)).
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While Huthart is correct that these documents were filed late, the Court refrains
from striking them and permits the filing of the Second Zweifach Declaration.
Defendants Objection responded to a new argument in Hutharts Brief, which was
arguably outside the scope of the supplemental briefing. Moreover, the Court would
have likely asked for a response from Defendants to clarify which is the correct entity
to consent to personal jurisdiction. The Court also notes that this issue could have
been raised in the Opposition because the first Zweifach Declaration was filed with the
Motion. However, the Court does not treat the issue as waived. Rather, it is resolved
for the reasons stated.
In any event, there appears to be no dispute at this point that both 21st Century
and New News Corp. would be willing to submit to personal jurisdiction in England.
Therefore, Huthart would be able to sue all Defendants in England. Contrary to
Hutharts contention (see Opp. at 6), the adequate alternative forum requirement will
be satisfied when the defendant is amenable to process in the other jurisdiction.
Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255, n. 22, 102 S. Ct. 252, 70 L. Ed. 2d 419
(1981) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S. Ct. 839, 91 L. Ed.
1055 (1947), superseded by statute on other grounds).
It further appears that England can provide some remedy to Huthart. Defendants
described two avenues in England specifically created to handle claims related to the
Hacking Scheme: (1) a voluntary compensation scheme, and (2) the MTVIL system in
the English High Court. (Mot. at 4).
Huthart has submitted the Declaration of Mark Lewis (the Lewis Declaration)
(Docket No. 49-3), which establishes that the first avenue is now closed. (Lewis Decl.
7). Therefore, the Court does not consider the voluntary compensation scheme as an
available venue.
Huthart also argues that the second avenue, the MTVIL, is unavailable to her.
(Hutharts Brief at 5). The MTVIL is a managed litigation system that was instituted
in the English courts to deal with claims arising from the Hacking Scheme.
(Declaration of Hugh Tomlinson 7 (the Tomlinson Declaration) (Docket No. 58-3);
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see also Band Decl. 4-8; Third Declaration of Craig Wyndham Orr QC 4-5 (the
Third Orr Declaration) (Docket No. 57-2)). The MTVIL provides consolidated case
management, expedited discovery from the London Metropolitan Police Service and
NGN, mechanisms to obtain discovery from third parties, early assessment of claims,
and procedures for managing litigation costs. (Band Decl. 7). All cases filed in the
English civil courts that fall within the scope of the MTVIL are automatically referred
to the MTVIL. (Id.). Based on the criteria for MTVIL claims (Third Orr Decl. 5),
Hutharts claims likely fall within the scope of the MTVIL.
The litigation of claims in the MTVIL has proceeded in tranches. The current
tranche of claims, Tranche 2, closed on J anuary 31, 2014. (Tomlinson Decl. 10-11).
Huthart also asserts that the managing judge for the MTVIL is disinclined to further
extend the cut-off date for Tranche 2, and no new claims can join Tranche 2.
(Hutharts Brief at 5 (citing Tomlinson Decl. 11-12)). Moreover, the MTVIL has
not yet created a Tranche 3. (Tomlinson Decl. 16). If Huthart were to file claims in
the English courts that fell within the scope of the MTVIL, her claims would be stayed
pending the resolution of the Tranche 2 claims. (Tomlinson Decl. 13-15; see also
Third Orr Decl. 8-9). Defendants assert that Huthart would nonetheless be able to
apply to the court to lift the stay and to have her claim included with the Tranche 2
claims set for trial on October 1, 2014. (Third Orr Decl. 9).
The above facts do not demonstrate that the MTVIL is unavailable to Huthart.
They simply indicate that if Hutharts claims were referred to the MTVIL, their
resolution may be delayed because they were filed after Tranche 2 closed. Huthart has
cited no legal authority establishing that such a stay or delay of resolution renders a
forum inadequate.
Even if the MTVIL is no longer open to Huthart, Defendants have established
that the regular civil litigation processes of the courts of England and Wales remain
open to Huthart. (Reply at 4). Defendants expert attests that [i]f a claim does not
qualify for inclusion in the MTVIL, it will be able to be brought in any division of the
High Court in the normal way. (Third Orr Decl. 7). In fact, Huthart acknowledges
that it is technically correct that if no MTVIL Tranche 3 is established, then [she] can
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file suit in the English Civil Court Proceedings. (Hutharts Brief at 6). However,
Huthart objects that proceeding in the regular civil court would be the litigation
equivalent of purgatory because her claims would be stayed pending the resolution of
MTVIL claims. (Hutharts Brief at 7 & n.4). As noted above, the fact or possibility
that Hutharts claims might be stayed does not render England an unavailable or
otherwise inadequate forum. In our court system, for example, claims are routinely
stayed to facilitate efficient administration, to avoid duplicative actions, and for other
docket management reasons. Such stays do not mean that our courts are closed to
those claims.
Therefore, Defendants have established that both the English court system and
the MTVIL are available to Huthart to bring her claims. Moreover, England would
provide some remedy for Hutharts claims, as discussed below.
English law recognizes claims for breach of confidence and misuse of private
information. (Orr Decl. 11-16). Under English law, remedies for these claims
include compensatory damages, account of profits, and injunctive relief. (Orr Decl.
17). Moreover, England has enacted a number of statutes, which prohibit the
interception of communications over telecommunication systems, the unauthorized
disclosure of personal data, and the unauthorized accessing of data held on a computer.
(Orr Decl. 18). Therefore, English law provides some remedy for Hutharts injuries.
Huthart argues that the MTVIL is an inadequate forum because it is structured to
address claims against NGN and Glenn Mulcaire (who is the main NGN investigator
implicated in the Hacking Scheme), whereas she has also alleged claims against NI and
News Corp. (Hutharts Brief at 8). However, Defendants have established that claims
against NI and News Corp. would not be barred from the MTVIL, so long as Hutharts
claims meet the basic criteria. (Third Orr Decl. 6; see also Third Declaration of
Christa J ane Band 6 (Docket No. 57-3) (noting that other claimants in the MTVIL
have named defendants in addition to NGN and Mulcaire)).
Huthart also argues that the MTVIL is inadequate because its system of paired
settlement offers is designed to favor early settlement and creates a disincentive for
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claimants to go to trial. (Opp. at 5; Lewis Decl. 16-24). However, the fact that the
MTVIL incentivizes early settlement demonstrates that some remedy is available to
Huthart, and nothing indicates that this remedy would be so inadequate as to constitute
no remedy at all. Moreover, Huthart could simply choose to proceed in the general
civil court system, which does not appear to operate under the paired settlement
system.
Huthart also argues that English law offers no remedy for a significant portion of
her claims. (Hutharts Brief at 7-8). In particular, she argues that England provides no
cause of action to hold NI and News Corp. directly liable because they knew or should
have known about NGNs hacking activity, failed to stop NGNs hacking, and
participated in the cover-up of the hacking. (Hutharts Brief at 8; Tomlinson Decl.
20). Again, this argument could have been raised in the Opposition, but was not.
On the merits, this argument appears to be more artful, than substantive. Huthart
has not explained what she means, or what claim for relief under American law would
hold NI and News Corp. directly liable for such actions. The Complaint does not
allege a separate claim for relief specifically asserting that NI and News Corp. are
liable for activities that they knew or should have known about, failed to stop, or
participated in covering up. Rather, it seems the gravamen of the Complaint is that all
Defendants participated in the Hacking Scheme. Each claim is alleged against all
Defendants, and many of the claims turn on intentional or willful conduct. (See, e.g.,
Compl. 75, 76, 78, 81, 83, 100-104, 120). Therefore, based on the allegations in the
Complaint, it appears that there would be liability against all Defendants for their
actions. Hutharts expert, Hugh Tomlinson, is certainly well credentialed. (See
Tomlinson Decl. 3-4). But he has not opined, nor would the Court find it credible if
he did, that if all the allegations in the Complaint were true, NI and News Corp. would
escape liability under English law. In light of the Complaints allegations that all
Defendants committed the alleged acts, it is immaterial that there is no cause of action
in England to hold NI and News Corp. liable for activities they knew or should have
known about, failed to stop, or participated in covering up.
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Huthart also argues that England is an inadequate forum for her claims under the
Stored Communications Act and the Wiretap Act. (Opp. at 4). In the supplemental
briefing, Huthart further explains that the Stored Communications Act permits a claim
for unauthorized accessing, obtaining, interfering with, or preventing access to a stored
wired communication, without requiring that the person committing such acts actually
obtain or listen to the content of the wire communication. (Hutharts Brief at 9). In
contrast, [n]o cause of action independent of actually listening to the communication
or otherwise obtaining the content of the communication exists in England and Wales.
(Tomlinson Decl. 22). Therefore, Huthart argues that she cannot litigate the subject
matter of her claim in England. (Hutharts Brief at 9).
The Court is likewise not persuaded that Huthart would be unable to litigate the
subject matter of her claims in England. The Complaint alleges that Mulcaire and
other unidentified investigators working for Defendants reset the pin number and
password on the voicemails of their targets, and then used and exploited the
unlawfully-obtained information to note, record and/or transcribe voice-mail
messages. (Compl. 19). Mulcaire and other unidentified investigators then
provided the direct mobile numbers, passwords, and pin numbers to NGN journalists
to enable them to hack and/or listen to, or to read transcripts of voice-mail messages
of targets. (Compl. 20). Mulcaire and others used the information in these voice-
mail messages in the preparation of articles or stories to be published by the Sun and
News of the World. (Compl. 19, 20). The Complaint then alleges that Mulcaire
and other investigators and journalists engaged in the above activities with regard to
Hutharts cellphone, intercepting her voice-mail messages in order to obtain the
private and confidential information on them. (Compl. 54).
In other words, the subject matter of Hutharts claim is not limited to the
allegation that Defendants and their agents simply accessed or interfered with her
voicemails. Rather, those allegations are part and parcel of a scheme, in which
Defendants and their agents are alleged to have intercepted and obtained the
information in Hutharts voicemails to use such information in tabloid stories.
Tellingly, the Ninth Circuit has described the offense of accessing a communication
under the Stored Communications Act as a lesser included offense of the offense of
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intercepting a communication under the Wiretap Act. United States v. Smith, 155 F.3d
1051, 1058 (9th Cir. 1998). Defendants have established that English law provides a
cause of action for the unauthorized interception of communications under the
Regulation of Investigatory Powers Act of 2000. (Orr Decl. 18).
Huthart analogizes this case to Phoenix Canada Oil Co. Limited v. Texaco, Inc.,
78 F.R.D. 445, 456 (D. Del. 1978), in which the court found Ecuador to be an
inadequate forum, in part, because no remedy existed under Ecuadorian law for two of
three legal theories advanced by the complaint. (See Hutharts Brief at 7-8). However,
the Court does not find Phoenix analogous. Here, it appears that England does not
recognize only one of six claims for relief in the Complaint. Even so, that one claim is
intertwined with and could be considered a lesser included offense of another claim,
interception of communications, which is recognized under English law.
Therefore, the fact that Huthart may not have an additional claim against
Defendants for accessing her voicemails does not render England inadequate. See
Gemini Capital Group, Inc. v. Yap Fishing Corp., 150 F.3d 1088, 1092 (9th Cir. 1998)
([T]he fact that Plaintiffs could not assert a RICO cause of action under Yap or FSM
[Federated States of Micronesia] law does not preclude a forum non conveniens
dismissal.). It is generally irrelevant that the courts in the other jurisdiction may
apply substantive law that is less favorable to Huthart. Piper Aircraft, 454 U.S. at 249
(stating that dismissal may not be barred solely because of the possibility of an
unfavorable change in law). The district court [i]s not required to ask whether
Plaintif[f] could bring this lawsuit in [the alternate forum], but rather, whether [the
alternate forum] offers a remedy for their losses. Lueck, 236 F.3d at 1143 (finding
that New Zealand was an adequate alternative foreign, where New Zealand law did not
permit Plaintiffs to maintain the exact suit as in the United States, but New Zealand
nonetheless provided a remedy for Plaintiffs loses). There is simply no evidence that
the remedy available in England would be so clearly inadequate or unsatisfactory, that
it is no remedy at all. Lueck, 236 F.3d at 1143 (quoting Lockman Found. v.
Evangelical Alliance Mission, 930 F.2d 764, 768 (9th Cir. 1991)).
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Accordingly, Defendants have established that England is an adequate
alternative forum for Hutharts claims.
Private Interest Factors
Given the existence of an adequate alternative forum, a district court must
consider the balance of private and public interest factors to determine whether to
dismiss on grounds of forum non conveniens. Lockman Found., 930 F.2d at 769.
[U]nless the balance [of private and public interest factors] is strongly in favor
of the defendant, the plaintiffs choice of forum should rarely be disturbed. Gulf Oil,
330 U.S. at 508. However, a foreign plaintiffs choice of forum merits less deference
than that of a plaintiff who resides in the selected forum, and the showing required for
dismissal is reduced. Lueck, 236 F.3d at 1145; see also Piper Aircraft, 454 U.S. at
255 (stating that the presumption in favor of the plaintiffs choice of forum . . . applies
with less force when the plaintiff or real parties in interest are foreign); Gemini
Capital, 150 F.3d at 1091-92 (holding that the plaintiffs decision to sue in Hawaii was
properly accorded less deference than if Hawaii had been his true home forum).
Moreover, a truly foreign plaintiff (i.e., someone who is not a United States citizen
or resident) is accorded less deference than an American citizen suing in a state other
than his state of residence. Boston Telecommcns Group, Inc. v. Wood, 588 F.3d
1201, 1207 (9th Cir. 2009). But even as to such quintessentially foreign plaintiffs, it
is clear that less deference is not the same thing as no deference. Id.
Huthart is a citizen and resident of the United Kingdom. (Compl. 4;
Declaration of Eunice Huthart 2 (the Huthart Declaration) (Docket No. 49-2)).
She, however, has worked in Los Angeles, California on numerous occasions and is
the sole owner of a California corporation. (Huthart Decl. 3, 4). Accordingly, the
Court accords some deference to Hutharts choice of forum, but it is less deference
than would be accorded if Huthart were a United States citizen or a California resident.
Courts consider the following private interest factors: (1) the residence of the
parties and the witnesses; (2) the forums convenience to the litigants; (3) access to
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physical evidence and other sources of proof; (4) whether unwilling witnesses can be
compelled to testify; (5) the cost of bringing witnesses to trial; (6) the
enforceability of the judgment; and (7) all other practical problems that make trial
of a case easy, expeditious and inexpensive. Lueck, 236 F.3d at 1145 (quoting Gulf
Oil, 330 U.S. at 508).

First, with regard to the residence of the parties and witnesses, this factor weighs
in favor of England. Huthart herself, her husband, her daughter, and current and
former NGN employees involved in the alleged hacking are located in England.
(Compl. 45, 50-51; Band Decl. 18; Mot. at 12). Huthart argues that other potential
witnesses, such as J olie and employees of her California company, are located in
California. (Opp. at 8; Huthart Decl. 14).
[A] courts focus should not rest on the number of witnesses or quantity of
evidence in each locale. Rather, a court should evaluate the materiality and
importance of the anticipated [evidence and] witnesses testimony and then
determine[] their accessibility and convenience to the forum. Lueck, 236 F.3d at
1146.
It appears that the most important witnesses are NGNs current and former
employees who were allegedly involved in and/or knew about the hacking because
they would be crucial to establishing Defendants liability. Similarly, the most
important evidence is that collected by the London Metropolitan Police Service since it
connects Defendants agents to the Hacking Scheme. For example, the Complaint
alleges that Hutharts name, cellular telephone number, her account number, and/or
her PIN number appear on four separate pages of notes recovered by the London
Metropolitan Police Service from the home of an investigator who was working for
NGN. (Compl. 16, 17, 52).
While Huthart argues that J olie and employees of her California company are
relevant to establishing how the intercepted voice messages harmed her business
relationships (Opp. at 8), it would appear that Huthart could also testify about the harm
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to her business relationships. Therefore, these witnesses appear to be less important
than the NGN employees.
Even according some deference to Hutharts choice of forum, it appears that the
first factor weighs in favor of England.
Second, with regard to the forums convenience to the litigants, this factor is
neutral. While it appears that the two United Kingdom Defendants would be
inconvenienced to some degree if forced to litigate here, as opposed to England,
Defendants have not addressed this factor head-on. (See Mot. at 12 (stating only that
the UK is clearly the most convenient forum for this litigation)). Moreover, given
Hutharts residence in England, the Court cannot assume that litigation in this forum
would be convenient for her. When the [plaintiffs] home forum has been chosen, it
is reasonable to assume that this choice is convenient. When the plaintiff is foreign,
however, this assumption is much less reasonable. Piper Aircraft, 454 U.S. at 255-56.
Given the lack of information regarding the forums convenience to either party,
the second factor provides little help in the analysis.
Third, with regard to access to sources of proof, this factor weighs in favor of
England. It appears that most of the relevant documents and physical evidence are
located in England, including files recovered by the London Metropolitan Police
Service, contracts between private investigators and NGN, and documents relating to
British news stories that allegedly published information taken from Hutharts
cellphone. (Compl. 16, 17, 31, 60-65; Band Decl. 15-17).
It is true that the Ninth Circuit has deemphasized the inconvenience of
transporting witnesses and documents overseas, due to advances in technology. See
Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1336 (9th Cir. 1984) ([A] district court
should keep in mind that the increased speed and ease of travel and communication . .
. makes, especially when a key issue is the location of witnesses, no forum as
inconvenient [today] as it was in 1947, when the Supreme Court decided Gilbert.).
However, Defendants have established that they cannot simply scan and upload to a
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database the documents relevant to this action. (Reply at 10). Instead, a number of the
documents relevant to this litigation are being held by the London Metropolitan Police
Service, and obtaining those documents would require applications to English courts.
(Id.). Accordingly, it would appear more burdensome and difficult to obtain these
documents for litigation in this forum, when some of those documents are already
being used in litigation in England. Moreover, Huthart has not shown that any
documents or other key pieces of evidence are located in California. (See Opp. at 9 n.6
(stating only vaguely that [e]vidence may also exist in the U.S.)).
Accordingly, this factor weighs in favor of England.
Fourth, with regard to the ability to compel unwilling witnesses, this factor
weighs in favor of England. As indicated above, most of the witnesses relevant to this
action are located in United Kingdom and appear to be citizens of the United Kingdom.
Accordingly, they are outside of this Courts subpoena power. See Fed. R. Civ. P.
45(b)(2) & (3) (providing for service of a subpoena in the United States, or service of a
subpoena on a United States national or resident who is in a foreign country).
Additionally, a party can carry its burden in showing that unwilling witnesses
exist by providing circumstantial evidence . . . that an ongoing criminal investigation
provid[es] a major disincentive to voluntary testimony. Duha v. Agrium, Inc., 448
F.3d 867, 877 (6th Cir. 2006) (quoting First Union Natl Bank v. Banque Paribas, 135
F. Supp. 2d 443, 450 (S.D.N.Y. 2001)). Here, it appears that potential witnesses in this
action are being criminally prosecuted in England for their involvement in the Hacking
Scheme, as alleged in the Complaint and as established by Defendants. (Compl. 16,
27, 29, 37; Second Declaration of J onathan B. Pitt, Exs. 9 & 10 (Docket No. 54-6)).
Conversely, the parties have not identified any unwilling witnesses who are not subject
to the compulsory process in England.
Fifth, with regard to the cost of bringing witnesses to trial, this factor weighs in
favor of England. As indicated above, the majority of the witnesses and virtually all of
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the most important witnesses in this action are located in the United Kingdom. While
it seems likely that some of those witnesses, including Huthart, her family, and J olie,
can access this forum with relative ease, this forum appears to be less accessible to
NGNs former and current employees, especially those facing criminal charges.
Sixth, with regard to the enforceability of judgment, this factor appears neutral.
Neither side has raised arguments that a judgment in this forum would be more or less
enforceable than one in England.
Seventh, with regard to other practical problems that make trial easy,
expeditious, and inexpensive, this factor weighs in favor of England. Each case is
unique, and thus, the details of Hutharts specific claims likely differ to some degree
from other claims related to the Hacking Scheme. Nonetheless, because the courts in
England are experienced in handling other claims related to the Hacking Scheme, and
the English courts have the authority to subpoena documents from the London
Metropolitan Police Service and to compel unwilling witnesses located there to testify,
it appears likely that litigation in England would be more efficient. See Lueck, 236
F.3d at 1147 (Given the existence of the related proceedings [in New Zealand], it is
all the more clear that the private interest factors weigh in favor of dismissal.);
Creative Tech., Ltd. v. Aztech Sys. Pte., Ltd., 61 F.3d 696, 703 (9th Cir. 1995)
(affirming the district courts finding that all other factors that render trial of the case
expeditious and inexpensive weighed in favor of dismissal because a parallel action
in the High Court of Singapore was further advanced than the United States action).
Therefore, five factors weigh in favor of England, two factors are neutral, and no
factors weigh in favor of this forum. The private factors thus strongly favor of
England.
Public Interest Factors
Courts also consider the following public interest factors: (1) local interest of
lawsuit, (2) the courts familiarity with governing law, (3) burden on local courts
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and juries, (4) congestion in the court, and (5) the costs of resolving a dispute
unrelated to this forum. Lueck, 236 F.3d at 1147. The only factor truly at issue is the
local interest factor.

First, with regard to local interest, California has some identifiable interest in
this action, but that interest is outweighed by the other factors pointing to England as
the appropriate site for litigation.

Both parties agree that England has a strong interest in this action. (Mot. at 15-
16; Opp. at 12). Huthart is a United Kingdom citizen, and two Defendants are United
Kingdom entities. (Compl. 4, 6, 7). A number of the potential witnesses are in the
United Kingdom. The information obtained through the alleged hacking was
published in British newspapers. Accordingly, England has devoted substantial efforts
to addressing the Hacking Scheme: the London Metropolitan Police Service has
conducted multiple criminal investigations; numerous individuals have been arrested
and charged in England; England established the voluntary compensation scheme and
the MTVIL system specifically for claims arising from the Hacking Scheme; and the
Parliament of the United Kingdom has conducted numerous hearings on the phone
hacking. (See Mot. at 15-16).

Although Huthart objects to the manner in which Defendants introduced
evidence regarding the events described above, Huthart does not dispute that the
underlying events occurred. In fact, Huthart references the above events in her
Complaint. (Compl. 11, 16, 23, 25, 27, 30-32, 36-37, 40, 60, 61).

It is clear from the resources and activity devoted to addressing the Hacking
Scheme that England has a very high interest in this action. See, e.g., Lueck, 236 F.3d
at 1141, 1147 (finding that the interest in New Zealand regarding this suit is
extremely high, where the action related to a crash involving a New Zealand airline
carrying New Zealand passengers in New Zealand, and a New Zealand commission
investigated the causes and circumstances of the accident).

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Huthart argues that California also has an interest in this litigation because her
voicemail messages were hacked not only when she was in England, but also when she
was in Los Angeles. (Opp. at 12-13; Compl. 49). Huthart also argues that while she
was in Los Angeles, her voicemails were stored temporarily on facilities in the United
States and then transmitted on United States-based networks to the United Kingdom.
(Opp. at 37). Defendants dispute that any United States networks or facilities were
used in the alleged hacking. (Reply at 12, n. 18). Defendants argue that even while
Huthart was in Los Angeles, her voicemails were stored in servers owned and
maintained in the UK by the UK provider Vodafone, and that her voicemails were
accessed from the UK, by UK citizens working for a UK publication owned by NGN.
(Mot. at 15).

The Court need not resolve this factual dispute to determine this Motion. Even
assuming that Hutharts messages were stored temporarily in the United States and
transmitted using United States-based networks, this activity does not create a
sufficiently strong interest to outweigh the private interest factors and Englands strong
interest in this action. See Vivendi SA v. T-Mobile USA Inc., 586 F.3d 689, 694 (9th
Cir. 2009) (holding that the local interest in the case was tenuous where the only
asserted connection to the United States was the use of U.S. wires in various
communications between the parties); see also Piper Aircraft, 454 U.S. at 261 (finding
that [t]he American interest in this accident [was] simply not sufficient to justify the
enormous commitment of judicial time and resources that would inevitably be required
if the case were to be tried here, where the action related to an airplane accident in
Scotland, the pilot and all decedents heirs were Scottish citizens, and British
authorities had investigated the accident, even though Defendants were American
manufacturers); In re Air Crash Over Mid-Atl. on June 1, 2009, 760 F. Supp. 2d 832,
846 (N.D. Cal. 2010) (finding that [t]he American interest . . . ensuring the quality of
component parts on aircraft and protecting the rights of two American citizens, is real
and legitimate but less significant than the French interest, where an Air France
flight left Brazil for France carrying a plurality of French citizens and just two
Americans living abroad at the time of the crash).

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Accordingly, while California has some minimal interest in this action, that
interest does not justify the burden that litigation in this action would impose on this
court system and the local jury.

Second, with regard to the courts familiarity with the governing law, this factor
is neutral at best. Huthart argues that she has brought claims under federal and
California state law, and that this Court is more familiar with those laws, than an
English court. (See Opp. at 16). However, Huthart relies on case law that interprets a
choice-of-law clause. (See Opp. at 15 (citing Wash. Mutual Bank v. Superior Court, 24
Cal. 4th 906, 919, 103 Cal. Rptr. 2d 320 (2001)). No such choice-of-law agreement is
present here. If this action were dismissed and brought in England, it appears that
English courts would most likely apply English law under Englands choice-of-law
rules. (Second Declaration of Craig Wyndham Orr QC 29-34 (the Second Orr
Declaration) (Docket No. 54-5)). However, even if the English courts were to find
that federal or California state law applied, it appears that the English Courts are
accustomed to applying foreign laws, including those of the United States. (Second
Orr Decl. 35).

Third, with regard to court congestion, this factor also does not aid the Courts
analysis. Defendants have provided some data as to the congestion of the Central
District of California. (See Mot. at 16). While the MTVIL system in England would
appear to provide a more efficient mechanism for resolving Hutharts claims, her
claims could possibly be stayed for some time if filed in the MTVIL. (Tomlinson
Decl. 13-15; see also Third Orr Decl. 8-9). The parties have provided no
information about the congestion of the general civil litigation system in England.
Accordingly, the Court cannot determine the real issue, which is not whether a
dismissal will reduce a courts congestion but whether a trial may be speedier in
another court because of its less crowded docket. Gates Learjet, 743 F.2d at 1337.
Moreover, administrative considerations such as docket congestion are given little
weight in this Circuit in assessing dismissal under forum non conveniens. See id.
(The forum non conveniens doctrine should not be used as a solution to court
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congestion; other remedies, such as placing reasonable limitations on the amount of
time each side may have to present evidence, are more appropriate.).
Even giving some deference to Hutharts choice of forum and acknowledging
that California has a minimal interest in this action, the private interest factors and
Englands interest in this action weigh strongly in favor of dismissal.
The Motion is GRANTED.
The Motion to Intervene (Docket No. 61) filed by Brad Greenspan, and
Defendants Ex Parte Application to Continue Motion for Intervention of Brad
Greenspan Pending the Courts Determination on Defendants Motion to Dismiss
(Docket No. 65) are both DENIED as moot.
This Order shall constitute notice of entry of judgment pursuant to Federal Rule
of Civil Procedure 58. Pursuant to Local Rule 58-6, the Court ORDERS the Clerk to
treat this Order, and its entry on the docket, as an entry of judgment.
IT IS SO ORDERED.
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EX PARTE APPLICATION
LEGAL02/34840112v1

Louis A. Karasik (Cal. Bar # 100672)
Alston & Bird LLP
333 South Hope Street, 16th Floor
Los Angeles, CA 90071-3004
Telephone: (213) 576-1148
Facsimile: (213) 576-1100
Email: lou.karasik@alston.com

Brendan V. Sullivan (Pro Hac Vice)
Tobin J. Romero (Pro Hac Vice)
Joseph M. Terry (Pro Hac Vice)
Jonathan B. Pitt (Pro Hac Vice)
Williams & Connolly LLP
725 Twelfth Street, N.W.
Washington, DC 20005
Telephone: (202) 434-5000
Facsimile: (202) 434-5029
Email: jpitt@wc.com

Counsel for Defendants News
Corporation, NI Group Limited f/k/a
News International Limited, News Group
Newspapers Limited


EUNICE HUTHART,

Plaintiff,

v.

LIMITED f/k/a NEWS
INTERNATIONAL LIMITED, NEWS
GROUP NEWSPAPERS LIMITED,
and JOHN and JANE DOES 1-10,

Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. CV 13-4253 MWF (AJWx)

Honorable Michael W. Fitzgerald

DEFENDANTS EX PARTE
APPLICATION TO CONTINUE
MOTION FOR INTERVENTION
OF BRAD GREENSPAN
PENDING THE COURTS
DETERMINATION ON
DEFENDANTS MOTION TO
DISMISS

[Filed concurrently with Declaration
of Louis A. Karasik and [Proposed]
Order]
Date: TBD
Time: TBD
Courtroom: 1600
Complaint Filed: June 13, 2013
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LEGAL02/34840112v1
TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
PLEASE TAKE NOTICE that Defendants News Corporation, NI Group
Limited, and News Group Newspapers Limited (collectively Defendants) hereby
apply ex parte to continue the June 30, 2014 hearing on the pro se motion to
intervene filed on May 2, 2014 by Brad Greenspan (Greenspan), pending the
Courts determination on Defendants Motion to Dismiss the underlying action. If
the Motion to Dismiss, which presently is under submission after supplemental
briefing filed by the parties on March 17, 2014, is granted, Greenspans intervention
motion will be moot.
As set forth more fully in the accompanying Memorandum of Points and
Authorities and the Declaration of Louis A. Karasik filed concurrently herewith, a
continuance of the hearing and the time for filing any opposition papers by
Defendants regarding Greenspans pro se motion will promote judicial economy and
avoid potentially unnecessary proceedings to address the many defects apparent on
the face of Greenspans rambling and incoherent pleadings. Greenspan seeks to
intervene to air accusations against California State Senators and United States
Congressman for allegedly participating in vague, undefined conspiracies with
companies such as Google, Yahoo, AOL, JP Morgan and many others, including
News Corp., related in some way to News Corp.s acquisition of MySpace nearly ten
years ago. If Defendants pending Motion to Dismiss is granted, Greenspans
motion to intervene will be moot because there will be no underlying action, and thus
no proceeding in which Greenspan might seek to intervene. A postponement may
thus avoid the Court having to hear an unnecessary motion and avoid the necessity of
Defendants responding to the pleadings submitted by Greenspan, promoting judicial
economy for all parties and the Court. A continuance of this matter would not
prejudice Greenspan, particularly since he is pursuing substantially similar claims in
a lawsuit filed in the Delaware Court of Chancery. In contrast, if Defendants were
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LEGAL02/34840112v1
required to oppose Greenspans motion prior to a decision on the Motion to Dismiss,
they would be forced to incur fees and costs to detail the many reasons the pro se
motion fails to state grounds to intervene
1
costs that would be unnecessary in the
event that this Court rules that this case should be dismissed under the doctrine of
forum non conveniens.
///
///
///
///
///
///
///
///
///
This Application is being made pursuant Local Rule 7-19 and this Courts
courtroom procedures and standing order. Notice of this Application was provided
to Plaintiffs counsel by telephone call on May 15, 2014, and Plaintiffs counsel
advises that Plaintiff does not joint the ex parte and intends to oppose the motion to
intervene. (Declaration of Louis A. Karasik (Karasik Decl.), 7.) The only
contact information provided in Greenspans papers are a mailing address, so
Defendants attempted to provide notice of this Application to Greenspan by
attempting to hand deliver a letter to that address on May 16, 2014. (Karasik Decl.,

1
Among other things, Greenspans intervention pleadings violate Federal Rule of
Civil Procedure Rule 8, fail to state any coherent much less cognizable claim for
relief, lack any nexus to the claims pursued by plaintiff Huthart, consist of rambling
allegations of conspiracy untethered to any facts or legal theories and are barred by
the statute of limitations and the existence of a pending action in Delaware where
Greenspan has filed substantially the same disjointed allegations.
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LEGAL02/34840112v1
8.) The address provided by Greenspan was a rented mailbox, and we were advised
by the proprietor that it was canceled over a year ago for nonpayment.

Dated: May 19, 2014

ALSTON & BIRD LLP

By: /s/Louis A. Karasik
Louis A. Karasik (Bar # 100672)

Counsel for Defendants News Corporation, NI
Group Limited f/k/a News International Limited,
News Group Newspapers Limited

WILLIAMS & CONNOLLY LLP

By: /s/Brendan V. Sullivan
Brendan V. Sullivan (pro hac vice)
Tobin J. Romero (pro hac vice)
Joseph M. Terry (pro hac vice)
Jonathan B. Pitt (pro hac vice)

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LEGAL02/34840112v1
I. INTRODUCTION
Defendants News Corporation, NI Group Limited, and News Group
Newspapers Limited (collectively Defendants) make this Ex Parte Application in
order to avoid the premature and potentially unnecessary briefing and consideration
of a frivolous pro se motion to intervene filed by Brad Greenspan. Specifically,
Defendants seek a continuance of the motion to intervene until such time as the
Court rules on Defendants Motion to Dismiss the underlying action, which, if
granted, would render moot Greenspans motion to intervene and spare the Court
and the parties from the burden of considering and briefing Greenspans meritless
and unintelligible motion.
Plaintiff Eunice Huthart (Huthart or Plaintiff) filed her complaint on June
13, 2013. The suit concerns allegations of voicemail hacking that occurred in the
United Kingdom. Defendants filed a Motion to Dismiss Hutharts complaint on
September 20, 2013.
2
(See Declaration of Louis A. Karasik (Karasik Decl.), 2.)
The Motion to Dismiss came on for hearing on February 24, 2014. (Id.)
Supplemental briefing related to the issue of forum non conveniensand specifically
whether Huthart could bring her claims in Englandwas ordered on February 25,
2014 and was concluded in March 2014. (Id.) The matter remains under
submission.
Pro se litigant Greenspan filed a purported motion to intervene and related
papers on May 2, 2014.
3
His pleadings were served on counsel for Defendants in

2
Defendants Motion to Dismiss refers to the Motion to Dismiss Case Under
FRCP Rules 12(b)(2), 12(b)(6) and for Forum Non Conveniens and supporting
papers filed by Defendants on September 20, 2013. See Huthart v. News
Corporation et al., Case No. CV 13-4253 MWF (AJWx), Dkt. No. 41.
3
Greenspans motion papers consist of a Notice of Motion to Intervene (Dkt.
No. 61), a Memorandum in Support (Dkt. No. 62), Declaration of Brad Greenspan in
Support (Dkt. No. 63), and a Proof of Service by Mail (Dkt. No. 64), all filed on May
2, 2014. Greenspan additionally served on Defendants local counsel a proposed
(cont'd)
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LEGAL02/34840112v1
Los Angeles, but not on Defendants lead counsel, the Williams & Connolly firm in
Washington, D.C. (Karasik Decl., 3.) The matter has been set for hearing on June
30, 2014.
Greenspans motion to intervene has nothing to do with Hutharts complaint.
Greenspan does not allege he is the victim of any voicemail hacking or any allegedly
wrongful conduct by Defendants similar to that complained of by Huthart. (Karasik
Decl., 4.) Rather, Greenspan appears to allege, though the incoherent nature of his
allegations makes it difficult to discern, that he has been harmed by a vast conspiracy
involving everything from allegedly wrongful employment practices by technology
companies like Google, Intel and Yahoo to the bribery of and misconduct by
California State Senators and United States Congressmen. The intervention papers
advance convoluted claims that all of this misconduct is related in some fashion to
News Corp.s acquisition in 2005 of Intermix Media Inc., which owned and operated
several websites including MySpace. (See Exh. A to Karasik Decl., Greenspans
Complaint in Intervention at 3:20-67:24.) This is not the first time Greenspan has
filed claims on that subject: Greenspan was the founder of E-Universe, the
predecessor of Intermix; his claims challenging News Corp.s acquisition of
MySpace and several other attempts to raise challenges to that transaction have been
dismissed over the years by both state and federal courts. The first dismissal of
Greenspans challenges to the MySpace transaction was in 2006. See Greenspan v.
Intermix Media, Inc., Case No. B196434, 2008 WL 4837565 (Cal. App. Nov. 10,
2008)) (affirming 2006 dismissal of individual and shareholder actions brought by
Greenspan challenging the MySpace transaction). The next attempt to challenge the
transaction was rejected in Brown v. Brewer, Case No. 2:06-cv-3731 (C.D. Cal.),
where the federal court in 2010 dismissed Greenspan as a putative class member
________________________
(cont'd from previous page)
Complaint in Intervention, attached to the Karasik Declaration, that has not been
filed with the Court.
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from a shareholder derivative action challenging the merger, and in 2011 denied
Greenspans motion to intervene in that matter. (Karasik Decl., 5; Exhibits B and
C.) Though Greenspans involvement in these matters has been concluded for
several years, Greenspan most recently filed a pro se complaint on April 22, 2014 in
the Delaware Court of Chancery, naming News Corp. and twenty other defendants in
a pleading that advances the same or similar conspiracy claims found in the
intervention papers, all tied to the acquisition of Intermix in 2005. See Greenspan v.
News Corp. et al., Case No. 9567 (Del. Ch. April 22, 2014). (Karasik Decl., 5;
Exh. D.) The apparent purpose of the proposed intervention is to air Greenspans
views that hacking incidents in the UK show that News Corp. has engaged in bad
actsalbeit wholly unrelated to those of which he complains. See Dkt. No. 62,
Greenspan Memorandum in Support of Motion to Intervene at 5:1-18.
As detailed below, if Defendants pending Motion to Dismiss is granted,
Greenspans intervention will be moot. Ex parte relief to postpone Greenspans
further pursuit of his incoherent intervention proceeding will promote the interests of
judicial economy and avoid potentially unnecessary proceedings.
II. JUDICIAL ECONOMY IS ACHIEVED BY CONTINUING THE
INTERVENTION MOTION BECAUSE GREENSPANS MOTION
WILL BE MOOT IF THE UNDERLYING ACTION IS DISMISSED
The Court may issue ex parte relief extending the time within which an act is
required or allowed to be done upon a showing of good cause. Fed. R. Civ. P. 6(b).
Good cause is broadly construed in a manner that affords the Court broad
discretion to manage its calendar. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253,
1259 (9th Cir. 2010); Danjaq LLC v. Sony Corp., 263 F.3d 942, 961 (9th Cir. 2001)
(noting that a court has broad discretion in granting continuances). [R]equests for
extensions of time made before the applicable deadline has passed should normally .
. . be granted in the absence of bad faith on the part of the party seeking relief or
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prejudice to the adverse party. Ahanchian, 624 F.3d at 1259. (internal citations
omitted.) Here, the deadline to oppose Greenspans intervention has not passed, the
applying Defendants have not acted in bad faith, and there is no prejudice to
Greenspan. Good cause exists for a continuance of Greenspans motion to intervene
because it would promote the most efficient use of the Courts and the parties
resources. A postponement of the matter would give the court time to rule on
Defendants pending motion to dismiss before the parties are forced to incur the cost
of responding to Greenspans convoluted motion. If Defendants Motion to Dismiss
is granted, Greenspans intervention would be moot because a prerequisite for
intervention is the existence of an underlying action. See Hartley Pen Co. v. Lindy
Pen Co., 16 F.R.D. 141, 146 (S.D. Cal. 1954) (A pending suit within federal
jurisdiction is by definition prerequisite to intervention.); see also Arakaki v.
Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003) (intervention inappropriate where
underlying claim dismissed).
An application for a continuance of a hearing is the type of routine
administrative relief that is particularly appropriate on an ex parte basis. See In re
Intermagnetics Am., Inc., 101 B.R. 191, 193-94 (C.D. Cal. 1989) (noting that
legitimate ex parte applications . . . may be necessary when a party seeks a routine
order such as adjusting the hearing date of a motion). This Motion simply seeks to
ensure the proper sequencing of motions. There is no prejudice to Greenspan from a
continuance. See Fuller v. Amerigas Propane, Inc., C 09-2493TEH, 2009 WL
2390358 at*1 (N.D. Cal. Aug. 3, 2009) (no prejudice in connection with a short
delay). Indeed, there is no possible prejudice to Greenspan, because he does not
need to intervene in this matter to raise his assertions: he has already filed a lawsuit
in Delaware advancing these very claims. Defendants, by contrast, would be
significantly prejudiced if forced to respond at this time to Greenspans motion,
especially if Defendants substantive opposition is mooted by the subsequent
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dismissal of the case on Defendants pending Motion to Dismiss. See In re Apple
iPhone 3G Products Liab. Litig., C 09-02045 JW, 2010 WL 9517400 at *2 (N.D.
Cal. Dec. 9, 2010) (holding that prejudice to defendants and to the court of moving
forward with proceedings that could be mooted by other proceedings supported a
stay). And in the event that the Motion to Dismiss is denied, Greenspans Motion to
Intervene may be properly addressed at that time.
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As noted in the ex parte application, Plaintiffs intend to oppose Greenspans
purported motion, and if opposition is required, Defendants will show that
Greenspans motion fails to state any grounds to intervene, fails to state a cognizable
claim, is rife with rambling and frivolous allegations of vast conspiracies, seeks to
re-litigate Greenspans oft rejected challenges to News Corp.s acquisition of
MySpace almost a decade ago, and is barred by the statute of limitations and by the
existence of a pending action in Delaware where Greenspan is advancing the same
claims that are the subject of the proposed intervention.
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III. CONCLUSION
Good cause exists for a continuance because a postponement of the
intervention motion would allow the Court to rule on Defendants pending Motion to
Dismiss without requiring the parties or the Court to expend time and effort to
respond to a motion that could be rendered moot. Defendants respectfully request
that this Court postpone any hearing on Greenspans motion in order to promote
judicial economy and minimize prejudice to Defendants.

Dated: May 19, 2014

ALSTON & BIRD LLP






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CERTIFICATE OF SERVICE
I declare that I am over the age of eighteen (18) and not a party to this action.
My business address is 333 South Hope Street, 16th Floor, Los Angeles, CA 90071-
1410.
On May 19, 2014, I served the following document(s): EX PARTE
APPLICATION on the following parties in case CV 13-4253 MWF (AJWx) via
either Notice of Electronic Filing generated by the Courts CM/ECF system,
pursuant to the Courts local rules.
I declare under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct.

/s/ Louis A. Karasik
Attorney for Defendant
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PROOF OF SERVICE

I, Louis A. Karasik, declare:

I am employed in the County of Los Angeles, State of California. My business
address is Alston + Bird LLP, 333 South Hope Street, Sixteenth Floor, Los Angeles, CA
90071. I am over the age of eighteen years and not a party to the action in which this
service is made.

On May 19, 2014, I served the document(s) described as EX PARTE
APPLICATION on the interested parties in this action by enclosing the document(s) in a
sealed envelope addressed to the parties as listed as follows:

Brad D. Greenspan
264 South La Cienega Blvd.
Unit 1216

BY MAIL: I am "readily familiar" with this firm's practice for the collection and the
processing of correspondence for mailing with the United States Postal Service. In the
ordinary course of business, the correspondence would be deposited with the United
States Postal Service at 333 South Hope Street, Los Angeles, California 90071 with
postage thereon fully prepaid the same day on which the correspondence was placed
for collection and mailing at the firm. Following ordinary business practices, I placed
for collection and mailing with the United States Postal Service such envelope at
ALSTON + BIRD LLP, 333 South Hope Street, Los Angeles, California 90071.

[Federal] I declare under penalty of perjury that the foregoing is true and correct.

Executed on May 19, 2014, at Los Angeles, California.


Louis A. Karasik

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Alston & Bird LLP
Telephone: (213) 576-1148
Facsimile: (213) 576-1100

Telephone: (202) 434-5000
Facsimile: (202) 434-5029
Email: jpitt@wc.com

Newspapers Limited


EUNICE HUTHART,

Plaintiff,

v.

LIMITED f/k/a NEWS

Defendants.
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DEFENDANTS EX PARTE
OF BRAD GREENSPAN
PENDING THE COURTS
DETERMINATION ON
DISMISS

Order]
Date: TBD
Time: TBD
Courtroom: 1600
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LEGAL02/34840112v1

Dated: May 19, 2014

ALSTON & BIRD LLP





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LEGAL02/34840112v1
I. INTRODUCTION
September 20, 2013.
2
submission.
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(cont'd)
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LEGAL02/34840112v1
30, 2014.
________________________
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III. CONCLUSION

Dated: May 19, 2014

ALSTON & BIRD LLP






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1410.

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PROOF OF SERVICE


service is made.


Brad D. Greenspan
Unit 1216





Louis A. Karasik

FtLED
Suite 1216
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EUNICE HUTHART,
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Plaintiff,
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NEWS CORPORATION, NI GROUP )
LIMITED f/k/a NEWS
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INTERNATIONAL LIMITED,
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NEWS GROUP NEWSPAPERS
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LIMITED, and JOHN and JANE
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DOES 1-10
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Defendants.
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Case No. CV 13-4253 MWF
MEMORANDUM IN SUPPORT
AND MOTION FOR
INTERVENTION
PLAINTIFFS MOTION TO INTERVENE
1
2
3
INDEX
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0- CASE LAW CITED pg. 3
6 I- INTRODUCTION
pg. 4
7
11-BACKGROUND ph. 4
8
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III CONCLUSION
p. 22
1 0
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2
j
I
CASE LAW CITED
See Luther v. Countrywide Homes Loans Servicing LP, 533 F. 3d 1031, 1033-34 pg. 7(9th
2
Cir. 2008)
Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003)
pg. 10
3 Donnelly v. Glickman, 159 F. 3d 405, 409 (9th Cir. 1998) pg.] 0
Northwest Forest Res. Council v. Glickman, 82 F. 3d 825, 836 (9th Cir. 1996) pg.]]
4
United States v. Washington, 86 F. 3d 1499 (9th Cir. 1996)
pg.]]
Engra, Inc. v. Gabel, 958 F.2d 643, 644 (5th Cir. 1992).
Pg. 12
Northwest Forest Resource Council, 82 F. 3d at 837.
Pg. 12
6
Sierra Club v. United States EPA, 995 F.2d 1478, 1484 (9th Cir. 1993)
pg. 12
Donnelly, 159 F. 3d at 409;
pg. 12
7 U.S. v Alisal Water Corp., 370 F.3d 915, 919 (9th Cir. 2004)
pg. 12
California ex rel. Lockyer v. U.S., 450 F.3d 436, 441 (9th Cir. 2006). Pg. 13
8
Forest Conserv. Council v. U.S. Forest Service, 66 F. 3d 1489, 1494 (9th Cir. 1995)
pg. 13
9
Cunningham v. David Special Commitment Ctr., 158 F.3d 1035, 1038 (9th Cir. 1998). Pg.13
Yniguez v. Arizona, 939 F.2d 727, 735 (9th Cir. 1991).
Pg.13
10
Southwest Ctr. for Biological Diversity, 268 F. 3d at 822
pg. 13
Sierra Club, 995 F. 2d at 1486
pg. 14
11
California v. Tahoe Regl Planning Agency, 792 F.2d 775, 778 (9th Cir. 1986)). Pg. 14
12
Crawford v.
Equfax Payment Services, 201 F. 3d 877 (7th Cir. 2000). Pg. 15
M & I. Corp. v Von Clemm, and Atlantic Refining Co. v Standard Oil Co.,
pg. 15
13
both supra; Wolpe v Poretsky, 144 F2d 505 (DC Cir 1944), cert den 323 US 777, 85
L Ed 22, 61 S Ct 115, 132 ALR 741 (1944);
pg. 15
14
Ford Motor Co. v Bisanz Bros., 249 F2d 22 (8th Cir 195 7)
pg. 15
15
16
Annot 84 ALR2d]4]2 (1962)
pg. 15
17
Defenders of Wildlife v. Johanns, No. C 04-4512 PJH, 2005 WL 3260986, at
pg. 21
*8 (ND. Cal. Dec. 1, 2005))
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
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- p
1
MOTION TO INTERVENE
2
INTRODUCTION
3
4
1 . Pursuant to Federal Rule of Civil Procedure 24(a), Plaintiffs

5
("Intervenor") move to intervene. In the alternative, Plaintiffs moves to intervene
6 permissively as defendants pursuant to Rule 24(b).
7
BACKGROUND
8
9
2. Plaintiff seeks permission to join the litigation to protect interests,

1 0 which may not be adequately protected without involvement of Plaintiff.
1 1
1 2
New evidence disclosed for the first time to public May 201 3 in the
1 3 Hitech Class Action Case 5:1 1 02509: specifically document
1 4 confirms for first time and proves Google had additional undisclosed illegal bilateral
1 5
1 6 agreements in place with AskJeeves,Tim/Wamer AOL, and other potential corporate
1 7 entities as of March 6, 2005. Such partners and agreements that existed including
1 8 between AskJeeves, Inc, its surviving acquiror IAC Corp. , and TimeWarner/AOL, and
1 9
20 Google are uncontested to have existed 6ut were not previously identified by
21 Defendants and HiTech Federal Class Action Plaintiffs had not previously
22 alleged or known to have existed and which violated Federal antitrust statues. All three
I
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24 companies fraudulently concealed the agreements and failed to disclose them in their
25
SEC filings, violating security law and breaching their fiduciary obligations Directors
26 and officersall companies had.
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4
I
3.
Plaintiff was injured in their business or property by reason of
A) Defendants, ongoing, systematic and fraudulent scheme to maximize financial

3
4 gain Facilitated by the conduct of Google, and Intel, Objective unlawful scheme was
5
to obtain billions of dollars in proceeds and profits from i. rigging the sales of
6 competing internet assets at below fair market prices ii) benefitting from profits
7
8 generated from illegal phone hacking iii) benefitting and trading confidential
9 information received from the illegal phone hacking iv) covering up the illegal activity
1 0 using their media properties iv) extorting silence from victims and/or government
1 1
1 2 regulators including bribing police, UK Government ministers, United States Senators,
1 3 California State Senators and California State Cdgressmen and Congresswomen
1 4 and United States Congressmen and Congress serving women, and several related and
1 5
1 6 affiliated lobby qualified law firms, and other agency iritermediators, v) offering ad
1 7 credits and ad promotion in kind without disclosing such transactions to the public or
1 8 accounting for them in their SEC GAAP Accounting, and government ministers.
1 9
20
4.
Without intervention, plaintiff will be further harmed. The intervention i
21
22 also necessary to raise additional matters, facts, and Claims while providing to the
23 supporting evidence. The claims were created from a behind the scenes series of
24 meetings and communications since late 2003 thru May 1 , 201 4 between: i)
25
26 Intermix/MySpace, Inc. ii) News Corp iii) Yahoo iv) Google v) MSN, vi) AskJeeves
27 vii) JP Morgan viii) lac Corp ix) Time Warner, Inc.,x) Aol Inc. xi) Fox Interactive xii)
28
5
1
I
Fox xiii) Washington Post
2
3 I VICTIM OF SAME "BROAD CONSPIRACY"
4
5. Submitted herein and by reference and thus such facts and findings
5
6 will not be re-litigated in these pleadings unless Defendants disputes the accuracy
7
of the rulings and court orders and estoppel created by such settlements entered into by
8 Defendants. This conspiracy included: (1 ) agreements allowing AskJeeves Director
9
1 0 Jeff Yang to purchase 30% of MySpace, Inc. in February 2005 at below fair market
1 1 value using His RedPoint fund where he is managing Director; (2) agreements allowing
1 2 Google, TimeWarner/AOL, News Corporation, AskJeeves, IAC, and other defendants
1 3
1 4 to collude to gain economic benefits by i) fabricating prior sale of MySpace stock
1 5 backdated agreement in November 2004 and ii) delaying closing of a competitive
1 6 MySpace search engine auction for a new commercial search engine agreement in the
1 7
1 8 months leading up to News Corporation acquiring 1 00% of eUniverse in September
1 9 2005; (3) agreements allowing Google to ensure its $4.4 Billion dollar August 2005
20 secondary is completed by tying up the fast growing online audience of MySpace,
21
22 significantly growing its share of online search engine advertising while shrinking
23 share of main rival #2 Yahoo; (4) agreements allowing News Corporation to purchase
24 MySpace.com at below fair market value, growing its market valuation and generating
25
26 billions in incremental profits and a massive online audience to seed new online assets
27 for years to come, while preventing a competitive auction with main rival Viacom.
28
6
S
ii. The intended and actual effect of these agreements was to fix and
2 suppress competition. Defendants conspiracy and agreements restrained trade and are
3 per se unlawful under federal law.
4 Plaintiffs seek injunctive relief and damages for
5
6. Pursuant to private right of action under antitrust Federal law, more

7 then 5000 shareholders of MySpace parent company, former publicly traded e
8 Inc. "EIJNI" are entitled to a private cause of action for damages suffered as a result of
9
1 0 an Antitrust conspiracy among Defendants.
1 1
7. According to SEC documents, Brad D. Greenspan incorporated

1 2 Entertainment Universe, Inc. ("EUNI"). On April 1 4, 1 999, eUniverse completed 3 w
1 3
1 4 reverse merger arranged by first CEO, main operator and principal control officer
1 5 under SEC Sarbanes Oxley federal laws, serving as Chairman and CEO thru October
1 6 30, 2003 when as victim of fraud set in motion by Google, refused to participate in
1 7
1 8 Defendants further fraud against and including public shareholders and petitioner
1 9 Resigned as Officer, and in December from the Board of Directors, which is publicly
20 Stated forth in the eUniverse see SEC Filings including 8k, acquired along with its
21
22 1 00% owned and controlled Myspace.com website assets that News Corporation
23 acquired after misleading shareholders to vote to approve such transaction at the end
24 of September 2005.
25
8. The credibility of News Corps Board including Kleiner Perkins Partner

26 Perkins and Intel Director Thornton has greatly diminished between 2005 and 201 2
27
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1
t
)
1 fueled by its involvement in illegal phone hacking in the UK and the incredible effort
2 made to cover up and deny the deeds for years before finally in 2012, admitting indeed
3 the company had misled the public. Most recently CEO Rupert Murdoch personally
4 donated over $1 million dollars to charity as part of a $6 million dollar single settlemeni
5
with the family of a UK 13 year old girl who had gone missing and was murdered whil
6 also falling victim to one of News Corps operatives hacking her phone and erasing
7
voice mail evidence in the process of trying to find fresh angles for new stories.
8 Its been widely reported that the UK MET has over 5000 suspected victims of
9 phone hacking from News Corp and while only approximately 200 of the suspected
10 victims have been contacted by police to date, already there are 60 lawsuits in the UK
11 from News Corp phone hacking victims.
12
i. The credibility of Google largest shareholder Doerr Director of Defendant

13 is very poor historically and he was forced to abandon a Director seat at Apple, Inc. in
14
15 2010 after he was threatened with a complaint by the FTC. Doerr employee Reported
16 the following acts he is a current defendant in a Sexual harassment lawsuit pending
17 in San Francisco State Court.,
18
19
9. News Corporation, struck an undisclosed bilateral agreement with at

20 least Google, on or around September 30, 2005 before the Myspace and parent
21 corporation eUniverse operating in California (later thru name change operated as
22
23 Intermix, Inc) were acquired and ceased to be publicly traded.
24
10. News Corporation which operates Fox and Fox Interactive among other
25
subsidiaries is also alleged and believed to have struck related arrangements or
26
27 agreements with Ask Jeeves, Inc., IAC Corp, or TimeWarner/AOL, Inc. during
28
j
1 such time.
2
11. At least one Officer and/or Director of News Corporation and Go ogle
4 have admitted to a second bilateral agreement existing as of late 2006,which
5
Therefore defendants agreements already in place
6
for not poaching each others employees which included Google, AskJeeves, and
7
8 TimeWarner/AOL formed around existing commercial online advertising
9 agreements to provide and promote Googles online search product. News Corporatio
10
11 was merely telling a fabricated story of its 2005 agreement with Google in
12 the 2006 published story by its own employee it got
3 rd
party publisher to distribute
13 globally, "Stealing MySpace", which it recounted its deal with Google, Kleiner Perkins
14
15 Partner Doerr on Google Board with Perkins working or representing News
16
12. During this period, Google was in need of new commercial partners
17 to help it grow. Googles main focus was finding or securing new partner companies
18
19 that had significant number of unique visitors coming to their owned website properties
20
i. Deal #1: Commercial Ad Sense Pilot Partner Ad Buy and Endorsement
permission as part of commercial $20,000 purchase made by Google on or around
21 January 2003 , became aware that Greenspan was Chairman and CEO or the
22
principal executive officer by or before February 2003 . Google negotiated and
23 consummated its first direct agreement with eUniverse February 2003 . Google had grea
24 success after target of Deal#1 profits emerged shortly after eUniverse and Greenspan
25
agreed to deal and endorsement.
26
ii. Deal #2: Commercial Search:
27
28
.9
1
at least two of Googles top business development executives thru 2009,
Gerber, Morris, worked or contacted petitioner directly via email in
2
attempting to consummate a direct commercial search engine online
3
advertising agreement.
Petitioner opted to terminate Google discussions after announcing
4
execution of a Commercial Search agreement with Yahoo in late October
5
2003 , and launch of its SirSearch.com consumer facing brand by and for
benefit of eUniverse and its 1 00% owned MySpace division, launched
6
August 2003 but not announced to public until February 2004.
7
8
9 I.
Leal Standard for a Motion to Intervene
1 0
1 4. Petitioner is entitled to intervention as a matter of right under
1 1
1 2 Federal Rule of Civil Procedure 24(a)(2). Rule 24(a)(2) provides that:
1 3
"Upon timely application anyone shall be permitted to
intervene in an action, when the applicant claims an interest relating to
1 4
the property or transaction which is the subject of the action and the
1 5
applicant is so situated that the disposition of the action may as a
practical matter impair, or impede the applicants ability to protect that
1 6
interest, unless the applicants interest is adequately represented by
1 7
existing parties. Fed R. Civ. P.24(a)"
1 8 The Ninth Circuit construes Rule 24 liberally in favor of movants for
1 9
20 intervention. See Arakaki v. Cayetano, 3 24 F.3 d 1 078 , 1 08 3 (9th Cir. 2003 ) (citing
21 Donnelly v. Glickman, 15 9 F.3 d 405, 409 (9th Cir. 1 998 )). "Courts are guided primaril)
22 by practical and- equitable considerations." Id.
23
1
When considering a motion to intervene, the court "must accept as true the non-conclusory
24 allegations in the motion." Reich v. ABC/York-Estes Corp., "A motion to intervene as a matte
25 of right, moreover, should not be dismissed unless it appears to a certainty that the
26 intervener is not entitled to relief under any set of facts which could be proved under the
27 complaint." Id. (citing Lake Investors Dcv. Group v. Egidi Dcv. Group,).
28
1 0
1
1 5. For reasons set forth herein, Intervenor satisfies requirements of
2
F.R.C.P 24(a)(2) to intervene as a matter of right in present action.
4 Intervenors Motion to Intervene is Timely.
5
1 6. In considering the timeliness issue, courts consider three factors: (i) the
6
7
stage of the proceeding at time the applicant seeks to intervene; (ii) prejudice to
8 the existing parties from applicants delay in seeking leave to intervene; and (iii) any
9
1 0 reason for the length of delay in seeking intervention (how long the prospective
intervenor knew or reasonably should have known of her interest in the litigation). See
1 2 United States v. Washington, 86 F.3d 1 499 (9th Cir.1 996); Engra, Inc. v. Gabel, 958
1 3
1 4
F.2d 643, 644 (5th Cir. 1 992).
1 5
1 7. Intervention is timely because other Plaintiffs or those who
1 6 believe they are or should be have recently filed briefs as
1 7
1 8 allowed by the court. After these pleadings were reviewed Intervenor came to realize
1 9 certain facts and discovery exist that allow certain new claims that would greatly
20 benefit all other Plaintiffs. There are also new issues and matters which the
21
22 court has not engaged in yet.
23
1 8. Defendants will not be prejudiced by the intervention, as they already are
24 on notice as to the claims alleged against them and furthermore, defendants have
25
26 intentionally concealed discovery, documents, and emails from both existing Plaintiff
27
28
1 1
I
and Plaintiff seeking to intervene. Further, Intervenor shares same claims as the currei
2
Federal Plaintiff EH for Intervening Plaintiff to be consolidated to share its recovered
4 pieces of information lost for Existing Plaintiff from result of Defendants Fraudulent
5
concealment And newly discovered evidence and facts from the UK criminal trials
6
of 10 News Corporation executives including the CEOs "surrogate" daughter and
8 Ex-Editor and President of Defendants #1 and #2 news publications for CEO
9
To interface with and retain control of such editor run divisions of the GAAP
10
11 Aggregating public issuer, News Corporation, makes this motion to intervene timely.
12
For example, defendants have obstructed justice by eliminating Mr. Greenspan as
13
14 a fact/expert witness after defendants struck an arrangement with class counsel in May
15 2009 to destroy the value of Classs federal case and upside in Brown V. Brewer.
16
However, by simply toggling in the previously lost Rule 701 Damage Report,
17
18 There is now produced evidence of $32+ billion in earnings and credits that
19 News Corporation received benefit of thru a September 2005 acquisition of 100%
20 Of Intermix, inc. (formerly eUniverse, Inc.) holder of 100% of Myspace.com and its
21
data and user future value.
22
23
Defendant would seek to limit damages to Plaintiff EH and other
24 Victims based on its published and formerly disclosed to be accurate financials.
25
26 This evidence would be sought or required to be seen by future Jury that Plaintiff EH
27 Requested or that Plaintiff would receive benefit of if filing this claim as independent
28
12
1
action in Federal Court.
2
3
News Corporation informing Victims and litigants like EH, that is actually earned
4 an additional $3 2 billion or more from a transaction News Corporation engineered
5
In 2005 at the same time as entering into and facilitating the criminal acts that 3
6
7 employees have admitted were criminal against EH and thousands of other
8 entertainment former employees, consultants, or agents during 2005.
9
1 0 And that News Corporation had taken special accounting and unlawful accounting
services on and paid for such services to the same service providor, Ernst and Young
1 2 and Hogan Hartson Law LLC and Hogan Lovell Law 1 LC, and such earnings
1 3
1 4 previously hidden, could thru Court accepting Intervention of new Plaintiff
1 5 and allowing (Exhibit #1 : Rule 701 Damage Report) represents the fact
1 6 that News Corporation benefited more then most companies thru digital sales of its
1 7
1 8 products between 2005-201 4. Its digital products could only be sold by being created
1 9 with the payments to, hiring, and participation of Actors like Brad Pitt and
20 his wife actress who hired and retained Plaintiff EH during 2005 and 2006 at the very
21 least its uncontested. Because News Corporation sought to maximize profits
22 by creating schemes to bypass the economic limits of the cards he was dealt
23
24 as CEO of News Corporation by late 2004, Rupert Murdoch was scared
25
of losing control and of being ousted by Directors including Perkins and
26 Dinh, later Hurd helped further bully and control the growth of bribery
27
28
1 3
1
2
3
4
5
6
7
8
9
1 0
1 1
1 2
1 3
1 4
15
1 6
1 7
1 8
1 9
20
21
22
23
24
25
26
27
28
And hacking as Murdoch began to try to fade out of scene with Acquisition
Of Dow Jones and letting his right hand Les Hinton, the Halderman to Nixon
I FRAUDULENT CONCEALMENT & EMAIL & DISCOVERY SPOILATION
1 9. Defendants have omitted key discovery previously that caused key
I
evidence and facts to be fraudulently concealed. The fraudulent concealment includes
affirmative acts. Therefore, tolling would not take place until the fraudulent
concealment is fully disclosed. 7th Circuit Baker v. F&F Investment, 420 F.2d 1 1 91
(7th Cir. 1 970), cert. den., 400 U.S. 8 21 (1 970) (self-concealing conspiracy
demonstrates fraudulent
concealment) (dictum) United National Records, Inc. v. MCA, Inc., 609 F.Supp. 3 3
(N.D. Ill. 1 98 4) (denial of wrongdoing and false statements regarding price increase
sufficient to establish fraudulent concealment).
Therefore, when comparing the impact of fraudulent concealment by Defendants
And the late period even at the time of Settlement being rejected, the Court has allowed
Intervention for Class Action interventions.
2
Intervenor has a significantly protectable interest in subject matter of the action.
20. Intervenor absolutely can claim "an interest relating to the property or
transaction that is the subject of the action." Fed. R. Civ. Proc. 24(a)(2). Intervenor was
2
(quoting Agretti, 98 2 F.2d at 247); see also Almax Mill Prods.v.Congress Fin. Corp.,
(allowing nonsettling defendant to challenge a partial settlement that dismissed with
prejudice its cross-claims and stripped it of Indemnity contribution rights).
1 4
1 the largest common stock shareholder and an officer and Director thru December 10,
2 2003. "It is generally enough that the interest [asserted] is protectable under some law,
3
and that there is a relationship between the legally protected interest and the claims at
4
issue." Sierra Club v. United States EPA, 995 F.2d 1478, 1484 (9th Cir. 1993);
6
The Ninth Circuit has "taken the view that a party has a sufficient interest for
7
8 intervention purposes if it will suffer a practical impairment of its interests as a result of
the pending litigation." California ex rel. Lockyer v. U.S., 450 F.3d 436, 441 (9th Cir.
10 2006).
11
12
21. Intervenor will lose his chance to prove he was harmed by defendants
13 newly disclosed illegal bilateral agreements struck with AskJeeves, Inc. in 2005 and/or
14 Google in 2006 that was part of HiTech illegal antitrust conspiracy network of co-
15
16 conspirators and defendants including Intel and Google.
17
22. Plaintiff-Intervenor has a special interest in presenting evidence that will help
18
19 Court and existing Plaintiff. Defendants have also made a significant effort to
20 defame intervenor and continue to this day. Includes lying and misleading the public
21 about the origins of MySpace.com and passing off credit to employees of MySpace.corr
22
23 instead of the management at the time MySpace.com was created in August 2003 which
24 was led by Intervenor. Defendants have and will continue to cause massive damage to
25 intervenor thru Defendants false claims spread thru News Corp
26
27 properties and efforts to defame Intervenor. Therefore Intervenor will continue to be
28
15
1 damaged unless the new claims, evidence and matters presented in these pleadings are
2
equitably disposed of See Forest Conserv. Council v. U.S. Forest Service, 66 F.3d
4 1489, 1494 (9thCir. 1995)
5
Intervenors Interests Would Be Substantially Prejudiced
6
23. To intervene, a movant must show the disposition of the action may "as a
8 practical matter impair or impede" the ability to protect movants interest, unless the
9
interest is adequately represented by existing parties. Fed. R. Civ. Proc. 24(a)(2);
10
11 Cunningham v. David Special Commitment Ctr., 158 F.3d 1035, 1038 (9th Cir. 1998).
12
24. Intervenor Brad Greenspan will lose the ability to protect movants interest
13
14 as victim of California Privacy laws and State Constitution.
15
25. Intervention is appropriate where existing parties do not adequately
16 represent the Intervenors interests. Donnelly, 159 F.3d at 409 (citation omitted). The
17
18 Ninth Circuit considers three factors in determining the adequacy of representation:
19 "(1) whether the interest of a present party is such that it will undoubtedly make all of a
20 proposed intervenors arguments; (2) whether the present party is capable and willing to
21
22 make such arguments; and (3) whether a proposed intervenor would offer any necessary
23 elements to the proceeding that other parties would neglect." Arakaki, 324 F.3d at 1086
24 (citing California v. Tahoe Regl Planning Agency, 792 F.2d 775, 778 (9th Cir. 1986)).
25
26
EVIDENCE OF DEFENDANTS $32 PLUS BILLION IN BURIED PHONE
27 HACKING PROFITS historical context as Rule 701 lay witness to benefit Class
28
16
I]
I
Members
2
26. I ntervenors will offer perspectives and knowledge that the existing Plaintiff
3
and Defendants are likely to lack, overlook, or undervalue. "The court also may find th
4
a proposed intervenors interests are not adequately represented where the intervenor
6 would bring a perspective none of the other parties to the litigation have." Defenders o
7
Wildlife v. Johanns, No. C 04-45 12 PJH, 2005 WL 3 260986, at
*8
(N.D. Cal. Dec. 1,
8
2005)) (citation omitted); 1994)
3 .
10
The Court should grant intervention because "the magnitude of this case is such
11
that intervention will contribute to the equitable resolution of this case." See Kootenai
12
13 Tribe. The early presence of interveners may serve to prevent errors from creeping into
14 the proceedings, clarify some issues, and perhaps contribute to an amicable settlement.
15
16 Postponing intervention in the name of efficiency until after the original parties have
17 forged an agreement or have litigated some issues may, in fact, encourage collateral
18 attack and foster inefficiency. See Kleissler v. U.S. Forest Serv. & also Forest
19
Even if the Court finds Intervenor is not entitled to intervene as a matter of
20
right, the Court should exercise its discretion and permit intervention
21
22
27. A court may grant permissive intervention whenever the movant "has a
23 claim or defense that shares with the main action a common question of law or fact,"
24 and when the intervention would not "unduly delay or prejudice the adjudication of the
25
See Spangler v. Pasadena Board of Education, (the court may consider whether interveners "will
26
significantly contribute to the full development of the underlying factual issues in the Suit and the just
27
and equitable adjudication of the legal questions presented.")
28
17
PLAI NTI FFS MOTI ON TO I NTERVENE
1
original parties rights." Fed. R. Civ. P. 24(b). As explained above, Intervenor meets all
2
of these requirements. Intervenor is in an analogous posture, and like appellants in
4 Smoke v. Norton, has satisfied the requirements for intervention as of Right under Rule
5
24(a)(2) and for permission intervention under Rule 24(b)(2).
6
28. When considering a motion to intervene, the court "must accept as true
8 the non-conclusory allegations in the motion." Reich v. AB6/York-.Estes Corp., 64 F.3d
9
31 6,321 (7thCir. 1 995).
1 0
29. Permissive intervention is also justified because Intervenors participation
1 2 will facilitate an equitable result. See Spangler v. Pasadena Board of Education, 28 5 5 2
1 3
1 4 F.2d 1 326, 1 329 (9th Cir. 1 977) (the court may consider whether intervenors "will
1 5 significantly contribute to the full development of the underlying factual issues in the
1 6 suit and the just and equitable adjudication of the legal questions presented.").
1 7
1 8 Intervenor is needed to provide the full facts which do not exist in the current pleadings
1 9 The Court should grant intervention because "the magnitude of this case is such
20 that intervention will contribute to the equitable resolution of this case." Kootenai Tribe
21
22 31 3 F.3d at 1 1 1 1 . The early presence of intervenors may serve:
23
i) to prevent errors from creeping into the proceedings, clarify some issues, and
24
ii) perhaps contribute to an amicable settlement.
25
26 Postponing intervention, encourages collateral attack and foster inefficiency.
27 (see Kleissler v. U.S. Forest Serv. ,1 57 F.3d 964, 974 (3d Cir. 1 998);
28
1 8
1
30. Motion for Leadership
2
Motion for Leadership Memorandum and Memorandum in Support Class Certificate
4 will be submitted to the Court by June 30, 201 4.
5
III. 24(b) LEGAL ARGUMENT
6
7
The Court should allow the proposed Intervenor to join as a Co-Plaintiff
in the action. Federal Rule of Civil Procedure 24(b) provides that:
8
31 . Rule 24(b) allows permissive intervention if three grounds are met: (i) the
1 0 intervenor shows an independent ground for jurisdiction; (ii) the motion is timely; and
1 1
(iii) there exists a common question of law and fact between the intervenors claim an(
1 2
1 3 the main action. See Corner v. Cisneros, 37 F.3d 775 , 8 01 (2d Cir. 1 994). See German
1 4 v. Federal Home Loan Mortgage Corp., 8 96 F. Supp. 1385 , 1 391 (S.D.N.Y. 1995 ) ("Tb
1 5
1 6 Rule is to be construed liberally");
17 (1) There Is An Independent Ground For Jurisdiction
1 8
32. The Proposed Intervenor has claims against one or more same defendants
1 9
that arise under the federal antitrust laws, these claims are identical in all material
20
21 respects to those alleged in the current Complaint in those actions in which intervention
22 is sought. Claims happen also during same 2003-2006 timeline
23
24 Therefore, pursuant to 28 U.S.C. 1 33 1 (a), the Court has subject-matter
25 jurisdiction over the claims of the Proposed Intervenor.
26
27 (2) There Exist Common Questions Of Law And Fact Between The Intervenors
28
1 9
1
2
4 violations of federal law as the underlying action. Thus, it is
5
indisputable that the intervenors claims and the claims asserted in the underlying
6
actions have many common -- indeed identical -- questions of law and fact.
8 Diduck v. Kaszycki & Sons Contractors, Inc., 1 49 F.R.D. 5 5 , 5 9 (S.D.N.Y. 1 993)
9
1 0 (intervention granted where "the intervenor s claims raise identical questions of law
and fact to those currently before the Court");
1 2
34. A court may grant permissive intervention whenever the movant "has a clam
1 3
or defense that shares with the main action a common question of law or fact," and
1 4
1 5 when the intervention would not "unduly delay or prejudice the adjudication
1 6
1 7 of the original parties rights." Fed. R. Civ. P. 24(b). As explained above, Intervener
1 8 meets all of these requirements. Intervener is in an analogous posture, and like
1 9
20 appellants in Smoke v. Norton, has satisfied the requirements for intervention
21 as of Right under Rule 24(a)(2) and for permission intervention under Rule 24(b)(2).
22 Indeed, as Mayfield makes clear, one may challenge a settlement agreement to which h
23
24 is not a party if the agreement will cause him" plain legal prejudice, as
25 when the settlement strips the party of a legal claim or cause of action. "Mayfield, 985
26 F.2d at 1 0933 Under the discretionary standard, Interveners burden is far lower than tha
27
28
20
V
1 required for intervention as a matter of right. See Defenders of Wildlife, see also
2 I Northwest Forest Res. Council.
3
4
(3) Policy Considerations In Class Actions Strongly Favor Granting Intervention
5
I Motions
6
7
35 . In class actions, intervention is "highly desirable" "to ensure adequate class

8 representation." Triefv. Dun & Bradstreet Corp., 144 F.R.D. 193 , 202 (S.D.N.Y. 1992)
9
(rejecting defendants argument that intervention was untimely).
10
11
The decision in Shields v. Washington Bancorporation, Civ. A. No. 90-110 1,

12 1992 WL 88004 (D.D.C. Apr. 7, 1992), is instructive. In Shields, the court denied a
13
motion for class certification because the plaintiff was not an adequate class
14
15 representative. Id. at
*1.
Subsequently, a new plaintiff moved to intervene as the class
16
plaintiff. Id.
17
18
3 6. In this case, failing to pursue immediate intervention and insertion of new

19 evidence and matters and testimony would harm existing Plaintiff and thousands of
20 other Absentee Class members substantially.
21
22
It also prevent Intervenor from taking advantage of Federal anti-

23 retaliatory whistleblower statues and protections petitioner is due. The impairment to
24 Intervenors interest from the Courts ruling if intervention is not granted is sufficient
25
26 to qualify for intervention as of right.
27
3 7. The Intervenor is willing to be represented by counsel f so "undue delay,

28
21
complication, or procedural difficulty remain unlikely."
2
McNeill, 719 F. Supp. at 250; see also German v. Federal Home Loan Mortgage Corp.,
4 899 F. Supp. 1155, 1166-67(S.D.N.Y. 1995)
5
IV. CONCLUSION
6
38. For the reasons described above, Intervenor respectfully requests the Court
7
8 grant The motion to intervene as a matter of right pursuant to Rule 24(a), or, in the
9 alternative, permissively pursuant to Rule 24(b) and approve the order attached herein.
10
12 motion, the right to serve the Complaint in Intervention (Exhibit #2) , Motion for
13 Partial Summary Judgment (Exhibit #3) , ,and Motion for Preliminary 17200 Injunction
14
15 and/or Motion of Contempt for Violation 2006 California State Attorney 17200
16 Permanent Injunction entered into consent decree on behalf of Defendant News
17 Corporation with State Attorney (Exhibit #4) related and precedential rulings and
18
19 briefings attached as herein.
20 DATED: May 2, 2014
21 Respectfully submitted,
Brad D. Greenspan, Pro Se
25 264 South La Cienega Blvd.
26 Suite 1216
27 Beverly Hills, CA 90211
28
22
1
2 EXHIBIT #1
3 Rule 701 Damage Report
4
5
6
7
8
9
1 0
1 1
1 2
1 3
1 4
1 5
1 6
1 7
1 8
1 9
20
21
22
23
24
25
26
27
28
23
I N T H E C O U R T O F C H A N C E R Y O F T H E S T A T E O F D E L A W A R E
G R E E N S P A N ,
) C . A . N o . 9 5 6 7 - M E
Plaintiff, )
V . )
N E W S C O R P O R A T I O N , et at
Defendants
R U L E 7 0 1 D A M A G E R E P O R T
1
Cases Cited
pg.3
I I NTRODUCTI ON
pg. 4
I I OVERVI EW OF ASSI GNMENT
pg. 6
SUMMARY: $32.453 Billion in damages suffered by Class Members
I I I TRANSACTI ON BACKGROUND pg. 6
I V COMPANY BACKGROUND
12g.6
V I NDUSTRY ENVI RONMENT I N 2005 pg. 6
VI PROBLEMS WI TH THE MANAGEMENT FORECAST AND
pg. 7
DR. WI LLI AM KENNEDYS DAMAGES REPORT
VI I TRANSACTI ON BACKGROUND AND ASSUMPTI ONS 129 - 11
VI I I DAMAGES ANALYSI S
pg. 12
I X- CONCLUSI ON: 129 - 15
EXHI BI T 1 - BACKGROUND / WORK EXPERI ENCE pg. 16
EXHI BI T 2Chart - Monthly unique visitors MySpace pg. 18
2
CASES CITED
Lightning Lube, Inc. v, Witco Corp. 4F.3d 11433d Cir. 1993
pg. 4
United States v. Figueroa-Lopez, 125 F.3d 1241, 1246
(9th Cir. 1997)
pg. 5
Asplundh Mfg. Div. v. Benton Harbor Engg, 57 F.3d 1190, 1196
(3dCir. 1995)
pg. 6
In Doft & Co. V. Travelocity
pg. 8
Marcel v. See, Inc
pg. 10
Henry v. Hess Oil Virgin Islands Corp pg. 10
Rowe v. State Farm Mut. Auto. Ins. Co., pg. 10
United States v. Bighead, 128F.3d 1329, 1335 (9th Cir. 1997)
pg. 10
3
DECLARATION OF LAY OPINION UNDER RULE 701 BY BRAD D.
GREENSPAN: CEO, DIRECTOR, FOUNDER PAID SEARCH
DIVISION, HEAD OF M&A THRU OCTOBER 30, 2003. ONLY
EXECUTIVE TO HAVE COMPLETED A GOOGLE VS. YAHOO
SEARCH AUCTION
I INTRODUCTION
I, Brad Greenspan, declare:
1. I submit this declaration in support of the Plaintiff Class
Members.
The following is based on upon my personal knowledge and if called as a
Witness I could and would testify competently thereto.
2. This declaration is made under Rule 701 based on my experience.
3. Rule 701 allows lay witness declarations limited to those
opinions or inferences, which are (a) rationally based on the perception of the
witness, and (b) helpful to a clear understanding of the witness testimony or
the determination of a fact in issue, and (D not based on scientific, technical,
or other specialized knowledge within the scope of Rule 701.
4. I am also in a unique position to provide a valuation amount
Under Rule 701. Most courts have permitted the owner or officer of a
business to testify to the value or projected profits of the business, without
the necessity of qualifying the witness as an accountant, appraiser, or similar
expert. See, e.g., Lightning Lube, Inc. v, Witco Corp. 4F.3d 11433d Cir. 1993)
4
(no abuse of discretion in permitting the plaintiffs owner to give lay opinion
testimony as to damages, as it was based on his knowledge and participation
in the day-to-day affairs of the business). Such opinion testimony is admitted
not because of experience, training or specialized knowledge within the
realm of an expert, but because of the particularized knowledge that the
witness has by virtue of his or her position in the business.
5. The amendment does not distinguish between expert and lay
witnesses, but rather between expert and lay testimony. Certainly it is possible for
the same witness to provide both lay and expert testimony in a single case. See, e.g.,
United States v. Figueroa-Lopez, 125 F.3d 1241, 1246 (9th Cir. 1997) (law
enforcement agents could testify that the defendant was acting suspiciously,
without being qualified as experts; however, the rules on experts were applicable
where the agents testified on the basis of extensive experience that the defendant
was using code words to refer to drug quantities and prices). The amendment
makes clear that any part of a witness testimony that is based upon scientific,
technical, or other specialized knowledge within the scope of Rule 702 is governed
by the standards of Rule 702 and the corresponding disclosure requirements of the
Civil and Criminal Rules.
The amendment is not intended to affect the "prototypical example(s) of the
type of evidence contemplated by the adoption of Rule 701 relat(ing) to the
appearance of persons or things, identity, the manner of conduct, competency of a
person, degrees of light or darkness, sound, size, weight, distance, and an endless
number of items that cannot be described factually in words apart from
inferences." Asplundh Mfg. Div. V. Benton Harbor Engg, 57 F.3d 1190, 1196 (3d Cir.
1995).
II OVERVIEW OF ASSIGNMENT
-Updated/revised damages assessment for benefit of Plaintiff Class Members.
SUMMARY: $32453 Billion in damages suffered by Class Members
III TRANSACTION BACKGROUND
i) $12.00 cash out merger with two investment banks providing fairness
valuation reports created
ii) after the $12.00 price was chosen by CEO and accepted by Board of Issuer.
IV COMPANY BACKGROUND
Company was online entertainment and social networking website creator and also
for purposes of report owned 100% of MySpace, Inc. At the time of its sale in 2005
for approximately $649 million dollars, the purchase of the public shareholders
equity was reported to be $580 million and there existed a $69 million dollar
obligation to pay the minority shareholders of MySpace, Inc. according to
agreements signed in February 2005 by and between Redpoint, Inc. and Intermix,
Inc, and MSV LLC.
V INDUSTRY ENVIRONMENT IN 2005
i) Unique in that the pace of online advertising was growing much faster
then other industries in the United States.
6.
ii) Google had just successfully raised $4.4 billion dollars and announced the
sale in August 2005.
iii) According to company documents and testimony of former head of online
search and CEO and founder of MySpace.com and Issuer, Issuer had opportunity to
run a search auction as of at least August 2005 between at least Google, Yahoo,
Microsoft, AskJeeves, and AOL.
iv) Go ogle and AOL set market price for value of search assets on or around
the
3 rd
and
4th
quarters of calander 2005, closing a new Search Partnership in
December 2005.
v) In this transaction, Google invests $1 Billion into AOL, valuing AOL to be
worth $20 billion by virtue of the 5% stake Google takes for its investment.
VI PROBLEMS WITH THE MANAGEMENT FORECAST AND DR. WILLIAM
KENNEDYS DAMAGES REPORT
0
The damage report by Anders Minkler & Piehi LLP is helpful to
confirm the problem areas with management forecasts and the banker fairness
opinions. The expert also cites certain evidence that is useful in triangulating the
valuations we calculate and conclude in this report are more accurate and sound.
ii) Because of both unreliable forecasting historically proven by
management for MySpace, Inc. and because MySpace was an early stage company
experiencing significantly greater then average growth rates, Kennedy should not
have opted to follow bankers fairness opinion method to use the 2009/20010 DCF
method for a company like Intermix and merely hoped to gain accurate methods for
(
7
an accurate valuation of MySpace merely by adjusting the underlying financials.
iii) In Doft & Co. V. Travelocity, the Delaware Court made several
precedential determinations when faced with the task of weighing using
management forecasts for a new fast growing company in a fast changing market
environment, stating:
a)
The court may consider "proof of value by any techniques or methods
which are generally considered acceptable in the financial community and
otherwise admissible in court."
b)
"Both parties used a DCF approach and a comparable company approach to
value the shares.
c)
"A DCF analysis is a useful tool for valuing shares and is frequently relied on
by this court in appraisal actions."
d)
"The utility of a DCF analysis, however, depends on the validity and
reasonableness of the data relied upon. As this court has recognized,
"methods of valuation, including a discounted cash flow analysis, are only as
good as the inputs to the model."
e)
"The problem in this case is that the most fundamental input used by the
expertsthe projections offuture revenues, expenses and cash flowswere
not shown to be reasonably reliable."
D
"Delaware law clearly prefers valuations based on contemporaneously
prepared management projections because management ordinarily has the
best first-hand knowledge of a companys operations."
g)
"Here, management prepared the 5-year projections for the period 2002-
2005 and gave them to Sabre for use in its routine planning processes."
h)
"Often, projections of this sort are shown to be reasonably reliable and are
useful in later performing a DCF analysis. In this case, however, the court is
persuaded from a review of all the evidence that the Travelocity 5-year plan
does not provide a reliable basisfo rfo recasting future cash flows."
i)
"Travelocitys management held the strong view that these projections
should not be relied upon because the industry was so new and volatile that
iJ
reliable projections were impossible."
D
"Punwanifurther testified that because of the limited financial history of
Travelocity, together with a rapidly evolving marketplace, it was difficult "to
forecast the next quarter, let alone five years out."
k) "Id. "We were really not in a position to be able to put any credence on the
numbers, both on the revenue and on the cost side. And the only way to get
credibility in our numbers would have been to take those models and put
them through reasonability checks ... [that] were never done because, when
we built these frameworks, Ill call them, in the year 2000, we were in a
period of explosive growth. We were growing at 150 percent per year.... No
one really knew what the right number was." Id. at 381-82.
1) "Id. at 383. "It was bad enough before when we did the data, and we had
this new variable that got thrown into our lap, which totally destroyed our
ability to have any confidence in projections beyond one quarter out." Id.
m) "Although it was aware of the 5-year forecasts, Salomon did not conduct a
DCF analysis of Travelocity as part of its work in connection with the
merger. The testimony ofAnwarZakkour, Salomons managing director, is
especially relevant on this issue:
n)
"Q. Did Salomon Smith Barney prepare a discounted cash flow analysis of
Travelocity in connection with this transaction? A. Absolutely not."
o)
"Q. Why was no discounted cash flow, analysis prepared in connection with
this transaction?"
"A. Because this was an industry that was influx. And the management team
itself, which should have been the team that was most able to put together a set
of projections, would have told you it was virtually impossible to predict the
performance of this company into any sort of reasonable future term. And they
in fact had very little confidence with even, their 2002 forecast numbers because
of that."
p) "Q.
Is a discounted cash flow methodology a methodology that is
commonly used by Salomon Smith Barney in valuing companies?
A. Valuing mature companies, yes."
q)
"The court reluctantly concludes that it cannot properly rely on either partys
DCF valuation. The goal of the DCF method of valuation is to value future cash
flows. Here, the record clearly shows that, in the absence of reasonably reliable
contemporaneous projections, the degree of speculation and uncertainty
characterizing the future prospects of Travelo city and the industry in which it
operates make a DCF analysis of marginal utility as a valuation technique in this
case. If no other method of analysis were available, the court would, reluctantly,
undertake a DCF analysis and subject the outcome to an appropriately high level
of skepticism. The court, however, now turns to the other method of valuation
offered by the parties."
iv) The application of the Daubert standard rests on the level of generality of
the experts study. The more removed the experts data is from the facts of the
particular case the more unreliable and speculative his testimony becomes. For
example, in both Marcel v. See, Inc., and Henry v. Hess Oil Virgin Islands
Corp., the court excluded the experts testimony because the projections of
future earnings were based on general industry studies that failed to take into
consideration the specific circumstances of the plaintiff. In Rowe v. State Farm Mut.
Auto. Ins. Co., by contrast, the court allowed the projections because they were
based on the past billing history of the plaintiff, who as a result of his injuries could
not longer practice Law.
v) Rule 702s analysis is ordinarily prospective. Expert testimony is helpful
if it "will assist the trier of fact." Fed.R.Evid. 702 (emphasis added). Thus a
District court may not exclude expert testimony simply because the court can,
at the time of summary judgment, determine that the testimony does not result
in a triable issue of fact. Rather the court must determine whether there is "a
link between the experts testimony and the matter to be proved." United
States v. Bighead, 128 F.3d 1329, 1335 (9th Cir. 1997)
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VII TRANSACTION BACKGROUND AND ASSUMPTIONS
iJ Based on the evidence reviewed, the Intermix Board avoided
using the experienced valuation M&A technology banker, JP Morgans Zakkour.
News Corp received the benefit of keeping this banker from representing Issuer.
Namely that News Corp did not have to overcome or pay the up to $1.3+ Billion that
Zakkour estimated MySpace was worth prior to the July 18, 2005 merger
Agreement being signed.
a) Zakkour leads Citibanks valuation/fairness report and is engaged by Ask
Jeeves Board of Directors along with Allen & Co. in February 2005 and values
AskJeeves worth at least $1.85 million at the time it signs a merger agreement with
IAC Corp. in March 2005.
b)
AskJeeves lead director David Carlick engaged Zakkour and Allen & co. to
work for and represent Ask Jeeves in February 2005, while he was at the same time
Director and Chairman of Intermix. In addition Andrew Sheehan, his partner in his
venture capital fund VantagePoint, a control shareholder in Intermix was a director
of both Intermix and MySpace, Inc. Geoff Yang a long time director of AskJeeves was
also a director of MySpace, Inc.
c)
The AskJeeves/IAC a stock for stock merger does not close until July 19,
2005.
d)
In April 2005, Zakkour joins JPMorgan. JPMorgan served as the investment
bank for IAC in the March 2005 announced merger with Ask Jeeves.
e)
One Board member of IAC Corp during this period is also the Chairman of
11
Investment bank Allen & Co. IAC also discloses it retains and works with Allen & Co.
as their banker in ongoing basis.
f] News Corp Director Stan Schuman in 2005 was and is one of most senior
bankers at Allen & Co. of senior bankers at Allen & Co.
gJ As of July 13, 2005 or earlier, Zakkour and JPMorgan have been retained to
value Intermix, Inc. and on July 16, 2005, Zakkours team leading the efforts for JP
Morgan and News Corp, provides a valuation for MySpace, Inc. of $1,040 - $1,367.
Zakkour according to Kennedy, uses "2006 EBITDA Multiples"
h) Defendants further determined they would not allow Deutsche Bank to
write a fairness opinion or be one of the two bankers it ultimately retained.
i) On or around July 13, 2005, Issuer retained both Thomas Weisel and
Montgomery. Both banks had not completed the valuation work or provided a full
valuation report prior to being retained. Unlike Montgomery and Thomas Weisel,
Deutsche Bank had already created and provided to at least Rosenblatt and
Sheehan, a Valuation report as of May 2005.
VIII DAMAGES ANALYSIS
1) Financial Projections for MySpace. Inc. using actual 2005 results known:
a) The most accurate way to ascertain the valuation for MySpace, Inc. is to
build a new set of financial projections more reliable then the management forecast
and then combine this data with the most unconflicted comparable valuation report
that existed at the time.
12
b)
We take the last actual quarter to quarter financial results for MySpace,
Inc. and use these as the base information which we know is accurate and build a
multi year forecast, initially we continue the actual growth rate and over time
reduce such growth rate to be conservative.
c)
Last Actual results for MySpace, Inc.: $3.74 million in revenue for the
March 2005 ending quarter which grew to $6.15 million in revenue for June 2005
quarter - 64% growth quarter to quarter.
d) Last actual results for MySpace, Inc: $463,000 in EBITDA for the March
2005 quarter which grew to $1.58 million in EBITDA for the June 2005 quarter.
e)
Using these growth rates, we then use Kennedys 55% EBITDA margin and
being conservative we reduce this to 45% for 2006. In 2007, we reduce growth rate
from 64% to 32%. In 2008, we reduce the quarterly growth rate to 22%.
Below we summarize the annual forecast.
fJ (CY2 006) Our MySpace, Inc. forecast using most recent actual results
shows $264.21 million in annual revenue for 2006 and EBITDA of $118.89 million
g) (CY2007) Our MySpace Inc. forecast shows $999 million in revenue
and EBITDA of $449.55 million.
h) (CY2008) Our MySpace, Inc. forecast shows $2.43 billion & EBITDA
of $1.09 billion.
2) ITS APPROPRIATE TO CONSIDER AND USE A COMPARABLE COMPANY
VALUATION ON A STAND-ALONE BASIS
a) We then determine that the May 2005 Deutsche Bank valuation report
13
which uses comparable company EBITDA valuations is reasonable and the prudent
work of unconflicted investment bankers trying to demonstrate their good faith and
knowledge of the Internet sector to Intermix in their efforts to be retained by
Intermix to contact potential buyers.
b) Our decision is further confirmed thru review of the recent Delaware case
in Doft & Co. V. Travelocity where the court states as part of its decision to reject
managements forecast and a valuation using DCF in favor of singularly using
comparable company valuation method.
c) "A comparable company analysis is often used in connection with a DCF
analysis. The court, however, may usea corn parable company valuation on
a stand-alone basis in an appraisal action when it is the only reliable
method of valuation offered by the parties. In Borruso v. Communications
Telesystems Intl, the court relied on a comparable company analysis
because neither expert was comfortable using a DCF analysis to value the
companys shares due to the limited financial data of the company available
as of the merger date. 753 A.2d 451, 455 n.5 (Del. Ch. 1999)."
d) We use the Deutsche report 2008 multiple for MySpace, Inc. of 22.5X
which is the top end of the "Estimated multiple range" as we believe this is
appropriate since based on the Kennedy report, Google stood out as the most
similar growth and profitability rates to MySpace, Inc.
e) Next we plug in the MySpaces new forecast EBITDA for 2008 which is
multiplied by the 22.5X comparable company EBITDA, resulting in a Valuation of
$24.52 Billion for 100% of MySpace, Inc.
fJ We agree with Kennedys takeover premium analysis and the need to
adjust valuation based on this analysis. In addition, we again take heed of the recent
14
Delaware court decision in Doft & Co. V. Travelocity where the court affirms this
analysis and recommends adding a premium to the buyout value as final step,
stating,
"Delaware law recognizes that there is an inherent minority
trading discount in a comparable company analysis because "the
[valuation] method depends on comparisons to market multiples
derived from trading information for minority blocks of the comparable
companies. The equity valuation produced in a comparable company
analysis does not accurately reflect the intrinsic worth of a corporation
on a going concern basis. Therefore, the court, in appraising the fair
value of the equity, "must correct this minority trading discount by
adding back a premium designed to correct it."
gJ
Therefore, we use Kennedys 35% takeover premium and summarize:
control Controlling value Option Value
premium Indication Exercise MySpace
2008 EBITDA MULTIPLE 35% $33.10213 ($69M) $33.033 Billion
Indication $32.453B
Based on the alternative guideline public company analysis provided above.
MySpace was undervalued by $31453 billion ($33.033B - $580M).
IX- CONCLUSION:
I declare on penalty of perjury under the laws of the United States of America that
the foregoing is true and correct. Executed this April 28, 2014 in Los
Angeles
15
Brad D. Greenspan (SEAL)
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EXHIBIT 1 - BACKGROUND / WORK EXPERIENCE
QUALIFICATIONS OF EXPERT
-I have approximately 12 years of industry experience.
-I was CEO and founder of ellniverse, Inc. from its inception in 1998 as my idea thru
October 30, 2003.
-I was the founder of MySpace.com while Chairman and CEO of eUniverse in 2003.
PROFESSIONAL QUALIFICATIONS
-Educational & Professional Certification
i) Two years of Law Society Undergraduate at University of Santa Barbara
ii) Bachelors of Political Science, 1996 University of Los Angeles
PROFESSIONAL RECOGNITIONS AND AFFILIATIONS
i) Morgan Stanleys Internet analyst announced in November 2003 that
Issuer eUniverse as of October 2003s 6 month ending data, was the #1
fastest growing portal on the Internet eclipsing AOL and Yahoo.
ii) Founder of Myspace.com.
iii) Founder of eUniverse
PRESENTATIONS AND PUBLICATIONS
i) Between 1999-October 2003 I co-created and presented Issuers financial
forecasts and was sole decision maker on all internet strategy and determined
allocation of funds if any for any new project.
PROFESSIONAL EXPERIENCE
1996-19980 President of Palisades Capital a merchant investment bank
where I raised over $60 million dollars for 4 public companies.
1999- October 30, 2003 - Chairman and CEO of eUniverse, Inc.
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-I was initial and first head of Search for ellniverse, Inc., the issuer and signed
first search partnership with Overture acquired and operated as Yahoo in
2003.
2004-2005- Palisades Technology - I was partners with Yahoo and operated
a search toolbar division for game companies including leading casual games
company Big Fish Games and Browser companies like AvantFind.com
2006-president, President LiveUniverse, Inc. - a network of entertainment
websites
2008-present, President of LiveVideo, Inc. - a Los Angeles based network of
entertainment websites
2006-present, Chairman of BroadWebAsia, Inc., - operates HupoTV.CN a
Chinese video entertainment website
2006-2009, Co-Founder and Board Member, Michigan based Draths
Corporation, clean technology leader in renewable green chemistry.
Management led by Michigan State University professors and green
chemistry award winners Dr. Karen Draths and Dr. John Frost.
2006-present, Board Member, Borba Corporation
2010-present- Managing Director of Social Slingshot Pte Ltd, a Singapore
based incubator fund partnered with the Singapore Governments National
Research Foundation (NRF). I was awarded this $5 million dollar fund to
encourage me to work with Singapore entrepreneurs and their universities
entrepreneur programs.
TESTIMONY IN TRIAL OR DEPOSITION
i) Greenspan V. eUniverse, 2004, Delaware Judge Strine. (See summary of trial
where I provided Delaware counsel evidence to uncover backdating fraud against
defendants)
ii) Delagado V. Intermix. I was expert witness for LA City and provided fact
information and background for the city of Los Angeles prosecutors in their adware
consumer case against Intermix that was settled after Intermixs listing expired.
17
EXHIBIT 2- Monthly unique visitors as reported by Comscore for Myspace.com
Compared to certain key months where Microsoft and Google offered MySpace or
its parent company certain economic offers which provide a value per month these
companies are willing to pay or value MySpace search at for the latest
traffic/audience statistics that are available during the month a deal is offered up
for MySpace.
July 2005
August 2005
September 2005
October 2005
November 2005
December 2005
January 2006
February 2006
March 2006
April 2006
May2006
June 2006
July 2006
August 2006
September 2006
21.21M uniques
21.81M uniques
21.6M uniques
24.25M uniques
24.68M uniques
32.2M uniques
35.5M uniques
37.34M uniques
41.88M uniques
48.03M uniques
51.44M uniques
52.34M uniques
54.52M uniques
55.78M
$14.807
$22.1 Million
Value
MSFT$800M
OFFER
$25.0 Million
Value
GOOGLE $900
OFFER
jul

1
Case No.: 11-CV-02509-LHK
ORDER DENYING DEFENDANTS INDIVIDUAL MOTIONS FOR SUMMARY J UDGMENT
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NORTHERN DISTRICT OF CALIFORNIA

SAN J OSE DIVISION

IN RE: HIGH-TECH EMPLOYEE
ANTITRUST LITIGATION

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ORDER DENYING DEFENDANTS
INDIVIDUAL MOTIONS FOR
SUMMARY J UDGMENT

THIS DOCUMENT RELATES TO:
ALL ACTIONS
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Summary judgment is appropriate if, viewing the evidence and drawing all reasonable
inferences in the light most favorable to the nonmoving party, there are no genuine disputed issues
of material fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material if it might affect the
outcome of the suit under the governing law, and a dispute as to a material fact is genuine if
there is sufficient evidence for a reasonable trier of fact to decide in favor of the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). At the summary judgment stage, the
Court does not assess credibility or weigh the evidence, but simply determines whether there is a
genuine factual issue for trial. House v. Bell, 547 U.S. 518, 559-60 (2006). The moving party has
the burden of demonstrating the absence of a genuine issue of fact for trial. Celotex, 477 U.S. at
Case5:11-cv-02509-LHK Document771 Filed03/28/14 Page1 of 8

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323. To meet its burden, the moving party must either produce evidence negating an essential
element of the nonmoving partys claim or defense or show that the nonmoving party does not
have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.
Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000)
(citation omitted). Once the moving party has satisfied its initial burden of production, the burden
shifts to the nonmoving party to show that there is a genuine issue of material fact. Id. at 1103.
Importantly, at the summary judgment stage, the Court must view the record in the light most
favorable to the non-moving party. Brown v. City of Los Angeles, 521 F.3d 1238, 1240 (9th Cir.
2008).
The critical case for the legal standard to be applied to motions for summary judgment in
antitrust cases is Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986),
a case that challenged J apanese manufacturers lowering of prices as anti-competitive. In
Matsushita, the Supreme Court held that a plaintiff seeking damages for a violation of 1 [of the
Sherman Act] must present evidence that tends to exclude the possibility that the alleged
conspirators acted independently. Id. at 588. Under Matsushita, if Defendants can show a
plausible and justifiable reason for their conduct that is consistent with proper business practice,
Plaintiffs must show that the inference of conspiracy is reasonable in light of the competing
inferences of independent action or collusive action that could not have harmed [plaintiffs]. Id.
The Ninth Circuit has interpreted Matsushita to mean that where a defendant has demonstrated a
plausible business reason for its conduct, a plaintiff who relies solely on circumstantial evidence
of conspiracy . . . must produce evidence tending to exclude the possibility that defendants acted
independently. In re Citric Acid Litig., 191 F.3d 1090, 1096 (9th Cir. 1999). The Second Circuit,
in 2012, interpreted Matsushita and Citric Acid as follows: [Matsushita] further holds that the
range of inferences that may be drawn . . . depends on the plausibility of the plaintiffs theory.
Thus, where a plaintiffs theory of recovery is implausible, it takes strong direct or circumstantial
evidence to satisfy Matsushitas tends to exclude standard. By contrast, broader inferences are
permitted, and the tends to exclude standard is more easily satisfied, when the conspiracy is
economically sensible for the alleged conspirators to undertake and the challenged activities could

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not reasonably be perceived as procompetitive. In re Publn Paper Antitrust Litig., 690 F.3d 51,
63 (2d Cir. 2012) cert. denied, 133 S. Ct. 940 (2013).
The Court finds that in light of the summary judgment standard as viewed through the lens
of Matsushita and its progeny, Plaintiffs have presented sufficient evidence that tends to exclude
the possibility that Defendants acted independently even if Defendants satisfied the first prong of
Matsushita by showing a plausible and justifiable reason for their conduct that is consistent with
proper business practices.

The Court need not determine whether Defendants have met their burden
with respect to Matsushitas first prong, because the Court finds that Plaintiffs have satisfied their
burden of providing specific evidence tending to show that [Defendants were] not engaging in
permissible competitive behavior. Citric Acid Litig., 191 F.3d at 1094.
Here, as Edward Catmull (Pixar President) noted, it was economically sensible for the
alleged conspirators to undertake the alleged conspiracy, because solicitation messes up the pay
structure. Catmull Depo. at 179. As George Lucas (former Lucasfilm Chairman of the Board and
CEO) stated, we cannot get into a bidding war with other companies because we dont have the
margins for that sort of thing. Lucas Depo. at 44. Further, as Meg Whitman (former CEO of eBay)
said to Eric Schmidt (Google Executive Chairman, Member of the Board of Directors, and former
CEO), Google is the talk of the Valley because [Google is] driving up salaries across the board.
Cisneros Decl., Ex. 872.
In light of this backdrop, the Court will now review some of the evidence that tends to
exclude the possibility that Defendants acted independently. Defendants have conceded that there
were a series of six bilateral agreements for the purpose of these motions: Pixar-Lucasfilm, Apple-
Adobe, Apple-Google, Apple-Pixar, Google-Intuit, and Google-Intel. All six of these agreements
contained nearly identical terms, precluding each pair from affirmatively soliciting any of each
others employees. ECF No. 531, October 24, 2013 Order Granting Plaintiffs Supplemental
Motion for Class Cert. (October Class Cert. Order) at 30. Defendants experts concede that they
are unaware of these types of long-term, all-employee agreements ever occurring between other
firms. See, e.g., Talley Depo. at 35.

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In addition, there is evidence that Defendants themselves recognized the similarities
between the agreements. For example, in an email, Lori McAdams (Pixar Vice President of Human
Resources and Administration), stated that effective now, well follow a gentlemans agreement
with Apple that is similar to our Lucasfilm agreement. October Class Cert. Order at 26. Moreover,
Google maintained an explicit do-not-cold-call list that grouped Apple, Intel, and Intuit together.
ECF No. 187, Ex. 29. Defendants also recognized that these agreements were not designed for
circulation, and tried to ensure that the agreements were known only to recruiters and executives
who had to enforce them. For example, Eric Schmidt (Google Executive Chairman, Member of the
Board of Directors, and former CEO) instructed one of his executives that Mr. Schmidt preferred
that the do-not-cold-call list be shared verbally, since I dont want to create a paper trail over
which we can be sued later. Id. at 27. Similarly, in response to a question from an Intel recruiter,
Paul Otellini (CEO of Intel and Member of the Google Board of Directors) stated regarding the
Intel-Google agreement we have a handshake no recruit between eric [Schmidt] and myself. I
would not like this broadly known. Id. at 28.
Furthermore, there is evidence that many of the Defendants knew about each others anti-
solicitation agreements. For example, according to Edward Catmull (Pixar President), Steve J obs
(Co-Founder, Former Chairman, and Former CEO of Apple, Former CEO of Pixar) knew and
understood the Lucasfilm-Pixar agreement. Catmull Depo. at 61. Similarly, Eric Schmidt of
Google testified that it would be fair to extrapolate, based on Mr. Schmidts knowledge of Mr.
J obs, that Mr. J obs would have extended [anti-solicitation agreements] to others. Schmidt Depo.
at 169. Google recruiters were familiar that Apple and Adobe had an agreement. Flynn Depo. at 65.
Paul Otellini (CEO of Intel and Member of the Google Board of Directors) was told by Eric
Schmidt (Google Executive Chairman, Member of the Board of Directors, and former CEO) and
Sergey Brin (Google Co-Founder) about the Apple-Google agreement. Brin Depo. at 74; Schmidt
Depo. at 126. Intels own expert testified that Mr. Otellini was likely aware of Googles other
bilateral agreements by virtue of Mr. Otellinis membership on Googles board. Snyder Depo. at
258. In fact, in its Motion, Intel concedes for the purposes of the instant motions that Mr. Otellini
knew the contents of Googles do-not-cold-call list, which included Apple and Intel. Intel MSJ at 4.

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Next, these agreements were negotiated by a small group of intertwining high-level
executives at the Defendant firms. For example, Steve J obs (Co-Founder, Former Chairman, and
Former CEO of Apple, Former CEO of Pixar) was personally involved in Apples anti-solicitation
agreements with Adobe, Google, and Pixar. With regard to Apples agreement with Google, Mr.
J obs contacted Sergey Brin (Google Co-Founder) directly, which led Mr. Brin to recognize that
[b]asically, [Mr. J obs] said if you hire a single one of these people that means war. Cisneros
Decl., Ex. 1871. The next day, Bill Campbell (Chairman of Intuit Board of Directors, Co-Lead
Director of Apple, and advisor to Google), a friend of Mr. J obs, informed Mr. J obs that Eric
Schmidt told me that he got directly involved and firmly stopped all efforts to recruit anyone from
Apple. Cisneros Decl., Ex. 199. Moreover, it was upon Mr. Campbells suggestion that Google
agreed to enter into its anti-solicitation agreement with Intuit, of which Mr. Campbell was Board
Chairman. Cisneros Decl., Ex. 597.
As discussed in some detail in this Courts October Class Certification Order, the same
small group of intertwining high-level executives were involved in strictly enforcing the
agreements. For example, when a Google recruiter contacted an Apple engineer, Steve J obs (Co-
Founder, Former Chairman, and Former CEO of Apple, Former CEO of Pixar) forwarded the
message to Eric Schmidt (Google Executive Chairman, Member of the Board of Directors, and
former CEO), who had the recruiter terminated within the hour. Id. at 36. Bill Campbell (Chairman
of Intuit Board of Directors, Co-Lead Director of Apple, and advisor to Google) similarly emailed
Sergey Brin (Google Co-Founder), stating that Steve J obs called me again and is pissed that we
are still recruiting his browser guy. Id. at 36. Paul Otellini (CEO of Intel and Member of the
Google Board of Directors) similarly forwarded an email regarding recruitment of an Intel
employee by a Google recruiter to Mr. Schmidt, Googles CEO, who responded by saying that, If
we find that a recruiter called into Intel, we will terminate the recruiter. Id. at 37.
1
Edward
Catmull (Pixar President) similarly had direct discussions with Steve J obs regarding whether Pixar
could communicate with specific individual Apple employees. Id. at 37-38. Bill Campbell

1
In an email to Mr. Campbell, Mr. Schmidt indicated that he directed a for-cause termination of
another Google recruiter, who had attempted to recruit an executive of eBay, which was on
Googles do-not-cold-call list. Cisneros Decl., Ex. 872.

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(Chairman of Intuit Board of Directors, Co-Lead Director of Apple, and advisor to Google) was
also part of enforcing the Google-Intel agreement, because Mr. Campbell in communication with
Googles executives agreed that Google should call Paul Otellini (CEO of Intel and Member of the
Google Board of Directors) before making an offer to an Intel employee. October Class Cert. Order
at 28. That the agreements were entered into and enforced by a small group of intertwining high-
level executives bolsters the inference that the agreements were not independent.
Moreover, there is evidence that the Defendants shared confidential compensation
information with each other despite the fact that they considered each other competitors for talent.
For example, Adobe saw itself as in a talent war with Google and Apple and that Adobe was in a
six-horse compensation race against Google, Apple, Intuit, and three others. Id. at 47. Apple also
viewed Google and Intel as peer companies in terms of competition for talent. Id. at 48. Adobe
benchmarked its compensation against Google, Apple, and Intel, while Google compared its
compensation to Apple, Intel, Adobe, and Intuit; and Intel benchmarked against Apple and Google.
Id. at 47-48. The evidence shows that HR personnel at Intuit and at Adobe were communicating
about confidential information regarding how much compensation each firm would give and to
which employees that year. Cisneros Decl., Ex. 2812 (emphasis in original). Adobe and Intuit
shared confidential compensation information even though the two companies had no bilateral anti-
solicitation agreement, and Adobe viewed Intuit as a competitor in a six-horse compensation race.
Meanwhile, Google circulated an email that expressly discussed how its budget is comparable to
other tech companies and compared the precise percentage of Googles merit budget increases to
that of Adobe, Apple, and Intel. Cisernos Decl., Ex. 621. Google had Adobes precise percentage
of merit budget increases even though Google and Adobe had no bilateral anti-solicitation
agreement. Paul Otellini (CEO of Intel and Member of the Google Board of Directors) similarly
circulated information regarding peer companies bonus plans that he lifted from Google.
Cisneros Decl., Ex. 463. This Google document discusses bonuses at Apple and Intel. A reasonable
jury could infer that this confidential information could be shared safely by competitors only
because the anti-solicitation agreements squelched true competition.

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Finally, there is evidence that Defendants, through many of the same executives who
negotiated and enforced the agreements at issue in this case, expanded and attempted to expand the
anti-solicitation agreements to non-Defendants, which undermines Defendants claim of
independent bilateral agreements. For example, Steve J obs (Co-Founder, Former Chairman, and
Former CEO of Apple, Former CEO of Pixar) called Edward Colligan (former President and CEO
of Palm) to ask Mr. Colligan to enter into an anti-solicitation agreement and threatened patent
litigation against Palm if Palm refused to do so. Colligan Decl. 6-8. This was similar to Mr.
J obs negotiation of the agreement with Adobe, which resulted from Mr. J obs threat to start
aggressively recruiting Adobes employees absent such an agreement. Bill Campbell (Chairman of
Intuit Board of Directors, Co-Lead Director of Apple, and advisor to Google), in his capacity as an
advisor to Google, unsuccessfully sought to expand Googles anti-solicitation agreements to
Facebook by responding to an email about Facebooks solicitation of Googles employees with
Who should contact Sheryl [Sandberg] (or Mark [Zuckerberg]) to get a cease fire? We have to get
a truce. Mr. Chizen of Adobe, in response to discovering that Apple was recruiting employees of
Macromedia (a separate entity that Adobe would later acquire), helped ensure, through an email to
Mr. J obs, that Apple would honor Apples pre-existing anti-solicitation agreements with both
Adobe and Macromedia after Adobes acquisition of Macromedia. Cisneros Decl., Exs. 1808,
1812. These expansions and attempted expansions of the anti-solicitation agreements suggest that
the agreements were not isolated, independent bilateral agreements, but rather were part of a
broader conspiracy.
In sum, the Court does not determine at the summary judgment stage which side should
prevail. Rather, the Courts task is only to determine whether the Plaintiffs have presented
sufficient evidence to warrant adjudication by a jury. For the reasons stated, the Court answers this
question in the affirmative. The similarities in the various agreements, the small number of
intertwining high-level executives who entered into and enforced the agreements, Defendants
knowledge about the other agreements, the sharing and benchmarking of confidential
compensation information among Defendants and even between firms that did not have bilateral
anti-solicitation agreements, along with Defendants expansion and attempted expansion of the

8
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anti-solicitation agreements constitutes evidence, viewed in the light most favorable to Plaintiffs,
that tends to exclude the possibility that defendants acted independently, such that the question of
whether there was an overarching conspiracy must be resolved by a jury. Accordingly, each of the
Defendants individual motions for summary judgment is DENIED.

IT IS SO ORDERED.
Dated: March 28, 2014 ________________________________
LUCY H. KOH
United States District J udge

4/27/14 12:46 AM Abigail LeGrow 04 appointed to Master in Chancery for Delaware Judiciary | Penn State Law
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Abigail LeGrow 04 appointed to Master in
Chancery for Delaware Judiciary
February 22, 2012
Abigail LeGrow 04 was recently appointed Master in Chancery for the Delaware Judiciary, a court which has been
ranked first in the nation since 2002.
To me, working on this court, and for the Delaware Judiciary in general, is a tremendous honor, said LeGrow. The
Court of Chancery is held in high esteem nationwide, both because of the qualifications and dedication of the
chancellor and vice chancellors (past and present), and because of the courts willingness to consider and decide
expedited cases in a very prompt fashion.
The Court of Chancerys jurisdiction is primarily limited to cases based in equity. Historically speaking, the Masters
in Chancery have handled the traditional equity jurisdiction of the Court, particularly trusts and estates,
guardianship, and disputes involving real property.
Ive only been here a few months, but so far the thing I most enjoy is
being in a position to help people and make decisions that (hopefully)
resolve stressful problems that have arisen in their lives, said LeGrow.
There is a human, real-life element to the cases on my docket that
was sometimes missing in private practice.
Prior to joining the Delaware Judiciary, LeGrow was an associate in the
Corporate Group of Potter Anderson & Corroon LLP. During my time
in private practice, I was able to represent different corporations which
gave me the chance to learn about a variety of fields, said LeGrow.
Each corporation is different and in order to represent them
effectively I usually had to learn about their business. I became intimately familiar with orphan drugs, the New York
real estate market, differentiated chemicals, residential mortgage-backed securities, and high speed lasers for
cardiac imaging, to name a few. It helped keep each case interesting when I was engaged in some of the more
mundane aspects of litigation. Among the many reasons LeGrow chose to practice in corporate law is its dynamic
nature. It is always changing and evolving as businesses grow and change, said LeGrow.
Her switch from advocacy to impartiality has been challenging for LeGrow, but in a good way, she said. I think
advocacy comes easier to most lawyers (myself included), because we are usually arguers by nature, and it is fun to
be told here is your side, here is where you want to end up, now go do it. But so far Ive enjoyed the role of
impartial decision-maker. It is nice to consider a case from all sides and all angles, and then try to reach the right
result. In that sense, it is similar to a law school exam, only there is a lot more riding on the outcome.
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LeGrow enjoys living and working in Delaware. When I was in practice, I worked in a sophisticated, challenging,
high-profile field while enjoying the advantages of life in a relatively small city. As a corporate litigator, I represented
multinational corporations, yet my job was a ten-minute commute from my home in the suburbs. Very few people
can have the best of both worlds, in that sense. Now, the commute is the same and Im part of a court that Ive
admired since my summer associate year. It doesnt get much better than this.
Her husband, Brian LeGrow 04 is an associate with the Law Offices of Vincent B. Mancini & Associates, and focuses
his practice on business litigation, commercial litigation, real estate, civil rights section 1983, property law, federal
civil practice, and landlord-tenant law. They met during law school and are the parents of two children.

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4/7/14 3:14 PM Dilbert (TV series) - Wikipedia, the free encyclopedia
Page 1 of 10 http://en.wikipedia.org/wiki/Dilbert_(TV_series)
Dilbert
Genre Comedy
Format Animation
Created by Scott Adams
Developed by Scott Adams
Larry Charles
Directed by Rick Del Carmen
James Hull
Voices of Daniel Stern
Chris Elliott
Larry Miller
Gordon Hunt
Kathy Griffin
Jackie Hoffman
Theme music
composer
Danny Elfman
Opening theme "The Dilbert Zone"
Composer(s) Adam Cohen
Ian Dye
Country of origin United States
Original
language(s)
English
No. of seasons 2
Dilbert (TV series)
From Wikipedia, the free encyclopedia
Dilbert is an animated television series adaptation of
the comic strip of the same name, produced by
Adelaide Productions, Idbox, and United Media and
distributed by Columbia TriStar Television. The first
episode was broadcast on January 25, 1999, and was
UPN's highest-rated comedy series premiere at that
point in the network's history; it lasted two seasons on
UPN and won a Primetime Emmy before its
cancellation.
[1]
Contents
1 Synopsis
2 History
2.1 Conception
2.2 Cancellation
3 Cast
3.1 Guest stars
4 Episodes
4.1 Season 1 (1999)
4.2 Season 2 (19992000)
5 Reception
5.1 Ratings
5.2 Awards
6 Home releases
7 See also
8 References
9 External links
Synopsis
The series follows the adventures of a middle-aged
white collar office worker, named Dilbert who is
extremely intelligent in regards to all things that fall
within the boundaries of electrical engineering.
Although Dilberts intelligence greatly surpasses that of
his incompetent colleagues at work, he is unable to
question certain processes that he believes to be
inefficient, due to his lack of power within the
No. of episodes 30 (List of episodes)
Production
Executive
producer(s)
Scott Adams
Larry Charles
Producer(s) Jeffrey L. Goldstein
Ron Nelson
Kara Vallow
Editor(s) Mark Scheib
Running time 22 minutes
Production
company(s)
Idbox
United Media
Columbia TriStar
Television
Distributor Sony Pictures Television
Broadcast
Original channel UPN
Picture format 4:3 SDTV
Audio format Dolby Surround
Original run January 25, 1999 July
25, 2000
organization. Thus, he is consistently found to be
unsatisfied with the decisions that are made in his
workplace, because of the fact that many times he has
many suggestions to improve the decision, yet is
incapable of expressing them. Consequently, he is
often found to show a pessimistic and frustrated
attitude, which ultimately lands him in various comedic
situations that revolve around concepts like leadership,
teamwork, communication and corporate culture.
History
The first season centers on the creation of a new
product, the "Gruntmaster 6000". The first three
episodes involve the idea process ("The Name", "The
Competition", and "The Prototype" respectively); the
fifth ("Testing") involves having it survive a malevolent
company tester named "Bob Bastard" (who is
somewhat like Dilbert before being humiliated and
disfigured), and the sixth ("Elbonian Trip") is about
production in the famine-stricken fourth-world country
of Elbonia. The prototype is delivered to an incredibly
stupid family in Squiddler's Patch, Texas, during the
thirteenth and final episode of the season,
"Infomercial", even though it was not tested in a lab
beforehand. The family's misuse of the prototype
creates a black hole that sucks Dilbert in; he instantly wakes up in the meeting seen at the start of
the episode, then locks his design lab to keep the prototype from being shipped out.
[2]
The second season features seventeen episodes, bringing the total number of episodes to thirty.
Unlike the first season, the episodes are not part of a larger story arc and have a different storyline
for each of the episodes (with the exception of episodes 26 and 27, "Pregnancy" and "The
Delivery"). Elbonia is revisited once more in "Hunger"; Dogbert still manages to scam people in
"Art"; Dilbert is accused of mass murder in "The Trial"; and Wally gets his own disciples (the result of
a complicated misunderstanding, the company launching a rocket for NASA, and a brainwashing
seminar) in episode 16, "The Shroud of Wally".
[3]
The theme music, "The Dilbert Zone", was written by Danny Elfman, and is a slight rewrite from the
theme of the film Forbidden Zone, originally performed by Elfman's band, The Mystic Knights of the
Oingo Boingo.
Conception
Scott Adams, the creator of Dilbert, decided to create the series for UPN because the network
promised 13 episodes on air, while other networks would only consider the series against other
programming options. Adams added to that "If we had gone with NBC, they would have given
Dilbert a love interest with sexual tension." UPN was the sixth-ranked network at the time and
picked up the show in hopes of broadening their appeal and to prove they were committed to riskier
alternative shows. Adams stated about turning Dilbert into a series "It's a very freeing experience
because doing the comic strip limits me to three (picture) panels with four lines or less of dialogue
per issue, in the TV series, I have 21 minutes per episode to be funny. I can follow a theme from
beginning to end, which will add lots of richness to the characters." Adams wanted the series to be
animated because the live action version shot previously for FOX didn't translate well. Adams added
to that "If Dilbert's going to be at the top of the Alps, you just draw it that way and you don't have to
build an Alps scene. You can also violate some laws of physics, and cause and effect. People
forgive it very easily. So it's much more freeing creatively."
[4][5][6][7]
Cancellation
On November 22, 2006, when Adams was asked why the show was canceled, he stated "It was on
UPN, a network that few people watch. And because of some management screw-ups between the
first and second seasons the time slot kept changing and we lost our viewers. We were also
scheduled to follow the worst TV show ever made: Shasta McNasty. On TV, your viewership is 75%
determined by how many people watched the show before yours. That killed us."
[8]
Cast
Daniel Stern Dilbert
[9]
Chris Elliott Dogbert
Larry Miller The Pointy-Haired Boss
Gordon Hunt Wally
Kathy Griffin Alice (uncredited)
Jackie Hoffman Dilmom
Jim Wise Loud Howard
Tom Kenny Ratbert, Asok, additional Voices
Gary Kroeger Additional voices
Maurice LaMarche The World's Smartest Garbageman, Bob the Dinosaur, additional voices
Tress MacNeille Carol, Lena, additional voices
Jason Alexander Catbert
Guest stars
Stone Cold Steve Austin Himself
Jennifer Bransford Ashley
Andy Dick Dilbert's Assistant Alfonso
Jon Favreau Holden Callfielder
Gilbert Gottfried Accounting Troll
Tom Green Jerrold
Christopher Guest The Dupey
Buck Henry Dadbert
Harry Kalas Baseball Announcer
Wayne Knight Path-E-Tech Security Guard
Jay Leno Himself
Eugene Levy Comp-U-Comp's Plug Guard
Camryn Manheim Juliet
Mr. Moviefone Himself
Chazz Palminteri Leonardo da Vinci
Jeri Ryan Seven of Nine Alarm Clock
Jerry Seinfeld Comp-U-Comp
Billy West Vibrating Chair Salesman, Rioting Engineer (Pilot episode only)
Episodes
Season 1 (1999)
# Title Directed by Written by Original air date
Production
code
1 "The Name" Seth Kearsley
Larry Charles & Scott
Adams
January 25, 1999 101
Dilbert is tasked with naming a product that hasn't even been designed yet, and the stress (brought
on by a recurring nightmare) makes Dilbert think he's turning into a chicken.
2
"The
Competition"
Seth Kearsley Ned Goldreyer February 1, 1999 103
Dilbert is fired from his job when he is suspected of being a spy for a rival company (which was a
rumor cooked up by Dogbert's online newsletter) and gets hired at a company that actually treats
their workers like people.
3
"The
Prototype"
Alfred Gimeno Jeff Kahn February 8, 1999 102
Dilbert and Alice must work together to stop a rival team led by the legendary "Lena" from stealing
their ideas and presenting them to the Boss as her own.
4
"The
Takeover"
Andi Klein
Larry Charles, Scott
Adams & Ned
Goldreyer
February 15, 1999 106
Dilbert and Wally become majority shareholders of their company after Dogbert manipulates the
stock market.
5 "Testing" Chris Dozois
David Silverman &
Stephen Sustrastic
February 22, 1999 104
The Gruntmaster 6000 prototype is put to the test by an evil masked test engineer named Bob
Bastard (Tom Kenny).
6
"Elbonian
Trip"
Mike Kim
David Silverman &
Stephen Sustrastic
March 1, 1999 105
Dilbert, Alice, Wally, Dogbert, and the Pointy-Haired Boss take a business trip to Elbonia. Alice and
Dilbert attempt to free the Elbonian people (Alice adopts an Elbonian baby while Dilbert introduces
the workers to human rights) while Wally becomes a prophet.
7
"Tower of
Babel"
Gloria Jenkins
David Silverman &
tephen Sustrastic
March 22, 1999 108
The repetitive passing-on of the same cold strain in Dilbert's office causes it to mutate and turns
the coworkers into monsters. Rather than eliminate the virus, the company decides to start fresh by
moving everyone to a new office, which Dilbert is tasked with designing.
8
"Little
People"
Barry Vodos
David Silverman,
Stephen Sustrastic,
Scott Adams & Larry
Charles
April 5, 1999 107
Dilbert discovers that the office is inhabited by a race of former employees who have been
"downsized" (literally shrunken down to size after they've been laid off) after finding all of his
belongings used, the dry-erase markers disappearing, and X-rated websites on his computer.
9 "The Knack" Michael Goguen
Adams, Andrew
Borakove & Rachel
Powell
April 26, 1999 110
Dilbert loses "the knack" for technology when he gets management DNA from accidentally drinking
from the Boss's cup. His resulting mis-steps send the world back to the Dark Ages.
10 "Y2K"
Jennifer Graves, Bob
Hathcock & Andi Tom
Adams, Andrew
Borakove & Rachel
Powell
May 3, 1999 109
On the eve of the new millennium, everyone except Dilbert is making New Year's plans. While
assuring everyone that the company is prepared for Y2K, Dilbert discovers that the computer
mainframe's main processor isn't Y2K-compatible and all the company's systems will crash if it
isn't fixed. Dilbert is rewarded for discovering this by being assigned to fix it, and he discovers that
the system's original programmer was Wally. But have years of drudgework dulled his brain too
much to be able to tackle this crucial task?
11 "Charity" Chris Dozois
Adams, David
Silverman & Stephen
Sustrastic
May 10, 1999 111
Dilbert is forced to be a charity coordinator for the "Associated Way" charity drive.
Adams, David
12 "Holiday" Andi Klein Silverman, Stephen
Sustrastic & Ned
Goldreyer
May 17, 1999 112
Dilbert thinks there are too many time-wasting holidays; Dogbert concurrently convinces Congress
to abandon all holidays in favor of a National Dogbert Day.
13
"The
Infomercial"
Todd Frederiksen,
Joe Vaux
Adams & Ned
Goldreyer
May 24, 1999 113
The pre-productionnon-lab-testedGruntmaster 6000 is scheduled to be tested by a Texan
family.
Season 2 (19992000)
Production
code
14 "The Gift" Gloria Jenkins Ned Goldreyer November 2, 1999 201
Dilbert's mother's birthday is coming up, and in search of the perfect gift, he returns to the mall
where he was abandoned by his father (voiced by Buck Henry) years ago.
15
"The Shroud
of Wally"
Andi Klein Scott Adams November 9, 1999 203
Dilbert has a near-death experience at a gas station, and finds that the afterlife is exactly like the
office. Meanwhile, a group listening to a multi-level marketing speech become hypnotized, and
through a bizarre accident create a religion based on Wally.
16 "Art" Linda Miller
Adams & Ned
Goldreyer
November 16, 1999 205
Dilbert is assigned to create a digital work of art. The result, the "Blue Duck," ends up appealing to
the lowest common denominator of society and destroys the value and popularity of classic
artworks.
17 "The Trial" Chris Dozois
Joe Port & Joe
Wiseman
November 23, 1999 202
Dilbert is sent to prison after the boss frames him for a fatal traffic accident. Once inside, he applies
his knowledge of mathematics and engineering to prison life and takes over his cell block.
18
"The
Dupey"
Michael Goguen
Adams
December 7, 1999 204
Dilbert's attempts to design a Furby-style children's toy go horribly awry when the toys gain
sentience and mutate into hideous but benevolent creatures that want independence.
19
"The
Security
Guard"
Rick Del Carmen Scott Adams January 18, 2000 207
After a heated debate, Dilbert and the building's security guard (voiced by Wayne Knight) trade
jobs to see who can do the other's job better. Dilbert quickly finds himself in over his head when he
discovers an illegal casino being run underneath the building.
20
"The
Merger"
Jim Hull
Adams, David
Silverman & Stephen
Sustrastic
January 25, 2000 208
The Boss decides that the company needs to merge with another, and chooses a company of
brain-sucking extraterrestrials.
21 "Hunger" Craig R. Maras
Adams
February 1, 2000 206
Dilbert tries to end world hunger by creating a new, safe, artificial food, but it tastes so bad that
even people dying of starvation refuse to eat it until his mother gets involved.
22
"The Off-
Site
Meeting"
Seth Kearsley
Mark Steen, Ron
Nelson & Scott Adams
Dilbert's home is chosen as the location for an off-site meeting when a dendrophile sues his
company because of their deforestation policies.
23
"The
Assistant"
Gloria Jenkins &
Declan M. Moran
Adams, Ron Nelson &
Mark Steen
February 15, 2000 210
Dilbert is unwillingly promoted to management and given an assistant (Andy Dick), sparking a
showdown with the other engineers.
24
"The
Return"
Mike Kuntel
Adams & Ned
Goldreyer
February 22, 2000 213
Dilbert tries to buy a computer online but gets the wrong model, leading to an unpleasant surprise
when he tries to return it to the company warehouse. Jerry Seinfeld and Eugene Levy guest-star as
Comp-U-Comp and the plug guard, respectively; Jon Favreau guest-stars as Holden Callfielder.
25
"The Virtual
Employee"
Perry Zombalas
Adams & Ned
Goldreyer
May 30, 2000 212
Dilbert and his co-workers find an empty cubicle and start dumping their obsolete computer
equipment into it. To keep the marketing department from claiming the cubicle, they hack into the
human resources database and create a profile for a fake engineer named Todd. The plan backfires
when Todd is named project leader and develops a messianic reputation.
26 "Pregnancy" Andi Klein
Adams
June 6, 2000 216
Ratbert accidentally sends Dilbert's model rocket into space. When it returns with samples of DNA
from aliens, cows, hillbillies, engineers, and robots, it rectally impales Dilbert, impregnating him.
27
"The
Delivery"
Craig R. Maras
Adams
June 13, 2000 217
Dilbert fights to keep his baby, a human-alien-cow-robot hybrid whose various "parents" sue for
joint custody. Stone Cold Steve Austin guest-stars as himself.
28
"Company
Picnic"
Chris Dozios
Scott Adams, David
Silverman & Stephen
Sustrastic
July 11, 2000 211
The annual company picnic comes around and so does the softball game between Marketing and
Engineering. This episode is based on Romeo and Juliet.
29 "The Fact" Linda Miller
Adams, Ron Nelson &
Mark Steen
July 18, 2000 215
Dogbert is catapulted into fame and fortune when he posts false information on the Internet about
his imaginary disease, "Chronic Cubicle Syndrome," and releases a best-selling book about it.
Ironically, Dilbert is forced to come up with the cure.
30 "Ethics" Michael Goguen
Adams
July 25, 2000 214
The company employees are forced to take ethical training classes, then Dilbert is made project
lead for the National Internet Voting Network. An attractive female employee of a special-interest
group attempts to seduce Dilbert, putting his ethical limitations to the test.
Reception
Ray Richmond of Variety.com liked the show stating "its surely the wittiest thing the netlet has ever
had the good fortune to schedule, and based on the opening two installments, it has the potential to
score with the same upscale auds that flocked to The Simpsons and transformed Fox from a
wannabe to a player a decade ago."
[10]
David Zurawik of The Baltimore Sun gave the show a
postivie review stating "sit down tonight in front of the tube with more reasonable expectations, and
you will find yourself smiling, if not laughing out loud at least once or twice."
[11]
Terry Kelleher of
People Magazine picked Dilbert for "Show of the week" and said the show featured "smart, pointed
humor aimed at corporate bureaucracy, mendacity and absurdity."
[12]
Ratings
Dilbert's premiere episode received a 7.3 rating, the highest of the 1998-1999 season for UPN.
[13]
Awards
Primetime Emmy: Outstanding Main Title Design - 1999
[14]
Home releases
Sony Pictures Home Entertainment released the complete series on DVD in Region 1 for the very
first time on January 27, 2004. The set included some special features including trailers and clip
compilations with commentary by Scott Adams, executive producer Larry Charles, and voice actors
Chris Elliott, Larry Miller, Kathy Griffin, and Gordon Hunt.
[15]
The DVDs can be played on some PCs
and DVD players with Region 2. This release has been discontinued and is now out of print. The
complete series is available for free on Hulu and Crackle.
[16][17]
On November 8, 2013, it was announced that Mill Creek Entertainment had acquired the rights to
the series. They will be re-releasing the complete series on January 21, 2014.
[18]
See also
New Dilbert Animation
References
1. ^ "Dilbert Debut Sets Record For Upn" (http://articles.chicagotribune.com/1999-02-
02/features/9902020332_1_pointy-haired-boss-upn-dilbert). Chicago Tribune. February 2, 1999. Retrieved
2010-09-09.
2. ^ "Dilbert: The Complete Series : DVD Talk Review of the DVD Video"
(http://www.dvdtalk.com/reviews/9457/dilbert-the-complete-series/). Dvdtalk.com. Retrieved 2013-09-08.
3. ^ "Dilbert: Complete Series : DVD Talk Review of the DVD Video"
(http://www.dvdtalk.com/reviews/9494/dilbert-complete-series/). Dvdtalk.com. Retrieved 2013-09-08.
4. ^ Knutzen, Eirik. "An Animated Cartoon `Dilbert' Comes To The Tube On Upn"
(http://articles.mcall.com/1999-01-24/entertainment/3241748_1_dilbert-scott-adams-bank-teller/2). The
Morning Call. Retrieved 10 February 2014.
5. ^ Rubin, Sylvia. "Meeting of the Minds / `Dilbert' creators slogged through corporate mire to bring lovable
office dweeb to TV" (http://www.sfgate.com/entertainment/article/Meeting-of-the-Minds-Dilbert-creators-
slogged-2952018.php#page-1). SFGate. Retrieved 10 February 2014.
6. ^ Rozansky, Michael. "`Dilbert' Is Serious Business From The Cubicle To . . . Practically Everywhere."
(http://articles.philly.com/1999-01-03/news/25492959_1_dilbert-fans-4s700r-cubicle). philly.com. Retrieved
10 February 2014.
7. ^ Jicha, Tom. "Dilbert To Get A New Cubicle -- On Upn" (http://articles.sun-sentinel.com/1999-01-
25/lifestyle/9901250155_1_dilbert-scott-adams-upn). SunSentinel. Retrieved 10 February 2014.
8. ^ Foster, Darren. "Scott Adams Interview creator of Dilbert" (http://groundreport.com/Scott-Adams-
Interview-creator-of-Dilbert/). ground report. Retrieved 9 February 2014.
9. ^ "Upn hopes ride on dilbert's white shirttails new animated series just doesn't do the job"
(https://web.archive.org/web/20140209010821/http://www.nydailynews.com/archives/entertainment/upn-
hopes-ride-dilbert-white-shirttails-new-animated-series-doesn-job-article-1.829135). The New York Daily
News. Retrieved 2010-10-26.
10. ^ Richmond, Ray. "Review: Dilbert" (http://variety.com/1999/tv/reviews/dilbert-1200456408/). Variety.
Retrieved 9 February 2014.
11. ^ Zurawik, David. "UPN is counting on `Dilbert' " (http://articles.baltimoresun.com/1999-01-
25/features/9901250183_1_dilbert-dogbert-omen). The Baltimore Sun. Retrieved 9 February 2014.
12. ^ Kelleher, Terry. "Picks and Pans Main: Tub"
(http://www.people.com/people/archive/article/0,,20127492,00.html). People Magazine. Retrieved 9
February 2014.
13. ^ Carter, Bill. "TV NOTES" (http://www.nytimes.com/1999/01/27/arts/tv-notes.html). The New York Times.
14. ^ "Dilbert" (http://www.emmys.com/shows/dilbert). The Academy of Television Arts & Sciences. Retrieved 9
February 2014.
15. ^ "Dilbert - The Complete Series Review" (http://www.tvshowsondvd.com/reviews/Dilbert-Complete-
Series/3283). TVShowsOnDVD.com. Retrieved 2013-09-08.
16. ^ "Dilbert" (http://www.hulu.com/dilbert). Hulu. Retrieved 10 February 2014.
17. ^ "Dilbert" (http://www.crackle.com/c/dilbert). Crackle.com. Retrieved 10 February 2014.
18. ^ Mill Creek to Re-Release 'The Complete Series' on DVD (http://www.tvshowsondvd.com/news/Dilbert-
The-Complete-Series/19158)
External links
Dilbert (http://www.imdb.com/title/tt0118984/) at the Internet Movie Database
Dilbert (http://www.tv.com/shows/dilbert/) at TV.com
Retrieved from "http://en.wikipedia.org/w/index.php?title=Dilbert_(TV_series)&oldid=601831869"
Categories: Dilbert 1990s American animated television series
2000s American animated television series Television programs based on comic strips
UPN network shows 1999 American television series debuts
2000 American television series endings Comedy Central shows
Television series by Sony Pictures Television Animated sitcoms
Television programs featuring anthropomorphic characters Satirical television programmes
English-language television programming Lists of television series episodes
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organization.

BRAD D. GREENSPAN, Plaintiff Case No: 9567-ML

V.

NEWS CORPORATION NEWS CORPORATION, 21ST CENTURY FOX
CORPORATION, NEWS AMERICA CORPORATION,WASHINGTON POST
CORPORATION, SONY CORPORATION, SONY CORPORATION AMERICA, SONY
MUSIC ENTERTAINMENT INC., 550 DIGITAL MEDIA VENTURES, INC. SONY
BROADBAND ENTERTAINMENT, INC., EUNIVERSE, INC NEWS CORPORATION, 21ST
CENTURY FOX, EUNIVERSE, INC. , RGRD LAW LLC, VANTAGEPOINT VENTURE
PARTNERS, ORRICK HERRINGTON LAW LLC, EMI MUSIC, WARNER MUSIC GROUP,
IAC CORPORATION, MYSPACE, INC., ASKJEEVES, INC., JP MORGAN CHASE
CORPORATION, REDPOINT PARTNERS CORPORATION ARENT FOX LAW LLC INC.
Defendants

PRAECIPE

To: Register In Chancery

PLEASE ISSUE Summons and a copy of the Complaint and Motion to Expedite through the
Sheriff of New Castle County, 800 N French Street, 5
th
Floor, Wilmington, Delaware 19801; To
be served on the following Defendants in the above listed caption

Name: News Corporation & 21
st
Century Fox Corporation
Address: c/o The Corporation Trust Company Corporation Trust Center, 1209 Orange St.
Wilmington, Delaware, 19801
Service pursuant to 10 Del. C. 3111

/s/ Brad Greenspan
Signature for Pro Se
Suite 1216
Dated: 4/25/2014

1
I N THE COURT OF CHANCERY OF THE STATE OF DELAWARE
BRAD D. GREENSPAN,
Suite 1216

Plaintiff,
v.

NEWS CORPORATION, 21
ST
CENTURY FOX CORPORATION, NEWS AMERICA CORPORATION,
WASHINGTON POST CORPORATION,
SONY CORPORATION, SONY CORPORATION AMERICA, SONY MUSIC ENTERTAINMENT INC.,
550 DIGITAL MEDIA VENTURES, INC. SONY BROADBAND ENTERTAINMENT, INC., EUNIVERSE, INC
ST
CENTURY FOX, EUNIVERSE, INC. , RGRD LAW LLC,
VANTAGEPOINT VENTURE PARTNERS, ORRICK HERRINGTON LAW LLC, EMI MUSIC, WARNER MUSIC GROUP,
IAC CORPORATION, MYSPACE, INC.,
ASKJEEVES, INC.,
JP MORGAN CHASE CORPORATION, REDPOINT PARTNERS CORPORATION,
ARENT FOX LAW LLC INC.

)
)
)
)
)
)
)
)
)
)
)

C.A. No. ________

1503 & INDEMNIFICATION COMPLAINT

2

Plaintiff, for his Complaint against the Defendants, alleging as follows:

I- PRELIMINARY STATEMENT & SYNOPSIS

1. Plaintiff Brad D. Greenspan (Plaintiff), a former Director an Officer of

eUniverse, Inc. a Delaware Corporation hereby files this complaint. Petitioner is

entitleu to a piivate cause of action foi uamages suffeieu as a iesult of Befenuant

acts , omissions, uamages, violations, anu othei losses causeu by the long iunning

1SuS(u) conspiiacy among Befenuants. Petitionei also has contiactual iights foi

Inuemnification anu Auvancement.

II - PARTIES

PLAINTIFF

2. Brad Greenspan, former Director, Officer, Shareholder of eUniverse, Inc

DEFENDANTS

3. News Corporation, a Delaware Corporation

4. 21
st
Century Fox Corporation, a Delaware Corporation

5. News America Corporation, Delaware corporations

6. Sony Corporation, incorporated in Japan (herein Sony Corporation

and its subsidiaries listed below will be referred to as Sony)

7. Sony Corporation America, a Delaware corporation

8. Sony Music Entertainment Inc., a Delaware Corporation

9. 550 Digital Media Ventures, Inc. (550 DMV), a Delaware Corporation

1u. Sony Bioaubanu Enteitainment, Inc., a Belawaie coipoiation
S

11. e0niveise Inc. , (name latei changeu to Inteimix) a Belawaie

Coipoiation (News Coip acquiieu in 2uuS)

12. Nyspace, Inc., a Belawaie Coipoiation (News Coip acquiieu in 2uuS)

1S. RuRB Law LLC, a Califoinia LLC

14. vantagePoint ventuie Paitneis, a Califoinia LLC

1S. 0iiick Beiiington Law LLC, a Califoinia LLC

16. ENI Nusic, a Belawaie Coipoiation

17. Wainei Nusic uioup, a Belawaie Coipoiation

18. Ask}eeves Inc., a Belawaie coipoiation (IAC Coip acquiieu in 2uuS)

19. IAC Coipoiation, a Belawaie coipoiation

2u. }P Noigan Chase, a Belawaie coipoiation

21. ReuPoint Paitneis, a Califoinia LLC

22. Washington Post Coipoiation, a Belawaie Coipoiation

2S. Aient Fox Law, a Belawaie LLC

III - JURISDICTION AND VENUE

24. The jurisdiction of this Court is conferred and invoked pursuant to

eUniverse, Inc., and its buyer, News Corporation being Delaware incorporated

IV- FACT HISTORY

The 1503 & 1505 Claims

25. 1503 & 1505 according to Delaware statute 1501 have a purpose:
4
to guard against and prevent the infiltration and illegal acquisition of legitimate
economic enterprises by racketeering practices, and the use and exploitation of both legal
and illegal enterprises to further criminal activities.

to apply to conduct beyond what is traditionally regarded as "organized crime" or
"racketeering."

26. Enterprise under 1502 is defined:
(3) "Enterprise" shall include any individual, sole proprietorship, partnership,
corporation, trust or other legal entity; and any union, association or group of persons
associated in fact, although not a legal entity. The word "enterprise" shall include illicit
as well as licit enterprises, and governmental as well as other entities.

27. Members of the SearchBriberyHacking (SBH) Enterprise are an

association-in-fact enterprise that are known as of the date of filing this

complaint to include: IAC, AskJeeves, News Corporation, Orrick Herrington,

VantagePoint Partners, RedPoint Partners, JPMorgan, Washington Post Corporation,

RGRD Law LLC, Sony Corporation, Sony Music Entertainment, Arent Fox, EMI,

Warner Brothers Music, MySpace Inc., Intermix Inc., Sony Corporation America, 550

DMV, Sony Bioaubanu Enteitainment Inc., as well as certain of their Officers,

Directors, and employees (Enterprise).

28. This Enterprise possessed and continues to possess a common

purpose and goal, a membership, organizational structure, and ongoing

relationships with sufficient longevity to permit and enable pursuit of the

Enterprises purpose and long-term objective through a continuous course of

conduct that affected and continues to affect interstate and foreign commerce.

Most or all of the members of the Enterprise are also Principals, defined under

Delaware statue,

S
(8) "Principal" shall mean a person who engages in conduct
constituting a violation, or one who is legally accountable for the
unlawful conduct of another person or entity.
29. The SBH Enterprise, members, and/or Principals engaged, attempted to

engage in, or conspired to engage in or to solicit, coerce or intimidate other person

to engage in Racketeering violations which under Delaware state law is defined as:

(9) "Racketeering" shall mean to engage in, to attempt to engage in, to conspire to
engage in or to solicit, coerce or intimidate another person to engage in:
a. Any activity defined as "racketeering activity" under 18 U.S.C. 1961(1)(A),
(1)(B), (1)(C) or (1)(D); or
b. Any activity constituting any felony which is chargeable under the Delaware
Code or any activity constituting a misdemeanor under the following provisions of
the Delaware Code:
Chapter 73 of Title 6 relating to the sale of securities; Chapter 5 of Title 11 & Title
6 relating to forgery and counterfeiting; Chapter 5 of Title 11 relating to perjury;
Chapter 5 of Title 11 and Title 28 relating to bribery and misuse of public office
and improper influence; Chapter 5 of Title 11 relating to tampering with jurors,
evidence and witnesses;
30. SBH Enterprise, members, and Principals that make up the SBH

Enterprise initiated a Pattern of racketeering activity between 2003 thru 2013,

defined as:

(5) "Pattern of racketeering activity" shall mean 2 or more incidents of conduct:
a. That:
1. Constitute racketeering activity;
2. Are related to the affairs of the enterprise;
3. Are not so closely related to each other and connected in point of time and
place that they constitute a single event; and
b. Where:
1. At least 1 of the incidents of conduct occurred after July 9, 1986;
6
2. The last incident of conduct occurred within 10 years after a prior
occasion of conduct; and
3. As to criminal charges, but not as to civil proceedings, at least 1 of the
incidents of conduct constituted a felony under the Delaware Criminal
Code, or if committed subject to the jurisdiction of the United States or
any state of the United States, would constitute a felony under the
Delaware Criminal Code if committed in the State.
31. SBH Enterprise racketeering activity included: 18 U.S.C. 1341
(relating to mail fraud), 18 U.S.C. 1512 (relating to tampering with a witness,
victim, or an informant) 18 U.S.C. 1513 (relating to retaliating against a witness,
victim, or an informant) and 18 U.S.C. 1519 (relating to destruction, alteration, or
falsification of records in Federal investigation and bankruptcy).
32. The pattern of racketeering activity is based on the following facts:

33. Principals and members of the SBH enterprise desired and wanted

to fraudulently take control of a publicly traded company that was the #1 fastest

growing Top 10 Property in the world as of October 2003.

34. Defendants launch series of schemes and frauds to take control of publicly

traded MySpace and its parent corporation eUniverse (later renamed Intermix) and oust

founder/CEO Brad Greenspan.

35. Defendants also initiate schemes to defame and harass Petitioner, and

additionally obstruct justice.

36. Not satisfied with their existing economic gains, defendants embarked on an

ever growing series of schemes and misdeeds to loot the public company.

37. Petitioner on January 23, 2004 published press release titled:

Substantial Conflicts of Interest with Respect to Verisign
Nasdaq:VRSN And Ask Jeeves NASDAQ: ASKJ
7
stating:
i.eUniverses Future Success in Lucrative Paid Search Space Is
Threatened By Existing Director Conflicts

ii.certain of eUniverses incumbent Directors have substantial conflicts of interest
that could threaten the Companys success in the paid search industry.

iii.Daniel Mosher has conflicts of interest arising from his middle management role
at Verisign, Inc. (NASDAQ: VRSN) which introduced the sitefinder redirect
service in direct competition with eUniverses PerfectNav application.

iv.David Carlick has a conflict of interest arising from his membership on the Board
of Ask Jeeves (Nasdaq: ASKJ), which is a pure play in the paid search space.

V.Carlick has the ability to influence management decisions which may adversely
affect eUniverses Paid Search division.

DEFENDANTS ENTRENCHMENT SCHEME SHIFTS CONTROL

38. Petitioner incorporates by reference Exhibit #1 which includes:

i. January 2, 2014 letter to Chancellor Strine

ii. NOTICE MOTION IN CONTEMPT

iii. MOTION FOR CONTEMPT 70(B) 42(B) AND/OR 60(B)(3)

iii. DECLARATION IN SUPPORT OF MOTION 70(b) 42(b) CONTEMPT

iv. JUDGMENT ENTRY SETTING HEARING

(Note: All above unsigned documents were signed and submitted by courier
January 2, 2014 to Brenda at intake with copy of December 2013 proof of
service to Defendants )

DEFENDANTS PASS ON FRAUDULENTLY CONCEALED EDELL DI SCLOSURE VI OLATI ON TO
ACQUI ROR NEWS CORPORATI ON

39. July 17, 2005 News Corporation Corporate counsel Lang emailed at 4:13AM
to Defendant eUniverse Director Sheehan and states, by interstate wire or interstate
carrier an email furthering the fraudulent concealment scheme to fabricate and
8
fraudulently conceal unlawful acts including contempt of Court to acquiror News
Corporation as clearly exhibited in email disclosed by Class Counsel in 2011 Federal
security fraud class action. Subject: 'Purchase Agreement, stating,

"On the issues, let's close on the remaining ones in a fair and reasonable
way-- so we can build out relationship. And

3. We feel like we have given indemnification on the shares and the
purchase agreement itself to do so on any issue we have had no
involvement in whatsoever (i.e. Greenspan) - that seems like
too much. Andy, I know we are very eager to get this done. Let do it
so both sides can feel good and move forward on our longer-term
relationship."

Langs communication is in violation of 18 U.S.C. 1341, 18 U.S.C. 1343, and 18
U.S.C. 1519 (relating to destruction, alteration, or falsification of records in Federal
investigation and bankruptcy).

2013 HITECH FEDERAL CLASS ACTION EVIDENCE
40. Evidence disclosed for the first time May 2013 in the Hitech Class Action

Case 5:1102509, specifically document 198-3, page 37 and 38, proves Google had

undisclosed illegal agreements in place with AskJeeves, AOL, Intel, Intuit, IAC Corp.

and Apple as of March 6, 2005 or earlier violating Federal antitrust statues. The

companies fraudulently concealed the agreements and failed to disclose them in

their annual 10K SEC or Proxy filings, violating security law and Director fiduciary

duties.

41. The evidence confirms Petitioner and shareholders were victims in

2005 of an bid rigging conspiracy led by Google and enacted in coordination with

AskJeevess Directors who used their positions on the Boards of both MySpace,

Inc. and Parent eUniverse to mislead the other Directors and shareholders while
9

facilitating and enjoying the economic benefits of an illegal bid rigging scheme.

42. This conspiracy included: (i) fabricating prior sale of MySpace stock

with backdated agreement in November 2004 (ii) agreements allowing AskJeeves

Director Jeff Yang to purchase 30% of MySpace, Inc. in February 2005 at below

fair market value using his RedPoint fund where he is managing Director;

a. September 27, 2004 Vantagepoint internal report proves SBH Enterprise,
Carlick, and AskJeeves manipulated Intermix Directors to forgo using less dilutive debt
financing available, instead facilitating sweetheart equity sale to Yang and RedPoint
Partners.
Myspace wi l l r equi r e appr oxi mat el y $1. 5 - 2 mi l l i on i n t he next 2
mont hs f or st or age ar r ays, dat abase ser ver s, swi t ches and
r out er s.
And
The company i s i n di scussi ons wi t h Si l i con Val l ey Bank r egar di ng
a $4m l i ne of cr edi t , whi ch i s l i kel y t o be appr oved.

b. October 1, 2004, 3:05PM Rosenblatt contacts Sheehan using interstate wire

or interstate carrier to send and deliver the email:

J ust had a t ough t al k wi t h Chr i s DeWol f . Hi s l awyer i d def i ni t el y gi vi ng
hi m concer ns about our of f er . Hear t ache about us t aki ng t he t ech, val ue
i f we sel l , et c. He r eal l y t hi nks he i s wor t h mor e i ndependent l yI am
t ol d hi m t hat i s not goi ng t o happen.

the disclosed order of events described in the November 2004 10Q is fabricated and this
email is in violation of both 18 U.S.C. 1341 & 18 U.S.C. 1343, and is a Key
component and predicate act in fraudulently concealing the false facts in the November
eUniverse 2004 10Q filing related to hiding backdated MySpace stock purchase
agreement by defendants.
c. October 7, 2004 3:45PM Sheehan contacts Rosenblatt & Carlick by interstate
wire or interstate carrier using an email in violation of 18 U.S.C. 1341 &/or 1343
1u
furthering the fraudulent concealment scheme to fabricate and fraudulently conceal the
MySpace Stock purchase documents published in the November 2004 10Q were
fabricated and backdated with Subject: MS t hought s of t he day,
My cur r ent t hought s on t he MS si t uat i on:

We need t o get i n pl ace t he r evi sed agr eement bef or e any meani ngf ul
negot i at i ons wi t h any ot her t hi r d par t y.

* I bel i eve I under st and Chr i s concer ns about bei ng l ocked i nt o an i l l i qui d
subsi di ar y, but t hat i t s t hei r choi ce t hey coul d have MI X st ock i f t hey
want l i qui di t y.

* They ar e mi nor i t y shar ehol der s and need t o accept t hi s f act .

* We, I nt er Mi x, need t he r i ght t o be abl e t o sel l al l of MS. I ncl udi ng
f ounder s shar es.

We, I nt er Mi x, need t he r i ght t o buy out t he f ounder s at a pr i ce or a
f or mul a

On Redpoi nt :
* Why not cont i nue t al ki ng t o t hem, i t i s t oo har d t o f i gur e out i f t hey
coul d pr esent t he most at t r act i ve deal or not at t hi s t i me

d. November 4, 2004 11:43PM Carlick emails Sheehan, by interstate wire or
interstate carrier an email in violation 18 U.S.C. 1341 &/or 1343 furthering the
fraudulent concealment scheme to fabricate and fraudulently conceal the MySpace Stock
purchase documents published in the November 2004 10Q were fabricated and
backdated Subject: My t al k wi t h Yang stating,

Andr ew, Spoke wi t h Geof f , who hol ds you i n t he hi ghest r egar d. I
am not i n t he l oop on t hei r of f er , whi ch he descr i bed as 23%
Redpoi nt , 25% Founder s and pool and 52% I nt er mi x.

Hi s case f or t he of f er was i nt er est i ng and compel l i ng, as I nt er mi x
coul d st i l l f ol d i n t he ear ni ngs, t r af f i c, et c. I want t o di scuss wi t h
you my t hought s on t he subj ect t omor r ow, God know when, as we
11
have no br eaks I can count on. I n any case, I suggest ed t hat Geof f
speak wi t h you di r ect l y.

e. November 5, 2004 11:58AM Sheehan contacts Carlick and states, by
interstate wire or interstate carrier an email in violation 18 U.S.C. 1341 &/or 1343
fabricated and backdated
what i t comes down t o i s do we sel l ms now or keep i t . Doi ng a
deal wher e mi x keeps 52% doesn t make any sense f or anyone
except Yang. Al l t he banks and i nvest or s t hi nk we woul d be f ool i sh
t o sel l some or al l of ms now. We wi l l get much l ess benef i t t o mi x
i f we own 52% and have gi ve al l sor t s of r i ght s t o an i nvest or .
Ri char d want s t o keep i t i n mi x.

f. November 18, 2004, 3:56PM Orricks Richard Harroch contacted Sheehan,
Redpoint & AskJeeves Director Yang and RedPoints Beasly, by interstate wire or
backdated
Subject: MySpace Ter m Sheet and states,
Gent l eman: As a f ol l ow up t o our conver sat i on t oday, at t ached i a a
cl ean and r edl i ned mar kup of t he l ast ver si on of t he t er m sheet t hat was
gi ve t o us i n connect i on wi t h t he Myspace t r ansact i on. Let us di scuss t he
i ssues at your conveni ence. Ri char d Har r och <<MySpace Sal e of Ser i es
A Pr ef er r ed St ock. doc>>

g. Rosenblatt by interstate wire or interstate carrier uses email in violation 18
U.S.C. 1341 &/or 1343 to further the fraudulent concealment scheme forwards an
incoming Orrick email to Chris Lipp and Tom Flahie at 4:28PM to fabricate and
fraudulently conceal the MySpace Stock purchase documents published in the November
2004 10Q, to hide the fact the documents were fabricated and backdated.
The email states: I have not seen yet
12
Rosenblatt professes to not know the terms that the company has already agreed to sell a
portion of MySpace.com to VantagePoints fellow board member on Ask Jeeves, Geoff
Yang and his fund company he is a principal in, Redpoint.

h. November 18, 2004 CFO Flahie emails Rosenblatt, Subject: RE: MySpace
Term Sheet and states,
t hi s si t uat i on r eal l y goes beyond anyt hi ng I want t o be a par t
of . I communi cat ed my f eel i ngs i n wr i t i ng t wi ce now about t he
l awyer f or a l ar ge pr ef er r ed st ockhol der and one di r ect or
negot i at i ng a maj or busi ness t r ansact i on on behal f of t he company
wi t hout aut hor i zat i on of our boar d and al l I r ecei ved was an
admoni shment f r om Har r och about my emai l and t ol d t o shut up i n
a conf er ence cal l .

Si nce you have not seen t hi s yet and I have cer t ai nl y not , t hi s
makes a br oader st at ement about our Seni or Management . As an
of f i cer I woul d be der el i ct i n my dut i es t o our company t o al l ow
t hi s t o cont i nue out si de of t he vi ew of t he Boar d wi t hout doi ng
somet hi ng about i t

Flahie uses interstate wire or interstate carrier in violation 18 U.S.C. 1341 &/or 1343
to deliver email to further the fraudulent concealment scheme to fabricate and

i. November 18, 7:20PM Rosenblatt emails Flahie Subject: Re:Myspace Term
Sheet, stating:
Tom, I know how t hi s coul d l ook but i t i s NOT at - al l how i t may
appear .
and
Andy NEVER l ooked at i t as a vant age shar ehol der , but as a
Boar d member l ooki ng out f or I nt er mi x as a whol e.
and
I bel i eved (and was r i ght ) t hat he was bet t er posi t i oned t han I
was t o ext ract t er ms t hat woul d be accept abl e t o t he Boar d at
l ar ge. Over t he past week he was, t o my sur pr i se, abl e t o get t he
1S
t er ms we al l t hi nk ar e BETTER f or t he company and make t he
Redpoi nt deal a gr eat deal .
and
I n hi ndsi ght , I shoul d have asked hi m t o gi ve t hose new t er ms t o
Chr i s and we shoul d have sent t he t er m sheet t o Redpoi nt . I pl an
on cl ar i f yi ng wi t h Redpoi nt t omor r ow t hat Andy was si mpl y hel pi ng us
get a deal done and t he Company wi l l t ake i t f r om her e.
i

Rosenblatt uses interstate wire or interstate carrier in violation 18 U.S.C. 1341 &/or
1343 to deliver email to further the fraudulent concealment scheme to fabricate and
j. November 18, 2004 at 7:51PM, Sheehan forwards the email thread and
CFOs effective whistleblower notification to Orricks Harroch who is directly
involved in the incident. Sheehan uses interstate wire or interstate carrier to deliver
email to further the fraudulent concealment scheme to fabricate and fraudulently conceal
the MySpace Stock purchase documents published in the November 2004 10Q, to hide
the fact the documents were fabricated and backdated, to conceal scheme to sell 25% of
Myspace.com to conflicted Interlocking Director violating Clayton Act fellow
AskJeeves Director, Geoff Yang in violation of 18 0.S.C. 1S41, 18 U.S.C. 1343,
anu violation of 18 0.S.C. 1S19 (ielating to uestiuction, alteiation, oi falsification
of iecoius in Feueial investigation anu bankiuptcy).

(iii) agreements allowing Google, TimeWarner/AOL, News Corporation, AskJeeves,

IAC, and other defendants to collude to gain economic benefits by delaying

closing of a competitive EUNI MySpace search engine auction for a new

commercial search engine agreement in the months leading up to News Corporation

acquiring 100% of eUniverse in September 2005. This arrangement ensured

Googles $4.4 Billion dollar August 2005 secondary by tying up the fast growing

14
online audience of MySpace, significantly growing its share of online

search engine advertising while shrinking share of main rival #2 Yahoo; (iv)

An arrangement allowing News Corporation to purchase MySpace.com at below

fair market value, growing its market valuation and generating billions in

incremental profits and a massive online audience to seed new online assets for

years to come, while preventing a competitive auction with main rival Viacom.

k. MySpace and eUniverses failure to elect 5
th
MySpace Director was key

part of scheme to rig bidding in Search Auction and sale of eUniverse. Failure to

disclose Intermixs majority owned MySpace, Inc. was in breach of this covenant in the

August 2005 Proxy was a 14A violation. Defendants breach and non disclosure of such

breach are used to effect the Antitrust bid rigging scheme. Defendants violated 18 U.S.C.

1341 thru publishing,distributing and mailing the August 2005 Proxy omitting the

disclosure of such breach.

l. euniverses failure to cure breach of Merger Agreement Sections

6.3 & 6.4 & 6.5. was a key part of scheme to rig bidding in Search Auction and

sale of eUniverse. Failure to disclose the breach in the August 2005 Proxy was a

14A violation. Defendants breach and non disclosure of such breach are used to

effect the Antitrust bid rigging scheme. Defendants violated 18 U.S.C. 1341

thru publishing, distributing and mailing the August 2005 Proxy omitting the

disclosure of such breach

m. eUniverse and CEO Rosenblatt by end of June has earmarked $25-30
million in monies the executives are not owed or entitled to which helps float his own
1S
requests for consideration higher. June 23, 2005 Email from Rosenblatt to
Montgomery on with subject presentation and attachment foxmeeting.ppt states,
This deal would need to be a win-win for everybody. I think we could motivate and
energize the Myspace team if we took $25-30mm and put in escrow for 12-24 months.
They would receive that money if they continued to build Myspace and remained at the
Company. Right now, they own 20% and would receive about $20MM (due to the
preference from Redpoint) if we exercised our option. If they could sell for $250mm they
would receive $50mm. While they think Myspace is worth far more than $250mm, the
escrow would clearly be enough incentive to keep them very motivated and want to stay
on board.

eUniverse and Rosenblatt thru use of such email violate 18 0.S.C. 1S41 &oi 1343,
anu 18 0.S.C. 1S19 (ielating to uestiuction, alteiation, oi falsification of iecoius in
Feueial investigation anu bankiuptcy). Scheme is designed to bribe certain members
of management to support the below fair market sale of MySpace to News Corporation
while not disclosing such additional payments in the Proxy as required by Federal law.

n. On July 18, 2005 at 8:19PM, eUniverses Rosenblatt uses interstate wire to

email News Corporation executive, Levinsohn in violation 18 U.S.C. 1341 &/or

1343 to further the fraudulent scheme to sell eUniverse and Myspace below fair market

value. The email indicates Rosenblatt is aware the $12.00 per share price he negotiated

with News Corporation days earlier is below fair market value and is aware of the

correct valuation level for internet assets including the future value Google will use to

value AOL in the months ahead,

Snippet of the press playa. You will be famousnow 20B

BROWN v. BREWER FEDERAL SECURITY FRAUD CLASS ACTION

42. Petitioner was originally part of a Federal Class Action filed in
16

Federal Court as a securities class action, titled Brown v. Brewer. However,

the defendants led by News Corporation and Hogan Lovell , engaged in a

series of coverups and struck a deal with Class Counsel to remove key

evidence and claims including initiating a scheme to blatently obstruct justice

by eliminating petitioner before he could submit evidence into the Federal

court in 2009 which would have led to adding claims

43. June 17, 2010 Federal Judge King Summary Judgement states:

Though Brewers failure to recall what everyone had specifically
asked back in 2005 would be understandable, a reasonable jury
might draw a negative inference from his representation that he
could not recall any discussion as to the investment banks analyses.

Construing all of the above testimony in the light most favorable to
Plaintiff as we must on Defendants motion for summary judgment,
we conclude that it is at least triable as to whether the remaining six
board members consciously disregarded their duties and acted in bad
faith. There is evidence in the record suggesting that no one on the
board asked any questions about the requested per share price, the
treatment of the competing bidders, the fairness valuations, or the
relative likelihood of a Viacom bid.

A reasonable jury could infer that this evidence demonstrates the
other six directors consciously abdicated their roles as corporate
fiduciaries required by law to do their utmost to maximize
shareholder wealth.

Nevertheless, we think a reasonable jury could find that the other
six directors exceeded the bounds of negligent conduct, willfully
proceeded to their decisions knowing they lacked material
information, Gesoff, 902 A.2d at 1165, and thereby consciously
disregarded their fiduciary duties. Disney, 906 A.2d at 66

2. Self-Interested Transaction

In the alternative, Defendants move for summary judgment on the
second theory supporting the breach of fiduciary duty claim, arguing
that five of the eight Defendants (a majority) were not self interested
or controlled by someone who was.

17
Plaintiff argues that Rosenblatt deliberately misled the other board
members regarding the viability of the Viacom bid, steering them
into approving the merger without waiting even a couple more days
to see if Viacom would top News Corp.s offer. (Joint Br. 26-27).

This evidence is sufficient to raise an inference that Rosenblatts
presentation to the board may have been misleading as to Viacoms
seriousness.

According to Moshers description of the board meetings, from the
management team estimation standpoint [sic], they were not
inclined to make an offer for the company on the time line that we
were looking at. (Id. at 25:18-21).

there are at least triable issues of fact as to whether Mosher was
manipulated by a self interested director, Rosenblatt. Moreover,
based on Moshers description of the content of Rosenblatts
presentations to the board, the issue of manipulation is triable with
respect to all of the other board members.

Accordingly, as a reasonable jury could potentially conclude that a
majority of the directors was interested or manipulated by someone
who was, we hereby DENY Defendants Motion for Summary
Judgment on this second basis for Plaintiffs claim of breach of the
duty of loyalty.

A. Alleged Material Omissions

current revenue and profits omission, which was so clearly
identified in the CSAC (if not so clearly in the interrogatory
responses). Accordingly, as this argument was not waived, and
Defendants have not made any threshold showing entitling them
to summary judgment on this basis, we DENY the Motion for
Summary Judgment as to this alleged material omission under
Count I

Here, we conclude that there is at least a triable issue as to the
materiality of the omission of Intermixs internal financial
projections. Accordingly, Defendants Motion for Summary
Judgment is DENIED as to this alleged material omission.

Outstanding Derivative Lawsuits

Plaintiff also argues that Defendants failed to disclose one pending
18
derivative lawsuit, LeBoyer v. Greenspan, et al., No. CV 03-5603-
GHK (JTLx), and the fact that shareholder derivative standing would
be extinguished as to both LeBoyer and Greenspan v. Salzman, the
two derivative lawsuits pending at the time the Proxy was issued.

Defendants concede that they did not disclose the existence of the
pending LeBoyer action. (Joint Br. 56 n.67).

With respect to the disclosed Greenspan v. Salzman action,
Defendants argue they had no obligation to further announce the
extinguishment of derivative standing.

Here too, the disclosure above is arguably misleading as well, as it
did not affirmatively disclose that the Greenspan v. Salzman
plaintiffs derivative standing would be extinguished under Delaware
law. (J.A., Ex. 4, at 332). Instead, it only stated that Fox Interactive
Media would seek the dismissal of the action and would do so only if
it was not required to pay the plaintiffs or their counsel. (Id.).
Accordingly, it is at least triable whether the above language was
misleading as to the extinguishment of derivative standing, which
was material information.

Accordingly, we also hereby DENY Defendants Motion for Summary
Judgment as to this alleged material omission.

44. Edell & Defendants in mid-2009 launch another prong of fraudulent

concealment. includes i) publication of a book by employee loyal to

News Corp to fabricate the background of Jeff Edell a former Director ii) Using

fabricated Edell character to conceal truth that MySpace asset sale documents were

not executed until 2004. These schemes create a fraud upon the court and keep

petitioner and Class members from getting benefit of fair judicial process.

45. Defendants leverage their relationship with acquiror to create

defamatory and fabricated lies thru acquiror News Corporation employee Angwins

published in late 2009 book, Stealing MySpace which fraudulently conceals the

true background of former Director and Chairman Jeff Edell and his scheme with
19

Brewer to forward a fabricated false resume.

46. This creates further ongoing defamatory damages to Plaintiff and

Shareholders because Class Counsel accepts and uses false Edell facts in book

instead of Plaintiffs facts offered to Class Counsel in 2012 Federal Class Action in

Los Angeles Central District. Edells false facts allow the fraudulent conveyance

Of approximately 50% of Myspace.com, the crown jewel of eUniverse, Inc. in 2004.

Further, Edells false facts which become Acquiror News Corporation false facts,

obstruct Plaintiffs true facts from entering the record for the benefit of the Federal

Court learning the true damages and claims rightfully owed to shareholders. Plaintiff

and shareholders will continue to suffer until the defective disclosure is cured by

Defendants. (70B Declaration, pg. 24-27, paragraphs 114-131)

47. Additional act of fraudulent concealment is part of scheme by defendants tied

to 2009 Angwin published book that uses fabricated documents to support critical

contentions. altering, destroying, mutilating, or concealing a document with the intent to

obstruct justice in violation of 18 U.S.C. 1512(c)(1);

48. Petitioner a fact witness with testimony that was adverse to Defendants was

excluded and obstructed from entering evidence into the Brown Brewer case,

immediately before Defendants plugged in Angwins false facts and testimony while

using Stealing MySpace as an uncontested source of facts to corrupt the

Classs case And damage/expert reports.

49. News Corporation destroyed Petitioner testimony from appearing which

damages Petitioner and violates Section 1512(d) which criminalizes the actions of

2u
[w]hoever intentionally harasses another person and thereby hinders, delays, prevents,
or dissuades any person from appearing before an official proceeding, law enforcement
officer, or United States judge.

50. Angwin fraudulently conceals evidence of Edells true work experience and

back ground and his violation of SEC rules in 2003 and 2004. Defendants conceal their

knowledge of this scheme thru the March 19, 2012 Approval of the Federal Brown


intervene to remove RGRD and Jim Brown from representing the Federal

Class and agreeing to An Inadequate consideration for the settlement and failure to assert

more valuable claims and evidence into the Court prior to approving settlement.

51. Angwin, Hinton, News Corporation, Hogan Lovell, RGRD, and eUniverse

Defendants violate 18 U.S.C. 1512(c)(1) and 18 U.S.C. 1519 by hiding evidence of

Edells two resignations on his bio that were really his last two jobs instead of submitting

an accurate bio, defendants stretched the job of Edell that was actually 3 jobs prior, and

increased this 3rd job by another 2 years, to the year 2002 (from 2000). Edell both

omits to accomplish his end goal of making detection and disclosure of his true track


i. Angwin, News Corporation, Hinton, Murdoch, RGRD, eUniverse

and Orrick Conceal the false revised BIO of Edell filed in July 2004 SEC filings:

"Mr. Edell was the Chief Executive Officer of Showorks Entertainment
Group. Inc., a Delaware corporation that later changed its name to Media
Technology Source of Delaware, Inc. Within two years of the time that Mr.
Edell resigned from that company, it filed a petition for relief under the
United States Bankruptcy Code."

52. Defendants scheme entailed Creating a fictitious Glowing work experience

21
for Edell using a fabricated Resume in 2003 that News Corporation, Hinton, Angwin,

and Murdoch determined would be used to harm Petitioner In a book that was published

called Stealing MySpace and was sent in US Mail to bookstores Across the United

States beginning in March 2009, and overseas with the fabricated false facts related to

Edells true work Experience and his SEC violations in 2003, 2004, 2005 in violation of

Rule 401, this violated section 18 U.S.C. 1341.

53. After the Class won summary judgement in June 2010, petitioner in

2011 tried to bring new evidence to the attention of Class Counsel indicating the

true damages were related to the value of MySpaces search value, the claims and

facts which had never been put before the Federal Court. Petitioners Rule 701

damage report providing for damages of over $96 billion dollars was ignored by

Class Counsel who instead joined with defendants in a brazen scheme to: i)

mislead and initiate a fraud upon the Court by changing the definition of the

certified class to eliminate upwards of 60% of the eligible shares and shareholders

and ii) enter into a sham settlement for pennies on the dollar which was accepted

by the Federal Court in March 2012.

S4. In Septembei 2u1u, by RuRB, Baion, Bogan Lovell, Stone, News

Coipoiation, 0iiick anu othei Befenuants filea }oint Notion to ban fact witness anu

Petitionei fiom the Feueial Class to uelay anu haiass Petitionei fiom appeaiing

befoie Feueial }uuge. Befenuants knew the motion to ban the petitionei coulu not

be tiue unless 0iiick coulu continue to suppiess new eviuence anu uiscoveiy fiom

enteiing the Feueial Biown v. Biewei ongoing case.
22

SS. 0thei Eviuence uestioyeu by 0iiick incluueu theii ties anu business

with NySpace Paient Company executive Chiis BeWolfe. 0iiick anu BeWolfe woik

togethei in 2uu4 anu 2uuS to uocument a fabiicateu sale of equity of NySpace at

iock bottom piices foi BeWolfe.

S6. In 2u1u, Baion anu News Coipoiation anu Bogan & Lovell, anu Stone, anu

RuRB anu 0iiick violateu 18 0.S.C. 1S41 (ielating to mail fiauu) by senuing notice

of the }oint Notion to Biief the "Notion to Ban Biau uieenspan" foi puipoiteu "ies

juuicata" they intenueu to file in Feueial Couit via email to Petitionei's then lawyei

Ni. Lawience.

i. Above Befenuants violateu fuithei 18 0.S.C. 1S12 (ielating to

tampeiing with a witness, victim, oi an infoimant) 18 0.S.C. 1S1S (ielating to

ietaliating against a witness, victim, oi an infoimant) anu 18 0.S.C. 1S19 (ielating

to uestiuction, alteiation, oi falsification of iecoius in Feueial investigation anu

bankiuptcy) by omitting anu uestioying the eviuence they possesseu at the time

the above actions weie taken that woulu have pioviueu new facts anu infoimation

anu claims not iaiseu oi in State pioceeuing anu that woulu have the effect of

voiuing the uefenuant's motion.

ii. RuRB, Baion, Wissbioeckei violateu theii fiuuciaiy uuty to Petitionei as

well as aiuing anu abetting above violations of othei Befenuants.

iii. Baion & RuRB lieu anu fabiicateu biiefings, pleauings, anu affiuavits in 2u11
anu 2u12 to fiauuulently conceal the piioi ciiminal acts in Feueial Couit.

S7. In Becembei 2u1u, RuRB was again uisloyal by changing the Class
2S

Ceitification to ieuuce the # of eligible shaies.

i. 6/8/09 Judge King approved Certified Class with definition:

Most clear is position of RGRD Law at the time:

Plaintiff responds herein to both questions raised by the Court in its Order re:
Plaintiffs Motion for Class Certification: (1) should the class definition be
modified to include only holders of Intermix Media, Inc. common stock who
held continuously from July 18, 2005 (the date the merger with News
Corporation was announced) through the consummation of the merger on
September 30, 2005; and (2) should the plaintiffs in the state court actions be
carved out of the class definition? As set forth below, the answer to both
questions is no.

ii. 12/23/10 Certified Class is victim of definitional change by RGRD

Law, inserting ulawfully, word continuously. This cuts approximately 60% of total

shares that were eligible under Certified Class definition.

iii. December 2011 RGRD challenged by Shareholders objecting
1
to

Settlement denied the Class Certificate had been switched.

58. Sony Music Corp and Seligmann using its control position on the Board of

the RIAA and its relationship with EMI and Warner Music Group, induced Arent Fox to

falsify his affidavit and the fact contained which were used to conceal the fact that EMI

and Petitioners startup LiveUniverse, Inc. had entered into a music text lyric license

prior to Warner Music, EMI, RIAA, Sony Music, and PeerMusic filing a federal

1
*Included:
-Largest shareholder of original Certified Class defined in 2009, Trafelet & Co., a multi billion dollar
NY Hedge Fund which retains law firm referred by Brad Greenspan, another injured shareholder and
fact witness. Brad was one of named plaintiffs in State Class action which was dismissed in 2006.
-Similar to Cut/lost shares, RGRD switched its position unlawfully, allowing
Defendants to file uncontested Motion to Ban state court plaintiffs, un defended, default judgment
carved out Brads 2,900,000 shares. (Brad was the largest single shareholder, owning about 10%
commons stock at time of sale.

24

copyright infringement complaint that claimed LiveUniverse had never entered into such

an agreement in 2009.

59. It was part of the Defendants scheme to conspire to interfere with Plaintiffs

livelihood by filing a lawsuit against Plaintiff in 2009 in retaliation for providing

truthful information to the SEC, DOJ, and FTC relating to the Defendants scheme, in

violation of 18 U.S.C. 1513(e) and (f).

60. It was part of the Defendants scheme to interfere with Plaintiffs

livelihood by disseminating defamatory statements about Plaintiff to the public through

various media outlets in retaliation for providing truthful information to the SEC, DOJ,

FTC, and Federal and State court relating to the RICO Defendants scheme, in violation

of 18 U.S.C. 1513(e) and 1513(f),

NEWS CORPORATION: CRIMINAL HACKING & BRIBERY

61. In 2012, News Corporation, who indemnified director defendants in

Brown v. Brewer and was operating the cases U.S. legal strategy, was exposed as

a criminal enterprise that had hacked the phones of over 1000 UK citizens and

employed a massive campaign of bribing police and public officials.

62. News Corporations general counsel resigned in 2011 and its

CEO appearing under oath at the Leveson Inquiry admitted he was the victim

of a coverup and all criminal acts exposed had gone on without his knowledge.

63. News Corporation conceded its internal controls were

defective as a result of the exposure of years of bribes its UK subsidiaries had

paid out and hidden by falsifying its financials.

64. At the current time, the CEOs most trusted lieutenants and top

2S
employees are on criminal trial for obstruction of justice, bribery of government

and police officials, and criminal phone hacking in the UK.

65. Four employees of News Corporation have already pled guilty.

66. News Corporation, has already conceded it has no defense for the

illegal acts charged and admits its internal controls were defective and the CEO

didnt know what was going on and the same coverup News Corp claims to be a

victim of was operating and responsible for the acts petitioner claims herein.

V - CONCLUSION:

67. Chancery Courts failure to force Defendants to honor their promise to

fix the defective Disclosure in 2003 is directly responsible for allowing Defendants

to steal upwards of $32 Billion in damages (Rule 701 Damage Report) from thousands

of shareholders in 2005 including Petitioner.

68. Defendants have failed to respond to a Motion 70(b) filed with Judge Strine

January 2, 2014 seeking relief from the contempt of then Vice Chancellor Strines order

and ruling January 14, 2004 and the included agreed relief for any technical violation.

VI. CLAIM COUNTS


69. Plaintiff repeats and realleges the foregoing paragraphs as set forth herein.

70. All Defendants have violated Count #1



26


74. All Defendants have violated 1503 (c)



COUNT # 5 1504 TRIGGERED PETITIONER
RIGHT TO CIVIL REMEDY UNDER 1505(f)

78. News Corporation 2013 UK CRIMINAL GUILTY PLEAS UNLAWFUL

UNDER 1504 and 1505(f)



80. Sony has breached The }uly 2uuS 0ption agieement which stateu,

iv. Pursuant to the debt financing agreements, eUniverse and VPVP
agreed that in the event that VPVP does not exercise the Option within 120
days of its grant, that VPVP may, within 10 days after the expiration of such
120-day period, transfer the Option to eUniverse in exchange for a warrant
(the Warrant) to purchase 200,000 shares of the Companys Series C
Convertible Preferred Stock.

81. Sony and VantagePoint Venture Partners have further breached
OPTION AGREEMENT, dated as of July 15, 2003, among 550 Digital Media
Ventures, Inc. (Seller), an affiliate of Sony Broadband Entertainment, Inc.,
eUniverse, Inc., a Delaware corporation (the Company), and VP Alpha
Holdings IV, L.L.C. (Buyer).
Sections 6 & 7 & 10 & 14 which state:

6. Representations and Warranties of Seller. Seller represents, warrants and
covenants to Buyer, as of the date hereof and as of the Closing Date, that:
27
(e) No Price Stabilization or Manipulation. Seller has not taken and will not
take, directly or indirectly, any action designed cause or result in stabilization
or manipulation of the price of any of the Shares.

7. Representations and Warranties of Buyer. Buyer represents, warrants and
covenants to Seller, as of the date hereof and as of the Closing Date, that:

(c) No Price Stabilization or Manipulation. Buyer has not taken and will not
take, directly or indirectly, any action designed to cause or result in
stabilization or manipulation of the price of any of the Shares.
14. Buyer May Exercise Option For Less Than All Shares. Notwithstanding any
other provision herein to the contrary, Buyer may exercise the Option with respect to
less than all of the Shares, but in no event less than 50% of the Shares.
10. Certain Transactions. Seller shall vote as a stockholder in favor of an investment
and loan transaction between the Company and Buyer resulting in an additional
investment in the Company by Buyer of no less than $5 million at a price of at least
$1 per share (if an equity transaction), as approved by the Board of Directors of the
Company (the Transaction).

16. Miscellaneous.
This Agreement may not be modified or amended, except by an instrument in
writing signed by duly authorized officers of both of the parties hereto.

82. Proxy notes on page 17. that on October 31, 2003, the option term

was extended to April 16, 2004 and VantagePoint partially exercised the option and

purchased 454,545 shares of our Series B preferred stock from 550 Digital Media

Ventures. The note an exhibit had an original term of 120 days or November 16,

2003 for VantagePoint to purchase the Sony Corp shares under the option.

83. In Intermix 3/31/04 - 10K section 'Certain Relationships

"On October 31, 2003, the option term was extended to April 16, 2004 and
VantagePoint partially exercised the option and purchased 454,545 shares
of our Series B preferred stock from 550 Digital Media Ventures. On April
16, 2004, VantagePoint exercised the remainder of the option.

84. However, The October 31, 2003 extended option agreement between

28
Sony and VantagePoint was improper and what was not disclosed to shareholders

was that thru Orrick and defendants actions, shareholders i) were losing the bargain

of the deal which called for Issuer to have the right to purchase 100% of the Sony

Option Shares after January 16, 2004 as part of an agreement that would transfer

200,000 Series B Warrants of Issuer to VantagePoint and ii) The October 31, 2003

extended option actually acted as a way that Orrick and defendants sought to avail

themselves of the 19.9% nasdaq and other exchange limits that required Issuer to

have a shareholder vote prior to approving any issuance of stock of Issuer including

an issuance of stock as part of an integrated deal that shifted more then 19.9% of

Issuers stock to new party.




THRU FAILURE TO DISCLOSE COMPLIANCE
FAILURES


COUNT #9 RULING BASED ON DELAWARE STATUE
AND CODE 1304 THAT 2004 MYSPACE TRANSFER
AND 2005 TRANSACTIONS FRAUDULENT
90. 1304. Transfers fraudulent as to present and future creditors.
COUNT #10 VIOLATION OF DODD-FRANK
WHISTLEBLOWER STATUTE SECTION 922) &18
U.S.C. 1513(e))
29

92. Petitioner is entitled to a private cause of action for damages suffered Pursuant to

the Dodd Frank Whistleblower Statute. Mr. Greenspan is entitled to a private cause of

action for whistleblowers alleging retaliatory discharge or other discrimination. Id.

78u-6(h)(1)(B)(i). Relief includes Right to Jury Trial, reinstatement, double the back

pay owed, and costs and fees. Id. 78u-6(h)(1)(C).

i. Damages including loss of employment and Chairman Director

position from Myspace Parent company in 2003 under 15 U.S.C. 78u-6 ("Section

922") and loss of Director employment under the same statues. Petitioner reported

information concerning Defendants breach of fiduciary duty, disloyalty, and violation

of Section 10(b) of the Exchange Act when he resigned as CEO on October 30, 2003.

Petitioner reported information concerning Defendants breach of fiduciary duty,

disloyalty, and violation of Section 10(b) of the Exchange Act when he resigned as

Director in December 2003.

Mr. Greenspan was terminated for two reasons: (i) in retaliation for reporting

misconduct of Brewer, Edell, Lipp, and other Defendants; and (ii) to stop the CEO from

terminating,demoting or decreasing the compensation of Brewer, Edell, Lipp, Moreau.

iii) The CEOs refusal to sign a Board created settlement agreement during the week of

October 30, 2003 which would have prevented Greenspan from contacting other

shareholders or regulators and disclosing the breach of fiduciary duty or other security

violations the Board and certain executives had committed in the process of

consummating the VantagePoint Series C

Financing in October 2003. The acts had been committed by Defendants
Su

while blocking the superior rate Common Stock financing sitting in Issuer

outside law firms bank account. Endangering the entire Public Corporation
PETITIONER ALSO HAS CLAIMS AGAINST SONY
ix. Sony Corp executives, Defendants in this Complaint, abused their

fiduciary duty to Issuer by misleading the Public and shareholders as part of

assisting Defendants scheme to take control of eUniverse, Inc. in 2003 and get

approval and entrench Defendants as a result of the January 2004 Annual Meeting

and Proxy Battle against Petitioner.

x. Sony Corp Defendants possessed a critical Board Seat Nomination

legal right the Series B Stock possessed. Sony Corp nominated Edell as the Series B

Stockholder in 2004 even after evidence in Delaware Court showed Edell and

Defendants had mislead shareholders by Filing multiple defective and false proxy

statements to Issuers shareholders in 2003 and 2004.

xi. As a Result of the applicable Defendants involvement in the above-

described conspiracy and conspiratorial scheme, the Plaintiff has suffered severe

emotional, financial, mental, and physical harm and other deleterious effects; been

unfairly disadvantaged in multiple civil lawsuits initiated against him by several of

the Defendants and other parties; had his freedom of speech severely impinged;

been forced to spend hundreds of thousands of dollars on legal fees; been forced to;

And had his personal and professional reputation severely and permanently

damaged. Based upon information and belief, some of the Defendants are

continuing to engage in the above-described conspiracy and conspiratorial scheme

S1
even though they are well aware of the devastating toll that their prior conspiratorial

actions have already taken on Petitioner and Petitioners business assets.


93. Plaintiff incorporates by reference and realleges each allegation set forth above.

94. All Defendants are charged with Count #11



96. Defendants lied to Court regarding Defendants Proxy disclosure related to

Edell. Defendants Failure to make this right as claimed by Defendant

Delaware counsel is worthy of Contempt violation.

COUNT # 13 - Ruling certain transactions
after October 17, 2003 are Void.


98. Plaintiff effects 3-1-1 approval of properly noticed Director slate on October

17,2003. Defendants fraudulently concealed such properly noticed slate.

Defendants have also not legally effected a valid closing or vote on the Series C stock

sale or transfer from Sony of their Series B shares, blocking public issuers option

received in three way agreement between Sony, VantagePoint, and public issuer in 2003.

The crooked dealings expand when Orrick uses its insider knowledge to produce a

commercial benefit for VantagePoint while having Issuer pay 100% of the cost by

paying off Sony debt earlier then due.

S2
COUNT # 14 - VOID Defendants right to
exculpation under 102(b)(7)


100. Defendant Directors right to Exculpation because of Judge King ruling finding

bad faith and disloyalty must be void.

COUNT #15 - Ruling certain transactions


102. Plaintiff effects 3-1-1 approval of properly noticed Director slate on October 17,

Defendants fraudulently concealed such properly noticed slate. Therefore, Defendants

have also not legally effected a valid closing or vote on the Series C stock sale or transfer

from Sony of their Series B shares, blocking public issuers option right to rebuy the

shares for benefit of common stock shareholders received

in three way agreement between Sony, VantagePoint, and public issuer in 2003.

103. voids Blasius Directors compensation post Blasius event

104.voids VantagePoint financing tranche I on October 31, 2003

105.voids VantagePoint financing tranche 2 on January 24, 2003 which was subject to

shareholder vote of items in Blasius Proxy created by Blasius Directors.

106.Plaintiff awarded damages to stock owned equal to the dilution caused by Blasius

Directors and Blasius Proxy.

107. Plaintiff awarded Expectency damages as Proxy Slate backer damaged by Blasius


108. Award to competing Proxy slate compensation as if Slate Directors had not been
SS

victim of Blasius violation by defendants.


109. Plaintiff repeats and realleges the foregoing paragraphs as set forth herein

110. PLAINTIFF RIGHT TO INDEMNIFICATION AND ALSO RIGHT TO
IDEMNIFICATION FOR ADVANCEMENT LEGAL FEES. INCLUDING ALL
MATTERS OR EVENTS OR FACTS CITED

111. Plaintiff was Director and Officer at Issuer that owes Plaintiff benefit of contract

rights defined in Section 7 of Issuer Bylaws for Indemnification and Advancement:

The rights conferred upon indemnitees in this ARTICLE VIII shall be contract rights
and such rights shall continue as to an indemnitee who has ceased to be a director,
officer or trustee and shall inure to the benefit of the indemnitees heirs, executors and
administrators. (Exhibit 1,Article VIII Section 7. Nature of Rights )

112. Plaintiff s Right to Indemnification is entitled to: i) indemnification to

fullest extent authorized by the Delaware General Corporation Law or broader

indemnification rights
2
:

113. Plaintiff is also beneficiary broader protection compared to Del 145 statue limits
3

114.Indemnitee in addition to being an Officer, was Director and due benefit of Issuers

Eighth Bylaw broadening scope of Indemnification and Advancement rights:

EIGHTH: Directors of the Corporation shall not be personally liable to the Corporation
or its stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the Corporation
or its stockholders, (ii) for acts or omissions not in good faith or which involve

2
"shall be inuemnifieu anu helu haimless by the Coipoiation to the fullest extent authoiizeu by the
Belawaie ueneial Coipoiation Law, as the same exists oi may heieaftei be amenueu (but, in the case of
any such amenument, only to the extent that such amenument peimits the Coipoiation to pioviue bioauei
inuemnification iights than such law peimitteu the Coipoiation to pioviue piioi to such amenument),"
(Aiticle vIII Section 1;Exhibit 1)

S
"any action, suit oi pioceeuing, whethei civil, ciiminal, auministiative oi investigative (heieinaftei a
"pioceeuing")" (Exhibit 1 e0niveise Aiticle vIII Section 1. "Right to Inuemnification")

S4
intentional misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law, or (iv) for any transaction from which the director
derived an improper personal benefit. (Exhibit 2)
INDEMNIFIED FOR ALL EXPENSE, LIABILITY, AND LOSS SUFFERED

115. Indemnittee contract right is Mandatory advancement. Plaintiff is not

limited by standard Delaware 145 Permissive advancement limitations such as allowing

terms and conditions to be set that a corporation deems appropriate.

116. Petitioner seeks to be indemnified for following:

(a1) Damages and impact on Indemnitee from fabricated dividend or fraudulent
conveyance of 33% of Myspace.com to insiders initiated in November 2004.

(a2) Damages and impact on Indemnitee from void October 31, 2003 Certificate
of Designation of Series C Preferred Stock, void Series C Preferred Stock sale,
void Series C Directors, void January 2004 Annual Shareholder meeting, void sale
of Skilljam.com,

(a3) Damages and impact on Indemnitee from void February 2005 sale to
RedPoint Capital of 25% of Myspace, Inc. stock.

(a4) Damages and impact on Indemnitee from void name change by eUniverse,
Inc. to Intermix, Inc., and sale of eUniverse, Inc. aka Intermix, Inc. to Defendant
in September 2005.

(a5) Damages and impact on Indemnitee from void issuances of stock and
options to certain Officers and Directors after October 30, 2003.

(a6) Damages and impact on Indemnitee from fraudulent concealment by
Defendants of valid October 17, 2003 Annual Slate of Directors being validly
nominated for Annual Shareholder meeting with a shareholder record date of
October 23, 2003.

(a7) Damages and impact on Indemnitee from void News Corporation 2005
purchase of eUniverse, Inc. since indemnitee owned 30% of eUniverse, Inc.

(a8) Damages and impact on Indemnitee from lost $900 million Google Search
Commerciial agreement.

(b1) Damages and impact on Indemnitees January 2004 conflicted search
SS
engine conflict and warning notice filed with SEC.

(b2) Damages and impact on Indemnitees May 2005 Whistleblower notice to
Intermix, Inc. and Intermixs june 2005 reply and actions.

(b3) Damages and impact to Indemnitee thru Carlick June 2005 fraudulent
concealment while Carlick controlled Manatt Law firm misled & manipulated
NYAG to investigate Indemnitee

(b4) Damages and impact to Indemnitee and Expectancy Damages from
Indemnitees $13.50 Counter Offer to Purchase Intermix, Inc. and Myspace Inc

(b5) Damages and impact to indemnitee and Expectancy Damages from
Indemnitees failed online music lyric text community website venture after and
as part of Sony facilitated November 30, 2012 Warner Music Group PeerMusic
lawsuit against Indemnitee.

Indemnitees failed buyout of publicly traded Delaware Incorporated
Answers.com in 2011.

Indemnitees failed buyout of subsidiary of publicly traded Delaware
Corporation, Washington Post Corporation in 2013.

(c1) Damages and impact to Indemitee and Expectancy Damages from
preventing Indemnitee from entering Rule 701 Damage Report into Federal
Court in Los Angeles in 2011 and 2012.

(c2) Plaintiff did not receive $2.75 per share despite having qualifying stock
Held of over 2,900,000 shares.

Plaintiff as shareholder was damaged by reason that Plaintiff was Director
and Officer of eUniverse, Inc. Plaintiff was obstructed from puttingRule
701 Damage Report into Federal Court before the December 31, 2012 final
Disposition.

COMPLAINT FOR DAMAGES

Requiring disgorgement and/or imposing a constructive trust upon Defendants ill-

gotten gains, freezing Defendants assets, and/or requiring Defendants to pay restitution

to Plaintiff and to all members of the class of all funds acquired by means of any act or
S6

practice declared by this Court to be an unlawful, unfair, or fraudulent.

VIII - RELIEF REQUESTED

A. WHERFORE, Plaintiff demands judgment and preliminary and permanent relief,
including injunctive relief, in its favor and in favor of the Class and against the
Defendants as follows:

B. Awarding Plaintiff appropriate damages including compensatory damages,
together with pre- and post-judgment interest;

C. Awarding Plaintiff the costs, expenses and disbursements of this action, including
any attorneys and experts fees and, if applicable, pre-judgment and post-
judgment interest; and

D. Awarding Plaintiff such other relief as this Court deems just,equitable and proper.

Dated: April 16, 2014

_________________________________

S7

EXHIBIT #1

January 2, 2014

Brad D. Greenspan
Suite 1236

Case C.A. No. 106-VCS
Greenspan v. Brewer, et. Al.

Dear Honorable Chief Chancellor Strine

Attached for your consideration under Exhibit A herein is a Motion 60(B)(6) requesting the case be re-
opened to allow for the merits of a Motion for Contempt 70(B) to be considered, along with the other
relief your ruling explicitly allowed for under the ruling and statements you made during the hearing in
January 2004 (A transcript of the hearing is attached as Exhibit #9 of Declaration in support of Motion
70(B) , specifically a Motion to Conform the Evidence, and a Motion for Judgment on the Pleadings.

While several years have gone by since the case was closed in 2004, I believe it is meritious for
The Chancery Court to accept the Motion 60(B)(6) that attaches as exhibit Motion (70)(B) for filing
along with the other documents.

First, procedurally, I followed the precedent and sequence for such an action from your decision in
C.A. No. 4780-VCS (WIMBLEDON FUND LP ABSOLUTE ) RETURN FUND SERIES v. SV SPECIAL
SITUATIONS FUND, February 2011), in which you stated in the ruling,

the way for a party to obtain relief from a final judgment is for it to file a motion in this court
under Court of Chancery Rule 60(b).

Second, because the underlying facts of the Motion for Contempt 70(B) involve fraudulent concealment
by the defendants of the scheme that the motion seeks relief from, the amount of time that has passed
should not bar this Motion from being accepted by the Court to consider.

Specifically, the evidence discovered to pierce the fraudulent concealment scheme only became
available after: i) defendants as part of the scheme published a book in 2009 calling Stealing
MySpace with false facts in an attempt to further the fraudulent concealment which began in Chancery
Court after your ruling and findings in 2004.

The defendants then induced the Plaintiff Class Counsel RGRD Law to substitute the false facts from
the defendants published book in place of my evidence I was seeking to submit into the Los Angeles
Central District Federal Class Action Security Fraud case (Brown v. Brewer, which consolidated 2005
events and claims surrounding the September 30, 2005 Cash sale of eUniverse, Inc which had changed
its name to Intermix to acquiror News Corporation, and certain 2003 claims related to the restatement
eUniverse had suffered ). Therefore, I was a member of the Class of Plaintiff shareholders in regards to
the 2005 claims, but a potential defendant Director in regards to the 2003 claims from the restatement.

A fight broke out as I sought to alert other shareholders of the Class to the fact that Plaintiff Class
Counsel had turned into a renegade suddenly sprinting to settle the claims for .07 cents on the dollar
after Federal Judge Kings June 2010 Summary Judgment finding in favor of the Plaintiff Class (of
which I was a member of such class because of my shareholdings in the underlying public company).
Judge Kings Summary Judgment focuses only on the 2005 matters.

Both myself and the second largest member of the certified class, an institutional stockholder Trafelet
& Co, a NY hedge fund, then attempted to object to the inequitable Settlement fashioned by RGRD
Law. Further, I tried to intervene to stop the settlement and get the Federal Court in Los Angeles to
review the new evidence covered up by defendants fraudulent concealment and fraud on the Chancery
Court evidence and matters that I had discovered by March 2012.

While I was forced because of monetary constraints (and the breach of a 2007 Common Interests
Agreement I signed with RGRD Law) to file pro se, I was not allowed to intervene to inject the newly
discovered facts, and the Federal Class Action Security Fraud class action had its final disposition with
the December 31, 2012 distribution of $45,000,000 in settlement proceeds to the Class

However, my alerting the other Class members led to Trafelet & Cos retained lawyer being allowed
to intervene at which time we discovered that RGRD Law had initiated a scheme to change the
definition of the certified class in the settlement documents which effectively removed 60% of the
eligible shares for participation in the settlement (RGRDLAW changed the legal definition of the Class
in the 2012 settlement documents from the previous May 2009 definition which the federal court
certified allowing anyone holding shares as of July 18, 2005 thru September 30, 2005 (date of
consummation of the merger) to receive a share of settlement proceeds, to instead a new different legal
definition which RGRD Law printed in the 2012 settlement documents which injected the word
Continuously as a qualifier. RGRD Law had a copy of the 13-F SEC list of institutional holders
which they had sent me in 2007, and realized by simply adding this one qualifying word, 60%+ of the
eligible shares would be cut out because 80%+ of the institutional shareholders holding shares on July
18, 2005 when the merger was announced, sold their shares before September 30, 2005 when the
company announced they would not entertain the competing $13.50 bid I had publicly announced (and
in which I was fronting for Viacom, Inc. a rival bidder, who was not given a chance to bid and such
scheme discussed by Judge King in his 2010 summary Judgement ruling. Thus the Federal Judge could
not consider the facts and evidence including my emails with Viacom, their desire for me to keep their
involvement in my bid anonymous unless the Company agreed to delay the September 30, 2005
shareholder meeting to approve the sale to News Corporation).

My alerting the other class members resulted in Trafelet & Co. first discovering that they were in fact
not eligible to receive any of the award because they had sold all 3 million of their shares before
consummation of the merger before September 30, 2005, and working with a boutique law firm in Los
Angeles such effort caused the Federal Judge to reject the first Settlement terms. While Judge King
noted in his ruling rejecting the first Settlement terms, that it was odd that RGRD Law in 2009 had
fought to create a certified class that included the type of shares held by Trafelet & Co and that in 2012
RGRD Law was now fighting jointly with the Defendants to claim continuous holding of the shares
thru the date of the September 30, 2005 consumation was necessary to be a member of the newly
defined certified class that RGRD printed in the settlement documents.

Judge King appeared exhausted by the proceedings and not desirous to take action on RGRDs breach
of its duty of loyalty, fiduciary duty to the Class members, fraudulent concealment of new evidence,
and fraud upon the Court (all of which I sought to be reviewed and considered by the Court in my
intervention filings and 60b3 motions which the Court rejected to be heard because more then 12
months since the default judgement banning me as a member of the Class that I sought to vacate had
passed) and approved a March 2012 2
nd
Settlement structure in which RGRD admitted Trafelet & Co.
was a member of the certified class but had shares which were not as valuable as the Continuous
shareholder, and a smaller portion per share of the award was given to Non-Continuous shares held that
were also members of the 2009 certified class

During this time, I became aware of one of the underlying reasons for RGRD Laws misdeeds. RGRD
was sanctioned in 2008 in Chancery Court as part of the findings and rulings of (SS&C
TECHNOLOGIES, INC. C.A. No. 1525-VCL). However, RGRD fraudulently concealed this sanction
from me and never disclosed it to the Federal Court in Los Angeles. This was because the defendant in
the Brown v. Brewer case was represented by Latham Watkins (although Latham directly represented
the defendants in the California State Class Action which was dismissed at demurrer stage in 2006
before discovery was reviewed by myself and new findings and claims were created from such
discovery that I subsequently shared with RGRD in 2006 which was then filed as part of the Federal
Class Action Security fraud claims, Latham wisely allowed Hogan Hartson to sub in for Latham during
the Federal Class action), the law firm that was opposite RGRD In SS&C.

Thus, RGRD was induced to turn renegade against the interests of myself and the other Federal Class
members because Latham was willing to pass on launching a new set of claims against RGRD and
significant new liability for RGRD (using the findings the Vice Chancellor hints at in the SS&C
Sanction ruling) that may have terminated RGRDs ability to practice law. RGRD also wanted a piece
of the $45 million dollar settlement and Lathams silence on informing the Federal Court that RGRD
was fraudulently concealing notice and disclosure of its Sanction from Chancery Court, allowed RGRD
to remain as Class Counsel. Noting that I was unaware initially of the SS&C Sanction matter when I
began in 2009, sending emails to RGRD indicating I was seeking to have them removed as Class
Counsel after they did a joint motion to ban me as a Witness and not use my evidence (May 2009) after
I informed them I would submit new evidence into the record I had discovered and had agreed to be
subpoened by Defendants counsel Hogan Lovell and submit such new evidence imminently)

ii) The additional critical evidence that caused me to purchase and review the 2009 Stealing Myspace
book that RGRD used as the false facts injected into the Federal Court Summary Judgment, as well as
the impetus for a below fair market settlement of the case in 2012, was the ongoing Federal Class action
HiTech Employees v. Google, Apple, et. Al I discovered existed in 2012 (the class action had been filed
in San Jose Federal Court in late 2011). After purchase of the Stealing Myspace book I discovered
references to interviews with Jeff Edell at the back of the 300 page book (after seeing reference to use
of Stealing Myspace by RGRD Law in the post 2010 Summary Judgement underlying summary of
facts documents I reviewed after being forced to stop my internet business (my full time job at the time)
and become Active as a class member that became aware RGRD had gone renegade and the entire
Shareholder Classs rights and claims were exposed and likely to be lost or severly diminished unless I
personally became active.

Only after launching a new investigation of Jeff Edell because the Stealing Myspace book
underpinned its facts from the interviews with Edell, did I get access to an original D&O Questionaire
that Edell had filled out in 2003 and submitted to the Nominating Committee of the eUniverse Board
(of which I was not a member).

It was this evidence of fraud that is at the heart of the 70(B) motion and is part of the Exhibits that
proves clearly a new crime of Fraud Upon the Chancery Court (along with other equitable claims).

Additionally new evidence disclosed in discovery in Hitech Employees v. Google only became
available in May 2013 (when disclosed in that cases attempt to Certify its Class), and such new
evidence connects Director Carlick with being a party to secret bilateral agreements that Defendants in
that case admitted were formed in 2004 and 2005. As Carlick was a Director of AskJeeves Inc. which
was one of the co-bilateral agreement parties that entered the admitted unlawful and illegal agreements
With Google (and Google had signed a Settlement admitting as such with the Department of Justice in
late 2011). Carlick was simultaneously a Director of eUniverse and his firm was control shareholder
after using Edell to help take control and win the 2004 Proxy vs. my competing Proxy bid.). Thus
Edells continuation of the fraud started in Chancery Court, discovered by Chancery Court, and then
doubled up on by defendants, was also the key scheme of the fraudulent concealment that the 2009
Stealing Myspace book accelerated, and underpinned RGRD Laws claims to the Federal Court in
Their 2012 joint bid telling the Federal Court that my claims I sought to inject into the Court were
lacking in credibility.

Therefore, unless the Chancery Court provides the relief I am seeking, I can never recover my
credibility versus the fabricated Director Edell scheme that the Motion 70(B) seeks to lance.

Further, unless the Chancery Court re-opens the matter under its right to do so via 60(B)(6), then
The Chancery Court will be allowing Defendants including Delaware defense counsel to lie to the
Court and completely disregard the Courts rulings when they are made.

Therefore, I urge your consideration of the facts included in the attached Motions and appeal to your
sense of equitableness in allowing these Motions to be filed in the Chancery Court despite the time
since the matter was closed. I also note that because my Slate of Directors was nominated rightfully
October 17, 2003 before I resigned as Chairman and CEO, and the Defendants fraudulently concealed
this fact from the Chancery Court and the public, doesnt provide a cure for the VOID actions
defendants took after such date, nor does it provide a cure for the VOID actions the defendants took
after thumbing their nose at the Chancery Court ruling in January 2004 (and fraudulently concealing
from the Chancery Court in July 2004 at which time the Court entertained an award of legal fees but
only granted in part because defendants were fraudulently concealing the aforementioned matters which
are detailed fully in the underlying Motions).

Sincerely,

Brad D. Greenspan

EXHIBIT A

"
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

BRAD D. GREENSPAN,

Plaintiff,

v.

BRETT BREWER, et al.

Defendants
)
)
)
)
)
)
)
)
)
)
)

C.A. No. 106-VCS

MOTION FOR CONTEMPT 70(B) 42(B) AND/OR 60(B)(3)

#
I INTRODUCTION.pg.3

II SUMMARY OF ALLEGATIONS..pg. 4

III ARGUMENTpg. 5

A. DEFENDANTS WILLFULLY IGNORED
WARNINGS AND MULTIPLE NOTICES...pg. 6

B. COURT PROVIDES RECOMMENDATION
THAT DEFENDANTS OPTED TO IGNORE....pg. 6

C. BOTH DELAWARE COUNSEL AND
DEFENDANT BROKE PROMISE TO COURT.pg. 7

D. DEFENDANTS IGNORED FIDUCIARY DUTY
TO HONOR OCTOBER 17, 2003 DULY ELECTED PROXY SLATE.pg. 8

E. DEFENDANTS PASS ON FRAUDULENTLY CONCEALED
EDELL DISCLOSURE VIOLATION TO ACQUIROR NEWS CORPORATIONpg. 8

F. SONY IS CONFLICTED AND HAS INFLICTED
MULTIPLE PREDICATE ACTS.pg. 9

G. FRAUDULENT CONCEALMENT USED TO DISCREDIT PLAINTIFF IN 2009
NATIONALLY PUBLISHED NOVEL AND TO FURTHER UNLAWFUL SCHEMEpg. 9

H. DEFENDANTS BAD FAITH & DISLOYAL FINDINGS AND ACTS DAMAGING
SHAREHOLDERS IN FEDERAL 2010 SUMMARY JUDGMENT RULING WERE CAUSED
BY FAILURE OF CHANCERY COURT TO FORCE DEFENDANTS TO FIX 2004
DEFECTIVE DISCLOSUREpg. 10

IV CONCLUSION..pg. 10

I. DEFENDANTS FAIL TO CURE RULE S-K ITEM 401 (F) VIOLATION.pg. 10

$

COMES NOW the Plaintiff acting on his own behalf, hereby moves this Honorable Court to enter Judgment on

the Pleadings in Plaintiffs favor and offers in support the following:

I - INTRODUCTION

1. The Plaintiff moves the Court to find Defendants in contempt under 70(B),

42(B) and/or 60(B)(3). Additionally, Plaintiff requests Court to sanction Defendants $25,000 per day

since Chancery Court January 2004 hearing that corrective disclosure ordered by then Vice Chancellor

Strine was not undertaken by Defendants and such per day sanction to continue until Defendants provide

proof to the Chancery Court that corrective disclosure has been made to the public.
1

2. During January 2004 trial, then Vice Chancellor finds Defendants guilty of Proxy

Disclosure Violations.

i. clearly, Mr. Edell was not validly elected to a Series B slot on October 6th. He just wasn't
He could not have been appointed by the Board to a Series B slot.(70B Declaration,
Exhibit# 9, pg.63)

ii. It's even odder when it's supposed to be retroactive to October 6th, especially when as of
October 6th, as I understand it, Mr. Edell hasn't even agreed to be on the board.( 70B
Declaration, Exhibit# 9, pg.63)

iii. As of October 6th, I have got to say, I really -- I think Mr. Lipp basically said the board had
no idea that it was slotting him in a Series B. I think there is a great deal of record evidence--
it's not a big record, but what record evidence there is suggests that the board wasn't really
thinking about putting him in as a Series B director but thought Sony was simply waiving its
right.( 70B Declaration, Exhibit# 9, pg.63)

iv. It's a very strange -- I mean, I have got to say--I will say this on the record. I'm very
dubious about the validity of this election, and there is a certain formality that has to be
done around electing people. And I mean, is this a proxy? (70B Declaration, Exhibit# 9, pg.63)

v. It's not really, I guess, my job to be Director of Hygiene for eUniverse, but now that very
competent Delaware counsel has been engaged to assist the company, I mean, it's pretty
common knowledge that the board of directors has to approve the actual certificate of

"
In Gallagher v. Long, the Delaware Supreme Court stated, [a] trial judge has broad discretion to impose sanctions for failure
to abide by its orders, so long as the sanctions are just and reasonable.
%
designation amendment that's being proposed. And you know-- and this isn't the first dot
come kind of company that's tried to be a bit innovative. (70B Declaration, Exhibit# 9, pg.63)

v. There is a certain elegant order in things. You have to -- the board has to approve it. And
they have to approve it in the form they are proposing. Then the stockholders have to do it.
(70B Declaration, Exhibit# 9, pg.63)

vi. The Court: I have a disclosure violation here," (70B Declaration, Exhibit# 9, pg.63)

II SUMMARY OF ALLEGATIONS

3. Defendants, VantagePoint, and Orrick are guilty of Fraud upon the Chancery Court thru first

trying to mislead then Vice Chancellor Strine that Proxy disclosure is factual. Next caught in multiple lies

before the court, defendants agree to fix defective disclosure and fail to do so.

4. Vice Chancellor Strine further discovered the certificate of designation amendment was

never approved by Board:

THE COURT: Has the board actually voted upon, Mr. Teklits, a final copy of the
certificate of designation amendment?

MR. TEKLITS: There was some confusion. We had done it with Mr. Lipp, Your Honor.
Sony would not consent to an amendment that didn't require Vantage to exercise over 50
percent. They didn't want Vantage to exercise one share and they would lose their right to
the seats. I'm not sure what was attached to what.

THE COURT: It's not really, I guess, my job to be Director of Hygiene for eUniverse, but
now that very competent Delaware counsel has been engaged to assist the company, I
mean, it's pretty common knowledge that the board of directors has to approve the actual
certificate of designation amendment that's being proposed. And you know-- and this isn't
the first dot com kind of company thats tried to be a bit innovative. (70B Declaration,
Exhibit# 9, pg.63)

5. Omission of Edells bankruptcy in Proxy statements is violation of: Rule S-K Item 401 and

Rule S-K Item 401 (f). (70B Declaration, pg.19-21, paragraph #s 94-103)

6. Defendants aware the January 2004 Proxy was defective, fraudulently concealing

Edells work experience, ignore then Vice Chancellor Strine ruling, dont cure the defects and make more

&
disclosure violations in order to mislead shareholders and shift control of publicly traded eUniverse, Inc.

7. Sony Corp is guilty of aiding & abetting Edell and defendants to violate Rule SK Item 401

and defame Plaintiff and Plaintiffs competing slate of Directors in January 2004 Proxy contest.

8. Defendants & their Counsel are guilty of Fraudulently concealing Edells background

in 2003, 2004, 2005, 2009, 2010, and 2012, resulting in damages to Plaintiff and shareholders, as well as

fraud upon the Chancery Court in Delaware and the Federal Court in Los Angeles Central District because

Defendants induce Shareholder Class Counsel to substitute fabricated facts from fabricated Director Edell

instead of Plaintiffs true facts.

III ARGUMENT

9. Under Court of Chancery Rule 70(b), this Court may find a party in contempt when it

fails to obey a Court order of which it had knowledge.
2

10. The moving party is not required to show that the violation was willful or intentional,

but the intentional or willful nature of a contemnors acts may be considered in determining the

appropriate sanction.
3

i. Scienter of Defendants is supported by (70B Declaration, pg.4-22, paragraph #s 20-103)

11. A party moving for a finding of contempt bears the burden of establishing by clear and

convincing evidence that a court order was violated. If the movant makes that showing, the burden then

shifts to the contemnor to show why it was impossible to comply with the order or why.
4

#
Court of Chancery Rule 70(b) supplies this court with the power and broad latitude to remedy violations of its orders.
$
27 Mother African Union First Colored Methodist Protestant Church v. The Conference of African Union First Colored
Methodist Protestant Church, 1998 WL 892642, at *6 (Dec. 11, 1998).

%
State ex rel. Oberly v. Atlas Sanitation Co. Inc., 1988 WL 88494, at *2 (Del. Ch. Aug. 17, 1988) ([O]nce the party with the
burden of proof has introduced evidence from which a fact finder could conclude that he has established a prima facie case, then
the burden of going forward with the evidence shifts to the alleged contemnor to . . . [show] it was impossible to comply with
the court order.); see Rolex Watch U.S.A., Inc. v. Crowley, 74 F.3d 716, 720 (6th Cir. 1996); F.T.C. v. Affordable Media, 179
F.3d 1228, 1239 (9th Cir. 1999); see also AM. JUR. 2D Injunctions 321.

'
12. Defendants based on precedential Delaware rulings, should be sanctioned and fined.
5

13. January, July 2004, & August 2005 Proxies omit key facts rendering them defective and void.

A. DEFENDANTS WILLFULLY IGNORED WARNINGS AND MULTIPLE NOTICES

14. Warnings by then Vice Chancellor Strine included:

i. "But you can get this stuff fixed out or you put me in a position where I have got some sort
of -- this is low hanging fruit (70B Declaration, Exhibit# 9, pg.63)

ii. I don't have to say these words and you don't have to go fix them or call your client.

iii. the way the board purported to fill it was invalid.(70B Declaration, Exhibit# 9, pg.63)

iv. You may need to do corrective disclosure to begin with, because of this( 70B Declaration,
Exhibit# 9, pg.63)

v. Then I have a disclosure violation here," (70B Declaration, Exhibit# 9, pg.63)

vi. real problem that I may have to take some notice of (70B Declaration, Exhibit# 9, pg.64)

vii. "could I plead with the Delaware lawyers for the company that if we are going to get -- if
you are going to get a consent from Sony, craft it. I mean, it's one thing Mr. Shannon and
Mr. Walsh -- it's one thing if they want to do a Blasius thing. You know, you don't want to
walk in here again with some sort of technical problem," (70B Declaration, Exhibit# 9, pg.64)

viii. You know you probably have to amend your proxy statement, then. (70B Declaration,
Exhibit# 9, pg.64)

ix. make sure you get it done right (70B Declaration, Exhibit# 9, pg.64)

x. the company amends its proxy statement (70B Declaration, Exhibit# 9, pg.64)

xi. You clean that up (70B Declaration, Exhibit# 9, pg.64)

B. COURT PROVIDES RECOMMENDATION THAT DEFENDANTS OPTED TO IGNORE

15. Then Vice Chancellor Strine tips to avoid Blasius and Disclosure violations ignored:

i. "I can't help but observe the other thing, which is if this -- if the company --if the

&
()*+,)* -.//*,0/ 12 3*456 0+748 .44+9:/.+40; .4<2; <2:2 4=2 >>??@A-;#?"$B Because First State and CAMI failed
to comply with paragraphs 3 and 5 of the PI Order, IDB is entitled to an order holding First State and CAMI in contempt and
imposing an appropriate sanction. This Court has broad discretion in formulating a remedy for violations of its orders.6 As part
of its broad remedial powers, the Court may impose a fine, for example, to coerce a non-complying party to cease improper conduct.

>
incumbent board is really fine with a fair fight and doesn't mind the common and the
preferred voting together to elect a majority even now, which I don't know to be the case --
but if it were and you said, "Let's have a showdown. We have a large stockholder. We
have a disagreement. Vantage is in here. Let's have the showdown in the OK Corral. We
want Mr. Edell to be on the board." Well, there is an obvious way to do that. Right? And
if you don't want to have a legal fight, then you know, you figure out who your four are.
You know who the Vantage two are If Edell is one of the fighting four, you make sure the
certificate of designation has been approved. You clean that up. You know you probably
have to amend your proxy statement, then. Then maybe you change your sale and put
Edell on it. And the four that is currently in there, make a decision as to being on the board
or not.. You have a fight about the majority. That is the judge trying to be practical in a
situation where I have seen both sides, "I'm saying if it's fair fight time and you are
ultimately going to have a majority up, that is a real clean way to do it. I don't know how
Blasius comes into that at all. (70B Declaration, Exhibit# 9, pg.64)

ii. "I'm saying if it's fair fight time and you are ultimately going to have a majority up,
that is a real clean way to do it. I don't know how Blasius comes into that at all.

iii. "So to the extent that Sony -- for example, if Mr. Edell were to resign today, to say,
"I am not longer on the board," one of his other colleagues would resign -- and you do it in
however elegant fashion to make sure you get it done right. Mr. Edell is immediately
reelected to the vacancy a common vacancy, and the company amends its proxy statement
and puts him as one of the four. (70B Declaration, Exhibit# 9, pg.64)

C. BOTH DELAWARE COUNSEL AND DEFENDANTS BROKE PROMISE TO COURT

16. Delaware Counsel Teklits and Defendants plus Sony break promise to Court:

MR. TEKLITS: We will make sure this is right, Your Honor. I think everybody wants this
amendment approved. (70B Declaration, Exhibit# 9, pg.63)

17. Defendants fail to make Court ordered corrective disclosure of:

i. False December 30, 2003 Proxy: (70B Declaration, pg.19-21, paragraph #s 94-103)

ii. False October 31, 2003 Press release (70B Declaration, Exhibit #4, pg. 38-39)

iii. False Defamatory December 11, 2003 8k: (70B Declaration, Exhibit #6, pg. 44)

18. Defendants opt instead to initiate multiple new Edell disclosure violations thumbing nose

at Chancery Court and promise made to then Vice Chancellor Strine:

i. Thru ISS Report Defamatory attack on Petitioner: (70B Declaration, pg.22, paragraph #s
104-108)

C
ii. Thru Los Angeles Times Defamatory attack on Petitioner: (70B Declaration, pg. 23,
paragraph # 109)

iii. Thru false and defective July 2004 Proxy (70B Declaration, pg. 24, paragraph #s 110-113 &
Exhibit #7, pg.48-49)

iv. False and defamatory January 26, 2004 Proxy Disclosure (70B Declaration, Exhibit #6,
pages 45-46)

iv. Misleading investment bankers in 2005 Bidding Contest by failing to correct
previous Proxy statements and disclosures, ensuring Plaintiff status would be Does
not have significant credibility so that Plaintiff would not have equitable
opportunity to participate with $13.50 counter bid announced in September 2005
before Defendants consummated $12.00 per share sale to News Corporation.
(70B Declaration, Exhibit #8, page 51)

D. DEFENDANTS IGNORED FIDUCIARY DUTY TO HONOR OCTOBER 17, 2003 DULY
ELECTED PROXY SLATE

19. After January 2004 Chancery Court hearing, it was unlawful for Defendants to fraudulently

conceal and to not honor Plaintiffs October 17, 2003 approved Director slate nominated at validly called

Board Meeting. (70B Declaration, pg.13, paragraph #48)

20. Voided Edell Director, voids Edell vote during Plaintiff and eUniverses October 16, 2003

Vote to Nominate Director slate proposed by Plaintiff before Plaintiff resigned as Chairman and CEO.

This effects 3-1-1 win by Plaintiff vs. previous No pass Defendants purport existed from 3-1-2 vote

before Chancery Court ruled Edell was never validly elected as Director in October 2003.

E. DEFENDANTS PASS ON FRAUDULENTLY CONCEALED EDELL DISCLOSURE
VIOLATION TO ACQUIROR NEWS CORPORATION

21. Defendants pass on fraudulently concealed unlawful acts including contempt of Court to

acquiror News Corporation as clearly exhibited in email disclosed by Class Counsel in 2011 Federal

security fraud class action. Such email on July 17, 2005 from Corporate counsel Lang emailed at 4:13AM

to Defendant Director Sheehan, Subject: 'Purchase Agreement, stating,

"On the issues, let's close on the remaining ones in a fair and reasonable way-- so we can build out
relationship. And

D
3. We feel like we have given indemnification on the shares and the purchase agreement itself to
do so on any issue we have had no involvement in whatsoever (i.e. Greenspan) - that seems like
too much. Andy, I know we are very eager to get this done. Let do it so both sides can feel good
and move forward on our longer-term relationship."

F. SONY IS CONFLICTED AND HAS INFLICTED MULTIPLE PREDICATE ACTS:

22. Sony was an insider shareholder in eUniverse (Intermix, and Myspace by ownership level prior

to Sale of VantagePoint VC firm in July 2003;October30, 2003;April 2004 (SEC disclosure) and had a

Director and Series B Nominee Edell in January 2004 Proxy.

23. Sony Corps general counsel Seligman is married to Joel Klein who began working for

News Corp in 2009. Sony has fraudulently concealed the defective Edell background & both violations of

Rule SK Item 401 in January and July 2004 Proxy and Annual meetings respectively. Sony and/or

Seligman are aiding and abetting News Corp for the benefit of Joel Klein who is an executive and Director

earning $1m+ per year from News Corp.

NATIONALLY PUBLISHED NOVEL AND TO FURTHER UNLAWFUL SCHEME

24. Defendants leverage their relationship with acquiror to create defamatory and fabricated lies

thru acquiror News Corporation employee Angwins published in late 2009 book, Stealing MySpace

which fraudulently conceals the true background of former Director and Chairman Jeff Edell and his

scheme with Brewer to forward a fabricated false resume, misleading CEO to get Edell onto the Board.

This creates further ongoing defamatory damages to Plaintiff and Shareholders because Class Counsel

accepts and uses false Edell facts in book instead of Plaintiffs facts offered to Class Counsel in 2012

Federal Class Action in Los Angeles Central District. Edells false facts allow the fraudulent conveyance

Of approximately 50% of Myspace.com, the crown jewel of eUniverse, Inc. in 2004. Further, Edells false

facts which become Acquiror News Corporation false facts, obstruct Plaintiffs true facts from entering

the record for the benefit of the Federal Court learning the true damages and claims rightfully owed to

shareholders. Plaintiff and shareholders will continue to suffer until the defective disclosure is cured by
"?


25. Defendants use ongoing Edell defective disclosure scheme to defame Plaintiff and impugn

reputation in book Falsely claiming, violent mood swings were part of Greenspans character.
(70B Declaration, pg. 26, paragraphs 127)

SHAREHOLDERS IN FEDERAL 2010 SUMMARY JUDGMENT RULING WERE CAUSED BY
FAILURE OF CHANCERY COURT TO FORCE DEFENDANTS TO FIX 2004 DEFECTIVE
DISCLOSURE

26. Chancery Courts failure to force Defendants to honor their promise to fix the defective

Disclosure in 2003 is directly responsible for allowing Defendants to steal a minimum of $670 million in

damages (Federal Judge King 2010 approved damage report) and upwards of $32 Billion in damages (Rule

701 Damage Report not used by Class Counsel because of ongoing Edell fraud) from thousands of

shareholders in 2005.

(Exhibit #1, page 12, June 2010 Federal Central District, Judge King, Summary Judgment Ruling)

IV- CONCLUSION

I. DEFENDANTS FAIL TO CURE RULE S-K ITEM 401 (F) VIOLATION

27. Rule S-K Item 401 (f) states the requirement for information disclosed in Intermixs

January 2004 & July 2004 Proxy filings for Directors Involvement in certain legal proceedings stating,

Describe any of the following events that occurred during the past ten years and that are
material an evaluation of the ability or integrity of any director, person nominated to become a
director or executive officer of the registrant:
A petition under the Federal bankruptcy laws or any state insolvency law was filed by or
against, or a receiver, fiscal agent or similar officer was appointed by a court for the business or
property of such person, or any partnership in which he was a general partner at or within two
years before the time of such filing, or any corporation or business association of which he was
an executive officer at or within two years before the time of such filing;

28. To make Proxy not defective under 14a or Delaware security laws, issuer would have to

disclose that,

""
Our former Chairman who resigned effective December 2003 was replaced by Jeffrey S. Edell.
Edell was most recently President and CEO of Showorks Entertainment Group, Inc. from January
2001 thru April 2002. Sometime in 2002, Showorks Entertainment Group, Inc. underwent a name
change to MTS, Inc. Sometime in September of 2002 Edell learned that MTS, Inc. had filed for
bankruptcy under Chapter 7. Edell was not there at the time of filing. Edell has informed the
company Edell was never personally named or contacted as part of the bankruptcy under Chapter 7
or subsequent proceedings. Edell was from 1995 thru December 31, 2000,President and CEO of
Soundelux Entertainment Group., Inc.

29. Defendants also fail to fix disclosure related to fraudulent Amended October 31, 2003

Note. Defendants cannot lawfully or validly backdate the October 31, 2003 $2.5 million dollar

note by simply creating a new Note disclosed in December 2003 with a date of October 31, 2003.
(70B Declaration, pg.19, paragraph #91)

30. Plaintiff requests Court to sanction Defendants $25,000 per day since Chancery Court

January 2004 hearing that corrective disclosure ordered by then Vice Chancellor Strine was not

undertaken by Defendants and such per day sanction to continue until Defendants provide proof to the

Chancery Court that corrective disclosure has been made to the public.

31. The interests of justice are properly served by the grant of this Motion.

Respectfully submitted


"#

EXHIBIT #1

June 2010 Federal Central District, Judge King, Summary Judgment Ruling

DECLARATION IN SUPPORT OF MOTION 70(b) 42(b) CONTEMPT

"

BRAD D. GREENSPAN,

Plaintiff,

v.

BRETT BREWER et al.

Defendants.
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C.A. No. 106-VCS



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1. I submit this declaration in order to provide the Court and the parties to the above captioned

litigation with information regarding this matter as.

2. I am over 21 years of age and I have personal knowledge of the facts set forth herein and, if called

as a witness, could and would testify competently thereto.

3. I was founder of Issuer eUniverse, Inc. (eUniverse) which later changed its named to Intermix,

Inc. and was the largest common stock holder from Issuers creation and public listing in April 1999, thru

the September 30, 2005 merger consummation at issue in this case.

4. On April 14, 1999, eUniverse began publicly trading under the symbol EUNI.

The initial Directors and executive officers of eUniverse were Brad D. Greenspan, age 26, Chairman

of the Board, Leland W. Silvas, age 44, President Chief Executive Officer and Director, Charles

Beilman, Age 39, Chief Operating Officer and Director, and William R. Wagner, age 52, Vice

President, Chief Financial Officer.

5. According to the SEC filing in 1999, Chairman and Director BG owned 57.2%.of the

company and was a control shareholder of the public corporation as it began public trading.

6. eUniverse closed its first day of trading at $12.50 per share on April 14. 1999, at this

time, eUniverse had less then 1 million unique users coming to its network of owned websites. None

of the defendants were officers or senior executives of eUniverse at the time of the public listing or

by the end of 1999.

7. In December of 1999, eUniverse launched its first social network platform,

LivePlace.com, with proprietary technology acquired thru the Big Network Acquisition.

Unfortunately, a year later, eUniverse exited the LivePlace business when it determined the

technology at the time was not sufficient to prevent websites from slowing down for users after

installing the LivePlace technology. However, LivePlaces launch by eUniverse cements the fact

that eUniverse was a pioneer in the social network space. LivePlace was described as:

a proprietary technology that turns a website into a public place where users can meet and interact

through chat, instant messaging, and co-browsing.


$
8. On July 31, 2001, eUniverse announces that for its March 31, 2001 quarter, it has

generated its first net profit and third consecutive ebitda positive quarter. Becoming profitable was

critical for eUniverse because as of its 7/31/2001 SEC filing the company only had $218,000 in cash

vs. $2.3 million in cash as of the year before.

9. By October 2001, eUniverse had 31.3 million unique U.S. users and had the 8th

largest online audience in United States for the period. By comparison, Ebay was ranked #9 with

31.29 million users and Google was ranked #14 with 26.9 million users.

10. On December 17, 2001, the NY Times features a story on eUniverse titled,

For Some Dot-Coms there Are Real Profits, stating

Meet Brad D. Greenspan and at first it seems like hes a visitor from another era-- the Internet bubble of 1999.
He's a 28-year-old chief executive of a public Internet company, eUniverse, with tens of millions of users and
big backers like Sony."

11. eUniverse has $33.19 million revenue for 12 months ended March 2002 & $6.64 million EBITDA.

12. eUniverse by the end of 2002 had over 250 employees working in Los Angeles amongst this

group, the company had developed highly skilled technology and internet Strategy executives. eUniverse

also developed significant technology resources and assets gathered over its many years of operations.

13. Mr. Greenspan resigned as CEO on October 30, 2003 and on November 21, 2003, Morgan Stanley

issued its annual internet report ranking eUniverse as the #1 fastest growing Portal based on data from the prior

90 days, ahead of AOL and Yahoo and Excite Network which AskJeeves acquired in 2003.

14. The eUniverse board during week ending October 31, 2003 reneged on a common stock financing

arranged by ThinkEquity and Greenspan which the same board had approved on October 16, 2003.

15. Instead the Board manipulated by defendants, changed course and determined to sell effective

control of eUniverse, Inc. to San Francisco based private equity fund VantagePoint Ventures LLC, issuing

below market price preferred stock and simultaneously breaching the 19.9% shareholder vote threshold

which the company had also specifically promised it would not do in any financing weeks earlier

to the Nasdaq listing panel.

16. VantagePoint had been told the week before by the Chairman and CEO of eUniverse that the


%
company had determined not to proceed with their highly dilutive $8 million preferred stock proposal

which offered to buy shares at below $1.35 and effect a change of control of the $80 million market

capitalized eUniverse without a shareholder vote, which violated the Nasdaq 19.9% threshold rule.

17. VantagePoint was informed that their proposed financing was economically inferior and that

because Vantagepoint was still negotiating both terms and documentation and had not finished their

diligence, the company had opted to close a $1.85 common stock financing from existing and new

institutional investors. However, Chairman and CEO Greenspan invited VantagePoints David Carlick

and their counsel, Orricks Richard Harroch to participate on the same terms as the institutional investors

which was a significant discount already to the then approximate $2.25 - $2.40 per share public trading

price range of eUniverse.

18. VantagePoint determined to not only reject the offer from eUniverses chairman and CEO to

invest at $1.85, but embarked on and facilitated a brazen scheme to manipulate and defraud eUniverses

Board and shareholders that put defendants Carlick, Sheehan, and Harroch in control of eUniverses board

by October 31, 2003 and allowed defendants to recognize an almost sure windfall on their below market

Series C preferred stock financing.

19. Not satisfied with their existing economic gains, defendants then Embarked between late 2003

thru September 30, 2005 on an ever growing series of schemes and misdeeds to loot the public company

and effect transactions that benefitted themselves and related parties at the expense of the common stock

shareholders who had held the majority of eUniverse.

DEFENDANTS SCHEME TO ENTRENCH THEMSELVES AND SHIFT CONTROL

20. Mr. Greenspan was on the verge of terminating the general counsel and Chris Lipp, and the

President of eUniverse, Inc. Brett Brewer, for their roles or poor performance in the restatement the

company had suffered between October 2002 and May 2003, and ultimately a new controller and CFO

were hired and eUniverse refiled via its 10k in August of 2003. Defendants General Counsel Chris Lipp was

told the company would transition to a new general counsel after closing the next round of financing and

President Brett Brewer was informed in the summer of 2003 he would be demoted.


&
21. Mr. Greenspan instead was faced with a scheme by Brewer to take control of the Board and shift control of
company over to VantagePoint and Defendants. The scheme is admitted in a letter from Edell to certain of the
defendants on the night of October 27, 2003, 3 days before Chairman, CEO, founder Brad Greenspan resigns:
Brett is always on the side of Brad's removal when not around Brad, but has no backbone when in
front of him. He is looking for us to do the dirty work but will not stand tall himself.

i. The first fraud was Brewer recommending and endorsing a friend of his Jeffrey Edell to

come onto the Board of Directors in mid-October 2003. Edell, Brewer, and the Chief Financial Officer

Flahie who had worked for Edell at a previous company all misled Mr. Greenspan and the other Directors

as to the qualifications of Mr. Edell. Brewer distributed a 3 page resume/background prior to Mr.

Greenspan determining to support Edell as a new board member, but such 3 pages did not disclose the

truth that Jeffrey Edell had just bankrupted the last company he worked for. Nor did Edells public filings

or Proxy background or press release made by Edell disclose this pertinent and critical information.

Instead, Edell, Brewer, and Flahie knowingly omitted this information in order to get Edell onto the Board

where Edell quickly damaged the franchise value of eUniverse, Inc. by several disloyal acts and breaches

of fiduciary duty. (EXHIBIT #1, pg. 29. & EXHIBIT #2, pg. 31)

ii. Defendants key strategy that enabled them to take control of the board of eUniverse was by
fabricating or aiding and abetting the fabrication of information to mislead independent directors and CEO about
background of Jeffrey Edell. Instead, defendants artificially branded Edell with false credentials and set him loose to
engage recklessly with the corporate assets and the important financing the CEO had closed with common
stockholders clearly on better terms the the lower priced preferred stock peddled by venture capital firm. Defendants
cover up a recent bankruptcy under his stewardship. Brewer, Flahie, Edell, Lipp, Moreau, Carlick, Harroch, and
Sheehan do not correct the defective proxy that they all approve multiple times between November 2003 and
September 2005. The defect is caused by the omission of Edells recent bankruptcy a violation Item 401 Rule-SK
related to Director & Officer work experience background.

iii. Defendants recognized the already locked in profits and upside that existed
for them if they could force eUniverse to accept VantagePoints inferior more costly financing.

iv. Defendants use the fabricated Edell resume in a series of Shareholder letters and press releases in an

attempt to cover the unexpected news that the CEO has been forced to resign as part of defendants scheme to

cause eUniverse shareholders to be diluted and pay for more expensive financing so that the Directors

'
led by Brewer could keep their jobs and receive significant upside from the incoming directors from

VantagePoint and Orricks Harrosh. (Exhibit #4,pg.38-39) is November 2003 press release omitting Edells CEO role

in the MTS 2002 Chapter 7 bankruptcy and also another turnaround company he ran in 2003 more recently that

also failed according to Edells accurate D&O submitted to the Nominating Committee. However, Edell

continues his sleight of hand and now promotes only the Soundelux CEO role without disclosing end of tenure

in 2000 when it was sold and creates Impression he was most recently working as CEO of eLabor, Inc., stating

Additionally, Edell served as Founder, Director and CEO of eLabor, Inc., which was sold to ADP in February

of 2003. In fact, Edell was only a director of eLabor since at least 1995.

HIDING ONE BANKRUPTCY AND ONE FAILED TURNAROUND IN PUBLIC DISCLOSURES

22. Edells two resignations on his bio that were really his last two jobs instead of submitting an accurate bio,

defendants stretched the job of Edell that was actually 3 jobs prior, and increased this 3rd job by another 2

years, to the year 2002 (from 2000). Edell both omits to accomplish his end goal of making detection and

disclosure of his true track record. (EXHIBIT #1, pg. 29, EXHIBIT #2, pg. 31, EXHIBIT #3 pg. 33-36, EXHIBIT #5,
pg.41-42)

FLAHIE THE NEW CFO

23. Brewer, also a Director, took advantage of his position leading the interviews and recruitment of the

companys new CFO during the summer of 2003 to recommend final candidate, Tom Flahie,

i. Flahie had previously worked as CFO at eLabor, America, Inc. under Brewers close friend and

fellow YPO member Jeffrey Edell s brother. Edell was Director of eLabor where Edells brother served as

CEO Based on Brewers recommendation, the CEO met with the candidate, and in August 2003, Tom Flahie

was approved and offered a position as the new Chief Financial Officer of eUniverse.

EDELL THE NEW DIRECTOR CANDIDATE

24. After current board member Thomas Gewecke, a senior business development executive of Sony

Music, informed the board in the summer of 2003 of his desire not to serve as director for another annual term,

Chairman/CEO Brad Greenspan agrees to review resume of candidate Jeffrey Edell.

25. In or around August 2003, eUniverse had need to recruit a new independent Board Member who was

also qualified to sit on the audit committee. Brewer and Flahie initiated a scheme to promote their associate

(

Jeffrey Edell as a candidate for the board slot so that they could be assured job security and benefit in the clear

upside that existed to be a senior officer or top employee of Issuer as of October 2003.

i. Based on information and belief, Brewer had been in a Southern California Chapter of the Young

Presidents Organization (YPO) with Edell and they would meet regularly to discuss each others business

challenges and prospects for three years prior to Edell joining the eUniverse board.

ii. New CFO Flahie had pre existing business relationship with Edell, working for a company

where Jeff Edell served as Director and Edells brother served as CEO managing Flahie immediately prior to

coming to work for eUniverse in August 2003.

ii. Brewer and Flahie were challenged to get the Chairman/CEO to nominate Edell to the board

based on Edells actual work experience which would call into question his fitness to serve on the board of a

publicly traded company.

iii. The plan to nominate Edell to the eUniverse board based on his real work experience became

more challenging when the most recently nominated Director, Lawrence Moreau, who had joined eUniverses

board in May of 2003, admitted to being less then candid About his track record after a Los Angeles Business

Journal article in August of 2003 brought such facts to the attention of the other eUniverse directors.

iv. Based on Information and belief, Brewer, Flahie, and Edell realized that to get the support of the

Chairman/CEO to back nomination of Edell to the Board, they would have to inflate and falsify Edells track

record to make it appear flawless.

26. Defendants thru this fraudulent scheme and omissions of Edells true work experience, created a fake

Director candidate misleading shareholders and Petitioner with what appeared to be a perfect track record with

no negative recent work experience disclosed.

i. Defendants determine to accomplish the deed by omitting Edells two most recent work

experiences which were both failures and falsifying the time frame he worked as CEO of an, earlier successful

venture, Soundelux.

ii. Defendants accomplished this thru falsifying the Soundelux timeframe Edell worked as CEO by

two years while omitting the actual prior two jobs, both negative tenures where Edell had failed to improve the

)

Companys where he was principal executive officer.

iii. Defendants fraudulent concealment of Edells true work experience allowed Edell to apply to be

on eUniverse Board in 2003 and become supported by fellow Board Member, founder, and largest shareholder,

CEO Brad Greenspan.

27. Defendants fraudulently conceal the true background of former Director and Chairman Jeff Edell and

forward a fabricated false resume, misleading CEO to get Edell onto the Board.

i. Edell benefitted from fraud of fabricating his work experience by gaining access to the public

issuers board.

28. Edell had not come off a successful business endeavor as his fabricated resume stated but really

had failed in his last two ventures including one of two failures resulting in a Chapter 7 Bankruptcy filing.

29. Brewer moved scheme forward with aid of new CFO Flahie whose disloyalty in not reporting to the

CEO or public that Edell resume was fabricated demonstrates Scienter intent to defraud & mislead shareholders.

30. Jeff Edells omission to trick CEO of Issuer via omission of his immediate two prior employment jobs. A
Directors last two jobs and such director candidates performance or the companys performance being the most
critical bit of information for Issuer or CEO to parse or review to do his duty.
31. Edell scheme results in eUniverse shareholders being diluted via more expensive VantagePoint financing.
32. On August 26, 2003 at 5:39PM Brewer forwards via email a fabricated three page (EXHIBIT #1. Pg. 29)

resume for Jeffrey S. Edell to the CEO with CFO Flahie ccd and states,

looks strong again jeff will be here tomorrow to have lunch with tom and i. brad, Ill set
something up for you later this week or next depending on your schedule.

i. Brewer lies, misleading the CEO further, asserting Edells resume looks strong, even as

Brewer and Flahie are aware that Edells prior two actual jobs are being intentionally omitted from the

document sent to Greenspan. Edell, Brewer, and Flahie have destroyed the actual true work experience

information prior to sending the fabricated Edell resume, this is a violation of 18 U.S.C. 1512(c)(1), which

prohibits the destruction of records.

ii. Defendants omitted a portion of the true documents and information in the Resume sent to

Petitioner, with the intent to obstruct justice in violation of 18 U.S.C. 1512(c)(1) and also since the false


*
document was sent via email, Edell, Brewer, Flahie, and Lipp violate 18 U.S.C. 1341 (relating to mail fraud),

33. On August 27, 2003, the CEO is deceived by the fabricated resume of Edell and responds to Brewer

and Flahie after being misled and reviewing the fabricated resume of Edell, Great resume!. Since the CEO

is misled via email, this is a violation of 18 U.S.C. 1341 (relating to mail fraud).

34. On the first page of the fabricated Edell resume Brewer forwards, in the section labeled Professional

Experience. Edell lists first: Soundelux Entertainment Group, Inc. Hollywood, CA, from 1995-2002 and

the next line purports that during this period, Edell was President/CEO/Director. Edell & Defendants

violate 18 U.S.C. 1519 (relating to destruction, alteration, or falsification of records in Federal investigation

and bankruptcy) and defendants are destroying Edells true work experience and put in its place the fake

Fabricated work experience purporting that 2000-2002 Edell worked still for Soundelux.

i. Edells resume forwarded by Brewer, falsely creates the appearance and assumption that

Soundelux Entertainment Group has been the sole Professional Experience of Edells as a full time

Executive since 2002.

ii. Edells fabricated Professional Experience section creates the appearance that

Edell, Successfully initiated, negotiated and closed sale of the Hollywood postproduction

division of SEG (Soundelux) to the Liberty Media Group and Edell lists he was President/CEO/Director of

Soundelux Entertainment Group from 1995-2002, then the reader of the fabricated document would assume

Edell departed as CEO after Soundelux was sold in 2002. Brewer, Edell, Orrick, VantagePoint, Harroch,

Carlick, Rosenblatt, Sheehan, DeWolfe, Latham, and Sony Corp violate 18 U.S.C. 1519 because they have

altered records of a Board candidate during the SEC restatement inquiry that ended October 2004.

iii. Defendants specifically violated Section 1512 and U.S.C. 1519 by destroying and altering

Edells true background and work experience which should have truthfully disclosed:

i) ShoWorks, where Edell was CEO starting April 2001 thru 2002 (name changed
immediately prior to bankruptcy in September 2002)
and
ii) Enterprise Entertainment Group LLP at which Edell was President/CEO/Director for less
then a year before he resigned from company citing his resignation came after working on
severe turnaround situation in May of 2003. (EXHIBIT #3,. Pg. 33-36)

35. Director Lawrence Moreau on September 30, 2003 at 10:15AM emails Brewer, Mosher, and Lipp,

"+

Subject: RE: Potential EUNI Board Member, stating ,

Also we need to have both he and Jeff Edell complete the companys D&O questionnaire
so we can review it for any problems prior to the Board vote.
The false and defective October 3, 2003 Nominating Committee Recommendation

36. Larry Moreau, Director and Nominating Committee member tasked with review of Edell, Sends email

stating, Jeff Edell Completed D&O Questionnaire to Director Brewer, Director Greenspan, Director

Mosher, General Counsel Lipp, and Sonys sole series B Director Gewecke and states,

i. Moreau and Defendants lie in his email about what is contained in the D&O questionnaire,

failing to disclose Edells disclosed recent bankruptcy and declaring:

Based on my review, there are no negatives for the Nominating Committee to report to
the Board.

ii. This false statement is distributed thru email to Petitioner and other Directors misleading them

and causing them to be unaware that Edells Proxy disclosure is false. This is a violation of 18 U.S.C. 1341

(relating to mail fraud). Moreau, heading the nominating committee, concealed his knowledge that Edell does

have negatives that should be brought to the Boards attention like fact that Edell has a mandatory disclosable

SEC event under Rule S-K Item 401 (f), requiring specific disclosure on Edells recent federal bankruptcy.

iii. Furthermore the destruction or altering of the true information by omission which Edell, Brewer,

and Moreau are guilty of in violation of of 18 U.S.C. 1512(c)(1) and violation of 18 U.S.C. 1519.

iv. Moreau and Defendants further misleads the board by stating:

the Nominating Committees previous legal and financial background checks did not disclose
any negatives.

Based on the results of the Nominating Committees due diligence procedures including meeting
and various discussions with Jeff, I think he is an outstanding candidate and hereby recommend
that the Board approval his appointment.

37. An attached D&O questionnaire is distributed in October 3, 2003 email with false claims used to

coverup underlying facts, in violation of of 18 U.S.C. 1341 (relating to mail fraud).

38. In late 2011, Petitioner discovered a D&O questionnaire Edell submitted to eUniverses Nominating

Committee headed by Director Larry Moreau. Edells true work experiences consists of:


""
i. On the first page, in the first paragraph, there is information to read for the

questionnaire submission. The third line from the bottom states,

Accordingly, great care should be exercised in completing this questionnaire. You should be aware that
if the Proxy Statement contains any false or misleading statements, the Company and those in control of
the Company could be subject to liability under federal securities laws.

ii. The factual D&O Questionnaire of Edell from Exhibit XX reveals:

a. On the second page of the document titled,

EUNIVERSE, INC. QUESTIONNAIRE FOR DIRECTORS AND OFFICERS,

the first section is labeled: I. Employment, Occupation, and Business Experience.

And it lists information submitted by Jeffrey S. Edell, 11/10/57.

b. Under section , document states,

Please Indicate all positions and offices which you hold or have held during the past five(5)years

c. Edells Questionnaire For Directors And Officers lists 3 submissions under Positions/Office:

President/CEO & Director Showorks Entertainment Group, Inc.

from January 2001- April 2002 and notes he resigned April 2002.

President/CEO/Director, Soundelux Entertainment Grp., Inc.

from November 1995- 12/31/2000.

President/CEO/Director, Enterprise Entertainment Grp, LLC.

From November 2002-May2003

and the next line in parenthesis immediately below states,

resigned May 2003, after working on severe turnaround situation.

d. On page 14 of Edells Questionnaire For Directors And Officers, Edell checks YES for

section (a) when asked if any of the following events has occurred since April 1, 1998, please

provide a brief description of the event.

e. Section (a) states:

A petition under the Federal bankruptcy laws or any states insolvency law was filed by or against you,
or any corporation or business association of which you were an executive officer at or within two years
before the time of such filing.


"#
f. Edell discloses under Description::

Showorks Entertainment Group, Inc. underwent a name change in 2002 to MTS, Inc. I resigned as
President and CEO of this company in April of 2002. Subsequent to my leaving, sometime in September
of 2002, I learned that they had filed bankruptcy under Chapter 7.

39. Therefore, Edells scheme to defraud the eUniverse Directors is effected by changing the time frame and

term of his Soundelux employment from the factual end of 12/31/2000, to the fabricated and false claim that

Edells end of his work tenure being thru 2002. This allows Edell to effectively cover up or disguise his true

historical work performance and mislead Petitioner & shareholders that need accurate and true professional

experience to determine if someone is qualified to be a Director of a public company.

i. As part of scheme, Edell omits his January 2001-April 2002 true employment where he was

President/CEO & Director Showorks Entertainment Group, Inc. that he had disclosed in a prior D&O

Questionaire.

ii. Edell also omits his November 2002-May 2003 professional experience as

President/CEO/Director, Enterprise Entertainment Grp, LLC,

resigning after just five months, blaming a severe turnaround. (EXHIBIT #3, pg. 33-36)

Predicate Acts related to 2003 press release announcing Edell

40. On October 9, 2003, Brewer furthers the fraudulent concealment scheme by forwarding eUniverses PR

firm the fabricated resume which incorrectly shows Edell worked at Soundelux Entertainment until 2002 and

omits both the Showorks/MTS bankruptcy and working most recently at troubled Enterprise Entertainment Grp,

LLC. Brewer also misleads PR firm by sending fabricated work experience and bankruptcy omission from their

PR firm.Laurie Eisner,

laurie-we need a very basic- Thomas Gewecke has resigned from the euniverse board. And
jeff edell (bio attached) has been appointed-

41. October 10, 2003 at 2:05PM, PR firm emails Brewer and Greenspan draft of Edell press release stating,

Prior to his Board appointment at eUniverse, Edell served as President and CEO of Soundelux
Entertainment Group, Inc., a provider of entertainment content technologies, with revenues
exceeding $110 million

"$
42. October 11, 2003 at 2:43PM, Edell emails Greenspan requesting puffery to be added to the draft press release
about his background, stating,

Brad, Comments on Release- It says nothing of the record sale to Liberty Media and John
Malone for apprx. $100m, the sale of the software company elabor, Inc. that I served as CEO
and founder for 10 years, and sold to ADP, the sitting on the Public board of IVC industries and
sale of it to Inverness Medical. Also the winner of Entertainment Entrepreneur of the YEAR
by NASDAQ and Ernst and Young in 2000, and member of both TV and Film
Academies..member of Young Presidents Organization.. Get some bang out of it!! That should
all be somewhere in it..please have them take another shot
43. October 11, 2003 at 4:43PM Edell emails Greenspan and Brewer:
Subject: RE: Press Release: Jeffrey Edell and states,

Your PR dept can do a better job extracting what I have on my bio related to the subjects that are
pertinent to eUNI,,, but please do not ease this until we finalize our deal

44. October 11, 2003, at 6:15PM Greenspan emails Lipp and Brewer forwarding above Edell

Email and states, call me to discuss So we can finalize.

45. The October 11, 2003 draft PR submission Defendants Edell and Brewer are hiding and have destroyed

the evidence of Edells True work experience in the press release draft being distributed as well as the final

release in violation of of 18 U.S.C. 1512(c)(1) and violation of 18 U.S.C. 1519.

46. Also Defendants violate Section 1341 by using email to send false fact draft press release to PR firm
47. Brewer enlists Highland Partners and Jim Quandt to provide background checks for the eUniverse nominating
committee for Director candidate Edell and Ward. As evidence of this scheme, Brewer emails Mosher on October 16,
at 3:56PM and states,
dan- have you received the background check from highland partners for bradley ward?

48. BOARD MEETING- October 17, 2003 there is Board meeting where Brad Greenspan attempt to elect the

annual board slate and his slate leaves off Lawrence Moreau and Dan Mosher. General counsel Chris Lipp

deems Greenspan's slate did not pass even though 3 Directors approved the new slate, 1 disapproved, and 2

Directors Abstained. Lipps Board minutes indicate, "The motion failed with a vote of 3 for, 1 against and 2

abstentions, constituting less then the requisite majority of directors present."

49. On October 30, 2003 at 4:57PM, Flahies emails Lipp, Subject: Bio for New Directors For proxy Draft


"%
and provides a bio for Edell which states

Jeffrey S. Edell has served as a Director since October 14, 2003. Mr. Edell was employed as
President and Chief Executive Officer and a director of Showorks Entertainment Group, Inc.
(previously known as Soundelux Entertainment Group, Inc.) a provider or entertainment content and
technologies, from 1995 until 2002.

50. On Friday, October 31, 2003 Defendants cause the company to put out a press release with false information:

"eUniverse announces eUniverse Announce CEO Departure and Board of Director Changes Brad Greenspan
Steps Down as Chief Executive Officer Jeffrey Edell eLabor Founder and Former CEO/President of
Soundelux Entertainment Group, and Bradley Ward, CEO of The Game Tree, Join eUniverse Board.
51. Significant puffery created by Edell and put into press release but omits mention of his true work experience
such as his recent fraudulently concealed MTS Bankruptcy and other employment information provided in the original
D&O Questionnaire Edell provided to eUniverse. Defendants also violate Section 1343 as the defendants cause the
false information to be distributed via news wire to the public. (EXHIBIT #4, pg. 38-39)
52. Sony in fact specifically made it known that it would not allow VantagePoint to take over or transfer the
rights to vote Series B until VantagePoint bought all the stock held by Sony Corp of public issuer.
53. November 7, 2003 at 3:59M- Intermix CFO Tom Flahie sends a draft Proxy to Chris Lipp, Subject: Proxy
which states,
54. On November 17, 2003, Chris Lipp sends Consents to Sony Corp to sign.
LIPP KNEW SONY DID NOT SIGN THE CONSENT ON NOVEMBER 17
th

55. Sonys Mark Eisenberg only signs the consent to change the Certificate of Designation of the Series B
provided by Lipp.
56. Sonys Eisenberg executes the consent on November 18, 2003 according to his testimony read in court.
i

57. On November 18, 2003 at 12:50PM, Lipp emails Vantagepoints Carlick and Sheehan a new draft Series C
consent that appears to have some backdated element of optimizing the prior Notes to the detriment of the
shareholders.
58. Orricks Harroch active in the planning of the Proxy and Edell frauds emails Lipp stating,
I dont understand the background of this, and it will take some time to review. Chris
are you working on the proxy statement language to implement the things required by
the Option Agreement?

59. On November 18, 2003, at 4:09PM, Lipp asks PR company run by Jonathan Heit to put out Annual Meeting
Release. The release falsely states Issuers

annual meeting of stockholders has been rescheduled for January 21, 2004 so that certain
aspects of the Companys recently announced financing transaction with VantagePoint Venture

"&
Partners, among other items, may be submitted to the Companys stockholders for approval. A
new record date for the meeting of December 1, 2003 has also been set.

60. November 20, 2003- Flahie emails Board Members including Edell, Subject 'Director Bios for Proxy' and
states,
"In preparation for filing of the proxy, I have updated the director bio information from the
Form 10-K. David, Andy, Jeff and Bradley, I took a first pass to put a bio together for you.
Since this information is personal, please make edits to your bio and return the word doc to me.
I will make your edits in the actual proxy. Thanks, Tom"
ii

DEFENDANTS FALSIFY PROXY HOPING SONY WILL SIGN OFF ON NOMINATING EDELL AS
SERIES B DIRECTOR
61. November 21, 2003- Intermix CFO Tom Flahie sends an email, Subject: 'Proxy', stating,
i. "I completed the first draft of the 2003 proxy."
ii. Given the major changes to the Board,
iii. the proxy needs a close look this year,
iv. We intend to file with the SEC on Wednesday.",

62. Flahie attaches a draft of proxy which falsely states, "550 DMV notified the Company that Lawrence Moreau
and Jeffrey Edell have been nominated by the Series B preferred stockholders.
iii

63. Issuer announces on November 21, 2003 that it has raised $2.5 million in Common stock financing selling
1,643,000 shares at $1.50 instead of the $1.85 previously agreed price with the same investors, or a loss of $575,050
for shareholders in the bargain made by management to mitigate one of the agreived parties from defendants actions
around the 2004 proxy.
64. At 5:46PM on Saturday November 22, 2003, eUniverse Sr. VP Legal, Chris Lipp emails Orricks Harroch and
VantagePoints Harroch and internal general counsel Guidero with Subject: Series C Consent re Bylaw Amendment
and attached, Series C Written Consent to Amend Bylaws and states,
Rich, Please find attached the Series C consent with the changes we discussed. Thanks, -Chris
iv

65. On November 24, 2003 at 12:05PM, Flahie emails outside general counsel Cartmell, Subject RE: Proxy and
states, I need to file on Wednesday. I hope that your comments do not impact the schedule

66. Defendants in November 2003 press release omit Edells CEO role in the MTS 2002 Chapter 7 bankruptcy and
failure of another turnaround company he ran in 2003. Edell continues his sleight of hand and promotes only the
Soundelux CEO role without disclosing end of tenure in 2000 when it was sold, creating impression he was most
recently working as CEO of eLabor, Inc., stating, Additionally, Edell served as Founder, Director and CEO of

"'
eLabor, Inc., which was sold to ADP in February of 2003. In fact, Edell was only a director of eLabor since at least
1995.
v

NOVEMBER 2003- SONY SERIES B SHAM CONSENT SCHEME
67. November 25, 2003 at 5:33AM, Moreau emails Flahie, Carlick, Mosher, Subject: RE: Nomating Committee-
Dropped nominations, and states, Tom, Did you mean to drop David Carlick, Andy Sheehan, Jeff Edell and I from
the Board? Also, when is the proxy deadline?
vi

68. Flahie responds at 8:27AM on November 25
th
, falsly stating:
Only three directors are up from election at the January 24 stockholders meeting. The
Series B stockholders (Sony) have elected Larry Moreau and Jeff Edell. The Series C
stockholders have selected Andry Sheehan and David Carlick. The only directors that up for
election are Dan Mosher, Brett Brewer and Bradley Ward. And

The proxy deadline is driven by the timing of Chris Liupps vacation. Chris has put off
a European vacation several times due to the issues we are working through. He will be out all
next week. I will prepare the proxy in his absence.

69. On November 25, 2003, at 10:11PM, Lipp emails Flahie, Subject Proxy Excerpt with attached files including
one called By-Laws and states,

Attached is the language I would suggest for Proposal 2 and the Other Business
sections. Also attached is the newly added Section 10 of the Article I of the Bylaws.

70. On November 25, 2003, Chris Lipp emails Sony's Melissa Cole and Mark Eisenberg, Subject: 'One More
Series B Consent' and attaches a draft of Series B consent form re: election of directors, and states,
Melissa- Please find attached what should be the final Series B consent we will need in
connection with getting the director issues sorted out"

71. Director Ward is puzzled at the Flahie claim that a new Board slate has been elected which includes Edell and
Moreau as Series B Directors Ward who had just voted with the rest of the Directors to elect the slate on November
20, 2003, states in a November 26, 2003 9:28AM

Quick question.The role of the Nominating and Corporate Governance Committee
(NCGC) shall be to determine the slate of director nominees for election to the Companys
Board of Directors (the Board) to be included in the Companys annual proxy statement,
And

Will this committee solely determine the nominees on the slate and no longer require a
full Board vote like we just had last week? In the absence of any specification for a full Board
vote, thats how I read that.

72. November 26, 2003 at 11:26AM, Outside eUniverse counsel Nate Cartmell emails Chris Lipp, Subject:
'Series B Written Consent re Election of Directors 11-26-03.DOC' and states,

"(
"Chris, I have modified the consent slightly to deal with the fact that the right belongs to
the Series B but that Sony can exercise that right as majority holder. Redline to follow in PDF
format'

attaching a document titled:
'ACTION BY WRITTEN CONSENT OF MAJORITY SERIES B STOCKHOLDER OF EUNIVERSE, INC.'

NOVEMBER 26, 2003 - CFO FLAHIE INSTRUCTS STAFF TO FILE PROXY
73. November 26, 2003, 1:41PM, Flahie emails Samina Merchant, Subject: 'Proxy', and states,
"Please send the proxy over to Donnelley for Edgar formatting".
74. As of November 26, Sony had not given its consent to nominate Moreau or Edell as Series B nominees.
DECEMBER 1. 2003 PROXY IS FILED
75. The December 1, 2003 Proxy lists Edell & Moreau as Series B Preferred Nominated Directors stating:

"the majority holder of our Series B preferred stock, has the exclusive right, voting separately
as a single class, to elect two directors" and "550 DMV has notified the Company that it intends to
elect Lawrence Moreau and Jeffrey Edell to the Board.

PROXY CONTEST DECEMBER 2003- JANUARY 2004
76. According to former Director Greenspan, his email sent on December 5, 2003, at 3:17PM, to Lipp, Brewer,
Edell, Fojut, Subject: Need immediate documents and states, Chris/Matt- As both a director and shareholders, I
demand to see the following documents. did not result in the company sending him the Myspace Asset Sale
agreement that was purported to have been signed on December 17, 2003. This is further key evidence that supports
such agreement not having really existed at such time and prior to November 2004 when defendants first publicly
disclose the claim that the MySpace Asset Agreement selling 33% to DeWolfes MSV LLC really occurred on
December 17, 2003.
77. Email evidence shows the chilling effect of defendants fabricating proxy to make it appear Sony had
nominated Edell and originally also, Moreau as Series B Directors. Showing initial response from an informed
investor can be seen thru email on December 4, 2003, at 3:30pm, current board member, former CEO and 20%
stockholder of Issuer emails proxy information to his outside counsel, Subject: Darn and states,
Tougher Road to fight. It looks like these guys got Sony to PURPOSELY elect directors so
there are only 3 slots open and 4 forced seats. Only three directors are up for nomination.
And
Sony owns the Series B which VantagePoint has a right to purchase and the Series B has rights
to elect 2 Board Members, but Vantagepoint had specifically agreed to cancel such rights as part of
their acquisition of Sonys Series B just for the reason of not doubling up on forced directors. And
Sneaky sneakyThey got Sony to nominate 2 of the existing directors to BulletProof these guys.
78. Edell emails Flahie and states on December 4, 2003,
Only comment, is please make sure from Nate that this info is clearly necessary of a
press releaseI am sure you checked already but let me know? Thanks jeff
vii


")
79. CFO Flahie a few minutes later replies via email and states,
Yes, all three lawyers agreed. They also want me to Form 8-k the press release.
viii

80. Lipp emails Harroch on December 8, 2003 at 4:01PM and states,
Richard, Last time we discussed this, I thought we agreed that it was neither partys intent to
have the shares purchased under the option be anything other than the Series C shares

81. Ultimately, Lipp capitulates to the dominant Orrick firm and agrees to issue C-1 shares which are worth $2.00
in extra preferred liquidation vs. $1.50. A loss of .50 cents per share for shareholders and additional corporate waste
by defendants, using shareholder money to effect a change of control.
82. December 8, 2003- 2:16PM, from Harroch of Vantage/Orrick to Chris Lipp and other Carlick and Sheehan and
Rodi Guidero;, Subject: Option.
"Chris, we still need to deal with the Sony option, Series B issue. As I see it, the proxy
statement should also seek approval for amending the Series B Certificate of Designation to
encompass the matters set forth in Exhibit B of the Option Agreement (PIK/dividend for VPVP
Shares elimination of company Election concepts, authorized # of shares, etc :) " and,

"If we had a chance to review the proxy statement before you filed it, I would have
pointed this out to you. So let us figure out how we implement this now. Thanks!"

83. December 9, 2003, at 11:29AM, Edell emails Chris Lipp, Sheehan, Carlick, Moreau, Brewer, and states,
Chris, The meeting took place this morning and the board is in the dark about its
results. and
Please see to it that Nate reports on the Nasdaq meeting ASAP. I heard that there were
some problematic issues, such as dilution that we should have known about with the VP deal,
that I would love to sort out.

84. Lipp sends a revised Note to VantagePoint and the January Proxy confirms that indeed, the Accelerator was
part of the January 2004 proxy material and shareholders were forced to vote or be victims the accelerated Note
scheme.
85. On December 17, 2003 at 10:46PM, Brewer emails Edell. Lipp, Sheehan, Flahie, Carlick, Moreau, Ward,
Mosher and states,
Gentlemen- We will be having our board call tomorrow as scheduled at 4 PM sharp.
And
Also, after speaking with some of the board and management, we think it would be
useful to have an in person board meeting next Tuesday in LA.
The meeting will be from 10-4pm and will include Mike Kennedy from WS as well as
other lawyers if needed. We have several ratifications of chartes, reports on litigation, proxy
contest issues, and other house keeping matters to take care of.
ix

86. December 18, 2003- Greeenspan emails Carlick, Edell, Mosher, Subject: 'Info-' and states,

"Guys- I have lots of additional information on the performance of Brett Brewer, Chris
Lipp, and Adam Goldenberg before, during, and after the restatement" and "It sheds a very
negative light on all of these gentlemen's performance."
x


"*
87. After getting sent an email sent by former CEO to non-management board members critical of certain
managers and offering to provide information to help Board best evaluate executives at company, Director Edell sends
such email on to principal executive Brewer. Brewer then passes that email onto Lipp and Goldenberg to influence
them to be disloyal with adware and other transgressions against former CEO of Issuer. In Brewers email on this date
to Lipp and Goldenberg he states,
this guy is one of the biggest assholes that ever livedthere is no other way to say it.
xi

88. On Thursday December 18, 2003, at 1:46AM, Brewer emails board and states, Gentlemen- We will be having
our board call tomorrow as scheduled at 4pm sharp.
xii

89. There is no evidence that the Myspace asset sale agreement was disclosed or voted on by the board at the
December 19, 2003 board meeting. While there is significant evidence there was a focus according to Brewer on,
modifications of charters, reports on litigation, proxy contest issues
xiii

90. Annual Meeting date rescheduled on December 19, 2003 at 4:14PM, Flahie emails Lipp, Sheehan,

Carlick, Moreau, Mosher, Ward, Brewer, Edell, Subject: Filings and states,

The attached proxy amendment was filed today and the attached press release announcing the
new meeting date was issued.
xiv

THE 2003 DEFECTIVE AMENDED NOTE
91. On December 27, 2003, Lipp emails Harroch and Sheehan of VantagePoint with Subject Amended VPVP
Note and states, As discussed, please find attached for your review an amended note. and attaches a revised $2.5
million note that now has been amended under Section (1) Repayment to change the original due date of March 2005
to now be due February 8, 2004 a few days after the planned Shareholder meeting unless stockholders of the
Borrower, provide approvals necessary.
92. The December 30, 2003 Proxy falsely states:

"Pursuant to the Certificate of Designation of Series B Preferred Stock, 550 Digital Media
Ventures, Inc. ("550 DMV"), an indirect subsidiary of Sony Corporation of America, the majority
holder of our Series B preferred stock, has the exclusive right voting separately as a single class, to
elect two directors in the event the Board consists of six to eight members, 550 DMV has notified the
Company that it intends to elect Jeffrey Edell to the Board and leave one Series B Board seat vacant at
this time

93. Sony had not notified the company it intended to elect Edell as of and thru the date of the Chancery Court trial
in January 2004.
The false and defective January 2004 Proxy AND PUFFERY OF EDELL (EXHIBIT #6 pg 44-46)

94. In January 2004, Vantage sealed control over eUniverse thru one of three Proxy frauds

perpetuated on common stockholders by Carlick, Sheehan, Brewer, Lipp, Rosenblatt and associates. 2003-2005

Flahie who is disloyal along with Brewer in not revealing Edells fabricated resume then colludes with General

#+

Counsel Lipp to knowingly falsify January 2004, July 2004, August 2005 Proxies, violating Item 102 Rule SK.

95. Defendants decide to make detection of the fraudulently concealed Edell true professional experience

more difficult, and on the December 30, 2003 DEF14A Proxy, on page 4, the company states,

Jeffrey Edell has served as a Director since October 14, 2003 and as Chairman
of the Board since November 14, 2003. Mr. Edell is currently a member of eUniverses
Compensation and Audit Committees. Mr. Edell was employed as President and Chief
Executive Officer and a director of Soundelux Entertainment Group, Inc., a provider of
entertainment content and technologies, from 1995 until 2002

96. It was part of the Defendants scheme to use the United States Postal Service to deliver fraudulent SEC

Proxy to the eUniverse (Intermix) Inc. MySpace Parent Company Shareholders in December 2003, January

2004, July 2004, August 2005, and September 2005 and to conceal the errors contained in the Proxy Disclosure

statements on each occasion regarding Edell and Petitioner in violation of 18 U.S.C. 1341.

FRAUD UPON THE CHANCERY COURT (Exhibit #9, pg. 52-64)

97. After adverse ruling that caused general counsel Chris Lipp to admit he had taken several actions

without ever getting the critical consents needed as required by law to be first approved by the companys board

of directors and/or by Series B Preferred stockholder Sony Corp. These were also shown to be consents that the

general counsel knew were in fact required prior to general counsel taking such actions. These actions were to

claim consents and waivers were given and then to include these in Issuers proxy and describe they had

occurred when in fact such events had never taken place and such waivers or consents had not been given. This

behavior and activity was in court and in Judge Strines cross examination, shown to have occurred multiple

times on multiple dates and thru insertion of such fabricate events into multiple versions of Proxies distributed

to shareholders leading up to the 2004 Shareholder Annual meeting thru proxy.

98. Judge Strine was adamant about going on record multiple times during the trial to notify all parties of

his views that the testimony of general counsel Lipp was not believable as to Mr. Lipps rationales for certain

disclosures and statements in the companys Proxy.

SONYS SECURITIES FRAUD AND AIDING AND ABETTING BLASIUS VIOLATION AND AIDING AND
ABETTING FRAUDULENT CONVEYANCE

99. Sony Music Corp in 2004, transacted after a still uncured Federal Securities Violation and these


#"
transactions damaged and fraudulently conveyed assets to the detriment of Issuer shareholders.

100. Edells securities violation makes the Proxy and subsequent 10Qs and 10Ks and next Proxy statement

defective, all caused by Sony Music Corp aiding and abetting this securities fraud thru multiple acts in 2003 and

2004. Most directly by opting after Judge Strines January 14, adverse ruling to manipulations of defendants

and Sony Corps interactions relating to upcoming 2004 Proxy Disclosures.










Shockingly with evidence of Defendants improprieties laid bare in court and significant red flags raised, Sony then

agrees to nominate Edell to serve as Series B Director. Sonys aid eliminates shareholders ability to keep Edell off

Board & further conspiring with Defendants in late 2004 to complete a sweetheart deal to sell almost half of MySpace.

Defendants also breach pledge made with Judge Strine & Petitioner, failing to make corrective disclosure in January

2004 Proxy.

102. Defendants have also not legally effected a valid closing or vote on the Series C stock sale or transfer

from Sony of their Series B shares, blocking public issuers option received in three way agreement between

Sony, VantagePoint, and public issuer in 2003. The crooked dealings expand when Orrick uses its insider

knowledge to produce a commercial benefit for VantagePoint while having Issuer pay 100% of the cost by


103. Defendants were aware and admitted the proxy statement was defective in January 2004. Defendants willfully

ignore Judge Strines ruling and continue to allow A defective proxy to be the final proxy for the annual shareholder


##
meeting that occurred in January 2004. Defendants fraudulently conceal Edells work experience and omit disclosure

of Edells bankruptcy of MTS, Inc. Defendants aid and abet Edell in violating Rule SK Item 401.

ISS REPORT DEFAMATION

104. Part of the Defendants scheme to conspire to interfere with Plaintiffs livelihood by disseminating

defamatory statements about Plaintiff to the public through media outlets in retaliation for providing truthful

information to SEC, FTC, DOJ and Chancery Court relating to the Defendants scheme, in violation of 1513(f).

105. Defendants press release titled eUniverse Wins ISS Support for Its Director Nominees; ISS Rejects

Greenspan's Hand-Picked Director Nominees.is published January 23, 2004:

eUniverse, Inc. today announced that Institutional Shareholder Services, Inc. (ISS) has
recommended that eUniverse stockholders vote FOR eUniverse's four director nominees -- Brett
Brewer, Daniel Mosher, Lawrence Moreau and Bradley Ward -- and vote FOR the Board's other
proposals at the Company's annual meeting on January 29, 2004.

ISS is widely recognized as the leading independent proxy advisory firm in the nation. Its
recommendations are relied upon by hundreds of major institutional investment firms, mutual funds,
and other fiduciaries throughout the country.

In recommending that eUniverse stockholders re-elect eUniverse's Board nominees, ISS stated
in its January 22, 2004 report that:

"[T]he dissident slate does not offer a clear plan to operate the business that distinguishes
themselves from the path of the current board of directors.

Further, we question the independence of the dissident slate as they were proposed by Mr.
Greenspan and Mr. Greenspan's record as CEO eUniverse is blemished with financial difficulties.

ISS also stated that:

"[T]he company's board has independent directors for six out of seven board seats, setup
independent board committees as of Nov. 14, 2003, and two new directors added after the company
announced its accounting problems.

Further, the board has taken steps to improve management of the company by removing Mr.
Greenspan and initiating the process of hiring a new CEO."

In conclusion, ISS believes that "the [eUniverse] nominees should have an opportunity to
implement plans to grow the business, shore up the company's finances, and find new management
leadership."

Jeffrey Edell, Chairman of the eUniverse Board of Directors, said, "We are very pleased that
ISS recognizes that the current Board is best suited to successfully guide eUniverse. We look forward to
moving beyond Mr. Greenspan's costly and counterproductive proxy contest and to continuing the
progress we have made to build a stronger future for eUniverse and all its stockholders."


#$
106. However, ISS is basing its report on the fabricated Edell bio and work experience that was created thru

emailing and mailing the fraudulent Proxy prior to the ISS report, in violation of Statue 1341.

107. ISS was not able to write an accurate report or reach an equitable conclusion because Defendants

destroyed the evidence of Edells true background violating 18 U.S.C. 1512(c)(1) and 18 U.S.C. 1519.

108. January 23, 2004 press release is defamatory attack on Petitioner and misleads all shareholders, and is

distributed via wire service in violation of 18 U.S.C. 1343.

Los Angeles Times Defamation

109 Defendants scheme to use fabricated and false Director Edell continued in a January 29, 2004

article titled, Battle of EUniverse Is Up in the Air that continues to harm Plaintiff and is located at

public web link: http://articles.latimes.com/2004/jan/29/business/fi-golden29 stating:

Battle of EUniverse Is Up in the Air
Michael Hiltzik / GOLDEN STATE/January 29, 2004|

There's an old joke about how university campus politics are so vicious because there's so little at stake.
From that, we might conclude that the proxy fight over the Internet company EUniverse Inc. would
have been more dignified had it concerned an operation that actually turned a profit over the last year
and didn't spend several months in the doghouse of a Nasdaq trading suspension.

Instead, the battle pitting EUniverse's founder and ex-chairman, Brad D. Greenspan, against a
management team that he had largely appointed himself has reached new standards in backbiting and
vituperation.

Over the last few weeks, the existing board has been issuing letters to shareholders with lurid headlines
such as: "BRAD GREENSPAN -- THE THREAT TO YOUR COMPANY'S SUCCESS," and
"GREENSPAN'S SOUR GRAPES."

Even the Democrats in New Hampshire backed away from this sort of campaigning.

The board accuses the 30-year-old Greenspan of employing "empty rhetoric" and "petty personal
attacks" in order to seize control of the Los Angeles-based company for personal financial gain and
self-aggrandizement. It notes that the trading suspension and a huge restatement of financial results
going back to 2002 occurred on his watch.

The incumbents further charge that he tried to torpedo an $8-million private equity deal that they deem
crucial to the survival of the company, which runs a collection of game and entertainment websites,
earning revenue from advertising and memberships.

Greenspan has fired back in kind. His shareholder letters accuse the officers and directors of conflicts of
interest, self-dealing and mudslinging. ("THERE THEY GO AGAIN! DO NOT BE MISLED BY
INCUMBENT MANAGEMENT'S CONTINUING MISSTATEMENTS, OMISSIONS AND

#%
MANIPULATION OF THE FACTS IN THEIR EFFORTS TO DIVERT YOUR ATTENTION FROM
THE REAL ISSUES.")

Greenspan's core charge is that the board colluded with a private venture firm to seize control of
EUniverse from the holders of its common shares, of which he owns the largest block. As for its
financial problems in the last year, he acknowledges that he was chairman and chief executive during
much of that period. But he says he had left day-to-day operations in the hands of some of the same
people now sniping at him from the opposite trench, including President Brett Brewer, 31, a board
member and his former UCLA classmate.

Under the circumstances, one can only sympathize with the 4,000 shareholders being importuned to
vote for one or another slate of four directors (out of seven) at the company's annual meeting, scheduled
for today. Both sides say their first order of business will be to hire a professional CEO for EUniverse,
obviously an admission that no one in place now is up to the job. Both also claim to possess the
strategic key to restoring EUniverse's former luster as one of the rare, pure Internet plays that worked.

The false and defective July 2004 Proxy (EXHIBIT #7, pg. 48-49)

110. Edells July 2004 Proxy disclosure totally omits any notion of bankruptcy. Edell and defendants later

after using the fabricated Edell to win the January 2004 Proxy contest, attempt thru a footnote, in second Proxy

distributed in July 2004, to avail themselves of the disclosure requirements they know exists by concealing

Edells true background by disclosing:

"Mr. Edell was the Chief Executive Officer of Showorks Entertainment Group. Inc., a
Delaware corporation that later changed its name to Media Technology Source of Delaware,
Inc. Within two years of the time that Mr. Edell resigned from that company, it filed a petition
for relief under the United States Bankruptcy Code."

111. However, even with this disclosure of a bankruptcy Edell does not disclose the year that he works for

Showorks in his main bio area. Combined with fabricating the year Edell concluded his job at Soundelux to

2002, An informed investor would not be able to deduce that Edell worked for Showorks as CEO in 2001

before its bankruptcy in 2001. Edell misled investors, omitting fact that in 2001 & 2002 he was Showorks CEO.

112. Defendants are guilty of the destruction or altering of the true Edell background information and work

experience and bankruptcy by omission violating 18 U.S.C. 1512(c)(1) and 18 U.S.C. 1519.

113. Defendants violate . 1341 using email to send fabricated draft Proxy for review furthering scheme.

2009 FRAUD

114. Edell & Defendants in mid-2009 launch another prong of fraudulent concealment.

115. New evidence includes i) publication of a book by employee loyal to News Corp to fabricate the

background of Jeff Edell a former Director ii) Using fabricated Edell character to conceal truth that
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CIVIL MINUTES - GENERAL
Case No. CV 06-3731-GHK (SHx) Date June 17, 2010
Title Jim Brown v. Brett Brewer, et al.
1
In our June 22, 2009 Order, we certified the following class: All holders of Intermix Media,
Inc. (Intermix or the Company) common stock, from July 18, 2005 through the consummation of the
sale of Intermix to News Corporation (News Corp) at the price of $12.00 per share on September 30,
2005 (the Acquisition), who were harmed by defendants improper conduct at issue in the litigation.
Excluded from the Class are defendants and any person, firm, trust, corporation or other entity related to
or affiliated with any defendant. (Dkt. No. 197).
2
In our July 14, 2008 Order on the Motion to Dismiss, we dismissed with prejudice Defendants
Montgomery & Co. LLC (Montgomery), and Thomas Weisel Partners Group, Inc. and Thomas
Weisel Partners LLC (TWP), the investment banks which advised the Intermix board during the 2005
transaction and completed fairness analyses on the $12 per share price offered by News Corp. in the
consummated merger transaction. (Dkt. No. 110, at 4-5). In that same Order, we also dismissed with
prejudice Count I for violation of Section 14(a) of the 1934 Act and SEC Rule 14a-9, which was stated
against the 2003 Individual Defendants, which included Brewer, Mosher, Moreau, Jeffrey Scott Edell,
Bradley Ward, Carlick, Sheehan, and Lipp, and VantagePoint. (Id. at 1-3). Accordingly, Count III for
CV-90 (06/04) CIVIL MINUTES - GENERAL Page 1 of 39
Presiding: The Honorable GEORGE H. KING, U. S. DISTRICT JUDGE
Beatrice Herrera N/A N/A
Deputy Clerk Court Reporter / Recorder Tape No.
Attorneys Present for Plaintiffs: Attorneys Present for Defendants:
None None
Proceedings: (In Chambers) Order re: Cross-Motions for Summary Judgment; [213, 218,
244, 251, and 261]
This shareholder class action arises out of News Corporations (News Corp.) 2005 acquisition
of Intermix Media, Inc. (Intermix), formerly known as eUniverse Inc. (Brewer Decl. 3), a company
which owned, among other internet businesses, the social networking website MySpace. Plaintiff Jim
Brown (Plaintiff), individually and on behalf of all members of the certified class of former Intermix
shareholders,
1
claims that Defendants Brett Brewer (Brewer), Daniel Mosher (Mosher), Lawrence
Moreau (Moreau), David Carlick (Carlick), Andrew Sheehan (Sheehan), Richard Rosenblatt
(Rosenblatt), James Quandt (Quandt), and William Woodward (Woodward) (collectively,
Defendants), the eight Intermix directors at the time of the companys sale, breached their fiduciary
duties under state law and violated Section 14(a) of the Securities and Exchange Act of 1934 and SEC
Rule 14a-9 (Counts IV and II, respectively).
2
(Consolidated Second Amended Complaint [CSAC]
Case 2:06-cv-03731-GHK-SH Document 278 Filed 06/17/10 Page 1 of 39
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control person liability was dismissed as to Edell and Ward, as it was premised on the only other
claim against them, the dismissed Count I. (Id. at 7-8). The Parties stipulated to dismiss certain
Defendants. (Dkt. Nos. 190, 204). On June 10, 2009, pursuant to the Parties stipulation, we dismissed
without prejudice Defendants VantagePoint Venture Partners, VP Alpha Holdings IV L.L.C.,
VantagePoint Venture Partners IV (Q) L.P., VantagePoint Venture Partners IV L.P., and VantagePoint
Venture Partners IV Principals Fund L.P. (Dkt. No. 194). On August 28, 2009, pursuant to the Parties
stipulation, we dismissed without prejudice Defendant Christopher Lipp, Intermixs General Counsel.
(Dkt. No. 205).
168-74, 179-87; Brewer Decl. 5). The only other remaining claim is Count III for control person
liability under Section 20(a) of the 1934 Act against Defendants involved in the 2005 acquisition of
Intermix. (CSAC 175-78). This matter is before us on the Parties Cross-Motions for Summary
Judgment. We have considered the papers filed and all of the admissible evidence, and deem this matter
appropriate for resolution without oral argument. L.R. 7-15. As the Parties are familiar with the facts in
this case, we will repeat them only as necessary. Accordingly, we rule as follows.
I. Motion for Summary Judgment Standard
Summary judgment should be granted if the pleadings, the discovery and disclosure materials
on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c)(2); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). As to materiality, the substantive law will identify which facts are
material. Only disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). On a motion for summary judgment, our function is not . . . to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue for trial. Id. at 249.
The moving party bears the initial responsibility to point to the absence of evidence of any
genuine issue of material fact. Celotex Corp., 477 U.S. at 323. When the party moving for summary
judgment would bear the burden of proof at trial, it must come forward with evidence which would
entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving
party has the initial burden of establishing the absence of a genuine issue of fact on each issue material
to its case. Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 987 (9th Cir. 2006) (citation and
quotation marks omitted). By contrast, where the non-moving party bears the burden of proof at trial,
summary judgment is warranted if the nonmovant fails to make a showing sufficient to establish the
existence of an element essential to [its] case. Nebraska v. Wyoming, 507 U.S. 584, 590 (1993)
(quoting Celotex Corp., 477 U.S. at 322) (alteration in original). [T]he moving party can meet its
burden by pointing out the absence of evidence from the non-moving party, and it need not disprove
the other partys case. Miller, 454 F.3d at 987 (citation omitted). Accordingly, [t]he nonmoving
party must come forward with specific facts showing there is a genuine issue for trial. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks and citations
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3
Under Delaware law, the business judgment rule creates a presumption that in making a
business decision, the directors of a corporation act on an informed basis, in good faith and in the honest
belief that the action taken was in the best interests of the company. Aronson v. Lewis, 473 A.2d 805,
812 (Del. 1984). A plaintiff challenging a board decision bears the burden to rebut the rules
presumption by providing evidence that the directors breached their fiduciary duties. Goodwin v. Live
Entmt, Inc., No. Civ. A. 15765, 1999 WL 64265, at *24 (Del. Ch. Jan. 25, 1999) (citing Cede & Co. v.
Technicolor, Inc., 634 A.2d 345, 361 (Del. 1993), modified by, 636 A.2d 956 (Del. 1994) (Cede II);
Citron v. Fairchild Camera and Instrument Corp., 569 A.2d 53, 64 (Del. 1989)). In order to overcome
that presumption, a plaintiff must prove an act of bad faith by a preponderance of the evidence. In re
omitted). However, [i]f the opposing party does not so respond, summary judgment should, if
appropriate, be entered against that party. FED. R. CIV. P. 56(e)(2); see also Celotex Corp., 477 U.S. at
322 ([T]he plain language of Rule 56(c) mandates the entry of summary judgment . . . against a party
who fails to make a showing sufficient to establish the existence of an element essential to that partys
case, and on which that party will bear the burden of proof at trial.). The opposing party may not rely
merely on allegations or denials in its own pleading[.] FED. R. CIV. P. 56(e)(2). The evidence of the
non-movant is to be believed, and all justifiable inferences are to be drawn in his favor. Anderson, 477
U.S. at 255; see also In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (The court must view all the
evidence in the light most favorable to the nonmoving party.) (citations omitted).
Only admissible evidence may be considered in deciding a motion for summary judgment.
Miller, 454 F.3d at 988. Under Federal Rule of Civil Procedure 56(e)(1), [a] supporting or opposing
affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and
show that the affiant is competent to testify on the matters stated. See also Block v. City of Los
Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001). Conclusory and speculative affidavits that fail to set
forth specific facts are insufficient to raise a genuine issue of material fact. Thornhill Publg Co., Inc. v.
Gen. Tel. & Elecs. Corp., 594 F.2d 730, 738 (9th Cir. 1979). Absent a proper exception, hearsay
statements are inadmissible. See Japan Telecom, Inc. v. Japan Telecom Am., Inc., 287 F.3d 866, 875
n.1 (9th Cir. 2002). Furthermore, neither an unverified complaint nor unsworn statements made in the
parties briefs can be considered as evidence at this stage. See Moran v. Selig, 447 F.3d 748, 759 &
n.16 (9th Cir. 2006) (noting that unverified complaint cannot be considered as evidence on motion for
summary judgment); British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978) ([L]egal
memoranda . . . are not evidence[.]).
II. Count IV: Breach of Fiduciary Duty Claim
A. Delaware Law on Corporate Fiduciary Duties Generally
Delaware law governs Plaintiffs state law claim of breach of fiduciary duty. Under Delaware
law, all directors and officers of a corporation owe their shareholders fiduciary duties of loyalty and
care. Gantler v. Stephens, 965 A.2d 695, 708-09 (Del. 2009).
3

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Walt Disney Co. Derivative Litig., 907 A.2d 693 (Del. Ch. 2005). If the plaintiff fails to rebut the
presumption, the business judgment rule protects the decision made. Goodwin, 1999 WL 64265, at *4
(citation omitted). If the rule is rebutted, the burden shifts to the defendants . . . to prove that the
transaction was entirely fair to the plaintiff shareholder. Id. (citation omitted).
1. Duty of Care
Director liability for breaching the duty of care is predicated upon concepts of gross
negligence. Binks v. DSL.net, Inc., C.A. No. 2823-VCN, 2010 WL 1713629, at *8 (Del. Ch. Apr. 29,
2010) (quoting McMullin v. Beran, 705 A.2d 910, 921 (Del. 2000)). The Delaware General
Corporation Law permits a corporation to include a provision in its charter eliminating or limiting the
personal liability of a director to the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director. DEL. CODE ANN. tit. 8, 102(b)(7). While such an exculpatory provision
may eliminate any liability for breaches of the duty of care, it shall not eliminate or limit the liability of
a director: (i) For any breach of the directors duty of loyalty to the corporation or its stockholders; (ii)
for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation
of law; . . . or (iv) for any transaction from which the director derived an improper personal benefit. Id.
Intermixs charter exculpates Defendants from any duty of care claims. (J.A., Ex. 38, Certificate of
Incorporation). Accordingly, Defendants assert this provision as their fifth affirmative defense: The
breach of fiduciary duty claim is barred, in whole or in part, by the exculpatory provision contained in
Intermixs Certificate of Incorporation. (Dkt. No. 111, Aug. 4, 2008). In light of this provision, we
conclude that the director Defendants cannot be liable for any purported breach of fiduciary duty based
solely on their duty of care. Plaintiff does not argue otherwise.
Defendants also move for summary judgment on the question of whether Brewer and Rosenblatt,
who doubled as officers for Intermix, may be held liable for any breaches of the duty of care, since
Section 102(b)(7) only permits exculpation of duty of care claims for directors. It is undisputed that
both Brewer and Rosenblatt served as directors and officers of Intermix, Brewer as President and
Rosenblatt as CEO. (Brewer Decl. 1; Rosenblatt Decl. 1). The law is clear that where it is
impossible to separate actions taken in fulfillment of a defendants directorial duties from actions taken
in fulfillment of that defendants duties as a corporate officer, then any duty of care claim stated against
that individual is exculpated. In Arnold v. Society for Savings Bancorp, Inc., 650 A.2d 1270 (Del.
1994), the Delaware Supreme Court held that since the plaintiff failed to highlight any specific actions
[the defendant] undertook as an officer (as distinct from actions as a director) that fall within the two
pertinent exceptions to Section 102(b)(7)[,] any duty of care claim was precluded under the
exculpatory clause. Id. at 1288 (citing R. Franklin Balotti & Jesse A. Finkelstein, Delaware Law of
Corp. & Business Org. 4.19, at 4-335 (Supp. 1992) (where a defendant is a director and officer, only
those actions taken solely in the defendants capacity as an officer are outside the purview of Section
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102(b)(7))). Plaintiffs have not identified any actions taken by Rosenblatt or Brewer solely in their
capacity as officers. Accordingly, to the extent any claim for breach of the duty of care is embodied in
Count IV, we GRANT summary judgment on that specific basis as to all director defendants, including
Brewer and Rosenblatt who also served as officers.

2. Duty of Loyalty
To hold a director liable for breach of the duty of loyalty, the plaintiff must establish that a
majority of the Director Defendants either [1] stood on both sides of the merger or were dominated and
controlled by someone who did; or [2] failed to act in good faith, i.e., where a fiduciary intentionally
fails to act in the face of a known duty to act, demonstrating a conscious disregard for his duties. In re
NYMEX Sholder Litig., C.A. Nos. 3621-VCN, 3835-VCN, 2009 WL 3206051, at *6 (Del. Ch. Sept. 30,
2009) (internal citations and quotation marks omitted); Lyondell Chem. Co. v. Ryan, 970 A.2d 235, 239-
40 (Del. 2009) (Lyondell) (Because the trial court determined that the board was independent and
was not motivated by self-interest or ill will, the sole issue is whether the directors are entitled to
summary judgment on the claim that they breached their duty of loyalty by failing to act in good
faith.).
With respect to the first basis for demonstrating breach of the duty of loyalty, Delaware law
provides that [w]hen directors . . . are on both sides of a transaction, they are required to demonstrate
their utmost good faith and the most scrupulous inherent fairness of the bargain. Weinberger v. UOP,
Inc., 457 A.2d 701, 710 (Del. 1983). Classic examples [of this type of breach] are when a director
appears on both sides of a transaction or receives a personal benefit not received by the shareholders,
generally. Oliver v. Boston Univ., No. Civ. A. 16570-NC, 2006 WL 1064169, at *18 (Del. Ch. Apr.
14, 2006) (citing Cede II, 634 A.2d at 362 (citing Nixon v. Blackwell, 626 A.2d 1366, 1375 (Del.
1993))) (internal quotation marks and alterations omitted). If corporate fiduciaries stand on both sides
of a challenged transaction, an instance where the directors loyalty has been called into question, the
burden shifts to the fiduciaries to demonstrate the entire fairness of the transaction. Id. (citations
omitted). A showing of entire fairness requires proof that the transaction is the product of both fair
dealing and fair price. Cede II, 634 A.2d at 361 (emphasis in original and citations omitted).
With respect to the second basis for demonstrating breach of the duty of loyalty, Delaware
courts have noted that the requirement to act in good faith is a subsidiary element, i.e., a condition, of
the fundamental duty of loyalty. Stone v. Ritter, 911 A.2d 362, 369-70 (Del. 2006) (citation, alteration,
and internal quotation marks omitted) ([T]he fiduciary duty of loyalty is not limited to cases involving
a financial or other cognizable fiduciary conflict of interest. It also encompasses cases where the
fiduciary fails to act in good faith.). In Stone, the Delaware Supreme Court explained that although
good faith may be described colloquially as part of a triad of fiduciary duties that includes the duties
of care and loyalty, the obligation to act in good faith does not establish an independent fiduciary duty
that stands on the same footing as the duties of care and loyalty. Id. at 370.
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The Delaware Supreme Court has explained what constitutes bad faith by way of a spectrum of
directorial conduct. At one end of the spectrum, [there is] a category of acts involving non-exculpable,
so-called subjective bad faith, that is, fiduciary conduct motivated by an actual intent to do harm.
Ryan v. Lyondell Chem. Co., C.A. No. 3176-VCN, 2008 WL 4174038, at *3 (Del. Ch. Aug. 29, 2008)
(Ryan) (quoting In re Walt Disney Co. Derivative Litig., 906 A.2d 27, 64 (Del. 2006) (Disney))
(internal quotation marks omitted). The second category of conduct, which is at the opposite end of
the spectrum, involves lack of due carethat is, fiduciary action taken solely by reason of gross
negligence and without any malevolent intent. Disney, 906 A.2d at 64. The court observed that
grossly negligent conduct, without more, does not and cannot constitute a breach of the fiduciary duty
to act in good faith. Id. at 65. The third category identified by the Delaware Supreme Court is the one
at issue in this case: intentional dereliction of duty or a conscious disregard for ones responsibilities.
Id. at 66. Such misconduct, according to the Court, is properly treated as a non-exculpable,
non-indemnifiable violation of the fiduciary duty to act in good faith. Ryan, 2008 WL 4174038, at *3
(quoting Disney, 906 A.2d at 66).
Accordingly, the distinction between gross negligence and non-exculpable bad faith (i.e., that
elusive something more) has important consequences in Delawares jurisprudence and corporate
statutory scheme because, for example, director conduct amounting only to a violation of the duty of
care, but otherwise taken in good faith, is exculpable under 8 Del. C. 102(b)(7) or indemnifiable under
8 Del. C. 145. Id. (citing Disney, 906 A.2d at 64-65).
B. Scope of Plaintiffs Claim of Breach of the Duty of Loyalty
Inasmuch as the director defendants are exculpated from potential breaches of their duty of care,
the success of Count IV necessarily depends on whether any arguable shortcomings on the part of the .
. . directors also implicate their duty of loyalty, a breach of which is not exculpated. Lyondell, 970
A.2d at 239. To that end, in order to rule on Defendants motion for summary judgment, we must
ascertain whether there are any genuine issues of material fact with respect to whether the directors
breached their duty of loyalty, not merely their duty of care. In keeping with the Parties Joint Brief, we
address the two bases for breach of the duty of loyalty in the reverse order: first, Plaintiffs assertion of
bad faith conduct by Defendants, and second, Plaintiffs allegation of a self-interested transaction not
shown to be entirely fair.

1. Bad Faith in Revlon Auction Context
The obligation to act in good faith, which is a necessary component of satisfying the duty of
loyalty, requires directors to act for the purpose of advancing corporate well-being. Therefore, any
intentional dereliction of duty, a conscious disregard for ones responsibilities[,] constitutes bad faith,
or the failure to act in good faith. Disney, 906 A.2d at 66; Stone, 911 A.2d at 370 (Where directors fail
to act in the face of a known duty to act, thereby demonstrating a conscious disregard for their
responsibilities, they breach their duty of loyalty by failing to discharge that fiduciary obligation in
good faith.). In this case, Plaintiff and the shareholder class which he represents argue Defendants
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consciously disregarded their responsibilities in selling Intermix to News Corp. for $12 per share, when,
so they contend, a likely topping bid from Viacom was imminent.
The seminal case of Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., 506 A.2d 173 (Del.
1986), regulates directorial conduct during a sale or change of control of a publicly held corporation.
Revlon holds that directors satisfy their fiduciary duties when their conduct is geared towards the
maximization of the companys value at a sale for the stockholders benefit. Id. at 182. Revlon is
triggered in the following three scenarios: (1) when a corporation initiates an active bidding process
seeking to sell itself or to effect a business reorganization involving a clear break-up of the company;
(2) where, in response to a bidders offer, a target abandons its long-term strategy and seeks an
alternative transaction involving the break-up of the company; or (3) when approval of a transaction
results in a sale or change of control. Arnold v. Socy for Sav. Bancorp., Inc., 650 A.2d 1270, 1289-90
(Del. 1994) (internal citations and quotation marks omitted). More recently, the Delaware Supreme
Court has stated that Revlon duties attach when a company embarks on a transactionon its own
initiative or in response to an unsolicited offerthat will result in a change of control. Lyondell, 970
A.2d at 242. When the companys break-up became inevitable, in Revlon, [t]he directors role
changed from defenders of the corporate bastion to auctioneers charged with getting the best price for
the stockholders at a sale of the company. 506 A.2d at 182. In addition to its principal holding that
shareholder wealth maximization must be the directors foremost objective, the court also noted that
favoritism for a white knight to the total exclusion of a hostile bidder was impermissible if divorced
from the objective of shareholder value maximization. Id. at 184. [W]hen bidders make relatively
similar offers, or dissolution of the company becomes inevitable, the directors cannot fulfill their
[fiduciary] duties by playing favorites with the contending factions. Market forces must be allowed to
operate freely to bring the targets shareholders the best price available for their equity. Id.

The Delaware Supreme Court has clarified that Revlon did not create any new fiduciary
duties[,] but rather simply held that the board must perform its fiduciary duties in the service of a
specific objective: maximizing the sale price of the enterprise. Lyondell, 970 A.2d at 239 (quoting
Malpiede v. Townson, 780 A.2d 1075, 1083 (Del. 2001)). Additionally, Delaware case law has time
and again reaffirmed the anti-favoritism principle, i.e. that directors may not tilt the playing field in
favor of one bidder or otherwise skew the auction unless this conduct is designed to maximize
shareholder wealth. In Barkan v. Amsted Industries, 567 A.2d 1279 (Del. 1989), the court warned that
the board must act in a neutral manner to encourage the highest possible price for shareholders. Id. at
1286. To be sure, there is no single blueprint that a board must follow to fulfill its duties, and there
are no legally prescribed steps that directors must follow to satisfy their Revlon duties. Id.; Lyondell,
970 A.2d at 243. Nevertheless, [w]hen multiple bidders are competing for control, this concern for
fairness forbids directors from using defensive mechanisms to thwart an auction or to favor one bidder
over another. Id. at 1286-87 (citation omitted). More recently, in In re Toys R Us, Inc.,
Shareholder Litigation, 877 A.2d 975 (Del. Ch. 2005), the Delaware Chancery Court stated that a
selfish or idiosyncratic desire by the board to tilt the playing field towards a particular bidder for
reasons unrelated to the stockholders ability to get top dollar is a violation of a directors fiduciary
obligations. Id. at 1000-01.
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4
Favoritism and deal protection devices, such as a termination fee, are permissible so long as
they are strategically designed to maximize the price paid to shareholders. Macmillan, 559 A.2d at
1287 ([T]he boards primary objective, and essential purpose, must remain the enhancement of the
bidding process for the benefit of the stockholders.). Macmillan set forth a test which tolerates only
value-enhancing preferential treatment:

In the face of disparate treatment, the trial court must first examine whether the directors
properly perceived that shareholder interests were enhanced. In any event, the boards action
must be reasonable in relation to the advantage sought to be achieved, or conversely, to the
threat which a particular bid allegedly poses to stockholder interests.
559 A.2d at 1288; In re J.P. Stevens & Co., Inc. Sholders Litig., 542 A.2d 770, 782 (Del. Ch. 1988)
(The board may tilt the playing field if, but only if, it is in the shareholders interest to do so.).
To support his claim that Defendants acted in bad faith, Plaintiff cites Mills Acquisition Co. v.
Macmillan, Inc., 559 A.2d 1261 (Del. 1988). In that case, Macmillan, Inc.s Chairman and Chief
Executive Officer (CEO) and its President and Chief Operating Officer (COO) orchestrated a
leveraged buyout of their own company, resulting in a lock-up agreement between Macmillan and
Kohlberg Kravis Roberts & Co. (KKR), an investment firm specializing in leveraged buyouts. Id. at
1264-65. These directors, as participants in the leveraged buyout, had a significant self-interest in
ensuring the success of a KKR bid. Id. at 1279. Indeed, Macmillan senior management would
receive up to 20% ownership in the newly formed company. Id. at 1273. So strong was the pull of
that promised 20 percent ownership stake that even before KKR had communicated a bid price, these
self-interested actors indicated that they would endorse the acquisition to the full board of directors.
Id. To steer the process in the desired direction, they clandestinely and impermissibly skewed the
auction in KKRs favor by, among other things, tipping KKR off as to the amount of a competing bid
and then concealing this tip from the board of directors. Id. at 1279-81. On appeal, the Delaware
Supreme Court held that discriminatory treatment of a bidder, without any rational benefit to the
shareholders, was unwarranted. Id. at 1282 (emphasis added).
4
The court found that KKR repeatedly
received significant material advantages to the exclusion and detriment of [the competing bidder] to
stymie, rather than enhance, the bidding process. Id. at 1281. Moreover, the court concluded that
[t]he board was torpid, if not supine, in its efforts to establish a truly independent auction . . . . Id. at
1280. The court added: By placing the entire process in the hands of [the chairman], through his own
chosen financial advisors, with little or no board oversight, the board materially contributed to the
unprincipled conduct of those upon whom it looked with a blind eye. Id.
Defendants contend that Macmillan is distinguishable because the directors in that case were on
both sides of the transaction and therefore engaged in self-dealing. However, Defendants have pointed
us to no authority for the proposition that Macmillan is only applicable when a court reviews self-
interested transactions for fairness and may not support a finding of bad faith conduct in the Revlon
auction context.
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5
Although Viacom did not actually submit a bid, we conclude that there are triable issues of fact
as to whether Viacom was at least a serious potential bidder which was discouraged from actually
submitting a bid by Defendants alleged bad faith conduct.
6
The Delaware courts have explained that favoritism, untethered to any strategy to drive up bid
prices, is a breach of the fiduciary duties which Revlon focused through the lens of shareholder wealth
maximization:
Critically, in the wake of Revlon, Delaware courts have made clear that the enhanced judicial
review Revlon requires is not a license for law-trained courts to second-guess reasonable, but
We recognize that Wayne County Employees Retirement System v. Corti, Civil Action No.
3534-CC, 2009 WL 2219260 (Del. Ch. July 24, 2009), distinguishes Macmillan from the single-bidder
merger reviewed in that case on the absence of any conflicted insiders seeking to transfer control of a
company to themselves. Id. at *12-13 (There is much less cause for concern where managers will
continue their employment with the combined post-transaction entity, than when the conflicted
managers are bidders in an auction for control of the company, and are thereby seeking to transfer
control of the company to themselves personally.). But that discussion has no bearing on the
prohibition on favoring a particular bidder in a multiple-bidder context, which this case arguably
presents.
5
Defendants suggest that the directors may tilt the playing field in favor of a particular bidder,
without regard to shareholder wealth maximization, so long as they are not on both sides of a
transaction. We reject this argument. Simply because Macmillan examined disparate treatment
through the lens of disloyalty premised on a self-interested transaction does not mean field-tilting is
permissible in other contexts. See Emerson Radio Corp. v. Intl Jensen Inc., Civ. A. Nos. 15130,
14992, 1996 WL 483086, at *11-12 (Del. Ch. Aug. 20, 1996) (describing Macmillan as requiring
fiduciaries to treat all bidders equally and fairly in carrying out their Revlon duties and identifying
self-interested nature of merger transaction as an addition[al] or alternative theory for breach of
duty of loyalty); Roberts v. Gen. Instrument Corp., CIV. A. No. 11639, 1990 WL 118356, at *8 (Del.
Ch. Aug. 13, 1990) (citing Macmillan, 559 A.2d at 1287-88) (In each instance where the board is not
predominantly self-interested or under the control or dominating influence of a person with a conflicting
interest, the principal judicial inquiries relate to whether the board was adequately informed and acting
in good faith. This court has been pointedly instructed, however, that where issues of corporate control
are at stake action of even a disinterested board must meet an enhanced test before they will qualify for
the deference that courts ordinarily accord to good faith business judgments.).
Whatever a directors particular motivation, evidence that he skewed an auction in favor of a
particular bidder can support a finding of an intentional dereliction of duty, Disney, 906 A.2d at 66,
i.e. a violation of the obligation to act in good faith. See Nagy v. Bistricer, 770 A.2d 43, 48, n.2 (Del.
Ch. 2000) (observing that the duty of good faith may serve as a constant reminder . . . that, regardless
of his motive, a director who consciously disregards his duties to the corporation and its stockholders
may suffer a personal judgment for monetary damages for any harm he causes, even if for a reason
other than personal pecuniary interest).
6
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debatable, tactical choices that directors have made in good faith. For example, the Supreme
Court has held that the duty to take reasonable steps to secure the highest immediately available
price does not invariably require a board to conduct an auction process or even a targeted market
canvass in the first instance, emphasizing that there is no single blue-print for fulfilling the
duty to maximize value. Nor does a boards decision to sell a company prevent it from offering
bidders deal protections, so long as its decision to do so was reasonably directed to the objective
of getting the highest price, and not by a selfish or idiosyncratic desire by the board to tilt the
playing field towards a particular bidder for reasons unrelated to the stockholders ability to get
top dollar.
Toys R Us, 877 A.2d at 1000-01 (emphasis added; citations omitted).

Defendants principal argument is that recent Delaware Supreme Court case law creates a much
more stringent standard for claims of breaches of the obligation to act in good faith. To this end, they
cite language in the Delaware Supreme Courts decision in Lyondell. In that case, Lyondells board of
directors approved the sale of their company to Basell AF, a privately held Luxembourg company, after
negotiating several increases in the per share bid price up from $40 to $48, and a set of less stringent
deal protection devices, including a fiduciary out clause in the standard no-shop provision and a
reduced termination fee. 970 A.2d at 237-39. The court found no bad faith and therefore no breach of
the duty of loyalty. Id. at 242-44. The Supreme Court rested its decision on the following facts:
The Lyondell directors met several times to consider Basells premium offer. They were
generally aware of the value of their company and they knew the chemical company market.
The directors solicited and followed the advice of their financial and legal advisors. They
attempted to negotiate a higher offer even though all the evidence indicates that Basell had
offered a blowout price. Finally, they approved the merger agreement, because it was simply
too good not to pass along [to the stockholders] for their consideration. We assume, as we must
on summary judgment, that the Lyondell directors did absolutely nothing to prepare for Basells
offer, and that they did not even consider conducting a market check before agreeing to the
merger. Even so, this record clearly establishes that the Lyondell directors did not breach their
duty of loyalty by failing to act in good faith.
Id. at 244.
Contrary to Defendants argument, Lyondell did not work any transformation in Delaware law
on the duty of loyalty. Nothing in this case altered the standard definition of bad faith; indeed, the court
reaffirmed that bad faith will be found if a fiduciary intentionally fails to act in the face of a known
duty to act, demonstrating a conscious disregard for his duties. Id. at 243 (quoting Disney, 906 A.2d at
67). The court continued: there is a vast difference between an inadequate or flawed effort to carry out
fiduciary duties and a conscious disregard for those duties. Id. Despite all the references to the
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conscious disregard standard, Defendants nevertheless cherry-pick certain language to argue that a
more stringent standard applies, including the following lines: (1) Only if they knowingly and
completely failed to undertake their responsibilities would they breach their duty of loyalty; and (2)
[T]he inquiry should have been whether those directors utterly failed to obtain the best sale price. Id.
at 243-44 (emphasis added); (Joint Br. 5-7, 16). Defendants citation of this language is out of context
and misleading. A comprehensive review of the Lyondell opinion reveals that the court intended that
language to be synonymous and coterminous with the conscious disregard standard. The court did
not suggest that the utter failure standard would supplant the definition of bad faith set forth in
Disney. Nor did it suggest any unprecedented diminishment of Revlon duties, as suggested by the
minimalist standard Defendants advance. If such a radical departure were intended, we think the court
would have taken the pains to say as much. Divorced from the surrounding text, the utter failure
language could be said to require that directors simply do anything in the auction process, no matter
how feckless, ineffectual, or at odds with the goal of maximizing shareholder wealth.
The utter failure language derives from the Stone and In re Caremark decisions, which the
court cited. 911 A.2d 362 (Del. 2006); 698 A.2d 959, 971 (Del. Ch. 1996). Both of those decisions
concerned claims that directors failed to engage in the necessary oversight to ensure compliance with
laws such as the federal Bank Secrecy Act in Stone. That vital factual context helps explain why In re
Caremark defined bad faith as follows: Generally where a claim of directorial liability for corporate
loss is predicated upon ignorance of liability creating activities within the corporation, . . . only a
sustained or systematic failure of the board to exercise oversightsuch as an utter failure to attempt to
assure a reasonable information and reporting system existswill establish the lack of good faith that is
a necessary condition to liability. 698 A.2d at 971 (Such a test of liabilitylack of good faith as
evidenced by sustained or systematic failure of a director to exercise reasonable oversightis quite
high.). Nevertheless, the Delaware Supreme Court explained in Stone and reaffirmed in Lyondell that:
the Caremark standard is fully consistent with the Disney definition of bad faith. Lyondell, 970 A.2d
at 240 (citing Stone, 911 A.2d at 370). We cannot second-guess that determination as Defendants wish.
Instead of placing utter failure between subjective bad faith (i.e. actual intent to do harm)
and conscious disregard on the Disney bad faith spectrum, Lyondell equated the utter failure and
conscious disregard standards. 970 A.2d at 240. This reasoning was fully in keeping with the
Supreme Courts prior decision in Stone, where it noted that the duty of loyalty could be breached by
two specific kinds of conduct rising to the level of bad faith: (a) the directors utterly failed to
implement any reporting or information system or controls; or (b) having implemented such a system or
controls, consciously failed to monitor or oversee its operations thus disabling themselves from being
informed of risks or problems requiring their attention. 911 A.2d at 370. Crucially, though bad faith
could be demonstrated with either of these alternatives, the court emphasized, citing Disney, 906 A.2d at
67, that these were coterminous legal standards:
In either case, imposition of liability requires a showing that the directors knew that they were
not discharging their fiduciary obligations. Where directors fail to act in the face of a known
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7
A failure to act in good faith may be shown . . . where the fiduciary intentionally acts with a
purpose other than that of advancing the best interests of the corporation, where the fiduciary acts with
the intent to violate applicable positive law, or where the fiduciary intentionally fails to act in the face of
a known duty to act, demonstrating a conscious disregard for his duties. In re Walt Disney Co.
Derivative Litig., 907 A.2d at 755.
duty to act, thereby demonstrating a conscious disregard for their responsibilities, they breach
their duty of loyalty by failing to discharge that fiduciary obligation in good faith.
911 A.2d at 370 (emphasis added). Delaware courts generally seem to read Lyondell in this way. See,
e.g., Robotti & Co., LLC v. Liddell, C.A. No. 3128-VCN, 2010 WL 157474, at *11 (Del. Ch. Jan. 14,
2010) (characterizing Lyondell as holding that [b]ad faith, and thus a breach of the duty of loyalty, can
arise only when a fiduciary consciously disregards his or her responsibilities).
7

In addition, we do not read Lyondell as diminishing the prohibition on tilting the playing field in
favor of a particular bidder for any reason other than maximizing shareholder wealth. The lack of an
actual or even potential second bidder was a key undisputed fact on which that court relied, noting:
[The directors] had reason to believe that no other bidders would emerge, given the price Basell had
offered and the limited universe of companies that might be interested in acquiring Lyondells unique
assets. . . . Finally, no other acquiror [sic] expressed interest during the four months between the merger
announcement and the stockholder vote. 970 A.2d at 241. Other cases have distinguished between
single-bidder and multiple-bidder contexts as well. See, e.g., Barkan, 567 A.2d at 1286-87; Continuing
Creditors Comm. of Star Telecomms., Inc. v. Edgecomb, 385 F. Supp. 2d 449, 466 n.14 (D. Del. 2004)
(In [Macmillan], the claim was that the directors approved the use of a lock-up that stopped rival
bidders from winning the auction for the company so that fellow directors could purchase the company
through a leveraged buy-out. Here, however, there were no other bidders for Star, the Company was on
the verge of bankruptcy, and the Gotel financing was, by the Plaintiffs own admission, the only
financing option presented to the Board.) (emphasis added and citations omitted). Since Lyondell only
reviewed a merger with a lone bidder, even if we were to read its utter failure language as more
lenient on Defendants, it is of severely diminished relevance in the multiple-bidder scenario we
arguably confront here.
In short, Revlon and Macmillan are not displaced in any way by Stone or Lyondell.
Accordingly, we must ask whether there is a genuine issue of material fact as to whether Defendants
consciously disregarded their duties, i.e. fail[ed] to act in the face of a known duty to act. Stone, 911
A.2d at 370. There is nothing in the case law to warrant granting judgment as a matter of law for
Defendants, simply because they engaged in some bargaining.
Having considered all of the admissible evidence before us and viewing it in the light most
favorable to Plaintiff as we must under Rule 56, we conclude that there are genuine, triable issues of
material fact sufficient to defeat Defendants Motion for Summary Judgment on this Revlon claim.
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8
Although analytically we are reviewing the evidence on the bad faith prong of the duty of
loyalty component of the breach of fiduciary duty claim at this juncture, we consider Rosenblatts
alleged self-interest to the extent that it bears on whether Plaintiff has raised a triable issue of material
fact as to whether Rosenblatt acted in conscious disregard of his duties by impermissibly tilting the field
in favor of News Corp.
These issues fall into three categories: (1) whether Intermix CEO Rosenblatt impermissibly tilted the
playing field in favor of News Corp.; (2) whether the remaining board members consciously disregarded
their duties; and (3) whether the purported risk of a direct bid for MySpace, which would have frozen
the MySpace Option, precludes a finding that Defendants consciously disregard their duties.
a. Rosenblatt
Plaintiff proffers evidence tending to show that during the crucial week leading up to the July
18, 2005 merger, Rosenblatt evaded Viacoms advances, even though Viacoms representatives were
communicating that a competing bid was imminent. Plaintiff raises at least two interrelated triable
issues: (1) whether Rosenblatt was self-interested in the merger transaction;
8
and (2) whether he
impermissibly steered the auction in News Corp.s favor.
As to Rosenblatts purported self-interest, there is evidence of Rosenblatts motivation for the
alleged bidder favoritism, namely his anticipation of future employment with News Corp. In one
particularly revealing email sent on July 15, Rosenblatt excitedly endorses News Corp.s Ross
Levinsohns vision: So, we create the Fox Internet group, all our units (myspace, alena, grab) fall
under it, plus all new acquisitions, and you are CEO Fox Internet and I am Fox Internet grand Puba!!!!
(J.A., Ex. 184). Rosenblatt continues: I would like to discuss my specific role and structure whenever
you are ready. It is no rush unless Peter and Rupert want me to sign an employment agreement by
Sunday [July 17, 2005] . . . . (Id.). In an earlier email in that same chain, Rosenblatt wrote: [I] am
burning some real equity with every major media company by getting [the deal] done. . . . u [sic] have
no idea the pain I will suffer on Monday. U [sic] better have a good job for me cause I aint [sic] gonna
work in this town again. . . . (Id.). On July 13, Rosenblatt wrote: tell Thom Murdoch and I cut the
deal in 30 mins [sic] and I got 100% of what we wanted. Deal closing by Monday. (Id., Ex. 154).
This evidence at least raises the inference that Rosenblatt had a strong interest in seeing a merger
transaction with News Corp. completed and had made up his mind that Intermix would be sold to News
Corp. as of July 13.
Moreover, Plaintiff points to several key pieces of documentary evidence and witness testimony
which tend to support his contention that (1) Rosenblatt, in representing the Intermix board through the
Transaction Committee (TC), (2) Sheehan, who also sat on the TC, and (3) their agents, deliberately
dodged, if not frustrated, an arguably imminent bid from Viacom:
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9
Viacom owns MTV Networks.
10
The Parties initially sought to file Frestons deposition transcript under seal because it
contained information subject to the governing protective order. On November 13, 2009, the Parties
filed a joint stipulation to withdraw their application to file under seal unredacted versions of the Joint
Brief, the Joint Statement of Uncontroverted Facts, and Volumes 2-3 and 5-9 of the Joint Evidentiary
Appendix, as well as several full deposition transcripts, including Frestons testimony. (Dkt. No. 234).
In that document, the Parties stated that: WHEREAS the Parties have contacted all non-parties that
produced documents and/or gave deposition testimony which was the subject of the application to file
under seal, and obtained their permission for the documents to be publicly filed, and therefore withdraw
the Application to File Under Seal[.] (Id. at 3). Our November 17, 2009 Order regarding the joint
stipulation was not clear as to whether the deposition transcripts were also being filed in the public
record. (Dkt. No. 236). We now clarify that all of the deposition transcripts labeled Confidential
Pursuant to Protective Order and submitted to the Court along with the Cross-Motions for Summary
Judgment SHALL also be filed in the public record pursuant to the Parties joint stipulation.
First, on July 6, Montgomery responded to an email announcing Viacom coming in hard by
telling Rosenblatt: You need to dance with [Viacom] . . . slow them down. I know you can do
it. (Id., Ex. 117).
Second, TWP, specifically Robert Kitts (Kitts), was aware that Epstein was trying to reach
them to talk about a potential Viacom bid. (Kitts Tr. at 125:4-7, 126:4-13). Epstein noted on
July 16 that Kitts never called him back as promised. (J.A., Ex. 191 (We exchanged
subsequent emails and he indicated he would call me, but he never did.)).
Third, on July 15, Mosher wrote Rosenblatt following one of Rosenblatts updates to the full
board, saying Viacom sounds like a pipedream. (Id., Ex. 182).
Fourth, on July 15, Judy McGrath of MTV
9
wrote Rosenblatt to inform him that Viacom was
coming with a bid early next week. (Id., Ex. 183). She added: We really want to be with you
on this, and hope to get in the ring for it . . . . (Id.). Rosenblatt replied evasively, failing to
correct her mistaken impression that the auction would still be ongoing after Monday: I am on a
call but thanks so much for the email . . . . I will call you back soon . . . . (Id.). Rosenblatt
could not recall precisely whether he had returned her call: I may have tried. I think, actually, I
do think I tried and I couldnt get a hold of her. (Rosenblatt Tr. at 108:21-24).
Fifth, Viacoms CEO Thomas Freston (Freston), who reiterated Viacoms interest in
purchasing Intermix to Rosenblatt, has testified that he was only told that the process with the
competing bidder was moving quickly. (Freston Tr. at 17:12-20, 19:8-11, 22:4-14).
10
He
testified that he could not recall if [Rosenblatt] said that they were going to do a deal by
Sunday. (Id. at 22:21-24). When asked whether Rosenblatt had communicated that a deal
would be completed by Sunday, he stated that he did not believe so. (Freston Tr. at 19:8-11).
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11
Rosenblatt, on the other hand, has testified that he actually told Freston that a deal would
likely be over by Sunday, or (stated with more certainty) that the deal was going to be done by
Sunday. (Rosenblatt Tr. at 64:5-22, 65:22-25, 92:5-8). For purposes of summary judgment, this
conflicting evidence further supports the existence of a triable issue of fact as to Viacoms relative
awareness of the impending consummation of the merger with News Corp. Moreover, Jason
Hirschhorn (Hirschhorn), Viacoms top manager for Internet business, wrote in an internal email on
Saturday July 16 that News Corp. will deliver [its bid] anywhere from today-monday. (J.A., Ex.
192). Freston also states that Rosenblatt told him a specific deal was imminent. (Freston Tr. at
29:11-16). Though the actual meaning of that statement is obscure as to whether a deal or a bid would
have been imminent (particularly given Frestons other testimony), this ambiguity likewise buttresses
our conclusion that there are genuine issues for trial.
12
A reasonable jury could infer from this email that Rosenblatt intended to evade an arguably
imminent competing bid, and that the [h]ave a great weekend line at the end of the email was
dismissive, given the fact that the email was sent at nearly 6 p.m. on a Sunday night.
13
We do not read the deposition to suggest that these were his actual words; Kitts was merely
paraphrasing what he recalls saying to Viacom.
Kitts of TWP also confirmed that he failed to give Viacom any hard deadline by which to submit
a bid. (Kitts Tr. at 88:21-89:16, 90:11-22, 136:11-14).
11

Sixth, on July 17, Jason Hirschhorn emailed Chris DeWolfe, MySpaces CEO, to document his
difficulties in staying in the auction process: chris, quick concerns . . . Intermix management
did not show up on Friday as promised during our time there . . . Intermix legal cancels their
time with our legal today at the last minute . . . Heard you guys got called off the ad sales call
abruptly . . . In short, I have had a team of 20+ people here working for 72 hours straight on a
significant bid, is there anything I need to know? (J.A., Ex. 200).
Seventh, on July 17, Van Toffler of MTV also emailed Rosenblatt directly to complain politely
about the perceived run-around: They are in the office working round [sic] the clock so we can
put forth a number to you this week. They mentioned a couple of calls were cancelled at the end
of the day Friday, and seemed a bit concerned. Is there anything I can do to help the process for
both of us as this is clearly on the fast track? (Id., Ex. 202). Again, Rosenblatt replied in such
a way that a reasonable jury could infer an intent to evade an arguably imminent competing bid:
We like you and your guys a ton also. Chris called back or will your GC today. Have a great
weekend[.] (Id.).
12

Eighth, on July 17, Kitts of TWP, pursuant to the Intermix boards instructions, informed
Viacom that it would be in their best interest to make a bid that evening.
13
(Kitts Tr. at 69:13-
70:14, 88:21-89:16). Kitts admitted that he did not give Viacom a hard and fast deadline (see id.
at 88:21-89:16, 90:11-22; Epstein Tr. at 53:21-55:5), but that he relied upon the message [he]
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14
Rupert Murdoch is the Chairman and CEO of News Corp. Peter Chernin was the then-
President and COO of News Corp.
delivered as code that [Epstein] should get a bid in this evening. (Kitts Tr. at 90:20-22).
Furthermore, Kitts admitted in the deposition that he had been instructed to ask for a bid on a
timetable that he knew was infeasible. (Id. at 144:1-145:7). Kitts testified that he was aware of
an upcoming Viacom board meeting, at which [a potential bid] was going to be discussed. (Id.
at 69:13-70:14). The Viacom board was not scheduled to meet until the evening of Tuesday
July 19, 2005. (Rosenblatt Decl. 42; Brewer Decl. 29).
On the other hand, Defendants present the following evidence of events leading up to the July
18th merger, which they argue demonstrates the board members good faith. News Corp. initially
signaled that it would be willing to purchase Intermix in the $8-10 per share price range. (Rosenblatt
Decl. 18). During the Tuesday July 12, 2005 meeting between Rosenblatt, Rupert Murdoch, and Peter
Chernin,
14
News Corp. indicated that it would pay $12 per share, as long as the MySpace Option was
exercised and a merger agreement was executed by no later than Sunday, July 17, 2005. (Id. 24
(describing the handshake deal)). At the 2 p.m. meeting on July 15, the Intermix board of directors
rejected News Corp.s proposal to enter exclusive negotiations as premature. (Id. 29-30). At the 8
p.m. meeting on July 15, the Intermix board rejected the non-binding term sheet including a variety of
deal protection provisions as too strong a deterrent to other potential bidders. (Id. 33; J.A., Ex. 14).
At the 8 p.m. meeting on July 16, TWP advised the board that it would be reasonable to approve a
merger with News Corp. rather than waiting for Viacom to present an offer. (Brewer Decl. 27;
Rosenblatt Decl. 37). At the 7:30 p.m. TC meeting on July 17, the committee directed TWP to contact
Viacom and/or its representative, Morgan Stanley, to ascertain whether Viacom would be making an
offer before the opening of the market the next morning. (Rosenblatt Decl. 41; Sheehan Decl. 36;
J.A., Ex. 18). At the 10 p.m. Intermix board meeting on July 17, TWP advised that Viacom was not
prepared to make any offer until its board met on Tuesday July 19 and approved a bid. (Rosenblatt
Decl. 42; J.A., Ex. 19). At the 3:45 a.m. board meeting on July 18, both Montgomery and TWP
presented their valuation analyses, explaining that $12 per share was a fair price for Intermix, and the
Board voted to approve the merger. (Rosenblatt Decl. 44). On July 18, Intermix entered into a merger
agreement with News Corp.s Fox Interactive Media. (Rosenblatt Decl. 45; J.A., Ex. 4, at 319).
Defendants contend, and the record reflects, that throughout this process the board met repeatedly,
authorized ongoing discussions with both competing bidders, and consulted legal and financial advisers.
(J.A., Exs. 8-12, 14-19).
Viewing the evidence as a whole and in the light most favorable to Plaintiff, we conclude that
there are at least triable issues of fact as to whether Rosenblatt acted in good faith, whether he
impermissibly skewed the auction in favor of News Corp. for a purpose other than maximizing
shareholder value, knowing that a Viacom bid was likely and imminent, and whether this arguably
disparate treatment of Viacom and News Corp. had any effect on Viacoms appreciation of the arguable
need to make an offer by the evening of July 17, 2005.
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b. The Other Directors

i. Sheehan
In addition to Rosenblatt, there are also triable issues of fact as to whether Sheehan consciously
disregarded his fiduciary duties. On Friday July 15, Stuart Epstein (Epstein), the Morgan Stanley
investment banker representing Viacom, tried to reach Sheehan but was unsuccessful. (Sheehan Tr. at
83:12-18; J.A. Ex. 175). Sheehan instructed his secretary as follows: Do not tell [Epstein] anything
about what I am doing or where I am[.] (J.A., Ex. 175). In reply to his email, Sheehans secretary
informed him that she told Epstein that he was unavailable. (Id.). A reasonable jury could conclude
that this email chain evinces Sheehans intent to avoid Viacoms representatives.
ii. The Other Six Directors
In Gesoff v. IIC Industries, Inc., 902 A.2d 1130 (Del. Ch. 2006), the court stated that bad faith
may be found where directors have acted with conscious disregard or made decisions with knowledge
that they lacked material information. Id. at 1165 (emphasis added). Few Delaware cases attempt to
define precisely what conduct reaches the level of actionable bad faith, but there is at least agreement
that adopting a we dont care about the risks attitude concerning a material corporate decision
constitutes bad faith. In re Walt Disney Co. Derivative Litig., 825 A.2d 275, 289 (Del. Ch. 2003)
(finding bad faith claim properly alleged where factual allegations, if true, implied that the defendant
directors knew that they were making material decisions without adequate information and without
adequate deliberation, and that they simply did not care if the decisions caused the corporation and its
stockholders to suffer injury or loss) (emphasis in original).
Having reviewed the record in full, we conclude that there is sufficient admissible evidence to
create a triable question of fact as to whether the rest of the board, as in Macmillan, plac[ed] the entire
process in the hands of Rosenblatt and to a lesser extent Sheehan and thereby materially contributed
to the [allegedly] unprincipled conduct of those upon whom it looked with a blind eye. 559 A.2d at
1281.
On February 9, 2005, the Intermix board of directors formed a Transaction Committee
comprised of Rosenblatt, Sheehan, and Quandt. (Rosenblatt Decl. 6). From that point until July 18,
2005 when the merger was announced, it is undisputed that the Board received most of its information
about the negotiations from its self-interested CEO, Rosenblatt. Indeed, it is undisputed that Rosenblatt
was the only board member who had some first-hand information as to the circumstances of Viacoms
efforts to put in a bid. (See, e.g., Joint Statement of Uncontroverted Facts P347 (Rosenblatt was the
only person from the Intermix Board who negotiated with Viacom.)). Crucially, one of the board
members testified that Rosenblatt had led him to believe [t]hat Viacom was less urgent about the deal
and hadnt taken the time or done the same level of work as Fox Network and that Viacom was a
pipedream. (J.A., Ex. 182; Mosher Tr. at 25:24-26:1). This phrase is admittedly not indicative of
conscious wrongdoing. However, there is a triable question as to whether the other board members
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consciously abdicated their responsibilities as corporate fiduciaries in allegedly swallowing
Rosenblatts version of events and utterly failing to assess the situation for themselves.
More generally, a reasonable fact-finder could conclude that the other board members acted in
bad faith by making decisions with knowledge that they lacked material information. Gesoff, 902
A.2d at 1165. With respect to their knowledge of the relative likelihood of a Viacom bid, Mosher stated
that he could not recall if he or any other board member had asked any questions regarding Viacom or
its status. (Mosher Tr. at 26:14-21). Additionally, he could not recall whether he had any knowledge
of whether anyone from management was providing equal information to Viacom and Fox News Corp
about the time line for submitting a bid for Intermix. (Id. at 43:17-21).
With respect to their knowledge of bidder favoritism, though Mosher testified that he could not
recall the board ever instructing Rosenblatt to favor one bidder over another, he also could not
definitively represent that the board had not so instructed Rosenblatt. (Id. at 41:10-21). Other board
members besides Rosenblatt have also testified that they were unaware that any due diligence meetings
with Viacom had been cancelled. (Brewer Tr. at 119:11-15; Sheehan Tr. at 98:1-20). Furthermore,
Brewer testified that he was simply unaware that Viacom was conducting due diligence over the July
16-17, 2005 weekend. (Brewer Tr. at 26:5-24).
With respect to their knowledge of the fairness of the merger price, Rosenblatt did not inform
Brewer that he was requesting $12 per share from News Corp. until the day of the handshake deal
with Rupert Murdoch; it is unclear when the rest of the board learned this information. (Id. at 122:2-9).
He also did not explain how that requested price was derived. (Id. at 122:10-14). Brewer testified that
the board did not ask, and Mosher could not recall whether any board member sought an explanation.
(Id.; Mosher Tr. at 53:6-9). Moreover, Brewer testified that the board as a whole never conducted any
independent analysis to determine what an appropriate price per share would be. (Brewer Tr. at
122:15-18; see also Mosher Tr. at 49:24-50:4 (testifying that he himself did not perform any
independent analysis)). Additionally, Mosher confirmed that the board had not directed the
management team to go get the specific valuation work done prior to the acquisition. (Mosher Tr. at
52:4-18). Finally, Brewer has testified that he could not even recall whether any of the directors had
asked any questions about [Montgomery and TWPs] fairness presentations. (Brewer Tr. at 104:2-
10). Though Brewers failure to recall what everyone had specifically asked back in 2005 would be
understandable, a reasonable jury might draw a negative inference from his representation that he could
not recall any discussion as to the investment banks analyses.

Construing all of the above testimony in the light most favorable to Plaintiff as we must on
Defendants motion for summary judgment, we conclude that it is at least triable as to whether the
remaining six board members consciously disregarded their duties and acted in bad faith. There is
evidence in the record suggesting that no one on the board asked any questions about the requested per
share price, the treatment of the competing bidders, the fairness valuations, or the relative likelihood of
a Viacom bid. A reasonable jury could infer that this evidence demonstrates the other six directors
consciously abdicated their roles as corporate fiduciaries required by law to do their utmost to maximize
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shareholder wealth. Of course, we remain mindful that even gross negligence, premised on simple
inattention or failure to be informed of all facts material to the decision[,] violates only the duty of care
and is not actionable as bad faith. Disney, 906 A.2d at 66. Nevertheless, we think a reasonable jury
could find that the other six directors exceeded the bounds of negligent conduct, willfully proceeded to
their decisions knowing they lacked material information, Gesoff, 902 A.2d at 1165, and thereby
consciously disregarded their fiduciary duties. Disney, 906 A.2d at 66 (Cases have arisen where
corporate directors have no conflicting self-interest in a decision, yet engage in misconduct that is more
culpable than simple inattention or failure to be informed of all facts material to the decision. To protect
the interests of the corporation and its shareholders, fiduciary conduct of this kind, which does not
involve disloyalty (as traditionally defined) but is qualitatively more culpable than gross negligence,
should be proscribed.).
c. The MySpace Option
The MySpace, Inc. Stockholders Agreement (MSA) (J.A., Ex. 2), executed on February 11,
2005, was the culmination of negotiations between MySpace, Inc., MySpace Ventures, LLC, Redpoint
Ventures I, L.P., Redpoint Associates I, LLC, Redpoint Ventures II, L.P., Redpoint Associates II, LLC,
Redpoint Technology Partners Q-1, L.P., and/or Redpoint Technology Partners A-1, L.P. (collectively,
the Redpoint Entities). (Brewer Decl. 6; Rosenblatt Decl. 7). Under the agreement, the Redpoint
Entities purchased a 47 percent minority interest in Intermix, and at the same time, the 53 percent
majority stockholders acquired an option (the MySpace Option) to buy back that minority interest if a
third party made a bona fide . . . offer for 50 percent or more of Intermixs shares:
So long as Intermix (together with its Affiliates) directly or indirectly holds at least 1,000,000
shares of Common Stock . . . , in the event Intermix receives a bona fide third-party offer with
respect to a Change of Control of Intermix . . . within the twelve (12) month-period commencing
on the date hereof . . . , then, following receipt of such offer (and provided discussions relating
to such offer are then-ongoing), Intermix shall have the right to purchase . . . up to 100% of
Common Stock and Common Stock Equivalents of the Corporation held by the other
Stockholders, whether now owned or hereafter acquired . . . .
(J.A., Ex. 2 7.1.1; Brewer Decl. 6-7; Rosenblatt 7-8). Section 7.1.5 of the MSA precluded the
majority from exercising the MySpace Option if a third party made a direct bid for MySpace of over
$125 million: Intermix may not exercise the Purchase Option if (a) the Corporation [MySpace, Inc.]
has previously received a bona fide third party offer to purchase the Corporations capital stock or
assets for a purchase price greater than $125.0 million and discussions regarding such acquisition
between the Corporation and such third party are ongoing . . . . (J.A., Ex. 2 7.1.5). The two
provisions are mutually exclusive: (1) a bid for 50 percent or more of Intermixs shares precludes any
subsequent direct bid for MySpace (while discussions for the Intermix control share are ongoing); and
(2) any direct bid for MySpace precludes any subsequent bid for 50 percent or more of Intermixs
shares (while discussions for the acquisition of MySpace are ongoing).
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Defendants contend their conduct was not in bad faith in light of the risk of a direct third-party
bid for MySpace, which would have precluded the 53 percent Intermix majority interest from exercising
the MySpace Option under the MSA to purchase the minority 47 percent interest. Accordingly, we
must consider whether the purported risk of a direct bid for MySpace, which would have frozen the
MySpace Option, dictates a conclusion that Defendants did not consciously disregard their duties as a
matter of law.
Defendants claim that the risk of such a freezing bid was real and that any delay in
consummating the merger with News Corp. threatened the loss of an opportunity to capture the value of
Intermixs crown jewel, MySpace, for their shareholders. (Joint Br. 11-15). At the July 15th board
meeting at 2 p.m., the directors discussed the status of conversations with News Corp. and Viacom and
considered the possibility that if either company viewed itself as unlikely to prevail in acquiring
[Intermix], it might submit an offer to acquire only MySpace in order to potentially suspend, at least
temporarily, [Intermixs] ability to exercise the MySpace option, thereby potentially jeopardizing
economically attractive transactions involving the Company including the potential News Corp.
transaction then under consideration. (Rosenblatt Decl. 31; J.A., Ex. 12). Rosenblatt and the other
directors have declared that they believed that the deadline provided by News Corp. by which to
execute the Merger Agreement was firm and that News Corp. was prepared to walk away if the deal was
not consummated by the opening of the stock market on July 18, 2005. (Rosenblatt Decl. 46).
To substantiate their purported concern over a potential freeze-out bid, Defendants suggest that a
bona fide third-party offer can only mean a fully executed agreement, as in the written merger
agreement executed on July 18, 2005. (Joint Br. 93-97). We reject Defendants assertion that this
proposed construction of bona fide third-party offer is compelled as a matter of law. Under Sections
7.1.1 and 7.1.5 of the MSA, a subsequent bid for MySpace or the Intermix control share, respectively,
will only be precluded if discussions regarding the bona fide third-party offer are ongoing. This
language in the agreement suggests that the term bona fide offer does not contemplate the final
execution of an agreement, at which point discussions would no longer be ongoing.
Even though we reject Defendants construction of the phrase bona fide third-party offer in the
MSA, we also reject Plaintiffs request that we rule as a matter of law on the purely legal question of
what constitutes a bona fide third-party offer under Sections 7.1.1 and 7.1.5 of the MSA. In our view,
Plaintiffs request misses the point. We are not here to construe the terms of the MSA, as such. Rather,
the question is whether there is a triable issue that Defendants, reasonably fearing being frozen out of
the MySpace Option, tilted the field in News Corp.s favor for the permissible purpose of maximizing
shareholder wealth, or whether Defendants had no such reasonable fear, but merely used the MySpace
Option as a rationalization for a selfish or idiosyncratic desire to favor News Corp. unrelated to securing
top dollar for the shareholders. We think the evidence fairly presents such triable issues as to
Defendants purported conscious disregard of their duties. In any event, our post hoc legal
determination cannot dictate the result of the question of the propriety of Defendants conduct that
indisputably occurred without the benefit of our construction of the MSA.
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Accordingly, we hereby DENY Plaintiffs Motion for Summary Judgment on this question of
contractual interpretation.
In light of all the reasons set forth above, we hereby DENY Defendants Motion for Summary
Judgment on the fiduciary duty claim with respect to Plaintiffs bad faith theory in the Revlon auction
context.
In the alternative, Defendants move for summary judgment on the second theory supporting the
breach of fiduciary duty claim, arguing that five of the eight Defendants (a majority) were not self-
interested or controlled by someone who was. The Delaware Supreme Court summarized the governing
law in Cinerama, Inc. v. Technicolor, Inc.:

A board of which a majority of directors is interested is not a neutral decision-making body.
See, e.g., Paramount Communications, Inc. v. QVC Network, Inc., Del.Supr., 637 A.2d 34, 42 n.
9 (1994) ([w]here actual self-interest is present and affects a majority of the directors approving
a transaction, a court will apply [the entire fairness test]); Aronson v. Lewis, Del.Supr., 473
A.2d 805, 812 (1984). A majority of disinterested directors is not independent if that majority
was dominated by an interested director. See Heineman v. Datapoint Corp., Del.Supr., 611 A.2d
950, 955 (1992). Similarly, the manipulation of the disinterested majority by an interested
director vitiates the majoritys ability to act as a neutral decision-making body. See Mills
Acquisition Co. v. Macmillan, Inc., Del.Supr., 559 A.2d 1261, 1279 (1989).
663 A.2d 1156, 1170 n.25 (Del. 1995). Accordingly, Plaintiff must make two showings. First, the
plaintiff must proffer evidence showing that those members of the board had a material self-interest in
the challenged transaction[,] and this must be evidence of a substantial self-interest suggesting
disloyalty, such as evidence of entrenchment motives, vote selling, or fraud. Goodwin, 1999 WL
64265, at *25 (citing Cede II, 634 A.2d at 362-63; Cinerama, 663 A.2d at 1169). Second, the plaintiff
must show that those materially self-interested members either: a) constituted a majority of the board; b)
controlled and dominated the board as a whole; or c) i) failed to disclose their interests in the transaction
to the board; ii) and a reasonable board member would have regarded the existence of their material
interests as a significant fact in the evaluation of the proposed transaction. Id. (citing Cinerama, 663
A.2d at 1168).
There were eight directors on the Intermix board at the time of the merger: Rosenblatt, Sheehan,
Mosher, Quandt, Brewer, Carlick, Moreau, and Woodward. Rosenblatt was conflicted due to his
interest in becoming the head of Fox Interactive Media. He aimed to receiv[e] a personal benefit from
a transaction not received by the shareholders generally. Cede II, 634 A.2d at 362; McGowan, 2002
WL 77712, at *2 (deeming contracts for post-merger employment in acquiring entity a disabling
conflict of interest); Goodwin, 1999 WL 64265, at *25 (finding a triable issue of fact regarding
whether [directors] expectations constituted a material interest in the merger not shared by the
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stockholders but granting summary judgment on lack of evidence that any material interest infected
deliberative process); Oliver, 2006 WL 1064169, at *19 ([A]s a consequence of their personal interest
in the negotiation of the Accord Agreement, in light of its potential impact on their rights under their
employment agreements, they also were self-interested.). Rosenblatt did not simply seek to retain his
current position, but sought to secure a coveted position at the top of a division at News Corp.
Accordingly, read in conjunction with other admissible evidence we have cited previously, this self-
interested motivation is suggestive of disloyalty.
Defendants argue that Rosenblatts interests were coterminous with the shareholders interests
because every additional dollar increase in the price paid per share would yield roughly an additional $2
million for Rosenblatt, a significant shareholder in Intermix. (Rosenblatt 51; Joint Statement of
Uncontroverted Facts D89). This argument, however, misses the point that Rosenblatt arguably stood
to gain more money and prestige by becoming the grand Puba of Fox Interactive Media. If Chris
DeWolfe, the former CEO of MySpace, stood to make a $30 million salary over two years if retained by
the merged entity (the Parties appear to agree on this point) (see Joint Br. 37 n.42, 41-42), a reasonable
jury could infer that Rosenblatt, as head of Fox Interactive Media, would have been offered an even
higher salary. As such, a per share price of well above $20 would be needed to offset Rosenblatts
conflicting interest in a $30 million (or higher) salary. (Id. at 41-42). Defendants only reiterate that
Rosenblatt stood to gain a greater benefit from each incremental increase in the per share price.
It is undisputed that no director instructed any other director on how to vote or was influenced
by how other board members voted. (Joint Statement of Uncontroverted Facts D95-96; Brewer Decl.
36; Carlick Decl. 38; Mosher Decl. 34; Moreau Decl. 36; Quandt Decl. 42; Rosenblatt Decl.
49; Sheehan Decl. 44; Woodward Decl. 34). The real question is whether each board member acted
independently and free of any manipulation by the interested members, principally Rosenblatt, i.e.
whether [e]ach Board Member exercised his independent judgment and consideration in deciding how
to vote. (Joint Statement of Uncontroverted Facts D97). In virtually identical declarations, the
directors claim they were not so manipulated. (Brewer Decl. 36; Carlick Decl. 38; Mosher Decl.
34; Moreau Decl. 36; Quandt Decl. 42; Rosenblatt Decl. 49; Sheehan Decl. 44; Woodward Decl.
34). On the other hand, Plaintiff argues that Rosenblatt deliberately misled the other board members
regarding the viability of the Viacom bid, steering them into approving the merger without waiting even
a couple more days to see if Viacom would top News Corp.s offer. (Joint Br. 26-27). Plaintiff cites an
email Mosher sent to Rosenblatt after one of the July 15th meetings, stating: We need to honor our
commitment to Fox and get this done. Viacom sounds like a pipedream. Fox sounds dead serious and
not screwing around. (J.A., Ex. 182). When asked about this email during his deposition, Mosher
testified that Rosenblatts periodic updates to the board had led him to believe [t]hat Viacom was less
urgent about the deal and hadnt taken the time or done the same level of work as Fox Network.
(Mosher Tr. at 25:24-26:1, 26:5-13). He also noted that: The discussion around Viacom that the
management team had led indicated that Viacom did not seem as willing to come to the table with an
offer for the company. (Id. at 25:1-4). This evidence is sufficient to raise an inference that
Rosenblatts presentation to the board may have been misleading as to Viacoms seriousness.
According to Moshers description of the board meetings, from the management team estimation
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15
Van Toffler of MTV emailed Rosenblatt on July 17 to note that his people were in the office
working around the clock so [Viacom could] put forth a number to [him that] week. (J.A., Ex. 202).
On the same day, Jason Hirschhorn of Viacom informed Chris DeWolfe that he has had a team of 20+
people . . . working for 72 hours straight on a significant bid[.] (Id., Ex. 200).
standpoint [sic], they were not inclined to make an offer for the company on the time line that we were
looking at. (Id. at 25:18-21). Viewing the evidence as a whole in the light most favorable to Plaintiff,
including the contrary evidence that Viacom was indeed very seriously interested in bidding on
Intermix,
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there are at least triable issues of fact as to whether Mosher was manipulated by a self-
interested director, Rosenblatt.
Moreover, based on Moshers description of the content of Rosenblatts presentations to the
board, the issue of manipulation is triable with respect to all of the other board members. Accordingly,
as a reasonable jury could potentially conclude that a majority of the directors was interested or
manipulated by someone who was, we hereby DENY Defendants Motion for Summary Judgment on
this second basis for Plaintiffs claim of breach of the duty of loyalty.
III. Count II: Violation of Section 14(a) of the Securities and Exchange Act of 1934 and SEC
Rule 14a-9
On August 25, 2005, Intermix issued a proxy statement (Proxy) concerning the News Corp.
merger. (Rosenblatt Decl. 53). On September 30, 2005, a majority of Intermix shareholders voted to
adopt the Merger Agreement. (Id. 55). Plaintiff alleges that there were five material omissions in the
Proxy. (J.A., Ex. 4). To succeed on a claim under 14(a) and Rule 14a-9, a plaintiff must establish
that (1) a proxy statement contained a material misrepresentation or omission which (2) caused the
plaintiff injury and (3) that the proxy solicitation itself, rather than the particular defect in the
solicitation materials, was an essential link in the accomplishment of the transaction. New York City
Employees Ret. Sys. v. Jobs, 593 F.3d 1018, 1022 (9th Cir. 2010) (citation and internal quotation marks
omitted); 15 U.S.C. 78j(b); 17 C.F.R. 240.14a-9(a) (No solicitation subject to this regulation shall
be made by means of any proxy statement, form of proxy, notice of meeting or other communication,
written or oral, containing any statement which, at the time and in the light of the circumstances under
which it is made, is false or misleading with respect to any material fact, or which omits to state any
material fact necessary in order to make the statements therein not false or misleading or necessary to
correct any statement in any earlier communication with respect to the solicitation of a proxy for the
same meeting or subject matter which has become false or misleading.).
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1. MySpaces Then-Current Revenue and Profits
Defendants first argue that Plaintiff failed to identify the alleged material omission of
MySpaces then-current revenue and profits as a basis for this Section 14(a) claim in its responses to
their interrogatories, thereby waiving this ground for his Section 14(a) claim. (Joint Br. 45 n.49). We
disagree. First, the CSAC clearly alleges that Defendants omitted the current revenues and profits
being generated by MySpace. (CSAC 130-33). Second, our July 14, 2008 Order clearly identified
this purported material omission as one of the five surviving bases for the Section 14(a) claim. (Dkt.
No. 110, at 5). Third, whether Plaintiff actually identified this alleged material omission in his Revised
Objections and Responses to Defendant VP Alpha Holdings IV, L.L.C.s First Set of Interrogatories is
unclear. (J.A., Ex. 28). Most of the response to Interrogatory No. 1 focused on the conspicuous
absence of internal projections for MySpaces prospective growth, not the companys then-current
revenue and profits. (Id. at 513-15). Plaintiff did not use the phrase current revenue and profits, but
rather, stated the following:
[S]hareholders . . . were never made aware of MySpaces true value or its true growth potential,
and had no way of comparing the information that was publicly available to managements
projections and growth assumptions. Thus, even though certain metrics that were used to track
MySpaces growth were available from some hard to find public sources (and were not made
available by the Company directly to its shareholders), shareholders and other members of the
investing public could not compare this data to the Companys internal data to determine if the
Investment Banks fairness opinions accurately reflected the explosive growth of MySpace.
(Id. at 515 (emphasis added)). Although somewhat opaque, we think the highlighted text above can
fairly be read to embrace internal data on MySpaces then-current financial position. Fourth, during the
Parties Local Rule 7-3 meet and confer, according to Defendants, Plaintiff did not identify this alleged
omission. (Joint Br. 45 n.49). Sheehan and Carlicks counsel has also declared that Plaintiff was asked
at the meeting whether they were pursuing any other misstatements or omissions, but he does not
declare that Plaintiffs counsel answered the question in the negative, thereby waiving this basis. (J.A.,
Ex. 30, Knaster Decl. 8-9). Fifth, Plaintiffs counsel also circulated a letter outlining the issues
discussed at the meet and confer, which did not list this purported material omission. (J.A., Ex. 35).
However, since this document purports to be an outline of the summary judgment arguments
Defendants identified, we decline to conclude that this document contemplated a waiver of the current
revenue and profits omission, which was so clearly identified in the CSAC (if not so clearly in the
interrogatory responses). Accordingly, as this argument was not waived, and Defendants have not made
any threshold showing entitling them to summary judgment on this basis, we DENY the Motion for
Summary Judgment as to this alleged material omission under Count II.
2. Intermix Managements 2005-2009 Financial Projections
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Plaintiff also alleges that Defendants failed to disclose Intermix managements internal financial
projections, and that this information was material. The Supreme Court set forth the materiality
standard for Section 14(a) claims in TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438 (1976): An
omitted fact is material if there is a substantial likelihood that a reasonable shareholder would consider
it important in deciding how to vote. Id. at 449. The Court added that there must be a substantial
likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as
having significantly altered the total mix of information made available. Id.
While federal courts generally agree that financial projections, forward-looking statements,
puffing, or other soft financial information need not be disclosed, this case is distinguishable. See,
e.g., Walker v. Action Indus., Inc., 802 F.2d 703, 707-08 (4th Cir. 1986); Flynn v. Bass Bros. Enters.,
Inc., 744 F.2d 978, 985 (3d Cir. 1984) (noting SEC policy favoring nondisclosure of financial
projections due to their unreliability and potential to mislead voting stockholders). In this case, the
Proxy disclosed Montgomery and TWPs fairness analyses but did not disclose the underlying
2005-2009 Intermix management projections used in formulating those opinions. In Zemel Family
Trust v. Philips International Realty Corp., No. 00 CIV. 7438 MGC, 2000 WL 1772608 (S.D.N.Y.
Nov. 30, 2000), the court honed in on this distinction:
A company has no duty to include speculative financial predictions in a proxy. However, if a
Proxy discloses valuation information, it must be complete and accurate. Both the proxy and the
[financial valuation] opinion address the value of the Third Avenue property and so [the
defendant] has a duty to fully and accurately disclose information related to the valuation.
Id. at *6.
Here, the total mix of information before the shareholders did not include any of the projected
growth rates. See SEC v. Mozilo, No. CV 09-3994-JFW, 2009 WL 3807124, at *10 (C.D. Cal. Nov. 3,
2009) ([T]he total mix of information only includes information that is readily or reasonably
available to an investor.); Koppel v. 4987 Corp., 167 F.3d 125, 132 (2d Cir. 1999) (same). A
reasonable shareholder would have wanted to independently evaluate managements internal financial
projections to see if the company was being fairly valued. [T]here is a substantial likelihood that a
reasonable shareholder would consider it important in making his decision. TSC Indus., Inc., 426 U.S.
at 449. As we previously noted in our July 14, 2008 Order, the Ninth Circuit has observed that:
investors are concerned, perhaps above all else, with the future cash flows of the companies in which
they invest. Surely, the average investors interest would be piqued by a companys internal projections
. . . . United States v. Smith, 155 F.3d 1051, 1064 n.20 (9th Cir. 1998). Delaware courts concur. In a
case that also considered a discounted cash flow (DCF) analysis in a proxy statement, the same
technique utilized by Montgomery and TWP, the court held that the underlying projections informing a
DCF analysis completed for a fairness opinion were clearly material. See In re Netsmart Techs.
Sholders Litig., 924 A.2d 171, 203 (Del. Ch. 2007) ([P]rojections of this sort are probably among the
most highly-prized disclosures by investors. Investors can come up with their own estimates of
discount rates or . . . market multiples. What they cannot hope to do is replicate managements inside
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Even though this decision concerned a state law duty of disclosure claim, the materiality
standard is the same as set forth in TSC Industries. In re Netsmart Techs., 924 A.2d at 199-200.
view of the companys prospects.).
16
materiality of the omission of Intermixs internal financial projections.
Accordingly, Defendants Motion for Summary Judgment is DENIED as to this alleged material
omission.

3. Outstanding Derivative Lawsuits
Plaintiff also argues that Defendants failed to disclose one pending derivative lawsuit, LeBoyer
v. Greenspan, et al., No. CV 03-5603-GHK (JTLx), and the fact that shareholder derivative standing
would be extinguished as to both LeBoyer and Greenspan v. Salzman, the two derivative lawsuits
pending at the time the Proxy was issued. The Proxy merely stated: Following the effective time of the
merger, Fox Interactive Media will use commercially reasonable efforts to take such actions as are
within its control so as to obtain the dismissal of Greenspan v. Salzman, et al., LASC No. BC328558;
provided that it will not be required to make any payments to any of the plaintiffs (or their counsel) in
such litigation to do so. (J.A., Ex. 4, at 332).
Defendants concede that they did not disclose the existence of the pending LeBoyer action.
(Joint Br. 56 n.67). However, Defendants maintain that this lawsuit had been disclosed in Intermixs
prior public filings (see J.A., Exs. 47 (Form 10-Q), 3 (Form 10-K)), which they argue were incorporated
by reference in the Proxy. A document may be incorporated into proxy materials by reference, at the
least, in circumstances where no reasonable shareholder can be misled. Federated Bond Fund v.
Shopko Stores, Inc., No. 05 CV 9923(RO), 2006 WL 3378696, at *2 (S.D.N.Y. Nov. 17, 2006) (quoting
Kramer v. Time Warner Inc., 937 F.2d 767, 777 (2d Cir. 1991)). We do not think this is a case where
no reasonable shareholder can be misled. Id. Moreover, [c]orporate documents that have not been
distributed to the shareholders entitled to vote on the proposal should rarely be considered part of the
total mix of information reasonably available to those shareholders. United Paperworkers Intl Union
v. Intl Paper Co., 985 F.2d 1190, 1199-1200 (2d Cir. 1993) (rejecting notion that public reports and
10-K Report submitted to SEC were part of total mix). Accordingly, whether the undisclosed
derivative lawsuit constituted material information which was not part of the total mix of information
is at the very least a triable question.
With respect to the disclosed Greenspan v. Salzman action, Defendants argue they had no
obligation to further announce the extinguishment of derivative standing. In Delaware, with only two
exceptions not applicable here, a cash-out merger extinguishes the standing of shareholder plaintiffs to
maintain a derivative suit. Feldman v. Cutaia, 951 A.2d 727, 731 (Del. 2008) (citing Lewis v.
Anderson, 477 A.2d 1040, 1049 (Del. 1984)). This is so because a plaintiff must be a stockholder at the
time of the alleged wrongdoing and throughout the litigation. Lewis, 477 A.2d at 1046. The failure to
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disclose the potential extinguishment of a derivative lawsuit is material. See Lichtenberg v. Besicorp
Group Inc., 43 F. Supp. 2d 376, 387 (S.D.N.Y. 1999). In Lichtenberg, the court noted that the proxy
stated that the shareholder plaintiffs may not be able to maintain their derivative suits following the
merger. Id. The court found the word may to be affirmatively misleading, because it implie[d] a
possibility that the plaintiffs will be able to continue the actions as shareholder derivative suits, when
that was in fact foreclosed as a matter of New York law. Id. Here too, the disclosure above is arguably
misleading as well, as it did not affirmatively disclose that the Greenspan v. Salzman plaintiffs
derivative standing would be extinguished under Delaware law. (J.A., Ex. 4, at 332). Instead, it only
stated that Fox Interactive Media would seek the dismissal of the action and would do so only if it was
not required to pay the plaintiffs or their counsel. (Id.). Accordingly, it is at least triable whether the
above language was misleading as to the extinguishment of derivative standing, which was material
information.
Accordingly, we also hereby DENY Defendants Motion for Summary Judgment as to this
alleged material omission.

4. Alleged Material Omissions Concerning Viacom and the MySpace Option
Plaintiff has also argued that the directors made two other material omissions concerning: (1)
Viacoms ability to make an offer for Intermix or its ability to conduct due diligence; and (2) the
likelihood of a direct bid for MySpace, which would freeze the MySpace Option. This subpart of the
Section 14(a) claim essentially seeks to penalize Defendants for their failure to disclose that Viacom
was allegedly stonewalled or otherwise prevented from making a bid during the auction. It also seeks to
hold Defendants liable for purportedly exaggerating the threat of a direct bid for Intermixs crown
jewel, MySpace.
However, these purported material omissions are nothing more than the building blocks of
Plaintiffs fiduciary duty claim. Mandating the disclosure of the above allegations would compel
Defendants to essentially accuse themselves of breaching their fiduciary duties. In Koppel v. 4987
Corp., the court dismissed Rule 14a-9 claims based on its conclusion that these allegations constitute
no more than state law breach of fiduciary duty claims under a thin coat of federal paint. 167 F.3d at
133. The court explained:
We have long recognized that no general cause of action lies under 14(a) to remedy a simple
breach of fiduciary duty. See Field v. Trump, 850 F.2d 938, 947 (2d Cir. 1988) (quoting
Maldonado v. Flynn, 597 F.2d 789, 796 (2d Cir. 1979)), cert. denied, 489 U.S. 1012, 109 S.Ct.
1122, 103 L.Ed.2d 185 (1989); cf. Santa Fe Indus., Inc. v. Green, 430 U.S. 462, 477, 97 S.Ct.
1292, 51 L.Ed.2d 480 (1977) (refusing to construe 10(b) to prohibit instances of corporate
mismanagement . . . in which the essence of the complaint is that shareholders were treated
unfairly by a fiduciary). Although the Supreme Court has explained that explicit, conclusory
statements concerning the wisdom of a proposed action are actionable, see generally Virginia
Bankshares, 501 U.S. 1083, 111 S.Ct. 2749, there is no 14(a) violation for merely failing to
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inform shareholders that a proposed action is not subjectively the most beneficial to an entitys
shareholders: Subjection to liability for misleading others does not raise a duty of
self-accusation; [rather] it enforces a duty to refrain from misleading. Id. at 1098 n. 7, 111
S.Ct. 2749. The securities laws do not effectively require [an issuer] to accuse [it]sel[f] of
breach of fiduciary duty. Id.
Id. at 133-34. The D.C. Circuit has arrived at the same conclusion: Though Santa Fe does not bar a
claim related to a breach of fiduciary duty if there has been a material misrepresentation or omission, a
plaintiff may not bootstrap a claim of breach of fiduciary duty into a federal securities claim by
alleging that directors failed to disclose that breach of fiduciary duty. Kas v. Fin. Gen. Bankshares,
Inc., 796 F.2d 508, 513 (D.C. Cir. 1986) (citations omitted).
In this case, the Proxy unambiguously disclosed Rosenblatts self-interested motivations,
anticipated future employment with News Corp., and the immediate vesting of all his unvested options.
(J.A., Ex. 4, at 272, 310, 312). The Proxy also disclosed that Viacom (Company D) conducted due
diligence and remained interested in making a bid for Intermix, but was not then in a position to make
a proposal [prior to] a [Viacom] board meeting later that week . . . . (Id. at 287, 289). Plaintiff claims
this disclosure was misleadingly incomplete, because it did not mention Rosenblatts alleged evasion of
Viacom executives and the alleged deliberate hampering of Viacoms due diligence efforts. (CSAC
147-48). Plaintiff claims that these omissions left shareholders with the false impression that Viacom
was given a full and fair opportunity to bid for the Company. (Id. 148). Plaintiff also claims that
Defendants misrepresented Viacom and News Corp.s ability to block a competing bid by freezing the
MySpace Option. (CSAC 149-51 (citing J.A., Ex. 4, at 284, 288)). As there is no duty of self-
accusation, these proffered material omissions cannot support a Section 14(a) claim. Indeed, the
allegedly omitted details are not necessarily facts, but rather factual allegations, and unless and until
judgment is granted in Plaintiffs favor, their omission from the Proxy simply could not have been
material. In Brown v. Perrette, No. CIV.A 13531, 1999 WL 342340 (Del. Ch. May 14, 1999), the court
explained this distinction:
Although a flawed bidding process would be a material fact, [the plaintiff] must prevail on the
substantive claim, that the process was flawed, before the alleged flaw becomes material. Once
[the plaintiff] prevails on her Revlon claim, the alleged disclosure claim becomes superfluous
because the defendants breach of duty becomes the wrong for which an appropriate remedy
must be crafted.
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17
Even though Brown analyzes the relationship between a state law fiduciary duty claim and a
state law duty of disclosure claim, brought on the same grounds, the principles articulated are equally
applicable to a Section 14(a) claim premised on the same allegations supporting a breach of fiduciary
duty claim.
18
Notwithstanding our ruling, nothing in the above discussion precludes Plaintiff from
introducing evidence of these omissions in the course of his breach of fiduciary duty claim.
Id. at *10-11
17
; see also Stroud v. Grace, 606 A.2d 75, 84 n.1 (Del. 1992) (We recognize the
long-standing principle that to comport with its fiduciary duty to disclose all relevant material facts, a
board is not required to engage in self-flagellation and draw legal conclusions implicating itself in a
breach of fiduciary duty from surrounding facts and circumstances prior to a formal adjudication of the
matter.) (citation omitted).
Accordingly, since self-flagellation omissions are not material, we hereby GRANT
Defendants Motion for Summary Judgment as to the purported material omissions concerning Viacom
and the MySpace Option.
18
B. Negligence
In Desaigoudar v. Meyercord, 223 F.3d 1020 (9th Cir. 2000), the Ninth Circuit stated that a
Rule 14a-9 plaintiff must demonstrate that the misstatement or omission was made with the requisite
level of culpability . . . . Id. at 1022 (citation omitted). To succeed on a Section 14(a)/Rule 14a-9
claim, a plaintiff need only establish that the defendant was negligent in drafting and reviewing the
proxy statement. Gerstle v. Gamble-Skogmo, Inc., 478 F.2d 1281, 1300-01 (2d Cir. 1973) (holding that
negligence suffices for claim based on misleading proxy statement and that plaintiffs are not required
to establish any evil motive or even reckless disregard of the facts). This holding was reaffirmed in the
oft-cited case of Wilson v. Great American Industries, Inc., 855 F.2d 987 (2d Cir. 1988): Liability can
be imposed for negligently drafting a proxy statement. Id. at 995 (citing Gerstle, 478 F.2d at 1301
n.20). As a matter of law, the preparation of a proxy statement by corporate insiders containing
materially false or misleading statements or omitting a material fact is sufficient to satisfy the Gerstle
negligence standard. Id. Accordingly, a director may be found negligent under Section 14(a) for a
failure to notice material omissions upon reading a proxy statement. See, e.g., Parsons v. Jefferson-
Pilot Corp., 789 F. Supp. 697, 703 (M.D.N.C. 1992) (Mr. Eagle [a senior in-house lawyer] is not the
only negligent party in this action. Each of the directors who reviewed the proxy statement is equally as
negligent for failing to notice the use of the word restricted ten times in the document.).
Here, each of the Defendants has declared that he was involved in the process of preparing,
reviewing, and disseminating the Proxy Statement to Intermix shareholders. (Sheehan Decl. 53
(internal citation omitted); Carlick Decl. 46; Brewer Decl. 39; Mosher Decl. 37; Moreau Decl.
39; Quandt Decl. 45; Rosenblatt Decl. 53; Woodward Decl. 37). Construing this sworn statement
in the light most favorable to Plaintiff, we read it to mean each director personally reviewed the Proxy
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before it was disseminated to the Intermix shareholders. Since we have denied summary judgment with
respect to three of the proffered material omissions in the Proxy, and Defendants have admitted to
participating in the process of preparing, reviewing, and disseminating that Proxy, we must also
DENY summary judgment with respect to the element of negligence. If Plaintiff can persuade a jury as
to both materiality and Defendants participation in the preparation and/or review of the Proxy at trial,
then a finding of negligence will flow from those findings.
C. Damages
1. Benefit-of-the-Bargain Damages
This theory of damages is wholly inapposite to this case. A request for benefit-of-the-bargain
damages seeks the value that was represented as coming to the shareholder under a particular
transaction, such as a merger. In re Real Estate Assocs. Ltd. Pship Litig., 223 F. Supp. 2d 1142, 1152
(C.D. Cal. 2002). [B]enefit-of-the-bargain damages are available in the limited instance where a
misrepresentation is made in the proxy solicitations as to the consideration to be forthcoming upon an
intended merger. Id. (citation omitted). As the Ninth Circuit has stated, [t]he benefit-of-the-bargain
measure of damages allows a plaintiff to recover the difference between what the plaintiff expected he
would receive . . . and the amount [the plaintiff] actually received . . . . DCD Programs, Ltd. v.
Leighton, 90 F.3d 1442, 1449 (9th Cir. 1996) (quoting Cunha v. Ward Foods, Inc., 804 F.2d 1418, 1426
(9th Cir. 1986) (emphasis in original)). Here, the Proxy made no misrepresentation as to the per share
price offered to and ultimately received by the class members. The Proxy stated the class members
would receive $12 cash for each common share, and it is undisputed that they received $12 cash for
each common share. (J.A., Ex. 4, at 319; Joint Statement of Uncontroverted Facts D128). Accordingly,
this damages theory is not viable. We GRANT summary judgment with respect to this damages theory.

2. Out-of-Pocket Losses
a. Legal Framework
Out-of-pocket losses are the standard measure of damages for Rule 10b-5 and Section 14(a)
claims. In re DaimlerChrysler AG Secs. Litig., 294 F. Supp. 2d 616, 626 (D. Del. 2003) (citing Tse v.
Ventana Med. Sys., Inc., 123 F. Supp. 2d 213, 222 (D. Del. 2000) (Tse II)). Out-of-pocket losses
constitute the difference between the fair value of all that the seller received and the fair value of what
he would have received had there been no fraudulent conduct. Tse II, 123 F. Supp. 2d at 222 (quoting
Affiliated Ute Citizens of Utah v. U.S., 406 U.S. 128, 155 (1972)) (quotation marks omitted). The Ninth
Circuit concurs: The out-of-pocket rule fixes recoverable damages as the difference between the
purchase price and the value of the stock at the date of purchase. Wool v. Tandem Computers Inc.,
818 F.2d 1433, 1437 (9th Cir. 1987), impliedly overruled in part on other grounds by Hollinger v. Titan
Capital Corp., 914 F.2d 1564, 1577-78 (9th Cir. 1990) (en banc) (citation omitted). The guiding
philosophy of the out-of-pocket theory of damages . . . is to award not what the plaintiff might have
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gained, but what he has lost by being deceived into the purchase. Id. at 1437 n.2 (citation and internal
quotation marks omitted). Since this theory of damages is premised on an intrinsic valuation of the
company as it existed at the time of the merger, Plaintiff has produced expert witness testimony
consisting of two different financial valuations of Intermix/MySpace. Defendants have moved to
exclude that testimony as inadmissible.
b. Defendants Motion to Exclude; Plaintiffs Motions to Strike
Defendants move to exclude Plaintiffs proffered expert testimony by Dr. G. William Kennedy
as inadmissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Plaintiff
has moved to strike both this Motion to Exclude and Defendants Motion for Summary Judgment,
arguing that this Daubert challenge was not included in the joint brief on the Cross-Motions for
Summary Judgment and therefore violates our Order Re: Summary Judgment Motions. (Dkt. No. 123,
Oct. 30, 2008). We reject this argument. First, Defendants included virtually the same arguments
attacking Dr. Kennedys testimony in the Joint Brief. (Mot. 77-80). Second, the Motion to Exclude is a
challenge to the admissibility of evidence crucial to one of Plaintiffs damages theories. As we may
only consider admissible evidence in ruling on the Parties Cross-Motions, nothing in the Order Re:
Summary Judgment Motions precludes a party from filing a separate motion to exclude certain evidence
from the Courts consideration. Third, it is common for litigants to move for the exclusion of certain
evidence at the summary judgment stage. See, e.g., In re Hanford Nuclear Reservation Litig., 292 F.3d
1124, 1131 (9th Cir. 2002) (Defendants linked their summary judgment motion to dozens of in limine
motions challenging the admissibility of plaintiffs expert witnesses, commonly known as Daubert
motions.) (citation omitted); OHanlon v. Matrixx Initiatives, No. CV 04-10391-AHM (JTLx), 2007
WL 2446496, at *1, 4 (C.D. Cal. Jan. 3, 2007) (considering motions in limine concurrently with motion
for summary judgment). Accordingly, we hereby DENY Plaintiffs Motions to Strike the Motion to
Exclude and the Motion for Summary Judgment.
We now consider the merits of the Motion to Exclude. Defendants attack the reliability of Dr.
Kennedys application of his chosen methodologies for estimating the value of MySpace: (1) discounted
cash flow (DCF) analysis; and (2) comparable public company analysis. Federal Rule of Evidence
702 states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of an opinion or otherwise, if
(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied the principles and methods
reliably to the facts of the case.
In Daubert, the Supreme Court construed Rule 702 to require district courts to ensur[e] that an experts
testimony both rests on a reliable foundation and is relevant to the task at hand. 509 U.S. at 597. The
Court noted that [p]ertinent evidence based on scientifically valid principles will satisfy those
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demands but cautioned that [t]he focus . . . must be solely on principles and methodology, not on the
conclusions that they generate. Id.; id. at 595. To assist courts in assessing whether the proffered
testimony is scientifically valid, the Supreme Court set forth a non-exhaustive list of factors, including:
whether the theory or technique employed by the expert is generally accepted in the scientific
community; whether it's been subjected to peer review and publication; whether it can be and has been
tested; and whether the known or potential rate of error is acceptable. Daubert v. Merrell Dow
Pharms., Inc., 43 F.3d 1311, 1316 (9th Cir. 1995) (Daubert II) (citing Daubert, 509 U.S. at 593-94).
The gatekeeping obligation Daubert requires us to fulfill applies not only to testimony based
on scientific knowledge, but also to testimony based on technical and other specialized
knowledge. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999) (quoting Fed. R. Evid.
702). Because there are areas of expertise, such as the social sciences in which the research, theories
and opinions cannot have the exactness of hard science methodologies, trial judges are given broad
discretion to determine whether Dauberts specific factors are, or are not, reasonable measures of
reliability in a particular case. United States v. Simmons, 470 F.3d 1115, 1123 (5th Cir. 2006) (citing
Kumho, 526 U.S. at 153) (internal citations and quotation marks omitted). Courts have stated that [i]n
such instances, other indicia of reliability are considered under Daubert, including professional
experience, education, training, and observations. Id. Though perhaps not to the same degree as
psychology or social psychology, financial valuation is not an exact scientific methodology.
Estimations, predictions, and inferences based on professional judgment and experience are key
ingredients in any valuation. In a variety of contexts, the circuit courts have noted that economic
valuation is less than an exact science. See, e.g., In re Arnold & Baker Farms, 85 F.3d 1415, 1421
(9th Cir. 1996) (Experience has taught us that determining the value of real property at any given time
is not an exact science. Because each parcel of real property is unique, the precise value of land is
difficult, if not impossible, to determine until it is actually sold.); Metlyn Realty Corp. v. Esmark, Inc.,
763 F.2d 826, 830, 835 (7th Cir. 1985) (noting that [t]he process of valuation is inexact and that DCF
analyses are highly sensitive to assumptions about the firms costs and rate of growth, and about the
discount rate).

With respect to the DCF analysis, the principal difference from Montgomery and TWPs DCF
fairness analyses is Dr. Kennedys MySpace growth rate projections for 2007-2008 and 2008-2009.
(Baron Decl., Ex. 3, Expert Report of Dr. G. William Kennedy [Kennedy Report], May 20, 2009).
Intermix management projected the following revenue growth rates for the company: 107 percent for
2005-2006; 67 percent for 2006-2007; 20 percent for 2007-2008; and 15 percent for 2008-2009. (J.A.,
Ex. 242). Montgomery used these projections for its analysis without any modification. (Baron Decl.,
Ex. 3, at 39). TWPs projections differed slightly from managements projections: 107 percent for
2005-2006; 67 percent for 2006-2007; 21 percent for 2007-2008; and 10 percent for 2008-2009. (Id.).
Kennedy adopted managements growth rate projections for 2005-2006 and 2006-2007, derived a
deceleration rate of 62.06 percent from those figures, and then used that same deceleration rate to
calculate different revenue growth rates for 2007-2008 and 2008-2009, 41.36 percent and 25.67 percent,
respectively. (Id. at 39-40). Based on these new figures, Kennedy calculated new Earnings Before
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Interest, Taxes, Depreciation and Amortization (EBITDA) figures for 2008 and 2009 for MySpace.
(Id. at 40). Finally, [u]sing a discount rate of 19% and a terminal EBITDA multiple of 18[,] Dr.
Kennedy calculated a value of $962.4 million after subtracting the $69 million option exercise price
from the present value of MySpaces Cash Flows. (Id.). The 19 percent discount rate was chosen
based on the discount rates used in the Montgomery and TWP fairness opinions, which ranged from 17
percent up to 25 percent. (Id. at 41).
Defendants make several arguments against the reliability of this procedure. They argue first
that Dr. Kennedy has insufficiently justified his use of a uniform deceleration rate from 2005 to 2009
and the 18x terminal multiple. (Mot. 9-13). Defendants claim that Dr. Kennedy has offered no coherent
reason for his rejection of managements projections for 2007-2008 and 2008-2009. (Id. at 11). They
note that he has merely declared that Montgomery and TWPs projections were unreasonably low and
not consistent with the very rapid rates of growth currently observed at the time of the Proxy and
expected in the social networking sector at the time. (Id. at 11 (quoting Moriarty Decl., Ex. 7,
Kennedy Supplemental Decl. 6) (emphasis omitted)). Yet, Defendants neglect to mention that Dr.
Kennedy explained his use of higher growth rates for 2007-2008 and 2008-2009 by noting that
MySpace revenues consistently outperformed Intermix managements own projections in each of the
first four months of 2005. (Baron Decl., Ex. 3, Kennedy Report, at 35). This is at least one reasoned
basis for his adjustments to what he viewed as demonstrably conservative forecasts. (Id.). After all,
the entire endeavor is forecasting, not hard science. Projections themselves cannot be tested for
accuracy; they represent hopes rather than the results of scientific analysis. Zenith Elecs. Corp. v.
WH-TV Broad. Corp., 395 F.3d 416, 420 (7th Cir. 2005); see also In re Orchards Village Invs., LLC,
No. 09-30893-rldll, 2010 WL 143706, at *11 (Bankr. D. Or. Jan. 8, 2010) ([P]rojecting future financial
results from the operations of a business is not an exact science.).
Additionally, Defendants argue that: Kennedy provides no theoretical or empirical justification
for applying this incredibly aggressive 18x terminal multiple, except his statement that it is based on
forward EBITDA multiples observed in comparable publicly traded guideline companies referenced in
the comparable public company analysis below. (Mot. 12-13 (quoting Moriarty Decl., Ex. 1, Kennedy
Report, at 15) (quotation marks omitted)). They assert that Dr. Kennedy only relied on the most
profitable of the 14 comparable companies relied upon by Montgomery and TWP, including Google
and Yahoo!, and could not summon a single company that had grown at the rate projected with his
revenue growth rates and terminal value. (Id. at 13 (citing Moriarty Decl., Ex. 1, Kennedy Report, at
25; id., Ex. 6, Kennedy Tr. at 123:4-24)).
While these two challenges may be objections to Kennedys conclusions on his DCF analysis,
they do not render his methodology unreliable. Rather, the deviation from managements projections,
the use of an arguably aggressive terminal multiple, and the alleged selection of the most profitable
guideline companies are proper subjects for cross-examination. Defendants do not take issue with the
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19
Lippe v. Bairnco Corp., 288 B.R. 678, 689 (S.D.N.Y. 2003) (Many authorities recognize that
the most reliable method for determining the value of a business is the discounted cash flow (DCF)
method.) (citations omitted); see also Childrens Broad. Corp. v. The Walt Disney Co., 245 F.3d 1008,
1018 (8th Cir. 2001) (describing DCF analysis as an uncontroversial accounting method).
widely accepted DCF methodology;
19
nor do they attack any input that is identical to those used in the
Montgomery and TWP projections (for instance, the 2005-2006 and 2006-2007 projections or the
discount rate which fell within the same range in the investment banks fairness analyses). Even in light
of Dr. Kennedys less than fully reasoned explanations for his choices, given the inherent element of
judgment in these financial valuation analyses, we cannot say that he failed to identify any reliable
principles and methods or to apply those principles and methods reliably to the facts of [this] case.
FED. R. EVID. 702. A court may admit somewhat questionable testimony if it falls within the range
where experts might reasonably differ, and where the jury must decide among the conflicting views.
S.M. v. J.K., 262 F.3d 914, 921 (9th Cir. 2001) (quoting Kumho, 526 U.S. at 153).
Defendants also argue that there is a fundamental flaw in Dr. Kennedys DCF analysis, since it
allegedly yields an average growth rate into perpetuity above that of the U.S. economy as a whole
(12.74 percent versus a historical average of 6.5 percent). (Mot. 13-16; Cornell Decl. in Supp. of Mot.
to Exclude 5). Arguing that this outcome violates a key tenet of financial valuation, Defendants cite to
Professor Aswath Damodarans treatise, which states: The fact that a stable growth rate is sustained
forever, however, puts strong constraints on how high it can be. Since no firm can grow forever at a
rate higher than the growth rate of the economy in which it operates, the constant growth rate cannot be
greater than the overall growth rate of the economy. (Defs. Request for Judicial Notice [RJN], Ex.
B, ASWATH DAMODARAN, DAMODARAN ON VALUATION: SECURITY ANALYSIS FOR INVESTMENT AND
CORPORATE FINANCE 145 (John Wiley & Sons, Inc. 2d ed. 2006)). We have reviewed Defendants
expert Dr. Bradford Cornells declaration in support of this Motion to Exclude, in which he argues that
Dr. Kennedys use of an 18x EBITDA forward multiple is unreasonable . . . . (Cornell Decl. in Supp.
of Mot. to Exclude 5). To cross-check the outcome of Dr. Kennedys DCF analysis, Dr. Cornell used
three hypothetical scenarios, in which MySpaces revenue growth rate declines by 2 percent, 1 percent,
and 0.5 percent, respectively, each year until it reaches 6.5 percent, the average annual growth rate in
nominal Gross Domestic Product between 1928 and 2008. (Id. 8-10 (citing Defs. RJN, Ex. F,
Bureau of Economic Analysis News Release, July 31, 2009)). Using Dr. Kennedys assumptions and
the Gordon Growth Model (id. 11-13), Dr. Cornell calculated the following total present values as of
January 1, 2010 and implied EBITDA multiples for each scenario: (1) for the 2 percent annual
reduction, $549.13 million and a 4.7x multiple; (2) for the 1 percent annual reduction, $606.18 million
and a 5.2x multiple; and (3) for the 0.5 percent annual reduction (what he calls the most aggressive
scenario), $695.34 million and a 6.0x multiple. (Id. 14-19; see also id., Exs. 5, 6). Applying the 19
percent discount rate used by Dr. Kennedy, Dr. Cornell calculates discounted values as of mid-2005 for
each scenario, including: (1) $251.02 million; (2) $277.10 million; and (3) $317.8 million. (Cornell
Decl. in Supp. of Mot. to Exclude 20). Finally, Dr. Cornell concludes that even assuming an instance
where MySpaces revenues grow at a rate exceeding that of the economy as a whole for fifteen years
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after 2010, i.e., until 2025, Dr. Kennedys implied EBITDA multiple of 18x is three times too high
when compared with even [Dr. Cornells] most aggressive implied EBITDA multiple of 6.0x to give a
reasonable estimate of MySpaces value as of mid-2005. (Id. 21 (emphasis original)).

Though a jury might conclude at trial that Dr. Kennedys selection of an 18x EBITDA multiple
was overzealous, Dr. Cornells calculations do not demonstrate that Dr. Kennedys methodology is
fundamentally unreliable. At base, Dr. Cornells challenge to this DCF analysis constitutes an attack on
Dr. Kennedys projections as to MySpaces annual growth rates and as to how long those growth rates
can be sustained. Since Dr. Cornell is in essence attacking the reasonableness of Dr. Kennedys
projections, the generation of which we have already noted is not an exact science, we conclude that his
arguments do not render Dr. Kennedys methodology fundamentally unreliable and therefore
inadmissible. Dr. Cornell himself has testified that an adjustment in the terminal multiple based on the
experts assessment of the companys growth potential is appropriate. (Baron Decl., Ex. 2 (Cornell Tr. I
at 167:19-168:3)). Additionally, Dr. Cornell rejected the proposition that any time that the implied
perpetual growth rate exceeds the growth of the economy, that the terminal value multiple used would
be unreliable[.] (Id., Ex. 1 (Cornell Tr. II at 21:21-22:1)). He further explained that its just a
question of how much [the implied perpetual growth rate] exceeds [the economy rate,] and there is no
standardized method to determine whether the difference between the two rates is unreasonable. (Id.
at 22:3-24:6; id. at 23:12-25 (Q[:] And then do they use judgment to see whether its reasonable to
them or not reasonable to them? . . . . Is there some written scale as to how much variation there can be
before, in your view, it becomes reasonable or unreasonable; or is that a judgment of the analyst? A[:]
Well, theres not a written scale . . . . And these calculations Dr. Kennedy used struck me as
[unreasonable].)). These statements suggest that Defendants Motion turns on a difference of
professional opinion, not some fatal methodological flaw.
Based on our review of the papers and evidence submitted, if anything is clear, it is that DCF
analysis is, in not insubstantial measure, an inherently subjective and predictive methodology, which
relies in part on the experts judgment and experience. Indeed, neither Party has presented the Court
with any accepted, standardized methodology for deriving the required inputs for DCF analysis.
Accordingly, we are forced to conclude that DCF analysis is sufficiently pliable so that it may
reasonably lead to a wide breadth of plausible conclusions. Dr. Kennedys conclusions and the bases
therefor may ultimately be subject to legitimate attacks on cross-examination, but we perceive no
fundamental unreliability in his analysis that would counsel in favor of outright exclusion. We agree
that our gatekeeper role under Daubert is not intended to supplant the adversary system or the role of
the jury. DSU Med. Corp. v. JMS Co., Ltd., 296 F. Supp. 2d 1140, 1147 (N.D. Cal. 2003) (citation,
quotation marks, and alteration omitted). It is readily apparent that Defendants have thoroughly
researched the case law on DCF methodology, and in all but one of the several cases they cite, the
expert witnesss DCF analysis was considered at trial and then rejected by the court. Compare In re
Iridium Operating, LLC, 373 B.R. 283, 350-52 (Bankr. S.D.N.Y. 2007) (rejecting DCF analyses
following trial); In re Emerging Commcns, Inc. Sholders Litig., No. Civ.A. 16415, 2004 WL 1305745,
at *14-15 (Del. Ch. June 4, 2004) (same); Gray v. Cytokine Pharmasciences, Inc., No. Civ.A. 17451,
2002 WL 853549, at *8 (Del. Ch. Apr. 25, 2002) (same), with Kipperman v. Onex Corp., 411 B.R. 805,
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844-49 (Bankr. N.D. Ga. 2009) (simultaneously deciding summary judgment and granting motion to
exclude an experts testimony as unreliable under Rule 702, where the expert rejected managements
projections and generated his own DCF analysis).

With respect to Dr. Kennedys comparable public company analysis, Defendants argue that he
only used the projected MySpace revenue and EBITDA figures for 2006, ignoring the 2005 numbers
without explanation. (Mot. 17-18 (citing Moriarty Decl., Ex. 1, Kennedy Report, at 24)). They argue
Dr. Kennedys explanation for choosing to disregard the 2005 figures was inadequate ipse dixit. When
asked if 2005 was an aberrant year for MySpace, he replied: No, but it wasnt who the company was
expected to be. (Kennedy Tr. at 129:19-22). Furthermore, Defendants argue that Kennedy cherry-
picked only the most profitable guideline companies referenced in Montgomery and TWPs fairness
analyses, instead of applying an average of the multiples applicable to several companies. (Mot. 18). In
support of this latter contention, they cite another treatise, which states: In employing the guideline
publicly traded company method, every effort should be made to select as broad a base of comparative
companies as is reasonably possible, as well as to give full consideration to every possible factor in
order to make the comparison more meaningful. (Defs. RJN, Ex. E, PRATT, REILLY AND SCHWIEHS,
THE ANALYSIS AND APPRAISAL OF CLOSELY HELD COMPANIES 233 (2000) (PRATT, et al.) (citation
and internal quotation marks omitted)). Defendants contend that Dr. Kennedy erred in whittling down
the broader base of comparable public companies identified by Montgomery and TWP to only Google
and Yahoo!, seasoned companies with proven revenue model[s] that experienced explosive growth.
(Mot. 19-20). Though this appears to strike Defendants as litigation-driven, we are instructed to
evaluate the methodology, not the ultimate determination reached by the expert. Our sole purpose is to
determine the reliability of a particular expert opinion through a preliminary assessment of the
methodologies underlying the opinion. DSU Med. Corp., 296 F. Supp. 2d at 1147 (citing Daubert, 509
U.S. at 592-93). Of course, we must consider whether the experts are proposing to testify about
matters growing naturally and directly out of research they have conducted independent of the litigation,
or whether they have developed their opinions expressly for purposes of testifying. Daubert II, 43
F.3d at 1317. However, there is no evidence in the record that Dr. Kennedy deviated from his standard
methodology for the purposes of testifying in this case.
Dr. Kennedy explained his method as follows. First, he analyzed the companies selected by
Montgomery and TWP and restricted his selection to those comparable companies. (Moriarty Decl.,
Ex. 1, Kennedy Report, at 18-20). Montgomery had chosen twelve companies (Google, Yahoo!, CNET
Networks, iVillage, Monster Worldwide, Aptimus, ValueClick, Vertrue, Church & Dwight Co.,
Herbalife Ltd., Jarden Corp., and Natures Sunshine Products) based on the following sectors: online
advertising, online content and networking, online direct marketing, and offline direct marketing. (Id. at
19). TWP had chosen fourteen guideline companies (Bankrate, CNET, iVillage,
1-800-FLOWERS.COM, Blue Nile, Celebrate Express, Netflix, NutriSystem, Overstock.com, Provide
Commerce, Aptimus, Marchex, ValueClick, and Vertrue) based on three sector categories: content,
eCommerce, and direct marketing. (Id.). In identifying a narrower set of comparable companies, Dr.
Kennedy explained that he considered these to be the most similar operational, financial, and growth
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guideline publicly traded companies. (Id. at 20). He justified his deviation from the investment banks,
beginning with TWP, as follows:
In implementing the public guideline company method, TWP selected guideline Companies
based on all of the businesses of Intermix on a combined basis. . . . Montgomery selected
guideline companies based on each business within Intermix because the three businesses have
different economics and peer groups. As a result, Montgomery selected only Online
Advertising and Online Content and Networking to apply to MySpace. We agree with
Montgomerys approach that each Intermix business segment, and specifically MySpace has
different growth and profit potential and therefore, different multiples would be appropriate to
apply to MySpace and the other Intermix business segments. Within TWPs comparables, only
the Content group is applicable.
(Id. at 20-21). Accordingly, Dr. Kennedy selected the following six comparable companies: Bankrate,
CNET, iVillage, Google, Yahoo!, and Monster. (Id. at 21). Then, based on separate MySpace
financial performance information, Dr. Kennedy narrowed the field down to Google and Yahoo!,
contending those were the only two companies with comparable revenue and EBITDA growth metrics.
(Id. at 21-25). Dr. Kennedy concluded that MySpace [fell] into the higher profitability tier of the six
guideline companies, and therefore, he could discount the 2005 figures for MySpace and utilize an
average of the multiples indicated by Google and Yahoo. (Id. at 24-25).
There is nothing in the record to support the proposition that selecting comparable companies
based on (1) services provided, (2) revenue metrics, and (3) EBITDA metrics renders a comparable
public company analysis fundamentally unreliable. We will not exclude this evidence simply because
Defendants dislike Dr. Kennedys conclusion that the only guideline companies left standing in the final
analysis were Google and Yahoo!. Even Defendants cited treatise urges the selection of as broad a
base of comparative companies as is reasonably possible. (Defs. RJN, Ex. E, PRATT, et al., supra, at
233 (emphasis added)). Dr. Kennedy concludes, in effect, that the remaining comparable companies are
as broad a base of comparable companies as is reasonably possible. Defendants disagreement with this
conclusion is properly explored on cross-examination.
Accordingly, we hereby DENY Defendants Motion to Exclude Dr. Kennedys testimony. As
Dr. Kennedys testimony is sufficient to at least raise triable issues on damages from out-of-pocket
losses, we also DENY Defendants Motion for Summary Judgment on this issue.
3. Lost Opportunity Damages
As a final alternative, Plaintiff seeks lost opportunity damages based on the allegedly
impending Viacom bid. When actual losses cannot be demonstrated, some circuit courts have
recognized an alternate theory of establishing damages, the lost opportunity theory.
DaimlerChrysler, 294 F. Supp. 2d at 627 (internal quotation marks omitted). Lost opportunity damages
represent loss of a possible profit or benefit, [defined as] an addition to the value of ones investment,
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unless the loss is wholly speculative. Tse II, 123 F. Supp. 2d at 223 (internal citations omitted;
alteration in original). Lost opportunity damages are not wholly speculative if they are based on
certain, fixed and demonstrable profits thwarted by a defendants alleged fraud. DaimlerChrysler,
294 F. Supp. 2d at 627 (quoting Rudinger v. Ins. Data Processing, Inc., 778 F. Supp. 1334, 1341 (E.D.
Pa. 1991)). Further, lost opportunities damages are not available where the fact of the loss, i.e.
whether there was any lost opportunity at all, is wholly speculative. Id. (quoting Tse v. Ventana Med.
Sys., Inc., 297 F.3d 210, 220 (3d Cir. 2002) (Tse III)). Finally, [t]he risk of uncertainty as to [the]
amount of damages is cast on the wrongdoer and it is the duty of the fact finder to determine the amount
of the damages as best he can from all the evidence in the case. Tse III, 297 F.3d at 220 (quoting
Gould v. American-Hawaiian S.S. Co., 535 F.2d 761, 781-82 (3d Cir. 1976)).
In support of this theory of damages, Plaintiff argues that Viacom was contemplating a bid
above $750 million, citing a single internal Viacom email, in which Jason Hirschhorn states: My guess
is that News [Corp.] is going to take the $12/share ask from Richard Rosenblatt and add a premium of
10-20%. $700-$750 million . . . . Dont know if offer will be binding from NEWS [Corp.]. But I
belioeve [sic] they will deliver it anywhere from today-monday. (J.A., Ex. 192). Viacom never in fact
put in a bid for Intermix. Therefore, the relevant question on this motion for summary judgment is
whether there is a triable issue of material fact as to whether Viacom would have submitted a bid. This
question must be answered in the negative, since it is undisputed that Viacoms board simply refused to
engage in a public bidding war with its competitor News Corp. Freston, Viacoms CEO, testified that
the Viacom board members were adamant on this point: There already had been an offer and it wasnt
ours and it didnt look like there was an opportunity to counter bid or if there was, we would have to do
so in a public way and the board had said on the spot, no, lets not get involved in that. (Freston Tr. at
35:11-15; see also West Tr. at 123:22-24 (We had some discussion and we ended up saying that it
wasnt worth pursuing a counterbid strategy.)). Therefore, given this unwavering refusal to engage in
a public bidding war following the July 18th merger announcement, the Proxy, including whatever
alleged material omissions, issued in late August had no effect whatsoever on Viacoms willingness to
place a bid for Intermix. Accordingly, the allegedly defective Proxy cannot support the notion that
Intermix shareholders missed out on an opportunity with Viacom.
While it may be theoretically possible that Viacom would have entered a subsequent bid had the
Intermix shareholders not been allegedly deceived by the defective Proxy and had they rejected the
merger with News Corp., we conclude that under the totality of the evidence, Plaintiffs showing is no
more than speculative. Moreover, mere rejection of the News Corp. bid by the shareholders would not
necessarily have eliminated the specter of a public bidding war that Viacom abhorred. Nothing
prevented News Corp. from countering any Viacom bid with a counterbid. This is precisely the type of
speculation and indeterminacy that is insufficient to create a triable issue on the existence of any lost
opportunity.
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We have no occasion to consider and therefore express no opinion on whether the lost
opportunity theory of damages premised on a potential Viacom bid would be viable with respect to the
breach of fiduciary duty claim which is based on evidence beyond the alleged material omissions from
the Proxy. The Parties have not addressed this issue in their Cross-Motions.
Accordingly, we GRANT Defendants Motion for Summary Judgment as to this theory of
damages.
20
On his Section 14(a) claim, Plaintiff may ONLY proceed at trial on his theory of out-of-
pocket losses based on an intrinsic valuation of Intermix at the time of the merger.
IV. Count III: Violation of Section 20(a) of the Securities and Exchange Act of 1934
Section 20(a) of the 1934 Act provides that: Every person who, directly or indirectly, controls
any person liable under any provision of this chapter or of any rule or regulation thereunder shall also
be liable jointly and severally with and to the same extent as such controlled person to any person to
whom such controlled person is liable, unless the controlling person acted in good faith and did not
directly or indirectly induce the act or acts constituting the violation or cause of action. 15 U.S.C.
78t(a). The Parties agree that if there is no primary liability under Section 14(a), there can be no control
person liability. (Joint Br. 87). However, since we have denied summary judgment with respect to
three of the bases for Count II, we likewise DENY the Motion for Summary Judgment with respect to
Count III.
V. Conclusion
Plaintiffs Motion for Summary Judgment is DENIED. Defendants Motion for Summary
Judgment is hereby GRANTED in part and DENIED in part as set forth in this Order. Within thirty
(30) days hereof, counsel SHALL file a joint status report setting forth their views regarding further
mediation in light of these rulings.
IT IS SO ORDERED.
-- : --
Initials of Deputy Clerk Bea
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EUNICE HUTHART,
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Plaintiff,
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AND MOTION FOR
INTERVENTION
1
2
3
INDEX
4
6 I- INTRODUCTION
pg. 4
7
11-BACKGROUND ph. 4
8
9
III CONCLUSION
p. 22
1 0
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CASE LAW CITED
2
Cir. 2008)
pg. 10
4
pg.]]
Pg. 12
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6
pg. 12
pg. 12
pg. 12
8
pg. 13
9
Pg.13
10
pg. 13
pg. 14
11
12
Crawford v.
pg. 15
13
L Ed 22, 61 S Ct 115, 132 ALR 741 (1944);
pg. 15
14
pg. 15
15
16
Annot 84 ALR2d]4]2 (1962)
pg. 15
17
pg. 21
*8 (ND. Cal. Dec. 1, 2005))
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4 1489, 1494 (9thCir. 1995)
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5
IV. CONCLUSION
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20 DATED: May 2, 2014
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G R E E N S P A N ,
) C . A . N o . 9 5 6 7 - M E
Plaintiff, )
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Defendants
1
Cases Cited
pg.3
I I NTRODUCTI ON
pg. 4
pg. 6
12g.6
pg. 7
pg. 12
2
CASES CITED
pg. 4
(9th Cir. 1997)
pg. 5
(3dCir. 1995)
pg. 6
pg. 8
Marcel v. See, Inc
pg. 10
pg. 10
3
SEARCH AUCTION
I INTRODUCTION
Members.
4
1995).
Inc, and MSV LLC.
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the
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of $1.09 billion.
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stating,
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IX- CONCLUSION:
Angeles
15
15
October 30, 2003.
16
2003.
websites
defendants)
17
for MySpace.
July 2005
August 2005
September 2005
October 2005
November 2005
December 2005
January 2006
February 2006
March 2006
April 2006
May2006
June 2006
July 2006
August 2006
September 2006
21.21M uniques
21.81M uniques
21.6M uniques
24.25M uniques
24.68M uniques
32.2M uniques
35.5M uniques
37.34M uniques
41.88M uniques
48.03M uniques
51.44M uniques
52.34M uniques
54.52M uniques
55.78M
$14.807
$22.1 Million
Value
MSFT$800M
OFFER
$25.0 Million
Value
GOOGLE $900
OFFER
jul




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Present: The Honorable MICHAEL W. FITZGERALD, U.S. District J udge

Deputy Clerk: Court Reporter:
Rita Sanchez Not Reported

Attorneys Present for Plaintiff: Attorneys Present for Defendant:
None Present None Present

Proceedings (In Chambers): ORDER GRANTING DEFENDANTS MOTION TO
DISMISS FOR FORUM NON CONVENIENS [41],
DENYING MOTION TO INTERVENE AS MOOT
[61], AND DENYING EX PARTE APPLICATION
TO CONTINUE MOTION TO INTERVENE AS
MOOT [65]

This matter is before the Court on the Motion to Dismiss Under FRCP Rules
12(b)(2), 12(b)(6), and for Forum Non Conveniens (the Motion), filed by Defendants
News Corporation (News Corp.), NI Group Limited f/k/a News International
Limited (NI), and News Group Newspapers Limited (NGN). (Docket No. 41).
The Court read and considered the papers filed on this Motion, and held a hearing on
February 24, 2014. Following additional briefing, the Court GRANTS the Motion.
The underlying facts here do not seem to be in dispute, at least by these parties.
It appears, and certainly is alleged, that Plaintiff Eunice Huthart has suffered a
grotesque invasion of her privacy. This harm arose for no reasons other than Hutharts
successfully pursuing a demanding career associated with Los Angeles and having a
friend who likewise is at the summit of success in an industry associated with Los
Angeles. Nonetheless, for the reasons explained in this Order, the Court concludes that
Huthart must obtain her relief from the courts of England and Wales.
Background
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On J une 13, 2013, Huthart initiated this action by filing a Complaint in this
Court. (Docket No. 1). The Complaint alleges that Huthart is a citizen of the United
Kingdom and resides in Liverpool, England. (Compl. 4). But between early J anuary
2004 to mid-J une 2004, and from mid-March 2005 to mid-May 2005, Huthart lived
and worked in Los Angeles, California as a professional stunt double for actress
Angelina J olie. (Compl. 4). The Complaint alleges that during this time period,
various British media companies, primarily agents working for two British
newspapers, The Sun and News of the World, unlawfully intercepted her voice-mail
messages on cellular telephone systems to obtain information about J olie. (Compl.
11, 12, 16-21, 45-68). The Complaint alleges that these actions were part of a large-
scale hacking scheme (Compl. 11-44), which have received much media attention
and will be referred to in this Order as the Hacking Scheme.
The Complaint alleges six claims: (1) violation of the Stored Communications
Act, 18 U.S.C. 2701, 2707; (2) violation of the Wiretap Act, 18 U.S.C. 2510,
2511, 2520; (3) violation of the California Constitution, art. I, 1; (4) violation of
California Penal Code 630, 631, 632, 632.7, 637(2)(a); (5) violation of California
Civil Code 1708.8(b), 1708.8(d), 1708.8(e); and (6) a common law claim for
intrusion into private affairs.
On September 20, 2013, Defendants filed this Motion. On December 10, 2013,
Huthart filed an Opposition to Defendants Motion to Dismiss (the Opposition).
(Docket No. 49). On J anuary 22, 2014, Defendants filed a Reply in Support of
Defendants Motion to Dismiss (the Reply). (Docket No. 54). The briefs complied
with the deadlines and page limits set by this Court. (See Docket Nos. 40, 47).
After the hearing on February 24, 2014, the Court ordered supplemental briefing
on two issues: (1) whether Englands managed litigation system set up to deal with
claims arising from the Hacking Scheme, the Mobile Telephone Voicemail
Interception Litigation (MTVIL), would accept Hutharts claim; and (2) whether
Huthart would otherwise be able to bring a lawsuit in the regular civil litigation system
in England. (Docket No. 56).
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On March 17, 2014, Defendants filed a Supplemental Briefing Pursuant to the
Courts February 25, 2014 Order (Defendants Brief). (Docket No. 57). That same
day, Huthart also filed a Supplemental Memorandum of Position and Authorities in
Opposition to Defendants Motion to Dismiss (Hutharts Brief). (Docket No. 58).
Both briefs were timely filed.
Evidentiary Objections
Both sides have submitted numerous evidentiary objections. (See Docket Nos.
50-1, 50-2, 50-3, 50-4, 50-5, 50-6, 54-9, 54-10, 54-11, 54-12). Most of these
objections are not aimed at the evidence relevant to the forum non conveniens analysis,
on which this Order turns. To the extent that the objections are relevant to the forum
non conveniens analysis, they challenge very specific details for lack of foundation.
However, the Hacking Scheme and the investigations and legal proceedings related to
it are set forth in sufficient detail in the Complaint itself. Moreover, these events have
been the subject of significant media attention worldwide. Furthermore, it does not
appear that the parties dispute Hutharts access to the regular civil litigation system of
England, as opposed to the specialized venues established to address the Hacking
Scheme. Accordingly, the Courts analysis and conclusion would have not differed,
regardless of whether the objections were sustained are overruled.
Therefore, both parties objections are OVERRULED as moot.
Requests for Judicial Notice
Pursuant to Federal Rule of Evidence 201, the Court may take judicial notice of
a fact that is not subject to reasonable dispute because it: (1) is generally known
within the trial courts territorial jurisdiction; or (2) can be accurately and readily
determined from sources whose accuracy cannot reasonably be questioned. Fed. R.
Evid. 201(b).
Defendants filed two requests for judicial notices: (1) Request for J udicial
Notice in Support of Motion to Dismiss (Defendants First Request) (Docket No. 41-
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8), and (2) Request for J udicial Notice in Support of Defendants Reply in Support of
Motion to Dismiss (Defendants Second Request). (Docket No. 54-1). Of the
documents for which Defendants seek judicial notice, only two are relevant to the
forum non conveniens analysis.
First, Exhibit 1 of the Declaration of Christa J ane Band (the Band
Declaration) (Docket No. 41-2) is a court order in the consolidated litigation in
England relating to the Hacking Scheme. (Band Decl., Ex. 1). Because that litigation
is related to this one, the Court order is appropriate for judicial notice. See United
States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004) (citing United States v.
Wilson, 631 F.2d 118, 119 (9th Cir. 1980)) (stating that a court may take judicial notice
of court records in another case).
Second, Exhibit 2 of the Band Declaration is the Terms of Reference of the
Leveson Inquiry, which investigated the Hacking Scheme. (Band Decl., Ex. 2).
Exhibit 2 was taken from the Leveson Inquirys website, and is appropriate for judicial
notice. See Matthews v. Natl Football Council, 688 F.3d 1107, 1113 & n.5 (9th Cir.
2012) (taking judicial notice of relevant statistics available on the NFLs website);
OToole v. Northrop Grumman Corp., 499 F.3d 1218, 1225 (10th Cir. 2007) (It is not
uncommon for courts to take judicial notice of factual information found on the world
wide web.).
Therefore, Defendants First Request is GRANTED as to these two Exhibits.
The remainder of Defendants First Request and Defendants Second Request is
DENIED as irrelevant.
On December 10, 2013, Huthart filed a Request for J udicial Notice in
Opposition to Motion to Dismiss (Hutharts Request). (Docket No. 49-1). Of the
documents for which Huthart seeks judicial notice, items 1-7, 13, and 15 are relevant to
the forum non conveniens analysis. These documents consist of relevant public
documents found online and documents filed in relevant litigation. For the reasons
stated above, both of these categories of documents are appropriate for judicial notice.
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Therefore, Hutharts Request is GRANTED as to items 1-7, 13, and 14. The
remainder of Hutharts Request is DENIED as irrelevant.
Motion to Dismiss
The Motion seeks dismissal of this action on four grounds: (1) forum non
conveniens; (2) lack of personal jurisdiction, under Federal Rule of Civil Procedure
12(b)(2), as to NI and NGN, which are citizens of the United Kingdom; (3) failure to
state a claim, under Rule 12(b)(6), as to News Corp., on the ground that the Complaint
fails to establish a basis to pierce the corporate veil; and (4) failure to state a claim,
under Rule 12(b)(6), on the grounds that two of the statutes governing Hutharts claims
do not apply to extraterritorial conduct, three of her claims lack sufficient factual
allegations, and all claims are time-barred. (Mot. at 6-7).
This Court can examine the merits of the forum non conveniens argument before
addressing the jurisdictional issues. The Supreme Court has stated:
We hold that a district court has discretion to respond at once to a defendants
forum non conveniens plea, and need not take up first any other threshold
objection. In particular, a court need not resolve whether it has authority to
adjudicate the cause (subject-matter jurisdiction) or personal jurisdiction over
the defendant if it determines that, in any event, a foreign tribunal is plainly the
more suitable arbiter of the merits of the case.
Sinochem Intl Co. Ltd. v. Malaysia Intl Shipping Corp., 549 U.S. 422, 425, 127 S. Ct.
1184, 167 L. Ed. 2d 15 (2007).

Because the proposed alternative forum in this action is England, the appropriate
analysis is the forum non conveniens doctrine, as opposed to a motion to transfer
pursuant to 28 U.S.C. 1404. See Atl. Marine Constr. Co., Inc. v. U.S. Dist. Court for
W. Dist. of Tex., 571 U.S. __, 134 S. Ct. 568, 580 (2013) (stating that 1404 is the
appropriate mechanism when the transferee forum is within the federal court system,
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but that courts should apply the doctrine of forum non conveniens in cases seeking
transfer to a nonfederal forum); Sinochem Intl, 549 U.S. at 430 (same).

Under the forum non conveniens doctrine, the party moving to dismiss bears the
burden of showing that (1) there is an adequate alternative forum for this action, and
(2) the balance of private and public interest factors favors dismissal. See Sinochem
Intl, 549 U.S. at 429 (summarizing the legal standard for forum non conveniens).
Adequate Alternative Forum
The first requirement for a forum non conveniens dismissal is that an adequate
alternative forum is available to the plaintiff. Lueck v. Sundstrand Corp., 236 F.3d
1137, 1143 (9th Cir. 2001). The Supreme Court has held that an alternative forum
ordinarily exists when the defendant is amenable to service of process in the foreign
forum. Id. Moreover, [t]he foreign forum must provide the plaintiff with some
remedy for [her] wrong in order for the alternative forum to be adequate. Id.
Here, England provides an adequate alternative forum.
With regard to jurisdiction and service of process, England would have
jurisdiction over NI and NGN because they are incorporated, registered, and
headquartered in England. (Declaration of Craig Wyndham Orr QC 22-24 (the Orr
Declaration) (Docket No. 41-4)). England would also have jurisdiction over News
Corp., the only non-English Defendant, because it has agreed to waive any challenge to
personal jurisdiction in the English courts. (Orr Decl. 25; see also Mot. at 8).
Moreover, it appears that England may have jurisdiction over News Corp., even if it
did not submit to personal jurisdiction there. (Orr Decl. 26-27).
With regard to the entity consenting to personal jurisdiction, Defendants explain
that on J une 28, 2013, News Corp. separated into two independent publicly traded
companies. (Declaration of Gerson A. Zweifach 2 (the Zweifach Declaration)
(Docket No. 41-7)). The entity named in the Complaint, News Corp., changed its
name to 21st Century Fox, Inc. (21st Century) and continued to be the parent
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company of most of News Corp.s entertainment-related entities. (Zweifach Decl. 2).
A new company was also created bearing the name News Corporation (New News
Corp.) and became the parent company of most of News Corp.s news media-related
entities. (Zweifach Decl. 2). News Corp.s successor, 21st Century, agrees to waive
any challenge to personal jurisdiction. (Zweifach Decl. 3).
In the supplemental briefing, Huthart argues for the first time that she cannot
bring her claims against all Defendants in England because the real party in interest is
not 21st Century, but New News Corp., which did not consent to jurisdiction.
(Hutharts Brief at 2-4). Huthart argues that the print media entities involved in the
Hacking Scheme are now attributed to New News Corp., that it can be inferred that the
bulk of relevant documentary evidence is maintained by New News Corp., and that
Securities and Exchange Commission filings confirm that New News Corp. is liable
for civil claims arising out of the hacking scheme. (Hutharts Brief at 3).
In response, Defendants filed an Objection to Plaintiffs Supplemental
Memorandum and Request to File Supplemental Declaration (Defendants
Objection) on March 21, 2014, after the deadline for supplemental briefing. (Docket
No. 59). Defendants object to Hutharts insinuation that Defendants misled the Court
when they asserted that 21st Century would consent to personal jurisdiction.
(Defendants Objection at 1). Defendants explain that 21st Century was the entity that
consented to personal jurisdiction because News Corp., the defendant named in the
Complaint, essentially became 21st Century. (Id.). Defendants also request leave to
file the Second Declaration of Gerson A. Zweifach (the Second Zweifach
Declaration) (Docket No. 59-1), attesting that if Huthart also sues New News Corp. in
England, New News Corp. would consent to personal jurisdiction. (Second Zweifach
Decl. 3; see also Defendants Objection at 2).
Huthart, in turn, objects to the Defendants Objection and the Second Zweifach
Declaration because they were filed after the deadline for supplemental briefing. (See
Plaintiffs Objection to Defendants March 21, 2014 Filing and Request That It Be
Stricken from the Record at 2 (Docket No. 60)).
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While Huthart is correct that these documents were filed late, the Court refrains
from striking them and permits the filing of the Second Zweifach Declaration.
Defendants Objection responded to a new argument in Hutharts Brief, which was
arguably outside the scope of the supplemental briefing. Moreover, the Court would
have likely asked for a response from Defendants to clarify which is the correct entity
to consent to personal jurisdiction. The Court also notes that this issue could have
been raised in the Opposition because the first Zweifach Declaration was filed with the
Motion. However, the Court does not treat the issue as waived. Rather, it is resolved
for the reasons stated.
In any event, there appears to be no dispute at this point that both 21st Century
and New News Corp. would be willing to submit to personal jurisdiction in England.
Therefore, Huthart would be able to sue all Defendants in England. Contrary to
Hutharts contention (see Opp. at 6), the adequate alternative forum requirement will
be satisfied when the defendant is amenable to process in the other jurisdiction.
Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255, n. 22, 102 S. Ct. 252, 70 L. Ed. 2d 419
(1981) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S. Ct. 839, 91 L. Ed.
1055 (1947), superseded by statute on other grounds).
It further appears that England can provide some remedy to Huthart. Defendants
described two avenues in England specifically created to handle claims related to the
Hacking Scheme: (1) a voluntary compensation scheme, and (2) the MTVIL system in
the English High Court. (Mot. at 4).
Huthart has submitted the Declaration of Mark Lewis (the Lewis Declaration)
(Docket No. 49-3), which establishes that the first avenue is now closed. (Lewis Decl.
7). Therefore, the Court does not consider the voluntary compensation scheme as an
available venue.
Huthart also argues that the second avenue, the MTVIL, is unavailable to her.
(Hutharts Brief at 5). The MTVIL is a managed litigation system that was instituted
in the English courts to deal with claims arising from the Hacking Scheme.
(Declaration of Hugh Tomlinson 7 (the Tomlinson Declaration) (Docket No. 58-3);
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see also Band Decl. 4-8; Third Declaration of Craig Wyndham Orr QC 4-5 (the
Third Orr Declaration) (Docket No. 57-2)). The MTVIL provides consolidated case
management, expedited discovery from the London Metropolitan Police Service and
NGN, mechanisms to obtain discovery from third parties, early assessment of claims,
and procedures for managing litigation costs. (Band Decl. 7). All cases filed in the
English civil courts that fall within the scope of the MTVIL are automatically referred
to the MTVIL. (Id.). Based on the criteria for MTVIL claims (Third Orr Decl. 5),
Hutharts claims likely fall within the scope of the MTVIL.
The litigation of claims in the MTVIL has proceeded in tranches. The current
tranche of claims, Tranche 2, closed on J anuary 31, 2014. (Tomlinson Decl. 10-11).
Huthart also asserts that the managing judge for the MTVIL is disinclined to further
extend the cut-off date for Tranche 2, and no new claims can join Tranche 2.
(Hutharts Brief at 5 (citing Tomlinson Decl. 11-12)). Moreover, the MTVIL has
not yet created a Tranche 3. (Tomlinson Decl. 16). If Huthart were to file claims in
the English courts that fell within the scope of the MTVIL, her claims would be stayed
pending the resolution of the Tranche 2 claims. (Tomlinson Decl. 13-15; see also
Third Orr Decl. 8-9). Defendants assert that Huthart would nonetheless be able to
apply to the court to lift the stay and to have her claim included with the Tranche 2
claims set for trial on October 1, 2014. (Third Orr Decl. 9).
The above facts do not demonstrate that the MTVIL is unavailable to Huthart.
They simply indicate that if Hutharts claims were referred to the MTVIL, their
resolution may be delayed because they were filed after Tranche 2 closed. Huthart has
cited no legal authority establishing that such a stay or delay of resolution renders a
forum inadequate.
Even if the MTVIL is no longer open to Huthart, Defendants have established
that the regular civil litigation processes of the courts of England and Wales remain
open to Huthart. (Reply at 4). Defendants expert attests that [i]f a claim does not
qualify for inclusion in the MTVIL, it will be able to be brought in any division of the
High Court in the normal way. (Third Orr Decl. 7). In fact, Huthart acknowledges
that it is technically correct that if no MTVIL Tranche 3 is established, then [she] can
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file suit in the English Civil Court Proceedings. (Hutharts Brief at 6). However,
Huthart objects that proceeding in the regular civil court would be the litigation
equivalent of purgatory because her claims would be stayed pending the resolution of
MTVIL claims. (Hutharts Brief at 7 & n.4). As noted above, the fact or possibility
that Hutharts claims might be stayed does not render England an unavailable or
otherwise inadequate forum. In our court system, for example, claims are routinely
stayed to facilitate efficient administration, to avoid duplicative actions, and for other
docket management reasons. Such stays do not mean that our courts are closed to
those claims.
Therefore, Defendants have established that both the English court system and
the MTVIL are available to Huthart to bring her claims. Moreover, England would
provide some remedy for Hutharts claims, as discussed below.
English law recognizes claims for breach of confidence and misuse of private
information. (Orr Decl. 11-16). Under English law, remedies for these claims
include compensatory damages, account of profits, and injunctive relief. (Orr Decl.
17). Moreover, England has enacted a number of statutes, which prohibit the
interception of communications over telecommunication systems, the unauthorized
disclosure of personal data, and the unauthorized accessing of data held on a computer.
(Orr Decl. 18). Therefore, English law provides some remedy for Hutharts injuries.
Huthart argues that the MTVIL is an inadequate forum because it is structured to
address claims against NGN and Glenn Mulcaire (who is the main NGN investigator
implicated in the Hacking Scheme), whereas she has also alleged claims against NI and
News Corp. (Hutharts Brief at 8). However, Defendants have established that claims
against NI and News Corp. would not be barred from the MTVIL, so long as Hutharts
claims meet the basic criteria. (Third Orr Decl. 6; see also Third Declaration of
Christa J ane Band 6 (Docket No. 57-3) (noting that other claimants in the MTVIL
have named defendants in addition to NGN and Mulcaire)).
Huthart also argues that the MTVIL is inadequate because its system of paired
settlement offers is designed to favor early settlement and creates a disincentive for
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claimants to go to trial. (Opp. at 5; Lewis Decl. 16-24). However, the fact that the
MTVIL incentivizes early settlement demonstrates that some remedy is available to
Huthart, and nothing indicates that this remedy would be so inadequate as to constitute
no remedy at all. Moreover, Huthart could simply choose to proceed in the general
civil court system, which does not appear to operate under the paired settlement
system.
Huthart also argues that English law offers no remedy for a significant portion of
her claims. (Hutharts Brief at 7-8). In particular, she argues that England provides no
cause of action to hold NI and News Corp. directly liable because they knew or should
have known about NGNs hacking activity, failed to stop NGNs hacking, and
participated in the cover-up of the hacking. (Hutharts Brief at 8; Tomlinson Decl.
20). Again, this argument could have been raised in the Opposition, but was not.
On the merits, this argument appears to be more artful, than substantive. Huthart
has not explained what she means, or what claim for relief under American law would
hold NI and News Corp. directly liable for such actions. The Complaint does not
allege a separate claim for relief specifically asserting that NI and News Corp. are
liable for activities that they knew or should have known about, failed to stop, or
participated in covering up. Rather, it seems the gravamen of the Complaint is that all
Defendants participated in the Hacking Scheme. Each claim is alleged against all
Defendants, and many of the claims turn on intentional or willful conduct. (See, e.g.,
Compl. 75, 76, 78, 81, 83, 100-104, 120). Therefore, based on the allegations in the
Complaint, it appears that there would be liability against all Defendants for their
actions. Hutharts expert, Hugh Tomlinson, is certainly well credentialed. (See
Tomlinson Decl. 3-4). But he has not opined, nor would the Court find it credible if
he did, that if all the allegations in the Complaint were true, NI and News Corp. would
escape liability under English law. In light of the Complaints allegations that all
Defendants committed the alleged acts, it is immaterial that there is no cause of action
in England to hold NI and News Corp. liable for activities they knew or should have
known about, failed to stop, or participated in covering up.
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Huthart also argues that England is an inadequate forum for her claims under the
Stored Communications Act and the Wiretap Act. (Opp. at 4). In the supplemental
briefing, Huthart further explains that the Stored Communications Act permits a claim
for unauthorized accessing, obtaining, interfering with, or preventing access to a stored
wired communication, without requiring that the person committing such acts actually
obtain or listen to the content of the wire communication. (Hutharts Brief at 9). In
contrast, [n]o cause of action independent of actually listening to the communication
or otherwise obtaining the content of the communication exists in England and Wales.
(Tomlinson Decl. 22). Therefore, Huthart argues that she cannot litigate the subject
matter of her claim in England. (Hutharts Brief at 9).
The Court is likewise not persuaded that Huthart would be unable to litigate the
subject matter of her claims in England. The Complaint alleges that Mulcaire and
other unidentified investigators working for Defendants reset the pin number and
password on the voicemails of their targets, and then used and exploited the
unlawfully-obtained information to note, record and/or transcribe voice-mail
messages. (Compl. 19). Mulcaire and other unidentified investigators then
provided the direct mobile numbers, passwords, and pin numbers to NGN journalists
to enable them to hack and/or listen to, or to read transcripts of voice-mail messages
of targets. (Compl. 20). Mulcaire and others used the information in these voice-
mail messages in the preparation of articles or stories to be published by the Sun and
News of the World. (Compl. 19, 20). The Complaint then alleges that Mulcaire
and other investigators and journalists engaged in the above activities with regard to
Hutharts cellphone, intercepting her voice-mail messages in order to obtain the
private and confidential information on them. (Compl. 54).
In other words, the subject matter of Hutharts claim is not limited to the
allegation that Defendants and their agents simply accessed or interfered with her
voicemails. Rather, those allegations are part and parcel of a scheme, in which
Defendants and their agents are alleged to have intercepted and obtained the
information in Hutharts voicemails to use such information in tabloid stories.
Tellingly, the Ninth Circuit has described the offense of accessing a communication
under the Stored Communications Act as a lesser included offense of the offense of
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intercepting a communication under the Wiretap Act. United States v. Smith, 155 F.3d
1051, 1058 (9th Cir. 1998). Defendants have established that English law provides a
cause of action for the unauthorized interception of communications under the
Regulation of Investigatory Powers Act of 2000. (Orr Decl. 18).
Huthart analogizes this case to Phoenix Canada Oil Co. Limited v. Texaco, Inc.,
78 F.R.D. 445, 456 (D. Del. 1978), in which the court found Ecuador to be an
inadequate forum, in part, because no remedy existed under Ecuadorian law for two of
three legal theories advanced by the complaint. (See Hutharts Brief at 7-8). However,
the Court does not find Phoenix analogous. Here, it appears that England does not
recognize only one of six claims for relief in the Complaint. Even so, that one claim is
intertwined with and could be considered a lesser included offense of another claim,
interception of communications, which is recognized under English law.
Therefore, the fact that Huthart may not have an additional claim against
Defendants for accessing her voicemails does not render England inadequate. See
Gemini Capital Group, Inc. v. Yap Fishing Corp., 150 F.3d 1088, 1092 (9th Cir. 1998)
([T]he fact that Plaintiffs could not assert a RICO cause of action under Yap or FSM
[Federated States of Micronesia] law does not preclude a forum non conveniens
dismissal.). It is generally irrelevant that the courts in the other jurisdiction may
apply substantive law that is less favorable to Huthart. Piper Aircraft, 454 U.S. at 249
(stating that dismissal may not be barred solely because of the possibility of an
unfavorable change in law). The district court [i]s not required to ask whether
Plaintif[f] could bring this lawsuit in [the alternate forum], but rather, whether [the
alternate forum] offers a remedy for their losses. Lueck, 236 F.3d at 1143 (finding
that New Zealand was an adequate alternative foreign, where New Zealand law did not
permit Plaintiffs to maintain the exact suit as in the United States, but New Zealand
nonetheless provided a remedy for Plaintiffs loses). There is simply no evidence that
the remedy available in England would be so clearly inadequate or unsatisfactory, that
it is no remedy at all. Lueck, 236 F.3d at 1143 (quoting Lockman Found. v.
Evangelical Alliance Mission, 930 F.2d 764, 768 (9th Cir. 1991)).
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Accordingly, Defendants have established that England is an adequate
alternative forum for Hutharts claims.
Private Interest Factors
Given the existence of an adequate alternative forum, a district court must
consider the balance of private and public interest factors to determine whether to
dismiss on grounds of forum non conveniens. Lockman Found., 930 F.2d at 769.
[U]nless the balance [of private and public interest factors] is strongly in favor
of the defendant, the plaintiffs choice of forum should rarely be disturbed. Gulf Oil,
330 U.S. at 508. However, a foreign plaintiffs choice of forum merits less deference
than that of a plaintiff who resides in the selected forum, and the showing required for
dismissal is reduced. Lueck, 236 F.3d at 1145; see also Piper Aircraft, 454 U.S. at
255 (stating that the presumption in favor of the plaintiffs choice of forum . . . applies
with less force when the plaintiff or real parties in interest are foreign); Gemini
Capital, 150 F.3d at 1091-92 (holding that the plaintiffs decision to sue in Hawaii was
properly accorded less deference than if Hawaii had been his true home forum).
Moreover, a truly foreign plaintiff (i.e., someone who is not a United States citizen
or resident) is accorded less deference than an American citizen suing in a state other
than his state of residence. Boston Telecommcns Group, Inc. v. Wood, 588 F.3d
1201, 1207 (9th Cir. 2009). But even as to such quintessentially foreign plaintiffs, it
is clear that less deference is not the same thing as no deference. Id.
Huthart is a citizen and resident of the United Kingdom. (Compl. 4;
Declaration of Eunice Huthart 2 (the Huthart Declaration) (Docket No. 49-2)).
She, however, has worked in Los Angeles, California on numerous occasions and is
the sole owner of a California corporation. (Huthart Decl. 3, 4). Accordingly, the
Court accords some deference to Hutharts choice of forum, but it is less deference
than would be accorded if Huthart were a United States citizen or a California resident.
Courts consider the following private interest factors: (1) the residence of the
parties and the witnesses; (2) the forums convenience to the litigants; (3) access to
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physical evidence and other sources of proof; (4) whether unwilling witnesses can be
compelled to testify; (5) the cost of bringing witnesses to trial; (6) the
enforceability of the judgment; and (7) all other practical problems that make trial
of a case easy, expeditious and inexpensive. Lueck, 236 F.3d at 1145 (quoting Gulf
Oil, 330 U.S. at 508).

First, with regard to the residence of the parties and witnesses, this factor weighs
in favor of England. Huthart herself, her husband, her daughter, and current and
former NGN employees involved in the alleged hacking are located in England.
(Compl. 45, 50-51; Band Decl. 18; Mot. at 12). Huthart argues that other potential
witnesses, such as J olie and employees of her California company, are located in
California. (Opp. at 8; Huthart Decl. 14).
[A] courts focus should not rest on the number of witnesses or quantity of
evidence in each locale. Rather, a court should evaluate the materiality and
importance of the anticipated [evidence and] witnesses testimony and then
determine[] their accessibility and convenience to the forum. Lueck, 236 F.3d at
1146.
It appears that the most important witnesses are NGNs current and former
employees who were allegedly involved in and/or knew about the hacking because
they would be crucial to establishing Defendants liability. Similarly, the most
important evidence is that collected by the London Metropolitan Police Service since it
connects Defendants agents to the Hacking Scheme. For example, the Complaint
alleges that Hutharts name, cellular telephone number, her account number, and/or
her PIN number appear on four separate pages of notes recovered by the London
Metropolitan Police Service from the home of an investigator who was working for
NGN. (Compl. 16, 17, 52).
While Huthart argues that J olie and employees of her California company are
relevant to establishing how the intercepted voice messages harmed her business
relationships (Opp. at 8), it would appear that Huthart could also testify about the harm
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to her business relationships. Therefore, these witnesses appear to be less important
than the NGN employees.
Even according some deference to Hutharts choice of forum, it appears that the
first factor weighs in favor of England.
Second, with regard to the forums convenience to the litigants, this factor is
neutral. While it appears that the two United Kingdom Defendants would be
inconvenienced to some degree if forced to litigate here, as opposed to England,
Defendants have not addressed this factor head-on. (See Mot. at 12 (stating only that
the UK is clearly the most convenient forum for this litigation)). Moreover, given
Hutharts residence in England, the Court cannot assume that litigation in this forum
would be convenient for her. When the [plaintiffs] home forum has been chosen, it
is reasonable to assume that this choice is convenient. When the plaintiff is foreign,
however, this assumption is much less reasonable. Piper Aircraft, 454 U.S. at 255-56.
Given the lack of information regarding the forums convenience to either party,
the second factor provides little help in the analysis.
Third, with regard to access to sources of proof, this factor weighs in favor of
England. It appears that most of the relevant documents and physical evidence are
located in England, including files recovered by the London Metropolitan Police
Service, contracts between private investigators and NGN, and documents relating to
British news stories that allegedly published information taken from Hutharts
cellphone. (Compl. 16, 17, 31, 60-65; Band Decl. 15-17).
It is true that the Ninth Circuit has deemphasized the inconvenience of
transporting witnesses and documents overseas, due to advances in technology. See
Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1336 (9th Cir. 1984) ([A] district court
should keep in mind that the increased speed and ease of travel and communication . .
. makes, especially when a key issue is the location of witnesses, no forum as
inconvenient [today] as it was in 1947, when the Supreme Court decided Gilbert.).
However, Defendants have established that they cannot simply scan and upload to a
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database the documents relevant to this action. (Reply at 10). Instead, a number of the
documents relevant to this litigation are being held by the London Metropolitan Police
Service, and obtaining those documents would require applications to English courts.
(Id.). Accordingly, it would appear more burdensome and difficult to obtain these
documents for litigation in this forum, when some of those documents are already
being used in litigation in England. Moreover, Huthart has not shown that any
documents or other key pieces of evidence are located in California. (See Opp. at 9 n.6
(stating only vaguely that [e]vidence may also exist in the U.S.)).
Fourth, with regard to the ability to compel unwilling witnesses, this factor
weighs in favor of England. As indicated above, most of the witnesses relevant to this
action are located in United Kingdom and appear to be citizens of the United Kingdom.
Accordingly, they are outside of this Courts subpoena power. See Fed. R. Civ. P.
45(b)(2) & (3) (providing for service of a subpoena in the United States, or service of a
subpoena on a United States national or resident who is in a foreign country).
Additionally, a party can carry its burden in showing that unwilling witnesses
exist by providing circumstantial evidence . . . that an ongoing criminal investigation
provid[es] a major disincentive to voluntary testimony. Duha v. Agrium, Inc., 448
F.3d 867, 877 (6th Cir. 2006) (quoting First Union Natl Bank v. Banque Paribas, 135
F. Supp. 2d 443, 450 (S.D.N.Y. 2001)). Here, it appears that potential witnesses in this
action are being criminally prosecuted in England for their involvement in the Hacking
Scheme, as alleged in the Complaint and as established by Defendants. (Compl. 16,
27, 29, 37; Second Declaration of J onathan B. Pitt, Exs. 9 & 10 (Docket No. 54-6)).
Conversely, the parties have not identified any unwilling witnesses who are not subject
to the compulsory process in England.
Fifth, with regard to the cost of bringing witnesses to trial, this factor weighs in
favor of England. As indicated above, the majority of the witnesses and virtually all of
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the most important witnesses in this action are located in the United Kingdom. While
it seems likely that some of those witnesses, including Huthart, her family, and J olie,
can access this forum with relative ease, this forum appears to be less accessible to
NGNs former and current employees, especially those facing criminal charges.
Sixth, with regard to the enforceability of judgment, this factor appears neutral.
Neither side has raised arguments that a judgment in this forum would be more or less
enforceable than one in England.
Seventh, with regard to other practical problems that make trial easy,
expeditious, and inexpensive, this factor weighs in favor of England. Each case is
unique, and thus, the details of Hutharts specific claims likely differ to some degree
from other claims related to the Hacking Scheme. Nonetheless, because the courts in
England are experienced in handling other claims related to the Hacking Scheme, and
the English courts have the authority to subpoena documents from the London
Metropolitan Police Service and to compel unwilling witnesses located there to testify,
it appears likely that litigation in England would be more efficient. See Lueck, 236
F.3d at 1147 (Given the existence of the related proceedings [in New Zealand], it is
all the more clear that the private interest factors weigh in favor of dismissal.);
Creative Tech., Ltd. v. Aztech Sys. Pte., Ltd., 61 F.3d 696, 703 (9th Cir. 1995)
(affirming the district courts finding that all other factors that render trial of the case
expeditious and inexpensive weighed in favor of dismissal because a parallel action
in the High Court of Singapore was further advanced than the United States action).
Therefore, five factors weigh in favor of England, two factors are neutral, and no
factors weigh in favor of this forum. The private factors thus strongly favor of
England.
Public Interest Factors
Courts also consider the following public interest factors: (1) local interest of
lawsuit, (2) the courts familiarity with governing law, (3) burden on local courts
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and juries, (4) congestion in the court, and (5) the costs of resolving a dispute
unrelated to this forum. Lueck, 236 F.3d at 1147. The only factor truly at issue is the
local interest factor.

First, with regard to local interest, California has some identifiable interest in
this action, but that interest is outweighed by the other factors pointing to England as
the appropriate site for litigation.

Both parties agree that England has a strong interest in this action. (Mot. at 15-
16; Opp. at 12). Huthart is a United Kingdom citizen, and two Defendants are United
Kingdom entities. (Compl. 4, 6, 7). A number of the potential witnesses are in the
United Kingdom. The information obtained through the alleged hacking was
published in British newspapers. Accordingly, England has devoted substantial efforts
to addressing the Hacking Scheme: the London Metropolitan Police Service has
conducted multiple criminal investigations; numerous individuals have been arrested
and charged in England; England established the voluntary compensation scheme and
the MTVIL system specifically for claims arising from the Hacking Scheme; and the
Parliament of the United Kingdom has conducted numerous hearings on the phone
hacking. (See Mot. at 15-16).

Although Huthart objects to the manner in which Defendants introduced
evidence regarding the events described above, Huthart does not dispute that the
underlying events occurred. In fact, Huthart references the above events in her
Complaint. (Compl. 11, 16, 23, 25, 27, 30-32, 36-37, 40, 60, 61).

It is clear from the resources and activity devoted to addressing the Hacking
Scheme that England has a very high interest in this action. See, e.g., Lueck, 236 F.3d
at 1141, 1147 (finding that the interest in New Zealand regarding this suit is
extremely high, where the action related to a crash involving a New Zealand airline
carrying New Zealand passengers in New Zealand, and a New Zealand commission
investigated the causes and circumstances of the accident).

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Huthart argues that California also has an interest in this litigation because her
voicemail messages were hacked not only when she was in England, but also when she
was in Los Angeles. (Opp. at 12-13; Compl. 49). Huthart also argues that while she
was in Los Angeles, her voicemails were stored temporarily on facilities in the United
States and then transmitted on United States-based networks to the United Kingdom.
(Opp. at 37). Defendants dispute that any United States networks or facilities were
used in the alleged hacking. (Reply at 12, n. 18). Defendants argue that even while
Huthart was in Los Angeles, her voicemails were stored in servers owned and
maintained in the UK by the UK provider Vodafone, and that her voicemails were
accessed from the UK, by UK citizens working for a UK publication owned by NGN.
(Mot. at 15).

The Court need not resolve this factual dispute to determine this Motion. Even
assuming that Hutharts messages were stored temporarily in the United States and
transmitted using United States-based networks, this activity does not create a
sufficiently strong interest to outweigh the private interest factors and Englands strong
interest in this action. See Vivendi SA v. T-Mobile USA Inc., 586 F.3d 689, 694 (9th
Cir. 2009) (holding that the local interest in the case was tenuous where the only
asserted connection to the United States was the use of U.S. wires in various
communications between the parties); see also Piper Aircraft, 454 U.S. at 261 (finding
that [t]he American interest in this accident [was] simply not sufficient to justify the
enormous commitment of judicial time and resources that would inevitably be required
if the case were to be tried here, where the action related to an airplane accident in
Scotland, the pilot and all decedents heirs were Scottish citizens, and British
authorities had investigated the accident, even though Defendants were American
manufacturers); In re Air Crash Over Mid-Atl. on June 1, 2009, 760 F. Supp. 2d 832,
846 (N.D. Cal. 2010) (finding that [t]he American interest . . . ensuring the quality of
component parts on aircraft and protecting the rights of two American citizens, is real
and legitimate but less significant than the French interest, where an Air France
flight left Brazil for France carrying a plurality of French citizens and just two
Americans living abroad at the time of the crash).

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J S-6
Accordingly, while California has some minimal interest in this action, that
interest does not justify the burden that litigation in this action would impose on this
court system and the local jury.

Second, with regard to the courts familiarity with the governing law, this factor
is neutral at best. Huthart argues that she has brought claims under federal and
California state law, and that this Court is more familiar with those laws, than an
English court. (See Opp. at 16). However, Huthart relies on case law that interprets a
choice-of-law clause. (See Opp. at 15 (citing Wash. Mutual Bank v. Superior Court, 24
Cal. 4th 906, 919, 103 Cal. Rptr. 2d 320 (2001)). No such choice-of-law agreement is
present here. If this action were dismissed and brought in England, it appears that
English courts would most likely apply English law under Englands choice-of-law
rules. (Second Declaration of Craig Wyndham Orr QC 29-34 (the Second Orr
Declaration) (Docket No. 54-5)). However, even if the English courts were to find
that federal or California state law applied, it appears that the English Courts are
accustomed to applying foreign laws, including those of the United States. (Second
Orr Decl. 35).

Third, with regard to court congestion, this factor also does not aid the Courts
analysis. Defendants have provided some data as to the congestion of the Central
District of California. (See Mot. at 16). While the MTVIL system in England would
appear to provide a more efficient mechanism for resolving Hutharts claims, her
claims could possibly be stayed for some time if filed in the MTVIL. (Tomlinson
Decl. 13-15; see also Third Orr Decl. 8-9). The parties have provided no
information about the congestion of the general civil litigation system in England.
Accordingly, the Court cannot determine the real issue, which is not whether a
dismissal will reduce a courts congestion but whether a trial may be speedier in
another court because of its less crowded docket. Gates Learjet, 743 F.2d at 1337.
Moreover, administrative considerations such as docket congestion are given little
weight in this Circuit in assessing dismissal under forum non conveniens. See id.
(The forum non conveniens doctrine should not be used as a solution to court
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congestion; other remedies, such as placing reasonable limitations on the amount of
time each side may have to present evidence, are more appropriate.).
Even giving some deference to Hutharts choice of forum and acknowledging
that California has a minimal interest in this action, the private interest factors and
Englands interest in this action weigh strongly in favor of dismissal.
The Motion is GRANTED.
The Motion to Intervene (Docket No. 61) filed by Brad Greenspan, and
Defendants Ex Parte Application to Continue Motion for Intervention of Brad
Greenspan Pending the Courts Determination on Defendants Motion to Dismiss
(Docket No. 65) are both DENIED as moot.
This Order shall constitute notice of entry of judgment pursuant to Federal Rule
of Civil Procedure 58. Pursuant to Local Rule 58-6, the Court ORDERS the Clerk to
treat this Order, and its entry on the docket, as an entry of judgment.
IT IS SO ORDERED.
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LEGAL02/34840112v1

Alston & Bird LLP
Telephone: (213) 576-1148
Facsimile: (213) 576-1100

Telephone: (202) 434-5000
Facsimile: (202) 434-5029
Email: jpitt@wc.com

Newspapers Limited


EUNICE HUTHART,

Plaintiff,

v.

LIMITED f/k/a NEWS

Defendants.
)
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DEFENDANTS EX PARTE
OF BRAD GREENSPAN
PENDING THE COURTS
DETERMINATION ON
DISMISS

Order]
Date: TBD
Time: TBD
Courtroom: 1600
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LEGAL02/34840112v1

Dated: May 19, 2014

ALSTON & BIRD LLP





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LEGAL02/34840112v1
I. INTRODUCTION
September 20, 2013.
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30, 2014.
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LEGAL02/34840112v1
III. CONCLUSION

Dated: May 19, 2014

ALSTON & BIRD LLP






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LEGAL02/34840112v1
PROOF OF SERVICE


service is made.


Brad D. Greenspan
Unit 1216





Louis A. Karasik

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LEGAL02/34840112v1

Alston & Bird LLP
Telephone: (213) 576-1148
Facsimile: (213) 576-1100

Telephone: (202) 434-5000
Facsimile: (202) 434-5029
Email: jpitt@wc.com

Newspapers Limited


EUNICE HUTHART,

Plaintiff,

v.

LIMITED f/k/a NEWS

Defendants.
)
)
)
)
)
)
)
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)
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)
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DEFENDANTS EX PARTE
OF BRAD GREENSPAN
PENDING THE COURTS
DETERMINATION ON
DISMISS

Order]
Date: TBD
Time: TBD
Courtroom: 1600
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LEGAL02/34840112v1

Dated: May 19, 2014

ALSTON & BIRD LLP





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LEGAL02/34840112v1
I. INTRODUCTION
September 20, 2013.
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III. CONCLUSION

Dated: May 19, 2014

ALSTON & BIRD LLP






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LEGAL02/34840112v1
PROOF OF SERVICE


service is made.


Brad D. Greenspan
Unit 1216





Louis A. Karasik

FtLED
Suite 1216
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EUNICE HUTHART,
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LIMITED f/k/a NEWS
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AND MOTION FOR
INTERVENTION
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INDEX
4
6 I- INTRODUCTION
pg. 4
7
11-BACKGROUND ph. 4
8
9
III CONCLUSION
p. 22
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I
CASE LAW CITED
2
Cir. 2008)
pg. 10
4
pg.]]
Pg. 12
Pg. 12
6
pg. 12
pg. 12
pg. 12
8
pg. 13
9
Pg.13
10
pg. 13
pg. 14
11
12
Crawford v.
pg. 15
13
L Ed 22, 61 S Ct 115, 132 ALR 741 (1944);
pg. 15
14
pg. 15
15
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Annot 84 ALR2d]4]2 (1962)
pg. 15
17
pg. 21
*8 (ND. Cal. Dec. 1, 2005))
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- p
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MOTION TO INTERVENE
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INTRODUCTION
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4 899 F. Supp. 1155, 1166-67(S.D.N.Y. 1995)
5
IV. CONCLUSION
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20 DATED: May 2, 2014
26 Suite 1216
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1
2 EXHIBIT #1
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G R E E N S P A N ,
) C . A . N o . 9 5 6 7 - M E
Plaintiff, )
V . )
Defendants
1
Cases Cited
pg.3
I I NTRODUCTI ON
pg. 4
pg. 6
12g.6
pg. 7
pg. 12
2
CASES CITED
pg. 4
(9th Cir. 1997)
pg. 5
(3dCir. 1995)
pg. 6
pg. 8
Marcel v. See, Inc
pg. 10
pg. 10
3
SEARCH AUCTION
I INTRODUCTION
Members.
4
1995).
Inc, and MSV LLC.
6.
the
3 rd
and
4th
December 2005.
0
(
7
a)
b)
value the shares.
c)
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11
12
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of $1.09 billion.
13
14
stating,
gJ
Indication $32.453B
IX- CONCLUSION:
Angeles
15
15
October 30, 2003.
16
2003.
websites
defendants)
17
for MySpace.
July 2005
August 2005
September 2005
October 2005
November 2005
December 2005
January 2006
February 2006
March 2006
April 2006
May2006
June 2006
July 2006
August 2006
September 2006
21.21M uniques
21.81M uniques
21.6M uniques
24.25M uniques
24.68M uniques
32.2M uniques
35.5M uniques
37.34M uniques
41.88M uniques
48.03M uniques
51.44M uniques
52.34M uniques
54.52M uniques
55.78M
$14.807
$22.1 Million
Value
MSFT$800M
OFFER
$25.0 Million
Value
GOOGLE $900
OFFER
jul

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NORTHERN DISTRICT OF CALIFORNIA

SAN J OSE DIVISION

IN RE: HIGH-TECH EMPLOYEE
ANTITRUST LITIGATION

)
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ORDER DENYING DEFENDANTS
INDIVIDUAL MOTIONS FOR
SUMMARY J UDGMENT

THIS DOCUMENT RELATES TO:
ALL ACTIONS
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Summary judgment is appropriate if, viewing the evidence and drawing all reasonable
inferences in the light most favorable to the nonmoving party, there are no genuine disputed issues
of material fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material if it might affect the
outcome of the suit under the governing law, and a dispute as to a material fact is genuine if
there is sufficient evidence for a reasonable trier of fact to decide in favor of the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). At the summary judgment stage, the
Court does not assess credibility or weigh the evidence, but simply determines whether there is a
genuine factual issue for trial. House v. Bell, 547 U.S. 518, 559-60 (2006). The moving party has
the burden of demonstrating the absence of a genuine issue of fact for trial. Celotex, 477 U.S. at

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323. To meet its burden, the moving party must either produce evidence negating an essential
element of the nonmoving partys claim or defense or show that the nonmoving party does not
have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.
Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000)
(citation omitted). Once the moving party has satisfied its initial burden of production, the burden
shifts to the nonmoving party to show that there is a genuine issue of material fact. Id. at 1103.
Importantly, at the summary judgment stage, the Court must view the record in the light most
favorable to the non-moving party. Brown v. City of Los Angeles, 521 F.3d 1238, 1240 (9th Cir.
2008).
The critical case for the legal standard to be applied to motions for summary judgment in
antitrust cases is Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986),
a case that challenged J apanese manufacturers lowering of prices as anti-competitive. In
Matsushita, the Supreme Court held that a plaintiff seeking damages for a violation of 1 [of the
Sherman Act] must present evidence that tends to exclude the possibility that the alleged
conspirators acted independently. Id. at 588. Under Matsushita, if Defendants can show a
plausible and justifiable reason for their conduct that is consistent with proper business practice,
Plaintiffs must show that the inference of conspiracy is reasonable in light of the competing
inferences of independent action or collusive action that could not have harmed [plaintiffs]. Id.
The Ninth Circuit has interpreted Matsushita to mean that where a defendant has demonstrated a
plausible business reason for its conduct, a plaintiff who relies solely on circumstantial evidence
of conspiracy . . . must produce evidence tending to exclude the possibility that defendants acted
independently. In re Citric Acid Litig., 191 F.3d 1090, 1096 (9th Cir. 1999). The Second Circuit,
in 2012, interpreted Matsushita and Citric Acid as follows: [Matsushita] further holds that the
range of inferences that may be drawn . . . depends on the plausibility of the plaintiffs theory.
Thus, where a plaintiffs theory of recovery is implausible, it takes strong direct or circumstantial
evidence to satisfy Matsushitas tends to exclude standard. By contrast, broader inferences are
permitted, and the tends to exclude standard is more easily satisfied, when the conspiracy is
economically sensible for the alleged conspirators to undertake and the challenged activities could

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not reasonably be perceived as procompetitive. In re Publn Paper Antitrust Litig., 690 F.3d 51,
63 (2d Cir. 2012) cert. denied, 133 S. Ct. 940 (2013).
The Court finds that in light of the summary judgment standard as viewed through the lens
of Matsushita and its progeny, Plaintiffs have presented sufficient evidence that tends to exclude
the possibility that Defendants acted independently even if Defendants satisfied the first prong of
Matsushita by showing a plausible and justifiable reason for their conduct that is consistent with
proper business practices.

The Court need not determine whether Defendants have met their burden
with respect to Matsushitas first prong, because the Court finds that Plaintiffs have satisfied their
burden of providing specific evidence tending to show that [Defendants were] not engaging in
permissible competitive behavior. Citric Acid Litig., 191 F.3d at 1094.
Here, as Edward Catmull (Pixar President) noted, it was economically sensible for the
alleged conspirators to undertake the alleged conspiracy, because solicitation messes up the pay
structure. Catmull Depo. at 179. As George Lucas (former Lucasfilm Chairman of the Board and
CEO) stated, we cannot get into a bidding war with other companies because we dont have the
margins for that sort of thing. Lucas Depo. at 44. Further, as Meg Whitman (former CEO of eBay)
said to Eric Schmidt (Google Executive Chairman, Member of the Board of Directors, and former
CEO), Google is the talk of the Valley because [Google is] driving up salaries across the board.
Cisneros Decl., Ex. 872.
In light of this backdrop, the Court will now review some of the evidence that tends to
exclude the possibility that Defendants acted independently. Defendants have conceded that there
were a series of six bilateral agreements for the purpose of these motions: Pixar-Lucasfilm, Apple-
Adobe, Apple-Google, Apple-Pixar, Google-Intuit, and Google-Intel. All six of these agreements
contained nearly identical terms, precluding each pair from affirmatively soliciting any of each
others employees. ECF No. 531, October 24, 2013 Order Granting Plaintiffs Supplemental
Motion for Class Cert. (October Class Cert. Order) at 30. Defendants experts concede that they
are unaware of these types of long-term, all-employee agreements ever occurring between other
firms. See, e.g., Talley Depo. at 35.

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In addition, there is evidence that Defendants themselves recognized the similarities
between the agreements. For example, in an email, Lori McAdams (Pixar Vice President of Human
Resources and Administration), stated that effective now, well follow a gentlemans agreement
with Apple that is similar to our Lucasfilm agreement. October Class Cert. Order at 26. Moreover,
Google maintained an explicit do-not-cold-call list that grouped Apple, Intel, and Intuit together.
ECF No. 187, Ex. 29. Defendants also recognized that these agreements were not designed for
circulation, and tried to ensure that the agreements were known only to recruiters and executives
who had to enforce them. For example, Eric Schmidt (Google Executive Chairman, Member of the
Board of Directors, and former CEO) instructed one of his executives that Mr. Schmidt preferred
that the do-not-cold-call list be shared verbally, since I dont want to create a paper trail over
which we can be sued later. Id. at 27. Similarly, in response to a question from an Intel recruiter,
Paul Otellini (CEO of Intel and Member of the Google Board of Directors) stated regarding the
Intel-Google agreement we have a handshake no recruit between eric [Schmidt] and myself. I
would not like this broadly known. Id. at 28.
Furthermore, there is evidence that many of the Defendants knew about each others anti-
solicitation agreements. For example, according to Edward Catmull (Pixar President), Steve J obs
(Co-Founder, Former Chairman, and Former CEO of Apple, Former CEO of Pixar) knew and
understood the Lucasfilm-Pixar agreement. Catmull Depo. at 61. Similarly, Eric Schmidt of
Google testified that it would be fair to extrapolate, based on Mr. Schmidts knowledge of Mr.
J obs, that Mr. J obs would have extended [anti-solicitation agreements] to others. Schmidt Depo.
at 169. Google recruiters were familiar that Apple and Adobe had an agreement. Flynn Depo. at 65.
Paul Otellini (CEO of Intel and Member of the Google Board of Directors) was told by Eric
Schmidt (Google Executive Chairman, Member of the Board of Directors, and former CEO) and
Sergey Brin (Google Co-Founder) about the Apple-Google agreement. Brin Depo. at 74; Schmidt
Depo. at 126. Intels own expert testified that Mr. Otellini was likely aware of Googles other
bilateral agreements by virtue of Mr. Otellinis membership on Googles board. Snyder Depo. at
258. In fact, in its Motion, Intel concedes for the purposes of the instant motions that Mr. Otellini
knew the contents of Googles do-not-cold-call list, which included Apple and Intel. Intel MSJ at 4.

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Next, these agreements were negotiated by a small group of intertwining high-level
executives at the Defendant firms. For example, Steve J obs (Co-Founder, Former Chairman, and
Former CEO of Apple, Former CEO of Pixar) was personally involved in Apples anti-solicitation
agreements with Adobe, Google, and Pixar. With regard to Apples agreement with Google, Mr.
J obs contacted Sergey Brin (Google Co-Founder) directly, which led Mr. Brin to recognize that
[b]asically, [Mr. J obs] said if you hire a single one of these people that means war. Cisneros
Decl., Ex. 1871. The next day, Bill Campbell (Chairman of Intuit Board of Directors, Co-Lead
Director of Apple, and advisor to Google), a friend of Mr. J obs, informed Mr. J obs that Eric
Schmidt told me that he got directly involved and firmly stopped all efforts to recruit anyone from
Apple. Cisneros Decl., Ex. 199. Moreover, it was upon Mr. Campbells suggestion that Google
agreed to enter into its anti-solicitation agreement with Intuit, of which Mr. Campbell was Board
Chairman. Cisneros Decl., Ex. 597.
As discussed in some detail in this Courts October Class Certification Order, the same
small group of intertwining high-level executives were involved in strictly enforcing the
agreements. For example, when a Google recruiter contacted an Apple engineer, Steve J obs (Co-
Founder, Former Chairman, and Former CEO of Apple, Former CEO of Pixar) forwarded the
message to Eric Schmidt (Google Executive Chairman, Member of the Board of Directors, and
former CEO), who had the recruiter terminated within the hour. Id. at 36. Bill Campbell (Chairman
of Intuit Board of Directors, Co-Lead Director of Apple, and advisor to Google) similarly emailed
Sergey Brin (Google Co-Founder), stating that Steve J obs called me again and is pissed that we
are still recruiting his browser guy. Id. at 36. Paul Otellini (CEO of Intel and Member of the
Google Board of Directors) similarly forwarded an email regarding recruitment of an Intel
employee by a Google recruiter to Mr. Schmidt, Googles CEO, who responded by saying that, If
we find that a recruiter called into Intel, we will terminate the recruiter. Id. at 37.
1
Edward
Catmull (Pixar President) similarly had direct discussions with Steve J obs regarding whether Pixar
could communicate with specific individual Apple employees. Id. at 37-38. Bill Campbell

1
In an email to Mr. Campbell, Mr. Schmidt indicated that he directed a for-cause termination of
another Google recruiter, who had attempted to recruit an executive of eBay, which was on
Googles do-not-cold-call list. Cisneros Decl., Ex. 872.

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(Chairman of Intuit Board of Directors, Co-Lead Director of Apple, and advisor to Google) was
also part of enforcing the Google-Intel agreement, because Mr. Campbell in communication with
Googles executives agreed that Google should call Paul Otellini (CEO of Intel and Member of the
Google Board of Directors) before making an offer to an Intel employee. October Class Cert. Order
at 28. That the agreements were entered into and enforced by a small group of intertwining high-
level executives bolsters the inference that the agreements were not independent.
Moreover, there is evidence that the Defendants shared confidential compensation
information with each other despite the fact that they considered each other competitors for talent.
For example, Adobe saw itself as in a talent war with Google and Apple and that Adobe was in a
six-horse compensation race against Google, Apple, Intuit, and three others. Id. at 47. Apple also
viewed Google and Intel as peer companies in terms of competition for talent. Id. at 48. Adobe
benchmarked its compensation against Google, Apple, and Intel, while Google compared its
compensation to Apple, Intel, Adobe, and Intuit; and Intel benchmarked against Apple and Google.
Id. at 47-48. The evidence shows that HR personnel at Intuit and at Adobe were communicating
about confidential information regarding how much compensation each firm would give and to
which employees that year. Cisneros Decl., Ex. 2812 (emphasis in original). Adobe and Intuit
shared confidential compensation information even though the two companies had no bilateral anti-
solicitation agreement, and Adobe viewed Intuit as a competitor in a six-horse compensation race.
Meanwhile, Google circulated an email that expressly discussed how its budget is comparable to
other tech companies and compared the precise percentage of Googles merit budget increases to
that of Adobe, Apple, and Intel. Cisernos Decl., Ex. 621. Google had Adobes precise percentage
of merit budget increases even though Google and Adobe had no bilateral anti-solicitation
agreement. Paul Otellini (CEO of Intel and Member of the Google Board of Directors) similarly
circulated information regarding peer companies bonus plans that he lifted from Google.
Cisneros Decl., Ex. 463. This Google document discusses bonuses at Apple and Intel. A reasonable
jury could infer that this confidential information could be shared safely by competitors only
because the anti-solicitation agreements squelched true competition.

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Finally, there is evidence that Defendants, through many of the same executives who
negotiated and enforced the agreements at issue in this case, expanded and attempted to expand the
anti-solicitation agreements to non-Defendants, which undermines Defendants claim of
independent bilateral agreements. For example, Steve J obs (Co-Founder, Former Chairman, and
Former CEO of Apple, Former CEO of Pixar) called Edward Colligan (former President and CEO
of Palm) to ask Mr. Colligan to enter into an anti-solicitation agreement and threatened patent
litigation against Palm if Palm refused to do so. Colligan Decl. 6-8. This was similar to Mr.
J obs negotiation of the agreement with Adobe, which resulted from Mr. J obs threat to start
aggressively recruiting Adobes employees absent such an agreement. Bill Campbell (Chairman of
Intuit Board of Directors, Co-Lead Director of Apple, and advisor to Google), in his capacity as an
advisor to Google, unsuccessfully sought to expand Googles anti-solicitation agreements to
Facebook by responding to an email about Facebooks solicitation of Googles employees with
Who should contact Sheryl [Sandberg] (or Mark [Zuckerberg]) to get a cease fire? We have to get
a truce. Mr. Chizen of Adobe, in response to discovering that Apple was recruiting employees of
Macromedia (a separate entity that Adobe would later acquire), helped ensure, through an email to
Mr. J obs, that Apple would honor Apples pre-existing anti-solicitation agreements with both
Adobe and Macromedia after Adobes acquisition of Macromedia. Cisneros Decl., Exs. 1808,
1812. These expansions and attempted expansions of the anti-solicitation agreements suggest that
the agreements were not isolated, independent bilateral agreements, but rather were part of a
broader conspiracy.
In sum, the Court does not determine at the summary judgment stage which side should
prevail. Rather, the Courts task is only to determine whether the Plaintiffs have presented
sufficient evidence to warrant adjudication by a jury. For the reasons stated, the Court answers this
question in the affirmative. The similarities in the various agreements, the small number of
intertwining high-level executives who entered into and enforced the agreements, Defendants
knowledge about the other agreements, the sharing and benchmarking of confidential
compensation information among Defendants and even between firms that did not have bilateral
anti-solicitation agreements, along with Defendants expansion and attempted expansion of the

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anti-solicitation agreements constitutes evidence, viewed in the light most favorable to Plaintiffs,
that tends to exclude the possibility that defendants acted independently, such that the question of
whether there was an overarching conspiracy must be resolved by a jury. Accordingly, each of the
Defendants individual motions for summary judgment is DENIED.

IT IS SO ORDERED.
Dated: March 28, 2014 ________________________________
LUCY H. KOH
United States District J udge

Home | News | Abigail LeGrow 04 appointed to Master in Chancery for Delaware Judiciary
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Abigail LeGrow 04 appointed to Master in
Chancery for Delaware Judiciary
February 22, 2012
Abigail LeGrow 04 was recently appointed Master in Chancery for the Delaware Judiciary, a court which has been
ranked first in the nation since 2002.
To me, working on this court, and for the Delaware Judiciary in general, is a tremendous honor, said LeGrow. The
Court of Chancery is held in high esteem nationwide, both because of the qualifications and dedication of the
chancellor and vice chancellors (past and present), and because of the courts willingness to consider and decide
expedited cases in a very prompt fashion.
The Court of Chancerys jurisdiction is primarily limited to cases based in equity. Historically speaking, the Masters
in Chancery have handled the traditional equity jurisdiction of the Court, particularly trusts and estates,
guardianship, and disputes involving real property.
Ive only been here a few months, but so far the thing I most enjoy is
being in a position to help people and make decisions that (hopefully)
resolve stressful problems that have arisen in their lives, said LeGrow.
There is a human, real-life element to the cases on my docket that
was sometimes missing in private practice.
Prior to joining the Delaware Judiciary, LeGrow was an associate in the
Corporate Group of Potter Anderson & Corroon LLP. During my time
in private practice, I was able to represent different corporations which
gave me the chance to learn about a variety of fields, said LeGrow.
Each corporation is different and in order to represent them
effectively I usually had to learn about their business. I became intimately familiar with orphan drugs, the New York
real estate market, differentiated chemicals, residential mortgage-backed securities, and high speed lasers for
cardiac imaging, to name a few. It helped keep each case interesting when I was engaged in some of the more
mundane aspects of litigation. Among the many reasons LeGrow chose to practice in corporate law is its dynamic
nature. It is always changing and evolving as businesses grow and change, said LeGrow.
Her switch from advocacy to impartiality has been challenging for LeGrow, but in a good way, she said. I think
advocacy comes easier to most lawyers (myself included), because we are usually arguers by nature, and it is fun to
be told here is your side, here is where you want to end up, now go do it. But so far Ive enjoyed the role of
impartial decision-maker. It is nice to consider a case from all sides and all angles, and then try to reach the right
result. In that sense, it is similar to a law school exam, only there is a lot more riding on the outcome.
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LeGrow enjoys living and working in Delaware. When I was in practice, I worked in a sophisticated, challenging,
high-profile field while enjoying the advantages of life in a relatively small city. As a corporate litigator, I represented
multinational corporations, yet my job was a ten-minute commute from my home in the suburbs. Very few people
can have the best of both worlds, in that sense. Now, the commute is the same and Im part of a court that Ive
admired since my summer associate year. It doesnt get much better than this.
Her husband, Brian LeGrow 04 is an associate with the Law Offices of Vincent B. Mancini & Associates, and focuses
his practice on business litigation, commercial litigation, real estate, civil rights section 1983, property law, federal
civil practice, and landlord-tenant law. They met during law school and are the parents of two children.

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2013 The Pennsylvania State University | Lewis Katz Building, University Park, PA 16802
Phone: 814.865.8900 | 800.840.1122
Dilbert
Genre Comedy
Format Animation
Created by Scott Adams
Developed by Scott Adams
Larry Charles
Directed by Rick Del Carmen
James Hull
Voices of Daniel Stern
Chris Elliott
Larry Miller
Gordon Hunt
Kathy Griffin
Jackie Hoffman
Theme music
composer
Danny Elfman
Opening theme "The Dilbert Zone"
Composer(s) Adam Cohen
Ian Dye
Country of origin United States
Original
language(s)
English
No. of seasons 2
Dilbert (TV series)
From Wikipedia, the free encyclopedia
Dilbert is an animated television series adaptation of
the comic strip of the same name, produced by
Adelaide Productions, Idbox, and United Media and
distributed by Columbia TriStar Television. The first
episode was broadcast on January 25, 1999, and was
UPN's highest-rated comedy series premiere at that
point in the network's history; it lasted two seasons on
UPN and won a Primetime Emmy before its
cancellation.
[1]
Contents
1 Synopsis
2 History
2.1 Conception
2.2 Cancellation
3 Cast
3.1 Guest stars
4 Episodes
4.1 Season 1 (1999)
4.2 Season 2 (19992000)
5 Reception
5.1 Ratings
5.2 Awards
6 Home releases
7 See also
8 References
9 External links
Synopsis
The series follows the adventures of a middle-aged
white collar office worker, named Dilbert who is
extremely intelligent in regards to all things that fall
within the boundaries of electrical engineering.
Although Dilberts intelligence greatly surpasses that of
his incompetent colleagues at work, he is unable to
question certain processes that he believes to be
No. of episodes 30 (List of episodes)
Production
Executive
producer(s)
Scott Adams
Larry Charles
Producer(s) Jeffrey L. Goldstein
Ron Nelson
Kara Vallow
Editor(s) Mark Scheib
Running time 22 minutes
Production
company(s)
Idbox
United Media
Columbia TriStar
Television
Distributor Sony Pictures Television
Broadcast
Original channel UPN
Picture format 4:3 SDTV
Audio format Dolby Surround
Original run January 25, 1999 July
25, 2000
organization. Thus, he is consistently found to be
unsatisfied with the decisions that are made in his
workplace, because of the fact that many times he has
many suggestions to improve the decision, yet is
incapable of expressing them. Consequently, he is
often found to show a pessimistic and frustrated
attitude, which ultimately lands him in various comedic
situations that revolve around concepts like leadership,
teamwork, communication and corporate culture.
History
The first season centers on the creation of a new
product, the "Gruntmaster 6000". The first three
episodes involve the idea process ("The Name", "The
Competition", and "The Prototype" respectively); the
fifth ("Testing") involves having it survive a malevolent
company tester named "Bob Bastard" (who is
somewhat like Dilbert before being humiliated and
disfigured), and the sixth ("Elbonian Trip") is about
production in the famine-stricken fourth-world country
of Elbonia. The prototype is delivered to an incredibly
stupid family in Squiddler's Patch, Texas, during the
thirteenth and final episode of the season,
"Infomercial", even though it was not tested in a lab
beforehand. The family's misuse of the prototype
creates a black hole that sucks Dilbert in; he instantly wakes up in the meeting seen at the start of
the episode, then locks his design lab to keep the prototype from being shipped out.
[2]
The second season features seventeen episodes, bringing the total number of episodes to thirty.
Unlike the first season, the episodes are not part of a larger story arc and have a different storyline
for each of the episodes (with the exception of episodes 26 and 27, "Pregnancy" and "The
Delivery"). Elbonia is revisited once more in "Hunger"; Dogbert still manages to scam people in
"Art"; Dilbert is accused of mass murder in "The Trial"; and Wally gets his own disciples (the result of
a complicated misunderstanding, the company launching a rocket for NASA, and a brainwashing
seminar) in episode 16, "The Shroud of Wally".
[3]
The theme music, "The Dilbert Zone", was written by Danny Elfman, and is a slight rewrite from the
theme of the film Forbidden Zone, originally performed by Elfman's band, The Mystic Knights of the
Oingo Boingo.
Conception
Scott Adams, the creator of Dilbert, decided to create the series for UPN because the network
promised 13 episodes on air, while other networks would only consider the series against other
programming options. Adams added to that "If we had gone with NBC, they would have given
Dilbert a love interest with sexual tension." UPN was the sixth-ranked network at the time and
picked up the show in hopes of broadening their appeal and to prove they were committed to riskier
alternative shows. Adams stated about turning Dilbert into a series "It's a very freeing experience
because doing the comic strip limits me to three (picture) panels with four lines or less of dialogue
per issue, in the TV series, I have 21 minutes per episode to be funny. I can follow a theme from
beginning to end, which will add lots of richness to the characters." Adams wanted the series to be
animated because the live action version shot previously for FOX didn't translate well. Adams added
to that "If Dilbert's going to be at the top of the Alps, you just draw it that way and you don't have to
build an Alps scene. You can also violate some laws of physics, and cause and effect. People
forgive it very easily. So it's much more freeing creatively."
[4][5][6][7]
Cancellation
On November 22, 2006, when Adams was asked why the show was canceled, he stated "It was on
UPN, a network that few people watch. And because of some management screw-ups between the
first and second seasons the time slot kept changing and we lost our viewers. We were also
scheduled to follow the worst TV show ever made: Shasta McNasty. On TV, your viewership is 75%
determined by how many people watched the show before yours. That killed us."
[8]
Cast
Daniel Stern Dilbert
[9]
Chris Elliott Dogbert
Larry Miller The Pointy-Haired Boss
Gordon Hunt Wally
Kathy Griffin Alice (uncredited)
Jackie Hoffman Dilmom
Jim Wise Loud Howard
Tom Kenny Ratbert, Asok, additional Voices
Gary Kroeger Additional voices
Maurice LaMarche The World's Smartest Garbageman, Bob the Dinosaur, additional voices
Tress MacNeille Carol, Lena, additional voices
Jason Alexander Catbert
Guest stars
Stone Cold Steve Austin Himself
Jennifer Bransford Ashley
Andy Dick Dilbert's Assistant Alfonso
Jon Favreau Holden Callfielder
Gilbert Gottfried Accounting Troll
Tom Green Jerrold
Christopher Guest The Dupey
Buck Henry Dadbert
Harry Kalas Baseball Announcer
Wayne Knight Path-E-Tech Security Guard
Jay Leno Himself
Eugene Levy Comp-U-Comp's Plug Guard
Camryn Manheim Juliet
Mr. Moviefone Himself
Chazz Palminteri Leonardo da Vinci
Jeri Ryan Seven of Nine Alarm Clock
Jerry Seinfeld Comp-U-Comp
Billy West Vibrating Chair Salesman, Rioting Engineer (Pilot episode only)
Episodes
Season 1 (1999)
Production
code
1 "The Name" Seth Kearsley
Adams
January 25, 1999 101
Dilbert is tasked with naming a product that hasn't even been designed yet, and the stress (brought
on by a recurring nightmare) makes Dilbert think he's turning into a chicken.
2
"The
Competition"
Seth Kearsley Ned Goldreyer February 1, 1999 103
Dilbert is fired from his job when he is suspected of being a spy for a rival company (which was a
rumor cooked up by Dogbert's online newsletter) and gets hired at a company that actually treats
their workers like people.
3
"The
Prototype"
Alfred Gimeno Jeff Kahn February 8, 1999 102
Dilbert and Alice must work together to stop a rival team led by the legendary "Lena" from stealing
their ideas and presenting them to the Boss as her own.
4
"The
Takeover"
Andi Klein
Adams & Ned
Goldreyer
February 15, 1999 106
Dilbert and Wally become majority shareholders of their company after Dogbert manipulates the
stock market.
5 "Testing" Chris Dozois
David Silverman &
Stephen Sustrastic
February 22, 1999 104
The Gruntmaster 6000 prototype is put to the test by an evil masked test engineer named Bob
Bastard (Tom Kenny).
6
"Elbonian
Trip"
Mike Kim
David Silverman &
Stephen Sustrastic
March 1, 1999 105
Dilbert, Alice, Wally, Dogbert, and the Pointy-Haired Boss take a business trip to Elbonia. Alice and
Dilbert attempt to free the Elbonian people (Alice adopts an Elbonian baby while Dilbert introduces
the workers to human rights) while Wally becomes a prophet.
7
"Tower of
Babel"
Gloria Jenkins
David Silverman &
tephen Sustrastic
March 22, 1999 108
The repetitive passing-on of the same cold strain in Dilbert's office causes it to mutate and turns
the coworkers into monsters. Rather than eliminate the virus, the company decides to start fresh by
moving everyone to a new office, which Dilbert is tasked with designing.
8
"Little
People"
Barry Vodos
David Silverman,
Stephen Sustrastic,
Scott Adams & Larry
Charles
April 5, 1999 107
Dilbert discovers that the office is inhabited by a race of former employees who have been
"downsized" (literally shrunken down to size after they've been laid off) after finding all of his
belongings used, the dry-erase markers disappearing, and X-rated websites on his computer.
9 "The Knack" Michael Goguen
Adams, Andrew
Borakove & Rachel
Powell
April 26, 1999 110
Dilbert loses "the knack" for technology when he gets management DNA from accidentally drinking
from the Boss's cup. His resulting mis-steps send the world back to the Dark Ages.
10 "Y2K"
Jennifer Graves, Bob
Hathcock & Andi Tom
Adams, Andrew
Borakove & Rachel
Powell
May 3, 1999 109
On the eve of the new millennium, everyone except Dilbert is making New Year's plans. While
assuring everyone that the company is prepared for Y2K, Dilbert discovers that the computer
mainframe's main processor isn't Y2K-compatible and all the company's systems will crash if it
isn't fixed. Dilbert is rewarded for discovering this by being assigned to fix it, and he discovers that
the system's original programmer was Wally. But have years of drudgework dulled his brain too
much to be able to tackle this crucial task?
11 "Charity" Chris Dozois
Adams, David
Silverman & Stephen
Sustrastic
May 10, 1999 111
Dilbert is forced to be a charity coordinator for the "Associated Way" charity drive.
Adams, David
12 "Holiday" Andi Klein Silverman, Stephen
Sustrastic & Ned
Goldreyer
May 17, 1999 112
Dilbert thinks there are too many time-wasting holidays; Dogbert concurrently convinces Congress
to abandon all holidays in favor of a National Dogbert Day.
13
"The
Infomercial"
Todd Frederiksen,
Joe Vaux
Adams & Ned
Goldreyer
May 24, 1999 113
The pre-productionnon-lab-testedGruntmaster 6000 is scheduled to be tested by a Texan
family.
Season 2 (19992000)
Production
code
14 "The Gift" Gloria Jenkins Ned Goldreyer November 2, 1999 201
Dilbert's mother's birthday is coming up, and in search of the perfect gift, he returns to the mall
where he was abandoned by his father (voiced by Buck Henry) years ago.
15
"The Shroud
of Wally"
Andi Klein Scott Adams November 9, 1999 203
Dilbert has a near-death experience at a gas station, and finds that the afterlife is exactly like the
office. Meanwhile, a group listening to a multi-level marketing speech become hypnotized, and
through a bizarre accident create a religion based on Wally.
16 "Art" Linda Miller
Adams & Ned
Goldreyer
November 16, 1999 205
Dilbert is assigned to create a digital work of art. The result, the "Blue Duck," ends up appealing to
the lowest common denominator of society and destroys the value and popularity of classic
artworks.
17 "The Trial" Chris Dozois
Joe Port & Joe
Wiseman
November 23, 1999 202
Dilbert is sent to prison after the boss frames him for a fatal traffic accident. Once inside, he applies
his knowledge of mathematics and engineering to prison life and takes over his cell block.
18
"The
Dupey"
Michael Goguen
Adams
December 7, 1999 204
Dilbert's attempts to design a Furby-style children's toy go horribly awry when the toys gain
sentience and mutate into hideous but benevolent creatures that want independence.
19
"The
Security
Guard"
Rick Del Carmen Scott Adams January 18, 2000 207
After a heated debate, Dilbert and the building's security guard (voiced by Wayne Knight) trade
jobs to see who can do the other's job better. Dilbert quickly finds himself in over his head when he
discovers an illegal casino being run underneath the building.
20
"The
Merger"
Jim Hull
Adams, David
Silverman & Stephen
Sustrastic
January 25, 2000 208
The Boss decides that the company needs to merge with another, and chooses a company of
brain-sucking extraterrestrials.
21 "Hunger" Craig R. Maras
Adams
Dilbert tries to end world hunger by creating a new, safe, artificial food, but it tastes so bad that
even people dying of starvation refuse to eat it until his mother gets involved.
22
"The Off-
Site
Meeting"
Seth Kearsley
Mark Steen, Ron
Nelson & Scott Adams
Dilbert's home is chosen as the location for an off-site meeting when a dendrophile sues his
company because of their deforestation policies.
23
"The
Assistant"
Gloria Jenkins &
Declan M. Moran
Adams, Ron Nelson &
Mark Steen
February 15, 2000 210
Dilbert is unwillingly promoted to management and given an assistant (Andy Dick), sparking a
showdown with the other engineers.
24
"The
Return"
Mike Kuntel
Adams & Ned
Goldreyer
February 22, 2000 213
Dilbert tries to buy a computer online but gets the wrong model, leading to an unpleasant surprise
when he tries to return it to the company warehouse. Jerry Seinfeld and Eugene Levy guest-star as
Comp-U-Comp and the plug guard, respectively; Jon Favreau guest-stars as Holden Callfielder.
25
"The Virtual
Employee"
Perry Zombalas
Adams & Ned
Goldreyer
May 30, 2000 212
Dilbert and his co-workers find an empty cubicle and start dumping their obsolete computer
equipment into it. To keep the marketing department from claiming the cubicle, they hack into the
human resources database and create a profile for a fake engineer named Todd. The plan backfires
when Todd is named project leader and develops a messianic reputation.
26 "Pregnancy" Andi Klein
Adams
June 6, 2000 216
Ratbert accidentally sends Dilbert's model rocket into space. When it returns with samples of DNA
from aliens, cows, hillbillies, engineers, and robots, it rectally impales Dilbert, impregnating him.
27
"The
Delivery"
Craig R. Maras
Adams
June 13, 2000 217
Dilbert fights to keep his baby, a human-alien-cow-robot hybrid whose various "parents" sue for
joint custody. Stone Cold Steve Austin guest-stars as himself.
28
"Company
Picnic"
Chris Dozios
Scott Adams, David
Silverman & Stephen
Sustrastic
July 11, 2000 211
The annual company picnic comes around and so does the softball game between Marketing and
Engineering. This episode is based on Romeo and Juliet.
29 "The Fact" Linda Miller
Adams, Ron Nelson &
Mark Steen
July 18, 2000 215
Dogbert is catapulted into fame and fortune when he posts false information on the Internet about
his imaginary disease, "Chronic Cubicle Syndrome," and releases a best-selling book about it.
Ironically, Dilbert is forced to come up with the cure.
30 "Ethics" Michael Goguen
Adams
July 25, 2000 214
The company employees are forced to take ethical training classes, then Dilbert is made project
lead for the National Internet Voting Network. An attractive female employee of a special-interest
group attempts to seduce Dilbert, putting his ethical limitations to the test.
Reception
Ray Richmond of Variety.com liked the show stating "its surely the wittiest thing the netlet has ever
had the good fortune to schedule, and based on the opening two installments, it has the potential to
score with the same upscale auds that flocked to The Simpsons and transformed Fox from a
wannabe to a player a decade ago."
[10]
David Zurawik of The Baltimore Sun gave the show a
postivie review stating "sit down tonight in front of the tube with more reasonable expectations, and
you will find yourself smiling, if not laughing out loud at least once or twice."
[11]
Terry Kelleher of
People Magazine picked Dilbert for "Show of the week" and said the show featured "smart, pointed
humor aimed at corporate bureaucracy, mendacity and absurdity."
[12]
Ratings
Dilbert's premiere episode received a 7.3 rating, the highest of the 1998-1999 season for UPN.
[13]
Awards
Primetime Emmy: Outstanding Main Title Design - 1999
[14]
Home releases
Sony Pictures Home Entertainment released the complete series on DVD in Region 1 for the very
first time on January 27, 2004. The set included some special features including trailers and clip
compilations with commentary by Scott Adams, executive producer Larry Charles, and voice actors
Chris Elliott, Larry Miller, Kathy Griffin, and Gordon Hunt.
[15]
The DVDs can be played on some PCs
and DVD players with Region 2. This release has been discontinued and is now out of print. The
complete series is available for free on Hulu and Crackle.
[16][17]
On November 8, 2013, it was announced that Mill Creek Entertainment had acquired the rights to
the series. They will be re-releasing the complete series on January 21, 2014.
[18]
See also
New Dilbert Animation
References
1. ^ "Dilbert Debut Sets Record For Upn" (http://articles.chicagotribune.com/1999-02-
02/features/9902020332_1_pointy-haired-boss-upn-dilbert). Chicago Tribune. February 2, 1999. Retrieved
2010-09-09.
2. ^ "Dilbert: The Complete Series : DVD Talk Review of the DVD Video"
(http://www.dvdtalk.com/reviews/9457/dilbert-the-complete-series/). Dvdtalk.com. Retrieved 2013-09-08.
3. ^ "Dilbert: Complete Series : DVD Talk Review of the DVD Video"
(http://www.dvdtalk.com/reviews/9494/dilbert-complete-series/). Dvdtalk.com. Retrieved 2013-09-08.
4. ^ Knutzen, Eirik. "An Animated Cartoon `Dilbert' Comes To The Tube On Upn"
(http://articles.mcall.com/1999-01-24/entertainment/3241748_1_dilbert-scott-adams-bank-teller/2). The
Morning Call. Retrieved 10 February 2014.
5. ^ Rubin, Sylvia. "Meeting of the Minds / `Dilbert' creators slogged through corporate mire to bring lovable
office dweeb to TV" (http://www.sfgate.com/entertainment/article/Meeting-of-the-Minds-Dilbert-creators-
slogged-2952018.php#page-1). SFGate. Retrieved 10 February 2014.
6. ^ Rozansky, Michael. "`Dilbert' Is Serious Business From The Cubicle To . . . Practically Everywhere."
(http://articles.philly.com/1999-01-03/news/25492959_1_dilbert-fans-4s700r-cubicle). philly.com. Retrieved
10 February 2014.
7. ^ Jicha, Tom. "Dilbert To Get A New Cubicle -- On Upn" (http://articles.sun-sentinel.com/1999-01-
25/lifestyle/9901250155_1_dilbert-scott-adams-upn). SunSentinel. Retrieved 10 February 2014.
8. ^ Foster, Darren. "Scott Adams Interview creator of Dilbert" (http://groundreport.com/Scott-Adams-
Interview-creator-of-Dilbert/). ground report. Retrieved 9 February 2014.
9. ^ "Upn hopes ride on dilbert's white shirttails new animated series just doesn't do the job"
(https://web.archive.org/web/20140209010821/http://www.nydailynews.com/archives/entertainment/upn-
hopes-ride-dilbert-white-shirttails-new-animated-series-doesn-job-article-1.829135). The New York Daily
News. Retrieved 2010-10-26.
10. ^ Richmond, Ray. "Review: Dilbert" (http://variety.com/1999/tv/reviews/dilbert-1200456408/). Variety.
11. ^ Zurawik, David. "UPN is counting on `Dilbert' " (http://articles.baltimoresun.com/1999-01-
25/features/9901250183_1_dilbert-dogbert-omen). The Baltimore Sun. Retrieved 9 February 2014.
12. ^ Kelleher, Terry. "Picks and Pans Main: Tub"
(http://www.people.com/people/archive/article/0,,20127492,00.html). People Magazine. Retrieved 9
February 2014.
13. ^ Carter, Bill. "TV NOTES" (http://www.nytimes.com/1999/01/27/arts/tv-notes.html). The New York Times.
14. ^ "Dilbert" (http://www.emmys.com/shows/dilbert). The Academy of Television Arts & Sciences. Retrieved 9
February 2014.
15. ^ "Dilbert - The Complete Series Review" (http://www.tvshowsondvd.com/reviews/Dilbert-Complete-
Series/3283). TVShowsOnDVD.com. Retrieved 2013-09-08.
16. ^ "Dilbert" (http://www.hulu.com/dilbert). Hulu. Retrieved 10 February 2014.
17. ^ "Dilbert" (http://www.crackle.com/c/dilbert). Crackle.com. Retrieved 10 February 2014.
18. ^ Mill Creek to Re-Release 'The Complete Series' on DVD (http://www.tvshowsondvd.com/news/Dilbert-
The-Complete-Series/19158)
External links
Dilbert (http://www.imdb.com/title/tt0118984/) at the Internet Movie Database
Dilbert (http://www.tv.com/shows/dilbert/) at TV.com
Retrieved from "http://en.wikipedia.org/w/index.php?title=Dilbert_(TV_series)&oldid=601831869"
Categories: Dilbert 1990s American animated television series
2000s American animated television series Television programs based on comic strips
UPN network shows 1999 American television series debuts
2000 American television series endings Comedy Central shows
Television series by Sony Pictures Television Animated sitcoms
Television programs featuring anthropomorphic characters Satirical television programmes
English-language television programming Lists of television series episodes
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organization.

BRAD D. GREENSPAN, Plaintiff Case No: 9567-ML

V.

NEWS CORPORATION NEWS CORPORATION, 21ST CENTURY FOX
CORPORATION, NEWS AMERICA CORPORATION,WASHINGTON POST
CORPORATION, SONY CORPORATION, SONY CORPORATION AMERICA, SONY
MUSIC ENTERTAINMENT INC., 550 DIGITAL MEDIA VENTURES, INC. SONY
BROADBAND ENTERTAINMENT, INC., EUNIVERSE, INC NEWS CORPORATION, 21ST
CENTURY FOX, EUNIVERSE, INC. , RGRD LAW LLC, VANTAGEPOINT VENTURE
PARTNERS, ORRICK HERRINGTON LAW LLC, EMI MUSIC, WARNER MUSIC GROUP,
IAC CORPORATION, MYSPACE, INC., ASKJEEVES, INC., JP MORGAN CHASE
CORPORATION, REDPOINT PARTNERS CORPORATION ARENT FOX LAW LLC INC.
Defendants

PRAECIPE

To: Register In Chancery

PLEASE ISSUE Summons and a copy of the Complaint and Motion to Expedite through the
Sheriff of New Castle County, 800 N French Street, 5
th
Floor, Wilmington, Delaware 19801; To
be served on the following Defendants in the above listed caption

Name: News Corporation & 21
st
Century Fox Corporation
Address: c/o The Corporation Trust Company Corporation Trust Center, 1209 Orange St.
Wilmington, Delaware, 19801
Service pursuant to 10 Del. C. 3111

/s/ Brad Greenspan
Signature for Pro Se
Suite 1216
Dated: 4/25/2014

1
I N THE COURT OF CHANCERY OF THE STATE OF DELAWARE
BRAD D. GREENSPAN,
Suite 1216

Plaintiff,
v.

ST
CENTURY FOX CORPORATION, NEWS AMERICA CORPORATION,
WASHINGTON POST CORPORATION,
SONY CORPORATION, SONY CORPORATION AMERICA, SONY MUSIC ENTERTAINMENT INC.,
550 DIGITAL MEDIA VENTURES, INC. SONY BROADBAND ENTERTAINMENT, INC., EUNIVERSE, INC
ST
CENTURY FOX, EUNIVERSE, INC. , RGRD LAW LLC,
VANTAGEPOINT VENTURE PARTNERS, ORRICK HERRINGTON LAW LLC, EMI MUSIC, WARNER MUSIC GROUP,
IAC CORPORATION, MYSPACE, INC.,
ASKJEEVES, INC.,
JP MORGAN CHASE CORPORATION, REDPOINT PARTNERS CORPORATION,
ARENT FOX LAW LLC INC.

)
)
)
)
)
)
)
)
)
)
)

C.A. No. ________

1503 & INDEMNIFICATION COMPLAINT

2

Plaintiff, for his Complaint against the Defendants, alleging as follows:

I- PRELIMINARY STATEMENT & SYNOPSIS

1. Plaintiff Brad D. Greenspan (Plaintiff), a former Director an Officer of

eUniverse, Inc. a Delaware Corporation hereby files this complaint. Petitioner is

entitleu to a piivate cause of action foi uamages suffeieu as a iesult of Befenuant

acts , omissions, uamages, violations, anu othei losses causeu by the long iunning

1SuS(u) conspiiacy among Befenuants. Petitionei also has contiactual iights foi

Inuemnification anu Auvancement.

II - PARTIES

PLAINTIFF

2. Brad Greenspan, former Director, Officer, Shareholder of eUniverse, Inc

DEFENDANTS

3. News Corporation, a Delaware Corporation

4. 21
st
Century Fox Corporation, a Delaware Corporation

5. News America Corporation, Delaware corporations

6. Sony Corporation, incorporated in Japan (herein Sony Corporation

and its subsidiaries listed below will be referred to as Sony)

7. Sony Corporation America, a Delaware corporation

8. Sony Music Entertainment Inc., a Delaware Corporation

9. 550 Digital Media Ventures, Inc. (550 DMV), a Delaware Corporation

1u. Sony Bioaubanu Enteitainment, Inc., a Belawaie coipoiation
S

11. e0niveise Inc. , (name latei changeu to Inteimix) a Belawaie

Coipoiation (News Coip acquiieu in 2uuS)

12. Nyspace, Inc., a Belawaie Coipoiation (News Coip acquiieu in 2uuS)

1S. RuRB Law LLC, a Califoinia LLC

14. vantagePoint ventuie Paitneis, a Califoinia LLC

1S. 0iiick Beiiington Law LLC, a Califoinia LLC

16. ENI Nusic, a Belawaie Coipoiation

17. Wainei Nusic uioup, a Belawaie Coipoiation

18. Ask}eeves Inc., a Belawaie coipoiation (IAC Coip acquiieu in 2uuS)

19. IAC Coipoiation, a Belawaie coipoiation

2u. }P Noigan Chase, a Belawaie coipoiation

21. ReuPoint Paitneis, a Califoinia LLC

22. Washington Post Coipoiation, a Belawaie Coipoiation

2S. Aient Fox Law, a Belawaie LLC

III - JURISDICTION AND VENUE

24. The jurisdiction of this Court is conferred and invoked pursuant to

eUniverse, Inc., and its buyer, News Corporation being Delaware incorporated

IV- FACT HISTORY

The 1503 & 1505 Claims

25. 1503 & 1505 according to Delaware statute 1501 have a purpose:
4
to guard against and prevent the infiltration and illegal acquisition of legitimate
economic enterprises by racketeering practices, and the use and exploitation of both legal
and illegal enterprises to further criminal activities.

to apply to conduct beyond what is traditionally regarded as "organized crime" or
"racketeering."

26. Enterprise under 1502 is defined:
(3) "Enterprise" shall include any individual, sole proprietorship, partnership,
corporation, trust or other legal entity; and any union, association or group of persons
associated in fact, although not a legal entity. The word "enterprise" shall include illicit
as well as licit enterprises, and governmental as well as other entities.

27. Members of the SearchBriberyHacking (SBH) Enterprise are an

association-in-fact enterprise that are known as of the date of filing this

complaint to include: IAC, AskJeeves, News Corporation, Orrick Herrington,

VantagePoint Partners, RedPoint Partners, JPMorgan, Washington Post Corporation,

RGRD Law LLC, Sony Corporation, Sony Music Entertainment, Arent Fox, EMI,

Warner Brothers Music, MySpace Inc., Intermix Inc., Sony Corporation America, 550

DMV, Sony Bioaubanu Enteitainment Inc., as well as certain of their Officers,

Directors, and employees (Enterprise).

28. This Enterprise possessed and continues to possess a common

purpose and goal, a membership, organizational structure, and ongoing

relationships with sufficient longevity to permit and enable pursuit of the

Enterprises purpose and long-term objective through a continuous course of

conduct that affected and continues to affect interstate and foreign commerce.

Most or all of the members of the Enterprise are also Principals, defined under

Delaware statue,

S
(8) "Principal" shall mean a person who engages in conduct
constituting a violation, or one who is legally accountable for the
unlawful conduct of another person or entity.
29. The SBH Enterprise, members, and/or Principals engaged, attempted to

engage in, or conspired to engage in or to solicit, coerce or intimidate other person

to engage in Racketeering violations which under Delaware state law is defined as:

(9) "Racketeering" shall mean to engage in, to attempt to engage in, to conspire to
engage in or to solicit, coerce or intimidate another person to engage in:
a. Any activity defined as "racketeering activity" under 18 U.S.C. 1961(1)(A),
(1)(B), (1)(C) or (1)(D); or
b. Any activity constituting any felony which is chargeable under the Delaware
Code or any activity constituting a misdemeanor under the following provisions of
the Delaware Code:
Chapter 73 of Title 6 relating to the sale of securities; Chapter 5 of Title 11 & Title
6 relating to forgery and counterfeiting; Chapter 5 of Title 11 relating to perjury;
Chapter 5 of Title 11 and Title 28 relating to bribery and misuse of public office
and improper influence; Chapter 5 of Title 11 relating to tampering with jurors,
evidence and witnesses;
30. SBH Enterprise, members, and Principals that make up the SBH

Enterprise initiated a Pattern of racketeering activity between 2003 thru 2013,

defined as:

(5) "Pattern of racketeering activity" shall mean 2 or more incidents of conduct:
a. That:
1. Constitute racketeering activity;
2. Are related to the affairs of the enterprise;
3. Are not so closely related to each other and connected in point of time and
place that they constitute a single event; and
b. Where:
1. At least 1 of the incidents of conduct occurred after July 9, 1986;
6
2. The last incident of conduct occurred within 10 years after a prior
occasion of conduct; and
3. As to criminal charges, but not as to civil proceedings, at least 1 of the
incidents of conduct constituted a felony under the Delaware Criminal
Code, or if committed subject to the jurisdiction of the United States or
any state of the United States, would constitute a felony under the
Delaware Criminal Code if committed in the State.
31. SBH Enterprise racketeering activity included: 18 U.S.C. 1341
(relating to mail fraud), 18 U.S.C. 1512 (relating to tampering with a witness,
victim, or an informant) 18 U.S.C. 1513 (relating to retaliating against a witness,
victim, or an informant) and 18 U.S.C. 1519 (relating to destruction, alteration, or
falsification of records in Federal investigation and bankruptcy).
32. The pattern of racketeering activity is based on the following facts:

33. Principals and members of the SBH enterprise desired and wanted

to fraudulently take control of a publicly traded company that was the #1 fastest

growing Top 10 Property in the world as of October 2003.

34. Defendants launch series of schemes and frauds to take control of publicly

traded MySpace and its parent corporation eUniverse (later renamed Intermix) and oust

founder/CEO Brad Greenspan.

35. Defendants also initiate schemes to defame and harass Petitioner, and

additionally obstruct justice.

36. Not satisfied with their existing economic gains, defendants embarked on an

ever growing series of schemes and misdeeds to loot the public company.

37. Petitioner on January 23, 2004 published press release titled:

Substantial Conflicts of Interest with Respect to Verisign
Nasdaq:VRSN And Ask Jeeves NASDAQ: ASKJ
7
stating:
i.eUniverses Future Success in Lucrative Paid Search Space Is
Threatened By Existing Director Conflicts

ii.certain of eUniverses incumbent Directors have substantial conflicts of interest
that could threaten the Companys success in the paid search industry.

iii.Daniel Mosher has conflicts of interest arising from his middle management role
at Verisign, Inc. (NASDAQ: VRSN) which introduced the sitefinder redirect
service in direct competition with eUniverses PerfectNav application.

iv.David Carlick has a conflict of interest arising from his membership on the Board
of Ask Jeeves (Nasdaq: ASKJ), which is a pure play in the paid search space.

V.Carlick has the ability to influence management decisions which may adversely
affect eUniverses Paid Search division.

DEFENDANTS ENTRENCHMENT SCHEME SHIFTS CONTROL

38. Petitioner incorporates by reference Exhibit #1 which includes:

i. January 2, 2014 letter to Chancellor Strine

ii. NOTICE MOTION IN CONTEMPT

iii. MOTION FOR CONTEMPT 70(B) 42(B) AND/OR 60(B)(3)

iii. DECLARATION IN SUPPORT OF MOTION 70(b) 42(b) CONTEMPT

iv. JUDGMENT ENTRY SETTING HEARING

(Note: All above unsigned documents were signed and submitted by courier
January 2, 2014 to Brenda at intake with copy of December 2013 proof of
service to Defendants )

DEFENDANTS PASS ON FRAUDULENTLY CONCEALED EDELL DI SCLOSURE VI OLATI ON TO
ACQUI ROR NEWS CORPORATI ON

39. July 17, 2005 News Corporation Corporate counsel Lang emailed at 4:13AM
to Defendant eUniverse Director Sheehan and states, by interstate wire or interstate
carrier an email furthering the fraudulent concealment scheme to fabricate and
8
fraudulently conceal unlawful acts including contempt of Court to acquiror News
Corporation as clearly exhibited in email disclosed by Class Counsel in 2011 Federal
security fraud class action. Subject: 'Purchase Agreement, stating,

"On the issues, let's close on the remaining ones in a fair and reasonable
way-- so we can build out relationship. And

3. We feel like we have given indemnification on the shares and the
purchase agreement itself to do so on any issue we have had no
involvement in whatsoever (i.e. Greenspan) - that seems like
too much. Andy, I know we are very eager to get this done. Let do it
so both sides can feel good and move forward on our longer-term
relationship."

Langs communication is in violation of 18 U.S.C. 1341, 18 U.S.C. 1343, and 18
U.S.C. 1519 (relating to destruction, alteration, or falsification of records in Federal
investigation and bankruptcy).

2013 HITECH FEDERAL CLASS ACTION EVIDENCE
40. Evidence disclosed for the first time May 2013 in the Hitech Class Action

Case 5:1102509, specifically document 198-3, page 37 and 38, proves Google had

undisclosed illegal agreements in place with AskJeeves, AOL, Intel, Intuit, IAC Corp.

and Apple as of March 6, 2005 or earlier violating Federal antitrust statues. The

companies fraudulently concealed the agreements and failed to disclose them in

their annual 10K SEC or Proxy filings, violating security law and Director fiduciary

duties.

41. The evidence confirms Petitioner and shareholders were victims in

2005 of an bid rigging conspiracy led by Google and enacted in coordination with

AskJeevess Directors who used their positions on the Boards of both MySpace,

Inc. and Parent eUniverse to mislead the other Directors and shareholders while
9

facilitating and enjoying the economic benefits of an illegal bid rigging scheme.

42. This conspiracy included: (i) fabricating prior sale of MySpace stock

with backdated agreement in November 2004 (ii) agreements allowing AskJeeves

Director Jeff Yang to purchase 30% of MySpace, Inc. in February 2005 at below

fair market value using his RedPoint fund where he is managing Director;

a. September 27, 2004 Vantagepoint internal report proves SBH Enterprise,
Carlick, and AskJeeves manipulated Intermix Directors to forgo using less dilutive debt
financing available, instead facilitating sweetheart equity sale to Yang and RedPoint
Partners.
Myspace wi l l r equi r e appr oxi mat el y $1. 5 - 2 mi l l i on i n t he next 2
mont hs f or st or age ar r ays, dat abase ser ver s, swi t ches and
r out er s.
And
The company i s i n di scussi ons wi t h Si l i con Val l ey Bank r egar di ng
a $4m l i ne of cr edi t , whi ch i s l i kel y t o be appr oved.

b. October 1, 2004, 3:05PM Rosenblatt contacts Sheehan using interstate wire

or interstate carrier to send and deliver the email:

J ust had a t ough t al k wi t h Chr i s DeWol f . Hi s l awyer i d def i ni t el y gi vi ng
hi m concer ns about our of f er . Hear t ache about us t aki ng t he t ech, val ue
i f we sel l , et c. He r eal l y t hi nks he i s wor t h mor e i ndependent l yI am
t ol d hi m t hat i s not goi ng t o happen.

the disclosed order of events described in the November 2004 10Q is fabricated and this
email is in violation of both 18 U.S.C. 1341 & 18 U.S.C. 1343, and is a Key
component and predicate act in fraudulently concealing the false facts in the November
eUniverse 2004 10Q filing related to hiding backdated MySpace stock purchase
agreement by defendants.
c. October 7, 2004 3:45PM Sheehan contacts Rosenblatt & Carlick by interstate
wire or interstate carrier using an email in violation of 18 U.S.C. 1341 &/or 1343
1u
fabricated and backdated with Subject: MS t hought s of t he day,
My cur r ent t hought s on t he MS si t uat i on:

We need t o get i n pl ace t he r evi sed agr eement bef or e any meani ngf ul
negot i at i ons wi t h any ot her t hi r d par t y.

* I bel i eve I under st and Chr i s concer ns about bei ng l ocked i nt o an i l l i qui d
subsi di ar y, but t hat i t s t hei r choi ce t hey coul d have MI X st ock i f t hey
want l i qui di t y.

* They ar e mi nor i t y shar ehol der s and need t o accept t hi s f act .

* We, I nt er Mi x, need t he r i ght t o be abl e t o sel l al l of MS. I ncl udi ng
f ounder s shar es.

We, I nt er Mi x, need t he r i ght t o buy out t he f ounder s at a pr i ce or a
f or mul a

On Redpoi nt :
* Why not cont i nue t al ki ng t o t hem, i t i s t oo har d t o f i gur e out i f t hey
coul d pr esent t he most at t r act i ve deal or not at t hi s t i me

d. November 4, 2004 11:43PM Carlick emails Sheehan, by interstate wire or
backdated Subject: My t al k wi t h Yang stating,

Andr ew, Spoke wi t h Geof f , who hol ds you i n t he hi ghest r egar d. I
am not i n t he l oop on t hei r of f er , whi ch he descr i bed as 23%
Redpoi nt , 25% Founder s and pool and 52% I nt er mi x.

Hi s case f or t he of f er was i nt er est i ng and compel l i ng, as I nt er mi x
coul d st i l l f ol d i n t he ear ni ngs, t r af f i c, et c. I want t o di scuss wi t h
you my t hought s on t he subj ect t omor r ow, God know when, as we
11
have no br eaks I can count on. I n any case, I suggest ed t hat Geof f
speak wi t h you di r ect l y.

e. November 5, 2004 11:58AM Sheehan contacts Carlick and states, by
interstate wire or interstate carrier an email in violation 18 U.S.C. 1341 &/or 1343
fabricated and backdated
what i t comes down t o i s do we sel l ms now or keep i t . Doi ng a
deal wher e mi x keeps 52% doesn t make any sense f or anyone
except Yang. Al l t he banks and i nvest or s t hi nk we woul d be f ool i sh
t o sel l some or al l of ms now. We wi l l get much l ess benef i t t o mi x
i f we own 52% and have gi ve al l sor t s of r i ght s t o an i nvest or .
Ri char d want s t o keep i t i n mi x.

f. November 18, 2004, 3:56PM Orricks Richard Harroch contacted Sheehan,
Redpoint & AskJeeves Director Yang and RedPoints Beasly, by interstate wire or
backdated
Subject: MySpace Ter m Sheet and states,
Gent l eman: As a f ol l ow up t o our conver sat i on t oday, at t ached i a a
cl ean and r edl i ned mar kup of t he l ast ver si on of t he t er m sheet t hat was
gi ve t o us i n connect i on wi t h t he Myspace t r ansact i on. Let us di scuss t he
i ssues at your conveni ence. Ri char d Har r och <<MySpace Sal e of Ser i es
A Pr ef er r ed St ock. doc>>

g. Rosenblatt by interstate wire or interstate carrier uses email in violation 18
U.S.C. 1341 &/or 1343 to further the fraudulent concealment scheme forwards an
incoming Orrick email to Chris Lipp and Tom Flahie at 4:28PM to fabricate and
The email states: I have not seen yet
12
Rosenblatt professes to not know the terms that the company has already agreed to sell a
portion of MySpace.com to VantagePoints fellow board member on Ask Jeeves, Geoff
Yang and his fund company he is a principal in, Redpoint.

h. November 18, 2004 CFO Flahie emails Rosenblatt, Subject: RE: MySpace
Term Sheet and states,
t hi s si t uat i on r eal l y goes beyond anyt hi ng I want t o be a par t
of . I communi cat ed my f eel i ngs i n wr i t i ng t wi ce now about t he
l awyer f or a l ar ge pr ef er r ed st ockhol der and one di r ect or
negot i at i ng a maj or busi ness t r ansact i on on behal f of t he company
wi t hout aut hor i zat i on of our boar d and al l I r ecei ved was an
admoni shment f r om Har r och about my emai l and t ol d t o shut up i n
a conf er ence cal l .

Si nce you have not seen t hi s yet and I have cer t ai nl y not , t hi s
makes a br oader st at ement about our Seni or Management . As an
of f i cer I woul d be der el i ct i n my dut i es t o our company t o al l ow
t hi s t o cont i nue out si de of t he vi ew of t he Boar d wi t hout doi ng
somet hi ng about i t

Flahie uses interstate wire or interstate carrier in violation 18 U.S.C. 1341 &/or 1343
to deliver email to further the fraudulent concealment scheme to fabricate and

i. November 18, 7:20PM Rosenblatt emails Flahie Subject: Re:Myspace Term
Sheet, stating:
Tom, I know how t hi s coul d l ook but i t i s NOT at - al l how i t may
appear .
and
Andy NEVER l ooked at i t as a vant age shar ehol der , but as a
Boar d member l ooki ng out f or I nt er mi x as a whol e.
and
I bel i eved (and was r i ght ) t hat he was bet t er posi t i oned t han I
was t o ext ract t er ms t hat woul d be accept abl e t o t he Boar d at
l ar ge. Over t he past week he was, t o my sur pr i se, abl e t o get t he
1S
t er ms we al l t hi nk ar e BETTER f or t he company and make t he
Redpoi nt deal a gr eat deal .
and
I n hi ndsi ght , I shoul d have asked hi m t o gi ve t hose new t er ms t o
Chr i s and we shoul d have sent t he t er m sheet t o Redpoi nt . I pl an
on cl ar i f yi ng wi t h Redpoi nt t omor r ow t hat Andy was si mpl y hel pi ng us
get a deal done and t he Company wi l l t ake i t f r om her e.
i

Rosenblatt uses interstate wire or interstate carrier in violation 18 U.S.C. 1341 &/or
1343 to deliver email to further the fraudulent concealment scheme to fabricate and
j. November 18, 2004 at 7:51PM, Sheehan forwards the email thread and
CFOs effective whistleblower notification to Orricks Harroch who is directly
involved in the incident. Sheehan uses interstate wire or interstate carrier to deliver
email to further the fraudulent concealment scheme to fabricate and fraudulently conceal
the MySpace Stock purchase documents published in the November 2004 10Q, to hide
the fact the documents were fabricated and backdated, to conceal scheme to sell 25% of
Myspace.com to conflicted Interlocking Director violating Clayton Act fellow
AskJeeves Director, Geoff Yang in violation of 18 0.S.C. 1S41, 18 U.S.C. 1343,
anu violation of 18 0.S.C. 1S19 (ielating to uestiuction, alteiation, oi falsification
of iecoius in Feueial investigation anu bankiuptcy).

(iii) agreements allowing Google, TimeWarner/AOL, News Corporation, AskJeeves,

IAC, and other defendants to collude to gain economic benefits by delaying

closing of a competitive EUNI MySpace search engine auction for a new

commercial search engine agreement in the months leading up to News Corporation

acquiring 100% of eUniverse in September 2005. This arrangement ensured

Googles $4.4 Billion dollar August 2005 secondary by tying up the fast growing

14
online audience of MySpace, significantly growing its share of online

search engine advertising while shrinking share of main rival #2 Yahoo; (iv)

An arrangement allowing News Corporation to purchase MySpace.com at below

fair market value, growing its market valuation and generating billions in

incremental profits and a massive online audience to seed new online assets for

years to come, while preventing a competitive auction with main rival Viacom.

k. MySpace and eUniverses failure to elect 5
th
MySpace Director was key

part of scheme to rig bidding in Search Auction and sale of eUniverse. Failure to

disclose Intermixs majority owned MySpace, Inc. was in breach of this covenant in the

August 2005 Proxy was a 14A violation. Defendants breach and non disclosure of such

breach are used to effect the Antitrust bid rigging scheme. Defendants violated 18 U.S.C.

1341 thru publishing,distributing and mailing the August 2005 Proxy omitting the

disclosure of such breach.

l. euniverses failure to cure breach of Merger Agreement Sections

6.3 & 6.4 & 6.5. was a key part of scheme to rig bidding in Search Auction and

sale of eUniverse. Failure to disclose the breach in the August 2005 Proxy was a

14A violation. Defendants breach and non disclosure of such breach are used to

effect the Antitrust bid rigging scheme. Defendants violated 18 U.S.C. 1341

thru publishing, distributing and mailing the August 2005 Proxy omitting the

disclosure of such breach

m. eUniverse and CEO Rosenblatt by end of June has earmarked $25-30
million in monies the executives are not owed or entitled to which helps float his own
1S
requests for consideration higher. June 23, 2005 Email from Rosenblatt to
Montgomery on with subject presentation and attachment foxmeeting.ppt states,
This deal would need to be a win-win for everybody. I think we could motivate and
energize the Myspace team if we took $25-30mm and put in escrow for 12-24 months.
They would receive that money if they continued to build Myspace and remained at the
Company. Right now, they own 20% and would receive about $20MM (due to the
preference from Redpoint) if we exercised our option. If they could sell for $250mm they
would receive $50mm. While they think Myspace is worth far more than $250mm, the
escrow would clearly be enough incentive to keep them very motivated and want to stay
on board.

eUniverse and Rosenblatt thru use of such email violate 18 0.S.C. 1S41 &oi 1343,
anu 18 0.S.C. 1S19 (ielating to uestiuction, alteiation, oi falsification of iecoius in
Feueial investigation anu bankiuptcy). Scheme is designed to bribe certain members
of management to support the below fair market sale of MySpace to News Corporation
while not disclosing such additional payments in the Proxy as required by Federal law.

n. On July 18, 2005 at 8:19PM, eUniverses Rosenblatt uses interstate wire to

email News Corporation executive, Levinsohn in violation 18 U.S.C. 1341 &/or

1343 to further the fraudulent scheme to sell eUniverse and Myspace below fair market

value. The email indicates Rosenblatt is aware the $12.00 per share price he negotiated

with News Corporation days earlier is below fair market value and is aware of the

correct valuation level for internet assets including the future value Google will use to

value AOL in the months ahead,

Snippet of the press playa. You will be famousnow 20B

BROWN v. BREWER FEDERAL SECURITY FRAUD CLASS ACTION

42. Petitioner was originally part of a Federal Class Action filed in
16

Federal Court as a securities class action, titled Brown v. Brewer. However,

the defendants led by News Corporation and Hogan Lovell , engaged in a

series of coverups and struck a deal with Class Counsel to remove key

evidence and claims including initiating a scheme to blatently obstruct justice

by eliminating petitioner before he could submit evidence into the Federal

court in 2009 which would have led to adding claims

43. June 17, 2010 Federal Judge King Summary Judgement states:

Though Brewers failure to recall what everyone had specifically
asked back in 2005 would be understandable, a reasonable jury
might draw a negative inference from his representation that he
could not recall any discussion as to the investment banks analyses.

Construing all of the above testimony in the light most favorable to
Plaintiff as we must on Defendants motion for summary judgment,
we conclude that it is at least triable as to whether the remaining six
board members consciously disregarded their duties and acted in bad
faith. There is evidence in the record suggesting that no one on the
board asked any questions about the requested per share price, the
treatment of the competing bidders, the fairness valuations, or the
relative likelihood of a Viacom bid.

A reasonable jury could infer that this evidence demonstrates the
other six directors consciously abdicated their roles as corporate
fiduciaries required by law to do their utmost to maximize
shareholder wealth.

Nevertheless, we think a reasonable jury could find that the other
six directors exceeded the bounds of negligent conduct, willfully
proceeded to their decisions knowing they lacked material
information, Gesoff, 902 A.2d at 1165, and thereby consciously
disregarded their fiduciary duties. Disney, 906 A.2d at 66


In the alternative, Defendants move for summary judgment on the
second theory supporting the breach of fiduciary duty claim, arguing
that five of the eight Defendants (a majority) were not self interested
or controlled by someone who was.

17
Plaintiff argues that Rosenblatt deliberately misled the other board
members regarding the viability of the Viacom bid, steering them
into approving the merger without waiting even a couple more days
to see if Viacom would top News Corp.s offer. (Joint Br. 26-27).

This evidence is sufficient to raise an inference that Rosenblatts
presentation to the board may have been misleading as to Viacoms
seriousness.

According to Moshers description of the board meetings, from the
management team estimation standpoint [sic], they were not
inclined to make an offer for the company on the time line that we
were looking at. (Id. at 25:18-21).

there are at least triable issues of fact as to whether Mosher was
manipulated by a self interested director, Rosenblatt. Moreover,
based on Moshers description of the content of Rosenblatts
presentations to the board, the issue of manipulation is triable with
respect to all of the other board members.

Accordingly, as a reasonable jury could potentially conclude that a
majority of the directors was interested or manipulated by someone
who was, we hereby DENY Defendants Motion for Summary
Judgment on this second basis for Plaintiffs claim of breach of the
duty of loyalty.


current revenue and profits omission, which was so clearly
identified in the CSAC (if not so clearly in the interrogatory
responses). Accordingly, as this argument was not waived, and
Defendants have not made any threshold showing entitling them
to summary judgment on this basis, we DENY the Motion for
Summary Judgment as to this alleged material omission under
Count I

materiality of the omission of Intermixs internal financial
projections. Accordingly, Defendants Motion for Summary
Judgment is DENIED as to this alleged material omission.

Outstanding Derivative Lawsuits

Plaintiff also argues that Defendants failed to disclose one pending
18
derivative lawsuit, LeBoyer v. Greenspan, et al., No. CV 03-5603-
GHK (JTLx), and the fact that shareholder derivative standing would
be extinguished as to both LeBoyer and Greenspan v. Salzman, the
two derivative lawsuits pending at the time the Proxy was issued.

Defendants concede that they did not disclose the existence of the
pending LeBoyer action. (Joint Br. 56 n.67).

With respect to the disclosed Greenspan v. Salzman action,
Defendants argue they had no obligation to further announce the
extinguishment of derivative standing.

Here too, the disclosure above is arguably misleading as well, as it
did not affirmatively disclose that the Greenspan v. Salzman
plaintiffs derivative standing would be extinguished under Delaware
law. (J.A., Ex. 4, at 332). Instead, it only stated that Fox Interactive
Media would seek the dismissal of the action and would do so only if
it was not required to pay the plaintiffs or their counsel. (Id.).
Accordingly, it is at least triable whether the above language was
misleading as to the extinguishment of derivative standing, which
was material information.

Accordingly, we also hereby DENY Defendants Motion for Summary
Judgment as to this alleged material omission.

44. Edell & Defendants in mid-2009 launch another prong of fraudulent

concealment. includes i) publication of a book by employee loyal to

News Corp to fabricate the background of Jeff Edell a former Director ii) Using

fabricated Edell character to conceal truth that MySpace asset sale documents were

not executed until 2004. These schemes create a fraud upon the court and keep

petitioner and Class members from getting benefit of fair judicial process.

45. Defendants leverage their relationship with acquiror to create

defamatory and fabricated lies thru acquiror News Corporation employee Angwins

published in late 2009 book, Stealing MySpace which fraudulently conceals the

true background of former Director and Chairman Jeff Edell and his scheme with
19

Brewer to forward a fabricated false resume.

46. This creates further ongoing defamatory damages to Plaintiff and

Shareholders because Class Counsel accepts and uses false Edell facts in book

instead of Plaintiffs facts offered to Class Counsel in 2012 Federal Class Action in

Los Angeles Central District. Edells false facts allow the fraudulent conveyance

Of approximately 50% of Myspace.com, the crown jewel of eUniverse, Inc. in 2004.

Further, Edells false facts which become Acquiror News Corporation false facts,

obstruct Plaintiffs true facts from entering the record for the benefit of the Federal

Court learning the true damages and claims rightfully owed to shareholders. Plaintiff

and shareholders will continue to suffer until the defective disclosure is cured by


47. Additional act of fraudulent concealment is part of scheme by defendants tied

to 2009 Angwin published book that uses fabricated documents to support critical

contentions. altering, destroying, mutilating, or concealing a document with the intent to

obstruct justice in violation of 18 U.S.C. 1512(c)(1);

48. Petitioner a fact witness with testimony that was adverse to Defendants was

excluded and obstructed from entering evidence into the Brown Brewer case,

immediately before Defendants plugged in Angwins false facts and testimony while

using Stealing MySpace as an uncontested source of facts to corrupt the

Classs case And damage/expert reports.

49. News Corporation destroyed Petitioner testimony from appearing which

damages Petitioner and violates Section 1512(d) which criminalizes the actions of

2u
[w]hoever intentionally harasses another person and thereby hinders, delays, prevents,
or dissuades any person from appearing before an official proceeding, law enforcement
officer, or United States judge.

50. Angwin fraudulently conceals evidence of Edells true work experience and

back ground and his violation of SEC rules in 2003 and 2004. Defendants conceal their

knowledge of this scheme thru the March 19, 2012 Approval of the Federal Brown


intervene to remove RGRD and Jim Brown from representing the Federal

Class and agreeing to An Inadequate consideration for the settlement and failure to assert

more valuable claims and evidence into the Court prior to approving settlement.

51. Angwin, Hinton, News Corporation, Hogan Lovell, RGRD, and eUniverse

Defendants violate 18 U.S.C. 1512(c)(1) and 18 U.S.C. 1519 by hiding evidence of

Edells two resignations on his bio that were really his last two jobs instead of submitting

an accurate bio, defendants stretched the job of Edell that was actually 3 jobs prior, and

increased this 3rd job by another 2 years, to the year 2002 (from 2000). Edell both

omits to accomplish his end goal of making detection and disclosure of his true track


i. Angwin, News Corporation, Hinton, Murdoch, RGRD, eUniverse

and Orrick Conceal the false revised BIO of Edell filed in July 2004 SEC filings:

"Mr. Edell was the Chief Executive Officer of Showorks Entertainment
Group. Inc., a Delaware corporation that later changed its name to Media
Technology Source of Delaware, Inc. Within two years of the time that Mr.
Edell resigned from that company, it filed a petition for relief under the
United States Bankruptcy Code."

52. Defendants scheme entailed Creating a fictitious Glowing work experience

21
for Edell using a fabricated Resume in 2003 that News Corporation, Hinton, Angwin,

and Murdoch determined would be used to harm Petitioner In a book that was published

called Stealing MySpace and was sent in US Mail to bookstores Across the United

States beginning in March 2009, and overseas with the fabricated false facts related to

Edells true work Experience and his SEC violations in 2003, 2004, 2005 in violation of

Rule 401, this violated section 18 U.S.C. 1341.

53. After the Class won summary judgement in June 2010, petitioner in

2011 tried to bring new evidence to the attention of Class Counsel indicating the

true damages were related to the value of MySpaces search value, the claims and

facts which had never been put before the Federal Court. Petitioners Rule 701

damage report providing for damages of over $96 billion dollars was ignored by

Class Counsel who instead joined with defendants in a brazen scheme to: i)

mislead and initiate a fraud upon the Court by changing the definition of the

certified class to eliminate upwards of 60% of the eligible shares and shareholders

and ii) enter into a sham settlement for pennies on the dollar which was accepted

by the Federal Court in March 2012.

S4. In Septembei 2u1u, by RuRB, Baion, Bogan Lovell, Stone, News

Coipoiation, 0iiick anu othei Befenuants filea }oint Notion to ban fact witness anu

Petitionei fiom the Feueial Class to uelay anu haiass Petitionei fiom appeaiing

befoie Feueial }uuge. Befenuants knew the motion to ban the petitionei coulu not

be tiue unless 0iiick coulu continue to suppiess new eviuence anu uiscoveiy fiom

enteiing the Feueial Biown v. Biewei ongoing case.
22

SS. 0thei Eviuence uestioyeu by 0iiick incluueu theii ties anu business

with NySpace Paient Company executive Chiis BeWolfe. 0iiick anu BeWolfe woik

togethei in 2uu4 anu 2uuS to uocument a fabiicateu sale of equity of NySpace at

iock bottom piices foi BeWolfe.

S6. In 2u1u, Baion anu News Coipoiation anu Bogan & Lovell, anu Stone, anu

RuRB anu 0iiick violateu 18 0.S.C. 1S41 (ielating to mail fiauu) by senuing notice

of the }oint Notion to Biief the "Notion to Ban Biau uieenspan" foi puipoiteu "ies

juuicata" they intenueu to file in Feueial Couit via email to Petitionei's then lawyei

Ni. Lawience.

i. Above Befenuants violateu fuithei 18 0.S.C. 1S12 (ielating to

tampeiing with a witness, victim, oi an infoimant) 18 0.S.C. 1S1S (ielating to

ietaliating against a witness, victim, oi an infoimant) anu 18 0.S.C. 1S19 (ielating

to uestiuction, alteiation, oi falsification of iecoius in Feueial investigation anu

bankiuptcy) by omitting anu uestioying the eviuence they possesseu at the time

the above actions weie taken that woulu have pioviueu new facts anu infoimation

anu claims not iaiseu oi in State pioceeuing anu that woulu have the effect of

voiuing the uefenuant's motion.

ii. RuRB, Baion, Wissbioeckei violateu theii fiuuciaiy uuty to Petitionei as

well as aiuing anu abetting above violations of othei Befenuants.

iii. Baion & RuRB lieu anu fabiicateu biiefings, pleauings, anu affiuavits in 2u11
anu 2u12 to fiauuulently conceal the piioi ciiminal acts in Feueial Couit.

S7. In Becembei 2u1u, RuRB was again uisloyal by changing the Class
2S

Ceitification to ieuuce the # of eligible shaies.

i. 6/8/09 Judge King approved Certified Class with definition:

Most clear is position of RGRD Law at the time:

Plaintiff responds herein to both questions raised by the Court in its Order re:
Plaintiffs Motion for Class Certification: (1) should the class definition be
modified to include only holders of Intermix Media, Inc. common stock who
held continuously from July 18, 2005 (the date the merger with News
Corporation was announced) through the consummation of the merger on
September 30, 2005; and (2) should the plaintiffs in the state court actions be
carved out of the class definition? As set forth below, the answer to both
questions is no.

ii. 12/23/10 Certified Class is victim of definitional change by RGRD

Law, inserting ulawfully, word continuously. This cuts approximately 60% of total

shares that were eligible under Certified Class definition.

iii. December 2011 RGRD challenged by Shareholders objecting
1
to

Settlement denied the Class Certificate had been switched.

58. Sony Music Corp and Seligmann using its control position on the Board of

the RIAA and its relationship with EMI and Warner Music Group, induced Arent Fox to

falsify his affidavit and the fact contained which were used to conceal the fact that EMI

and Petitioners startup LiveUniverse, Inc. had entered into a music text lyric license

prior to Warner Music, EMI, RIAA, Sony Music, and PeerMusic filing a federal

1
*Included:
-Largest shareholder of original Certified Class defined in 2009, Trafelet & Co., a multi billion dollar
NY Hedge Fund which retains law firm referred by Brad Greenspan, another injured shareholder and
fact witness. Brad was one of named plaintiffs in State Class action which was dismissed in 2006.
-Similar to Cut/lost shares, RGRD switched its position unlawfully, allowing
Defendants to file uncontested Motion to Ban state court plaintiffs, un defended, default judgment
carved out Brads 2,900,000 shares. (Brad was the largest single shareholder, owning about 10%
commons stock at time of sale.

24

copyright infringement complaint that claimed LiveUniverse had never entered into such

an agreement in 2009.

59. It was part of the Defendants scheme to conspire to interfere with Plaintiffs

livelihood by filing a lawsuit against Plaintiff in 2009 in retaliation for providing

truthful information to the SEC, DOJ, and FTC relating to the Defendants scheme, in

violation of 18 U.S.C. 1513(e) and (f).

60. It was part of the Defendants scheme to interfere with Plaintiffs

livelihood by disseminating defamatory statements about Plaintiff to the public through

various media outlets in retaliation for providing truthful information to the SEC, DOJ,

FTC, and Federal and State court relating to the RICO Defendants scheme, in violation

of 18 U.S.C. 1513(e) and 1513(f),

NEWS CORPORATION: CRIMINAL HACKING & BRIBERY

61. In 2012, News Corporation, who indemnified director defendants in

Brown v. Brewer and was operating the cases U.S. legal strategy, was exposed as

a criminal enterprise that had hacked the phones of over 1000 UK citizens and

employed a massive campaign of bribing police and public officials.

62. News Corporations general counsel resigned in 2011 and its

CEO appearing under oath at the Leveson Inquiry admitted he was the victim

of a coverup and all criminal acts exposed had gone on without his knowledge.

63. News Corporation conceded its internal controls were

defective as a result of the exposure of years of bribes its UK subsidiaries had

paid out and hidden by falsifying its financials.

64. At the current time, the CEOs most trusted lieutenants and top

2S
employees are on criminal trial for obstruction of justice, bribery of government

and police officials, and criminal phone hacking in the UK.

65. Four employees of News Corporation have already pled guilty.

66. News Corporation, has already conceded it has no defense for the

illegal acts charged and admits its internal controls were defective and the CEO

didnt know what was going on and the same coverup News Corp claims to be a

victim of was operating and responsible for the acts petitioner claims herein.

V - CONCLUSION:

67. Chancery Courts failure to force Defendants to honor their promise to

fix the defective Disclosure in 2003 is directly responsible for allowing Defendants

to steal upwards of $32 Billion in damages (Rule 701 Damage Report) from thousands

of shareholders in 2005 including Petitioner.

68. Defendants have failed to respond to a Motion 70(b) filed with Judge Strine

January 2, 2014 seeking relief from the contempt of then Vice Chancellor Strines order

and ruling January 14, 2004 and the included agreed relief for any technical violation.

VI. CLAIM COUNTS






26


74. All Defendants have violated 1503 (c)



COUNT # 5 1504 TRIGGERED PETITIONER
RIGHT TO CIVIL REMEDY UNDER 1505(f)

78. News Corporation 2013 UK CRIMINAL GUILTY PLEAS UNLAWFUL

UNDER 1504 and 1505(f)



80. Sony has breached The }uly 2uuS 0ption agieement which stateu,

iv. Pursuant to the debt financing agreements, eUniverse and VPVP
agreed that in the event that VPVP does not exercise the Option within 120
days of its grant, that VPVP may, within 10 days after the expiration of such
120-day period, transfer the Option to eUniverse in exchange for a warrant
(the Warrant) to purchase 200,000 shares of the Companys Series C
Convertible Preferred Stock.

81. Sony and VantagePoint Venture Partners have further breached
OPTION AGREEMENT, dated as of July 15, 2003, among 550 Digital Media
Ventures, Inc. (Seller), an affiliate of Sony Broadband Entertainment, Inc.,
eUniverse, Inc., a Delaware corporation (the Company), and VP Alpha
Holdings IV, L.L.C. (Buyer).
Sections 6 & 7 & 10 & 14 which state:

6. Representations and Warranties of Seller. Seller represents, warrants and
covenants to Buyer, as of the date hereof and as of the Closing Date, that:
27
(e) No Price Stabilization or Manipulation. Seller has not taken and will not
take, directly or indirectly, any action designed cause or result in stabilization
or manipulation of the price of any of the Shares.

7. Representations and Warranties of Buyer. Buyer represents, warrants and
covenants to Seller, as of the date hereof and as of the Closing Date, that:

(c) No Price Stabilization or Manipulation. Buyer has not taken and will not
take, directly or indirectly, any action designed to cause or result in
stabilization or manipulation of the price of any of the Shares.
14. Buyer May Exercise Option For Less Than All Shares. Notwithstanding any
other provision herein to the contrary, Buyer may exercise the Option with respect to
less than all of the Shares, but in no event less than 50% of the Shares.
10. Certain Transactions. Seller shall vote as a stockholder in favor of an investment
and loan transaction between the Company and Buyer resulting in an additional
investment in the Company by Buyer of no less than $5 million at a price of at least
$1 per share (if an equity transaction), as approved by the Board of Directors of the
Company (the Transaction).

16. Miscellaneous.
This Agreement may not be modified or amended, except by an instrument in
writing signed by duly authorized officers of both of the parties hereto.

82. Proxy notes on page 17. that on October 31, 2003, the option term

was extended to April 16, 2004 and VantagePoint partially exercised the option and

purchased 454,545 shares of our Series B preferred stock from 550 Digital Media

Ventures. The note an exhibit had an original term of 120 days or November 16,

2003 for VantagePoint to purchase the Sony Corp shares under the option.

83. In Intermix 3/31/04 - 10K section 'Certain Relationships

"On October 31, 2003, the option term was extended to April 16, 2004 and
VantagePoint partially exercised the option and purchased 454,545 shares
of our Series B preferred stock from 550 Digital Media Ventures. On April
16, 2004, VantagePoint exercised the remainder of the option.

84. However, The October 31, 2003 extended option agreement between

28
Sony and VantagePoint was improper and what was not disclosed to shareholders

was that thru Orrick and defendants actions, shareholders i) were losing the bargain

of the deal which called for Issuer to have the right to purchase 100% of the Sony

Option Shares after January 16, 2004 as part of an agreement that would transfer

200,000 Series B Warrants of Issuer to VantagePoint and ii) The October 31, 2003

extended option actually acted as a way that Orrick and defendants sought to avail

themselves of the 19.9% nasdaq and other exchange limits that required Issuer to

have a shareholder vote prior to approving any issuance of stock of Issuer including

an issuance of stock as part of an integrated deal that shifted more then 19.9% of

Issuers stock to new party.




THRU FAILURE TO DISCLOSE COMPLIANCE
FAILURES


COUNT #9 RULING BASED ON DELAWARE STATUE
AND CODE 1304 THAT 2004 MYSPACE TRANSFER
AND 2005 TRANSACTIONS FRAUDULENT
90. 1304. Transfers fraudulent as to present and future creditors.
COUNT #10 VIOLATION OF DODD-FRANK
WHISTLEBLOWER STATUTE SECTION 922) &18
U.S.C. 1513(e))
29

92. Petitioner is entitled to a private cause of action for damages suffered Pursuant to

the Dodd Frank Whistleblower Statute. Mr. Greenspan is entitled to a private cause of

action for whistleblowers alleging retaliatory discharge or other discrimination. Id.

78u-6(h)(1)(B)(i). Relief includes Right to Jury Trial, reinstatement, double the back

pay owed, and costs and fees. Id. 78u-6(h)(1)(C).

i. Damages including loss of employment and Chairman Director

position from Myspace Parent company in 2003 under 15 U.S.C. 78u-6 ("Section

922") and loss of Director employment under the same statues. Petitioner reported

information concerning Defendants breach of fiduciary duty, disloyalty, and violation

of Section 10(b) of the Exchange Act when he resigned as CEO on October 30, 2003.

Petitioner reported information concerning Defendants breach of fiduciary duty,

disloyalty, and violation of Section 10(b) of the Exchange Act when he resigned as

Director in December 2003.

Mr. Greenspan was terminated for two reasons: (i) in retaliation for reporting

misconduct of Brewer, Edell, Lipp, and other Defendants; and (ii) to stop the CEO from

terminating,demoting or decreasing the compensation of Brewer, Edell, Lipp, Moreau.

iii) The CEOs refusal to sign a Board created settlement agreement during the week of

October 30, 2003 which would have prevented Greenspan from contacting other

shareholders or regulators and disclosing the breach of fiduciary duty or other security

violations the Board and certain executives had committed in the process of

consummating the VantagePoint Series C

Financing in October 2003. The acts had been committed by Defendants
Su

while blocking the superior rate Common Stock financing sitting in Issuer

outside law firms bank account. Endangering the entire Public Corporation
PETITIONER ALSO HAS CLAIMS AGAINST SONY
ix. Sony Corp executives, Defendants in this Complaint, abused their

fiduciary duty to Issuer by misleading the Public and shareholders as part of

assisting Defendants scheme to take control of eUniverse, Inc. in 2003 and get

approval and entrench Defendants as a result of the January 2004 Annual Meeting

and Proxy Battle against Petitioner.

x. Sony Corp Defendants possessed a critical Board Seat Nomination

legal right the Series B Stock possessed. Sony Corp nominated Edell as the Series B

Stockholder in 2004 even after evidence in Delaware Court showed Edell and

Defendants had mislead shareholders by Filing multiple defective and false proxy

statements to Issuers shareholders in 2003 and 2004.

xi. As a Result of the applicable Defendants involvement in the above-

described conspiracy and conspiratorial scheme, the Plaintiff has suffered severe

emotional, financial, mental, and physical harm and other deleterious effects; been

unfairly disadvantaged in multiple civil lawsuits initiated against him by several of

the Defendants and other parties; had his freedom of speech severely impinged;

been forced to spend hundreds of thousands of dollars on legal fees; been forced to;

And had his personal and professional reputation severely and permanently

damaged. Based upon information and belief, some of the Defendants are

continuing to engage in the above-described conspiracy and conspiratorial scheme

S1
even though they are well aware of the devastating toll that their prior conspiratorial

actions have already taken on Petitioner and Petitioners business assets.



94. All Defendants are charged with Count #11



96. Defendants lied to Court regarding Defendants Proxy disclosure related to

Edell. Defendants Failure to make this right as claimed by Defendant

Delaware counsel is worthy of Contempt violation.

COUNT # 13 - Ruling certain transactions


98. Plaintiff effects 3-1-1 approval of properly noticed Director slate on October

17,2003. Defendants fraudulently concealed such properly noticed slate.

Defendants have also not legally effected a valid closing or vote on the Series C stock

sale or transfer from Sony of their Series B shares, blocking public issuers option

received in three way agreement between Sony, VantagePoint, and public issuer in 2003.

The crooked dealings expand when Orrick uses its insider knowledge to produce a

commercial benefit for VantagePoint while having Issuer pay 100% of the cost by


S2
COUNT # 14 - VOID Defendants right to
exculpation under 102(b)(7)


100. Defendant Directors right to Exculpation because of Judge King ruling finding

bad faith and disloyalty must be void.

COUNT #15 - Ruling certain transactions


102. Plaintiff effects 3-1-1 approval of properly noticed Director slate on October 17,

Defendants fraudulently concealed such properly noticed slate. Therefore, Defendants

have also not legally effected a valid closing or vote on the Series C stock sale or transfer

from Sony of their Series B shares, blocking public issuers option right to rebuy the

shares for benefit of common stock shareholders received

in three way agreement between Sony, VantagePoint, and public issuer in 2003.

103. voids Blasius Directors compensation post Blasius event

104.voids VantagePoint financing tranche I on October 31, 2003

105.voids VantagePoint financing tranche 2 on January 24, 2003 which was subject to

shareholder vote of items in Blasius Proxy created by Blasius Directors.

106.Plaintiff awarded damages to stock owned equal to the dilution caused by Blasius


107. Plaintiff awarded Expectency damages as Proxy Slate backer damaged by Blasius


108. Award to competing Proxy slate compensation as if Slate Directors had not been
SS

victim of Blasius violation by defendants.


109. Plaintiff repeats and realleges the foregoing paragraphs as set forth herein

110. PLAINTIFF RIGHT TO INDEMNIFICATION AND ALSO RIGHT TO
IDEMNIFICATION FOR ADVANCEMENT LEGAL FEES. INCLUDING ALL
MATTERS OR EVENTS OR FACTS CITED

111. Plaintiff was Director and Officer at Issuer that owes Plaintiff benefit of contract

rights defined in Section 7 of Issuer Bylaws for Indemnification and Advancement:

The rights conferred upon indemnitees in this ARTICLE VIII shall be contract rights
and such rights shall continue as to an indemnitee who has ceased to be a director,
officer or trustee and shall inure to the benefit of the indemnitees heirs, executors and
administrators. (Exhibit 1,Article VIII Section 7. Nature of Rights )

112. Plaintiff s Right to Indemnification is entitled to: i) indemnification to

fullest extent authorized by the Delaware General Corporation Law or broader

indemnification rights
2
:

113. Plaintiff is also beneficiary broader protection compared to Del 145 statue limits
3

114.Indemnitee in addition to being an Officer, was Director and due benefit of Issuers

Eighth Bylaw broadening scope of Indemnification and Advancement rights:

EIGHTH: Directors of the Corporation shall not be personally liable to the Corporation
or its stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the Corporation
or its stockholders, (ii) for acts or omissions not in good faith or which involve

2
"shall be inuemnifieu anu helu haimless by the Coipoiation to the fullest extent authoiizeu by the
Belawaie ueneial Coipoiation Law, as the same exists oi may heieaftei be amenueu (but, in the case of
any such amenument, only to the extent that such amenument peimits the Coipoiation to pioviue bioauei
inuemnification iights than such law peimitteu the Coipoiation to pioviue piioi to such amenument),"
(Aiticle vIII Section 1;Exhibit 1)

S
"any action, suit oi pioceeuing, whethei civil, ciiminal, auministiative oi investigative (heieinaftei a
"pioceeuing")" (Exhibit 1 e0niveise Aiticle vIII Section 1. "Right to Inuemnification")

S4
intentional misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law, or (iv) for any transaction from which the director
derived an improper personal benefit. (Exhibit 2)
INDEMNIFIED FOR ALL EXPENSE, LIABILITY, AND LOSS SUFFERED

115. Indemnittee contract right is Mandatory advancement. Plaintiff is not

limited by standard Delaware 145 Permissive advancement limitations such as allowing

terms and conditions to be set that a corporation deems appropriate.

116. Petitioner seeks to be indemnified for following:

(a1) Damages and impact on Indemnitee from fabricated dividend or fraudulent
conveyance of 33% of Myspace.com to insiders initiated in November 2004.

(a2) Damages and impact on Indemnitee from void October 31, 2003 Certificate
of Designation of Series C Preferred Stock, void Series C Preferred Stock sale,
void Series C Directors, void January 2004 Annual Shareholder meeting, void sale
of Skilljam.com,

(a3) Damages and impact on Indemnitee from void February 2005 sale to
RedPoint Capital of 25% of Myspace, Inc. stock.

(a4) Damages and impact on Indemnitee from void name change by eUniverse,
Inc. to Intermix, Inc., and sale of eUniverse, Inc. aka Intermix, Inc. to Defendant
in September 2005.

(a5) Damages and impact on Indemnitee from void issuances of stock and
options to certain Officers and Directors after October 30, 2003.

(a6) Damages and impact on Indemnitee from fraudulent concealment by
Defendants of valid October 17, 2003 Annual Slate of Directors being validly
nominated for Annual Shareholder meeting with a shareholder record date of
October 23, 2003.

(a7) Damages and impact on Indemnitee from void News Corporation 2005
purchase of eUniverse, Inc. since indemnitee owned 30% of eUniverse, Inc.

(a8) Damages and impact on Indemnitee from lost $900 million Google Search
Commerciial agreement.

(b1) Damages and impact on Indemnitees January 2004 conflicted search
SS
engine conflict and warning notice filed with SEC.

(b2) Damages and impact on Indemnitees May 2005 Whistleblower notice to
Intermix, Inc. and Intermixs june 2005 reply and actions.

(b3) Damages and impact to Indemnitee thru Carlick June 2005 fraudulent
concealment while Carlick controlled Manatt Law firm misled & manipulated
NYAG to investigate Indemnitee

Indemnitees $13.50 Counter Offer to Purchase Intermix, Inc. and Myspace Inc

Indemnitees failed online music lyric text community website venture after and
as part of Sony facilitated November 30, 2012 Warner Music Group PeerMusic
lawsuit against Indemnitee.

Indemnitees failed buyout of publicly traded Delaware Incorporated
Answers.com in 2011.

Indemnitees failed buyout of subsidiary of publicly traded Delaware
Corporation, Washington Post Corporation in 2013.

(c1) Damages and impact to Indemitee and Expectancy Damages from
preventing Indemnitee from entering Rule 701 Damage Report into Federal
Court in Los Angeles in 2011 and 2012.

(c2) Plaintiff did not receive $2.75 per share despite having qualifying stock
Held of over 2,900,000 shares.

Plaintiff as shareholder was damaged by reason that Plaintiff was Director
and Officer of eUniverse, Inc. Plaintiff was obstructed from puttingRule
701 Damage Report into Federal Court before the December 31, 2012 final
Disposition.

COMPLAINT FOR DAMAGES

Requiring disgorgement and/or imposing a constructive trust upon Defendants ill-

gotten gains, freezing Defendants assets, and/or requiring Defendants to pay restitution

to Plaintiff and to all members of the class of all funds acquired by means of any act or
S6

practice declared by this Court to be an unlawful, unfair, or fraudulent.

VIII - RELIEF REQUESTED

A. WHERFORE, Plaintiff demands judgment and preliminary and permanent relief,
including injunctive relief, in its favor and in favor of the Class and against the
Defendants as follows:

B. Awarding Plaintiff appropriate damages including compensatory damages,
together with pre- and post-judgment interest;

C. Awarding Plaintiff the costs, expenses and disbursements of this action, including
any attorneys and experts fees and, if applicable, pre-judgment and post-
judgment interest; and

D. Awarding Plaintiff such other relief as this Court deems just,equitable and proper.

Dated: April 16, 2014

_________________________________

S7

EXHIBIT #1

January 2, 2014

Brad D. Greenspan
Suite 1236

Case C.A. No. 106-VCS
Greenspan v. Brewer, et. Al.

Dear Honorable Chief Chancellor Strine

Attached for your consideration under Exhibit A herein is a Motion 60(B)(6) requesting the case be re-
opened to allow for the merits of a Motion for Contempt 70(B) to be considered, along with the other
relief your ruling explicitly allowed for under the ruling and statements you made during the hearing in
January 2004 (A transcript of the hearing is attached as Exhibit #9 of Declaration in support of Motion
70(B) , specifically a Motion to Conform the Evidence, and a Motion for Judgment on the Pleadings.

While several years have gone by since the case was closed in 2004, I believe it is meritious for
The Chancery Court to accept the Motion 60(B)(6) that attaches as exhibit Motion (70)(B) for filing
along with the other documents.

First, procedurally, I followed the precedent and sequence for such an action from your decision in
C.A. No. 4780-VCS (WIMBLEDON FUND LP ABSOLUTE ) RETURN FUND SERIES v. SV SPECIAL
SITUATIONS FUND, February 2011), in which you stated in the ruling,

the way for a party to obtain relief from a final judgment is for it to file a motion in this court
under Court of Chancery Rule 60(b).

Second, because the underlying facts of the Motion for Contempt 70(B) involve fraudulent concealment
by the defendants of the scheme that the motion seeks relief from, the amount of time that has passed
should not bar this Motion from being accepted by the Court to consider.

Specifically, the evidence discovered to pierce the fraudulent concealment scheme only became
available after: i) defendants as part of the scheme published a book in 2009 calling Stealing
MySpace with false facts in an attempt to further the fraudulent concealment which began in Chancery
Court after your ruling and findings in 2004.

The defendants then induced the Plaintiff Class Counsel RGRD Law to substitute the false facts from
the defendants published book in place of my evidence I was seeking to submit into the Los Angeles
Central District Federal Class Action Security Fraud case (Brown v. Brewer, which consolidated 2005
events and claims surrounding the September 30, 2005 Cash sale of eUniverse, Inc which had changed
its name to Intermix to acquiror News Corporation, and certain 2003 claims related to the restatement
eUniverse had suffered ). Therefore, I was a member of the Class of Plaintiff shareholders in regards to
the 2005 claims, but a potential defendant Director in regards to the 2003 claims from the restatement.

A fight broke out as I sought to alert other shareholders of the Class to the fact that Plaintiff Class
Counsel had turned into a renegade suddenly sprinting to settle the claims for .07 cents on the dollar
after Federal Judge Kings June 2010 Summary Judgment finding in favor of the Plaintiff Class (of
which I was a member of such class because of my shareholdings in the underlying public company).
Judge Kings Summary Judgment focuses only on the 2005 matters.

Both myself and the second largest member of the certified class, an institutional stockholder Trafelet
& Co, a NY hedge fund, then attempted to object to the inequitable Settlement fashioned by RGRD
Law. Further, I tried to intervene to stop the settlement and get the Federal Court in Los Angeles to
review the new evidence covered up by defendants fraudulent concealment and fraud on the Chancery
Court evidence and matters that I had discovered by March 2012.

While I was forced because of monetary constraints (and the breach of a 2007 Common Interests
Agreement I signed with RGRD Law) to file pro se, I was not allowed to intervene to inject the newly
discovered facts, and the Federal Class Action Security Fraud class action had its final disposition with
the December 31, 2012 distribution of $45,000,000 in settlement proceeds to the Class

However, my alerting the other Class members led to Trafelet & Cos retained lawyer being allowed
to intervene at which time we discovered that RGRD Law had initiated a scheme to change the
definition of the certified class in the settlement documents which effectively removed 60% of the
eligible shares for participation in the settlement (RGRDLAW changed the legal definition of the Class
in the 2012 settlement documents from the previous May 2009 definition which the federal court
certified allowing anyone holding shares as of July 18, 2005 thru September 30, 2005 (date of
consummation of the merger) to receive a share of settlement proceeds, to instead a new different legal
definition which RGRD Law printed in the 2012 settlement documents which injected the word
Continuously as a qualifier. RGRD Law had a copy of the 13-F SEC list of institutional holders
which they had sent me in 2007, and realized by simply adding this one qualifying word, 60%+ of the
eligible shares would be cut out because 80%+ of the institutional shareholders holding shares on July
18, 2005 when the merger was announced, sold their shares before September 30, 2005 when the
company announced they would not entertain the competing $13.50 bid I had publicly announced (and
in which I was fronting for Viacom, Inc. a rival bidder, who was not given a chance to bid and such
scheme discussed by Judge King in his 2010 summary Judgement ruling. Thus the Federal Judge could
not consider the facts and evidence including my emails with Viacom, their desire for me to keep their
involvement in my bid anonymous unless the Company agreed to delay the September 30, 2005
shareholder meeting to approve the sale to News Corporation).

My alerting the other class members resulted in Trafelet & Co. first discovering that they were in fact
not eligible to receive any of the award because they had sold all 3 million of their shares before
consummation of the merger before September 30, 2005, and working with a boutique law firm in Los
Angeles such effort caused the Federal Judge to reject the first Settlement terms. While Judge King
noted in his ruling rejecting the first Settlement terms, that it was odd that RGRD Law in 2009 had
fought to create a certified class that included the type of shares held by Trafelet & Co and that in 2012
RGRD Law was now fighting jointly with the Defendants to claim continuous holding of the shares
thru the date of the September 30, 2005 consumation was necessary to be a member of the newly
defined certified class that RGRD printed in the settlement documents.

Judge King appeared exhausted by the proceedings and not desirous to take action on RGRDs breach
of its duty of loyalty, fiduciary duty to the Class members, fraudulent concealment of new evidence,
and fraud upon the Court (all of which I sought to be reviewed and considered by the Court in my
intervention filings and 60b3 motions which the Court rejected to be heard because more then 12
months since the default judgement banning me as a member of the Class that I sought to vacate had
passed) and approved a March 2012 2
nd
Settlement structure in which RGRD admitted Trafelet & Co.
was a member of the certified class but had shares which were not as valuable as the Continuous
shareholder, and a smaller portion per share of the award was given to Non-Continuous shares held that
were also members of the 2009 certified class

During this time, I became aware of one of the underlying reasons for RGRD Laws misdeeds. RGRD
was sanctioned in 2008 in Chancery Court as part of the findings and rulings of (SS&C
TECHNOLOGIES, INC. C.A. No. 1525-VCL). However, RGRD fraudulently concealed this sanction
from me and never disclosed it to the Federal Court in Los Angeles. This was because the defendant in
the Brown v. Brewer case was represented by Latham Watkins (although Latham directly represented
the defendants in the California State Class Action which was dismissed at demurrer stage in 2006
before discovery was reviewed by myself and new findings and claims were created from such
discovery that I subsequently shared with RGRD in 2006 which was then filed as part of the Federal
Class Action Security fraud claims, Latham wisely allowed Hogan Hartson to sub in for Latham during
the Federal Class action), the law firm that was opposite RGRD In SS&C.

Thus, RGRD was induced to turn renegade against the interests of myself and the other Federal Class
members because Latham was willing to pass on launching a new set of claims against RGRD and
significant new liability for RGRD (using the findings the Vice Chancellor hints at in the SS&C
Sanction ruling) that may have terminated RGRDs ability to practice law. RGRD also wanted a piece
of the $45 million dollar settlement and Lathams silence on informing the Federal Court that RGRD
was fraudulently concealing notice and disclosure of its Sanction from Chancery Court, allowed RGRD
to remain as Class Counsel. Noting that I was unaware initially of the SS&C Sanction matter when I
began in 2009, sending emails to RGRD indicating I was seeking to have them removed as Class
Counsel after they did a joint motion to ban me as a Witness and not use my evidence (May 2009) after
I informed them I would submit new evidence into the record I had discovered and had agreed to be
subpoened by Defendants counsel Hogan Lovell and submit such new evidence imminently)

ii) The additional critical evidence that caused me to purchase and review the 2009 Stealing Myspace
book that RGRD used as the false facts injected into the Federal Court Summary Judgment, as well as
the impetus for a below fair market settlement of the case in 2012, was the ongoing Federal Class action
HiTech Employees v. Google, Apple, et. Al I discovered existed in 2012 (the class action had been filed
in San Jose Federal Court in late 2011). After purchase of the Stealing Myspace book I discovered
references to interviews with Jeff Edell at the back of the 300 page book (after seeing reference to use
of Stealing Myspace by RGRD Law in the post 2010 Summary Judgement underlying summary of
facts documents I reviewed after being forced to stop my internet business (my full time job at the time)
and become Active as a class member that became aware RGRD had gone renegade and the entire
Shareholder Classs rights and claims were exposed and likely to be lost or severly diminished unless I
personally became active.

Only after launching a new investigation of Jeff Edell because the Stealing Myspace book
underpinned its facts from the interviews with Edell, did I get access to an original D&O Questionaire
that Edell had filled out in 2003 and submitted to the Nominating Committee of the eUniverse Board
(of which I was not a member).

It was this evidence of fraud that is at the heart of the 70(B) motion and is part of the Exhibits that
proves clearly a new crime of Fraud Upon the Chancery Court (along with other equitable claims).

Additionally new evidence disclosed in discovery in Hitech Employees v. Google only became
available in May 2013 (when disclosed in that cases attempt to Certify its Class), and such new
evidence connects Director Carlick with being a party to secret bilateral agreements that Defendants in
that case admitted were formed in 2004 and 2005. As Carlick was a Director of AskJeeves Inc. which
was one of the co-bilateral agreement parties that entered the admitted unlawful and illegal agreements
With Google (and Google had signed a Settlement admitting as such with the Department of Justice in
late 2011). Carlick was simultaneously a Director of eUniverse and his firm was control shareholder
after using Edell to help take control and win the 2004 Proxy vs. my competing Proxy bid.). Thus
Edells continuation of the fraud started in Chancery Court, discovered by Chancery Court, and then
doubled up on by defendants, was also the key scheme of the fraudulent concealment that the 2009
Stealing Myspace book accelerated, and underpinned RGRD Laws claims to the Federal Court in
Their 2012 joint bid telling the Federal Court that my claims I sought to inject into the Court were
lacking in credibility.

Therefore, unless the Chancery Court provides the relief I am seeking, I can never recover my
credibility versus the fabricated Director Edell scheme that the Motion 70(B) seeks to lance.

Further, unless the Chancery Court re-opens the matter under its right to do so via 60(B)(6), then
The Chancery Court will be allowing Defendants including Delaware defense counsel to lie to the
Court and completely disregard the Courts rulings when they are made.

Therefore, I urge your consideration of the facts included in the attached Motions and appeal to your
sense of equitableness in allowing these Motions to be filed in the Chancery Court despite the time
since the matter was closed. I also note that because my Slate of Directors was nominated rightfully
October 17, 2003 before I resigned as Chairman and CEO, and the Defendants fraudulently concealed
this fact from the Chancery Court and the public, doesnt provide a cure for the VOID actions
defendants took after such date, nor does it provide a cure for the VOID actions the defendants took
after thumbing their nose at the Chancery Court ruling in January 2004 (and fraudulently concealing
from the Chancery Court in July 2004 at which time the Court entertained an award of legal fees but
only granted in part because defendants were fraudulently concealing the aforementioned matters which
are detailed fully in the underlying Motions).

Sincerely,

Brad D. Greenspan

EXHIBIT A

"

BRAD D. GREENSPAN,

Plaintiff,

v.

BRETT BREWER, et al.

Defendants
)
)
)
)
)
)
)
)
)
)
)

C.A. No. 106-VCS

MOTION FOR CONTEMPT 70(B) 42(B) AND/OR 60(B)(3)

#
I INTRODUCTION.pg.3

II SUMMARY OF ALLEGATIONS..pg. 4

III ARGUMENTpg. 5

A. DEFENDANTS WILLFULLY IGNORED
WARNINGS AND MULTIPLE NOTICES...pg. 6

B. COURT PROVIDES RECOMMENDATION
THAT DEFENDANTS OPTED TO IGNORE....pg. 6

C. BOTH DELAWARE COUNSEL AND
DEFENDANT BROKE PROMISE TO COURT.pg. 7

D. DEFENDANTS IGNORED FIDUCIARY DUTY
TO HONOR OCTOBER 17, 2003 DULY ELECTED PROXY SLATE.pg. 8

E. DEFENDANTS PASS ON FRAUDULENTLY CONCEALED
EDELL DISCLOSURE VIOLATION TO ACQUIROR NEWS CORPORATIONpg. 8

F. SONY IS CONFLICTED AND HAS INFLICTED
MULTIPLE PREDICATE ACTS.pg. 9

NATIONALLY PUBLISHED NOVEL AND TO FURTHER UNLAWFUL SCHEMEpg. 9

SHAREHOLDERS IN FEDERAL 2010 SUMMARY JUDGMENT RULING WERE CAUSED
BY FAILURE OF CHANCERY COURT TO FORCE DEFENDANTS TO FIX 2004
DEFECTIVE DISCLOSUREpg. 10

IV CONCLUSION..pg. 10

I. DEFENDANTS FAIL TO CURE RULE S-K ITEM 401 (F) VIOLATION.pg. 10

$

COMES NOW the Plaintiff acting on his own behalf, hereby moves this Honorable Court to enter Judgment on

the Pleadings in Plaintiffs favor and offers in support the following:

I - INTRODUCTION

1. The Plaintiff moves the Court to find Defendants in contempt under 70(B),

42(B) and/or 60(B)(3). Additionally, Plaintiff requests Court to sanction Defendants $25,000 per day

since Chancery Court January 2004 hearing that corrective disclosure ordered by then Vice Chancellor

Strine was not undertaken by Defendants and such per day sanction to continue until Defendants provide

proof to the Chancery Court that corrective disclosure has been made to the public.
1

2. During January 2004 trial, then Vice Chancellor finds Defendants guilty of Proxy

Disclosure Violations.

i. clearly, Mr. Edell was not validly elected to a Series B slot on October 6th. He just wasn't
He could not have been appointed by the Board to a Series B slot.(70B Declaration,
Exhibit# 9, pg.63)

ii. It's even odder when it's supposed to be retroactive to October 6th, especially when as of
October 6th, as I understand it, Mr. Edell hasn't even agreed to be on the board.( 70B
Declaration, Exhibit# 9, pg.63)

iii. As of October 6th, I have got to say, I really -- I think Mr. Lipp basically said the board had
no idea that it was slotting him in a Series B. I think there is a great deal of record evidence--
it's not a big record, but what record evidence there is suggests that the board wasn't really
thinking about putting him in as a Series B director but thought Sony was simply waiving its
right.( 70B Declaration, Exhibit# 9, pg.63)

iv. It's a very strange -- I mean, I have got to say--I will say this on the record. I'm very
dubious about the validity of this election, and there is a certain formality that has to be
done around electing people. And I mean, is this a proxy? (70B Declaration, Exhibit# 9, pg.63)

v. It's not really, I guess, my job to be Director of Hygiene for eUniverse, but now that very
competent Delaware counsel has been engaged to assist the company, I mean, it's pretty
common knowledge that the board of directors has to approve the actual certificate of

"
In Gallagher v. Long, the Delaware Supreme Court stated, [a] trial judge has broad discretion to impose sanctions for failure
to abide by its orders, so long as the sanctions are just and reasonable.
%
designation amendment that's being proposed. And you know-- and this isn't the first dot
come kind of company that's tried to be a bit innovative. (70B Declaration, Exhibit# 9, pg.63)

v. There is a certain elegant order in things. You have to -- the board has to approve it. And
they have to approve it in the form they are proposing. Then the stockholders have to do it.

vi. The Court: I have a disclosure violation here," (70B Declaration, Exhibit# 9, pg.63)

II SUMMARY OF ALLEGATIONS

3. Defendants, VantagePoint, and Orrick are guilty of Fraud upon the Chancery Court thru first

trying to mislead then Vice Chancellor Strine that Proxy disclosure is factual. Next caught in multiple lies

before the court, defendants agree to fix defective disclosure and fail to do so.

4. Vice Chancellor Strine further discovered the certificate of designation amendment was

never approved by Board:

THE COURT: Has the board actually voted upon, Mr. Teklits, a final copy of the
certificate of designation amendment?

MR. TEKLITS: There was some confusion. We had done it with Mr. Lipp, Your Honor.
Sony would not consent to an amendment that didn't require Vantage to exercise over 50
percent. They didn't want Vantage to exercise one share and they would lose their right to
the seats. I'm not sure what was attached to what.

THE COURT: It's not really, I guess, my job to be Director of Hygiene for eUniverse, but
now that very competent Delaware counsel has been engaged to assist the company, I
mean, it's pretty common knowledge that the board of directors has to approve the actual
certificate of designation amendment that's being proposed. And you know-- and this isn't
the first dot com kind of company thats tried to be a bit innovative. (70B Declaration,
Exhibit# 9, pg.63)

5. Omission of Edells bankruptcy in Proxy statements is violation of: Rule S-K Item 401 and

Rule S-K Item 401 (f). (70B Declaration, pg.19-21, paragraph #s 94-103)

6. Defendants aware the January 2004 Proxy was defective, fraudulently concealing

Edells work experience, ignore then Vice Chancellor Strine ruling, dont cure the defects and make more

&
disclosure violations in order to mislead shareholders and shift control of publicly traded eUniverse, Inc.

7. Sony Corp is guilty of aiding & abetting Edell and defendants to violate Rule SK Item 401

and defame Plaintiff and Plaintiffs competing slate of Directors in January 2004 Proxy contest.

8. Defendants & their Counsel are guilty of Fraudulently concealing Edells background

in 2003, 2004, 2005, 2009, 2010, and 2012, resulting in damages to Plaintiff and shareholders, as well as

fraud upon the Chancery Court in Delaware and the Federal Court in Los Angeles Central District because

Defendants induce Shareholder Class Counsel to substitute fabricated facts from fabricated Director Edell

instead of Plaintiffs true facts.

III ARGUMENT

9. Under Court of Chancery Rule 70(b), this Court may find a party in contempt when it

fails to obey a Court order of which it had knowledge.
2

10. The moving party is not required to show that the violation was willful or intentional,

but the intentional or willful nature of a contemnors acts may be considered in determining the

appropriate sanction.
3

i. Scienter of Defendants is supported by (70B Declaration, pg.4-22, paragraph #s 20-103)

11. A party moving for a finding of contempt bears the burden of establishing by clear and

convincing evidence that a court order was violated. If the movant makes that showing, the burden then

shifts to the contemnor to show why it was impossible to comply with the order or why.
4

#
Court of Chancery Rule 70(b) supplies this court with the power and broad latitude to remedy violations of its orders.
$
27 Mother African Union First Colored Methodist Protestant Church v. The Conference of African Union First Colored
Methodist Protestant Church, 1998 WL 892642, at *6 (Dec. 11, 1998).

%
State ex rel. Oberly v. Atlas Sanitation Co. Inc., 1988 WL 88494, at *2 (Del. Ch. Aug. 17, 1988) ([O]nce the party with the
burden of proof has introduced evidence from which a fact finder could conclude that he has established a prima facie case, then
the burden of going forward with the evidence shifts to the alleged contemnor to . . . [show] it was impossible to comply with
the court order.); see Rolex Watch U.S.A., Inc. v. Crowley, 74 F.3d 716, 720 (6th Cir. 1996); F.T.C. v. Affordable Media, 179
F.3d 1228, 1239 (9th Cir. 1999); see also AM. JUR. 2D Injunctions 321.

'
12. Defendants based on precedential Delaware rulings, should be sanctioned and fined.
5

13. January, July 2004, & August 2005 Proxies omit key facts rendering them defective and void.

A. DEFENDANTS WILLFULLY IGNORED WARNINGS AND MULTIPLE NOTICES

14. Warnings by then Vice Chancellor Strine included:

i. "But you can get this stuff fixed out or you put me in a position where I have got some sort
of -- this is low hanging fruit (70B Declaration, Exhibit# 9, pg.63)

ii. I don't have to say these words and you don't have to go fix them or call your client.

iii. the way the board purported to fill it was invalid.(70B Declaration, Exhibit# 9, pg.63)

iv. You may need to do corrective disclosure to begin with, because of this( 70B Declaration,
Exhibit# 9, pg.63)

v. Then I have a disclosure violation here," (70B Declaration, Exhibit# 9, pg.63)

vi. real problem that I may have to take some notice of (70B Declaration, Exhibit# 9, pg.64)

vii. "could I plead with the Delaware lawyers for the company that if we are going to get -- if
you are going to get a consent from Sony, craft it. I mean, it's one thing Mr. Shannon and
Mr. Walsh -- it's one thing if they want to do a Blasius thing. You know, you don't want to
walk in here again with some sort of technical problem," (70B Declaration, Exhibit# 9, pg.64)

viii. You know you probably have to amend your proxy statement, then. (70B Declaration,
Exhibit# 9, pg.64)

ix. make sure you get it done right (70B Declaration, Exhibit# 9, pg.64)

x. the company amends its proxy statement (70B Declaration, Exhibit# 9, pg.64)

xi. You clean that up (70B Declaration, Exhibit# 9, pg.64)

B. COURT PROVIDES RECOMMENDATION THAT DEFENDANTS OPTED TO IGNORE

15. Then Vice Chancellor Strine tips to avoid Blasius and Disclosure violations ignored:

i. "I can't help but observe the other thing, which is if this -- if the company --if the

&
()*+,)* -.//*,0/ 12 3*456 0+748 .44+9:/.+40; .4<2; <2:2 4=2 >>??@A-;#?"$B Because First State and CAMI failed
to comply with paragraphs 3 and 5 of the PI Order, IDB is entitled to an order holding First State and CAMI in contempt and
imposing an appropriate sanction. This Court has broad discretion in formulating a remedy for violations of its orders.6 As part
of its broad remedial powers, the Court may impose a fine, for example, to coerce a non-complying party to cease improper conduct.

>
incumbent board is really fine with a fair fight and doesn't mind the common and the
preferred voting together to elect a majority even now, which I don't know to be the case --
but if it were and you said, "Let's have a showdown. We have a large stockholder. We
have a disagreement. Vantage is in here. Let's have the showdown in the OK Corral. We
want Mr. Edell to be on the board." Well, there is an obvious way to do that. Right? And
if you don't want to have a legal fight, then you know, you figure out who your four are.
You know who the Vantage two are If Edell is one of the fighting four, you make sure the
certificate of designation has been approved. You clean that up. You know you probably
have to amend your proxy statement, then. Then maybe you change your sale and put
Edell on it. And the four that is currently in there, make a decision as to being on the board
or not.. You have a fight about the majority. That is the judge trying to be practical in a
situation where I have seen both sides, "I'm saying if it's fair fight time and you are
ultimately going to have a majority up, that is a real clean way to do it. I don't know how
Blasius comes into that at all. (70B Declaration, Exhibit# 9, pg.64)

ii. "I'm saying if it's fair fight time and you are ultimately going to have a majority up,
that is a real clean way to do it. I don't know how Blasius comes into that at all.

iii. "So to the extent that Sony -- for example, if Mr. Edell were to resign today, to say,
"I am not longer on the board," one of his other colleagues would resign -- and you do it in
however elegant fashion to make sure you get it done right. Mr. Edell is immediately
reelected to the vacancy a common vacancy, and the company amends its proxy statement
and puts him as one of the four. (70B Declaration, Exhibit# 9, pg.64)

C. BOTH DELAWARE COUNSEL AND DEFENDANTS BROKE PROMISE TO COURT

16. Delaware Counsel Teklits and Defendants plus Sony break promise to Court:

MR. TEKLITS: We will make sure this is right, Your Honor. I think everybody wants this
amendment approved. (70B Declaration, Exhibit# 9, pg.63)

17. Defendants fail to make Court ordered corrective disclosure of:

i. False December 30, 2003 Proxy: (70B Declaration, pg.19-21, paragraph #s 94-103)

ii. False October 31, 2003 Press release (70B Declaration, Exhibit #4, pg. 38-39)

iii. False Defamatory December 11, 2003 8k: (70B Declaration, Exhibit #6, pg. 44)

18. Defendants opt instead to initiate multiple new Edell disclosure violations thumbing nose

at Chancery Court and promise made to then Vice Chancellor Strine:

i. Thru ISS Report Defamatory attack on Petitioner: (70B Declaration, pg.22, paragraph #s
104-108)

C
ii. Thru Los Angeles Times Defamatory attack on Petitioner: (70B Declaration, pg. 23,
paragraph # 109)

iii. Thru false and defective July 2004 Proxy (70B Declaration, pg. 24, paragraph #s 110-113 &
Exhibit #7, pg.48-49)

iv. False and defamatory January 26, 2004 Proxy Disclosure (70B Declaration, Exhibit #6,
pages 45-46)

iv. Misleading investment bankers in 2005 Bidding Contest by failing to correct
previous Proxy statements and disclosures, ensuring Plaintiff status would be Does
not have significant credibility so that Plaintiff would not have equitable
opportunity to participate with $13.50 counter bid announced in September 2005
before Defendants consummated $12.00 per share sale to News Corporation.
(70B Declaration, Exhibit #8, page 51)

D. DEFENDANTS IGNORED FIDUCIARY DUTY TO HONOR OCTOBER 17, 2003 DULY
ELECTED PROXY SLATE

19. After January 2004 Chancery Court hearing, it was unlawful for Defendants to fraudulently

conceal and to not honor Plaintiffs October 17, 2003 approved Director slate nominated at validly called

Board Meeting. (70B Declaration, pg.13, paragraph #48)

20. Voided Edell Director, voids Edell vote during Plaintiff and eUniverses October 16, 2003

Vote to Nominate Director slate proposed by Plaintiff before Plaintiff resigned as Chairman and CEO.

This effects 3-1-1 win by Plaintiff vs. previous No pass Defendants purport existed from 3-1-2 vote

before Chancery Court ruled Edell was never validly elected as Director in October 2003.

E. DEFENDANTS PASS ON FRAUDULENTLY CONCEALED EDELL DISCLOSURE
VIOLATION TO ACQUIROR NEWS CORPORATION

21. Defendants pass on fraudulently concealed unlawful acts including contempt of Court to

acquiror News Corporation as clearly exhibited in email disclosed by Class Counsel in 2011 Federal

security fraud class action. Such email on July 17, 2005 from Corporate counsel Lang emailed at 4:13AM

to Defendant Director Sheehan, Subject: 'Purchase Agreement, stating,

"On the issues, let's close on the remaining ones in a fair and reasonable way-- so we can build out
relationship. And

D
3. We feel like we have given indemnification on the shares and the purchase agreement itself to
do so on any issue we have had no involvement in whatsoever (i.e. Greenspan) - that seems like
too much. Andy, I know we are very eager to get this done. Let do it so both sides can feel good
and move forward on our longer-term relationship."

F. SONY IS CONFLICTED AND HAS INFLICTED MULTIPLE PREDICATE ACTS:

22. Sony was an insider shareholder in eUniverse (Intermix, and Myspace by ownership level prior

to Sale of VantagePoint VC firm in July 2003;October30, 2003;April 2004 (SEC disclosure) and had a

Director and Series B Nominee Edell in January 2004 Proxy.

23. Sony Corps general counsel Seligman is married to Joel Klein who began working for

News Corp in 2009. Sony has fraudulently concealed the defective Edell background & both violations of

Rule SK Item 401 in January and July 2004 Proxy and Annual meetings respectively. Sony and/or

Seligman are aiding and abetting News Corp for the benefit of Joel Klein who is an executive and Director

earning $1m+ per year from News Corp.

NATIONALLY PUBLISHED NOVEL AND TO FURTHER UNLAWFUL SCHEME

24. Defendants leverage their relationship with acquiror to create defamatory and fabricated lies

thru acquiror News Corporation employee Angwins published in late 2009 book, Stealing MySpace

which fraudulently conceals the true background of former Director and Chairman Jeff Edell and his

scheme with Brewer to forward a fabricated false resume, misleading CEO to get Edell onto the Board.

This creates further ongoing defamatory damages to Plaintiff and Shareholders because Class Counsel

accepts and uses false Edell facts in book instead of Plaintiffs facts offered to Class Counsel in 2012

Federal Class Action in Los Angeles Central District. Edells false facts allow the fraudulent conveyance

Of approximately 50% of Myspace.com, the crown jewel of eUniverse, Inc. in 2004. Further, Edells false

facts which become Acquiror News Corporation false facts, obstruct Plaintiffs true facts from entering

the record for the benefit of the Federal Court learning the true damages and claims rightfully owed to

shareholders. Plaintiff and shareholders will continue to suffer until the defective disclosure is cured by
"?


25. Defendants use ongoing Edell defective disclosure scheme to defame Plaintiff and impugn

reputation in book Falsely claiming, violent mood swings were part of Greenspans character.
(70B Declaration, pg. 26, paragraphs 127)

SHAREHOLDERS IN FEDERAL 2010 SUMMARY JUDGMENT RULING WERE CAUSED BY
FAILURE OF CHANCERY COURT TO FORCE DEFENDANTS TO FIX 2004 DEFECTIVE
DISCLOSURE

26. Chancery Courts failure to force Defendants to honor their promise to fix the defective

Disclosure in 2003 is directly responsible for allowing Defendants to steal a minimum of $670 million in

damages (Federal Judge King 2010 approved damage report) and upwards of $32 Billion in damages (Rule

701 Damage Report not used by Class Counsel because of ongoing Edell fraud) from thousands of

shareholders in 2005.

(Exhibit #1, page 12, June 2010 Federal Central District, Judge King, Summary Judgment Ruling)

IV- CONCLUSION

I. DEFENDANTS FAIL TO CURE RULE S-K ITEM 401 (F) VIOLATION

27. Rule S-K Item 401 (f) states the requirement for information disclosed in Intermixs

January 2004 & July 2004 Proxy filings for Directors Involvement in certain legal proceedings stating,

Describe any of the following events that occurred during the past ten years and that are
material an evaluation of the ability or integrity of any director, person nominated to become a
director or executive officer of the registrant:
A petition under the Federal bankruptcy laws or any state insolvency law was filed by or
against, or a receiver, fiscal agent or similar officer was appointed by a court for the business or
property of such person, or any partnership in which he was a general partner at or within two
years before the time of such filing, or any corporation or business association of which he was
an executive officer at or within two years before the time of such filing;

28. To make Proxy not defective under 14a or Delaware security laws, issuer would have to

disclose that,

""
Our former Chairman who resigned effective December 2003 was replaced by Jeffrey S. Edell.
Edell was most recently President and CEO of Showorks Entertainment Group, Inc. from January
2001 thru April 2002. Sometime in 2002, Showorks Entertainment Group, Inc. underwent a name
change to MTS, Inc. Sometime in September of 2002 Edell learned that MTS, Inc. had filed for
bankruptcy under Chapter 7. Edell was not there at the time of filing. Edell has informed the
company Edell was never personally named or contacted as part of the bankruptcy under Chapter 7
or subsequent proceedings. Edell was from 1995 thru December 31, 2000,President and CEO of
Soundelux Entertainment Group., Inc.

29. Defendants also fail to fix disclosure related to fraudulent Amended October 31, 2003

Note. Defendants cannot lawfully or validly backdate the October 31, 2003 $2.5 million dollar

note by simply creating a new Note disclosed in December 2003 with a date of October 31, 2003.
(70B Declaration, pg.19, paragraph #91)

30. Plaintiff requests Court to sanction Defendants $25,000 per day since Chancery Court

January 2004 hearing that corrective disclosure ordered by then Vice Chancellor Strine was not

undertaken by Defendants and such per day sanction to continue until Defendants provide proof to the

Chancery Court that corrective disclosure has been made to the public.

31. The interests of justice are properly served by the grant of this Motion.

Respectfully submitted


"#

EXHIBIT #1

June 2010 Federal Central District, Judge King, Summary Judgment Ruling


"

BRAD D. GREENSPAN,

Plaintiff,

v.

BRETT BREWER et al.

Defendants.
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C.A. No. 106-VCS



#
1. I submit this declaration in order to provide the Court and the parties to the above captioned

litigation with information regarding this matter as.

2. I am over 21 years of age and I have personal knowledge of the facts set forth herein and, if called

as a witness, could and would testify competently thereto.

3. I was founder of Issuer eUniverse, Inc. (eUniverse) which later changed its named to Intermix,

Inc. and was the largest common stock holder from Issuers creation and public listing in April 1999, thru

the September 30, 2005 merger consummation at issue in this case.

4. On April 14, 1999, eUniverse began publicly trading under the symbol EUNI.

The initial Directors and executive officers of eUniverse were Brad D. Greenspan, age 26, Chairman

of the Board, Leland W. Silvas, age 44, President Chief Executive Officer and Director, Charles

Beilman, Age 39, Chief Operating Officer and Director, and William R. Wagner, age 52, Vice

President, Chief Financial Officer.

5. According to the SEC filing in 1999, Chairman and Director BG owned 57.2%.of the

company and was a control shareholder of the public corporation as it began public trading.

6. eUniverse closed its first day of trading at $12.50 per share on April 14. 1999, at this

time, eUniverse had less then 1 million unique users coming to its network of owned websites. None

of the defendants were officers or senior executives of eUniverse at the time of the public listing or

by the end of 1999.

7. In December of 1999, eUniverse launched its first social network platform,

LivePlace.com, with proprietary technology acquired thru the Big Network Acquisition.

Unfortunately, a year later, eUniverse exited the LivePlace business when it determined the

technology at the time was not sufficient to prevent websites from slowing down for users after

installing the LivePlace technology. However, LivePlaces launch by eUniverse cements the fact

that eUniverse was a pioneer in the social network space. LivePlace was described as:

a proprietary technology that turns a website into a public place where users can meet and interact

through chat, instant messaging, and co-browsing.


$
8. On July 31, 2001, eUniverse announces that for its March 31, 2001 quarter, it has

generated its first net profit and third consecutive ebitda positive quarter. Becoming profitable was

critical for eUniverse because as of its 7/31/2001 SEC filing the company only had $218,000 in cash

vs. $2.3 million in cash as of the year before.

9. By October 2001, eUniverse had 31.3 million unique U.S. users and had the 8th

largest online audience in United States for the period. By comparison, Ebay was ranked #9 with

31.29 million users and Google was ranked #14 with 26.9 million users.

10. On December 17, 2001, the NY Times features a story on eUniverse titled,

For Some Dot-Coms there Are Real Profits, stating

Meet Brad D. Greenspan and at first it seems like hes a visitor from another era-- the Internet bubble of 1999.
He's a 28-year-old chief executive of a public Internet company, eUniverse, with tens of millions of users and
big backers like Sony."

11. eUniverse has $33.19 million revenue for 12 months ended March 2002 & $6.64 million EBITDA.

12. eUniverse by the end of 2002 had over 250 employees working in Los Angeles amongst this

group, the company had developed highly skilled technology and internet Strategy executives. eUniverse

also developed significant technology resources and assets gathered over its many years of operations.

13. Mr. Greenspan resigned as CEO on October 30, 2003 and on November 21, 2003, Morgan Stanley

issued its annual internet report ranking eUniverse as the #1 fastest growing Portal based on data from the prior

90 days, ahead of AOL and Yahoo and Excite Network which AskJeeves acquired in 2003.

14. The eUniverse board during week ending October 31, 2003 reneged on a common stock financing

arranged by ThinkEquity and Greenspan which the same board had approved on October 16, 2003.

15. Instead the Board manipulated by defendants, changed course and determined to sell effective

control of eUniverse, Inc. to San Francisco based private equity fund VantagePoint Ventures LLC, issuing

below market price preferred stock and simultaneously breaching the 19.9% shareholder vote threshold

which the company had also specifically promised it would not do in any financing weeks earlier

to the Nasdaq listing panel.

16. VantagePoint had been told the week before by the Chairman and CEO of eUniverse that the


%
company had determined not to proceed with their highly dilutive $8 million preferred stock proposal

which offered to buy shares at below $1.35 and effect a change of control of the $80 million market

capitalized eUniverse without a shareholder vote, which violated the Nasdaq 19.9% threshold rule.

17. VantagePoint was informed that their proposed financing was economically inferior and that

because Vantagepoint was still negotiating both terms and documentation and had not finished their

diligence, the company had opted to close a $1.85 common stock financing from existing and new

institutional investors. However, Chairman and CEO Greenspan invited VantagePoints David Carlick

and their counsel, Orricks Richard Harroch to participate on the same terms as the institutional investors

which was a significant discount already to the then approximate $2.25 - $2.40 per share public trading

price range of eUniverse.

18. VantagePoint determined to not only reject the offer from eUniverses chairman and CEO to

invest at $1.85, but embarked on and facilitated a brazen scheme to manipulate and defraud eUniverses

Board and shareholders that put defendants Carlick, Sheehan, and Harroch in control of eUniverses board

by October 31, 2003 and allowed defendants to recognize an almost sure windfall on their below market

Series C preferred stock financing.

19. Not satisfied with their existing economic gains, defendants then Embarked between late 2003

thru September 30, 2005 on an ever growing series of schemes and misdeeds to loot the public company

and effect transactions that benefitted themselves and related parties at the expense of the common stock

shareholders who had held the majority of eUniverse.

DEFENDANTS SCHEME TO ENTRENCH THEMSELVES AND SHIFT CONTROL

20. Mr. Greenspan was on the verge of terminating the general counsel and Chris Lipp, and the

President of eUniverse, Inc. Brett Brewer, for their roles or poor performance in the restatement the

company had suffered between October 2002 and May 2003, and ultimately a new controller and CFO

were hired and eUniverse refiled via its 10k in August of 2003. Defendants General Counsel Chris Lipp was

told the company would transition to a new general counsel after closing the next round of financing and

President Brett Brewer was informed in the summer of 2003 he would be demoted.


&
21. Mr. Greenspan instead was faced with a scheme by Brewer to take control of the Board and shift control of
company over to VantagePoint and Defendants. The scheme is admitted in a letter from Edell to certain of the
defendants on the night of October 27, 2003, 3 days before Chairman, CEO, founder Brad Greenspan resigns:
Brett is always on the side of Brad's removal when not around Brad, but has no backbone when in
front of him. He is looking for us to do the dirty work but will not stand tall himself.

i. The first fraud was Brewer recommending and endorsing a friend of his Jeffrey Edell to

come onto the Board of Directors in mid-October 2003. Edell, Brewer, and the Chief Financial Officer

Flahie who had worked for Edell at a previous company all misled Mr. Greenspan and the other Directors

as to the qualifications of Mr. Edell. Brewer distributed a 3 page resume/background prior to Mr.

Greenspan determining to support Edell as a new board member, but such 3 pages did not disclose the

truth that Jeffrey Edell had just bankrupted the last company he worked for. Nor did Edells public filings

or Proxy background or press release made by Edell disclose this pertinent and critical information.

Instead, Edell, Brewer, and Flahie knowingly omitted this information in order to get Edell onto the Board

where Edell quickly damaged the franchise value of eUniverse, Inc. by several disloyal acts and breaches

of fiduciary duty. (EXHIBIT #1, pg. 29. & EXHIBIT #2, pg. 31)

ii. Defendants key strategy that enabled them to take control of the board of eUniverse was by
fabricating or aiding and abetting the fabrication of information to mislead independent directors and CEO about
background of Jeffrey Edell. Instead, defendants artificially branded Edell with false credentials and set him loose to
engage recklessly with the corporate assets and the important financing the CEO had closed with common
stockholders clearly on better terms the the lower priced preferred stock peddled by venture capital firm. Defendants
cover up a recent bankruptcy under his stewardship. Brewer, Flahie, Edell, Lipp, Moreau, Carlick, Harroch, and
Sheehan do not correct the defective proxy that they all approve multiple times between November 2003 and
September 2005. The defect is caused by the omission of Edells recent bankruptcy a violation Item 401 Rule-SK
related to Director & Officer work experience background.

iii. Defendants recognized the already locked in profits and upside that existed
for them if they could force eUniverse to accept VantagePoints inferior more costly financing.

iv. Defendants use the fabricated Edell resume in a series of Shareholder letters and press releases in an

attempt to cover the unexpected news that the CEO has been forced to resign as part of defendants scheme to

cause eUniverse shareholders to be diluted and pay for more expensive financing so that the Directors

'
led by Brewer could keep their jobs and receive significant upside from the incoming directors from

VantagePoint and Orricks Harrosh. (Exhibit #4,pg.38-39) is November 2003 press release omitting Edells CEO role

in the MTS 2002 Chapter 7 bankruptcy and also another turnaround company he ran in 2003 more recently that

also failed according to Edells accurate D&O submitted to the Nominating Committee. However, Edell

continues his sleight of hand and now promotes only the Soundelux CEO role without disclosing end of tenure

in 2000 when it was sold and creates Impression he was most recently working as CEO of eLabor, Inc., stating

Additionally, Edell served as Founder, Director and CEO of eLabor, Inc., which was sold to ADP in February

of 2003. In fact, Edell was only a director of eLabor since at least 1995.

HIDING ONE BANKRUPTCY AND ONE FAILED TURNAROUND IN PUBLIC DISCLOSURES

22. Edells two resignations on his bio that were really his last two jobs instead of submitting an accurate bio,

defendants stretched the job of Edell that was actually 3 jobs prior, and increased this 3rd job by another 2

years, to the year 2002 (from 2000). Edell both omits to accomplish his end goal of making detection and

disclosure of his true track record. (EXHIBIT #1, pg. 29, EXHIBIT #2, pg. 31, EXHIBIT #3 pg. 33-36, EXHIBIT #5,
pg.41-42)

FLAHIE THE NEW CFO

23. Brewer, also a Director, took advantage of his position leading the interviews and recruitment of the

companys new CFO during the summer of 2003 to recommend final candidate, Tom Flahie,

i. Flahie had previously worked as CFO at eLabor, America, Inc. under Brewers close friend and

fellow YPO member Jeffrey Edell s brother. Edell was Director of eLabor where Edells brother served as

CEO Based on Brewers recommendation, the CEO met with the candidate, and in August 2003, Tom Flahie

was approved and offered a position as the new Chief Financial Officer of eUniverse.

EDELL THE NEW DIRECTOR CANDIDATE

24. After current board member Thomas Gewecke, a senior business development executive of Sony

Music, informed the board in the summer of 2003 of his desire not to serve as director for another annual term,

Chairman/CEO Brad Greenspan agrees to review resume of candidate Jeffrey Edell.

25. In or around August 2003, eUniverse had need to recruit a new independent Board Member who was

also qualified to sit on the audit committee. Brewer and Flahie initiated a scheme to promote their associate

(

Jeffrey Edell as a candidate for the board slot so that they could be assured job security and benefit in the clear

upside that existed to be a senior officer or top employee of Issuer as of October 2003.

i. Based on information and belief, Brewer had been in a Southern California Chapter of the Young

Presidents Organization (YPO) with Edell and they would meet regularly to discuss each others business

challenges and prospects for three years prior to Edell joining the eUniverse board.

ii. New CFO Flahie had pre existing business relationship with Edell, working for a company

where Jeff Edell served as Director and Edells brother served as CEO managing Flahie immediately prior to

coming to work for eUniverse in August 2003.

ii. Brewer and Flahie were challenged to get the Chairman/CEO to nominate Edell to the board

based on Edells actual work experience which would call into question his fitness to serve on the board of a

publicly traded company.

iii. The plan to nominate Edell to the eUniverse board based on his real work experience became

more challenging when the most recently nominated Director, Lawrence Moreau, who had joined eUniverses

board in May of 2003, admitted to being less then candid About his track record after a Los Angeles Business

Journal article in August of 2003 brought such facts to the attention of the other eUniverse directors.

iv. Based on Information and belief, Brewer, Flahie, and Edell realized that to get the support of the

Chairman/CEO to back nomination of Edell to the Board, they would have to inflate and falsify Edells track

record to make it appear flawless.

26. Defendants thru this fraudulent scheme and omissions of Edells true work experience, created a fake

Director candidate misleading shareholders and Petitioner with what appeared to be a perfect track record with

no negative recent work experience disclosed.

i. Defendants determine to accomplish the deed by omitting Edells two most recent work

experiences which were both failures and falsifying the time frame he worked as CEO of an, earlier successful

venture, Soundelux.

ii. Defendants accomplished this thru falsifying the Soundelux timeframe Edell worked as CEO by

two years while omitting the actual prior two jobs, both negative tenures where Edell had failed to improve the

)

Companys where he was principal executive officer.

iii. Defendants fraudulent concealment of Edells true work experience allowed Edell to apply to be

on eUniverse Board in 2003 and become supported by fellow Board Member, founder, and largest shareholder,

CEO Brad Greenspan.

27. Defendants fraudulently conceal the true background of former Director and Chairman Jeff Edell and

forward a fabricated false resume, misleading CEO to get Edell onto the Board.

i. Edell benefitted from fraud of fabricating his work experience by gaining access to the public

issuers board.

28. Edell had not come off a successful business endeavor as his fabricated resume stated but really

had failed in his last two ventures including one of two failures resulting in a Chapter 7 Bankruptcy filing.

29. Brewer moved scheme forward with aid of new CFO Flahie whose disloyalty in not reporting to the

CEO or public that Edell resume was fabricated demonstrates Scienter intent to defraud & mislead shareholders.

30. Jeff Edells omission to trick CEO of Issuer via omission of his immediate two prior employment jobs. A
Directors last two jobs and such director candidates performance or the companys performance being the most
critical bit of information for Issuer or CEO to parse or review to do his duty.
31. Edell scheme results in eUniverse shareholders being diluted via more expensive VantagePoint financing.
32. On August 26, 2003 at 5:39PM Brewer forwards via email a fabricated three page (EXHIBIT #1. Pg. 29)

resume for Jeffrey S. Edell to the CEO with CFO Flahie ccd and states,

looks strong again jeff will be here tomorrow to have lunch with tom and i. brad, Ill set
something up for you later this week or next depending on your schedule.

i. Brewer lies, misleading the CEO further, asserting Edells resume looks strong, even as

Brewer and Flahie are aware that Edells prior two actual jobs are being intentionally omitted from the

document sent to Greenspan. Edell, Brewer, and Flahie have destroyed the actual true work experience

information prior to sending the fabricated Edell resume, this is a violation of 18 U.S.C. 1512(c)(1), which

prohibits the destruction of records.

ii. Defendants omitted a portion of the true documents and information in the Resume sent to

Petitioner, with the intent to obstruct justice in violation of 18 U.S.C. 1512(c)(1) and also since the false


*
document was sent via email, Edell, Brewer, Flahie, and Lipp violate 18 U.S.C. 1341 (relating to mail fraud),

33. On August 27, 2003, the CEO is deceived by the fabricated resume of Edell and responds to Brewer

and Flahie after being misled and reviewing the fabricated resume of Edell, Great resume!. Since the CEO

is misled via email, this is a violation of 18 U.S.C. 1341 (relating to mail fraud).

34. On the first page of the fabricated Edell resume Brewer forwards, in the section labeled Professional

Experience. Edell lists first: Soundelux Entertainment Group, Inc. Hollywood, CA, from 1995-2002 and

the next line purports that during this period, Edell was President/CEO/Director. Edell & Defendants

violate 18 U.S.C. 1519 (relating to destruction, alteration, or falsification of records in Federal investigation

and bankruptcy) and defendants are destroying Edells true work experience and put in its place the fake

Fabricated work experience purporting that 2000-2002 Edell worked still for Soundelux.

i. Edells resume forwarded by Brewer, falsely creates the appearance and assumption that

Soundelux Entertainment Group has been the sole Professional Experience of Edells as a full time

Executive since 2002.

ii. Edells fabricated Professional Experience section creates the appearance that

Edell, Successfully initiated, negotiated and closed sale of the Hollywood postproduction

division of SEG (Soundelux) to the Liberty Media Group and Edell lists he was President/CEO/Director of

Soundelux Entertainment Group from 1995-2002, then the reader of the fabricated document would assume

Edell departed as CEO after Soundelux was sold in 2002. Brewer, Edell, Orrick, VantagePoint, Harroch,

Carlick, Rosenblatt, Sheehan, DeWolfe, Latham, and Sony Corp violate 18 U.S.C. 1519 because they have

altered records of a Board candidate during the SEC restatement inquiry that ended October 2004.

iii. Defendants specifically violated Section 1512 and U.S.C. 1519 by destroying and altering

Edells true background and work experience which should have truthfully disclosed:

i) ShoWorks, where Edell was CEO starting April 2001 thru 2002 (name changed
immediately prior to bankruptcy in September 2002)
and
ii) Enterprise Entertainment Group LLP at which Edell was President/CEO/Director for less
then a year before he resigned from company citing his resignation came after working on
severe turnaround situation in May of 2003. (EXHIBIT #3,. Pg. 33-36)

35. Director Lawrence Moreau on September 30, 2003 at 10:15AM emails Brewer, Mosher, and Lipp,

"+

Subject: RE: Potential EUNI Board Member, stating ,

Also we need to have both he and Jeff Edell complete the companys D&O questionnaire
so we can review it for any problems prior to the Board vote.
The false and defective October 3, 2003 Nominating Committee Recommendation

36. Larry Moreau, Director and Nominating Committee member tasked with review of Edell, Sends email

stating, Jeff Edell Completed D&O Questionnaire to Director Brewer, Director Greenspan, Director

Mosher, General Counsel Lipp, and Sonys sole series B Director Gewecke and states,

i. Moreau and Defendants lie in his email about what is contained in the D&O questionnaire,

failing to disclose Edells disclosed recent bankruptcy and declaring:

Based on my review, there are no negatives for the Nominating Committee to report to
the Board.

ii. This false statement is distributed thru email to Petitioner and other Directors misleading them

and causing them to be unaware that Edells Proxy disclosure is false. This is a violation of 18 U.S.C. 1341

(relating to mail fraud). Moreau, heading the nominating committee, concealed his knowledge that Edell does

have negatives that should be brought to the Boards attention like fact that Edell has a mandatory disclosable

SEC event under Rule S-K Item 401 (f), requiring specific disclosure on Edells recent federal bankruptcy.

iii. Furthermore the destruction or altering of the true information by omission which Edell, Brewer,

and Moreau are guilty of in violation of of 18 U.S.C. 1512(c)(1) and violation of 18 U.S.C. 1519.

iv. Moreau and Defendants further misleads the board by stating:

the Nominating Committees previous legal and financial background checks did not disclose
any negatives.

Based on the results of the Nominating Committees due diligence procedures including meeting
and various discussions with Jeff, I think he is an outstanding candidate and hereby recommend
that the Board approval his appointment.

37. An attached D&O questionnaire is distributed in October 3, 2003 email with false claims used to

coverup underlying facts, in violation of of 18 U.S.C. 1341 (relating to mail fraud).

38. In late 2011, Petitioner discovered a D&O questionnaire Edell submitted to eUniverses Nominating

Committee headed by Director Larry Moreau. Edells true work experiences consists of:


""
i. On the first page, in the first paragraph, there is information to read for the

questionnaire submission. The third line from the bottom states,

Accordingly, great care should be exercised in completing this questionnaire. You should be aware that
if the Proxy Statement contains any false or misleading statements, the Company and those in control of
the Company could be subject to liability under federal securities laws.

ii. The factual D&O Questionnaire of Edell from Exhibit XX reveals:

a. On the second page of the document titled,

EUNIVERSE, INC. QUESTIONNAIRE FOR DIRECTORS AND OFFICERS,

the first section is labeled: I. Employment, Occupation, and Business Experience.

And it lists information submitted by Jeffrey S. Edell, 11/10/57.

b. Under section , document states,

Please Indicate all positions and offices which you hold or have held during the past five(5)years

c. Edells Questionnaire For Directors And Officers lists 3 submissions under Positions/Office:

President/CEO & Director Showorks Entertainment Group, Inc.

from January 2001- April 2002 and notes he resigned April 2002.

President/CEO/Director, Soundelux Entertainment Grp., Inc.

from November 1995- 12/31/2000.

President/CEO/Director, Enterprise Entertainment Grp, LLC.

From November 2002-May2003

and the next line in parenthesis immediately below states,

resigned May 2003, after working on severe turnaround situation.

d. On page 14 of Edells Questionnaire For Directors And Officers, Edell checks YES for

section (a) when asked if any of the following events has occurred since April 1, 1998, please

provide a brief description of the event.

e. Section (a) states:

A petition under the Federal bankruptcy laws or any states insolvency law was filed by or against you,
or any corporation or business association of which you were an executive officer at or within two years
before the time of such filing.


"#
f. Edell discloses under Description::

Showorks Entertainment Group, Inc. underwent a name change in 2002 to MTS, Inc. I resigned as
President and CEO of this company in April of 2002. Subsequent to my leaving, sometime in September
of 2002, I learned that they had filed bankruptcy under Chapter 7.

39. Therefore, Edells scheme to defraud the eUniverse Directors is effected by changing the time frame and

term of his Soundelux employment from the factual end of 12/31/2000, to the fabricated and false claim that

Edells end of his work tenure being thru 2002. This allows Edell to effectively cover up or disguise his true

historical work performance and mislead Petitioner & shareholders that need accurate and true professional

experience to determine if someone is qualified to be a Director of a public company.

i. As part of scheme, Edell omits his January 2001-April 2002 true employment where he was

President/CEO & Director Showorks Entertainment Group, Inc. that he had disclosed in a prior D&O

Questionaire.

ii. Edell also omits his November 2002-May 2003 professional experience as

President/CEO/Director, Enterprise Entertainment Grp, LLC,

resigning after just five months, blaming a severe turnaround. (EXHIBIT #3, pg. 33-36)

Predicate Acts related to 2003 press release announcing Edell

40. On October 9, 2003, Brewer furthers the fraudulent concealment scheme by forwarding eUniverses PR

firm the fabricated resume which incorrectly shows Edell worked at Soundelux Entertainment until 2002 and

omits both the Showorks/MTS bankruptcy and working most recently at troubled Enterprise Entertainment Grp,

LLC. Brewer also misleads PR firm by sending fabricated work experience and bankruptcy omission from their

PR firm.Laurie Eisner,

laurie-we need a very basic- Thomas Gewecke has resigned from the euniverse board. And
jeff edell (bio attached) has been appointed-

41. October 10, 2003 at 2:05PM, PR firm emails Brewer and Greenspan draft of Edell press release stating,

Prior to his Board appointment at eUniverse, Edell served as President and CEO of Soundelux
Entertainment Group, Inc., a provider of entertainment content technologies, with revenues
exceeding $110 million

"$
42. October 11, 2003 at 2:43PM, Edell emails Greenspan requesting puffery to be added to the draft press release
about his background, stating,

Brad, Comments on Release- It says nothing of the record sale to Liberty Media and John
Malone for apprx. $100m, the sale of the software company elabor, Inc. that I served as CEO
and founder for 10 years, and sold to ADP, the sitting on the Public board of IVC industries and
sale of it to Inverness Medical. Also the winner of Entertainment Entrepreneur of the YEAR
by NASDAQ and Ernst and Young in 2000, and member of both TV and Film
Academies..member of Young Presidents Organization.. Get some bang out of it!! That should
all be somewhere in it..please have them take another shot
43. October 11, 2003 at 4:43PM Edell emails Greenspan and Brewer:
Subject: RE: Press Release: Jeffrey Edell and states,

Your PR dept can do a better job extracting what I have on my bio related to the subjects that are
pertinent to eUNI,,, but please do not ease this until we finalize our deal

44. October 11, 2003, at 6:15PM Greenspan emails Lipp and Brewer forwarding above Edell

Email and states, call me to discuss So we can finalize.

45. The October 11, 2003 draft PR submission Defendants Edell and Brewer are hiding and have destroyed

the evidence of Edells True work experience in the press release draft being distributed as well as the final

release in violation of of 18 U.S.C. 1512(c)(1) and violation of 18 U.S.C. 1519.

46. Also Defendants violate Section 1341 by using email to send false fact draft press release to PR firm
47. Brewer enlists Highland Partners and Jim Quandt to provide background checks for the eUniverse nominating
committee for Director candidate Edell and Ward. As evidence of this scheme, Brewer emails Mosher on October 16,
at 3:56PM and states,
dan- have you received the background check from highland partners for bradley ward?

48. BOARD MEETING- October 17, 2003 there is Board meeting where Brad Greenspan attempt to elect the

annual board slate and his slate leaves off Lawrence Moreau and Dan Mosher. General counsel Chris Lipp

deems Greenspan's slate did not pass even though 3 Directors approved the new slate, 1 disapproved, and 2

Directors Abstained. Lipps Board minutes indicate, "The motion failed with a vote of 3 for, 1 against and 2

abstentions, constituting less then the requisite majority of directors present."

49. On October 30, 2003 at 4:57PM, Flahies emails Lipp, Subject: Bio for New Directors For proxy Draft


"%
and provides a bio for Edell which states

Jeffrey S. Edell has served as a Director since October 14, 2003. Mr. Edell was employed as
President and Chief Executive Officer and a director of Showorks Entertainment Group, Inc.
(previously known as Soundelux Entertainment Group, Inc.) a provider or entertainment content and
technologies, from 1995 until 2002.

50. On Friday, October 31, 2003 Defendants cause the company to put out a press release with false information:

"eUniverse announces eUniverse Announce CEO Departure and Board of Director Changes Brad Greenspan
Steps Down as Chief Executive Officer Jeffrey Edell eLabor Founder and Former CEO/President of
Soundelux Entertainment Group, and Bradley Ward, CEO of The Game Tree, Join eUniverse Board.
51. Significant puffery created by Edell and put into press release but omits mention of his true work experience
such as his recent fraudulently concealed MTS Bankruptcy and other employment information provided in the original
D&O Questionnaire Edell provided to eUniverse. Defendants also violate Section 1343 as the defendants cause the
false information to be distributed via news wire to the public. (EXHIBIT #4, pg. 38-39)
52. Sony in fact specifically made it known that it would not allow VantagePoint to take over or transfer the
rights to vote Series B until VantagePoint bought all the stock held by Sony Corp of public issuer.
53. November 7, 2003 at 3:59M- Intermix CFO Tom Flahie sends a draft Proxy to Chris Lipp, Subject: Proxy
which states,
54. On November 17, 2003, Chris Lipp sends Consents to Sony Corp to sign.
LIPP KNEW SONY DID NOT SIGN THE CONSENT ON NOVEMBER 17
th

55. Sonys Mark Eisenberg only signs the consent to change the Certificate of Designation of the Series B
provided by Lipp.
56. Sonys Eisenberg executes the consent on November 18, 2003 according to his testimony read in court.
i

57. On November 18, 2003 at 12:50PM, Lipp emails Vantagepoints Carlick and Sheehan a new draft Series C
consent that appears to have some backdated element of optimizing the prior Notes to the detriment of the
shareholders.
58. Orricks Harroch active in the planning of the Proxy and Edell frauds emails Lipp stating,
I dont understand the background of this, and it will take some time to review. Chris
are you working on the proxy statement language to implement the things required by
the Option Agreement?

59. On November 18, 2003, at 4:09PM, Lipp asks PR company run by Jonathan Heit to put out Annual Meeting
Release. The release falsely states Issuers

annual meeting of stockholders has been rescheduled for January 21, 2004 so that certain
aspects of the Companys recently announced financing transaction with VantagePoint Venture

"&
Partners, among other items, may be submitted to the Companys stockholders for approval. A
new record date for the meeting of December 1, 2003 has also been set.

60. November 20, 2003- Flahie emails Board Members including Edell, Subject 'Director Bios for Proxy' and
states,
"In preparation for filing of the proxy, I have updated the director bio information from the
Form 10-K. David, Andy, Jeff and Bradley, I took a first pass to put a bio together for you.
Since this information is personal, please make edits to your bio and return the word doc to me.
I will make your edits in the actual proxy. Thanks, Tom"
ii

DEFENDANTS FALSIFY PROXY HOPING SONY WILL SIGN OFF ON NOMINATING EDELL AS
SERIES B DIRECTOR
61. November 21, 2003- Intermix CFO Tom Flahie sends an email, Subject: 'Proxy', stating,
i. "I completed the first draft of the 2003 proxy."
ii. Given the major changes to the Board,
iii. the proxy needs a close look this year,
iv. We intend to file with the SEC on Wednesday.",

62. Flahie attaches a draft of proxy which falsely states, "550 DMV notified the Company that Lawrence Moreau
and Jeffrey Edell have been nominated by the Series B preferred stockholders.
iii

63. Issuer announces on November 21, 2003 that it has raised $2.5 million in Common stock financing selling
1,643,000 shares at $1.50 instead of the $1.85 previously agreed price with the same investors, or a loss of $575,050
for shareholders in the bargain made by management to mitigate one of the agreived parties from defendants actions
around the 2004 proxy.
64. At 5:46PM on Saturday November 22, 2003, eUniverse Sr. VP Legal, Chris Lipp emails Orricks Harroch and
VantagePoints Harroch and internal general counsel Guidero with Subject: Series C Consent re Bylaw Amendment
and attached, Series C Written Consent to Amend Bylaws and states,
Rich, Please find attached the Series C consent with the changes we discussed. Thanks, -Chris
iv

65. On November 24, 2003 at 12:05PM, Flahie emails outside general counsel Cartmell, Subject RE: Proxy and
states, I need to file on Wednesday. I hope that your comments do not impact the schedule

66. Defendants in November 2003 press release omit Edells CEO role in the MTS 2002 Chapter 7 bankruptcy and
failure of another turnaround company he ran in 2003. Edell continues his sleight of hand and promotes only the
Soundelux CEO role without disclosing end of tenure in 2000 when it was sold, creating impression he was most
recently working as CEO of eLabor, Inc., stating, Additionally, Edell served as Founder, Director and CEO of

"'
eLabor, Inc., which was sold to ADP in February of 2003. In fact, Edell was only a director of eLabor since at least
1995.
v

NOVEMBER 2003- SONY SERIES B SHAM CONSENT SCHEME
67. November 25, 2003 at 5:33AM, Moreau emails Flahie, Carlick, Mosher, Subject: RE: Nomating Committee-
Dropped nominations, and states, Tom, Did you mean to drop David Carlick, Andy Sheehan, Jeff Edell and I from
the Board? Also, when is the proxy deadline?
vi

68. Flahie responds at 8:27AM on November 25
th
, falsly stating:
Only three directors are up from election at the January 24 stockholders meeting. The
Series B stockholders (Sony) have elected Larry Moreau and Jeff Edell. The Series C
stockholders have selected Andry Sheehan and David Carlick. The only directors that up for
election are Dan Mosher, Brett Brewer and Bradley Ward. And

The proxy deadline is driven by the timing of Chris Liupps vacation. Chris has put off
a European vacation several times due to the issues we are working through. He will be out all
next week. I will prepare the proxy in his absence.

69. On November 25, 2003, at 10:11PM, Lipp emails Flahie, Subject Proxy Excerpt with attached files including
one called By-Laws and states,

Attached is the language I would suggest for Proposal 2 and the Other Business
sections. Also attached is the newly added Section 10 of the Article I of the Bylaws.

70. On November 25, 2003, Chris Lipp emails Sony's Melissa Cole and Mark Eisenberg, Subject: 'One More
Series B Consent' and attaches a draft of Series B consent form re: election of directors, and states,
Melissa- Please find attached what should be the final Series B consent we will need in
connection with getting the director issues sorted out"

71. Director Ward is puzzled at the Flahie claim that a new Board slate has been elected which includes Edell and
Moreau as Series B Directors Ward who had just voted with the rest of the Directors to elect the slate on November
20, 2003, states in a November 26, 2003 9:28AM

Quick question.The role of the Nominating and Corporate Governance Committee
(NCGC) shall be to determine the slate of director nominees for election to the Companys
Board of Directors (the Board) to be included in the Companys annual proxy statement,
And

Will this committee solely determine the nominees on the slate and no longer require a
full Board vote like we just had last week? In the absence of any specification for a full Board
vote, thats how I read that.

72. November 26, 2003 at 11:26AM, Outside eUniverse counsel Nate Cartmell emails Chris Lipp, Subject:
'Series B Written Consent re Election of Directors 11-26-03.DOC' and states,

"(
"Chris, I have modified the consent slightly to deal with the fact that the right belongs to
the Series B but that Sony can exercise that right as majority holder. Redline to follow in PDF
format'

attaching a document titled:
'ACTION BY WRITTEN CONSENT OF MAJORITY SERIES B STOCKHOLDER OF EUNIVERSE, INC.'

NOVEMBER 26, 2003 - CFO FLAHIE INSTRUCTS STAFF TO FILE PROXY
73. November 26, 2003, 1:41PM, Flahie emails Samina Merchant, Subject: 'Proxy', and states,
"Please send the proxy over to Donnelley for Edgar formatting".
74. As of November 26, Sony had not given its consent to nominate Moreau or Edell as Series B nominees.
DECEMBER 1. 2003 PROXY IS FILED
75. The December 1, 2003 Proxy lists Edell & Moreau as Series B Preferred Nominated Directors stating:

"the majority holder of our Series B preferred stock, has the exclusive right, voting separately
as a single class, to elect two directors" and "550 DMV has notified the Company that it intends to
elect Lawrence Moreau and Jeffrey Edell to the Board.

PROXY CONTEST DECEMBER 2003- JANUARY 2004
76. According to former Director Greenspan, his email sent on December 5, 2003, at 3:17PM, to Lipp, Brewer,
Edell, Fojut, Subject: Need immediate documents and states, Chris/Matt- As both a director and shareholders, I
demand to see the following documents. did not result in the company sending him the Myspace Asset Sale
agreement that was purported to have been signed on December 17, 2003. This is further key evidence that supports
such agreement not having really existed at such time and prior to November 2004 when defendants first publicly
disclose the claim that the MySpace Asset Agreement selling 33% to DeWolfes MSV LLC really occurred on
December 17, 2003.
77. Email evidence shows the chilling effect of defendants fabricating proxy to make it appear Sony had
nominated Edell and originally also, Moreau as Series B Directors. Showing initial response from an informed
investor can be seen thru email on December 4, 2003, at 3:30pm, current board member, former CEO and 20%
stockholder of Issuer emails proxy information to his outside counsel, Subject: Darn and states,
Tougher Road to fight. It looks like these guys got Sony to PURPOSELY elect directors so
there are only 3 slots open and 4 forced seats. Only three directors are up for nomination.
And
Sony owns the Series B which VantagePoint has a right to purchase and the Series B has rights
to elect 2 Board Members, but Vantagepoint had specifically agreed to cancel such rights as part of
their acquisition of Sonys Series B just for the reason of not doubling up on forced directors. And
Sneaky sneakyThey got Sony to nominate 2 of the existing directors to BulletProof these guys.
78. Edell emails Flahie and states on December 4, 2003,
Only comment, is please make sure from Nate that this info is clearly necessary of a
press releaseI am sure you checked already but let me know? Thanks jeff
vii


")
79. CFO Flahie a few minutes later replies via email and states,
Yes, all three lawyers agreed. They also want me to Form 8-k the press release.
viii

80. Lipp emails Harroch on December 8, 2003 at 4:01PM and states,
Richard, Last time we discussed this, I thought we agreed that it was neither partys intent to
have the shares purchased under the option be anything other than the Series C shares

81. Ultimately, Lipp capitulates to the dominant Orrick firm and agrees to issue C-1 shares which are worth $2.00
in extra preferred liquidation vs. $1.50. A loss of .50 cents per share for shareholders and additional corporate waste
by defendants, using shareholder money to effect a change of control.
82. December 8, 2003- 2:16PM, from Harroch of Vantage/Orrick to Chris Lipp and other Carlick and Sheehan and
Rodi Guidero;, Subject: Option.
"Chris, we still need to deal with the Sony option, Series B issue. As I see it, the proxy
statement should also seek approval for amending the Series B Certificate of Designation to
encompass the matters set forth in Exhibit B of the Option Agreement (PIK/dividend for VPVP
Shares elimination of company Election concepts, authorized # of shares, etc :) " and,

"If we had a chance to review the proxy statement before you filed it, I would have
pointed this out to you. So let us figure out how we implement this now. Thanks!"

83. December 9, 2003, at 11:29AM, Edell emails Chris Lipp, Sheehan, Carlick, Moreau, Brewer, and states,
Chris, The meeting took place this morning and the board is in the dark about its
results. and
Please see to it that Nate reports on the Nasdaq meeting ASAP. I heard that there were
some problematic issues, such as dilution that we should have known about with the VP deal,
that I would love to sort out.

84. Lipp sends a revised Note to VantagePoint and the January Proxy confirms that indeed, the Accelerator was
part of the January 2004 proxy material and shareholders were forced to vote or be victims the accelerated Note
scheme.
85. On December 17, 2003 at 10:46PM, Brewer emails Edell. Lipp, Sheehan, Flahie, Carlick, Moreau, Ward,
Mosher and states,
Gentlemen- We will be having our board call tomorrow as scheduled at 4 PM sharp.
And
Also, after speaking with some of the board and management, we think it would be
useful to have an in person board meeting next Tuesday in LA.
The meeting will be from 10-4pm and will include Mike Kennedy from WS as well as
other lawyers if needed. We have several ratifications of chartes, reports on litigation, proxy
contest issues, and other house keeping matters to take care of.
ix

86. December 18, 2003- Greeenspan emails Carlick, Edell, Mosher, Subject: 'Info-' and states,

"Guys- I have lots of additional information on the performance of Brett Brewer, Chris
Lipp, and Adam Goldenberg before, during, and after the restatement" and "It sheds a very
negative light on all of these gentlemen's performance."
x


"*
87. After getting sent an email sent by former CEO to non-management board members critical of certain
managers and offering to provide information to help Board best evaluate executives at company, Director Edell sends
such email on to principal executive Brewer. Brewer then passes that email onto Lipp and Goldenberg to influence
them to be disloyal with adware and other transgressions against former CEO of Issuer. In Brewers email on this date
to Lipp and Goldenberg he states,
this guy is one of the biggest assholes that ever livedthere is no other way to say it.
xi

88. On Thursday December 18, 2003, at 1:46AM, Brewer emails board and states, Gentlemen- We will be having
our board call tomorrow as scheduled at 4pm sharp.
xii

89. There is no evidence that the Myspace asset sale agreement was disclosed or voted on by the board at the
December 19, 2003 board meeting. While there is significant evidence there was a focus according to Brewer on,
modifications of charters, reports on litigation, proxy contest issues
xiii

90. Annual Meeting date rescheduled on December 19, 2003 at 4:14PM, Flahie emails Lipp, Sheehan,

Carlick, Moreau, Mosher, Ward, Brewer, Edell, Subject: Filings and states,

The attached proxy amendment was filed today and the attached press release announcing the
new meeting date was issued.
xiv

THE 2003 DEFECTIVE AMENDED NOTE
91. On December 27, 2003, Lipp emails Harroch and Sheehan of VantagePoint with Subject Amended VPVP
Note and states, As discussed, please find attached for your review an amended note. and attaches a revised $2.5
million note that now has been amended under Section (1) Repayment to change the original due date of March 2005
to now be due February 8, 2004 a few days after the planned Shareholder meeting unless stockholders of the
Borrower, provide approvals necessary.
92. The December 30, 2003 Proxy falsely states:

"Pursuant to the Certificate of Designation of Series B Preferred Stock, 550 Digital Media
Ventures, Inc. ("550 DMV"), an indirect subsidiary of Sony Corporation of America, the majority
holder of our Series B preferred stock, has the exclusive right voting separately as a single class, to
elect two directors in the event the Board consists of six to eight members, 550 DMV has notified the
Company that it intends to elect Jeffrey Edell to the Board and leave one Series B Board seat vacant at
this time

93. Sony had not notified the company it intended to elect Edell as of and thru the date of the Chancery Court trial
in January 2004.
The false and defective January 2004 Proxy AND PUFFERY OF EDELL (EXHIBIT #6 pg 44-46)

94. In January 2004, Vantage sealed control over eUniverse thru one of three Proxy frauds

perpetuated on common stockholders by Carlick, Sheehan, Brewer, Lipp, Rosenblatt and associates. 2003-2005

Flahie who is disloyal along with Brewer in not revealing Edells fabricated resume then colludes with General

#+

Counsel Lipp to knowingly falsify January 2004, July 2004, August 2005 Proxies, violating Item 102 Rule SK.

95. Defendants decide to make detection of the fraudulently concealed Edell true professional experience

more difficult, and on the December 30, 2003 DEF14A Proxy, on page 4, the company states,

Jeffrey Edell has served as a Director since October 14, 2003 and as Chairman
of the Board since November 14, 2003. Mr. Edell is currently a member of eUniverses
Compensation and Audit Committees. Mr. Edell was employed as President and Chief
Executive Officer and a director of Soundelux Entertainment Group, Inc., a provider of
entertainment content and technologies, from 1995 until 2002

96. It was part of the Defendants scheme to use the United States Postal Service to deliver fraudulent SEC

Proxy to the eUniverse (Intermix) Inc. MySpace Parent Company Shareholders in December 2003, January

2004, July 2004, August 2005, and September 2005 and to conceal the errors contained in the Proxy Disclosure

statements on each occasion regarding Edell and Petitioner in violation of 18 U.S.C. 1341.

FRAUD UPON THE CHANCERY COURT (Exhibit #9, pg. 52-64)










98. Judge Strine was adamant about going on record multiple times during the trial to notify all parties of

his views that the testimony of general counsel Lipp was not believable as to Mr. Lipps rationales for certain

disclosures and statements in the companys Proxy.

SONYS SECURITIES FRAUD AND AIDING AND ABETTING BLASIUS VIOLATION AND AIDING AND
ABETTING FRAUDULENT CONVEYANCE

99. Sony Music Corp in 2004, transacted after a still uncured Federal Securities Violation and these


#"
transactions damaged and fraudulently conveyed assets to the detriment of Issuer shareholders.

100. Edells securities violation makes the Proxy and subsequent 10Qs and 10Ks and next Proxy statement

defective, all caused by Sony Music Corp aiding and abetting this securities fraud thru multiple acts in 2003 and

2004. Most directly by opting after Judge Strines January 14, adverse ruling to manipulations of defendants

and Sony Corps interactions relating to upcoming 2004 Proxy Disclosures.










Shockingly with evidence of Defendants improprieties laid bare in court and significant red flags raised, Sony then

agrees to nominate Edell to serve as Series B Director. Sonys aid eliminates shareholders ability to keep Edell off

Board & further conspiring with Defendants in late 2004 to complete a sweetheart deal to sell almost half of MySpace.

Defendants also breach pledge made with Judge Strine & Petitioner, failing to make corrective disclosure in January

2004 Proxy.

102. Defendants have also not legally effected a valid closing or vote on the Series C stock sale or transfer

from Sony of their Series B shares, blocking public issuers option received in three way agreement between

Sony, VantagePoint, and public issuer in 2003. The crooked dealings expand when Orrick uses its insider

knowledge to produce a commercial benefit for VantagePoint while having Issuer pay 100% of the cost by


103. Defendants were aware and admitted the proxy statement was defective in January 2004. Defendants willfully

ignore Judge Strines ruling and continue to allow A defective proxy to be the final proxy for the annual shareholder


##
meeting that occurred in January 2004. Defendants fraudulently conceal Edells work experience and omit disclosure

of Edells bankruptcy of MTS, Inc. Defendants aid and abet Edell in violating Rule SK Item 401.

ISS REPORT DEFAMATION

104. Part of the Defendants scheme to conspire to interfere with Plaintiffs livelihood by disseminating

defamatory statements about Plaintiff to the public through media outlets in retaliation for providing truthful

information to SEC, FTC, DOJ and Chancery Court relating to the Defendants scheme, in violation of 1513(f).

105. Defendants press release titled eUniverse Wins ISS Support for Its Director Nominees; ISS Rejects

Greenspan's Hand-Picked Director Nominees.is published January 23, 2004:

eUniverse, Inc. today announced that Institutional Shareholder Services, Inc. (ISS) has
recommended that eUniverse stockholders vote FOR eUniverse's four director nominees -- Brett
Brewer, Daniel Mosher, Lawrence Moreau and Bradley Ward -- and vote FOR the Board's other
proposals at the Company's annual meeting on January 29, 2004.

ISS is widely recognized as the leading independent proxy advisory firm in the nation. Its
recommendations are relied upon by hundreds of major institutional investment firms, mutual funds,
and other fiduciaries throughout the country.

In recommending that eUniverse stockholders re-elect eUniverse's Board nominees, ISS stated
in its January 22, 2004 report that:

"[T]he dissident slate does not offer a clear plan to operate the business that distinguishes
themselves from the path of the current board of directors.

Further, we question the independence of the dissident slate as they were proposed by Mr.
Greenspan and Mr. Greenspan's record as CEO eUniverse is blemished with financial difficulties.

ISS also stated that:

"[T]he company's board has independent directors for six out of seven board seats, setup
independent board committees as of Nov. 14, 2003, and two new directors added after the company
announced its accounting problems.

Further, the board has taken steps to improve management of the company by removing Mr.
Greenspan and initiating the process of hiring a new CEO."

In conclusion, ISS believes that "the [eUniverse] nominees should have an opportunity to
implement plans to grow the business, shore up the company's finances, and find new management
leadership."

Jeffrey Edell, Chairman of the eUniverse Board of Directors, said, "We are very pleased that
ISS recognizes that the current Board is best suited to successfully guide eUniverse. We look forward to
moving beyond Mr. Greenspan's costly and counterproductive proxy contest and to continuing the
progress we have made to build a stronger future for eUniverse and all its stockholders."


#$
106. However, ISS is basing its report on the fabricated Edell bio and work experience that was created thru

emailing and mailing the fraudulent Proxy prior to the ISS report, in violation of Statue 1341.

107. ISS was not able to write an accurate report or reach an equitable conclusion because Defendants

destroyed the evidence of Edells true background violating 18 U.S.C. 1512(c)(1) and 18 U.S.C. 1519.

108. January 23, 2004 press release is defamatory attack on Petitioner and misleads all shareholders, and is

distributed via wire service in violation of 18 U.S.C. 1343.

Los Angeles Times Defamation

109 Defendants scheme to use fabricated and false Director Edell continued in a January 29, 2004

article titled, Battle of EUniverse Is Up in the Air that continues to harm Plaintiff and is located at

public web link: http://articles.latimes.com/2004/jan/29/business/fi-golden29 stating:

Battle of EUniverse Is Up in the Air
Michael Hiltzik / GOLDEN STATE/January 29, 2004|

There's an old joke about how university campus politics are so vicious because there's so little at stake.
From that, we might conclude that the proxy fight over the Internet company EUniverse Inc. would
have been more dignified had it concerned an operation that actually turned a profit over the last year
and didn't spend several months in the doghouse of a Nasdaq trading suspension.

Instead, the battle pitting EUniverse's founder and ex-chairman, Brad D. Greenspan, against a
management team that he had largely appointed himself has reached new standards in backbiting and
vituperation.

Over the last few weeks, the existing board has been issuing letters to shareholders with lurid headlines
such as: "BRAD GREENSPAN -- THE THREAT TO YOUR COMPANY'S SUCCESS," and
"GREENSPAN'S SOUR GRAPES."

Even the Democrats in New Hampshire backed away from this sort of campaigning.

The board accuses the 30-year-old Greenspan of employing "empty rhetoric" and "petty personal
attacks" in order to seize control of the Los Angeles-based company for personal financial gain and
self-aggrandizement. It notes that the trading suspension and a huge restatement of financial results
going back to 2002 occurred on his watch.

The incumbents further charge that he tried to torpedo an $8-million private equity deal that they deem
crucial to the survival of the company, which runs a collection of game and entertainment websites,
earning revenue from advertising and memberships.

Greenspan has fired back in kind. His shareholder letters accuse the officers and directors of conflicts of
interest, self-dealing and mudslinging. ("THERE THEY GO AGAIN! DO NOT BE MISLED BY
INCUMBENT MANAGEMENT'S CONTINUING MISSTATEMENTS, OMISSIONS AND

#%
MANIPULATION OF THE FACTS IN THEIR EFFORTS TO DIVERT YOUR ATTENTION FROM
THE REAL ISSUES.")

Greenspan's core charge is that the board colluded with a private venture firm to seize control of
EUniverse from the holders of its common shares, of which he owns the largest block. As for its
financial problems in the last year, he acknowledges that he was chairman and chief executive during
much of that period. But he says he had left day-to-day operations in the hands of some of the same
people now sniping at him from the opposite trench, including President Brett Brewer, 31, a board
member and his former UCLA classmate.

Under the circumstances, one can only sympathize with the 4,000 shareholders being importuned to
vote for one or another slate of four directors (out of seven) at the company's annual meeting, scheduled
for today. Both sides say their first order of business will be to hire a professional CEO for EUniverse,
obviously an admission that no one in place now is up to the job. Both also claim to possess the
strategic key to restoring EUniverse's former luster as one of the rare, pure Internet plays that worked.

The false and defective July 2004 Proxy (EXHIBIT #7, pg. 48-49)

110. Edells July 2004 Proxy disclosure totally omits any notion of bankruptcy. Edell and defendants later

after using the fabricated Edell to win the January 2004 Proxy contest, attempt thru a footnote, in second Proxy

distributed in July 2004, to avail themselves of the disclosure requirements they know exists by concealing

Edells true background by disclosing:

"Mr. Edell was the Chief Executive Officer of Showorks Entertainment Group. Inc., a
Delaware corporation that later changed its name to Media Technology Source of Delaware,
Inc. Within two years of the time that Mr. Edell resigned from that company, it filed a petition
for relief under the United States Bankruptcy Code."

111. However, even with this disclosure of a bankruptcy Edell does not disclose the year that he works for

Showorks in his main bio area. Combined with fabricating the year Edell concluded his job at Soundelux to

2002, An informed investor would not be able to deduce that Edell worked for Showorks as CEO in 2001

before its bankruptcy in 2001. Edell misled investors, omitting fact that in 2001 & 2002 he was Showorks CEO.

112. Defendants are guilty of the destruction or altering of the true Edell background information and work

experience and bankruptcy by omission violating 18 U.S.C. 1512(c)(1) and 18 U.S.C. 1519.

113. Defendants violate . 1341 using email to send fabricated draft Proxy for review furthering scheme.

2009 FRAUD

114. Edell & Defendants in mid-2009 launch another prong of fraudulent concealment.

115. New evidence includes i) publication of a book by employee loyal to News Corp to fabricate the

background of Jeff Edell a former Director ii) Using fabricated Edell character to conceal truth that
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1
In our June 22, 2009 Order, we certified the following class: All holders of Intermix Media,
Inc. (Intermix or the Company) common stock, from July 18, 2005 through the consummation of the
sale of Intermix to News Corporation (News Corp) at the price of $12.00 per share on September 30,
2005 (the Acquisition), who were harmed by defendants improper conduct at issue in the litigation.
Excluded from the Class are defendants and any person, firm, trust, corporation or other entity related to
or affiliated with any defendant. (Dkt. No. 197).
2
In our July 14, 2008 Order on the Motion to Dismiss, we dismissed with prejudice Defendants
Montgomery & Co. LLC (Montgomery), and Thomas Weisel Partners Group, Inc. and Thomas
Weisel Partners LLC (TWP), the investment banks which advised the Intermix board during the 2005
transaction and completed fairness analyses on the $12 per share price offered by News Corp. in the
consummated merger transaction. (Dkt. No. 110, at 4-5). In that same Order, we also dismissed with
prejudice Count I for violation of Section 14(a) of the 1934 Act and SEC Rule 14a-9, which was stated
against the 2003 Individual Defendants, which included Brewer, Mosher, Moreau, Jeffrey Scott Edell,
Bradley Ward, Carlick, Sheehan, and Lipp, and VantagePoint. (Id. at 1-3). Accordingly, Count III for
Presiding: The Honorable GEORGE H. KING, U. S. DISTRICT JUDGE
Beatrice Herrera N/A N/A
Deputy Clerk Court Reporter / Recorder Tape No.
Attorneys Present for Plaintiffs: Attorneys Present for Defendants:
None None
Proceedings: (In Chambers) Order re: Cross-Motions for Summary Judgment; [213, 218,
244, 251, and 261]
This shareholder class action arises out of News Corporations (News Corp.) 2005 acquisition
of Intermix Media, Inc. (Intermix), formerly known as eUniverse Inc. (Brewer Decl. 3), a company
which owned, among other internet businesses, the social networking website MySpace. Plaintiff Jim
Brown (Plaintiff), individually and on behalf of all members of the certified class of former Intermix
shareholders,
1
claims that Defendants Brett Brewer (Brewer), Daniel Mosher (Mosher), Lawrence
Moreau (Moreau), David Carlick (Carlick), Andrew Sheehan (Sheehan), Richard Rosenblatt
(Rosenblatt), James Quandt (Quandt), and William Woodward (Woodward) (collectively,
Defendants), the eight Intermix directors at the time of the companys sale, breached their fiduciary
duties under state law and violated Section 14(a) of the Securities and Exchange Act of 1934 and SEC
Rule 14a-9 (Counts IV and II, respectively).
2
(Consolidated Second Amended Complaint [CSAC]
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control person liability was dismissed as to Edell and Ward, as it was premised on the only other
claim against them, the dismissed Count I. (Id. at 7-8). The Parties stipulated to dismiss certain
Defendants. (Dkt. Nos. 190, 204). On June 10, 2009, pursuant to the Parties stipulation, we dismissed
without prejudice Defendants VantagePoint Venture Partners, VP Alpha Holdings IV L.L.C.,
VantagePoint Venture Partners IV (Q) L.P., VantagePoint Venture Partners IV L.P., and VantagePoint
Venture Partners IV Principals Fund L.P. (Dkt. No. 194). On August 28, 2009, pursuant to the Parties
stipulation, we dismissed without prejudice Defendant Christopher Lipp, Intermixs General Counsel.
(Dkt. No. 205).
168-74, 179-87; Brewer Decl. 5). The only other remaining claim is Count III for control person
liability under Section 20(a) of the 1934 Act against Defendants involved in the 2005 acquisition of
Intermix. (CSAC 175-78). This matter is before us on the Parties Cross-Motions for Summary
Judgment. We have considered the papers filed and all of the admissible evidence, and deem this matter
appropriate for resolution without oral argument. L.R. 7-15. As the Parties are familiar with the facts in
this case, we will repeat them only as necessary. Accordingly, we rule as follows.
I. Motion for Summary Judgment Standard
Summary judgment should be granted if the pleadings, the discovery and disclosure materials
on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c)(2); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). As to materiality, the substantive law will identify which facts are
material. Only disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). On a motion for summary judgment, our function is not . . . to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue for trial. Id. at 249.
The moving party bears the initial responsibility to point to the absence of evidence of any
genuine issue of material fact. Celotex Corp., 477 U.S. at 323. When the party moving for summary
judgment would bear the burden of proof at trial, it must come forward with evidence which would
entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving
party has the initial burden of establishing the absence of a genuine issue of fact on each issue material
to its case. Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 987 (9th Cir. 2006) (citation and
quotation marks omitted). By contrast, where the non-moving party bears the burden of proof at trial,
summary judgment is warranted if the nonmovant fails to make a showing sufficient to establish the
existence of an element essential to [its] case. Nebraska v. Wyoming, 507 U.S. 584, 590 (1993)
(quoting Celotex Corp., 477 U.S. at 322) (alteration in original). [T]he moving party can meet its
burden by pointing out the absence of evidence from the non-moving party, and it need not disprove
the other partys case. Miller, 454 F.3d at 987 (citation omitted). Accordingly, [t]he nonmoving
party must come forward with specific facts showing there is a genuine issue for trial. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks and citations
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3
Under Delaware law, the business judgment rule creates a presumption that in making a
business decision, the directors of a corporation act on an informed basis, in good faith and in the honest
belief that the action taken was in the best interests of the company. Aronson v. Lewis, 473 A.2d 805,
812 (Del. 1984). A plaintiff challenging a board decision bears the burden to rebut the rules
presumption by providing evidence that the directors breached their fiduciary duties. Goodwin v. Live
Entmt, Inc., No. Civ. A. 15765, 1999 WL 64265, at *24 (Del. Ch. Jan. 25, 1999) (citing Cede & Co. v.
Technicolor, Inc., 634 A.2d 345, 361 (Del. 1993), modified by, 636 A.2d 956 (Del. 1994) (Cede II);
Citron v. Fairchild Camera and Instrument Corp., 569 A.2d 53, 64 (Del. 1989)). In order to overcome
that presumption, a plaintiff must prove an act of bad faith by a preponderance of the evidence. In re
omitted). However, [i]f the opposing party does not so respond, summary judgment should, if
appropriate, be entered against that party. FED. R. CIV. P. 56(e)(2); see also Celotex Corp., 477 U.S. at
322 ([T]he plain language of Rule 56(c) mandates the entry of summary judgment . . . against a party
who fails to make a showing sufficient to establish the existence of an element essential to that partys
case, and on which that party will bear the burden of proof at trial.). The opposing party may not rely
merely on allegations or denials in its own pleading[.] FED. R. CIV. P. 56(e)(2). The evidence of the
non-movant is to be believed, and all justifiable inferences are to be drawn in his favor. Anderson, 477
U.S. at 255; see also In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (The court must view all the
evidence in the light most favorable to the nonmoving party.) (citations omitted).
Only admissible evidence may be considered in deciding a motion for summary judgment.
Miller, 454 F.3d at 988. Under Federal Rule of Civil Procedure 56(e)(1), [a] supporting or opposing
affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and
show that the affiant is competent to testify on the matters stated. See also Block v. City of Los
Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001). Conclusory and speculative affidavits that fail to set
forth specific facts are insufficient to raise a genuine issue of material fact. Thornhill Publg Co., Inc. v.
Gen. Tel. & Elecs. Corp., 594 F.2d 730, 738 (9th Cir. 1979). Absent a proper exception, hearsay
statements are inadmissible. See Japan Telecom, Inc. v. Japan Telecom Am., Inc., 287 F.3d 866, 875
n.1 (9th Cir. 2002). Furthermore, neither an unverified complaint nor unsworn statements made in the
parties briefs can be considered as evidence at this stage. See Moran v. Selig, 447 F.3d 748, 759 &
n.16 (9th Cir. 2006) (noting that unverified complaint cannot be considered as evidence on motion for
summary judgment); British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978) ([L]egal
memoranda . . . are not evidence[.]).
II. Count IV: Breach of Fiduciary Duty Claim
A. Delaware Law on Corporate Fiduciary Duties Generally
Delaware law governs Plaintiffs state law claim of breach of fiduciary duty. Under Delaware
law, all directors and officers of a corporation owe their shareholders fiduciary duties of loyalty and
care. Gantler v. Stephens, 965 A.2d 695, 708-09 (Del. 2009).
3

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Walt Disney Co. Derivative Litig., 907 A.2d 693 (Del. Ch. 2005). If the plaintiff fails to rebut the
presumption, the business judgment rule protects the decision made. Goodwin, 1999 WL 64265, at *4
(citation omitted). If the rule is rebutted, the burden shifts to the defendants . . . to prove that the
transaction was entirely fair to the plaintiff shareholder. Id. (citation omitted).
1. Duty of Care
Director liability for breaching the duty of care is predicated upon concepts of gross
negligence. Binks v. DSL.net, Inc., C.A. No. 2823-VCN, 2010 WL 1713629, at *8 (Del. Ch. Apr. 29,
2010) (quoting McMullin v. Beran, 705 A.2d 910, 921 (Del. 2000)). The Delaware General
Corporation Law permits a corporation to include a provision in its charter eliminating or limiting the
personal liability of a director to the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director. DEL. CODE ANN. tit. 8, 102(b)(7). While such an exculpatory provision
may eliminate any liability for breaches of the duty of care, it shall not eliminate or limit the liability of
a director: (i) For any breach of the directors duty of loyalty to the corporation or its stockholders; (ii)
for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation
of law; . . . or (iv) for any transaction from which the director derived an improper personal benefit. Id.
Intermixs charter exculpates Defendants from any duty of care claims. (J.A., Ex. 38, Certificate of
Incorporation). Accordingly, Defendants assert this provision as their fifth affirmative defense: The
breach of fiduciary duty claim is barred, in whole or in part, by the exculpatory provision contained in
Intermixs Certificate of Incorporation. (Dkt. No. 111, Aug. 4, 2008). In light of this provision, we
conclude that the director Defendants cannot be liable for any purported breach of fiduciary duty based
solely on their duty of care. Plaintiff does not argue otherwise.
Defendants also move for summary judgment on the question of whether Brewer and Rosenblatt,
who doubled as officers for Intermix, may be held liable for any breaches of the duty of care, since
Section 102(b)(7) only permits exculpation of duty of care claims for directors. It is undisputed that
both Brewer and Rosenblatt served as directors and officers of Intermix, Brewer as President and
Rosenblatt as CEO. (Brewer Decl. 1; Rosenblatt Decl. 1). The law is clear that where it is
impossible to separate actions taken in fulfillment of a defendants directorial duties from actions taken
in fulfillment of that defendants duties as a corporate officer, then any duty of care claim stated against
that individual is exculpated. In Arnold v. Society for Savings Bancorp, Inc., 650 A.2d 1270 (Del.
1994), the Delaware Supreme Court held that since the plaintiff failed to highlight any specific actions
[the defendant] undertook as an officer (as distinct from actions as a director) that fall within the two
pertinent exceptions to Section 102(b)(7)[,] any duty of care claim was precluded under the
exculpatory clause. Id. at 1288 (citing R. Franklin Balotti & Jesse A. Finkelstein, Delaware Law of
Corp. & Business Org. 4.19, at 4-335 (Supp. 1992) (where a defendant is a director and officer, only
those actions taken solely in the defendants capacity as an officer are outside the purview of Section
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102(b)(7))). Plaintiffs have not identified any actions taken by Rosenblatt or Brewer solely in their
capacity as officers. Accordingly, to the extent any claim for breach of the duty of care is embodied in
Count IV, we GRANT summary judgment on that specific basis as to all director defendants, including
Brewer and Rosenblatt who also served as officers.

2. Duty of Loyalty
To hold a director liable for breach of the duty of loyalty, the plaintiff must establish that a
majority of the Director Defendants either [1] stood on both sides of the merger or were dominated and
controlled by someone who did; or [2] failed to act in good faith, i.e., where a fiduciary intentionally
fails to act in the face of a known duty to act, demonstrating a conscious disregard for his duties. In re
NYMEX Sholder Litig., C.A. Nos. 3621-VCN, 3835-VCN, 2009 WL 3206051, at *6 (Del. Ch. Sept. 30,
2009) (internal citations and quotation marks omitted); Lyondell Chem. Co. v. Ryan, 970 A.2d 235, 239-
40 (Del. 2009) (Lyondell) (Because the trial court determined that the board was independent and
was not motivated by self-interest or ill will, the sole issue is whether the directors are entitled to
summary judgment on the claim that they breached their duty of loyalty by failing to act in good
faith.).
With respect to the first basis for demonstrating breach of the duty of loyalty, Delaware law
provides that [w]hen directors . . . are on both sides of a transaction, they are required to demonstrate
their utmost good faith and the most scrupulous inherent fairness of the bargain. Weinberger v. UOP,
Inc., 457 A.2d 701, 710 (Del. 1983). Classic examples [of this type of breach] are when a director
appears on both sides of a transaction or receives a personal benefit not received by the shareholders,
generally. Oliver v. Boston Univ., No. Civ. A. 16570-NC, 2006 WL 1064169, at *18 (Del. Ch. Apr.
14, 2006) (citing Cede II, 634 A.2d at 362 (citing Nixon v. Blackwell, 626 A.2d 1366, 1375 (Del.
1993))) (internal quotation marks and alterations omitted). If corporate fiduciaries stand on both sides
of a challenged transaction, an instance where the directors loyalty has been called into question, the
burden shifts to the fiduciaries to demonstrate the entire fairness of the transaction. Id. (citations
omitted). A showing of entire fairness requires proof that the transaction is the product of both fair
dealing and fair price. Cede II, 634 A.2d at 361 (emphasis in original and citations omitted).
With respect to the second basis for demonstrating breach of the duty of loyalty, Delaware
courts have noted that the requirement to act in good faith is a subsidiary element, i.e., a condition, of
the fundamental duty of loyalty. Stone v. Ritter, 911 A.2d 362, 369-70 (Del. 2006) (citation, alteration,
and internal quotation marks omitted) ([T]he fiduciary duty of loyalty is not limited to cases involving
a financial or other cognizable fiduciary conflict of interest. It also encompasses cases where the
fiduciary fails to act in good faith.). In Stone, the Delaware Supreme Court explained that although
good faith may be described colloquially as part of a triad of fiduciary duties that includes the duties
of care and loyalty, the obligation to act in good faith does not establish an independent fiduciary duty
that stands on the same footing as the duties of care and loyalty. Id. at 370.
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The Delaware Supreme Court has explained what constitutes bad faith by way of a spectrum of
directorial conduct. At one end of the spectrum, [there is] a category of acts involving non-exculpable,
so-called subjective bad faith, that is, fiduciary conduct motivated by an actual intent to do harm.
Ryan v. Lyondell Chem. Co., C.A. No. 3176-VCN, 2008 WL 4174038, at *3 (Del. Ch. Aug. 29, 2008)
(Ryan) (quoting In re Walt Disney Co. Derivative Litig., 906 A.2d 27, 64 (Del. 2006) (Disney))
(internal quotation marks omitted). The second category of conduct, which is at the opposite end of
the spectrum, involves lack of due carethat is, fiduciary action taken solely by reason of gross
negligence and without any malevolent intent. Disney, 906 A.2d at 64. The court observed that
grossly negligent conduct, without more, does not and cannot constitute a breach of the fiduciary duty
to act in good faith. Id. at 65. The third category identified by the Delaware Supreme Court is the one
at issue in this case: intentional dereliction of duty or a conscious disregard for ones responsibilities.
Id. at 66. Such misconduct, according to the Court, is properly treated as a non-exculpable,
non-indemnifiable violation of the fiduciary duty to act in good faith. Ryan, 2008 WL 4174038, at *3
(quoting Disney, 906 A.2d at 66).
Accordingly, the distinction between gross negligence and non-exculpable bad faith (i.e., that
elusive something more) has important consequences in Delawares jurisprudence and corporate
statutory scheme because, for example, director conduct amounting only to a violation of the duty of
care, but otherwise taken in good faith, is exculpable under 8 Del. C. 102(b)(7) or indemnifiable under
8 Del. C. 145. Id. (citing Disney, 906 A.2d at 64-65).
B. Scope of Plaintiffs Claim of Breach of the Duty of Loyalty
Inasmuch as the director defendants are exculpated from potential breaches of their duty of care,
the success of Count IV necessarily depends on whether any arguable shortcomings on the part of the .
. . directors also implicate their duty of loyalty, a breach of which is not exculpated. Lyondell, 970
A.2d at 239. To that end, in order to rule on Defendants motion for summary judgment, we must
ascertain whether there are any genuine issues of material fact with respect to whether the directors
breached their duty of loyalty, not merely their duty of care. In keeping with the Parties Joint Brief, we
address the two bases for breach of the duty of loyalty in the reverse order: first, Plaintiffs assertion of
bad faith conduct by Defendants, and second, Plaintiffs allegation of a self-interested transaction not
shown to be entirely fair.

1. Bad Faith in Revlon Auction Context
The obligation to act in good faith, which is a necessary component of satisfying the duty of
loyalty, requires directors to act for the purpose of advancing corporate well-being. Therefore, any
intentional dereliction of duty, a conscious disregard for ones responsibilities[,] constitutes bad faith,
or the failure to act in good faith. Disney, 906 A.2d at 66; Stone, 911 A.2d at 370 (Where directors fail
to act in the face of a known duty to act, thereby demonstrating a conscious disregard for their
responsibilities, they breach their duty of loyalty by failing to discharge that fiduciary obligation in
good faith.). In this case, Plaintiff and the shareholder class which he represents argue Defendants
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consciously disregarded their responsibilities in selling Intermix to News Corp. for $12 per share, when,
so they contend, a likely topping bid from Viacom was imminent.
The seminal case of Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., 506 A.2d 173 (Del.
1986), regulates directorial conduct during a sale or change of control of a publicly held corporation.
Revlon holds that directors satisfy their fiduciary duties when their conduct is geared towards the
maximization of the companys value at a sale for the stockholders benefit. Id. at 182. Revlon is
triggered in the following three scenarios: (1) when a corporation initiates an active bidding process
seeking to sell itself or to effect a business reorganization involving a clear break-up of the company;
(2) where, in response to a bidders offer, a target abandons its long-term strategy and seeks an
alternative transaction involving the break-up of the company; or (3) when approval of a transaction
results in a sale or change of control. Arnold v. Socy for Sav. Bancorp., Inc., 650 A.2d 1270, 1289-90
(Del. 1994) (internal citations and quotation marks omitted). More recently, the Delaware Supreme
Court has stated that Revlon duties attach when a company embarks on a transactionon its own
initiative or in response to an unsolicited offerthat will result in a change of control. Lyondell, 970
A.2d at 242. When the companys break-up became inevitable, in Revlon, [t]he directors role
changed from defenders of the corporate bastion to auctioneers charged with getting the best price for
the stockholders at a sale of the company. 506 A.2d at 182. In addition to its principal holding that
shareholder wealth maximization must be the directors foremost objective, the court also noted that
favoritism for a white knight to the total exclusion of a hostile bidder was impermissible if divorced
from the objective of shareholder value maximization. Id. at 184. [W]hen bidders make relatively
similar offers, or dissolution of the company becomes inevitable, the directors cannot fulfill their
[fiduciary] duties by playing favorites with the contending factions. Market forces must be allowed to
operate freely to bring the targets shareholders the best price available for their equity. Id.

The Delaware Supreme Court has clarified that Revlon did not create any new fiduciary
duties[,] but rather simply held that the board must perform its fiduciary duties in the service of a
specific objective: maximizing the sale price of the enterprise. Lyondell, 970 A.2d at 239 (quoting
Malpiede v. Townson, 780 A.2d 1075, 1083 (Del. 2001)). Additionally, Delaware case law has time
and again reaffirmed the anti-favoritism principle, i.e. that directors may not tilt the playing field in
favor of one bidder or otherwise skew the auction unless this conduct is designed to maximize
shareholder wealth. In Barkan v. Amsted Industries, 567 A.2d 1279 (Del. 1989), the court warned that
the board must act in a neutral manner to encourage the highest possible price for shareholders. Id. at
1286. To be sure, there is no single blueprint that a board must follow to fulfill its duties, and there
are no legally prescribed steps that directors must follow to satisfy their Revlon duties. Id.; Lyondell,
970 A.2d at 243. Nevertheless, [w]hen multiple bidders are competing for control, this concern for
fairness forbids directors from using defensive mechanisms to thwart an auction or to favor one bidder
over another. Id. at 1286-87 (citation omitted). More recently, in In re Toys R Us, Inc.,
Shareholder Litigation, 877 A.2d 975 (Del. Ch. 2005), the Delaware Chancery Court stated that a
selfish or idiosyncratic desire by the board to tilt the playing field towards a particular bidder for
reasons unrelated to the stockholders ability to get top dollar is a violation of a directors fiduciary
obligations. Id. at 1000-01.
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4
Favoritism and deal protection devices, such as a termination fee, are permissible so long as
they are strategically designed to maximize the price paid to shareholders. Macmillan, 559 A.2d at
1287 ([T]he boards primary objective, and essential purpose, must remain the enhancement of the
bidding process for the benefit of the stockholders.). Macmillan set forth a test which tolerates only
value-enhancing preferential treatment:

In the face of disparate treatment, the trial court must first examine whether the directors
properly perceived that shareholder interests were enhanced. In any event, the boards action
must be reasonable in relation to the advantage sought to be achieved, or conversely, to the
threat which a particular bid allegedly poses to stockholder interests.
559 A.2d at 1288; In re J.P. Stevens & Co., Inc. Sholders Litig., 542 A.2d 770, 782 (Del. Ch. 1988)
(The board may tilt the playing field if, but only if, it is in the shareholders interest to do so.).
To support his claim that Defendants acted in bad faith, Plaintiff cites Mills Acquisition Co. v.
Macmillan, Inc., 559 A.2d 1261 (Del. 1988). In that case, Macmillan, Inc.s Chairman and Chief
Executive Officer (CEO) and its President and Chief Operating Officer (COO) orchestrated a
leveraged buyout of their own company, resulting in a lock-up agreement between Macmillan and
Kohlberg Kravis Roberts & Co. (KKR), an investment firm specializing in leveraged buyouts. Id. at
1264-65. These directors, as participants in the leveraged buyout, had a significant self-interest in
ensuring the success of a KKR bid. Id. at 1279. Indeed, Macmillan senior management would
receive up to 20% ownership in the newly formed company. Id. at 1273. So strong was the pull of
that promised 20 percent ownership stake that even before KKR had communicated a bid price, these
self-interested actors indicated that they would endorse the acquisition to the full board of directors.
Id. To steer the process in the desired direction, they clandestinely and impermissibly skewed the
auction in KKRs favor by, among other things, tipping KKR off as to the amount of a competing bid
and then concealing this tip from the board of directors. Id. at 1279-81. On appeal, the Delaware
Supreme Court held that discriminatory treatment of a bidder, without any rational benefit to the
shareholders, was unwarranted. Id. at 1282 (emphasis added).
4
The court found that KKR repeatedly
received significant material advantages to the exclusion and detriment of [the competing bidder] to
stymie, rather than enhance, the bidding process. Id. at 1281. Moreover, the court concluded that
[t]he board was torpid, if not supine, in its efforts to establish a truly independent auction . . . . Id. at
1280. The court added: By placing the entire process in the hands of [the chairman], through his own
chosen financial advisors, with little or no board oversight, the board materially contributed to the
unprincipled conduct of those upon whom it looked with a blind eye. Id.
Defendants contend that Macmillan is distinguishable because the directors in that case were on
both sides of the transaction and therefore engaged in self-dealing. However, Defendants have pointed
us to no authority for the proposition that Macmillan is only applicable when a court reviews self-
interested transactions for fairness and may not support a finding of bad faith conduct in the Revlon
auction context.
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5
Although Viacom did not actually submit a bid, we conclude that there are triable issues of fact
as to whether Viacom was at least a serious potential bidder which was discouraged from actually
submitting a bid by Defendants alleged bad faith conduct.
6
The Delaware courts have explained that favoritism, untethered to any strategy to drive up bid
prices, is a breach of the fiduciary duties which Revlon focused through the lens of shareholder wealth
maximization:
Critically, in the wake of Revlon, Delaware courts have made clear that the enhanced judicial
review Revlon requires is not a license for law-trained courts to second-guess reasonable, but
We recognize that Wayne County Employees Retirement System v. Corti, Civil Action No.
3534-CC, 2009 WL 2219260 (Del. Ch. July 24, 2009), distinguishes Macmillan from the single-bidder
merger reviewed in that case on the absence of any conflicted insiders seeking to transfer control of a
company to themselves. Id. at *12-13 (There is much less cause for concern where managers will
continue their employment with the combined post-transaction entity, than when the conflicted
managers are bidders in an auction for control of the company, and are thereby seeking to transfer
control of the company to themselves personally.). But that discussion has no bearing on the
prohibition on favoring a particular bidder in a multiple-bidder context, which this case arguably
presents.
5
Defendants suggest that the directors may tilt the playing field in favor of a particular bidder,
without regard to shareholder wealth maximization, so long as they are not on both sides of a
transaction. We reject this argument. Simply because Macmillan examined disparate treatment
through the lens of disloyalty premised on a self-interested transaction does not mean field-tilting is
permissible in other contexts. See Emerson Radio Corp. v. Intl Jensen Inc., Civ. A. Nos. 15130,
14992, 1996 WL 483086, at *11-12 (Del. Ch. Aug. 20, 1996) (describing Macmillan as requiring
fiduciaries to treat all bidders equally and fairly in carrying out their Revlon duties and identifying
self-interested nature of merger transaction as an addition[al] or alternative theory for breach of
duty of loyalty); Roberts v. Gen. Instrument Corp., CIV. A. No. 11639, 1990 WL 118356, at *8 (Del.
Ch. Aug. 13, 1990) (citing Macmillan, 559 A.2d at 1287-88) (In each instance where the board is not
predominantly self-interested or under the control or dominating influence of a person with a conflicting
interest, the principal judicial inquiries relate to whether the board was adequately informed and acting
in good faith. This court has been pointedly instructed, however, that where issues of corporate control
are at stake action of even a disinterested board must meet an enhanced test before they will qualify for
the deference that courts ordinarily accord to good faith business judgments.).
Whatever a directors particular motivation, evidence that he skewed an auction in favor of a
particular bidder can support a finding of an intentional dereliction of duty, Disney, 906 A.2d at 66,
i.e. a violation of the obligation to act in good faith. See Nagy v. Bistricer, 770 A.2d 43, 48, n.2 (Del.
Ch. 2000) (observing that the duty of good faith may serve as a constant reminder . . . that, regardless
of his motive, a director who consciously disregards his duties to the corporation and its stockholders
may suffer a personal judgment for monetary damages for any harm he causes, even if for a reason
other than personal pecuniary interest).
6
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debatable, tactical choices that directors have made in good faith. For example, the Supreme
Court has held that the duty to take reasonable steps to secure the highest immediately available
price does not invariably require a board to conduct an auction process or even a targeted market
canvass in the first instance, emphasizing that there is no single blue-print for fulfilling the
duty to maximize value. Nor does a boards decision to sell a company prevent it from offering
bidders deal protections, so long as its decision to do so was reasonably directed to the objective
of getting the highest price, and not by a selfish or idiosyncratic desire by the board to tilt the
playing field towards a particular bidder for reasons unrelated to the stockholders ability to get
top dollar.
Toys R Us, 877 A.2d at 1000-01 (emphasis added; citations omitted).

Defendants principal argument is that recent Delaware Supreme Court case law creates a much
more stringent standard for claims of breaches of the obligation to act in good faith. To this end, they
cite language in the Delaware Supreme Courts decision in Lyondell. In that case, Lyondells board of
directors approved the sale of their company to Basell AF, a privately held Luxembourg company, after
negotiating several increases in the per share bid price up from $40 to $48, and a set of less stringent
deal protection devices, including a fiduciary out clause in the standard no-shop provision and a
reduced termination fee. 970 A.2d at 237-39. The court found no bad faith and therefore no breach of
the duty of loyalty. Id. at 242-44. The Supreme Court rested its decision on the following facts:
The Lyondell directors met several times to consider Basells premium offer. They were
generally aware of the value of their company and they knew the chemical company market.
The directors solicited and followed the advice of their financial and legal advisors. They
attempted to negotiate a higher offer even though all the evidence indicates that Basell had
offered a blowout price. Finally, they approved the merger agreement, because it was simply
too good not to pass along [to the stockholders] for their consideration. We assume, as we must
on summary judgment, that the Lyondell directors did absolutely nothing to prepare for Basells
offer, and that they did not even consider conducting a market check before agreeing to the
merger. Even so, this record clearly establishes that the Lyondell directors did not breach their
duty of loyalty by failing to act in good faith.
Id. at 244.
Contrary to Defendants argument, Lyondell did not work any transformation in Delaware law
on the duty of loyalty. Nothing in this case altered the standard definition of bad faith; indeed, the court
reaffirmed that bad faith will be found if a fiduciary intentionally fails to act in the face of a known
duty to act, demonstrating a conscious disregard for his duties. Id. at 243 (quoting Disney, 906 A.2d at
67). The court continued: there is a vast difference between an inadequate or flawed effort to carry out
fiduciary duties and a conscious disregard for those duties. Id. Despite all the references to the
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conscious disregard standard, Defendants nevertheless cherry-pick certain language to argue that a
more stringent standard applies, including the following lines: (1) Only if they knowingly and
completely failed to undertake their responsibilities would they breach their duty of loyalty; and (2)
[T]he inquiry should have been whether those directors utterly failed to obtain the best sale price. Id.
at 243-44 (emphasis added); (Joint Br. 5-7, 16). Defendants citation of this language is out of context
and misleading. A comprehensive review of the Lyondell opinion reveals that the court intended that
language to be synonymous and coterminous with the conscious disregard standard. The court did
not suggest that the utter failure standard would supplant the definition of bad faith set forth in
Disney. Nor did it suggest any unprecedented diminishment of Revlon duties, as suggested by the
minimalist standard Defendants advance. If such a radical departure were intended, we think the court
would have taken the pains to say as much. Divorced from the surrounding text, the utter failure
language could be said to require that directors simply do anything in the auction process, no matter
how feckless, ineffectual, or at odds with the goal of maximizing shareholder wealth.
The utter failure language derives from the Stone and In re Caremark decisions, which the
court cited. 911 A.2d 362 (Del. 2006); 698 A.2d 959, 971 (Del. Ch. 1996). Both of those decisions
concerned claims that directors failed to engage in the necessary oversight to ensure compliance with
laws such as the federal Bank Secrecy Act in Stone. That vital factual context helps explain why In re
Caremark defined bad faith as follows: Generally where a claim of directorial liability for corporate
loss is predicated upon ignorance of liability creating activities within the corporation, . . . only a
sustained or systematic failure of the board to exercise oversightsuch as an utter failure to attempt to
assure a reasonable information and reporting system existswill establish the lack of good faith that is
a necessary condition to liability. 698 A.2d at 971 (Such a test of liabilitylack of good faith as
evidenced by sustained or systematic failure of a director to exercise reasonable oversightis quite
high.). Nevertheless, the Delaware Supreme Court explained in Stone and reaffirmed in Lyondell that:
the Caremark standard is fully consistent with the Disney definition of bad faith. Lyondell, 970 A.2d
at 240 (citing Stone, 911 A.2d at 370). We cannot second-guess that determination as Defendants wish.
Instead of placing utter failure between subjective bad faith (i.e. actual intent to do harm)
and conscious disregard on the Disney bad faith spectrum, Lyondell equated the utter failure and
conscious disregard standards. 970 A.2d at 240. This reasoning was fully in keeping with the
Supreme Courts prior decision in Stone, where it noted that the duty of loyalty could be breached by
two specific kinds of conduct rising to the level of bad faith: (a) the directors utterly failed to
implement any reporting or information system or controls; or (b) having implemented such a system or
controls, consciously failed to monitor or oversee its operations thus disabling themselves from being
informed of risks or problems requiring their attention. 911 A.2d at 370. Crucially, though bad faith
could be demonstrated with either of these alternatives, the court emphasized, citing Disney, 906 A.2d at
67, that these were coterminous legal standards:
In either case, imposition of liability requires a showing that the directors knew that they were
not discharging their fiduciary obligations. Where directors fail to act in the face of a known
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7
A failure to act in good faith may be shown . . . where the fiduciary intentionally acts with a
purpose other than that of advancing the best interests of the corporation, where the fiduciary acts with
the intent to violate applicable positive law, or where the fiduciary intentionally fails to act in the face of
a known duty to act, demonstrating a conscious disregard for his duties. In re Walt Disney Co.
Derivative Litig., 907 A.2d at 755.
duty to act, thereby demonstrating a conscious disregard for their responsibilities, they breach
their duty of loyalty by failing to discharge that fiduciary obligation in good faith.
911 A.2d at 370 (emphasis added). Delaware courts generally seem to read Lyondell in this way. See,
e.g., Robotti & Co., LLC v. Liddell, C.A. No. 3128-VCN, 2010 WL 157474, at *11 (Del. Ch. Jan. 14,
2010) (characterizing Lyondell as holding that [b]ad faith, and thus a breach of the duty of loyalty, can
arise only when a fiduciary consciously disregards his or her responsibilities).
7

In addition, we do not read Lyondell as diminishing the prohibition on tilting the playing field in
favor of a particular bidder for any reason other than maximizing shareholder wealth. The lack of an
actual or even potential second bidder was a key undisputed fact on which that court relied, noting:
[The directors] had reason to believe that no other bidders would emerge, given the price Basell had
offered and the limited universe of companies that might be interested in acquiring Lyondells unique
assets. . . . Finally, no other acquiror [sic] expressed interest during the four months between the merger
announcement and the stockholder vote. 970 A.2d at 241. Other cases have distinguished between
single-bidder and multiple-bidder contexts as well. See, e.g., Barkan, 567 A.2d at 1286-87; Continuing
Creditors Comm. of Star Telecomms., Inc. v. Edgecomb, 385 F. Supp. 2d 449, 466 n.14 (D. Del. 2004)
(In [Macmillan], the claim was that the directors approved the use of a lock-up that stopped rival
bidders from winning the auction for the company so that fellow directors could purchase the company
through a leveraged buy-out. Here, however, there were no other bidders for Star, the Company was on
the verge of bankruptcy, and the Gotel financing was, by the Plaintiffs own admission, the only
financing option presented to the Board.) (emphasis added and citations omitted). Since Lyondell only
reviewed a merger with a lone bidder, even if we were to read its utter failure language as more
lenient on Defendants, it is of severely diminished relevance in the multiple-bidder scenario we
arguably confront here.
In short, Revlon and Macmillan are not displaced in any way by Stone or Lyondell.
Accordingly, we must ask whether there is a genuine issue of material fact as to whether Defendants
consciously disregarded their duties, i.e. fail[ed] to act in the face of a known duty to act. Stone, 911
A.2d at 370. There is nothing in the case law to warrant granting judgment as a matter of law for
Defendants, simply because they engaged in some bargaining.
Having considered all of the admissible evidence before us and viewing it in the light most
favorable to Plaintiff as we must under Rule 56, we conclude that there are genuine, triable issues of
material fact sufficient to defeat Defendants Motion for Summary Judgment on this Revlon claim.
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8
Although analytically we are reviewing the evidence on the bad faith prong of the duty of
loyalty component of the breach of fiduciary duty claim at this juncture, we consider Rosenblatts
alleged self-interest to the extent that it bears on whether Plaintiff has raised a triable issue of material
fact as to whether Rosenblatt acted in conscious disregard of his duties by impermissibly tilting the field
in favor of News Corp.
These issues fall into three categories: (1) whether Intermix CEO Rosenblatt impermissibly tilted the
playing field in favor of News Corp.; (2) whether the remaining board members consciously disregarded
their duties; and (3) whether the purported risk of a direct bid for MySpace, which would have frozen
the MySpace Option, precludes a finding that Defendants consciously disregard their duties.
a. Rosenblatt
Plaintiff proffers evidence tending to show that during the crucial week leading up to the July
18, 2005 merger, Rosenblatt evaded Viacoms advances, even though Viacoms representatives were
communicating that a competing bid was imminent. Plaintiff raises at least two interrelated triable
issues: (1) whether Rosenblatt was self-interested in the merger transaction;
8
and (2) whether he
impermissibly steered the auction in News Corp.s favor.
As to Rosenblatts purported self-interest, there is evidence of Rosenblatts motivation for the
alleged bidder favoritism, namely his anticipation of future employment with News Corp. In one
particularly revealing email sent on July 15, Rosenblatt excitedly endorses News Corp.s Ross
Levinsohns vision: So, we create the Fox Internet group, all our units (myspace, alena, grab) fall
under it, plus all new acquisitions, and you are CEO Fox Internet and I am Fox Internet grand Puba!!!!
(J.A., Ex. 184). Rosenblatt continues: I would like to discuss my specific role and structure whenever
you are ready. It is no rush unless Peter and Rupert want me to sign an employment agreement by
Sunday [July 17, 2005] . . . . (Id.). In an earlier email in that same chain, Rosenblatt wrote: [I] am
burning some real equity with every major media company by getting [the deal] done. . . . u [sic] have
no idea the pain I will suffer on Monday. U [sic] better have a good job for me cause I aint [sic] gonna
work in this town again. . . . (Id.). On July 13, Rosenblatt wrote: tell Thom Murdoch and I cut the
deal in 30 mins [sic] and I got 100% of what we wanted. Deal closing by Monday. (Id., Ex. 154).
This evidence at least raises the inference that Rosenblatt had a strong interest in seeing a merger
transaction with News Corp. completed and had made up his mind that Intermix would be sold to News
Corp. as of July 13.
Moreover, Plaintiff points to several key pieces of documentary evidence and witness testimony
which tend to support his contention that (1) Rosenblatt, in representing the Intermix board through the
Transaction Committee (TC), (2) Sheehan, who also sat on the TC, and (3) their agents, deliberately
dodged, if not frustrated, an arguably imminent bid from Viacom:
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9
Viacom owns MTV Networks.
10
The Parties initially sought to file Frestons deposition transcript under seal because it
contained information subject to the governing protective order. On November 13, 2009, the Parties
filed a joint stipulation to withdraw their application to file under seal unredacted versions of the Joint
Brief, the Joint Statement of Uncontroverted Facts, and Volumes 2-3 and 5-9 of the Joint Evidentiary
Appendix, as well as several full deposition transcripts, including Frestons testimony. (Dkt. No. 234).
In that document, the Parties stated that: WHEREAS the Parties have contacted all non-parties that
produced documents and/or gave deposition testimony which was the subject of the application to file
under seal, and obtained their permission for the documents to be publicly filed, and therefore withdraw
the Application to File Under Seal[.] (Id. at 3). Our November 17, 2009 Order regarding the joint
stipulation was not clear as to whether the deposition transcripts were also being filed in the public
record. (Dkt. No. 236). We now clarify that all of the deposition transcripts labeled Confidential
Pursuant to Protective Order and submitted to the Court along with the Cross-Motions for Summary
Judgment SHALL also be filed in the public record pursuant to the Parties joint stipulation.
First, on July 6, Montgomery responded to an email announcing Viacom coming in hard by
telling Rosenblatt: You need to dance with [Viacom] . . . slow them down. I know you can do
it. (Id., Ex. 117).
Second, TWP, specifically Robert Kitts (Kitts), was aware that Epstein was trying to reach
them to talk about a potential Viacom bid. (Kitts Tr. at 125:4-7, 126:4-13). Epstein noted on
July 16 that Kitts never called him back as promised. (J.A., Ex. 191 (We exchanged
subsequent emails and he indicated he would call me, but he never did.)).
Third, on July 15, Mosher wrote Rosenblatt following one of Rosenblatts updates to the full
board, saying Viacom sounds like a pipedream. (Id., Ex. 182).
Fourth, on July 15, Judy McGrath of MTV
9
wrote Rosenblatt to inform him that Viacom was
coming with a bid early next week. (Id., Ex. 183). She added: We really want to be with you
on this, and hope to get in the ring for it . . . . (Id.). Rosenblatt replied evasively, failing to
correct her mistaken impression that the auction would still be ongoing after Monday: I am on a
call but thanks so much for the email . . . . I will call you back soon . . . . (Id.). Rosenblatt
could not recall precisely whether he had returned her call: I may have tried. I think, actually, I
do think I tried and I couldnt get a hold of her. (Rosenblatt Tr. at 108:21-24).
Fifth, Viacoms CEO Thomas Freston (Freston), who reiterated Viacoms interest in
purchasing Intermix to Rosenblatt, has testified that he was only told that the process with the
competing bidder was moving quickly. (Freston Tr. at 17:12-20, 19:8-11, 22:4-14).
10
He
testified that he could not recall if [Rosenblatt] said that they were going to do a deal by
Sunday. (Id. at 22:21-24). When asked whether Rosenblatt had communicated that a deal
would be completed by Sunday, he stated that he did not believe so. (Freston Tr. at 19:8-11).
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11
Rosenblatt, on the other hand, has testified that he actually told Freston that a deal would
likely be over by Sunday, or (stated with more certainty) that the deal was going to be done by
Sunday. (Rosenblatt Tr. at 64:5-22, 65:22-25, 92:5-8). For purposes of summary judgment, this
conflicting evidence further supports the existence of a triable issue of fact as to Viacoms relative
awareness of the impending consummation of the merger with News Corp. Moreover, Jason
Hirschhorn (Hirschhorn), Viacoms top manager for Internet business, wrote in an internal email on
Saturday July 16 that News Corp. will deliver [its bid] anywhere from today-monday. (J.A., Ex.
192). Freston also states that Rosenblatt told him a specific deal was imminent. (Freston Tr. at
29:11-16). Though the actual meaning of that statement is obscure as to whether a deal or a bid would
have been imminent (particularly given Frestons other testimony), this ambiguity likewise buttresses
our conclusion that there are genuine issues for trial.
12
A reasonable jury could infer from this email that Rosenblatt intended to evade an arguably
imminent competing bid, and that the [h]ave a great weekend line at the end of the email was
dismissive, given the fact that the email was sent at nearly 6 p.m. on a Sunday night.
13
We do not read the deposition to suggest that these were his actual words; Kitts was merely
paraphrasing what he recalls saying to Viacom.
Kitts of TWP also confirmed that he failed to give Viacom any hard deadline by which to submit
a bid. (Kitts Tr. at 88:21-89:16, 90:11-22, 136:11-14).
11

Sixth, on July 17, Jason Hirschhorn emailed Chris DeWolfe, MySpaces CEO, to document his
difficulties in staying in the auction process: chris, quick concerns . . . Intermix management
did not show up on Friday as promised during our time there . . . Intermix legal cancels their
time with our legal today at the last minute . . . Heard you guys got called off the ad sales call
abruptly . . . In short, I have had a team of 20+ people here working for 72 hours straight on a
significant bid, is there anything I need to know? (J.A., Ex. 200).
Seventh, on July 17, Van Toffler of MTV also emailed Rosenblatt directly to complain politely
about the perceived run-around: They are in the office working round [sic] the clock so we can
put forth a number to you this week. They mentioned a couple of calls were cancelled at the end
of the day Friday, and seemed a bit concerned. Is there anything I can do to help the process for
both of us as this is clearly on the fast track? (Id., Ex. 202). Again, Rosenblatt replied in such
a way that a reasonable jury could infer an intent to evade an arguably imminent competing bid:
We like you and your guys a ton also. Chris called back or will your GC today. Have a great
weekend[.] (Id.).
12

Eighth, on July 17, Kitts of TWP, pursuant to the Intermix boards instructions, informed
Viacom that it would be in their best interest to make a bid that evening.
13
(Kitts Tr. at 69:13-
70:14, 88:21-89:16). Kitts admitted that he did not give Viacom a hard and fast deadline (see id.
at 88:21-89:16, 90:11-22; Epstein Tr. at 53:21-55:5), but that he relied upon the message [he]
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14
Rupert Murdoch is the Chairman and CEO of News Corp. Peter Chernin was the then-
President and COO of News Corp.
delivered as code that [Epstein] should get a bid in this evening. (Kitts Tr. at 90:20-22).
Furthermore, Kitts admitted in the deposition that he had been instructed to ask for a bid on a
timetable that he knew was infeasible. (Id. at 144:1-145:7). Kitts testified that he was aware of
an upcoming Viacom board meeting, at which [a potential bid] was going to be discussed. (Id.
at 69:13-70:14). The Viacom board was not scheduled to meet until the evening of Tuesday
July 19, 2005. (Rosenblatt Decl. 42; Brewer Decl. 29).
On the other hand, Defendants present the following evidence of events leading up to the July
18th merger, which they argue demonstrates the board members good faith. News Corp. initially
signaled that it would be willing to purchase Intermix in the $8-10 per share price range. (Rosenblatt
Decl. 18). During the Tuesday July 12, 2005 meeting between Rosenblatt, Rupert Murdoch, and Peter
Chernin,
14
News Corp. indicated that it would pay $12 per share, as long as the MySpace Option was
exercised and a merger agreement was executed by no later than Sunday, July 17, 2005. (Id. 24
(describing the handshake deal)). At the 2 p.m. meeting on July 15, the Intermix board of directors
rejected News Corp.s proposal to enter exclusive negotiations as premature. (Id. 29-30). At the 8
p.m. meeting on July 15, the Intermix board rejected the non-binding term sheet including a variety of
deal protection provisions as too strong a deterrent to other potential bidders. (Id. 33; J.A., Ex. 14).
At the 8 p.m. meeting on July 16, TWP advised the board that it would be reasonable to approve a
merger with News Corp. rather than waiting for Viacom to present an offer. (Brewer Decl. 27;
Rosenblatt Decl. 37). At the 7:30 p.m. TC meeting on July 17, the committee directed TWP to contact
Viacom and/or its representative, Morgan Stanley, to ascertain whether Viacom would be making an
offer before the opening of the market the next morning. (Rosenblatt Decl. 41; Sheehan Decl. 36;
J.A., Ex. 18). At the 10 p.m. Intermix board meeting on July 17, TWP advised that Viacom was not
prepared to make any offer until its board met on Tuesday July 19 and approved a bid. (Rosenblatt
Decl. 42; J.A., Ex. 19). At the 3:45 a.m. board meeting on July 18, both Montgomery and TWP
presented their valuation analyses, explaining that $12 per share was a fair price for Intermix, and the
Board voted to approve the merger. (Rosenblatt Decl. 44). On July 18, Intermix entered into a merger
agreement with News Corp.s Fox Interactive Media. (Rosenblatt Decl. 45; J.A., Ex. 4, at 319).
Defendants contend, and the record reflects, that throughout this process the board met repeatedly,
authorized ongoing discussions with both competing bidders, and consulted legal and financial advisers.
(J.A., Exs. 8-12, 14-19).
Viewing the evidence as a whole and in the light most favorable to Plaintiff, we conclude that
there are at least triable issues of fact as to whether Rosenblatt acted in good faith, whether he
impermissibly skewed the auction in favor of News Corp. for a purpose other than maximizing
shareholder value, knowing that a Viacom bid was likely and imminent, and whether this arguably
disparate treatment of Viacom and News Corp. had any effect on Viacoms appreciation of the arguable
need to make an offer by the evening of July 17, 2005.
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b. The Other Directors

i. Sheehan
In addition to Rosenblatt, there are also triable issues of fact as to whether Sheehan consciously
disregarded his fiduciary duties. On Friday July 15, Stuart Epstein (Epstein), the Morgan Stanley
investment banker representing Viacom, tried to reach Sheehan but was unsuccessful. (Sheehan Tr. at
83:12-18; J.A. Ex. 175). Sheehan instructed his secretary as follows: Do not tell [Epstein] anything
about what I am doing or where I am[.] (J.A., Ex. 175). In reply to his email, Sheehans secretary
informed him that she told Epstein that he was unavailable. (Id.). A reasonable jury could conclude
that this email chain evinces Sheehans intent to avoid Viacoms representatives.
ii. The Other Six Directors
In Gesoff v. IIC Industries, Inc., 902 A.2d 1130 (Del. Ch. 2006), the court stated that bad faith
may be found where directors have acted with conscious disregard or made decisions with knowledge
that they lacked material information. Id. at 1165 (emphasis added). Few Delaware cases attempt to
define precisely what conduct reaches the level of actionable bad faith, but there is at least agreement
that adopting a we dont care about the risks attitude concerning a material corporate decision
constitutes bad faith. In re Walt Disney Co. Derivative Litig., 825 A.2d 275, 289 (Del. Ch. 2003)
(finding bad faith claim properly alleged where factual allegations, if true, implied that the defendant
directors knew that they were making material decisions without adequate information and without
adequate deliberation, and that they simply did not care if the decisions caused the corporation and its
stockholders to suffer injury or loss) (emphasis in original).
Having reviewed the record in full, we conclude that there is sufficient admissible evidence to
create a triable question of fact as to whether the rest of the board, as in Macmillan, plac[ed] the entire
process in the hands of Rosenblatt and to a lesser extent Sheehan and thereby materially contributed
to the [allegedly] unprincipled conduct of those upon whom it looked with a blind eye. 559 A.2d at
1281.
On February 9, 2005, the Intermix board of directors formed a Transaction Committee
comprised of Rosenblatt, Sheehan, and Quandt. (Rosenblatt Decl. 6). From that point until July 18,
2005 when the merger was announced, it is undisputed that the Board received most of its information
about the negotiations from its self-interested CEO, Rosenblatt. Indeed, it is undisputed that Rosenblatt
was the only board member who had some first-hand information as to the circumstances of Viacoms
efforts to put in a bid. (See, e.g., Joint Statement of Uncontroverted Facts P347 (Rosenblatt was the
only person from the Intermix Board who negotiated with Viacom.)). Crucially, one of the board
members testified that Rosenblatt had led him to believe [t]hat Viacom was less urgent about the deal
and hadnt taken the time or done the same level of work as Fox Network and that Viacom was a
pipedream. (J.A., Ex. 182; Mosher Tr. at 25:24-26:1). This phrase is admittedly not indicative of
conscious wrongdoing. However, there is a triable question as to whether the other board members
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consciously abdicated their responsibilities as corporate fiduciaries in allegedly swallowing
Rosenblatts version of events and utterly failing to assess the situation for themselves.
More generally, a reasonable fact-finder could conclude that the other board members acted in
bad faith by making decisions with knowledge that they lacked material information. Gesoff, 902
A.2d at 1165. With respect to their knowledge of the relative likelihood of a Viacom bid, Mosher stated
that he could not recall if he or any other board member had asked any questions regarding Viacom or
its status. (Mosher Tr. at 26:14-21). Additionally, he could not recall whether he had any knowledge
of whether anyone from management was providing equal information to Viacom and Fox News Corp
about the time line for submitting a bid for Intermix. (Id. at 43:17-21).
With respect to their knowledge of bidder favoritism, though Mosher testified that he could not
recall the board ever instructing Rosenblatt to favor one bidder over another, he also could not
definitively represent that the board had not so instructed Rosenblatt. (Id. at 41:10-21). Other board
members besides Rosenblatt have also testified that they were unaware that any due diligence meetings
with Viacom had been cancelled. (Brewer Tr. at 119:11-15; Sheehan Tr. at 98:1-20). Furthermore,
Brewer testified that he was simply unaware that Viacom was conducting due diligence over the July
16-17, 2005 weekend. (Brewer Tr. at 26:5-24).
With respect to their knowledge of the fairness of the merger price, Rosenblatt did not inform
Brewer that he was requesting $12 per share from News Corp. until the day of the handshake deal
with Rupert Murdoch; it is unclear when the rest of the board learned this information. (Id. at 122:2-9).
He also did not explain how that requested price was derived. (Id. at 122:10-14). Brewer testified that
the board did not ask, and Mosher could not recall whether any board member sought an explanation.
(Id.; Mosher Tr. at 53:6-9). Moreover, Brewer testified that the board as a whole never conducted any
independent analysis to determine what an appropriate price per share would be. (Brewer Tr. at
122:15-18; see also Mosher Tr. at 49:24-50:4 (testifying that he himself did not perform any
independent analysis)). Additionally, Mosher confirmed that the board had not directed the
management team to go get the specific valuation work done prior to the acquisition. (Mosher Tr. at
52:4-18). Finally, Brewer has testified that he could not even recall whether any of the directors had
asked any questions about [Montgomery and TWPs] fairness presentations. (Brewer Tr. at 104:2-
10). Though Brewers failure to recall what everyone had specifically asked back in 2005 would be
understandable, a reasonable jury might draw a negative inference from his representation that he could
not recall any discussion as to the investment banks analyses.

Construing all of the above testimony in the light most favorable to Plaintiff as we must on
Defendants motion for summary judgment, we conclude that it is at least triable as to whether the
remaining six board members consciously disregarded their duties and acted in bad faith. There is
evidence in the record suggesting that no one on the board asked any questions about the requested per
share price, the treatment of the competing bidders, the fairness valuations, or the relative likelihood of
a Viacom bid. A reasonable jury could infer that this evidence demonstrates the other six directors
consciously abdicated their roles as corporate fiduciaries required by law to do their utmost to maximize
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shareholder wealth. Of course, we remain mindful that even gross negligence, premised on simple
inattention or failure to be informed of all facts material to the decision[,] violates only the duty of care
and is not actionable as bad faith. Disney, 906 A.2d at 66. Nevertheless, we think a reasonable jury
could find that the other six directors exceeded the bounds of negligent conduct, willfully proceeded to
their decisions knowing they lacked material information, Gesoff, 902 A.2d at 1165, and thereby
consciously disregarded their fiduciary duties. Disney, 906 A.2d at 66 (Cases have arisen where
corporate directors have no conflicting self-interest in a decision, yet engage in misconduct that is more
culpable than simple inattention or failure to be informed of all facts material to the decision. To protect
the interests of the corporation and its shareholders, fiduciary conduct of this kind, which does not
involve disloyalty (as traditionally defined) but is qualitatively more culpable than gross negligence,
should be proscribed.).
c. The MySpace Option
The MySpace, Inc. Stockholders Agreement (MSA) (J.A., Ex. 2), executed on February 11,
2005, was the culmination of negotiations between MySpace, Inc., MySpace Ventures, LLC, Redpoint
Ventures I, L.P., Redpoint Associates I, LLC, Redpoint Ventures II, L.P., Redpoint Associates II, LLC,
Redpoint Technology Partners Q-1, L.P., and/or Redpoint Technology Partners A-1, L.P. (collectively,
the Redpoint Entities). (Brewer Decl. 6; Rosenblatt Decl. 7). Under the agreement, the Redpoint
Entities purchased a 47 percent minority interest in Intermix, and at the same time, the 53 percent
majority stockholders acquired an option (the MySpace Option) to buy back that minority interest if a
third party made a bona fide . . . offer for 50 percent or more of Intermixs shares:
So long as Intermix (together with its Affiliates) directly or indirectly holds at least 1,000,000
shares of Common Stock . . . , in the event Intermix receives a bona fide third-party offer with
respect to a Change of Control of Intermix . . . within the twelve (12) month-period commencing
on the date hereof . . . , then, following receipt of such offer (and provided discussions relating
to such offer are then-ongoing), Intermix shall have the right to purchase . . . up to 100% of
Common Stock and Common Stock Equivalents of the Corporation held by the other
Stockholders, whether now owned or hereafter acquired . . . .
(J.A., Ex. 2 7.1.1; Brewer Decl. 6-7; Rosenblatt 7-8). Section 7.1.5 of the MSA precluded the
majority from exercising the MySpace Option if a third party made a direct bid for MySpace of over
$125 million: Intermix may not exercise the Purchase Option if (a) the Corporation [MySpace, Inc.]
has previously received a bona fide third party offer to purchase the Corporations capital stock or
assets for a purchase price greater than $125.0 million and discussions regarding such acquisition
between the Corporation and such third party are ongoing . . . . (J.A., Ex. 2 7.1.5). The two
provisions are mutually exclusive: (1) a bid for 50 percent or more of Intermixs shares precludes any
subsequent direct bid for MySpace (while discussions for the Intermix control share are ongoing); and
(2) any direct bid for MySpace precludes any subsequent bid for 50 percent or more of Intermixs
shares (while discussions for the acquisition of MySpace are ongoing).
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Defendants contend their conduct was not in bad faith in light of the risk of a direct third-party
bid for MySpace, which would have precluded the 53 percent Intermix majority interest from exercising
the MySpace Option under the MSA to purchase the minority 47 percent interest. Accordingly, we
must consider whether the purported risk of a direct bid for MySpace, which would have frozen the
MySpace Option, dictates a conclusion that Defendants did not consciously disregard their duties as a
matter of law.
Defendants claim that the risk of such a freezing bid was real and that any delay in
consummating the merger with News Corp. threatened the loss of an opportunity to capture the value of
Intermixs crown jewel, MySpace, for their shareholders. (Joint Br. 11-15). At the July 15th board
meeting at 2 p.m., the directors discussed the status of conversations with News Corp. and Viacom and
considered the possibility that if either company viewed itself as unlikely to prevail in acquiring
[Intermix], it might submit an offer to acquire only MySpace in order to potentially suspend, at least
temporarily, [Intermixs] ability to exercise the MySpace option, thereby potentially jeopardizing
economically attractive transactions involving the Company including the potential News Corp.
transaction then under consideration. (Rosenblatt Decl. 31; J.A., Ex. 12). Rosenblatt and the other
directors have declared that they believed that the deadline provided by News Corp. by which to
execute the Merger Agreement was firm and that News Corp. was prepared to walk away if the deal was
not consummated by the opening of the stock market on July 18, 2005. (Rosenblatt Decl. 46).
To substantiate their purported concern over a potential freeze-out bid, Defendants suggest that a
bona fide third-party offer can only mean a fully executed agreement, as in the written merger
agreement executed on July 18, 2005. (Joint Br. 93-97). We reject Defendants assertion that this
proposed construction of bona fide third-party offer is compelled as a matter of law. Under Sections
7.1.1 and 7.1.5 of the MSA, a subsequent bid for MySpace or the Intermix control share, respectively,
will only be precluded if discussions regarding the bona fide third-party offer are ongoing. This
language in the agreement suggests that the term bona fide offer does not contemplate the final
execution of an agreement, at which point discussions would no longer be ongoing.
Even though we reject Defendants construction of the phrase bona fide third-party offer in the
MSA, we also reject Plaintiffs request that we rule as a matter of law on the purely legal question of
what constitutes a bona fide third-party offer under Sections 7.1.1 and 7.1.5 of the MSA. In our view,
Plaintiffs request misses the point. We are not here to construe the terms of the MSA, as such. Rather,
the question is whether there is a triable issue that Defendants, reasonably fearing being frozen out of
the MySpace Option, tilted the field in News Corp.s favor for the permissible purpose of maximizing
shareholder wealth, or whether Defendants had no such reasonable fear, but merely used the MySpace
Option as a rationalization for a selfish or idiosyncratic desire to favor News Corp. unrelated to securing
top dollar for the shareholders. We think the evidence fairly presents such triable issues as to
Defendants purported conscious disregard of their duties. In any event, our post hoc legal
determination cannot dictate the result of the question of the propriety of Defendants conduct that
indisputably occurred without the benefit of our construction of the MSA.
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Accordingly, we hereby DENY Plaintiffs Motion for Summary Judgment on this question of
contractual interpretation.
In light of all the reasons set forth above, we hereby DENY Defendants Motion for Summary
Judgment on the fiduciary duty claim with respect to Plaintiffs bad faith theory in the Revlon auction
context.
In the alternative, Defendants move for summary judgment on the second theory supporting the
breach of fiduciary duty claim, arguing that five of the eight Defendants (a majority) were not self-
interested or controlled by someone who was. The Delaware Supreme Court summarized the governing
law in Cinerama, Inc. v. Technicolor, Inc.:

A board of which a majority of directors is interested is not a neutral decision-making body.
See, e.g., Paramount Communications, Inc. v. QVC Network, Inc., Del.Supr., 637 A.2d 34, 42 n.
9 (1994) ([w]here actual self-interest is present and affects a majority of the directors approving
a transaction, a court will apply [the entire fairness test]); Aronson v. Lewis, Del.Supr., 473
A.2d 805, 812 (1984). A majority of disinterested directors is not independent if that majority
was dominated by an interested director. See Heineman v. Datapoint Corp., Del.Supr., 611 A.2d
950, 955 (1992). Similarly, the manipulation of the disinterested majority by an interested
director vitiates the majoritys ability to act as a neutral decision-making body. See Mills
Acquisition Co. v. Macmillan, Inc., Del.Supr., 559 A.2d 1261, 1279 (1989).
663 A.2d 1156, 1170 n.25 (Del. 1995). Accordingly, Plaintiff must make two showings. First, the
plaintiff must proffer evidence showing that those members of the board had a material self-interest in
the challenged transaction[,] and this must be evidence of a substantial self-interest suggesting
disloyalty, such as evidence of entrenchment motives, vote selling, or fraud. Goodwin, 1999 WL
64265, at *25 (citing Cede II, 634 A.2d at 362-63; Cinerama, 663 A.2d at 1169). Second, the plaintiff
must show that those materially self-interested members either: a) constituted a majority of the board; b)
controlled and dominated the board as a whole; or c) i) failed to disclose their interests in the transaction
to the board; ii) and a reasonable board member would have regarded the existence of their material
interests as a significant fact in the evaluation of the proposed transaction. Id. (citing Cinerama, 663
A.2d at 1168).
There were eight directors on the Intermix board at the time of the merger: Rosenblatt, Sheehan,
Mosher, Quandt, Brewer, Carlick, Moreau, and Woodward. Rosenblatt was conflicted due to his
interest in becoming the head of Fox Interactive Media. He aimed to receiv[e] a personal benefit from
a transaction not received by the shareholders generally. Cede II, 634 A.2d at 362; McGowan, 2002
WL 77712, at *2 (deeming contracts for post-merger employment in acquiring entity a disabling
conflict of interest); Goodwin, 1999 WL 64265, at *25 (finding a triable issue of fact regarding
whether [directors] expectations constituted a material interest in the merger not shared by the
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stockholders but granting summary judgment on lack of evidence that any material interest infected
deliberative process); Oliver, 2006 WL 1064169, at *19 ([A]s a consequence of their personal interest
in the negotiation of the Accord Agreement, in light of its potential impact on their rights under their
employment agreements, they also were self-interested.). Rosenblatt did not simply seek to retain his
current position, but sought to secure a coveted position at the top of a division at News Corp.
Accordingly, read in conjunction with other admissible evidence we have cited previously, this self-
interested motivation is suggestive of disloyalty.
Defendants argue that Rosenblatts interests were coterminous with the shareholders interests
because every additional dollar increase in the price paid per share would yield roughly an additional $2
million for Rosenblatt, a significant shareholder in Intermix. (Rosenblatt 51; Joint Statement of
Uncontroverted Facts D89). This argument, however, misses the point that Rosenblatt arguably stood
to gain more money and prestige by becoming the grand Puba of Fox Interactive Media. If Chris
DeWolfe, the former CEO of MySpace, stood to make a $30 million salary over two years if retained by
the merged entity (the Parties appear to agree on this point) (see Joint Br. 37 n.42, 41-42), a reasonable
jury could infer that Rosenblatt, as head of Fox Interactive Media, would have been offered an even
higher salary. As such, a per share price of well above $20 would be needed to offset Rosenblatts
conflicting interest in a $30 million (or higher) salary. (Id. at 41-42). Defendants only reiterate that
Rosenblatt stood to gain a greater benefit from each incremental increase in the per share price.
It is undisputed that no director instructed any other director on how to vote or was influenced
by how other board members voted. (Joint Statement of Uncontroverted Facts D95-96; Brewer Decl.
36; Carlick Decl. 38; Mosher Decl. 34; Moreau Decl. 36; Quandt Decl. 42; Rosenblatt Decl.
49; Sheehan Decl. 44; Woodward Decl. 34). The real question is whether each board member acted
independently and free of any manipulation by the interested members, principally Rosenblatt, i.e.
whether [e]ach Board Member exercised his independent judgment and consideration in deciding how
to vote. (Joint Statement of Uncontroverted Facts D97). In virtually identical declarations, the
directors claim they were not so manipulated. (Brewer Decl. 36; Carlick Decl. 38; Mosher Decl.
34; Moreau Decl. 36; Quandt Decl. 42; Rosenblatt Decl. 49; Sheehan Decl. 44; Woodward Decl.
34). On the other hand, Plaintiff argues that Rosenblatt deliberately misled the other board members
regarding the viability of the Viacom bid, steering them into approving the merger without waiting even
a couple more days to see if Viacom would top News Corp.s offer. (Joint Br. 26-27). Plaintiff cites an
email Mosher sent to Rosenblatt after one of the July 15th meetings, stating: We need to honor our
commitment to Fox and get this done. Viacom sounds like a pipedream. Fox sounds dead serious and
not screwing around. (J.A., Ex. 182). When asked about this email during his deposition, Mosher
testified that Rosenblatts periodic updates to the board had led him to believe [t]hat Viacom was less
urgent about the deal and hadnt taken the time or done the same level of work as Fox Network.
(Mosher Tr. at 25:24-26:1, 26:5-13). He also noted that: The discussion around Viacom that the
management team had led indicated that Viacom did not seem as willing to come to the table with an
offer for the company. (Id. at 25:1-4). This evidence is sufficient to raise an inference that
Rosenblatts presentation to the board may have been misleading as to Viacoms seriousness.
According to Moshers description of the board meetings, from the management team estimation
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15
Van Toffler of MTV emailed Rosenblatt on July 17 to note that his people were in the office
working around the clock so [Viacom could] put forth a number to [him that] week. (J.A., Ex. 202).
On the same day, Jason Hirschhorn of Viacom informed Chris DeWolfe that he has had a team of 20+
people . . . working for 72 hours straight on a significant bid[.] (Id., Ex. 200).
standpoint [sic], they were not inclined to make an offer for the company on the time line that we were
looking at. (Id. at 25:18-21). Viewing the evidence as a whole in the light most favorable to Plaintiff,
including the contrary evidence that Viacom was indeed very seriously interested in bidding on
Intermix,
15
there are at least triable issues of fact as to whether Mosher was manipulated by a self-
interested director, Rosenblatt.
Moreover, based on Moshers description of the content of Rosenblatts presentations to the
board, the issue of manipulation is triable with respect to all of the other board members. Accordingly,
as a reasonable jury could potentially conclude that a majority of the directors was interested or
manipulated by someone who was, we hereby DENY Defendants Motion for Summary Judgment on
this second basis for Plaintiffs claim of breach of the duty of loyalty.
III. Count II: Violation of Section 14(a) of the Securities and Exchange Act of 1934 and SEC
Rule 14a-9
On August 25, 2005, Intermix issued a proxy statement (Proxy) concerning the News Corp.
merger. (Rosenblatt Decl. 53). On September 30, 2005, a majority of Intermix shareholders voted to
adopt the Merger Agreement. (Id. 55). Plaintiff alleges that there were five material omissions in the
Proxy. (J.A., Ex. 4). To succeed on a claim under 14(a) and Rule 14a-9, a plaintiff must establish
that (1) a proxy statement contained a material misrepresentation or omission which (2) caused the
plaintiff injury and (3) that the proxy solicitation itself, rather than the particular defect in the
solicitation materials, was an essential link in the accomplishment of the transaction. New York City
Employees Ret. Sys. v. Jobs, 593 F.3d 1018, 1022 (9th Cir. 2010) (citation and internal quotation marks
omitted); 15 U.S.C. 78j(b); 17 C.F.R. 240.14a-9(a) (No solicitation subject to this regulation shall
be made by means of any proxy statement, form of proxy, notice of meeting or other communication,
written or oral, containing any statement which, at the time and in the light of the circumstances under
which it is made, is false or misleading with respect to any material fact, or which omits to state any
material fact necessary in order to make the statements therein not false or misleading or necessary to
correct any statement in any earlier communication with respect to the solicitation of a proxy for the
same meeting or subject matter which has become false or misleading.).
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1. MySpaces Then-Current Revenue and Profits
Defendants first argue that Plaintiff failed to identify the alleged material omission of
MySpaces then-current revenue and profits as a basis for this Section 14(a) claim in its responses to
their interrogatories, thereby waiving this ground for his Section 14(a) claim. (Joint Br. 45 n.49). We
disagree. First, the CSAC clearly alleges that Defendants omitted the current revenues and profits
being generated by MySpace. (CSAC 130-33). Second, our July 14, 2008 Order clearly identified
this purported material omission as one of the five surviving bases for the Section 14(a) claim. (Dkt.
No. 110, at 5). Third, whether Plaintiff actually identified this alleged material omission in his Revised
Objections and Responses to Defendant VP Alpha Holdings IV, L.L.C.s First Set of Interrogatories is
unclear. (J.A., Ex. 28). Most of the response to Interrogatory No. 1 focused on the conspicuous
absence of internal projections for MySpaces prospective growth, not the companys then-current
revenue and profits. (Id. at 513-15). Plaintiff did not use the phrase current revenue and profits, but
rather, stated the following:
[S]hareholders . . . were never made aware of MySpaces true value or its true growth potential,
and had no way of comparing the information that was publicly available to managements
projections and growth assumptions. Thus, even though certain metrics that were used to track
MySpaces growth were available from some hard to find public sources (and were not made
available by the Company directly to its shareholders), shareholders and other members of the
investing public could not compare this data to the Companys internal data to determine if the
Investment Banks fairness opinions accurately reflected the explosive growth of MySpace.
(Id. at 515 (emphasis added)). Although somewhat opaque, we think the highlighted text above can
fairly be read to embrace internal data on MySpaces then-current financial position. Fourth, during the
Parties Local Rule 7-3 meet and confer, according to Defendants, Plaintiff did not identify this alleged
omission. (Joint Br. 45 n.49). Sheehan and Carlicks counsel has also declared that Plaintiff was asked
at the meeting whether they were pursuing any other misstatements or omissions, but he does not
declare that Plaintiffs counsel answered the question in the negative, thereby waiving this basis. (J.A.,
Ex. 30, Knaster Decl. 8-9). Fifth, Plaintiffs counsel also circulated a letter outlining the issues
discussed at the meet and confer, which did not list this purported material omission. (J.A., Ex. 35).
However, since this document purports to be an outline of the summary judgment arguments
Defendants identified, we decline to conclude that this document contemplated a waiver of the current
revenue and profits omission, which was so clearly identified in the CSAC (if not so clearly in the
interrogatory responses). Accordingly, as this argument was not waived, and Defendants have not made
any threshold showing entitling them to summary judgment on this basis, we DENY the Motion for
Summary Judgment as to this alleged material omission under Count II.
2. Intermix Managements 2005-2009 Financial Projections
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Plaintiff also alleges that Defendants failed to disclose Intermix managements internal financial
projections, and that this information was material. The Supreme Court set forth the materiality
standard for Section 14(a) claims in TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438 (1976): An
omitted fact is material if there is a substantial likelihood that a reasonable shareholder would consider
it important in deciding how to vote. Id. at 449. The Court added that there must be a substantial
likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as
having significantly altered the total mix of information made available. Id.
While federal courts generally agree that financial projections, forward-looking statements,
puffing, or other soft financial information need not be disclosed, this case is distinguishable. See,
e.g., Walker v. Action Indus., Inc., 802 F.2d 703, 707-08 (4th Cir. 1986); Flynn v. Bass Bros. Enters.,
Inc., 744 F.2d 978, 985 (3d Cir. 1984) (noting SEC policy favoring nondisclosure of financial
projections due to their unreliability and potential to mislead voting stockholders). In this case, the
Proxy disclosed Montgomery and TWPs fairness analyses but did not disclose the underlying
2005-2009 Intermix management projections used in formulating those opinions. In Zemel Family
Trust v. Philips International Realty Corp., No. 00 CIV. 7438 MGC, 2000 WL 1772608 (S.D.N.Y.
Nov. 30, 2000), the court honed in on this distinction:
A company has no duty to include speculative financial predictions in a proxy. However, if a
Proxy discloses valuation information, it must be complete and accurate. Both the proxy and the
[financial valuation] opinion address the value of the Third Avenue property and so [the
defendant] has a duty to fully and accurately disclose information related to the valuation.
Id. at *6.
Here, the total mix of information before the shareholders did not include any of the projected
growth rates. See SEC v. Mozilo, No. CV 09-3994-JFW, 2009 WL 3807124, at *10 (C.D. Cal. Nov. 3,
2009) ([T]he total mix of information only includes information that is readily or reasonably
available to an investor.); Koppel v. 4987 Corp., 167 F.3d 125, 132 (2d Cir. 1999) (same). A
reasonable shareholder would have wanted to independently evaluate managements internal financial
projections to see if the company was being fairly valued. [T]here is a substantial likelihood that a
reasonable shareholder would consider it important in making his decision. TSC Indus., Inc., 426 U.S.
at 449. As we previously noted in our July 14, 2008 Order, the Ninth Circuit has observed that:
investors are concerned, perhaps above all else, with the future cash flows of the companies in which
they invest. Surely, the average investors interest would be piqued by a companys internal projections
. . . . United States v. Smith, 155 F.3d 1051, 1064 n.20 (9th Cir. 1998). Delaware courts concur. In a
case that also considered a discounted cash flow (DCF) analysis in a proxy statement, the same
technique utilized by Montgomery and TWP, the court held that the underlying projections informing a
DCF analysis completed for a fairness opinion were clearly material. See In re Netsmart Techs.
Sholders Litig., 924 A.2d 171, 203 (Del. Ch. 2007) ([P]rojections of this sort are probably among the
most highly-prized disclosures by investors. Investors can come up with their own estimates of
discount rates or . . . market multiples. What they cannot hope to do is replicate managements inside
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Even though this decision concerned a state law duty of disclosure claim, the materiality
standard is the same as set forth in TSC Industries. In re Netsmart Techs., 924 A.2d at 199-200.
view of the companys prospects.).
16
materiality of the omission of Intermixs internal financial projections.
Accordingly, Defendants Motion for Summary Judgment is DENIED as to this alleged material
omission.

3. Outstanding Derivative Lawsuits
Plaintiff also argues that Defendants failed to disclose one pending derivative lawsuit, LeBoyer
v. Greenspan, et al., No. CV 03-5603-GHK (JTLx), and the fact that shareholder derivative standing
would be extinguished as to both LeBoyer and Greenspan v. Salzman, the two derivative lawsuits
pending at the time the Proxy was issued. The Proxy merely stated: Following the effective time of the
merger, Fox Interactive Media will use commercially reasonable efforts to take such actions as are
within its control so as to obtain the dismissal of Greenspan v. Salzman, et al., LASC No. BC328558;
provided that it will not be required to make any payments to any of the plaintiffs (or their counsel) in
such litigation to do so. (J.A., Ex. 4, at 332).
Defendants concede that they did not disclose the existence of the pending LeBoyer action.
(Joint Br. 56 n.67). However, Defendants maintain that this lawsuit had been disclosed in Intermixs
prior public filings (see J.A., Exs. 47 (Form 10-Q), 3 (Form 10-K)), which they argue were incorporated
by reference in the Proxy. A document may be incorporated into proxy materials by reference, at the
least, in circumstances where no reasonable shareholder can be misled. Federated Bond Fund v.
Shopko Stores, Inc., No. 05 CV 9923(RO), 2006 WL 3378696, at *2 (S.D.N.Y. Nov. 17, 2006) (quoting
Kramer v. Time Warner Inc., 937 F.2d 767, 777 (2d Cir. 1991)). We do not think this is a case where
no reasonable shareholder can be misled. Id. Moreover, [c]orporate documents that have not been
distributed to the shareholders entitled to vote on the proposal should rarely be considered part of the
total mix of information reasonably available to those shareholders. United Paperworkers Intl Union
v. Intl Paper Co., 985 F.2d 1190, 1199-1200 (2d Cir. 1993) (rejecting notion that public reports and
10-K Report submitted to SEC were part of total mix). Accordingly, whether the undisclosed
derivative lawsuit constituted material information which was not part of the total mix of information
is at the very least a triable question.
With respect to the disclosed Greenspan v. Salzman action, Defendants argue they had no
obligation to further announce the extinguishment of derivative standing. In Delaware, with only two
exceptions not applicable here, a cash-out merger extinguishes the standing of shareholder plaintiffs to
maintain a derivative suit. Feldman v. Cutaia, 951 A.2d 727, 731 (Del. 2008) (citing Lewis v.
Anderson, 477 A.2d 1040, 1049 (Del. 1984)). This is so because a plaintiff must be a stockholder at the
time of the alleged wrongdoing and throughout the litigation. Lewis, 477 A.2d at 1046. The failure to
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disclose the potential extinguishment of a derivative lawsuit is material. See Lichtenberg v. Besicorp
Group Inc., 43 F. Supp. 2d 376, 387 (S.D.N.Y. 1999). In Lichtenberg, the court noted that the proxy
stated that the shareholder plaintiffs may not be able to maintain their derivative suits following the
merger. Id. The court found the word may to be affirmatively misleading, because it implie[d] a
possibility that the plaintiffs will be able to continue the actions as shareholder derivative suits, when
that was in fact foreclosed as a matter of New York law. Id. Here too, the disclosure above is arguably
misleading as well, as it did not affirmatively disclose that the Greenspan v. Salzman plaintiffs
derivative standing would be extinguished under Delaware law. (J.A., Ex. 4, at 332). Instead, it only
stated that Fox Interactive Media would seek the dismissal of the action and would do so only if it was
not required to pay the plaintiffs or their counsel. (Id.). Accordingly, it is at least triable whether the
above language was misleading as to the extinguishment of derivative standing, which was material
information.
Accordingly, we also hereby DENY Defendants Motion for Summary Judgment as to this
alleged material omission.

4. Alleged Material Omissions Concerning Viacom and the MySpace Option
Plaintiff has also argued that the directors made two other material omissions concerning: (1)
Viacoms ability to make an offer for Intermix or its ability to conduct due diligence; and (2) the
likelihood of a direct bid for MySpace, which would freeze the MySpace Option. This subpart of the
Section 14(a) claim essentially seeks to penalize Defendants for their failure to disclose that Viacom
was allegedly stonewalled or otherwise prevented from making a bid during the auction. It also seeks to
hold Defendants liable for purportedly exaggerating the threat of a direct bid for Intermixs crown
jewel, MySpace.
However, these purported material omissions are nothing more than the building blocks of
Plaintiffs fiduciary duty claim. Mandating the disclosure of the above allegations would compel
Defendants to essentially accuse themselves of breaching their fiduciary duties. In Koppel v. 4987
Corp., the court dismissed Rule 14a-9 claims based on its conclusion that these allegations constitute
no more than state law breach of fiduciary duty claims under a thin coat of federal paint. 167 F.3d at
133. The court explained:
We have long recognized that no general cause of action lies under 14(a) to remedy a simple
breach of fiduciary duty. See Field v. Trump, 850 F.2d 938, 947 (2d Cir. 1988) (quoting
Maldonado v. Flynn, 597 F.2d 789, 796 (2d Cir. 1979)), cert. denied, 489 U.S. 1012, 109 S.Ct.
1122, 103 L.Ed.2d 185 (1989); cf. Santa Fe Indus., Inc. v. Green, 430 U.S. 462, 477, 97 S.Ct.
1292, 51 L.Ed.2d 480 (1977) (refusing to construe 10(b) to prohibit instances of corporate
mismanagement . . . in which the essence of the complaint is that shareholders were treated
unfairly by a fiduciary). Although the Supreme Court has explained that explicit, conclusory
statements concerning the wisdom of a proposed action are actionable, see generally Virginia
Bankshares, 501 U.S. 1083, 111 S.Ct. 2749, there is no 14(a) violation for merely failing to
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inform shareholders that a proposed action is not subjectively the most beneficial to an entitys
shareholders: Subjection to liability for misleading others does not raise a duty of
self-accusation; [rather] it enforces a duty to refrain from misleading. Id. at 1098 n. 7, 111
S.Ct. 2749. The securities laws do not effectively require [an issuer] to accuse [it]sel[f] of
breach of fiduciary duty. Id.
Id. at 133-34. The D.C. Circuit has arrived at the same conclusion: Though Santa Fe does not bar a
claim related to a breach of fiduciary duty if there has been a material misrepresentation or omission, a
plaintiff may not bootstrap a claim of breach of fiduciary duty into a federal securities claim by
alleging that directors failed to disclose that breach of fiduciary duty. Kas v. Fin. Gen. Bankshares,
Inc., 796 F.2d 508, 513 (D.C. Cir. 1986) (citations omitted).
In this case, the Proxy unambiguously disclosed Rosenblatts self-interested motivations,
anticipated future employment with News Corp., and the immediate vesting of all his unvested options.
(J.A., Ex. 4, at 272, 310, 312). The Proxy also disclosed that Viacom (Company D) conducted due
diligence and remained interested in making a bid for Intermix, but was not then in a position to make
a proposal [prior to] a [Viacom] board meeting later that week . . . . (Id. at 287, 289). Plaintiff claims
this disclosure was misleadingly incomplete, because it did not mention Rosenblatts alleged evasion of
Viacom executives and the alleged deliberate hampering of Viacoms due diligence efforts. (CSAC
147-48). Plaintiff claims that these omissions left shareholders with the false impression that Viacom
was given a full and fair opportunity to bid for the Company. (Id. 148). Plaintiff also claims that
Defendants misrepresented Viacom and News Corp.s ability to block a competing bid by freezing the
MySpace Option. (CSAC 149-51 (citing J.A., Ex. 4, at 284, 288)). As there is no duty of self-
accusation, these proffered material omissions cannot support a Section 14(a) claim. Indeed, the
allegedly omitted details are not necessarily facts, but rather factual allegations, and unless and until
judgment is granted in Plaintiffs favor, their omission from the Proxy simply could not have been
material. In Brown v. Perrette, No. CIV.A 13531, 1999 WL 342340 (Del. Ch. May 14, 1999), the court
explained this distinction:
Although a flawed bidding process would be a material fact, [the plaintiff] must prevail on the
substantive claim, that the process was flawed, before the alleged flaw becomes material. Once
[the plaintiff] prevails on her Revlon claim, the alleged disclosure claim becomes superfluous
because the defendants breach of duty becomes the wrong for which an appropriate remedy
must be crafted.
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17
Even though Brown analyzes the relationship between a state law fiduciary duty claim and a
state law duty of disclosure claim, brought on the same grounds, the principles articulated are equally
applicable to a Section 14(a) claim premised on the same allegations supporting a breach of fiduciary
duty claim.
18
Notwithstanding our ruling, nothing in the above discussion precludes Plaintiff from
introducing evidence of these omissions in the course of his breach of fiduciary duty claim.
Id. at *10-11
17
; see also Stroud v. Grace, 606 A.2d 75, 84 n.1 (Del. 1992) (We recognize the
long-standing principle that to comport with its fiduciary duty to disclose all relevant material facts, a
board is not required to engage in self-flagellation and draw legal conclusions implicating itself in a
breach of fiduciary duty from surrounding facts and circumstances prior to a formal adjudication of the
matter.) (citation omitted).
Accordingly, since self-flagellation omissions are not material, we hereby GRANT
Defendants Motion for Summary Judgment as to the purported material omissions concerning Viacom
and the MySpace Option.
18
B. Negligence
In Desaigoudar v. Meyercord, 223 F.3d 1020 (9th Cir. 2000), the Ninth Circuit stated that a
Rule 14a-9 plaintiff must demonstrate that the misstatement or omission was made with the requisite
level of culpability . . . . Id. at 1022 (citation omitted). To succeed on a Section 14(a)/Rule 14a-9
claim, a plaintiff need only establish that the defendant was negligent in drafting and reviewing the
proxy statement. Gerstle v. Gamble-Skogmo, Inc., 478 F.2d 1281, 1300-01 (2d Cir. 1973) (holding that
negligence suffices for claim based on misleading proxy statement and that plaintiffs are not required
to establish any evil motive or even reckless disregard of the facts). This holding was reaffirmed in the
oft-cited case of Wilson v. Great American Industries, Inc., 855 F.2d 987 (2d Cir. 1988): Liability can
be imposed for negligently drafting a proxy statement. Id. at 995 (citing Gerstle, 478 F.2d at 1301
n.20). As a matter of law, the preparation of a proxy statement by corporate insiders containing
materially false or misleading statements or omitting a material fact is sufficient to satisfy the Gerstle
negligence standard. Id. Accordingly, a director may be found negligent under Section 14(a) for a
failure to notice material omissions upon reading a proxy statement. See, e.g., Parsons v. Jefferson-
Pilot Corp., 789 F. Supp. 697, 703 (M.D.N.C. 1992) (Mr. Eagle [a senior in-house lawyer] is not the
only negligent party in this action. Each of the directors who reviewed the proxy statement is equally as
negligent for failing to notice the use of the word restricted ten times in the document.).
Here, each of the Defendants has declared that he was involved in the process of preparing,
reviewing, and disseminating the Proxy Statement to Intermix shareholders. (Sheehan Decl. 53
(internal citation omitted); Carlick Decl. 46; Brewer Decl. 39; Mosher Decl. 37; Moreau Decl.
39; Quandt Decl. 45; Rosenblatt Decl. 53; Woodward Decl. 37). Construing this sworn statement
in the light most favorable to Plaintiff, we read it to mean each director personally reviewed the Proxy
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before it was disseminated to the Intermix shareholders. Since we have denied summary judgment with
respect to three of the proffered material omissions in the Proxy, and Defendants have admitted to
participating in the process of preparing, reviewing, and disseminating that Proxy, we must also
DENY summary judgment with respect to the element of negligence. If Plaintiff can persuade a jury as
to both materiality and Defendants participation in the preparation and/or review of the Proxy at trial,
then a finding of negligence will flow from those findings.
C. Damages
1. Benefit-of-the-Bargain Damages
This theory of damages is wholly inapposite to this case. A request for benefit-of-the-bargain
damages seeks the value that was represented as coming to the shareholder under a particular
transaction, such as a merger. In re Real Estate Assocs. Ltd. Pship Litig., 223 F. Supp. 2d 1142, 1152
(C.D. Cal. 2002). [B]enefit-of-the-bargain damages are available in the limited instance where a
misrepresentation is made in the proxy solicitations as to the consideration to be forthcoming upon an
intended merger. Id. (citation omitted). As the Ninth Circuit has stated, [t]he benefit-of-the-bargain
measure of damages allows a plaintiff to recover the difference between what the plaintiff expected he
would receive . . . and the amount [the plaintiff] actually received . . . . DCD Programs, Ltd. v.
Leighton, 90 F.3d 1442, 1449 (9th Cir. 1996) (quoting Cunha v. Ward Foods, Inc., 804 F.2d 1418, 1426
(9th Cir. 1986) (emphasis in original)). Here, the Proxy made no misrepresentation as to the per share
price offered to and ultimately received by the class members. The Proxy stated the class members
would receive $12 cash for each common share, and it is undisputed that they received $12 cash for
each common share. (J.A., Ex. 4, at 319; Joint Statement of Uncontroverted Facts D128). Accordingly,
this damages theory is not viable. We GRANT summary judgment with respect to this damages theory.

2. Out-of-Pocket Losses
a. Legal Framework
Out-of-pocket losses are the standard measure of damages for Rule 10b-5 and Section 14(a)
claims. In re DaimlerChrysler AG Secs. Litig., 294 F. Supp. 2d 616, 626 (D. Del. 2003) (citing Tse v.
Ventana Med. Sys., Inc., 123 F. Supp. 2d 213, 222 (D. Del. 2000) (Tse II)). Out-of-pocket losses
constitute the difference between the fair value of all that the seller received and the fair value of what
he would have received had there been no fraudulent conduct. Tse II, 123 F. Supp. 2d at 222 (quoting
Affiliated Ute Citizens of Utah v. U.S., 406 U.S. 128, 155 (1972)) (quotation marks omitted). The Ninth
Circuit concurs: The out-of-pocket rule fixes recoverable damages as the difference between the
purchase price and the value of the stock at the date of purchase. Wool v. Tandem Computers Inc.,
818 F.2d 1433, 1437 (9th Cir. 1987), impliedly overruled in part on other grounds by Hollinger v. Titan
Capital Corp., 914 F.2d 1564, 1577-78 (9th Cir. 1990) (en banc) (citation omitted). The guiding
philosophy of the out-of-pocket theory of damages . . . is to award not what the plaintiff might have
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gained, but what he has lost by being deceived into the purchase. Id. at 1437 n.2 (citation and internal
quotation marks omitted). Since this theory of damages is premised on an intrinsic valuation of the
company as it existed at the time of the merger, Plaintiff has produced expert witness testimony
consisting of two different financial valuations of Intermix/MySpace. Defendants have moved to
exclude that testimony as inadmissible.
b. Defendants Motion to Exclude; Plaintiffs Motions to Strike
Defendants move to exclude Plaintiffs proffered expert testimony by Dr. G. William Kennedy
as inadmissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Plaintiff
has moved to strike both this Motion to Exclude and Defendants Motion for Summary Judgment,
arguing that this Daubert challenge was not included in the joint brief on the Cross-Motions for
Summary Judgment and therefore violates our Order Re: Summary Judgment Motions. (Dkt. No. 123,
Oct. 30, 2008). We reject this argument. First, Defendants included virtually the same arguments
attacking Dr. Kennedys testimony in the Joint Brief. (Mot. 77-80). Second, the Motion to Exclude is a
challenge to the admissibility of evidence crucial to one of Plaintiffs damages theories. As we may
only consider admissible evidence in ruling on the Parties Cross-Motions, nothing in the Order Re:
Summary Judgment Motions precludes a party from filing a separate motion to exclude certain evidence
from the Courts consideration. Third, it is common for litigants to move for the exclusion of certain
evidence at the summary judgment stage. See, e.g., In re Hanford Nuclear Reservation Litig., 292 F.3d
1124, 1131 (9th Cir. 2002) (Defendants linked their summary judgment motion to dozens of in limine
motions challenging the admissibility of plaintiffs expert witnesses, commonly known as Daubert
motions.) (citation omitted); OHanlon v. Matrixx Initiatives, No. CV 04-10391-AHM (JTLx), 2007
WL 2446496, at *1, 4 (C.D. Cal. Jan. 3, 2007) (considering motions in limine concurrently with motion
for summary judgment). Accordingly, we hereby DENY Plaintiffs Motions to Strike the Motion to
Exclude and the Motion for Summary Judgment.
We now consider the merits of the Motion to Exclude. Defendants attack the reliability of Dr.
Kennedys application of his chosen methodologies for estimating the value of MySpace: (1) discounted
cash flow (DCF) analysis; and (2) comparable public company analysis. Federal Rule of Evidence
702 states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of an opinion or otherwise, if
(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied the principles and methods
reliably to the facts of the case.
In Daubert, the Supreme Court construed Rule 702 to require district courts to ensur[e] that an experts
testimony both rests on a reliable foundation and is relevant to the task at hand. 509 U.S. at 597. The
Court noted that [p]ertinent evidence based on scientifically valid principles will satisfy those
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demands but cautioned that [t]he focus . . . must be solely on principles and methodology, not on the
conclusions that they generate. Id.; id. at 595. To assist courts in assessing whether the proffered
testimony is scientifically valid, the Supreme Court set forth a non-exhaustive list of factors, including:
whether the theory or technique employed by the expert is generally accepted in the scientific
community; whether it's been subjected to peer review and publication; whether it can be and has been
tested; and whether the known or potential rate of error is acceptable. Daubert v. Merrell Dow
Pharms., Inc., 43 F.3d 1311, 1316 (9th Cir. 1995) (Daubert II) (citing Daubert, 509 U.S. at 593-94).
The gatekeeping obligation Daubert requires us to fulfill applies not only to testimony based
on scientific knowledge, but also to testimony based on technical and other specialized
knowledge. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999) (quoting Fed. R. Evid.
702). Because there are areas of expertise, such as the social sciences in which the research, theories
and opinions cannot have the exactness of hard science methodologies, trial judges are given broad
discretion to determine whether Dauberts specific factors are, or are not, reasonable measures of
reliability in a particular case. United States v. Simmons, 470 F.3d 1115, 1123 (5th Cir. 2006) (citing
Kumho, 526 U.S. at 153) (internal citations and quotation marks omitted). Courts have stated that [i]n
such instances, other indicia of reliability are considered under Daubert, including professional
experience, education, training, and observations. Id. Though perhaps not to the same degree as
psychology or social psychology, financial valuation is not an exact scientific methodology.
Estimations, predictions, and inferences based on professional judgment and experience are key
ingredients in any valuation. In a variety of contexts, the circuit courts have noted that economic
valuation is less than an exact science. See, e.g., In re Arnold & Baker Farms, 85 F.3d 1415, 1421
(9th Cir. 1996) (Experience has taught us that determining the value of real property at any given time
is not an exact science. Because each parcel of real property is unique, the precise value of land is
difficult, if not impossible, to determine until it is actually sold.); Metlyn Realty Corp. v. Esmark, Inc.,
763 F.2d 826, 830, 835 (7th Cir. 1985) (noting that [t]he process of valuation is inexact and that DCF
analyses are highly sensitive to assumptions about the firms costs and rate of growth, and about the
discount rate).

With respect to the DCF analysis, the principal difference from Montgomery and TWPs DCF
fairness analyses is Dr. Kennedys MySpace growth rate projections for 2007-2008 and 2008-2009.
(Baron Decl., Ex. 3, Expert Report of Dr. G. William Kennedy [Kennedy Report], May 20, 2009).
Intermix management projected the following revenue growth rates for the company: 107 percent for
2005-2006; 67 percent for 2006-2007; 20 percent for 2007-2008; and 15 percent for 2008-2009. (J.A.,
Ex. 242). Montgomery used these projections for its analysis without any modification. (Baron Decl.,
Ex. 3, at 39). TWPs projections differed slightly from managements projections: 107 percent for
2005-2006; 67 percent for 2006-2007; 21 percent for 2007-2008; and 10 percent for 2008-2009. (Id.).
Kennedy adopted managements growth rate projections for 2005-2006 and 2006-2007, derived a
deceleration rate of 62.06 percent from those figures, and then used that same deceleration rate to
calculate different revenue growth rates for 2007-2008 and 2008-2009, 41.36 percent and 25.67 percent,
respectively. (Id. at 39-40). Based on these new figures, Kennedy calculated new Earnings Before
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Interest, Taxes, Depreciation and Amortization (EBITDA) figures for 2008 and 2009 for MySpace.
(Id. at 40). Finally, [u]sing a discount rate of 19% and a terminal EBITDA multiple of 18[,] Dr.
Kennedy calculated a value of $962.4 million after subtracting the $69 million option exercise price
from the present value of MySpaces Cash Flows. (Id.). The 19 percent discount rate was chosen
based on the discount rates used in the Montgomery and TWP fairness opinions, which ranged from 17
percent up to 25 percent. (Id. at 41).
Defendants make several arguments against the reliability of this procedure. They argue first
that Dr. Kennedy has insufficiently justified his use of a uniform deceleration rate from 2005 to 2009
and the 18x terminal multiple. (Mot. 9-13). Defendants claim that Dr. Kennedy has offered no coherent
reason for his rejection of managements projections for 2007-2008 and 2008-2009. (Id. at 11). They
note that he has merely declared that Montgomery and TWPs projections were unreasonably low and
not consistent with the very rapid rates of growth currently observed at the time of the Proxy and
expected in the social networking sector at the time. (Id. at 11 (quoting Moriarty Decl., Ex. 7,
Kennedy Supplemental Decl. 6) (emphasis omitted)). Yet, Defendants neglect to mention that Dr.
Kennedy explained his use of higher growth rates for 2007-2008 and 2008-2009 by noting that
MySpace revenues consistently outperformed Intermix managements own projections in each of the
first four months of 2005. (Baron Decl., Ex. 3, Kennedy Report, at 35). This is at least one reasoned
basis for his adjustments to what he viewed as demonstrably conservative forecasts. (Id.). After all,
the entire endeavor is forecasting, not hard science. Projections themselves cannot be tested for
accuracy; they represent hopes rather than the results of scientific analysis. Zenith Elecs. Corp. v.
WH-TV Broad. Corp., 395 F.3d 416, 420 (7th Cir. 2005); see also In re Orchards Village Invs., LLC,
No. 09-30893-rldll, 2010 WL 143706, at *11 (Bankr. D. Or. Jan. 8, 2010) ([P]rojecting future financial
results from the operations of a business is not an exact science.).
Additionally, Defendants argue that: Kennedy provides no theoretical or empirical justification
for applying this incredibly aggressive 18x terminal multiple, except his statement that it is based on
forward EBITDA multiples observed in comparable publicly traded guideline companies referenced in
the comparable public company analysis below. (Mot. 12-13 (quoting Moriarty Decl., Ex. 1, Kennedy
Report, at 15) (quotation marks omitted)). They assert that Dr. Kennedy only relied on the most
profitable of the 14 comparable companies relied upon by Montgomery and TWP, including Google
and Yahoo!, and could not summon a single company that had grown at the rate projected with his
revenue growth rates and terminal value. (Id. at 13 (citing Moriarty Decl., Ex. 1, Kennedy Report, at
25; id., Ex. 6, Kennedy Tr. at 123:4-24)).
While these two challenges may be objections to Kennedys conclusions on his DCF analysis,
they do not render his methodology unreliable. Rather, the deviation from managements projections,
the use of an arguably aggressive terminal multiple, and the alleged selection of the most profitable
guideline companies are proper subjects for cross-examination. Defendants do not take issue with the
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19
Lippe v. Bairnco Corp., 288 B.R. 678, 689 (S.D.N.Y. 2003) (Many authorities recognize that
the most reliable method for determining the value of a business is the discounted cash flow (DCF)
method.) (citations omitted); see also Childrens Broad. Corp. v. The Walt Disney Co., 245 F.3d 1008,
1018 (8th Cir. 2001) (describing DCF analysis as an uncontroversial accounting method).
widely accepted DCF methodology;
19
nor do they attack any input that is identical to those used in the
Montgomery and TWP projections (for instance, the 2005-2006 and 2006-2007 projections or the
discount rate which fell within the same range in the investment banks fairness analyses). Even in light
of Dr. Kennedys less than fully reasoned explanations for his choices, given the inherent element of
judgment in these financial valuation analyses, we cannot say that he failed to identify any reliable
principles and methods or to apply those principles and methods reliably to the facts of [this] case.
FED. R. EVID. 702. A court may admit somewhat questionable testimony if it falls within the range
where experts might reasonably differ, and where the jury must decide among the conflicting views.
S.M. v. J.K., 262 F.3d 914, 921 (9th Cir. 2001) (quoting Kumho, 526 U.S. at 153).
Defendants also argue that there is a fundamental flaw in Dr. Kennedys DCF analysis, since it
allegedly yields an average growth rate into perpetuity above that of the U.S. economy as a whole
(12.74 percent versus a historical average of 6.5 percent). (Mot. 13-16; Cornell Decl. in Supp. of Mot.
to Exclude 5). Arguing that this outcome violates a key tenet of financial valuation, Defendants cite to
Professor Aswath Damodarans treatise, which states: The fact that a stable growth rate is sustained
forever, however, puts strong constraints on how high it can be. Since no firm can grow forever at a
rate higher than the growth rate of the economy in which it operates, the constant growth rate cannot be
greater than the overall growth rate of the economy. (Defs. Request for Judicial Notice [RJN], Ex.
B, ASWATH DAMODARAN, DAMODARAN ON VALUATION: SECURITY ANALYSIS FOR INVESTMENT AND
CORPORATE FINANCE 145 (John Wiley & Sons, Inc. 2d ed. 2006)). We have reviewed Defendants
expert Dr. Bradford Cornells declaration in support of this Motion to Exclude, in which he argues that
Dr. Kennedys use of an 18x EBITDA forward multiple is unreasonable . . . . (Cornell Decl. in Supp.
of Mot. to Exclude 5). To cross-check the outcome of Dr. Kennedys DCF analysis, Dr. Cornell used
three hypothetical scenarios, in which MySpaces revenue growth rate declines by 2 percent, 1 percent,
and 0.5 percent, respectively, each year until it reaches 6.5 percent, the average annual growth rate in
nominal Gross Domestic Product between 1928 and 2008. (Id. 8-10 (citing Defs. RJN, Ex. F,
Bureau of Economic Analysis News Release, July 31, 2009)). Using Dr. Kennedys assumptions and
the Gordon Growth Model (id. 11-13), Dr. Cornell calculated the following total present values as of
January 1, 2010 and implied EBITDA multiples for each scenario: (1) for the 2 percent annual
reduction, $549.13 million and a 4.7x multiple; (2) for the 1 percent annual reduction, $606.18 million
and a 5.2x multiple; and (3) for the 0.5 percent annual reduction (what he calls the most aggressive
scenario), $695.34 million and a 6.0x multiple. (Id. 14-19; see also id., Exs. 5, 6). Applying the 19
percent discount rate used by Dr. Kennedy, Dr. Cornell calculates discounted values as of mid-2005 for
each scenario, including: (1) $251.02 million; (2) $277.10 million; and (3) $317.8 million. (Cornell
Decl. in Supp. of Mot. to Exclude 20). Finally, Dr. Cornell concludes that even assuming an instance
where MySpaces revenues grow at a rate exceeding that of the economy as a whole for fifteen years
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after 2010, i.e., until 2025, Dr. Kennedys implied EBITDA multiple of 18x is three times too high
when compared with even [Dr. Cornells] most aggressive implied EBITDA multiple of 6.0x to give a
reasonable estimate of MySpaces value as of mid-2005. (Id. 21 (emphasis original)).

Though a jury might conclude at trial that Dr. Kennedys selection of an 18x EBITDA multiple
was overzealous, Dr. Cornells calculations do not demonstrate that Dr. Kennedys methodology is
fundamentally unreliable. At base, Dr. Cornells challenge to this DCF analysis constitutes an attack on
Dr. Kennedys projections as to MySpaces annual growth rates and as to how long those growth rates
can be sustained. Since Dr. Cornell is in essence attacking the reasonableness of Dr. Kennedys
projections, the generation of which we have already noted is not an exact science, we conclude that his
arguments do not render Dr. Kennedys methodology fundamentally unreliable and therefore
inadmissible. Dr. Cornell himself has testified that an adjustment in the terminal multiple based on the
experts assessment of the companys growth potential is appropriate. (Baron Decl., Ex. 2 (Cornell Tr. I
at 167:19-168:3)). Additionally, Dr. Cornell rejected the proposition that any time that the implied
perpetual growth rate exceeds the growth of the economy, that the terminal value multiple used would
be unreliable[.] (Id., Ex. 1 (Cornell Tr. II at 21:21-22:1)). He further explained that its just a
question of how much [the implied perpetual growth rate] exceeds [the economy rate,] and there is no
standardized method to determine whether the difference between the two rates is unreasonable. (Id.
at 22:3-24:6; id. at 23:12-25 (Q[:] And then do they use judgment to see whether its reasonable to
them or not reasonable to them? . . . . Is there some written scale as to how much variation there can be
before, in your view, it becomes reasonable or unreasonable; or is that a judgment of the analyst? A[:]
Well, theres not a written scale . . . . And these calculations Dr. Kennedy used struck me as
[unreasonable].)). These statements suggest that Defendants Motion turns on a difference of
professional opinion, not some fatal methodological flaw.
Based on our review of the papers and evidence submitted, if anything is clear, it is that DCF
analysis is, in not insubstantial measure, an inherently subjective and predictive methodology, which
relies in part on the experts judgment and experience. Indeed, neither Party has presented the Court
with any accepted, standardized methodology for deriving the required inputs for DCF analysis.
Accordingly, we are forced to conclude that DCF analysis is sufficiently pliable so that it may
reasonably lead to a wide breadth of plausible conclusions. Dr. Kennedys conclusions and the bases
therefor may ultimately be subject to legitimate attacks on cross-examination, but we perceive no
fundamental unreliability in his analysis that would counsel in favor of outright exclusion. We agree
that our gatekeeper role under Daubert is not intended to supplant the adversary system or the role of
the jury. DSU Med. Corp. v. JMS Co., Ltd., 296 F. Supp. 2d 1140, 1147 (N.D. Cal. 2003) (citation,
quotation marks, and alteration omitted). It is readily apparent that Defendants have thoroughly
researched the case law on DCF methodology, and in all but one of the several cases they cite, the
expert witnesss DCF analysis was considered at trial and then rejected by the court. Compare In re
Iridium Operating, LLC, 373 B.R. 283, 350-52 (Bankr. S.D.N.Y. 2007) (rejecting DCF analyses
following trial); In re Emerging Commcns, Inc. Sholders Litig., No. Civ.A. 16415, 2004 WL 1305745,
at *14-15 (Del. Ch. June 4, 2004) (same); Gray v. Cytokine Pharmasciences, Inc., No. Civ.A. 17451,
2002 WL 853549, at *8 (Del. Ch. Apr. 25, 2002) (same), with Kipperman v. Onex Corp., 411 B.R. 805,
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844-49 (Bankr. N.D. Ga. 2009) (simultaneously deciding summary judgment and granting motion to
exclude an experts testimony as unreliable under Rule 702, where the expert rejected managements
projections and generated his own DCF analysis).

With respect to Dr. Kennedys comparable public company analysis, Defendants argue that he
only used the projected MySpace revenue and EBITDA figures for 2006, ignoring the 2005 numbers
without explanation. (Mot. 17-18 (citing Moriarty Decl., Ex. 1, Kennedy Report, at 24)). They argue
Dr. Kennedys explanation for choosing to disregard the 2005 figures was inadequate ipse dixit. When
asked if 2005 was an aberrant year for MySpace, he replied: No, but it wasnt who the company was
expected to be. (Kennedy Tr. at 129:19-22). Furthermore, Defendants argue that Kennedy cherry-
picked only the most profitable guideline companies referenced in Montgomery and TWPs fairness
analyses, instead of applying an average of the multiples applicable to several companies. (Mot. 18). In
support of this latter contention, they cite another treatise, which states: In employing the guideline
publicly traded company method, every effort should be made to select as broad a base of comparative
companies as is reasonably possible, as well as to give full consideration to every possible factor in
order to make the comparison more meaningful. (Defs. RJN, Ex. E, PRATT, REILLY AND SCHWIEHS,
THE ANALYSIS AND APPRAISAL OF CLOSELY HELD COMPANIES 233 (2000) (PRATT, et al.) (citation
and internal quotation marks omitted)). Defendants contend that Dr. Kennedy erred in whittling down
the broader base of comparable public companies identified by Montgomery and TWP to only Google
and Yahoo!, seasoned companies with proven revenue model[s] that experienced explosive growth.
(Mot. 19-20). Though this appears to strike Defendants as litigation-driven, we are instructed to
evaluate the methodology, not the ultimate determination reached by the expert. Our sole purpose is to
determine the reliability of a particular expert opinion through a preliminary assessment of the
methodologies underlying the opinion. DSU Med. Corp., 296 F. Supp. 2d at 1147 (citing Daubert, 509
U.S. at 592-93). Of course, we must consider whether the experts are proposing to testify about
matters growing naturally and directly out of research they have conducted independent of the litigation,
or whether they have developed their opinions expressly for purposes of testifying. Daubert II, 43
F.3d at 1317. However, there is no evidence in the record that Dr. Kennedy deviated from his standard
methodology for the purposes of testifying in this case.
Dr. Kennedy explained his method as follows. First, he analyzed the companies selected by
Montgomery and TWP and restricted his selection to those comparable companies. (Moriarty Decl.,
Ex. 1, Kennedy Report, at 18-20). Montgomery had chosen twelve companies (Google, Yahoo!, CNET
Networks, iVillage, Monster Worldwide, Aptimus, ValueClick, Vertrue, Church & Dwight Co.,
Herbalife Ltd., Jarden Corp., and Natures Sunshine Products) based on the following sectors: online
advertising, online content and networking, online direct marketing, and offline direct marketing. (Id. at
19). TWP had chosen fourteen guideline companies (Bankrate, CNET, iVillage,
1-800-FLOWERS.COM, Blue Nile, Celebrate Express, Netflix, NutriSystem, Overstock.com, Provide
Commerce, Aptimus, Marchex, ValueClick, and Vertrue) based on three sector categories: content,
eCommerce, and direct marketing. (Id.). In identifying a narrower set of comparable companies, Dr.
Kennedy explained that he considered these to be the most similar operational, financial, and growth
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guideline publicly traded companies. (Id. at 20). He justified his deviation from the investment banks,
beginning with TWP, as follows:
In implementing the public guideline company method, TWP selected guideline Companies
based on all of the businesses of Intermix on a combined basis. . . . Montgomery selected
guideline companies based on each business within Intermix because the three businesses have
different economics and peer groups. As a result, Montgomery selected only Online
Advertising and Online Content and Networking to apply to MySpace. We agree with
Montgomerys approach that each Intermix business segment, and specifically MySpace has
different growth and profit potential and therefore, different multiples would be appropriate to
apply to MySpace and the other Intermix business segments. Within TWPs comparables, only
the Content group is applicable.
(Id. at 20-21). Accordingly, Dr. Kennedy selected the following six comparable companies: Bankrate,
CNET, iVillage, Google, Yahoo!, and Monster. (Id. at 21). Then, based on separate MySpace
financial performance information, Dr. Kennedy narrowed the field down to Google and Yahoo!,
contending those were the only two companies with comparable revenue and EBITDA growth metrics.
(Id. at 21-25). Dr. Kennedy concluded that MySpace [fell] into the higher profitability tier of the six
guideline companies, and therefore, he could discount the 2005 figures for MySpace and utilize an
average of the multiples indicated by Google and Yahoo. (Id. at 24-25).
There is nothing in the record to support the proposition that selecting comparable companies
based on (1) services provided, (2) revenue metrics, and (3) EBITDA metrics renders a comparable
public company analysis fundamentally unreliable. We will not exclude this evidence simply because
Defendants dislike Dr. Kennedys conclusion that the only guideline companies left standing in the final
analysis were Google and Yahoo!. Even Defendants cited treatise urges the selection of as broad a
base of comparative companies as is reasonably possible. (Defs. RJN, Ex. E, PRATT, et al., supra, at
233 (emphasis added)). Dr. Kennedy concludes, in effect, that the remaining comparable companies are
as broad a base of comparable companies as is reasonably possible. Defendants disagreement with this
conclusion is properly explored on cross-examination.
Accordingly, we hereby DENY Defendants Motion to Exclude Dr. Kennedys testimony. As
Dr. Kennedys testimony is sufficient to at least raise triable issues on damages from out-of-pocket
losses, we also DENY Defendants Motion for Summary Judgment on this issue.
3. Lost Opportunity Damages
As a final alternative, Plaintiff seeks lost opportunity damages based on the allegedly
impending Viacom bid. When actual losses cannot be demonstrated, some circuit courts have
recognized an alternate theory of establishing damages, the lost opportunity theory.
DaimlerChrysler, 294 F. Supp. 2d at 627 (internal quotation marks omitted). Lost opportunity damages
represent loss of a possible profit or benefit, [defined as] an addition to the value of ones investment,
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unless the loss is wholly speculative. Tse II, 123 F. Supp. 2d at 223 (internal citations omitted;
alteration in original). Lost opportunity damages are not wholly speculative if they are based on
certain, fixed and demonstrable profits thwarted by a defendants alleged fraud. DaimlerChrysler,
294 F. Supp. 2d at 627 (quoting Rudinger v. Ins. Data Processing, Inc., 778 F. Supp. 1334, 1341 (E.D.
Pa. 1991)). Further, lost opportunities damages are not available where the fact of the loss, i.e.
whether there was any lost opportunity at all, is wholly speculative. Id. (quoting Tse v. Ventana Med.
Sys., Inc., 297 F.3d 210, 220 (3d Cir. 2002) (Tse III)). Finally, [t]he risk of uncertainty as to [the]
amount of damages is cast on the wrongdoer and it is the duty of the fact finder to determine the amount
of the damages as best he can from all the evidence in the case. Tse III, 297 F.3d at 220 (quoting
Gould v. American-Hawaiian S.S. Co., 535 F.2d 761, 781-82 (3d Cir. 1976)).
In support of this theory of damages, Plaintiff argues that Viacom was contemplating a bid
above $750 million, citing a single internal Viacom email, in which Jason Hirschhorn states: My guess
is that News [Corp.] is going to take the $12/share ask from Richard Rosenblatt and add a premium of
10-20%. $700-$750 million . . . . Dont know if offer will be binding from NEWS [Corp.]. But I
belioeve [sic] they will deliver it anywhere from today-monday. (J.A., Ex. 192). Viacom never in fact
put in a bid for Intermix. Therefore, the relevant question on this motion for summary judgment is
whether there is a triable issue of material fact as to whether Viacom would have submitted a bid. This
question must be answered in the negative, since it is undisputed that Viacoms board simply refused to
engage in a public bidding war with its competitor News Corp. Freston, Viacoms CEO, testified that
the Viacom board members were adamant on this point: There already had been an offer and it wasnt
ours and it didnt look like there was an opportunity to counter bid or if there was, we would have to do
so in a public way and the board had said on the spot, no, lets not get involved in that. (Freston Tr. at
35:11-15; see also West Tr. at 123:22-24 (We had some discussion and we ended up saying that it
wasnt worth pursuing a counterbid strategy.)). Therefore, given this unwavering refusal to engage in
a public bidding war following the July 18th merger announcement, the Proxy, including whatever
alleged material omissions, issued in late August had no effect whatsoever on Viacoms willingness to
place a bid for Intermix. Accordingly, the allegedly defective Proxy cannot support the notion that
Intermix shareholders missed out on an opportunity with Viacom.
While it may be theoretically possible that Viacom would have entered a subsequent bid had the
Intermix shareholders not been allegedly deceived by the defective Proxy and had they rejected the
merger with News Corp., we conclude that under the totality of the evidence, Plaintiffs showing is no
more than speculative. Moreover, mere rejection of the News Corp. bid by the shareholders would not
necessarily have eliminated the specter of a public bidding war that Viacom abhorred. Nothing
prevented News Corp. from countering any Viacom bid with a counterbid. This is precisely the type of
speculation and indeterminacy that is insufficient to create a triable issue on the existence of any lost
opportunity.
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20
We have no occasion to consider and therefore express no opinion on whether the lost
opportunity theory of damages premised on a potential Viacom bid would be viable with respect to the
breach of fiduciary duty claim which is based on evidence beyond the alleged material omissions from
the Proxy. The Parties have not addressed this issue in their Cross-Motions.
Accordingly, we GRANT Defendants Motion for Summary Judgment as to this theory of
damages.
20
On his Section 14(a) claim, Plaintiff may ONLY proceed at trial on his theory of out-of-
pocket losses based on an intrinsic valuation of Intermix at the time of the merger.
IV. Count III: Violation of Section 20(a) of the Securities and Exchange Act of 1934
Section 20(a) of the 1934 Act provides that: Every person who, directly or indirectly, controls
any person liable under any provision of this chapter or of any rule or regulation thereunder shall also
be liable jointly and severally with and to the same extent as such controlled person to any person to
whom such controlled person is liable, unless the controlling person acted in good faith and did not
directly or indirectly induce the act or acts constituting the violation or cause of action. 15 U.S.C.
78t(a). The Parties agree that if there is no primary liability under Section 14(a), there can be no control
person liability. (Joint Br. 87). However, since we have denied summary judgment with respect to
three of the bases for Count II, we likewise DENY the Motion for Summary Judgment with respect to
Count III.
V. Conclusion
Plaintiffs Motion for Summary Judgment is DENIED. Defendants Motion for Summary
Judgment is hereby GRANTED in part and DENIED in part as set forth in this Order. Within thirty
(30) days hereof, counsel SHALL file a joint status report setting forth their views regarding further
mediation in light of these rulings.
IT IS SO ORDERED.
-- : --
Initials of Deputy Clerk Bea

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1 . Pursuant to Federal Rule of Civil Procedure 24(a), Plaintiffs

2. Plaintiff seeks permission to join the litigation to protect interests,

A) Defendants, ongoing, systematic and fraudulent scheme to maximize financial

6. Pursuant to private right of action under antitrust Federal law, more

7. According to SEC documents, Brad D. Greenspan incorporated

8. The credibility of News Corps Board including Kleiner Perkins Partner

i. The credibility of Google largest shareholder Doerr Director of Defendant

9. News Corporation, struck an undisclosed bilateral agreement with at

35 . In class actions, intervention is "highly desirable" "to ensure adequate class

The decision in Shields v. Washington Bancorporation, Civ. A. No. 90-110 1,

3 6. In this case, failing to pursue immediate intervention and insertion of new

It also prevent Intervenor from taking advantage of Federal anti-

3 7. The Intervenor is willing to be represented by counsel f so "undue delay,

1 . Pursuant to Federal Rule of Civil Procedure 24(a), Plaintiffs

2. Plaintiff seeks permission to join the litigation to protect interests,

A) Defendants, ongoing, systematic and fraudulent scheme to maximize financial

6. Pursuant to private right of action under antitrust Federal law, more

7. According to SEC documents, Brad D. Greenspan incorporated

8. The credibility of News Corps Board including Kleiner Perkins Partner

i. The credibility of Google largest shareholder Doerr Director of Defendant

9. News Corporation, struck an undisclosed bilateral agreement with at

35 . In class actions, intervention is "highly desirable" "to ensure adequate class

The decision in Shields v. Washington Bancorporation, Civ. A. No. 90-110 1,

3 6. In this case, failing to pursue immediate intervention and insertion of new

It also prevent Intervenor from taking advantage of Federal anti-

3 7. The Intervenor is willing to be represented by counsel f so "undue delay,

1 . Pursuant to Federal Rule of Civil Procedure 24(a), Plaintiffs

2. Plaintiff seeks permission to join the litigation to protect interests,

A) Defendants, ongoing, systematic and fraudulent scheme to maximize financial

6. Pursuant to private right of action under antitrust Federal law, more

7. According to SEC documents, Brad D. Greenspan incorporated

8. The credibility of News Corps Board including Kleiner Perkins Partner

i. The credibility of Google largest shareholder Doerr Director of Defendant

9. News Corporation, struck an undisclosed bilateral agreement with at

35 . In class actions, intervention is "highly desirable" "to ensure adequate class

The decision in Shields v. Washington Bancorporation, Civ. A. No. 90-110 1,

3 6. In this case, failing to pursue immediate intervention and insertion of new

It also prevent Intervenor from taking advantage of Federal anti-

3 7. The Intervenor is willing to be represented by counsel f so "undue delay,

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