Facebook, Inc. v. Studivz, Ltd et al

Filing 142

AMENDED COMPLAINT re Docket No. 140, EXHIBITS 26 THROUGH 33 TO AMENDED COMPLAINT against all defendants. Filed byFacebook, Inc.. (Attachments: # 1 Exhibit 27, # 2 Exhibit 28, # 3 Exhibit 29, # 4 Exhibit 30, # 5 Exhibit 31, # 6 Exhibit 32, # 7 Exhibit 33)(Gray, Thomas) (Filed on 3/31/2009)

EXHIBIT 28

Case 5:08-cv-03468-JF

Document 46

Filed 10/22/2008

Page 1 of 4

1 2 3 4 5 6 7 8 9
GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP

STEPHEN S. SMITH (SBN 166539) [e-mail] WILLIAM M. WALKER (SBN 145559) [e-mail] AARON J. MOSS (SBN 190625) [e-mail] GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067-4590 Telephone: [phone] Fax: [phone] Attorneys for Defendants Holtzbrinck Networks GmbH, Holtzbrinck Ventures GmbH and StudiVZ Ltd. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION FACEBOOK, INC., Plaintiff, v. STUDIVZ LTD., VERLAGSGRUPPE GEORG VON HOLTZBRINCK GmbH, HOLTZBRINCK NETWORKS GmbH, HOLTZBRINCK VENTURES GmbH, and DOES 125, Defendant. Case No. 5:08-CV-03468 JF Assigned To: Hon. Jeremy Fogel DECLARATION OF MARTIN WEBER IN SUPPORT OF DEFENDANTS' MOTIONS TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND FORUM NON CONVENIENS [Notice of Motions and Motions and (Proposed) Order Filed Concurrently Herewith] Date: February 13, 2009 Time: 9:00 a.m. Dept./Place: Courtroom 3 Complaint Filed: July 18, 2008

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
37106-00002/1659821.1

1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067 4590 -

DECL. OF MARTIN WEBER IN SUPPORT OF MOTION TO DISMISS

Case 5:08-cv-03468-JF

Document 46

Filed 10/22/2008

Page 2 of 4

1 2 3 4 5 6 7 8 9
GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP

DECLARATION OF MARTIN WEBER I, MARTIN WEBER, declare: 1. The facts set forth in this declaration are personally known to me and I

have firsthand knowledge thereof. If called as a witness, I could and would testify competently to the facts set forth herein under oath. 2. I am currently and have been since April 2006, a managing director of defendant Holtzbrinck Ventures GmbH ("Ventures") I am also, and have been since August 2006 a managing director of defendant Holtzbrinck Networks GmbH ("Networks"). I make this declaration in support of Networks' and Ventures' Motion to Dismiss for lack of personal jurisdiction or, in the alternative, for forum non conveniens, the complaint filed by plaintiff Facebook, Inc. ("Facebook"). 3. In my capacity as managing director, I have access to Networks' and Ventures' respective books and records relating to their respective business, corporate structure, assets, capitalization and cash flow. Based on the books and records, and my personal knowledge I declare: 4. Networks and Ventures are both limited liability companies (Gesellschaft mit beschränkter Haftung (GmbH)) organized under German law. Each functions as a "holding company," whose corporate purpose is to administer its assets (principally media-related companies) for financial purposes. 5. Networks owns an 85% equity interest in defendant StudiVZ, Ltd ("StudiVZ"). Networks first became an equity holder of StudiVZ in October 2007. Ventures owns a 15% equity interest in StudiVZ. Ventures first became an equity holder of StudiVZ in August 2006. 6. Neither Networks nor Ventures is qualified to do business in California. Neither has any officers, directors, employees or independent
1 DECL. OF MARTIN WEBER IN SUPPORT OF MOTION TO DISMISS

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

1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067 4590 -

37106-00002/1659821.1

Case 5:08-cv-03468-JF

Document 46

Filed 10/22/2008

Page 3 of 4

1 2 3 4 5 6 7 8 9
GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP

contractors based in California. Neither has a California agent for service of process. Neither directs any advertising toward California residents. 7. Networks and Ventures both have offices in Germany, but no offices or facilities in California, nor do they have any telephone or facsimile listings or mailing addresses in California. 8. Neither Networks nor Ventures maintains any books or records in California. They have no bank accounts or tangible personal or real property in California. They have no sales in California, have had no California income and have not paid any California income tax. 9. None of the Networks' or Ventures' officers, directors or employees reside or are domiciled in California. No meetings of Networks' or Ventures' respective manage ment boards or equity holders have been held in California. 10. While Networks and Ventures monitor StudiVZ's financial performance (as they would any investment), they do not exercise any type of dayto-day control over StudiVZ ­ either operational control or control over strategic decisions. The two managing directors of Networks and Ventures, Konstantin Urban and I, are also company directors of StudiVZ. However, these individuals merely function in a supervisory capacity, not as officers who are responsible for the day-to-day activities of StudiVZ. 11. StudiVZ has its own management team, offices and bank accounts, and is separately (and sufficiently) capitalized from Ventures and Networks, as discussed in the declaration of Michael Brehm in support of StudiVZ's concurrently-filed Motion to Dismiss. 12. StudiVZ also does not act as a general agent of either Networks or Ventures. Networks and Ventures simply hold StudiVZ as an investment. StudiVZ is only one of many media-related assets held as an investment by Networks and Ventures.
37106-00002/1659821.1

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

1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067-4590

2

DECL. OF MARTIN WEBER IN SUPPORT OF MOTION TO DISMISS

Case 5:08-cv-03468-JF

Document 46

Filed 10/22/2008

Page 4 of 4

1 2 3 4 5 6 7 8 9
GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP

13.

After Networks and Ventures purchased an equity interest in StudiVZ,

Facebook negotiated with Networks and Ventures to purchase their interests in StudiVZ during May and June 2008. Those negotiations concluded without the parties reaching any agreement in late June 2008. 14. Just after the negotiations broke down, on July 9, 2008, Facebook wrote a demand letter to Networks and Ventures, threatening to sue based on the exact same types of claims that Facebook had previously raised in Germany in June 2006 and January 2007 against StudiVZ, as discussed in the accompanying declaration of Klaus Ikas. 15. All of Ventures' and Networks' employees, officers and directors reside in Germany and speak German (or, in a few cases, another European language other than English) as their native language, and all speak German as their every-day language. Ventures and Networks perform their business almost exclusively in the German language. As a result, almost all of its business documents are located in Germany and written in the German language (and would have to be translated, at huge expense). I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on this 22nd day of October, 2008, at Stuttgart, Germany.

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

1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067-4590

Martin Weber

37106-00002/1659821.1

3

DECL. OF MARTIN WEBER IN SUPPORT OF MOTION TO DISMISS

Case 5:08-cv-03468-JF

Document 46-2

Filed 10/22/2008

Page 1 of 1