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TAYLOR &
PATCHEN, LLP
JONATHAN A. PATCHEN (SBN 237346)
MAX B. TWINE (SBN 296128)
DANIEL P. MARTIN (SBN 306794)
TAYLOR & PATCHEN, LLP
One Ferry Building, Suite 355
San Francisco, California 94111
Telephone: (415) 788-8200
(415) 788-8208
jpatchen@taylorpatchen.com
Email: mtwine@taylorpatchen.com
Email: dmartin@taylorpatchen.com
Attorneys for Defendants ZETTA VENTURE
PARTNERS I, L.P., VOYAGER CAPITAL
FUND IV, L.P., and VOYAGER CAPITAL
FOUNDERS’ FUND IV, L.P.
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
04/17/2019
Clerk of the Court
BY: SANDRA SCHIRO-
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA.
COUNTY OF SAN FRANCISCO
JEREMY HOWARD, an individual,
Plaintiff,
v.
ANTHONY GOLDBLOOM, an individual;
ASH FONTANA, an individual; CURTIS
FEENY, an individual; BENJAMIN
HAMNER, an individual; ZETTA VENTURE
PARTNERS I, L.P., a Delaware limited
partnership; VOYAGER CAPITAL FUND
IV, L.P., a Delaware limited partnership;
VOYAGER CAPITAL FOUNDERS’ FUND
IV, L.P., a Delaware limited partnership; and
DOES | through 25 inclusive,
Defendants.
Case No. CGC-17-561624
DEFENDANTS’ MEMORANDUM OF
POINTS AND AUTHORITIES IN
SUPPORT OF MOTION FOR SINGLE
ASSIGNMENT
Date: May 9, 2019
Time: 9:30 a.m.
Place: Department 206
Honorable Garrett L. Wong
Action Filed:
Trial Date:
September 29, 2017
None Set
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SINGLE ASSIGNMENT: CASE NO. CGC-17-561624TAYLOR &
PATCHEN, LLP
I. INTRODUCTION & BACKGROUND
By this motion, Defendants move for an order assigning this case to one judge for all
purposes. As explained below, such a single assignment “will promote the efficient administration
of justice” by allowing a single judge to learn and manage a case involving eight parties, two
groups of defendants, many witnesses, extensive and international discovery, anticipated motion
practice, and more. See Cal. R. Ct. 3.734. For these reasons, Defendants respectfully request an
order for a single assignment. /d.
Plaintiff Jeremy Howard filed this case—originally with now-dismissed co-plaintiff
Nicholas Gruen—in September 2017. At its core, the Second Amended Complaint allegedly
“seeks to recover millions of dollars in value expropriated by Defendants through their abuses of
corporate power and breaches of their fiduciary duty of loyalty to [Howard]” in connection with a
company formerly known as Kaggle, Inc. See Second Amended Complaint (“SAC”) § 1. To get
there, Howard brings claims against seven Defendants—each formerly an officer, director, or
venture capital investor in Kaggle—based on their alleged misconduct operating, financing, and
eventually selling Kaggle. Jd. §§ 1-2, 23-53. In particular, Howard (a former shareholder)
asserts that Defendant Goldbloom (Kaggle’s former CEO) made “a series of disastrous business
decisions,” and that all Defendants “conspired” to dilute Howard’s shareholdings through a Series
A-1 financing and “enriched” themselves through a merger with Google, LLC (“Google”). See id.
He asserts four claims: (1) breach of fiduciary duty; (2) aiding and abetting breach of fiduciary
duty; (3) unjust enrichment; and (4) constructive trust.
Procedurally, Defendants petitioned to compel arbitration in lieu of answering the
complaint, the denial of which Defendants appealed. After that decision was affirmed, this case
will move forward in this Court, and Defendants respectfully submit that it would be most
efficient to do so with a single judge.
IL. ARGUMENT
California Rule of Court 3.734 permits the assignment of a case to a single judge for all
2
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SINGLE ASSIGNMENT: CASE NO. CGC-17-561624TAYLOR &
PATCHEN, LLP
purposes if doing so “will promote the efficient administration of justice.”! Here, single
assignment will do just that, allowing the assigned judge to learn, oversee, and efficiently manage
the numerous parties and witnesses, complex discovery, and extensive motion practice.
To start, this case involves eight parties and likely numerous percipient witnesses. There
are seven defendants that are divided into two groups: the Individual Defendants (Goldbloom,
Hamner, Fontana, and Feeny) and the VC Defendants (Zetta Venture Partners I, L.P., Voyager
Capital Fund IV, L.P., and Voyager Capital Founders’ Fund IV, L.P.). The two groups have
retained separate counsel and, although Howard’s claims overlap, the claims asserted against them
are different. Compare SAC 4] 54-61 (asserting breach of fiduciary duty claim against the
Individual Defendants) with id. {{] 62-66 (asserting aiding and abetting claim against all
defendants). The number of defendants (and their relative interests and defenses) is likely to result
in additional discovery and motion practice that would benefit from the continuity of judicial
management by a single judge.
The potentially large number of percipient witnesses is also likely to increase the need for
additional case management and oversight. The SAC’s allegations span nearly the entirety of
Kaggle’s existence—from formation in Australia and its move to the United States in 2011, to
allegedly poor business decisions in 2013, a financing in 2015, and a merger with Google in 2017.
This breadth is likely to require participation by numerous third-party witnesses, including former
shareholders, employees, and directors; potential alternative investors in and acquirors of Kaggle;
and partners, advisors, and others in the allegedly “disastrous business decisions.” At least some
of the necessary witnesses, including Howard’s former co-plaintiff Gruen, reside in Australia.
The number of parties and witnesses is likely to result in extensive discovery practice.
Indeed, Howard’s existing discovery highlights the substantial discovery to come: he served each
named defendant with 45-plus requests for production and form interrogatories, and served
' The Local Rules of Court for the San Francisco Superior Court contemplate single assignment.
See, e.g., LRSF 2.11(A)(3) (defining “Designated Case” to mean “single assignment cases,
complex cases,” and others); id. 8.1(B)(1) (contemplating “general civil cases that are assigned to
a single judge’”’).
3
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SINGLE ASSIGNMENT: CASE NO. CGC-17-561624TAYLOR &
PATCHEN, LLP
document subpoenas on Alphabet Inc., Google Inc., Khosla Ventures, and Tunbubudla, Inc. And
that was all served within about one month of serving the original complaint, before Defendants
moved to compel arbitration. Since then, Howard has served three more third-party subpoenas.
Moreover, this case may require the use of letters rogatory or other complex international
procedures to obtain discovery from former co-plaintiff Gruen and others residing in Australia,
where Kaggle was formed and where Howard and Goldbloom used to live. See Cal. Civ. Proc.
Code § 2027.010 (detailing procedures for “[d]epositions in a foreign nation”). Management of
this extensive and complex discovery will be critical to an efficient and just resolution of the case.
Finally, the anticipated motion practice—both substantive and discovery-based—would
also benefit from single assignment. There has already been extensive motion practice to date and
there will likely be more. Defendants will be filing a demurrer and motion to strike, and if
necessary, motions for judgment on the pleadings and motions for summary judgment. Because
the allegations involve the internal affairs of a Delaware company, these motions will require the
interpretation and application of Delaware corporate law. With the long list of potential witnesses
and extensive third-party discovery, it is also likely that there will be discovery disputes. An
assigned judge would be in the best position to learn and manage these disputes when they arise.
Il. CONCLUSION
The complexity and breadth of this case, including the identity of the parties and witnesses,
the extensive (and international) discovery, and the likely motion practice, all warrant the
assignment of a single judge. To do so will facilitate efficient management of discovery and early
identification and resolution of dispositive issues. For the foregoing reasons, Defendants
respectfully request the assignment of a single judge to this case.
Mh
Mi
It
Mt
Ml
Ml
4
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SINGLE ASSIGNMENT: CASE NO. CGC-17-5616241||DATED: April 17, 2019 TAYLOR & PATCHEN, LLP
By: /s/ Jonathan A. Patchen
4 Jonathan A. Patchen
5 Attorneys for Defendants ZETTA VENTURE
PARTNERS I, L.P., VOYAGER CAPITAL
6 FUND IV, L.P., and VOYAGER CAPITAL
FOUNDERS’ FUND IV, L.P.
TAYLOR & 5
pare UF DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SINGLE ASSIGNMENT: CASE NO. CGC-17-561624
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TAYLOR & PATCHEN, LLP JONATHAN A. PATCHEN (SBN 237346) MAX B. TWINE (SBN 296128) DANIEL P. MARTIN (SBN 306794) TAYLOR & PATCHEN, LLP One Ferry Building, Suite 355 San Francisco, California 94111 Telephone: (415) 788-8200 (415) 788-8208 jpatchen@taylorpatchen.com Email: mtwine@taylorpatchen.com Email: dmartin@taylorpatchen.com Attorneys for Defendants ZETTA VENTURE PARTNERS I, L.P., VOYAGER CAPITAL FUND IV, L.P., and VOYAGER CAPITAL FOUNDERS’ FUND IV, L.P. ELECTRONICALLY FILED Superior Court of California, County of San Francisco 04/17/2019 Clerk of the Court BY: SANDRA SCHIRO- Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA. COUNTY OF SAN FRANCISCO JEREMY HOWARD, an individual, Plaintiff, v. ANTHONY GOLDBLOOM, an individual; ASH FONTANA, an individual; CURTIS FEENY, an individual; BENJAMIN HAMNER, an individual; ZETTA VENTURE PARTNERS I, L.P., a Delaware limited partnership; VOYAGER CAPITAL FUND IV, L.P., a Delaware limited partnership; VOYAGER CAPITAL FOUNDERS’ FUND IV, L.P., a Delaware limited partnership; and DOES | through 25 inclusive, Defendants. Case No. CGC-17-561624 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SINGLE ASSIGNMENT Date: May 9, 2019 Time: 9:30 a.m. Place: Department 206 Honorable Garrett L. Wong Action Filed: Trial Date: September 29, 2017 None Set DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SINGLE ASSIGNMENT: CASE NO. CGC-17-561624TAYLOR & PATCHEN, LLP I. INTRODUCTION & BACKGROUND By this motion, Defendants move for an order assigning this case to one judge for all purposes. As explained below, such a single assignment “will promote the efficient administration of justice” by allowing a single judge to learn and manage a case involving eight parties, two groups of defendants, many witnesses, extensive and international discovery, anticipated motion practice, and more. See Cal. R. Ct. 3.734. For these reasons, Defendants respectfully request an order for a single assignment. /d. Plaintiff Jeremy Howard filed this case—originally with now-dismissed co-plaintiff Nicholas Gruen—in September 2017. At its core, the Second Amended Complaint allegedly “seeks to recover millions of dollars in value expropriated by Defendants through their abuses of corporate power and breaches of their fiduciary duty of loyalty to [Howard]” in connection with a company formerly known as Kaggle, Inc. See Second Amended Complaint (“SAC”) § 1. To get there, Howard brings claims against seven Defendants—each formerly an officer, director, or venture capital investor in Kaggle—based on their alleged misconduct operating, financing, and eventually selling Kaggle. Jd. §§ 1-2, 23-53. In particular, Howard (a former shareholder) asserts that Defendant Goldbloom (Kaggle’s former CEO) made “a series of disastrous business decisions,” and that all Defendants “conspired” to dilute Howard’s shareholdings through a Series A-1 financing and “enriched” themselves through a merger with Google, LLC (“Google”). See id. He asserts four claims: (1) breach of fiduciary duty; (2) aiding and abetting breach of fiduciary duty; (3) unjust enrichment; and (4) constructive trust. Procedurally, Defendants petitioned to compel arbitration in lieu of answering the complaint, the denial of which Defendants appealed. After that decision was affirmed, this case will move forward in this Court, and Defendants respectfully submit that it would be most efficient to do so with a single judge. IL. ARGUMENT California Rule of Court 3.734 permits the assignment of a case to a single judge for all 2 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SINGLE ASSIGNMENT: CASE NO. CGC-17-561624TAYLOR & PATCHEN, LLP purposes if doing so “will promote the efficient administration of justice.”! Here, single assignment will do just that, allowing the assigned judge to learn, oversee, and efficiently manage the numerous parties and witnesses, complex discovery, and extensive motion practice. To start, this case involves eight parties and likely numerous percipient witnesses. There are seven defendants that are divided into two groups: the Individual Defendants (Goldbloom, Hamner, Fontana, and Feeny) and the VC Defendants (Zetta Venture Partners I, L.P., Voyager Capital Fund IV, L.P., and Voyager Capital Founders’ Fund IV, L.P.). The two groups have retained separate counsel and, although Howard’s claims overlap, the claims asserted against them are different. Compare SAC 4] 54-61 (asserting breach of fiduciary duty claim against the Individual Defendants) with id. {{] 62-66 (asserting aiding and abetting claim against all defendants). The number of defendants (and their relative interests and defenses) is likely to result in additional discovery and motion practice that would benefit from the continuity of judicial management by a single judge. The potentially large number of percipient witnesses is also likely to increase the need for additional case management and oversight. The SAC’s allegations span nearly the entirety of Kaggle’s existence—from formation in Australia and its move to the United States in 2011, to allegedly poor business decisions in 2013, a financing in 2015, and a merger with Google in 2017. This breadth is likely to require participation by numerous third-party witnesses, including former shareholders, employees, and directors; potential alternative investors in and acquirors of Kaggle; and partners, advisors, and others in the allegedly “disastrous business decisions.” At least some of the necessary witnesses, including Howard’s former co-plaintiff Gruen, reside in Australia. The number of parties and witnesses is likely to result in extensive discovery practice. Indeed, Howard’s existing discovery highlights the substantial discovery to come: he served each named defendant with 45-plus requests for production and form interrogatories, and served ' The Local Rules of Court for the San Francisco Superior Court contemplate single assignment. See, e.g., LRSF 2.11(A)(3) (defining “Designated Case” to mean “single assignment cases, complex cases,” and others); id. 8.1(B)(1) (contemplating “general civil cases that are assigned to a single judge’”’). 3 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SINGLE ASSIGNMENT: CASE NO. CGC-17-561624TAYLOR & PATCHEN, LLP document subpoenas on Alphabet Inc., Google Inc., Khosla Ventures, and Tunbubudla, Inc. And that was all served within about one month of serving the original complaint, before Defendants moved to compel arbitration. Since then, Howard has served three more third-party subpoenas. Moreover, this case may require the use of letters rogatory or other complex international procedures to obtain discovery from former co-plaintiff Gruen and others residing in Australia, where Kaggle was formed and where Howard and Goldbloom used to live. See Cal. Civ. Proc. Code § 2027.010 (detailing procedures for “[d]epositions in a foreign nation”). Management of this extensive and complex discovery will be critical to an efficient and just resolution of the case. Finally, the anticipated motion practice—both substantive and discovery-based—would also benefit from single assignment. There has already been extensive motion practice to date and there will likely be more. Defendants will be filing a demurrer and motion to strike, and if necessary, motions for judgment on the pleadings and motions for summary judgment. Because the allegations involve the internal affairs of a Delaware company, these motions will require the interpretation and application of Delaware corporate law. With the long list of potential witnesses and extensive third-party discovery, it is also likely that there will be discovery disputes. An assigned judge would be in the best position to learn and manage these disputes when they arise. Il. CONCLUSION The complexity and breadth of this case, including the identity of the parties and witnesses, the extensive (and international) discovery, and the likely motion practice, all warrant the assignment of a single judge. To do so will facilitate efficient management of discovery and early identification and resolution of dispositive issues. For the foregoing reasons, Defendants respectfully request the assignment of a single judge to this case. Mh Mi It Mt Ml Ml 4 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SINGLE ASSIGNMENT: CASE NO. CGC-17-5616241||DATED: April 17, 2019 TAYLOR & PATCHEN, LLP By: /s/ Jonathan A. Patchen 4 Jonathan A. Patchen 5 Attorneys for Defendants ZETTA VENTURE PARTNERS I, L.P., VOYAGER CAPITAL 6 FUND IV, L.P., and VOYAGER CAPITAL FOUNDERS’ FUND IV, L.P. TAYLOR & 5 pare UF DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SINGLE ASSIGNMENT: CASE NO. CGC-17-561624