Match Group, LLC v. Bumble Trading Inc.

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

Exhibit U

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Exhibit U From: Caplan, Matt To: John Summers; Brad Caldwell; jpalmer@namanhowell.com Cc: Drayton, Joe; Deron Dacus Subject: RE: Match/ Bumble Litigation Date: Monday, February 25, 2019 6:41:42 PM Hi John, In order to meet the Court's 5 pm Central Time deadline tomorrow, it would be great to get clarity on your counteroffer tonight as we would need sign off on any deal from client reps in London; meaning that we'd essentially need to reach an agreement by tomorrow morning. Thanks, Matt Matt Caplan Cooley LLP 101 California Street • 5th Floor San Francisco, CA 94111-5800 Direct: +1 415 693 2164 • Fax: +1 415 693 2222 • Cell: +1 310 528 1361 Bio: www.cooley.com/mcaplan • Practice: www.cooley.com/litigation From: Caplan, Matt <mcaplan@cooley.com> Sent: Monday, February 25, 2019 12:37 PM To: John Summers <jsummers@caldwellcc.com>; Brad Caldwell <bcaldwell@caldwellcc.com>; jpalmer@namanhowell.com Cc: Drayton, Joe <jdrayton@cooley.com>; Deron Dacus <ddacus@dacusfirm.com> Subject: RE: Match/ Bumble Litigation John, We have authority with respect to (4), and our entire offer remains on the table. Putting aside the '341 patent issue, which we would still like to explore, does this accurately reflect your current offer: · Bumble dismisses its claims in the 350 action with prejudice, except that the claims included in the proposed pleading filed as docket 59-1 can be asserted as counterclaims in the 080 action; · Bumble Holding, Ltd. would be added as a defendant in the 080 action; and · Match dismisses it's counterclaims asserted in the 350 without prejudice, and would stipulate that Bumble's dismissal divests the Court of jurisdiction over the counterclaims and that it does not intend to re-raise the counterclaims to the extent they are related to the claims Bumble dismissed with prejudice. Please let us know, so we can discuss with our client, and please let us know what your position on the '341 patent is. On our end, Bumble currently intends to pursue its counterclaims related to the '341 patent unless your dismissal is with prejudice. Happy to jump on the phone if that would be easier to hash out the current status of the offers. Thank you, Matt Matt Caplan Cooley LLP 101 California Street • 5th Floor San Francisco, CA 94111-5800 Direct: +1 415 693 2164 • Fax: +1 415 693 2222 • Cell: +1 310 528 1361 Bio: www.cooley.com/mcaplan • Practice: www.cooley.com/litigation From: John Summers <jsummers@caldwellcc.com> Sent: Monday, February 25, 2019 8:34 AM To: Caplan, Matt <mcaplan@cooley.com>; Brad Caldwell <bcaldwell@caldwellcc.com>; jpalmer@namanhowell.com Cc: Drayton, Joe <jdrayton@cooley.com>; Deron Dacus <ddacus@dacusfirm.com> Subject: RE: Match/ Bumble Litigation Hi Matt, Thank you for the update on point (4) of your original e-mail. But I want to make sure we're on the same page about something. My original e-mail mentioned that we think it's easier to address the deal you offered to the Court rather than the one you've proposed in your February 21 e-mail. I was outlining the impact of that deal (i.e., the one you proposed to the Court), so that we were on the same page as to that impact. I take it from your response that we are. I don't want to get hung up on this "with prejudice" language too much because we don't intend to re-raise these counterclaims to the extent they are linked to the Bumble's "with prejudice" dismissal. (And we would be willing to enter a stipulation to that effect.) But we have a few reasons that I don't think we can agree to a straight "with prejudice" dismissal for those counterclaims. For one, counterclaim 10 is based on an affirmative defense that may be implicated in circumstances other than the original claims in the 18-cv-350 case. We wouldn't want any dismissal to preclude any rights we have to raise the forum selection clause where warranted. Second, there's a dispute between the parties as to the scope of counterclaims 7 and 9 and whether it reaches potential theories beyond the 18-cv-80 lawsuit-related tort claims—including potentially Bumble's new tortious interference claim—so it would be anomalous to say that this declaratory judgment action is dismissed "with prejudice," particularly with that outstanding dispute and Bumble's intent to raise that new brand of the tortious interference claim. More fundamentally, the basis for dismissal of all these issues related to Match's counterclaims is not on the merits, so it doesn't make sense to us to use the "with prejudice" language for those. We understand that Bumble doesn't want us to re-raise these declaratory judgment counterclaims. To address that, our proposal contemplates that Match expressly agrees that Bumble's with prejudice dismissal deprived the Court of jurisdiction over the claims or something along those lines. In that way, there's still no circumstance by which we could use those claims to re-raise those DJ actions as they relate to the 18-cv-350 claims that have been dismissed with prejudice, so Bumble's rights and peace-of-mind would still be adequately protected. Given your representations to the Court on this issue that Bumble was willing to execute this with prejudice dismissal, it's our view that the '314 Patent is a separate issue. I'm not saying we won't have discussions on that issue, and I'm not saying I can't convince my client to do that either in connection with these discussions or separately, but the deal proposed to the Court repeatedly on the record was not conditional on any with prejudice dismissal of the '314 Patent. Regards, John From: Caplan, Matt <mcaplan@cooley.com> Sent: Saturday, February 23, 2019 12:17 PM To: John Summers <jsummers@caldwellcc.com>; Brad Caldwell <bcaldwell@caldwellcc.com>; jpalmer@namanhowell.com Cc: Drayton, Joe <jdrayton@cooley.com>; Deron Dacus <ddacus@dacusfirm.com> Subject: Re: Match/ Bumble Litigation Hi John, Thank you for the note. We are still working through (4) with our client and will let you know as soon as we have an answer there. We will also need to discuss your request to include Bumble Holdings in the 080 case with our client. Can you also please let us know where we stand on the '314 patent? Your understanding of the offer with respect to the claims asserted in the 350 case and our proposed pleading (docket 59-1) is correct. In the event we come to an agreement addressing all of these issues, Bumble is willing to dismiss the 350 action with prejudice, so long as Bumble can proceed with all claims included in docket 59-1 as counterclaims in the 080 action. As for Match's counterclaims, why are you not willing to dismiss claims 7-11 with prejudice? Matt Caplan Cooley LLP 310-528-1361 From: John Summers <jsummers@caldwellcc.com> Date: Friday, February 22, 2019 at 3:15 PM To: Matt Caplan <mcaplan@cooley.com>, Brad Caldwell <bcaldwell@caldwellcc.com>, "jpalmer@namanhowell.com" <jpalmer@namanhowell.com> Cc: "Drayton, Joe" <jdrayton@cooley.com>, Deron Dacus <ddacus@dacusfirm.com> Subject: RE: Match/ Bumble Litigation Matt, My apologies. There are a couple of typos in the last paragraph of the proposal. It should read: If Bumble does that, Match would dismiss counterclaims 7-11 without prejudice. We would further expressly agree with your position that Bumble's dismissal without with prejudice deprived the Court over of jurisdiction over our counterclaims 7-11, either due to lack of case and controversy or supplemental jurisdiction. At that point, we could discuss the best way to deal with counterclaims 1- 6. As long as Bumble Holdings gets looped in to the 18-cv-80 case, we see no need for a separate action on them. Let us know your thoughts. -John From: John Summers Sent: Friday, February 22, 2019 5:10 PM To: 'Caplan, Matt' <mcaplan@cooley.com>; Brad Caldwell <bcaldwell@caldwellcc.com>; jpalmer@namanhowell.com Cc: Drayton, Joe <jdrayton@cooley.com>; Deron Dacus <ddacus@dacusfirm.com> Subject: RE: Match/ Bumble Litigation Matt, Thank you for taking the time and effort to put this proposal together, but there are a few things we're worried about in this proposal. We're happy to go into them if you want, but I think the easier route—with the caveat that we too are still vetting with the client for final approval—is probably what you represented to the Court that Bumble was willing to do, namely: Bumble dismisses all of its claims pending in the 18-cv-350 case "with prejudice." This dismissal will have its typical res judicata effect except that the parties expressly agree that the dismissal is not res judicata as to the specific claims made in the proposed petition filed at Dkt. 59-1. See Pactiv Corp. v. Dow Chem. Co., 449 F.3d 1227, 1231 (Fed. Cir. 2006) (holding that parties can "agree to reserve the right to litigate a claim that would otherwise be barred by res judicata.") Just so we're clear, that would mean anything arising out of the same transaction or occurrence as the original claims would be barred, except for facts and theories in 59-1, which the parties expressly agree can proceed. If Bumble does that, Match would dismiss counterclaims 7-11 without prejudice. We would further expressly agree with your position that Bumble's dismissal without with prejudice deprived the Court over of jurisdiction over our counterclaims 7-11, either due to lack of case and controversy or supplemental jurisdiction. At that point, we could discuss the best way to deal with counterclaims 1- 6. As long as Bumble Holdings gets looped in to the 18-cv-80 case, we see no need for a separate action on them. Regards, John -----Original Message----- From: Caplan, Matt <mcaplan@cooley.com> Sent: Thursday, February 21, 2019 2:08 PM To: Brad Caldwell <bcaldwell@caldwellcc.com>; John Summers <jsummers@caldwellcc.com>; jpalmer@namanhowell.com Cc: Drayton, Joe <jdrayton@cooley.com>; Deron Dacus <ddacus@dacusfirm.com> Subject: Match/ Bumble Litigation Brad, John, and John, Nice meeting you all in-person today. So we're all on the same page, here's what we're proposing (with the caveat that we need client approval for #4, below): 1) Match dismisses claims based on the '341 patent with prejudice; 2) Bumble dismisses the claims included in the complaint McKool filed with prejudice, provided that does not impair Bumble's ability to pursue the claims asserted in the proposed original petition filed in the 350 action as docket number 59-1; 3) Match dismisses claims 7-11 in the amended counterclaims it asserted in the 350 action with prejudice, and claims 1-6 without prejudice in favor of proceeding with the patent infringement claims already asserted in the 080 action; and 4) Bumble may pursue the claims included in 350 docket number 59-1 as counterclaims in the 080 action. Matt Caplan Cooley LLP 310-528-1361 ________________________________ This email message is for the sole use of the intended recipient(s) and may contain confidential and privileged information. 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