Match Group, LLC v. Bumble Trading Inc.

Western District of Texas, txwd-6:2018-cv-00080

Exhibit 1 - Response

Interested in this case?

Current View

Full Text

5 Exhibit 1 5 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION MATCH GROUP, LLC § § § Plaintiff, § § v. § § BUMBLE TRADING INC., BUMBLE § HOLDING, LTD., BADOO TRADING § No. 6:18-cv-00080-ADA LIMITED, MAGIC LAB CO., WORLDWIDE VISION LIMITED, § BADOO LIMITED, BADOO § SOFTWARE LIMITED, and BADOO § JURY TRIAL DEMANDED TECHNOLOGIES LIMITED, § § Defendants. § § FILED UNDER SEAL XXXXXXXXXXXXX BUMBLE TRADING INC. and BUMBLE § HOLDING, LTD., § PUBLIC VERSION § Cross-Plaintiffs, v. § § § MATCH GROUP, LLC and § IAC/INTERACTIVECORP., § § § Cross-Defendants. § MATCH GROUP, LLC'S RESPONSE TO WORLDWIDE VISION LIMITED'S MOTION TO DISMISS 5 TABLE OF CONTENTS I. INTRODUCTION ................................................................................................................... 1 II. THE COURT CAN EXERCISE SPECIFIC JURISDICTION OVER WORLDWIDE VISION.................................................................................................................................... 1 A. Legal Background ................................................................................................................ 1 B. Worldwide Vision Has "Minimum Contacts" Related to Match's Declaratory Judgment Request. ............................................................................................................... 3 1. Worldwide Vision Has Significant Acquisition-Related Texas Contacts ........................ 3 2. These Texas Contacts Constitute the Required "Minimum Contacts" to Exercise Jurisdiction Over Match's Declaratory Judgment Request. ............................................. 6 C. Worldwide Vision Has "Minimum Contacts" Related to Match's Patent Claims Against Worldwide Vision. ............................................................................................... 10 1. Worldwide Vision Has Significant Patent-Related Contacts in Texas and Throughout the United States. ........................................................................................ 10 2. Worldwide Vision's Texas and United States Contacts Are Sufficient "Minimum Contacts" Related to Match's Patent Claims............................................... 12 D. Worldwide Vision's Affidavit Cannot Defeat Match's Allegations and Evidence of Minimum Contacts. ....................................................................................................... 14 E. It Is Not Unreasonable to Exercise Jurisdiction over Worldwide Vision. ......................... 17 III. THE COURT SHOULD NOT DECLINE SUPPLEMENTAL JURISDICTION. ............... 18 IV. THE FOURTH AMENDED COMPLAINT DID NOT VIOLATE THE SCHEDULING ORDER. ...................................................................................................... 19 V. CONCLUSION ..................................................................................................................... 19 i 5 TABLE OF AUTHORITIES Cases Absolute Software, Inc. v. World Comput. Sec. Corp. No. A-09-CA-142-LY, 2009 WL 10678335 (W.D. Tex. Dec. 2, 2009) ................................... 14 Adams v. Unione Mediterranea Di Sicurta 364 F.3d 646 (5th Cir. 2004) ....................................................................................................... 2 Agents, Inc. v. Long 143 F. Supp. 3d 775 (S.D. Ind. 2015) ....................................................................................... 16 Avocent Huntsville Corp. v. Aten Int'l Co. 552 F.3d 1324 (Fed. Cir. 2008) ................................................................................................... 7 Burger King Corp. v. Rudzewicz 471 U.S. 462 (1985) .................................................................................................... 2, 9, 11, 17 Comm'n Agents, Inc. v. Long 143 F. Supp. 3d 775 (S.D. Ind. 2015) ....................................................................................... 16 Conn Appliances, Inc. v. Williams 2019 WL 4182851 (5th Cir. Sept. 4, 2019) ................................................................................. 2 Energetiq Tech., Inc. v. ASML Netherlands B.V. 113 F. Supp. 3d 461 (D. Mass. 2015) ................................................................................. 12, 13 Fred Hutchinson Cancer Research Ctr. v. Branhaven, LLC 861 F. Supp. 2d 730 (E.D. Va. 2012) ........................................................................................ 13 Helicopteros Nacionales de Colom, S.A. v. Hall 466 U.S. 408 (1984) .................................................................................................................... 9 Inmar Rx Sols., Inc. v. Devos, Ltd. No. 18-11443, 2019 WL 4440400 (5th Cir. Sept. 16, 2019) ...................................................... 8 Northbrook Digital LLC v. Vendio Services, Inc. 2008 WL 2390740 (D. Minn. 2008) ......................................................................................... 13 Oakley, Inc. v. Jofa AB 287 F. Supp. 2d 1111 (C.D. Cal. 2003) ............................................................................... 12, 15 Prejean v. Sonatrach, Inc. 652 F.2d 1260 (5th Cir. 1981) ..................................................................................................... 8 ii 5 Sangha v. Navig8 ShipMgmt. Private, Ltd. 882 F.3d 96 (5th Cir. 2018) ......................................................................................................... 7 Revell v. Lidov 317 F.3d 467 (5th Cir. 2002) ................................................................................................. 2, 15 Sanders v. Casa View Baptist Church 898 F. Supp. 1169 (N.D. Tex. 1995) ......................................................................................... 16 Sangha v. Navig8 ShipMgmt. Private, Ltd. 882 F.3d 96 (5th Cir. 2018) ......................................................................................................... 7 Tempur-Pedic Int'l, Inc. v. Go Satellite Inc. 758 F. Supp. 2d 366 (N.D. Tex. 2010) ................................................................................ 12, 13 Torgeson v. Nordisk Aviation Prod., Inc. 997 F.2d 881 (5th Cir. 1993) ....................................................................................................... 8 Wien Air Alaska, Inc. v. Brandt 195 F.3d 208 (5th Cir. 1999) .............................................................................................. passim Xilinx, Inc. v. Papst Licensing GmbH & Co. KG 848 F.3d 1346 (Fed. Cir. 2017) ................................................................................................... 8 Zond, Inc. v. Fujitsu Semiconduct Ltd. 990 F. Supp. 2d 50 (D. Mass. 2014) ......................................................................................... 16 Rules Fed R. Civ. P 4(k)(2)....................................................................................................................... 2 Statutes 28 U.S.C. § 1367(a) ...................................................................................................................... 19 iii 5 I. INTRODUCTION The Bumble Defendants—controlled by Worldwide Vision Limited ("Worldwide Vision")—brought counterclaims against Match Group, LLC ("Match") based on torts that Match allegedly committed against Worldwide Vision in the course of Match and Worldwide Vision's negotiations. But when Match seeks to join Worldwide Vision to this suit so that the claims can be fully adjudicated, Worldwide Vision asserts that it would be unfair to do so because it has nothing to do with this case. But rather than some far flung company only tangentially related to this dispute, Worldwide Vision is right in the middle of it. Worldwide Vision, overwhelmingly owned by Founder and CEO Andrey Andreev, controls an entire group of affiliated companies associated with the infringing Bumble application. Worldwide Vision's immediate subsidiaries provide the technological work and know how in creating the infringing software code that makes up the Bumble application. Those subsidiaries, in turn, own the Bumble entity that actually uploads the Bumble application to the Google Play and Apple App Stores for distribution in the United States. And Worldwide Vision was the counterparty in the negotiations that give rise to Bumble's counterclaims. The Court should deny Worldwide Vision's motion because Match has more than satisfied its burden to make a prima facie case of personal jurisdiction, and Worldwide Vision cannot prove that the Court's exercise of jurisdiction will offend traditional notions of fair play and substantial justice. II. THE COURT CAN EXERCISE SPECIFIC JURISDICTION OVER WORLDWIDE VISION. A. Legal Background In Texas, a federal court may exercise personal jurisdiction where (1) a nonresident defendant purposefully avails himself of the benefits and protections of Texas and (2) where 1 5 exercising jurisdiction does not offend "notions of fair play and substantial justice." See, e.g., Conn Appliances, Inc. v. Williams, 2019 WL 4182851, at *1 (5th Cir. Sept. 4, 2019). To satisfy the purposeful availment requirement, the burden is on the plaintiff to show prima facie case that the nonresident defendant has "minimum contacts" with the forum. Id. There are two types of minimum contacts: general and specific. Specific jurisdiction is the only category of jurisdiction at issue here. A court can exercise specific jurisdiction where a defendants' contacts with the forum arise from or relate to the plaintiff's claim. Id. at *2. Minimum contacts do not require a nonresident's actual physical presence in the state if the act giving rise to the claim is purposefully directed at the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985). "So long as it creates a 'substantial connection' with the forum, even a single act can support jurisdiction." Id. Because Worldwide Vision has not identified another United States forum in which it is amenable to jurisdiction, the relevant "forum" for Match's federal patent claims is the United States generally rather than Texas alone. See Fed R. Civ. P 4(k)(2); Adams v. Unione Mediterranea Di Sicurta, 364 F.3d 646, 650-51 (5th Cir. 2004). In evaluating whether a nonresident defendant has minimum contacts, a plaintiff need only make a prima facie case that jurisdiction exists. Revell v. Lidov, 317 F.3d 467, 470 (5th Cir. 2002). In discharging this burden, the Court is required to accept the allegations in plaintiff's complaint, if uncontroverted, as true. Id. In addition to the plaintiff's pleadings, the Court may consider evidence from both the plaintiff and a nonresident defendant. However, the court must "accept the plaintiff's uncontroverted allegations, and resolve in [its] favor all conflicts between the facts contained in the parties' affidavits and other documentation." Id. (citations and quotations omitted). 2 5 Where a plaintiff has made a prima facie case of minimum contacts, the burden shifts to the nonresident defendant to show that exercise of jurisdiction is unfair. Discharging this burden upon a finding of minimum contacts is "rare," and requires the nonresident defendant to present a "compelling case." Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 215 (5th Cir. 1999). B. Worldwide Vision Has "Minimum Contacts" Related to Match's Declaratory Judgment Request. The first category of claim Match raised against Worldwide Vision relates to its role in the acquisition talks underpinning the Bumble Defendants' allegations that Match misrepresented its interest in acquiring a group of Bumble-affiliated companies. Match seeks a declaration that it is not liable to Worldwide Vision for its conduct during these acquisition talks. 1. Worldwide Vision Has Significant Acquisition-Related Texas Contacts Match's request arises from significant forum-related contacts. Worldwide Vision engaged in a significant year-long discussion with representatives of a Texas company in connection with a potential acquisition of members of the Worldwide Vision group. And as the Bumble Defendants made abundantly clear in prior briefing, these discussions all involved Match Group, Inc., a Texas company, seeking to acquire a group of companies including some headquartered in Austin. See, e.g., Dkt. 85 (Bumble's argument: "[T]he alleged fraudulent scheme is centered around the business relationship and sham negotiations between two Texas entities, giving rise to personal jurisdiction over IAC in Texas."). This included dozens of e- mails and phone calls between Worldwide Vision and Match Group, Inc. ("MGI"). E.g., Dkt. 100 ¶¶ 289-300. These discussions also included a trip in which Worldwide Vision traveled to Texas to meet with Gary Swidler and Mandy Ginsberg, MGI's CEO. Dkt. 100 ¶ 17; Ex. A; Dkt. 100 ¶ 17. It further included Worldwide Vision reaching out to Match-affiliated persons in 3 5 January 2018 to re-engage in negotiations, which continued through the spring and summer of 2018. Dkt. 100 ¶¶ 294, 299. To the extent Worldwide Vision contends otherwise, there is more than the required prima facie evidence to support attributing these contacts to Worldwide Vision. Worldwide Vision is a Bermuda company that owns at least Badoo Trading Limited, Badoo Limited, Badoo Software Limited, and Badoo Technologies Limited. Dkt. 100 ¶¶ 6-9. Worldwide Vision's wholly owned subsidiary, Badoo Trading Limited, owns almost 80% of Bumble Holding Ltd., which in turn owns 100% of Bumble Trading Inc. Exs. C-D. MGI's acquisition-related discussions occurred between two Worldwide Vision agents, Andrey Andreev and Idan Wallichman. Andrey Andreev, also a director of Bumble Holding Ltd., controls Worldwide Vision. Dkt. 100 ¶¶ 6-9; Ex. E. U.K. corporate records indicate that Mr. Andreev controls, directly or indirectly, at least 75% of Worldwide Vision. Ex. E. Indeed, in an interview with the Wall Street Journal, Mr. Andreev conflated Worldwide Vision with himself,describing partnering with Worldwide Vision as "partner[ing] with me." Ex. F. The article also indicates that "Magic Lab" is simply a d/b/a moniker for Worldwide Vision. Id. ("Andrey Andreev. . . said he is renaming the London-based holding company that oversees [Bumble] and three other similar properties as Magic Lab. . . . Before the rebranding, the holding company was called Worldwide Vision Ltd." (emphasis added)). Idan Wallichman, the Chief Financial Officer of "Badoo" and a director of Bumble Holding Ltd, Badoo Trading Limited, Badoo Limited, and likely other Defendants, is also the "CFO and Director" of Worldwide Vision. Dkt. 100 ¶ 17; Dkt. 78-5 at 13. He further holds himself out as CFO of "Magic Lab," the re-named Worldwide Vision. Ex. G. Mr. Wallichman 4 5 was designated as the Dkt. 78-5 at 7, 13. As the Mr. Wallichman was responsible for fielding Id. at 7. So, Mr. Wallichman was the Match Group, Inc. was to deal with in connection with the potential acquisition that Bumble Holding and Bumble Trading are suing Match over. When initially proposing this agreement, Mr. Wallichman describe it is " ." Ex. H. Each of the contacts between MGI and Mr. Wallichman and Mr. Andreev related to the acquisition discussions are properly attributable to Worldwide Vision. Worldwide Vision's forum-related contacts also arise from its control of its subsidiaries, including the Texas-headquartered Bumble Defendants. Because of the overlap in directors and officers, Worldwide Vision can and does exercise control of its subsidiaries, including Bumble. Dkt. 100 ¶¶ 80, 286. In fact, Andrey frequently refers to all of these companies as his own. The Magic Lab website, for example, describes Magic Lab—aka Worldwide Vision—as both owning and operating its brands, including the Bumble application. Ex. I. This admitted control is not merely advertising. Although Bumble has produced only a single document in response to Match's RFPs, Match's own internal evidence reveals the extent to which Worldwide Vision controls its subsidiaries. For example, MGI's CFO, Gary Swidler, initially indicated to Mr. Andreev MGI's interest in purchasing Bumble alone without its affiliated companies Badoo. Ex. J. Mr. Andreev's own. Id. And Mr. Swidler indicated MGI would be interested in purchasing Bumble 5 5 alone for that stated price. Rather than entertain this offer, as he would have were he acting only on behalf of Bumble, Mr. Andreev—acting instead on behalf of Worldwide Vision. Id. Further, although Worldwide Vision allegedly consulted with Bumble's CEO, Ms. Wolfe Herd, beforehand, Worldwide Vision also refused to allow her to meet with Mandy Ginsberg, MGI's CEO, one-on- one during Mr. Swidler and Ms. Ginsberg's acquisition-related trip to Austin. Ex. K. In other words, Worldwide Vision controls who Bumble personnel (even the CEO) meet with and when. Worldwide Vision's control also extends to the present litigation. Dkt. 100 ¶ 286. Mariko O'Shea is another agent of Worldwide Vision; she is "Head of Legal" for the company. Ex. L. Even when Bumble Trading was the only defendant, settlement discussions were held with her (i.e., Worldwide Vision). Dkt. 113-1 ¶ 6. Ms. O'Shea has communicated with Jared Sine, Match's General Counsel, about the litigation numerous times. Ex. M. She has also continued to be an active participant, reaching out to Mr. Sine as recently as May and July 2019, before Match added Worldwide Vision as a Defendant. Ex. M. In fact, despite her position with Worldwide Vision and not any Bumble entity, Ms. O'Shea has been the only in-house attorney involved in any discussions with Match. In light of this evidence and these allegations, the Bumble Defendants' actions in this litigation are properly attributable to Worldwide Vision. Stated differently, Worldwide Vision elected to bring the Bumble's Defendants' acquisition- related counterclaims in this Texas federal court. 2. These Texas Contacts Constitute the Required "Minimum Contacts" to Exercise Jurisdiction Over Match's Declaratory Judgment Request. These pervasive Texas contacts are more than sufficient to show a prima facie case of minimum contacts related to Match's declaratory judgment request. For specific jurisdiction, the 6 5 contacts must "arise out of" or "relate to" the injury alleged in the claim against the nonresident defendant. Sangha v. Navig8 ShipMgmt. Private, Ltd., 882 F.3d 96, 101 (5th Cir. 2018). Here, the Match's declaratory judgment request clearly arises out of Worldwide Vision's contacts with Texas. In a declaratory judgment action, the alleged injury is typically the uncertainty created by the declaratory judgment defendant's refusal to resolve a claim for which it has threatened suit but declined to file. See, e.g., Avocent Huntsville Corp. v. Aten Int'l Co., 552 F.3d 1324, 1333 (Fed. Cir. 2008). Where, for example, a DJ plaintiff receives an enforcement letter in a forum from the DJ defendant, the DJ defendant has sufficient "minimum contacts" with the forum in an action arising out of that enforcement letter (although, for policy reasons, the letter alone may not comport with principles of fairness). Id. Here, based on Worldwide Vision's control of the litigation, Worldwide Vision reached out to Texas to file a lawsuit in Texas state court on behalf of Bumble and has made the decision for Bumble to assert Bumble's current counterclaims (that, in fact, appropriately belong to Worldwide Vision). Worldwide Vision also decided that it would not agree to be bound by any adverse judgment against Bumble on the claims it brought, thus reaching out to Texas to cloud Match's reputation while still maintaining the right to attempt to file a similar claim against Match in the future and impose future liability on Match. Match's injury—the uncertainty created by Worldwide Vision's refusal to be bound by an adverse judgment against Bumble, Dkt. 100 ¶¶ 17, 288—directly arises out of these contacts. Specific jurisdiction also exists even discounting evidence of Worldwide Vision's litigation control. Although the injury may "arise" from litigation conduct and strategy, it otherwise "relates" to the merits of the Bumble Defendants' underlying claim, to which Match's declaratory judgment request is directed. In the Fifth Circuit, a contact is jurisdictionally relevant 7 5 when it is a "but for" reason for the alleged injury. For example, a forum contact based on a contract that caused two entities to be within "striking distance" of the tort claim ultimately sued upon is a jurisdictionally relevant "but for" contact. Prejean v. Sonatrach, Inc., 652 F.2d 1260, 1270 n.21 (5th Cir. 1981). But see Inmar Rx Sols., Inc. v. Devos, Ltd., No. 18-11443, 2019 WL 4440400, at *3 (5th Cir. Sept. 16, 2019) (noting that "but for" test has not been "formally" adopted). Here, the pervasive Texas contacts between Worldwide Vision and Texas-based MGI all at least "relate to" Match's declaratory judgment request because Match seeks a declaratory judgment of non-liability arising from those acquisition discussions that Bumble concedes were Texas-centric. Dkt. 85 (Bumble: "Texas is the 'focal point' of the [allegedly fraudulent acquisition] scheme in every meaningful sense."). This includes Worldwide Vision's physical presence in Texas both in connection with Mr. Wallichman's trip as well as its role in controlling the Austin-based Bumble itself. Xilinx, Inc. v. Papst Licensing GmbH & Co. KG, 848 F.3d 1346, 1354 (Fed. Cir. 2017) ("[I]n-person visits to the forum are significant contacts in the declaratory judgment context"). Given these pervasive contacts, it is simply not debatable that Worldwide Vision could have "reasonably anticipat[ed] being hailed into court" in Texas. See, e.g., Torgeson v. Nordisk Aviation Prod., Inc., 997 F.2d 881 (5th Cir. 1993). Notwithstanding these contacts, Worldwide Vision contests specific jurisdiction for Match's declaratory judgment on three grounds. None of these negate specific jurisdiction as to this claim. First, Worldwide Vision's argument that Match has not alleged an "injury" arising out of Worldwide Vision's contacts with Texas is incorrect. Match alleged an injury arising out of the uncertainty created by Worldwide Vision's refusal to be bound by an adverse judgment against 8 5 Bumble, an injury that causes both reputational harm as well as the potential for additional litigation costs. Dkt. 100 ¶¶ 17, 288.1 Second, Worldwide Vision argues that Match does not allege anything but Match- initiated contacts with the forum. This argument ignores, however, that (1) Worldwide Vision made the decision to sue in Bumble's name in this Texas-based action; (2) Worldwide Vision arranged a meeting in which it traveled to Austin, Texas in connection with acquisition discussions; (3) Worldwide Vision reached out to Texas to re-engage with Match Group, Inc. on January 2018; and (4) Worldwide Vision engaged in a year-long discussion about the Texas- based acquisition. Thus Worldwide Vision purposefully directed these contacts toward a Texas entity, giving rise to specific jurisdiction.2 Worldwide Vision finally contends that the NDA it entered into with MGI highlights that it did not purposefully avail itself of Texas law. Yet the plaintiff, Match Group, LLC, is not a party to that agreement, nor is Match Group, LLC suing on that agreement. Even if Match Group, LLC were party to that agreement, it is Worldwide Vision that elected to have the claims based on it and MGI's negotiations brought in this forum. In short, while choice-of-law 1 This is also not asking that Worldwide Vision "should be bound by" a judgment against Bumble, as Worldwide Vision contends. Dkt. 116. Rather, regardless of any judgment against Bumble, Match asks the Court to declare that Match did not act unlawfully as to Worldwide Vision in connection with Worldwide Vision and Match Group, Inc.'s acquisition discussions. 2 Worldwide Vision cites to Helicopteros Nacionales de Colom, S.A. v. Hall, 466 U.S. 408 (1984) to imply that Mr. Wallichman's trip to Texas is insufficient to create jurisdiction. Helicopteros is distinguishable on two grounds: One, the case is about general jurisdiction. It is well-settled that a single forum contact can give rise to specific jurisdiction. Burger King, 471 U.S. 462 at 476. And two, Worldwide Vision's forum contacts involve far more than just Mr. Wallichman's trip to Texas in connection with acquisition discussions. 9 5 agreements might be relevant for claims arising out of the contract containing them, the NDA's choice-of-law and forum provision are of minimal relevance here.3 Match's declaratory judgment requests arises or relates to Worldwide Vision's purposeful minimum contacts with Texas. C. Worldwide Vision Has "Minimum Contacts" Related to Match's Patent Claims Against Worldwide Vision. Match's other category of claim against Worldwide Vision relates to Worldwide Vision's inducement of Bumble's infringement and the infringement by Bumble's users. Minimum contacts exist as to these claims as well. 1. Worldwide Vision Has Significant Patent-Related Contacts in Texas and Throughout the United States. Worldwide Vision encourages Bumble's infringement and encourages users to infringe by use of the Bumble application. Again, Worldwide Vision owns all of Badoo Trading Ltd., which owns the vast majority of Bumble Holding and, in turn, Bumble Trading Inc. As discussed above, Worldwide Vision can exert significant influence over its subsidiary groups and has done so. Meanwhile, publicly available information indicates that "Bumble" has no engineers and does no technical work beyond the distribution of the software of the app itself. Ex. N. Worldwide Vision publicly states that Andreev himself developed Bumble at "his" Worldwide Visions headquarters. Ex. O. Indeed, counsel for Defendants has informed Match that Bumble does not even "possess" 3 Match Group, LLC previously advocated for enforcement of the forum selection clause based on Bumble's initial characterizations of its Texas law claims. Specifically, certain of Bumble's initial claims were based on alleged misuse of information exchanged between MGI and Worldwide Vision, and Bumble initially raised claims based on this information. Because Bumble sought benefits based on the NDA agreement, it was estopped from denying the forum selection clause. Bumble is no longer pursuing those confidential information-based claims, and Match Group, LLC is seeking no benefits of the NDA in its declaratory judgment request here. The choice-of-law and forum selection clause do not apply. 10 5 most of the code of the Bumble application. Dkt. 113-1 ¶ 3. As the ultimate parent company, Worldwide Vision ensures that this anomalous technical structure among its byzantine group of companies operates smoothly. Dkt. 100 at ¶¶ 80-82. Bumble Trading Inc. is located in Austin, Texas and Bumble holds itself out as headquartered in Austin, Texas. Dkt. 100 at ¶ 2. As a controlling parent, it was Worldwide Vision's choice to place Bumble there and did so with the intent that it be the "source" of Worldwide Vision's infringing Bumble application. Worldwide Vision directly benefits from Bumble's success, including success in Bumble's "home" state of Texas, by virtue of increased equity holdings. Worldwide Vision also actively promotes the Bumble application on its magiclab.co website and encourages users to download the Bumble app on that website. Ex. O. Again, Magic Lab is Worldwide Vision. Magic Lab expressly advertises Bumble, compiling a lengthy narrative concerning the role of Andrey Andreev and Magic Lab in founding the infringing Bumble application. Id. Magic Lab/Worldwide Vision expressly advertises that the application it "owns and operates" is headquartered in Austin, Texas. Ex. I. It also actively provides links from which user can download the accused products. Ex. O. Worldwide Vision had notice of the patents-in- suit both from this lawsuit and from its JP Morgan representative. Id. ¶ 129. Nevertheless, Worldwide Vision promotes this known-infringing application knowing "Bumble" is headquartered in Austin, has a major presence in Texas, and seeks to promote Bumble downloads in Texas and the United States. In fact, two of Magic Lab/Worldwide Vision's four brands are headquartered in Texas. Ex. O-P. Further, Mr. Wallichman, Mr. Andreev, and Ms. O'Shea all do work on behalf of the Bumble application. Mr. Andreev speaks with Whitney Wolfe—Bumble's CEO and unaffiliated 11 5 with Badoo—two to five times a day. Ex. Q. These discussions must involve Bumble and at least some of them are properly attributable to Worldwide Vision. Mr. Andreev has also repeatedly traveled to Texas in connection with business trips related to Bumble and the Bumble app. Exs. R (showing "Austin, Texas" location), S (showing "Texas" location), and T (showing "Tyler, Texas" location). Mr. Wallichman also holds himself out as Bumble's CFO, and, as discussed, Ms. O'Shea provides legal advice and makes legal decisions related to the Bumble application. Ex. U. These Worldwide Vision officers have the ability to require Bumble to modify its application. Yet even after this lawsuit was filed, these Worldwide Vision officers have instead advised Bumble to maintain it infringing design. 2. Worldwide Vision's Texas and United States Contacts Are Sufficient "Minimum Contacts" Related to Match's Patent Claims. The above contacts constitute more than a prima facie case that Match's inducement allegations arise out of or relate to Worldwide Vision's Texas and United States contacts. This is so for at least three reasons. First, Match has offered at least prima facie evidence that Worldwide Vision actively encourages the distribution of the Bumble application in the United States. For indirect infringement claims, the locations of both the encouragement and the ultimate infringing activity are relevant jurisdiction contacts. See Energetiq Tech., Inc. v. ASML Netherlands B.V., 113 F. Supp. 3d 461, 467 (D. Mass. 2015). Given Worldwide Vision's encouragement, every download and use of the Bumble application in the United States is a jurisdictionally significant contact out of which Match's claim arises. See, e.g., Oakley, Inc. v. Jofa AB, 287 F. Supp. 2d 1111, 1116– 17 (C.D. Cal. 2003) (finding sufficient contacts with forum where evidence indicated that alleged holding company served either "directly or indirectly" to send infringing product into stream of commerce knowing it would be sold in California); Cf. Tempur-Pedic Int'l, Inc. v. Go Satellite 12 5 Inc., 758 F. Supp. 2d 366, 376 (N.D. Tex. 2010) (finding specific jurisdiction where nonresident defendant indicated that it was "open for business" in all 50 states). This is particularly true where Worldwide Vision's "magiclab.co" website can be accessed from the United States provides a direct link to the infringing software. Northbrook Digital LLC v. Vendio Services, Inc., 2008 WL 2390740, *7–*9 (D. Minn. 2008) (finding specific jurisdiction where website provided access to accused infringing software). Second, specific jurisdiction exists based on Worldwide Vision's corporate relationship with its subsidiaries. Even where an alleged "holding company" is not necessarily an "alter ego" of infringing subsidiaries, the "holding company" can be subject to specific jurisdiction in a number of contexts. For example, where a party or entity is the "mastermind" behind an infringing product, including having a role in setting up the companies that ultimate distribute the infringing product and approve of the continued sales of infringing products, specific jurisdiction will exist. See Fred Hutchinson Cancer Research Ctr. v. Branhaven, LLC, 861 F. Supp. 2d 730, 732-33 (E.D. Va. 2012). As discussed, Worldwide Vision has admitted to similar "mastermind" status behind Bumble. Similarly, where a parent company collaborates with a subsidiary distributing infringing products in the district, including by providing valuable "know how" related to the infringement, jurisdiction will exist over the parent company. Energetiq Tech., Inc., 113 F. Supp. at 467-68 (holding such circumstances "relate to" allegation of patent infringement). Similar evidence is in the record in this case as Mr. Andreev provided his "know how" from his years of experience as a founder of Badoo, another application in the Worldwide Vision Group. Finally, as with the declaratory judgment requests, Worldwide Vision's action in this litigation also supports jurisdiction. Match's complaint alleges the continuous tort of induced 13 5 patent infringement. Beyond the actual sale of the infringing application, Worldwide Vision's contacts include its decisions, after Match's original March 2018 complaint, not to require Bumble to redesign the infringing application or cease its distribution. Absolute Software, Inc. v. World Comput. Sec. Corp., No. A-09-CA-142-LY, 2009 WL 10678335, at *5 (W.D. Tex. Dec. 2, 2009) (noting that even post-suit contacts with forum are relevant to jurisdiction). In all of these circumstances described, such contacts are not attributing a subsidiary's actions to a corporate parent. Instead, these are actions of the corporate parent itself. D. Worldwide Vision's Affidavit Cannot Defeat Match's Allegations and Evidence of Minimum Contacts. In light of this significant evidence establishing Worldwide Vision's purposeful availment to Texas, the company seeks to avoid jurisdiction by offering the affidavit of Kevin Insley. Mr. Insley avers—to "the best of [his] knowledge, information, and belief"—that, among other things, "Worldwide Vision was not involved in the design or development of the Bumble app," that "Worldwide Vision provides no assistance or support for the Bumble app," and that Worldwide Vision does not "directly own or control any servers that host the Bumble app," "directly operate or manage distribution of the Bumble app," or "directly receive any revenue from Bumble in-app purchases." Dkt. 116-1 (emphasis added). Mr. Insley provides no details concerning how he acquired this knowledge and information. As an initial matter, Worldwide Vision's arguments based on the extrinsic evidence of its director contradicts its own lawyer's arguments addressing whether specific jurisdiction existed as to IAC. There, Worldwide Vision's outside counsel contended that the Court was required to look only to the pleadings and ignore any extrinsic evidence. See, e.g., 6/7/2019 Hr. Tr. 86:15- 24. The Court ultimately accepted the argument and declined to consider any extrinsic evidence 14 5 offered. Dkt. 98 at 9, 11. Nevertheless, Worldwide Vision offers extrinsic evidence here to contradict Match's pleadings. In any event, although the Court legally may consider Mr. Insley's affidavit, the affidavit is largely beside the point. In evaluating personal jurisdiction without an evidentiary hearing, the Court must credit all of Match's uncontroverted pleadings allegations and resolve any evidentiary conflicts in Match's favor. Revell, 317 F.3d at 470. Here, Mr. Insley does not dispute that Mr. Andreev controls Worldwide Vision and Mr. Andreev—through Worldwide Vision—controls this litigation on behalf of Bumble. Dkt. 100 ¶ 100. Nor does he dispute that Worldwide Vision encourages Bumble to sell the Bumble app in the United States and Texas. Id. ¶ 124. He also does not dispute that Worldwide Vision reached out to Texas to re-engage in acquisition-related talks in January 2018. Id. ¶ 294. And even the topics he does discuss in his affidavit, like Worldwide Vision's role in development of the Bumble app, are contradicted by Worldwide Vision's own website. Ex. O ("Andrey immediately loved and supported the idea, and together they went to work on getting their new product up and running back in London at Andrey's Magic Lab [i.e., Worldwide Vision] HQ."). Mr. Insley's affidavit also appears to depend on two false premises: As to the patent claims, Worldwide Vision appears to believe that that it can be liable for inducement only if it "directly" controls servers, manages distribution, or receives revenue. But active encouragement in hopes of the indirect benefits Worldwide Vision receives from infringing sales in the forum gives rise to inducement liability and constitutes purposeful availment. Oakley, Inc. 287 F. Supp. 2d at 1116–17 (reasoning that indirect benefits from infringement are relevant to specific jurisdiction). Further, given Andrey Andreev's role with Worldwide Vision and role with the infringing Bumble application, a mere statement that 15 5 "Worldwide Vision" does not engage in particular behavior cannot somehow negate Match's prima facie evidence and Worldwide Vision's own statements concerning the integral role it plays with Bumble. As to the declaratory judgment request, Worldwide Vision appears to believe that only forum contacts expressly authorized by a Board of Directors are jurisdictionally significant. But it is irrelevant whether the board of directors authorized Mr. Wallichman's trip to Texas. Worldwide Vision expressly designated Mr. Wallichman acquisition talks between it and Match Group, Inc. Dkt. 78-5 at 7, 13. Mr. Wallichman was an agent with actual authority on the acquisition talks, actual authority he exercised by traveling to Texas. Were that not enough, Mr. Wallichman indisputably had apparent authority to travel to Texas. Sanders v. Casa View Baptist Church, 898 F. Supp. 1169, 1178 (N.D. Tex. 1995) (noting that agent acting with apparent authority binds principal), aff'd, 134 F.3d 331 (5th Cir. 1998); Comm'n Agents, Inc. v. Long, 143 F. Supp. 3d 775, 794 (S.D. Ind. 2015) (exercising jurisdiction over contacts of an agent with apparent authority). Mr. Wallichman's trip to Texas, and repeated e-mail and telephone communications, were on behalf of Worldwide Vision for jurisdiction purposes. Mr. Insley's declaration cannot negate or undermine that fact. Finally, even if Mr. Insley's affidavit did dispute any relevant portion of Match's pleading, Match has presented far more than a prima facie case that Worldwide Vision purposefully availed itself to Texas in connection with these claims. This is particularly true where "determining the exact operations of the [Worldwide Vision] corporate group. . . requires corporate structure information that is not readily available to the public. It would seem illogical to allow [Worldwide Vision] to escape liability because of its ability to keep its corporate 16 5 structure confidential." Zond, Inc. v. Fujitsu Semiconduct Ltd., 990 F. Supp. 2d 50, 53 (D. Mass. 2014). E. It Is Not Unreasonable to Exercise Jurisdiction over Worldwide Vision. Match has made a prima facie case that minimum contacts exist, and assertion of jurisdiction would not be "unfair." Here Worldwide Vision's burden is high; the Fifth Circuit requires a "compelling case" to be made against jurisdiction and has described this situation as "rare." Wien Air Alaska, Inc., 195 F.3d at 215. Attempting to make this compelling case, Worldwide Vision cites to Mr. Insley's affidavit stating that "it would be extremely burdensome for Worldwide Vision to defend this action in Texas" because "all of Worldwide Vision's potential witnesses are located outside of the United States" and "none of Worldwide Vision's files and records are located in Texas." Dkt. 116-1 ¶ 22. That is the extent of Worldwide Vision's attempt to bring this case into the "rare" situation in which a "compelling case" against jurisdiction is made—despite the fact that it is an active collaborator with its Austin-based subsidiary. Unsurprisingly, Worldwide Vision cites to no case dismissing a nonresident defendant based solely on the fact that its witnesses and evidence were remote. This is for an obvious reason: if this were sufficient to defeat jurisdiction, there would never be jurisdiction against a foreign defendant. Worldwide Vision correctly identifies the relevant factors for the Court's consideration. But it falls far short of making a compelling case that jurisdiction would be unreasonable. First, Mr. Insley avers that it would be "extremely burdensome for Worldwide Vision" to defend this action because its witnesses are not located in the United States and its files and records are not located in Texas. Yet its relevant witnesses, like Mr. Wallichman and Mr. Andreev, are not located in Bermuda; they live and work in London, while communicating with and traveling to Austin-based Bumble on a regular basis. See supra Sections II.B, II.C. In such 17 5 circumstances, Worldwide Vision cannot show an extreme burden. Burger King, 471 U.S. at 474 (concluding that modern transportation and communications have "made it much less burdensome for a party sued to defend himself in a State where engages in economic activity"). Second, Texas does have interests in adjudicating this dispute both because it involves a forum resident, and it has an interest in strong intellectual property rights, including imposing liability against those who encourage infringement to occur in the forum. Third, Match Group, LLC has an interest in adjudicating its rights in the forum both because it is a forum resident and also because its claims against Worldwide Vision related so significantly to claims already before the Court. Match Group, LLC could not obtain recovery for its inducement claims against Worldwide Vision in any foreign court and it makes little sense to litigate its declaratory judgment request in a different forum than Bumble's related affirmative acquisition-related claim. Worldwide Vision has not made the required a compelling case against the fairness of exercising jurisdiction in these circumstances III. THE COURT SHOULD NOT DECLINE SUPPLEMENTAL JURISDICTION. Worldwide Vision also requests that the Court decline supplemental jurisdiction under ¶ 1367(c) over Match's declaratory judgment claim. Worldwide Vision acknowledges that the Court has already ruled that it has the power to rule on Match's DJ request but merely requests that the Court, in its discretion, decline to allow the claim to proceed. There is no basis to do so. For one, Worldwide Vision's argument is premised entirely on the notion that the Court will dismiss Match's patent allegations against Worldwide Vision. As discussed, Match has made a prima facie case against Worldwide Vision as to Match's inducement claims against it. In any event, even if the patent claims were dismissed, it would make little sense to dismiss Match's declaratory judgment request against Worldwide Vision related to acquisition 18 5 discussions between Match Group, Inc. and Worldwide Vision. The relevant evidence overlaps 100% with claims already pending before the Court. Further, even absent the patent claims as to Worldwide Vision, the controversy "giving rise to" the Court's subject matter jurisdiction are Match's patent claims generally, not necessarily only those against Worldwide Vision. The patent claims, generally, are not subject to dismissal here. Meanwhile, "claims that involve the joinder or intervention of additional parties" fall under supplemental jurisdiction so long as those claims "arise out of the same case and controversy" as the main action. 28 U.S.C. § 1367(a). Thus, if Bumble's Texas law counterclaims and Match's allegations of patent infringement share a common nucleus of operative facts, as the Court has ruled, Match's declaratory judgment does as well. See Dkt. 85 at 4-5 (Bumble: "[B]ecause the scheme to defraud Bumble culminated in the present lawsuit, [the parties' claims] share a common nucleus of operative facts."). And given the overlap between the claims already pending and Match's request as to Worldwide Vision, judicial efficiency dictates that those be heard in the same forum. Dkt. 85 (Bumble: "[E]fficiency is served by a single, consolidated litigation before this Court."). The Court can and should maintain jurisdiction over those theories regardless of its decision on personal jurisdiction as to Match's patent allegations against Worldwide Vision. IV. THE FOURTH AMENDED COMPLAINT DID NOT VIOLATE THE SCHEDULING ORDER. The Court has already ruled that Match's Fourth Amended Complaint was filed properly and Match therefore does not address the argument. V. CONCLUSION For the reasons stated above, the Court should deny Worldwide Vision's Motion to Dismiss. 19 5 DATED: September 26, 2019 Respectfully submitted, CALDWELL CASSADY & CURRY By: /s/ Bradley W. Caldwell Bradley W. Caldwell Texas State Bar No. 24040630 Email: bcaldwell@caldwellcc.com John F. Summers Texas State Bar No. 24079417 Email: jsummers@caldwellcc.com Warren J. McCarty, III Texas State Bar No. 24107857 Email: wmccarty@caldwellcc.com CALDWELL CASSADY CURRY P.C. 2101 Cedar Springs Road, Suite 1000 Dallas, Texas 75201 Telephone: (214) 888-4848 Facsimile: (214) 888-4849 John P. Palmer State Bar. 15430600 Email: palmer@namanhowell.com Naman, Howell, Smith & Lee, PLLC 400 Austin Avenue, 8th Floor P.O. Box 1470 Waco, TX 76701 Telephone: (254) 755-4100 Facsimile: (254) 754-6331 ATTORNEYS FOR PLAINTIFF MATCH GROUP, LLC CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was served upon counsel of record via electronic mail on September 26, 2019. Bradley W. Caldwell Bradley W. Caldwell 20