Interserve, Inc. et al v. Fusion Garage PTE. LTD

Filing 237

Statement Status Conference Statement by CrunchPad, Inc., Interserve, Inc.. (Bloch, David) (Filed on 2/3/2012)

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WINSTON & STRAWN LLP
David S. Bloch (SBN: 184530)
[e-mail]
Nicholas W. Short (SBN: 253922)
[e-mail]
101 California Street
San Francisco, CA 94111-5802
Telephone:
[phone]
Facsimile:
[phone]

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Attorneys for Plaintiffs

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION
TECHCRUNCH, INC., et al.
Plaintiffs,
vs.
FUSION GARAGE PTE. LTD.,
Defendant.

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Case No. C 09-cv-05812 (RS) (PSG)
STATUS CONFERENCE STATEMENT
Date:
Time:
Judge:
Location:

February 9, 2012
1:30 p.m.
Hon. Richard Seeborg
Courtroom 3, 17th Floor

-----------------------------)
Plaintiffs TechCrunch, Inc., and CrunchPad Inc. (collectively "TechCrunch") submit this

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status conference statement for the Court's consideration in connection with the February 9, 2012,

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hearing as to whether the Court should enter default against defendant Fusion Garage PTE, Ltd.

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A.

The Court should enter default against Fusion Garage and set a prove-up
hearing for TechCrunch to establish its damages on March 1,2012.

On December 29,2011, the Court entered an Order Granting Counsel's Motion to Withdraw,

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in which the Court: (1) granted leave for Fusion Garage's former counsel, Quinn Emanuel Urquhart
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Sullivan LLP, to withdraw from the case; (2) ordered Fusion Garage to obtain new counsel by
February 1,2012; and (3) ordered Fusion Garage to appear and show cause on February 9,2012
"why its answer should not be stricken and its default entered" if its counsel failed to make an
appearance by February 1,2012. Dkt. No. 236.

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Fusion Garage did not retain new counsel. The Court therefore should strike its answer and
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STATUS CONFERENCE STATEMENT

CASE

No. C 09-cv-5812 (PSG)

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enter default against Fusion Garage. TechCrunch is prepared to prove the damages it has suffered as

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a result of the causes of action alleged in the operative complaint. Dkt. No. 167. TechCrunch

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proposes to prepare and file its motion for entry of judgment and serve it on Fusion Garage (via its

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former counsel and by international post) by February 23, 2012, following which TechCrunch

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proposes a prove-up hearing for March 1,2012. TechCrunch intends to submit an expert report

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concerning damages and will be prepared to supply live testimony from TechCrunch and its experts

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if the Court so desires.

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B.

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Enforcement remains troublesome because Fusion Garage has limited property
in the United States.

It appears that Fusion Garage has limited assets in the United States. TechCrunch thus will

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need to enforce any judgment the Court may enter via international treaties concerning the
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enforcement of foreign judgments. Discovery to date indicates that Fusion Garage has or had an

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account at Wells Fargo and a PayPal account for collecting money from pre-ordered products, with a

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balance (as of more than a year ago) of approximately $38,000. We have no way of knowing

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whether any assets remain in either account. Fusion Garage also has an interest in two registered

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domain names: (1) www.fusiongarage.com. registered at Spot Domain LLC to Fusion Garage's

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principal, Chandrasekhar Rathakrishnan; and (2) www.thejoojoo.com. registered at GoDaddy LLC

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to Aga Reszka (apparently a web designer). TechCrunch asks that the Court's default judgment

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specifically identify these four assets and allows TechCrunch to enforce its judgment on any
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domestic property, including these domain names.

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TechCrunch hopes to learn more about Fusion Garage's domestic property from the

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company's former PR firm, McGrath/Power Public Relations, and its principal, Jonathan Bloom.
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TechCrunch issued a revised notice of subpoena for documents to McGrath/Power on January 3,

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2012, along with a deposition subpoena to Mr. Bloom. We are working with counsel for these
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witnesses (Quinn Emanuel) to obtain the requested documents and information.

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c.

Fusion Garage appears to have declared bankruptcy in Singapore, and its
creditor has signaled its intent to destroy evidence in Singapore.

There is reason to believe that Fusion Garage is attempting to dissolve itself and dissipate its
assets in a Singapore-based proceeding. TechCrunch was not formally notified of this proceeding
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STATUS CONFERENCE STATEMENT

CASE

No. C 09-cv-5812 (PSG)

1
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an online newspaper, Mr. Rathnakrishnan indicated his intent to resolve "under Section 320(3) of the

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Companies Act, Cap. 50 that the books, accounts, and documents of the Company and of the

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Liquidators be disposed of one day after the dissolution of the Company." Tab A. On January 17,

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2012, we wrote to Fusion Garage's Liquidators-Mr. Goh Thien Phong and Mr. Chan Kneng Tek of

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PricewaterhouseCoopers LLP-warning them of Fusion Garage's obligations to preserve evidence

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under federal law, and requesting that they confirm that they would not countenance the destruction

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of any evidence. Tab B. Fusion Garage's liquidators replied on January 19,2012, noting only that,

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officially-done-but-are-they-outl (last visited Feb. 3,2012). In a January 5, 2012 notice published in

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but instead learned of it through online news sources. See http://e27.sg/2012/01l111fusion-garage-is-

if the company so resolves, "the books and records of the Company will be destroyed" and that this

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practice is "normal" in Singapore. Tab C. We responded on January 20, asking that they reconsider

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this position and warning that TechCrunch would pursue any available remedies against Fusion

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Garage and anyone who countenances the destruction of evidence. Tab D.

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In light of the apparent effort to dissipate Fusion Garage's assets, we ask that the Court's
default judgment order apply to Fusion Garage PTE Ltd. and its owners and investors, including

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Chandrasekar Rathakrishnan, Bruce Lee, Raffles Technology, Stamford Technology, CSL Group (a

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Malaysian company), Robert Tan Kah Boon, and Purple Ray.

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Respectfully submitted,

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Dated: February 3,2012

WINSTON & STRAWN LLP

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By: lsi David S. Bloch
David S. Bloch
Nicholas W. Short

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Attorneys for Plaintiffs

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3
STATUS CONFERENCE STATEMENT

CASE

No. C 09-cv-5812 (pSG)

Tab A

fusion-garage-crunchpad.png (630 x 853)

2/3/12

And
In the Matter of

fUSION GARAGE PTE. LTO,.
(PROVISIONAl.. LIQUIDA.TORS APPOINTED)

CO. REG, NO. 200S01933E
NOTICE OF MEeTING TO CREDITORS

NOTICE IS HEREBY GIVEN that pursuant to Section 296 of too Co.mpal'1ies Act,
Cklp. 50., a meeting jjf credltQrsof ruslon Garage Pte, Ltd, will be held at 5. Harper
Road, #03-01, Singapore 3)39(\$ on 20 January 2012 at 15()O hours fat !he followln.g
purpOSE!:$:
(1 )

To lay before tho credltol'$ a full s~atomont of the' affairs of thill Company,
showing thili!' !il$Sots ~nd tiabilltle$ of Ut0 Compt'lny.,

(2:)

To consider wl'1ere appropriate trie nomination of. Llquit;Jaiufs in
up,.

too

winding

To reS'olvii.! that th·e Uq fuldatcrs' ieffi',JrlOration be based on their normal $.eale
rates and be pillkl out of the Company"s assets,
(4)

(5)

To oMsider w1;ere appropriato app'olntme:nt(e)of 3tld to a CommiUee of
Inspection,

To res.olve under SJilctkm 3:<':0(3) 01

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Compaflle:s Aqt, Cap, 50 that tho

COOKS, sceounts and d'Oowrnents of the Company and Of the Liquidators be
dlspO~H~d of 'One day after tfte dls$orutkm of the Company,

abov~ meeting is t1eld in vl-cw of the fact that tha following f(;)soluuol1$ are to be
proposed at an Extrl'lon:Wnaty General Meeting of shareholderr; of Itte Company to be
he~d preceding the abovl.'! moeting: ~

The

(a)

That the Company be wOl.lI'1d~up vo~untarlt'l as it cannot by rcai!iol"fof its
liabilities; continue its I::ll..lslness,

(b)

Thl:il Messrs Goh Thien Phol'lg and Chan l<heng rex all of
PricewaterhouseCoopers LLP,
CroSiS $tr~et #17·0D P\NC Building
Singapore 04842:4 be appointed Uquklatol's ·of the C\;imp-aT1Y. jo:nUy a.nll
severally, fo,r the ptJrpos~ of 1M winding-up, and ~hat thelir remuneration be
based Of! tl1air normal scale ratesam:i1 be paid out of ih$Compllny':s <!3S*';tS"

a

To;

Chandrasek<lr sic Rathakrishn.ll'I
Diroctor

e27 .sg/wp-contentluploads/20 1210 1/fusion-garage-crunchpad .png

1/1

TabB

WINSTON & STRAWN LLP
BElJING
CHARLOTTE

101 CALIFORNIA STREET
SAN FRANCISCO, CALIFORNIA 94111-5802

NEWARK

CHICAGO
GENEVA
HONG KONG

[phone]
FACSIMILE [phone]

www.winston.com

WASHINGTON, D.C.

SHANGHAI

January 17,2012

VIA FEDERAL EXPRESS
Fax:

PARIS
SAN FRANCISCO

LONDON
LOS ANGELES

MOSCOW
NEW YORK

DAVID S. BLOCH

Partner
[phone]

[e-mail]

[65] 6236-3715
[65] 6236-3300
[65] 6236-4005

:Mr. Goh Thien Phong
Mr. Chan Kneng Tek
PricewaterhouseCoopers LLP
8 Cross Street
PWC Building
Singapore 048242
Singapore
Re: Fusion Garage PTE. Ltd., Co. Reg. No. 200801933E
Dear Sirs:
I write regarding the Matter afFUSion Garqge PTE. Ltd., Co. Reg. No. 200801933E, in which
.
you have been appointed Liquidators. Put briefly, Fusion Garage PTE Ltd. has an obligation to
retain its books, accounts, and other documents due to ongoing litigation in the United States.
This fIrm represents TechCrunch Inc. and CrunchPad, Inc., in a civil case in United States
federal court against Fusion Garage PTE Ltd. That case, Interserve, Inc. et al. v. Fusion Garage
PTE. Ltd., No. 3:09-cv-05812-RS (pSG)(N. D. Cal.), is ongoing. Fusion Garage's books,
accounts, and documents are essential for a complete resolution of the matters disputed therein.

In the January 5, 2012, Notice of Meeting to Creditors, Chandrasekar Rathakrishnan, as Director
of Fusion Garage PTE Ltd. indicates an intention to resolve "under Section 320(3) of the
Companies Act, Cap. 50 that the books, accounts, and documents ofthe Company and of the
Liquidators be disposed of one day after the dissolution of the Company." Destruction of these
materials would breach Fusion Garage's obligations under United States law. Fusion Garage has
outstanding obligations to provide documents, as well as a continuing obligation under the
Federal Rules of Civil Procedure to preserve relevant documents.

SF:326547.1

WINSTON & STRAWN LLP

January 17,2012
Page 2

Should Fusion Garage be permitted to destroy its documents, we will pursue all available
remedies against not only Fusion Garage, but also the directors, officers, and others who
authorized the destruction.
Please conflTIIl that you, as Liquidators, will not countenance the destruction of these crucial
documents. Thank you.

DSB/ge
cc:

Chandrasekar Rathakrishnan, c/o:
Evette Pennypacker, Quinn Emanuel
Thomas Watson, Quinn Emanuel

SF:326547.1

TabC

20-01-12;09:40

;PwC Singapore

;[phone]

#

11

FUSION GARAGE PTE. LTO.

(PROVISIONAL uau IDATORS APPOINTED)
Co. Reg. NO.200801933E
c/o Prloewater1louseCoopers LLP
8 Cross street #17-00
PWC BuildIng
Singapore 048424
Telephone : [phone]
Facsimile : (65) 6236 4044

Winston & Strawn LLP
101 California Street
San Francisco, Califomia 94111-5802
USA

FAX & MAIL
[fax:[phone]J

Attention: Mr David S. Bloch

19 January 2012

Our Ref: CM/BRS/CKTIPKB/LLF/KL'f/FGPL
Dear Sirs
FUSION GARAGE PTE. LTD. ("the Company")
(PROVISIONAL LIQUIDArORS APPOINTED)

We refer to your letter dated 17 January 2012.
Please note that if the resolution to destroy records is approved by the creditors at the
meeting, the books and records of the Company will be destroyed upon dissolution of the
Company after the affairs of the Company have been wound up.
Under the Singapore Companies' Act provisions, it is normal for the creditors to approve the
destruction of records immediately after the dissol ution of the Company. If no resolution is
passed by creditors, the Liquidators are required .to keep the records for 2 years after the
dissolution of the Company.
We hope the above clarifies the position. Should you have any questions, please do not
hesitate to contact either Ms Lu Let Fun at 6236 4024 or Ms Kuan Lin Tar at 6236 4235.

Yours faithfully
For and on behalf of
FUSION GARAGE PTE. LTD.
(PROVISIONAL LIQUIDATORS APPOINTED)

P K Bala
For and on behalf of
Provisional liquidators

Copy:

Mr Chandrasekar Rathakrishnan
Director of Fusion Garage Pte Ltd (Provisiona! Liquidators AppOinted)
Evette Pennypacker, Quinn Emmanuel
Thomas Watson, Quinn Emamuel

1

TabD

WINSTON & STRAWN LLP
BEIJING
CHARLOTTE

101 CALIFORNIA STREET
SAN FRANCISCO, CALIFORNIA 94111-5802

CHICAGQ
GENEVA
HONG KONG

NEWARK

[phone]
PARIS

FACSIMILE+1 [phone]

SAN FRANCISCO

www.winston.com

WASHINGTON, D,C.

LONDON
LOS ANGELES

MOSCOW
NEW YORK

SHANGHAI

January 20,2012
DAVIDS. BLOCH

Partner

VIA FEDERAL EXPRESS
Fax: [65] 6236-4044

[phone]
[e-mail]

Mr. P. K. Bala
PricewaterhouseCoopers LLP
8 Cross Street #17-00
PWC Building
Singapore 048424
Singapore

Re: Fusion Garage PTE. Ltd., Co. Reg. No. 200801933E
Dear Mr. Bala:
Thank you for your response. However, your letter clarifies only that Fusion Garage (through its
represen1ative, ChandrasekharRathnakrishnan) and its Liquidators reserve the right to destroy
important evidence regardless of Fusion Garage's obligations under United States law and the
Federal Rules of Civil Procedure.
If Fusion Garage does indeed destroy its books and records, the United States District Court for
the Northern District of California may, upon request, issue a judgment or other sanctions,
potentially including money damages and the seizure of assets, against the company and its
directors. This, in turn, could adversely affect the creditors' ability to recover from Fusion
Garagels estate.
Should you choose this course of conduct, TechCrunch and Crunchpad will pursue ail available
remedies against Fusion Garage and those who countenanced the destruction of its documents .

. loch
DSB/ls
cc:
Chandrasekar Rathakrishnan, c/o:
Evette Pennypacker, Quinn Emanuel
Thomas Watson, Quinn Emanuel

SF:3268i 1.1