Match Group, LLC v. Bumble Trading Inc.

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

Exhibit V

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1 Exhibit V 1 From: Bernstein, Max A. To: John Summers; Caplan, Matt; Drayton, Joe; z/Bumble-Match.com; Deron Dacus Cc: Brad Caldwell; match@caldwellcc.com; John Palmer; Melissa Smith Subject: RE: Activity in Case 6:18-cv-00080-ADA Match Group, LLC v. Bumble Trading Inc. Amended Complaint Date: Thursday, August 22, 2019 4:34:33 PM Hi John, The opposition does state that the Additional Defendants have not participated in the action to date. That is a term of art from the case law regarding participation in motion practice. See WorldVentures Holdings, LLC v. Mavie, No. 4:18CV393, 2018 WL 6523306, at *14 (E.D. Tex. Dec. 12, 2018). Here, the Additional Defendants have not appeared. We don't see a basis for your other requests. Thanks, Max From: John Summers <jsummers@caldwellcc.com> Sent: Wednesday, August 21, 2019 4:44 PM To: Caplan, Matt <mcaplan@cooley.com>; Drayton, Joe <jdrayton@cooley.com>; z/Bumble- Match.com <zBumbleMatchcom@cooley.com>; Deron Dacus <ddacus@dacusfirm.com> Cc: Brad Caldwell <bcaldwell@caldwellcc.com>; match@caldwellcc.com; John Palmer <Palmer@namanhowell.com>; Melissa Smith <melissa@gillamsmithlaw.com> Subject: RE: Activity in Case 6:18-cv-00080-ADA Match Group, LLC v. Bumble Trading Inc. Amended Complaint Hi Matt, We've received Defendants' response to Match's Motion for Substitute Service. I don't know if you're aware or not, but the response states that "the Additional Defendants have not participated in the action to date." Dkt. 110 at 8. In light of that representation and your prior indications that Cooley did not represent the non- Bumble Defendants until recently, I thought I would reiterate some of my requests from August 8, 2019: 1) How many times has an attorney at Cooley communicated with any of the entities named prior to August 5th? 2) How many times has an attorney at Cooley communicated with Mariko O'Shea prior to August 5th? 3) Is Mariko O'Shea not Head of Legal and/or Compliance for any of these added entities? If so, which ones? As I requested before, please also immediately produce all communications between any Cooley 1 attorneys and any individual at any of these entities concerning any issue related to Match, Tinder, or the claims at issue in this lawsuit prior to August 5th. To the extent you intend to claim that those communications are privileged despite the prior correspondence that you were not retained by them, please immediately produce a privilege log of all communications between Cooley and the non-Bumble Defendants—for the avoidance of doubt, this includes any communications with Andrey Andreev, Idan Wallichman, or Mariko O'Shea—as well as all communications (or at least a privilege log of them) between McKool Smith and the same parties and individuals from March 2018 to present. Given the short time period for Match to reply to Defendants' response, please confirm that you will answer these questions and produce these documents by this Friday, August 23rd. Thank you. Regards, John From: Caplan, Matt <mcaplan@cooley.com> Sent: Wednesday, August 14, 2019 12:48 PM To: John Summers <jsummers@caldwellcc.com>; Drayton, Joe <jdrayton@cooley.com>; z/Bumble- Match.com <zBumbleMatchcom@cooley.com>; Deron Dacus <ddacus@dacusfirm.com> Cc: Brad Caldwell <bcaldwell@caldwellcc.com>; match@caldwellcc.com; John Palmer <Palmer@namanhowell.com>; Melissa Smith <melissa@gillamsmithlaw.com> Subject: RE: Activity in Case 6:18-cv-00080-ADA Match Group, LLC v. Bumble Trading Inc. Amended Complaint Hi John, I'm taking a deposition today, but can confirm that Bumble opposes the motion. Additionally, I can tell you that we understand there is no entity named Magic Lab Co. 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 Pronouns: he, him, his From: John Summers <jsummers@caldwellcc.com> Sent: Wednesday, August 14, 2019 9:56 AM To: Caplan, Matt <mcaplan@cooley.com>; Drayton, Joe <jdrayton@cooley.com>; z/Bumble- Match.com <zBumbleMatchcom@cooley.com>; Deron Dacus <ddacus@dacusfirm.com> Cc: Brad Caldwell <bcaldwell@caldwellcc.com>; match@caldwellcc.com; John Palmer <Palmer@namanhowell.com>; Melissa Smith <melissa@gillamsmithlaw.com> Subject: RE: Activity in Case 6:18-cv-00080-ADA Match Group, LLC v. Bumble Trading Inc. Amended Complaint 1 Matt, Match intends to file a Motion for Substitute Service for Badoo Trading Ltd., Magic Lab Co., Worldwide Vision Limited, Badoo Limited, Badoo Software Limited, Badoo Technologies through their U.S. counsel, Cooley. We intend to file that motion today. Please let me know if Bumble intends to oppose that request. Let me know if you'd like to discuss. Regards, John From: Caplan, Matt <mcaplan@cooley.com> Sent: Friday, August 09, 2019 1:06 PM To: John Summers <jsummers@caldwellcc.com>; Drayton, Joe <jdrayton@cooley.com>; z/Bumble- Match.com <zBumbleMatchcom@cooley.com>; Deron Dacus <ddacus@dacusfirm.com> Cc: Brad Caldwell <bcaldwell@caldwellcc.com>; match@caldwellcc.com; John Palmer <Palmer@namanhowell.com>; Melissa Smith <melissa@gillamsmithlaw.com> Subject: RE: Activity in Case 6:18-cv-00080-ADA Match Group, LLC v. Bumble Trading Inc. Amended Complaint John, Your client first asserted claims in this action against Badoo Trading Ltd., Magic Lab Co., Worldwide Vision Limited, Badoo Limited, Badoo Software Limited, Badoo Technologies Limited less than a week ago. At the time I wrote my email on Wednesday, Cooley was in the process of being engaged as their counsel to defend against the claims asserted against them in your August 2 pleading. We are now engaged as their counsel to defend against those claims. Although we are not currently authorized to accept service on their behalf, I'm happy to have a call to discuss this issue with you. Best, 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 Pronouns: he, him, his From: John Summers <jsummers@caldwellcc.com> Sent: Thursday, August 8, 2019 4:50 PM 1 To: Caplan, Matt <mcaplan@cooley.com>; Drayton, Joe <jdrayton@cooley.com>; z/Bumble- Match.com <zBumbleMatchcom@cooley.com>; Deron Dacus <ddacus@dacusfirm.com> Cc: Brad Caldwell <bcaldwell@caldwellcc.com>; match@caldwellcc.com; John Palmer <Palmer@namanhowell.com>; Melissa Smith <melissa@gillamsmithlaw.com> Subject: RE: Activity in Case 6:18-cv-00080-ADA Match Group, LLC v. Bumble Trading Inc. Amended Complaint Matt, We obviously disagree that Affinity Labs applies only to alter ego entities. In preparation with teeing this issue up with the Court, can you answer the following questions? 1) Is there any particular reason you're declining service other than to increase delay and costs and litigate on issues other than the merits? 2) How many times has an attorney at Cooley communicated with any of the entities named? 3) How many times has an attorney at Cooley communicated with Mariko O'Shea? 4) Is Mariko O'Shea not Head of Legal and/or Compliance for any of these added entities? If so, which ones? 5) Your email states that you are "not yet engaged by the newly added parties for purposes of defending the claims asserted in Match's fourth amended complaint." Are you engaged with the newly added parties for any other purposes? If so, which parties, and for what purpose? Since you claim that you don't represent these entities for purposes of the lawsuit, please also immediately produce all communications between any Cooley attorneys and any individual at any of these entities concerning any issue related to Match, Tinder, or the claims at issue in this lawsuit. Let me know if you would like to discuss. Regards, John From: Caplan, Matt <mcaplan@cooley.com> Sent: Wednesday, August 07, 2019 3:56 PM To: John Summers <jsummers@caldwellcc.com>; Drayton, Joe <jdrayton@cooley.com>; z/Bumble- Match.com <zBumbleMatchcom@cooley.com>; Deron Dacus <ddacus@dacusfirm.com> Cc: Brad Caldwell <bcaldwell@caldwellcc.com>; match@caldwellcc.com; John Palmer <Palmer@namanhowell.com> Subject: RE: Activity in Case 6:18-cv-00080-ADA Match Group, LLC v. Bumble Trading Inc. Amended Complaint Hi John, Thank you for providing this authority. Our reading of Affinity Labs and related authority within the 5th Circuit is that the party to the litigation must be the agent or alter ego of the entities to be served 1 in order to invoke this method of service, and the party seeking to serve in this manner must apply to the Court for permission to do so. Affinity Labs of Texas, LLC v. Nissan N. Am. Inc., No. WA:13-CV- 369, 2014 WL 11342502 (W.D. Tex. July 2, 2014) ("In other words, service of process can be properly effectuated on the domestic subsidiary of a foreign parent company 'where the evidence shows that one is the agent or alter ego of the other.'"). The Bumble entities are not alter egos or agents of any of the newly added defendants, and we will not agree to accept service on their behalf. 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 Pronouns: he, him, his From: John Summers <jsummers@caldwellcc.com> Sent: Monday, August 5, 2019 3:43 PM To: Caplan, Matt <mcaplan@cooley.com>; Drayton, Joe <jdrayton@cooley.com>; z/Bumble- Match.com <zBumbleMatchcom@cooley.com>; Deron Dacus <ddacus@dacusfirm.com> Cc: Brad Caldwell <bcaldwell@caldwellcc.com>; match@caldwellcc.com; John Palmer <Palmer@namanhowell.com> Subject: RE: Activity in Case 6:18-cv-00080-ADA Match Group, LLC v. Bumble Trading Inc. Amended Complaint Matt, Without limiting what other authority we might rely on, Affinity Labs of Texas, LLC v. Nissan N. Am. Inc., No. WA:13-CV-369, 2014 WL 11342502 (W.D. Tex. July 2, 2014), supports our position that these entities may be served through Cooley and/or one of the Bumble entities. Note that this authority would allow service of these entities regardless of whether you are officially engaged by any or all entities we've added or not. Regards, John From: Caplan, Matt <mcaplan@cooley.com> Sent: Monday, August 05, 2019 5:25 PM To: John Summers <jsummers@caldwellcc.com>; Drayton, Joe <jdrayton@cooley.com>; z/Bumble- Match.com <zBumbleMatchcom@cooley.com>; Deron Dacus <ddacus@dacusfirm.com> Cc: Brad Caldwell <bcaldwell@caldwellcc.com>; match@caldwellcc.com; John Palmer <Palmer@namanhowell.com> Subject: RE: Activity in Case 6:18-cv-00080-ADA Match Group, LLC v. Bumble Trading Inc. Amended 1 Complaint Hi John, We are not yet engaged by the newly added parties for purposes of defending the claims asserted in Match's fourth amended complaint, so we cannot agree to accept service on their behalf. In any event, please provide us with any authority you have supporting your assertion that you may properly serve them "via alternative service through counsel" so we can consider your request if and when we are engaged. Best, 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 Pronouns: he, him, his From: John Summers <jsummers@caldwellcc.com> Sent: Monday, August 5, 2019 11:50 AM To: Caplan, Matt <mcaplan@cooley.com>; Drayton, Joe <jdrayton@cooley.com>; z/Bumble- Match.com <zBumbleMatchcom@cooley.com>; Deron Dacus <ddacus@dacusfirm.com> Cc: Brad Caldwell <bcaldwell@caldwellcc.com>; match@caldwellcc.com; John Palmer <Palmer@namanhowell.com> Subject: FW: Activity in Case 6:18-cv-00080-ADA Match Group, LLC v. Bumble Trading Inc. Amended Complaint Counsel, Please let me know if you will agree to accept service for the new entities listed in the Fourth Amended Complaint. As I mentioned in my e-mail first raising this issue, if you intend to decline accepting service, we intend to request alternative service through counsel via a call with the Court. Regards, John From: TXW_USDC_Notice@txwd.uscourts.gov <TXW_USDC_Notice@txwd.uscourts.gov> Sent: Friday, August 02, 2019 11:50 PM To: cmecf_notices@txwd.uscourts.gov Subject: Activity in Case 6:18-cv-00080-ADA Match Group, LLC v. Bumble Trading Inc. Amended Complaint 1 This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply. U.S. District Court [LIVE] Western District of Texas Notice of Electronic Filing The following transaction was entered by Caldwell, Bradley on 8/2/2019 at 11:50 PM CDT and filed on 8/2/2019 Case Name: Match Group, LLC v. Bumble Trading Inc. Case Number: 6:18-cv-00080-ADA Filer: Match Group, LLC Document Number: 100 Docket Text: AMENDED COMPLAINT Plaintiff Match Group LLC's Fourth Amended Complaint against Bumble Holding, LTD, Bumble Trading Inc., Badoo Trading Ltd., Magic Lab Co., Worldwide Vision Limited, Badoo Limited, Badoo Software Limited, Badoo Technologies Limited amending, filed by Match Group, LLC. (Attachments: # (1) Exhibit A, # (2) Exhibit B, # (3) Exhibit C, # (4) Exhibit D, # (5) Exhibit E, # (6) Exhibit F, # (7) Exhibit G)(Caldwell, Bradley) 6:18-cv-00080-ADA Notice has been electronically mailed to: Bradley W. Caldwell bcaldwell@caldwellcc.com, 1612557420@filings.docketbird.com, bdefeo@caldwellcc.com Deron R Dacus ddacus@dacusfirm.com, dadams@dacusfirm.com John F. Summers jsummers@caldwellcc.com, mdelaney@caldwellcc.com, sreich@caldwellcc.com John P. Palmer palmer@namanhowell.com, templew@namanhowell.com Joseph M. Drayton jdrayton@cooley.com, smartinez@cooley.com Matthew D. Caplan mcaplan@cooley.com, efiling-notice@ecf.pacerpro.com, 1 smartinez@cooley.com Melissa Richards Smith melissa@gillamsmithlaw.com, 4293145420@filings.docketbird.com, diana@gillamsmithlaw.com Michael G. Rhodes mrhodes@cooley.com, rlopez@cooley.com Rose S. Whelan rwhelan@cooley.com, efiling-notice@ecf.pacerpro.com, mderenzis@cooley.com Warren J. McCarty, III wmccarty@caldwellcc.com, bdefeo@caldwellcc.com, sross@caldwellcc.com 6:18-cv-00080-ADA Notice has been delivered by other means to: The following document(s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1080075687 [Date=8/2/2019] [FileNumber=21736240-0 ] [90371ef9f9cbf84f79461f8b690cfbd0ce5cd091ce279dac932d7283c66dcdbb14c 04f44664e5bbd14c3c0e4d877b99882d34c182de6bde3dd28c76faa5d05ef]] Document description:Exhibit A Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1080075687 [Date=8/2/2019] [FileNumber=21736240-1 ] [538e76bcab139e572d9de8db023dfd497d67f860d2158bdf05e1ed09ba4229943b8 bb8fb0521ad1ceb24e8852dc9a80bf4c3a5351778b897878102ff18c300ac]] Document description:Exhibit B Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1080075687 [Date=8/2/2019] [FileNumber=21736240-2 ] [7757c69dc7ef039e3ba3df16cdbbdbd2fa64d8027586293e34c86c6e97f47e0dbc8 d48b3c7f3a303236a80e2957d3c69c657b74d672c9485f5fb39967ae472eb]] Document description:Exhibit C Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1080075687 [Date=8/2/2019] [FileNumber=21736240-3 ] [9a013582001558b9b9aec1ec818f828e3b3304ca6240e26c9397ab0b8afa0952986 415f5daaa80850ae92d22b6212a35a9097a0699af96f05010a5d03727f0c6]] Document description:Exhibit D Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1080075687 [Date=8/2/2019] [FileNumber=21736240-4 ] [676fbf006ac00ee98d8a32c276aab897b9e2bedcab6884c288e9de16de893972a82 1 24352cee4c1a0e9faa823941749cf9f972118e727621b813946451e70869e]] Document description:Exhibit E Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1080075687 [Date=8/2/2019] [FileNumber=21736240-5 ] [2ebf81a71f65f31986e47acea09b0550d332e86531560cc158061424efe00e493b6 7292c160a1e3c3823ce1aa904c08a697cf03a4743436cde43695264e32251]] Document description:Exhibit F Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1080075687 [Date=8/2/2019] [FileNumber=21736240-6 ] [4d1fd578766334563db897559f8e2522090a1ed558a9b4c131d02e1ca51daa9f23c a6fc33b3d6336ac4daad4b0d3f38ce674a6fc3297adae79fab8c5ff1f8521]] Document description:Exhibit G Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1080075687 [Date=8/2/2019] [FileNumber=21736240-7 ] [81c1ec6538e68327e12a1617447d8e89b2ee25d77aea0fd1f236074e514a63ec5eb 63cf22cb6fe00c3010b300cc559cbca0959dcd89c9d5045ddeb1851862eae]] This email message is for the sole use of the intended recipient(s) and may contain confidential and privileged information. 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