Case 1:20-cv-00371-LPS Document 102 Filed 09/10/21 Page 1 of 20 PageID #: 3605
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`FINJAN LLC,
`
`
`
`
`
`TRUSTWAVE HOLDINGS, INC. and
`SINGAPORE TELECOMMUNICATIONS
`LIMITED,
`
`
`
`
`
`
`Plaintiff,
`
`
`
`Defendants.
`
`
`
`v.
`
`
`
`
`
`
`
`C.A. No. 20-371 (LPS)
`
`
`
`
`
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`
`
`
`DEFENDANT SINGAPORE TELECOMMUNICATIONS LIMITED’S
`SUPPLEMENTAL BRIEF IN SUPPORT OF RENEWED MOTION
`TO DISMISS FOR LACK OF PERSONAL JURISDICTION
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`Jack B. Blumenfeld (#1014)
`Alexandra M. Cumings (#6146)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899-1347
`(302) 658-9200
`jblumenfeld@mnat.com
`acumings@mnat.com
`
`Attorneys for Defendant
`Singapore Telecommunications Limited
`
`OF COUNSEL:
`
`John S. Letchinger
`BAKER & HOSTETLER LLP
`191 North Wacker Drive, Suite 3100
`Chicago, IL 60606-1901
`(312) 416-6200
`
`Jared A. Brandyberry
`BAKER & HOSTETLER LLP
`1801 California Street, Suite 4400
`Denver, CO 80202
`(303) 764-4072
`
`September 1, 2021
`
`
`
`
`
`PUBLIC VERSION
`Filed September 10, 2021
`
`

`

`Case 1:20-cv-00371-LPS Document 102 Filed 09/10/21 Page 2 of 20 PageID #: 3606
`
`
`
`I.
`
`II.
`
`III.
`
`
`
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`Page
`
`SINGTEL IS NOT BOUND BY THE FORUM SELECTION CLAUSE IN THE
`2012 AGREEMENT BETWEEN FINJAN AND TRUSTWAVE ......................................2
`
`A.
`
`B.
`
`The Forum Selection Clause Applies Only to “the Parties Hereto,” Which
`Does Not Include Singtel. ........................................................................................2
`
`Finjan Fails to Satisfy the Delaware Test for Binding a Non-Signatory to a
`Forum Selection Clause. ..........................................................................................4
`
`(1)
`
`(2)
`
`There is no evidence it was “foreseeable” that Singtel would be by the
`forum selection clause in the 2012 Agreement. ...........................................5
`
`There is no evidence of any direct benefit to Singtel from the 2012
`Agreement. ...................................................................................................9
`
`FINJAN IDENTIFIES NO FACTS THAT WOULD SUPPORT SPECIFIC
`JURISDICTION OVER SINGTEL IN DELAWARE. .....................................................11
`
`RULE 4(K)(2) DOES NOT CONFER PERSONAL JURISDICTION OVER
`SINGTEL ...........................................................................................................................13
`
`
`
`i
`
`

`

`Case 1:20-cv-00371-LPS Document 102 Filed 09/10/21 Page 3 of 20 PageID #: 3607
`
`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`ACE & Co. v. Balfour Beauty PLC,
`148 F. Supp. 2d 418 (D. Del. 2001) .........................................................................................12
`
`AeroGlobal Cap. Mgmt., LLC v. Cirrus Indus., Inc.,
`871 A.2d 428 (Del. 2005) ........................................................................................................12
`
`Aviation W. Charters, LLC v. Freer,
`No. 14-271, 2015 Del. Super. LEXIS 468 (Del. Super. Ct. July 2, 2015) .................................6
`
`Bobcat N. Am., LLC v. Inland Waste Holdings, LLC,
`No. N17-170, 2019 Del. Super. LEXIS 210 (Del. Super. Ct. Apr. 26, 2019) ...........................3
`
`Eastman Chem. Co. v. Alphabet Inc.,
`No. 09-971, 2011 U.S. Dist. LEXIS 158477 (D. Del. Nov. 18, 2011) ........................4, 5, 9, 10
`
`Eurofins Pharma US Holdings v. BioAlliance Pharma SA,
`623 F.3d 147 (3d Cir. 2010).....................................................................................................11
`
`In re McGraw-Hill Global Educ. Holdings, LLC,
`909 F.3d 48 (3d Cir. 2018).....................................................................................................5, 6
`
`Khan v. Del. State Univ.,
`No. 14-148, 2017 Del. Super. LEXIS 96 (Del. Super. Ct. Feb. 28, 2017) ................................3
`
`LaNuova D&B, S.p.A. v. Bowe Co., Inc.,
`513 A.2d 764 (Del. 1986) ........................................................................................................11
`
`Monsanto Co. v. Syngenta Seeds, Inc.,
`443 F. Supp. 2d 636 (D. Del. 2006) .........................................................................................11
`
`Neurvana Med., LLC v. Balt USA, LLC,
`No. 19-34, 2019 Del. Ch. LEXIS 995 (Del. Ch. Sep. 18, 2019) .........................................5, 10
`
`Partners & Simons, Inc. v. Sandbox Acquisitions, LLC,
`No. 20-0776, 2021 Del. Ch. LEXIS 162 (Ch. July 26, 2021)....................................................9
`
`Phunware, Inc. v. Excelmind Grp. Ltd.,
`117 F. Supp. 3d 613 (D. Del. 2015) .........................................................................................10
`
`Saudi v. Acomarit Maritimes Servs., S.A.,
`114 F. App’x 449 (3d Cir. 2004) .............................................................................................13
`
`ii
`
`

`

`Case 1:20-cv-00371-LPS Document 102 Filed 09/10/21 Page 4 of 20 PageID #: 3608
`
`
`
`Sustainability Partners LLC v. Jacobs,
`No. 19-742, 2020 Del. Ch. LEXIS 209 (Del. Ch. June 11, 2020) .............................................7
`
`Synthes (U.S.A.) v. G.M. Dos Reis Jr. Ind. Com de Equip. Medico,
`563 F.3d 1285 (Fed. Cir. 2009)................................................................................................14
`
`Touchcom, Inc. v. Bereskin & Parr,
`574 F.3d 1403 (Fed. Cir. 2009)................................................................................................14
`
`TriDinetworks Ltd. v. NXP USA, Inc.,
`No. 19-1062-CFC-CJB, 2020 U.S. Dist. LEXIS 80654 (D. Del. May 7, 2020) .....................15
`
`TriDinetworks Ltd. v. NXP USA, Inc.,
`No. 19-1062-CFC-CJB, 2020 WL 2220152 (D. Del. May 7, 2020) .......................................13
`
`Truinject Corp. v. Nestle Skin Health S.A.,
`No. 19-592-LPS-JLH, 2019 U.S. Dist. LEXIS 215313 (D. Del. Dec. 13, 2019) ..................5, 9
`
`Univ. of Massachusetts Med. Sch. v. L'Oreal S.A.,
`No. 17-868-CFC-SRF, 2018 U.S. Dist. LEXIS 192832 (D. Del. Nov. 13,
`2018) ........................................................................................................................................14
`
`Venmill Indus., Inc. v. ELM, Inc.,
`100 F. Supp. 3d 59 (D. Mass. 2015) ........................................................................................15
`
`You Map, Inc. v. Snap Inc.,
`No. 20-162-CFC, 2021 U.S. Dist. LEXIS 139524 (D. Del. July 27, 2021) ......................13, 15
`
`
`
`
`
`
`
`
`
`
`
`iii
`
`

`

`Case 1:20-cv-00371-LPS Document 102 Filed 09/10/21 Page 5 of 20 PageID #: 3609
`
`
`
`
`
`Singtel filed its Renewed Motion to Dismiss for Lack of Personal Jurisdiction in September
`
`2020. It was fully briefed by January 2021 and argued in May 2021. Following that, Finjan was
`
`allowed to take jurisdictional discovery. After all that, Finjan’s arguments for personal jurisdiction
`
`over Singtel are notably hollow, both legally and factually.
`
`
`
`First, Finjan argues that Singtel “consented” to jurisdiction in Delaware by virtue of the
`
`forum selection clause in the 2012 Agreement between Finjan and Trustwave. The plain language
`
`of the forum selection clause, however, makes clear that it applies only to “the parties hereto.”
`
`Singtel has never been a party to the 2012 Agreement. This language cannot be read out of the
`
`2012 Agreement nor trumped by the more general provision on which Finjan relies. It must be
`
`given effect, namely, that Singtel, a non-party, is not bound by the forum selection clause. This is
`
`reinforced by the fact that another the preceding provision of the 2012 Agreement (Section 2.4)
`
`specifically requires third-party participants to sign an “assumption agreement” binding them to
`
`its terms.
`
`
`
`Moreover, even if the forum selection clause did apply to Singtel, Finjan cannot satisfy
`
`critical components of Delaware’s three-part test for binding a non-party to a forum selection
`
`clause. Finjan cannot show that it was “foreseeable” that Singtel would be bound by the forum
`
`selection clause in a contract that was negotiated and signed three years before Singtel acquired
`
`Trustwave, with no evidence that Singtel gave any consideration to the forum selection clause at
`
`the time of the acquisition. Finjan also cannot show that Singtel received a “direct benefit” from
`
`the 2012 Agreement; all the supposed benefits to Singtel, as identified by Finjan, would have
`
`flowed indirectly through Trustwave, merely as a result of Singtel’s ownership of Trustwave.
`
`
`
`Second, Finjan argues that Singtel is subject to jurisdiction through the specific jurisdiction
`
`provisions of Delaware’s long-arm statute. But Finjan does not identify a single act by Singtel
`
`1
`
`

`

`Case 1:20-cv-00371-LPS Document 102 Filed 09/10/21 Page 6 of 20 PageID #: 3610
`
`
`
`directed at Delaware, let alone an act directed at Delaware related to this case, that demonstrates
`
`the necessary showing for specific jurisdiction.
`
`
`
`Third, Finjan argues that Singtel is subject to jurisdiction under Rule 4(k)(2). Again,
`
`Finjan does not identify acts by Singtel anywhere in country that could satisfy the due process
`
`requirement of minimum contacts with the United States.
`
`
`
`What Finjan wants is to have this Court to exercise personal jurisdiction over Singtel solely
`
`based on Trustwave’s activities – either Trustwave’s 2012 Agreement with Finjan or Trustwave’s
`
`business activities in the United States – and solely as a result of Singtel’s acquisition of Trustwave
`
`in 2015. But personal jurisdiction cannot be so easily or indirectly established. Singtel is not a
`
`party to the 2012 Agreement. Singtel does no business in the United States. And, there is no basis
`
`to impute Trustwave’s activities in the United States to Singtel.
`
`I.
`
`
`
`
`
`
`SINGTEL IS NOT BOUND BY THE FORUM SELECTION CLAUSE IN THE
`2012 AGREEMENT BETWEEN FINJAN AND TRUSTWAVE
`
`A.
`
`
`The Forum Selection Clause Applies Only to “the Parties Hereto,” Which
`Does Not Include Singtel.
`
`Section 6.4 of the 2012 Agreement provides that “the parties hereto hereby irrevocably
`
`submit to the exclusive jurisdiction of any federal or state court in Delaware.” (D.I. 28, Ex. B, at
`
`§ 6.4). Singtel is not, and has never been, a party to the 2012 Agreement. The plain language of
`
`§ 6.4 thus makes clear that the forum selection clause does not apply to Singtel.
`
`
`
`Finjan nevertheless argues the Singtel is bound by § 6.4, relying on the following language
`
`in § 2.5 of the 2012 Agreement: “In the event of an Acquisition [of Trustwave], all the provisions
`
`of this Agreement applicable to [Trustwave] . . . shall be deemed to apply to the Acquirer, and
`
`its respective Affiliates that are licensed hereunder . . . .” (D.I. 28, Ex. B, at § 2.5). (emphasis
`
`added). But, § 2.5 does not make Singtel a party to the 2012 Agreement. And, nothing in § 2.5
`
`2
`
`

`

`Case 1:20-cv-00371-LPS Document 102 Filed 09/10/21 Page 7 of 20 PageID #: 3611
`
`
`
`amends the language of § 6.4, which states plainly that only “the parties hereto” consent to
`
`jurisdiction in Delaware.1
`
`
`
`When interpreting contracts, Delaware courts “give[] meaning to every word in the
`
`agreement” and “avoid[] interpretations that would result in superfluous verbiage.” Khan v. Del.
`
`State Univ., No. 14-148, 2017 Del. Super. LEXIS 96, at *4 (Del. Super. Ct. Feb. 28, 2017).
`
`Moreover, “[s]pecific language in a contract controls over general language, and where specific
`
`and general provisions conflict, the specific provision ordinarily qualifies the meaning of the
`
`general one.” Bobcat N. Am., LLC v. Inland Waste Holdings, LLC, No. N17-170, 2019 Del. Super.
`
`LEXIS 210, at *23 (Del. Super. Ct. Apr. 26, 2019). Here, Finjan asks this Court to apply the
`
`general language of §2.5, instead of the specific language of § 6.4, to vitiate “the parties hereto”
`
`language. Such a reading would violate the basic tenets of contract interpretation. Courts do not
`
`read contracts to change their plain meaning.
`
`
`
`If § 2.5 required that an “Acquiror” sign on as a party, Finjan’s argument might have merit.
`
`But, § 2.5 does no such thing. The absence of any such language in § 2.5 is dispositive, given that
`
`the parties included such language elsewhere in the 2012 Agreement. In the preceding § 2.4, the
`
`parties agreed that any permitted license transferee must “assume in writing all of the rights and
`
`obligations of such Licensee hereunder through the execution of an assignment and assumption
`
`agreement . . . .” (D.I. 28, Ex. B, at § 2.4). If the parties intended an Acquiror to become a party
`
`to the 2012 Agreement, they could have included similar language in § 2.5. But they did not. But
`
`now Finjan wants this Court to interpret § 2.5 to make Singtel a party, even though § 2.5 says
`
`
`1 Importantly, § 6.5 provides that the 2012 Agreement can be “amended, supplemented or
`changed only by written agreement of the parties hereto.” (D.I. 28, Ex. B, at § 6.5). At no point
`did the parties amend the language of § 6.4 to apply to anyone other than “the parties hereto.”
`
`3
`
`

`

`Case 1:20-cv-00371-LPS Document 102 Filed 09/10/21 Page 8 of 20 PageID #: 3612
`
`
`
`nothing of the kind and is different from § 2.4, which requires third parties to execute an
`
`“assumption agreement” binding them to the 2012 Agreement.
`
`
`
`Singtel is not a party to the 2012 Agreement and is not bound by a forum selection clause
`
`that applies only to “the parties hereto.”
`
`
`
`
`
`
`B.
`
`
`Finjan Fails to Satisfy the Delaware Test for Binding a Non-Signatory to a
`Forum Selection Clause.
`
`Even assuming, arguendo, that the plain language of the forum selection clause did apply
`
`to Singtel, Finjan’s contract argument would still fail under Delaware’s test for binding a non-
`
`party to such a provision.
`
`
`
`Delaware courts have established a three-part test for determining whether a non-party to
`
`an agreement should nonetheless be bound by its forum-selection clause: (1) whether the forum
`
`selection clause is valid; (2) whether the non-party is a third-party beneficiary of the agreement or
`
`is closely related to the agreement; and (3) whether the claim arises from the non-party’s standing
`
`relating to the agreement. Eastman Chem. Co. v. Alphabet Inc., No. 09-971, 2011 U.S. Dist.
`
`LEXIS 158477, at *12 (D. Del. Nov. 18, 2011). Finjan fails to demonstrate that the second part
`
`applies.
`
`
`
`Finjan does not argue that Singtel is a third-party beneficiary of the 2012 Agreement.
`
`Under Delaware law, the parties to the contract must have intended to create a third-party
`
`beneficiary at the time of contracting. Eastman Chem., No. 09-971, 2011 U.S. Dist. LEXIS
`
`158477, at *17 (describing three-part test to determine third-party beneficiary status). There was
`
`no such intent here, nor could there have been, as the 2012 Agreement was entered into three years
`
`before Singtel acquired Trustwave. Moreover, the 2012 Agreement expressly disclaims any third-
`
`party beneficiaries. (D.I. 28, Ex. B, at § 6.9). Indeed, Finjan makes no reference to a third-party
`
`4
`
`

`

`Case 1:20-cv-00371-LPS Document 102 Filed 09/10/21 Page 9 of 20 PageID #: 3613
`
`
`
`beneficiary argument in its Supplemental Brief,2 instead arguing Singtel was “closely related” to
`
`the 2012 Agreement. As explained below, however, Finjan’s argument is baseless.
`
`(1)
`
`There is no evidence it was “foreseeable” that Singtel would be by the
`forum selection clause in the 2012 Agreement.
`
`
`
`There are traditionally two ways a non-signatory can be “closely related” to an agreement:
`
`(1) the non-signatory received a direct monetary or non-monetary benefit from the agreement; or
`
`(2) it was foreseeable that the non-signatory would be bound by the agreement. Eastman Chem.,
`
`No. 09-971, 2011 U.S. Dist. LEXIS 158477, at *28. Finjan claims that this means it can prove
`
`one or the other – direct benefit or foreseeability – to establish that Singtel was closely related to
`
`the 2012 Agreement. (D.I. 95 at p. 10). But the Third Circuit has held that “[f]oreseeability is a
`
`prerequisite to applying the closely related parties doctrine,” rather than a separate test that can
`
`individually satisfy the closely related doctrine. In re McGraw-Hill Global Educ. Holdings, LLC,
`
`909 F.3d 48, 64 (3d Cir. 2018) (emphasis added). Delaware courts have also recently cautioned
`
`against applying the foreseeability inquiry as a standalone basis for satisfying the closely related
`
`test, except in two scenarios, neither of which is present here.3 Neurvana Med., LLC v. Balt USA,
`
`LLC, No. 19-34, 2019 Del. Ch. LEXIS 995, at *12-15 (Del. Ch. Sep. 18, 2019); see also Truinject
`
`Corp. v. Nestle Skin Health S.A., No. 19-592-LPS-JLH, 2019 U.S. Dist. LEXIS 215313, at *32-33
`
`(D. Del. Dec. 13, 2019) (citing both McGraw-Hill and Neurvana and finding that foreseeability
`
`
`2 Finjan did not raise a third-party beneficiary theory in its original Opposition Brief. But at the
`May 7, 2021 oral argument, Finjan’s counsel first argued that Singtel was a third-party beneficiary,
`without any supporting evidence, and later abandoned that argument, upon questioning by the
`Court. (D.I. 95, Ex. 1, at 8:18-9:10, 27:9-14). It appears that Finjan has abandoned any third-
`party beneficiary theory.
`3 The two scenarios are: (1) where a non-signatory defendant seeks to enforce a forum-selection
`clause against a signatory plaintiff; and (2) where a controlling company that is a signatory seeks
`to use controlled non-signatories to manipulate an “end run” around the forum selection provision.
`See Neurvana, 2019 Del. Ch. LEXIS 995, at *12-15.
`
`5
`
`

`

`Case 1:20-cv-00371-LPS Document 102 Filed 09/10/21 Page 10 of 20 PageID #: 3614
`
`
`
`was a prerequisite, and not an independent basis, to showing that a non-signatory was “closely
`
`related” to a contract).
`
`
`
`Thus, in order to establish that Singtel is “closely related” to the 2012 Agreement, Finjan
`
`must demonstrate both foreseeability and a direct benefit. “A foreseeability finding in the context
`
`of forum selection clauses must have some evidentiary basis, other than pure speculation, that the
`
`party sought to be bound had an awareness of the clause, its contents, and that it might be
`
`defensively invoked.” McGraw-Hill, 909 F.3d at 65. This requires that “the actual forum be
`
`foreseeable, and that there be some evidentiary basis for such a finding.” Id. This is exactly the
`
`question the Court posed at the May 2021 hearing: “Maybe we would find out that a lot of due
`
`diligence was done and Singtel understood that it really was subject to the forum selection clause.”
`
`(D.I. 95, Ex. 1, at 19:15-18).
`
`
`
`Finjan ignores this inquiry, and for good reason, as there is no evidence whatsoever that
`
`Singtel had any understanding that it could be bound by a forum selection clause of the 2012
`
`Agreement. In fact, there is no evidence that Singtel even reviewed the forum selection clause or
`
`discussed it with Trustwave. Finjan instead points the Court to the evidence that Trustwave
`
`disclosed the 2012 Agreement to Singtel, and Singtel was aware of the 2012 Agreement, at the
`
`time of the acquisition. Finjan’s argument is defective for at least three reasons.
`
`
`
`First, Finjan cites no authority for the proposition that a non-party’s mere awareness of the
`
`existence of a contract, long after the contract was negotiated and executed, is sufficient to
`
`demonstrate foreseeability. To the contrary, foreseeability in this context typically arises when a
`
`non-party was aware of the forum selection clause at the time of its creation. And, in many of
`
`those cases, courts still declined to find foreseeability, even where the non-signatory participated
`
`in the contract negotiation. See, e.g., Aviation W. Charters, LLC v. Freer, No. 14-271, 2015 Del.
`
`6
`
`

`

`Case 1:20-cv-00371-LPS Document 102 Filed 09/10/21 Page 11 of 20 PageID #: 3615
`
`
`
`Super. LEXIS 468, at *12-13 (Del. Super. Ct. July 2, 2015) (no foreseeability that forum selection
`
`clause would apply to non-signatory CFO who was involved in the negotiation of the contract at
`
`issue); see also Sustainability Partners LLC v. Jacobs, No. 19-742, 2020 Del. Ch. LEXIS 209, at
`
`*17 (Del. Ch. June 11, 2020) (no foreseeability where the non-signatory “did not negotiate any
`
`aspect of the Operating Agreement” and “[t]here is no allegation that he was involved in the
`
`creation of the Operating Agreement in any way”).
`
`
`
`Finjan asks the Court to apply the forum selection clause to Singtel, even though Singtel
`
`did not acquire Trustwave until more than three years later. According to Finjan, Singtel should
`
`be subject to the forum selection provision based on Singtel’s subsequent acquisition of Trustwave
`
`and related due diligence. There is no precedent for applying the foreseeability test in such a
`
`retroactive manner that it could sweep in non-parties that had no involvement whatsoever with any
`
`of the parties, or the contract, when the forum selection clause was agreed to.
`
`
`
`Second, putting aside the timing, the evidence presented by Finjan falls well short of what
`
`is required to demonstrate foreseeability. It is not surprising that, as part of its normal-course due
`
`diligence, Singtel required Trustwave to disclose all of Trustwave’s material contracts with third
`
`parties. Trustwave’s contractual rights and obligations are assets and liabilities of which any
`
`acquiring party would want to be aware.
`
`
`
`
`
` But, that general awareness of
`
`Trustwave’s contracts has nothing to do with whether it was foreseeable to Singtel that it would
`
`be bound by the Delaware forum selection clause.
`
`
`
`Third, in an effort to argue that Singtel was more than just aware of the 2012 Agreement
`
`at the time of the Trustwave acquisition, Finjan misstates the facts.
`
`
`
`7
`
`

`

`Case 1:20-cv-00371-LPS Document 102 Filed 09/10/21 Page 12 of 20 PageID #: 3616
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`8
`
`

`

`Case 1:20-cv-00371-LPS Document 102 Filed 09/10/21 Page 13 of 20 PageID #: 3617
`
`
`
`
`
`It is no surprise that Singtel was aware of the 2012 Agreement when it acquired Trustwave.
`
`
`
`
`
`
`
`Awareness of the contract is not foreseeability that a forum selection clause would retroactively
`
`apply to a non-signatory several years later. Moreover, and as demonstrated by the evidence cited
`
`by Finjan, Singtel’s due diligence efforts with respect to the 2012 Agreement were aimed at
`
`Trustwave’s – not Singtel’s – rights under the 2012 Agreement, and, more specifically, the impact
`
`of the acquisition on Trustwave’s rights. There is no evidence that Singtel ever believed it would
`
`be a party to the 2012 Agreement or agreed to be bound by the forum selection clause. Thus,
`
`Finjan cannot meet the prerequisite showing of foreseeability, and its argument that Singtel was
`
`“closely related” to the 2012 Agreement must fail.
`
`(2)
`
`There is no evidence of any direct benefit to Singtel from the 2012
`Agreement.
`
`
`
`Even assuming, arguendo, that Finjan could demonstrate “foreseeability,” it has
`
`nevertheless failed to present any evidence that Singtel received a direct benefit from the 2012
`
`Agreement. Delaware courts have strictly construed what constitutes a “direct benefit,” limiting
`
`it to benefits flowing from the contract directly to the non-signatory. See, e.g., Partners & Simons,
`
`Inc. v. Sandbox Acquisitions, LLC, No. 20-0776, 2021 Del. Ch. LEXIS 162, at * (Ch. July 26,
`
`2021) (no “direct benefit” to non-signatory, even where non-signatory benefitted monetarily from
`
`the sales and closing process that occurred pursuant to the agreement). To show a “direct benefit,”
`
`Finjan must identify “something in the contract – a term or some reference to a separate agreement
`
`– that required a direct payment or conveyance of other benefits” to Singtel. Eastman Chem., No.
`
`09-971, 2011 U.S. Dist. LEXIS 158477, at *36. “An indirect benefit is not enough.” Truinject
`
`9
`
`

`

`Case 1:20-cv-00371-LPS Document 102 Filed 09/10/21 Page 14 of 20 PageID #: 3618
`
`
`
`Corp. v. Nestle Skin Health S.A., No. 19-592-LPS-JLH, 2019 U.S. Dist. LEXIS 215313, at *31
`
`(D. Del. Dec. 13, 2019).
`
`
`
`Finjan has not pointed to anything in the 2012 Agreement that provides a direct benefit to
`
`Singtel. That also is not surprising given that the 2012 Agreement was negotiated and executed
`
`three years before Singtel acquired Trustwave. Finjan argues that Singtel “benefitted enormously”
`
`by acquiring Trustwave, which, according to Finjan, allowed Singtel to “obtain[] access to the U.S.
`
`cybersecurity market,” “expand[] into new markets,” and “take advantage of business
`
`opportunities in the U.S.” (D.I. 95 at p. 10). But none of these supposed benefits, even if true,
`
`have anything to do with the 2012 Agreement; they are a result of Singtel’s acquisition of
`
`Trustwave generally. Moreover, even if Finjan could show that these benefits did flow, in part,
`
`from the 2012 Agreement, none of them flowed directly to Singtel under the Agreement.4 They
`
`are nothing more than the indirect benefits that flow to a parent corporation when its subsidiaries
`
`receive benefits under contracts. Eastman Chem., No. 09-971, 2011 U.S. Dist. LEXIS 158477, at
`
`*36 (noting that the court had found “no instance where a parent corporation was held to be bound
`
`by a forum selection clause in an agreement executed by a subsidiary, absent facts showing for
`
`more than the general, indirect benefits that a parent corporation might have received from any
`
`transaction involving a subsidiary”); Phunware, Inc. v. Excelmind Grp. Ltd., 117 F. Supp. 3d 613,
`
`631 (D. Del. 2015) (no “direct benefit” where only contractual benefit to non-signatory was due
`
`to its status as a majority shareholder in the signatory); see also Neurvana, No. 19-34, 2019 Del.
`
`Ch. LEXIS 995, at *10-11 (no “direct benefit” where “[a]ny profits or other benefits [the parent
`
`
`4 Finjan also claims that Singtel “directly benefitted from having no diminution of rights from
`the [2012 Agreement], as expressly discussed in the Merger Agreement.” (D.I. 95 at pp. 10-11).
`But, as explained above, the Merger Agreement says nothing about any diminution of Singtel’s rights
`because Singtel had no rights under, the 2012 Agreement. Any benefit to Singtel was through
`Trustwave.
`
`10
`
`

`

`Case 1:20-cv-00371-LPS Document 102 Filed 09/10/21 Page 15 of 20 PageID #: 3619
`
`
`
`non-signatory] could derive from the Purchase Agreement would be indirect, in that they would
`
`only materialize through a separate agreement with [the subsidiary signatory]”). Finjan cannot
`
`demonstrate that Singtel is “closely related” to the 2012 Agreement. Under Delaware law, Singtel
`
`cannot be bound to the forum selection clause.
`
`II.
`
`FINJAN IDENTIFIES NO FACTS THAT WOULD SUPPORT SPECIFIC
`JURISDICTION OVER SINGTEL IN DELAWARE.
`
`
`
`Finjan also argues that there is personal jurisdiction over Singtel pursuant to subsections
`
`(c)(1) and (c)(3) of Delaware’s long-arm statute. (D.I. 95 at p. 11). Both subsections are specific
`
`jurisdiction provisions that require a nexus between the described conduct (which must have
`
`occurred in Delaware) and Finjan’s claim. LaNuova D&B, S.p.A. v. Bowe Co., Inc., 513 A.2d 764,
`
`768 (Del. 1986). That is, in order for personal jurisdiction to attach under subsections (c)(1) or
`
`(c)(3), Finjan must point to facts demonstrating that, in connection with this dispute, Singtel
`
`transacted business in Delaware or caused a tortious injury in Delaware. But Finjan says not one
`
`word about Delaware, other than citing to the Delaware statute. (D.I. 95 at pp. 11-13). That is
`
`because there are no such facts relating to Singtel in Delaware
`
`
`
`Instead, Finjan claims that, because Trustwave and other Singtel subsidiaries operate and
`
`generate revenue in the United States, Singtel must be subject to jurisdiction under the Delaware
`
`long-arm statute, even though none of this conduct is alleged to have taken place in Delaware or
`
`in connection with the claims in the case. Moreover, mere ownership of an entity that does
`
`business in the United States is not sufficient to confer personal jurisdiction. Monsanto Co. v.
`
`Syngenta Seeds, Inc., 443 F. Supp. 2d 636, 645 (D. Del. 2006) (“the mere fact that a non-Delaware
`
`corporation owns a Delaware subsidiary is not sufficient in itself to justify Delaware’s exercise of
`
`personal jurisdiction over the non-Delaware parent” where none of the claims at issue arose from
`
`the act of incorporation itself); see also Eurofins Pharma US Holdings v. BioAlliance Pharma SA,
`
`11
`
`

`

`Case 1:20-cv-00371-LPS Document 102 Filed 09/10/21 Page 16 of 20 PageID #: 3620
`
`
`
`623 F.3d 147, 156 (3d Cir. 2010) (“[B]eing the foreign parent of a Delaware subsidiary, without
`
`more, is insufficient to confer personal jurisdiction over a nonresident defendant under the
`
`Delaware long-arm statute.”); AeroGlobal Cap. Mgmt., LLC v. Cirrus Indus., Inc., 871 A.2d 428,
`
`439 (Del. 2005) (concluding that ownership of a Delaware corporation “does not, without more,
`
`amount to the transaction of business under [subsection (c)(1) of] Delaware's Long Arm Statute”).
`
`
`
`Finjan tries to overcome this by making repeated, unsubstantiated references to Singtel’s
`
`subsidiaries as its agents in the United States. Finjan alleges that “multiple Singtel subsidiaries
`
`are Singtel’s agents”; that “jurisdictional discovery shows that Trustwave, Singtel Cyber Security,
`
`and Optus Security are Singtel’s agents for jurisdictional purposes”; that “Trustwave is one of
`
`Singtel’s agents supporting jurisdiction under the long-arm statute.” (Supplemental Brief at
`
`pp. 11-12). Finjan, of course, cites no supporting facts. Its unsubstantiated statements come
`
`nowhere close to satisfying the test necessary to establish personal jurisdiction through agency.
`
`See, e.g., ACE & Co. v. Balfour Beauty PLC, 148 F. Supp. 2d 418, 424-25 (D. Del. 2001) (“The
`
`agency theory [of personal jurisdiction] requires not only that the precise conduct shown to be
`
`instigated by the parent be attributable to the parent, but also that such conduct satisf[ies]
`
`§ 3104(c)(1); i.e., that the jurisdictional conduct take place in Delaware.”).
`
`
`
`Finjan also misstates the evidence.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`12
`
`

`

`Case 1:20-cv-00371-LPS Document 102 Filed 09/10/21 Page 17 of 20 PageID #: 3621
`
`
`
`
`
` There are also no facts indicating that Singtel and its subsidiaries “intermingl[ed] business
`
`plans and finances,” as Finjan says. (D.I. 95 at p. 13). All of the evidence is to the contrary, as
`
`Singtel has previously explained. (See D.I. 55 at pp. 3-5).
`
`
`
`In short, Finjan does not identify a single act by Singtel connected to the claims in this case
`
`that was directed at Delaware.
`
`III. RULE 4(K)(2) DOES NOT CONFER PERSONAL JURISDICTION OVER
`SINGTEL
`
`
`
`Finjan continues to advance an argument under Fed. R. Civ. P. 4(k)(2), even though it
`
`never pled this theory in its complaint. “Rule 4(k)(2), colloquially known as the federal long-arm
`
`statute, allows a court to exercise jurisdiction over a foreign defendant that is not subject to the
`
`jurisdiction of the courts of general jurisdiction of any state, but has sufficient aggregate contacts
`
`with the United States such that the exercise of jurisdiction would comport with due process.”
`
`You Map, Inc. v. Snap Inc., No. 20-162-CFC, 2021 U.S. Dist. LEXIS 139524, at *13 n.7 (D. Del.
`
`July 27, 2021) (citing Saudi v. Acomarit Maritimes Servs., S.A., 114 F. App’x 449, 455 (3d Cir.
`
`2004)). “Rule 4(k)(2) was enacted by the 1993 amendments to the Federal Rules of Civil
`
`Procedure in order to ‘close[ ] a loophole’ that existed when a foreign defendant had sufficient
`
`contacts with the United States to justify the exercise of jurisdiction, but lacked sufficient contacts
`
`with any single state to satisfy a state long-arm statute or the due process constraints of the
`
`Fourteenth Amendment.” TriDinetworks Ltd. v. NXP USA, Inc., No. 19-1062-CFC-CJB, 2020 WL
`
`2220152, at *3 (D. Del. May 7, 2020).
`
`
`
`There are three prongs to a Rule 4(k)(2) analysis: “(1) the plaintiff’s claim arises under
`
`federal law, (2) the defendant is not subject to jurisdiction in any state’s courts of general
`
`13
`
`

`

`Case 1:20-cv-00371-LPS Document 102 Filed 09/10/21 Page 18 of 20 PageID #: 3622
`
`