Case 1:20-cv-00371-LPS Document 97 Filed 08/24/21 Page 1 of 79 PageID #: 3453
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`Redacted: Public Version
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`Case 1:20-cv-00371-LPS Document 97 Filed 08/24/21 Page 2 of 79 PageID #: 3454
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`B.
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`C.
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`TABLE OF CONTENTS
`INTRODUCTION ...............................................................................................................1
`NATURE AND STAGE OF THE PROCEEDINGS AND STATEMENT OF FACTS ....2
`A.
`Finjan Established at Least One Basis for Denying Singtel’s Motion to Dismiss
`and Granting Jurisdictional Discovery .....................................................................2
`Jurisdictional Discovery Revealed Additional Facts About Singtel’s Merger
`with Trustwave and U.S. Activities .........................................................................3
`Jurisdictional Discovery Shows Singtel’s Cyber Operating Units Generate
`Hundreds of Millions of Dollars Annually, Including in the United States ............5
`SUMMARY OF ARGUMENT ...........................................................................................7
`ARGUMENT .......................................................................................................................8
`A.
`The Singtel-Trustwave Merger Agreement Demonstrates Singtel’s Knowing
`Consent to Jurisdiction .............................................................................................9
`Singtel’s U.S. Activities and Revenue Support Personal Jurisdiction Because It
`Sells Cybersecurity Products and Services Through Its Agents ............................11
`Alternatively, Jurisdiction Under Rule 4(k)(2) is Appropriate ..............................13
`C.
`CONCLUSION ..................................................................................................................14
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`B.
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`i
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`Case 1:20-cv-00371-LPS Document 97 Filed 08/24/21 Page 3 of 79 PageID #: 3455
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`TABLE OF AUTHORITIES
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`Cases
`Baker v. Impact Holding, Inc.,
`Civil Action No. 4960-VCP, 2010 Del. Ch. LEXIS 111 (Ch. May 13, 2010) ......................... 10
`Cephalon, Inc. v. Watson Pharms., Inc.,
`629 F. Supp. 2d 338 (D. Del. 2009) .......................................................................................... 11
`Grober v. Mako Prods. Inc.,
`686 F.3d 1335 (Fed. Cir. 2012)................................................................................................. 13
`LaNuova D & B, S.p.A. v. Bowe Co.,
`1986 Del. LEXIS 1140, 513 A.2d 764 (D. Del. 1986) ............................................................. 11
`Nuance Commc’ns, Inc. v. Abbyy Software House,
`626 F.3d 1222 (Fed. Cir. 2010)............................................................................................. 8, 13
`Robert Bosch LLC v. Alberee Prods.,
`2016 U.S. Dist. LEXIS 111124 (D. Del. Mar. 22, 2016) ......................................................... 11
`Synthes (U.S.A.) v. G.M. Dos Reis Jr. Ind. Com de Equip. Medico,
`563 F.3d 1285 (Fed. Cir. 2009)................................................................................................. 13
`Touchcom, Inc. v. Bereskin & Parr,
`574 F.3d 1403 (Fed. Cir. 2009)................................................................................................. 13
`Wesley-Jessen Corp. v. Pilkington Visioncare, Inc.,
`863 F. Supp. 186 (D. Del. 1993) ......................................................................................... 11, 13
`Statutes
`Del. Code Ann. Tit. 10 § 3104(c)(1) ..................................................................................... 1, 7, 11
`Del. Code Ann. Tit. 10 § 3104(c)(3) ..................................................................................... 1, 7, 11
`Rules
`Fed. R. Civ. P. 4(k)(2)..................................................................................................... 1, 8, 13, 14
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`ii
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`INTRODUCTION
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`Singtel’s attempt to escape jurisdiction here fails for at least the following reasons:
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`• Finjan and Trustwave’s 2012 Amended and Restated Patent License Agreement
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`(Exhibit B to the First Amended Complaint) (the “Contract”) is governed by
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`Delaware law with disputes to be resolved here.
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` Singtel’s
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`attempts to muddy the waters with rhetoric does not change the fact that it wanted
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`the benefits and obligations of the Contract – including the choice of law and forum
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`selection provisions.
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`• Singtel’s agents (including all of its cyber operating units) sell cybersecurity
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`products and services globally as a single entity.
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` Specific personal jurisdiction is proper over Singtel under the Delaware
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`long-arm statute based on its agents’ activities giving rise to patent infringement
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`and breach of contract. Del. Code Ann. Tit. 10 § 3104(c)(1), (3).
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`• This Court is the only place for Finjan to assert and recover for Singtel’s breach of
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`contract and patent infringement, as Singtel has sufficient contacts with the United
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`States as a whole to support jurisdiction under Fed. R. Civ. P. 4(k)(2) even if Finjan
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`1
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`cannot establish specific jurisdiction in this Court.
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`Finjan’s jurisdictional discovery confirms these key conclusions that establish personal
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`jurisdiction.
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`
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`NATURE AND STAGE OF THE PROCEEDINGS AND STATEMENT OF FACTS
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`A.
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`Finjan Established at Least One Basis for Denying Singtel’s Motion to
`Dismiss and Granting Jurisdictional Discovery
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`Finjan’s Amended Complaint alleges that Singtel: (1) breached the Contract by failing to
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`pay the required sums; and (2) infringes Finjan’s U.S. Patent No. 8,141,154 (the “’154 patent”).
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`See Amended Complaint, D.I. 28. Singtel moved to dismiss for lack of personal jurisdiction,
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`which the parties briefed. D.I. 31, 32, 49, 55. The Court held a hearing on May 7, 2021, stating
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`in relevant part:
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`While I can’t tell you whether the plaintiff has stated one, two or three non-frivolous
`bases for Singtel to be a party here, I believe they stated at least one, and I do need
`to give more thought to exactly how I'm going to explain that and that will be the
`subject of an opinion at some point, but I don't think it makes sense for me to wait
`for you all to do the jurisdictional discovery while I’m working on my opinion, the
`point being the opinion is also going to explain why I think there’s at least one non-
`frivolous basis for personal jurisdiction and it's going to say there needs to be
`jurisdictional discovery. And so I want you all to get started figuring out when
`you’re going to do that jurisdictional discovery and come up with a schedule to get
`me some sort of supplemental brief at the conclusion of that jurisdictional discovery
`and then I will use all of that and, if necessary, another oral argument to put together
`an opinion that will explain everything about how we got to that point.
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`See Ex. 1 (Hearing Transcript) at 45:25-46:17. After the Court ordered Singtel to provide
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`jurisdictional discovery, the parties conferred about the scope and timing of that discovery,
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`culminating in a joint status report to the Court. D.I. 78. Singtel ultimately agreed to update
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`responses to interrogatories, produce certain documents, and provide a deposition of Mr. Kung
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`2
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`
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`Yang Quah, a Singtel officer.1
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`B.
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`Jurisdictional Discovery Revealed Additional Facts About Singtel’s Merger
`with Trustwave and U.S. Activities
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`Singtel belatedly produced the 2015 Singtel-Trustwave Merger Agreement (“Merger
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`Agreement”) and supporting disclosures during jurisdictional discovery. See Ex. 2 (Merger
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`Agreement); Ex. 3 (Company Disclosure Letter). Both Finjan and the Court correctly anticipated
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`that those documents would show “that a lot of due diligence was done and Singtel understood
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`that it really was subject to this forum selection clause.” See Ex. 1 (Hearing Transcript) at 19:15-
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`18. The Contract provides a further basis for personal jurisdiction based on its forum selection
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`clause.
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` The Merger Agreement and supporting disclosures confirm that Singtel knowingly
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`acquired all of Trustwave’s rights and obligations in the Contract.
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` Singtel is an
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`“Acquiror” under § 2.5 of the Contract, responsible for the obligations in that earlier agreement.
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`See Amended Complaint, D.I. 28, Ex. B (Contract).
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`Specifically,
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`1
`Singtel did not prepare Kung-Yang Quah to testify on behalf of Singtel or its subsidiaries
`on July 6, 2021, including as to the issues highly relevant to jurisdiction. Singtel’s discovery
`responses regarding the location of Singtel and its subsidiaries’ cybersecurity sales and revenues
`remain deficient, as Singtel limited its responses to only a single parent entity and failed to specify
`the location where revenue is generated by Singtel and/or its subsidiaries. See Ex. 7 (Elman 7/9/21
`Letter) at 1-2. Singtel refused to provide additional discovery.
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`3
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`during due diligence, and
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`Moreover, the Contract was the
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` Thus, Singtel had actual notice of the Contract
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` there can be no legitimate dispute that this Court’s
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`exercise of jurisdiction against Singtel is reasonably foreseeable.
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`More importantly, there is no dispute that Trustwave attempted to obtain Singtel’s
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`requested modification of the Contract — with Singtel’s knowledge — during due diligence. See
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`Amended Complaint, D.I. 28, ¶¶ 39-44, Exs. L-M (discussing the parties’ negotiations, with
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`Singtel’s authority, for a supplemental agreement). However, Singtel and Trustwave failed at their
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`attempts to obtain a supplemental agreement with Finjan, necessitating the instant litigation. In
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`view of these facts, it is unclear how Singtel can argue that it could not have predicted being
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`involved in litigation here. See id. Singtel cannot have it both ways. It cannot receive the rights
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`under the Contract, and then escape its obligations by arguing that this Court’s exercise of
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`jurisdiction is unforeseeable.
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`4
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`Singtel knew from the date of the merger agreement that it could be haled into Court in
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`Delaware and consented to that risk.
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` Finjan asks the Court to properly resolve the issue through the instant litigation against
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`Singtel based on Singtel’s consent to the forum selection clause of the Contract.
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`C.
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`Jurisdictional Discovery Shows Singtel’s Cyber Operating Units Generate
`Hundreds of Millions of Dollars Annually, Including in the United States
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`Alternatively, specific personal jurisdiction exists because Singtel’s cyber operating units
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`generate over $400 million annually in cybersecurity revenues. Jurisdictional discovery confirmed
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` This revenue may be royalty-bearing
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`under the Contract, or the result of infringement of the ’154 Patent. Royalties are owed for
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`products that would infringe a number of Finjan patents, and Finjan has provided the required
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`disclosure of accused products in its Amended Complaint and pursuant to this Court’s rules.2
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`During jurisdictional discovery, Singtel
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`2 Finjan served its Identification of Accused Products under the Court’s Scheduling Order on
`July 21, 2021.
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`5
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`Singtel’s
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`written
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`discovery responses and Mr.
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`Quah’s testimony
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`do not
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`dispute
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`that a
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`significant portion
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`of the revenuelisted
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`publicly by Singtel
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`from these three
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`cyber operating
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`units
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`is generated within the United States.
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` Singtel refused to separate its U.S. cybersecurity revenues
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`from its non-U.S. cybersecurity revenues, even after being directly asked to do so in written
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`discovery and in deposition. See Ex. 7 (Elman 7/9/21 Letter) at 3. Like the
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`
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` Singtel’s production of its U.S. revenue likely will show that its U.S.
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`activities support jurisdiction. All inferences should be drawn in Finjan’s favor at this stage,
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`especially where Singtel refuses to produce U.S. revenue information.
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`SUMMARY OF ARGUMENT
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`1.
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`Singtel consented to personal jurisdiction in this District as a matter of law by
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`acquiring Trustwave, pursuant to §§ 2.5 and 6.4.1 of the Contract. The newly produced
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` There can now be no doubt that Singtel expressly assumed all
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`obligations under the Contract, including the Delaware forum selection clause. No other analysis,
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`such as a minimum contacts analysis, is needed to find jurisdiction. Singtel benefited directly from
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`acquiring Trustwave’s cybersecurity business in the United States, but must also assume
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`corresponding responsibilities.
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`2.
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`As an alternative basis, which Finjan previously briefed and which was borne out
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`during discovery, the Court may exercise specific personal jurisdiction over Singtel under the
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`Delaware long-arm statute based upon Singtel’s involvement in the accused infringing conduct in
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`this District and the activities of its agents, including Trustwave, who has not disputed jurisdiction.
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`Del. Code Ann. Tit. 10 § 3104(c)(1), (3). Jurisdictional discovery also revealed that Singtel
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`generates nearly $400 million in cybersecurity revenue annually (including the products and
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`services at issue here), and a large part is generated in the United States (in an amount Singtel
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`7
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`Case 1:20-cv-00371-LPS Document 97 Filed 08/24/21 Page 11 of 79 PageID #: 3463
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`refuses to reveal publicly or in discovery). Singtel’s disclosures to date of its subsidiaries’
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`activities is clearly sufficient to confer jurisdiction over Singtel with all inferences drawn in
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`Finjan’s favor.
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`3.
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`Lastly, jurisdictional discovery also showed that jurisdiction is proper in this Court
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`to resolve this foreseeable dispute between Finjan and Singtel pursuant to Fed. R. Civ. P. 4(k)(2)
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`since Singtel claims it cannot be sued anywhere in the United States. Discovery revealed that
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`
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` Yet it chose to do
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`
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`nothing, and deceive Finjan. Singtel should not be able to escape liability for the proper portion
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`of damages owed to Finjan in this District by claiming that it does not do business in Delaware
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`specifically. If there is no specific jurisidiction in Delaware, there is jurisdiction in any state,
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`including Delaware, under Rule 4(k)(2).
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`Singtel’s motion to dismiss should be denied on at least the basis specified by the Court
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`previously, and all of the above bases.
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` ARGUMENT
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`Limited jurisdictional discovery further confirms what Finjan already established in
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`opposing Singtel’s motion to dismiss: there is ample basis for personal jurisdiction over Singtel.
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`Singtel consented to jurisdiction in Delaware by buying Trustwave, and had actual knowledge of
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`the Contract when it did so. Moreover, Singtel generates hundreds of millions of dollars per year
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`in cybersecurity revenue in the U.S. through its various subsidiaries, including its agent,
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`Trustwave. Finjan need only make a prima facie showing of jurisdiction. See Nuance Commc’ns,
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`Inc. v. Abbyy Software House, 626 F.3d 1222, 1231 (Fed. Cir. 2010) (citation omitted). Finjan has
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`done more than enough to support the exercise of specific jurisdiction over Singtel. The Court has
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`already indicated as much during the prior oral argument. See Ex. 1 (Hearing Transcript) at 45:25-
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`8
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`Case 1:20-cv-00371-LPS Document 97 Filed 08/24/21 Page
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`46:10.
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`A.
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`The
`Singtel-Trustwave Merger Agreement
`Consentto Jurisdiction
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`Demonstrates
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`Singtel’s Knowing
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`As
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`Finjan
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`established in its initial
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`Opposition,
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`the forum selection clause in the Contract
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`binds Singtel
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`as an
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`Acquirer. Singtel expressly
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`assumedall obligations by buying
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`Trustwave under
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`the
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`plain language
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`of §§
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`2.5 and 6.4.1. See Amended
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`Complaint,
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`D.I. 28, Ex. B, at 9, 13. The
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`newly produced Singtel-Trustwave Merger Agreement proves this obligation well beyond the
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`prima facie level required
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`at this stage. As
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`explained above,
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`This express language supports jurisdiction.
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`Therefore, Singtel actually knew about the Contract, characterized those nghts and
`as
`and sought to continue its benefits after absorbing Trustwave, as
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`obligations
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`P|
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`Case 1:20-cv-00371-LPS Document 97 Filed 08/24/21 Page 13 of 79 PageID #: 3465
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`confirmed by Singtel’s CFO, Mr. Quah. See Exs. 2-4. This alone resolves the personal jurisdiction
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`dispute—the Contract’s Delaware forum selection clause binds Singtel.3
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`Alternatively, the forum selection provision also covers Singtel as a non-signatory
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`beneficiary. Under Delaware law, a forum selection clause applies to a third party if: (1) the forum
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`selection is valid, (2) the non-signatory is a third-party beneficiary or closely related to the contract,
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`and (3) the claim arises from standing relating to the agreement. Baker v. Impact Holding, Inc.,
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`C.A. No. 4960-VCP, 2010 Del. Ch. LEXIS 111, at *11 (Ch. May 13, 2010). A non-signatory can
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`be closely related to a contract in two ways: “1) the party receives a direct benefit from the
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`agreement or 2) it was foreseeable that the party would be bound by the agreement.” Id.
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`Singtel benefitted enormously from receiving the rights to the Contract by buying
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`Trustwave and obtaining access to the U.S. cybersecurity market. Mr. Quah’s testimony supports
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`this conclusions.
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`3
`This applies to both causes of action against Singtel. First, Singtel never attempted to
`distinguish jurisdiction over the breach of contract claim and patent infringement claim in briefing,
`raising it for the first time at the May 7 hearing, and thereby waiving it. See Ex. 1 (Hearing
`Transcript) at 12:19-13:08. Second, the Court denied Finjan’s motion to dismiss Trustwave’s
`license counterclaim and affirmative defenses to Finjan’s infringement claims. Accordingly, both
`the breach and infringement claims against Singtel are related to or arise out of the dispute over
`the Contract.
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`10
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`As set forth above, it was foreseeable that Singtel would be bound by the Contract. These facts
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`confirmed by jurisdictional discovery all demonstrate that this Court has personal jurisdiction over
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`Singtel.
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`B.
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`Singtel’s U.S. Activities and Revenue Support Personal Jurisdiction Because
`It Sells Cybersecurity Products and Services Through Its Agents
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` Aside from the forum selection clause, the Delaware Long-Arm Statute allows
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`jurisdiction over a non-resident or agent of a non-resident who “transacts any business or
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`performs any character of work or service in the State” or “causes tortious injury in the State by
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`an act or omission in this State.” Del. Code Ann. Tit. 10 § 3104(c)(1), (3). The Delaware Supreme
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`Court has explained that subsections (c)(1) and (c)(3) are specific jurisdiction provisions, and
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`therefore, require a “nexus” between the plaintiff’s cause of action and the conduct of the defendant
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`that is the basis for jurisdiction. See LaNuova D & B, S.p.A. v. Bowe Co., 1986 Del. LEXIS
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`1140, 513 A.2d 764, 768 (D. Del. 1986).
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`Such a nexus exists here, as
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` “Agency
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`theory may be applied not only to parents and subsidiaries, but also to companies that are ‘two
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`arms of the same business group,’ operate in concert with each other, and enter into agreements
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`with each other that are nearer than arm's length.” Cephalon, Inc. v. Watson Pharms., Inc., 629 F.
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`Supp. 2d 338, 348 (D. Del. 2009); Wesley-Jessen Corp. v. Pilkington Visioncare, Inc., 863 F. Supp.
`
`186, 188-89 (D. Del. 1993); Robert Bosch LLC v. Alberee Prods., 2016 U.S. Dist. LEXIS 111124
`
`at *2 (D. Del. Mar. 22, 2016). Singtel refused to provide any jurisdictional discovery to refute that
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`Singtel’s approximately $400 million annual revenue was generated inside the United States. See
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`Ex. 7 (Elman 7/9/21 Letter) at 3. Singtel failed to refute Finjan’s allegations that Singtel
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`purposefully avails itself of the benefits of selling its products and services in the United States.
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`Under these circumstances, new jurisdictional discovery also shows that Trustwave,
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`Singtel Cyber Security, and Optus Cyber Security are Singtel’s agents for jurisdictional purposes,
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`and that there is nexus between their acts of selling cybersecurity products and services and
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`Finjan’s causes of action.
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` At a minimum, Trustwave is one of Singtel’s agents
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`supporting jurisdiction under the long-arm statute.
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` This new jurisdictional discovery further supports specific
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`jurisdiction.
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`Mr. Quah testified that
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`Accordingly, for all of the reasons confirmed by Mr. Quah, Trustwave has been critical to Singtel’s
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`U.S. expansion efforts as Singtel’s agent.
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`12
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`Under the Delaware long-arm statute, the acts of an agent are attributable to a parent
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`company, like Singtel here.
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` if the Court
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`declines to exercise the long-arm statute by asserting jurisdiction over Singtel, using Trustwave as
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`its U.S. arm. As in Wesley-Jessen, the two companies here are “two arms of the same business
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`group.” 863 F. Supp. at 189. In that case, intermingling of business plans and finances
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`demonstrated that the entities at issue were effectively one and the same for jurisdictional
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`purposes: “The affidavits show that the business strategies and financial statements of the
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`defendant companies are analyzed as a unit, and these companies present themselves as a unified
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`entity to their employees and to the marketplace.” Id. at 188. The same holds true here for Singtel
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`and Trustwave, based on the documents and testimony above.
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`Any doubts regarding these facts, even though confirmed by Mr. Quah, must be resolved
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`in Finjan’s favor. See Nuance, 626 F.3d at 1231; Grober v. Mako Prods. Inc., 686 F.3d 1335,
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`1345 (Fed. Cir. 2012). Here, the discovery to date exceeds the threshold necessary to establish
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`jurisdiction.
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`C.
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`Alternatively, Jurisdiction Under Rule 4(k)(2) is Appropriate
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`Singtel’s jurisdictional discovery also supports personal jurisdiction based on Rule 4(k)(2),
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`based on Singtel’s overall contacts with the United States. Even assuming that Singtel’s contacts
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`with Delaware do not support jurisdiction in this forum, Singtel has sufficient contacts with the
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`United States as a whole to support jurisdiction. See Touchcom, Inc. v. Bereskin & Parr,
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`574 F.3d 1403, 1415 (Fed. Cir. 2009); Synthes (U.S.A.) v. G.M. Dos Reis Jr. Ind. Com de Equip.
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`Medico, 563 F.3d 1285, 1298-99 (Fed. Cir. 2009) (finding sufficient minimum contacts where
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`foreign company exhibited an accused product at a United States tradeshow but never sold it in
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`the United States).
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`If the Court believes that there is no specific jurisidiction in Delaware based on the
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`13
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`Case 1:20-cv-00371-LPS Document 97 Filed 08/24/21 Page 17 of 79 PageID #: 3469
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`available information about Singtel, there is still jurisdiction in any state under Rule 4(k)(2) based
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`on the facts here. There is no dispute that Singtel’s subsidiaries (including Trustwave) operate in
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`the United States selling the products at issue in this case. A minimum contacts and due process
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`analysis under Rule 4(k)(2) confirms that Finjan should not have to suffer from an inability to
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`exercise its contractual rights anywhere in the United States because Trustwave was sold to a
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`company who claims to be outside this Court’s specific jurisdiction in Delaware. Singtel benefits
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`from the Trustwave brand and business in the United States, and reports Trustwave’s United
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`States’ cybersecurity revenue as its own as
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` It would be inequitable to allow
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`Singtel to receive these benefits but not answer for its domestic liabilities in this Court.
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`CONCLUSION
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`Singtel consented to personal jurisdiction in this District and sells products through its
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`subsidiaries in this District and throughout the United States. Trustwave disclosed
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`,
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`because they wanted to sell cybersecurity products in the United States with the right to practice
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`Finjan’s patents. Yet Singtel comes to this Court claiming to be completely unaware and
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`unbounded by this Contract or its U.S. activities in order to avoid paying Finjan for using its patents
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`and technology.
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`Finjan simply wants what is properly owed to them. If Finjan cannot get relief here, it was
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`cheated out of a fair bargain it made for all disputes under the Contract to be resolved in this forum.
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`That would be an unjust result.
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`For these reasons, and the reasons stated in Finjan’s Opposition, Singtel’s motion to
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`Case 1:20-cv-00371-LPS Document 97 Filed 08/24/21 Page 18 of 79 PageID #: 3470
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`dismiss for lack of personal jurisdiction should be denied.
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` Respectfully submitted,
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`OF COUNSEL:
`Bijal Vakil
`ALLEN & OVERY LLP
`530 Lytton Ave, 2nd Floor
`Palo Alto, CA 94301
`(650) 388-1650
`
`Jeremy T. Elman
`Henry Y. Huang
`WHITE & CASE LLP
`3000 El Camino Real
`2 Palo Alto Square, Suite 900
`Palo Alto, CA 94306
`(650) 213-0300
`
`Dated: August 17, 2021
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`
`
`
`
`
`
`/s/ Jeff Castellano
`Karen E. Keller (No. 4489)
`Jeff Castellano (No. 4837)
`SHAW KELLER LLP
`I.M. Pei Building
`1105 North Market Street, 12th Floor
`Wilmington, DE 19801
`(302) 298-0700
`kkeller@shawkeller.com
`jcastellano@shawkeller.com
`Attorneys for Plaintiff
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`15
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`Case 1:20-cv-00371-LPS Document 97 Filed 08/24/21 Page 19 of 79 PageID #: 3471
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`Case 1:20-cv-00371-LPS Document 97 Filed 08/24/21 Page 19 of 79 PagelD
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`EXHIBIT 1
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`EXHIBIT1
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`Case 1:20-cv-00371-LPS Document 97 Filed 08/24/21 Page 20 of 79 PageID #: 3472
`1
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`IN THE UNITED STATES DISTRICT COURT
`IN AND FOR THE DISTRICT OF DELAWARE
`- - -
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`CIVIL ACTION
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`NO. 20-371 (LPS)
`
`
` - - -
`Wilmington, Delaware
`Friday, May 7, 2021
`1:30 o'clock, p.m.
`***Telephone conference
` - - -
`BEFORE: HONORABLE LEONARD P. STARK, CHIEF JUDGE
` - - -
`
`:::::::::::
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`FINJAN LLC,
`
`Plaintiff,
`
`vs.
`TRUSTWAVE HOLDINGS, INC.,
`and SINGAPORE
`TELECOMMUNICATIONS LIMITED,
`Defendants.
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`
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`APPEARANCES:
`
`SHAW KELLER LLP
`BY: JEFF CASTELLANO, ESQ.
`
`-and-
`
`Valerie J. Gunning
`Official Court Reporter
`
`

`

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`Case 1:20-cv-00371-LPS Document 97 Filed 08/24/21 Page 21 of 79 PageID #: 3473
`2
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`APPEARANCES (Continued):
`
`WHITE & CASE LLP
`BY: BIJAL VAKIL, ESQ. and
` JEREMY T. ELMAN, ESQ.
` (Palo Alto, California)
`
`
`Counsel for Plaintiff
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`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`BY: JACK B. BLUMENFELD, ESQ.
`
`-and-
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`BAKER & HOSTETLER LLP
`BY: JOHN S. LETCHINGER, ESQ.
` (Chicago, Illinois)
`
` -and-
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`BAKER & HOSTETLER LLP
`BY: JARED A. BRANDYBERRY, ESQ.
` (Denver, Colorado)
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`Counsel for Defendants
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`Case 1:20-cv-00371-LPS Document 97 Filed 08/24/21 Page 22 of 79 PageID #: 3474
`3
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` P R O C E E D I N G S
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`(The following telephone conference was held
`beginning at 1:30 p.m.)
`
`THE COURT: Good afternoon, everybody. This is
`Judge Stark. Who is there for the plaintiff, please?
`MR. CASTELLANO: Good afternoon, Your Honor.
`This is Jeff Castellano with Shaw Keller for plaintiff
`Finjan, LLC, and I have on the line with me Bijal Vakil and
`Jeremy Elman from White & Case, and we also have a client
`representative, Julie Mar-Spinola, Finjan's Chief IP Officer
`and Vice President of Legal Operations.
`THE COURT: Okay. Thank you. Good afternoon to
`all of you.
`Who is there, please, for the defendant?
`MR. BLUMENFELD: Good afternoon, Your Honor.
`It's Jack Blumenfeld from Morris Nichols for the defendants
`and also on is are John Letchinger and Jared Brandyberry
`from Baker & Hostetler.
`THE COURT: Okay. Good afternoon to you as
`well. My court reporter is on the line.
`For the record, it's Finjan Holdings, Inc. vs.
`Trustwave Holdings, Inc. and Singapore Telecommunications
`Limited, Civil Action No. 20-371-LPS, and this is the time
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`Case 1:20-cv-00371-LPS Document 97 Filed 08/24/21 Page 23 of 79 PageID #: 3475
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`we set for argument on the two motions.
`Have you all conferred and either way, do you
`have any requests as to how we proceed with argument today?
`First, from plaintiff?
`MR. VAKIL: Good afternoon, Your Honor. This is
`Bijal Vikal from White & Case.
`We have not conferred with the defendant with
`respect to timing, but we would request that we have
`30 minutes for an opening argument and/or to answer any
`questions from Your Honor and reserve 15 minutes for
`rebuttal.
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`THE COURT: Okay. What do defendants think?
`MR. BLUMENFELD: Your Honor, this is Jack
`Blumenfeld.
`We don't have any problem with that. I guess
`maybe implicit in your question was which motion do you want
`to hear first and we're willing to do both of them at the
`same time or separate them. We're going to have two
`different lawyers addressing the two motions.
`THE COURT: Okay. Mr. Vakil, how many folks are
`arguing on your side?
`MR. VAKIL: I will be doing it, Your Honor.
`THE COURT: All right. Well, then, we'll hear
`from Mr. Vakil first. I take it in the 30 minutes, you are
`proposing to address both motions. Is that right?
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`Case 1:20-cv-00371-LPS Document 97 Filed 08/24/21 Page 24 of 79 PageID #: 3476
`5
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`MR. VAKIL: That is correct, Your Honor.
`THE COURT: Okay. And then, Mr. Blumenfeld,
`we'll turn it over to your side to have both individuals
`argue both motions, and then if there's time left for
`Finjan, they'll have their chance, and if there's still time
`left for the defendant, they'll have their chance
`thereafter.
`Any questions before we proceed? Okay. Then,
`Mr. Vakil, you may begin when you are ready.
`MR. VAKIL: Thank you, Your Honor, and
`obviously, if the Court has any specific questions, we would
`be happy answer those first.
`THE COURT: I will interrupt when I need to to
`ask questions, but go right ahead.
`MR. VAKIL: Okay. Thank you, Your Honor. So
`we'd like to first address Singtel's motion to dismiss for
`lack of personal jurisdiction and we have two main arguments
`here.
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`So our first argument is that Singtel expressly
`consented to jurisdiction when it acquired Trustwave. And
`you'll recall, Your Honor, that the gravamen of the
`complaint here relates to a forum selection clause that
`would. That was the parties' 2012 agreement and that clause
`provided for Delaware to be the exclusive jurisdiction to
`resolve the dispute.
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`

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`Case 1:20-cv-00371-LPS Document 97 Filed 08/24/21 Page 25 of 79 PageID #: 3477
`6
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`And in this situation, Singtel purchased
`Trustwave and assumed all of Trustwave's rights and
`obligations. Moreover, during the acquisition process,
`Singtel's general counsel -- and, sorry. I'm sorry.
`Trustwave's general counsel and employee, Annabelle Lewis,
`she was negotiating with Julie Mar-Spinola, our client
`representative, who is on the phone here today, with respect
`to the acquisition, and she represented very clearly that in
`her view and the view of both Trustwave and Singtel and
`their lawyers at Kirkland & Ellis and Fenwick & West, that
`there was no need to obtain any written permission from
`Finjan for Singtel to receive the benefits of the agreement,
`and accordingly, there can be no doubt that Singtel was
`aware of the Finjan agreement during its due diligence of
`Trustwave prior to the acquisition. And at this stage of
`the case, we're at simply the pleading stage where all