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Home , Kara Vallow, Operation Elveden, Operation Tuleta, Sue Akers

1 Brad Greenspan, Pro Se 2 14938 Camden Ave Suite 47 3 San Jose, CA 95124

4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7

8 9 EUNICE HUTHART, ) Case No. CV 13-4253 MWF ) 10 Plaintiff, ) Honorable Michael W. Fitzgerald 11 v. ) ) 12 ) 13 ) ) 14 ) NOTICE OF ERRATA 15 REGARDING MOTION TO INTERVENE 16 NEWS CORPORATION, NI GROUP 17 LIMITED f/k/a NEWS ) INTERNATIONAL LIMITED, ) 18

19 NEWS GROUP NEWSPAPERS ) LIMITED, and JOHN and JANE ) 20 DOES 1-10 ) 21 ) Defendants. ) 22 ) 23 )

NOTICE OF ERRATA

1 2 TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:

3 PLEASE TAKE NOTICE 4 Petitioner respectfully submit the following corrections to certain limited portions of 5 6 the pleadings Entered into the Court filing system on May 6, 2014.

7 Specifically, petitioner wishes to correct certain pleadings as set forth below. 8 Plaintiff Motion to Intervene Conclusion section And Exhibits. 9 10 Because of the last minute clerical changes to the numbering of certain exhibits and

11 conversion of pleadings from a Word document - prior to filing the document – the 12 spacing and formatting and certain sections were omitted and inserted erroneously 13 14 from incorrect versions. Plaintiff did not realize the error in these citations until after

15 the Pleadings were filed and Defendant’s May 19, 2014 claims were reviewed. In 16 particular, Plaintiff wishes to make the following corrections to certain Documents in 17 18 the pleadings

19 20 A. Correction #1 – on page 22 of filed May 2, 2014 Motion To Intervene:

21 22 “39. The Intervenor further respectfully requests the Court grant in such motion, the right to serve the Complaint in Intervention (Exhibit #2) , Motion for 23 Partial Summary Judgment (Exhibit #3) , and Motion for Preliminary 17200 24 Injunction and/or Motion of Contempt for Violation 2006 California State Attorney 17200 25 Permanent Injunction entered into consent decree on behalf of Defendant News 26 Corporation with State Attorney (Exhibit #4) related and precedential rulings and briefings attached as herein. 27 28

be replaced with the phrase “

NOTICE OF ERRATA

1 “39. The Intervenor further respectfully requests the Court grant in such motion, the right to serve the Complaint in Intervention (Exhibit #2) , Motion for 2 Consolidation and/or Motion of Contempt for Violation 2006 California State 3 Attorney 17200 Permanent Injunction entered into consent decree on behalf of Defendant News Corporation with State Attorney (Exhibit #3) related and 4 precedential rulings and briefings attached as herein.” 5

6 7

8 B. Correction #2 9 Corrected Complaint in Intervention as Exhibit A is attached 10 11 C. Correction #3

12 Corrected Motion for Consolidation as Exhibit B. 13

16 DATED: May 23, 2014 respectfully submitted,

22 Brad Greenspan, in Pro Per 23

NOTICE OF ERRATA

1 EXHIBIT A-

NOTICE OF ERRATA

1 EXHIBIT B

16 17 18 19 20 21 22 23 24 25 26 27 28

NOTICE OF ERRATA

Brad Greenspan, Pro Se 1 264 South La Cienega 2 Suite 1216 Beverly Hills, CA 90211 3

4 UNITED STATES DISTRICT COURT 5 CENTRAL DISTRICT OF CALIFORNIA 6

7 EUNICE HUTHART, ) Case No. CV 13-4253 MWF 8 ) Plaintiff, ) Honorable Michael W. Fitzgerald 9 v. ) 10 ) ) 11 ) ) 12 NEWS CORPORATION, NI GROUP ) COMPLAINT IN INTERVENTION LIMITED f/k/a NEWS ) 13 INTERNATIONAL LIMITED, ) 14 NEWS GROUP NEWSPAPERS ) LIMITED, and JOHN and JANE ) 15 DOES 1-10 ) ) 16 Defendants. ) ) 17 ) 18 )

COMPLAINT IN INTERVENTION

1 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN: 2 PRELIMINARY STATEMENT 3 4 1. This is a civil action brought against Defendants for damages for violations of Plaintiff’s right to privacy; for the unlawful access to stored communicationl and for the intrusion into, 5 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- 6 637.0 of the California Penal Code; 1708.8 of the California Civil Code; and California common law.

7 JURISDICTION AND VENUE 8 This action is brought pursuant to 18 U.S.C. 2701 and 2707, 18 U.S.C. 2510, 2511 and 2520. This Court has 9 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 10 California, California State law and California common law pursuant to 28 U.S.C. 1367(a).

11 Venue is proper in the United States District Court for the Central District of California pursuant to 28 U.S.C 12 1391(a) and (b)(2) because the claims arose in this district.

13 PARTIES

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

15 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 16 of the public company that stopped traded when Defendant News Corporation forced cash out of all shareholders that hadn’t thrown in the towel at $12.00 per share. 17 3. Plaintiff SubClass A – Federal Brown v. Brewer shareholders 18 i. Subclass B- UK and US victims of at list one of Defendants or Rico Associated in Fact Enterprise- 19 HAND’s privacy invasion or predicate act. 20 ii. Subclass C – U.S. employees part of HiTech Class in San jose Federal certified class action who were 21 victims of privacy violation by Google, Defendants, or Rico Associated in Fact Enterprise: HAND

23 B. Defendants are also RICO Defendants and members Of ‘HAND’ criminal Associated in Fact Enterprise ‘HAND” 24 25 3. Defendant NEWS CORPORATION, a Delaware incorporated company.

26 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 27 holding company of NEWS GROUP NEWSPAPERS LIMITED (“NEWS ROUP NEWSPAPERS), the publisher of The Sun newspaper, 28

COMPLAINT IN INTERVENTION

4. Defendant NEWS GROUP NEWSPAPERS, a subsidiary of NEWS INTERNATIONAL, is a United 1 Kingdom company 2 5. (Hereinafter, NEWS CORP, NEWS CORPORATION, NEWS INTERNATIONAL and NEWS GROUP NEWSPAPERS, are referred to, collectively as the “NEWS CORP Defendants” 3 6. Defendants JOHN and JANE DOES 1-3, whose identities are presently unknown to the Plaintiff., are 4 private investigators who work or worked for on

5 9. Defendants JOHN and JANE DOES 4-7, whose identities are presently known tio the Plaintiff, are 6 journalists, who were employed y agents ofm, and/or independent contractors some or all of the NEWS CORPORATION 7 10. Defendants JOHN and JANE DOES 8-10, whose identities presently unknwont ot the Plaintiff, are 8 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 Plaintiff’s right ot 9 privacy, and with some or all of the Defendants, knew, or should have known of and did nothing to stop the 10 unlawful access to stored communications, the intrusioninto, the interceptio fo, the interference with, Plaintiff’s email communications with other Class Members during July 18, 2005 thru December 31, 2012. 11 11. Google, Inc. 12 i. Defendant Marissa Meyer, on Google EMG during Rico and antitrust predicate acts between 2005 thru at least 2011. 13 14 ii. Defendant Sheryl Sandberg, on Google EMG during Rico and antitrust predicate acts between 2005 thru at least 208. 15 iii. Larry Page iv. Defendant Sergey Brin 16 v. Defendant Alan Eustace

17 vi. Defendant David Drummond 18 vii. Defendant Pinchette, Google CFO. 19 viii. Defendant Amazon.com 20 12. Defendants eUniverse Inc. aka Intermix, Inc. ( “MySpace Parent Company”) 21 22 22. MySpace, Inc.

23 23. Defendant Brett Brewer. Brewer was former President but not a founder or cofounder of 24 eUniverse Inc. Brewer is a citizen of California. Brewer was a director throughout the Relevant Period 25 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 26 shareholders and voted upon by shareholders at the January 2004 and September 2005 shareholder 27 meetings. By preparing, reviewing and/or disseminating the false and misleading 2003 Proxy, Brewer 28 was able to maintain his seat on the Intermix Board, procure millions of dollars worth of personal

COMPLAINT IN INTERVENTION

benefits in the form of continued employment and stock option grants and ensure that the VantagePoint 1 Transactions were approved by Intermix shareholders. Brewer also received material personal benefits in 2 connection with the Acquisition and his preparation, review and/or dissemination of the 2005 Proxy, 3 including the expectation that the consummation of the Acquisition would extinguish his liability in the 4 existing derivative suits, indemnify him for prior and contemporaneous misconduct, and immediately 5 monetize his illiquid stock holdings in the CompanyDefendant Brewer signed or authorized the signing 6 of the false andmisleading Registration and Proxy Statements 24.Defendant Edell. Defendant Edell signed or authorized the signing of 7 the false and misleading Registration and Proxy Statements. 8 25. Defendant Chris DeWolfe DeWolfe its uncontested was in a critical position to determine what 9 law firm to retain for Fog Cutter and the budget and amounts paid to FogCutter counsel for each of the years 10 2003, 2004, and 2005. 11 26. Defendant Dan Mosher

12 27. Defendant Tom Flahie 28. Defendant Richard Rosenblatt 13 30. Defendant VantagePoint Partners, LLC. 14 31. Defendant Alan Salzman, principal& managing Partner VantagePoint Partners,LLC. 15 32. Defendant Carlick. Defendant Carlick signed or authorized the signing of the false and 16 misleading Registration and Proxy Statements. 33. Defendant Sheehan. signed or authorized the signing of the false 17 and misleading Registration and Proxy Statements. 18 34.Defendant Orrick Herrick law firm was the outside counsel for Fog Cutter Capital Group, Inc. since at least 2002.. 19 i. FogCutter held at least its 2002 and 2003 Annual meetings at the Orrick Herrington NY 20 headquarters, according to company’s November 22, 2002 14A filing 21 ii. Orrick Herrick law firm was sued by the city of San Diego in November 2005 and paid 22 $2.8 million to settle charges of negligence, breach of fiduciary duty, and breach of contract. Orrick law firm 23 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 Diego’s attorneys, 24 “[Orrick] possessed for many years all the information one would need to know that the disclosures 25 regarding the status of the city’s pension system were false.” 26 35.Defendant Richard Harroch who was employed by Orrick in 2003 thru 2004 and sometime in 27 2005 hired and began and to work for VantagePartners LLC solely. Harroch worked as the lead corporate 28 counsel for VantagePoint whileTeaming with Carlick to consummate the 2003 investment intoeUniverse.

COMPLAINT IN INTERVENTION

36. Latham Watkins 1 37. Defendant Richard Rosenblatt. Rosenblatt signed or authorized the signing of the false and 2 misleading Registration and Proxy Statements 38. Defendant Ask Jeeves, Inc. 3 39. Defendant Geoff Yang. Principal and owner of Defendant RedPoint. Redpoint Ventures was 4 founded in 1999 by top partners from Brentwood Venture Capital and Institutional Venture Partners 5 (“Redpoint”), two leading venture firms in Silicon Valley. Redpoint has over $1.7 billion under management. 6 Since its inception, Redpoint has demonstrated a deep knowledge and insight into the emerging convergence of 7 media and broadband networks, having successfully invested in companies such as Excite, Ask Jeeves, TiVo, 8 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.” 9 40. Defendant RedPoint Partners 10 41. Defendant Allen & Co.Managing Partner Nancy Peretsman admits in Fortune Magazine in 2009 11 Article titled, “50 Most Powerful Women”: “M&A specialist Peretsman helped broker Google’s 11th- hour, $1 12 billion bid for a 5% stake in AOL (and an advertising partnership) that thwarted an AOL – Microsoft alliance. “ 13 ii. On December 5, 2005, an article appears in Business Week, 'Googling For Gold' 14 (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. 15 "You almost bank on other companies becoming successful because of Google," says banker Quincy Smith of 16 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" 17 i. The Underwriter Defendants drafted and disseminated the offering 18 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 19 42. Defendant Stan Shuman was and is a Managing Director of Allen & co. and has served on the 20 Board of News Corp since at least 2004.one of News Corp’s long time directors was senior Allen & Co. 21 investment banker Stan Shuman who resigned October 3, 2005, days after the News Corp acquisition of 22 MySpace closed and about one month before Comscore perhaps accidentally discloses a list of Search engine 23 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 3rd party audit 24 firm Comscore as having 25% of the Search audience as AOL with over 8 million unique users. The Comscore 25 disclosure is made first in November 2005 reporting the October 2005 data and proving that the fast growing 26 MySpace.com unique user audience had been hiding a parallel not disclosed fast growing Search Engine 27 audience and therefore undisputed asset that had never been disclosed to Intermix shareholders prior to 28 September 30, 2005.

COMPLAINT IN INTERVENTION

1 ii. Defendant John Doerr, Director Google, Inc. 2 ii. Intuit , Chairman and Director Bill Campbell 3 43. Defendant IAC Corp. IAC entered the search engine business upon signing a merger agreement 4 with Ask Jeees, Inc. In March 2005 and also needed to find partners with large online audiences to further such 5 its commercal business.IAC closed its merger with Ask Jeeves giving ASK Jeeves a $1.8 billion 6 dollar value in its stock for stock merger deal on July 19, 2005.IAC’s SEC filings in 2005 state clearly that IAC 7 had historically retained Allen & Co. to provide Investment banking services and strategy consulting services. 8 One of IAC’s Directors Charles Kenough served during the relevant period as Chairman of Allen & Co. 9 44. Defendant Dara Khosrowshai was CEO of IAC in 2005 and was previously an investment banker 10 at Allen & Co. 45. Defendant Jonathan Miller who between March 2005 and December 2005 is the CEO of AOL.i. 11 Miller was a top aide to IAC Chairman Mr. Diller until 2002.Defendant Jonathan Miller was CEO of Time 12 Warner internet unit, AOL during the 2005 year and period many of the predicate acts and damages incurred by Petitioner. 13 iii. In 2007 Miller left AOL as CEO and replaced News Corp’sExecutive Ross Levinsohn where 14 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. 15 investment banking arm of financial services giant JPMorgan Chase & Co. Morgan acted as joint book-running 16 manager and underwriter for Google’s 2005 $4.2 billion dollar Secondary, helping to draft and disseminate the 17 offering documents. 18 48. Defendant Zakour, worked on the investment banking team for Citibank that was retained by 19 AskJeeves, Inc. in early 2005 at the Direction of AskJeeves Directors Carlick and Yang. Zakour on or around 20 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 MySpace’s Parent Company. 21 Zakour was paid and received compensation in his role for JPMorgan 22 advising and providing a $1.4 Billion dollar valuation report of MySpace.com’s value as of July 13, 2005 which 23 only News Corp had the advantage and received the benefit of such information by signing a merger agreement 24 on July 18, 2005 to acquire MySpace.com and its parent company for an aggregate total of $650 million dollars. 25 However, Zakour’s Citibank arranged deal where he was compensated for the 26 AskJeeves acquisition by Carlick and Yang did not close until July 19, 2005. 50. Defendant Eric Schmidt 27 51. Defendant John Doerr. Doerr sat on the board of Excite@Home on behalf of MF until it went 28 bankrupt in 2001 and was co-investors with Geoff Yang, also a board member for most of the life of

COMPLAINT IN INTERVENTION

Excite@Home. MF’s Caufield and Barksdale were since 2001 and thru all relevant periods, lead directors of 1 Time Warner/AOL. Time Warner’s controlled AOL subsidiary was in acquisition and strategic discussions with 2 Intermix thru at least July 18, 2005. AOL’s decision in the summer of 2005 as to whether they would sign a new 3 search engine partnership with Google, or opt to work with a new partner was well followed by the media. The 4 process was coined a ‘search partnership auction’ that was widely speculated about during this period 5 culminating in Google paying AOL $1 billion dollars while valuing AOL at $20 billion based on the terms of the 6 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 7 startup, M2Z, Inc. Yang and Doerr having invested together behind M2Z CEO Milo Medin years ago when he 8 was part of the Excite@Home group of companies merged together that both Yang’s Institutional Venture 9 Partners (IVP) and Doerr’s Kleiner Perkins Caufield Byers (MFB) had financed before the company went 10 bankrupt in 2001.Both Yang and Doerr are Directors of M2Z according to same filing.The M2Z filing with FCC 11 states investors have committed in excess of $400 million “M2Z’s financial backers are Kleiner Perkins 12 Caufield & Byers, Charles River Ventures, and Redpoint Ventures.” And “Kleiner Perkins Caulfield & Byers was formed in 1972”; 13 ” John Doerr, a managing partner of the firm, is a founding board member of M2Z.” 14 ii. Doerr is on WhiteHouse Economic Counsel, including Paul Otellini, and Richard D. 15 Parsons, Sheryl Sandberg, and Matthew Rose, 16 53. Defendant Time Warner. Time WarnerAOL’s AOL subsidiary and IAC’s AskJeeves subsidiary 17 appear to benefit the most from Intermix’s first search asset’s precipitous p demise when Intermix volunteers to 18 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 19 Warner/AOL & IAC almost immediately benefit and indeed publicly brag of unexpected gains in their Paid 20 Search divisions in a July 21, 2005 press release made by these companies in conjunction with Comscore. The 21 press release cites the percentage share of the U.S. “search marketplace” attributed to AskJeeves & AOL 22 compared to the previous 12 month percentage share. 23 54. Defendant Caulfield. Caufield has made significant political donations in California and the 24 Unied States.Ten years ago, Caulfield was featured in NY Times article, 25 “Politicians Getting a Warm Reception” February 10, 2002 by Shawn Hubler, 26 “Venture capitalist Frank Caufield and his wife, Karen, said they, too, had familiarity in 27 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 28 block from Pelosi in Pacific Heights. "Frank's been involved in Washington, D.C., quite a bit, so

COMPLAINT IN INTERVENTION

he knew she could do it," said Karen Caufield. "And she was just darling. She did a beautiful job. 1 She had to fly in on Saturday afternoon because they were in session because of Sept. 11. “ 2 Haig has had a long relationship with Henry Kissinger, to whom Haig became senior military advisor in 3 1969. January 1982, Reagan replaced his national security advisor, Richard Allen, with William P. Clark, 4 another Paperclip person, and who was Haig's deputy. Nixon said, "When you see the lights burning late 5 in Henry's [Kissinger] office, it's usually Al Haig." (*War In The Falklands, the Full Story* by the 6 *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 7 TimeWarner/AOL during period of claims. 8 56. Defendant Kleiner Perkins. Kleiner Perkins Caufield Byers LLC (“MF”) 9 scheme to control Time Warner.“FTC's Facebook-Instagram Inquiry Ensnares Google, Twitter: Source”By Alexei Oreskovic(Reuters) - The U.S. Federal Trade Commission has reached out to Google 10 Inc and Twitter inan investigation into Facebook Inc's $1 billion acquisition of photo-sharing service 11 Instagram, asource familiar with the probe told Reuters 12 57. Defendant Thomas J. Perkins ("Perkins") if founding partner of MF. Perkins was lead Director 13 and controlled News Corporation from 1996 until his resignation as head of Audit and Nominating Governance 14 Committee of News Corp in October 2011.Defendant Perkins was a member of the Board's Audit, Nominating 15 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 16 Corp, his access to internal corporate documents, conversations and connections with 17 other corporate offices and employees, attendance at management and Board meetings and 18 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 19 internal controls and the existence and cover up of the widespread hacking scandal at the

20 Company. Thomas Perkins of Perkins was since 1995 and thru all relevant times, one of two lead directors of 21 News Corp that occupy the committees of Audit, Compensation, and Nominating and Corporate Governance. Perkins would have been significant beneficiary if Google was 22 able to reach A commercial search partnership in 2005 with MySpace instead of competitors such as Yahoo and 23 Microsoft. Perkins’ partner Doerr would have been a significant beneficiary also. Both owned Google stock in 24 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 25 since 1979 and its Chairman since 1991. The Murdoch family owns 12% of the overall equity 26 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 27 father of defendants James and Lachlan Murdoch. For the fiscal year of 2008, Defendant 28 Murdoch received over $30 million in compensation from News Corp. For each of 2009 and 8

COMPLAINT IN INTERVENTION

1 2010, defendant Murdoch received $22 million. Because of defendant Murdoch's experience 2 and positions at News Corp, his access to internal corporate documents, conversations and 3 connections with other corporate offices and employees, attendance at management and Board 4 meetings and committees thereof and via reports and other information provided to him in 5 6 connection therewith, he knew adverse non-public information about the business of News

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

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

9 of the State of New York. CEO Admits April 2012, he has been victim and Company has been victim of 10 “Coverup”. This is critical date that fraudulent concealment of evidence activities admitted by 11 CEO. CEO thru April 2012 admission under oath at Leveson Inquiry is significant in that 12 it also is admitting that based on defective internal controls and systems the Directors and CEO 13 were not aware of the actions of the executives beneath them. Thus admitting gross negligence. 14 While Gross Negligence is all that is necessary to prove Petitioner’s damages under 15 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 16 News Corp.

17 59. Defendant Les Hinton was formerly the Executive Chairman of News International. On 7 18 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 19 the phone-hacking scandal .resignation. He gave oral evidence to the Committee on 25 March 2003, 6 March 2007and 15 September 2009. 20 60. Defendant Julia Angwin has been and is an employee of NewsCo since 2007. 21 22 61.Defendant Ross Levisohn was an executive and employee of NewsCo in 2005 thru 2007.

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

24 2007. As of March 30, 2011, James Murdoch became Deputy Chief Operating Officer as well 25 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 26 Murdoch received over $17 million in News Corp compensation for the fiscal year of 2008. In 27 each of 2009 and 2010, defendant James Murdoch received over $10 million. Because of 28

COMPLAINT IN INTERVENTION

Defendant James Murdoch's experience and positions at News Corp, his access to internal 1 2 corporate documents, conversations and connections with other corporate offices and

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

4 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 5 6 existence and cover up ofthe widespread hacking scandal at the Company. Plaintiff is informed

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

8 Proxy’s are sent to the shareholders which is a violation of RICO 1431, predicate act of

9 mail fraud by causing 2005 -2012 false annual Proxy statements, known as Def14as, to be 10 distributed which is illegal in United States that omitted the UK hacking facts including that there 11 as the CEO described in September 2010, just “one rogue hacker” as well as also omitting 12 the fact NewsCorp was violating the FCPA and UK anti-bribery rules thru bribing public officials in the UK including, 13 14 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 15 as its Deputy Chief Operating Officer from 2000 to 2005. For the fiscal year ended June 30, 16 2010, Lachlan Murdoch received almost $2 million for his role with the Company. Because of 17 18 Defendant Lachlan Murdoch's experience and positions at News Corp, his access to internal

19 corporate documents, conversations and connections with other corporate offices and

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

21 reports and other information provided to him in connection therewith, he knew the adverse 22 non-public information about the business of News Corp, its lack of internal controls and the 23 existence and cover up of the widespread hacking scandal at the Company. 64. Defendant Chase Carey ("Carey") has been the President, Chief Operating 24 25 Officer and Deputy Chairman of the Board since July 2009. Carey previously served the

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

27 2002 to 2003 and as a Director from 1996 to 2007. For the fiscal year ended June 30, 2010

28 2002 to 2003 and as a Director from 1996 to 2007. For the fiscal year ended June 30, 2010

COMPLAINT IN INTERVENTION

1 Carey received over $26 million in compensation from News Corp. Because of defendant 2 Carey's experience and positions at News Corp, his access to internal corporate documents, 3 conversations and connections with other corporate offices and employees, attendance at 4 management and Board meetings and committees thereof and via reports and other information 5 6 provided to him in connection therewith, he knew adverse non-public information about the

7 business of News Corp, its lack of internal controls and the existence and cover up of the widespread hacking scandal at the Company. 8 65. Defendant David F. DeVoe ("DeVoe") has been a Director of the Company and

9 its Chief Financial Officer since 1990. Defendant DeVoe has served as Senior Executive Vice 10 President since 1996. Defendant DeVoe received News Corp compensation for the fiscal years 11 ended 2008 through 2010 of almost $10 million, $9 million and $7 million respectively. 12 Because of defendant DeVoe's experience and positions at News Corp, his access to internal 13 14 corporate documents, conversations and connections with other corporate offices and

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

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

17 non-public information about the business of News Corp, its lack of internal controls and the 18 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 19 serves as Executive Vice President, Office of the Chairman. Defendant Klein is also the Chief 20 Executive Officer ofNews Corp's education division. Defendant Klein is expected to receive a 21 22 yearly salary of $2 million, and an annual bonus of at least $1.5 million, in addition to his $1

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

24 his access to internal corporate documents, conversations and connections with other corporate 25 offices and employees, attendance at management and Board meetings and committees thereof 26 and via reports and other information provided to him in connection therewith, he knew adverse 27 non-public information about the business of News Corp, its lack of internal controls and the 28

COMPLAINT IN INTERVENTION

existence and cover up of the widespread hacking scandal at the Company. Plaintiff is informed 1 2 and believes that defendant Klein is a citizen of the State ofNew York. Klein is married to

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

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

5 since 1991 and senior advisor to defendant Murdoch since 2005. Defendant Siskind served as 6 the Company's Group General Counsel from 1991 to 2005, as Senior Executive Vice President 7 from 1996 to 2005 and as Executive Vice President from 1991 to 1996. For the fiscal year 8 ended June 30, 2010, Siskind earned almost $4 million for his role with the Company. Because 9 10 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, 11 attendance at management and Board meetings and committees thereof and via reports and 12 other information provided to him in connection therewith, he knew adverse non-public 13 14 information about the business of News Corp, its lack of internal controls and the existence and

15 cover up of the widespread hacking scandal at the Company. 68. Defendant Sir Roderick I. Eddington ("Eddington") is employed by JP Morgan 16 currently and during the 2005 period. Eddington has been a Director of News Corp since 1999, 17 18 and serves as the Chairman of the Board's Audit Committee and as a member of the

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

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

21 and positions at News Corp, his access to internal corporate documents, conversations and 22 connections with other corporate offices and employees, attendance at management and Board 23 meetings and committees thereof an via reports and other information provided to him in

24 connection therewith, he knew the adverse non-public information about the business of News 25 Corp, its lack of internal controls and the existence and cover up of the widespread hacking scandal at the Company. 26 69. Defendant Andrew S.B. Knight ("Knight") has been a Director of the Company

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

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

COMPLAINT IN INTERVENTION

1 parent of News of the World from 1990 to 1995. For the fiscal year ended June 30, 2010, 2 defendant Knight earned $281,690 for his role with the Company. Because of defendant 3 Knight's experience and positions at News Corp, his access to internal corporate documents, 4 conversations and connections with other corporate offices and employees, attendance at 5 6 management and Board meetings and committees thereof and via reports and other information

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

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

9 widespread hacking scandal at the Company. 10 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, 11 2010, defendant Barnes earned $236,000, for his role with the Company. Because of defendant 12 Barnes' experience and positions at News Corp, his access to internal corporate documents, 13 14 conversations and connections with other corporate offices and employees, attendance at management and Board meetings and committees thereof and via reports and other information 15 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 16 Company.

17 71. Defendant Natalie Bancroft ("Bancroft") has been a Director of the Companysince 2007. For the 18 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 19 connections with other corporate offices and employees, attendance at management and Board meetings and committees thereof 20 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 21 widespread hacking scandal at the Company 22 72. Defendant Kenneth E. Cowley ("Cowley") has been a Director of the Company 23 since 1979. Defendant is a member of the Board's Nominating and Corporate Governance

24 Committee. Defendant Cowley served as a senior executive of News Limited, a subsidiary of 25 the Company from 1964 to 1997, including as its Chairman and Chief Executive from 1980 to 26 1997. For the fiscal year ended June 30, 2010, defendant Cowley earned $231,000 for his role 27 with the Company. Because of defendant Cowley's experience and positions at News Corp, hisaccess to internal 28 corporate documents, conversations and connections with other corporate

COMPLAINT IN INTERVENTION

1 offices and employees, attendance at management and Board meetings and committees thereof 2 and via reports and other information provided to him in connection therewith, she knew the 3 adverse non-public information about the business of News Corp, its lack of internal controls 4 and the existence and cover up of the widespread hacking scandal at the Company. 5 6 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 7 Compensation Commitees. For the fiscal year ended June 30, 2010, Dinh earned $258,000 forhis role with the 8 Company. Because of defendant Dinh's experience and positions at News

9 Corp, his access to internal corporate documents, conversations and connections with othercorporate offices and 10 employees, attendance at management and Board meetings and committees thereof and via reports and other information provided to him in connection 11 therewith, he knew adverse non-public information about the business of News Corp, its lack of 12 internal controls and the existence and cover up of the widespread hacking scandal at the Company. 13 74. Defendant John L. Thornton ("Thornton") has been a Director of the Companysince 2004. 14 Defendant Thornton serves as a member of the Board's Nominating and CorporateGovernance and Compensation Committees. Because of defendant Thornton's experience and 15 positions at News Corp, his access to internal corporate documents, conversations and 16 connections with other corporate offices and employees, attendance at management and Boardmeetings and 17 committees thereof and via reports and other information provided to him inconnection therewith, he knew 18 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. 19 75. Defendant Hogan & Lovell Law LLC, HHLAW is conflicted by having fraudulently concealed 20 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 21 counsel for News Corp in this or related State or Federal actions because of such conflict. 22 New Evidence reveals from the May 2012 Leveon Inquiry in the UK that Hogan and Lovell was conducting and leading the BskyB acquisition’s dealings and negotiations with the UK 23 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) 24 25 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 26 Class Action.

27 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. 28

COMPLAINT IN INTERVENTION

1 77. Defendant Christine Varney lobbyist for News Corp and Hogan Lovell now Swarthmore Cravin 2 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 3 appointment, Varney had experience working in both the Private and public sectors. After the election of President Barack Obama, Varney served as 4 Personnel Counsel on the Obama-Biden Transition Project.[9] Before joining the Obama

5 campaign, Varney was a fundraiser for the Hillary Clinton campaign during the 2008 United 6 States Presidential Election.[3] Until her appointment as an Assistant Attorney General, Varney 7 was a partner at the Washington, D.C. law firm Hogan and Hartson, where she led the internet 8 practice group.[1][10] As a lawyer and lobbyist, Varney represented and advised companies on 9 10 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 11 AOL.[11] Other clients included eBay,DoubleClick, The Washington Post Company's Washingtonpost and Newsweek interactive businesses, Dow Jones & Company, AOL, Synopsys, 12 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 13 also oil & gas interests. 14 77. Sharis Arnold Posen, On or around April 2009, Sharis transitioned from Hogan & Lovell into the 15 Antitrust division,

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

17 79. Defendant Mark Hurd. Hurd was CEO of HP a public company from 2005 thru 2010. Hurd was 18 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 19 80. Vinod Khosla 20 81. Khosla Ventures 21 22 82. Samir Kaul

23 83. Amryis 84. Defendant Jim Breyer (“Breyer”) is the largest preferred stock holder of FaceBook, inc. , and 24 serves on the News Corp Board as of October 2011. According to its S1: 25 “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. 26 Defendant serves as head of News Corp Nominating and Governance

27 85. Accel Partners LLC

28 87. Defendant Sheryl Sandberg. According to faceBook’s s1, Sandbegr has:

COMPLAINT IN INTERVENTION

“ seved as Chief Operating Officer since March 2008. From November 2001 to March 2008, 1 Ms. Sandberg served in various positions at Google, Inc., most recently as Vice President, Global Online 2 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 3 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 4 2009. Ms. Sandberg holds an A.B. in economics from Harvard University and an M.B.A. from Harvard Business School.” 5 88. Defendant David A. Ebersman according to the Facebook S1: 6 “ has served as our Chief Financial Officer since September 2009. Prior to joining us, Mr. Ebersman 7 served in various positions at Genentech, Inc., a biotechnology company, including as its Chief Financial Officer 8 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. 9 10 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. 11 91. Washington Post Corporation 12 94. Defendant Alex Voxman of Latham & Watkins Latham & Watkins was conflicted from their role as both Intermix counsel in the very transaction in 13 dispute. In addition, Latham’s Alex Voxman has been Rosenblatt’s corporate attorney and an investor in his 14 business ventures. Voxman’s bio also states he was also involved in, 15 “Representation of Intermix Media in connection with the formation, recapitalization and preferred stock 16 financing of its majority-owned subsidiary MySpace.com and the sale of Intermix/MySpace to News Corp” and 17 “Representation of emand Media in connection withpreferred stock equity financing and its acquisition of 18 eHow.com, BulkRegister.com, Intermix Networks, expertvillage.com, Pluck Corporation and numerous other Internet Media. 19 95. Defendant Ernst & Young LLC 20 96. Defendant RGRD Law LLC 21 97. Defendant Jim Brown, 22 98. Defendant Randall Baron is lead partner for Defendant RGRDLAW 23 . 99. Defendant Darren Robbins 24 101. Defendant Sony 550 LLC 25 102. Defendant SonyMusic Corp., 26 103. Defendant Sony USA Corp (“Sony”). 27 28 104. Defendant Lisa Seligman, C Legal Officer of Sony USA Corp. and Married to

COMPLAINT IN INTERVENTION

103. News Corp’s Joel Klein. Assistant Attorneyy General April 29 and Holder as Deputy Attorney 1 General on June 13, 1997. 105th Congress, they are approved. 2 In 2002-2003, Richard Clark, Special Advisor to the President and Ray Lane. 3 105. Robert Wiesenthal, Chief Financial Officer of Sony Corporation 4 106. Howard Stringer, CEO Sony USA Corporation. 107. Elliot Spitzer, 2004-2005 member of WAVC, Western Association oof Venture Capitalists, 5 along with, “John Muleta, Chief FCC Wiresless Telecommunications Bureau” Robert Klein II, Klein Financing 6 Corporation, Philip Zlikow, Executive Directoor 9/11 Commissions, Eliot Spitzer, New York State Attorney 7 General, Brian Robert, CEO Comcast, “ 8 107. EMI Music Corporation 9 108. Warner Music Corporation 10 109. Arent Fox Law Firm 110. Defendant Answers.com, Inc. 11 12 111. Defendant Joe Klein

13 113. Defendant Andreeson Horowitz LLC

14 115. Defendant Covington Burlington

15 113. 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 16 activities that are described herein- and/or who may have benefitted financially from the

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

18 amend this Verified Complaint to include those other individuals as that information becomes available during the discovery process in this lawsuit. 19 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 20 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 21 other individuals as that information becomes available during the discovery process in this lawsuit.

22 IV - CLASS ACTION ALLEGATIONS 23 23. Plaintiffs bring this action on behalf of themselves and all others similarly situated (the “Class”) 24 pursuant to Federal Rules of Civil Procuedre 23(a), 23(b)(2), and 23(b)(3). The Class is defined as follows: 25 The questions of law or fact common to the Class include but are not limited to: 26 whether the conduct of Defendants violated the Clayton Act, Sherman Act or Cartwright Act, or RICO

27 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; 28 c.hether Defendants’ agreements are void as a matter of law under California 17

COMPLAINT IN INTERVENTION

Business and Professions Code 16600; 1 d.whether the conduct of Defendants violated California Business and 2 Professions Code 17200, et seq.; whether Defendants fraudulently concealed their conduct or obstructed 3 justice.whether Defendants’ conspiracy and associated agreements restrained trade, commerce, or competition for internet acquisitions or search engine commercial agreements.Whether Plaintiffs 4 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 5 Class would have received from Defendants in the absence of the illegal acts, contracts, combinations, and 6 The type and measure of damages suffered by Plaintiffs and the Sub Classes.conspiracy allged herein; Whether 7 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 8 will fairly and adequately represent the interestes of the Class and have no conflict with the interest of the Class.

9 FACTUAL ALLEGATIONS

10 THE HACKING SCANDAL- A Pervasive Scheme

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

12 widespread scheme to eavesdrop on voicemail and other forms of electronic communication inorder to obtain stories for their publications. 13 NewsCorp’s CEO Rupert Murdoch and Janet Nova, the Deputy Group General

14 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 15 to play a key role in ensuring the appropriate corporate governance standards of the company and its subsidiaries.” (Leveson Report 2.41, pg. 106) 16 Most recently, News Corp told the Leveson Inquiry “audits were planned at NI in 17 relation to, inter alia, advertising revenue, circulation revenue, compliance with the UK Bribery Act and NI’s 18 digital media operations”

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

20 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 21 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 22 egregious actions with regard to Milly Dowler, Ms. Brooks did hint at the scandal to come whenshe admitted 23 before the committee that News of the World "paid the police for information inthe past."

24 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 25 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 26 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. 27 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 28 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 18

COMPLAINT IN INTERVENTION

International Group's then executive director and close confidant of defendant Murdoch made similar 1 misrepresentations.News Corp misled the public regarding its internal controls and its failure to properly 2 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. 3 Additionally, the scandal has scuttled the Company's attempted acquisition of BSkyB. 4 NEWS CORPORATION ANTI-RETALIATORY ATTACKS 5 breaches of the Individual Defendants fiduciary duty, abuse of control, gross 6 mismanagement, waste of corporate assets and unjust enrichment, as well as the aiding and abetting thereof, by 7 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 8 violations of Section 1513 (e) and (f) its employees carry out for the financial gain of the overall company.

9 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 10 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 11 conduct.

12 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 13 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 14 Brooks, Les Hinton, Ross Levinsohn, as the top executives.

15 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 16 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 17 for The News Corporation’s defective and broken internal controls and compliance safeguards, Because these Directors have allowed false public filings to mask and hide the 18 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 19 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 20 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 21 legal liabilities and frauds the Officers were allowing including admitting they were

22 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 23 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 24 historically and currently. The Company has admitted in its 14A Proxy Statement filed with the SEC on 25 October 15, 2010 that defendants Murdoch, James Murdoch, Lachlan Murdoch, Chase Carey,David F. DeVoe, 26 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. 27 Additionally, defendants Knight, Dinh,Eddington, Perkins and Thornton lack independence from defendants Murdoch, James 28 Murdocn, Carey, and DeVoe as they are defendants who are not disinterested and/or

COMPLAINT IN INTERVENTION

1 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 2 Committee annually reviews and approves corporate goals and

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

4 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 5 defendants Knight, Dinh, Eddington, Perkins and Thornton incapable of impartially. 6 Defendants face a substantial likelihood of being held liable for breaching their 7 fiduciary duties of loyalty and good faith as alleged herein, and are therefore incapable of disinterestedly and 8 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, 9 Covington Burlington.

10 The principal professional occupation of defendants Murdoch, Carey, James Murdoch and DeVoe is their employment with the Company, pursuant to which they received significant 11 compensation from the Company .

12 26. The entire News Corp Board and senior management participated in the wrongs 13 complained of herein. For the reasons described herein, New Corp's directors are not 14 disinterested or independent. Pursuant to their specific duties as Board members, each was 15 charged with the management of the Company and the conduct of its business affairs. Each of 16 the above referenced defendants breached the fiduciary duties they owed to News Corp and its 17 shareholders in that they failed to prevent and correct the dissemination of the Company's false 18 and misleading statements. Thus, the News Corp Board cannot exercise independent objective 19 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 20 securities laws; Defendants Murdoch and DeVoe certified certain of News Corp's SEC filings. 21 Amd face a substantial likelihood of liability for breach of fiduciary duties owed to News Corp; 22 The Individual Defendants concealed the true scope of the hacking scandal and

23 Petitioner’s whistleblower evidence and News Corporation’s legal liabilities during the Relevant

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

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

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

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

28 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

COMPLAINT IN INTERVENTION

members of News Corp's Audit Committee during the RelevantPeriod. 1 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 2 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 3 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 4 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 5 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 6 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 7 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 8 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 9 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." 10 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 11 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 12 liability on their part. Each of the key officers and directors knew of and/or directly 13 benefited from the wrongdoing complained of herein thereby rendering demand futile; The Individual Defendants approved and/or permitted the wrongs alleged herein 14 to have occurred and participated in efforts to conceal or disguise those wrongs from News Corp's stockholders 15 and the public or recklessly and/or negligently disregarded the wrongs complained of herein, and are therefore not disinterested parties; 16 All of News Corp's directors have extensive business and personal entanglements, 17 which they will not do, thereby excusing demand; The acts complained of constitute violations of the fiduciary duties owed by News Corp's 18 officers and directors and these acts are incapable of ratification; Each of the Individual Defendants authorized and/or permitted the false 19 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 20 statements and are principal beneficiaries of the wrongdoing alleged herein,.

21 GOOGLE-AUC-NONCOMPETE (‘GAN’) “association-in-fact “enterprise, 22 Each of the Defendants at all times relevant to this action, qualify as a RICO 23 “person” within the meaning of 18 U.S.C. §§ 1961(3) and 1962(c).

24 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 & 25 Young, Connolly Law Firm, Google, TimeWarner/AOL, New News, 21st Century Fox, Allen & Co., Kleiner Perkins Caufield, Hogan Lovell, Latham & Watkins, Orrick Herrington, VantagePoint Partners, RedPoint, 26 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 & 27 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, 28 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

COMPLAINT IN INTERVENTION

Wiesenthal, Barry Diller, Sheryl Sandberg, Mark Andreeson, Mark Hurd, Dan Evans, Rebekah Wade Brooks, 1 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 2 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 3 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 4 enable pursuit of the Enterprise’s 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 5 “person” under the civil RICO statute because each knowingly and fraudulently conducted and participated in the conduct, the management and the operation of the Enterprise’s affairs, directly or indirectly, through a 6 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 7 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 8 maximize its gain and profit through a pattern and practice of misrepresentation and concealment of the systematic decisions that placed financial goals above 9 safety considerations, that was conducted in violation of applicable laws and regulations, that made such 10 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 11 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 12 injured in their businesses and property.

13 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 14 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 15 investing control or non control equity stakes in new internet technology, advertising, or marketing companies, offering for sale intellectual property drivencontent thru pay 16 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 17 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 18 This RICO & Antitrust Class Action Complaint makes allegations of, and places Defendants on notice that 19 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 20 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 Defendant’s culpable knowledge, fraudulent conduct, 21 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 22 the Federal Rules of Civil Procedure, including, as appropriate, Rule 23(a)(1)-(4);

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

24 PREDICATE ACTS & THE PATTERN OF RACKETEERING ACTIVITY Defendants and Enteprise engaged in a fraudulent scheme to defraud shareholders of its acquisition targets, 25 competitors in online advertising and search markets, victims of criminal wiretap violations, phone hacking, and 26 bribery in the US and UK, employees working for defendants, petitioner, and the public. 27 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 28 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

COMPLAINT IN INTERVENTION

matters, in violation of 18 U.S.C. § 1341, or aided and abetted in such criminal acts, as previously described, 1 under 18 U.S.C. § 2. For the purpose of devising and carrying out their schemes and artifice to defraud the 2 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 3 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. 4 The Pattern Of Racketeering Activity 5 Defendants’s 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 6 acts are related and continuous. Each predicate act had the same or similar purpose: the predicate acts 7 involved material misrepresentations, omissions and concealment in a scheme to defraud the regulators into believing Defendants would conduct operations legally.Included in these predicate 8 acts are those situations where Defendants communicated by mail, interstate wire or interstate carrier giving approval for Defendant’s various actions. This pattern of racketeering is separate from and distinct 9 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 10 individual claims exist to allege that a wrongful predicate act, retaliation under 18 U.S.C. § 1513(e), 11 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 12 disseminating defamatory statements to the press. pattern of racketeering activity under § 1962(c).

13 Relatedness And Continuity Of The Racketeering Activity

14 All of the predicate acts alleged above are related to the scheme of Defendants and Enterprise – 15 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 16 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 17 Enterprise conduct business.

18 As a proximate result of the pattern of racketeering activity and RICO violations engaged in by Defendants, 19 Plaintiffs and the Class members have suffered injury to their business and property.

20 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 21 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 22 enterprise, although not a legal entity . . . ." 18 U.S.C. § 1961(4) (1982). 23 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, 24 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 25 racketeering activity, that is, through the commission of two or more racketeering acts set forth 26 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 27 racketeering activity, as defined by 18 U.S.C. §§ 1961(1)(B) and 1961(5) and 1962(c), includes:

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

COMPLAINT IN INTERVENTION

b. Multiple instances of wire fraud in violation of 18 U.S.C. § 1343. 1 2 c. Multiple instances of violation of 18 U.S.C. § 1512 (relating to tampering with a witness, victim, or an informant) 3 d. Multiple instances of violation of 18 U.S.C. § 1519 (relating to destruction, alteration, or falsification of 4 records in Federal investigation and bankruptcy)

5 e. Multiple instances of violation of 18 U.S.C. § 1513 (relating to retaliating against a witness,victim, or an 6 informant

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

8 18 U.S.C. § 1028 (relating to fraud and related activity in connection with identification documents)

9 18 U.S.C. § 1029 (relating to fraud and related activity in connection with access devices) 10 18 U.S.C. § 1084 (relating to the transmission of gambling information) 11 18 U.S.C. § 1344 (relating to financial institution fraud) 12 18 U.S.C. § 1503 (relating to obstruction of justice) 13 14 18 U.S.C. § 1510 (relating to obstruction of criminal investigations)

15 18 U.S.C. § 1511 (relating to the obstruction of State or local law enforcement)

16 18 U.S.C. § 1512 (relating to tampering with a witness, victim, or an informant)

17 18 U.S.C. § 1513 (relating to retailiating against a witness, victim, or an informant) 18 18 U.S.C. § 1546 (relating to fraud and misuse of visas, permits, and other documents) 19 18 U.S.C. § 1951 (relating to interference with commerce, robbery, or extortion) 20 18 U.S.C. § 1952 (relating to to racketeering) 21 22 18 U.S.C. § 1956 (relating to the laundering of monetary instruments)

23 18 U.S.C. § 1957 (relating to engaging in monetary transactionsin property derived from specified unlawful activity) 24 25 18 U.S.C. § 1960 (relating to illegal money transmitters)

26 18 U.S.C. § 2314 (relating to interstate transportation of stolen property)

27 18 U.S.C. § 2315 (relating to

28 18 U.S.C. § 2319A (relating to ybaytgiruzed fixation of and trafficking in sound recordings)

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1 29 U.S.C. § 186 (dealing with restrictions payments and loans to labor organizations) 2 (F) any act which is indictable under the Immigration and Nationality Act, section 274 (relating to bringing in 3 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 4 section of such Act was committd for the purpose of financial gain, or

5 18 U.S.C. § 1346 (relating to bribery)and are based on the following facts and examples of these predicate acts 6 (but are not limited to as upon information and belief, numerous others will be identified in the process of discovery): 7 Therefore, a recent decision Federal Court must take note of Is precedential decision that found News Corp and 8 Jobs negotiated Directly 2010-2011 and were found in 2013 by DOJ guilty of Antitrust violations. So Campbell worked with News Corp directly 9 For example and spoke and dealt with Murdoch who is on the Email correspondence meetings that encompass 10 the anti-competitive Agreements Judge Koh already ruled several other companies besideNews Corp were guilty of, and these companies admitted the unlawfulAgreements existed. 11 The Jury will find the News Corp privacy violations of Subclass CAre identical or close to identical to the types 12 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 13 other News Corp employeesin September 2013 for criminal offenses. Therefore, this complaint 14 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, 15 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 16 being able to apply to Sandberg, Schmidt, Page, Murdoch, Campbell, Doerr, Perkins, whose character and level of liability in the privacy violations will need 17 be judged to be honest mistake of busy executives with large Compensation packages will be applied by a Jury. 18 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 19 Enterprise or Google’sAiding and abetting the unlawful actions of one or more public companies Or private including sponsorship of Markel Foundation between at least 2005-2013. 20 Therefore, an additional RICO and Antitrust conspiracy formed around existing commercial online advertising 21 and this conspiracy included: (1) agreements allowing AskJeeves Director Jeff Yang to purchase 30% of 22 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, 23 and other defendants to collude to gain economic benefits by A) Defendants, ongoing, systematic and 24 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. 25 rigging the sales of competing internet assets at below fair market prices ii) benefitting from 26 profits generated from illegal phone hacking iii) benefitting and trading confidential information received from the illegal phone hacking iv) covering up the illegal activity 27 using their media properties iv) extorting silence from victims and/or government 28 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 1 affiliated lobby qualified law firms, and other agency intermediators, v) offering ad 2 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. 3 4. Without intervention, plaintiff will be further harmed. The intervention is 4 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 5 meetings and communications since late 2003 thru May 1, 2014 between : i) 6 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) 7 fabricating prior sale 8 of MySpace stock with backdated agreement in November 2004 and ii) delaying closing 9 of a competitive EUNI MySpace search engine auction for a new commercial search 10 engine agreement in the months leading up to News Corporation acquiring 100% of 11 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 12 audience of MySpace, significantly growing its share of online search engine advertising while shrinking share of main rival #2 Yahoo; (4) agreements allowing 13 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 14 audience to seed new online assets for years to come, while preventing a competitive 15 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 16 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 17 obligations Boards and executives of those companies had between 2005-2010.

18 The intended and actual effect of these agreements was to fix and suppress 19 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 20 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 21 their employees, Defendants’ senior executives entered into an interconnected web of express agreements to eliminate competition among them for skilled labor. This 22 conspiracy included: (1) agreements not to recruit each other’s employees; (2) 23 agreements to notify each other when making an offer to another’s employee; and (3) agreements that, when offering a position to another company’s employee, neither company would counteroffer 24 above the initial offer.

25 II. JURISDICTION AND VENUE

26 This Court has jurisdiction over the subject matter of this action pursuant to 27 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). 28 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 1 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), 2 §12 of the Clayton Act, 15 U.S.C. §22, and 28 U.S.C. §1391(b), (c), and (d)

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

4 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- 5 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 6 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 7 The bold line the document further states,

8 “Due to our partnerships, the following companies (and by association, their subsidiaries listed in Appendix B) fall under the “Sensitive” companies list:” 9 “Parent Companies:” lists “AOL, Inc.” and “Ask.com”Page 9-10 of Document 428-10, disclosed 10 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 11 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”. 12 i)July 17, 2005 at 4:13AM, Lang emails Sheehan, Subject: 'Purchase Agreement' and states, 13 "On the issues, let's close on the remaining ones in a fair and reasonable way-- so we can build out relationship. 14 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 15 Peter gave on the upside protection in the event of a Fox counter - to ask for profit if we hose is a stretch 16 Please appreciate how our Management may feel in this scenario, and we believe the break up is really not relevant to this issue. 17 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. 18 Andy, I know we are very eager to get this done. Let do it so both sides can feel good and move forward aon 19 our longer-term relationship." 20 New Evidence includes, Resignation and Report on Les Hinton’s involvement in CEO’s confessed “Coverup” . 21 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 22 the value of the September 2005 acquisition of MySpace and to defame, harass, and violate Section 1533 of Dodd Frank against Petitioner. 23 24 2009 COMPUTER INTRUSION:

25 Retaliatory Attack of the RICO Defendant Law Firms and Partners 199. Defendant’s leverage their relationship with acquiror to create defamatory and 26 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: 27 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 28 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 1 2009, NewsCo uses Hinton in series of schemes to obstruct justice and coverup the legal Facts that would give 2 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 3 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. 4 Petitioner individually pleads an unjust enrichment claim against all Defendants, and a claim of contractual tortious interference. 5 It was part of the RICO Defendants’ scheme to use the United States Postal 6 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, 7 and 2012 And omit and conceal the errors contained in violation of 18 U.S.C. § 1341.

8 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 9 Federal Security fraud Class Action Brown v. Brewer case. Defendants induced RGRD and Randall Baron to sign May 2009 10 “Joint Stipulation” to eliminate role, evidence and testimony of Petitioner, days before Petitioner 11 was set to fulfill an agreement to be deposed and provide such information to the Defendants as 12 part of Discovery.RGRD was reckless because at the time they struck “agreement” to remove 13 Petitioner on or around May 1, 2009,RGRD could not predict if in future the lay witness would

14 be needed. It does not appear that RGRD ever read the Julia Anwin “Stealing MySpace” book before making a terminal decision to bet the Class’s legal asset future on Acquiror’s version of the story uncontested. It appears 15 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 Acquiror’s employee and RGRD both read it cover to cover, 16 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 17 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. 18 MySpace Search was omitted from consideration by Class’s damage experts. RGRD had poisoned the Class’s 19 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 20 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 21 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 22 have used Rule 701 fact witness who is petitioner, instead of righting their wrong, RGRD continues down path of further transgressions. 23 Additional act of fraudulent concealment is part of scheme by defendants tied 24 to 2009 Angwin published book that uses fabricated documents to support critical contentions. 25 altering, destroying, mutilating, or concealing a document with the intent to obstruct justice in violation of 18 U.S.C. § 1512(c)(1); 26 Plan of RICO Defendant Edell, News Corp, Hinton, Angwin, Hogan Lovell launched in 2009 as Edell works with News Corporation’s Les Hinton 27 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 28 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 1 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 2 Defendants plugged in Angwin’s false facts and testimony while using “Stealing MySpace” as an uncontested source of facts to corrupt the Class’s case And damage/expert reports. 3 RICO Defendants destroyed the following evidence and have kept it from being submitted into Federal Court 4 including blocking Petitioner testimony from”appearing” which damages Petitioner and violates Section 1512(d) which criminalizes the actions of 5 “[w]hoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person 6 from” appearing before an official proceeding, law enforcement officer, or United States judge.

7 Angwin fraudulently conceals evidence of Edell’s true work experience and back ground and his violation of SEC rules in 2003 and 2004. Rico Defendants 8 conceal their knowledge of this scheme thru the March 19, 2012 Approval of the Federal Brown

9 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 10 An Inadequate consideration for the settlement and failure to assert more valuable claims and evidence into the 11 Court prior to approving settlement. Angwin, Hinton, News Corporation, Hogan Lovell, RGRD, and RICO Defendants violate in violation of 18 12 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 13 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 14 record and financial history as difficult as possible. Edell in the section where individuals are supposed to declare if any 15 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, 16 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. 17 RICO Defendants , Angwin, News Corporation, Hinton, Murdoch and Orrick Conceal the false revised BIO of Edell filed in July 2004 SEC filings: 18 "Mr. Edell was the Chief Executive Officer of Showorks Entertainment Group. Inc., a Delaware corporation that 19 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." 20 Based on information and belief, Defendant’s scheme entailed Creating a 21 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 22 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 Edell’s true work 23 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 Defendant’s illegal tampering with a witness 24 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 25 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 26 Evidence in Federal Court even though Rico defendants knew this was tampering with a witness 27 and obstruction of justice and was removing and destroying evidence that would have inurred to 28 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 1 the following email not submitted by Class Counsel RGRD into the record as an Anti-retaliatory attack on Petitioner in May 2009. 2 Defendants have omitted key discovery previously that caused key evidence and 3 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 4 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 5 1191 (7th Cir. 1970), cert. den., 400 U.S. 821 (1970) (self-concealing conspiracy demonstrates fraudulent concealment) 6 2009- a Predicate Act is the publishing of Hinton’s false facts 7 into U.S., Europe and around the world thru “Stealing MySpace” 8 employee of News Corp published and generated revenue and income for herself 9 in addition to the salary received by News Corporation yearly thru her employment at that company between 10 2007-2012.Angwin’s book summarizes 10% shareholder/Viacom bid by omitting any mention of Viacom and 11 misleadingstocholders, “he couldn’t muster enough support, and a few days later, the News Corp., deal was 12 approved.”And “Once again Greenspan took his fight for Intermix to court.” New Evidence includes, Resignation and Report on Les Hinton’s involvement in 13 CEO’s confessed “Coverup” . Hinton reported up to CEO from 2008-2011, the senior executive 14 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 15 and to defame, harass, and violate Section 1533 of Dodd Frank against Petitioner. New Evidence in May 2012 of “Fabrication” a regular occurrence, 16 During October 2010, RGRD was again disloyal by working with defendants to i) keep MySpace Founder 17 fromappearing at settlement meeting ii) Then facilitating joint motion to ban containing facts RGRD knew to be 18 false.In December 2010, RGRD was again disloyal by changing the Class Certification to reduce the # of eligibleshares. Another sign of class counsel RGRD’s lack of adequate representation is display of a generally 19 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 20 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 21 to preserve the same definition from being changed by defendants motion. 22 Based upon information and belief, defendants bribed and extorted Class 23 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 24 while at the same time committing fraud against the shareholders and breached

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

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

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

28 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 1 company. Most importantly, News Corporation had been able to use the audience

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

3 or major stakes in such as i.Hulo.com and IGN gaming network.Digital Ad Network Companies launched, mobile new entities launched 4 v.most or all of the Audience that exists for 100% of its current

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

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

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

8 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 9 Spread and recognize thru other subsidiaries relationships with the same RICO

10 Defendants News Corporation further recognized that FaceBook, Inc. could

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

12 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 13 DefendantJim Brown refused to submit into Federal Court prior to the Settlement Effort began in

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

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

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

17 2006.However, RGRD’s 100% position to date in Federal Court during period of

18 2010-2012 is opposite of fact in part (i).

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

20 Being fair and equitable relies on RGRD and Baron’s validity and statements taken

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

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

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

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

25 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, 26 plus fiduciary duty to Petitioner thru violating RICO predicate acts to underwrite the damages 27 and harassment to Petitioner since 2009 thru present . and its statements consist 28 Of claims that no agreement was ever entered into with Petitioner despite clear evidence

COMPLAINT IN INTERVENTION

RGRD has not disputed. Above Defendants violated further 18 U.S.C. § 1512 (relating to 1 tampering with a witness, victim, or an informant) 18 U.S.C. § 1513 (relating to retaliating 2 against a witness,victim, or an informant) and 18 U.S.C. § 1519 (relating to destruction,

3 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 4 that would have provided new facts and information and claims not raised or in State 5 proceeding and that would have the effect of voiding the defendant’s motion. 6 At end of 2010 RGRD launches a new scheme to create an economic ‘kick back’ 7 for defendant. RGRD then argues June 2009 motion that the changed wording was not a 8 mistake. That RGRD gives this economic asset to defendants for no disclosed consideration and 9 RICO Defendants file false Summary Judgement facts to obstruct justice 10 i.Summary Judgement Fact #1 is fals and Defendants violate Document Destruction Under § 1519c Section, 11 Aguilar thus makes clear that “nexus” requires more than mere knowledge of a pending proceeding.187 262 See 12 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 13 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 14 Court thru clear breach of fiduciary duty of Class Counsel and violation of Section Violation of Section 1519. 15 16 Plaintiff was directly injured by the RICO Defendants’ acts of racketeering activity.

17 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. 18 Case 2:0603731 Judge George King. Central district Los Angeles.

19 NewsCorp & creator and/or aider and abettor of causing to be Published on or about April 2005, “Stealing MySpace”, 20 Using the resources and John Doe 1-10 of the Dow Jones Company Purchased in 2007, and other assets where Hinton lived and worked 21 During and thru the time he was employed by Dow Jones after 22 Resigning as CEO of NI.

23 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: 24 “Hinton, who then ran NI, which is owned by News Corp, spoke to the Commons 25 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 26 "absolutelyconvinced" the practice was limited to a single reporter.”

27 Describing the News International Investigation into the incident The GuardianReported: 28 “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 1 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, 2 managing partner of Harbottle & Lewis, wrote to Chapman to say that they had not found anything irregular in their examination of the internal emails.” 3 The letter, which was presented to the select committee, concluded: 4 "We did not find anything in those emails which appeared to us to be reasonable evidence that Clive 5 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 6 illegal procedures." News International performed the investigation prior to Mr. Hinton's providing 7 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 8 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 9 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 10 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 11 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 12 one reporter.

13 It was part of the RICO Defendants’ scheme to interfere with Plaintiff’s livelihood by disseminating defamatory statements about Plaintiff to the public through various media outlets in retaliation for providing truthful 14 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). 15 It was part of the RICO Defendants’ scheme to conspire to interfere with Plaintiff’s livelihood by disseminating 16 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’ 17 scheme, in violation of 18 U.S.C. § 1513(e) and 1513(f), including:

18 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 19 from appearing before Federal Judge. Orrick knew the motion to ban the petitioner could not be true unless

20 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 21 with MySpace Parent Company executive Chris DeWolfe. Orrick and DeWolfe work together in 2004 and 2005 22 to document a fabricated sale of equity of MySpace at rock bottom prices for DeWolfe.

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

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

25 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. 26 In 2010, Baron and News Corporation and Hogan & Lovell, and Stone, and RGRD 27 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 28 Court via email to Petitioner’s then lawyer Mr. Lawrence.

COMPLAINT IN INTERVENTION

Above Defendants violated further 18 U.S.C. § 1512 (relating to 1 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, 2 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 3 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 defendant’s motion. 4 RGRD, Baron, Wissbroecker violated their fiduciary duty to Petitioner as well as aiding and abetting above violations of other Defendants. 5 UK Leveson Report and Testimony of News Corporation employees 6 UK Members of Parliament 11th edition report on phone hacking, News International and ruling CEO Murdoch 7 “Unfit” based on his and Les Hinton testimony over server years

8 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 9 Summary Judgement decision in June 2010.

10 In 2011 Defendants lied to Federal Court and induced Lead Representative and Randall Baron’s RGRD Law firm to also file false statements and conceal evidence from Court. 11 Such acts harmed Petitioner and Class of Federal Shareholders. Defendants efforts and scheme to 12 coverup Search was part of the same effort to Coverup and fraudulently conceal the June 2005 13 Whistleblower Notification, the Fabricated Director Edell, the Fabricated MySpace Purchase 14 Agreement released by issuer in November 2004 MySpace, and the violation of Clayon Act for 15 having Interlocking Directors on the Issuer and MySpace Board conflicted by serving as 16 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 17 partner. RICO Defendants destroy the following evidence and keeps it from being submitted into Federal Court including blocking Petitioner testimony from”appearing” which damages Petitioner and violates Section 18 1512(d) RGRD knew petitioner was valuable Federal 701 lay witness for the Class in

19 April 2009, October 2010, and May 2011 as RGRD filed pleadings which aided and abetted defendant’s efforts to cover up & obstruct new evidence from entering this case. RGRD was notified by petitioner of new evidence 20 on multiple occasions such as in July 2010 regarding: i) Heckman’s admissions in Angwin book about the Searchauction timing and economics of January 21 2006 Microsoft bid ii) value of missing MySpace Search. Rule 701 allows for the admission of

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

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

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

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

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

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

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

COMPLAINT IN INTERVENTION

available.lying publicly to attempt to fraudulently conceal facts. First 1 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. 2 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 3 financial statements. A number of the anti-retaliatory attacks Petitioner seeks relief from are caused by 4 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 Myspace’s 5 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: 6 2012

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

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

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

10 acts by RGRD and News Corporation.

11 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 12 defendants obstructed justice and fraudulently concealed antitrust claims, additional security fraud, RICO claims, and violations of Federal Wiretap statue. 13 In 2012 after shareholders including Petitioner discovered yet newevidence of obstruction of justice, 14 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 15 by Defendants including News Corporation, HHLAW, Ross Levinsohn, and Rupert Murdoch

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

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

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

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

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

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

22 2005, and the RICO Defendants’ illegal concealment thereof, in violation of 18 U.S.C. § 1519.Defendants benefitted from fraudulently concealing key State discovery 23 email evidence and the JP Morgan Valuation Report showing a $1.4 Billion Valuation for MySpace was known 24 as of July 16, 2005 or earlier. evidence of bribery, and email discovery in the State Class Action and Petitioner’s action related to News Corp’s acquisition of 25 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 26 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 27 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 28 federal investigation.Moreover, § 1519 requires only that the defendant engage in document destruction “in. . . contemplation of” an official proceeding. 35

COMPLAINT IN INTERVENTION

1 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 2 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 3 Coverup occurred and CEO admits in April 2012 that the defective internal controls of News Corp allowed such Coverup. 4 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 5 layers” down inside News Corporation. An 18 U.S.C. § 2511 violation includes a claim of damages suffered by 6 7 Victim. If any of Class members can prove or show the Court damage has been

8 received by a Class Member from an action caused or aided and abetted by RGRDLaw and/or Jim Brown then inadequate representation is proven. 9 Violations of law by Defendants and RGRDLaw ofDodd Frank 10 The court erred in overlooking allegations in Intervener’s pleadings 11 When making ruling March 19, 2012. The Court first failed to consider the Valid 12 Federal New Claims under Dodd Frank claims being put into Court for disposition in the

13 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- 14 Retaliatory Damages and Relief that victims have De Novo right to 15 The Court never responded or ruled that Mr. Nelson nor Mr. Greenspan nor 16 Dr. Bordow is not eligable to receive or file claims for relief under Dodd Frank Anti- 17 Retaliatory statues a Jury Hearing in Federal Court for disposition of such claims and for relief.Additional 18 overlooked allegation by the Court was the claim and evidence 19 in Mr. Nelson’s pro se Judicial Notice Motion on March 5, 2012. Providing evidence of a 2nd new Dodd Frank 20 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 21 from court.Breach of Duty of Candor and inadequate representation by RGRDLaw was an additional allegation overlooked by Court. 22 23 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 24 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 25 schemes, frauds, or losses caused by breaches of fiduciary duty or violations of the duty of candor. allegation

26 FIRST CLAIM FOR RELIEF

27 (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 28

COMPLAINT IN INTERVENTION

The Stored Communications Act (the “SCA”) broadly defines an “electronic 1 communication” as “any transfer of signs, signals, writing, images, sounds, data, or

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

3 electromagnetic, phottoelectronic or photooptical system that affects interstate or

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

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

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

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

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

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

10 facilities for the transmission of interstate or foreign communications or

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

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

13 storage of a wire or electronic communication incidental to the electronic

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

15 communication service for purposes of backup protection of such communication.”

16 178 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 17 to their recipient.Congress enacted the SCA to prevent “unauthorized persons deliberately gaining 18 access to, and sometimes tampering with, electronic or wire communications that 19 are not intended to be available to the public.” Senate Report No. 99-541, S. REP. 99- 20 541, 35, 1986 U.S.C.C.A.N. 355, 3589. 21 45. As such, the SCA mandates, among other thing, that it is unlawful for a person to 22 obtain access without authorization to stored communications, including communications sent to and 23 temporarily stored on a cellular telephone’s voice-mail system. 18 U.S.C. 2701(a).

24 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 25 through which an electronic communication service is provided.” (18 U.S.C. 26 2701(a)) by intentionally accessing Plaintiff’s voicemails without authorization and 27 obtaining and/or altering authorized access to a wire or electronic communication while in electronic storage by collecting and accessing temporarily stored voicemails or 28 those maintained for purposes of backup protection. This occurred while Plaintiff or

COMPLAINT IN INTERVENTION

Plaintiff’s relatives and/or Spouse visited and traveled in or through Los Angeles in 1 2004 and 2005 Defendants had actual knowledge of, participated in, directed 2 and/or approved of, and benefitted from, this practice. Additionally, Defendants violated 18 U.S.C. 2701(a)(2) 3 because they intentionally exceeded or had no authorization to access Plaintiff’s communications 4 and obtained, altered, or prevented authorized access to a wire or electronic 5 communication while in electronic storage by interfering with Plaintiff’s 6 temporarily stored voicemails, as disclosed hereinabove. Defendants had actual 7 knowledge of, participated in, directed and/or approved of, and benefitted from, this 8 practice.As a result of Defendants’ conduct described herein, and their violation of 2701, 9 Plaintiff has suffered injuries and seeks an award of the maximum staturoty actual damages, including profits made by Defendants, plus reasonable attorneys’ fees and 10 costs pursuant to 18 U.S.C. 2707. SECOND CLAIM FOR RELIEF 11 (Violation of Wiretap Act, 18 U.S.C. 2510, 2511 & 2520 – All Defendants) 12

13 49. Plaintiff repeats and realleges each and every allegation contained herein 18 U.S.C. § 2511 provides, in relevant part, that 14 any person who intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or 15 having reason to know that the information was obtained through the interception

16 of a wire, oral, or electronic communication in violation of this subsection; The Wiretap Act generally prohibits the “interception” of “wire,oral,or electronic 17 communications.” 18 U.S.C. 2511(1)

18 The Wiretap Act provides a private right of action against any person who “intentionally intercepts, endeavors to intercept, or procures any other person to 19 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 20 added)18 U.S.C. 2511(1)(a), or who “intentionally uses, or endeavors to use, the 21 contents of any wire, oral, or electronic communication,knowing or having reason to 22 know that the information was obtained through the interception of a wire, oral, or

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

24 discloses, or endeavors to disclose, to any other person the contents…”). The statue prohibits “interceptions” of electronic communications and defines 25 “intercept” as “the aural or other acquisition of the content s of any wire, electronic, 26 or oral communication through the use of any electronic, mechanical, or other 27 device.” 2510(4). The “contents” of a communication, in turn, are defined in the 28 statues as “any information concerning the substance, purport, or meaning of that

COMPLAINT IN INTERVENTION

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

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

3 electromagnetic, photoelectronic or photooptical system that affects interstate or

4 foreign commerce,” with certain exceptions, qualifies as an “electronic

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

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

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

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

9 communications” and used or disclosed their contents, by contemporaneously

10 hacking into Plaintiff’s cellular telephone system. Defendants captured and obtained

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

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

13 them in violation of the Wiretap Act. This occurred while Plaintiff or Plaintiff’s

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

15 2005 Defendants had actual knowledge of, participated in, directed and/or

16 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 17 of actual damages and any profits made by Defendants due to their violations of 18

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, 19 pursuant to 18 U.S.C. 2520.

20 SUB-CLASS B: NELSON, MEMBER FEDERAL JUDGE KING PLAINTIFF CLASS SUB-CLASS C: Employees or opportunity seekers who interviewed 21 With at least 1 officer THIRD CLAIM FOR RELIEF 22 (Violation of Article I, Section I Of The California State Constitution – All Defendants) 23 Plaintiff repeats and realleges each and every allegation contained herein The aforementioned wrongful actions 24 and practices of Defendants violated Plaintiff’s rights under Article I, Section 1 of the California State Constitution which provides: 25 “All people are by nature free and independent and have inalienable rights. Among these are enjoying and 26 defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety, happiness and privacy.” (Emphasis added.) 27 58. The California State Constitution was amended to add the constitutional right to 28 privacy following a 1972 ballot initiative. The California Supreme Court has since

COMPLAINT IN INTERVENTION

1 suggested the State Constitution’s enumerated right to privacy is sometimes greater

2 than the United States Constitution’s unenumerated right to privacy.

3 SUB CLASS A: EUNICE/UK

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

5 and listened to voice-mail messages intended solely for Plaintiff’s private cellular

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

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

8 intercept, access and listen to them. Defendants’ actions rendered Plaintiff unable to retrieve voice-mail messages intended solely for him, which were on Plaintiff’s cellular telephone system. 9 61. Defendants published information, including articles in The Sun and News Of 10 The World, using sensitive, private and confidential information intended solely for 11 Plaintiff. Defendants’ unauthorized interceptions of Plaintiff\’s voice-mail messages were 12 an egregious breach of well-established social norms that recognize the need to 13 maximize individual control over the dissemination and use of such information in 14 order to prevent unjustified embarrassment and indignity, and violated Plaintiff’s 15 reasonable expectation of privacy.As a result of Defendants’ actions, Plaintiff was unable to make intimate 16 decisions or conduct personal activities relating to both his family and career 17 without observation, intrusion, or interference.Defendants’ actions violated Plaintiff’s specific, legally protected 18 privacy interest and reasonable expectation of privacy through conduct that was sufficiently

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

20 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 21 specific damages. Pursuant to 28 U.S.C. 1367, this Court has pendent or supplemental jurisdiction to hear and adjudicate such claims. 22 FOURTH CLAIM FOR RELIEF 23 (Violation of California Penal Code 630, 631, 632, 632.7 & 637(2)(a) – All Defendants) 24 . Plaintiff repeats and realleges each and every allegation contained herein. 25 The actions and practices of Defendants violated Plaintiff’s 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 26 protect private communications in an era of ever improving technology. California Penal Code 630 begins as follows: 27 “The Legislature hereby declares that advances in science and technology have led to the development of 28 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

COMPLAINT IN INTERVENTION

created a serious threat to the free exercise of personal liberties and cannot be tolerated in a free and 1 civilized society.“

2 CA Statue 637.2 states,

3 “(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: 4 (1) Five thousand dollars ($5,000). 5 (2) Three times the amount of actual damages, if any, sustained by the plaintiff.” 6 California Penal Code 631(a) defines the acts that violate the law as follows: 7 “Any person who, by means of any machine, instrument, or contrivance, or in any other manner, 8 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 9 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 10 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 11 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, 12 or cause to be done any of the acts or things mentioned above in this section, “

13 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 14 hacked Plaintiff’s voice-mail messages on his cellular telephone system or directed, caused, permitted, and/or conspired for Plaintiff’s cellular telephone voice-mail to be intercepted, interfered with, accessed and hacked. 15 Defendants intentionally made unauthorized connections to the voice-mail on Plaintiff’s cellular telephone system without the consent of Plaintiff or any 16 other party to the voice-mail communications. Defendants also made unauthorized attempts to learn the contents of 17 confidential communications contained in the voice-Mail of Plaintiff’s cellular telephone system. Defendants used or attempted to use and/or communicated 18 information that was obtained through such activities. Defendants’ actions were

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

20 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 21 who, intentionally and without the consent of all parties to a confidential 22 communication, by means of any electronic amplifying or recording device, 23 eavesdrops upon or records the confidential communication, whether the 24 communication is carried on among the parties in the presence of one another or by 25 means of a telegraph, telephone, or other device, except a radio, “ 26 California Penal Code 632 (b) defines “person” in this context as including any “individual, business 27 association, partnership, corporation, limited liability company….”

28 SUBCLASS C: HiTech employees

COMPLAINT IN INTERVENTION

California Penal Code 632(c) defines the term "confidential communication" to include “any communication 1 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 2 would not be an expectation of privacy.

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

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

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

6 intentional recordation of, a communication transmitted between two cellular radio

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

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

9 and a cellular radio telephone…“

10 While Plaintiff traveled thru or visited California in 2004 and 2005, Defendants and/or their agents, employees or representatives intentionally, and 11 without the consent of all parties to the communications, used an electronic dvice 12 to access and to record Plaintiff’s voice-mail messages on his cellular telephone 13 system, including voice-mail messages generated by calls from other cellular phones 14 and landlines. Defendants then used or attempted to use the information obtained in 15 this manner. The voice-mail messages left and stored on Plaintiff’s 16 cellular telephone system were private and confidential because at least 17 one party to the communication reasonably expected the communication 18 to be limited to the parties. Defendants’ actions were thus in violation of

19 631, 632, and 632.7 of the California Penal Code. Defendants had actual

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

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

22 irreparable harm in his personal and professional life. Plaintiff’s actual damages include but are not limited to, emotional distress, anxiety, embarrassment, 23 humiliation, the deterioration of family relationships, and the fear of, or actual loss 24 of, professional credibility and integrity. Defendants’ actions were a substantial 25 factor in causing this harm. Under 637.2(a) of the California Penal Code, “any person 26 who has been injured by a violation of this chapter may bring an action against the

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

28 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 42

COMPLAINT IN INTERVENTION

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

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

3 property for the purpose of committing any

4 Every person not a party to a telegraphic or telephonic communication

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

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

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

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

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

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

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

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

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

14 such message, or who fraudulently represents another person and thereby procures to be delivered to himself any telegraphic or telephonic message addressed to such 15 other person, with the intent to use, destroy, or detain the same from the person 16 entitled to receive such message, is punishable as provided in Section 637.” 17 confidential communications sent or delivered by one or more of foreclosing defendants to Plaintiff related to 18 the subject of Plaintiff’s mortgage and/or the December 2012 foreclosure public sale. Defendant Ray hid such

19 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 20 violations.

21 FIFTH CLAIM FOR RELIEF

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

23 Plaintiff repeats and realleges each and every allegation contained herein The actions and practices of Defendants violated Plaintiff’s rights under the California Civil Code 1708.8(b), 24 1708.8(d) & 1708.8(e).California Civil Code 1708.8(b) states:

25 “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 26 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 27 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 28 enhancing device was used.”

COMPLAINT IN INTERVENTION

California Civil Code 1708.8(e) states: 1 “A person who direct, solicits, actually induces, or actually causes another person, regardless of whether 2 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…” 3 Defendants constructively invaded Plaintiff’s 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 4 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 Plaintiff’s 5 personal and/or familial activity and otherwise could not have been captured without trespass. In doing so, 6 Defendants and/or their agents, employees, or representtaitves iviolated California Civil Code 1708.8(b) and 1708.8(e).Defendants invaded Plaintiff’s priuvacy for a commercial purpose, with the 7 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 8 harm in his personal and professional life.By reason of the foregoing, pursuant to California Civil Code 9 1708.8(d) Plaintiff is entitled to up to three times his general and specific damages, 10 as well as punitive damages, as a result of the violations of 1708.8(b). Under California Civil Code 1708.8(d), 11 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 12 privacy primarily for commercial purposes, including publishing articles in the publications The Sun and News Of The World, Defendants are subject to 13 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 14 to hear and adjusdicate such claims.

15 SIXTH CLAIM FOR RELIEF

16 (Intrusion Into Private Affairs – California Common Law– All Defendants)

17 Plaintiff repeats and realleges each and every allegation contained herein While Plaintiff was living, traveling thru, and visiting Los 18 Angeles in 2004 to 2005, he had a reasonable expectation of privacy concerning his voice-mail messages on his cellular telephone system. However, Defendants 19 intercepted, interfered with, accessed and hacked his voice-mail messages on his cellular telephone system. In so doing, Defendants surreptitiously intruded upon 20 Plaintiff’s private affairs, concerns and communications. 21 Defendants’ actions and conduct in intentionally and willfully intercepting, interfering with, intruding upon, accessing and hacking Plaintiff’s 22 voice-mails on his cellular telephone system even though Plaintiff had clearly never 23 authorized Defendants to do so, was highly offensive and highly objectionable to Plaintiff and to a reasonable person of ordinary sensibilities. 24 Defendants acted with reckless disregard of Plaintiff’s privacy rights and for the fact that a reasonable person of ordinary sensibilities would find 25 such invasion and intrusion highly offensive. Defendants had actual knowledge of, 26 participated in, directed and/or approve of, and benefited from this practice. Defendants’ actions were highly offensive because the degree of 27 intrusion into Plaintiff’s personal and professional life was significant, the context, conduct and circumstances surrounding the intrusion revealed a complete 28 disregard of Plaintiff’s privacy rights, and the Defendant’s motives and objectives

COMPLAINT IN INTERVENTION

were for financial profit at Plaintiff’s expense.Defendants’ intercepting, interfering with, intruding upon, 1 accessing and hacking Plaintiff’s voicemails on his cellular telephone was malicious and served no

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

3 confidential matters- involving Plaintiff, and Plaintiff’s close friends and business associates – which were offensive and objectionable to a reasonable person and not 4 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 5 Plaintiff’s private and confidential information for their own ends without regard to 6 Plaintiff’s 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 7 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 8 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 Plaintiff’s 9 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. 10 1367, this Court has pendent or supplemtnal jurisdiction to hear and adjudicate such claims.

11 SEVENTH CLAIM FOR RELIEF

12 (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 13 Defendants-For additional specific evidence please see Motion for Consolidation Injunction) NINTH CLAIM FOR RELIEF 14 (Violation Of 18 U.S.C. § 1962(d) By Conspiring To Violate 18 U.S.C. § 1962(c)) 15 16 Plaintiffs reallege and incorporate by reference all previous paragraphs. 17 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. § 18 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 19 The relevant time period for conspiracy stems from at least the year 2004, and likely earlier but at this point 20 in discovery as yet unknown, and continues to the filing of this RICO Class Action Complaint.

21 As a proximate result of the overt acts taken by Defendants, Plaintiffs and the Class Members have suffered injury to their business and property. 22 As alleged with particularity above, the facts demonstrate that the RICO Defendants 23 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 24 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 25 RICO Defendants’ aforementioned RICO conduct, Plaintiff’s s and Class Members have suffered injury to their 26 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 27 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 28 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 45

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of the provisions of subsection (a), (b) or (c) of this section.” 1 Each RICO Defendant agreed to participate, directly or indirectly, in the conduct of the affairs of through a 2 pattern of racketeering activity comprised of numerous acts of mail fraud, tampering and retaliation, and each RICO Defendant so participated in violation 3 of 18 U.S.C. § 1962(c). Plaintiff incorporates by reference and realleges each allegation set forth above. 4 First RICO Predicate Offense 5 Defendants, acting in concert and with criminal purpose, are in violation of 18 U.S.C. §1961 concerning 6 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 7 their employment, from providing evidence to officials regarding violations of Federal Law,

8 Second RICO Predicate Offense

9 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 10 informant by taking actions harmful to Plaintiffs including interference with the lawful employment or livelihood of the Plaintiffs for providing information to authorities 11 . Defendants’ violations of RICO laws have caused damages to the Plaintiffs in the form 12 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 13 Plaintiffs Attorney’s fees.

14 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 15 therefor in any appropriate United States district court and shall recover threefold the damages he sustains and 16 the cost of the suit, including a reasonable attorney's fee.

17 PRAYER FOR RELIEF AS TO RICO COUNTS WHEREFORE, Plaintiff respectfully requests that this Court grant the following relief: 18 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; 19 b. Compensatory damages in an amount to be determined at trial to compensate Plaintiff for the damage 20 to reputation, loss of career, humiliation, anguish an

21 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; 22 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’ 23 unlawful conduct; c. Treble and/or punitive damages as allowed by law; 24 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 25 e. Such other relief as the Court may deem just or equitable.

26 PRAYER FOR RELIEF 1. An award of the maximum statutory actual damages, including profits made by Defendanrts, pursuant to 27 18 U.S.C. 2707;Punitive damages, pursuant to 18 U.S.C. 2707(b)(3);Reasonable attorney’s fees and costs, 28 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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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. Punitive damages, pursuant to 18 U.S.C. 2520 2 1. Reasonable attorneys’ fees and costs, pursuant to 18 U.S.C. 2520 3 Such other and further relief as the Court mauy deem just, proper and equitable.

4 On the Third Claim for Relief

5 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 6 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. 7 On the Fifth Claim for Relief. 8 An award of three times Plaintiff’s general and specific damages, pursuant to 1708.8(d) of the California Civil 9 Code;Disgorgement of any proceeds or other consideration obtained by Defendants as a result of thei violations of Plaintiff’s rights under 1708.8(d) of the Californai Civil Code;Punitive damages by reason of Defendants’ 10 violations of Plaintiff’s 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: 11 1. Actual damages in an amount to be determined by the court; 12 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.” 13 Plaintiff demands trial by jury.

14 Dated: May 2, 2014 15 16 17

18 BRAD D. GREENSPAN, PRO SE 264 South La Cienega, 19 Suite 1216 Beverly Hills, CA 90211 20 21

22 EXHIBIT #1 23 Other Predicate Acts: 24 25 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, 26 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 27 was operating the case’s U.S. legal strategy, 28 i. News Corporation’s general counsel resigned in 2011

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1 ii. NewsCorp CEO appearing under oath at the Leveson Inquiry admitted 2 he was the victim of a “coverup” and that all the criminal acts exposed had gone on without his knowledge. 3 iii. News Corporation conceded its internal controls were defective as a 4 result of the exposure of years of bribes its UK subsidiaries had paid out and hidden by falsifying its financials. 5 6 In November 2012, News Corporation’s 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 7 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 8 conceded a defense for the illegal acts proven in the UK. 9 According to the CEO Rupert Murdoch, News Corporation’s internal controls were defective and the 10 CEO didn’t 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 11 of herein. News Corporation’s lack of credibility and proven defective internal controls 12 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) 13 The actions of News Corporation between 2005-2011 in regards to 14 Investigating phone hacking vs. c) The false statements at the 2010 Annual Meeting by the

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

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

17 Parliament Committee in May 2012, the findings by the Leveson Inquiry in November 18 2012, and admissions by News Corporation in 2012: 19 A) 20 i. June 19, 2006 at 1:18PM, Tom Perkins emails HP Counsel Sonsini, 21 Subject: HP Confidential, stating, 22 “Today I was at a NewsCorp board meeting in London, and I discussed the events of the most recent HP 23 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.” 24 25 “Viet was shocked at the HP chairman’s recording of board members telephone and computer inter- connections. I emphasized that no communications were actually transcribed. He said that even 26 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.” 27 June 20, 2006 at 10:00AM, Tom Perkins emails HP Counsel Sonsini, Subject:RE: HP Confidential, 28

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“the investigation was “unknown to the board, except perhaps in the most vague and imprecise terms, 1 with the possible exception of Mark, who she may have briefed. “ 2 “In view of Viet’s unqualified opinion that it was illegal, I think, the board needs to know the potential 3 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 4 like to know whether or not I share some responsibility.”

5 iii. July 18, 2006 at 3:22AM, TOM PERKINS emails Sonsini, Mark Hurd, and 6 Ann Baskins, Subject: “RE: Minutes”, and states,

7 “Thank you for sending the draft minutes of the May 18th meeting.” “As written the minutes state that I concurred in the nature of the investigation –it 8 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 9 were involved and had I known that this was the case I would have brought the 10 matter (of the intrusive nature of the investigation) to the board, for full examination, well in advance of this May 18th meeting.” 11 iv. July 28, 2006, at 1:52PM, Tom Perkins emails Sonsini, Baskins, 12 Babbio, Sbaldauf, Dunn, Hurd, Hammergren, and others, Subect: Confidential: May 18th HP Board of Directors Meeting. 13 14 “Dear Ann and HP Board Members”;” the essential point to be acknowledged is that the sub-rosa surveillance of the HP Board member’s personal communications was, and is, illegal. I attach a memo 15 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 16 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 17 F.C.C. on the illegality of the practice, and has filed suits against consultants who engage in 18 “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. 19 “As Chairman of HP’s Nominating and Governance Committee, had I been 20 informed of these illegal activities prior to the May 18th 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 21 investigation of the practices, via an independent committee of the board (not including the Chairman, 22 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 23 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 24 standing into dangerous waters –waters hazardous with both illegal and 25 unconscionable governance practices- and because my advice was being ignored.”

26 October 9, 2006, Maria Bartiromo CNBC interview states, “Viet Dinh represents Tom Perkins”;”He is generally credited with authoring the controversial USA Patriot Act.” 27 “How did you first learn of the spying at HP? Tom Perkins approached 28 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 1 dramatic tale about how he had just resigned from HP in protest over an 2 investigation “

3 “Do you have any sense of how widespread snooping on employees or even journalists is in Corporate America? 4 Not as a general matter, but my phone has been ringing quite steadily 5 since the publicity about HP-matters relating to pretexting and spying on 6 competitors”

7 “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.” 8 “You mean rival companies to HP are calling you? 9 10 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.” 11 “You’re widely considered the chief architect of the Patriot Act. Do you see any irony that you are a 12 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 13 and private citizens and companies breaking the law in order to pursue their own interests and personal 14 agendas.”

15 Vi.Decmber 6, 2006, Susan Beck writes “Where will the Troubles End for Sonsini” for the American 16 Lawyer, stating,

17 “Perkins’ version of the boardroom discussions is supported by an e-mail he sent a week later, on May 18 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 19 was turned over to Congress)”

20 “One of the people who got this message was Dinh, who is also a News Corp. director and chairs that company’s corporate governance committee. (Dinh was not representing Perkins at the time he resigned.) 21 Dinh told Perkins that the gathering of third party phone records was illegal and unconscionable. (At this 22 point, Perkins and Dinh did not know that pretexting was involved. )) Dinh, as it turns out, is one of the nation’s legal expers on surveillance tactics. A former assistant attorney general for legal policy at the 23 U.S. Department of Justice, the 38-year-old is credited with authoring the Patriot Act.

24 “The day after recieving that letter, Dinh opted to get the power of the government behind him. He called 25 the SEC’s 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 26 the U.S. Attorney’s Office in San Francisco and the California attorney general to tell them about the prexting.” 27 “The corporate law professor objected to the choice of Wilson Sonsini to do an investigation. In an Aug 28 23 letter to Sonsini’s 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 1 and Mr. Sonsini’s legal ability and professional integrity does not mitigate the conflicts of interest 2 arising from your firm’s longstanding relationship as counsel to [HP].”

3 “I only know one way to practice law, and that is to call things the way I see it,” said Dinh.” 4 “Over a Washington, D.C. lunch in which Dinh quickly downed three glasses of 5 wine, three orders of oysters and a seafood gumbo, the former government 6 lawyer recalled he was startled when Perkins first told him about the leaksinvestigation, “I had an instant and almost instinctive recognition [of illegal investigative 7 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 8 subpoena or a search warrant. He states, “I could not see how a private entity could get such access without consent.” 9 10 “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 11 sunshine,” he notes.

12 “I do what I do, I say what I say, I think what I think, and I leave the labeling to others,” he 13 said. “I don’t think of myself as a fellow traveler or an ideologue or a rubber-stamper. Or a 14 renegade.” In fact, there is a label for Mr. Dinh. In Washington, people who see Mr. Dinh’s ebullient, 15 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 16 representing venture capitalist Tom Perkins, the former Hewlett-Packard board member whose outrage over the methods used to uncover a leaker on the company’s board triggered a 17 full-blown scandal at the company. 18 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 19 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 20 act helped me very easily to recognize the legality or propriety of certain investigative techniques,” said Mr. Dinh. 21 At issue at Hewlett-Packard is the use of “pretexting”—the technique whereby investigators 22 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 23 journalists who were the recipients of the leaks were accessed, the company has disclosed. On Tuesday, chairwoman Patricia Dunn—who had called for the investigation but says she 24 was unaware of the methods used—was stripped of her title and replaced by company chief 25 executive Mark Hurd, though Ms. Dunn will remain on the board.

26 “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 1 participated in a lot of leak investigations, you know, these are not easy things to do even 2 when you have full subpoena and search-warrant power.” Traveling on his boat in the Mediterranean, Mr. Perkins could not be reached for comment, 3 but he released a statement over the weekend calling for Ms. Dunn’s resignation. MR. DINH WAS 10 YEARS OLD when he fled Saigon in 1978, part of a wave of “boat people” 4 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 5 they spent 12 days without food and water. They finally docked in Malaysia. Mr. Dinh’s 6 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. 7 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 8 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 9 scholarship to Harvard and then attended Harvard Law School. 10 His public profile rose steadily from there. He wrote an op-ed in The New York Times in 1992 on his sister’s struggle to enter the United States, and his odyssey was described by 11 Times columnist Anthony Lewis the following year as an inspiring counter-example to those concerned about “the immigrant threat.” 12 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 13 for Sandra Day O’Connor. 14

15 44. SEPTEMBER 13, 2006, 8:58 AM ET H-P: Bill Lockyer, Viet Dinh, Morgan Lewis 16 & More!By Peter Lattman

17 “Let’s catch you up on the H-P scandal. Here’s what’s going down: 18 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 19 charges against individuals inside Hewlett-Packard as well as outside the company.” Lockyer added: “People’s identities were taken falsely, and it’s a crime. People 20 accessed computer records that have personal information. That’s a crime.”

21 H-P has said that it hired a P.I. firm to carry out its 22 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. 23 Both the New York Observer and the WSJ today profile Viet Dinh, a Georgetown University law professor and former Justice O’Connor law clerk. Dinh has served as counsel to venture capitalist 24 Thomas Perkins in his recent dealings with H-P’s board, from which Perkins resigned in May. In June, 25 the 38-year-old Dinh emboldened Perkins to press concerns about H-P’s probe of board leaks that involved obtaining directors’ personal phone records. 26 The Recorder reports that there’s 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 27 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 28 partner who until last year was an AUSA in San Fran, reportedly attended the meeting.”

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1 2 NY Times, published September 12, 2006 article from Damon Darlin, 3 titled, “E-Mail Offers Peek Into Debate” 4 “On Sunday, Mr. Perkin’s lawyer, Viet D. Dinh, sent a message with the subject line “This is 5 funny” to Mr. Perkins and George A. Keyworth II, the director at the center of the board 6 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 week’s issue of Newsweek, 7 which focused on her as well.”

8 “Kaplan’s 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. 9 Perkins had played on Ms. Dunn at a dinner party. Mr. Perkins, “ 10 Perkins “forwarded the e-mail to two dozen people. They included Lucilee S. Salhany, a former TV executive 11 who serves on the H.P. board, and Shane V. Robison, the company’s executive vice president and chief strategy and technology officer. Among the recipients were Rupert Murdoch, the Chief executive ofr News Corporation, 12 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 13 venture capital firm of which Mr. Perkins was a founder; and Mr. Kaplan, the Newsweek reporter, who is 14 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 15 comment, but Mr. Perkin’s spokesman, Mark Corallo did not dispute the email’s authenticity.”

16 Corallo was an employee of the Department of Justice for the United States. immediately before taking role of “Spokesman” for Tom Perkins. 17 18 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 19 shareholder meeting in response to questions of shareholder Stephen Mayne who

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

21 “Stephen Mayne: what's your personal view of the phone bugging issue in theUK” 22 Rupert Murdoch: we have very very strict rules. There was an incident more than 5 years ago. The 23 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 24 thing at all. If anything was to come to light, we challenge people to give us evidence, and no one has 25 been able to. If any evidence comes to light, we will take immediate action like we took before.

26 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 27 wide spread?

28 Rupert: no.

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1 Stephen Mayne: you haven't read that New York Times piece? 2 Rupert Murdoch: no. 3 Stephen Mayne: The actual committee said in its report, there was "deliberate obfuscation" by our 4 executives, there was "collective amnesia" by the executives and you've just demonstrated this again,”

5 Rupert Murdoch: I'm sorry. Journalists who have been fired, who are unhappy, or work for other 6 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. 7 Stephen Mayne: I would like to refer to page 16 of the proxy statement, where you say "directors are 8 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 9 independent director and Viet Dinh as our chair of our nomination and corporate governance committee. 10 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 11 hacking issue in the UK.

12 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 13 personnel to follow them, and where infractions are made, appropriate actions are taken as the chairman 14 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 15 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.” 16

17 Sir Rod Eddington: To add to that Mr. Mayne, the audit committee also, we have a sensible and 18 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 19 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, 20 the organization takes seriously any breaches of conduct and the code of ethics.

21 Rupert Murdoch: I think that answers you filly and can we move on to the next 22 question?”

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

24 for the very same criminal conduct denied in October 2010. 25 7. News Corporation’s SEC corporate counsel Hogan Lovell was proven to have 26 led the coverup between 2005-2012 in the UK, and is responsible for the coverup of the 27 matters alleged herein. 28

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1 i. May 2012 UK Parliament report 2

3 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 4 the evidence”(pg. 4 Leveson Report Executive Summary)

5 6 iii. News Corp’s 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 7 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 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 9 former journalists (over three newspaper groups) and 12 current or former public officials: 5 have 10 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 11 interviewed under caution.” 1

13 8. Therefore, incorporate by reference the following and petitioner should get full 14 benefit of the inferences and findings from the following reports and cases along with the 15 concessions already made by key defendant, News Corporation. 16 After the Brown v. Brewer Class won summary judgement in June 2010,

17 petitioner in 2011 tried to bring new evidence to the attention of Class Counsel indicating 18 the true damages were related to the value of MySpace’s search value, the claims and facts 19 which had never been put before the Federal Court. Petitioner also provided a Rule 701 20 damage report providing New Evidence shows damages of $32 Billion for 21 22 MySpace Shareholders. stock. Class Counsel ignored the evidence and breached its fiduciary duty by 23 joining with defendants in a brazen scheme to: i) mislead and initiate a fraud upon the 24 25 Court by changing the definition of the certified class to eliminate upwards of 60% of the

1 26 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- 27 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 28 n/.

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1 eligible shares and shareholders and ii) enter into a sham settlement for pennies on the 2 dollar accepted by the Federal Court in March 2012. 3 Bribery and corruption2.12 Again, the present state of affairs in relation to Operation Elveden is set out 4 elsewhere.17 As 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 5 and former journalists (including journalists from The Sun; the Daily Mirror and its sister paper, the Sunday 6 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 7 early 2012.19 2.13 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 8 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, 9 the ongoing crimin al investigation hampers the ability of the Inquiry to explore the available evidence. 10 Recognising these constraining factors, these developments cannot be dismissed as irrelevant. (pg. 475)

11 “PLEA AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND ZAO HEWLETT- PACKARD A.O., 12 “HP Russia Manager 2” had an employment contract with HP RUSSIA between in or about 1994 and 2012.” 13 14 “HP Russia Manager 2 also worked as a Finance Manager for the ESG business unit in the ISE sub-region”

15 “Concurrent with these misrepresentations and internal control violations”

16 “conspirators e-mailed a diagram purporting to identify all payment so subcontractos, but that ocne agains 17 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 18 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.” 19

20 “On or about November 19, 2003, , HP Russia Executive 1 falsely certified that “there are no deficienceies in 21 internal controls that would impact ESG’s ability to record, process, summarize and report financial data,” and “I am not aware of any fraud involving employees in ESG’s management or other employees that have a 22 significant role in ESG’s internal controls.”

23 HP #2

24 The Company admits, accepts, and acknowledges that it is responsible under United 25 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 26 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, 27 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 28 responsibility by the Company set forth above or the facts described in the Statement of Facts

COMPLAINT IN INTERVENTION

attached hereto as Attachment A.” 1 2 Criminal Conduct 8. Beginning by at least mid-2008, HP MEXICO began presales activities and 3 discussions with Petroleos Mexicanos, Mexico’s state-owned petroleum company, commonly known as “Pemex,” to sell to Pemex a suite of business technology optimization (“BTO”) 4 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 5 “BTO Deal”) were for approximately $6 million. 6 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 7 consulting company (collectively, with its affiliated companies and agents, “CONSULTANT”). HP MEXICO sales managers knew that Pemex’s Chief Operating Officer 8 (“OFFICIAL A”) was a former principal of CONSULTANT. HP MEXICO employees also knew that OFFICIAL A supervised Pemex’s Chief Information Officer (“OFFICIAL B”), who 9 was a key signatory on behalf of Pemex for the BTO Deal 10 maximum permissible under HP’s policies without seeking additional approvals—there was no 11 money left over for the INTERMEDIARY’s fee. On or about December 12, 2008, HP MEXICO executives involved in the BTO Deal sought permission from regional management to increase 12 CONSULTANT’s 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 13 commission primarily because it had put in extra work and successfully managed discounts with 14 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 15 increased commission request on that same day. 14. On or about December 22, 2008, HP MEXICO signed the contracts with Pemex 16 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 17 it had received the INTERMEDIARY’s payment request “for recommending an HP solution to 18 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 19 the INTERMEDIARY that it had approved the payment request. HP MEXICO’s records falsely reflect that the INTERMEDIARY was due a commission for the BTO Deal. 20 16. The INTERMEDIARY submitted two invoices—on or about January 28, 2009, and on or about February 5, 2009—to HP MEXICO totaling $1,663,503, purportedly for 21 commissions on the BTO Deal. 22 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 23 account in the United States

24 18. On or about February 11, 2009, the INTERMEDIARY transferred approximately 25 $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 26 approximately $1.41 million. 19. By arranging payments to be made through the INTERMEDIARY to 27 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 28 circumvented HP Co.’s controls by failing to identify the role of INTERMEDIARY in the BTO

COMPLAINT IN INTERVENTION

Deal when seeking a 1.5% increase in the commission for CONSULTANT. In addition, HP 1 MEXICO’s books and records falsely reflected that the INTERMEDIARY was the deal partner 2 and principal recipient of the commission from the BTO Deal, which ultimately caused certain HP Co. books and records to be falsified. 3 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 4 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 5 to the OFFICIAL B-controlled entity. 6 21. In total, HP MEXICO received approximately $2,527,750 as its net benefit on the BTO Deal. 7 HP #3 8 Defendant Hewlett-Packardd Polska, SP. Zo.o. 9 10 “DEFERRED PROSPECUTION AGREEMENT BETWEEN THE UNITED STATES AND HEWLETT- PACKARD POLSKA< SP. Zoo0. 11 $15, 450, 224 penalty 12 “HP POLAND Exuective,” a citizen of Poland 13 14 “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 Poland’s gross revenue” 15 “KGP” was the Polish National Policy agency” 16 “8. “Polish Official” was the Director of Information and Communcaitons Technology within the KGP, and later 17 a senior official within the Interior Minirsty, from in or around 2005 to in or around 2011. 18 “11. Although HP Co. had certain anti-corruptiuon policies nad ocntrols in place during the relevant period, 19 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 20 internal accounting controls and falsify its books and records.””

21 “Overview of Criminal conduct” 22 “12. From in or around 2006 through at least in or around 2010, one or more HP POLAND emplotyees together 23 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 24 25

COMPLAINT IN INTERVENTION

1 “1. One or more Polan d employees facilitated the corrupt relationship with POLAND Official through covert 2 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 3 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 4 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 5 Polish Official wrote that the finformation was difficult to obtaint , and if anyone were to discover that Polish 6 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 7 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 8 Satestmetns were in reference to forthcoming contract awaredfs to HP POLAN Dby the Polish government, for which 9 Poliush Offical sought 1.2% of HP POLAND’s net revenue.” 10 “In mid-2008, Polish Official was promoted to a new position with in the Interior Ministry. Whistel the corrupt 11 relationship continued, both the amount of bribes paid and the contracts HP POLAND received decreasesd.”

12 “19. “ In or about March 2007, Polish Official signed a KPGP Contract with HP POLAnd valued at 13 approximately $15.8 million. Around this date, HP POLAND Executive delived rto Polish Official’s personal 14 residence a bag filled with approximately $150,000 in cahs. On another occasion in 2007, HP Officla

15 Poland Executive met Polish Official in a Warsaw parking lot and gave Polish Official another bag filled with approximately 4100,000 I n cash.” 16

17 18 19 20 21 22 23 24 25 26 27 28

COMPLAINT IN INTERVENTION

1 Brad Greenspan, Pro Se 2 264 South La Cienega Suite 1216 3 Beverly Hills, CA 90211 4

5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA

8 EUNICE HUTHART, ) Case No. CV 13-4253 MWF ) 9 Plaintiff, ) Honorable Michael W. Fitzgerald 10 v. ) 11 ) ) 12 ) 13 ) ) 14 MOTION TO CONSOLIDATE 15 RELATED ACTIONS MEMORANDUM OF POINTS 16 AND AUTHORITIES IN 17 SUPPORT THEREOF NEWS CORPORATION, NI GROUP 18 LIMITED f/k/a NEWS ) 19 INTERNATIONAL LIMITED, )

20 NEWS GROUP NEWSPAPERS ) 21 LIMITED, and JOHN and JANE ) DOES 1-10 ) 22 ) 23 Defendants. ) ) 24 ) 25 )

26 27 28 1

MOTION TO CONSOLIDATE

1 TABLE OF CONTENTS I. INTRODUCTION 2 II. ARGUMENT 3 III. CONCLUSION

4 5

6 7

8 9

10 11

12 13

14 15

16 17

27 28 2

MOTION TO CONSOLIDATE

1 MEMORANDUM OF POINTS AND AUTHORITIES

2 TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD 3 PLEASE TAKE NOTICE that on June 30, 2014, at 10:00 a.m., or as soon thereafter as 4 5 the matter may be heard and hereby does, move the Court for an Order consolidating

6 the following actions for all purposes under Rule 42 of the Federal Rules of Civil 7 Procedure: 8 9 I. INTRODUCTION

10 1. Presently pending in this District are two related invasion of privacy 11 lawsuits, (Huthhart v. News Corporation & Petitioner’s Complaint in Intervention) 12 13 identified.Movant seeks to consolidate the above related actions pursuant to

14 Rule 42(a)1 of the Federal Rules of Civil Procedure. Each action asserts substantially 15 the same claims and raises Substantially the same questions of fact and law. 16 17 Thus, consolidation of these actions is appropriate.

18 II. ARGUMENT 19 This Court Should Consolidate These Related Actions for Purposes of Efficiency 20 21 A. Consolidation pursuant to Rule 42(a)

1 23 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 24 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. 25 1 The grant of the injunction turned on Delaware law per the internal affairs doctrine. 26 27 28 3

MOTION TO CONSOLIDATE

1 2. Consolidation is proper when actions involve common questions of law 2 2 3 and fact. Courts have recognized that class action shareholder suits, in particular, are

4 ideally suited to consolidation pursuant to Rule 42(a) because their unification expedites 5 pretrial proceedings, reduces case duplication, avoids the contacting of parties and 6 7 witnesses for inquiries in multiple proceedings, and minimizes the expenditure of time

8 and money by all persons concerned. 9 3. The actions pending before this Court present virtually identical factual 10 11 and legal issues, each one Alleges violations of the same sections of the Exchange Act

12 and each action names similar defendants. Because these actions are based on the same 13 facts and involve the same subject matter, the same discovery will be relevant to all 14 15 lawsuits. Thus, consolidation is appropriate here. Intervening Plaintiff has first 6 of 6

16 identical claims from same defendant causing injury and same facts as nexus: 17

18 FIRST CLAIM FOR RELIEF

19 (Violation Of The Stored Communications Act, 18 U.S.C. 2701 and 2707- All Defendants) 20 SECOND CLAIM FOR RELIEF 21 (Violation of Wiretap Act, 18 U.S.C. 2510, 2511 & 2520 – All Defendants) 22

23 THIRD CLAIM FOR RELIEF

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

25 2 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 26 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, 27 although, typically, consolidation is favored.") (citation omitted). 28 4

MOTION TO CONSOLIDATE

FOURTH CLAIM FOR RELIEF 1 (Violation of California Penal Code 630, 631, 632, 632.7 & 637(2)(a) – All Defendants) 2 FIFTH CLAIM FOR RELIEF 3 (Violation of California Civil Code 1708.8(b), 1708.8(d) & 1708.8(e) – All Defendants) 4 SIXTH CLAIM FOR RELIEF 5 (Intrusion Into Private Affairs – California Common Law– All Defendants) 6 7 4. This motion is brought on the grounds that these actions are substantially

8 identical because each Alleges claims for based upon similar factual 9 allegations against substantially the same defendants. The motion is also brought on the 10 11 ground that consolidation of these cases will promote efficiency.

12 This motion is based upon this notice of motion, memorandum of points 13 and authorities, the such oral argument as the Court May consider in deciding this 14 15 motion.Case should be determined by Delaware statue definition of preliminary

16 injunction.Since News Corporation Delaware Corporation and sells the most of its 17 products revenue recognized thru parent Delaware Corporation and its parent a 18

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

20 industry, and its Delaware Corporation that is selling each day newspapers to consumers 21 in U.S. and UK and other countries. The grant of the injunction turns on Delaware law 22

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

24 questions of law and fact.3 Courts have recognized consolidation expedites pretrial 25 3 In re Equity Funding Corp. of Am. Sec. Litig., 416 F. Supp. 161, 175 (C.D. Cal.1976). This Court has broad discretion 26 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. 27 Supp. 990, 994 (C.D. Cal. 1984) 28 5

MOTION TO CONSOLIDATE

1 proceedings, reduces case duplication, avoids the contacting of parties and witnesses for 2 3 inquiries in multiple proceedings, and minimizes the expenditure of time and money by

4 all persons concerned.4 5 B. The PSLRA Requires that the Question of Consolidation Be Decided 6 Prior to the Determination of the Appointment of Lead Plaintiff. 7 5.The PSLRA provides, among other things, for consolidation of 8 9 substantially similar actions. The PSLRA states in pertinent part:

10 If more than one action asserting substantially the same claim or claims 11 arising under this chapter has been filed, and any party has sought to consolidate those 12 13 actions for pretrial purposes or for trial, the court shall not make the determination [of

14 appointment of lead plaintiff under §21D(a)(3)(B)] until after the decision on the 15 motion to consolidate is rendered .... 15 U.S.C. §78u-4(a)(3)(B)(ii). 16 17 6. Thus, the PSLRA establishes a two-step process for resolving lead plaintiff

18 and consolidation Issues where more than one action on behalf of a class asserting 19 substantially the same claims has been filed. The court "shall" first decide the 20 21 consolidation issue and thereafter decide the lead plaintiff issue, "[a]s soon as

22 practicable" after the consolidation motion has been decided. Id. Given that the selection 23 of lead plaintiff and lead counsel is the necessary first step to prosecute the actions, 24

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

27 28 6

MOTION TO CONSOLIDATE

1 Movant urges the Court to grant the consolidation motion as soon as practicable and 2 3 consolidate these related actions under the lowest case number. A prompt determination

4 is reasonable and warranted under Rule 42(a), given the common questions of fact and 5 law presented by the actions now pending in this District. 6 7 C. This Court Should Order the Preservation of Documents

8 7. Through this motion, Movant also requests that the Court order the 9 preservation of documents relating to this litigation in accordance with 15 U.S.C. §78u- 10 11 4(b)(3)(C)(i), both prior to and after the filing of any motion to dismiss. In complex

12 cases involving companies with numerous employees, such an order is appropriate and 13 will prevent the loss of key documents, whether through inadvertence or otherwise. 14 15 D. Consolidation and Injunction is appropriate under Rule 65. A(2)

16 8. Rule 65 A(2) states: “(a) PRELIMINARY INJUNCTION. 17 (1) Notice. The court may issue a preliminary injunction only on notice to 18 the adverse party. 19 (2) Consolidating the Hearing with the Trial on the Merits. Before or after 20 beginning the hearing on a motion for a preliminary injunction, the court 21 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 22 motion and that would be admissible at trial becomes part of the trial 23 record and need not be repeated at trial. But the court must preserve any party's right to a jury trial.” 24 25 E. DEL CODE § 2598 VIOLATION OF ORDER OR INJUNCTION; PENALTY 26 27 9. Injunction is appropriate under DEL CODE § 2598 which states: 28 7

MOTION TO CONSOLIDATE

1 (a) A person who violates any order or injunction issued pursuant to this chapter or who 2 breaches an agreement forming the basis of a cease and desist order issued pursuant to 3 this chapter shall forfeit and pay to the State a civil penalty of not more than $25,000 4 per violation. 5 (b) The Attorney General may petition the Superior Court in the county in which an 6 order, injunction or cease and desist order was issued, in order to obtain recovery of a 7 civil penalty as provided pursuant to this section. Such petition may be made whenever 8 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 9 or injunction or breached a material term of an agreement forming the basis for such 10 cease and desist order. 11 (c) Nothing in this section shall prevent the Attorney General from initiating any 12 additional or alternative action under lawful powers which otherwise seeks enforcement 13 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.;) 14

15 F. 2521 - Injunction against illegal interception 16 10. Injunction is warranted under Sec. 2521 which states: 17 18 “Injunction against illegal interception “

19 “Whenever it shall appear that any person is engaged or is about to engage in any 20 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 21 to enjoin such violation. The court shall proceed as soon as practicable to the 22 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 23 action, as is warranted to prevent a continuing and substantial injury to the United 24 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 25 Civil Procedure, except that, if an indictment has been returned against the 26 respondent, discovery is governed by the Federal Rules of Criminal Procedure.

27 28 8

MOTION TO CONSOLIDATE

1 IV. CONCLUSION 2 3 For the reasons stated above, and in order to promote judicial economy, Movant

4 respectfully requests that the Court consolidate the related actions identified herein, 5 permit the filing of a consolidated complaint within 60 days from entry of the Court's 6 7 Order granting this motion, and require the preservation of documents in this action.

8 Under Rule 65, and Sec 2521 Injunction should be granted Because Defendant is in 9 breach of Consent Order at Exhibit #1, specifically Mark Hurd and Tom Perkins who 10 11 served as Directors of HP And News Corporation Between 2005 thru 2012.

12 DATED: May 2, 2014 13 Respectfully submitted, 14 15 16

17 18 Brad D. Greenspan Pro Se 19 20

21 22

23 24

25 26

27 28 9

MOTION TO CONSOLIDATE

1 EXHIBIT #1

2 “SUPERIOR COURT OF TilE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA 3 106C V -076U 8 ~ PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff, v. HEWLETT-PACKARD COMPANY, a Delaware Corporation, Defendant. 4 1. This action is brought against Hewlett-Packard Company. a Delaware corporation (hereinafter"Hewlett-Packard"or"HP"), 5 who, inviolation ofCaliforniaBusinessand ProfessionsCodesection 17200,engaged in a nunlawful scheme to spy on its own 6 employees and directors. third parties and family members of these individuals (collectively "Victims"). 7 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 8 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. 9 HP at all times mentioned herein has transacted business in the County of Santa Clara and elsewhere within the State of 10 California. HP authorized and directed the unlawful investigations at issue from its offices in the State of California, and the 11 violations of law described herein occurred in the County of Santa Clara and elsewhere in the State of California.

12 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 13 organization did or authorized the acts alleged in this Complaint through its principals. officers, directors, employees, 14 members, agents and representatives while they were acting within the actualor ostensible scope of their authority

15 DEFENDANT'S BUSINESSPRACTICES

16 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 17 "social engineering," by which HP investigators obtained the personal, home and cellular telephone records of current 18 and former liPdirectors and employees,several journalists,and their families (collectively"Victims"), by posing as the Victims. 19 8. In 2006, after the 2005 investigation failed to reveal the source of the leaks, HP launched a second 20 investigationtodeterminethesource ofnew leaksto themediathattookplace in January 2006. (The 2005 and 2006 investigations arc hereafter collectively referred to as '"the Kona Investigation.") 21 9. During the KanaI nvestigation, HPutilized unlawful,unfair and deceptive investigative tactics to obtain confidential 22 personal information about the Victims, including: 23 24 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. 25 b. authorizing the use of pretcxting to obtain telephone or facsimile telephone call records by duping telecommunications 26 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. 27 28 10

MOTION TO CONSOLIDATE

c. permitting and authorizing the use and disclosure of Social Security Numbers and confidential personal 1 information to obtain, through pretexting, the telephone call information of employees, current or former 2 Hewlett-Packard Board members and journalists.

3 FIRST CAUSE OF ACTION VIOLATIONSOFBUSINESSANDPROFESSIONS CODE SECTION17200 (UNFAIR COMPETITION) 4 10. Plaintiffre alleges and incorporates by reference paragraphs 1-9 above, as though they arc set forth in full herein. 5 I I. Beginning at an exact date unknown to plaintiff, HP engaged in unfair competition as defined in California Business 6 and Professions Code section 17200. 12. During the course of the Kona Investigation, HP's acts and practices of unfair competition include the 7 following:

8 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 9 or someone acting on the Victim's behalf in calls to the Victim's telecommunications carrier's customer service 10 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. 11 b. HP, by means of false pretenses, induced telecommunications companies to provide confidential 12 information regarding the Victims to HP. in violation of California Penal Code section 538.5.

13 c. HP knowingly accessed and without permission used data, computers. computer systems or computer networks in order 14 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 15 PenalCodesection502(c)(I). 16 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 17 about the Victims, in violation of California Penal Code section 502(c)(2). 18 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 19 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 20 other personal information about them without their knowledge or consent. 21 f. HP purchased, offered to purchase or conspired to purchase telephone calling pattern records or lists of the Victims 22 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. 23 g. HP used false pretenses to willfully obtain personal identifying information about 24 Respectfully submitted, 25 BILL LOCKYER, Attorney General of the 26 State of California 27 28 11

MOTION TO CONSOLIDATE

the Victims and used that information in violation of California Penal Code section 530.5. 1 h. HP' s investigative tactics during the course of the Kona Investigation, as described in part in 2 paragraphs 1-2 and 7-12 above. constitute unfair competition within the meaning of California Business and Professions Code section 17200. 3 PRAYER FOR RELIEF WHEREFORE, plaintiff prays forjudgment as follows: I. Pursuant to California Business and Professions Code section 17203. that HP, its successors, agents, 4 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. 5 2. Pursuant to California Business and Professions Code section 17206, that HP be ordered to pay a civil penalty in 6 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. 7 , J. That Plaintiff recover its costs of suit herein, including costs of investigation. 8 4. For such other and further relief as the Court may deem just and proper. Dated: December 2006” 9 PEOPLE OF THE STATE OF CALIFORNIA, v. HEWLETT-PACKARD COMPANY, 106CV-076081 CASE NO.: " 10 * FINAL JUDGMENT AND PERMANENT INJUNCTION 11 Plaintiff, the People of the State of California, appearing through its attorneys, Bill Lockyer, Attorney General of the State of 12 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 13 (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 14 Injunction (hereafter "Stipulation") on file herein, have stipulated and consented to the entry of this Final Judgment and 15 Permanent Injunction without the taking of proof and without trial or adjudication of any fact or law herein,

16 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 17 directors, officers, employees, agents, independent contractors, partners, associates and representatives of each of them.

18 PERMANENT INJUNCTION 19 E. Pursuant to California Business and Professions Code section 17203, HP shall be and hereby is permanently 20 enjoined and restrained from directly or indirectly doing any of the following acts or practices in connection with the conduct of investigations: 21 (1) Using false or fraudulent pretenses, representations, personations, or promises to obtain from a public utility any 22 confidential, privileged, or proprietary information, including customer or billing records, in violation of California Penal Code 23 section 538.5.

24 (2) Obtaining and unlawfully using personal identifying information, including social security numbers, in violation of California Penal Code section 530.5. 25 (3) Knowingly accessing and without permission using any data, computer, computer system, or computer network 26 in order to (a) devise or execute any scheme or artifice to defraud,deceive, or extort, or (b) wrongfully obtain property or 27 data, in violation of California Penal Code section 502(c)(1) 28 12

MOTION TO CONSOLIDATE

1 (4) Knowingly accessing and without permission taking, copying, or making use of any data from a computer, 2 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 3 502(c)(2).

4 (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 5 subscriber or, through fraud or deceit, attempting to procure or obtain any telephone "calling pattern record or list," as set 6 forth in the statute.

7 (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 8 duties, and also will be authorized to engage independent legal 9 advisors as necessary without obtaining approval from the CEO or General Counsel, subject to review by the Independent Director and the board of directors. 10 (b) The CECO shall review HP's investigative practices (both as performed internally and as conducted by third parties), 11 the SBC, and codes of conduct applicable to outside investigation firms. The CECO shall consult with the

12 Qualified Authority discussed in paragraph F(3) below in order to review the findings and recommendations provided by 13 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. 14 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 15 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 16 codes of conduct and other policies regarding business ethics and privacy protection. 17 (3) HP has employed a qualified authority ("Qualified Authority") who is in the process of performing a 18 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 19 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 20 review, HP will adopt internal processes and controls designed to prevent misconduct in future HP investigations. The 21 Qualified Authority's conclusions and recommendations shall be incorporated into the initial report written by the CECO referenced in paragraph F(2)(b) above. 22 (4) HP shall expand the duties and responsibilities of HP's Chief Privacy Officer to include responsibility for reviewing HP's 23 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 24 within HP or by its outside vendors. 25 (5) HP shall establish a Compliance Council chaired by the CECO. The members of the Council will include the CECO (chair), 26 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 27 28 13

MOTION TO CONSOLIDATE

develop, initiate, maintain and revise policies and procedures for the general operation of HP's ethics and compliance 1 programs consistent with applicable laws and regulations. The Compliance Council will provide written semi-annual reports 2 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 3 the investigatory methods used in investigations within their area of responsibility, including those conducted by outside vendors. 4 (6) The CECO will report any material violation of the codes of conduct applicable to outside investigation firms to the 5 head of the appropriate business segment or function, who, in consultation with the CECO, will take appropriate action. 6 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 7 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 8 appropriate action, the CECO shall report the violation to the CEO and the Independent Director. The CECO will report in 9 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. 10 (7) In the event of a dispute regarding the appropriateness of any action to be taken by the Independent Director, the 11 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 12 resolution. 13 (8) HP shall enhance its current training program as follows: 14 (a) Under the direction of the CECO and the Compliance Council, the existing annual training requirement will be redesigned 15 and updated to ensure that the business ethics component plays a more prominent role.

16 (b) Additional training will be required for those HP employees who are engaged in the conduct of investigations for HP. 17 That training will be designed by the CECO, with input from the Chief Privacy Officer and, as appropriate, independent counsel. 18 (c) The Board and senior management will be given training on potential and actual conflicts of interest that may arise with 19 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. 20 21 (d) The Chief Privacy Officer will review the training program implemented pursuant to this paragraph to ensure that it appropriately addresses privacy matters. 22 (e) The Independent Director shall approve the training program implemented pursuant to this paragraph 8. 23 (f) In addition to the applicable supplier codes of conduct, all outside investigation firms will be provided written standards 24 of conduct, developed by HP, that pertain specifically to privacy and business ethics concerns regarding investigatory 25 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. 26 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. 27 28 14

MOTION TO CONSOLIDATE

1 K. Conditioned upon HP making full payment as provided under Paragraphs G, H, 2 20 and I of this Final Judgment and Permanent Injunction, defendant and all of its present and former officers, directors, 3 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 4 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 5 Code sections 17200, or Penal Code sections 502(c)(l)-(2), 530.5, or 538.5. 6 Provided, however, notwithstanding any term of this Judgment or this paragraph, specifically reserved and excluded from 7 the scope and terms of this paragraph as to any entity or person are any and all of the following:

8 (1) Any criminal liability, save and except that HP shall not be barred or prevented from raising and asserting the 9 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; 10 (2) Any personal injury, property damage, indemnification, or contribution claims by the State; 11 (3) Any tax liability; 12 13 (4) Any obligations created under this Judgment; and

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

15 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 16 to comply with such applicable laws,rules and regulations; nor shall anything herein be deemed to constitute 17 permission to engage in any acts or practices prohibited by such laws, rules or regulations.

18 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. 19 N. This Final Judgment and Permanent Injunction shall take effect entry thereof, without further notice to 20 HP. 21 O. The clerk is ordered to enter this Final Judgment and Permanent Injunction forthwith 22 DATED: 23 DEC - 7 2006 24 JACK KOMAR 25

26 27 28 15

MOTION TO CONSOLIDATE 1

2 Brad Greenspan, Pro Se 3 14938 Camden Ave Suite 47 4 San Jose, CA 95124 5 Fax: (408)677-5655

6 7 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 8 9

10 EUNICE HUTHART, ) Case No. CV 13-4253 MWF 11 ) Plaintiff, ) Honorable Michael W. Fitzgerald 12 v. ) 13 ) ) 14 ) 15 ) ) MEMORANDUM IN SUPPORT 16 NEWS CORPORATION, NI GROUP OF MOTION FOR SANCTIONS 17 LIMITED f/k/a NEWS ) INTERNATIONAL LIMITED, ) 18 19 NEWS GROUP NEWSPAPERS ) LIMITED, and JOHN and JANE ) 20 DOES 1-10 ) 21 ) Defendants. ) 22 ) 23 )

24 25

1 MEMORANDUM IN SUPPORT OF MOTION FOR SANCTIONS

2 3 TABLE OF CONTENTS I. INTRODUCTION 4 II. SUMMARY OF ALLEGATIONS 5 III. ARGUMENT IV. CONCLUSION 6 7

8 9

10 11

12 13

14 15

16 17

18 19

20 21

22 23

24 25

26 27

2 MEMORANDUM IN SUPPORT OF MOTION FOR SANCTIONS

2 3 NOTICE OF MOTION

4 TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD 5 PLEASE TAKE NOTICE that on July 21, 2014, at 10:00 a.m., or as soon thereafter as 6 7 the matter may be heard.

8 This motion is based upon this notice of motion, memorandum of points and 9 authorities, the such oral argument as the Court May consider in deciding this motion. 10 11 MEMORANDUM OF POINTS AND AUTHORITIES 12 13 I. INTRODUCTION

14 1. Petitioner moves the Court to grant sanctions against Defendant and 15 Its attorneys that filed or co-filed or aided and abetted the May 19, 2014 filing 16 17 “DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE MOTION FOR INTERVENTION OF BRAD GREENSPAN 18 PENDING THE COURT’S DETERMINATION ON DEFENDANTS’ 19 MOTION TO DISMISS”

20 II. SUMMARY OF ALLEGATIONS 21 Petitioner files this Motion for sanctions for two reasons: 22 23 A. Defendant’s May 19, 2014 Pleading because it contains false statements and is underpinned by lies. 24 2. MR 4.1 provides that a lawyer shall not knowingly (1) make a false 25 statement of material fact or law to a third person. 26 i. B&PC 6068(d) prohibits California lawyers from making false 27 statements of fact or law to any judge or judicial officer. 28 ii. B&PC 6106 provides that the commission of any act of moral

3 MEMORANDUM IN SUPPORT OF MOTION FOR SANCTIONS

2 turpitude or dishonesty constitutes a cause for disbarment or suspension. B&PC �

3 6106 is sufficiently broad to prohibit false statements by lawyers to third parties.

4 iii. DR 7-102(A)(5) provides that "[i]n his representation of a client, a

5 lawyer shall not . . . [k]nowingly make a false statement of law or fact."

6 3. It is also clear that a California lawyer may not make false or misleading

7 statements in affidavits or other court papers. See, e.g., Lee v. State Bar

8 (1970) 2 Cal.3d 927, 88 Cal.Rptr. 361, 472 P.2d 449 (disciplinary action against

9 lawyer who made false statements in sworn testimony); Sturr v. State Bar (1959)

10 52 Cal.2d 125, 338 P.2d 897 (involving affidavit containing false statements);

11 Vickers v. State Bar (1948) 32 Cal.2d 247, 196 P.2d 10 (disciplinary action

12 against lawyer who made false statement in proceeding for letters of special

13 administration that he was the surviving husband of decedent). 14

15 4. This broad interpretation is supported by the case law in California. For

16 example, in People v. Petas (1st Dist. 1989) 214 Cal.App.3d 70, 262 Cal.Rptr.

17 467, the court held that a lawyer could be charged with a misdemeanor where the

18 lawyer presented a false or fraudulent claim for payment of insurance by falsely

19 representing in insurance demand letters that the client's injuries resulted

20 from a single accident when the lawyer knew that they did not.

21 B. Defendant’s May 15, 2014 telephone call to Plaintiff’s attorneys 22 And false representations related to Claims of Petitioner contained in Complaint in Intervention 23

24 5. Besides prohibiting false statements, the provisions of the B&PC prohibit

25 all forms of deceit, including selective presentation of incomplete facts. For

26 example, a California lawyer may not author a legal opinion on a transaction

27 that discloses only facts favorable to his client where the lawyer is aware of

28 other adverse material facts that may affect another's decision in the

transaction. Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (2nd Dist. 1976) 57

4 MEMORANDUM IN SUPPORT OF MOTION FOR SANCTIONS

2 Cal.App.3d 104, 128 Cal.Rptr. 901. But see Price v. Superior Court (2nd Dist.

3 1983) 139 Cal.App.3d 518, 188 Cal.Rptr. 832 (criminal defense counsel must

4 disclose to prosecutor that another prosecutor had previously refused a plea

5 bargain that defense counsel was now proposing to the prosecutor). Moreover, a

6 California lawyer has an affirmative duty to correct prior misleading statements

7 by disclosing true facts or new information to persons who may act in reliance

8 on the original statement. Failure to disclose correct facts or new information

9 constitutes tortious abuse in California. See, e.g., Dyke v. Zaiser (4th Dist.

10 1947) 80 Cal.App.2d 639, 182 P.2d 344.

11 6. B&PC 6128 provides that "every attorney is guilty of a misdemeanor who

12 . . . is guilty of any deceit or collusion, or consents to any deceit or collusion, with

13 intent to deceive the court or any party." Taken together, B&PC 6068(d) and B&PC

14 6128 require California lawyers to be truthful in all statements, whether to the court,

15 opposing parties, clients, or third parties.

16 III- ARGUMENT 17 18 7. Plaintiff admits to receiving and being in possession of petitioner’s

19 “proposed Complaint in Intervention” as of May 2, 2014. 20 “Greenspan additionally served on Defendants’ local counsel a proposed 21 Complaint in Intervention, “ (Document 65 Filed 05/19/14 Page 5 of 12) 22

23 FALSE STATEMENT #1: Document 65 Filed 05/19/14 Page 6 of 12

24 “Greenspan does not allege he is the victim” of “any allegedly wrongful 25 conduct by Defendants similar to that complained of by Huthart. (Karasik Decl., ¶ 4.)” 26 27 8. To determine if Statement #1 is false, the Court must review and compare

28 Defendant’s claim Petitioner “does not allege” “any allegedly wrongful

5 MEMORANDUM IN SUPPORT OF MOTION FOR SANCTIONS

2 conduct by Defendants similar to that complained of by Huthart”

3 9. The Huthart complaint’s first claim: 4 i. “FIRST CLAIM FOR RELIEF (Violation Of The Stored 5 Communications Act, 18 U.S.C. 2701 and 2707- All Defendants) 6 ii. is exactly the same as Petitioner’s first claim: 7

8 “FIRST CLAIM FOR RELIEF (Violation Of The Stored Communications Act, 18 U.S.C. 2701 and 2707- All Defendants) 9 (pg. 54 COMPLAINT IN INTERVENTION Exhibit #2 attached to 10 Motion to Intervene) 11 10. The Huthart complaint’s second claim: 12 13 i. “SECOND CLAIM FOR RELIEF (Violation of Wiretap Act, 18 U.S.C. 2510, 2511 & 2520 – All Defendants)” 14 15 ii. is exactlty the same as Petitioner’s second claim:

16 “SECOND CLAIM FOR RELIEF (Violation of Wiretap Act, 18 U.S.C. 17 2510, 2511 & 2520 – All Defendants) (pg. 56 COMPLAINT IN INTERVENTION Exhibit #2 attached to 18 Motion to Strike) 19 11. The Huthart complaint’s third claim: 20 21 i. “THIRD CLAIM FOR RELIEF (Violation of Article I, Section I Of The California State Constitution – All Defendants)” 22 23 ii. is exactly the same as Petitioner’s third claim:

24 “THIRD CLAIM FOR RELIEF (Violation of Article I, Section I Of 25 The California State Constitution – All Defendants) (pg. 58 COMPLAINT IN INTERVENTION Exhibit #2 attached to 26 Motion to Intervene) 27 12. The Huthart complaint’s fourth claim: 28 i. “FOURTH CLAIM FOR RELIEF (Violation of California Penal Code 630, 631, 632, 632.7 & 637(2)(a) – All Defendants)” 6 MEMORANDUM IN SUPPORT OF MOTION FOR SANCTIONS

2 ii. is exactly the same as Petitioner’s fourth claim: 3

4 “FOURTH CLAIM FOR RELIEF (Violation of California Penal Code 630, 631, 632, 632.7 & 637(2)(a) – All Defendants)” 5 (pg. 59 COMPLAINT IN INTERVENTION Exhibit #2 attached to 6 Motion to Intervene)

7 13. The Huthart complaint’s fifth claim: 8 i. “FIFTH CLAIM FOR RELIEF (Violation of California Civil Code 9 1708.8(b), 1708.8(d) & 1708.8(e) – All Defendants)” 10 11 ii. is exactly the same as Petitioner’s fifth claim:

12 “FIFTH CLAIM FOR RELIEF (Violation of California Civil Code 13 1708.8(b), 1708.8(d) & 1708.8(e) – All Defendants)” (pg. 64 COMPLAINT IN INTERVENTION Exhibit #2 attached to 14 Motion to Intervene) 15 14. The Huthart complaint’s sixth claim: 16 17 i. “SIXTH CLAIM FOR RELIEF (Intrusion Into Private Affairs – California Common Law– All Defendants)” 18 19 iii. is exactly the same as Petitioner’s sixth claim:

20 “SIXTH CLAIM FOR RELIEF (Intrusion Into Private Affairs – 21 California Common Law– All Defendants)” (pg. 65 COMPLAINT IN INTERVENTION Exhibit #2 attached to 22 Motion to Intervene)

23 FALSE STATEMENT #2: Document 65 Filed 05/19/14 Page 6 of 12 24 25 “Greenspan does not allege he is the victim of any voicemail hacking”

26 15. Defendant’s claim petitioner “does not allege he is the victim of any 27 voicemail hacking” is a false statement and lie when compared to 28

Petitioner’s Complaint in Intervention that Defendant admits Defendant has received

7 MEMORANDUM IN SUPPORT OF MOTION FOR SANCTIONS

2 and reviewed. 3

4 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.” 5 (18 U.S.C. 2701(a)) by intentionally accessing Plaintiff’s voicemails without 6 authorization and obtaining and/or altering authorized access to a wire or electronic communication while in electronic storage by collecting and accessing temporarily 7 stored voicemails or those maintained for purposes of backup protection. 8 47. Additionally, Defendants violated 18 U.S.C. 2701(a)(2) because they intentionally exceeded or had no authorization to access Plaintiff’s 9 communications and obtained, altered, or prevented authorized access to a wire or 10 electronic communication while in electronic storage by interfering with Plaintiff’s 11 temporarily stored voicemails, as disclosed hereinabove. Defendants had actual knowledge of, participated in, directed and/or approved of, and benefitted from, this 12 practice” (pg. 55 COMPLAINT IN INTERVENTION Exhibit #2 attached to Motion 13 to Strike)

14 FALSE STATEMENT #3: Document 65 Filed 05/19/14 Page 8 of 12 15 “he has already filed a lawsuit in Delaware advancing these very claims.” 16 17 FALSE STATEMENT #4: (At footnote 4: Document 65 Filed 05/19/14 Page 9 of 12)

18 “the existence of a pending action in Delaware where Greenspan is 19 advancing the same claims that are the subject of the proposed intervention. 20 21 16. Delaware action cited by Defendants:

22 “VI. CLAIM COUNTS” on page 25, has 16 counts which consist of following: 23 “COUNT # 1 - § 1503 (a) Violation 24 COUNT # 2 - § 1503. (b) Violation 25 COUNT #3 - § 1503 (c) Violation COUNT # 4 - § 1503(d) Violations. 26 COUNT # 5 –§ 1504 TRIGGERED PETITIONER RIGHT TO CIVIL REMEDY 27 UNDER § 1505(f) COUNT # 6 - (BREACH OF AGREEMENT) 28 COUNT # 7 - (“inseparable fraud”) VIOLATION COUNT #8 –PAREXEL TYPE FRAUD VIOLATION THRU FAILURE TO DISCLOSE “COMPLIANCE FAILURES” 8 MEMORANDUM IN SUPPORT OF MOTION FOR SANCTIONS

2 COUNT #9 – RULING BASED ON DELAWARE STATUE AND CODE 1304 THAT 2004 MYSPACE TRANSFER AND 2005 TRANSACTIONS 3 “FRAUDULENT” 4 COUNT #10 – VIOLATION OF DODD-FRANK WHISTLEBLOWER STATUTE – SECTION 922) &18 U.S.C. §1513(e)) 5 COUNT # 11 - Blasisus violation 6 COUNT # 12 - Contempt Violation COUNT # 13 - Ruling certain transactions after October 17, 2003 are Void. 7 COUNT # 14 - VOID Defendants right to exculpation under 102(b)(7) 8 COUNT #15 - Ruling certain transactions after October 17, 2003 are Void. COUNT #16 INDEMNIFICATION AND ADVANCEMENT CLAIMS” 9

10 17. Defendants lied in May 19, 2014 pleading because they read page 20 of 11 Motion for Intervention filed May 2, 2014 which stated: 12 13 “Claims And The Underlying Actions 33. The Proposed Intervenor claims are based upon same 14 violations of federal law as the underlying action.” 15 And the first page of the Complaint in Intervention shows the Claims in the Complaint 16 17 in Intervention are identical to Plaintiff Huthart and are not the same claims filed in

18 Delaware which are listed in paragraph 16 above. Comparing: 19 “1. This is a civil action brought against Defendants for damages for violations 20 of Plaintiff’s right to privacy; for the unlawful access to stored communicationl 21 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; 22 18 U.S.C. 2510, 2511, 2520; Article I, Section 1of the California State 23 Constituion; 630-637.0 of the California Penal Code; 1708.8 of the California Civil Code; and California common law. 24 JURISDICTION AND VENUE 2. This action is brought pursuant to 18 U.S.C. 25 2701 and 2707, 18 U.S.C. 2510, 2511 and 2520. “ FALSE STATEMENT #5: (At footnote 4: Document 65 Filed 05/19/14 Page 9 of 12) 26 27 “1 Among other things, Greenspan’s intervention pleadings violate Federal Rule of Civil Procedure Rule 8, fail to state any coherent much less cognizable claim 28 for relief, “

COMPARE “PRAYER FOR RELIEF” 9 MEMORANDUM IN SUPPORT OF MOTION FOR SANCTIONS

2 18. PAGE 35-37 HUTHART ORIGINALLY AND ONLY FILED 3 COMPLAINT: 4 “1. An award of the maximum statutory actual damages, including profits made by 5 Defendanrts, pursuant to 18 U.S.C. 2707; 6 2. Punitive damages, pursuant to 18 U.S.C. 2707(b)(3); 3. Reasonable attorney’s fees and costs, pursuant to 18 U.S.C. 2707(b)(3)l and 7 4. Such other and further relief as the Court may deem just, proper and equitable. 8 On the Second Claim for Relief. 9

10 1. The greater of actual damages and any profits made by Defendants by 11 their violations of 18 U.S.C. 2520 and 2511, or statutory damages, pursuant to 18 U.S.C. 2520 12 2. Punitive damages, pursuant to 18 U.S.C. 2520 13 3. Reasonable attorneys’ fees and costs, pursuant to 18 U.S.C. 2520 4. Such other and further relief as the Court mauy deem just, proper and equitable. 14 15 On the Third Claim for Relief 1. General and specific damages, in an amount to be determined by the Court; and 16 2.Such other and further relief as the Court may deem just, proper and equitable. 17 On the Fourth Claim For Relief: 18 1. The greater of statutory damages, pursuant to 637(2)(a)(1) or three times the 19 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 20 21 2. Such other and further relief as the Court may deem just, proper and equitable. On the Fifth Claim for Relief. 22 23 1. An award of three times Plaintiff’s general and specific damages, pursuant to 1708.8(d) of the California Civil Code; 24 25 2. Disgorgement of any proceeds or other consideration obtained by Defendants as a result of thei violations of Plaintiff’s rights under 1708.8(d) of the Californai 26 Civil Code; 27 3. Punitive damages by reason of Defendants’ violations of Plaintiff’s rights under 1708.8(d) of the California Civil Code; and 28 4. Such 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; 10 MEMORANDUM IN SUPPORT OF MOTION FOR SANCTIONS

2 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.” 3 DEMAND FOR JURY TRIAL: 4 Plaintiff demands trial by jury.”

5 VS. 6 19. PETITIONER COMPLAINT IN INTERVENTION: PRAYER FOR 7 RELIEF (pg. 67) (attached as Exhibit #1 in Motion to Strike) 8 “1. An award of the maximum statutory actual damages, including profits made by 9 Defendanrts, pursuant to 18 U.S.C. 2707; 10 2. Punitive damages, pursuant to 18 U.S.C. 2707(b)(3); 11 3. Reasonable attorney’s fees and costs, pursuant to 18 U.S.C. 2707(b)(3)l and 4. Such other and further relief as the Court may deem just, proper and equitable. 12 13 On the Second Claim for Relief.

14 1. The greater of actual damages and any profits made by Defendants by 15 their violations of 18 U.S.C. 2520 and 2511, or statutory damages, pursuant to 18 U.S.C. 2520 16 2. Punitive damages, pursuant to 18 U.S.C. 2520 17 3. Reasonable attorneys’ fees and costs, pursuant to 18 U.S.C. 2520 4. Such other and further relief as the Court mauy deem just, proper and equitable. 18 19 On the Third Claim for Relief 1. General and specific damages, in an amount to be determined by the Court; and 20 2.Such other and further relief as the Court may deem just, proper and equitable. 21 On the Fourth Claim For Relief: 22 1. The greater of statutory damages, pursuant to 637(2)(a)(1) or three times the 23 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 24 25 2. Such other and further relief as the Court may deem just, proper and equitable. On the Fifth Claim for Relief. 26 27 1. An award of three times Plaintiff’s general and specific damages, pursuant to 1708.8(d) of the California Civil Code; 28 2. Disgorgement of any proceeds or other consideration obtained by Defendants as a result of their violations of Plaintiff’s rights under 1708.8(d) of the Californai 11 MEMORANDUM IN SUPPORT OF MOTION FOR SANCTIONS

2 Civil Code; 3. Punitive damages by reason of Defendants’ violations of Plaintiff’s rights under 3 1708.8(d) of the California Civil Code; and 4 4. Such other and further relief as the Court may deem just, proper and equitable. On the Sixth Claim for Relief: 5 1. Actual damages in an amount to be determined by the court; 6 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.” 7 DEMAND FOR JURY TRIAL: 8 Plaintiff demands trial by jury.”

9 20. Defendants misled Plaintiff on May 15, 2014 10 11 i. Page 2 “ex parte application” states:

12 “Notice of this Application was provided to Plaintiff’s counsel by telephone call on 13 May 15, 2014, and Plaintiff’s counsel advises that Plaintiff does not joint the ex parte and intends to oppose the motion to intervene. (Declaration of Louis A. Karasik 14 (“Karasik Decl.”), ¶ 7.)” 15 IV. CONCLUSION 16 17 21. For the reasons stated above, namely false statements and lies in

18 Defendant’s pleading, Petitioner requests Court approve this Motion for Sanctions 19 22. Legal Standard for FRCP Rule 11 20 21 Under Rule 11, the Federal Rules of Civil Procedure require that every

22 “paper” presented to the court with factual contentions “have evidentiary support,” and 23 that “denials of factual contentions are warranted on the evidence or, if specifically so 24 25 identified, are reasonably based on belief or a lack of information.” Fed. R. Civ. P. 11.

26 The Rule provides for sanctions against “any attorney, law firm, or party that violated 27 the rule or is responsible for the violation.” Id.; see also Worrell v. Houston Can! Academy, 28 2008 WL 2753405 at *3 (5th Cir. July 16, 2008).

12 MEMORANDUM IN SUPPORT OF MOTION FOR SANCTIONS

2 AUTHORITY FOR SANCTIONS 3 23. CA Statue 2023.010 provides the statuatory authority for sanctions to be 4 awarded against Defendant and/or his attorney of record. 5 6 DEFENDANT’S FALSE STATEMENTS

7 24. MR 4.1 provides that a lawyer shall not knowingly (1) make a false statement of material

8 fact or law to a third person.

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

10 fact or law to any judge or judicial officer.

11 ii. B&PC 6106 provides that the commission of any act of moral turpitude or

12 dishonesty constitutes a cause for disbarment or suspension. B&PC � 6106 is sufficiently broad to

13 prohibit false statements by lawyers to third parties.

14 iii. DR 7-102(A)(5) provides that "[i]n his representation of a client, a lawyer 15 shall not . . . [k]nowingly make a false statement of law or fact." 16 FALSE CLAIMS 17 25. It is also clear that a California lawyer may not make false or misleading 18 statements in affidavits or other court papers. See, e.g., Lee v. State Bar 19 (1970) 2 Cal.3d 927, 88 Cal.Rptr. 361, 472 P.2d 449 (disciplinary action against 20 lawyer who made false statements in sworn testimony); Sturr v. State Bar (1959) 21 52 Cal.2d 125, 338 P.2d 897 (involving affidavit containing false statements); 22 Vickers v. State Bar (1948) 32 Cal.2d 247, 196 P.2d 10 (disciplinary action 23 against lawyer who made false statement in proceeding for letters of special 24 administration that he was the surviving husband of decedent). 25

26 26. `Besides prohibiting false statements, the provisions of the B&PC prohibit all

27 forms of deceit, including selective presentation of incomplete facts. For

28 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

13 MEMORANDUM IN SUPPORT OF MOTION FOR SANCTIONS

2 other adverse material facts that may affect another's decision in the

3 transaction. Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (2nd Dist. 1976) 57

4 Cal.App.3d 104, 128 Cal.Rptr. 901. But see Price v. Superior Court (2nd Dist.

5 1983) 139 Cal.App.3d 518, 188 Cal.Rptr. 832 (criminal defense counsel must

6 disclose to prosecutor that another prosecutor had previously refused a plea

7 bargain that defense counsel was now proposing to the prosecutor). Moreover, a

8 California lawyer has an affirmative duty to correct prior misleading statements

9 by disclosing true facts or new information to persons who may act in reliance

10 on the original statement. Failure to disclose correct facts or new information

11 constitutes tortious abuse in California. See, e.g., Dyke v. Zaiser (4th Dist.

12 1947) 80 Cal.App.2d 639, 182 P.2d 344.

13 ii. C.O.P.R.A.C. Op. 93-131 (lawyer may not indirectly communicate using a client as 14 a ploy to obtain an unfair advantage; 15

16 iii.B&PC 6128 provides that "every attorney is guilty of a misdemeanor who . . . is

17 guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the

18 court or any party." Taken together, B&PC 6068(d) and B&PC 6128 require California lawyers to

19 be truthful in all statements, whether to the court, opposing parties, clients, or third parties.

20 21 DATED: May 23, 2014

22 Respectfully submitted, 23

24 25

26 Brad D. Greenspan 27 Pro Se 28

14 MEMORANDUM IN SUPPORT OF MOTION FOR SANCTIONS

2 Brad Greenspan, Pro Se 14938 Camden Ave 3 Suite 47 San Jose, CA 95124 4 Fax: (408)677-5655 5

6 7 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 8 9

10 EUNICE HUTHART, ) Case No. CV 13-4253 MWF 11 ) Plaintiff, ) Honorable Michael W. Fitzgerald 12 v. ) 13 ) ) 14 ) 15 ) ) MEMORANDUM IN SUPPORT 16 OF MOTION TO STRIKE 17 NEWS CORPORATION, NI GROUP LIMITED f/k/a NEWS ) 18 INTERNATIONAL LIMITED, ) 19 NEWS GROUP NEWSPAPERS ) 20 LIMITED, and JOHN and JANE ) 21 DOES 1-10 ) ) 22 Defendants. ) 23 ) ) 24 25

26 27

1 MEMORANDUM IN SUPPORT OF MOTION TO STRIKE

2 3 TABLE OF CONTENTS I. INTRODUCTION 4 II. SUMMARY OF ALLEGATIONS 5 III. ARGUMENT

6 IV. CONCLUSION 7

8 9

10 11

12 13

14 15

16 17

18 19

20 21

22 23

24 25

26 27

2 MEMORANDUM IN SUPPORT OF MOTION TO STRIKE

2 MEMORANDUM OF POINTS AND AUTHORITIES 3

4 I. INTRODUCTION

5 1. Petitioner moves the Court to strike its May 19, 2014 filed: 6 “DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE 7 MOTION FOR INTERVENTION OF BRAD GREENSPAN 8 PENDING THE COURT’S DETERMINATION ON DEFENDANTS’ MOTION TO DISMISS” 9

10 II. SUMMARY OF ALLEGATIONS 11 2. Petitioner files this Motion to Strike Defendant’s May 19, 2014 12 13 Pleading because it contains false statements and is underpinned by lies.

14 3. Under 12(f) petitioner may file a Motion to Strike

15 “any insufficient defense, redundancy, or scandalous matter”

16 4. Further, MR 4.1 provides that a lawyer shall not knowingly (1) make a false 17 statement of material fact or law to a third person. 18 i. B&PC 6068(d) prohibits California lawyers from making false 19 statements of fact or law to any judge or judicial officer. 20 ii. B&PC 6106 provides that the commission of any act of moral 21 turpitude or dishonesty constitutes a cause for disbarment or suspension. B&PC � 22 6106 is sufficiently broad to prohibit false statements by lawyers to third parties. 23 iii. DR 7-102(A)(5) provides that "[i]n his representation of a client, a 24 lawyer shall not . . . [k]nowingly make a false statement of law or fact." 25 26 5. It is also clear that a California lawyer may not make false or misleading

27 statements in affidavits or other court papers. See, e.g., Lee v. State Bar

28 (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)

3 MEMORANDUM IN SUPPORT OF MOTION TO STRIKE

2 52 Cal.2d 125, 338 P.2d 897 (involving affidavit containing false statements);

3 Vickers v. State Bar (1948) 32 Cal.2d 247, 196 P.2d 10 (disciplinary action

4 against lawyer who made false statement in proceeding for letters of special

5 administration that he was the surviving husband of decedent).

6 6. This broad interpretation is supported by the case law in California. For 7 example, in People v. Petas (1st Dist. 1989) 214 Cal.App.3d 70, 262 Cal.Rptr. 8 467, the court held that a lawyer could be charged with a misdemeanor where the 9 lawyer presented a false or fraudulent claim for payment of insurance by falsely 10 representing in insurance demand letters that the client's injuries resulted 11 from a single accident when the lawyer knew that they did not. 12

13 7. Besides prohibiting false statements, the provisions of the B&PC prohibit

14 all forms of deceit, including selective presentation of incomplete facts. For

15 example, a California lawyer may not author a legal opinion on a transaction

16 that discloses only facts favorable to his client where the lawyer is aware of

17 other adverse material facts that may affect another's decision in the

18 transaction. Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (2nd Dist. 1976) 57

19 Cal.App.3d 104, 128 Cal.Rptr. 901. But see Price v. Superior Court (2nd Dist.

20 1983) 139 Cal.App.3d 518, 188 Cal.Rptr. 832 (criminal defense counsel must

21 disclose to prosecutor that another prosecutor had previously refused a plea

22 bargain that defense counsel was now proposing to the prosecutor). Moreover, a

23 California lawyer has an affirmative duty to correct prior misleading statements

24 by disclosing true facts or new information to persons who may act in reliance

25 on the original statement. Failure to disclose correct facts or new information

26 constitutes tortious abuse in California. See, e.g., Dyke v. Zaiser (4th Dist. 1947) 80 Cal.App.2d 639, 182 P.2d 344. 27 8. B&PC 6128 provides that "every attorney is guilty of a misdemeanor who 28 . . . is guilty of any deceit or collusion, or consents to any deceit or collusion, with

4 MEMORANDUM IN SUPPORT OF MOTION TO STRIKE

2 intent to deceive the court or any party." Taken together, B&PC 6068(d) and B&PC

3 6128 require California lawyers to be truthful in all statements, whether to the court,

4 opposing parties, clients, or third parties.

5 ARGUMENT 6 9. Plaintiff admits to receiving and being in possession of petitioner’s 7

8 “proposed Complaint in Intervention” as of May 2, 2014.

9 “Greenspan additionally served on Defendants’ local counsel a proposed 10 Complaint in Intervention, “ (Document 65 Filed 05/19/14 Page 5 of 12)

11 12 FALSE STATEMENT #1: Document 65 Filed 05/19/14 Page 6 of 12

13 “Greenspan does not allege he is the victim” of “any allegedly wrongful conduct by Defendants similar to that complained of by Huthart. (Karasik 14 Decl., ¶ 4.)” 15 16 10. To determine if Statement #1 is false, the Court must review and compare

17 Defendant’s claim Petitioner “does not allege” “any allegedly wrongful 18 conduct by Defendants similar to that complained of by Huthart” 19 20 11. The Huthart complaint’s first claim:

21 i. “FIRST CLAIM FOR RELIEF (Violation Of The Stored 22 Communications Act, 18 U.S.C. 2701 and 2707- All Defendants)

23 ii. is exactly the same as Petitioner’s first claim: 24 “FIRST CLAIM FOR RELIEF (Violation Of The Stored 25 Communications Act, 18 U.S.C. 2701 and 2707- All Defendants) 26 (pg. 54 COMPLAINT IN INTERVENTION Exhibit #2 attached to Motion to Intervene) 27 28 12. The Huthart complaint’s second claim:

i. “SECOND CLAIM FOR RELIEF (Violation of Wiretap Act, 18

5 MEMORANDUM IN SUPPORT OF MOTION TO STRIKE

2 U.S.C. 2510, 2511 & 2520 – All Defendants)”

3 ii. is exactlty the same as Petitioner’s second claim: 4 “SECOND CLAIM FOR RELIEF (Violation of Wiretap Act, 18 U.S.C. 5 2510, 2511 & 2520 – All Defendants) 6 (pg. 56 COMPLAINT IN INTERVENTION Exhibit #2 attached to Motion to Intervene) 7

8 13. The Huthart complaint’s third claim:

9 i. “THIRD CLAIM FOR RELIEF (Violation of Article I, Section I Of 10 The California State Constitution – All Defendants)” 11 ii. is exactly the same as Petitioner’s third claim: 12 13 “THIRD CLAIM FOR RELIEF (Violation of Article I, Section I Of The California State Constitution – All Defendants) 14 (pg. 58 COMPLAINT IN INTERVENTION Exhibit #2 attached to 15 Motion to Intervene)

16 14. The Huthart complaint’s fourth claim: 17 i. “FOURTH CLAIM FOR RELIEF (Violation of California Penal 18 Code 630, 631, 632, 632.7 & 637(2)(a) – All Defendants)” 19 ii. is exactly the same as Petitioner’s fourth claim: 20 21 “FOURTH CLAIM FOR RELIEF (Violation of California Penal Code 630, 631, 632, 632.7 & 637(2)(a) – All Defendants)” 22 (pg. 59 COMPLAINT IN INTERVENTION Exhibit #2 attached to 23 Motion to Intervene)

24 25 15. The Huthart complaint’s fifth claim:

26 i. “FIFTH CLAIM FOR RELIEF (Violation of California Civil Code 27 1708.8(b), 1708.8(d) & 1708.8(e) – All Defendants)”

28 ii. is exactly the same as Petitioner’s fifth claim:

“FIFTH CLAIM FOR RELIEF (Violation of California Civil Code 6 MEMORANDUM IN SUPPORT OF MOTION TO STRIKE

2 1708.8(b), 1708.8(d) & 1708.8(e) – All Defendants)” (pg. 64 COMPLAINT IN INTERVENTION Exhibit #2 attached to 3 Motion to Intervene) 4 16. The Huthart complaint’s sixth claim: 5

6 i. “SIXTH CLAIM FOR RELIEF (Intrusion Into Private Affairs – California Common Law– All Defendants)” 7

8 iii. is exactly the same as Petitioner’s sixth claim:

9 “SIXTH CLAIM FOR RELIEF (Intrusion Into Private Affairs – 10 California Common Law– All Defendants)” 11 (pg. 65 COMPLAINT IN INTERVENTION Exhibit #2 attached to Motion to Intervene) 12

13 FALSE STATEMENT #2: Document 65 Filed 05/19/14 Page 6 of 12

14 “Greenspan does not allege he is the victim of any voicemail hacking” 15 17. Defendant’s claim petitioner “does not allege he is the victim of any 16 17 voicemail hacking” is a false statement and lie when compared to

18 Petitioner’s Complaint in Intervention that Defendant admits Defendant has received 19 and reviewed. 20 21 i. “46. Defendants violated 18 U.S.C. 2701 (a)(1), in that they accessed a “facility through which an electronic communication 22 service is provided.” (18 U.S.C. 2701(a)) by intentionally accessing 23 Plaintiff’s voicemails without authorization and obtaining and/or altering authorized access to a wire or electronic communication 24 while in electronic storage by collecting and accessing temporarily 25 stored voicemails or those maintained for purposes of backup protection. 26 47. Additionally, Defendants violated 18 U.S.C. 2701(a)(2) because 27 they intentionally exceeded or had no authorization to access Plaintiff’s communications and obtained, altered, or prevented 28 authorized access to a wire or electronic communication while in electronic storage by interfering with Plaintiff’s temporarily stored

7 MEMORANDUM IN SUPPORT OF MOTION TO STRIKE

2 voicemails, as disclosed hereinabove. Defendants had actual knowledge of, participated in, directed and/or approved of, and 3 benefitted from, this practice” 4 (pg. 54-69 COMPLAINT IN INTERVENTION Exhibit #2 attached to Motion to Intervene) 5

6 FALSE STATEMENT #3: Document 65 Filed 05/19/14 Page 8 of 12

7 “he has already filed a lawsuit in Delaware advancing these very claims.” 8 FALSE STATEMENT #4: (At footnote 4: Document 65 Filed 05/19/14 Page 9 of 12) 9

10 “the existence of a pending action in Delaware where Greenspan is 11 advancing the same claims that are the subject of the proposed intervention. 12 13 18. Delaware action cited by Defendants:

14 “VI. CLAIM COUNTS” on page 25, has 16 counts which consist of following: 15 “COUNT # 1 - § 1503 (a) Violation 16 COUNT # 2 - § 1503. (b) Violation 17 COUNT #3 - § 1503 (c) Violation COUNT # 4 - § 1503(d) Violations. 18 COUNT # 5 –§ 1504 TRIGGERED PETITIONER RIGHT TO CIVIL REMEDY 19 UNDER § 1505(f) COUNT # 6 - (BREACH OF AGREEMENT) 20 COUNT # 7 - (“inseparable fraud”) VIOLATION 21 COUNT #8 –PAREXEL TYPE FRAUD VIOLATION THRU FAILURE TO DISCLOSE “COMPLIANCE FAILURES” 22 COUNT #9 – RULING BASED ON DELAWARE STATUE AND CODE 1304 23 THAT 2004 MYSPACE TRANSFER AND 2005 TRANSACTIONS “FRAUDULENT” 24 COUNT #10 – VIOLATION OF DODD-FRANK WHISTLEBLOWER STATUTE – 25 SECTION 922) &18 U.S.C. §1513(e)) COUNT # 11 - Blasisus violation 26 COUNT # 12 - Contempt Violation 27 COUNT # 13 - Ruling certain transactions after October 17, 2003 are Void. COUNT # 14 - VOID Defendants right to exculpation under 102(b)(7) 28 COUNT #15 - Ruling certain transactions after October 17, 2003 are Void. COUNT #16 INDEMNIFICATION AND ADVANCEMENT CLAIMS”

8 MEMORANDUM IN SUPPORT OF MOTION TO STRIKE

2 19. Defendants lied in May 19, 2014 pleading because they read page 20 of

3 Motion for Intervention filed May 2, 2014 which stated: 4 “Claims And The Underlying Actions 5 33. The Proposed Intervenor claims are based upon same 6 violations of federal law as the underlying action.”

7 And the first page of the Complaint in Intervention shows the Claims in the Complaint 8 in Intervention are identical to Plaintiff Huthart and are not the same claims filed in 9

10 Delaware which are listed in paragraph 16 above. Comparing: 11 “1. This is a civil action brought against Defendants for damages for violations 12 of Plaintiff’s right to privacy; for the unlawful access to stored communicationl 13 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; 14 18 U.S.C. 2510, 2511, 2520; Article I, Section 1of the California State 15 Constituion; 630-637.0 of the California Penal Code; 1708.8 of the California Civil Code; and California common law. 16 JURISDICTION AND VENUE 2. This action is brought pursuant to 18 U.S.C. 17 2701 and 2707, 18 U.S.C. 2510, 2511 and 2520. “

18 19 COLLATERAL CHALLENGE AND ATTACK WITHOUT GRANTING MOTION TO STRIKE INEQUITABLE, UNTIMELY, “DEFENDANTS’ EX 20 PARTE APPLICATION TO CONTINUE MOTION FOR INTERVENTION” 21 ERRONEOUSLY GIVES DEFENDANT EX PARTE UNREPLIABLE SUMMARY JUDGEMENT PLEADING 22 23 FALSE STATEMENT #5: (At footnote 4: Document 65 Filed 05/19/14 Page 9 of 12)

24 “1 Among other things, Greenspan’s intervention pleadings violate Federal Rule 25 of Civil Procedure Rule 8, fail to state any coherent much less cognizable claim for relief, “ 26 27 COMPARE “PRAYER FOR RELIEF”

28 20. PAGE 35-37 HUTHART ORIGINALLY AND ONLY FILED COMPLAINT: 9 MEMORANDUM IN SUPPORT OF MOTION TO STRIKE

2 “1. An award of the maximum statutory actual damages, including profits made by 3 Defendanrts, pursuant to 18 U.S.C. 2707; 4 2. Punitive damages, pursuant to 18 U.S.C. 2707(b)(3); 3. Reasonable attorney’s fees and costs, pursuant to 18 U.S.C. 2707(b)(3)l and 5 4. Such other and further relief as the Court may deem just, proper and equitable. 6 On the Second Claim for Relief. 7

8 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 9 U.S.C. 2520 10 2. Punitive damages, pursuant to 18 U.S.C. 2520 11 3. Reasonable attorneys’ fees and costs, pursuant to 18 U.S.C. 2520 4. Such other and further relief as the Court mauy deem just, proper and 12 equitable. 13 On the Third Claim for Relief 14 1. General and specific damages, in an amount to be determined by the Court; and 15 2.Such other and further relief as the Court may deem just, proper and equitable.

16 On the Fourth Claim For Relief: 17 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 18 631 and 632 of the California Penal Code, pursuant to 637(2)(a)(2)l and 19 2. Such other and further relief as the Court may deem just, proper and equitable. 20 On the Fifth Claim for Relief. 21 1. An award of three times Plaintiff’s general and specific damages, pursuant to 22 1708.8(d) of the California Civil Code; 23 2. Disgorgement of any proceeds or other consideration obtained by Defendants as a 24 result of thei violations of Plaintiff’s rights under 1708.8(d) of the Californai 25 Civil Code; 3. Punitive damages by reason of Defendants’ violations of Plaintiff’s rights under 26 1708.8(d) of the California Civil Code; and 27 4. Such other and further relief as the Court may deem just, proper and equitable. On the Sixth Claim for Relief: 28 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.” 10 MEMORANDUM IN SUPPORT OF MOTION TO STRIKE

2 DEMAND FOR JURY TRIAL: Plaintiff demands trial by jury.” 3

4 VS.

5 21. PETITIONER COMPLAINT IN INTERVENTION: PRAYER FOR 6 RELIEF (pg. 67) (attached as Exhibit #1)

7 “1. An award of the maximum statutory actual damages, including profits made by 8 Defendanrts, pursuant to 18 U.S.C. 2707; 2. Punitive damages, pursuant to 18 U.S.C. 2707(b)(3); 9 3. Reasonable attorney’s fees and costs, pursuant to 18 U.S.C. 2707(b)(3)l and 10 4. Such other and further relief as the Court may deem just, proper and equitable. 11 On the Second Claim for Relief. 12 13 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 14 U.S.C. 2520 15 2. Punitive damages, pursuant to 18 U.S.C. 2520 3. Reasonable attorneys’ fees and costs, pursuant to 18 U.S.C. 2520 16 4. Such other and further relief as the Court mauy deem just, proper and 17 equitable.

18 On the Third Claim for Relief 19 1. General and specific damages, in an amount to be determined by the Court; and 2.Such other and further relief as the Court may deem just, proper and equitable. 20 21 On the Fourth Claim For Relief: 1. The greater of statutory damages, pursuant to 637(2)(a)(1) or three times the 22 actual damages Plaintiff suffered for each instance in which Defendants violated 23 631 and 632 of the California Penal Code, pursuant to 637(2)(a)(2)l and

24 2. Such other and further relief as the Court may deem just, proper and equitable. 25 On the Fifth Claim for Relief.

26 1. An award of three times Plaintiff’s general and specific damages, pursuant to 27 1708.8(d) of the California Civil Code;

28 2. Disgorgement of any proceeds or other consideration obtained by Defendants as a result of their violations of Plaintiff’s rights under 1708.8(d) of the Californai Civil Code; 11 MEMORANDUM IN SUPPORT OF MOTION TO STRIKE

2 3. Punitive damages by reason of Defendants’ violations of Plaintiff’s rights under 1708.8(d) of the California Civil Code; and 3 4. Such other and further relief as the Court may deem just, proper and 4 equitable. On the Sixth Claim for Relief: 1. Actual damages in an amount to be determined by the court; 5 2. Punitive Damages in an amount to be determined by the Court; and 6 3. Such other and further relief as the Court may deem just, proper and equitable.” DEMAND FOR JURY TRIAL: 7 Plaintiff demands trial by jury.” 8 22. Defendants misled Plaintiff on May 15, 2014 9

10 i. Page 2 “ex parte application” states: 11 “Notice of this Application was provided to Plaintiff’s counsel by telephone call on 12 May 15, 2014, and Plaintiff’s counsel advises that Plaintiff does not joint the ex parte 13 and intends to oppose the motion to intervene. (Declaration of Louis A. Karasik (“Karasik Decl.”), ¶ 7.)” 14 15 IV. CONCLUSION

16 For the reasons stated above, namely false statements and lies in Defendant’s pleading, 17 Petitioner requests Court approve this Motion to Strike May 19, 2014 Pleading by 18 19 Defendant.

20 21 DATED: May 23, 2014

22 Respectfully submitted, 23

24 25

26 Brad D. Greenspan 27 Pro Se 28

12 MEMORANDUM IN SUPPORT OF MOTION TO STRIKE

2 EXHIBIT #1 3

10 11

12 13

14 15

16 17

18 19

20 21

22 23

24 25

26 27

13 MEMORANDUM IN SUPPORT OF MOTION TO STRIKE

2 EXHIBIT #2

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

14 MEMORANDUM IN SUPPORT OF MOTION TO STRIKE

Case 2:13-cv-04253-MWF-AJW Document 66 Filed 05/21/14 Page 1 of 22 Page ID #:2069

UNITED STATES DISTRICT COURT JS-6 CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Case No. CV-13-04253-MWF (AJWx) Date: May 21, 2014 Title: Eunice Huthart -v- News Corporation, et al.

Present: The Honorable MICHAEL W. FITZGERALD, U.S. District Judge

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.DEADLINE.com 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 Huthart’s 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

______CIVIL MINUTES—GENERAL 1

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UNITED STATES DISTRICT COURT JS-6 CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Case No. CV-13-04253-MWF (AJWx) Date: May 21, 2014 Title: Eunice Huthart -v- News Corporation, et al.

On June 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 January 2004 to mid-June 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 Jolie. (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 Jolie. (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). OnDEADLINE.com January 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 England’s managed litigation system set up to deal with claims arising from the Hacking Scheme, the Mobile Telephone Voicemail Interception Litigation (“MTVIL”), would accept Huthart’s 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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UNITED STATES DISTRICT COURT JS-6 CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Case No. CV-13-04253-MWF (AJWx) Date: May 21, 2014 Title: Eunice Huthart -v- News Corporation, et al.

On March 17, 2014, Defendants filed a Supplemental Briefing Pursuant to the Court’s 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 (“Huthart’s 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 Huthart’s access to the regular civil litigation system of England, as opposed to the specialized venues established to address the Hacking Scheme. Accordingly, the Court’s analysis and conclusion would have not differed, regardless of whether the objections were sustained are overruled. Therefore, bothDEADLINE.com 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 court’s 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 Judicial Notice in Support of Motion to Dismiss (“Defendants’ First Request”) (Docket No. 41- ______CIVIL MINUTES—GENERAL 3

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UNITED STATES DISTRICT COURT JS-6 CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Case No. CV-13-04253-MWF (AJWx) Date: May 21, 2014 Title: Eunice Huthart -v- News Corporation, et al.

8), and (2) Request for Judicial 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 Jane 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 Inquiry’s website, and is appropriate for judicial notice. See Matthews v. Nat’l Football Council, 688 F.3d 1107, 1113 & n.5 (9th Cir. 2012) (taking judicial notice of relevant statistics available on the NFL’s website); O’Toole 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, DefendantsDEADLINE.com 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 Judicial Notice in Opposition to Motion to Dismiss (“Huthart’s 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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Case 2:13-cv-04253-MWF-AJW Document 66 Filed 05/21/14 Page 5 of 22 Page ID #:2073

UNITED STATES DISTRICT COURT JS-6 CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Case No. CV-13-04253-MWF (AJWx) Date: May 21, 2014 Title: Eunice Huthart -v- News Corporation, et al.

Therefore, Huthart’s Request is GRANTED as to items 1-7, 13, and 14. The remainder of Huthart’s 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 Huthart’s 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 defendant’s 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 suitableDEADLINE.com arbiter of the merits of the case.

Sinochem Int’l Co. Ltd. v. Malaysia Int’l 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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UNITED STATES DISTRICT COURT JS-6 CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Case No. CV-13-04253-MWF (AJWx) Date: May 21, 2014 Title: Eunice Huthart -v- News Corporation, et al.

but that courts should apply the doctrine of forum non conveniens in cases seeking transfer to a “nonfederal forum”); Sinochem Int’l, 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 Int’l, 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”) (DocketDEADLINE.com 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 June 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. (Huthart’s 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. (Huthart’s 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 Huthart’s 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, essentiallyDEADLINE.com 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 Plaintiff’s Objection to Defendant’s 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 Huthart’s 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 Huthart’s 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.DEADLINE.com (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. (Huthart’s 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), Huthart’s 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 January 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. (Huthart’s 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 indicateDEADLINE.com that if Huthart’s 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 ______CIVIL MINUTES—GENERAL 9

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file suit in the English Civil Court Proceedings.” (Huthart’s 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. (Huthart’s Brief at 7 & n.4). As noted above, the fact or possibility that Huthart’s 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 Huthart’s 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 Huthart’s injuries. Huthart arguesDEADLINE.com 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. (Huthart’s Brief at 8). However, Defendants have established that claims against NI and News Corp. would not be barred from the MTVIL, so long as Huthart’s claims meet the basic criteria. (Third Orr Decl. ¶ 6; see also Third Declaration of Christa Jane 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. (Huthart’s 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 NGN’s hacking activity, failed to stop NGN’s hacking, and participated in the cover-up of the hacking. (Huthart’s 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,DEADLINE.com 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. Huthart’s 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 Complaint’s 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. (Huthart’s 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. (Huthart’s 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 investigatorsDEADLINE.com and journalists engaged in the above activities with regard to Huthart’s 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 Huthart’s 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 Huthart’s 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 ______CIVIL MINUTES—GENERAL 12

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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 Huthart’s 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 DEADLINE.comin 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 Huthart’s 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 plaintiff’s choice of forum should rarely be disturbed.” Gulf Oil, 330 U.S. at 508. However, “a foreign plaintiff’s 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 plaintiff’s 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 plaintiff’s 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 Telecommc’ns 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 deferenceDEADLINE.com 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 Huthart’s 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 forum’s 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 Jolie and employees of her California company, are located in California. (Opp. at 8; Huthart Decl. ¶ 14).

“[A] court’s 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 NGN’s 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 DEADLINE.comis that collected by the London Metropolitan Police Service since it connects Defendants’ agents to the Hacking Scheme. For example, the Complaint alleges that Huthart’s “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 Jolie 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 Huthart’s choice of forum, it appears that the first factor weighs in favor of England.

Second, with regard to the forum’s 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 Huthart’s residence in England, the Court cannot assume that litigation in this forum would be convenient for her. “When the [plaintiff’s] 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 forum’s 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 betweenDEADLINE.com private investigators and NGN, and documents relating to British news stories that allegedly published information taken from Huthart’s 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 Court’s 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 Nat’l Bank v. Banque Paribas, 135 F. Supp. 2d 443, 450DEADLINE.com (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 Jonathan 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.

Accordingly, this factor weighs in favor of 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 Jolie, can access this forum with relative ease, this forum appears to be less accessible to NGN’s former and current employees, especially those facing criminal charges.

Accordingly, this factor weighs in favor of England.

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 Huthart’s 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 districtDEADLINE.com court’s 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 court’s familiarity with governing law,” (3) “burden on local courts ______CIVIL MINUTES—GENERAL 18

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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 theDEADLINE.com 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 Huthart’s 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 England’s 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 commitmentDEADLINE.com 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 court’s 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 England’s 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 Court’s 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 DEADLINE.commore efficient mechanism for resolving Huthart’s 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 court’s 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 Huthart’s choice of forum and acknowledging that California has a minimal interest in this action, the private interest factors and England’s 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 Court’s 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. DEADLINE.com

______CIVIL MINUTES—GENERAL 22

Case 2:13-cv-04253-MWF-AJW Document 65 Filed 05/19/14 Page 1 of 12 Page ID #:1929

1 Louis A. Karasik (Cal. Bar # 100672) Alston & Bird LLP 2 333 South Hope Street, 16th Floor Los Angeles, CA 90071-3004 3 Telephone: (213) 576-1148 Facsimile: (213) 576-1100 4 Email: [email protected]

5 Brendan V. Sullivan ( Pro Hac Vice ) Tobin J. Romero ( Pro Hac Vice ) 6 Joseph M. Terry ( Pro Hac Vice ) Jonathan B. Pitt ( Pro Hac Vice ) 7 Williams & Connolly LLP 725 Twelfth Street, N.W. 8 Washington, DC 20005 Telephone: (202) 434-5000 9 Facsimile: (202) 434-5029 Email: [email protected] 10 Counsel for Defendants News 11 Corporation, NI Group Limited f/k/a News International Limited, News Group 12 Newspapers Limited

13 UNITED STATES DISTRICT COURT 14 CENTRAL DISTRICT OF CALIFORNIA 15 EUNICE HUTHART, ) Case No. CV 13-4253 MWF (AJWx) 16 ) 17 Plaintiff, ) Honorable Michael W. Fitzgerald ) 18 v. ) DEFENDANTS’ EX PARTE ) APPLICATION TO CONTINUE 19 NEWS CORPORATION, NI GROUP ) MOTION FOR INTERVENTION 20 LIMITED f/k/a NEWS ) OF BRAD GREENSPAN INTERNATIONAL LIMITED, NEWS ) PENDING THE COURT’S 21 GROUP NEWSPAPERS LIMITED, ) DETERMINATION ON and JOHN and JANE DOES 1-10, ) DEFENDANTS’ MOTION TO 22 ) DISMISS Defendants. ) 23 ) [Filed concurrently with Declaration 24 ) of Louis A. Karasik and [Proposed] Order] 25 Date: TBD Time: TBD 26 Courtroom: 1600 27 Complaint Filed: June 13, 2013 28

EX PARTE APPLICATION LEGAL02/34840112v1 Case 2:13-cv-04253-MWF-AJW Document 65 Filed 05/19/14 Page 2 of 12 Page ID #:1930

1 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: 2 PLEASE TAKE NOTICE that Defendants News Corporation, NI Group 3 Limited, and News Group Newspapers Limited (collectively “Defendants”) hereby 4 apply ex parte to continue the June 30, 2014 hearing on the pro se motion to 5 intervene filed on May 2, 2014 by Brad Greenspan (“Greenspan”), pending the 6 Court’s determination on Defendants’ Motion to Dismiss the underlying action. If 7 the Motion to Dismiss, which presently is under submission after supplemental 8 briefing filed by the parties on March 17, 2014, is granted, Greenspan’s intervention 9 motion will be moot. 10 As set forth more fully in the accompanying Memorandum of Points and 11 Authorities and the Declaration of Louis A. Karasik filed concurrently herewith, a 12 continuance of the hearing and the time for filing any opposition papers by 13 Defendants regarding Greenspan’s pro se motion will promote judicial economy and 14 avoid potentially unnecessary proceedings to address the many defects apparent on 15 the face of Greenspan’s rambling and incoherent pleadings. Greenspan seeks to 16 intervene to air accusations against California State Senators and United States 17 Congressman for allegedly participating in vague, undefined conspiracies with 18 companies such as Google, Yahoo, AOL, JP Morgan and many others, including 19 News Corp., related in some way to News Corp.’s acquisition of MySpace nearly ten 20 years ago. If Defendants’ pending Motion to Dismiss is granted, Greenspan’s 21 motion to intervene will be moot because there will be no underlying action, and thus 22 no proceeding in which Greenspan might seek to intervene. A postponement may 23 thus avoid the Court having to hear an unnecessary motion and avoid the necessity of 24 Defendants responding to the pleadings submitted by Greenspan, promoting judicial 25 economy for all parties and the Court. A continuance of this matter would not 26 prejudice Greenspan, particularly since he is pursuing substantially similar claims in 27 a lawsuit filed in the Delaware Court of Chancery. In contrast, if Defendants were 28 1 EX PARTE APPLICATION LEGAL02/34840112v1 Case 2:13-cv-04253-MWF-AJW Document 65 Filed 05/19/14 Page 3 of 12 Page ID #:1931

1 required to oppose Greenspan’s motion prior to a decision on the Motion to Dismiss, 2 they would be forced to incur fees and costs to detail the many reasons the pro se 3 motion fails to state grounds to intervene 1—costs that would be unnecessary in the 4 event that this Court rules that this case should be dismissed under the doctrine of 5 forum non conveniens . 6 /// 7 /// 8 /// 9 /// 10 /// 11 /// 12 /// 13 /// 14 /// 15 This Application is being made pursuant Local Rule 7-19 and this Court’s 16 courtroom procedures and standing order. Notice of this Application was provided 17 to Plaintiff’s counsel by telephone call on May 15, 2014, and Plaintiff’s counsel 18 advises that Plaintiff does not joint the ex parte and intends to oppose the motion to 19 intervene. (Declaration of Louis A. Karasik (“Karasik Decl.”), ¶ 7.) The only 20 contact information provided in Greenspan’s papers are a mailing address, so 21 Defendants attempted to provide notice of this Application to Greenspan by 22 attempting to hand deliver a letter to that address on May 16, 2014. (Karasik Decl., ¶ 23 24 25 1 Among other things, Greenspan’s intervention pleadings violate Federal Rule of Civil Procedure Rule 8, fail to state any coherent much less cognizable claim for 26 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 27 the statute of limitations and the existence of a pending action in Delaware where Greenspan has filed substantially the same disjointed allegations. 28 2 EX PARTE APPLICATION LEGAL02/34840112v1 Case 2:13-cv-04253-MWF-AJW Document 65 Filed 05/19/14 Page 4 of 12 Page ID #:1932

1 8.) The address provided by Greenspan was a rented mailbox, and we were advised 2 by the proprietor that it was canceled over a year ago for nonpayment. 3 Dated: May 19, 2014 4

5 ALSTON & BIRD LLP

6 By: /s/Louis A. Karasik 7 Louis A. Karasik (Bar # 100672)

8 Counsel for Defendants News Corporation, NI Group Limited f/k/a News International Limited, 9 News Group Newspapers Limited

10 WILLIAMS & CONNOLLY LLP 11

12 By: /s/Brendan V. Sullivan Brendan V. Sullivan ( pro hac vice ) 13 Tobin J. Romero ( pro hac vice ) Joseph M. Terry ( pro hac vice ) 14 Jonathan B. Pitt ( pro hac vice )

15 Counsel for Defendants News Corporation, NI Group Limited f/k/a News International Limited, 16 News Group Newspapers Limited 17 18 19 20 21 22 23 24 25 26 27 28 3 EX PARTE APPLICATION LEGAL02/34840112v1 Case 2:13-cv-04253-MWF-AJW Document 65 Filed 05/19/14 Page 5 of 12 Page ID #:1933

1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Defendants News Corporation, NI Group Limited, and News Group 4 Newspapers Limited (collectively “Defendants”) make this Ex Parte Application in 5 order to avoid the premature and potentially unnecessary briefing and consideration 6 of a frivolous pro se motion to intervene filed by Brad Greenspan. Specifically, 7 Defendants seek a continuance of the motion to intervene until such time as the 8 Court rules on Defendants’ Motion to Dismiss the underlying action, which, if 9 granted, would render moot Greenspan’s motion to intervene and spare the Court 10 and the parties from the burden of considering and briefing Greenspan’s meritless 11 and unintelligible motion. 12 Plaintiff Eunice Huthart (“Huthart” or “Plaintiff”) filed her complaint on June 13 13, 2013. The suit concerns allegations of voicemail hacking that occurred in the 14 United Kingdom. Defendants filed a Motion to Dismiss Huthart’s complaint on 15 September 20, 2013. 2 (See Declaration of Louis A. Karasik (“Karasik Decl.”), ¶ 2.) 16 The Motion to Dismiss came on for hearing on February 24, 2014. ( Id .) 17 Supplemental briefing related to the issue of forum non conveniens —and specifically 18 whether Huthart could bring her claims in England—was ordered on February 25, 19 2014 and was concluded in March 2014. ( Id .) The matter remains under 20 submission. 21 Pro se litigant Greenspan filed a purported motion to intervene and related 22 papers on May 2, 2014. 3 His pleadings were served on counsel for Defendants in 23 2 Defendants’ Motion to Dismiss refers to the Motion to Dismiss Case Under 24 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 25 Corporation et al ., Case No. CV 13-4253 MWF (AJWx), Dkt. No. 41. 26 3 Greenspan’s 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 27 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 28 (cont'd) 4 EX PARTE APPLICATION LEGAL02/34840112v1 Case 2:13-cv-04253-MWF-AJW Document 65 Filed 05/19/14 Page 6 of 12 Page ID #:1934

1 Los Angeles, but not on Defendants’ lead counsel, the Williams & Connolly firm in 2 Washington, D.C. (Karasik Decl., ¶ 3.) The matter has been set for hearing on June 3 30, 2014. 4 Greenspan’s motion to intervene has nothing to do with Huthart’s complaint. 5 Greenspan does not allege he is the victim of any voicemail hacking or any allegedly 6 wrongful conduct by Defendants similar to that complained of by Huthart. (Karasik 7 Decl., ¶ 4.) Rather, Greenspan appears to allege, though the incoherent nature of his 8 allegations makes it difficult to discern, that he has been harmed by a vast conspiracy 9 involving everything from allegedly wrongful employment practices by technology 10 companies like Google, Intel and Yahoo to the bribery of and misconduct by 11 California State Senators and United States Congressmen. The intervention papers 12 advance convoluted claims that all of this misconduct is related in some fashion to 13 News Corp.’s acquisition in 2005 of Intermix Media Inc., which owned and operated 14 several websites including MySpace. ( See Exh. A to Karasik Decl., Greenspan’s 15 Complaint in Intervention at 3:20-67:24.) This is not the first time Greenspan has 16 filed claims on that subject: Greenspan was the founder of E-Universe, the 17 predecessor of Intermix; his claims challenging News Corp.’s acquisition of 18 MySpace and several other attempts to raise challenges to that transaction have been 19 dismissed over the years by both state and federal courts. The first dismissal of 20 Greenspan’s challenges to the MySpace transaction was in 2006. See Greenspan v. 21 Intermix Media, Inc ., Case No. B196434, 2008 WL 4837565 (Cal. App. Nov. 10, 22 2008)) (affirming 2006 dismissal of individual and shareholder actions brought by 23 Greenspan challenging the MySpace transaction). The next attempt to challenge the 24 transaction was rejected in Brown v. Brewer , Case No. 2:06-cv-3731 (C.D. Cal.), 25 where the federal court in 2010 dismissed Greenspan as a putative class member

26 ______(cont'd from previous page) 27 Complaint in Intervention, attached to the Karasik Declaration, that has not been filed with the Court. 28 5 EX PARTE APPLICATION LEGAL02/34840112v1 Case 2:13-cv-04253-MWF-AJW Document 65 Filed 05/19/14 Page 7 of 12 Page ID #:1935

1 from a shareholder derivative action challenging the merger, and in 2011 denied 2 Greenspan’s motion to intervene in that matter. (Karasik Decl., ¶ 5; Exhibits B and 3 C.) Though Greenspan’s involvement in these matters has been concluded for 4 several years, Greenspan most recently filed a pro se complaint on April 22, 2014 in 5 the Delaware Court of Chancery, naming News Corp. and twenty other defendants in 6 a pleading that advances the same or similar conspiracy claims found in the 7 intervention papers, all tied to the acquisition of Intermix in 2005. See Greenspan v. 8 News Corp. et al ., Case No. 9567 (Del. Ch. April 22, 2014). (Karasik Decl., ¶ 5; 9 Exh. D.) The apparent purpose of the proposed intervention is to air Greenspan’s 10 views that hacking incidents in the UK show that News Corp. has engaged in bad 11 acts—albeit wholly unrelated to those of which he complains. See Dkt. No. 62, 12 Greenspan Memorandum in Support of Motion to Intervene at 5:1-18. 13 As detailed below, if Defendants’ pending Motion to Dismiss is granted, 14 Greenspan’s intervention will be moot. Ex parte relief to postpone Greenspan’s 15 further pursuit of his incoherent intervention proceeding will promote the interests of 16 judicial economy and avoid potentially unnecessary proceedings. 17 II. JUDICIAL ECONOMY IS ACHIEVED BY CONTINUING THE 18 INTERVENTION MOTION BECAUSE GREENSPAN’S MOTION 19 WILL BE MOOT IF THE UNDERLYING ACTION IS DISMISSED 20 The Court may issue ex parte relief extending the time within which an act is 21 required or allowed to be done upon a showing of good cause. Fed. R. Civ. P. 6(b). 22 “Good cause” is broadly construed in a manner that affords the Court broad 23 discretion to manage its calendar. Ahanchian v. Xenon Pictures, Inc. , 624 F.3d 1253, 24 1259 (9th Cir. 2010); Danjaq LLC v. Sony Corp. , 263 F.3d 942, 961 (9th Cir. 2001) 25 (noting that a court has broad discretion in granting continuances). “[R]equests for 26 extensions of time made before the applicable deadline has passed should normally . 27 . . be granted in the absence of bad faith on the part of the party seeking relief or 28 6 EX PARTE APPLICATION LEGAL02/34840112v1 Case 2:13-cv-04253-MWF-AJW Document 65 Filed 05/19/14 Page 8 of 12 Page ID #:1936

1 prejudice to the adverse party.” Ahanchian , 624 F.3d at 1259. (internal citations 2 omitted.) Here, the deadline to oppose Greenspan’s intervention has not passed, the 3 applying Defendants have not acted in bad faith, and there is no prejudice to 4 Greenspan. Good cause exists for a continuance of Greenspan’s motion to intervene 5 because it would promote the most efficient use of the Court’s and the parties’ 6 resources. A postponement of the matter would give the court time to rule on 7 Defendants’ pending motion to dismiss before the parties are forced to incur the cost 8 of responding to Greenspan’s convoluted motion. If Defendants’ Motion to Dismiss 9 is granted, Greenspan’s intervention would be moot because a prerequisite for 10 intervention is the existence of an underlying action. See Hartley Pen Co. v. Lindy 11 Pen Co ., 16 F.R.D. 141, 146 (S.D. Cal. 1954) (“A pending suit within federal 12 jurisdiction is by definition prerequisite to intervention.”); see also Arakaki v. 13 Cayetano , 324 F.3d 1078, 1083 (9th Cir. 2003) (intervention inappropriate where 14 underlying claim dismissed). 15 An application for a continuance of a hearing is the type of routine 16 administrative relief that is particularly appropriate on an ex parte basis. See In re 17 Intermagnetics Am., Inc ., 101 B.R. 191, 193-94 (C.D. Cal. 1989) (noting that 18 “legitimate ex parte applications . . . may be necessary when a party seeks a routine 19 order” such as adjusting the hearing date of a motion). This Motion simply seeks to 20 ensure the proper sequencing of motions. There is no prejudice to Greenspan from a 21 continuance. See Fuller v. Amerigas Propane, Inc ., C 09-2493TEH, 2009 WL 22 2390358 at*1 (N.D. Cal. Aug. 3, 2009) (no prejudice in connection with a short 23 delay). Indeed, there is no possible prejudice to Greenspan, because he does not 24 need to intervene in this matter to raise his assertions: he has already filed a lawsuit 25 in Delaware advancing these very claims. Defendants, by contrast, would be 26 significantly prejudiced if forced to respond at this time to Greenspan’s motion, 27 especially if Defendants’ substantive opposition is mooted by the subsequent 28 7 EX PARTE APPLICATION LEGAL02/34840112v1 Case 2:13-cv-04253-MWF-AJW Document 65 Filed 05/19/14 Page 9 of 12 Page ID #:1937

1 dismissal of the case on Defendants’ pending Motion to Dismiss. See In re Apple 2 iPhone 3G Products Liab. Litig ., C 09-02045 JW, 2010 WL 9517400 at *2 (N.D. 3 Cal. Dec. 9, 2010) (holding that prejudice to defendants and to the court of moving 4 forward with proceedings that could be mooted by other proceedings supported a 5 stay). And in the event that the Motion to Dismiss is denied, Greenspan’s Motion to 6 Intervene may be properly addressed at that time. 4 7 /// 8 /// 9 /// 10 /// 11 /// 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 24 4 As noted in the ex parte application, Plaintiffs intend to oppose Greenspan’s purported motion, and if opposition is required, Defendants will show that 25 Greenspan’s 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 26 re-litigate Greenspan’s 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 27 existence of a pending action in Delaware where Greenspan is advancing the same claims that are the subject of the proposed intervention. 28 8 EX PARTE APPLICATION LEGAL02/34840112v1 Case 2:13-cv-04253-MWF-AJW Document 65 Filed 05/19/14 Page 10 of 12 Page ID #:1938

1 III. CONCLUSION 2 Good cause exists for a continuance because a postponement of the 3 intervention motion would allow the Court to rule on Defendants’ pending Motion to 4 Dismiss without requiring the parties or the Court to expend time and effort to 5 respond to a motion that could be rendered moot. Defendants respectfully request 6 that this Court postpone any hearing on Greenspan’s motion in order to promote 7 judicial economy and minimize prejudice to Defendants. 8 Dated: May 19, 2014 9

10 ALSTON & BIRD LLP

11 By: /s/Louis A. Karasik 12 Louis A. Karasik (Bar # 100672)

13 Counsel for Defendants News Corporation, NI Group Limited f/k/a News International Limited, 14 News Group Newspapers Limited

15 WILLIAMS & CONNOLLY LLP 16

17 By: /s/Brendan V. Sullivan Brendan V. Sullivan ( pro hac vice ) 18 Tobin J. Romero ( pro hac vice ) Joseph M. Terry ( pro hac vice ) 19 Jonathan B. Pitt ( pro hac vice )

20 Counsel for Defendants News Corporation, NI Group Limited f/k/a News International Limited, 21 News Group Newspapers Limited

22 23 24 25 26 27 28 9 EX PARTE APPLICATION LEGAL02/34840112v1 Case 2:13-cv-04253-MWF-AJW Document 65 Filed 05/19/14 Page 11 of 12 Page ID #:1939

1 CERTIFICATE OF SERVICE 2 I declare that I am over the age of eighteen (18) and not a party to this action. 3 My business address is 333 South Hope Street, 16th Floor, Los Angeles, CA 90071- 4 1410. 5 On May 19, 2014, I served the following document(s): EX PARTE 6 APPLICATION on the following parties in case CV 13-4253 MWF (AJWx) via 7 either Notice of Electronic Filing generated by the Court’s CM/ECF system, 8 pursuant to the Court’s local rules. 9 I declare under penalty of perjury under the laws of the United States of 10 America that the foregoing is true and correct. 11

12 /s/ Louis A. Karasik Attorney for Defendant 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 EX PARTE APPLICATION LEGAL02/34840112v1 Case 2:13-cv-04253-MWF-AJW Document 65 Filed 05/19/14 Page 12 of 12 Page ID #:1940

1 PROOF OF SERVICE

2 I, Louis A. Karasik, declare:

3 I am employed in the County of Los Angeles, State of California. My business 4 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 5 service is made. 6 On May 19, 2014, I served the document(s) described as EX PARTE 7 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: 8 Brad D. Greenspan 9 264 South La Cienega Blvd. Unit 1216 10 Beverly Hills, CA 90211

11 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 12 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 13 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 14 for collection and mailing with the United States Postal Service such envelope at ALSTON + BIRD LLP, 333 South Hope Street, Los Angeles, California 90071. 15

16 [Federal] I declar e under penalty of perjury that the foregoing is true and correct. 17

18 Executed on May 19, 2014, at Los Angeles, California.

20 /s/ Louis A. Karasik Louis A. Karasik 21

22 23 24 25 26 27 28 11 EX PARTE APPLICATION LEGAL02/34840112v1 Case 2:13-cv-04253-MWF-AJW Document 65 Filed 05/19/14 Page 1 of 12 Page ID #:1929

EX PARTE APPLICATION LEGAL02/34840112v1 Case 2:13-cv-04253-MWF-AJW Document 65 Filed 05/19/14 Page 2 of 12 Page ID #:1930

1 8.) The address provided by Greenspan was a rented mailbox, and we were advised 2 by the proprietor that it was canceled over a year ago for nonpayment. 3 Dated: May 19, 2014 4

5 ALSTON & BIRD LLP

6 By: /s/Louis A. Karasik 7 Louis A. Karasik (Bar # 100672)

8 Counsel for Defendants News Corporation, NI Group Limited f/k/a News International Limited, 9 News Group Newspapers Limited

10 WILLIAMS & CONNOLLY LLP 11

12 By: /s/Brendan V. Sullivan Brendan V. Sullivan ( pro hac vice ) 13 Tobin J. Romero ( pro hac vice ) Joseph M. Terry ( pro hac vice ) 14 Jonathan B. Pitt ( pro hac vice )

10 ALSTON & BIRD LLP

11 By: /s/Louis A. Karasik 12 Louis A. Karasik (Bar # 100672)

13 Counsel for Defendants News Corporation, NI Group Limited f/k/a News International Limited, 14 News Group Newspapers Limited

15 WILLIAMS & CONNOLLY LLP 16

17 By: /s/Brendan V. Sullivan Brendan V. Sullivan ( pro hac vice ) 18 Tobin J. Romero ( pro hac vice ) Joseph M. Terry ( pro hac vice ) 19 Jonathan B. Pitt ( pro hac vice )

20 Counsel for Defendants News Corporation, NI Group Limited f/k/a News International Limited, 21 News Group Newspapers Limited

22 23 24 25 26 27 28 9 EX PARTE APPLICATION LEGAL02/34840112v1 Case 2:13-cv-04253-MWF-AJW Document 65 Filed 05/19/14 Page 11 of 12 Page ID #:1939

1 PROOF OF SERVICE

2 I, Louis A. Karasik, declare:

16 [Federal] I declar e under penalty of perjury that the foregoing is true and correct. 17

18 Executed on May 19, 2014, at Los Angeles, California.

20 /s/ Louis A. Karasik Louis A. Karasik 21

22 23 24 25 26 27 28 11 EX PARTE APPLICATION LEGAL02/34840112v1 Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 1 of 41 Page ID #:1883 FtLED

1 Brad Greenspan, Pro Se 264 South La Cienega 2 Suite 1216 I u 3 Beverly Hills, CA 90211 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 8 9 EUNICE HUTHART, ) Case No. CV 13-4253 MWF 10 ) Plaintiff, ) Honorable Michael W. Fitzgerald 11 V. ) 12 ) )

13 )

) 14 NEWS CORPORATION, NI GROUP ) MEMORANDUM IN SUPPORT 15 AND MOTION FOR INTERVENTION 16 LIMITED f/k/a NEWS ) 17 INTERNATIONAL LIMITED, ) NEWS GROUP NEWSPAPERS ), 18 LIMITED, and JOHN and JANE ) 19 DOES 1-10 ) 20 ) Defendants. )

21 ) 22 ) 23 24 25 26 27 28 1 PLAINTIFFS' MOTION TO INTERVENE Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 2 of 41 Page ID #:1884

1 2 3 INDEX 4 0- CASE LAW CITED pg. 3

6 I- INTRODUCTION pg. 4 7 11-BACKGROUND ph. 4 8 9 III CONCLUSION p. 22 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 PLAINTIFFS' MOTION TO INTERVENE Casej 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 3 of 41 Page ID #:1885

CASE LAW CITED I 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 Reg'l Planning Agency, 792 F.2d 775, 778 (9th Cir. 1986)). Pg. 14 Crawford v. Equfax Payment Services, 201 F. 3d 877 (7th Cir. 2000). Pg. 15 12 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 Annot 84 ALR2d]4]2 (1962) 16 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)) 18 19 20 21 22 23 24 25 26 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 27 28 PLAINTIFFS' MOTION TO INTERVENE Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 4 of 41 Page ID #:1886 - p

1 MOTION TO INTERVENE 2 INTRODUCTION 3 1. Pursuant to Federal Rule of Civil Procedure 24(a), Plaintiffs 4 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,

10 which may not be adequately protected without involvement of Plaintiff. 11 New evidence disclosed for the first time to public May 2013 in the 12 13 Hitech Class Action Case 5:1102509: specifically document

14 confirms for first time and proves Google had additional undisclosed illegal bilateral 15 16 agreements in place with AskJeeves,Timè/Wamer AOL, and other potential corporate

17 entities as of March 6, 2005. Such partners and agreements that existed including

18 between AskJeeves, Inc, its surviving acquiror IAC Corp., and TimeWarner/AOL, and 19 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 23 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. 27 28 4 PLAINTIFFS' MOTION TO INTERVENE

Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 5 of 41 Page ID #:1887 I

1 3. Plaintiff was injured in their business or property by reason of 2 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

10 using their media properties iv) extorting silence from victims and/or government 11 12 regulators including bribing police, UK Government ministers, United States Senators,

13 California State Senators and California State Cdgressmen and Congresswomen

14 and United States Congressmen and Congress serving women, and several related and 15 16 affiliated lobby qualified law firms, and other agency iritermediators, v) offering ad

17 credits and ad promotion in kind without disclosing such transactions to the public or

18 accounting for them in their SEC GAAP Accounting, and government ministers. 19 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, 2014 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

PLAINTIFFS' MOTION TO INTERVENE Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 6 of 41 Page ID #:1888

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 10 Jeff Yang to purchase 30% of MySpace, Inc. in February 2005 at below fair market

11 value using His RedPoint fund where he is managing Director; (2) agreements allowing

12 Google, TimeWarner/AOL, News Corporation, AskJeeves, IAC, and other defendants 13 14 to collude to gain economic benefits by i) fabricating prior sale of MySpace stock

15 backdated agreement in November 2004 and ii) delaying closing of a competitive

16 MySpace search engine auction for a new commercial search engine agreement in the 17 18 months leading up to News Corporation acquiring 100% of eUniverse in September

19 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 PLAINTIFFS' MOTION TO INTERVENE

Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 7 of 41 Page ID #:1889 S

1 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 6 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 10 an Antitrust conspiracy among Defendants. 11 7. According to SEC documents, Brad D. Greenspan incorporated

12 Entertainment Universe, Inc. ("EUNI"). On April 14, 1999, eUniverse completed 3 w 13 14 reverse merger arranged by first CEO, main operator and principal control officer

15 under SEC Sarbanes Oxley federal laws, serving as Chairman and CEO thru October

16 30, 2003 when as victim of fraud set in motion by Google, refused to participate in 17 18 Defendants further fraud against and including public shareholders and petitioner

19 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 22 100% 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 Corp's Board including Kleiner Perkins Partner 26 Perkins and Intel Director Thornton has greatly diminished between 2005 and 2012 27 28 '1 PLAINTIFFS' MOTION TO INTERVENE Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 8 of 41 Page ID #:1890 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 with the family of a UK 13 year old girl who had gone missing and was murdered whil 5 6 also falling victim to one of News Corp's operatives hacking her phone and erasing' voice mail evidence in the process of trying to find fresh angles for new stories. 7 8 Its been widely reported that the UK MET has over 5000 suspected victim's 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 9. News Corporation, struck an undisclosed bilateral agreement with at 19 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 PLAINTIFFS' MOTION TO INTERVENE Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 9 of 41 Page ID #:1891 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 other's employees which included Google, AskJeeves, and 7 8 TimeWarner/AOL formed around existing commercial online advertising

9 agreements to provide and promote Google's 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 3rd 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. Google's 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 agreed to deal and endorsement. 25 26 ii. Deal #2: Commercial Search: 27 28 .9 PLAINTIFFS' MOTION TO INTERVENE

Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 10 of 41 Page ID #:1892

1 at least two of Google's 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 100% 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

10 14. Petitioner is entitled to intervention as a matter of right under 11 12 Federal Rule of Civil Procedure 24(a)(2). Rule 24(a)(2) provides that:

13 "Upon timely application anyone shall be permitted to intervene in an action, when the applicant claims an interest relating to 14 the property or transaction which is the subject of the action and the 15 applicant is so situated that the disposition of the action may as a practical matter impair, or impede the applicant's ability to protect that 16 interest, unless the applicant's interest is adequately represented by 17 existing parties. Fed R. Civ. P.24(a)"

18 The Ninth Circuit construes Rule 24 liberally in favor of movants for 19 20 intervention. See Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003) (citing

21 Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998)). "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 10 PLAINTIFFS' MOTION TO INTERVENE Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 11 of 41 Page ID #:1893

1 15. 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 Intervenor's Motion to Intervene is Timely. 5 16. 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 applicant's delay in seeking leave to intervene; and (iii) any 9 10 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

12 United States v. Washington, 86 F.3d 1499 (9th Cir.1996); Engra, Inc. v. Gabel, 958 13 F.2d 643, 644 (5th Cir. 1992). 14 15 17. Intervention is timely because other Plaintiffs or those who

16 believe they are or should be have recently filed briefs as 17 18 allowed by the court. After these pleadings were reviewed Intervenor came to realize

19 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 18. 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 11 PLAINTIFFS' MOTION TO INTERVENE Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 12 of 41 Page ID #:1894 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 Defendant's Fraudulent 5 concealment And newly discovered evidence and facts from the UK criminal trials 6 of 10 News Corporation executives including the CEO's "surrogate" daughter and

8 Ex-Editor and President of Defendant's #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 Class's 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 PLAINTIFFS' MOTION TO INTERVENE Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 13 of 41 Page ID #:1895

1 action in Federal Court. 2 3 News Corporation informing Victims and litigants like EH, that is actually earned 4 an additional $32 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 10 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

12 and Hogan Hartson Law LLC and Hogan Lovell Law 1LC, and such earnings 13 14 previously hidden, could thru Court accepting Intervention of new Plaintiff

15 and allowing (Exhibit #1: Rule 701 Damage Report) represents the fact

16 that News Corporation benefited more then most companies thru digital sales of its 17 18 products between 2005-2014. Its digital products could only be sold by being created

19 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 13 PLAINTIFFS' MOTION TO INTERVENE Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 14 of 41 Page ID #:1896

1 And hacking as Murdoch began to try to fade out of scene with Acquisition 2 Of Dow Jones and letting his right hand Les Hinton, the Halderman to Nixon 3 I FRAUDULENT CONCEALMENT & EMAIL & DISCOVERY SPOILATION 4 19. Defendants have omitted key discovery previously that caused key 5 6 I evidence and facts to be fraudulently concealed. The fraudulent concealment includes

7 affirmative acts. Therefore, tolling would not take place until the fraudulent 8 concealment is fully disclosed. 7th Circuit Baker v. F&F Investment, 420 F.2d 1191 9 10 (7th Cir. 1970), cert. den., 400 U.S. 821 (1970) (self-concealing conspiracy

11 demonstrates fraudulent 12 concealment) (dictum) United National Records, Inc. v. MCA, Inc., 609 F.Supp. 33 13 14 (N.D. Ill. 1984) (denial of wrongdoing and false statements regarding price increase

15 sufficient to establish fraudulent concealment). 16 Therefore, when comparing the impact of fraudulent concealment by Defendants 17 18 And the late period even at the time of Settlement being rejected, the Court has allowed

19 Intervention for Class Action interventions. 2 20

21 Intervenor has a significantly protectable interest in subject matter of the action. 22 20. Intervenor absolutely can claim "an interest relating to the property or 23 24 transaction that is the subject of the action." Fed. R. Civ. Proc. 24(a)(2). Intervenor was 25 26 2 (quoting Agretti, 982 F.2d at 247); see also Almax Mill Prods.v.Congress Fin. Corp., (allowing nonsettling defendant to challenge a partial settlement that dismissed with 27 prejudice its cross-claims and stripped it of Indemnity contribution rights). 28 14 PLAINTIFFS' MOTION TO INTERVENE Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 15 of 41 Page ID #:1897

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 21. Intervenor will lose his chance to prove he was harmed by defendant's 12 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 Defendant's false claims spread thru News Corp 26 27 properties and efforts to defame Intervenor. Therefore Intervenor will continue to be

28 15 PLAINTIFFS' MOTION TO INTERVENE Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 16 of 41 Page ID #:1898 I]

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 Intervenor's 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 movant's 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 movant's 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 intervenor's 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 Reg'l 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 PLAINTIFFS' MOTION TO INTERVENE Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 17 of 41 Page ID #:1899

I Members 2 26. Intervenors 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 intervenor's 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 3260986, 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 27. A court may grant permissive intervention whenever the movant "has a 22 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 and equitable adjudication of the legal questions presented.") 27 28 17 PLAINTIFFS' MOTION TO INTERVENE Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 18 of 41 Page ID #:1900

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 9 316,321 (7thCir. 1995). 10 29. Permissive intervention is also justified because Intervenor's participation

12 will facilitate an equitable result. See Spangler v. Pasadena Board of Education, 28 552 13 14 F.2d 1326, 1329 (9th Cir. 1977) (the court may consider whether intervenors "will

15 significantly contribute to the full development of the underlying factual issues in the

16 suit and the just and equitable adjudication of the legal questions presented."). 17 18 Intervenor is needed to provide the full facts which do not exist in the current pleadings'

19 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 22 313 F.3d at 1111. 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. ,157 F.3d 964, 974 (3d Cir. 1998); 28 18 PLAINTIFFS' MOTION TO INTERVENE Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 19 of 41 Page ID #:1901

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, 2014. 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

10 intervenor shows an independent ground for jurisdiction; (ii) the motion is timely; and 11 (iii) there exists a common question of law and fact between the intervenor's claim an( 12 13 the main action. See Corner v. Cisneros, 37 F.3d 775, 801 (2d Cir. 1994). See German

14 v. Federal Home Loan Mortgage Corp., 896 F. Supp. 1385, 1391 (S.D.N.Y. 1995) ("Tb 15 16 Rule is to be construed liberally");

17 (1) There Is An Independent Ground For Jurisdiction

18 32. The Proposed Intervenor has claims against one or more same defendants 19 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. § 133 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 19 PLAINTIFFS' MOTION TO INTERVENE Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 20 of 41 Page ID #:1902

1 Claims And The Underlying Actions 2 33. The Proposed Intervenor claims are based upon same

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., 149 F.R.D. 55, 59 (S.D.N.Y. 1993) 9 10 (intervention granted where "the intervenor' s claims raise identical questions of law

and fact to those currently before the Court");

12 34. A court may grant permissive intervention whenever the movant "has a clam 13 or defense that shares with the main action a common question of law or fact," and 14 15 when the intervention would not "unduly delay or prejudice the adjudication

16 17 of the original parties' rights." Fed. R. Civ. P. 24(b). As explained above, Intervener

18 meets all of these requirements. Intervener is in an analogous posture, and like 19 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 10933 Under the discretionary standard, Intervener's burden is far lower than tha 27 28 20 PLAINTIFFS' MOTION TO INTERVENE Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 21 of 41 Page ID #:1903 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 36. In this case, failing to pursue immediate intervention and insertion of new 18 19 evidence and matters and testimony would harm existing Plaintiff and thousands of

20 other Absentee Class members substantially. 21 It also prevent Intervenor from taking advantage of Federal anti- 22 23 retaliatory whistleblower statues and protections petitioner is due. The impairment to

24 Intervenor's interest from the Court's ruling if intervention is not granted is sufficient 25 26 to qualify for intervention as of right.

37. The Intervenor is willing to be represented by counsel f so "undue delay, 27 28 21 PLAINTIFFS' MOTION TO INTERVENE Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 22 of 41 Page ID #:1904

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 39. The Intervenor further respectfully requests the Court grant in such

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 PLAINTIFFS' MOTION TO INTERVENE Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 23 of 41 Page ID #:1905

1 2 EXHIBIT #1 3 Rule 701 Damage Report

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 PLAINTIFFS' MOTION TO INTERVENE Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 24 of 41 Page ID #:1906 IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE GREENSPAN, ) C.A. No. 9567-ME Plaintiff, ) V. )

NEWS CORPORATION, et at Defendants

RULE 701 DAMAGE REPORT

1 Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 25 of 41 Page ID #:1907

Cases Cited pg.3

I INTRODUCTION pg. 4

II OVERVIEW OF ASSIGNMENT pg. 6

SUMMARY: $32.453 Billion in damages suffered by Class Members

III TRANSACTION BACKGROUND pg. 6

IV COMPANY BACKGROUND 12g.6

V INDUSTRY ENVIRONMENT IN 2005 pg. 6

VI PROBLEMS WITH THE MANAGEMENT FORECAST AND pg. 7 DR. WILLIAM KENNEDY'S DAMAGES REPORT

VII TRANSACTION BACKGROUND AND ASSUMPTIONS 129- 11

VIII DAMAGES ANALYSIS pg. 12

IX- CONCLUSION: 129- 15

EXHIBIT 1 - BACKGROUND / WORK EXPERIENCE pg. 16

EXHIBIT 2Chart - Monthly unique visitors MySpace pg. 18

2 Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 26 of 41 Page ID #:1908

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 Eng'g, 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, 128 F.3d 1329, 1335 (9th Cir. 1997) pg. 10

3 Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 27 of 41 Page ID #:1909

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 Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 28 of 41 Page ID #:1910

(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 Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 29 of 41 Page ID #:1911

inferences." Asplundh Mfg. Div. V. Benton Harbor Eng'g, 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 shareholder's

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. Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 30 of 41 Page ID #:1912 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 3rd 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 KENNEDY'S 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 banker's fairness opinion method to use the 2009/20010 DCF

method for a company like Intermix and merely hoped to gain accurate methods for

7 Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 31 of 41 Page ID #:1913

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 company's 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) "Travelocity's management held the strong view that these projections should not be relied upon because the industry was so new and volatile that

iJ Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 32 of 41 Page ID #:1914 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, I'll 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, Salomon's 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 party's DCF valuation. The goal of the DCF method of valuation is to value future cash Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 33 of 41 Page ID #:1915 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 expert's study. The more removed the expert's 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 expert's 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 702's 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 expert's testimony and the matter to be proved." United

States v. Bighead, 128 F.3d 1329, 1335 (9th Cir. 1997)

10 Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 34 of 41 Page ID #:1916 VII TRANSACTION BACKGROUND AND ASSUMPTIONS

iJ Based on the evidence reviewed, the Intermix Board avoided

using the experienced valuation M&A technology banker, JP Morgan's 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 Citibank's 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 Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 35 of 41 Page ID #:1917

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, Zakkour's 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 Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 36 of 41 Page ID #:1918

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 Kennedy's 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 Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 37 of 41 Page ID #:1919

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

management's 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 company's 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 MySpace's 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 Kennedy's takeover premium analysis and the need to

adjust valuation based on this analysis. In addition, we again take heed of the recent 14 Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 38 of 41 Page ID #:1920

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 Kennedy's 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)

15 Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 39 of 41 Page ID #:1921

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 Stanley's Internet analyst announced in November 2003 that Issuer eUniverse as of October 2003's 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 Issuer's 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.

16 Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 40 of 41 Page ID #:1922 -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 Government's 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 Intermix's listing expired.

17 Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 41 of 41 Page ID #:1923 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 21.21M uniques August 2005 21.81M uniques $14.807 September 2005 21.6M uniques October 2005 24.25M uniques November 2005 24.68M uniques December 2005 32.2M uniques $22.1 Million Value January 2006 35.5M uniques MSFT$800M OFFER February 2006 37.34M uniques March 2006 41.88M uniques April 2006 48.03M uniques May2006 51.44M uniques June 2006 52.34M uniques July 2006 54.52M uniques $25.0 Million Value August 2006 55.78M GOOGLE $900 OFFER September 2006

jul Case5:11-cv-02509-LHK Document771 Filed03/28/14 Page1 of 8

8 UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA

10 SAN JOSE DIVISION

11 ) Case No.: 11-CV-02509-LHK ) 12 IN RE: HIGH-TECH EMPLOYEE ) ORDER DENYING DEFENDANTS’ ANTITRUST LITIGATION 13 ) INDIVIDUAL MOTIONS FOR ) SUMMARY JUDGMENT 14 ) ) 15 ) THIS DOCUMENT RELATES TO: 16 ) ) ALL ACTIONS 17 ) United States District Court ) 18

For the Northern District of California For the Northern District 19 Summary judgment is appropriate if, viewing the evidence and drawing all reasonable 20 inferences in the light most favorable to the nonmoving party, there are no genuine disputed issues 21 of material fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); 22 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is “material” if it “might affect the 23 outcome of the suit under the governing law,” and a dispute as to a material fact is “genuine” if 24 there is sufficient evidence for a reasonable trier of fact to decide in favor of the nonmoving party. 25 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). At the summary judgment stage, the 26 Court “does not assess credibility or weigh the evidence, but simply determines whether there is a 27 genuine factual issue for trial.” House v. Bell, 547 U.S. 518, 559-60 (2006). The moving party has 28 the burden of demonstrating the absence of a genuine issue of fact for trial. Celotex, 477 U.S. at 1 Case No.: 11-CV-02509-LHK ORDER DENYING DEFENDANTS’ INDIVIDUAL MOTIONS FOR SUMMARY JUDGMENT Case5:11-cv-02509-LHK Document771 Filed03/28/14 Page2 of 8

1 323. To meet its burden, “the moving party must either produce evidence negating an essential 2 element of the nonmoving party’s claim or defense or show that the nonmoving party does not 3 have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” 4 Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000) 5 (citation omitted). Once the moving party has satisfied its initial burden of production, the burden 6 shifts to the nonmoving party to show that there is a genuine issue of material fact. Id. at 1103. 7 Importantly, at the summary judgment stage, the Court must view the record “in the light most 8 favorable to the non-moving party.” Brown v. City of Los Angeles, 521 F.3d 1238, 1240 (9th Cir. 9 2008). 10 The critical case for the legal standard to be applied to motions for summary judgment in 11 antitrust cases is Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), 12 a case that challenged Japanese manufacturers’ lowering of prices as anti-competitive. In 13 Matsushita, the Supreme Court held that “a plaintiff seeking damages for a violation of § 1 [of the 14 Sherman Act] must present evidence ‘that tends to exclude the possibility’ that the alleged 15 conspirators acted independently.” Id. at 588. Under Matsushita, if Defendants can show a 16 plausible and justifiable reason for their conduct that is consistent with proper business practice, 17 Plaintiffs “must show that the inference of conspiracy is reasonable in light of the competing United States District Court 18 inferences of independent action or collusive action that could not have harmed [plaintiffs].” Id. For the Northern District of California For the Northern District 19 The Ninth Circuit has interpreted Matsushita to mean that where a defendant has demonstrated a 20 plausible business reason for its conduct, “a plaintiff who relies solely on circumstantial evidence 21 of conspiracy . . . must produce evidence tending to exclude the possibility that defendants acted 22 independently.” In re Citric Acid Litig., 191 F.3d 1090, 1096 (9th Cir. 1999). The Second Circuit, 23 in 2012, interpreted Matsushita and Citric Acid as follows: “[Matsushita] further holds that the 24 range of inferences that may be drawn . . . depends on the plausibility of the plaintiff’s theory. 25 Thus, where a plaintiff’s theory of recovery is implausible, it takes ‘strong direct or circumstantial 26 evidence’ to satisfy Matsushita’s ‘tends to exclude’ standard. By contrast, broader inferences are 27 permitted, and the ‘tends to exclude’ standard is more easily satisfied, when the conspiracy is 28 economically sensible for the alleged conspirators to undertake and ‘the challenged activities could 2 Case No.: 11-CV-02509-LHK ORDER DENYING DEFENDANTS’ INDIVIDUAL MOTIONS FOR SUMMARY JUDGMENT Case5:11-cv-02509-LHK Document771 Filed03/28/14 Page3 of 8

1 not reasonably be perceived as procompetitive.’” In re Publ’n Paper Antitrust Litig., 690 F.3d 51, 2 63 (2d Cir. 2012) cert. denied, 133 S. Ct. 940 (2013). 3 The Court finds that in light of the summary judgment standard as viewed through the lens 4 of Matsushita and its progeny, Plaintiffs have presented sufficient evidence that tends to exclude 5 the possibility that Defendants acted independently even if Defendants satisfied the first prong of 6 Matsushita by showing a plausible and justifiable reason for their conduct that is consistent with 7 proper business practices. The Court need not determine whether Defendants have met their burden 8 with respect to Matsushita’s first prong, because the Court finds that Plaintiffs have satisfied their 9 burden of providing “specific evidence tending to show that [Defendants were] not engaging in 10 permissible competitive behavior.” Citric Acid Litig., 191 F.3d at 1094. 11 Here, as Edward Catmull (Pixar President) noted, it was economically sensible for the 12 alleged conspirators to undertake the alleged conspiracy, because solicitation “messes up the pay 13 structure.” Catmull Depo. at 179. As George Lucas (former Lucasfilm Chairman of the Board and 14 CEO) stated, “we cannot get into a bidding war with other companies because we don’t have the 15 margins for that sort of thing.” Lucas Depo. at 44. Further, as Meg Whitman (former CEO of eBay) 16 said to Eric Schmidt (Google Executive Chairman, Member of the Board of Directors, and former 17 CEO), “Google is the talk of the Valley because [Google is] driving up salaries across the board.” United States District Court 18 Cisneros Decl., Ex. 872. For the Northern District of California For the Northern District 19 In light of this backdrop, the Court will now review some of the evidence that tends to 20 exclude the possibility that Defendants acted independently. Defendants have conceded that there 21 were a series of six bilateral agreements for the purpose of these motions: Pixar-Lucasfilm, Apple- 22 Adobe, Apple-Google, Apple-Pixar, Google-Intuit, and Google-Intel. All six of these agreements 23 contained nearly identical terms, precluding each pair from affirmatively soliciting any of each 24 other’s employees. ECF No. 531, October 24, 2013 Order Granting Plaintiffs’ Supplemental 25 Motion for Class Cert. (“October Class Cert. Order”) at 30. Defendants’ experts concede that they 26 are unaware of these types of long-term, all-employee agreements ever occurring between other 27 firms. See, e.g., Talley Depo. at 35. 28 3 Case No.: 11-CV-02509-LHK ORDER DENYING DEFENDANTS’ INDIVIDUAL MOTIONS FOR SUMMARY JUDGMENT Case5:11-cv-02509-LHK Document771 Filed03/28/14 Page4 of 8

1 In addition, there is evidence that Defendants themselves recognized the similarities 2 between the agreements. For example, in an email, Lori McAdams (Pixar Vice President of Human 3 Resources and Administration), stated that “effective now, we’ll follow a gentleman’s agreement 4 with Apple that is similar to our Lucasfilm agreement.” October Class Cert. Order at 26. Moreover, 5 Google maintained an explicit do-not-cold-call list that grouped Apple, Intel, and Intuit together. 6 ECF No. 187, Ex. 29. Defendants also recognized that these agreements were not designed for 7 circulation, and tried to ensure that the agreements were known only to recruiters and executives 8 who had to enforce them. For example, Eric Schmidt (Google Executive Chairman, Member of the 9 Board of Directors, and former CEO) instructed one of his executives that Mr. Schmidt preferred 10 that the do-not-cold-call list be shared “verbally, since I don’t want to create a paper trail over 11 which we can be sued later.” Id. at 27. Similarly, in response to a question from an Intel recruiter, 12 Paul Otellini (CEO of Intel and Member of the Google Board of Directors) stated regarding the 13 Intel-Google agreement “we have a handshake ‘no recruit’ between eric [Schmidt] and myself. I 14 would not like this broadly known.” Id. at 28. 15 Furthermore, there is evidence that many of the Defendants knew about each other’s anti- 16 solicitation agreements. For example, according to Edward Catmull (Pixar President), Steve Jobs 17 (Co-Founder, Former Chairman, and Former CEO of Apple, Former CEO of Pixar) “knew and United States District Court 18 understood” the Lucasfilm-Pixar agreement. Catmull Depo. at 61. Similarly, Eric Schmidt of For the Northern District of California For the Northern District 19 Google testified that it would be “fair to extrapolate,” based on Mr. Schmidt’s knowledge of Mr. 20 Jobs, that Mr. Jobs “would have extended [anti-solicitation agreements] to others.” Schmidt Depo. 21 at 169. Google recruiters were familiar that Apple and Adobe had an agreement. Flynn Depo. at 65. 22 Paul Otellini (CEO of Intel and Member of the Google Board of Directors) was told by Eric 23 Schmidt (Google Executive Chairman, Member of the Board of Directors, and former CEO) and 24 Sergey Brin (Google Co-Founder) about the Apple-Google agreement. Brin Depo. at 74; Schmidt 25 Depo. at 126. Intel’s own expert testified that Mr. Otellini was likely aware of Google’s other 26 bilateral agreements by virtue of Mr. Otellini’s membership on Google’s board. Snyder Depo. at 27 258. In fact, in its Motion, Intel concedes for the purposes of the instant motions that Mr. Otellini 28 knew the contents of Google’s do-not-cold-call list, which included Apple and Intel. Intel MSJ at 4. 4 Case No.: 11-CV-02509-LHK ORDER DENYING DEFENDANTS’ INDIVIDUAL MOTIONS FOR SUMMARY JUDGMENT Case5:11-cv-02509-LHK Document771 Filed03/28/14 Page5 of 8

1 Next, these agreements were negotiated by a small group of intertwining high-level 2 executives at the Defendant firms. For example, Steve Jobs (Co-Founder, Former Chairman, and 3 Former CEO of Apple, Former CEO of Pixar) was personally involved in Apple’s anti-solicitation 4 agreements with Adobe, Google, and Pixar. With regard to Apple’s agreement with Google, Mr. 5 Jobs contacted Sergey Brin (Google Co-Founder) directly, which led Mr. Brin to recognize that 6 “[b]asically, [Mr. Jobs] said ‘if you hire a single one of these people that means war.’” Cisneros 7 Decl., Ex. 1871. The next day, Bill Campbell (Chairman of Intuit Board of Directors, Co-Lead 8 Director of Apple, and advisor to Google), a friend of Mr. Jobs, informed Mr. Jobs that “Eric 9 Schmidt told me that he got directly involved and firmly stopped all efforts to recruit anyone from 10 Apple.” Cisneros Decl., Ex. 199. Moreover, it was upon Mr. Campbell’s suggestion that Google 11 agreed to enter into its anti-solicitation agreement with Intuit, of which Mr. Campbell was Board 12 Chairman. Cisneros Decl., Ex. 597. 13 As discussed in some detail in this Court’s October Class Certification Order, the same 14 small group of intertwining high-level executives were involved in strictly enforcing the 15 agreements. For example, when a Google recruiter contacted an Apple engineer, Steve Jobs (Co- 16 Founder, Former Chairman, and Former CEO of Apple, Former CEO of Pixar) forwarded the 17 message to Eric Schmidt (Google Executive Chairman, Member of the Board of Directors, and United States District Court 18 former CEO), who had the recruiter terminated within the hour. Id. at 36. Bill Campbell (Chairman For the Northern District of California For the Northern District 19 of Intuit Board of Directors, Co-Lead Director of Apple, and advisor to Google) similarly emailed 20 Sergey Brin (Google Co-Founder), stating that “Steve Jobs called me again and is pissed that we 21 are still recruiting his browser guy.” Id. at 36. Paul Otellini (CEO of Intel and Member of the 22 Google Board of Directors) similarly forwarded an email regarding recruitment of an Intel 23 employee by a Google recruiter to Mr. Schmidt, Google’s CEO, who responded by saying that, “If

24 we find that a recruiter called into Intel, we will terminate the recruiter.” Id. at 37.1 Edward 25 Catmull (Pixar President) similarly had direct discussions with Steve Jobs regarding whether Pixar 26 could communicate with specific individual Apple employees. Id. at 37-38. Bill Campbell 27 1 In an email to Mr. Campbell, Mr. Schmidt indicated that he directed a for-cause termination of 28 another Google recruiter, who had attempted to recruit an executive of eBay, which was on Google’s do-not-cold-call list. Cisneros Decl., Ex. 872. 5 Case No.: 11-CV-02509-LHK ORDER DENYING DEFENDANTS’ INDIVIDUAL MOTIONS FOR SUMMARY JUDGMENT Case5:11-cv-02509-LHK Document771 Filed03/28/14 Page6 of 8

1 (Chairman of Intuit Board of Directors, Co-Lead Director of Apple, and advisor to Google) was 2 also part of enforcing the Google-Intel agreement, because Mr. Campbell in communication with 3 Google’s executives agreed that Google should call Paul Otellini (CEO of Intel and Member of the 4 Google Board of Directors) before making an offer to an Intel employee. October Class Cert. Order 5 at 28. That the agreements were entered into and enforced by a small group of intertwining high- 6 level executives bolsters the inference that the agreements were not independent. 7 Moreover, there is evidence that the Defendants shared confidential compensation 8 information with each other despite the fact that they considered each other competitors for talent. 9 For example, Adobe saw itself as in a talent war with Google and Apple and that Adobe was in a 10 six-horse compensation race against Google, Apple, Intuit, and three others. Id. at 47. Apple also 11 viewed Google and Intel as peer companies in terms of competition for talent. Id. at 48. Adobe 12 benchmarked its compensation against Google, Apple, and Intel, while Google compared its 13 compensation to Apple, Intel, Adobe, and Intuit; and Intel benchmarked against Apple and Google. 14 Id. at 47-48. The evidence shows that HR personnel at Intuit and at Adobe were communicating 15 about “confidential” information regarding how much compensation each firm would give and to

16 which employees that year. Cisneros Decl., Ex. 2812 (emphasis in original). Adobe and Intuit 17 shared confidential compensation information even though the two companies had no bilateral anti- United States District Court 18 solicitation agreement, and Adobe viewed Intuit as a competitor in a six-horse compensation race. For the Northern District of California For the Northern District 19 Meanwhile, Google circulated an email that expressly discussed how its “budget is comparable to 20 other tech companies” and compared the precise percentage of Google’s merit budget increases to

21 that of Adobe, Apple, and Intel. Cisernos Decl., Ex. 621. Google had Adobe’s precise percentage 22 of merit budget increases even though Google and Adobe had no bilateral anti-solicitation 23 agreement. Paul Otellini (CEO of Intel and Member of the Google Board of Directors) similarly 24 circulated information regarding peer companies’ bonus plans that he “lifted from Google.” 25 Cisneros Decl., Ex. 463. This Google document discusses bonuses at Apple and Intel. A reasonable 26 jury could infer that this confidential information could be shared safely by competitors only 27 because the anti-solicitation agreements squelched true competition. 28 6 Case No.: 11-CV-02509-LHK ORDER DENYING DEFENDANTS’ INDIVIDUAL MOTIONS FOR SUMMARY JUDGMENT Case5:11-cv-02509-LHK Document771 Filed03/28/14 Page7 of 8

1 Finally, there is evidence that Defendants, through many of the same executives who 2 negotiated and enforced the agreements at issue in this case, expanded and attempted to expand the 3 anti-solicitation agreements to non-Defendants, which undermines Defendants’ claim of 4 independent bilateral agreements. For example, Steve Jobs (Co-Founder, Former Chairman, and 5 Former CEO of Apple, Former CEO of Pixar) called Edward Colligan (former President and CEO 6 of Palm) to ask Mr. Colligan to enter into an anti-solicitation agreement and threatened patent 7 litigation against Palm if Palm refused to do so. Colligan Decl. ¶¶ 6-8. This was similar to Mr. 8 Jobs’ negotiation of the agreement with Adobe, which resulted from Mr. Jobs’ threat to start 9 aggressively recruiting Adobe’s employees absent such an agreement. Bill Campbell (Chairman of 10 Intuit Board of Directors, Co-Lead Director of Apple, and advisor to Google), in his capacity as an 11 advisor to Google, unsuccessfully sought to expand Google’s anti-solicitation agreements to 12 Facebook by responding to an email about Facebook’s solicitation of Google’s employees with 13 “Who should contact Sheryl [Sandberg] (or Mark [Zuckerberg]) to get a cease fire? We have to get 14 a truce.” Mr. Chizen of Adobe, in response to discovering that Apple was recruiting employees of 15 Macromedia (a separate entity that Adobe would later acquire), helped ensure, through an email to 16 Mr. Jobs, that Apple would honor Apple’s pre-existing anti-solicitation agreements with both 17 Adobe and Macromedia after Adobe’s acquisition of Macromedia. Cisneros Decl., Exs. 1808, United States District Court 18 1812. These expansions and attempted expansions of the anti-solicitation agreements suggest that For the Northern District of California For the Northern District 19 the agreements were not isolated, independent bilateral agreements, but rather were part of a 20 broader conspiracy. 21 In sum, the Court does not determine at the summary judgment stage which side should 22 prevail. Rather, the Court’s task is only to determine whether the Plaintiffs have presented 23 sufficient evidence to warrant adjudication by a jury. For the reasons stated, the Court answers this 24 question in the affirmative. The similarities in the various agreements, the small number of 25 intertwining high-level executives who entered into and enforced the agreements, Defendants’ 26 knowledge about the other agreements, the sharing and benchmarking of confidential 27 compensation information among Defendants and even between firms that did not have bilateral 28 anti-solicitation agreements, along with Defendants’ expansion and attempted expansion of the 7 Case No.: 11-CV-02509-LHK ORDER DENYING DEFENDANTS’ INDIVIDUAL MOTIONS FOR SUMMARY JUDGMENT Case5:11-cv-02509-LHK Document771 Filed03/28/14 Page8 of 8

1 anti-solicitation agreements constitutes evidence, viewed in the light most favorable to Plaintiffs, 2 that tends to exclude the possibility that defendants acted independently, such that the question of 3 whether there was an overarching conspiracy must be resolved by a jury. Accordingly, each of the 4 Defendants’ individual motions for summary judgment is DENIED. 5 6 IT IS SO ORDERED. 7 Dated: March 28, 2014 ______LUCY H. KOH 8 United States District Judge 9 10 11 12 13 14 15 16 17 United States District Court 18 For the Northern District of California For the Northern District 19 20 21 22 23 24 25 26 27 28 8 Case No.: 11-CV-02509-LHK ORDER DENYING DEFENDANTS’ INDIVIDUAL MOTIONS FOR SUMMARY JUDGMENT Abigail LeGrow ’04 appointed to Master in Chancery for Delaware Judiciary | Penn State Law 4/27/14 12:46 AM

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Categories: February 22, 2012 Alumni, Career Spotlights

Research Center(s): Government Law and Public Policy Abigail LeGrow ’04 was recently appointed Master in Chancery for the Delaware Judiciary, a court which has been Studies 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 court’s willingness to consider and decide expedited cases in a very prompt fashion.

The Court of Chancery’s 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.

“I’ve 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 I’ve 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 I’m part of a court that I’ve admired since my summer associate year. It doesn’t 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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https://law.psu.edu/news/legrow Page 2 of 2 Dilbert (TV series) - Wikipedia, the free encyclopedia 4/7/14 3:14 PM 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 Dilbert 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 Genre Comedy 2 History Format Animation 2.1 Conception Scott Adams 2.2 Cancellation Created by 3 Cast Developed by Scott Adams 3.1 Guest stars Larry Charles 4 Episodes 4.1 Season 1 (1999) Directed by Rick Del Carmen 4.2 Season 2 (1999–2000) James Hull 5 Reception Voices of Daniel Stern 5.1 Ratings Chris Elliott 5.2 Awards Larry Miller 6 Home releases 7 See also Gordon Hunt 8 References Kathy Griffin 9 External links Jackie Hoffman Theme music Danny Elfman composer Synopsis Opening theme "The Dilbert Zone"

The series follows the adventures of a middle-aged Composer(s) Adam Cohen white collar office worker, named Dilbert who is Ian Dye extremely intelligent in regards to all things that fall Country of origin United States within the boundaries of electrical engineering. Original English Although Dilbert’s intelligence greatly surpasses that of his incompetent colleagues at work, he is unable to language(s) question certain processes that he believes to be No. of seasons 2 inefficient, due to his lack of power within the http://en.wikipedia.org/wiki/Dilbert_(TV_series) Page 1 of 10 Dilbert (TV series) - Wikipedia, the free encyclopedia 4/7/14 3:14 PM inefficient, due to his lack of power within the No. of episodes 30 (List of episodes) organization. Thus, he is consistently found to be unsatisfied with the decisions that are made in his Production workplace, because of the fact that many times he has Executive Scott Adams many suggestions to improve the decision, yet is producer(s) Larry Charles incapable of expressing them. Consequently, he is often found to show a pessimistic and frustrated Producer(s) Jeffrey L. Goldstein attitude, which ultimately lands him in various comedic Ron Nelson situations that revolve around concepts like leadership, Kara Vallow teamwork, communication and corporate culture. Editor(s) Mark Scheib 22 minutes History Running time Production Idbox The first season centers on the creation of a new company(s) United Media product, the "Gruntmaster 6000". The first three Columbia TriStar episodes involve the idea process ("The Name", "The Television Competition", and "The Prototype" respectively); the Distributor Sony Pictures Television fifth ("Testing") involves having it survive a malevolent company tester named "Bob Bastard" (who is Broadcast somewhat like Dilbert before being humiliated and Original channel UPN disfigured), and the sixth ("Elbonian Trip") is about Picture format 4:3 SDTV production in the famine-stricken fourth-world country of Elbonia. The prototype is delivered to an incredibly Audio format Dolby Surround stupid family in Squiddler's Patch, Texas, during the Original run January 25, 1999 – July thirteenth and final episode of the season, 25, 2000 "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

http://en.wikipedia.org/wiki/Dilbert_(TV_series) Page 2 of 10 Dilbert (TV series) - Wikipedia, the free encyclopedia 4/7/14 3:14 PM

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

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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 # Title Directed by Written by Original air date code Larry Charles & Scott 1 "The Name" Seth Kearsley January 25, 1999 101 Adams 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. "The 2 Seth Kearsley Ned Goldreyer February 1, 1999 103 Competition" 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. "The 3 Alfred Gimeno Jeff Kahn February 8, 1999 102 Prototype" 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. Larry Charles, Scott "The 4 Andi Klein Adams & Ned February 15, 1999 106 Takeover" Goldreyer Dilbert and Wally become majority shareholders of their company after Dogbert manipulates the stock market. David Silverman & 5 "Testing" Chris Dozois February 22, 1999 104 Stephen Sustrastic The Gruntmaster 6000 prototype is put to the test by an evil masked test engineer named Bob

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Bastard (Tom Kenny). "Elbonian David Silverman & 6 Mike Kim March 1, 1999 105 Trip" Stephen Sustrastic 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. "Tower of David Silverman & 7 Gloria Jenkins March 22, 1999 108 Babel" tephen Sustrastic 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. David Silverman, "Little Stephen Sustrastic, 8 Barry Vodos April 5, 1999 107 People" Scott Adams & Larry Charles 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. Larry Charles, Scott Adams, Andrew 9 "The Knack" Michael Goguen April 26, 1999 110 Borakove & Rachel Powell 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. Larry Charles, Scott Jennifer Graves, Bob Adams, Andrew 10 "Y2K" May 3, 1999 109 Hathcock & Andi Tom Borakove & Rachel Powell 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? Larry Charles, Scott Adams, David 11 "Charity" Chris Dozois May 10, 1999 111 Silverman & Stephen Sustrastic Dilbert is forced to be a charity coordinator for the "Associated Way" charity drive. Larry Charles, Scott Adams, David

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12 "Holiday" Andi Klein Silverman, Stephen May 17, 1999 112 Sustrastic & Ned Goldreyer Dilbert thinks there are too many time-wasting holidays; Dogbert concurrently convinces Congress to abandon all holidays in favor of a National Dogbert Day. Larry Charles, Scott "The Todd Frederiksen, 13 Adams & Ned May 24, 1999 113 Infomercial" Joe Vaux Goldreyer The pre-production—non-lab-tested—Gruntmaster 6000 is scheduled to be tested by a Texan family.

Season 2 (1999–2000)

Production # Title Directed by Written by Original air date 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. "The Shroud 15 Andi Klein Scott Adams November 9, 1999 203 of Wally" 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. Larry Charles, Scott 16 "Art" Linda Miller Adams & Ned November 16, 1999 205 Goldreyer 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. Joe Port & Joe 17 "The Trial" Chris Dozois November 23, 1999 202 Wiseman 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. "The Larry Charles & Scott 18 Michael Goguen December 7, 1999 204 Dupey" Adams 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. "The 19 Security Rick Del Carmen Scott Adams January 18, 2000 207 Guard"

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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. Larry Charles, Scott "The Adams, David 20 Jim Hull January 25, 2000 208 Merger" Silverman & Stephen Sustrastic The Boss decides that the company needs to merge with another, and chooses a company of brain-sucking extraterrestrials. Larry Charles & Scott 21 "Hunger" Craig R. Maras February 1, 2000 206 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. "The Off- Mark Steen, Ron 22 Site Seth Kearsley February 8, 2000 209 Nelson & Scott Adams Meeting" Dilbert's home is chosen as the location for an off-site meeting when a dendrophile sues his company because of their deforestation policies. Larry Charles, Scott "The Gloria Jenkins & 23 Adams, Ron Nelson & February 15, 2000 210 Assistant" Declan M. Moran Mark Steen Dilbert is unwillingly promoted to management and given an assistant (Andy Dick), sparking a showdown with the other engineers. Larry Charles, Scott "The 24 Mike Kuntel Adams & Ned February 22, 2000 213 Return" Goldreyer 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. Larry Charles & Scott "The Virtual 25 Perry Zombalas Adams & Ned May 30, 2000 212 Employee" Goldreyer 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. Larry Charles & Scott 26 "Pregnancy" Andi Klein June 6, 2000 216 Adams 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.

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"The Larry Charles & Scott 27 Craig R. Maras June 13, 2000 217 Delivery" Adams 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. Scott Adams, David "Company 28 Chris Dozios Silverman & Stephen July 11, 2000 211 Picnic" Sustrastic The annual company picnic comes around and so does the softball game between Marketing and Engineering. This episode is based on Romeo and Juliet. Larry Charles, Scott 29 "The Fact" Linda Miller Adams, Ron Nelson & July 18, 2000 215 Mark Steen 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. Larry Charles & Scott 30 "Ethics" Michael Goguen July 25, 2000 214 Adams 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 "it’s 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 http://en.wikipedia.org/wiki/Dilbert_(TV_series) Page 8 of 10 Dilbert (TV series) - Wikipedia, the free encyclopedia 4/7/14 3:14 PM

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 Adam’s 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. http://en.wikipedia.org/wiki/Dilbert_(TV_series) Page 9 of 10 Dilbert (TV series) - Wikipedia, the free encyclopedia 4/7/14 3:14 PM

13. ^ Carter, Bill. "TV NOTES" (http://www.nytimes.com/1999/01/27/arts/tv-notes.html). The New York Times. Retrieved 9 February 2014. 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

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BRAD D. GREENSPAN, Plaintiff Case No: 9567-ML

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, 5th Floor, Wilmington, Delaware 19801; To be served on the following Defendants in the above listed caption

Name: News Corporation & 21st 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 264 South La Cienega Suite 1216 Beverly Hills, CA 90211 Dated: 4/25/2014

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE BRAD D. GREENSPAN, ) 264 South La Cienega ) C.A. No. ______Suite 1216 ) Beverly Hills, CA 90211 ) ) Plaintiff, ) v. ) ) 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.

1503 & INDEMNIFICATION COMPLAINT

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 entitled to a private cause of action for damages suffered as a result of Defendant acts , omissions, damages, violations, and other losses caused by the long running

1503(d) conspiracy among Defendants. Petitioner also has contractual rights for

Indemnification and Advancement.

II - PARTIES

PLAINTIFF

2. Brad Greenspan, former Director, Officer, Shareholder of eUniverse, Inc

DEFENDANTS

3. News Corporation, a Delaware Corporation

4. 21st 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

10. Sony Broadband Entertainment, Inc., a Delaware corporation

11. eUniverse Inc. , (name later changed to Intermix) a Delaware

Corporation (News Corp acquired in 2005)

12. Myspace, Inc., a Delaware Corporation (News Corp acquired in 2005)

13. RGRD Law LLC, a California LLC

14. VantagePoint Venture Partners, a California LLC

15. Orrick Herrington Law LLC, a California LLC

16. EMI Music, a Delaware Corporation

17. Warner Music Group, a Delaware Corporation

18. AskJeeves Inc., a Delaware corporation (IAC Corp acquired in 2005)

19. IAC Corporation, a Delaware corporation

20. JP Morgan Chase, a Delaware corporation

21. RedPoint Partners, a California LLC

22. Washington Post Corporation, a Delaware Corporation

23. Arent Fox Law, a Delaware 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:

3 “ 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 Broadband Entertainment 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

Enterprise’s 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,

4 “(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;

5 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”

6 stating: i.“eUniverse’s Future Success in Lucrative Paid Search Space Is Threatened By Existing Director Conflicts”

ii.“certain of eUniverse’s incumbent Directors have substantial conflicts of interest that could threaten the Company’s 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 eUniverse’s 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 eUniverse’s 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 DISCLOSURE VIOLATION TO ACQUIROR NEWS CORPORATION

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

7 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."

Lang’s 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

AskJeeves’s Directors who used their positions on the Boards of both MySpace,

Inc. and Parent eUniverse to mislead the other Directors and shareholders while 8 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 will require approximately $1.5 -2 million in the next 2 months for storage arrays, database servers, switches and routers.” And “The company is in discussions with Silicon Valley Bank regarding a $4m line of credit, which is likely to be approved.”

b. October 1, 2004, 3:05PM Rosenblatt contacts Sheehan using interstate wire or interstate carrier to send and deliver the email:

“Just had a tough talk with Chris DeWolf. His lawyer id definitely giving him concerns about our offer. Heart ache about us taking the tech, value if we sell, etc. He really thinks he is worth more independently…I am told him that is not going to 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

9 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 thoughts of the day”, “My current thoughts on the MS situation:

• We need to get in place the revised agreement before any meaningful negotiations with any other third party.

* I believe I understand Chris’ concerns about being locked into an illiquid subsidiary, but that its their choice – they could have MIX stock if they want liquidity.

* They are minority shareholders and need to accept this fact.

* We, InterMix, need the right to be able to sell all of MS. Including founders shares.

• We, InterMix, need the right to buy out the founders at a price or a formula

On Redpoint: * Why not continue talking to them, it is too hard to figure out if they could present the most attractive deal or not at this time”

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 talk with Yang” stating,

“Andrew, Spoke with Geoff, who holds you in the highest regard. I am not in the loop on their offer, which he described as 23% Redpoint, 25% Founders and pool and 52% Intermix.

His case for the offer was interesting and compelling, as Intermix could still “fold in” the earnings, traffic, etc. I want to discuss with you my thoughts on the subject tomorrow, God know when, as we

10 have no breaks I can count on. In any case, I suggested that Geoff speak with you directly.”

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 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 “what it comes down to is do we sell ms now or keep it. Doing a deal where mix keeps 52% doesn’t make any sense for anyone except Yang. All the banks and investors think we would be foolish to sell some or all of ms now. We will get much less benefit to mix if we own 52% and have give all sorts of rights to an investor. Richard wants to keep it in mix.”

f. November 18, 2004, 3:56PM Orrick’s Richard Harroch contacted Sheehan, Redpoint & AskJeeves’ Director Yang and RedPoint’s Beasly, 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: ‘MySpace Term Sheet ‘and states, “Gentleman: As a follow up to our conversation today, attached ia a clean and redlined markup of the last version of the term sheet that was give to us in connection with the Myspace transaction. Let us discuss the issues at your convenience. Richard Harroch <>”

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”

11 Rosenblatt professes to not know the terms that the company has already agreed to sell a portion of MySpace.com to VantagePoint’s 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, “this situation really goes beyond anything I want to be a part of. I communicated my feelings in writing twice now about the lawyer for a large preferred stockholder and one director negotiating a major business transaction on behalf of the company without authorization of our board and all I received was an admonishment from Harroch about my email and told to shut up in a conference call.”

Since you have not seen this yet and I have certainly not, this makes a broader statement about our Senior Management.” “As an officer I would be derelict in my duties to our company to allow this to continue outside of the view of the Board without doing something about it”

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 fraudulently conceal the MySpace Stock purchase documents published in the November 2004 10Q, to hide the fact the documents were fabricated and backdated.

i. November 18, 7:20PM Rosenblatt emails Flahie Subject: ‘Re:Myspace Term Sheet’, stating: “Tom, I know how this could look but it is NOT at-all how it may appear.” and “Andy NEVER looked at it as a vantage shareholder, but as a Board member looking out for Intermix as a whole.” and “I believed (and was right) that he was better positioned than I was to extract terms that would be acceptable to the Board at large. Over the past week he was, to my surprise, able to get the

12 terms we all think are BETTER for the company and make the Redpoint deal a great deal. “ and “In hindsight, I should have asked him to give those new terms to Chris and we should have sent the term sheet to Redpoint. I plan on clarifying with Redpoint tomorrow that Andy was simply helping us get a deal done and the Company will take it from here.” 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 fraudulently conceal the MySpace Stock purchase documents published in the November 2004 10Q, to hide the fact the documents were fabricated and backdated. j. November 18, 2004 at 7:51PM, Sheehan forwards the email thread and CFO’s effective ‘whistleblower notification’ to Orrick’s 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 U.S.C. § 1341, 18 U.S.C. § 1343, and violation of 18 U.S.C. § 1519 (relating to destruction, alteration, or falsification of records in Federal investigation and bankruptcy).

(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

Google’s $4.4 Billion dollar August 2005 secondary by tying up the fast growing

13 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 eUniverse’s failure to elect 5th MySpace Director was key part of scheme to rig bidding in Search Auction and sale of eUniverse. Failure to disclose Intermix’s 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. euniverse’s 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

14 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 U.S.C. § 1341 &/or § 1343, and 18 U.S.C. § 1519 (relating to destruction, alteration, or falsification of records in Federal investigation and bankruptcy). 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, eUniverse’s 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 famous…now 20B”

BROWN v. BREWER FEDERAL SECURITY FRAUD CLASS ACTION

42. Petitioner was originally part of a Federal Class Action filed in

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 Brewer’s 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. “

16 “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 Rosenblatt’s presentation to the board may have been misleading as to Viacom’s seriousness.

According to Mosher’s 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 Mosher’s description of the content of Rosenblatt’s 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 Plaintiff’s 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 Intermix’s 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

17 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. Defendant’s leverage their relationship with acquiror to create defamatory and fabricated lies thru acquiror News Corporation employee Angwin’s 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.

46. This creates further ongoing defamatory damages to Plaintiff and

Shareholders because Class Counsel accepts and uses false Edell facts in book instead of Plaintiff’s facts offered to Class Counsel in 2012 Federal Class Action in

Los Angeles Central District. Edell’s false facts allow the fraudulent conveyance

Of approximately 50% of Myspace.com, the crown jewel of eUniverse, Inc. in 2004.

Further, Edell’s false facts which become Acquiror News Corporation false facts, obstruct Plaintiff’s 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 Angwin’s false facts and testimony while using “Stealing MySpace” as an uncontested source of facts to corrupt the

Class’s 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

19 “[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 Edell’s 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

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.

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 record and financial history as difficult as possible.

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. Defendant’s scheme entailed Creating a fictitious Glowing work experience

20 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

Edell’s 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 MySpace’s search value, the claims and facts which had never been put before the Federal Court. Petitioner’s 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.

54. In September 2010, by RGRD, Baron, Hogan Lovell, Stone, News

Corporation, Orrick and other Defendants filea Joint Motion to ban fact witness and

Petitioner from the Federal Class to delay and harass Petitioner from appearing before Federal Judge. Defendants 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.

55. 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.

56. 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 Petitioner’s then lawyer

Mr. Lawrence.

i. 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 defendant’s motion.

ii. RGRD, Baron, Wissbroecker violated their fiduciary duty to Petitioner as well as aiding and abetting above violations of other Defendants.

iii. Baron & RGRD lied and fabricated briefings, pleadings, and affidavits in 2011 and 2012 to fraudulently conceal the prior criminal acts in Federal Court.

57. In December 2010, RGRD was again disloyal by changing the Class

Certification to reduce the # of eligible shares.

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: Plaintiff’s 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 objecting1 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 Petitioner’s 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 Brad’s 2,900,000 shares. (Brad was the largest single shareholder, owning about 10% commons stock at time of sale.

23 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 Plaintiff’s 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 Plaintiff’s 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 case’s 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 Corporation’s 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 CEO’s most trusted lieutenants and top

24 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 didn’t 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 Court’s 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 Strine’s order and ruling January 14, 2004 and the included agreed relief for any “technical violation”.

VI. CLAIM COUNTS

COUNT # 1 - § 1503 (a) Violation

69. Plaintiff repeats and realleges the foregoing paragraphs as set forth herein.

70. All Defendants have violated Count #1

COUNT # 2 - § 1503. (b) Violation

71. Plaintiff repeats and realleges the foregoing paragraphs as set forth herein.

72. All Defendants have violated Count #2

COUNT #3 - § 1503 (c) Violation

73. Plaintiff repeats and realleges the foregoing paragraphs as set forth herein.

74. All Defendants have violated § 1503 (c)

COUNT # 4 - § 1503(d) Violations.

75. Plaintiff repeats and realleges the foregoing paragraphs as set forth herein.

76. All Defendants have violated Count #4

COUNT # 5 –§ 1504 TRIGGERED PETITIONER RIGHT TO CIVIL REMEDY UNDER § 1505(f) 77. Plaintiff repeats and realleges the foregoing paragraphs as set forth herein.

78. News Corporation 2013 UK CRIMINAL GUILTY PLEAS “UNLAWFUL

UNDER” 1504 and 1505(f)

COUNT # 6 - (BREACH OF AGREEMENT)

79. Plaintiff repeats and realleges the foregoing paragraphs as set forth herein.

80. Sony has breached The July 2003 Option agreement which stated,

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 Company’s 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:

26 (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

27 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

Issuer’s stock to new party.

COUNT # 7 - (“inseparable fraud”) VIOLATION

85. Plaintiff repeats and realleges the foregoing paragraphs as set forth herein.

86. All Defendants have violated Count #7

COUNT #8 –PAREXEL TYPE FRAUD VIOLATION THRU FAILURE TO DISCLOSE “COMPLIANCE FAILURES” 87. Plaintiff repeats and realleges the foregoing paragraphs as set forth herein.

88. All Defendants have violated Count #8

COUNT #9 – RULING BASED ON DELAWARE STATUE AND CODE 1304 THAT 2004 MYSPACE TRANSFER AND 2005 TRANSACTIONS “FRAUDULENT” 89. Plaintiff repeats and realleges the foregoing paragraphs as set forth herein. 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)) 91. Plaintiff repeats and realleges the foregoing paragraphs as set forth herein.

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 Defendant’s 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 Defendant’s 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 CEO’s 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 29 while blocking the superior rate Common Stock financing sitting in Issuer outside law firm’s 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 Defendant’s 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 Defendant’s 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 Issuer’s shareholders in 2003 and 2004.

xi. As a Result of the applicable Defendant’s 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

30 even though they are well aware of the devastating toll that their prior conspiratorial actions have already taken on Petitioner and Petitioner’s business assets.

COUNT # 11 - Blasisus violation

93. Plaintiff incorporates by reference and realleges each allegation set forth above.

94. All Defendants are charged with Count #11

COUNT # 12 - Contempt Violation

95. Plaintiff incorporates by reference and realleges each allegation set forth above.

96. Defendants lied to Court regarding Defendant’s Proxy disclosure related to

Edell. Defendant’s 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.

97. Plaintiff incorporates by reference and realleges each allegation set forth above.

98. Plaintiff effects 3-1-1 approval of properly noticed Director slate on October

17,2003. Defendants fraudulently concealed such properly noticed slate.

Defendant’s 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 issuer’s 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.

31 COUNT # 14 - VOID Defendants right to exculpation under 102(b)(7)

99. Plaintiff repeats and realleges the foregoing paragraphs as set forth herein.

100. Defendant Directors right to Exculpation because of Judge King ruling finding

“bad faith” and disloyalty must be void.

COUNT #15 - Ruling certain transactions after October 17, 2003 are Void.

101. Plaintiff repeats and realleges the foregoing paragraphs as set forth herein.

102. Plaintiff effects 3-1-1 approval of properly noticed Director slate on October 17,

Defendants fraudulently concealed such properly noticed slate. Therefore, Defendant’s 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 issuer’s 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

Directors and Blasius Proxy.

108. Award to competing Proxy slate compensation as if Slate Directors had not been

32 victim of Blasius violation by defendants.

COUNT #16 INDEMNIFICATION AND ADVANCEMENT CLAIMS

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 indemnitee’s 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 limits3

114.Indemnitee in addition to being an Officer, was Director and due benefit of Issuer’s

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 indemnified and held harmless by the Corporation to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment),” (Article VIII Section 1;Exhibit 1)

3 “any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”)” (Exhibit 1 eUniverse Article VIII Section 1. “Right to Indemnification”)

33 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 Indemnitee’s January 2004 conflicted “search 34 engine” conflict and warning notice filed with SEC.

(b2) Damages and impact on Indemnitee’s May 2005 Whistleblower notice to Intermix, Inc. and Intermix’s 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 Indemnitee’s $13.50 Counter Offer to Purchase Intermix, Inc. and Myspace Inc

(b5) Damages and impact to indemnitee and Expectancy Damages from Indemnitee’s 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.

(b6) Damages and impact to indemnitee and Expectancy Damages from Indemnitee’s failed buyout of publicly traded Delaware Incorporated Answers.com in 2011.

(b7) Damages and impact to Indemnitee and Expectancy Damages from Indemnitee’s 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 35 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

______Brad D. Greenspan (SEAL)

EXHIBIT #1

37 January 2, 2014

Brad D. Greenspan 264 South La Cienega Blvd. Suite 1236 Beverly Hills, CA 90211

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 defendant’s 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 King’s 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 King’s 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 defendant’s 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 & Co’s 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 RGRD’s 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 2nd 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 Law’s 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 RGRD’s ability to practice law. RGRD also wanted a piece of the $45 million dollar settlement and Latham’s 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 Defendant’s 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 Class’s 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 case’s 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 Edell’s 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 Law’s 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 Court’s 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, doesn’t 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, ) ) C.A. No. 106-VCS v. ) ) BRETT BREWER, et al. ) ) Defendants ) ) )

MOTION FOR CONTEMPT 70(B) 42(B) AND/OR 60(B)(3)

1 I INTRODUCTION……………………………………………………………………………….pg.3

II SUMMARY OF ALLEGATIONS……………………………………………………………..pg. 4

III ARGUMENT……………………………………………………………………………………pg. 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 CORPORATION……………………pg. 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 SCHEME………………pg. 9

H. DEFENDANT’S “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 DISCLOSURE…………………………………………………………………………pg. 10

IV CONCLUSION………………………………………………………………………………..pg. 10

I. DEFENDANTS FAIL TO CURE RULE S-K ITEM 401 (F) VIOLATION…………………….pg. 10

2 MEMORANDUM OF POINTS AND AUTHORITIES

COMES NOW the Plaintiff acting on his own behalf, hereby moves this Honorable Court to enter Judgment on the Pleadings in Plaintiff’s 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

1 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.”

3 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 that’s tried to be a bit innovative.” (70B Declaration, Exhibit# 9, pg.63)

5. Omission of Edell’s 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

Edell’s work experience, ignore then Vice Chancellor Strine ruling, don’t cure the defects and make more

4 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 Plaintiff’s competing slate of Directors in January 2004 Proxy contest.

8. Defendants & their Counsel are guilty of Fraudulently concealing Edell’s 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 Plaintiff’s 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 contemnor’s 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

2 Court of Chancery Rule 70(b) supplies this court with the power — and broad latitude — to remedy violations of its orders. 3 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).

4 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.

5 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.” (70B Declaration, Exhibit# 9, pg.63)

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

5 (GEORGE LITTERST v. ZENPH SOUND INNOVATIONS, INC., C.A. No. 7700‐ML,2013) 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.

6 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.” (70B Declaration, Exhibit# 9, pg.64)

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)

7 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 Plaintiff’s 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 eUniverse’s 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

8 “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 Corp’s 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.

G. FRAUDULENT CONCEALMENT USED TO DISCREDIT PLAINTIFF IN 2009 NATIONALLY PUBLISHED NOVEL AND TO FURTHER UNLAWFUL SCHEME

24. Defendant’s leverage their relationship with acquiror to create defamatory and fabricated lies thru acquiror News Corporation employee Angwin’s 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 Plaintiff’s facts offered to Class Counsel in 2012

Federal Class Action in Los Angeles Central District. Edell’s false facts allow the fraudulent conveyance

Of approximately 50% of Myspace.com, the crown jewel of eUniverse, Inc. in 2004. Further, Edell’s false facts which become Acquiror News Corporation false facts, obstruct Plaintiff’s 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)

25. Defendants use ongoing Edell defective disclosure scheme to defame Plaintiff and impugn reputation in book Falsely claiming, “violent mood swings were part of Greenspan’s character”. (70B Declaration, pg. 26, paragraphs 127)

26. Chancery Court’s 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 Intermix’s

January 2004 & July 2004 Proxy filings for Director’s “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,

10 “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

Brad Greenspan, Pro Se

EXHIBIT #1

June 2010 Federal Central District, Judge King, Summary Judgment Ruling

12 IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

BRAD D. GREENSPAN, ) ) Plaintiff, ) ) C.A. No. 106-VCS v. ) ) BRETT BREWER et al. ) ) Defendants. ) ) )

DECLARATION IN SUPPORT OF MOTION 70(b) 42(b) CONTEMPT

DECLARATION IN SUPPORT OF MOTION 70(b) 42(b) CONTEMPT 1

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 Issuer’s 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, LivePlace’s 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.”

DECLARATION IN SUPPORT OF MOTION 70(b) 42(b) CONTEMPT 2

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 he’s 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

DECLARATION IN SUPPORT OF MOTION 70(b) 42(b) CONTEMPT 3 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 VantagePoint’s David Carlick and their counsel, Orrick’s 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 eUniverse’s chairman and CEO to invest at $1.85, but embarked on and facilitated a brazen scheme to manipulate and defraud eUniverse’s

Board and shareholders that put defendants Carlick, Sheehan, and Harroch in control of eUniverse’s 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.

DECLARATION IN SUPPORT OF MOTION 70(b) 42(b) CONTEMPT 4

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 Edell’s 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 Edell’s 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 VantagePoint’s 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 defendant’s scheme to cause eUniverse shareholders to be diluted and pay for more expensive financing so that the Directors DECLARATION IN SUPPORT OF MOTION 70(b) 42(b) CONTEMPT 5 led by Brewer could keep their jobs and receive significant upside from the incoming directors from

VantagePoint and Orrick’s Harrosh. (Exhibit #4,pg.38-39) is November 2003 press release omitting Edell’s 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 Edell’s 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 company’s 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 Brewer’s close friend and fellow YPO member Jeffrey Edell ‘s brother. Edell was Director of eLabor where Edell’s brother served as

CEO Based on Brewer’s 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 DECLARATION IN SUPPORT OF MOTION 70(b) 42(b) CONTEMPT 6

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 other’s 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 Edell’s 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 Edell’s 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 eUniverse’s 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 Edell’s track record to make it appear flawless.

26. Defendants thru this fraudulent scheme and omissions of Edell’s 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 Edell’s 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 DECLARATION IN SUPPORT OF MOTION 70(b) 42(b) CONTEMPT 7

Companys where he was principal executive officer.

iii. Defendants fraudulent concealment of Edell’s 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 issuer’s 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 Edell’s omission to trick CEO of Issuer via omission of his immediate two prior employment jobs. A Director’s last two jobs and such director candidate’s performance or the company’s 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 cc’d and states,

“looks strong… again jeff will be here tomorrow to have lunch with tom and i. brad, I’ll set something up for you later this week or next depending on your schedule.”

i. Brewer lies, misleading the CEO further, asserting Edell’s resume “looks strong”, even as

Brewer and Flahie are aware that Edell’s 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

DECLARATION IN SUPPORT OF MOTION 70(b) 42(b) CONTEMPT 8 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 Edell’s true work experience and put in its place the fake

Fabricated work experience purporting that 2000-2002 Edell worked still for Soundelux.

i. Edell’s resume forwarded by Brewer, falsely creates the appearance and assumption that

‘Soundelux Entertainment Group’ has been the sole Professional Experience of Edell’s as a full time

Executive since ‘2002’.

ii. Edell’s 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

Edell’s 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, DECLARATION IN SUPPORT OF MOTION 70(b) 42(b) CONTEMPT 9

Subject: ‘RE: Potential EUNI Board Member’, stating ,

“Also we need to have both he and Jeff Edell complete the company’s 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 Sony’s 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 Edell’s 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 Edell’s 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 Board’s attention like fact that Edell has a mandatory disclosable

SEC event under Rule S-K Item 401 (f), requiring specific disclosure on Edell’s 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 Committee’s previous legal and financial background checks did not disclose any negatives.

“Based on the results of the Nominating Committee’s 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 eUniverse’s Nominating

Committee headed by Director Larry Moreau. Edell’s true work experiences consists of:

DECLARATION IN SUPPORT OF MOTION 70(b) 42(b) CONTEMPT 10

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. Edell’s ‘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 Edell’s ‘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.”

DECLARATION IN SUPPORT OF MOTION 70(b) 42(b) CONTEMPT 11

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, Edell’s 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

Edell’s 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 eUniverse’s 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”

DECLARATION IN SUPPORT OF MOTION 70(b) 42(b) CONTEMPT 12

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 Edell’s 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’

DECLARATION IN SUPPORT OF MOTION 70(b) 42(b) CONTEMPT 13 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 17th

55. Sony’s Mark Eisenberg only signs the consent to change the Certificate of Designation of the Series B provided by Lipp. 56. Sony’s 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 Vantagepoint’s 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. Orrick’s Harroch active in the planning of the Proxy and Edell frauds emails Lipp stating, “I don’t 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 Issuer’s

“annual meeting of stockholders has been rescheduled for January 21, 2004 so that certain aspects of the Company’s recently announced financing transaction with VantagePoint Venture

DECLARATION IN SUPPORT OF MOTION 70(b) 42(b) CONTEMPT 14

Partners, among other items, may be submitted to the Company’s 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 defendant’s actions around the 2004 proxy. 64. At 5:46PM on Saturday November 22, 2003, eUniverse Sr. VP Legal, Chris Lipp emails Orrick’s Harroch and VantagePoint’s 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 Edell’s 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

DECLARATION IN SUPPORT OF MOTION 70(b) 42(b) CONTEMPT 15 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 25th, 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 Liupp’s 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 Company’s Board of Directors (the “Board”) to be included in the Company’s 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, that’s 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,

DECLARATION IN SUPPORT OF MOTION 70(b) 42(b) CONTEMPT 16

"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 DeWolfe’s 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 Sony’s Series B just for the reason of not doubling up on forced directors.” And “Sneaky sneaky…They 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 release…I am sure you checked already but let me know? Thanks jeff”vii DECLARATION IN SUPPORT OF MOTION 70(b) 42(b) CONTEMPT 17

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 party’s 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 DECLARATION IN SUPPORT OF MOTION 70(b) 42(b) CONTEMPT 18

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 Brewer’s email on this date to Lipp and Goldenberg he states, “this guy is one of the biggest assholes that ever lived…there 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 Edell’s fabricated resume then colludes with General DECLARATION IN SUPPORT OF MOTION 70(b) 42(b) CONTEMPT 19

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 eUniverse’s 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 company’s 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 Issuer’s 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 Strine’s 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. Lipp’s rationales for certain disclosures and statements in the company’s Proxy.

SONY’S 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

DECLARATION IN SUPPORT OF MOTION 70(b) 42(b) CONTEMPT 20 transactions damaged and fraudulently conveyed assets to the detriment of Issuer shareholders.

100. Edell’s 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 Strine’s January 14, adverse ruling to manipulations of defendants and Sony Corp’s interactions relating to upcoming 2004 Proxy Disclosures.

101. 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 company’s 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 Issuer’s 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 Strine’s 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.

Shockingly with evidence of Defendant’s improprieties laid bare in court and significant red flags raised, Sony then agrees to nominate Edell to serve as Series B Director. Sony’s 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. Defendant’s 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 issuer’s 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.

103. Defendants were aware and admitted the proxy statement was defective in January 2004. Defendants willfully ignore Judge Strine’s ruling and continue to allow A defective proxy to be the final proxy for the annual shareholder

DECLARATION IN SUPPORT OF MOTION 70(b) 42(b) CONTEMPT 21 meeting that occurred in January 2004. Defendants fraudulently conceal Edell’s work experience and omit disclosure of Edell’s 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 Plaintiff’s 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."

DECLARATION IN SUPPORT OF MOTION 70(b) 42(b) CONTEMPT 22

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 Edell’s 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 DECLARATION IN SUPPORT OF MOTION 70(b) 42(b) CONTEMPT 23

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. Edell’s 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

Edell’s true background by disclosing:

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 DECLARATION IN SUPPORT OF MOTION 70(b) 42(b) CONTEMPT 24

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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.

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 Corporation’s (“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 company’s 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”] ¶¶

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 Case 2:06-cv-03731-GHK-SH Document 278 Filed 06/17/10 Page 2 of 39

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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 party’s 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

“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, Intermix’s General Counsel. (Dkt. No. 205). CV-90 (06/04) CIVIL MINUTES - GENERAL Page 2 of 39 Case 2:06-cv-03731-GHK-SH Document 278 Filed 06/17/10 Page 3 of 39

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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. 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 party’s 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 Publ’g 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 Plaintiff’s 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

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 rule’s presumption by providing evidence that the directors breached their fiduciary duties.” Goodwin v. Live Entm’t, 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 CV-90 (06/04) CIVIL MINUTES - GENERAL Page 3 of 39 Case 2:06-cv-03731-GHK-SH Document 278 Filed 06/17/10 Page 4 of 39

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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 director’s 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. Intermix’s 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 Intermix’s 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 defendant’s directorial duties from actions taken in fulfillment of that defendant’s 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 defendant’s capacity as an officer are outside the purview of Section

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). CV-90 (06/04) CIVIL MINUTES - GENERAL Page 4 of 39 Case 2:06-cv-03731-GHK-SH Document 278 Filed 06/17/10 Page 5 of 39

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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 S’holder 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 care—that 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 one’s 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 Delaware’s 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 Plaintiff’s 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, Plaintiff’s assertion of bad faith conduct by Defendants, and second, Plaintiff’s 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 one’s 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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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 company’s 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 bidder’s 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. Soc’y 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 transaction–on its own initiative or in response to an unsolicited offer–that will result in a change of control.” Lyondell, 970 A.2d at 242. When the company’s “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 target’s 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 director’s fiduciary obligations. Id. at 1000-01.

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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 KKR’s 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.

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 board’s 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 board’s 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. S’holders 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.”). CV-90 (06/04) CIVIL MINUTES - GENERAL Page 8 of 39 Case 2:06-cv-03731-GHK-SH Document 278 Filed 06/17/10 Page 9 of 39

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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. Int’l 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 director’s 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

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 CV-90 (06/04) CIVIL MINUTES - GENERAL Page 9 of 39 Case 2:06-cv-03731-GHK-SH Document 278 Filed 06/17/10 Page 10 of 39

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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 Court’s decision in Lyondell. In that case, Lyondell’s 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 Basell’s 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 Basell’s 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

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 board’s 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). CV-90 (06/04) CIVIL MINUTES - GENERAL Page 10 of 39 Case 2:06-cv-03731-GHK-SH Document 278 Filed 06/17/10 Page 11 of 39

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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 oversight—such as an utter failure to attempt to assure a reasonable information and reporting system exists—will establish the lack of good faith that is a necessary condition to liability.” 698 A.2d at 971 (“Such a test of liability—lack of good faith as evidenced by sustained or systematic failure of a director to exercise reasonable oversight—is 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 Court’s 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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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 Lyondell’s 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 Plaintiff’s 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.

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. CV-90 (06/04) CIVIL MINUTES - GENERAL Page 12 of 39 Case 2:06-cv-03731-GHK-SH Document 278 Filed 06/17/10 Page 13 of 39

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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 Viacom’s advances, even though Viacom’s 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 Rosenblatt’s purported self-interest, there is evidence of Rosenblatt’s 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 Levinsohn’s 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 ain’t [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:

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 Rosenblatt’s 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. CV-90 (06/04) CIVIL MINUTES - GENERAL Page 13 of 39 Case 2:06-cv-03731-GHK-SH Document 278 Filed 06/17/10 Page 14 of 39

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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 Rosenblatt’s updates to the full board, saying “Viacom sounds like a pipedream.” (Id., Ex. 182).

Fourth, on July 15, Judy McGrath of MTV9 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 couldn’t get a hold of her.” (Rosenblatt Tr. at 108:21-24).

Fifth, Viacom’s CEO Thomas Freston (“Freston”), who reiterated Viacom’s 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).

9 Viacom owns MTV Networks.

10 The Parties initially sought to file Freston’s 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 Freston’s 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. CV-90 (06/04) CIVIL MINUTES - GENERAL Page 14 of 39 Case 2:06-cv-03731-GHK-SH Document 278 Filed 06/17/10 Page 15 of 39

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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, MySpace’s 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 board’s 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]

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 Viacom’s relative awareness of the impending consummation of the merger with News Corp. Moreover, Jason Hirschhorn (“Hirschhorn”), Viacom’s 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 Freston’s 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. CV-90 (06/04) CIVIL MINUTES - GENERAL Page 15 of 39 Case 2:06-cv-03731-GHK-SH Document 278 Filed 06/17/10 Page 16 of 39

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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 Viacom’s appreciation of the arguable need to make an offer by the evening of July 17, 2005.

14 Rupert Murdoch is the Chairman and CEO of News Corp. Peter Chernin was the then- President and COO of News Corp. CV-90 (06/04) CIVIL MINUTES - GENERAL Page 16 of 39 Case 2:06-cv-03731-GHK-SH Document 278 Filed 06/17/10 Page 17 of 39

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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, Sheehan’s secretary informed him that she told Epstein that he was “unavailable.” (Id.). A reasonable jury could conclude that this email chain evinces Sheehan’s intent to avoid Viacom’s 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 don’t 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 Viacom’s 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 hadn’t 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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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 TWP’s] fairness presentations.” (Brewer Tr. at 104:2- 10). Though Brewer’s 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.

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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. 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 Intermix’s 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 Corporation’s 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 Intermix’s 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 Intermix’s 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 Intermix’s 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, [Intermix’s] 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 Plaintiff’s 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, Plaintiff’s 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 Plaintiff’s 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 Plaintiff’s bad faith theory in the Revlon auction context.

2. Self-Interested Transaction

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 majority’s 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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CIVIL MINUTES - GENERAL Case No. CV 06-3731-GHK (SHx) Date June 17, 2010 Title Jim Brown v. Brett Brewer, et al. 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 Rosenblatt’s 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 Rosenblatt’s 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 Rosenblatt’s periodic updates to the board had led him to believe “[t]hat Viacom was less urgent about the deal and hadn’t 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 Rosenblatt’s presentation to the board may have been misleading as to Viacom’s seriousness. According to Mosher’s description of the board meetings, “from the management team estimation

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Moreover, based on Mosher’s description of the content of Rosenblatt’s 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 Plaintiff’s 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.”).

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). CV-90 (06/04) CIVIL MINUTES - GENERAL Page 23 of 39 Case 2:06-cv-03731-GHK-SH Document 278 Filed 06/17/10 Page 24 of 39

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A. Alleged Material Omissions

1. MySpace’s Then-Current Revenue and Profits

Defendants first argue that Plaintiff failed to identify the alleged material omission of MySpace’s 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 MySpace’s prospective growth, not the company’s 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 MySpace’s true value or its true growth potential, and had no way of comparing the information that was publicly available to management’s projections and growth assumptions. Thus, even though certain metrics that were used to track MySpace’s 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 Company’s 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 MySpace’s 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 Carlick’s 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 Plaintiff’s counsel answered the question in the negative, thereby waiving this basis. (J.A., Ex. 30, Knaster Decl. ¶¶ 8-9). Fifth, Plaintiff’s 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 Management’s 2005-2009 Financial Projections

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Plaintiff also alleges that Defendants failed to disclose Intermix management’s 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 TWP’s 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 management’s 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 investor’s interest would be piqued by a company’s 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. S’holders 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 management’s inside

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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. view of the company’s prospects.”).16 Here, we conclude that there is at least a triable issue as to the materiality of the omission of Intermix’s 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 Intermix’s 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 Int’l Union v. Int’l 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

16 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. CV-90 (06/04) CIVIL MINUTES - GENERAL Page 26 of 39 Case 2:06-cv-03731-GHK-SH Document 278 Filed 06/17/10 Page 27 of 39

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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. 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) Viacom’s 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 Intermix’s crown jewel, MySpace.

However, these purported material omissions are nothing more than the building blocks of Plaintiff’s 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 entity’s 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 Rosenblatt’s 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 Rosenblatt’s alleged evasion of Viacom executives and the alleged deliberate hampering of Viacom’s 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 Plaintiff’s 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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Id. at *10-1117; 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

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. CV-90 (06/04) CIVIL MINUTES - GENERAL Page 29 of 39 Case 2:06-cv-03731-GHK-SH Document 278 Filed 06/17/10 Page 30 of 39

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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. 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. P’ship 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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CIVIL MINUTES - GENERAL Case No. CV 06-3731-GHK (SHx) Date June 17, 2010 Title Jim Brown v. Brett Brewer, et al. 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; Plaintiff’s Motions to Strike

Defendants move to exclude Plaintiff’s 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. Kennedy’s 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 Court’s 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); O’Hanlon 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 Plaintiff’s 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. Kennedy’s 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 expert’s 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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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 Daubert’s 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 firm’s costs and rate of growth, and about the discount rate”).

With respect to the DCF analysis, the principal difference from Montgomery and TWP’s DCF fairness analyses is Dr. Kennedy’s 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). TWP’s projections differed slightly from management’s 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 management’s 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 MySpace’s 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 management’s projections for 2007-2008 and 2008-2009. (Id. at 11). They note that he has merely declared that Montgomery and TWP’s 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 management’s 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 Kennedy’s conclusions on his DCF analysis, they do not render his methodology unreliable. Rather, the deviation from management’s 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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CIVIL MINUTES - GENERAL Case No. CV 06-3731-GHK (SHx) Date June 17, 2010 Title Jim Brown v. Brett Brewer, et al. 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. Kennedy’s 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. Kennedy’s 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 Damodaran’s 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 Cornell’s declaration in support of this Motion to Exclude, in which he argues that “Dr. Kennedy’s 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. Kennedy’s DCF analysis, Dr. Cornell used three hypothetical scenarios, in which MySpace’s 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. Kennedy’s 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 MySpace’s revenues grow at a rate exceeding that of the economy as a whole for fifteen years

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 Children’s Broad. Corp. v. The Walt Disney Co., 245 F.3d 1008, 1018 (8th Cir. 2001) (describing DCF analysis as “an uncontroversial accounting method”). CV-90 (06/04) CIVIL MINUTES - GENERAL Page 34 of 39 Case 2:06-cv-03731-GHK-SH Document 278 Filed 06/17/10 Page 35 of 39

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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. after 2010, i.e., until 2025, Dr. Kennedy’s implied EBITDA multiple of 18x is three times too high when compared with even [Dr. Cornell’s] most aggressive implied EBITDA multiple of 6.0x to give a reasonable estimate of MySpace’s value as of mid-2005.” (Id. ¶ 21 (emphasis original)).

Though a jury might conclude at trial that Dr. Kennedy’s selection of an 18x EBITDA multiple was overzealous, Dr. Cornell’s calculations do not demonstrate that Dr. Kennedy’s methodology is fundamentally unreliable. At base, Dr. Cornell’s challenge to this DCF analysis constitutes an attack on Dr. Kennedy’s projections as to MySpace’s 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. Kennedy’s projections, the generation of which we have already noted is not an exact science, we conclude that his arguments do not render Dr. Kennedy’s methodology fundamentally unreliable and therefore inadmissible. Dr. Cornell himself has testified that an adjustment in the terminal multiple based on the expert’s assessment of the company’s 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 “it’s 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 it’s 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, there’s 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 expert’s 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. Kennedy’s 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 witness’s 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 Commc’ns, Inc. S’holders 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 expert’s testimony as unreliable under Rule 702, where the expert rejected management’s projections and generated his own DCF analysis).

With respect to Dr. Kennedy’s 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. Kennedy’s 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 wasn’t 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 TWP’s 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 Nature’s 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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CIVIL MINUTES - GENERAL Case No. CV 06-3731-GHK (SHx) Date June 17, 2010 Title Jim Brown v. Brett Brewer, et al. 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 Montgomery’s 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 TWP’s 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. Kennedy’s 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. Kennedy’s testimony. As Dr. Kennedy’s 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 one’s investment,

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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. 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 defendant’s 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 . . . . Don’t 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 Viacom’s board simply refused to engage in a public bidding war with its competitor News Corp. Freston, Viacom’s CEO, testified that the Viacom board members were adamant on this point: “There already had been an offer and it wasn’t ours and it didn’t 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, let’s 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 wasn’t 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 Viacom’s 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, Plaintiff’s 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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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

Plaintiff’s 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

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. CV-90 (06/04) CIVIL MINUTES - GENERAL Page 39 of 39 Case 2:13-cv-04253-MWF-AJW Document 62 Filed 05/02/14 Page 1 of 41 Page ID #:1883 FtLED