The Facebook, Inc. v. Connectu, Inc et al

Filing 592

Declaration of I. Neel Chatterjee in Support of 591 Memorandum in Opposition, filed byMark Zuckerberg, The Facebook, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 1 - Notice of Manual Filing, # 3 Exhibit 2 (Public Version), # 4 Exhibit 2 - Notice of Manual Filing, # 5 Exhibit 3 - Notice of Manual Filing, # 6 Exhibit 4 - Notice of Manual Filing, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7)(Related document(s) 591 ) (Chatterjee, I.) (Filed on 8/4/2008)

The Facebook, Inc. v. Connectu, LLC et al

Doc. 592

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SEAN A. LINCOLN (STATE BAR NO. 136387) [e-mail] I. NEEL CHATTERJEE (STATE BAR NO. 173985) [e-mail] MONTE COOPER (STATE BAR NO. 196746) [e-mail] THERESA A. SUTTON (STATE BAR NO. 211857) [e-mail] YVONNE P. GREER (State Bar No. 214072) [e-mail] ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs THE FACEBOOK, INC. and MARK ZUCKERBERG UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

THE FACEBOOK, INC. and MARK ZUCKERBERG, Plaintiffs, v. CONNECTU, INC. (formerly known as CONNECTU, LLC) PACIFIC NORTHWEST SOFTWARE, INC. WINSTON WILLIAMS, and WAYNE CHANG, Defendants.

Case No. 5:07-CV-01389-JW DECLARATION OF I. NEEL CHATTERJEE IN SUPPORT OF PLAINTIFF'S OPPOSITION TO CONNECTU'S MOTION TO STAY EXECUTION OF JUDGMENT PENDING APPEAL Date: Time: Courtroom: Judge: August 6, 2008 4:30 p.m. 8 Honorable James Ware

DECLARATION OF I. NEEL CHATTERJEE ISO PLAINTIFF'S OPPOSITION TO CONNECTU'S MOTION TO STAY EXECUTION OF JUDGMENT PENDING APPEAL 5:07-CV-01389-JW

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I, I. Neel Chatterjee, declare as follows: 1. I am a Partner at the law firm of Orrick, Herrington & Sutcliffe, counsel for

Plaintiffs Facebook, Inc. and Mark Zuckerberg ("Facebook") in this action, and a member of the Bar of the state of California. I make this declaration in support of Facebook's Opposition to ConnectU, Inc.'s ("ConnectU") Motion to Stay Execution of Judgment Pending Appeal. I make this declaration of my own personal knowledge and, if called as a witness, I could and would testify competently to the truth of the matters set forth herein. 2. Attached hereto as Exhibit 1 is a true and correct copy of the "Affirmation of Sean

O'Shea in Support of Petitioners' Application for a Permanent Stay Pursuant to 7503(b) and For a Temporary Stay Pending Determination of the Application for Permanent Stay" filed in Connect U, Inc., et al. v. Quinn Emanuel Urquhart Oliver & Hedges, LLP, in the Supreme Court of New York, County of New York. [UN-REDACTED DOCUMENT SUBMITTED SEPARATELY UNDER SEAL]. 3. Attached hereto as Exhibit 2 is a true and correct copy of ConnectU's

"Memorandum of Law in Support of Application to Stay Arbitration Pursuant to CLPR 7503" filed in Connect U, Inc., et al. v. Quinn Emanuel Urquhart Oliver & Hedges, LLP, in the Supreme Court of New York, County of New York. [UN-REDACTED DOCUMENT SUBMITTED SEPARATELY UNDER SEAL]. 4. Attached hereto as Exhibit 3 is the a true and correct copy of the "Valuation

Report, Facebook, Inc., as of April 20, 2006," produced in discovery as FBMA 000093-0000171. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL]. 5. Attached hereto as Exhibit 4 is the a true and correct copy of the "Valuation

Report, Facebook, Inc., as of August 31, 2006," produced in discovery as FBMA 00001720000263. [CONFIDENTIAL DOCUMENT SUBMITTED SEPARATELY UNDER SEAL]. 6. Attached hereto as Exhibit 5 is a true and correct copy of an article by Lou R

Kling, Negotiated Acquisitions of Companies Subsidiaries and Divisions §1.02[5]. 7. On July 1, 2008, I met with Michael Underhill, David Barrett, and Evan Parke,

counsel for ConnectU. I asked then if their clients had plans as to how the ConnectU business -1DECLARATION OF I. NEEL CHATTERJEE ISO OPPOSITION TO CONNECTU'S MOTION TO STAY EXECUTION OF JUDGMENT PENDING APPEAL 5:07-CV-01389-JW

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would be run pending appeal. Mr. Underhill answered "we really have not thought about that." To date, Counsel for ConnectU have not provided any such plan or explanation. 8. On July 2, 2008, Judge Ware appointed Special Master George C. Fisher to

oversee the transaction of the Court's Judgment. Both parties have been in regular contact with Mr. Fisher for the past several weeks to discuss various matters related to the cash-and-stock-forstock transaction, including the efficient transfer of stock for ConnectU and Facebook. Sean O'Shea, counsel for the ConnectU Founders (i.e. the Winklevoss brothers and Divya Narendra), has also participated in several of these calls. During these discussion, ConnectU never said it did not intend to perform the cash-and-stock-for-stock transaction. 9. In the morning of August 4, 2008, Facebook deposited the consideration required

under the Judgment. After the Facebook's consideration was deposited and at approximately 2:12 pm on August 4, 2008, ConnectU for the first time stated it would not comply with the Court Order enforcing the Judgment and would not submit the Court-ordered deposits required under section 2(a) and (c) of the Judgment. ConnectU's Counsel's email refusing to comply with the Court Order is attached hereto as Exhibit 6. 10. Attached hereto as Exhibit 7 is the a true and correct copy of the June 3, 2008

Memorandum and Order by Judge Woodlock in the related case ConnectU LLC v. TheFacebook, Inc. et al. (Case No. 1:04-11923) in the United States District Court of Massachusetts. I declare the foregoing is true and correct to the best of my knowledge. Executed this 4th day of August, at Menlo Park, California.

/s/ I. Neel Chatterjee /s/ I. Neel Chatterjee

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DECLARATION OF I. NEEL CHATTERJEE ISO OPPOSITION TO

CONNECTU'S MOTION TO STAY EXECUTION OF JUDGMENT PENDING APPEAL 5:07-CV-01389-JW

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OHS West:260486749.3

CERTIFICATE OF SERVICE I hereby certify that this document(s) filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non registered participants on August 4, 2008. Dated: August 4, 2008. Respectfully submitted, /s/ I. Neel Chatterjee /s/ I. Neel Chatterjee

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DECLARATION OF I. NEEL CHATTERJEE ISO OPPOSITION TO CONNECTU'S MOTION TO STAY EXECUTION OF JUDGMENT PENDING APPEAL 5:07-CV-01389-JW