Chan v. Timewarner Class Action Complaint

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1 Jared Peterson, Esq. (CA State Bar No. 270473)

LAW OFFICE OF JARED PETERSON
2 2003 South El Camino Real, Suite 119
Oceanside, CA 92054
3 (866)328-4060
jplaw1@protonmail.com
4
5 Attorney for Plaintiff
Peng Chan, on behalf of himself and all others
6
similarly situated
7
UNITED STATES DISTRICT COURT
8
NORTHERN DISTRICT OF CALIFORNIA
9 SAN JOSE DIVISION
10
11
Peng Chan, on behalf of himself
12
and all others similarly situated,
13
FIRST AMENDED ANTITRUST
14 Plaintiffs, CLASS ACTION COMPLAINT
v.
15
16 TimeWarner, Inc., a Delaware DEMAND FOR JURY TRIAL
corporation; Mazher Mahmood;
17 Jim Barksdale; John Hanke; Chris
18 DeWolfe; News Corporation, Inc.,
a Delaware corporation;
19 Alphabet, Inc., a Delaware
20 corporation; Barry Diller;
Edgar Bronfman, Jr.; Kleiner Perkins
21 Caufield, LLC, a California limited liability
22 company,
23 Defendants.
24 Plaintiff Peng Chan, on behalf of himself and all others similarly situated
25 (Plaintiffs), alleges the following:
26
I. INTRODUCTION
27
28 1. This class action is brought by Plaintiff Peng Chanon behalf of
FIRST AMENDED ANTITRUST CLASS ACTION COMPLAINT
1
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1
2 himself and all others similarly situated (collectively, Plaintiff Class or Sub-
3 Classes or individually, Subclass A, Subclass B, Subclass C, or Subclass

4
D), who have sustained injuries or damages arising out of Defendants (defined
5
6 below) violations of the antitrust and unfair competition laws of the United States
7 and the State of California.
8
2. This action is also brought in a direct and derivative capacity on
9
10 behalf of the classes of shareholders described below.
11 3. This class action is brought pursuant to Rule 23 of the Federal Rules
12
of Civil Procedure.
13
14 4. The class action challenges an antitrust conspiracy to depress the
15 value of Plaintiffs and Intermix Media, Inc. (Intermix) shareholders shares
16
between October 30, 2003 and September 30, 2005 at the time of its sale to News
17
18 Corporation. Intermix used to be known by its former name, eUniverse, which
19
changed its name to Intermix Media, Inc. on or about July 15, 2004. Prior to that
20
time the company was known as eUniverse, Inc.
21
22 5. Plaintiffs owned registrable securities or common stock in Intermix,
23 Inc. (Intermix), formerly known as eUniverse, Inc.
24 6. Intermix was the controlling and majority shareholder and owner of
25 MySpace, Inc. (MySpace) at all relevant times. At all relevant times, MySpace
26 was a shell corporation formed as a holding company for Intermixs most valuable
27 asset, myspace.com. Intermixs value was based primarily on the value of
28 myspace.com. As described in greater detail below, MySpace, Inc. was set
2
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1
up as a shell corporation to sell-off at an unfairly low price to advance the
2
unlawful bid-rigging goals of Defendants and their co-conspirators. Plaintiffs also
3
bring this lawsuit as a class action pursuant to Section 16 of the Clayton Act, 15
4
U.S.C. 26, to enjoin Defendants anticompetitive conduct and for costs of suit,
5
including reasonable attorneys fees, and for such other relief as is afforded under
6
the antitrust laws of the United States.
7
ASKJEEVES THE PUBLICLY TRADED GOOGLE SURROGATE
8
7. Defendant AskJeeves.com was a question-answering-focused web
9
search engine founded in 1995 by Garrett Gruener and David Warthen.
10
8. AskJeeves.com was owned by AskJeeves, Inc. a public search engine
11
company that by October 2003 had determined to partner with Google instead of
12
competing directly.
13
9. Specifically, AskJeeves determined to enter into a long term
14
agreement with Google, allowing Google to sell all of its search engine pay per
15
click advertising inventory. In return, AskJeeves received a share of the gross
16
revenue that Google generated. AskJeeves became increasingly dependent on
17
Google through this commercial relationship.
18
10. One of the greatest weaknesses and fears of AskJeeves was that its
19
larger and stronger commercial partner Google would poach or hire away the most
20
valuable AskJeeves employees as time went on. Further, because of the
21
commercial relationship between Google and AskJeeves, Google was well
22
positioned interacting with AskJeeves employees on a daily basis and learning who
23
the most valuable AskJeeves were. Further, because both companies were in the
24
search engine business, disgruntled AskJeeves employees seeking new
25
opportunities would naturally contact Google as one of their first potential new
26
employers when looking to transition jobs.
27
28 11. AskJeeves by the end of October 2003 had become increasingly at the
3
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1
mercy of Google for 95% of its revenue while hoping its partner did not steal its
2
top employee talent. Further, AskJeeves had to continuously renegotiate the
3
commercial terms of its search advertising revenue share deal with Google. For
4
instance, if Google determined to cut the percentage it paid to AskJeeves,
5
AskJeeves would not be able to meet its financial forecasts and its stock price and
6
market capitalization would likely collapse overnight.
7
8 12. AskJeeves Directors Geoff Yang and David Carlick, by late 2003
9 realized AskJeeves dilemma and determined to make use of the private equity
10 funds they were principals in, VantagePoint Venture Partners (VPVP) and
11 RedPoint Venture Partners (RedPoint) to solve their dilemma.
12
2013 SENSITIVE COMPANY AGREEMENT EVIDENCE
13
13. Before disclosure of the sensitive company agreement by defendants,
14
it was not possible for Plaintiffs to recognize the antitrust conspiracy that
15
shareholders had been victims of before 2013 and 2014 Federal Court disclosures
16
described in more detail below:
17
A.BID RIGGING #1: RIGGING HIRING AGREEMENTS
18
19 (exhibit #1)
20
21
22 Evidence disclosed for the first time May 2013 in the Hitech Class
23 action Case 5:1102509, specifically above is Google seal on the secret
24 agreement agreement for Restricted Hiring, Do Not Cold Call and
25 Sensitive status and Protocol for Sherman Act 1 per se violation of
26 Federal hiring requirements and laws not to violate: document 428-10, page 3
27 (Exhibit #1) proves the existence of a secret agreement between Google and
28 AskJeeves. The companies fraudulently concealed the agreements and failed to
4
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1
disclose them in their annual 10K SEC or Proxy filings, violating security law and
2
Director fiduciary duties.
3
i. Page 3 of Document 428-10, is titled: Special Agreement
4
Hiring Policy Protocol for Restricted Hiring, Do Not Cold Call, and
5
Sensitive Companies. Below the title is a bold line and under the bold line the
6
document further states,
7
Due to our partnerships, the following companies (and by
8 association, their subsidiaries listed in Appendix B) fall under the
Sensitive companies list:
9
Parent Companies: lists Ask.com
10
ii. Page 9-10 of Document 428-10, has list titled: Appendix B
11
and in such section Ask.com is listed.
12
14. Directorial and above candidates, at technology companies, such as
13
AskJeeves, are in high demand because they have the ability and skill set necessary
14
to manage specialized technology laborthey manage the managers of skilled
15
labor. Further, they perform exceedingly difficult and high level tasks that take
16
extraordinary expertise. Thus, a secretive Sensitive Company Agreement between
17
AskJeeves and Google was extremely valuable.
18
15. It is believed that no later than March 2005, AskJeeves and Google
19
entered into the Sensitive Company Agreement which placed anti-competitive and
20
restrictive measures on the hiring capabilities of Google, according to the
21
following material terms:
22
Executive Recruiting: Inform EMG [i.e. Executive Management
23 Group] of any Director level or above candidate who we have
engaged and who is starting the interview process at Google.
24
Executive Recruiting: If we go to offer with a Director or above
25 candidate, Staffing should inform EMG and EMG will designate a
senior exec to place a courtesy call into the Sensitive company to let
26 them know we have made an offer;
27 o And by exception, when EMG deems necessary, calling into a
Sensitive company to indicate we will be making an offer.
28
5
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1 General Recruiting: For any non-exec position, we should be aware

that the company is on the Sensitive Company list but there are no
2 restrictions to our recruiting from these companies at junior levels.
3 16. The above-referenced agreement shall be referred to herein as the
4 Sensitive Company Agreement.
5 17. The Sensitive Company Agreement effectively put the company being
6 recruited from (Target Company) on actual notice that the recruiting company
7 (Recruiting Company) had acted, or was about to act, thereby providing the
8 Target Company an opportunity to object to the Recruiting Companys intention to
9 make an offer, or otherwise dissuade the Recruiting Company from making or
10 consummating such offer.
11 18. The Sensitive Company Agreement between Google and AskJeeves
12 was all a part of and an antecedent to the overarching bid-rigging conspiracy, and
13 unreasonably restrained trade in violation of the Sherman Act (15 U.S.C. 1), and
14 the Cartwright Act (Cal. Bus. & Prof. Code 16720, et seq.), and constituted
15 unfair competition and unfair practices in violation of Californias Unfair
16 Competition Law, California Business & Professions Code sections 17200, et seq.
17 and 16600. These agreements resulted in defendant Google refusing, and or
18 severely deterring Google from competitively seeking contracts with AskJeeves
19 and later its new parent company IAC Corporations directorial level or above
20 candidates.
21 19. AskJeeves and Google secretly entered into, implemented, an
22 policed the Sensitive Company Agreement with the knowledge of overall
23 conspiracy, and did so with the intent and effect of fixing the compensation of the
24 employees belonging to Google and AskJeeves at artificially low levels.
25 20. For example, if and when Google made (or planned on making) an
26 offer to hire an AskJeeves directorial employee or above candidate, Googles top
27 officers were required by the Sensitive Company Agreements to make a courtesy
28 call into AskJeeves top officers to inform them of their hiring intent or the fact
6
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1
that it had made an offer. This courtesy call necessarily breached the AskJeeves
2
employees privacy rights and expectations by placing their current employer
3
(AskJeeves) on notice of the employees attempt to leave AskJeeves without their
4
consent. Simultaneouslyand more importantlythe courtesy call also
5
diminished the AskJeeves employees chances of being hired by Google, and
6
diminished her or his chances of being hired at market rates for several reasons.
7
21. First, the required courtesy call scheme suppressed the competitive
8
bidding and rigged the counteroffer process by tipping one company off to what
9
the other was willing to pay.
10
22. Second, that Google was required to make a courtesy call to the top
11
officers at AskJeeves to hire any of AskJeeves directorial and above candidates
12
under the Sensitive Company Agreement was a serious deterrent to Google
13
recruitment of employees from AskJeeves because they would have to tacitly seek
14
AskJeeves approval. In other words, Google, as a party to the Sensitive Company
15
Agreement, was deterred from recruiting by making so-called courtesy calls
16
thereby disclosing all of its hirings and its hiring intentions.
17
23. Third, the required courtesy call permitted AskJeeves officers an
18 opportunity to either dissuade Google from hiring AskJeeves employees, or to
19 dissuade Google from paying too much for the AskJeeves employee whose
20 disloyalties were now revealed to AskJeeves.
21 24. Fourth, the courtesy call enabled Google to either refrain from
22 making an employment offer, or to rescind its employment offer if after speaking
23 with AskJeeves officers, Google learned damaging information about either the
24 recruited employee or AskJeeves level of desire to keep the employee. As a
25 result, the ability of AskJeeves employees at director and above levels to obtain
26 employment at Google was significantly reduced, and, as a result, the ability of
27 AskJeeves employees at director and above levels to obtain wages at competitive
28 fair market rates was significantly suppressed.
7
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1 25. The aforementioned anticompetitive effects were all a purpose of the

2 Sensitive Company Agreement and as explained below served as the impetus to
3 the bid-rigging scheme.
4 26. The only issue for Google, AskJeeves, and IAC was that such a no-
5 poach or no-hire agreement was illegal and a per se violation of State and
6 Federal antitrust laws.
7 THE GOOGLE AND TIMEWARNER/AOL SPECIAL AGREEMENT
8 27. Google had grown the number of undisclosed illegal agreements in
9 place significantly from its initial Special Agreement with AskJeeves. As of
10 March 6, 2005 or earlier, TimeWarner/AOL had joined the conspiracy violating
11 Federal antitrust statues.
12 i. Page 3 of Document 428-10 (Exhibit #1), is titled: Special
13 Agreement Hiring Policy Protocol for Restricted Hiring, Do Not Cold Call,
14 and Sensitive Companies. Below the title is a bold line and under The bold line
15 the document further states,
16 Due to our partnerships, the following companies (and by
association, their subsidiaries listed in Appendix B) fall under the
17 Sensitive companies list:
18 Parent Companies: lists AOL, Inc.
19 ii. Page 9-10 of Document 428-10, has list titled: Appendix B
20 and in such section AOL, Inc. is listed
21 iii. In addition, AOL is listed as the Parent Company in Appendix
22 B for another Company it owns, Advertising.com.
23
28. Directorial and above candidates, at technology companies, such as
24
AOL, are in high demand because they have the ability and skill set necessary
25
to manage specialized technology laborthey manage the managers of skilled
26
labor. Further, they perform exceedingly difficult and high level tasks that take
27
extraordinary expertise. Thus, a secretive Sensitive Company Agreement between
28
8
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1 AOL and Google was extremely valuable.

2 29. It is believed that no later than March 2005, AOL and Google
3 entered into the Sensitive Company Agreement which placed anti-competitive and
4 restrictive measures on the hiring capabilities of Google, according to the
5 following material terms:
6 Executive Recruiting: Inform EMG [i.e. Executive Management
Group] of any Director level or above candidate who we have engaged and
7 who is starting the interview process at Google.
8 Executive Recruiting: If we go to offer with a Director or above
candidate, Staffing should inform EMG and EMG will designate a senior
9 exec to place a courtesy call into the Sensitive company to let them know we
have made an offer;
10
o And by exception, when EMG deems necessary, calling into a
11 Sensitive company to indicate we will be making an offer.
12 General Recruiting: For any non-exec position, we should be aware
that the company is on the Sensitive Company list but there are no
13 restrictions to our ]recruiting from these companies at junior levels. . . .
14 30. The above-referenced agreement shall be referred to herein as the
15 Sensitive Company Agreement.
16 31. The Sensitive Company Agreement effectively put the company being
17 recruited from (Target Company) on actual notice that the recruiting company
18 (Recruiting Company) had acted, or was about to act, thereby providing the
19 Target Company an opportunity to object to the Recruiting Companys intention to
20 make an offer, or otherwise dissuade the Recruiting Company from making or
21 consummating such offer.
22 32. The Sensitive Company Agreement between Google and AOL
23 was all a part of and an antecedent to the overarching bid-rigging conspiracy, and
24 unreasonably restrained trade in violation of the Sherman Act (15 U.S.C. 1), and
25 the Cartwright Act (Cal. Bus. & Prof. Code 16720, et seq.), and constituted
26 unfair competition and unfair practices in violation of Californias Unfair
27 Competition Law, California Business & Professions Code sections 17200, et seq.
28 and 16600. These agreements resulted in defendant Google refusing, and or
9
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1
severely deterring Google from competitively seeking contracts with AOLs
2
directorial level or above candidates.
3
33. AOL and Google secretly entered into, implemented, an
4
policed the Sensitive Company Agreement with the knowledge of overall
5
conspiracy, and did so with the intent and effect of fixing the compensation of the
6
employees belonging to Google and AOL at artificially low levels.
7
34. For example, if and when Google made (or planned on making) an
8
offer to hire an AOL directorial employee or above candidate, Googles top
9
officers were required by the Sensitive Company Agreements to make a courtesy
10
call into AOLs top officers to inform them of their hiring intent or the fact
11
that it had made an offer. This courtesy call necessarily breached the AOL
12
employees privacy rights and expectations by placing their current employer
13
(AOL) on notice of the employees attempt to leave AOL without their
14
consent. Simultaneouslyand more importantlythe courtesy call also
15
diminished the AOL employees chances of being hired by Google, and
16
diminished her or his chances of being hired at market rates for several reasons.
17
35. First, the required courtesy call scheme suppressed the competitive
18
bidding and rigged the counteroffer process by tipping one company off to what
19
the other was willing to pay.
20
36. Second, that Google was required to make a courtesy call to the top
21
officers at AOL to hire any of AOLs directorial and above candidates
22
under the Sensitive Company Agreement was a serious deterrent to Google
23
recruitment of employees from AOLs because they would have to tacitly seek
24
AOLs approval. In other words, Google, as a party to the Sensitive Company
25
Agreement, was deterred from recruiting by making so-called courtesy calls
26
thereby disclosing all of its hirings and its hiring intentions.
27
37. Third, the required courtesy call permitted AOL officers an
28 opportunity to either dissuade Google from hiring AOLs employees, or to
10
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1 dissuade Google from paying too much for the AOL employee whose
2 disloyalties were now revealed to AOL.
3 38. Fourth, the courtesy call enabled Google to either refrain from
4 making an employment offer, or to rescind its employment offer if after speaking
5 with AOL officers, Google learned damaging information about either the
6 recruited employee or AOLs level of desire to keep the employee. As a
7 result, the ability of AOLs employees at director and above levels to obtain
8 employment at Google was significantly reduced, and, as a result, the ability of
9 AOL employees at director and above levels to obtain wages at competitive
10 fair market rates was significantly suppressed.
11 39. The aforementioned anticompetitive effects were all a purpose of the
12 Sensitive Company Agreement and as explained below served as the impetus to
13 the bid-rigging scheme.
14 40. The only issue for Google and AOL was that such a no-poach or
15 no-hire agreement was an illegal per se violation of Federal antitrust laws.
16 i. Plaintiffs fully incorporate by reference the findings by Federal
17 Judge Koh in Case No. 5:11-cv-02509: ORDER DENYING DEFENDANTS

18 INDIVIDUAL MOTIONS FOR SUMMARY JUDGMENT (Exhibit #3).
19 THE NEWS CORPORATION GENTLEMENS AGREEMENT
20 41. Further, the fact that News Corporation had also entered into the same
21 type of unlawful agreements was not known or knowable but were integral to the
22 bid rigging scheme further described below to Plaintiff before July 11, 2014 , when
23 such new evidence was disclosed for the first time in Case No. 5:11-cv-02509.
24 Before that time, Plaintiff was unaware News Corporation had entered into such
25
Gentlemens Agreements (Exhibit #2, document #964-7, page 2).
26
27 ii. Plaintiffs fully incorporate by reference the findings by Federal
28 Judge Koh in Document#147 Filed 08/20/15 in Case No:5:14-cv-04062-LHK:
11
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(.%3@%.(&
1
2 ORDER DENYING DEFENDANTS JOINT MOTION TO DISMISS
(Exhibit #4).
3
4 THE MISSING 2005 ONLINE SEARCH PARTNERSHIP AUCTION
5 42. According to company documents and testimony of former head of

6 online search and CEO and founder of MySpace.com and Issuer, Issuer had
7 opportunity to run a search auction as of at least July 2005 between at least
8 Google, Yahoo, Microsoft, AskJeeves, IAC Corporation, and AOL.
9
43. In 2005, a key scheme by defendants plays out when Intermixs
10
existing search engine partnership with Yahoo quietly ends prior to the shareholder
11
vote. Intermix defers closing a new direct search partnership deal until after News
12
Corp has closed the transaction.
13
44. During this time frame, Google did not make a bid to be the exclusive search
14
engine for myspace.com when the Yahoo Contract ended. Google did not engage
15
Intermix for these rights because it had secretly come to an agreement with
16
AskJeeves not to make the bid until Intermix and its asset, myspace.com, was
17
acquired by News Corp.
18
19 45. In exchange, AskJeeves asked Google to enter into a Sensitive
20 Company Agreement with AskJeeves, whereby Google agreed not to solicit any of
21 AskJeeves directorial executives or above candidates. AskJeeves secret
22 gentlemens agreement with Google was largely responsible for AskJeeves
23 getting acquired for $1.8 billion dollars on July 19, 2005 from IAC. IAC required
24 Google to extend the long term unlawful anti competitive economic benefit to its
25 new subsidiary AskJeeves through the gentlemens agreement that restrained
26 normal hiring practices by the technology companies and suppressed the salaries
27 for employees, unlawfully creating lower operating costs and higher profits.
28 The day before, July 18, 2005, AskJeeves manipulated the
12
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1
Intermix Board of Directors to sign an agreement to sell the more valuable
2
Intermix public company which included Myspace.com to News Corporation for
3
$650 million dollars, a price below fair market value and without waiting for
4
competitor Viacoms imminent bid. News Corporations below fair market value
5
acquisition price relied on Google refusing to competitively seek any exclusive
6
search contract with Intermix or MySpace once the Yahoo contract expired.
7
46. In 2005, News Corp. acquired Intermix/MySpace for $580 million, a
8
pittance compared to what Intermix would have sold for had Intermix and
9
Myspace received the benefit of revenue available from signing a new commercial
10
search engine agreement after the Yahoo contract expired. Had Google been
11
Intermix and Myspaces exclusive search engine partner at the time of News
12
Corp.s acquisition of Intermix and Myspace, Intermix would be worth an amount
13
exponentially greater than the price News Corp. paid for it. But, Google
14
intentionally stayed out of the bidding process during that time because of the bid-
15
rigging conspiracy described above.
16
47. As soon as News Corp. purchased Intermix at a discount and
17
controlled Intermix, its holding companies and its most valuable website asset,
18
Myspace.com, Google was able to secure an exclusive myspace.com search
19
engine contract for $900 million in guaranteed payments through 2010. Had
20
Google made such a bid a year prior, when Intermix was being acquired by News
21
Corp, the acquisition price for Intermix would have been far greater.
22
i. News Corp bragged about its coup, In one fell swoop, Chernin said
23
We have gotten a 70% premium on our Myspace investment and are
24 now playing with house money. (Google in $900m ad deal wih
Myspace Financial Times, August 8, 2006, by Aline van Duyn)
25
26 ii. For Google, blocking its parent company from signing a new
27 commercial agreement with Yahoo and instead forcing Myspace to promote its
28 own paid search service, was worth tens of billions of dollars because it allowed
13
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1
Google to grow its share of the paid search marketplace for the first time ever to
2
over 50% by 2007. Controlling over 50% market share allowed Google to begin
3
charging 2X or higher per click versus all its competitors and Google has used this
4
advantage to dominate the paid search industry ever since.
5
48. The Sensitive Company Agreement unreasonably restrained trade and
6
constituted unfair competition and unfair practices. This agreement resulted in
7
Google refusing to competitively seek any exclusive search contract with MySpace
8
once the Yahoo Contract expired, and resulted in AskJeeves, Yang and Carlick
9
causing neither Intermix Nor Myspace to renew an exclusive search engine
10
relationship with Yahoo all to the detriment of the shareholders of Intermix.
11
49. Plaintiffs seek to recover the difference between the price that
12
News Corp. acquired MySpace with AskJeeves acting as the search engine for
13
MySpace, and the value MySpace would have been worth at that same time had
14
Google not agreed to forgo bidding on an exclusive search engine contract with
15
MySpace. Such difference in price is a sum over $32 billion dollars which is
16
calculated as part of a Rule 701 damage report that simply plugs Myspace.coms
17
then fraudulently concealed actual growth rate and revenue into a financial forecast
18
which then makes use of the same digital media valuation comps News
19
Corporations investment banks produced for their client in 2005.
20
i. TimeWarners end goal was receiving a $1 billion dollar
21
investment from Google that valued its AOL division at $20 billion dollars
22
and Google end goal was to lock up access toMySpace.com search
23
Distribution, allowing Google: i) To make financial
24
commitments to investors facilitating its $4.4 billion dollar secondary
25
completed in September 2005. ii) Ensuring the growth of its June 2005
26
36.5% share of US Search market to a 61.5% market share by June 2007.
27
50. The Sensitive Company Agreement unreasonably restrained trade in
28
14
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(&%3@%.(&
1 violation of the Sherman Act, 15 U.S.C. section 1, and the Cartwright Act, Cal.
2 Bus. & Prof. Code sections 16720 et seq., and constituted unfair competition and
3 unfair practices in violation of California's Unfair Competition Law, California
4 Business & Professions Code sections 17200, et seq. As further described below,
5 by entering into such unlawful agreements with other defendants and co-
6 conspirators, Google was able to provide and receive value from its co-
7 conspirators on whom it relied to delay consummating a commercial search engine
8 deal with its competitors for Intermix or its wholly owned subsidiary myspace.com
9 prior to the sale of Intermix and Myspace to its trusted ally News Corp.
10 51. The new evidence confirms because of Googles Sensitive Company
11 Agreement with AskJeeves and AOL, which essentially restricted Googles
12 attracting and hiring AskJeeves and AOL employees, the Plaintiff and shareholders
13 were victims of a conspiracy led by Google and enacted in coordination with
14 (i) AskJeevess Directors who used their positions on the Boards of both MySpace,
15 Inc. and its Parent Corporation causing Intermix not to renew an exclusive search
16 engine relationship with Yahoo and to block any new commercial search
17 agreement being struck until they were sold to News Corp.
18 (ii) TimeWarner/AOLs Directors who used their positions to ensure AOL did not
19 make a bid to acquire Intermix or offer a commercial search contract to Intermix or
20 Myspace prior to its September 30, 2005 sale to News Corporation.
21 (iii) News Corporations Directors who used their position after acquiring Intermix
22 to ensure Google would receive an exclusive search contract with myspace.com.
23 52. Facilitating the scheme was the fact that Google, TimeWarner/AOL,
24
and News Corporation all shared Directors that were partners in Venture Capital
25
26 firm, Kleiner Perkins Caufield (KPC) which is the largest shareholder in Google.
27
i. In the 2009 book Stealing Myspace, News Corporation
28
15
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%()%3@%.(&
1 admits it was customary in its dealings with Google to make agreements to

2
suppress competition binding but not written between the counter parties, recalling
3
4 the completion of one deal in which Google demanded, You need to promise me
5 in blood that youll stop all conversation with any other company.1
6 53. Critical new evidence was disclosed in a 2013 ruling from the In
7 re Hitech Federal Class action (Case5:11-cv-02509-LHK Document334) n
8 regards to Intuit Chairman Bill Campbells role with Google and the unlawful
9 secret agreements:
10
the metes and bounds of his role with the company remain
11 largely behind-the-scenes.
12 The ruling further describes the fraudulently concealed role at Google of Intuit
13 Chairman Bill Campbell,
14 i. Bill Campbell (Campbell) works for Defendant Google Inc.
15 (Google), but he is no mere employee, and perhaps not even that.
He earns at best a nominal salary, often without any formal agreement
16 or even understanding. And yet Campbell occupies an elite niche in
17 the technology industry that, with apologies to Robert Redford, is best
described as an executive whisperer. Either as consultant or part-
18 time employee, Cambpell has advised Googles senior-most
19 management even as he did the same for Defendant Apple, Inc.
(Apple) and others, all while serving as Chairman of the Board of
20 Defendant Intuit, Inc. (Intuit).
21
22 ii. Prior to 2007, Campbell served as a consultant to Google in a
23 role that Campbell himself described as informal[]28 Google
provided a consultant agreement that it asserts memorialized the
24 relationship between Google and Campbell. The court notes, however,
25 that the copy of the 2002 agreement Google attached to its motion was
dated sometime in April 2007,29 and Campbell admitted in his
26
1
27 A News Corporation employee Julia Angwin published the book Stealing
Myspace before Google signed the 2010 Federal Antitrust consent decree with the
28 Department of Justice and the evidence of the illegal Special Agreements was
disclosed. (Exhibit #6)
16
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(B%3@%.(&
1 subsequent deposition that he did not sign the agreement until 2007
2 when he signed a subsequent part-time employment agreement.30 But
Campbell stated in a sworn declaration that from January 2002 until
3 2007 his role with Google mirrored the duties listed in the subsequent
4 agreement,
5 iii. and so the court looks to the agreement for elucidation of

6 Campbells status at Google. In the agreement, Campbells duties
include serving as an advisor to Googles management and Board of
7 Directors with respect to Googles corporate and business strategy
8 and advising on issues relating to its organizational development and
internal business processes.
9
10 Other evidence supports Campbell played an important advisory role at Google:
11 iv. In a separate declaration, Alan Eustace (Eustace), Senior
12 Vice President of Knowledge at Google, stated that Campbell served
as a senior advisor and that because of that role, Eustace often
13 included Campbell in emails regarding Googles business operations
14 and internal corporate strategy, including confidential and highly
sensitive matters related to Googles compensation practices, policies
15 and strategies.33 The communications both Plaintiffs and Google
16 submitted further reveal Campbells importance at Google.
Throughout the operative period in this case, he was in ongoing
17 communication with Googles executives and advised them about
18 how to deal with employees leaving Google.
19
20 v. This evidence suffices to show that Campbells role at Google
was that of a functional equivalent of an employee even before an
21 employment agreement was executed.
22
23 54. An October 2013 ruling in the same case further described the role
24 and history of Intuit Chairman Bill Campbell, Google, and the unlawful secret
25 agreements,
These agreements extended to other Defendants. On February
26 18, 2005, Bill Campbell (Chairman of Intuit Board of Directors, Co-
Lead Director of Apple, and advisor to Google) assisted Steve Jobs
27 (Co-Founder, Former Chairman, Former CEO of Apple) in entering
into an agreement with Eric Schmidt (Google Executive Chairman,
28 Member of the Board of Directors, and former CEO) at Google. See
id., Ex. 17 (email from Bill Campbell to Steve Jobs informing Steve
17
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(/%3@%.(&
1 Jobs that Eric Schmidt got directly involved and firmly stopped all
efforts to recruit anyone from Apple). That same day, Danielle
2 Lambert (Apple Head of Human Resources) ordered her staff to
[p]lease add Google to your hands-off list. We recently agreed not
3 to recruit from one another so if you hear of any recruiting they are
doing against us, please be sure to let me know. Please be sure to
4 honor our side of the deal. Id., Ex. 23. Later that year, Arnnon
Geshuri (Google Recruiting Director) was asked to create a formal
5 Do Not Cold Call list of companies, including Apple, which had
special agreements with Google not to compete for employees. See
6 id., Ex. 27.
7 The draft was presented to Googles Executive Management Group,
a committee consisting of Googles senior executives, including Eric
8 Schmidt, Larry Page (Google Co-Founder), Sergey Brin (Google Co-
Founder), and Shona Brown (former Google Senior Vice President,
9 Business Operations). See id., Ex. 28. Eric Schmidt approved the list.
See id. (email from Eric Schmidt stating [t]his looks very good.).
10 When Shona Brown asked Eric Schmidt whether he had any concerns
with sharing information regarding the Do Not Call list with
11 Googles competitors, Eric Schmidt responded that he preferred that it
be shared verbally[,] since I dont want to create a paper trail over
12 which we can be sued later? Id., Ex. 41. Shona Brown responded:
makes sense to do orally. i agree. Id.
13
Bill Campbell (Chairman of Intuit Board of Directors, Co-
14 Lead Director of Apple, and advisor to Google) also insisted that
Google and Intuit enter into a non-compete agreement. Although
15 Googles non-solicit policy initially cover[ed] only 18 Intuit
employees, Bill [Campbell] requested that Intuit be added fully to
16 the Do Not Call list. Id., Ex. 31 (email, dated June 6, 2007, between
Arnnon Geshuri (Google Recruiting Director) and Eric Schmidt
17 (Google Executive Chairman, Member of the Board of Directors, and
former CEO)). Thus, by June 12, 2007, Intuit was added fully to the
18 list. Id., Ex. 26; id. Ex. 30 (please update the DNC list to now include
Intuit 100% do not call.); see also Decl. of Dean Harvey (Harvey
19 Decl.), Ex. 25 at 13, ECF No. 248 (stating that Googles [Do Not
Cold Call] policy for Intuit began in April 2006 and was broadened in
20 June 2007 to include all Intuit employees.).
21 Campbells peers described his role further:
22 iii. Google CEO Eric Schmidt: "His contribution to Google - it is
23 literally not possible to overstate. He essentially architected the
organizational structure."
24
25 iv. Bill Gurley, VC firm Benchmark Capital general partner:
26
"When you have Bill coaching the entrepreneurs, it's like
27 having extra wildcards in a game of five-card draw."
28
18
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(C%3@%.(&
1 II. JURISDICTION
2
55. This Court has subject matter jurisdiction over this action under 15
3
4 U.S.C. 13 sections 4 and 16, and 28 U.S.C. sections 1331 and 1337. This Court
5 has personal jurisdiction over defendants2 because each resides in or has its
6
principal place of business in the state of California, employed individuals in this
7
8 state during the Class Period, and has had substantial contacts within the state of
9 California in furtherance of the injuries and conspiracy described herein.
10
56. Venue is proper in this judicial district under 15 U.S.C. section 22 and
11
12 28 U.S.C. section 1391(b)(1)-(2) because a substantial part of the acts or omissions
13 giving rise to the claims set forth herein occurred in this judicial district, a
14
substantial portion of the affected interstate trade and commerce was carried out in
15
16 this district, and multiple defendants reside in this district.
17 III. INTRADISTRICT ASSIGNMENT
18
57. Under Civil Local Rule 3-2(c) and (e), assignment of this case to the
19
20 San Jose Division of the United States District Court for the Northern District of
21 California is proper because a substantial part of the events and omissions which
22
give rise to Plaintiffs antitrust claims occurred within the county of San Jose.
23
24 IV. PARTIES
25 58. Plaintiff, Peng Chan, an individual, citizen resident of California,
26
2
27 The use of the word defendants herein shall refer, unless specified to the
contrary, to both named defendants and defendants that are members of defendant
28 Sub-Class A, defendant Sub-Class B, defendant Sub-Class C and defendant Sub-
Class D.
19
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%.-%3@%.(&
1
2 was a shareholder of eUniverse before the company changed its name to Intermix,
3 Inc. (Intermix), and continued to hold shares of the public company through the
4
consummation of the sale in September 2005. Mr. Chan owned over 2000 shares of
5
6 Intermix common stock as of September 30, 2005. In addition, Mr. Chan never
7 received any of the settlement monies from the defective 2012 Federal security
8
fraud class action settlement despite being a member of the Federal Class.
9
10 59. Defendant TimeWarner, Inc., is a Delaware corporation with offices
11 and over 100 employees in California and also a co-lead defendant of the Sub-
12
Class A members.
13
14 60. Defendant Mazher Mahmood was an employee of News Corporation
15 and spending part or all of his time living and working in Los Angeles, during
16
2005. And is also co-lead defendant for the Defendant Sub-Class B members.
17
18 61. Defendant Jim Barksdale is and was a director of TimeWarner, Inc.
19
(AOL) and managing partner and shareholder, managing director of KPC.
20
Barksdale is a co-lead defendant for the Defendant Sub-Class C.
21
22 62. Defendant John Hanke was an executive that worked at Alphabet Inc.
23
from January 2004 through the present, and was formerly a Director of Intermix,
24 Inc.
25
between 1999-2000 after selling a company to public issuer and registering shares
26
27 under Intermix, Inc. SEC registration forms through 2005.
28 63. Defendant News Corporation (News Corp) is a Delaware
20
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%.(%3@%.(&
1
2 corporation with its principal place of business located at 1211 Avenue of the
3 Americas, New York, New York.

4
i. News Corp is also the co-lead defendant for the Defendant
5
6 Sub-Class A. The defendant Sub-Class A members include IAC/Interactive Corp,
7 Google, Inc., Intermix, Inc., Myspace, Inc., 21st Century Fox Corporation, Intuit,
8
Time Magazine, Inc., Match.com Group, Inc.,M2Z, Inc., TSC Learning Ltd.,
9
10 Entertainment Universe, Inc., eUnivese, and all corporations listed in Googles
11 March 2005 Special Agreements document including: a) their parent companies
12
as of March 2005, b) their parent companies as of July 19, 2005, and c) their
13
14 parent companies as of September 30, 2005.
15 64. Defendant Chris DeWolfe was an Officer of Intermix, Inc., a Director
16
of FogCutter Group Inc., and an Officer and Director of Myspace, Inc. at all
17
18 relevant times. DeWolfe is also co-lead defendant for the Defendant Sub-Class B
19
members.
20
65. Defendant Alphabet, Inc. is a Delaware Corporation, and has
21
22 offices in California..
23
66. Defendant Barry Diller at all relevant times was an Officer and
24
25 Director of IAC/Interactive Corporation.
26 67. Defendant Edgar Bronfman Jr was a Director of IAC/Interactive

27
Corporation. Diller and Bronfman are the co-lead defendants
28
21
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%..%3@%.(&
1 for the Defendant Sub-Class B which include ,Tim Armstrong, Ross Levinsohn,
2
Jonathan Miller, Roger Ailes, David Drummond, John Doerr, Eric Schmidt,
3
4 Marissa Meyers, Bill Campbell, and all individuals that were employed for more
5 then one month during 2005 as Officers or Directors of a Defendant SubClass A

6
member And all individuals employed for more then one month during 2004 or
7
8 2005 as Officers or Directors of Intermix, Inc.
9 68. Defendant Kleiner Perkins Caufield, LLC (KPC) is a California
10
Limited liability company with its principal place of business located in California.
11
12 KPC in 2005 was the largest shareholder of Alphabet, Inc.
13 69. KPC is also the lead defendant for Defendant Sub-Class C,
14
Members include Jim Marver, Alan Salzman, Velocity Investment Group ,
15
16 Myspace Ventures LLC, MSV LLC, VP Alpha Holdings IV, LLC, Vantage Point
17
Venture Partners IV (Q), L.P.,Vantage Point Venture Partners IV, LP, Vantage
18
Point Venture Partners IV Principals Fund, LP., RedPoint Venture Partners LLC
19
20 and all private equity fund corporations, LLCs, or LP.s which employed or paid
21
compensation to a defendant Sub-Class B member O r where a defendant Sub-
22
Class B member served as a Managing Partner, Partner, or Limited Partner, or
23
24 General Partner during 2004 or 2005.
25
26 V. FACTUAL BACKGROUND
27 70. On April 14, 1999, eUniverse raised over $6.5 million dollars and
28 used a portion of the proceeds to acquire CD Universe, Inc., a corporation engaged
22
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%.A%3@%.(&
1
in ecommerce that later merged into eUniverse, and closed its first day of trading at
2
3 $12.50 per share, with a single website, CDUniverse.com, that had a tiny audience
4
of less than 1 million monthly online users.
5
6 71. By 2000, eUniverse was ranked #13 in total number of U.S. unique
7 users per month visiting its network websites according to Media Metrix,
8 compared to AskJeeves ranked #19 and Google not listed in the top 30.
9
72. By August 2001, eUniverse, according to Jupiter Media Metrix, had a
10
11 larger audience than both Google, ranked #16 and AskJeeves, ranked #17.
12 73. By the end of 2002, eUniverse had 250 highly skilled technology and
13
internet strategy employees.
14
GOOGLE ASKS EUNIVERSE TO HELP LAUNCH ADSENSE
15
74. eUniverse was being aggressively pursued by Google early in 2003
16
even before launching Search Engine or Social Network efforts. Google executive
17
Kristin Morrisey offered to purchase $20,000 of advertising if eUniverse agreed to
18
help Google launch a new technology. Morriseys February 24, 2003, email states,
19
20 We would like to include you in our press release to goout
next week saying you are involved in this test. Is that ok
21 withyou?
22 eUniverse accepted and helped Google launch its AdSense program on March 4,
23 2003, becoming one of Googles largest revenue sources today.
24 EUNIVERSES 2003 SEARCH ENGINE AGREEMENT AUCTION
25 75. In mid 2003, the CEO also head of eUniverses Search Engine
26 division registered search related domains for future search products and contacted
27 Paid Search leaders Google and Yahoo. Both Google and Yahoo were eager to
28 consummate a commercial agreement to have eUniverse promote their paid search
23
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%.=%3@%.(&
1
engine web services across eUniverse owned websites. In such an arrangement, the
2
companies would share paid search revenue.
3
76. Search engine contracts are lucrative and desired by search engine
4
companies such as Yahoo or Google, because they provide these search engine
5
companies significant increases in the number of searches performed or traffic,
6
which in turn increases the search engine companys revenue and value. Therefore,
7
search engine companies will often pay significant sums for exclusive search
8
engine rights to popular websites such as myspace.com that are or were frequently
9
used by the public in order to route traffic, and therefore revenue and value, to their
10
website search engines.
11
77. eUniverse was a desirable partner able to generate paid search via: i)
12
integrating online Web Search into its fast growing network of websites including
13
Myspace.com reaching tens of millions of monthly users and ii) operating a Search
14
download application business. A company like eUniverse with a large and fast
15
growing online audience could demand and expect to receive over 50% of the
16
gross advertising revenue generated from eUniverse users clicking on paid search
17
engine text link ads.
18
BEFORE MYSPACE GOOGLE SOUGHT SEARCH PARTNERSHIP
19
78. eUniverse/Intermix was being aggressively pursued by Google early
20
in 2003, even before launching its social network Myspace.com in August 2003.
21
i. June 13, 2003 eUniverse exec Todd Smith forwarded an email,
22
subject: google, to eUniverses CEO from Googles Marc Leibowitz stating:
23
Spoke with Google: 1) It seems they really want our business--
24
ii. The same day, the eUniverse executive further reported:
25
Spoke with Google. . . .
26
He mentioned that he is so confident that google can monetize
27 better than overture, and because we are stretched for time, that we
can sign a non-exclusive agreement and let them prove themselves in
28 the numbers (but that wont really fly with overture). (email from
24
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%.&%3@%.(&
1 former Intermix CEO)

2 GOOGLE FAILS IN BID TO STEAL CONFIDENTIAL YAHOO DATA
3 79. June 13, 2003 at 1:17pm, Googles Marc Leibowtiz emails eUniverse:
4
In the meantime, thought Id share some good news: Assuming we
5 can agree on ground rules (in addition to strict confidentiality of the
results), were open to doing a trial implementation with you:
6
(2) Trial must involve concurrent testing of both Overture & Google
7 in the same placement. E.g., from your current search box placement
on the eUniverse start page, you would alternate between sending
8 queries to Google and to Overture.
9 (4) Google will make reporting functionality available to EUNI over
the term of the test (e.g., queries, coverage, clicks, CTR, revenue per
10 click, gross revenue); in return , EUNI will share as much info about
Overtures monetization as permissible. Specificaly wed like the
11 following: -Avg CPC of Google vs Avg CPC of Overture -COV of
Google v COV of Overture CTR of Google, CTR of Overture
12 RPM of Google vs RPM of Overture List of queries sent Overture
and the CPCs per position for each term. (email from former
13 Intermix CEO)
14
eUniverses former CEO refused to help Google steal confidential date from
15
its key competitor Yahoo. Further, on or about August 2003, Yahoo! Inc.
16
(Yahoo), a Delaware corporation and owner of www.yahoo.com, entered into a
17
two year contract through its Overture division with eUniverse to serve as their
18
exclusive commercial search engine providor (Yahoo Contract). The Yahoo
19
Contract ended on or about August 1, 2005, well before the News Corp acquisition
20
of Intermix and its asset, myspace.com was consummated on September 30, 2005.
21
MYSPACE LAUNCH MAKES EUNIVERSE EVEN MORE ATTRACTIVE
22
80. On or around August 15, 2003, eUniverse launched a 100% owned
23
social networking technology called Myspace.com. By September, eUniverses
24
newly created asset, myspace.com, was growing faster then the largest competitor,
25
the earlier launched social network website startup, Friendster.com. eUniverses
26
Myspace.com website received 63,910 new registered users in its first full month,
27
September 2003, and by the end of January 2004, according to 3rd party website
28
25
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%.)%3@%.(&
1 audience measurement audit firms like Comscore and Nielsen Netratings,

2 Myspace.com had surpassed the popularity of Friendster.com, receiving more
3 unique visitors and becoming the most popular social network website in the
4 world.
5 MYSPACE PLAN: HAVE A SEARCH BOX ON EVERY PAGE
6 81. Myspace, eUniverses 100% owned division by September 2003
7 already planned to leverage the commercial opportunity of online search with
8 users of Myspace.com. A summary of Myspace.com sent to Petitioner from
9 eUniverse employees working on the Myspace.com division and project, raised
10 the importance and strategy to build a search engine business opportunity into
11 the business model, stating,
12 Search Engine (1 week). Just as Yahoo uses Google as a back end,
and dozens of other sites rely on Overture, MySpace could easily
13 implement a search engine by partnering with search engine providers
to have a search box on every page. As users come to think of
14 MySpace as their main destination on the Internet, the Search box will
become a more prominent part of the site giving users easy access to
15 new information through web searches.
16 GOOGLE PURSUES SEARCH PARTNERSHIP AGGRESSIVELY
17 82. eUniverse had not yet publicly announced its commercial agreement
18 with Yahoo and therefore Google made a last ditch effort to win the search engine
19 commercial agreement auction that eUniverse had been conducting.
20 i. Google executive Jim Gerber emailed eUniverses CEO October 3,
21 2003 at 6:53PM with subject: Data needed for proposal, and states:
22 Hello Brad, Nice to talk to you again. As we discussed, wed like to
put together a proposal to provide you with WebSearch and
23 Sponsored Links in addition to our relationship regarding AdSense.
24 i. Googles Gerber emailed the CEO again October 24, 2003,
25 Subject: Interest?,
26 Hello Brad, Just checking in to see if you are simply swamped or if
there is no more interest in exploring a deal together. Per my
27 voicemail, I will be in LA for meetings on Monday and Tuesday.
28 EUNIVERSE FORMALLY ANNOUNCES YAHOO PARTNERSHIP
26
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%.B%3@%.(&
1
83. eUniverse selected Yahoos paid search technology and signed a
2
contract in August 2003 with Overture Services, Inc. to provide paid listings. as
3
eUniverses exclusive paid search commercial partner over a two year term. On
4
October 27, 2003, eUniverse distributed a press release titled,
5
eUniverse Enters Paid Search Market With Launch of SirSearch
6 and Generates Over 3 million Searches in September
(October 28, 2003, PR Newswire)
7
8 By the end of October 2003, it was clear to anyone in the online search industry
9
that eUniverse was an increasingly valuable commercial partner.
10
i. November 21, 2003, Morgan Stanley releases a report based on
11
12 market data for October 31, 2003, ranking eUniverse as the #1 fastest growing
13
portal, ahead of AOL and Yahoo.
14
15 ii. Friendster is ranked #1 under the Community section receiving
16 1.75 million unique users in October 2003, but eUniverse has 16.74 million
17
unique users and nearly the same growth rate.
18
19 84. Shortly thereafter, Google began engineering an alternative scheme to
20 profit from myspace.com and its owner, eUniverse, because the CEO had declined
21
to sign a search contract with Google, and instead went with its competitor, Yahoo.
22
23 i. Evidence of Googles aggressive campaign to undermine
24 competitor Yahoo is a September 7, 2005 email at 10:52PM Google CEO Eric

25
Schmidt emails the EMG and Bill Campbell, Subject: Phone call from Meg
26
27 Whitman: Meg called to talk about our hiring practices. Here is what she said:
28 People are just waiting for us to fall and get back at us for our
"unfair" practices now.
27
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%./%3@%.(&
1
it appears that somewhere in Google we are targeting EBay to "hurt
2 them" and its the reputation that we are doing this against Yahoo,
EBay and MSFT (I denied this.)
3 (Case 5:11-cv-02509-LHK Document 428-11, 05/17/13 Page1 of 2)
4
A. BID RIGGING #1: ASKJEEVES FRAUDULENTLY CONCEALS
5 DIRECTORS BANKRUPTCY TO TAKE CONTROL OF EUNIVERSE
6 85. Carlick and the rest of the AskJeeves Directors by October 2003, were
7 already regularly having discussions with Google concerning the poaching and
8 recruiting of AskJeeves employees.
9 86. Google immediately saw an opportunity on October
10 27, 2003 when eUniverse selected Yahoo as its search engine commercial partner
11 over Google. Google determined to use AskJeeves Director Carlick taking
12 advantage of his role at private equity fund VantagePoint to take control of
13 eUniverse and oust its CEO. Once Carlicks VantagePoint fund had control of
14 eUniverse, Carlick would be in a position to ensure that Google won the next
15 eUniverse commercial search engine bidding war against Yahoo.
16 Googles Co-conspirators accomplish their goal using a series of
17 illegal schemes to take-over eUniverse and its 100% owned subsidiary
18 Myspace.com and defraud the public shareholders as part of the overall bid-rigging
19 conspiracy, including (i) Unlawfully selling over 19.99% of the stock in eUniverse
20 to a private equity fund controlled by an AskJeeves Director at below fair market
21 value (ii) Ousting the founder and Chairman/CEO of eUniverse and Myspace.com
22 as a Director because he refused to support the aforementioned unlawful change of
23 control and filed an 8k reporting out to the public on the other eUniverse Directors
24 breach of their fiduciary duty and duty of loyalty. iii) Putting a corrupt Director
25 onto the board of eUniverse while fabricating his work experience covering up his
26 recent Federal bankruptcy. Plaintiffs fully incorporate by reference the facts and
27 evidence contained in the following documents from an April 2014
28 indemnification complaint Case No. 9567 filed by a former employee in the
28
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%.C%3@%.(&
1
Delaware Court of Chancery:
2
i. NOTICE MOTION IN CONTEMPT
3
ii. MOTION FOR CONTEMPT 70(B) 42(B) AND/OR 60(B)(3)
4
iii. DECLARATION IN SUPPORT OF MOTION 70(b) 42(b)
5 CONTEMPT
(attached as Exhibit #5)
6
87. Therefore, Carlick determined to parlay VantagePoints gaining
7
control of eUniverse to negotiate and work out a swap with Google. In exchange
8
for the promise of ensuring eUniverses future commercial search engine business
9
would be preserved for Google, AskJeeves and Carlick sought an agreement
10
whereby Google would limit or restrict its hiring of AskJeeves employees.
11
88. The former Chairman and CEO of eUniverse, Brad Greenspan,
12
oversaw and managed the creation of myspace.com which quickly became the
13
single most valuable asset of eUniverse. Greenspan was ousted by Googles co-
14
conspirators Vantage Point, Carlick and Sheehan, all in furtherance of
15
Defendants bid-rigging conspiracy to aid Google in becoming the dominant
16
commercial search engine company. Once Greenspan was ousted as CEO and a
17
Director as a result of Defendants conspiracy, he had no further role in
18
eUniverses operations and no longer had access to eUniverses internal
19
information. Rosenblatt, Greenspans replacement, changed the companys name
20
to Intermix in 2004 and was the CEO of Intermix until News Corp. signed a
21
binding merger agreement with the company on July 18, 2005 and consummated
22
the acquisition of Intermix and its wholly owned subsidiary, Myspace, Inc. on
23
September 30, 2005.
24
ASKJEEVES INSERTS SECOND CONFLICTED DIRECTOR
25
89. The former CEO put Intermixs Board on notice of the new
26
Directors conflicts of interest that existed through a January 23, 2004 PR newswire
27
press release:
28
29
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%A-%3@%.(&
1 Substantial Conflicts of Interest with Respect to Verisign

Nasdaq:VRSN And Ask Jeeves NASDAQ: ASKJ
2
i.eUniverses Future Success in Lucrative Paid Search Space Is
3 Threatened By Existing Director Conflicts
4 ii.certain of eUniverses incumbent Directors have substantial
conflicts of interest that could threaten the Companys success in the
5 paid search industry.
6 iii.Daniel Mosher has conflicts of interest arising from his middle
management role at Verisign, Inc. (NASDAQ: VRSN) which
7 introduced the sitefinder redirect service in direct competition with
eUniverses PerfectNav application.
8
iv.David Carlick has a conflict of interest arising from his
9 membership on the Board of Ask Jeeves (Nasdaq: ASKJ), which is a
pure play in the paid search space.
10
v.Carlick has the ability to influence management decisions which
11 may adversely affect eUniverses Paid Search division.
12 PUBLICLY DISCLOSED CONVOLUTED INTERLOCKING
RELATIONSHIPS
13
90. Further facilitating the scheme were several interlocking relationships
14
among the involved corporations which aided the growth of the conspiracy.
15
i. Private Equity firm Kleiner Perkins Caufield & Byers (KPC)
16
was the largest shareholder of Google during all relevant times.
17
ii. Thomas Perkins was a partner of KPC and since 1995 and
18
during all relevant times was one of two lead directors of News Corp that occupied
19
the committees of Audit, Compensation, Nominating and Corporate Governance.
20
iii. John Doerr was a Partner of KPC and was a Director of Google
21
during all relevant times.
22
iv. John Caufield was a Partner of KPC and was a Director of
23
TimeWarner/AOL during all relevant times.
24 v. James Barksdale was a Partner of KPC and was a Director of
25 Time/Warner/AOL during all relevant times.
26 v. Google Director Paul Ortellini concurrently served as CEO of
27
Intel and sat on the Intel Board with News Corp Director John Thornton.
28
30
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%A(%3@%.(&
1 91. Allen & Company, a NY investment Bank provided investment

2 banking or financial advisory services during all relevant times to AskJeeves, IAC,
3 News Corp, Google, and TimeWarner/AOL.
4 i. Allen & Company Chairman Donald Kenough concurrently
5 served during all relevant times as IACs Vice Chairman and Director.
6 ii. Allen & Company Partner Stanley Shuman concurrently served
7 during all relevant times as News Corporations lead Director.
8 iii. IAC in its 2005 SEC S1 filing only partially described its
9 convoluted relationship:
10 Allen & Company and its affiliates were stockholders in IAC and Ask
Jeeves, and Donald R. Keough, Chairman of Allen & Company, also
11 served as a director of IAC. Further, Allen & Company has been
engaged by IAC to render financial advisory services from time to
12 time in the past on several separate transactions for which Allen &
Company has received customary fees.
13
92. Allen & Company Partner Nancy Peretsman went to Princeton
14
at the same time as Eric Schmidt the CEO of Google and at all relevant times they
15 sat on the Princeton Trustee Board together.
16 i. Peretsman and Allen & Company earned over $10 million
17 dollars for advising AskJeeves on its March 2004 acquisition of Interactive Search
18 Corporation (ISH).
19 ii. Peretsman and Allen & Company earned over $50 million
20 dollars for advising and running the auction process to sell AskJeeves to IAC on
21 March 2005,
22 iii. Peretsman and Allen & Company earned over $100 million
23 dollars for advising and leading Googles $4.4 billion dollar secondary in
24 September 2005.
25 iv. Peretsman also according to an October 19, 2006 Fortune
26 magazine article by Eugenia Levenson:,
27 helped broker Googles 11th-hour, $1 billion bid for a 5% stake in
AOL (and an advertising partnership) that thwarted an AOL
28 Microsoft alliance.
31
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%A.%3@%.(&
1 93. Private Equity firm VantagePoint Venture Partners (VPVP)

2 beginning in November 2003 and during all relevant times was the largest
3
shareholder of publicly traded Intermix.
4
i. David Carlick was a Partner of VPVP and was a Director and
5
shareholder of AskJeeves, Inc. during all relevant times. On or around November
6
2003, Carlick concurrently began serving as a Director of eUniverse, Inc. (later
7
renamed Intermix). In February 2004, Carlick became Chairman of Intermix.
8
ii. Andrew Sheehan was a Partner of VPVP. On or around
9
November 2003, Sheehan concurrently began serving as a Director of eUniverse,
10
Inc. (later renamed Intermix). On or around February 2005, Sheehan also became
11
a Director of Intermix subsidiary, Myspace, Inc.
12
94. Private Equity firm, Redpoint Venture Partners (Redpoint) was a
13
shareholder of AskJeeves, Inc., and became a shareholder of Intermix in December
14
2004 and in February 2005 purchased 30% of the stock of Myspace, Inc. and
15
during all relevant times was the largest preferred stock holder of Myspace, Inc.,
16
i. Geofrey Yang was a Partner of Redpoint and was a Director
17
and shareholder of AskJeeves, Inc. during all relevant times. On or around
18
February 2005, Yang began concurrently serving as a Director of Myspace, Inc.
19
ii. Doerr sat on the board of Excite@Home on behalf of KPC with
20
co-investor Geoff Yang until it went bankrupt in 2001.
21
iii. Richard Rosenblatt was the founder and CEO of Imall, Inc. a
22
money losing internet company which Excite@Home acquired in 2001.
23
95. Orrick Herrington Sutcliffe served as VPVPs legal counsel during all
24
relevant times while concurrently serving as publicly traded FogCutter, Inc.s legal
25
counsel.
26 i. Chris DeWolfe was a Director of FogCutter, Inc. during all
27 relevant times while concurrently serving as an Officer of Intermix, Inc., and
28 Director and Officer of Myspace, Inc.
32
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%AA%3@%.(&
1
96. AskJeeves second investment banker for the IAC transaction was
2
Citibanks Amnan Zakour.
3
4 i. In May 2005 Zakour became JPMorgans head of
5 technology mergers and acquisitions. JPMorgan was IACs investment banker for
6 the AskJeeves acquisition.
7 ii. On or around July 13, 2005 News Corporation engaged Zakour

8 and JPMorgan was as their banker to acquire MySpaces Parent Intermix.
9
iii. JPMorgan and Zakour representing News Corp oversaw the
10
Intermix merger agreement getting signed on July 18, 2005.
11
iv. The next day, July 19,, 2005 IAC represented by JPMorgan
12
consummated the AskJeeves acquisition.
13
14 v. JPMorgan executive Rodgar Eddington was a Director of News
15 Corporation at all relevant times.
16 GOOGLE GROWS CONSPIRACY THROUGH ALLEN & CO
17 CONFERENCES
18 97. So, in approximately 2004, Google began developing trust
19 relationships with numerous other companies in an effort to ensure the sale of
20 myspace.com to a trusted company who would permit Google the exclusive ability
21 to enter into a search contract for myspace.com.namely, News Corp.
22 i. Google in early 2004 hired John Hanke as a senior executive.
23 Hanke was formerly a Director of Intermix, Inc. between 1999 through 2001.
Hanke
24 bitter after a dispute between Intermix and his former shareholders from the
25 company he sold to Intermix, BigNetwork,
26 98. During July 2004 and July 2005, Allen & Co. holds a weekend series
27 of secret meetings between media companies in Sun Valley. According to the
28 November 2004 issue of Fortune:
33
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%A=%3@%.(&
1
One of the firms bankers, Nancy Peretsman, knew Google president, Eric
2 Schmidt at Princeton and has patiently worked, as Allen & Co. habitually
does, to build a client relationship. The payoff came when Google
3 announced the names of the 41 underwriters that would handle its IPO,
Allen is slated to be in a small group of firms just below the two giants
4 serving as managing underwriters Morgan Stanley and CSFB.
5 And if the timing of Googles offering doesnt get in the way, one or both
of the companys young Co-CEOs, Sergey Brin and Larry Page, will be at
6
Sun Valley (as will Schmidt), joining them will be Allens three marquee
7 clients, Rupert Murdoch, Barry Diller, and the newest Coca-cola CEO
8 Among the presenters are Ask Jeeves.
9 99. Allen & Co. AskJeeves banker Peretsman aids, abets, and facilitate
10 the expansion of the unlawful Do-Not-Hire and acquisition non-compete
11 bilateral sensitive company agreements during these confidential meetings in
12 Sun Valley between i) Google CEO Eric Schmidt, executives Sergey Brin and
13 Larry Page who are also Google Directors, and Google Director and KPC
14 Partner John Doerr ii) IAC CEO Barry Diller, IAC Director and Allen & Co.
15 Chairman Kenough iii) News Corporation CEO Ruperty Murdoch, News
16 Corporation Director and Allen & Co. banker Schuman, News Corporation
17 Director and KPC Partner Perkins iv) AskJeeves Director and Myspace Director
18 Geoffrey Yang v) TimeWarner/AOL Directors and KPC Partners Caufield and
19 Barksdale.
20 100. Co-Defendant bankers Allen & Co. and JP Morgan also benefitted
21 and facilitated generating billions in profits for their clients through these wrong
22 doings and helped organize the misdeeds while serving as Google, IAC/Interactive
23 Corporation, and News Corporation investment bankers that completed a $1.9
24 billion dollar acquisition of AskJeeves, a $650 million dollar acquisition of
25 Intermix, a $4.18 billion dollar secondary on September 15, 2005, and a $1 billion
26 dollar AOL private placement in December 2005.
27 101. Thus its no surprise that according to Googles March 2005 version of
28 the Sensitive Agreement, the illegal anti-competitive employee no cold call
34
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%A&%3@%.(&
1
agreements had expanded to include Googles other long time online paid search
2
affiliate, AOL, and other companies.
3
JULY 15, 2004: EUNIVERSE, INC. NAME CHANGE: INTERMIX, INC.
4
5 B. BID RIGGING #2: GOOGLE BID RIGS CONTROL STAKE IN
MYSPACE.COM TO ASKJEEVES DIRECTOR #2
6
102. Despite being on notice of the conflict of interest existing through
7
inserting one AskJeeves Director onto the Board of eUniverse, AskJeeves
8
determines in late 2004 to inject a second conflicted AskJeeves Director into the
9
scheme.
10
11 103. This was a critical step in the conspiracy of TimeWarner/AOL, News
12 Corporation, AskJeeves, IAC, and other defendants to collude to gain economic
13 benefits by delaying closing of a competitive EUNI MySpace search engine
14 auction for a new commercial search engine agreement in the months leading up to
15 News Corporation acquiring 100% of eUniverse in September 2005. This
16 arrangement ensured Googles $4.4 Billion dollar August 2005 secondary by tying
17 up the fast growing online audience of MySpace, significantly growing its share of
18 online search engine advertising while shrinking share of main rival #2 Yahoo;
19 104. AskJeeves using Directors Yang and Carlick undertook a series of
20 fraudulent acts beginning in late October 2003 to increase their control over the
21 publicly traded eUniverse including but not limited to Carlick forcing eUniverse
22 Directors to sell off 49% of crown jewel asset Myspace.com for a below fair
23 market price to several insiders and AskJeeves Director Yangs fund, Redpoint in
24 February 2005 Using a backdated agreement filed and disclosed for the first time
25 in Intermixs November 2004 10Q that fabricates the existence of a December 17,
26 2003 asset sale. Email evidence confirms the scheme:
27
28
35
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%A)%3@%.(&
1 a. September 27, 2004 Vantagepoint internal report proves AskJeeves

2 manipulated Intermix to forgo using less dilutive debt financing available, instead
3 facilitating sweetheart equity sale to AskJeeves Director Yang.
4 Myspace will require approximately $1.5 -2 million in the next 2
months for storage arrays, database servers, switches and routers.
5
The company is in discussions with Silicon Valley Bank regarding a
6 $4m line of credit, which is likely to be approved.
7 b. October 1, 2004, 3:05PM Rosenblatt emails Sheehan stating:
8 Just had a tough talk with Chris DeWolf. His lawyer id definitely
giving him concerns about our offer. Heart ache about us taking the
9 tech, value if we sell, etc. He really thinks he is worth more
independentlyI am told him that is not going to happen.
10
This email is evidence of the scheme that our offer in fact refers to the agreement
11
Intermix would consummate with DeWolf sometime after October 1, 2004.
12
Intermix and the co-conspirators consummate the offer through the backdating
13
of an asset purchase agreement to December 17, 2003 and which will be disclosed
14
for the first time to shareholders in its November 2004 10Q filing.
15
c. October 7, 2004, 3:45PM Sheehan contacts Rosenblatt & Carlick by
16
through email to further the fraudulentconcealment scheme to fabricate and
17
fraudulently conceal the MySpace Stock purchase documents published in the
18
November 2004 10Q were fabricated and backdated with Subject: MS thoughts
19
of the day,
20
My current thoughts on the MS situation:
21
22 We need to get in place the revised agreement before any
meaningful negotiations with any other third party.
23
* I believe I understand Chris concerns about being locked into
24 an illiquid subsidiary, but that its their choice they could have MIX
stock if they want liquidity.
25
* They are minority shareholders and need to accept this fact.
26
* We, InterMix, need the right to be able to sell all of MS. Including
27 founders shares.
28 We, InterMix, need the right to buy out the founders at a price or a
36
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%AB%3@%.(&
1 formula
2 On Redpoint:
* Why not continue talking to them, it is too hard to figure out if they
3 could present the most attractive deal or not at this time
4 The revised agreement refers to the fabricated backdated Myspace.com asset
5 purchase agreement Intermix claims in its November 2004 10Q was executed on
6
December 17, 2003.
7
105. November 4, 2004 11:43PM Carlick emails Sheehan, furthering the
8
fraudulent concealment scheme to fabricate and fraudulently conceal the MySpace
9
Stock purchase documents published in the November 2004 10Q were fabricated
10
and backdated Subject: My talk with Yang stating,
11 Andrew, Spoke with Geoff, who holds you in the highest
regard. I am not in the loop on their offer, which he described
12 as 23% Redpoint, 25% Founders and pool and 52% Intermix.
13 His case for the offer was interesting and compelling, as
Intermix could still fold in the earnings, traffic, etc. I want to
14 discuss with you my thoughts on the subject tomorrow, God
know when, as we have no breaks I can count on. In any case, I
15 suggested that Geoff speak with you directly.
16
November 5, 2004 11:58AM Sheehan contacts Carlick and states
17 what it comes down to is do we sell ms now or keep it. Doing
a deal where mix keeps 52% doesnt make any sense for
18 anyone except Yang. All the banks and investors think we
would be foolish to sell some or all of ms now. We will get
19 much less benefit to mix if we own 52% and have give all sorts
of rights to an investor. Richard wants to keep it in mix.
20
Thus by November 5, 2004, its clear that even AskJeeves Director Carlicks fellow
21
director on the Intermix Board and colleague at VantagePoint Fund believes its not
22
in the best interests of Intermix to sell a preferred stock stake to Yangs Redpoint
23
Partners private equity fund and objected to Carlicks unusual insistence on selling
24
a minority stake in eUniverses Myspace.com subsidiary to Carlicks personal
25
friend and professional colleague on the AskJeeves Board of
26
Directors as described in the email exchange on November 5, 2004 11:58AM,
27
which Sheehan uses to contact Carlick furthering the fraudulent concealment
28
37
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%A/%3@%.(&
1 scheme to fabricate and fraudulently conceal the fact the MySpace Stock purchase
2 documents published in the November 2004 10Q were fabricated and backdated
3 106. Intermixs November 9, 2004 quarterly earmings press release, states:
4 Myspace.com social networking web property experienced a
5 significant increase in the number of new members and average
user logins, Myspace.com as of November 4, 2004
6
7 i. At the time of the November 9, 2004 press release Intermix still
8 has not disclosed to shareholder it owns less then 100% of MySpace.com or that
9 the company would purport in its upcoming November 2004 10Q that Intermix had
10 sold 33% of Myspace.com to insiders in December 2003.
11
107. AskJeeves used its influence and sway over the fabricated resume
12
Director, Edell, to force Intermix to go along with the below fair market sale of
13
50% of Myspace.com to Carlicks fellow AskJeeves Director Yang, both Edell and
14
the CFO of Intermix resigned in protest. Later through email discovery in a Federal
15
security fraud class action, it would be revealed that Yang and Carlick negotiated
16
the sale without the input of Intermixs Board of Directors as explained by the then
17
CFOs November 2004 email exchange:
18
a. November 18, 2004, 3:56PM Orricks Richard Harroch contacted
19
Sheehan, Redpoint & AskJeeves Director Yang and RedPoints Beasly, by email
20
furthering the fraudulent concealment scheme to fabricate and fraudulently conceal
21
the MySpace Stock purchase documents published in the November 2004 10Q
22
were fabricated and backdated
23
Subject: MySpace Term Sheet and states,
24
Gentleman: As a follow up to our conversation today, attached ia a
25 clean and redlined markup of the last version of the term sheet that
was give to us in connection with the Myspace transaction. Let us
26 discuss the issues at your convenience. Richard Harroch <<MySpace
Sale of Series A Preferred Stock.doc>>
27
b. Rosenblatt furthers the fraudulent concealment scheme forwarding an
28
38
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%AC%3@%.(&
1 incoming Orrick email to Chris Lipp and Tom Flahie at 4:28PM to fabricate and
2 fraudulently conceal the MySpace Stock purchase documents published in the
3 November 2004 10Q, to hide the fact the documents were fabricated and
4 backdated. Rosenblatt states: I have not seen yet, claiming to not know the
5 terms that the company has already agreed to sell a portion of MySpace.com to
6 VantagePoints fellow board member on Ask Jeeves, Geoff Yang and his fund
7 company he is a principal in, Redpoint.
8 c.November 18, 2004 CFO Flahie emails Rosenblatt, Subject: RE:
9 MySpace Term Sheet and states,
10 this situation really goes beyond anything I want to be a part
of. I communicated my feelings in writing twice now about the
11 lawyer for a large preferred stockholder and one director
negotiating a major business transaction on behalf of the
12 company without authorization of our board and all I received
was an admonishment from Harroch about my email and told to
13 shut up in a conference call.
14 Since you have not seen this yet and I have certainly not, this
makes a broader statement about our Senior Management.
15
As an officer I would be derelict in my duties to our company
16 to allow this to continue outside of the view of the Board
without doing something about it
17
18 Flahie email to further the fraudulent concealment scheme to fabricate and
19 fraudulently conceal the MySpace Stock purchase documents published in the
20 November 2004 10Q, to hide the fact the documents were fabricated and
21 backdated.
22 c. November 18, 7:20PM Rosenblatt emails Flahie Subject:
23 Re:Myspace Term Sheet, stating:
24 Tom, I know how this could look but it is NOT at-all how it may
appear.
25
Andy NEVER looked at it as a vantage shareholder, but as a Board
26 member looking out for Intermix as a whole.
27 I believed (and was right) that he was better positioned than I was to
extract terms that would be acceptable to the Board at large. Over the
28 past week he was, to my surprise, able to get the terms we all think are
39
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%=-%3@%.(&
1 BETTER for the company and make the Redpoint deal a great deal.
2 In hindsight, I should have asked him to give those new terms to
Chris and we should have sent the term sheet to Redpoint. I plan on
3 clarifying with Redpoint tomorrow that Andy was simply helping us
get a deal done and the Company will take it from here.
4
Rosenblatt uses email to further the fraudulent concealment scheme to fabricate
5
and fraudulently conceal the MySpace Stock purchase documents published in the
6
November 2004 10Q, to hide the fact the documents were fabricated and
7
backdated.
8
d. November 18, 2004 at 7:51PM, Sheehan forwards the email thread
9
and CFOs effective whistleblower notification to Orricks Harroch who is
10
directly involved in the incident. Sheehan uses email to further the fraudulent
11
concealment scheme to fabricate and fraudulently conceal the MySpace Stock
12
purchase documents published in the November 2004 10Q, to hide the fact the
13
documents were fabricated and backdated to conceal scheme to sell 49% of
14
Myspace.com to conflicted Interlocking fellow AskJeeves Director, Geoff Yang
15
and other insiders. And, Rosenblatt, Carlick, and Sheehan approved
16
such purchase even though they previously acknowledged that it was against
17
Intermix shareholders interests.
18
19 108. Google begins a course of conduct in support of the antitrust
20 conspiracy by using an existing commercial agreement with AskJeeves, Inc., to
21 make amendments and grants of benefits to AskJeeves in order to generate rewards
22 and induceents for AskJeeves Directors Carlick and Yang to continue their
23 improper actions which Google hopes and believes will benefit Google in the
24 future, by inducing Carlick and Yangs continued breaches of fiduciary duty and
25 duty of care they owe both AskJeeves, Inc., VantagePoint Partners, RedPoint
26 Partners, Intermix, Inc., and Myspace, Inc..
27
28 iii. Googles Drummond directly told Yang or alternatively the
40
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%=(%3@%.(&
1 Google board disclosed the securities law violation strategy that Yang should
2 Participate in and form with Intermix, Inc. and certain insiders, namely to violate
3 securities law. Selling securities and buying securities that are subject
4 to transactions that Drummond, Google, AskJeeves, Yang, Doerr, Perkins
5 participated in or knew about by January 13, 2005. The scheme of backdating dates
6 of sales or issuance of securities of SEC reporting entities Myspace, Inc. took
7 contribution of documents that were fraudulently backdated or in violation of
8 Section (5)(a) and Section 5 of the Securities Act. Google at all times
9 used its Board of Directors and Drummond and Orrick Law and fraudulently
10 concealed employee Bill Campbell instructed Intemix, Inc. CFO and former
11 Chairman who resigned after certifying the SEC filings of Intermix, Inc. on and
12 after the November 2004 of the Intermix 10q first disclosed the existence of the
13 fabricated false stock sales agreement dated December 17, 2003. This scheme was
14 created and perfected by co-conspirator Google, Inc. current General counsel:
15 i. Fully Incorporated by Reference: In the Matter of Google Inc.
16 and David C. Drummond, Rel. No. 33-8523 (Jan. 13, 2005)
17
18 I. Google, Inc. (Google) and David C. Drummond
19 (Drummond) (collectively Respondents), pursuant to Rule 240(a) of
20 the Rules of Practice of the Securities and Exchange Commission
21 (Commission) [17 C.F.R. 201.240(a)], submit this Offer of
22 Settlement (Offer) in anticipation of cease-and-desist proceedings to
23 be instituted against them by the Commission, pursuant to Section 8A of
24 the Securities Act of 1933 (Securities Act).
25 D. Legal Conclusion
26 20. Google offered to sell and sold its securities without a
27 registration statement filed or in effect and without a valid exemption
28 from registration. As a result of the conduct described above, Google
41
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%=.%3@%.(&
1 violated, and Drummond caused Google to violate, Sections 5(a) and

2 5(c) of the Securities Act.
3 IV.On the basis of the foregoing, Respondents
4 hereby consent to the entry of an Order by the Commission, pursuant to
5 Section 8A of the Securities Act, that Respondents Google and
6 Drummond cease and desist from committing or causing any violations
7 and any future violations of Sections 5(a) and 5(c) of the Securities Act.
8 iii. On November 24, 2004, Google agrees to execute Second
9 Amendment to induce AskJeeves Director Carlick to support the below fair
10 market sale of a stake in Myspace.com to Yangs private equity fund RedPoint
11 Partners by agreeing to amend, increase the rates/terms, and extend the time in
12 AskJeeves favor that was part of First Amendment to Google Services
13 Agreement
14 ii. First Amendment to Google Services Agreement and Order
15 Form, dated July 26, 2004, by and between Ask Jeeves Europe
Limited (as assignee of the Ask Jeeves UK Partnership) and Google
16 Technology, Inc. (previously filed as Exhibit 10.8.2.2 to the
17 Registrants Quarterly Report on Form 10-Q, filed November 8, 2004,
and incorporated herein by reference).
18
19 iii. Second Amendment, dated November 24, 2004, to Google
Services Agreement and Order Form by and between Ask Jeeves
20 Europe Limited (as assignee of the Ask Jeeves UK Partnership) and
21 Google Technology, Inc. (previously filed as Exhibit 10.8.2.3 to the
Registrants Form 10-K, filed March 15, 2005, and incorporated
22 herein by reference).
23
109. Googles agreement to amend the recent commercial search deals
24
with AskJeeves is a critical benefit allowing AskJeeves to receive the terms,
25
valuation, and price it needs in its 2004 initiated effort to find a buyer.
26
And Intermix agreeing to be induced and controlled by AskJeeves Directors Yang
27
and Carlick, and Redpoint manipulated by KPC and Googles Doerr through Chief
28
42
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%=A%3@%.(&
1 Legal Officer Drummonds ongoing negotiations with the SEC for the section 5
2 security violations being negotiated with the SEC in late 2004, ending
3 January 3, 2005 with the consent decree Defendants signed.
4 INTERMIX CHAIRMAN AND CFO RESIGN DAY BEFORE ASKJEEVES
DIRECTOR #2 DEAL TO BUY CONTROL STAKE IN MYSPACE
5
110. The co-conspirators pressed forward with their Myspace.com bid-
6
rigging scheme, ignoring the pleas of Intermixs CFO Flahie and its Chairman
7
Edell who both resigned on December 7, 2004, approximately
8
i. 3 weeks after the November 2004 10Q is filed with the
9
fabricated Myspace asset agreement from December 17, 2003.
10
ii. 1 day before AskJeeves Director #2 announces deal to buy a
11
control stake in Intermixs 100% owned Myspace.com for $11 million dollars
12
when at such time, publicly traded Intermix is valued by the public marketplace at
13
over $150 million dollars.
14
111. Edell and Flahies resignation is disclosed first at the end of a
15
December 8, 2004 Intermix press release announcing
16
Redpoint and the Company, along with the original founders of
17 MySpace.com, have also entered into a non-binding term sheet
providing for Redpoints investment in a newly organized,
18 independent subsidiary of the Company. MySpace, Inc. which will
include the Myspace.com business. Under the terms of the proposed
19 transaction, Redpoint would acquire a minority ownership stake in
MySpace, Inc. and Intermix would maintain a majority position.
20
Notably, Yangs Redpoint also purchased $4 million in stock of Intermix at a
21
discount in December 2004 through a Stock Purchase Agreement and Investor
22 Rights
23 Agreement that provided the benefit of significant ongoing Intermix confidential
24 Information Rights to Yang.
25 112. Sheehan on December 9, 2004 at 10:04AM emails one of Partners
26 VantagePoint Partners LLC and states,
27 Further Redpoint has agreed to a voting agreement such that they
will vote their shares with the majority of the board with respect to
28 sale, IPO or additional capital raise. Finally, Intermix has the ability
43
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%==%3@%.(&
1 for one year to buy out the other investors in myspace if an acquiror
makes a bid for intermix.
2
113. No valuation or specific terms of this transaction are disclosed until
3
February 15, 2005, when a press release announces key deal points of the
4
Myspace.com at below fair market price:
5
Additional terms of the transaction announced today include
6 Intermixs right to maintain its majority ownership position in
Myspace, Inc. priot to certain triggering events and a one-year option
7 for Intermix to purchase all outstanding shares of Myspace, Inc. under
certain circumstances and at a pre-set valuation
8
114. AskJeeves M&A meetings with Allen&Co start before Yang signs
9
agreement to acquire control stake in Myspace.com, according to its SEC filings:
10
On December 3, 2004, the board of directors of Ask Jeeves held a
11 special meeting at which, among other agenda items, Mr. Battle
proposed engaging Allen & Company to review strategic alternatives
12 for the company.
13 Ask Jeeves considered Allen & Company desirable because of
its strong contacts with media companies that might be interested in
14 purchasing Ask [*4]Jeeves, such as IAC and AOL (Credit Suisse
15 Bank v. AskJeeves, Inc., Defendant's Rule 19-a Statement, 79).
16 115. As of December 2004, Allen & Co was representing AskJeeves
17
in discussions with at least IAC and AOL to be sold:
18
i. On December 21, 2004, Messrs. Battle and Berkowitz and
19 Barry Diller, Chairman and Chief Executive Officer of IAC, and
Shana Fisher,Senior Vice President, Strategy and M&A of IAC, met
20 to discuss preliminarily a potential transaction. Later that same day,
Messrs. Battle and Berkowitz, together with representatives of Allen
21 & Company, met with representatives of a first alternate party at Allen
& Company's offices in New York
22
ii. In late December 2004, Ask Jeeves met with representatives of
23 IAC and AOL & both expressed interest in buying Ask Jeeves
24 116. AskJeeves Carlick February 9, 2005 becomes Chairman of Intermix.
25
117. Once the December 2004 and February 2005 transactions were
26
completed, Yang, Carlick, and Askjeeves leveraging Redpoint Partners and
27
VantagePoint Partners were positioned to control and block the future commercial
28
44
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%=&%3@%.(&
1 search agreement efforts of Intermix and myspace.com.

2 118. Yang and Carlick entered into a conspiracy with Google, agreeing to
3 unlawfully use and abuse their control positions on the Boards of both MySpace,
4 Inc. and its parent corporation, Intermix, Inc.
5 C. BID RIGGING #3- PREVENTING COUNTER BIDS TO NEWS
CORP THROUGH SEPTEMBER 30, 2005
6
119. News Corp. knew about the secret bid-rigging agreement between
7
AskJeeves and Google because Thomas Perkins was simultaneously a director of
8
News Corp. and managing director of Googles single largest shareholder KPC,
9
during the relevant time period. Further, KPC had an additional managing
10
Director, Doerr, on the board of Google during all relevant times. Further, News
11
Corporations Director Thornton was on the same Intel Board with Google
12
Director Otellini.
13
120. Google provided information about Myspace.com directly to News
14
15 Corporation before News Corporation made offer to acquire Intermix in 2005.
16 i. News Corp Director KPCs Perkins 2008 interview disclosed:

17
Q: Did Rupert Murdoch bring the MySpace acquisition to the News
18 Corp board?
19
Perkins: Yes. And he discussed it with me a little bit ahead of that. I
20 was very enthusiastic about. He discussed another one with me, which
21 I wont mention, that I was unenthusiastic about. It was acquired by
somebody else and it has fizzled. For a long time I was Ruperts
22 listening post in Silicon Valley.
23
Q: Why were you enthusiastic about it? A lot of people thought he
24 was kind of crazy.
25
Perkins: Because of Google. And because these things can take off. I
26 thought it was a good bet. The people were impressive.
27 (Valley Boy: Part 1 of an Interview with VC Pioneer Thomas J. Perkins January
17, 2008)
28
45
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%=)%3@%.(&
1 ii. Perkins directs News Corporations acquisition of Intermix and

2 Myspace leveraging information passed from his partner at KPC, Googles
3 Doerr.
4
121. At all relevant times, News Corp. shared a common director with the
5
single largest shareholder in Google. News Corp. was able to purchase Intermix at
6
a severe discount by purchasing it during a time when (i) Google was withholding
7
a bid for exclusive search engine contract for myspace.com, and when (ii) Yang
8
and Carlick directed Intermix not to renew an exclusive search engine contract
9
with Yahoo or any other search engine in order to have Google wait on a bid for a
10
search engine contract until AskJeeves (which was being routed search traffic
11
through Revenue Science from myspace.com) was purchased by IAC.
12
122. News Corp is in discussions with AskJeeves and Allen & Co. prior to
13
March 21, 2005. A Financial Times article states:
14
"Murdoch had earmarked $2bn to spend on websites that could
15
revive the company's internet strategy and was considering making a
16 $1.9bn offer for the Ask Jeeves search engine. But although his
advisers were trying to sell him the merits of the Ask Jeeves deal, he
17
was uneasy."("The rise and fall of Myspace", Matthew Garrahan,
18 December 4, 2009)
19
123. According to AskJeeves/IAC 2005 S1, IAC was also in discussions
20
with AOL, further proof of undisclosed collusion that Google fostered to get initial
21
partners AOL and AskJeeves/IAC to join the antitrust conspiracy memorialized by
22
the March 6, 2005 list of then existing Special Agreements:
23
On March 9, 2005, members of senior management of IAC
24 advised Ask Jeeves financial advisor that IAC had discussed
with the second alternate party the possibility of granting the
25
second alternate party a participation in the acquisition of Ask
26 Jeeves. The next day, a representative of the second alternate
27 party contacted Mr. Berkowitz to discuss the possibility of a
business combination between Ask Jeeves and the second
28 alternate party alone.
46
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%=B%3@%.(&
1
2 On March 10, 2005, a representative of the first alternate party
contacted a representative of Allen & Company to advise that
3 the first alternate party remained interested in considering
4 acquiring
5 During the week of March 14, Ask Jeeves and IAC again
discussed with the second alternate party a possible commercial
6
relationship with AskJeeves, including the possibility of a
7 potential equity participation for the second alternate party at a
future time
8
124. Indeed the IAC SEC 2005 S1 filing discloses AskJeeves became even
9
more dependent on Googles continued aid and concessions after a new class
10
action liability appears as advertisers overcharged for PPC advertising sued
11
and Ask Jeeves was served this complaint on February 28, 2005 in:
12
13 Circuit Court of Miller County, Arkansas captioned Lanes
Gifts and Collectibles et al. vs. Yahoo! Inc. et al.,
14
15 Ask Jeeves, Inc., Google Inc., Yahoo! Inc., America Online
named as defendants.
16
17 defendants overcharged advertisers by billing and collecting
fees for price-per-click (PPC) advertising in response to clicks
18
that defendants knew were not generated by bona fide
19 consumers. It further alleges that defendants engaged in an
industrywide conspiracy to conceal the alleged overcharges
20
21 125. The same day AskJeeves contacted Google:
22
ii. Ask Jeeves sent Google a letter requesting indemnification
23 for any liability under this lawsuit arising from its sponsored
24 links.
25 126. The S1 proves the March 21, 2005- IAC announced merger agreement
26 to acquire AskJeeves for $1.85 Billion,with: JP Morgan as financial advisor to
27 IAC And Allen & Company and Citigroup Global Markets as financial advisors
28 to Ask Jeeves was contingent on a Google indemnification agreement:
47
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%=/%3@%.(&
1 On March 18, 2005, Ask Jeeves received a letter from Google

2 agreeing to such indemnification and control of the defense;
(AskJeeves, Inc. SEC, Form S1, 2005)
3
Intermix sought to avoid auction prior to July 18, 2005 merger agreement.
4
5 127. This existing web expanded with NewsCorp and IAC in 2005 into bid
6 Rigging as part of the opportunity to acquire MySpace, Inc. and create a dominant
7
Search Engine which would produce increased profits for participants.
8
9 128. On July 18, 2005 at 9:32AM, Deutsches Tor Braham emails Sheehan
10 and Rosenblatt and states, We did not go out to buyers, because we were
11 honoring your requests to not create an auction environment.

129. Rosenblatt further aided News Corp. in assuring News Corp.s
12
purchase of Intermix/MySpace at a severe discount by warding-off offers to
13
purchase Intermix/MySpace from competing media company bidders such as
14
Viacom. In emails sent by Rosenblatt to News Corp. during this time frame, he
15
tells News Corp. such things as:
16
_I would like to discuss my specific role and structure whenever
17 you are ready.
18 It is no rush unless Peter and Rupert [Murdoch] want me to sign an
employment agreement by Sunday. . . .
19
_I am burning some real equity with every major media company by
20 getting [the deal] done . . . better have a good job for me cause I aint
gonna work in this town again. . . .
21
_Tell Thom Murdoch and I cut the deal in 30 mins and I got 100%
22 of what we wanted. Deal closing by Monday.
23 130. Likewise, at that same time, Rosenblatt received an email from
24 Montgomery & Co., LLC, the investment banker firm handling News Corps
25 attempted acquisition of Intermix/MySpace, telling Rosenblatt,
26 Viacom coming in hard. . and
27 You need to dance with Viacom. Slow them down. I know you can do it.
28 131. Even the U.S. District Court for the Central District of California has
48
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%=C%3@%.(&
1
recognized that someone was behind some form of unlawful manipulation of the
2
price of Intermix. The Court (Jim Brown v. Brett Brewer, et al.; Case No. CV 06-
3
3731-GHK (SHx) ) on Date of June 17, 2010; stated:
4
the issue of manipulation is triable with respect to all of the other
5 board members. Accordingly, as a reasonable jury could potentially
conclude that a majority of the directors was interested or manipulated
6 by someone who was, we hereby DENY Defendants Motion for
Summary Judgment on this second basis for Plaintiffs claim of
7 breach of the duty of loyalty.
8 132. JP Morgan report to News Corp shows recognition by NWS board
9 and red flag that NWS despite acquiring a Delaware based public company with a
10 Revlon fiduciary duty and duty of loyalty to its shareholders, never the less,
11 obtained,
12 "Potential to acquire MySpace.com at significantly under fair market value"
13 because the public markets are supposed to be protected by SEC and precedent like
14 Revlon that minority passive shareholders can depend on getting "FAIR MARKET
15 VALUE" when their stock/shares acquired (Exhibit #7).
16 133. Further, AskJeeves including Directors Carlick and Yang are sued by
17 two shareholders shortly after the sale to IAC is announced. According to Ask
18 Jeeves, Inc.s SEC filings,
19 i. The same SEC S1 filing disclosesAskJeeves shareholder
20 Wiltsie complaintwas filed March 23,2005 in Delaware Court of Chancery:
21 is brought on behalf of a purported class of Ask Jeeves stockholders,
and alleges that the board of Ask Jeeves breached its fiduciary duty by
22 entering into the merger agreement without conducting an auction,
obtaining the best price possible, or informing itself of and
23 investigating other available transactions, while IACs stock was
overvalued because of its repurchase programs, and while Ask Jeeves
24 stock was undervalued. The complaint also alleges tht IAC knowingly
participated in and benefited from the Ask Jeeves director defendants
25 breaches of their fiduciary duties. The complaint seeks to enjoin the
merger, rescind it if completed, obtain an award of damages for the
26 purported class, direct the Ask Jeeves board to use corporate
management devices to ensure the best available transaction.
27
ii. Shareholder Benjamin Parris filed a second complaint which
28
49
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%&-%3@%.(&
1 is brought on behalf of a purported class of Ask Jeeves stockholders

and alleges that the IAC transaction fails to fully value Ask Jeeves and
2 that the transaction was times to place an artifical cap on the market
prices of Ask Jeeves stock. The complaint seeks to enjoin the merger,
3 have the merger rescinded if completed.
4 134. After the AskJeeves Class action lawsuits are filed against Carlick,
5 Yang and AskJeeves for Revlon related issues, because of the importance in
6 maintaining the secret special agreement with Google, they fail to recognize the
7 conflict of interest issues they are creating, fail to abide by Section 8 of the Clayton
8 act, and fail to resign as Directors from Intermix, MySpace, Inc. or AskJeeves.
9 135. IAC uses the AskJeeves shareholder lawsuits to put even
10 more pressure on Yang and Carlick to take part in the Intermix and Myspace bid
11 rigging actions, and indeed, IAC refuses to complete the AskJeeves acquisition
12 until July 19, 2005, the day after Intermix signs an acquisition agreement with
13 News Corporation.
14 136. Further, News Corps Director Stanley Shuman who is a Managing
15 Director of Allen & Co. resigns October 6, 2005, days after the News
16 Corporation acquisition of Intermix closes, admitting the conflicts of interest
17 Shuman and Allen & Co. were facilitating between the co-conspirators:
18 "in order to permit News Corporation to come within applicable
19 governance provisions by having its Board comprised of a majority of
independent directors I have decided to resign as a Director."
20
(October 6, 2005, News Corporation, PRNewsWire)
21
D. BID RIGGING #4: THE PAID SEARCH AUCTION BID RIGGING
22
137. Both Intermix and its Myspace subsidiary were free to get the benefits
23
of selecting a new Search Partner by the end of July 2005 when its Yahoo two
24
year commercial agreement ends. Internal Document For Intermix-
25
26
'Network Fiscal 2006;Major Drivers and Q2 Objectives: "3.
27 Key business relationships end: Adknowledge (e-mail);
Overture (Search)" (Exhibit #8)
28
50
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%&(%3@%.(&
1
138. In May or June 2005 update to Board, Myspace lists as among its
2
New Features Develop and improve search capabilities with a hand written
3
note by one of Directors:Site Search emphasizing importance of topic.
4
139. Internal Document for Intermix Board Meeting in June 2005 states:
5
Still reliant on two major revenue streams" listing
6
"Overture Search"3 as one (Exhibit #9).
7 140. Intermix had separated into two search engine divisions, the
8
Myspace Search division headed by Myspace, Inc. CEO Chris DeWolfe and the
9
10 Intermix Search divison headed by its CEO Rosenblatt. Both divisions were in
11 discussions with Yahoo and Google to sign new Search Partnership agreements
12
prior or after signing a July 18, 2005 acquisition agreement with News Corp.
13
The company had a great opportunity based on the current economic environment
14
as well as a duty to shareholders to try to consummate a new commercial search
15
agreement with one of the top two potential partners, Yahoo or Google, on the
16
best possible terms prior to September 30, 2005.
17
141. Intermix and News Corp on July 18, 2005 tout new Myspace.com
18
19 data making it even more compelling for Google or Yahoo to desire consummating
20
a commercial paid search agreement with Intermix:
21
In June the site served more than 8 percent of all ads on the Internet,
22
putting it in the company of Web Giants Yahoo!, Google, and AOL.
23 (Intermix/News Corporation, PR Newswire, July 18, 2005)
24
In fact, Intermix and its MySpace subsidiary, were already in discussions
25
with both Google and Yahoo prior to time of the Shareholder vote on September
26
27
3
28 Overture is the name of the web search technology platform and company that
Yahoo acquired in 2002.
51
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%&.%3@%.(&
1 30 2005, but were blocked from closing a commercial search agreement with either
2
company.
3
4 142. In furtherance of the conspiracy:
5 i) Google induces and directs AskJeeves Director Carlick to leverage the

6 control his private equity firm has seized over publicly traded Intermix to terminate
7 its second year of a valuable commercial agreement with distribution partner
8 Kazaa (Sharman Networks).
9 ii) The day after IAC signs the acquisition agreement to acquire AskJeeves
10
for $1.9 billion dollars, Intermix which is controlled by the private equity fund of
11
12 AskJeeves Director David Carlick announces it has hired IACs corporate
13 controller to become the CFO of Intermix. iii) AskJeeves uses its control of
14
Intermix and Myspace, Inc. to avoid the contractual obligation of nominating an
15
16 unaffiliated 5th Director to the Board iv) Google Director Doerr agrees to invest
17 hundreds of millions of dollars into AskJeeves Director Geoff Yangs startup,
18
M2Z in order to induce Yang to use his control of Myspace, Inc. to continue to go
19
20 along with the online search bid rigging scheme v) After raising $4.4 billion
21 dollars in its August 2005 secondary, Google agrees not to pursue an acquisition
22
attempt of Intermix or to pursue an online search engine commercial agreement
23
24 with Myspace, Inc. , and further:
25 vi) Intermix and News Corporation pay hundreds of millions of
26
dollars in undisclosed cash payments to managers of Myspace so that they a)
27
28 support the scheme to delay consummating a commercial search agreement until
52
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%&A%3@%.(&
1
2 after the September 30, 2005 shareholder vote to approve the News Corp
3 acquisition offer b) fabricate and understate financial forecast information being

4
provided to Intermixs investment bankers creating fairness opinions for the
5
6 Boards review of the News Corporation $12.00 per share offer vii) Intermix
7 scuttles Yahoos attempt to complete an online paid search agreement prior to the
8
closing of the September 30, 2005 News Corporation acquisition by a) spiking a
9
10 key presentation in June 2005 to mislead Yahoo as it is courting Intermix b) The
11 CEO of Intermix passes on confidential information to News Corporation
12
regarding Yahoo and Intermix business meetings.viii) Google and
13
14 News Corporation manipulate purported independent director Dan Mosherthrough
his
15
16 position as a junior executive at Verisign.ix) Google induces AskJeeves
17 Directors controlling Intermix and Myspace to deliberately breach the July 18,
18
2005 merger agreement by a) failing to purchase 100% of Myspace, Inc. b) failing
19
20 to exercise or draw down the Exhibit B Purchase Option loan. C) rejecting offer
21 by Intermixs investment bank to raise debt financing to purchase 100% of
22
Myspace, Inc. d) Google Induces News Corporation to violate HRS1 because
23
24 Google wants to get information from and about Intermix and Myspace employees
25 before the News Corporation acquisition of Intermix is approved by the
26
Department of Justice Antitrust division xi) After IAC acquires AskJeeves on July
27
28 19, 2005, IAC in theory should have aggressively sought to consummate a
53
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%&=%3@%.(&
1
2 commercial paid search agreement with Myspace, Inc. or its parent Intermix.
3 Instead there is no effort.xii) AOLs declining share of the online search

4
audience evidence by early 2005 should have made AOL a candidate to
5
6 aggressively pursue completing a commercial search agreement with
7 Myspace, Inc. or its parent Intermix, instead AOL joins the conspiracy and
8
discontinues any such effort. xiii) Co-conspirators siphoning, hijacking, and
9
10 misappropriating Intermix and Myspace search traffic through a) terminating an
11 existing Intermix commercial distribution partnership b) employing an
12
intermediary broker Revenue Scienceto inflate AOLs share of search market to
13
14 create the $20b dream xiv) 2014 evidence unsealed in Federal Court that News
15 Corporation engaged in illegal gentlemens agreement links to self described
16
Promise me in blood deal admitted by co-defendants through News
17 Corporations
18
employee published 2009 book titled Stealing Myspace and that included a tying
19
20 agreement involving AOLs Jonathan Miller becoming head of Fox Interactive
21 while Googles Tim Armstrong becomes head of Time/Warners internet group,
22
AOL.
23
LARGEST SOURCE OF NEW INTERMIX PAID SEARCH USERS IS
24 TERMINATED EARLY
25 143. November 2003 eUniverse began a two year partnership with
26 Sharman Networks, the company that owned and operated the #1 product
27 downloaded by consumers each month during this period which was the Kazaa
28 music application. When user would download the Kazaa software product,they
54
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%&&%3@%.(&
1
would have to opt-in to receive two search related download applications that
2
were built into the Kazaa software.
3
i. eUniverses Search product PerfectNav was downloaded as part
4
of Kazaas KMD music program and generated search revenue from the
5
consumers who downloaded it.
6
ii. eUniverse/Intermix/Myspace.com used the Kazaa partnership to
7
8 drive Yahoo/Overture search related revenue to benefit its shareholders and all its
9 divisions:
10 144. Sharman Networks also had an exclusive partnership with
11 Interactive Search Holdings (ISH) to distribute their Google powered MySearch
12 toolbar to their users. Therefore, eUniverse was during at least such period,
13 Sharmans exclusive Search Redirect application partner with their
14 PerfectNav.com product.
15 i. AskJeeves learns through Carlicks use of confidential and
16 proprietary information taken from his position as a Director of eUniverse that ISH
17 is experiencing significant growth and also is a beneficiary of a Kazaa distribution
18 agreement.
19 145. ISH is described as focused on
20 search-centric downloadable applications.
(Ask Jeeves: Why Buy Interactive Search Holdings?, March
21 2004, CNET, James Arder)
22 i. ISH was a direct competitor of eUniverses downloadable
23 application division focused around paid search.
24 ii. AskJeeves makes use of the knowledge it gains from eUniverse
25 through Carlick to acquire ISH on or around March 2004.4
26 146. AskJeeves and Carlick therefore steal a corporate opportunity
27
4
28
55
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%&)%3@%.(&
1 from eUniverse as eUniverses business would have benefitted from acquiring its
2 rival ISH. Further, AskJeeves through the acquisition of ISH in March 2004
becomes a
3
direct competitor to eUniverse.
4
147. AskJeeves SEC filings show Google amended their July 26,
5
2004, Amended and Restated Advertising Services Agreement and increased,
6
bettered, extended the terms of its AskJeeves/Google commercial arrangement on
7
November 10, 2004 by signing the Amendment Number One.
8
i. Amended and Restated Advertising Services Agreement, dated
9 July 26, 2004, by and between Ask Jeeves, Inc. and Google,
10 Inc. (previously filed as Exhibit 10.8.1.3 to the Registrants
Quarterly Report on Form 10-Q, filed November 8, 2004, and
11
incorporated herein by reference).
12
iii. Amendment Number One, dated November 10, 2004, to
13
Amended and Restated Advertising Services Agreement by and
14 between Ask Jeeves, Inc. and Google Inc. (previously filed as
Exhibit 10.8.1.4 to the Registrants Form 10-K, filed March 15,
15
2005, and incorporated herein by reference).
16
Google provided such positive amendment that AskJeeves sought
17
through
18
the Amendment Number One because AskJeeves Director Carlick agreed and
19
took actions using his influence as an eUniverse Director to get the recent newly
20
appointed CEO Richard Rosenblatt to terminate the 2nd year of eUniverses
21
multiyear agreement With Sharman/Kazaa.
22
148. UBS Internet Search report May 25, 2005 Why Toolbars Matter:
23
highlights value of AskJeeves and eUniverse/Intermixs search download
24
25 applications including toolbars.
26 i. Toolbars are key contributors to YHOO & GOOG search

numbers
27
28 ii. Competition for toolbar installation is increasing,
56
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%&B%3@%.(&
1
149. Google directly benefitted from Intermix/eUniverses loss of
2
Kazaa Media as a partner, because Intermix/eUniverse was partnered with Yahoo.
3
AskJeeves and Google generated more search revenue from each Kazaa download
4
after AskJeeves and Carlick induced eUniverse/Intermix to terminate the 2nd year
5
of its Kazaa partnership, while eUniverse/Intermix and Yahoo lost out on the
6
opportunity that had been secured in November 2003 through eUniverses having
7
paid a significant cash advance to Kazaa. Shareholders were injured because the
8
lost revenue depressed the value of the stock and value of the company. Further,
9
upon the ISH acquisition, Intermix/eUniverse Director Carlick simultaneously
10
serving as Director of AskJeeves was in violation of Section 8 of the Clayton act.
11
MARCH 2005 IAC SIGNS LOI WITH ASKJEEVES AND IAC EXECUTIVE
12 BECOMES CFO OF INTERMIX
13 150.IACs executive Lisa Terrill is announced asthe new CFO of
14 Intermix on March 22, 2005, the day after the IAC and AskJeeves acquisition
15
agreement is signed (Exhibit #10). This allows IAC to ensure the AskJeeves
16
Directors are complying with their end of the conspiracy and more importantly
17
facilitates the scheme of omitting several important disclosures in Intermixs SEC
18
19 filings in order to mislead shareholders, including fraudulently concealing the fact
20 that the initial Yahoo paid search agreement has expired by the end of July 2005.
21 i. Before eUniverse changed its name to Intermix, the company
22 was disclosing the status of the Yahoo/Overture commercial search engine
23 agreement on a quarterly basis because of its materiality. In 2004, Intermix was
24 generating growing revenue from its exclusive search engine partner, Yahoo as
25 part of 2 year agreement slated to end in June 2005.
26 ii. Intermix never disclosed to the public in August 2005 that the
27 Yahoo partnership which was mentioned in the Risk Section of the 10Q did not
28 exist anymore. Intermix never disclosed to the public in September 2005 that the
57
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%&/%3@%.(&
1
Yahoo Search Partnership described in the Intermix SEC most recent filings had
2
ended.
3 iii. On November 12, 2004, Intermix in its 10Q stated,
4 "The increase in revenues was due to $3.5 million of higher
advertising revenues from applications downloads and advertising rate
5 increases on the Intermix Network of websites" and
6 "In addition, revenues from Advertising.com, Inc. and Overture
Services, Inc. were approximately 10% and 30%, respectively of first
7 six months fiscal year 2005 network segment revenues. and
8 iv. The November 2004 filed 10Q also clearly affirms that the
9 revenue generated through Issuers agreement with Yahoo/Overture predominately
is
10
generated from issuers download application business and such business and
11
revenue was material. Thus defendants stated and affirmed in such 10Q:
12
These concentrations of our business in certain products, vendors
13 and in two customers creates the risk of adverse financial impact if we
are not able to continue to sell these products, source these products
14 from our current vendors or continue to use Overture Services, Inc. in
our download application business"
15
16 v. February 7, 2005 -intermix, Press Release, "This increase was
17 primarily due to higher advertising and search revenues realized by the
18 Company's Intermix Network Subsidiary."
19 vi. February 14, 2005- 10Q:
20
"revenues from Advertising.com, Inc. and Overture Services, Inc.
21 were approximately 10% and 27%, respectively of first nine months
22 of fiscal year 2005 network segment. These concentrations of our
business in certain products, vendors and in two customers create the
23
risk of adverse financial impact if we are not able to continue to sell
24 these products, source these products from our current vendors or
continue to use Overture Servics, Inc. in our download application
25
business."
26
vii. June 29, 2005, Overture/Yahoo is listed as a major vendor of
27
28 Intermix in Intermixs last 10K released on June 29, 2005, In Risk section:
58
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%&C%3@%.(&
1
2 We have a concentration of our business in certain products
and vendors, and in two customers. And states
3
4 revenues from Advertising.com, Inc. and Yahoo! Search
Marketing (formerly Overture Services, Inc.) were
5 approximately 10% and 22%, respectively, of fiscal year 2005
6 network segment revenues. And states
7 These concentrations of our business in certain products,

8 vendors and customers create the risk of adverse financial
impact if we are not able to continue to sell these products or
9 source these products from our current vendors. We believe that
10 we can mitigate the financial impact of the loss of a key vendor
by sourcing an alternative vendor, but we cannot predict.
11
viii. August 15, 2005- Intermix June 30, 2005 10Q discloses:
12
13 " In addition, revenues from Yahoo! Search Marketing
14 (formerly Overture Services, Inc.) and Advertising.com, Inc.
were approximately 14% and 10%, respectively, of the first
15 quarter of fiscal year 2006 network segment revenues. These
16 concentrations of our business in certain products, vendors and
customers create the risk of adverse financial impact if we are
17 not able to continue to sell these products or source these
18 products from our current vendors. We believe that we can
mitigate the financial impact of the loss of a key vendor by
19 sourcing an alternative vendor, but we cannot predict the timing
20 of locating and qualifying the alternative vendor, or the pricing
and terms that the alternative vendor might offer."
21
ix. Therefore, defendants were still actively operating their online
22
search revenue which in their SEC statements was being generated through the
23
companys agreement with Yahoo and such revenue, agreement, and source had
24
been disclosed as a material item in all quarterly filings covering the calendar 2004
25
and 2005 for Intermix.
26
x. Intermix fails to disclose in last 10Q released in August 2005
27
28
59
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%)-%3@%.(&
1
or any proxy material before the Shareholder vote on September 30 that it needed
2
to secure another Search Partnership with Yahoo or another Search company based
3
on the expiration of its 2 year Search partnership with Overture/Yahoo which had
4
occurred prior to the September 30, 2005 shareholder vote.
5
xi. Intermixs initial partnership agreement with Overture, was no
6
longer active after July 18, 2005
7
xii. Therefore shareholders were not aware that Intermix and
8
Myspace needed a new Search Partnership or were even able to sign a new Search
9
Partnership at any time after July 18, 2005 and before shareholder vote on
10
September 30 , 2005.
11
xiii. Intermix failed to disclose to public prior to August 25, 2005 or
12
in the Proxy material, that in fact Intermix was in need currently of locating and
13
qualifying alternative vendors to replace the original Overture/Yahoo partnership
14
which had expired/ended at the time the Proxy was distributed.
15
xiv. Intermix until they signed a new deal with Yahoo or another
16
comparable Search Engine company, in fact, had been effected by the loss of a
17
key vendor.
18
ixv. Intermix never disclosed to the public in August 2005 that the
19
Yahoo partnership which was mentioned in the Risk Section of the 10Q did not
20
exist anymore
21
xvi. Intermix never disclosed to the public in September 2005 that the
22
Yahoo Search Partnership described in the Intermix SEC most recent filings had
23
ended.
24
xvii. Intermix fails to disclose in last 10Q released in August 2005
25
or any proxy material before the Shareholder vote on September 30 that it needed
26
to secure another Search Partnership with Yahoo or another Search company based
27
28
60
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1
on the expiration of its 2 year Search partnership with Overture/Yahoo which had
2
occurred prior to the September 30, 2005 shareholder vote.
3
xviii. September 30, 2005- Neither Intermix or Myspace, Inc.was
4
able to get a proposal or offer or close a deal from or with Google, inc. for
5
an acquisition or a Search Engine Partnership despite being in discussions
6
with Google since at least May 2005.
7
xix. September 30, 2005 Neither Intermix or Myspace, Inc.was able
8
to get a proposal or offer or close a deal from or with Microsoft, inc. for
9
online search partnership or for determing their interest in a buyout since at
10
least July 18, 2005 when Deutsche Bank emailed Rosenblatt indicating
11
Microsoft would have been interested in looking at opportunities to transact
12
with Intermix.
13
xx. To cure violation, Defendants would have had to disclose,
14
15 Intermix has recently ended its commercial agreement with Yahoo.
The agreement was not terminated but was at the end of its two-year
16
term and management opted not to renew the commercial agreement.
17 Yahoo provided paid search services for Intermix. Yahoo was a
material vendor of the company and the company hopes to replace
18
such arrangement as soon as possible or practical.
19
GOOGLE ADDS MORE INCENTIVES FOR ASKJEEVES IN 2005
20
21 151. Google and its Director Doerr a partner at Kleiner Perkins further
22
induce Yang, AskJeeves, and IAC Corporation to go along with the
23
scheme to delay the Intermix and Myspace consummation of a new search
24
25 agreement through three further incentives.
26
152. First, on or around April 2005, Geoff Yang receives
27
commitment from Google largest shareholder KPC to co-invest behind Yangs
28
61
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%).%3@%.(&
1
2 broadband startup, M2Z, Inc. Yang and Doerr having invested together behind
3 M2Z CEO Milo Medin years ago when he was part of the Excite@Home. Both
4
AskJeeves/Myspace Director Yang and Google Director Doerr are Directors of
5
6 M2Z according to same filing. The investors have committed in excess of $400
7 million according to M2Zs federal submission, (M2Zs Wireless Broadband

8 Utopia, Om Malik, Gigaom, May 17, 2006).
9 ASKJEEVES RECEIVES NEW GOOGLE COMMERCIAL SEARCH

AGREEMENT
10
11 153. Third, according to the IAC/AskJeeves s1, on April 5, 2005, Google
12 provides AskJeeves, with an additional commercial search agreement:
13
Also on April 5, 2005, Ask Jeeves announced that Ask Jeeves
14 Japan (www.Ask.jp), a joint venture between Ask Jeeves, Inc.
15 and Transcosmos, has come out of beta and that the joint
venture has signed an agreement with Google Inc. to provide
16 the site with sponsored links.
17 AskJeeves new April 5, 2005 agreement with Google is a
18 significant and critical economic benefit for AskJeeves.
19 154. Without receipt by Google, AskJeeves would have to disclose to IAC
20 that AskJeeves status in regards to Google had changed, which would have
21 threatened consummation of buyout by IAC and/or price IAC was willing to pay.
22 provide a new commercial search agreement for AskJeeves joint venture with
23 Transcosmos, thus increasing the value of AskJeeves and making it easier to sell to
24 IAC Corporation.
25
155. Fourth, KPC agrees in April 2005 to make Yangs close friend and
26
27 fellow Director at Tivo, Randy Komisar, a partner at KPC.
28 MYSPACES MISSING FIFTH DIRECTOR
62
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%)A%3@%.(&
1
156. February 11, 2005 8k discloses Intermix shareholder rights &
2
obligations owed by IAC and AskJeeves by way of their control of
3
4 Yang, Carlick, VPVP, and RedPoint:
5 "Certain rights and obligations of the Company, MSV, and Redpoint

as MSI stockholders are set forth in a Stockholders Agreement entered
6 into by the Principal Stockholders in connection with the transaction.
7 157. Myspace, Inc. was a Delaware company organized under the DGCL
8
158. Intermix in an 8k filed February 11, 2005 promises:
9
The parties agreed that the fifth director will be appointed by holds
10 of a majority of MSIs voting stock and that such director will not be
an affiliate of the Company or VantagePoint Venture Partners.
11
i. The February 15, 2005 Intermix Press release states:
12
13 Mr. Rosenblatt and Intermix director Andrew Sheehan will sit on the
Board of Myspace, Inc. as the nominees of Intermix along with
14 Geoffrey Yang from Redpoint Ventures and Chris DeWolfe as CEO
of Myspace, Inc. An unaffiliated fifth director is expected to be
15 elected to the Myspace Board in the near future.
16 159. Article 4 of the Myspace February 2005 Stockholder agreement is

17 titled Board of Directors; Governance
18
i. Article 4.1.1 states The authorized number of directors on the
19
Board shall be five (5)
20
ii. Article 4.1.5 states One (1) director shall be elected pursuant
21
22 to Section D(2)(iii) of the Certificate (the At-Large Director) by holders of a
23 majority of Voting Stock (on an as-if converted basis); provided that, during the
24 Intermix Designation Period, the At-Large Director shall not be an affiliate of
25
either of Intermix or VantagePoint Venture Partners.
26
iii. Article 4.6 Vacancies causes for the other Directors to take
27 action required to fill such vacancies if they exist during the court of
operating the business.
28
63
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%)=%3@%.(&
1 iv. Article 4.6 states in such article that if a Board seat is not filled:
2 Each of the Stockholders hereby agrees, in its capacity as a
stockholder of the Corporation, to elect a director to fill such vacancy
3 in accordance with the selection procedures set forth in Section 4.1
4
v. Article 4.6 cites-
5
Upon the designation of a successor director, each of the
6 Stockholders hereby agrees, in his capacity as a stockholder of the
Corporation, to use its best efforts to cause the Corporation either to
7 promptly hold a special meeting of stockholders or to execute a
written consent in lieu thereof, and each of the stockholders hereby
8 agrees to vote or cause to be voted all of the common stock owned or
controlled by such Stockholder and entitled to vote at such meeting, in
9 person or by proxy or pursuant to such written consent of
stockholders, in favor of the person or persons selected in accordance
10 with Section 4.1 to fill such vacancy and if necessary in favor of
removing any director elected to fill such vacancy other than in
11 accordance with the section procedures of Section 4.1
12 vi. Article 4.1.2 of the February 2005 Stockholder Agreement for
13
Myspace, Inc., gives Redpoint right to designate 1 Board Member, initially to be
14
Geoffrey Yang Id.
15
vii. Article 4.1.3 of the February 2005 StockHolder Agreement for
16
17 Myspace, Inc., gives Intermix, Inc right to designate 2 Board Members,
18 initially Andrew Sheehan and Richard Rosenblatt id

19 viii. Article 4.1.4 of the February 2005 StockHolder Agreement for
20
Myspace, Inc., gives MSV right to designate 1 Board Member, initially to be
21
Chris DeWolfe (SEC 8k Filing February11, 2005).
22
23 160. Email evidence shows that the involved parties negotiated and
24 discussed the 5th director right of Intermix at length. Including a January 14, 2005
25 report from Intermix CEO Rosenblatt before the February agreement is executed:
26 Just spoke to Chris DeWolfe who spoke to Yang and Chris Moore
27 and they are very upset and They want the board to pick the 5th
28 independent director. We are at a stalemate what do you suggest
64
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%)&%3@%.(&
1 i. Sheehan replies on January 14, 2005 at 10:16AM, tell them

2 there is no deal if they try to retrade the term sheet.
3 (Exhibit #11)
4 161. At the June 8, 2005 Myspace, Inc. Special Meeting of the Board of
5 Directors one of the main of eight sections is titled Corporate Governance
6 Matters, with two bullet points underneath, one of which states New director
7 discussion
8 162. News Corp was aware of the breach of the co-conspirators of the
9 MSI Stockholder agreement as early as July 7, 2005 at 7:19PM when Intermixs
10 investment banker sends News Corps Lang an email, Subject: Myspace BOD
11 stating:
Mike There are four persons. Yang from Redpoint, Chris DeWolfe
12 from Myspace, Andy Sheehan from VantagePoint, and Rich. The fifth
position is unfilled.
13
14 163. On or before July 18, 2005 the Myspace Board had not elected a 5th
15 Board Member of Myspace, Inc. and therefore the shareholders of Myspace, Inc.
16
and Directors are in breach of Myspace, Inc.'s Certificate of Designation and the
17
18 February 2005 executed Stockholder agreement signed by RedPoint LLC, MSV,
19 and Intermix, Inc. Corporate counsel and defendants needed to disclose to the
20
public the risk of being in breach and failing to have a 5th Director in place at the
21
22 start and during the Revlon mandated sales process on or about July 18, 2005
through
23
24 the consummation of the sale on September 30, 2005.
25
164. Google, its largest shareholder KPC, and its lead Director, John Doerr,
26
27 induces AskJeeves Carlick and Yang to deliberately and willfully fail to elect 5th
28 MySpace, Inc. Director from February 2005, the date the MySpace, Inc.
65
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%))%3@%.(&
1
2 stockholder agreement was executed through September 30, 2005 consummation
of
3
4 the eUniverse/Intermix acquisition. If the Class had got the benefit of a MySpace
5 Inc. board with the required independent 5th director, then defendants would have
6
been forced to consummate a search engine partnership prior to the September 30,
7
8 2005 Shareholder vote with one of two Search Engine partners:
9 165. Therefore the MySpace shareholders including Intermix are in breach

10 of the MySpace, Inc. stockholder agreement executed in February 2005. The
11 MySpace, Inc. board and shareholders do not plan to abide by the MySpace, Inc.
12 stockholder agreement provision prior to the consummation of the sale of the
13 public issuer. Specifically, the MySpace board and shareholders have determined
14 to not abide by or fulfill Article 4.6, 4.1.1, or 4.1.5. Shareholders should be aware
15 that the decisions by the MySpace Inc. board prior to the consummation of the sale
16 of the public issuer will be made without the benefit of an independent Director
17 involved and therefore shareholders are likely to face a higher risk of an
18 unfavorable MySpace, Inc. transaction occurring prior to the consummation of the
19 public issuer versus if MySpace, Inc.stockholders had determined to abide by the
20 Stockholder agreement provisions and to have appointed an independent 5th
21 Director.
22 Google refuses to work in 2005 with same company it touted as key
23 strategic partner to introduce AdSense in 2003.
24 166. The Same Google executives who touted Intermix as a key strategic
25 partner when Googles AdSense product was introduced into the marketplace and
26 who additionally competed aggressively in hopes of consummating an
27 Intermix commercial paid search agreement in 2003, according to the defendants
28 had no interest in 2005, despite Intermixs paid search audience being significantly
66
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%)B%3@%.(&
1
larger thanks to the success of Myspace.com, to consummate a commercial paid
2
search deal.
3
i. Such Google executives had even more authority inside Google
4
in 2005 as compared to 2003: Marc Leibowitz is referred to as Googles Director
5
of Strategic partnerships in an article from January 19, 2006 and Jim Gerber is
6
referred to as Googles Director of content partnerships in a 2007 article.
7
8 167. Myspace.com email evidence confirms Googles failure to pursue a
9 commercial search agreement with Intermix or Myspace, Inc. is part of the
10 antitrust conspiracy led by the Director of the Special Agreement counterparty,
11 AskJeeves which benefits the most from Googles granting of the Special
12 Agreement benefits:
13 i. CEO of Myspace, Inc. Chris DeWolfe emailed the Myspace
14 Board Yang, Sheehan, Rosenblatt, May 17, 2005 at 5:44pm:
15 Subject: 'follow up from board meeting'
16 "we cannot work with Google due to our association with Intermix
17
ii. Google and Doerr induce AskJeeves to force Yang to use his
18
position on Myspace, Inc. Board to block and delay a commercial search
19
agreement with Google. Yangs email confirms the scheme in reply to Myspace
20
fellow Director DeWolfes May 17, 2005 email, stating:
21
This is in the spirit of what was discussed (Exhibit #12)
22
168. An internal MySpace Board meeting powerpoint, or about June 2005
23
is further evidence of the scheme. Page of presentation states, (Exhibit #13)
24
25 Google refuses to work with us because MIX is a majority owner.
26
27 169. When the Yahoo Contract with Intermix ended in June 2005, Intermix
28 and its wholly owned subsidiary Myspace, Inc., manipulated and pressured by
67
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%)/%3@%.(&
1 Carlick and Yang, declined to renew it.

2 170. Intermix and Myspace were left without a commercial search engine
3 partnership and the revenue available through running a competitive bidding
process.
4
171. Yahoo did not have a Sensitive Company Agreement with AskJeeves,
5
and Google did, which is why Yang and Carlick, board of director members for
6
AskJeeves, decided to not renew the search engine contract with Yahoo (one of
7
Googles and AskJeeves competitors), and instead waited to sell the search engine
8
rights to Google (per Googles request) once News Corp. purchased Intermix.
9
These above facts were kept secret between Google and Ask.com and were
10
unknown and unknowable to Plaintiff at the time.
11
172. Yang and Carlick sought and Google agreed to enforce a secret
12
gentlemens agreement in which Google would not cold call and recruit
13
AskJeeves employees. This was a key concession that publicly traded AskJeeves
14
needed to protect its business starting in 2004 and that IAC required in order to
15
consummate its acquisition of AskJeeves on July 19, 2005.
16
BRIBERY OF KEY INSIDERS
17
173. In June 2005, the CEO of Intermix initiates a scheme to bribe certain
18
19 members of management to support the below fair market sale of MySpace to
20 News Corporation while not disclosing such additional payments in the Proxy as
21 required by Federal law.Intermix by the end of June has earmarked $25-30 million
22
in monies the executives are not owed or entitled to which helps float his own
23
requests for consideration higher. June 23, 2005 Email from Rosenblatt to
24
Montgomery on with subject presentation and attachment foxmeeting.ppt
25
26 (Exhibit #14) states,
27
28
68
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1 This deal would need to be a win-win for everybody. I think we could

motivate and energize the Myspace team if we took $25-30mm and put in
2 escrow for 12-24 months. They would receive that money if they continued
to build Myspace and remained at the Company. Right now, they own 20%
3 and would receive about $20MM (due to the preference from Redpoint) if
we exercised our option. If they could sell for $250mm they would receive
4 $50mm. While they think Myspace is worth far more than $250mm, the
escrow would clearly be enough incentive to keep them very motivated
5
6 Such cash payments were in addition to the fact that the same
7 members of the Myspace team had already received significant cash payments
8 just months previously as part of the below fair market RedPoint transaction. For
9 instance, CEO Chris DeWolfe had received $3.75 million dollars in a one time
10 cash payment in the February 2005 Redpoint transaction.
11 174. Rosenblatt in a June 30, 2005 email with subject Chris DeWolfe and
12 Myspace sent to News Corporation executive Levinsohn, and Lang states:
13 Coincidentally, my 5pm Myspace Board meeting centered around
the Intermix option and managements request for us to forgo that option
14 and all focus on building Myspace into a public multi-billion dollar
company. Obviously, we did not agree to the relinquishment of our option
15 and Josh (COO) suggested that they simply call (redacted) and Yahoo and
ask them to send their offers Chris very much appreciated that both
16 Intermix and Fox wanted to meet with him and discuss his role and his
teams comp instead of just exercising the option.
17
18 Therefore confirming Intermix and Myspace, Inc. executives used the threat of
19 contacting Yahoo and one other party to generate the undisclosed cash bribes.
20 175.On July 8, 2005, Myspace, Inc. executives inform Intermix
21 CEO that the financial forecasts being provided to Intermixs investment bankers
22 to produce a future fairness opinion: (THEY are way understated)(Exhibit #15).
23 This is done to mislead the Board of Directors so that they will approve the
24 below fair market News Corporation $12.00 per share offer.
25 176. In furtherance of the scheme to bribe certain Intermix and Myspace
26 insiders to go along with the conspiracy to avoid consummating a commercial
27 search agreement prior to consummation of the September 30, 2005 sale to News
28 Corporation,
69
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%B-%3@%.(&
1
i. On July 9, 2005 Rosenblatt emails Kitts, Weisel, Sheehan, and
2
Voxman with Subject: ' FW: RE When can I get the spreadsheet' and states,
3
"Do not forward and I will explain. Does NOT incl. any money to
4 retain MS management and the buyer will have to negotiate that
directly as we discussed I will call you later bob"
5
ii. Notes on document labeled Intermix Media, Inc. Purchase
6
Price Analysis shows plan or expectation existed on or around July 18, 2005 for
7
other entities then Intermix to receive material payments or compensation from
8
News Corp which was not disclosed in Proxy material. Based on discovery
9
evidence document submitted by defendants, it appears there is the expectation
10
that $860 million dollars is being paid to Intermix. The document shows a
11
calculation adding up to $810 million via '650' and '70 MS subtotaling '
12
'720' and '90 DeWolfe' and '810' subtotal which is underlined multiple times.
13
Underneath the underlined '810' is a circled 860 proving News Corp
14
secretly paid out at least $210 million more then the publicly disclosed $580
15
million / $12.00 per share buyout offer received by shareholders.
16
177. Indeed, News Corporation the acquirer becomes the source of the
17
undisclosed payments to the Intermix insiders in order to support the transaction
18
and to ensure they do not leak to non-insiders that the deal is priced at below fair
19
market value. The evidence of the illegal bribes includes:
20
i. Fox Entertainment Group internal document showing
21
that News Corporation at some point prior to July 18, 2005 begins to factor in the
22
cost of the cash bribes being demanded by Intermix insiders and has created a
23
category labeled 'earnout' or thats needed and as the date of this document, News
24
Corporation has offered $40M and a total $638M purchase price (Exhibit #16).
25
ii. Fox Entertainment Group internal document showing the
26
earnout is now going to cost upwards of $70 million dollars, making a total
27
purchase price of $670M (Exhibit #17)
28
70
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%B(%3@%.(&
1 iii. A summary of the transaction that JPMorgan has provided for

2 its client News Corporation shows the off balance sheet payment has increased
3 making the total purchase price $709 million dollars. Key proof of the bribery
4 scheme is that despite the purchase price increasing during these negotiations, the
5 price received by Intermix shareholders never increases and is always set at $12.00
6 per share (Exhibit #18).
7 iv.Fox Entertainment Group Deal Update internal document
8 shows the previously described undisclosed cash payments to insiders labeled as
9 earnout has now more then doubled to $90 million and described here as a
10 retention payment to reduce their tax exposure and maintain positive
11 relationship with management. The document states deal cost is $750M v.
12 previous $680M (Exhibit #19).
13 v. The next document shows that the secret cash payments have
14 increased from $69 million to $90 million (Exhibit #20).
15 vi. The next document shows that despite evidence
16 of increasing forecasts providing increasing money/ value for asset, the $12.00
17 price per share never increases (Exhibit #21).
18 vii. Evidence of the off balance sheet payment being
19 agreed to by certain 'inside' Directors of Intermix/Myspace hours before merger
20 agreement signed, i.e. "we need to give him the 20 percent thing he asked"
21 (Exhibit #22).
22 178. Further Evidence of the undisclosed bribery payments made by
23 News Corporation is a copy of the draft July 18, 2005 press release announcing
24 the Intermix acquisition. On Sunday July 17,2005 at 9:55PM Rosenblatt forwards
25 to News Corps Michael Bunder and ccs Levinoshn, Sheehan, Chris Lipp, John
26 Beeson, Subject: FW: draft and attaches file titled Intermix Friday draft (2).doc
27 i. A paragraph on second page of the draft press release reads:
28 Intermixs CEO Richard Rosenblatt and Chris DeWolfe and Tom
71
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%B.%3@%.(&
1 Anderson, founders of MySpace will continue in their roles following

the completion of the acquisition. [tk re additional upside for myspace
2 mgmt] Mr. Rosenblatt will join Fox Interactive Media, led by Ross
Levinsohn. (Exhibit #23)
3
iii. The final press release shows that the section that mentioned
4
additional compensation for myspace mgmt has been omitted to remove any
5
such mention:
6
Mr. Rosenblatt and MySpace CEO, Chris DeWolfe will continue in
7 their roles following the completion of the acquisition Messrs.
Rosenblatt and DeWolfe will join Fox Interactive Media, led by Ross
8 Levinsohn,
9 iv. Draft also showed originally Acquirer disclosed it was paying
10 $6 as in six hundred million dollars or more to shareholders and that later this
11 figure was edited and reduced to $580 million in final press release.
12 Intermix CEO misleads Yahoo through spiking powerpoint
13 179. One way Rosenblatt delays closing a new direct search partnership
14 deal until after News Corp has completed its buyout of eUniverse is by spiking a
15 key presentation in June 2005 with misleading information just as Yahoo is
16 courting Intermix to strike a new commercial search agreement. Rosenblatts
17 maneuver denies Yahoo the opportunity to make an offer to consummate a
18 commercial search agreement with Myspace or Intermix because Yahoo instead is
19 presented only with the opportunity to consummate a commercial search
20 agreement that includes News Corporations internet websites, as email evidence
21 demonstrates:
22 180. Intermix executive Smith in a June 25, 2005 email to Rosenblatt,
23 Subject: 'Overture Powerpoint', states,
24 Gentlemen Here is my first stab at the search presentation for our
July 6th Overture meeting."
25
i. June 27, 2005, Rosenblatt replies with Subject: 'RE: Overture
26
Powerpoint stating, "Todd, I made a bunch of changes so go through each slide. "
27
ii. Smith in his July 20, 2005 email cites an August 2nd meeting that is
28
72
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%BA%3@%.(&
1 planned with Overture and again sends a powerpoint for Rosenblatts review
2 iii. July 25, 2005, at 8:15AM, CEO Rosenblatt emails Smith,
3 Subject: 'RE: Overture Powerpoint' and states:
4 work with Brett to make a slide or two about the Fox merger, and
show the amount of sites they have, etc. Demonstrate how the
5 partnership gets FATTER from this. (Exhibit #25)
6 iv. Intermix, Inc. modified its pitch book for the Yahoo search engine
7 auction on or after the version forwarded by Smith on July 20, 2005.
8 v. Smith or Brewer or Ilardi complied with Rosenblatts email
9 instructions on July 25, 2005 to make a slide or two about the Fox merger
10 vi. Intermix, Inc. met with Yahoo/Overture on August 2, 2005
11 Improperly exchanging confidential, competitively sensitive information
12 181. Intermix shares confidential information with News Corp about

13 Intermixs ongoing discussions with Yahoo to consummate a new commercial
14 search agreement. According to company documents and testimony of former CEO
15 and head of online search Intermix and Myspace had opportunity to run a search
16 auction as of at least August 2005 between at least Google, Yahoo,
17 Microsoft,AskJeeves, and AOL In the early summer of 2005, a key scheme by
18 defendants plays out when Intermixs existing search engine partnership with
19 Yahoo quietly ends prior to the planned September 30, 2005 Intermix shareholder
20 meeting to vote to approve the $12.00 per share buyout News Corporation and
21 Intermix announced on July 18, 2005. News Corp. also knew about the bid-rigging
22 scheme because it was informed of such arrangements by Rosenblatt, the CEO of
23 Intermix (owner of MySpace and myspace.com) at the time, in hopes of receiving
24 a high level officer position at News Corp.
25 i. Rosenblatt breaches his duty of loyalty and causes antitrust
26 injury by inappropriately leaking the status of Yahoo negotiations to News Corps

Levinsohn and Kirby in an email titled Yahoo search sent on August 2nd at
27
11:19am that he:
28
73
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%B=%3@%.(&
1 Met w 9 of their people and head of search and went great

great!!! Will fill kirby in on thurs
2
ii. Rosenblatt calls Kirby sometime on August 2, 2005 and gives
3
Kirby and/or Levinsohn information about the Yahoo search meeting
4
iii. News Corps Kirby seizes on the leaked confidential business
5
information and accelerates the undisclosed improper meetings that violate
6
antitrust merger and acquisition laws, and encourages Rosenblatt to continue
7
providing the non public updates about Yahoos meetings with Rosenblatt,
8
"Hi Rich: We're looking forward to Thursday. How's your day Wed?
9 I'd like to get more familiar with your ops. Perhaps you and I could
start with breakfast @ MIX, continue with lunch @Myspace? Lets
10 talk today. I'm free after 2pm."
11 Rosenblatt replies, "Will call you after bus dev meeting before 3(Exhibit #24).
12 iv. In August, Intermix CEO Rosenblatt sends News Corporation a
13 proposal to hire Rosenblatt as the future Chief Strategy Officer that is
14 Responsible for internet strategy for Newscorp which includes:
15 Negotiation, when requested, in all significant strategic

development deals, i.e. search,
16 v. Rosenblatt never closes a Search partnership with Yahoo prior
17 to September 30, 2005 despite the August 2nd great great!!! meeting reported 60
18 days prior by Rosenblatt.
19 182. Further, as News Corporation announced its entry into the online
20 Search sector in August 2005 before the acquisition had closed, Rosenblatt
21 intentionally delays announcing Intermix or Myspace was looking for a new
22 Search Engine partnership so the public marketplace is not even aware of
23 Rosenblatts duty and opportunity to consummate a new search engine commercial
24 agreement after the Yahoo two year agreement expires in June 2005.
25 i. On August 10, 2005 summary of News Corp earnings call cites
26 CEO Murdoch discussing online search and that he is in advanced negotiations to
27 buy controlling interest in a search company Murdoch publicly states,
28 "The future is soon upon us in this regard. Google and Yahoo already
74
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%B&%3@%.(&
1 are testing video search"

2 ii. Rosenblatt forwards a summary to AskJeeves Carlick,
3 confirming: See below. I think they are in!. (Exhibit #26)
4 Rosenblatt forwarded an email on August 10, 2005, containing summary stating:
5 "Murdoch spoke of the company as though it already was part of FIM
but it's not slated to close until the fourth quarter of calendar 2005."
6 and
7 "Search: In response to a question about search, Murdoch said the
company is in "advanced negotiations" to buy controlling interest in a
8 search company"
9 183. News Corporation, Intermix, and Myspace, Inc. also violate HRS1
10 prior to the consummation of the acquisition on Septmber 30, 2005.
11 i. Intermix and News Corp apply for early HSR1 termination and
12 announce on August 24, 2005 that the Antitrust Division of he U.S. Department
13 of Justice and the U.S. Federal Trade Commission had granted Intermixs request
14 for earl termination of the waiting period under the Hart-Scott-Rodino Antitrust
15 Improvements Act of 1976.
16 ii. The violations occur prior to August 24, 2005 because News
17 Corporation is eager to identify the valuable employees working at Intermix and

Myspace so News Corp can i) prevent these employees from being recruited by
18
competitors. And ii) monitor the employees to ensure they do not leak information
19
to the public or Intermix shareholders including but not limited to information
20
regarding the fraudulently concealed Special Agreements, Gentlemens
21
Agreements, blood agreements, scheme for Intermix and Myspace to delay
22
consummating a paid commercial search agreement with Yahoo or Google, News
23
Corp bribery of certain insiders through undisclosed cash payments, or
24
misappropriation and hijacking of Intermix and Myspace search traffic through
25
Revenue Science
26
iii. These violations include: a) undisclosed and improper meetings
27
between News Corp executives and Intermix and Myspace, Inc. employees
28
75
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%B)%3@%.(&
1 conducted at both onsite and offsite locations in the Los Angeles area. And b)
2 sharing of confidential proprietary information by Intermix and Myspace
3 executives to News Corp executives including information related to the in
4 progress efforts by Yahoo to consummate a new commercial search agreement
5 with Intermix.
6 iv. Rosenblatt as of at least July 26, 2005 is communicating
7 regularly with Michael Kirby, News Corps executive that according to Levinsohn
8 is leading our integration team going forward
9 v. Rosenblatt suggests to News Corps head of integration, Kirby
10 on or about July 27, 2005 that they should have News Corp employees meet
11 outside of Intermix offices in the next week
12 vi. An early August email exchange provides strong evidence that
13 News Corporation and Intermix understand the restrictions imposed on them via
14 HRS1 but continue their inappropriate discussions and actions never the less but
15 simply determine to evade the HRS1 regulations through using the phone to
communicate rather then email which is more likely to be discovered by Federal
16
regulators or in a future shareholder class action lawsuit:
17
On August 2, 2005, News Corporations Ross Levinsohn replies to Intermix
18
CEOs email offering to dig into an Intermix potential acquisition or strategic
19
partner that another Intermix executive Shawn disclosed to Levinsohn
20
previously:
21
Would be interested in your take. I think we need to be careful
22 vis a vis the jumping the gun provision. That said, how do
you think it would fit?
23
Rosenblatt replies: Ok lets tlk via ph
24
GOOGLES MANIPULATION OF INDEPENDENT DIRECTOR DAN
25 MOSHER
26 184. The June 2010 Brown v. Brewer Federal ruling on Summary
27 Judgment concludes that board member Dan Mosher was
28 manipulated in regards to learning truth behind Viacoms efforts to make a
76
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%BB%3@%.(&
1
bid. It further cites evidence including:
2
Plaintiff cites an email Mosher sent to Rosenblatt after one of
3 the July 15th meetings, stating: We need to honor our
commitment to Fox and get this done. Viacom sounds like a
4 pipedream. Fox sounds dead serious and not screwing around.
(J.A., Ex. 182). When asked about this email during his
5 deposition, Mosher testified that Rosenblatts periodic updates
to the board had led him to believe [t]hat Viacom was less
6 urgent about the deal and hadnt taken the time or done the
same level of work as Fox Network. (Mosher Tr. at 25:24-
7 26:1, 26:5-13).
8 The Court indicated it remained to be seen who was leading the manipulation of
9
the Intermix Board. Plaintiffs fully incorporate by reference all findings and facts
10
11 by Federal Judge George King in Jim Brown v. Brett Brewer, et al. Case 2:06-
12 cv-03731-GHK-SH Document 278 Filed 06/17/10 attached related to bad faith
13 and manipulation between pages 13-39 (Exhibit #27).
14 185. Based on information and belief, Mosher was influenced and
15
manipulated by Google secret undisclosed EMG member and employee Bill
16
17 Campbell who concurrently sat on Intuits Board of Directors with Moshers boss,
18 Verisign CEO Stratton Sclavos.
19
186. Campbell directed pressure to be exerted on Mosher to favor the
20
21 News Corporation bid and to stand down from objecting to the failure of Intermix
22 and Myspace to consummate a new commercial search agreement before
23
September 30, 2005, by colluding with Doerr, Perkins and Sclavos. Some of the
24
25 scheme is evident through the following email exchange:
26 i. On July 29, 2005- News Corp's Mike Lang emails Director Dan
27
Mosher, Subject: 'RE: FME and VeriSign', and states, "We never got to talk
28
77
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%B/%3@%.(&
1 during the Intermix/Myspace process. Not sure if you knew, but I was heading the
2
Fox/News Corp side. We're very excited about the transaction and the
3
4 opportunity."
5 ii. Lang forwards a copy of an email that Jeff Treuhaft of Verisign

6
sends to Lang, Beth Kearns, Mahi deSilva, and Dan Mosher. Verisign's Treuhaft
7
8 email, Subject: 'FME and Verisgn', states,
9 "Attached is the draft of our proposal. This proposal is basic in

10 the sense that it does not cover potential strategic options for
partnership. I think we can be successful together in mobile and
11 beyond in a variety of ways"
12
iii. On July 29, 4:09PM, in am email Mosher sends Rosenblatt and
13
14 Brewer, Subject: 'FW: FME and VeriSign', states,
15 "We are working with Fox on some content stuff. Would you like me
16 to reiterate our concern about their treatment of employees or is that a
waste of time?"
17
187. The new evidence proves the AskJeeves and Google led by Carlick,
18
Yang, Doerr, Schmidt, Page, Campbell, Stratton Sclavos, Mosher are part of a
19
conspiracy that involved unlawful action and was supported and facilitated by
20
willful fraudulent concealment and omission of such conspiracy, namely the
21
physical meetings between the collaborators who were managing and directing the
22
ongoing and increasing pursuit of signing more illegal secret agreements with
23
bilateral parties like AskJeeves, Inc, Intel, Apple, and soon after starting the
24
program with co-conspirator and co-collaborator and bilateral party founding
25
fraudulently concealed from SEC filings, partners were Carlick and Yang.
26
Therefore, the Mosher link to Googles secret employment of Campbell only
27
became available after it was disclosed in Federal Court documents in late 2013.
28
78
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%BC%3@%.(&
1
KEEPING SHAREHOLDERS IN THE DARK:
2
188. Non disclosures by co-conspirators include: AskJeeves failed to
3
disclose in 2005 prior to its July 19, 2005 acquisition by IAC Corp, that AskJeeves
4
had entered into an illegal no poach agreement with Google or that it had an
5
arrangement with Google where they would treat each other as sensitive.
6
7 i. AskJeeves was publicly traded and disclosed details of its
8 commercial agreement for search engine promotion and distribution with Google
9
in its SEC filings before its sale.
10
11 iii. AskJeeves did not disclose in its SEC filings that it was
12 operating under a no poach or sensitive company agreement or Special

13
Agreement with Google, Inc. prior to its July 19, 2005 acquisition by IAC Corp.
14
15 189. Defendants failure to disclose new EBITA forecast that was more then
16 two times larger then what both the company had forecast previously to the public
17 was a key part of bid rigging schemes Defendants violated 18 U.S.C. 1341
18 through
19 publishing, distributing and mailing the August 2005 Proxy omitting the disclosure
20 of such failure to disclose the new EBITDA.
21 Scheme To Inflate Search Audience of TimeWarner/AOL
22 190. In addition to the benefits AOL, IAC, and AskJeeves received from
23 Googles agreement to operate under the terms of the aforementioned sensitive
24 agreement protocol, the conspirators also benefited in 2005 from the creation of a
25 false narrative surrounding the purported organic growth of their online search
26 business audiences.
27
191. The value of the online audiences of the top paid search companies
28
79
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%/-%3@%.(&
1 such as Google, Yahoo, and AskJeeves/IAC have since at least 2004 have been
2
increasingly followed by analysts and the public. Focus often is on monthly 3rd
3
4 party audited audience or share of U.S. search market tracking services such as
5 Comscore and Nielsen Netratings.An April 2005 Piper Jaffray & Co report on
6
Paid Search states:
7
8 Network Effect Critical in Paid Search Like other successful
Internet companies (e.g. Ebay), Google benefits from the
9 network effect. The strength of Google and its affiliate network
10 (i.e., AOL AskJeeves) encourages advertisers to join
(approximately 200,000) which in turn leads to more affiliates
11 to join and so on. We believe this network effect has been a key
12 component in the increases in CPC rates as the competition
among advertisers for search placement intensifies. We believe
13 that large networks such as Google and Yahoo have CPC rates
14 that are double on average that of smaller networks.
Additionally, we believe the strength of the Google network as
15 well as the Yahoo network has created barriers to entry for
16 smaller players looking to enter paid search."
17 "Termination of Distribution Partnership. Several of Google's
18 partners account for a large percentage of its revenue. AOL, for
example, accounted for 12% of Google's gross revenues in
19 2004. Should AOL and other large partners terminate their
20 agreements, Google could face a substantial revenue decline.
Given that Google's Network websites accounted for 49% of its
21 gross revenues in 2004, it is clear that the continuation of key
22 distribution partnerships is crucial to Google's success."
23 192. In early 2005, AOL had suffered a precipitous year over year decline
24 in its share of the online search audience. Based on the data publicly disclosed by
25 Comscore which is listed below, AOLs share of the search market had decreased
26 by more then 33% by March 2005 to a 8.9 percent share as compared to March
27 2004 when AOL held a 13.4 percent share. AOLs decline was steady during this
28 period, for example, AOLs share of the search market had dropped to 9.1 percent
80
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%/(%3@%.(&
1
for the month of November 2004:
2
3
4
5
6
7
8
9
10
11
12
13
14 193. While AskJeeves had gained significant market share by March 2005
15 due to its acquisition of ISH a year prior, the public marketplace had now realized
16 its organic growth was not continuing after the acquisition and the
17 majority of this search traffic was derived from adware/spyware products.
18 194. In addition, AskJeeves suffered a significant stock decline in May
19 2005 from market concern the IAC acquisition would not close because the
20
AskJeeves share of search traffic was largely driven by adware. Below is a partial
21
list of such stories:
22 i. Ask Jeeves for adware (Wayne Cunningham, April 22, 2005
ZDNET)
23
It was pointed out to me recently that search company Ask Jeeves is
24 a fairly big player in the adware market.
25
26
27
28
81
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%/.%3@%.(&
1
ii. Adware Questions Haunts Ask Jeeves Acquisition
2 (Law.com, May 6, 2005)
3 iii. Market has Questions on Ask Jeeves (Marketwatch, Ma y
6, 2005, Bambi Francisco)
4
Investors are showing increased skepticism about InterActiveCorps
5 pending acquisition of AskJeeves,
6 iv. "Ask Jeeves Toolbar Installs via Banner Ads at Kids Sites"
(May 9, 2005, Edelman writes report)
7
v. Did Ask Jeeves Break the Rules? -(Newsweek, June 3, 2005,
8 Brad Stone)
9 xi. Study: Spyware Profiting Off Google Ads (June 9, 2005,
Ed Oswald)
10
THE FALSE NARRATIVES:
11
195. For AOL, the false narrative was that they had reversed a declining
12
share of the online search marketplace, and that their online search business was
13
growing again and so valuable it could command a $1 billion dollar investment
14
from Google that valued the company at $20 billion. A Cnet December 16, 2005
15
article by Ernest Schmeltzer titled AOL to stick with Google reports on Googles
16
winning $1 billion purchase of 5% of AOL and gives background of a purported
17
multi-month bidding contest stating,
18
19 The talks escalated in recent months to focus on a broad,
longterm partnership that News.coms source described as a game-
20
changing deal for the media business. Under the proposal, Microsoft
21 and AOL would have combined their advertising forces, and
Then, AOL suddenly told Microsoft early on Friday that the
22
deal was off the table, opting to forge stronger ties with its current
23 advertising partner, Google.
24
196. Intermix was aware as of July 2005 of the $20 billion dollar valuation
25
Google will place on AOL for its investment that closes in December 2005.
26
27 i. On July 13, 2005 at 6:49PM, Intermix CEO Rosenblatt emails
28
82
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%/A%3@%.(&
1 News Corps executive Levinsohn stating:

2
I am looking forward to supporting the $20B dream! (Exhibit #28)
3
4 ii. On July 18, 2005 at 8:19PM, Intermixs CEO Rosenblatt emails
5 News Corporation executive, Levinsohn:

6
Snippet of the press playa. You will be famousnow 20B
7
The evidence is proof that the co-conspirators as early as July 18th, 2005 knew
8
9 AOL was claiming or seeking a $20 billion dollar valuation for its search audience
10
and that Intermix would aid in the scheme through secretly redirecting Intermix
11 and
12
Myspace, Inc. paid search traffic to inflate AOLs paid search audience.
13
The email also indicates Rosenblatt is aware the $12.00 per share price he
14
15 negotiated with News Corporation days earlier is below fair market value and is
16
aware of the correct valuation level for internet assets including the future value
17
18 Google will use to value AOL in the months ahead,
19 197. To create such false narrative, the co-conspirators repurposed and
20 redirected Intermix and Myspace.coms online search business audiences to
21 artificially inflate their publicly disclosed metrics.
22 i. Indeed, email evidence shows AOL had already been speaking

with Intermix and Myspace
23 On April 13, 2005 at 12:41PM Intermix CEO confirms: The guys
24 from AOL have lots of interest in Intermix and Myspace and Grab they love.
25 and Rosenblatts assistant states,
26 Jim Bankoff, EVP of Programming and Products at AOL,
27 would like a 30-minute conference call with you and his
colleagues to discuss strategic relationships with MySpace
28 198. In furtherance of the conspiracy, beginning on or around June 2005,
83
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%/=%3@%.(&
1
AskJeeves secretly arranged for an interim search provider, through a small
2 private
3 company, Revenue Science, to act as a search engine traffic broker for Intermix
4 and myspace.com.
5 i. Defendant Rosenblatt in a may or June 2005 email indicates I
6 expect revenues to ramp even more significantly in the coming quarters as we hire
7 more sales people, institute better targeting and search technologies via profiles
8 (i.e. Revenue Science launched this month)."
9 ii. Resume of Andrew Chen who lists under 'Experience', 'Director
10
of Product Marketing Revenue Science June 2003 - November 2006 and states:
11
12 I also led teams to handle the companys initiatives around Myspace
(Exhibit #29)
13
14 Revenue Science and or its web service or site or technology platform
15 began receiving or managing or handling Intermix and/or Myspaces Search traffic
16 or a portion of each or boths search traffic or selling other advertising for
17 Intermix, Inc. on or about June 2005.
18
199. However, Revenue Science secretly filtered traffic through
19
AOL and Ask.com which in turn sent such traffic to Google which was the
20
exclusive commercial search engine provider for both companies. AOL and IACs
21
AskJeeves division both received anartificial spike in search traffic. This, in turn,
22
increased the value of AOL and IAC Corporation because investors attributed their
23
increases in search traffic as organic.
24
i. Time WarnerAOLs AOL subsidiary and IACs AskJeeves
25
subsidiary immediately benefit and indeed publicly brag of unexpected gains in
26
their Paid Search divisions in a July 21, 2005 press release made by these
27
companies in conjunction with Comscore. The press release cites the percentage
28
84
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%/&%3@%.(&
1
share of the U.S. search marketplace attributed to AskJeeves & AOL compared
2
to the previous 12 month percentage share.
3
4 DOUBLE-DIGIT GROWTH IN SEARCH SEEN BY AOL AND
5 ASK JEEVES FROM Q1 TO Q2 2005, WHILE TOP SEARCH
PLAYERS GOOGLE AND YAHOO! MAINTAIN CONSISTENT
6 GROWTH, ACCORDING TO NIELSEN//NETRATINGS
7
Newly Released June 2005 Search Share Data Reports Google at 47
8 Percent, Yahoo! at 22 Percent and MSN at 12 Percent; My Way
9 Search Makes its Way into Top Five Rankings for the First Time
10 NEW YORK July 21, 2005 Nielsen//NetRatings, a global leader

in Internet media and market research, reported today Q1 and Q2
11 search growth for the top five search engines. AOL and Ask Jeeves
rose 15 and 16 percent, respectively, in the number of searches
12 conducted, while Google and Yahoo! maintained single digit
growth
13
14 While growth in searches was modest among the Big Three search
engines, the fourth and fifth biggest search engines, AOL and Ask
15 Jeeves, grew three times as fast, said Ken Cassar, director of strategic
16 analysis, Nielsen//NetRatings. While its far too early to say that
Google needs to watch its back, a resurgent AOL makes the game a
17 lot more interesting.
18
GOOGLE AND YAHOO TIPPY SEARCH INDUSTRY COMPETITION
19
200. One of the most read and reviewed analysis of the online search
20
market and the relative values of such market and its players in 2005 was an HBS
21
study titled, Google Inc released in late 2006 by Professor Eisenmann.
22
201. Eisenmanns analysis was combined with author and researcher Amy
23
Shuens research and additional studies in her 2008 publication, "Web 2.0 A
24
Strategy Guide by O'Reilly" (Amy Shuen, 2008 Oreilly Media) concluding that,
25
"AOL helped tip the paid search market to make Google's
26 average U.S. search revenue per query more than triple that of
its competitors. Positive network effects explain why the value
27 of AOL's 7-9% market share points were worth as much as $4
billion to Google,
28
85
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%/)%3@%.(&
1 Below are additional highlights from the book that details the impetus and
2 validates the valuation/transaction economics behind Googles $1 billion dollar
3 investment for 5% of AOL that closed in December 2005, a $20 billion valuation.:
4
i. "Google is the big winner in online advertising, dominating in the
5 U.S. and internationally. It not only generated the most global online
revenue in 2006, but it also grew at nearly two times the rate of its
6 peers."
7 ii. "Google's amazing success makes it easy to forget that it faced at least
two critical make-or-break junctures
8
iii. "A back-of-the-envelope calculation shows why 7% to 9% market
9 share in a tippy market with strong positive effects can be worth $4.45
billion, not just $100 million"
10
iv. "By protecting its 7% to 9% of AOL's share of traffic, Google
11 protected all of its 50% of paid search traffic from a precipitous
decline in RPS (revenue per search).
12
v. RBC Capital Markets estimated that Google's RPS exceeded Yahoo's
13 by at least 40%.'
14 vi. "Looking at simplified numbers may make this easier to see. If the
entire industry made $12 billion in total online ad revenue and there
15 were 400 billion inquiries, the industry-wide RPS for 2005 would be
.3 cents. Google's ad revenue was $8 billion, and its queries totaled
16 200 billion. This would imply an RPS of .4 cents for Google and 2
cents for all others. So if Google's share is around 50% at the end
17 of 2005, losing AOL would mean a decline of overall paid search
share to 43%. This would have caused the advertiser base to contract
18 in response, as well as the average RPS. If Google fell to a 2 cent
RPS as a result of negative network effects and falling out of its
19 dominant leadership position, it would not only lose
28 billion queries at .04 (7% share), but also 172 billion queries at .02
20 in revenue."
21 vii. "An extra $100 million for AOL's traffic is a tiny price to pay for
avoiding a possible loss of $4.56 billion in a tippy market in which the
22 leader is just at the 50% point"
23 viii. "The tippy market example involving Google, AOL, and Microsoft in
2005.
24
ix. "search market shares in 2005 reveal that Google was in a fairly
25 vulnerable position because it was clearly in the battle zone for a tippy
market, with AOL playing the swing vote."
26
x. " the clearly dominant 50+ market share leader in a tippy and highly
27 networked two-sided market, like the search market, could receive
more than 2 times the average revenue per search query compared to
28 search engines such as MSN or AskJeeves"
86
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%/B%3@%.(&
1
xi. "Markets with strong network effects also tend to be "winner-take-all"
2 or "winner-take-most." Even leading companies can be vulnerable to
a swing vote of six or seven market-share points.
3
xii. AOL played a decisive role in the tippy race between Google,
4 Yahoo!, and Microsoft. "
5 202. April 2005 Piper Jaffray report; Network Effect Critical in Paid
Search
6
7 Google benefits from the network effect.
8 The strength of Google and its affiliate network (i.e., AOL AskJeeves)
9 encourages advertisers to join (approximately 200,000) which in turn leads
to more affiliates to join
10
11 network effect a key component in the increases in CPC rates
12 "Several of Google's partners account for a large percentage of its revenue.

13
AOL, accounted for 12% of Googles gross revenues in 2004.
14
15 Should AOL and other large partners terminate their agreements, Google
could face a substantial revenue decline.
16
17 Googles Network websites accounted for 49% of its gross revenues in
2004
18
19 continuation of key distribution partnerships is crucial to Googles success."
20 203. According to company documents and testimony of former head of
21
online search and CEO and founder of MySpace.com and Issuer, Issuer had
22
23 opportunity to run an auction and consummate a new commercial paid search
24 agreement as of at least August 2005 between Google, Yahoo, Microsoft,
25
AskJeeves, or AOL. Yet no action is taken by Intermix to replace the expired
26
27 Yahoo paid search agreement with a new search auction partnership before
28 September 30, 2005.
87
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%//%3@%.(&
1 Google successfully raised $4.4 billion dollars in August 2005 yet

2
despite recommending to KPCs Perkins a News Corp Director that they acquire
3
4 the company, Google fails to make an offer for Intermix or Myspaces available
5 commercial search agreement partnership

6
Search Contacts of Carlick and Yang fail to materialize in 2005.
7
204 Further, since AskJeeves was one of Googles largest partners in Paid
8
Search, both of the interlocked Directors, Carlick or Yang, could have facilitated
9
Intermixs CEO or business development executives to connect with Google and
10
helped facilitatea Search Partnership transaction prior to shareholder vote on
11
September 30, 2005. So both of these men were search engine market experts and
12
had direct connections with and at the top levels of Google, Inc. to facilitate
13
getting a new Search Engine auction started between Intermix and Google.
14
205. There is additional 3rd party data evidence that confirms the
15
aforementioned antitrust conspiracy contained in sections A, B, C, D listed below:
16
A. 2005 INFLATED TIMEWARNER/AOL COMSCORE
17
206. TimeWarner/AOLs Comscore ratings, purporting to be the accurate
18
share the company possesses of the online paid search audience share of the
19
market, had been rapidly declining through out 2004 and by March 2005 had
20 dropped
21 to an 8.9% share of the marketplace compared to over 13% in 2004.
22 i. Inexplicably and against all explanation, TimeWarner/AOLs
23 Comscore ratings reverse the decline trend, and from June through September
2005,
24
each month Time/Warner/AOL reports above 9% share of the marketplace,
25
peaking at 9.9% in July 2005. Then from September 2005 through July 2006,
26
TimeWarner/AOL is able to work with its co-conspirators to manipulate the 3rd
27
party auditing of search share percentage to show a more gradual decline of the
28
88
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%/C%3@%.(&
1 ranking of its online search business.

2 ii. This allows TimeWarner/AOL to create a compelling story to get
3 more analysts recommending that institutional investors purchase their stock,
4 increasing the market capitalization of the public company which allows insiders to
5 sell their stock at higher inflated prices and to recognize, earn, and be granted
6 existing and new bonus arrangements. As the NY Times describes the deal:
7 The deal is a coup for Mr. Parsons because less than a year ago, Wall
Street and even people within the company were treating AOL as a
8 declining asset and as a drag on Time Warner. The deal is meant to
confirm Time Warners claim that AOL is worth $20 billion, a
9 number man had said was too high.
10 (TimeWarner To Sell 5% AOL Stake To Google For $1 Billion,
Matthew Ingram,December 17, 2005)
11
iii. Approximately a year later, after TimeWarner/AOL loses the
12
benefit of hijacking myspace.coms share of online searches to inflate the share
13
of online searches reported by Comscore, and the company has to disclose its true
14
metrics for June 2006 Share of Online Searches (Source: comScore ):
15
TimeWarner/AOLs Share of Online Searches dropped from 9.9% to
16
5.6%, an over 44% drop which is so staggering and unheard of in the five year
17
history Comscore was tracking share of online searches that the only explanation
18
is TimeWarner/AOL had inflated its share of online searches back in July 2005.
19
July 2006 vs. July 2005 (Total U.S. Internet Users )
20
Jul-05 Jun-06
21 Total Internet Population 100% 100%
22 Google Sites 36.5 44.7
Yahoo! Sites 30.5 28.5
23 MSN-Microsoft Sites 15.5 12.8
Time Warner Network 9.9 5.6
24 Ask Network 6.1 5.1
25 B. SUPPRESSION THEN DISAPPEARANCE OF OCTOBER 2005
26 MYSPACE COMSCORE AUDIENCE REPORTED TO PUBLIC
27 207. Defendants manipulate what they report to the 3rd party traffic
28 audit companies like Comscore to hide the fast growing MySpace.com unique
89
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%C-%3@%.(&
1 user audience proving the defendants had been hiding a parallel not
2 disclosed fast growing Search Engine audience and therefore undisputed asset
3 that had never been disclosed to Intermix shareholders prior to September
4 30, 2005. This is proven by the following facts:
5 i. In November 2005, Comscore discloses a list of Search
6 engine assets ranked by # of unique users visiting each search websites,for October
7 2005 showing unique users at top search sites, and Myspace search was listed with
8 8,083,000 million unique users, ranked #7 to AOLs 36.0 million unique users or
9 about 25% the size of AOLs audience:
10
OCTOBER 2005- COMSCORE
11
Google 75,281,000
12
Yahoo Search 68,031,000
13
MSN Search 49,748,000
14
15 Ask Jeeves 43,705,000
16 AOL Search 36,092,000
17 Yahoo Mail 20,270,000
18 MySpace Search 8,082,000
19
20 208. Without explanation, MySpace search disappears from Comscore
21 after the October 2005 unique user data is released as Comscore does not disclose
22 future months using the same measure as the one time unique user numbers
23 provided in October 2005, and Comscore posts the remainder of 2005 months with
24 a % share of U.S. audience instead.
25
26 209. AOL, IACs AskJeeves, and Google meanwhile all benefit and
27 increase their % share of U.S. Audience between June 2005 through July 2006.
28
90
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1
While there is no explanation for how or why MySpace Search has disappeared
2
from Comscore after appearing in Comscores October 2005 report.
3
4
C. 2006 Re-Introduction of Myspace Search
5
210. Comscore then without explanation re-introduces MySpace Search in
6
April 2006 and purports it is the first time MySpace Search has possessed
7
sufficient unique users to appear in the Comscore top monthly U.S. share of search
8
market.
9
10
11 Comscore April 2006
12 Google 43.1%
13 Yahoo 28%
14 MSN 12.9%
15 AOL 6.9%
16 ASKJeeves 5.8%
17 MySpace.com 0.6%
18
211. However the evidence proves the defendants actively manipulated and
19
gamed the 3rd party traffic audit firms like Comscore and Nielsen Netratings.
20
Comscores purported to be accurate April 2006 MySpace Search is significantly
21
smaller then the October 2005 MySpace Search was.
22
Whats uncontested is that MySpaces overall unique user audience grows
23
steadily and significantly between June 2005 and April 2006. The data and
24
evidence would leave a fact finder to conclude that Comscore has simply
25
redistributed unique users from MySpace Search in October 2005, stopped using
26
the same measure and definition Comscore uses for October 2005, and then
27
effectively transferred MySpace Search unique users to AOL, AskJeeves, and
28
91
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%C.%3@%.(&
1
Google to allow these properties to increase their monthly % share of U.S. search
2
market while claiming such increase has come from organic growth, impressing
3
their respective shareholders and the media.
4
5 212. Next, the co-defendants attempt to craft the story of the sudden 2006
6 public appearance of Myspaces large share of the online search marketplace
7
i. May 12, 2006article by John Battelle is released online,
8
Another Hitwise: Myspace Sends 8.2% of Traffic to Google, Implications,:
9
I had an email request from Bambi Francisco. Bambi was
10 curious as to the percentage of traffic myspace.com supplied to the
11 major search engines. After running a few reports, I was somewhat
shocked to see that myspace.com was the #1 Upstream provider of
12 traffic to Google, supplying an astonishing 8.2% of all traffic (the net
13 closes provider was MSN @ 4.0%).(for week of May 6, 2006) and
14 Going back to the beginning of last year, Myspace provided

15 less than 1% of all Google traffic. While Myspace.com still doesnt
have its own search offering, the shear volumes of traffic sent to
16 external search engines could be directed internally with the right
17 acquisition and promotion of its own search offering,
18 There are a lot of other insights in the piece. Ive had
19 Myspace again on my mind after talking Weds with Jon Miller, CEO
of AOL. The thing that struck me was how Miller mentioned Myspace
20 in the same breath as Google, AOL, Yahoo, Ebay and Amazon. It
21 had made it into the majors as far as he was concerned.
22
ii. May 22, 2006, Cnets Anne Broache publishes story, Google Retains
23
Lead in U.S. search market.
24
For the first time, the search engine operated by the social
25 networking site Myspace.com appeared in the rankings. The company
26 held a distant 6th place in the market share rankingsgrabbing only
about half a percentin April, but Comscore indicated it may be
27 worth keeping an eye on the smaller player due to the sites
28 remarkable popularity.
92
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%CA%3@%.(&
1
2 213. In June 2006,Comscore releases US Audience for May 2006 for
3 Search engines.-Listing
4 i. Myspace.com Search at 0.7%, up from 0.6% in April 2006
5 ii. AOL is listed at 6.7% for April 2006, Ask Network 5.3%, and
6 MSN 12.9%, Yahoo 27.9% and Google 44.1%.
7 iii.Myspace has 53 million Search Queries in May 2006 vs. AOLs
8 499 million vs AskJeeves 392 million
9 214. The co-defendants further attempt to craft the sudden re-
10 appearance of Myspaces share of search audience:

11 i. June 16, 2006 BusinessWeek Article by Steve Rosenbush,
12 'Mining for Gold on MySpace', states:
13 Myspace already drives a huge amount of traffic to search
14 engines. It generates 100 million searches a month. In fact, 5% of all
15 searches on the Web and 8% of all searches on google are originated
16 by people who come directly from MySpace.
17 ii. "Myspace the google Enabler?
18 According to data collected by Hitwise, an Internet traffic
19 tracking service, nearly 10.8% of Google's traffic was coming from
20 Myspace.com for the week ending July 29, 2006. Had Fox gone with
21 Yahoo or Microosft, it could have been a serious blow to Google.'
22 Now let's step back a minute. Myspace has shot up in traffic over
23 time, but until recently, I never heard any conncetion sugggesting that
24 Google was somehow gaining because of that popularity. Google was
25 popular because it was Google and geneated its own weather. Now
26 suddenly, Google might potentially lose 10 percent of its traffic to its
27 site?
28
93
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%C=%3@%.(&
1 That's especially amazing to digest, considering that Google had no

2 search partnership with Myspace at the time. The web search box at
3 Myspace was (and still is for the moment, despite the Google-
4 Myspace deal) powered by Yahoo. If anyone would lose this
5 "massive" amount of traffic, it should be Yahoo. And since Yahoo
6 clearly didn't fight tooth and nail for Myspace, I don't think that search
7 box was generating much.
8
9 So how's Google getting all this supposed traffic from Myspace. I
10 don't know ---and Hitwise doesn't seem to know, either. Let's go to the
11 Hitwise post on Myspace traffic: Myspace and Google: what do the
12 Numbers Say?:
13
14 In January of this year, Google received a little over 4% of their traffic
15 from MySpace in our U.S. sample. As of the week ending July 29th,
16 that percentage has grown to almost 11%, making MySpace the #1
17 upstream site for Google.
18
19 COMSCORE IN AUGUST 2006 REVISES ITS DATA
20 215. July 18, 2006, Comscore releases new data for June 2006. However, on
21 same day in press release, Comscore provides look back data that revises previous
22 metrics for June 2005, May 2006, and June 2006. This data shows,
23
24 June 2005 May 2006 June 2006
25 Google Sites 36.9% 44.2% 44.7%
26
Yahoo Sites 30.4% 28.0% 28.5%
27
MSN 15.7% 13.1% 12.8%
28
94
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%C&%3@%.(&
1 Time Warner/AOL N/A N/A 5.6%

2 ASK Network 6.0% 5.3% 5.1%
3
4
5 Comscore pulls the June 2005 data and claims the real data is not available and
6 Replaces it with a N/A, strong evidence that defendants had indeed manipulated
7 and misappropriated Myspaces search traffic before the September 30, 2005
8 Intermix shareholder vote. Several articles published in the aftermath further
9 confirm the scheme:
10
i. August 21, 2006- Comscore Figures Show First Google Decline
11
for Nearly a year, but what to believe?" (Danny Sullivan
12
13 SearchEngineWatch.com)
14
"let's go back to May 2006. Did you know after Comscore released
15 figures, they revised those? There was no big press release about it. It
16 was an asterik mention as part of the June 2006 figures. What was
different? Let's compare."
17
18 June 2006 Revised by Comscore
19 "Company Original Revised Difference
20 Google 44.1% 44.2% 0.1%
21 Yahoo 27.9% 28.0% 0.1%
22 MSN 12.9% 13.1% 0.2%
23 AOL 6.7% n/a ????
24 ASK 5.3% 5.3% 0.0%
25 Myspace 0.7% n/a ????
26 Others 2.4% 9.4% 7.0%"
27
28
95
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%C)%3@%.(&
1 "AOL is the mystery player, Comscore gave no figure for May

2 2006. Actually, it did -- 6.7 percent. But the following month, it
clawed back that figure, saying: "Due to a definitional change
3 occuring with June 2006 data, trended data for the Time-Warner
4 Network are not available"
5 Since we don't have a May 2006 figure, we can't tell if the June
6 2006 figure for AOL -- 5.6 percent -- was a gain from or loss to
Google and Yahoo."
7
8 "Myspace The Search Monster?"
9 "Also notice how Myspace disappears off the chart, in the revised
10 figures. What happened?
11 Lets go back to April 2006. Thats the first time that out of the blue,
12 we get search figures for Myspace. ComScore told us:
13 ComScore told us: 'Myspace.com has been added to the search
14 engine rankings for April 2006, coming in at 6th place with 43 million
search queries performed (0.6 percent share of the U.S. search
15 market).
16
"Back to Myspace. Last month, BusinessWeek cut loose with a big
17
article about who it was seeking a search suitor, since it was such a
18
big search powerhouse:
19
20 'Myspace already drives a huge amount of traffic to search engines. It
21 generates 100 million searches a month. In fact, 5% of all searches on
the Web and 8% of all searches on Google are originated by people
22 who come diretly from Myspace.'
23
"Wow, pretty stunning numbers. And figures that frankly, I
24 didnt believe. As I wrote in my review:
25
"The story also gives new, amazing stats that MySpace generates 5
26 percent of all searches on the web. Hmm. Just a month ago, this was
27 said to be 0.6% of all searches in the US, according to comScore. And
8 percent of all searches on Google come via MySpace? I'm checking
28
96
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%CB%3@%.(&
1 with the BusinessWeek author, because those stats just don't make
2 sense."
3 "I did email the reporter, but I never heard back. But five percent
4 of all searches on the -eight percent of all Google searches -- those
are incredible numbers, if true.
5
6 'But they seem so untrue when you look at the 100 million figures per
month stat that BusinessWeek also gives us. The Ask network ---
7 with a 5 percent share of just US searches -- generates 340 million
8 searchers per month according to comScore. If Myspace really had 5
percent of ALL SEARCHES WEB-WIDE, then it should have far, far
9 more than 300 million searches per month, much less 100 million."
10
D.Graphs Confirm Antitrust Scheme Misappropriated Search Audience
11
216. Graphs of the companies with the largest share of paid search
12
audiences viewed over a 12-18 month period reveal the signatures of manipulation
13
and are confirmatory evidence of the scheme by the co-conspirators. show how
14
Intermix and Myspace search audience was diverted to and counted for benefit of
15
TimeWarner/AOL, IAC/AskJeeves, and Google to inflate and manipulate their
16
search audience share
17
217. Reviewing the Nielsen Netratings graph created and provided by
18
SearchEngineWatch.com shows:
19
i. Others online search traffic which included
20
Myspace.com and Intermix online search traffic was diverted to TimeWarner/AOL
21
and AskJeeves starting in July 2005. This caused Others share of online search
22
traffic to decrease sharply by August 2005 while TimeWarner/AOLs share of
23
online search traffic increased sharply by August 2005 and AskJeeves share of
24
online search traffic increased albeit more gradually.
25
ii. Google after decreasing each month between May
26
2005 through August 2005 suddenly has a sharp increase in October and December
27
2005 as Google also gets the benefit of all of the diverted search traffic from both
28
97
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%C/%3@%.(&
1 TimeWarner/AOL and AskJeeves because both companies use Google as their

2 paid search partner.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24 218. The graph comparing Comscore search share of U.S.
25 marketplace below further confirms the co-conspirators traffic scheme because it
26 reveals as AOLs search share declines each month starting in August 2005,
27 Googles search share increases each month. Since AOL paid search is powered by
28 Google, ie: AOL sends its users to Google when they visit AOLs paid search
98
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%CC%3@%.(&
1 service, therefore it would be expected that for any month AOLs search share
2 declined then Google would have its search share negatively impacted by AOLs
3 loss. Instead, Googles search share increases in each such instance. This is strong
4 proof that indeed, AOL had been manipulating and inflating its own search share
5 starting in or around May 2005 using Myspace.coms search share. The graph also
6 shows that in or around May 2006 when Comscore pulls the plug on the
7 manipulation scheme it realizes the data its been using is defective and cannot
8 reliably be reported to the public:
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
99
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(--%3@%.(&
1 219. The Comscore search share graph for the period of time between
2 12/05-12/06 below illustrates how sharply and pronounced AOLs search share
3 dropped after it was no longer able to use the hijacked Myspace.com or Intermix
4 search traffic to manipulate its own search share rankings.
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
THE FOGCUTTER ACE IN HOLE
28
100
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1 220. Another fraudulently concealed set of relationships was critical in

2 facilitating the bid riggings that were part of the antitrust conspiracy: i) The role of
3 Myspace, Inc. CEO Chris DeWolfe as a Director of controversial publicly traded
4 Oregon based FogCutter, Inc. between 2003 through his resignation in April 2005
5 and ii) The role of Orrick Law during such time serving as general counsel for
6 FogCutter, Inc. while concurrently working for AskJeeves Director Carlicks
7 private equity fund VPVP. iii) The insertion of an Orrick lawyer as the general
8 counsel of Myspace, Inc in 2005.
9 221. DeWolfe, the CEO of Myspace, Inc., and a full time employee of
10 Intermix since October 2002 begins serving as a director of FogCutter Group in
11 early 2003. DeWolfe steps up his involvement to help operate Fog Cutter in 2004
12 as DeWolfes high school friend the CEO pleads guilty to bribery & tax evasion.
13 222. DeWolfe finds a great benefit of being a FogCutter Director is
14 the ability to control compensation for FogCutter outside counsel, Orrick Law.
15 223. DeWolfe directs FogCutter to pay Orrick Law over $5 million in
16 cash during the two years DeWolfe serves on the FogCutter Board.
17 224. During this period DeWolfe leverages his influence over Orrick Law
18 and induces Orrick to intervene & represent his interests in negotiations related to
19 issuing MySpace employees equity at below fair market valuation and through
20 fabricating an asset purchase agreement to appear as if it had been signed in
21 December 2003 while evidence shows the agreement was signed in 2004 when it
22 appears for first time in public issuers November 2004 10Q. Defendants fail to
23 disclose relationship between Orrick, DeWolfe, and FogCutter.
24 225. During this same period, Google directed AskJeeves to have its
25 Director Carlick also retain Orrick Law and pay them several million dollars in
26 additional cash from Carlicks private equity fund VPVP.
27
28
101
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(-.%3@%.(&
1 226. Intermix fraudulently conceals during this time its CFO Flahie
2 resigned in 2004 after learning of Orrick negotiating the MySpace transaction
3 away from the Intermix board and general counsel.
4 227. Orrick Law benefitted from a 25% increase in legal compensation
5 paid out by DeWolfe through Fog Cutter from $1.925 million in 2003 to $2.535
6 million in 2004 and $2.485 million in 2005.
7 228. On July 6, 2004 or shortly thereafter. FogCutter discloses a new Class
8 Action complaint via 8k naming DeWolfe as defendant stating,
9 Jeff Allen McCoon, derivatively on behalf of the Company, filed a lawsuit
10 in the Circuit Court for the State of Oregon (Multnomah County Case No.
0407-06900) which named all of the directors of the Company as
11 defendants. The lawsuit alleges that members of the Companys Board of
12 Directors breached their duties to the Company by entering into the leave of
absence agreement with Andrew Wiederhorn. The lawsuit generally seeks
13 restitution of payments made under the leave of absence agreement plus
14 attorney fees and costs.
15 The complaint further states on page 5:,
16 i. Defendant DeWolfe is an old friend of Wiederhorns from
17 high school.
18 ii. On April 27, 2004, just over one month prior to Wiederhorn
19 pleading guilty to the felony charges, Fog Cutter purchased a three year call opion
20 from Wiederhorn
21 iii. in fact, the purchase of the Call Opion provided no benefit to
22 Fog Cutter and was materially more expensive than an arms length negotiated
23 opion agreement oof otherwise similar terms.
24 229. Orrick, Herrington & Sutcliffe LLP is a defendant in the McCoon case
25 and according to the complaint on page 9,
26 i. Orrick Defendants conspired with the Director Defendants to
27 breach their fiduciary duties and that the Orrick Defendants committed legal
28 malpractice in advising the company
102
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(-A%3@%.(&
1 ii. The Orrick Defendants knew that the Director Defendants

2 would be breaching their fiduciary duties of loyalty and good faith by approving
3 the Leave Agreement. Nevertheless the Orrick Defendants recommended that the
4 Director Defendants enter into the Leave Agreement.
5 230. The complaint also accuses DeWolfe and Orrick of
6 i. improperly taking tens of millions of dollars from FogCutter
7 shareholders to spend on:
8 Lavish Fringe Benefits, Salaries Grossly Disproportionate to a
9 Company of Fog Cutters Size, and Expenditures with Little or No
Business Purpose prevent Fog Cutter from Earning a Profit
10 (at page 12)
11
ii. Engaging in corporate waste of public shareholder money:
12
Despite having no valid business purpose, Wiederhorn and the
13 Director Defendants convened an all expenses paid Board of Directors
14 meeting in Europe, inviting the Directors spouses as well, that cost
hundreds of thousands of dollars. (at page 13)
15
16 iii. Overpaying themselves:
17 Non-employee directors are currently paid up to $122,000 depending
18 on which committees they serve on, drastically more than a director at
a peer company.(at page 14)
19
20 iv.Another section of the complaint is titled,
21 Above-Market Purchase of Stock from Wiederhorns Relative
and Business Associate Clarence B. Coleman. (at page 15)
22
23 231. On May 12, 2004, FogCutter reports a net loss of $1.6 million for
24 quarter ended March 31, 2004. On May 13, 2004, Fogcutter announces it will
25 invest into a fast food restaurant, Fatburger.
26 i. On June 2, 2004, the day before Wiederhorn entered into the
27 plea deal, he finalized a leave-of-absence agreement with DeWolfe and Fog Cutter
28 Board.
103
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(-=%3@%.(&
1 ii. On June 3, 2004, Fog Cutter Capital Groups CEO

2 Wiederhorn Pleads guilty to two federal criminal counts, was sentenced to prison
3 and fined $2 million dollars.
4 iii. To address the fact that Wiederhorn had to go to
5 prison, DeWolfe, Orrick, and the Board of Directors appointed Donald J.
6 Berchtold as Co-Chief Executive Officer and In August 2004 changed Mr.
7 Wiederhorns position from Co-Chief Executive Officer to Chief Strategic
8 Officer., and changed Mr. Berhctolds position from Co-Chief Executive Officer to
9 sole Chief Executive Officer. (SEC Filing)
10 iv. FogCutter auditors Ernst & Young LLP resign July 23, 2004.
11 v. FogCutter discloses in 2006 more losses from another DeWolfe
12 and Orrick project (V Model Management), a French LLC and FogCutter
13 subsidiary had terminated operations in December 2005 and was fully written
14 off at December 31, 2005. The model agency appears to have lost close to $2
15 million by end of 2005.
16 232. According to FogCutters SEC filing, by 2004, FogCutters CEO
17 owed FogCutter more then $3 million dollars that was borrowed as personal loan,
18 immediately before the SOX rules precluding personal loans.
19 233. DeWolfe and the FogCutter Directors were treated to lavish travel as
20 one of benefits, Including benefitting from $342,000 of private air travel and in
21 2004 an additional $342,000. Fogcutter 2005 SEC filing on page 47 disclosed:
22 we paid $342,000 to Peninsula Capital Partners LLC an entity owned
23 by Mr. Wiederhorn, for the Companys business use of certain private
aircraft. The Board of Directors is aware of the relationship and
24 approved the fees for the use of the aircraft. The fee paid is a
25 reimbusement of costs to Peninsula Capital for the Companys use of
the aircraft.
26
27
28
104
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(-&%3@%.(&
1 234. The following articles help summarize the issues causing Nasdaq to
2 delist public Fogcutter and inducing its shareholders to file a lawsuit againt
3 Director DeWolfe and its general counsel Orrick Law:
4
5 i. Jailed CEO gets big bucks (The Portland Tribune, April 1,
6 2005. Todd Murphy) Fog Cutter and Wiederhorn spurred national attention
7 last June when the Fog Cutter board announced the day after Wiederhorn, its chief
8 executive officer, pleased guilty to the federal charges resulting from the
9 investigation and that it would continue to employ him and pay his salary during
10 his time in prison and The controversial leave of absence payment caused the
11 Nasdaq stock exchange to delist Fog Cutter from its exchange and generated a
12 shareholder lawsuit against Wiederhorn and the company.
13
14 ii. AFL-CIO puts Wiederhorn, FogCutter on Unfair List.
15 (Northwest Labor Press, June 18, 2004) The reason for this requested listing
16 is your companys decision to grant Andrew Wiederhorn a bonus and a paid leave
17 of absence while serving prison time for felonies related to his dealings with
18 Capital Consultants and Wilshire Credit Corp. Mr. Wiederhorns actions caused
19 union members and other workers to suffer significant losses of their retirement
20 assets. Your companys payments to Mr. Wiederhorn appear to have rewarded his
21 actions and set a deplorable standard for corporate responsibility.
22
23 iii. SuperModels: Readers rage over worst CEOstheir bosses
24 (MSN Money, June 16, 2004) Larceny is one thing. The courts can deal
25 with that. But whats permitted, and even condoned by directors in the CEOs
26 pocket, is very often is even worse. Reader Christine Moran of Portland, Ore.,
27 highlighted the case of Fog Cutter Capital Group, owned of the Fatburger
28 restaurant chain and real-estate properties. Its chief executive, Andrew
105
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(-)%3@%.(&
1 Wiederhorn, pleased guilty earlier this month to two felony counts following a
2 federal investigation into a financial scam perpetrated by a related company. The
3 board of Fog Cutter announced in a regulatory filing last week that the company
4 would continue to pay Wiederhorns full salary during his 18 months in prison as
5 well as a $2 million leave of absence payments that equals the amount he agreed
6 to pay in restitution to victims.
7
8 235. According to Fog Cutters 10K by the time DeWolfe had resigned,
9 The $109 million in FogCutter total assets existing starting in 2003 had declined by
10 $35 million less then 24 months later. Securities available for sale had declined
11 from $35.5 million in 2003 to $10,000 dollars less then 24 months later.
12
13 236. Despite FogCutter losses of $(6.86) million dollars in 2005 and
14 $ (3.93 million) in 2004, under DeWolfe and Orrick Law, FogCutter pays out
15 $10.11 million in compensation in 2004 (not including 2004 leave of absence
16 expenses for jailed CEO) and $10.86 million in 2005. The Table below takes SEC
17 disclosed compensation for three highest paid Fog Cutter Capital Group, Inc.
18 executives between 2002-2005. DeWolfe and Orrick Law direct the nearly 100%
19 increase in compensation to the three top Officers between 2003 and 2004:
20
21
2002 2003 2004
22
Wiederhorn $2,191,127 2,377,507 $6,871,687
23
Rosen $2,693,758 $2,272,299 $519,912
24
Stevenson
25
Berchtold
26
Green $348,026 $316,504 $1,320,591
27
TOTAL $5,232,911 $4,966,310 $8,712,190
28
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1
2 237. DeWolfe in 2005 made $221,000 in total compensation for his role as
3 CEO of MySpace, Inc. and trailed the 4th highest paid executive in 2005 behind
4 general counsel Chris Lipps $228,000 total compensation.
5 238. By 2005, not only was DeWolfe being paid equal or more from his
6 compensation as a Fog Cutter Director which had increased over 500% since he
7 joined at the end of 2002 but his time was increasingly being spent on Fog Cutter
8 board and regulatory matters as a quick review of the public diclosures in Fog
9 Cutters SEC statements make clear,
10 i. DeWolfe a Board Member and according to FogCutters SEC filing
11 for the 12/31/05 quarter, the Board met 20 times in 2004. During the year ended
12 December 31, 2005, the FogCutter board of directors met 12 times.
13 ii.DeWolfe also begins serving in 2004 on the FogCutter
14 Compensation committee. SEC filing states this group met at least 10 times
15 during the year end 12/31/2004 and,
16 iii.Christopher T. DeWolfe served as a member of the audit
17 committee until his resignation from the board of directors in April 2005. The audit
18 committee met four times during the year ended December 31, 2005.
19 239. Shockingly, DeWolfes outside involvement at Fog Cutter ramps up
20 through out 2004 as he clearly has less time to spend working at MySpace, Inc. and
21 for the benefit of the Intermix public shareholders. Orrick is clearly aware as is
22 VantagePoint that DeWolfe is impacted by his Fog Cutter increasing obligations,
23 beginning after Intermixs former CEO leaves public issuer, DeWolfe increases his
24 publicly listed Fog Cutter involvement and work load starting in 2004 and 2005.
25 DeWolfe adds to his work load from FogCutter significantly.
26 240. An SEC Commissions procedural history helps explain why
27 DeWolfe became too busy in 2005 attending to the burdens created by his
28
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1 undisclosed FogCutter job to be able to consumate a commercial search agreement

2 with Google or Yahoo prior to September 30, 2005:
3 On July 20, 2004, after concluding an investigation, NASD staff informed
4 Fog Cutter that his securities would be delisted from Nasdaq based on public
interest concerns relating to Wiederhorn's guilty plea and Fog Cutter's
5 response to it. NASD staff considered that it was contrary to the public
6 interest for Fog Cutter to remain listed on Nasdaq with a convicted felon
exercising substantial influence over the company while incarcerated. NASD
7 staff also concluded that the Board's negotiating Wiederhorn's Amended
8 Employment Agreement, acquiescing to Wiederhorn's demands for financial
support during his impreisonment, paying his court-ordered restitution, and
9 retaining him in his executive and director positions during his
10 imprisonment was not in the public interest.
11 Fog Cutter sought review of the staffs decision before the Panel. The Panel
12 determined that delisting was appropriate. Fog Cutter sought review of that
decision by the NASDAQ Listing and Hearing Review Council (Council),
13 which affirmed the Panels decision in order to protect the aulity of and
14 public confidentce in the Nasdaq Stock Market, and to protect investors and
the public interest, When the NASD Board of Governors did not review the
15 Councils decision, Fog Cutter sought Commission review. (pg. 6)
16
241. The SEC Commission also noted:
17
"On August 13, 2004, after the Federal Bureau of Prisons informed Fog
18 Cutter that Wiederhorn would not be allowed to conduct business as an
19 inmate, Fog Cutter altered Wiederhorn's titles and responsibilities to reflect
his inability to carry out the duties of a Chief Executive Officer under the
20 requirements of the Sarbanes-Oxley Act. Until that time, the plan apparently
21 was for Wiederhorn to act as Co-CEO from his prison cell. From August 13,
2004, until October 12, 2005, he was the Co-Chairman of the Board and
22 Chief Strategy Officer of Fog Cutter."
23
Fog Cutters October 12, 2005, Form 8-K reported that Wiederhorn had
24 been released from prison and had resumed his duties as Fog Cutters
25 Chairman and CEO. Fog Cutters October 17, 2005, Form 8-K reported,
however, that the Bureau of Prisons objected to Wiederhorns resumption of
26 his former duties as being incompatible with his participation in a work-
27 release program requiring that he be supervised. To comply with the work-
release program, Fog Cutter returned Wiederhorn to the position of Chief
28 Strategy Officer. Fog Cutter reported further that it anticipated Wiederhorns
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1 return to his duties as CEO and Chairman upon completion of the work-
2 release program, no or about November 22, 2005. (pg 5,6 footnotes)
3
242. Any fact finder would conclude that DeWolfes willingness to
4
approve the FogCutter compensation packages as detailed above combined with
5
the significant disparity in the amount of salary DeWolfe was receiving as the CEO
6
of Myspace, Inc. compared to the compensation DeWolfe was approving for the
7
CEO of FogCutter and the other top FogCutter Officers allowed News
8
Corporation, Orrick Law, and the co-conspirators to conclude that if they offered
9
cash bribes to DeWolfe to join the conspiracy, DeWolfe would accept such offer.
10
SEC RULES AGAINST DEWOLFE AND DEWOLFES FOGCUTTER
11 PAYS ORRICK LAW MORE CASH TO SUE NASDAQ AND THE SEC
12
243. On April 27, 2005, Christopher DeWolfe resigns from the Board of
13
Fog Cutter Group Inc. after over two years. FogCutters 8k states, DeWolfe
14
resigned as a member of the Board of Directors of the Company and all of the
15
Companys subsidiaries. The resignation was effective immediately and was
16
tendered in order to devote his ful time to his other business interests.
17
244. On December 21, 2005, after Orricks Lanny J. Davis filed an appeal
18
for Fog Cutter on May 23, 2005, the SEC Commission did an independent
19
review of the record in the Matter of the Application of Fog Cutter Capital
20
Group, Inc. c/o Lanny J. Davis, Esq. Orrick, Herrington & Sutcliffe LLP. The
21
SEC Commission reviewing the matter consisted of then Chairman Cox and
22
Commissioners Glassman, Atkins, Campos, and Nazareth with Jonathan G. Katz
23
as Secretary. The SEC Commission highlighted that the issue developed after the
24
CEO pled guilty to payment of an illegal gratuity to an employee-benefit-plan
25
investment advisor in violation of 18 U.S.C./1954 and to filing a false tax return in
26
violation of 26 U.S.C./7206 and made the following conclusion and findings in
27
its ruling prior to dismissing the action:
28
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1 We also agree with NASD that the Board, in negotiating Wiederhorns

2 Amended Employment Agreement and acquiescing in his desire for the
Leave Agreement, put Wiederhorns interests above those of the
3 shareholders.
4
For example, according to Fog Cutters Form 10-KA for June 2004, Fog
5 Cutters leave of absence expense totaled $4,750,000, during a period for
6 which Fog Cutter reported a net loss of $3,932,000. We believe that NASDs
action in delisting Fog Cutter is consistent with policies of the Exchange
7 Act. Having found that the grounds for NASDs delisting of Fog Cutters
8 securities exist in face, were based on NASD rules, and were applied in a
manner consistent with the Exchange Act, we dismiss the review
9 proceeding.
10
11 245. The SEC Commission described the troubling wrongdoing by
12 DeWolfe, Orrick Law, and FogCutter Board in its opinion:
13
i. In March 2001, prosecutors informed Wiederhorn that he was a
14 target of a federal grand jury investigation involving the collapse of Capital
15 Consultants, LLC (CCI), an employee-benefit-fund advisor with which
other Wiederhorn-controlled company had done business. Fog Cutter
16 represents that, beginning in May 2001, it disclosed the investigation to the
17 Commission and to the public in its public filings.
18
ii. Between March 2001, when the Board learned of the grand jury
19 investigation, and June 3, 2004, when Wiederhorn pleaded guilty, the Board
20 took two actions with resepect to Wiederhorns situation that are relevant
here.
21
22 iii. In 2003, Wiederhorn asked for an amended employment agreement
in advance of the exipiration of his then-current employment agreement.On
23 August 11, 2003, the Board approved an amended employment agreement
24 ("Amended Employment Agreement") for Wiederhorn. The Amended
Employment Agreement altered the conditions permitting termination of
25 Wiederhorn's employment "for cause." Under the prior employment
26 agreement, the Board, in its discretion, could terminate Wiederhorn's
employment for cause upon his conviction of a "felony" (other than a felony
27 involving a traffic offense) involving ([Fog Cutter]). During negotiations of
28 the Amended Employment Agreement, the Board knew that Wiederhorn
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1 was under investigation for felonies that did not involve Fog Cutter. Fog
2 Cutter estimated that the company would have owed Wiederhorn $7 million
had it terminated him without cause.
3
4 iv. In early 2004, Wiederhorn, by then under indictment and awaiting
5 trial, informed the Board that he wanted to go to trial on the charges against
him. Fog Cutter represents that it was concerned about a prolonged period
6 of negative publicity and distraction from its business. Wiederhorn offered
7 the Board an alternative: he would plead guilty if he could negotiate a
financial package to protect his familys income and benefits during any
8 imprisonment followng a guilty plea. On June 2, 2004, the parties
9 concluded a Leave of Absence Agreement(Leave Agreement). and
10 The Leave Agreement provided that Wiederhorns absence from his duties
11 because of his anticipated imprisonment would be considered a leave of
absence, during which time he would retain his titles
12
13 Financially, the Leave Agreement provided that Fog Cutter would continue
to pay Wiederhorn his $350,000 annual salary, bonuses, and other employee
14 benefits while imprisoned. Fog Cutter also agreed to pay Wiederhorn a $2
15 million leave of absence payment to retain his good will, cooperation and
continuing assistance, and in recognition of Wiederhorns past service to the
16 Company, to help avoid litigation and for other reasons.
17
v. June 3, 2004- the day after concluding the Leave Agreement,
18 Wiederhorn pleaded guilty to paying an illegal gratuity and filing a false tax
19 return. The district court sentenced Wiederhorn to eighteen months
imprisonment and required him to pay a $25,000 fine and $2 million in
20 restitution to the receiver winding up CCIs affairs."
21
vi.During the negotiation of the Leave Agreement, Wiederhorn represented
22 that the tentative plea agreement both required him to pay the $2 million
23 restitution at the sentencing hearing and limited his ability to raise the funds
by precluding his use of certain means of financing the restitution payment.
24
25 The Board knew, therefore, that Wiederhorn would use the $2 million
payment to pay the restitution. As Fog Cutters counsel stated to the Panel,
26 Fog Cutter did not like the idea of helping Wiederhorn pay a criminal
27 penalty but, nonetheless, did, indirectly, pay the restitution in its entirety
28
111
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%((.%3@%.(&
1 246. The SEC Commission finds DeWolfe and other board Members likely
2 breached their fiduciary duties in several regards, stating,
3
4 "Fog Cutter suggests that our opinion in JJFN can be distinguished because
it made no mention of any action by the JJFN board of directors. Fog Cutter
5 is correct, but the distinction aggravates rather than lessens, the concerns
6 raised by the NASD with respect to Fog Cutter because the actions of Fog
Cutter's Board were part of the problem. NASD determined that Wiederhorn
7 so thoroughly influenced the Board that it provided no check upon
8 Wiederhorn's conduct." (pg. 9)
9 The SEC also found DeWolfe opted to limit the authority vested in the Board,
10
11 "Although well aware that the grand jury investigation had targeted
Wiederhorn, the Board agreed to the Amended Employment Agreement to
12 prevent his termination for cause in the anticipated event that he might
13 subsequently be convicted of crimes not involving Fog Cutter. 22/ Later,
knowing that Wiederhorn was going to plead guilty to the felony charges
14 against him, the Board negotiated the Leave Agreement that continued
15 Wiederhorn's compensation during his incarceration and indirectly paid he
restitution imposed on Wiederhorn as part of his sentence. As part of the
16 same Agreement, the Board tried to retain Wiederhorn as co-CEO and co-
17 Chairman during his imprisonment. 23/ Fog Cutter determined not to retain
Wiederhorn as co-CEO only when the Bureau of Prisons notified Fog Cutter
18 that Wiederhorn would not be allowed to conduct a business from prison.
19 24/ Fog Cutter suggests the Leave Agreement allowed the Board to keep
Wiederhorn at Fog Cutter and avoid wrongful-termination litigation with
20 Wiederhorn. We note, however, that it was the Board's limitation of its
21 authority to terminate Wiederhorn for cause under the Amended
Employment Agreement that made credible Wiederhorn's threat of
22 litigation." (pg. 9)
23
24 The SEC found FogCutter counsel Orrick Law claims lacking credibility:
25 Fog Cutter also seems to complain about the quality of NASDs
investigation. NASD represents that it met with company representatives,
26 counsel, and at least one board member. Fog Cutter does not deny that these
27 contacts occurred but complains that the investigation lasted only for weeks
and took no on-the-record testimony. We believe NASD acted quickly,
28 appropriately, and in accordance with NASD rules. AsNASD notes, there is
112
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%((A%3@%.(&
1 no requirement for on-the-record testimony in delisting cases. Moreover,

2 Fog Cutters counsel stated at the beginning of the hearing that Nasdaq staff
had gone out of its way to listen to the company. (pg. 10)
3
4
5 247. At all such times, Intermix, Inc, Myspace, Inc., Orrick, VPVP,
6 Carlick, Sheehan, Harroch, DeWolfe, Yang, Sheehan, AskJeeves, IAC, and News
7 Corporation failed to disclose their relationship with Fog Cutter and DeWolfe in
8 2004 and 2005.
9
10 248. Orrick, VPVP, AskJeeves, Carlick, Sheehan, Yang, Intermix and
11 other defendants failure to disclose DeWolfes legal background and claims made
12 against him as disclosed in FogCutters public filings during 2004 and 2005
13 obstructed Intermix shareholders being able to see the red flag raised by proper
14 disclosure of any one of the Following elements:
15 i. The July 2004 Shareholder Derivitive lawsuit filed against
16 DeWolfe, FogCutter, and AskJeeves Director Carlicks law firm Orrick Law.
17 ii. The significant amount of compensation DeWolfe received and
18 stood to make during each of years of 2004 and 2005 for his duties and time
19 allocated to publicly traded Fog Cutter.
20 iii. the activities that DeWolfe was involved in including his use of
21 air travel benefits disclosed in the Fog Cutter SEC filings and # of board meetings
22 or other meetings attended on behalf of FogCutter.
23 iv. The SEC and Nasdaq actions that occurred in 2004 including
24 the delisting of Fog Cutter by Nasdaq under DeWolfes stewardship.
25
26 249. Orrick, VPVP, Carlick, Sheehan, AskJeeves, Redpoint, Intermix,
27 Brewer, Edell, Flahie, Lipp, and Yang became aware on or about July 2004 that
28 DeWolfe was being charged for fraud and had been thrown off the Nasdaq to
113
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1 protect the public interest. They further became aware from the Fog Cutter 2004
2 Shareholder lawsuit againt DeWolfe that During the 1990s, defendant DeWolfe
3 managed the merchant commerce division of the First Bank which was part of the
4 financial company that went bankrupt under Wiederhorn.
5 250. The aforementioned defendants further became aware of the claims
6 against DeWolfe when DeWolfe hires AskJeeves Director Carlicks law firms
7 Orrick Herringtons Lanny Davis, FogCutters outside counsel to publish a
8 White Paper to explain the facts surrounding the Leave of Absence Agreement
9 with FogCutters CEO going to jail.
10 251. Orricks Harroch working directly with Carlick, AskJeeves Director
11 #1, facilitates the February 2005 sweetheart below fair market Myspace, Inc. 49%
12 stock sale to AskJeeves Director #2, Yang & insider Chris DeWolfe. Orrick works
13 directly with VPVP, Yang, and DeWolfe representing MSV LLC to finalize &
14 consummate the series of transactions first disclosed starting with the November
15 2004 10Qs initial disclosure and filing of a fabricated purported December 17,
16 2003 MySpace asset sale agreement.
17 252. Google and AskJeeves direct and induce the AskJeeves Directors
18 Carlick and Yang that control Intermix and Myspace, Inc. to fraudulent conceal
19 and fail to disclose in Interixs Proxy filings any mention of:
20 i. AskJeeves Director Carlicks ongoing retention through VPVP
21 of
22 Orrick Law concurrently with the Myspace, Inc. CEO DeWolfes retention of
23 Orrick Law through FogCutter and how such relationship may have created
24 conflicts for Intermix and its shareholders. These undisclosed paid relationships
25 faciliate Intermixs failure to disclose in any SEC filings that DeWolfe as a
26 FogCutter Director had determined it proper and approved paying their CEO
27 while he was serving time in jail after he pled guilty for evasion and bribery.
28 ii. Orricks failure to properly disclose its relationship with
114
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1 DeWolfe, the 14A violations and its exposure as a result of its actions aiding and
2 abetting securities fraud in both these Proxies cited, Orricks aiding and abetting of
3 fraudulently concealed fabricated Edell resume and false work experience in the
4 January and July 2004 Intermix Proxy statements.
5 iii. A conflicting work schedule and responsibility at FogCutter in
6 2004 and 2005 which DeWolfe was paid almost the same or more then his full
7 time job managing MySpace, Inc.
8 iv. Orrick serving as both Intermix, Inc. outside counsel and
9 appointing an Orrick employee as Myspace, Inc. chief legal officer outside
10 knowingly allowed defendants and public issuers to file multiple deficient proxy
11 and SEC filings including the January and July 2004 Proxy and the August 2005
12 Proxy. All of which omits disclosure of how such aforementioned relationships
13 may have created conflicts for Intermix and its shareholders to be protected from
14 or at least made aware of through proper disclosure.
15 v. Intermixs minutes show how Orrick partner Harroch would
16 leverage his dual counsel role to get access to Intermix confidential Board
17 meetings and pass on the confidential information to his client FogCutter Director
18
DeWolfe, July 17, 2005 Board Minutes from the 6pm pst meeting &,
19
"Richard Harroch of VantagePoint Venture Partners joined the meeting in
20
progress."
21
COVERING UP DEWOLFES NYT PRIZE FOR EXECUTIVE GREED
22
253. Intermix fails to disclose its Officers and Directors relationships with
23
Fogcutter even after a NY Times Article was published August 14, 2005
24
titled,Announcing an Award for Greed, by Nicholas Kristoff describing the
25
actions of the FogCutter Board that Myspaces CEO Chris DeWolfe had been
26
concurrently running:
27
28
115
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(()%3@%.(&
1 The winner of the first annual Michael Eisner Award is Andrew

2 Wiederhorn, the chairman and chief executive of the Fog Cuuter
Capital Group"
3
4 "That's when the Fog Cutter board displayed spine-tingling chutzpah.
The board announced that it would continue to employ Mr.
5 Wiederhorn at full salary while he is behind bars, and it even granted
6 him a leave of absence payment of $2 million to make up for the
restittution he had to pay. Nasdaq was so disgusted that it delisted the
7 company.
8
"Corporate America has nurtured a cult of chief exeutives, hailing
9 them as geniuses and then excusing their misconduct and
10 megalomania. Corporate documents released this spring show that the
Fog Cutter board awarded Mr. Wiederhorn $6.3 million in total
11 compensation for 2004 and for the nine months of prison time in
12 2005. I can't think of a board that has ever so disgraced the principles
of corporate governance by overpaying a C.E.O. even as he sits in
13 prison."
14
254. The August 14, 2005 NYTimes story also acts as a powerful lever that
15
Google, News Corporation, IAC and the other co-conspirators use to pressure and
16
induce Intermix, Myspace, Inc., and Myspace CEO Chris DeWolfe to comply with
17
the bid rigging schemes. These included Myspace and Intermix agreeing to
18
continue to not consumate a paid search commercial agreement with Yahoo, not
19
disclosing to shareholders the true accurate financial forecasts of Intermix that
20
were available if Myspace alerted the Intermix Board that the Myspace financial
21
information Intermix had and was using to create its financial forecasts was
22
significant understated, and not consumating the sale of the minority shares in
23
Myspace, Inc. to Intermix as required by the terms of the July 18, 2005 merger
24
agreeent.
25
255. That is because the NYTimes article specifically omits mention of the
26
individual names of the FogCutter Directors, thus DeWolfe and Intermix Directors
27
understand that they have massive exposure after the NYTimes story until the
28
116
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%((B%3@%.(&
1 planned September 30, 2005 shareholder meeting where approval for consumation
2 of the News Corporation acquisition is set to take place.
3 256. News Corporation within 24 hours could publish a related story
4 through one of its many newspaper assets such as the NY Post or broadcast a
5 related story on a Fox affiliate locally or nationally, instantly creating a media
6 firestorm linking and outing the Myspace CEO as the leader of the FogCutter
7 Board that was the target of the NYTimes vextious article on DeWolfes actions at
8 FogCutter. This in turn would force Intermix and Myspace, Inc. to terminate
9 DeWolfes employment costing him tens of millions of dollars when future salary
10 is bundled with the undisclosed bribes News Corporation had promised to pay
11 DeWolfe after the September 30, 2005 closing of the transaction.
12 257. Further, the outing of DeWolfe would cause the Intermix Directors to
13 have to admit they had been either intentionally fraudulently concealing
14 DeWolfes Director role at FogCutter in the 2004 and 2005 Intermix SEC filings or
15 at the very least grossly negligent in not enforcing such disclosure be made.
16 258. The outing of DeWolfe and his role at FogCutter would also force
17 disclosure by Intermix of Orrick Laws dual role as counsel to FogCutter and
18 Intermixs control shareholder VPVP.
19 i. Shareholders might have still approved the September 30, 2005
20 acquisition in the event DeWolfe was outed by News Corp but Intermix
21 Directors, VPVP, and DeWolfe would have lost tens of millions of dollars in
22 compensation and secret promised payments as shareholders would have launched
23 injunctive class action lawsuits forcing removal of the FogCutter infected parties
24 before the September 30, 2005 annual meeting. Further, it would have caused
25 permanent reputational damage to the ongoing professional careers of the involved
26 parties.
27 259. The timing of the NYT article appearing in mid August is hardly an
28 accident as such article was published shortly after another 3rd party traffic
117
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%((/%3@%.(&
1 auditing firm, Media Metrix, releases its July 2005 rank of top websites by # of
2 page views. Myspace.com is ranked at an all time high at #4, ahead of AOL.com
3 and Google.com:
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18 This clearly would make paid search providers like Yahoo even more eager to try
19 to strike a commercial search agreement with Myspace, Inc. Therefore, News
20 Corporation and the other co-conspirators would have used the August NYT article
21 as a Sword of Damocles hanging over the neck of DeWolfe to ensure he stuck to
22 the undisclosed deal he and the other insiders had struck with News Corporation
23 that included accepting secret cash bribes in order to delay consumation of a paid
24 search agreement with Yahoo prior to September 30, 2005.
25 260. A key fact that allowed for Plaintiffs to be damaged by the antitrust
26 conspiracy, was that defendants failed at the Board of Director level of at least one
27 of the defendants to operate the internal controls and mitigate corporate
28 governance issues each month and quarterly and annually, which has been proven
118
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1
by the SEC repeatedly as recently as 2013: For instance, its uncontested that the
2
News Corporation SEC CEO certification was defective when it was filed as part
3
of November 4, 2011 10Q filing5 The above fact is based on the correspondence
4
between SEC and News Corporation regarding SEC disclosure, incorporated by
5
reference below:
6
i.SEC notifies News Corporation of inquiry on January 30, 2012
7
related to defective and false 10Q SEC filing for November 4, 20116
8
ii. SEC letter to News Corporation 10Q Feb 9, 2012:7
9
iii. News Corporation reply to SEC filed February 16, 2012 admits
10
defective internal controls and SEC filings, 8
11
12 261. Most recently, its U.S. staff itself, including top women journalists
13 News Corporation has hired have disclosed facts about the public companys lack
14 of internal controls which facilitates the breakdown in corporate governance:
15
i. Incorporate excerpts By Reference: 8/22/2016 COUNTY OF
16
NEW YORK Complaint: ANDREA TANTAROS, Plaintiff, -- against --
17
FOX NEWS NETWORK, LLC, ROGER AILES, Defendants.
18 ------------------------------------------------------------------X
19 INTRODUCTION
1. In 2011, Plaintiff Andrea Tantaros (Plaintiff or Tantaros), a
20 highly skilled thoughtful, and polished host and political analyst,
signed a contract with Defendant FOX News Network, LLC (Fox
21 News
22 3. In recent months, other women have finally, and laudably, come
forward to reveal Defendant Roger Ailes (Ailes) as the sexual
23
5
24 http://www.sec.gov/Archives/edgar/data/1308161/000119312511295489/d249993
dex311.htm (last accessed October 15, 2016)
25 6
http://www.sec.gov/Archives/edgar/data/1308161/000000000012004904/filename
26 1.pdf (last accessed October 15, 2016)
7
27 http://www.sec.gov/Archives/edgar/data/1308161/000119312512047031/0001193
125-12-047031-index.htm (last accessed October 15, 2016)
28
119
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(.-%3@%.(&
1 predator that he is. However this Complaint is not just about Ailes; it
also gives life to the saying that the fish stinks from the head. For
2 Ailes did not act alone. He may have been the primary culprit, but his
actions were condoned by his most senior senior lieutenants, who
3 engaged in a concerted effort to silence Tantaros by threats,
humiliation, and retaliation.
4
10. But perhaps even more disturbing is that those ultimately in
5 control of Fox News, Rupert Murdoch and his sons (collectively, the
Murdochs), are plainly not disturbed by Ailess conduct and the
6 retaliatory conduct by Fox News senior executives; they are only
upset that Ailes was outed.
7
the Murdochs have been misleading the public into believing that
8 they are taking action. In fact, they have done the opposite:
9 a. In any responsible company, Ailess employment agreement
(unless it has a provision permitting him to harass women) would
10 have been terminated for cause, with no further compensation.
Instead, on information and belief, the Murdochs gave Ailes a $40
11 million going-away present;
12 b. Ailes is reportedly still serving as an advisor to Rupert
Murdoch;
13
c. Although a respected law firm, Paul, Weiss, Rifkind, Wharton &
14 Garrison LLP (Paul Weiss), has been hired to conduct an internal
investigation of Fox News, the results of Paul Weisss investigation
15 will not, according to published reports, be made public. Worse still,
according to a published report, Paul Weiss has ceased questioning
16 Fox News female employees at the offices of Fox News out of fear
that the interviews are being bugged;
17
On information and belief, Ailes was forced to resign by the
18 Murdochs, who control Fox Newss parent, 21st Century Fox, because
in the wake of a sexual harassment lawsuit by former Fox News
19 employee Gretchen Carlson, numerous past and present Fox News
female employees have come forward with accounts of sexual
20 harassment that are disturbingly similar to Tantaross allegations in
this case.
21
ii. Members of Parliament Commons culture, media and sport select
22
committee in 2012 found the CEO of defendant News Corporation:
23
Corporately, the News of the World and News International
24 misled the Committee about the true nature and extent of the internal
investigations they professed to have carried out in relation to phone
25 hacking; by making statements they would have known were not fully
truthful; and by failing to disclose documents which would have
26 helped expose the truth. Their instinct throughout, until it was too late,
was to cover up rather than seek out wrongdoing and discipline the
27 perpetrators, as they also professed they would do after the criminal
convictions. In failing to investigate properly, and by ignoring
28 evidence of widespread wrongdoing, News International and its
120
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(.(%3@%.(&
1 parent News Corporation exhibited willful blindness, for which the

companies directorsincluding Rupert Murdoch and James
2 Murdochshould ultimately be prepared to take9 responsibility (see
paragraphs 32, 33, 60, 62, 132 and 141). p276 .
3
The effect of these actions and omissions is that the Committees
4 Report to the House in February 2010 on Press standards, privacy and
libel was not based on fully accurate evidence. False evidence, indeed,
5 prevented the Committee from exposing the true extent of phone-
hacking. p277.
6
Rupert Murdochs final admission at the Leveson inquiry that a cover
7 up has taken place at the company may mean that the investigations
conducted by Burton Copeland have been used by people at News
8 International to perpetrate a falsehood. As such we believe there is a
strong argument that the company has no right to restrain disclosure
9 of the file. We call on the company to waive Rupert Murdoch 'not fit'
to lead major international company, MPs conclude Select committee
10 also says James Murdoch showed 'willful ignorance' of extent of
phone hacking at News of the World
11
iii.Incorporate Excerpt By Reference10 as newspaper article points
12
out, News Corporation had maintained that phone hacking was the work of a
13
single "rogue reporter" through late 2011:
14
15 Judge criticizes Murdoch empire as it agrees aggravated damages for
37 victims of News of the World
16
A high court judge said the Murdoch-owned company behind the
17 News of the World had made "an admission of sorts" that it engaged
in a deliberate cover-up of evidence relating to phone hacking, on the
18 day that the publisher paid an estimated seven figures in damages to
settle 37 phone-hacking claims brought by public figures ranging
19 from Jude Law to John Prescott.
20 Mr. Justice Vos, the judge presiding over the hacking cases, told
News Group Newspapers (NGN) he had seen evidence which raised
21 "compelling questions about whether you concealed, told lies, actively
tried to get off scot free".
22
The judge ordered the company to search a number of computers
23 which he said could contain evidence that its executives deliberately
tried to destroy evidence of phone hacking, saying that he had seen
24 emails which showed a "startling approach to the email record of
NGN".
25
9
26 http://www.publications.parliament.uk/pa/cm201012/cmselect/cmcumeds/9
03/903i.pdf
27 10
Guardian Newspaper, How News Group hid the phone-hacking scandal by
28 Dan Sabbagh and Amelia Hill guardian.co.uk, Thursday 19 January 2012
121
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1
He said he had seen emails that showed how, days after the actor
2 Sienna Miller wrote to the company asking it to retain emails which
might relate to hacking her phone, "a previously conceived plan to
3 conceal evidence was put in train by NGN managers".
4 The judge read out a section from the confidential court papers
detailing the cover-up allegations made by hacking victims against the
5 company's executives and directors. It included the charge that the
company "put out public statements that it knew to be false", that it
6 had "deliberately deceived the police" and had destroyed evidence of
wrongdoing including "a very substantial number of emails" as well
7 as computers.
8 NGN refused to admit the allegations but agreed that damages paid
to the victims could be assessed "on the basis of the facts alleged".
9
Earlier it emerged that while the company refused to admit its former
10 directors and senior executives had presided over a cover-up, it agreed
that "aggravated damages" could be calculated "as if" the allegations
11 that they lied, obstructed police and destroyed evidence were true. The
Murdoch subsidiary said it had made the concessions solely for the
12 purpose of "the interest of the prompt and efficient determination" of
the claims against it.
13
Phone hacking dated back to at least 2002, when the News of the
14 World targeted Prince Harry's friend Guy Pelly, and ran on until 2006
with targets such as 7/7 hero Paul Dadge and Sara Payne, whose
15 daughter Sarah was murdered. Law and his friends were also
monitored.
16
17 But in court, as each of 18 settlements were read out, Michael
Silverleaf, QC for the company, said he was there to offer "sincere
18 apologies to the claimant for the damages as well as the distress
caused" by the "unlawful access of messages".
19
20 iv. Incorporate excerpts by reference:11
21 Phone records of IRA terror informant went to News International
22 Detectives investigating possible corporate charges against Rupert
Murdoch's media empire have obtained evidence to suggest that News
23 International paid private detectives to unlawfully access the phone
records of a leading IRA mole who lives under the protection of the
24 Ministry of Defense (MoD).
25 Senior Scotland Yard officers are analyzing an invoice originally
seized from a private investigator by the Metropolitan Police in 2007.
26 The document which dates from the time of the discredited original
phone-hacking investigation bills News International 850 for
27
11
28 article by Tom Harper, The Independent UK newspaper, Sunday 29 June 2014,
122
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(.A%3@%.(&
1 "Scappaticci phone records".

2 At the time the invoice was submitted, in April 2006, a senior News
of the World executive had allegedly commissioned private detectives
3 to find Freddie Scappaticci, Britain's top agent inside the IRA who
was known by the codename "Stakeknife". David Cameron's former
4 director of communications Andy Coulson was the newspaper's editor
at the time.
5
Last week, Coulson was convicted of conspiracy to hack mobile
6 phones. Five other News of the World journalists pleaded guilty to
similar offences.
7
Shortly after the company was informed it was under suspicion in
8 May 2012, executives in the US ordered that the company
dramatically scale back its co-operation with the Met.
9
Gerson Zweifach, group general counsel of News Corp, flew to
10 London for emergency talks with the Met in 2012. According to
Scotland Yard, he told police: "Crappy governance is not a crime.
11
v. Incorporate by Reference:12
12
Ian Edmondson, the former News of the World head of news prior to
13 the newspaper's 2011 closure, pleaded guilty this month to phone
hacking between the years 2000 and 2006. According to the
14 Guardian, Edmondson's "decision to plead guilty means that eight of
the 10 so far charged and dealt with for phone hacking at the NoW
15 have been convicted or pleaded guilty."
16 "Between July 2005 and August 2006 records showed there were 800
calls and texts, or 90 a month," the prosecution said, according to the
17 Guardian.
18 The UK police found that 334 pages of Mulcaire's 8,000+ pages of
notes listed Edmondson as requesting hacks.
19
And, Edmondson was "responsible for 23.9% of the newsdesk orders
20 to Mulcaire," the Huffington Post reported.
21 Edmondson had Mulcaire hack the phones of Jude Law, Sienna
Miller, Paul McCartney and many others.
22
vi. Incorporate Excerpt by Reference, November 8, 2014, Ex News
23
of the World editor jailed for eight months over phone hacking plot
24
Former News of the World news editor Ian Edmondson has been
25 imprisoned for a period of eight months over phone hacking plot
charges.
26
Justice Saunders said that Edmondson was dismissed from his job at
27
12
28 October 11, 2014 article by Sydney Smith in Media Business Ethics News
123
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(.=%3@%.(&
1 the News of the World and that he had lost his reputation as a
journalist. Edmonson had only himself to blame, added Justice
2 Saunders.
3 VI.INTERSTATE COMMERCE
4 262. Defendants conduct substantially affected interstate commerce
5 throughout the United States and caused antitrust injury throughout the United
6 States because, among other things, defendants had employees across state lines
7 as well as did business over state lines.
8 263. Defendants conspiracy is a continuing violation through which
9 Defendants repeatedly invaded Plaintiffs interests by adhering to, enforcing, and
10 reaffirming the anticompetitive agreements described herein.
11 A. RELEVANT MARKET
12 264. Where it is necessary that plaintiffs demonstrate the existence of
13 the relevant market, the United States market for general search, i.e., general
14 Internet search conducted on desktop computers, laptops, and handheld devices via
15 the Google search engine or one of its general search engine rivals, such as Bing.
16 i. First, Google has acknowledged the existence of a general search
17 category (see id. at 72 and 102 (referring to Microsofts Bing search engine in a
18 written response posed by a U.S. Senator in the Power of Google proceedings,
19 Googles counsel remarked: Here, by comparison, Google has no ability to
20 exclude a general search engine rival such as Microsoft from the market.;) and its
21 executive chairman stated in response to another written question:
22 As I acknowledged during the Committee hearing, Google is in the
area of 65% of queries [for desktop search] in the U.S., if you look
23 only at Googles general search competitors, such as Microsofts Bing
and Yahoo!) (emphases added).)
24
265. Plaintiffs allege they have standing to seek relief and redress for
25
additional antitrust injuries to themselves from the harm to competition, that
26
Google has caused (and is continuing to cause) in the search markets.
27
VII. CLASS ALLEGATIONS
28
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!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(.&%3@%.(&
1 266. Plaintiffs sue on their own behalf and on behalf of the following
2
Plaintiff Sub-Classes under Fed. R. Civ. P. 23(b)(1), (2), and (3).
3
4 Sub-Class A: All shareholders of Intermix holding stock on October 31, 2003 the
5 or any time through and on September 30, 2005 the date of the consummation of
the
6
acquisition by News Corp.
7
8 Sub-Class B: All shareholders of Intermix holding stock on November 14, 2004
9 the date the Intermix 10Q containing the fabricated Myspace.com related
10 agreements and claims was announced to the public, or any time through and on
11 September 30, 2005 the date of the consummation of the News Corp acquisition.
12
Sub-Class C: All shareholders of Intermix holding stock on July 18, 2005 the date
13
the acquisition merger agreement was announced to the public, or any time through
14
and on September 30, 2005 the date of the consummation of the acquisition by
15
News Corp.
16
17 Sub-Class D: All shareholders of Intermix holding stock on September 23, 2005
18 the date the $13.50 per share counter bid was announced to the public, or any time
19 through and on September 30, 2005 the date of the consummation of the
acquisition
20
by News Corp.
21
267. Excluded from this class are Defendants, any entity in which
22
Defendants have a controlling interest or which has a controlling interest in
23
Defendants, and Defendants agents, legal representatives, predecessors,
24
successors, assigns, and employees. It is believed that the Intermix Class contains
25
thousands of members, such that the class is so numerous that individual joinder of
26
all members is impracticable.
27
268. The Intermix Sub-Class A, Sub-Class B, Sub-Class C, Sub-Class D
28
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!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(.)%3@%.(&
1 are ascertainable either from Defendants records or through self-identification in a

2 claims process.
3 269. Plaintiffs claims are typical of the claims of other Sub-Class
4 members as they arise out of the same course of conduct and the same legal
5 theories, and he challenges Defendants conduct with respect to the Intermix Class
6 as a whole.
7 270. Plaintiffs have retained able and experienced class action litigators as
8 counsel. He has no conflicts with other class members and will fairly and
9 adequately protect the interests of Intermix Sub-Classes.
10 271. This case raises common questions of law and fact that are capable of
11 class-wide resolution, including:
12 a. Whether Defendant Sub-Class A members agreed not to actively solicit
13 each others employees, to notify other Defendants Sub-Class A members of offers
14 made to their employees, and to limit counteroffers;
15 b. Whether Defendants agreed to rig the bidding process for the search
16 engine rights to MySpace or aided and abetted such efforts;
17 c. Whether the Sensitive Company Agreement was a per se violation of the
18 Sherman Act and or Cartwright Act; whether Defendants agreements constituted
19 unlawful or unfair business acts or practices in violation of California Business and
20 Professions Code section 17220;
21 d. Did AskJeeves Directors David Carlick and Geoff Yang violate the
22 Clayton Act Section 8.
23 e. Whether Defendants fraudulently concealed their conduct; whether any
24 such injury constitutes antitrust injury; and the measure of damages suffered by
25 Plaintiffs and the Intermix Sub-Classes.
26 f. Whether Plaintiff and the other Sub-Class members suffered injury as a
27 result of Defendants agreements;
28 272. These common questions predominate over any questions affecting
126
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(.B%3@%.(&
1
only individual class members.
2
3 273. A class action is superior to any other form of resolving this litigation.
4 Separate actions by individual class members would be enormously inefficient and
5 would create a risk of inconsistent or varying judgments, which could establish
6 incompatible standards of conduct for Defendants and substantially impede or
7 impair the ability of class members to pursue their claims. There will be no
8 material difficulty in the management of this action as a class action.
9 274. Rule 23(b)(2) Certification: Injunctive Relief. As required by Fed. R.
10 Civ. P 23(b)(2), the Classes are appropriate for certification because Defendants
11 have acted or refused to act on grounds generally applicable to the Classes, thereby
12 making appropriate final injunctive relief or corresponding declaratory relief with
13 respect to the Class as wholes. The policies of the Defendants challenged herein
14 apply and affect members of the Classes uniformly, and Plaintiffs challenge of
15 these policies hinges on Defendants conduct, not on facts or law applicable only
16 to Plaintiffs. Further, Defendants continue to engage in the improper practices
17 discussed above. Injunctive relief is necessary and appropriate to enjoin
18 Defendants conduct and to prevent irreparable harm to Plaintiffs and the
19 members of the Classes for which they have no adequate remedy at law.
20 275. Rule 23(b)(3) Certification: Predominance and Superiority. As required
21 by Fed. R. Civ. P. 23(b)(3), the Classes alleged in this Complaint are appropriate
22 for certification because class proceedings are superior to all other available
23 methods for the fair and efficient adjudication of this controversy. The damages
24 suffered by each member of the Classes will likely be relatively small,
25 especially given the burden and expense of individual prosecution of the complex
26 litigation necessitated by Defendants actions. It would be virtually impossible for
27 members of the Classes to individually obtain effective relief from Defendants
28 misconduct. Even if members of the Classes themselves could sustain such
127
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(./%3@%.(&
1
individual litigation, it would still not be preferable to a class action, because
2
individual litigation would increase the delay and expense to all parties due to the
3
complex legal and factual controversies presented in this complaint. By contrast,
4
class actions present far fewer management difficulties and provide the benefits of
5
single adjudication, economy of scale, and comprehensive supervision by a single
6
Court. Economies of time, effort, and expense will be fostered and uniformity of
7
decisions will be ensured.
8
FRAUDULENT CONCEALMENT
9
276. Yang and Carlick, as board members of Intermix, Myspace, and
10
AskJeeves had a fiduciary duty to disclose the existence of the Sensitive Company
11
Agreement that ultimately led to the bid-rigging scheme, but did not make such
12
disclosures. Not only did Yang and Carlick choose not to disclose the Sensitive
13
Company Agreement that led to the bid rigging scheme, they actively concealed
14
the existence of each through false filings with the Securities and Exchange
15
Commission. These false filings were purposely intended to mislead shareholders
16
about the status and lack of a current commercial search engine agreement.
17
277. As a result of Defendants fraudulent concealment of their
18
conspiracy, the running of any statute of limitations has been tolled with respect to
19
the claims that Plaintiffs have as a result of the anticompetitive and unlawful
20
conduct alleged herein.
21
278. Defendants conspiracy was a continuing violation through which
22
Defendants repeatedly invaded Plaintiffs and the Intermix Sub-Classs interests by
23
adhering to, enforcing, and reaffirming the anticompetitive agreements described
24
herein.
25
279. Defendants communicated among themselves by phone and e-mail
26
and through in-person meetings to further the conspiracies and to conceal the
27
existence of the conspiracies as described in this complaint.
28
128
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(.C%3@%.(&
1 280. Before July 11, 2014 at the earliest, Plaintiffs did not have actual or
2 constructive notice, and was not on inquiry notice of certain facts wherein he
3 discovered he has certain claims and can seek certain relief. Further, Plaintiffs and
4 the Intermix Class including Sub-class A, Sub-class B, Sub-class C, and Sub-class
5 D members could not have discovered, before July 11, 2014 the i) Special
6 Agreement Hiring Policy protocols between Google and AskJeeves that served as
7 AskJeeves motivation to rig the commercial search engine bidding process for
8 Intermix and Myspace. ii) the Sensitive Company Agreement between Google
9 and AskJeeves that served as Googles motivation to agree to withhold a bid to
10 become a search engine partner for Intermixs myspace.com. ii) the undisclosed
11 secret employment agreement between Google and Intuit Chairman Bill Campbell
12 that existed from at least August 1, 2003 onwards. iii) News Corporations
13 undisclosed secret gentlemens agreement that existed from at least July 2004
14 onwards which prevented News Corporation from disclosing to Intermix
15 shareholders the existence of the Special Agreement Hiring Policy Protocols
16 having been entered into with Google by Intermixs Chairman Carlick and
17 Myspace, Inc. Director Yang.
18 281. By way of its conduct described in this complaint, the defendants have
19
acted on grounds that apply generally to the proposed classes. Accordingly, final
20
21 injunctive relief is appropriate respecting the classes as a whole.
22 VIII. RULE 406 EVIDENCE

23
282. The following evidence is submitted to show knowledge and habits of
24
25 certain of the defendants including routine practice of an organization under
26 Rule 406. These Defendants and the public companies they oversee, have time
27
after time failed to manage and operate their organizations in a manner that is
28
129
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(A-%3@%.(&
1 compliant with Federal SEC and Sarbanes Oxley requirements, namely

2
maintaining non defective internal controls and sufficient oversight to i) Prevent
3
4 their employees from damaging 3rd parties and the public ii) Restrain their
5 organizations from continuously committing unlawful or criminal acts and iii)

6
Ensure their personnel are abiding by State and Federal laws and regulations.
7
8 For instance, the Rule 406 habit and routine practice of an organization
9 evidence below proves that it was because the defendants and the public
10
companies they operate and work for lacked internal controls or such internal
11
12 controls were defective, that allowed for the existence and rapid growth of the
13 unlawful Google Special Agreement conspiracy stating in 2005. It is hard to
14
comprehend the total failure of anyone working at Google between 2005 through
15 at
16
least 2011 to force thedisclosure of the existence of the unlawful Special
17
18 Agreement scheme.
19
All the top Google Officers and Directors knew the Special
20
Agreement hiring protocol they granted to Sensitive Companies was illegal.
21
22 Even Googles outside attorneys were aiding and abetting the conspiracy. Googles
23
outside law firm Wilson Sonsini is seen on many email threads having discussions
24
25 about the illegal Special Agreements as early as 2005. Yet not only does Wilson
26 Sonsini Law fail to force Google to halt the illegal business practice, but Wilson
27
Sonsini helped Google expand the number of Special Agreements operating
28
130
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1 between 2005 through 2011 when Google finally signed a consent decree with the
2
Department of Justice. If even one Google Officer or Director in 2005 would
3
4 have stood up and said I have good corporate governance habits and practices,
5 and we have to stop violating Federal and State antitrust laws with these Special
6
Agreement arrangements. I think these types of deals are illegal and if we dont at
7
8 the veryleast disclose through our public SEC filings the existence of such
9 arrangements to our shareholders, then I will have to contact the SEC and blow the
10
whistle to stop harming our own employees and endangering our great future
11
12 careers because I am also afraid we could all go to jail, have our professional
13 reputations damaged, and even possibly have to pay a lot of fines.
14
Yet, the reason to why none of Googles Officers or Directors stepped up to
15
16 pressure the company to terminate the illegal Special Agreements in 2004,
17
2005, 2006, 2007, 2008, 2009, and 2010, is because i) Googles Directors and
18
Officers operate their company with a routine that rewards their employees for
19
20 breaking the law to gain commercial advantages. and covering up and ii) Googles
21
Directors refuse to operate their business with strong internal controls and
22
implementing the rigorous corporate governance needed to prevent the serial
23
24 unlawful behavior and regulatory violations Google has accrued beside and in
25
addition to the Special Agreement conspiracy.
26
27 i. Against Defendant Alphabet, Inc. and its Officers and
Directors that are Sub-Class B members,:
28
131
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(A.%3@%.(&
1 Examples of Routine Practice: criminal FDA violations,

2 Disclosure violations; Security violations; Defective Internal
Controls and Reporting; Antitrust violations
3
4 d. Fully incorporate by reference: Googles August 2011 FDA
5 Consent Decree. The FDAs press release13 states:

6
Online search engine Google Inc. has agreed to forfeit $500 million
7 for allowing online Canadian pharmacies to place advertisements
8
resulting in the unlawful importation of controlled and non-
9 controlled prescription drugs into the United States,
10
The shipment of prescription drugs from pharmacies outside the
11 United States to customers in the United States typically violates the
12 Federal Food, Drug and Cosmetic Act and in the case of controlled
prescription drugs, the Controlled Substances Act.
13
14 An investigation by the U.S. Attorney s Office in Rhode Island and
the FDA/OCI Rhode Island Task Force revealed that as early as 2003,
15 Google was on notice that online Canadian pharmacies were
16 advertising prescription drugs to Google users in the United States
through Google s AdWords advertising program. they continued to
17 allow Canadian pharmacy advertisers to target consumers in the
18 United States.
19 Further, from 2003 through 2009, Google provided customer support
20 to some of these Canadian online pharmacy advertisers to assist them
in placing and optimizing their AdWords advertisements, and in
21 improving the effectiveness of their websites.
22
Under the terms of an agreement signed by Google and the
23
government, Google acknowledges that it improperly assisted
24 Canadian online pharmacy advertisers
25
ii. Against Defendants IAC, Barry Diller, Edgar Bronfman Jr.
26
27
13
28 https://www.justice.gov/opa/pr/google-forfeits-500-million-generated-online-
ads-prescription-drug-sales-canadian-online (last accessed October 14, 2016)
132
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(AA%3@%.(&
1 Examples of Routine Practice: Criminal Insider Trading;

2 Disclosure violations; Securityviolations; Defective Internal
Controls and Reporting; Antitrust violations
3
4 a. IAC CEO/Director Barry Diller $480,000 FTC fine in 2013 for
5 violations of the HSR Act, Case 1:13-cv-01002-GK is incorporated by reference,

6
and the fact Diller violated HSR Act in 1998 is also cited:
7
8
On September 15, 1998, the Premerger Notification Office of
9 the Federal Trade Commission ("Premerger Office") notified
10 Diller that it would not recommend seeking civil penalties for
the acquisitions by USA of voting securities of CitySearch. The
11 Premerger Office noted that "Mr. Diller is accountable for
12 instituting an effective program to ensure full compliance with
the Act's requirements." (Exhibit #30, page 6)
13
14 b. IAC Director Edgar Bronfman Jr. 2000-2003 Criminal
15 Insider Trading14 and Security Fraud200315where in 2010, the jury
16
entered a verdict against Bronfman based on fifty-sevenmisstatements.
17
18 14
French Court Convicts Executives in Vivendi Case
19 (Jan 21, 2011, New York Times, By Matthew Saltmarsh)
20 The media tycoons Jean-Marie Messier and Edgar Bronfman Jr. were
convicted Friday of criminal charges and given suspended sentences
21 in a case stemming from their tenure at the top of the French
22 conglomerate Vivendi Universal and its near collapse eight years ago.
23 Mr. Bronfman, the former vice chairman of Vivendi Universal and
24 current chief executive of the Warner Music Group, was fined 5
million euros ($6.8 million) and given a 15-month suspended sentence
25 for insider trading during his time as Vivendis vice chairman from
26 2000 to 2003.
27 15
Vivendi loses U.S. appeal in long-running investor lawsuit (Sep 27, 2016 |
28 Reuters, By Nate Raymond)
133
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(A=%3@%.(&
1
2 And a 2nd Circuit Court judge upheld a judgment against Bronfman in 2016.16
3 iii. Against defendant News Corporation, its Officers and Directors

4
Examples of Routine Practice: Systemic Sexual Harrassment;
5 Phone Hacking; Disclosure violations;FCC violations; Security
6 violations; Defective Internal Controls and Reporting;Antitrust
violations
7
8 a. Perverting Court of Justice, perjury is proven through
incorporating
9
10 excerpts17 by reference: October 5, 2016
11 Sun on Sunday was accused of perverting course of justice in pop
12 stars collapsed drug trial
13 its employee had been found guilty of tampering with evidence in
14 the collapsed drug trial of the singer Tulisa Contostavlos.
15 charged, with conspiracy to pervert the course of justice over a
16 statementmade to police
17 Simon Ringrose, specialist prosecutor in the CPSs Special Crime
18 Division, said: tampered with a statement and then attempted to
cover their tracks through lies and the destruction of evidence.
19
20 A News UK spokesman said: We are disappointed by the news
21
that Mazher Mahmood has been convicted.
22
b. Defective internal controls, poor Corporate governance,
23
24 whistleblower and sexual harassment, incorporate excerpts by reference:
25 16
In re Vivendi SA Securities Litigation, 2nd U.S. Circuit Court of Appeals, No.
26 15-180.
17
Guardian newspaper article: by Caroline Davies
27 https://www.theguardian.com/media/2016/oct/05/fake-sheikh-mazher-
28 mahmood-tulisa-contostavlos-trial
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1
2 2016 report NYMagazine: Fmr. Fox Booker: Harassed by Ailes for 20 Years18
3 iv. Against defendants Chris DeWolfe, Orrick Law, Intermix,

4
Examples of Routine Practice; Disclosure violations; Security
5 violations; Defective Internal Controls and Reporting;
6
a. Fully Incorporated by Reference: No. 06-1071 Fog Cutter
7
Capital Group Inc., Petitioner v. Securities And Exchange Commission,
8
Respondent (January 23, 2007):
9
Chief Judge Ginsburg and Circuit Judges Randolph and Rogers of
10
the U.S. Court of Appeals made their ruling in case:
11
"What we do know is that Fog Cutter made a deal with Wiederhorn
12 that cost the company $4.75 million in a year in which it reported a $3.93
13 million net loss. We know as well that Fog Cutter handed Wiederhorn a $2
million bonus right before he went off to prison, a bonus stemming directly
14 from the consequences of Wiederhorn's criminal activity." (pg. 5)
15
An NASD Panel determined that the Boards willingness to amend
16 Wiederhorns employment agreement, acquiescence to Wiederhorns
17 demands for financial support during his imprisonment, payment of his
court-ordered restitution, and retention of him in his executive and director
18 positions during his imprisonment were contrary to the public interest.(p 4)
19
20 18
http://nymag.com/daily/intelligencer/2016/07/fmr-fox-booker-harassed-by-ailes-
21 for-20-years.html
22 Former Fox News Booker Says She Was Sexually Harassed and Psychologically
Tortured by Roger Ailes for More Than 20 Years
23
24 The morning after Fox News chief Roger Ailes resigned, the cable networks
former director of booking placed a call to the New York law firm hired by 21st
25 Century Fox to investigate sexual-harassment allegations against Ailes. Laurie
26 Luhn told the lawyers at Paul, Weiss that she had been harassed by Ailes for more
than 20 years, that executives at Fox News had known about it and helped cover it
27 up, and that it had ruined her life. It was psychological torture, she later told
28 me.
135
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(A)%3@%.(&
1 b. The Fog Cutter Board, led by DeWolfe, andOrrick Law, reminded

2 the Court of the old saw about the Child who murders his parents and then
3 asks for mercy because he is an orphan, and further states,
4 "Fog Cutter thinks NASD's action was "unfair," But it was the
5 company that bowed to Wiederhorn's demand for an amendment to his
employment agreement, knowing full well that it was dramatically
6 increasing the cost of firing him. Now it argues that terminating Wiederhorn
7 would have been too expensive. One is reminded of the old saw about the
child who murders his parents and then asks for mercy because he is an
8 orphan. The makeup of Fog Cutter's Board was virtually unchanged between
9 the time it amended the employment agreement and entered into the leave-
of-absence agreement. It was, to say the least, not arbitrary or capricious for
10 the Commission to find that Wiederhorn exercised through control over the
11 Board, and to find this troubling. We agree that the Board provided little or
no check on Wiederhorn's conduct, and that the Board's actions only
12 aggravated the concerns Wiederhorn's conviction and imprisonment raised."
13 (pg. 6,7)
v. Against Defendants Rosenblatt and Intermix, Inc.
14
15 a. Excerpt incorporated by reference: FTC v. Imall Inc. (1998) FTC
16 File No. 972-3224. In 1998 Rosenblatt paid $4,000,000 and signed a Stipulated
17
Final Judgment And Order For Permanent Injunction as CEO on behalf of Imall
18
19 for deceptive acts or practices under 16 C.F.R. 436 which the FTC instituted
20 under Sections 5, 13(b), and 19 of the Federal Trade Commission Act ("the FTC
21
Act"), 15 U.S.C. 45, 53(b), and 57b.
22
23 IX. CLAIMS FOR RELIEF
24
FIRST CAUSE OF ACTION
25 VIOLATION OF THE SHERMAN ACT
(15 U.S.C. 1 )
26
(Against All Defendants)
27
283. Plaintiff incorporates by reference all the allegations in the above
28
136
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(AB%3@%.(&
1 paragraphs as if fully set forth herein.

2 284. Defendants, by and through their officers, directors, employees,
3 agents, 20(a) and 15(a) control affiliates and holders or other representatives, have
4 entered into an unlawful agreement, combination, and conspiracy in restraint of
5 trade and bid-rigging, in violation of 15 U.S.C. section 1. Specifically, Defendants
6 agreed in advance that search traffic would be secretly rerouted to affiliated
7 brokers like Revenue Science and that Google would wait until MySpaces sale to
8 News Corp. before submitting the winning bid on a search engine contract with
9 MySpace. As such, AskJeeves, IAC, Alphabet (formerly Google) ,
10 TimeWarner/AOL, and News Corporation entered into a bid-rigging scheme that
11 precluded the competitive bidding process.
12 285. Firstly, consideration of criminal defendant News Corporations prior
13 consent decree admitting they violated Sherman Act 1 in E-book 2012 DOJ case
14 and Federal government findings are relevant here:
15 a. Fully incorporated by reference: United States of America v.
16 HarperCollins Publishers LLC, Sherman Act 1 Complaint, Case 1:12-cv-02826-
17 UA, Document 1, filed 04/11/12, pages 1-36.
18 b. Fully incorporated by reference: 2012 U.S. DOJ Competitive
19 Impact Statement (Exhibit #32), Including footnote#2 (page 4) finding:
20 Prior to the formation of and throughout Publisher Defendants
21 agreement, their CEOs and other high-level executives frequently
communicated with each other in both formal and informal settings.
22
From these communications emerged a pattern of Publisher
23 Defendants improperly exchanging confidential, competitively
sensitive information.
24
25 Including finding on HarperCollins Publishers LLCs parent News Corp:
26
Because these communications occurred among some of the parent
27 companies of the Publishing Defendants, Section V.F also applies to
28
137
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(A/%3@%.(&
1 those parent company officers who directly control Settling

2 Defendants business decisions. (Exhibit #32, page 14)
3 c. Email evidence of News Corp CEO involvement in the Case

4
1:12-cv-02826-UA Ebook Sherman Act 1 conspiracy (Exhibit #33):
5
From: Murray, Brian (HarperCollins US), Sent: Thu Jan 21 2010
6
7 Just spoke to Rupert who is still pissed at Amazon. He called to
complain about their press release about 70% royalty offer to authors.
8
He wants to screw Amazon!
9
d. Email evidence of TimeWarner/AOL & News Corp executive
10
11 Jonathan Miller involvement in the Case 1:12-cv-02826-UA Ebook Sherman Act
12
1 conspiracy (Exhibit #34)
13
e. Fully Incorporated by Reference: Opinion and Order Case 1:12-
14
cv-02826-DLC Document 113 Filed 09/06/12 Pages 1 to 45.
15
16 f Fully Incorporated by Reference: Final Judgment Case 1:12-
17 cv-02826-DLC As To Defendants Hachette, HarperCollins, Document 119 filed

18
09/06/12, page 1-19.
19
286. Likewise, this scheme also ensured that the value of myspace.com,
20
and its major owner, Intermix, would remain at suppressed values because of the
21
lost revenue opportunity. In sum, this scheme siphoned a significant
22
revenue source from the publicly traded and suppressed Intermix which
23
consolidated the revcnue of its 51% owned subsidiary and instead created value in
24
other companies owned or led by the co-conspirators, e.g., IAC Corporation, AOL,
25
AskJeeves, and Google. Plaintiffs property along with over 1000 other Intermix
26
shareholders was directly, substantially, and permanently decreased in value.
27
286. In July 2005, AskJeeves com was acquired by IAC for
28
138
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(AC%3@%.(&
1 approximately $1.85 billion. Yang and Carlick, major shareholders of AskJeeves,

2 made millions upon the acquisition by IAC. IAC entered the search engine
3 business upon acquiring AskJeeves, Inc. and also needed to find partners
4 with large online audiences to further such its commercial business.
5 Newly acquired search engine can gain market share
against Google, IAC CEO says. (October 6, 2005,
6 InfoWorld, Juan Carlos Perez)
7 Instead Google and other co-conspirators induce IAC to stay on the sideline
8 and not make an offer to consummate a commercial paid search agreement with
9 Intermix and Myspace prior to the consummation of the News Corporation
10 acquisition on September 30, 2005. Further, IAC refuses to even explore joining a
11 counter bid against News Corporations acquisition offer and ignores one of
12 Intermixs largest shareholders that contacts IAC on August 19, 2005 in regards to
13 exploring such ideas in August 2005 (Exhibit #35)
14 287. Meanwhile, Intermixs myspace.com continued to operate without
15 any search engine contract from AskJeeves, Google, Yahoo!, or any other search
16 engine; and, therefore was without any revenue from a search engine contract.
17 Even though it was without a search engine contract and revenue, in July 2005,
18 Yang and Carlick influenced the decision to cause the sale of Intermix, and its
19 major asset, myspace.com to News Corp. As a precondition to the sale, News
20 Corp. required that myspace.com be temporarily placed into a separate holding
21 entity so that upon News Corp.s acquisition of Intermix, it could readily convert
22 myspace.com to another third-party buyer, or otherwise leverage its true value.
23 Thus, MySpace, Inc. was created in 2005only a few months before News
24 Corp.s acquisition of Intermixas Intermixs holding company for myspace.com,
25 all in furtherance of the overarching bid rigging conspiracy among Defendants and
26 their co-conspirators.
27 288. An August 8, 2005 email from an administrative assistant provides
28 further evidence of how Google, News Corporation, IAC, AskJeeves, and the other
139
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(=-%3@%.(&
1
defendants induced the two most senior Intermix executives to breach their duty of
2
loyalty:
3
Both of you are not available for tomorrows Biz Dev weekly
4 meeting (Richard is at the Fox lot for News Corp Board Meeting, and
Brett is in San Jose at the Search Engine conference).
5
Shall I cancel tomorrows meeting or will Sherman lead it. What do
6 you think? Ive cancelled it for next week when both of you are on
vacation. (Exhibit #36)
7
Intermix delays its own business development meetings in favor of working
8
for the benefit of News Corporation before the consummation of the acquisition on
9
September 30, 2005. Meanwhile after the President Brewer attends a Search
10
Engine Conference and despite the Yahoo commercial paid search agreement
11
having expired, he and the CEO decide to go on vacation instead of working on
12
closing a new paid search commercial agreement with Yahoo or Google.
13
289. At all relevant times, the directors of Intermix owed a fiduciary duty
14
to the shareholders of Intermix to pursue Defendants for the above-described bid-
15
rigging conspiracy and resulting antitrust violations. No directors of Intermix, ever
16
took any action whatsoever to pursue these antitrust claims. Indeed, the co-
17
conspirators, as well as other directors of Intermix, were the instigators of said bid-
18
rigging conspiracy and antitrust violations; thus, they had neither motive nor
19
ability to pursue such antitrust claims on behalf of Intermix, without also
20
subjecting themselves to personal liability.
21
290. Further, the secret fraudulently concealed Special Agreement that
22
defendants put in place amongst themselves no later then March 2005 made it
23
impossible for the Intermix Board of Directors to fairly evaluate or consider the
24
September 23, 2005 counter bid made by a minority shareholder (Exhibit #37).
25
i. Such bid would have allowed each and every Intermix
26
shareholder to get the full benefit of a publicly traded Intermix which owned 100%
27
of Myspace.com.
28
140
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(=(%3@%.(&
1 ii. The publicly traded company post completion of such counter

2 bid would have immediately been able to consummate a new commercial
3 paid search agreement with Google or Yahoo bringing in hundreds of millions of
4 dollars of high margin revenue annually.
5 iii. This in turn would instantly have allowed the publicly traded
6 post counter bid completed company shareholders to get the benefit of disclosing
7 new forecasts to the public marketplace containing the missing the current and
8 future paid search revenue yielding a share price for Intermix shareholders of over
9 $2000 per share.
10 291. Further, Intermix and Myspace, Inc. Directors knew of the bid-
11 rigging conspiracy and the anti-competitive agreements inherent therein, and knew
12 that said bid-rigging conspiracy would have a negative impact on Intermix and all
13 of its Shareholders, and yet willfully and consciously failed to pursue any claims
14 against the co-conspirators, including their co-Defendants, for said wrongful acts.
15 As such, the directors of Intermix and Myspace, Inc. have breached their fiduciary
16 duty and duty of loyalty to the shareholders by failing to pursue the antitrust claims
17 alleged herein. Worse, they have breached their duty of loyalty in favor of
18 protecting themselves and promoting their own personal gains.
19 292. Defendants conduct injured Plaintiffs and the Intermix class members
20 by lowering the value of MySpace upon its acquisition by News Corp.
21 293. The Sensitive Company Special Agreement is a per se violation
22 of the Sherman Act.
23 294. At all times Defendants including but not limited to Alphabet, Google,
24
IAC, News Corporation, Intermix, Myspace, RedPoint, VPVP, Orrick Law,
25
26 TimeWarner/AOL, JPMorgan, Allen & Company, Rosenblatt, DeWolfe, Doerr,
27 Diller, Bronfman, Carlick, Yang, induced, directed, or aided and abetted the
28
141
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(=.%3@%.(&
1 Defendant Sub-Class A members, Defendant Sub-Class B members, and

2
Defendant Sub-Class C members to take actions that violated Section 1 of the
3
4 Sherman Act.
5 295. Defendants behavior is no anomaly, as four European Union

6
antitrust complaints filed against defendant within last five years, two in 2016.
7
8 Three that are ongoing: Fully Incorporate By Reference:
9 i. Case AT.40411 14 July 2016 :
10
the Commission decided to initiate antitrust proceedings against
11 Google's mother company Alphabet in case AT.40411 within the
12 meaning of Article 11(6) of Council Regulation No 1/2003 and
Article 2(1) of Commission Regulation No 773/2004.
13
14 agreements between Google and partners of its online search
advertising intermediation programme AdSense.
15
16 ii. Case AT.9740 14 July 2016
17
the Commission decided to initiate antitrust proceedings against
18 Google's mother company Alphabet in case AT.39740 within the
meaning of Article 11(6) of Council Regulation No 1/2003 and
19
Article 2(1) of Commission Regulation No 773/2004.
20
way in which Google displays its own comparison shopping service
21
and that of competitors in its general search results.
22
iii. 3 European Union (EU) 2010 antitrust complaints:
23
24 Commission decided to initiate antitrust proceedings in cases
COMP/C-3/39.740, COMP/C-3/39.775 & COMP/C-3/39.768 within
25
the meaning of Article 11(6) of Council Regulation No 1/2003 and
26 Article 2(1) of Commission Regulation No 773/2004.
27
concern the unfavourable treatment by Google Inc. (Google) of
28 competing vertical search service providers in Google's unpaid and
142
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(=A%3@%.(&
1 sponsored search results coupled with an alleged preferential

2 placement of Google's own services.
3 imposition of exclusivity obligations by Google on its advertising

4 and distribution partners and suspected restrictions on advertisers
5 296. Further, the defendant Sub-Class A members aided and abetted the
6
conspiracy and Sherman Act 1 violations by failing to disclose the existence of
7
their company being a counterparty to the Special Agreement or Gentlemens
8
9 Agreement in their SEC 10Q or 10K filings during 2005 and through the present.
10
Plaintiff only learned of the Sensitive Company Special Agreement document
11
12 after Google employees sued Google in a Federal Court antitrust class action and
13 such document along with the Gentlemens Agreement document was disclosed
14
to the public for the first time, when the Plaintiff class succeeded in getting the
15
16 Judge to remove the seal on 7/11/2014that defendant Alphabet had placed on
17 such evidence (Exhibit #2).

18
297. The defendant Sub-Class B members aided and abetted the conspiracy
19
20 and Sherman Act 1 violations by breaching their fiduciary duties and duties of
21 loyalty to the public companies they worked for by failing disclose the existence of
22
23
24 Agreement in their employers SEC 10Q or 10K filings between 2005 through
25 the present.
26
298. The defendant Sub-Class C members aided and abetted the conspiracy
27
28 and Sherman Act 1 violations by failing to force the individuals they compensated
143
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(==%3@%.(&
1
2 in between 2005 through the present, including their employees, partners, limited
3 partners, general partners, and directors, ensured the defendant Sub-Class A

4
members had non defective internal controls and proper disclosure policies so that
5
6 such defendant Sub-Class A members would not fail to disclose in annual 10Ks
7 and 10Qs the existence of such defendant Sub-Class A member being a
8
counterparty to the Special Agreement or Gentlemens Agreement.
9
10 299. The defendant Sub-Class C members further aided and abetted the
11 conspiracy and Sherman Act 1 violations by failing to force the Sub-Class B
12
members they compensated in between 2005 through the present to disclose in any
13
14 10Q or 10K that the public company they served at was a counter party to the
15 Special Agreement.
16
300. Further, Section 1 of the Sherman Act restricts interlock directors on a
17
18 board as part of an illegal conspiracy in restraint of trade where the interlock serves
19
as a means for competitors to exchange competitively sensitive information.
20
i. Defendants Carlick, Yang, RedPoint, VantagePoint, AskJeeves, Inc,
21
22 IAC Corp, and Allen & Co., AOL, Google, defendants, and Orrick violate Section
23
1 through disclosing features of the RedPoint investment structure to Google and
24
25 taking steps to give Confidential information about Intermix and MySpace and the
26 search assets of both Companies in 2005 to Search competitors Ask Jeeves and
27
IAC Corp. Later more Confidential information about Yahoos efforts to reach and
28
144
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(=&%3@%.(&
1 close a new commercial search engine deal with the public issuer in late July &
2
August 2005 was leaked to News Corp as evidence demonstrates in the
3
4 uncontroverted facts. Eventually it should come to no surprise that Intermix failed
5 to close a new commercial search engine deal for over six months and passed on
6
the opportunity to News Corp and Google. This is achieved through placing
7
8 Yang on the board of MySpace, Inc. so he can monitor MySpaces Search
9 Division, passing on confidential information to AskJeeves, Inc. and Google.
10
Carlick uses his interlocking Director seat to further the scheme that works to the
11
12 benefit of Defendants at the expense of shareholders.
13 ii. News Corp employee Angwins 2009 book and her research names John
14
Doerr, board member of Google as the first senior Google executive or Director (in
15
16 this case his Kleiner Perkins Caufield & Byers is the largest Google shareholder)
17
who becomes aware of the MySpace search opportunity in the 2006 summer.
18
Angwin omits the fact that Thomas Perkins a News Corp Director since 1995 is
19
20 partners with Doerr and also controls the company thats the largest shareholder of
21
Google and engaged with Allen & Co. in the process of raising over $4
22
billion dollars.
23
24 301. As a result of the above violations, Plaintiffs has been damaged in an
25 amount of $32 billion dollars not including interest and trebles damages.
26
27 SECOND CAUSE OF ACTION
VIOLATION OF SECTION 8 OF THE CLAYTON ACT
28 (15 U.S.C. 19(a)(1),(2) )
145
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(=)%3@%.(&
1 (Against All Defendants )

2 302. Plaintiffs incorporates by reference all the allegations in the above
4 303. Section 8 of the Clayton Act restricts interlocking officers or
5 directorates, prohibiting the same person from serving simultaneously as an officer
6 or on the boards of corporations that compete with one another. (15 U.S.C.
7 19(a)(1), (2).) Clayton Act Section 8 does not inquire into whether the interlock
8 adversely affects competition; rather, if two corporations meet the size
9 requirements, are competitors, and share an officer or a board member, Section 8
10 of the Clayton Act is violated. (Id.) Defendants are persons within the meaning
11 of the Clayton Act.
12 i. MySpace was on pace to generate 70%+ of its revenue from Paid
13 Search in 2006, and AskJeeves, Inc. generated 100% of its revenue from online
14 Paid Search in 2006. At all relevant times, Ask.com was a 100% focused online
15 search company, and is owned by IAC. At all relevant times, Yang and Carlick
16 each served simultaneously as directors of Intermix Inc., MySpace, Inc. and
17 AskJeeves, Inc. Based on the Section 8 rules, Yang and Carlick each had one year
18 ending sometime in May 2005 to resign from one of the two boards. Yang and
19 Carlick failed to comply.
20 304. This violation of the Clayton Act resulted in acts by directors Yang
21 and Carlick that benefited AskJeeves, Inc. while simultaneously disadvantaging
22 Intermix and Myspace. Plaintiff only learned of the Sensitive Company Special
23
Agreement document after Google employees sued Google in a Federal Court
24
25 antitrust class action and such document along with the Gentlemens Agreement
26 document was disclosed to the public for the first time, when the Plaintiff class
27
succeeded in getting the Judge to remove the seal on 7/11/2014that defendant
28
146
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(=B%3@%.(&
1 Alphabet had placed on such evidence (Exhibit #2).

2
Based on such recently disclosed evidence, Plaintiff now knows that Google
3
4 and AskJeeves had a very close strategic working partnership over many years.
5 Specifically, the newly discovered evidence reveals that AskJeevesthrough its

6
directors Yang and Carlickentered into an unlawful Sensitive Company
7
8 Agreement and bid-rigging arrangement with Google that caused Google not to bid
9 on an exclusive search engine contract with MySpace or Intermix and incentivized
10
directors Yang and Carlick to block MySpace from seeking a new exclusive
11
12 commercial search engine agreement with Google, or another search engine
13 provider, Further, Yang and Carlick facilitated a scheme using an intermediary
14
broker company, Revenue Science, to divert search engine traffic from MySpace,
15
16 which increased traffic, search volume, and revenue for AskJeeves, AOL, and
17
Google while simultaneously minimizing MySpaces revenue which was
18
consolidated by Intermix for SEC reporting purposes.
19
305. These omissions and the damages from the lost value of Intermix and
20
MySpace search revenue were caused by the interlocking directors, Yang and
21
Carlick, who simultaneously served as directors to AskJeeves, Intermix and
22
MySpace. Yang and Carlick willfully violated Section 8 of the Clayton Act.
23
306. The damage from the lost value of MySpace Search can
24
be attributed to Carlick & Yangs failure to disclose their willful violation of
25
Section 8 of the Federal Clayton Act. Carlick and Yang also violated
26
Antitrust law by using their Board positions and equity ownership held by
27
their private equity firms, VantagePoint and RedPoint in eUniverse
28
147
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(=/%3@%.(&
1 (Intermix) and MySpace to effect Rigging the Intermix and MySpace Search
2 Auction process in 2005 to benefit AskJeeves, Google, and other defendants
3 as active Directors for many years of Ask Jeeves, Inc. an online search
4 company, also publicly traded.
5 307. Ask Jeeves generated almost 100% its revenue from Google
6 and the two companies had a close strategic partnership since 2002.
7 308. Reviewing background of public issuer and MySpace shows
8
certain Directors had significant amounts of search engine experience as active
9
10 Directors for many years of Ask Jeeves including an existing relationship with
11
Google. Its not believable that Issuer failed to close a new search partnership with
12
Google, Yahoo or MSN prior to the shareholder vote on September 30, 2005.
13
15 IAC, News Corporation, Intermix, Myspace, RedPoint, VPVP, Orrick Law,

16
TimeWarner/AOL, JPMorgan, Allen & Company and members of Defendant Sub-
17
18 Class A, Defendant Sub-Class B, and Defendant Sub-Class C induced, directed, or
19 aided and abetted AskJeeves Director Carlick and Yang to take actions that
20
violated Section 8 of the Clayton Act.
21
23 conspiracy and Clayton Act Section 8 violations by failing to disclose the existence
24
of their company being a counterparty to the Special Agreement or
25
26 Gentlemens Agreement in their SEC 10Q or 10K filings during 2005 and
through
27
28 the present.
148
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(=C%3@%.(&
1
2 311. The defendant Sub-Class B members aided and abetted the conspiracy
3 and Clayton Act Section 8 violations by breaching their fiduciary duties and duties
4
of loyalty to the public companies they worked for by failing disclose the existence
5
6 of their company being a counterparty to the Special Agreement or
7 Gentlemens Agreement in their employers SEC 10Q or 10K filings between
8
2005 through the present.
9
10 312. The defendant Sub-Class C members aided and abetted the conspiracy
11 and Clayton Act Section 8 violations by failing to force the individuals they
12
compensated in between 2005 through the present, including their employees,
13 partners,
14
limited partners, general partners, and directors, ensured the defendant Sub-Class
15
16 A members had non defective internal controls and proper disclosure policies so
17
that such defendant Sub-Class A members would not fail to disclose in annual
18
10Ks and 10Qs the existence of such defendant Sub-Class A member being a
19
20 counterparty to the Special Agreement or Gentlemens Agreement.
21
313. The defendant Sub-Class C members further aided and abetted the
22
conspiracy and Clayton Act Section 8 violations by failing to force the Sub-Class
23
24 B members they compensated in between 2005 through the present to disclose in
25 any
27
Special Agreement.
28
149
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(&-%3@%.(&
1
2 THIRD CAUSE OF ACTION
VIOLATION OF 2 OF THE CLAYTON ACT
3 (Sec. 13. Discrimination in price, services, or facilities )
4 (Against All Defendants and All defendant Sub-Class members)
5
314. Plaintiffs repeat and re-allege every allegation above as if set forth
6
herein in full.
7
315. Plaintiffs bring this claim on their own behalf and on behalf of each
8
of Plaintiff Sub-Classes.
9
316. Defendants violated 15 U.S. Code 13(a), 2 of the Clayton act,
10
11 which states: (a) Price; selection of customers
12 It shall be unlawful for any person engaged in commerce, in the
course of such commerce, either directly or indirectly, to discriminate
13 in price between different purchasers of commodities of like grade
and quality, where either or any of the purchases involved in such
14 discrimination are in commerce, where such commodities are sold for
use, consumption, or resale within the United States or any Territory
15 thereof or the District of Columbia or any insular possession or other
place under the jurisdiction of the United States, and where the effect
16 of such discrimination may be substantially to lessen competition or
tend to create a monopoly in any line of commerce, or to injure,
17 destroy, or prevent competition with any person who either grants or
knowingly receives the benefit of such discrimination, or with
18 customers of either of them:
19
317. Defendants Google and AskJeeves, admitted they discriminated
20
against Myspace, Inc. and Intermix, Inc., and were aided and abetted by:
21
i. CEO of Myspace, Inc. Chris DeWolfe emailed the Myspace
22
Board Yang, Sheehan, Rosenblatt, May 17, 2005 at 5:44pm:
23
Subject: 'follow up from board meeting'
24
"we cannot work with Google due to our association with Intermix
25
ii. Google and Doerr induce AskJeeves to force Yang to use his
26
position on Myspace, Inc. Board to block and delay a commercial search
27
agreement with Google. Yangs email confirms the scheme in reply to Myspace
28
150
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(&(%3@%.(&
1 fellow Director DeWolfes May 17, 2005 email, stating:

2 This is in the spirit of what was discussed (Exhibit #12)
3 iii. An internal MySpace Board meeting powerpoint, or about June 2005
4 is further evidence of the scheme. Page of presentation states, (Exhibit #13)
5 Google refuses to work with us because MIX is a majority owner.
6
318. Google violated Sec 1319.
7
i. Because Google did pay or grant to Defendant Yangs
8
Private equity fund, RedPoint Partners, through Google Director and Googles
9 largest
10 shareholder KPC, $400 million dollars in cash into a private holding company in
11 which Yang was a Director, M2Z Corporation, weeks before Yang used his
12 position on the Myspace, Inc. Board to stop Myspace, Inc. from pursuing a
13 commercial search agreement with Google or Yahoo. Such cash paid was an
14 allowance or form of other compensation under Section 13s.
15 ii. Yang, a Director of Myspace, Inc. was an agent,
16 representative of Myspace, Inc. or Intermix, Inc., and was acting in fact for or in
17 behalf, of Myspace, Inc. or Intermix, Inc.
18 iii. And Defendant Yang was subject to the direct or indirect
19 control, of any party to such transaction because Google was a party, Redpoint
20 Partners was a party, and both had indirect control over Yang because Yang
21 was a Partner working for RedPoint Partners, and a Director of AskJeeves which
22
19
23 (c) Payment or acceptance of commission, brokerage, or other compensation
24 It shall be unlawful for any person engaged in commerce, in the course of such
commerce, to pay or grant, or to receive or accept, anything of value as a
25 commission, brokerage, or other compensation, or any allowance or discount in
lieu thereof, except for services rendered in connection with the sale or purchase of
26 goods, wares, or merchandise, either to the other party to such transaction or to an
agent, representative, or other intermediary therein where such intermediary is
27 acting in fact for or in behalf, or is subject to the direct or indirect control, of any
party to such transaction other than the person by whom such compensation is so
28 granted or paid.
151
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(&.%3@%.(&
1 was indirectly controlled by Google, Inc. because 90%+ of AskJeeves revenue

2 came from Google.
3 319. Defendant Google violated Sec 13(d)
4 i. Because Google was a person engaged in commerce
5 offering for sale: WebSearch and Sponsored Links and AdSense.
6 ii. No later then March 2003, both AskJeeves and Intermix, Inc.
7 were Google customers.
8 iii. By mid 2003, Google sold AskJeeves available
9 pay per click text ad units by using its technology services or facilities furnished
10 for AskJeeves search engine website. Further, Google offered for sale to its
11 large base of advertisers, AskJeeves available for sale website pay per click text
12 ad units. AskJeeves was primarily a customer of Googles WebSearch and
13 Sponsored Links product.
14 iv. By mid 2003, Intermix was already a customer of Google.
15 Googles executive Gerber in October 2003 admitted Google and Intermix had a
16 relationship regarding AdSense. Google in October 2003 offered in addition
17 to provide Intermix with Googles WebSearch and Sponsored Links product.
18 Googles AdSense product also allowed Googles advertisers to purchase pay per
19 click text ad units from Google website owning partners that wanted to place
20 and sell text link advertisements but did not own websites which were search
21 engines.
22 v. On or around April 2005, Google at the request of
23 AskJeeves because AskJeeves was already a customer of Google, agreed to
24 provide a new WebSearch and Sponsored Links agreement to AskJeeves for use
25 by AskJeeves subsidiary Transcosmos. Such requested and provided new
26 agreement was consideration granted by Google for the benefit of a customer,
27 AskJeeves.
28 vi. However, Google refused between at least May 2005 through
152
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(&A%3@%.(&
1
September 30, 2005 to make the same consideration ie: a WebSearch and
2
Sponsored Links agreement available on proportionally equal terms or any
3
terms to Intermix or its subsidiary Myspace, Inc, despite Intermix being one of
4
Googles customers competing in the distribution of such products or
5
commodities that allowed Google advertisers to purchase cost per click text link
6
ads.
7
320. Further, Google violated Sec 13(e) because Google through the
8
aforementioned actions did discriminate in favor of one purchaser, AskJeeves,
9
against another purchaser, Intermix.
10
321. Defendants Yang, Carlick, Rosenblatt, Myspace, Inc., and Intermix,
11
Inc., violated 13(e) by discriminating in favor of Google, AskJeeves,
12
TimeWarner/AOL, and Revenue Science who were all purchasers of online pay
13
per click text ad units, a commodity bought for resale
14
i. And against another purchaser which was Yahoo.
15
because such defendants refused to enter into contracts to furnish and refused to
16
enter into contracts or contributing to the furnishing of, any services, or facilities
17
connected with the processing, handling, sale or offering for sale of Myspace.com
18
pay per click text ad units upon terms accorded to purchasers Google,
19
AskJeeves, TimeWarner/AOL, and Revenue Science.
20
322. Defendants Chris DeWolfe the CEO of Myspace, Inc., Myspace, Inc.,
21
and Intermix, Inc. violated Sec 13(f) because in the course of the commerce of
22
selling online advertising units and receiving online advertising services for
23
Myspace, Inc. and Intermix, Inc., DeWolfe knowingly did induce for Myspace,
24
Inc. and Intermix to receive a discrimination in price prohibited by Sec 13.
25
323. DeWolfe knew companies such as Google and Yahoo did pay and
26
would pay higher cost per click prices for pay per click text advertisements of the
27
type that Myspace.com had available for sale through September 30, 2005 as
28
153
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1 compared with ad broker Revenue Science. DeWolfe knew this because

2 Revenue Science did not have its own ad sales force or infrastructure to sell pay
3 per click text advertisements. Further, Revenue Science informed DeWolfe that
4 Revenue Science had contracted with other companies including Google, Yahoo,
5 that were in the business of directly selling pay per click text
6 ad units to advertisers as well as other companies like AskJeeves and
7 TimeWarner/AOL that were resellers for Google in order for Revenue Science to
8 generate revenue from Revenue Sciences resale of pay per click text
9 advertisements of clients like Myspace, Inc. that Revenue Science sought to install
10 Revenue Sciences online technology, web software and products.
11 324. Therefore defendants including Myspace, Inc. and Intermix, Inc.
12 knew for example that each pay per click text ad unit that Myspace.com
13 had available to sell to an outside online advertising company would induce price
14 discrimination by yielding a lower amount of net revenue for Myspace, Inc. and
15 Intermix, Inc. if Myspace, Inc. and Intermix, Inc. entered into a contract with
16 Revenue Science agreeing to share with Revenue Science a portion of the net
17 revenue that Yahoo or Google generated from selling Myspace.com pay per
18 click text ad units.
19 325. Defendant Geoff Yang violated Sec 13(f) because as a Director of
20 Myspace, Inc., he induced DeWolfe, Rosenblatt, Myspace, Inc, and Intermix, Inc.
21 to receive a price discrimination. Such price discrimination was a lower price per
22 click generated for the pay per click text ads that Myspace, Inc. and Intermix,
23 Inc. had available and did sell each month during the month of 2005.
25
26
154
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1
3 Defendant Sub-Class C members to take actions that violated Sec.

4 13(a),(c),(d),(e),(f). 2 of the Clayton Act.
6
conspiracy and Sec. 13. 2 of the Clayton Act by failing to disclose the existence
7
of their company being a counterparty to the Special Agreement or
8
Gentlemens Agreement in their SEC 10Q or 10K filings during 2005 and
9 through
10 the present.
12
and 13(a),(c),(d),(e),(f). 2 of the Clayton Act violations by breaching their
13
14 fiduciary duties and duties of loyalty to the public companies they worked for by
15 failing disclose the existence of their company being a counterparty to the Special
16
Agreement or Gentlemens Agreement in their employers SEC 10Q or 10K
17
18 filings between 2005 through the present.
20
and 13(a),(c),(d),(e),(f). 2 of the Clayton Act violations by failing to force the
21
22 individuals they compensated in between 2005 through the present, including their
23
employees, partners, limited partners, general partners, and directors, ensured the
24
defendant Sub-Class A members had non defective internal controls and proper
25
26 disclosure policies so that such defendant Sub-Class A members would not fail to
27
disclose in annual 10Ks and 10Qs the existence of such defendant Sub-Class A
28
155
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(&)%3@%.(&
1 member being a counterparty to the Special Agreement or Gentlemens

2
Agreement.
3
5 conspiracy and 13(a),(c),(d),(e),(f). 2 of the Clayton Act violations by failing to

6
force the Sub-Class B members they compensated in between 2005 through the
7
8 present to disclose in any 10Q or 10K that the public company they served at was a
9 counter party to the Special Agreement. Plaintiff only learned of the Sensitive
10
Company Special Agreement document after Google employees sued Google in
11
12 a Federal Court antitrust class action and such document along with the
13 Gentlemens Agreement document was disclosed to the public for the first time,
14
when the Plaintiff class succeeded in getting the Judge to remove the seal on
15
16 7/11/2014that defendant Alphabet had placed on such evidence (Exhibit #2).
17
FOURTH CAUSE OF ACTION
18 VIOLATION OF CLAYTON ACT 3
(15 U.S.C. 14 )
19 (Against All Defendants)
20 331. Plaintiffs incorporate by reference all the allegations in the above
22 332. Section 3 of the Clayton Act provides that: "It shall be unlawful ... to
23 make a sale ... of goods ... on the condition ... that the ... purchaser ... shall not use
24 or deal in the goods ... of a competitor ... where the effect ... may be to
25 substantially lessen competition or tend to create a monopoly...." This provision of
26 the Clayton Act was passed in response to the Supreme Courts decision in Henry
27 333. A:B. Dick & Co. (1912). The Court found no violation when A.B.
28 Dick required users of its mimeograph machines (an early form of copy machine)
156
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(&B%3@%.(&
1
to purchase all their paper and ink from that company as well. Congress believed
2
firms like A.B. Dick used such "tying arrangements" to expand one monopoly into
3
two.
4
334. Defendants violated Clayton Act 3 by conspiring and
5
then putting in place beginning no later then March 2005, the Special
6
Agreement Hiring Policy protocols which ensured Intermix, Myspace, and News
7
Corporation after signing the July 18, 2005 acquisition agreement would not use
8
or deal in the goods of a competitor specifically, Yahoos contextual search
9
technology and Yahoos paid cost per click advertisements.
10
335. A violation of Clayton Act 3 occurredon or around May 2005
11
whenon the condition, agreement, or understanding between Defendants
12
Google, IAC/Interactive, AskJeeves, Carlick, Yang,
13
i. Google agrees it shall not use or deal in the
14
Search traffic, web pages, banner ads, cost per click ads, of Intermix, Inc. or
15
Myspace, Inc.
16
ii. As the following exchange is evidence of:
17
a. CEO of Myspace, Inc. Chris DeWolfe emailed the Myspace
18
Board Yang, Sheehan, Rosenblatt, May 17, 2005 at 5:44pm:
19
Subject: 'follow up from board meeting'
20
"we cannot work with Google due to our association with Intermix
21
b. Yangs email confirms the scheme in reply to Myspace fellow
22
Director DeWolfes May 17, 2005 email, stating:
23
This is in the spirit of what was discussed (Exhibit #12)
24
c. A June 2005 Board meeting powerpoint, states, (Exhibit #13)
25
Google refuses to work with us because MIX is a majority owner.
26
335. Such condition, agreement, or understanding between
27
Google, AskJeeves, News Corporation, IAC, and TimeWarner/AOL, was to tend
28
157
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(&/%3@%.(&
1 to create a monopoly in the general search advertising line of commerce.

2 Because such scheme ensured Intermix and Myspaces near term revenue was
3 diminished, suppressing both companys financial forecasts, ensuring Shareholders
4 of Intermix would approve the below fair market $12.00 per share acquisition offer
5 at the September 30, 2005 Intermix shareholder meeting, so that News Corporation
6 could acquire Intermix, Inc. and Myspace, Inc. and as part of the conspiracy,
7 News Corporation had already agreed to not deal with Yahoo in the general search
8 advertising line of commerce, but rather promised to sign over exclusive multi
9 year general search advertising partnership rights for Myspace.com to Google,
10 which ensured Google would be able to quickly increase its market share of
11 general search to over 50%, which did tend to create a monopoly.
12 i. Concurrently, as part of the agreement, Google agreed to stop
13 cold calling and recruiting AskJeeves employees through placing AskJeeves onto
14 Googles Special Agreement Hiring Policy Protocols list. This in turn did
15 substantially lessen competition in the technology job market in California, as
16 wages were suppressed and less cold calling occurred.
17 ii. Further, the AskJeeves and Google understanding included
18 AskJeeves Directors Yang and Carlick ensuring Googles main general search
19 advertising competitor, Yahoo, was blocked from consummating a new
20 commercial agreement with Intermix or Myspace to sell or provide advertisements
21 for their general search websites. This caused Yahoos share of the general search
22 market to drop sharply in the 4th quarter of 2005 and through out 2006, which did
23 substantially lessen competition in the general search market and pay per click
24 ad sales line of commerce.
25 iii. Facilitating the aforementioned violations of Clayton Act 3,
26 Google agreed to fix a price charged for discounted general search
27 advertising sales to AskJeeves and IAC through a new agreement:
28
158
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(&C%3@%.(&
1 on April 5, 2005, Ask Jeeves announced that Ask Jeeves Japan

(www.Ask.jp), a joint venture between Ask Jeeves, Inc. and
2 Transcosmos, has come out of beta and that the joint venture has
signed an agreement with Google Inc. to provide the site with
3 sponsored links.
4 The additional revenue and profits AskJeeves was able to forecast for advertising
5 sales from the Transcosmos agreement facilitated IACs desire to consummate
6 the March 2005 $1.9 billion dollar acquisition of AskJeeves on July 19, 2005.
7 336. In addition, Defendants IAC, Allen & Co., JPMorgan, Citibank,
8 further violated Clayton Act 3through making use of tying arrangements to
conceal
9
the Zakour JP Morgan produced valuation report on MySpace, Inc. which took a
10
sum of the parts analysis & future 2006 calander year EBITDA to reach valuation
11
of MySpace.
12
i. July 13, 2005, Montgomery summary/timeline notes, on July 13, 2005
13
that "Firefly (Fox) engages JP Morgan as its financial advisor'
14
ii. News Corp's banker JP Morgan according to Plaintiff expert
15
valued Intermix "in a range of $1,040 million to $1,367 million based on 2006
16
EBITDA multiples " based on 'JP Morgan Acquisition of Ivory- Presentation to
17
Board of Directors, July 16, 2005, pg. 6".
18

21
TimeWarner/AOL, JPMorgan, Allen & Company, Rosenblatt, DeWolfe, Doerr,
22
25
Defendant Sub-Class C members to take actions that violated Clayton Act 3.
26
28 conspiracy and Clayton Act 3violations by failing to disclose the existence of
159
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%()-%3@%.(&
1
2 their company being a counterparty to the Special Agreement or Gentlemens
4
5
6 and Clayton Act 3,violations by breaching their fiduciary duties and duties of
8
9
10 Agreement in their employers SEC 10Q or 10K filings between 2005 through the
11 present.
12
13
14 and Clayton Act 3violations by failing to force the individuals they
15 compensated in between 2005 through the present, including their employees,
16 partners,
17
limited partners, general partners, and directors, ensured the defendant Sub-Class
18
A members had non defective internal controls and proper disclosure policies so
19
20 that such defendant Sub-Class A members would not fail to disclose in annual
21
10Ks and 10Qs the existence of such defendant Sub-Class A member being a
22
23
25
conspiracy and Clayton Act 3violations by failing to force the Sub-Class B
26
27 members they compensated in between 2005 through the present to disclose in any
160
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%()(%3@%.(&
1
2 Google Special Agreement. Plaintiff only learned of the Sensitive Company
3 Special Agreement and Gentlemens Agreement document after Google

4
employees sued Google in a Federal Court antitrust class action and such
5
6 document along with the Gentlemens Agreement document was disclosed to the
7 public for the first time, when the Plaintiff class succeeded in getting the Judge to
8
remove the seal on 7/11/2014that defendant Alphabet had placed on such evidence
9 (Exhibit #2).
10
FIFTH CAUSE OF ACTION
11 VIOLATION OF CLAYTON ACT
(Section 18, 7)
13 342. Plaintiffs repeat and re-allege every allegation above as if set forth
14 herein in full.
15 343. Plaintiffs bring this claim on their own behalf and on behalf of each
16 member of the proposed nationwide federal law Sub-classes described above.
17 344. Defendants entered into a series of stock acquisitions with the goal
18 and intent to effect through such to substantially lessen competition in the general
19 search marketplace. Each of these transactions violated Section 18, 7 of the
20 Clayton Act.
21 345. AskJeeves and Intermix violated Section 18 on October 31, 2003 by
22 selling over 19.9% of Intermix, Inc. to AskJeeves Director Carlicks private equity
23 company, VPVP. First because AskJeeves and Intermix were competitors in
24 the general search and paid search marketplace so this lessened competition, and
25 second because the sale of over 19.9% of Intermix to AskJeeves was done without
26 shareholder approval which violated the DGC, Nasdaq rules, and breached
27 Intermixs Series A and B Preferred Stock Certificates of Designation
28 346. AskJeeves then used the benefits of the October 31, 2003 stock
161
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1
acquisition to gather confidential information from Intermix and to seize a
2
corporate opportunity from Intermix, and determined to acquire another competitor
3
of Intermixs and AskJeeves, a general search and paid search company in July
4
2004, ISH Corporation.
5
347. Intermix and AskJeeves violated Section 18 in February 2005 through
6
selling a control stake in Intermixs most valuable asset, 100% owned
7
Myspace.com to AskJeeves Director Yangs private equity company, RedPoint
8
Partners. This transaction further lessened competition in the general search and
9
paid search advertising industry because the sale of stock in Intermixs most
10
valuable asset, Myspace.com, was done to ensure Intermix would not be able
11
to competitively choose a paid search partner for Myspace.com once Intermixs
12
two year commercial agreement with Yahoo ended in August 2005. Further,
13
the control of Myspace.com was accomplished using a fraudulent scheme starting
14
in November 2004 where the Defendants filed in Intermixs 10Q, a series of
15
fabricated agreements which incorporated a backdated Myspace.com asset sale
16
agreement to December 2003. The backdated asset sale agreement purported to
17
give certain insiders the right to force Intermix to create a new holding company to
18
place 100% of Myspace.com into. Then, AskJeeves forced Intermix to sell enough
19
stock in the new holding company Myspace, Inc., to AskJeeves Director Yang to
20
give a control stake in Myspace.com to Yang. The stock purchased by AskJeeves
21
Director Yang to accomplish this was sold below fair market value, violation Sec.
22
18 of the Clayton Act, and was done to lessen competition in the general search
23
and paid search marketplace.
24
348. Alphabet and AskJeeves then colluded with IAC/Interactive
25
Corporation to sign a $1.9 billion dollar stock merger agreement in March 2005
26
whereby IAC/Interactive Corp agreed to consummate such transaction only after
27
the AskJeeves Directors Carlick and Yang used the proxy and control preferred
28
162
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%()A%3@%.(&
1 stock positions they held in Intermix, Inc. and Myspace, Inc. to force Intermix to
2 sign a below fair market sale agreement to News Corporation on July 18, 2005.
3 349. AskJeeves then used its stock control of Myspace, Inc. through its
proxies
4
Yang and Carlick to violate the articles of incorporation of Myspace, Inc. an the
5
stock shareholder agreement, specifically through breaching the provisions
6 requiring
7 Myspace, Inc. elect a 5th Director to the Board of Myspace, Inc. This was done to
8 lessen competition in the general and paid search market because electing an
9 independent 5th Director as the shareholder agreement required would have forced
10 the other Directors of Myspace, Inc. to abide by their fiduciary duty to run a
11 process or auction to pick and consummate a commercial search agreement with
12 Yahoo or Google prior to the September 30, 2005 sale o
13 350. Google, IAC, AskJeeves, Yang, Carlick, VPVP, RedPoint, and other
14 defendants then indirectly acquired more stock in Myspace, Inc. in April 2005
15 through forcing Myspace, Inc. to issue stock warrants to a financing company
16 Pinnacle Finance indirectly controlled by AskJeeves and Yang through RedPoint
17 Such transaction increased AskJeeves and Yangs control of Myspace, Inc., and
18 lessened competition in the general search and paid search marketplace.
19 351. On or about July 18, 2005, AskJeeves Director Carlick
20 agreed to sell his private equity companys October 31, 2003 unlawfully acquired
21 control stake in Intermix, Inc. to News Corporation before News Corporations bid
22 of $12.00 per share was agreed to by the Intermix Board of Directors. This
23 transaction was done as part of the aforementioned conspiracy to lessen
24 competition in the general search and paid search marketplace, and with the goal of
25 allowing co-conspirator and business partner, Alphabets Google.com to become a
26 monopoly by aggregating over 50% share of the general search marketplace. These
27 actions violated 7 of the Clayton Act
28 352. Plaintiffs were damaged by these violations of Section 18, 7 of the
163
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%()=%3@%.(&
1
Clayton Act as their ownership in Intermix, Inc., Myspace.com, and Myspace, Inc.
2
was diminished and diluted each time. While at the same time reducing the
3
opportunity for the Plaintiffs to get the benefit of the paid search revenue that
4
would have been generated and profits received by the property they owned shares
5
in and the benefit of such paid search revenue to be able to be recognized in
6
financial forecasts for Intermix, Inc. and Myspace, Inc. prior to the July 18, 2005
7
acquisition agreement being entered into and prior to the September 30, 2005
8
shareholder meeting to vote to approve or not approve the News Corporation
9
acquisition offer.
10
352. Defendants AskJeeves, Yang, Carlick, DeWolfe, Myspace, Inc.,
11
Intermix, Inc., Redpoint Partners, further violated Section 18, 7 of the
12
Clayton Act by holding a part of the stock of such subsidiary corporations,
13
specifically Myspace, Inc. after the date of July 18, 2005 merger agreement was
14
executed. The merger agreement required Intermix to purchase the part of the
15
stock of its Myspace subsidiary corporation it did not already own at a fixed price
16
of $69 million dollars. Instead, the co-conspirators refused to complete the
17
purchase of the 49% minority holding of the stock of such subsidiary
18
Myspace, Inc. Instead, the co-conspirators allowed DeWolfe, his holding company
19
MSV, RedPoint Partners, Yang, and Pinnacle to continue holding their shares of
20
Myspace, Inc. through the September 30, 2005 consummation of the Intermix
21
acquisition. Such unlawful continued holding scheme was a critical piece of the
22
conspiracy to ensure Intermix and Myspace.com did not consummate a
23
commercial agreement with Googles competitor Yahoo before the September 30,
24
2005 News Corporation buyout of Intermix and Myspace, Inc. was consummated.
25
This breach of the merger agreement through the continued holding of the
26
Myspace, Inc. shares, lessened competition in the general search and paid search
27
marketplace and was a key prong in allowing Google to create a monopoly because
28
164
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%()&%3@%.(&
1
Google needed to lockup Myspace.coms search traffic by ensuring i) Googles
2
proxies, AskJeeves and TimeWarner/AOL in the interim would use their partner
3
and intermediary Revenue Science to share the benefits of Myspace.coms search
4
traffic and audience and ii) Google and not Yahoo would be the next multi-year
5
exclusive commercial search agreement partner of Myspace.com.
6
353. At all times Defendants and members of Defendant Sub-
7
8 Class A, Defendant Sub-Class B, and Defendant Sub-Class C induced, directed, or
9 aided and abetted the holding of shares of Myspace, Inc. by Yang, RedPoint
10 Partners, DeWolfe, MSV, in violation Section 18, 7 of the Clayton Act and
11 breach of the Myspace Shareholder Agreement and the July 18, 2005 News
12 Corporation merger agreement provisions.
13
354. At all times Defendants including but not limited to Alphabet, Google,
14
15
17
Diller, Bronfman, Carlick, Yang, induced, directed, or aided and abetted the
18
20 Defendant Sub-Class C members to take actions that violated Section 18, 7 of

21 the Clayton Act
23
conspiracy and violation of Section 18, 7of the Clayton Act by failing to
24
25 disclose the existence of their company being a counterparty to the Special
26 Agreement or Gentlemens Agreement in their SEC 10Q or 10K filings during

27
2005 and through the present.
28
165
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%())%3@%.(&
2
and Section 18, 7of the Clayton violations by breaching their fiduciary duties
3
4 and duties of loyalty to the public companies they worked for by failing disclose
5 the existence of their company being a counterparty to the Special Agreement or

6
Gentlemens Agreement in their employers SEC 10Q or 10K filings between
7
8 2005 through the present.
10
and Section 18, 7 of the Clayton Act violations by failing to force the
11
12 individuals they compensated in between 2005 through the present, including their
13 employees, partners, limited partners, general partners, and directors, ensured the
14
defendant Sub-Class A members had non defective internal controls and proper
15
16 disclosure policies so that such defendant Sub-Class A members would not fail to
17
disclose in annual 10Ks and 10Qs the existence of such defendant Sub-Class A
18
member being a counterparty to the Special Agreement or Gentlemens
19
20 Agreement.
21
22
conspiracy and Section 18, 7of the Clayton Ac violations by failing to force the
23
24 Sub-Class B members they compensated in between 2005 through the present to
25
disclose in any 10Q or 10K that the public company they served at was a counter
26
27 party to the Special Agreement. Plaintiff only learned of the Sensitive
28 Company Special Agreement and Gentlemens Agreement document after
166
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%()B%3@%.(&
1
2 Google employees sued Google in a Federal Court antitrust class action and such
3 document along with the Gentlemens Agreement document was disclosed to the
4
public for the first time, when the Plaintiff class succeeded in getting the Judge to
5
6 remove the seal on 7/11/2014that defendant Alphabet had placed on such evidence
(Exhibit #2).
7
8 SIXTHCAUSE OF ACTION AND CLAIM FOR RELIEF
(Violation 43(a) & 43(a)(1)(B) Lanham Act provision 1125)
9
10 (Against Defendants News Corporation, IAC, AskJeeves, DeWolfe,
Rosenblatt, Yang, Carlick, Brewer, Orrick Law)
12 herein in full.
14 member of the Plaintiff Sub-classes.
15
361. Section 43(a) of the Lanham Act and specifically provision 1125
16
17 make it a violation of federal law for a corporation or person to damage another
18 party through False designations of origin, false descriptions, and dilution
19 forbidden.
20 Plaintiffs also apply for relief under Section 43(a)(1)(B)
21
362. One of the most novel schemes by defendants was to work to pass
22
23 off the search engine partnership/auction opportunity to News Corp in the summer
24
of 2005 so that the acquirer and not the shareholders would get the benefit post-
25
closing of running a Search Auction including closing a partnership offer from
26
27 Google which had just on September 14, 2005 raised over $4 Billion specifically to
28
167
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%()/%3@%.(&
1 spend on locking up search partnerships.

2
363. News Corp announces before the September 30, 2005 deal was closed
3
4 the following statement which is evidence of the Lanham Act violation:
5 First we have significantly enhanced our online reach, strengthening

6 our position as the fifth most trafficked presence on the web. We also
become the fourth largest network in terms of monthly page
7 impressions. 11.6 million. (News Corporation, August 10, 2005, PR
8 Newswire)
9 364. Defendant Intermix, Inc., Myspace, Inc., News Corporation,
10
AskJeeves, Carlick, Yang, DeWolfe, violated the Lanham Act by diluting
11
12 the powerpoint presentation Intermix CEO forwarded to Yahoos head of search
13 before the August 2005 meeting with Yahoo. This made Yahoo believe that News
14
Corporation already had consummated the acquisition of Intermix, Inc. and
15
16 Myspace, Inc. and Yahoo was misled into believing the opportunity to
17 consummate a commercial agreement directly with Intermix, Inc. or Yahoo, Inc.
18
before September 30, 2005 had already been diluted by the fact News
19
20 Corporations internet properties were integrated for business purposes and
21
decisions with Intermix, Inc. and Myspace, Inc.s web properties including
22
Myspace.com.
23
24 Further, the defendants violated the Lanham act by diluting the
25
Intermix obligation to acquire the 49% minority stake of Myspace, Inc. it did not
26
27 own as of July 18, 2005 and through September 30, 2005. Intermix, Inc., Yang,
28 Carlick, Rosenblatt, Brewer, DeWolfe, violated the Lanham act by making false
168
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%()C%3@%.(&
1
2 designations to potential business partners informing such parties that Myspace,
3 Inc.s 49% minority stake continued to be held by previous shareholders including

4
Chris DeWolfe, MSV LLC, Yang, Redpoint. This was a false designation that
5
6 diluted the truthful designation which was expressly listed as a key right and
7 obligation of Intermix, Inc, Myspace, Inc. and their Directors and Officers, namely
8
that the Myspace, Inc. minority shareholders had already agreed to sell such shares
9
10 to Intermix, Inc. for $69 million dollars. If Intermix, Inc. had owned 100% of
11 Myspace, Inc. and purchased such minority shares after the July 18, 2005 merger
12
agreement was executed as called for in such agreement, then Intermix
13
14 shareholders would not have been damaged by the barriers and obstacles that
15 continued to exist for consummating a commercial search engine partnership with
16
Yahoo or Google before September 30, 2005.
17
18 By keeping the Myspace, Inc. shares in the minority shareholder possession
19
through September 30, 2005, the defendants were able to keep the Myspace, Inc.
20
Board intact and Yang was able to use this Board position as a Director to continue
21
22 to block the Myspace, Inc. and Myspace.com managers from moving forward with
23
consummating a commercial search agreement with Yahoo or Google which was
24
25 in the best interests of the business and Intermix shareholders.
26 ///
27 SEVENTH CAUSE OF ACTION
(VIOLATION OF U.S.C. 1341)
28 (Against All Defendants )
169
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(B-%3@%.(&
1
365. Plaintiff incorporates by reference all the allegations in the above
2
paragraphs as if fully set forth herein.
3
5 member of the Sub-classes described above.
6 367. It was part of the Defendants scheme to use the United States Postal
7 Service to deliver fraudulent SEC Proxies to the MySpace Parent Company
8 Shareholders in December 2003, January 2004, July 2004, August 2005, and
9 September 2005 to conceal the errors contained in the Proxy Disclosure
10 statements on each occasion specifically the omissions of the ongoing business and
11 cash payments DeWolfe was directing towards the Orrick Herrington Law LLC
12 through his role on the Board of FogCutter.
13 368. At all times, Orrick Herrington Law served as counsel for Intermixs
14 largest shareholder, VPVP which was at all times controlled by AskJeeves and
15 Google.
16 368. Defendants Harroch, Orrick, VPVP, AskJeeves, Yang, Sheehan,
17 Carlick, Rosenblatt, Brewer, and Edell actively helped Intermix cover up the 2004
18 and 2005 omission of the public issuers Fog Cutter / DeWolfe / Orrick Law /
19 AskJeeves / VPVP material business relationships and the disclosure violations
20 caused by such omissions through mail fraud via sending out via US Postal service
21 defective Proxy Def14As, violating section 18 U.S.C. 1341.
22 369. MySpace and eUniverses failure to elect 5th MySpace Director was
23 key part of scheme to rig bidding in Search Auction and sale of eUniverse. Failure
24 to disclose Intermixs majority owned MySpace, Inc. was in breach of this
25 covenant in the August 2005 Proxy was a 14A violation. Defendants breach and
26 non disclosure of such breach are used to effect the Antitrust bid rigging scheme.
27 Defendants violated 18 U.S.C. 1341 through publishing, distributing and
mailing
28
170
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(B(%3@%.(&
1 the August 2005 Proxy omitting the disclosure of such breach. In order to have
2 avoided a 14A violation, the Proxy should have stated,
3
Intermix Owns 51% of MySpace, Inc. and has exercised the option to
4
purchase the 49% of MySpace under the terms of the MySpace stockholder
5
agreement. Under the MySpace, Inc. stockholder agreement, stockholders of
6
MySpace have certain legal governance duties and are required to nominate
7
and appoint an independent 5th Director. Currently the MySpace, Inc. board
8
and stockholders have filled only four of the five required director seats.
9
370. In exchange for the additional benefits, AskJeeves Directors Carlick
10
and Yang use their leverage as concurrently serving Directors of Myspace, Inc. and
11
Intermix to breach their fiduciary duties by delaying the filling of the Myspace,
12
Inc. 5th Director seat
13
i. The Intermix / News Corp Merger Agreement was disclosed via 8k on
14
July 18, 2005. Sections 6.4 & 6.5 of the MERGER AGREEMENT along with the
15
section titled EXHIBIT B Purchase Option Loan Term Sheet, lays out specific
16
obligations of Defendants. Sections 6.3 &6.4 & 6.5. Defendants failed to fulfill
17
contractual Merger agreement to purchase 100% of MySpace, Inc. using all
18
commercial means for benefit of shareholders.
19
ii. Compliance by Intermix and Defendant directors of the
20
MERGER AGREEMENT would have resulted in Intermix drawing down a $69
21
million dollar loan from News Corp, and using this money to purchase the 42%
22
minority stake in MySpace, Inc. Intermix was to own and get the benefits of
23
owning 100% of MySpace, Inc for the remaining months prior to the September
24
30, 2005 Shareholder meeting or beyond.
25
iii. Carrying out the purchase of the minority MySpace interest
26
was critical to give Intermix shareholders 100% of MySpace. Accelerating the
27
purchase of the MySpace minority shares would reduce the risk of losing benefit of
28
171
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(B.%3@%.(&
1 MySpace option. euniverses failure to cure breach of Merger Agreement Sections

2 6.3 & 6.4 & 6.5. was a key part of scheme to rig bidding in Search Auction
3 and sale of eUniverse. Failure to disclose the breach in the August 2005
4 Proxy was a 14A violation. Defendants breach and non disclosure of such
5 breach are used to effect the Antitrust bid rigging scheme. Defendants
6 violated 18 U.S.C. 1341 through publishing, distributing and mailing the
7 August 2005 Proxy omitting the disclosure of such breach
8 GOOGLE INDUCES ASKJEEVES CARLICK TO FAIL TO EXERCISE OR
DRAW DOWN EXHIBIT B PURCHASE OPTION LOAN
9
371. Section Exhibit B in the Merger Agreement is titled Purchase
10
Option LoanTerm Sheet, and states the Borrower is: Intermix Media, Inc. and the
11
Principal Amount: $69 Million", and Use of Proceeds states To fund the
12
purchase of the MySpace Option.
13
i. Defendants claim in the Proxy that was distributed to Shareholders on
14
August 25, 2005, that moments before signing the MSA in the early morning of
15
Monday July 18, 2005, CEO Rosenblatt and Board determined to suddenly not
16
purchase the minority MySpace shares that make up the MySpace Option.
17
GOOGLE INDUCES ASKJEEVES DIRECTORS TO FAIL TO PURCHASE
18 100% OF MYSPACE, INC.
19 372. Google induces AskJeeves Carlick and Yang to deliberately and
20 willfully breached Merger Agreement, duty of loyalty and fiduciary duty by
21 refusing to raise debt offered by Intermix investment bank shortly after July 18,
22 2005.
24
25
28
172
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(BA%3@%.(&

2
Defendant Sub-Class C members to take actions that violated U.S.C. 1341.
3
374. Further, the defendant Sub-Class A members aided and abetted the
4
5 conspiracy and U.S.C. 1341 violations by failing to disclose the existence of
6
7
Agreement in their SEC 10Q or 10K filings during 2005 and through the present.
8
10
and U.S.C. 1341 violations by breaching their fiduciary duties and duties of
11

14
Agreement in their employers SEC 10Q or 10K filings between 2005 through the
15
16 present.
18
and U.S.C. 1341 violations by failing to force the individuals they compensated
19
22
23
26
27
173
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1
2 conspiracy and U.S.C. 1341 violations by failing to force the Sub-Class B
4
10Q or 10K that the public company they served at was a counter party to the
5
7
378. As a result of the above violations, Plaintiffs and the shareholders
8
have been damaged in an amount greater then $32 billion dollars.
9
10 EIGHTH CAUSE OF ACTION
11 (BLASIUS VIOLATION)
(Against News Corporation, IAC, Brewer, Rosenblatt)
12 379. Plaintiff incorporates by reference all the allegations in the above
14 380. Google induces AskJeeves Carlick and Yang to deliberately and
15 willfully breach the News Corporation Merger Agreement. Under Delaware law, a
16 Blasius violation is one which disenfranchises shareholders that own shares
17 representing the majority of a publicly traded company from exercising such right
18 to vote as a majority at a shareholder meeting to determine a material event
19 effecting such corporate franchise. The following acts by the defendants induce
20 the Intermix Directors to initiate a Blasius violation in regards to the September 30,
21 2005 shareholder meeting at which the Intermix shareholders get to vote to
22 approve or reject the News Corporation $12.00 per share acquisition offer.
23 381. It is a Blasius violation for Defendants fail to use benefit of the
24 MySpace Purchase option in the publicly Disclosed Stockholder Agreement.
25 Defendants both fail to take News Corp loan per the merger agreement and also
26 fail to proceed with offer from their own investment banker to raise debt from a
27 3rd party August 8, 2005, Intermixs President had opted to skip a company
28 business development meeting to attend a search engine show, and increasingly
174
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(B&%3@%.(&
1
in August and September that there was massive demand by Google, Yahoo, and
2
Microsoft to lock up or strike partnerships with companies that owned or
3
controlled large blocks of search audience.
4
NINTH CAUSE OF ACTION
5 VIOLATION CA CARTWRIGHT ACT
6 (Cal. Bus. & Prof. Code 16720, et seq.)
(All Defendants)
7
8 382. Plaintiffs incorporates by reference all the allegations in the above

10 383. Plaintiff and members of the Sub-Classes are persons within the
11 meaning of the Cartwright Act as defined in section 16702.
12
384. Defendants, by and through their officers, directors, employees,
13
agents or other representatives, have entered into an unlawful agreement,
14
combination and conspiracy in restraint of trade, in violation of California
15
16 Business and Professions Code section 16720.
17 385. Beginning no later than October 31, 2003 and continuing at least
18 through the present, Defendants engaged in continuing trusts in restraint of trade
19 and commerce in violation of the Cartwright Act.
20
386. The conspiracy consisted of a continuing agreement, understanding or
21
concerted action between and among Defendants and their co-conspirators in
22
23 furtherance of which Defendants fixed, inflated, manipulated, and allocated market
24 share for online Search and the sales price of internet companies. Defendants
25 conspiracy constitutes a per se violation of the federal antitrust laws and is, in any
26 event, an unreasonable and unlawful restraint of trade.
27
387. Defendants conspiracy, and the resulting impact on the market for
28
175
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(B)%3@%.(&
1 online search and internet acquisitions, occurred in and affected interstate and
2 international commerce.
3
388. The conspiracy included concerted action and undertakings among the
4
Defendants with the purpose and effect of: (a) fixing the sales price of
5
internet companies at artificially low levels; and (b) eliminating, to a substantial
6
7 degree competition among Defendants for internet acquisition targets, reducing
8 competition in the online search marketplace. (d) competition among Defendants
9 for skilled labor has been suppressed, restrained, and eliminated; and (e) Plaintiff
10
and class members received lower value for their property from Defendants than
11
they otherwise would have received in the absence of Defendants unlawful
12
conduct; and (f) the unlawful relationships and bilateral deals were responsible for
13
14 suppressing to a substantial degree competition and innovation the United States
15 and Abroad.
16 389. The acts done by each Defendant as part of, and in furtherance of, their
17 contracts, combinations or conspiracies were authorized, ordered, or done by their
18
respective officers, directors, agents, employees, or representatives while actively
19
engaged in the management of each Defendants affairs.
20
390. As a direct and proximate result of Defendants unlawful conduct,
21
22 Plaintiff and members of the class have suffered injury to their business or
23 property, and have suffered damages in an amount according to proof at trial.

24 Accordingly, Plaintiff and members of the class seek three times their
25 damages caused by Defendants violations of the Cartwright Act, the costs of
26
bringing suit, reasonable attorneys fees, and a permanent injunction enjoining
27
Defendants from ever again entering into similar agreements in violation of the
28
176
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(BB%3@%.(&
1 Cartwright Act.
2 391. Defendant Google entered into an agreement with AskJeeves not to
3
place an offer to become MySpaces exclusive search engine. Instead, the search
4
engine was secretly rerouted to AskJeeves and TimeWarner/AOL through a third
5
party, causing an artificial spike in AskJeeves and TimeWarner/AOL reportable
6
7 share of general search marketplace as reported by 3rd party audit firms including
8 Comscore and Nielsen Netratings.
9 392. Defendants conduct injured Plaintiffs and Sub-Classes
10
by causing their property to generate reduced revenue and forecasts, and not
11
maximizing the value of Intermix and MySpace upon its sale to News Corp.
12
393. As part of the inducement to go along with the below fair market sale
13
14 to News Corporation, and not disclosed in the Intermix public filings prior or at the
15 Intermix September 30, 2005 shareholder meeting to vote on the sale to News
16 Corporation, Richard Rosenblatt was given the option to personally acquire several
17 valuable Intermix website assets for a nominal purchase price. Rosenblatt created a
18
new company called Demand Media, Inc. which he used to acquire the Intermix
19
website assets from News Corporation in early 2006.
20
394. Defendants agreements are per se violations of the Cartwright Act,
21
22 and their conduct violates the Cartwright Act.
25
26
28
177
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(B/%3@%.(&

2
Defendant Sub-Class C members to take actions that violated 16720.
3
5 conspiracy and 16720.violations by failing to disclose the existence of

6
7
10
and 16720.violations by breaching their fiduciary duties and duties of
11
14
Agreement in their employers SEC 10Q or 10K filings between 2005 through the
15
16 present.
17
18
and 16720.violations by failing to force the individuals they compensated
19
21
partners, general partners, and directors, ensured the defendant Sub-Class A
22
23
25
and 10Qs the existence of such defendant Sub-Class A member being a
26
27 counterparty to the Special Agreement or Gentlemens Agreement. Plaintiff
28 only learned of the Sensitive Company Special Agreement and Gentlemens
178
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(BC%3@%.(&
1
2 Agreement document after Google employees sued Google in a Federal Court
3 antitrust class action and such document along with the Gentlemens Agreement
4
document was disclosed to the public for the first time, when the Plaintiff class
5
6 succeeded in getting the Judge to remove the seal on 7/11/2014that defendant
7 Alphabet had placed on such evidence (Exhibit #2).
8
9
10 conspiracy and 16720.violations by failing to force the Sub-Class B
12
10Q or 10K that the public company they served at was a counter party to the
13
15 TENTH CAUSE OF ACTION
16 VIOLATION OF THE UNFAIR COMPETITION STATUE
(Cal. Bus. & Prof. Code 17200, et. seq.)
17 (Against All Defendants and All defendant Sub-Class members)
18 400. Plaintiffs incorporate by reference all the allegations in the
19 above paragraphs as if fully set forth herein.
20 401. Defendants actions to restrain trade constitute unfair competition and
21 unlawful, unfair, and fraudulent business acts and practices in violation of
22 California Business and Professional Code sections 17200, et seq.
23 402. The conduct of defendant Subclass A members, Subclass B members,
24 and Subclass C members in engaging in combinations with others with
25 the intent, purpose, and effect of creating and carrying out restrictions in trade and
26 commerce; eliminating competition among them for skilled labor; fixing the
27 compensation of their employees at artificially low levels; suppressing the value
28 of Myspace, Inc. and Intermix, Inc. for shareholders through misappropriating its
179
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(/-%3@%.(&
1
search traffic and user base; and conspiring to allocate market share to create a
2
monopoly in the general search market constitute and was intended to constitute
3
unfair competition and unlawful, unfair, and fraudulent business acts and practices
4
within the meaning of California Business and Professions Code section 17200.
5
403. Defendant Subclass A members and Subclass B members also violated
6
Californias Unfair Competition Law by violating the Cartwright Act and by
7
violating Section 16600. Defendant Subclass A members and Subclass B member
8
acts were unfair, unlawful, and or unconscionable, both in their own right and
9
because they violated the Sherman Act and the Clayton Act.
10
404. Defendant Subclass A members and Subclass B members entered
11
12 into, implemented, and enforced express agreements that are unlawful and void
13
under Section 16600.
14
405. Defendant Subclass A members and Subclass B members agreements
15
16 and conspiracy have included concerted action and undertakings among the
17
Defendants with the purpose and effect of: (a) reducing open competition among
18
Defendants for skilled labor; (b) reducing employee mobility; (c) eliminating the
19
20 number and diversity of opportunities for employees to pursue lawful employment
21
of their choice; and (d) limiting employee professional betterment.
22
23
24 and conspiracy are contrary to Californias settled legislative policy in favor of
25
open competition, and are therefore void and unlawful.
26
27 407. Defendant Subclass A members and Subclass B members agreements
28
180
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(/(%3@%.(&
1
and conspiracy were not intended to protect and were not limited to protect any
2
legitimate proprietary interest of Defendants.
3
4
and conspiracy do not fall within any statutory exception to Section 16600.
5
409. The acts done by defendant Sub-class A members, defendant Sub-
6
class B members, and defendant Sub-Class C members as part of, and in
7
furtherance of, their contracts, combinations or conspiracies were authorized,
8
ordered, or done by their respective officers, directors, agents, employees, or
9
representatives while actively engaged in the management of each defendant Sub-
10
Class A members affairs.
11
410. Defendants conduct injured Plaintiffs and other members of the Sub
12
classes by devaluing the price of their stock upon the sale of MySpace to News
13
Corp. Plaintiffs and Sub-class members are therefore persons who have suffered
14
injury in fact and lost money or property as a result of the unfair competition under
15
California Business and Professions Code section 17204.
16
17
18
19
Diller, Bronfman, Carlick, Yang, induced, directed, or aided and abetted the
20
Defendant Sub-Class A members, Defendant Sub-Class B members, and
21
Defendant Sub-Class C members to take actions that violated CA 17200 and
22
Section 16600.
23
412. Further, the defendant Sub-Class A members aided and abetted the
24
conspiracy and both CA 17200 and Section 16600. violations by failing to disclose
25
the existence of their company being a counterparty to the Special Agreement or
26
27
through the present.
28
181
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(/.%3@%.(&
1
2
and CA 17200 and Section 16600 violations by breaching their fiduciary duties
3
5
6

9
10
11 and CA 17200 and Section 16600 violations by failing to force the individuals they
12 compensated in between 2005 through the present, including their employees,
13 partners,
14 limited partners, general partners, and directors, ensured the defendant Sub-Class
15
A members had non defective internal controls and proper disclosure policies so
16
17 that such defendant Sub-Class A members would not fail to disclose in annual
18 10Ks and 10Qs the existence of such defendant Sub-Class A member being a
19
20
22
conspiracy and CA 17200 and Section 16600 violations by failing to force the Sub-
23
Class B members they compensated in between 2005 through the present to
24
disclose in
25
26 any 10Q or 10K that the public company they served at was a counter party to the
28 416. Defendants acts and business practices as described above, whether
182
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(/A%3@%.(&
1
or not in violation of the Cartwright Act and/or Section 16600 are otherwise unfair,
2
unconscionable, unlawful, and fraudulent.
3
417. As a result of Defendants violations of Business and Professions
4
Code section 17200, Defendants have unjustly enriched themselves at the expense
5
of Plaintiff and the Class. The unjust enrichment continues to accrue as the
6
unlawful, unfair, and fraudulent business acts and practices continue.
7
418. To prevent their unjust enrichment, Defendants and their co-
8
conspirators should be required pursuant to Business and Professions Code
9
sections 17203 and 17204 to disgorge their illegal gains for the purpose of making
10
full restitution to all injured class members identified hereinabove. Defendants
11
should also be permanently enjoined from continuing their violations of Business
12
and Professions Code section 17200.
13
419. Accordingly, Plaintiffs and Subclasses seek a judicial declaration that
14
15 Defendants agreements and conspiracy are void as a matter of law under Section
16
16600, and a permanent injunction enjoining Defendants from ever again entering
17
into similar agreements in violation of Section 16600.
18
420. Under California Business and Professions Code section 17203,
19
disgorgement of Defendants unlawful gains is necessary to prevent the use or
20
employment of Defendants unfair practices and restitution to Plaintiffs and other
21
class members is necessary to restore to them the money or property unfairly
22
withheld from them.
23
421. Accordingly, Plaintiffs on behalf of themselves and all other similarly
24
situated Sub-Classes, request the following classwide equitable relief:
25
a) that a judicial determination and declaration be made of the rights
26
of Plaintiffs and the Sub-Class members, and the corresponding responsibilities of
27
Defendants and defendant Sub-Class A, defendant Sub-Class B, and defendant
28
183
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(/=%3@%.(&
1 Sub-Class C members;
2 (b) that defendant Sub-Class A, defendant Sub-Class B, and defendant
3 Sub-Class C members be declared to be financially responsible for the costs and
4 expenses of a Court-approved notice program by mail, broadcast media, and
5 publication designed to give immediate notification to Plaintiff Subclass members;
6 and
(c) requiring disgorgement and/or imposing a constructive trust upon
7
defendant Sub-Class A, defendant Sub-Class B, and defendant Sub-Class C
8
members ill-gotten gains, freezing their assets, and/or requiring
9
them to pay restitution to Plaintiffs and Sub-Classes and to all members of the
10
class of all funds acquired by means of any act or practice declared by this Court to
11
be an unlawful, unfair, or fraudulent.
12
13 422. In addition, defendant News Corporation continues to be in violation
14 of 310(b)(4) of the US Federal FCC Foreign Ownership Media Broadcaster rules.

15
i. Incorporate By Reference: April 18, 2012, News Corporation
16
17 press release: http://www.newscorp.com/news/news_528.html
18 ii.News Corporation admits at same time to SEC its internal controls
19
are defective:
20
21 "At the time of the filing of the Companys Form 10-K and its
Quarterly Report on Form 10-Q for the quarter ended September 30,
22 2011, the Company did consider the guidance contained in ASC 450-
23 20-50. The Company did not include an estimate of the possible
loss or range of loss for these contingencies because the Company
24 was unable to estimate such amounts." (2012, News Corporation SEC
25 filings)
26 iii. At same time the UK Parliament publishes report on CEO of News
27
Corporation being unfit to run public company, (May 1, 2012, UK MP
28
184
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(/&%3@%.(&
1 Commission report, page 84, incorporated fully by reference).

2
ELEVENTH CAUSE OF ACTION
3 VIOLATION OF THE SHERMAN ACT - MONOPOLIZATION
4 (15 U.S.C. 2 )
(Against Google and Alphabet, Inc directly and All other Defendants for
5 aiding and abetting the violation)
6
7
8 herein in full.
10
member of the Plaintiff Sub-Classes described above.
11
12 425. The relevant markets are the U.S. general search market.Google
13 search product possesses monopoly power in the relevant markets.Defendant
14
Alphabet is a Delaware corporation with its headquarters and principal place of
15
16 business in Mountain View, California. Google is Americas leader in
17
general Internet search conducted on all devices, and in handheld general search. It
18
also is the owner of the Android OS and popular and exclusive mobile and tablet
19
20 applications including YouTube, Google Maps, and Gmail. Google was number
21
55 on U.S. Fortune 500 2013 list, with 2013 revenues of $55.2 billion and profits
22
of $10.737 billion.
23
24 426. The plaintiffs, like many millions of Americans, are consumers of
25
computer devices who have been affected adversely by Googles unlawful
26
27 practices in commerce.
28 A. Google is a monopolist in general search.
185
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(/)%3@%.(&
1
2 427. General Internet searches occur, inter alia, when a user goes to a search
3 engine website Google.com, for example and executes a query there, or when
4
he enters a query into his browsers search bar and a pre-designated search engine
5
6 operating in the background executes a search.
7 i. For example, a user might conduct a general Internet search by querying

8
name of the 32nd president of the United States.
9
10 428. Google is a monopolist in the U.S. market for general search
11 conducted on all devices, including laptops, desktops, mobile phones, and tablets.
12
According to StatCounter, Googles search engine share over all these devices was
13
14 at 81.87% as of March 2014.20 Googles share is even larger, factoring in the .71%
15 of the market that AOL held as of April 2014, and the .36% of the market that Ask
16
Jeeves held as of that same time, both of which Google powers. By contrast,
17
18 Googles competitor Bings share was at a distant 9.8% as of that point in time,
19
and its competitor Yahoo!s share was at an even more distant 6.42%. (Id.)
20
(Yahoo! search is currently powered by Bing. Bing is owned by Microsoft.)
21
22 B. Google engages in unlawful behavior in order to restrain trade and to
23 maintain and grow its monopoly in the search markets at issue.
24 429. Google maintains monopoly status in handheld general search, which

25
ensures that the vast majority of mobile and tablet searches will be run by its
26
27 20
(http://gs.statcounter.com/#desktop+mobile+tablet-
28 search_engine-US-monthly-201401-201403 (last accessed April 16, 2014).)
186
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(/B%3@%.(&
1
2 search engine. Smartphone and tablet users have increased dramatically over the
3 past few years and are projected to continue increasing in the near future.3 This
4
increase has outpaced the increase in usage of traditional computers and laptops.4
5
6 i. Similar concurrent unlawful behavior was being conducted by
7 Alphabet, Inc. concurrently as evidence, Plaintiffs incorporate excerpts by
8
Reference: Statement of the Federal Trade Commission in the Matter of
9
10 Google Inc. FTC File No. 121-0120 January 3, 2013:
11 Complaint and Order against Google Inc. (Google) designed to
12 remedy Googles allegedly anticompetitive conduct resulting from
breaches by Google
13
14 conduct tended to impair competition in the market for these
important electronic devices products that over half of Americans
15 own and use daily
16
These actions constitute unfair methods of competition, as well
17
as unfair acts and practices, in violation of Section 5 of the Federal
18 Trade Commission Act, 15 U.S.C. 45.
19
9 Chairman Leibowitz and Commissioner Brill support an unfair acts
20 claim as well as an unfair methods claim.
21
There is nothing trivial or attenuated about these injuries; they are
22 not outweighed by any offsetting consumer or competitive benefit;
and they cannot be reasonably avoided by consumers.
23
24 These injuries to end-use consumers as a result of Googles conduct
are unique and particularly harmful, and use of the Commissions
25
unfairness authority in this instance is appropriate and consistent with
26 precedent.
27
430. Google further forecloses competition in the markets at issue by
28
187
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(//%3@%.(&
1 entering into secret deals to provide benefits such as agreeing not to hire or recruit
2
or cold call employees of other technology companies that agree to enter into
3
4 commercial search agreement deals or partnerships that allow Google to sell such
5 business partners pay per click text ads, or provide other advertising services.
6
Such Special Agreement is provided as a benefit to Google business partners that
7
8 have technology programmers, engineers, marketing personnel that such business
9 partners seek to avoid being given offers of higher salaries by other California
10
companies that are seeking and are willing to offer higher salary or compensation
11
12 for the incumbent technology employees. exclusive contracts with Apple.
13 431. Googles practices with respect to its search product and apps restrain
14
and injure competition in markets where already there are high barriers to entry.
15
16 432. Googles unlawful practices in aid of its monopoly restrain and injure
17
competition, and stifle innovation.
18
433. in search markets where already there are high barriers to entry. In
19
20 order to be a viable search engine, a market participant must process a high volume
21
of searches so that its search algorithms can become truly viable and improve over
22
time. The need for a high volume of searches presents one high barrier to market
23
24 entry. Also, a market participant must have the resources to build and maintain the
25
physical plant, to program and maintain the requisite software and algorithms, and
26
27 to perform the web crawling and indexing that makes search possible. This
28 presents another high barrier to market entry. Google adds to these barriers by
188
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(/C%3@%.(&
1
2 coercing OEMs to make its search engine the default search product on devices.
3 This, in turn, lessens its competitors effectiveness and consumer appeal going
4
forward, which results in less profits that otherwise would be available to sustain
5
6 and build upon their presence in the market.
7 434. Any search engine becomes better over time as more and more search
8
inquiries are run through it. Searches executed via Googles search engine provide
9
10 Google with data that Google utilizes to improve its search algorithm. For
11 example, if a users quest for specific information is not satisfied by clicking on
12
prominent links in results returned by the search engine, she will click on a lower-
13
14 ranked link or enter new search terms, and this data allows the algorithm powering
15 the search engine to adapt, or to be modified, to produce better results. This, in
16
turn, enhances Googles appeal to consumers, and the cycle repeats itself. Then,
17
18 because Google attracts more users with these ever-improving search results,
19
Google attracts yet more ad dollars21because advertisers will follow the most
20
consumers. And with more advertising dollars, Google can spend even more
21
22 money to enhance its infrastructure and search product, the effect of which will be
23
24 21
25 21 E.g., Stephen D. Houck, Injury to Competition/Consumers in High Tech Cases,

26 St. Johns L. Rev. Vol. 5, Iss. 4, 593, 598 (2001) (Any assessment of a restraints
anticompetitive impact, however, will be incomplete if limited to price and output
27 effects. The restraints impact on consumer choice and innovation must also be
28 considered.).
189
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(C-%3@%.(&
1 to attract yet more.22 This is the beautiful thing of which Mr. Rosenberg, Google
2
VP of Product Management and Marketing, has spoken.
3
4 435. The high barrier to entry posed by Googles beautiful cycle has been
5 recognized by antitrust regulators. As the federal government recognized in its

6
February 18, 2010, Statement of the Department of Justice Antitrust Division on
7
8 Its Decision To Close Its Investigation of the Internet Search and Paid Search
9 Advertising Agreement Between Microsoft Corporation and Yahoo! Inc.:
10
The search and paid search advertising industry is characterized by an unusual
11
12 relationship between scale and competitive performance. The transaction will
13 enhance Microsofts competitive performancebecause it will have access to a
14
larger number of queries, which should accelerate the automated learning of
15
16 Microsofts search and paid search algorithms and enhance Microsofts ability to
17
serve more relevant search results and paid search listings, particularly with respect
18
to rare or tail queries. The increased queries received by the combination
19
20 operation will further provide Microsoft with a much larger pool of data than it
21
currently has or is likely to obtain without this transaction. The larger data pool
22
may enable more effective testing and thus more rapid innovation of potential new
23
24 search-related products, changes in the presentation of search results and paid
25
search listings, other changes in the user interface, and changes in the search or
26
27 22
(See, e.g., C. Argenton & J. Prfer, Search Engine Competition with Network
28 Externalities, Journal of Competition Law and Economics, 8(1), 73-105 (2012), at
1-2, 9, 11, 13.)
190
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(C(%3@%.(&
1 paid search algorithms. This enhanced performance, if realized, should exert

2
correspondingly greater competitive pressure in the marketplace.
3
4 Yet even after consummation of the Microsoft-Yahoo! deal referenced in
5 this statement by the Department of Justice, in which Microsofts Bing began to

6
power Yahoo! searches, Bing has struggled mightily. As The Washington Post
7
8 reported recently, Microsofts online services division, which oversees search
9 engine Bing, reported a loss of $1.3 billion in 2013 less than the previous year
10
but still in the red.23 This has brought pressure from investors to dump Bing
11
12 altogether.
13 436. If Microsoft were to exit the market, then there is little hope for any
14
meaningful competition in the markets for general search and handheld general
15
16 search. As Steve Pociask and Joseph P. Fuhr, Jr. of the American Consumer
17
Institute put it in their July 24, 2012 paper entitled The Search for Market
18
Dominance:
19
20 Most troubling, however, are recent events suggesting that rivalry in the
21
search engine and search advertising markets has waned altogether. Not only are
22
many of the early search engine rivals gone, but most of the remaining competitors
23
24 are using Googles search capability to some extent or through revenue-sharing
25
deals. For example, for years now, AOL has been using Googles search engine
26
27 23
(http://www.washingtonpost.com/blogs/the- switch/wp/2014/02/05/investors-
28 want-microsofts-new-ceo-to-kill-xbox-bing-and-surface/ (last accessed April 14,
2014.)
191
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(C.%3@%.(&
1 and, consequently, Googles advertising program. Similarly, Ask.com downsized

2
its staff several years ago and signed a five-year multi-billion dollar deal to use
3
4 Googles advertising/sponsored links program. More recently, both AOL and
5 Ask.com have reaffirmed their dependence on Google. As recently as last October,

6
there are reports that Google was looking to finance a deal for others to buyout
7
8 Yahoo. Bing continues to sustain billions of dollars in losses and single-digit
9 market share worldwide. Google has locked into exclusive deals with various
10
providers, making it the default search engine on many online web devices. By all
11
12 indications, competitors are waning, rivals are using Googles own services, and
13 not even Microsoft can make a profitable dent into the market. It appears that
14
the market has tipped to Google, which funnels much of the webs traffic to and
15
16 from its websites and partner websites.
17
437. Google itself has acknowledged that scale is critical to the general
18
search market and constitutes a grave barrier to entry. For example, Googles
19
20 executive chairman, Eric Schmidt, was quoted in an April 13, 2003 New York
21
Times article entitled In Searching the Web, Google Finds Riches as stating:
22
23 Managing search at our scale is a very serious barrier to entry. And
this was over 10 years ago, well before Google attained its present
24 immense size and scale.
25
Mr. Schmidt has since tried to walk back that statement, but it remains as
26
27 objectively true today as it was then even more so.
28 When not even a company as successful and wealthy as Microsoft gives Google
192
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(CA%3@%.(&
1
2 competitive pause due to Googles scale and the barriers to entry that it poses, then
3 realistically, no company can hope to compete with Google in the fast- growing
4
market for handheld general search, especially when Google resorts to unlawful
5
6 behavior to maintain and expand its monopoly power.
7 438. Indeed, as Reuters reported on November 21, 2012, in an article
8
entitled Google competitor DuckDuckGo says its getting shut out, [u]pstart
9
10 Internet search engine DuckDuckGo, which promotes itself as a Google Inc. rival
11 which does not track users personal information, says it is being hurt by the search
12
giant .... According to the article, Gabriel Weinberg, the MIT graduate who
13
14 started DuckDuckGo, complained that the Android wireless phone comes with
15 Google as the phones standard search mechanism. (Id.) DuckDuckGo can be
16
added as an app to a mobile device, which is less convenient than being the default
17
18 search engine, said Weinberg. But Googles anti-competitive tactics did not stop
19
there. Instead, Google, having purchased a company which owned the domain
20
name duck.com, began redirecting traffic from that domain name to itself after
21
22 DuckDuckGo inquired about purchasing it. (Id.) This, according to Mr. Weinberg,
23
created confusion among consumers. (Id.) Mr. Weinberg also complained of the
24
25 difficulty of making DuckDuckGo the default search provider in Googles Chrome
26 web browser. (Id.) The article concluded by reporting that [a] former antitrust
27
enforcer, who asked not to be named, said the actions that Weinberg complained
28
193
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(C=%3@%.(&
1 about were unexciting taken individually but, as a cluster, could be worrisome.

2
Its relevant. Its what antitrust enforcers call monopoly soup, said the enforcer.
3
4 (Id.)
439. When Bing and other search engines such as DuckDuckGo are
5
6 excluded from competition by way of the practices described in this complaint, not
7 only is actual competition restrained and harmed by way of the exclusion itself,23
8
but even the prospect of real competition is restrained and diminished. When
9
10 Googles search product grows in effectiveness, fueled by search volumes strongly
11 enhanced as a result of Googles anti-competitive practices, competitors fall yet
12
further behind both in terms of effectiveness but also in terms of reputation in the
13
14 marketplace.
15 440. Not only is competition restrained and harmed by Googles practices,
16
but so is the innovation that real competition brings. When rivals are not able to
17
18 compete, they will be less and
19
441. Competition is further restrained and harmed by Googles unlawful
20
contracts. And this means that consumers are robbed of what these aspiring
21
22 competitors might bring to the market, if only they were given a fair chance to
23
compete.
24
25 E. Googles unlawful practices harm consumers.
26 442. Consumers are harmed by Googles practices in aid of maintaining and

27
advancing its monopolies in handheld general search and general search because
28
194
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(C&%3@%.(&
1 they are robbed of choice, because of the stifling of innovation, and because their
2
handheld devices cost more than they would if Google did not foreclose
3
4 competition.
5 443. Google harms consumers by killing competition, stifling innovation,

6
and diminishing consumer choice.
7
8 444. This state of affairs cries out for correction before Google drives its
9 remaining competitors completely out of the markets for handheld general, and
10
general, search. As Susan A. Creighton, counsel for Google and former Director of
11
12 the Bureau of Competition at the Federal Trade Commission, put it at the Power of
13 Google hearing: And this really gets to the question of, are there impediments to
14
the ability of consumers to choose. So if someone found, for example, that as
15
16 Microsoft did there [with respect to Netscape], that Microsoft was intimidating
17
OEMs from being able to offer rival product so that it never got to market, then I
18
would want to have relief that went to those provisions that were preventing
19
20 choice. 24
21
445. Google harms consumers by causing supra-competitive pricing of
22
affected Android OS devices.
23
24 446. Second, when Googles competitors in handheld general search are
25
prevented from competing with regard to default engine status, or for app
26
27 24
(Power of Google Transcript of Sept. 21, 2011 Hearing at 46-47
28 (http://www.gpo.gov/fdsys/pkg/CHRG-112shrg71471/pdf/CHRG-
112shrg71471.pdf (last accessed March 20, 2014)).24)
195
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(C)%3@%.(&
1 exclusivity, on a phone or tablet, money they would pay manufacturers for that
2
status which would drive down the price of that device stays in these
3
4 competitors pockets. The expected contest for default search engine status never
5 occurs, so maximized payments to OEMs do not occur, such that the bottom line to
6
affected devices cannot be subsidized by these payments. This means that
7
8 consumers pay more for affected phones and tablets than they would but for
9 Googles unlawful behavior.
10
447. This effect on consumer prices is not mere speculation. Not only does
11
12 standard economic theory support this conclusion, see n.1, supra, but so, for
13 example, do observations of the market for personal computers. As with Windows-
14
based personal computers, there is a race to the bottom price-wise for Android
15
16 devices.25
17
448. For the reasons stated herein, substantial barriers to entry and expansion
18
exist in the relevant markets.
19
20 449. Google has the power to exclude competition in the relevant markets,
21
and it has used that power, including by way of its unlawful practices in restraint of
22
trade as described herein, in order to maintain and expand its monopoly power in
23
24
25
See, e.g., Race to the bottom: how are Google and OEMs going to cope
25
26 with commoditization? (http://www.androidauthority.com/google-oem-cope-
commodization-403372/ (describing the race to lower prices as the only viable
27 means of differentiation among very similar Android devices) (last accessed July
28, 2014). Still, while the average sales price for Android phones has dropped from
28 $441 in 2010 to a projected $254 in 2014, see id., the price would fall yet further
with any funds available to manufacturers to apply to the bottom line.
196
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(CB%3@%.(&
1
2 both.
3 450. Googles conduct as described herein, including its unlawful practices

4
in restraint of trade, is exclusionary vis--vis its rivals in the U.S. markets for
5
6 general search.
7 451. Google has combined with device manufacturers to maintain and grow
8
its monopoly in handheld general search and general search, with the effect being
9
10 that competition is foreclosed, that innovation is stifled, and that consumer choice
11 is gravely diminished.
12
452. There is no business necessity or other pro-competitive justification for
13
14 Googles conduct.
15 453. Plaintiffs and Plaintiff Sub-Classes have been injured, and will
16
continue to be injured, in their businesses and property as a result of Googles
17
18 conduct, including by way of overpaying for their affected Android OS
19
smartphones and tablets.
20
454. Plaintiffs are inclined to purchase Android OS devices in the future, in
21
22 part because of their investment in learning the Android OS system and also
23
because of their desire to continue using applications they have purchased from the
24
25 Android Market or Google Play store. Plaintiffs and the Plaintiff Sub-Classes are
26 entitled to an injunction to prevent Google from persisting in its unlawful behavior

27
to their detriment.
28
197
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(C/%3@%.(&
2
3
6
7
8 Defendant Sub-Class C members to take unlawful actions that enabled Google to
9 grow its market share of general search from 35% in mid 2005 to over 50% by the
10
end of 2006.
11
13 Sherman Act 2 violations by failing to disclose the existence of

14
15
18
and Sherman Act 2 violations by breaching their fiduciary duties and duties of
19
22
Agreement in their employers SEC 10Q or 10K filings between 2005 through
23 the
24
present.
25
27 and Sherman Act 2 violations by failing to force the individuals they compensated
28
198
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%(CC%3@%.(&
2
partners, general partners, and directors, ensured the defendant Sub-Class A
3
4 members had non defective internal controls and proper disclosure policies so that
6
7
8 counterparty to the Special Agreement or Gentlemens Agreement.
10
conspiracy and Sherman Act 2 violations by failing to force the Sub-Class B
11
14
Special Agreement.
15
16 TWELVTH CAUSE OF ACTION
VIOLATION OF THE SHERMAN ACT
17
CONSPIRACY TO MONOPOLIZE
18 (15 U.S.C. 1, 15 U.S.C. 2)
(Against All Defendants )
19
21
herein in full.
22
461. Plaintiffs bring this claim on their own behalf and on behalf of
23
24 all Sub-Classes described above.
25
462. Google has attempted to monopolize the U.S. market for general search
26
27 and the U.S. market for handheld general search.
28 463. Googles anti-competitive conduct has created a dangerous probability
199
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%.--%3@%.(&
1
2 that it will achieve monopoly power in the U.S. market for general search and the
3 U.S. market for handheld general search.

4
464. Google has a specific intent to achieve monopoly power in the U.S.
5
6 market for general search and the U.S. market for handheld general search.
7 465. Google has the power to exclude competition in the U.S. market for
8
general search and the U.S. market for handheld general search, and it has used
9
10 that power, including by way of its unlawful practices in restraint of trade as
11 described herein, in an attempt to monopolize those relevant markets.
12
466. Googles conduct as described herein, including its unlawful practices
13
14 in restraint of trade, is exclusionary vis--vis its rivals in the U.S. markets for
15 general search and handheld general search.
16
467. Google has combined with device manufacturers in an attempt to
17
18 monopolize handheld general search and general search, with the effect being that
19
competition is foreclosed, that innovation is stifled, and that consumer choice is
20
gravely diminished.
21
22 468. There is no business necessity or other pro-competitive justification for
23
Googles conduct.
24
25 469. Plaintiffs and the federal law class have been injured, and will continue
26 to be injured, in their businesses and property as a result of Googles conduct,

27
including by way of overpaying for their affected Android OS smartphones and
28
200
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%.-(%3@%.(&
1 tablets.
2
470. Plaintiffs are inclined to purchase Android OS devices in the future, in
3
4 part because of their investment in learning the Android OS system and also
5 because of their desire to continue using applications they have purchased from the
6
Android Market or Google Play store. Plaintiffs and the federal law class are
7
8 entitled to an injunction to prevent Google from persisting in its unlawful behavior
9 to their detriment.
10
11
14
Diller, Bronfman, Carlick, Yang, conspired to induce, direct, or aid and abet the
15
17
Defendant Sub-Class C members to take actions that violated Section 2 of the
18
Sherman Act.
19
20 472. Further, the defendant Sub-Class A members conspired and continue
21 to conspire to aid and abet the conspiracy and Sherman Act 2 violations by failing
22
to disclose the existence of their company being a counterparty to the Special
23
24 Agreement or Gentlemens Agreement in their SEC 10Q or 10K filings during
25 2005 and through the present.
26
473. The defendant Sub-Class B members conspired and continue to
27
28 conspire to aid and abet the conspiracy and Sherman Act 2 violations by breaching
201
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%.-.%3@%.(&
1
2 their fiduciary duties and duties of loyalty to the public companies they worked for
3 by failing disclose the existence of their company being a counterparty to the

4
Special Agreement or Gentlemens Agreement in their employers SEC 10Q
5
6 or 10K filings between 2005 through the present.
8
and Sherman Act 2 violations by failing to force the individuals they compensated
9
12
13
16
17
19
conspiracy and Sherman Act 2 violations by failing to force the Sub-Class B
20
members they compensated in between 2005 through the present to disclose in any
21
23
Special Agreement.
24
25 476. Plaintiffs were injured by the aforementioned conspiracy and continue
26 to be injured by the conspiracy to monopolize the general search marketplace

27
which Defendants all participate in as competitors, partners, and customers.
28
202
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%.-A%3@%.(&
1 477. The conspiracy consists of a continuing agreement, understanding or

2
concerted action between and among Defendants and their co-conspirators in
3
4 furtherance of which Defendants fixed, maintained, or made artificial market share
5 for online Search. Defendants conspiracy constitutes a per se violation of the

6
Federal antitrust laws and is, in any event, an unreasonable and unlawful restraint
7
8 of trade.
9 478. Alphabet, Google, TimeWarner/AOL, IAC, AskJeeves, Inc., and other
10
defendants conspired to allocate over 50% of the general search marketplace to the
11
12 Google search property through the aforementioned bid rigging schemes which
13 exchanged the benefits among the co-conspirators of the Special Agreement
14
Hiring Policy offered by Google.
15
16 479. Firstly, Google, the co-conspirators, and defendant Sub-Class A
17
members benefitted and continue to benefit from suppressing their employment
18
costs.
19
20 480. Secondly, once the conspiracy succeeded in allocating market share of
21
over 50% of the general search market to Google, all co-conspirators knew that
22
Google would more then double its then current cost per click advertising rates.
23
24 481. All the co-conspirators and defendant Sub-Class A, defendant Sub-
25
Class B, and Sub-Class C members stood to benefit and continue to benefit from
26
27 aiding in the conspiracy to allocate and preserve over 50% of the general search
28 market for Google because they all had or have commercial agreements in which
203
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%.-=%3@%.(&
1
2 Google sold or sells their paid search advertising and all such agreements are
3 structured as revenue shares.

4
482. Therefore, for example, the IAC/AskJeeves commercial agreement
5
6 with Google allows IAC/AskJeeves to receive greater then 70% of the revenue
7 generated from Googles sale of search advertising. Thus, as the conspiracy
8
continues to succeed and Google can continue to charge more then double the paid
9
10 click advertising rates as compared to the rates before Google had captured over
11 50% of the general search market, IAC/AskJeeves knew that they are instantly
12
sharing and will continue to share in the benefits of the monopoly power they had
13
14 helped allocate to Google.
15 483. The co-conspirators knew based on their internal data and review of
16
Intermixs internal data that Google could only grow to over 50% share of the
17
18 general search market by locking up the rights to Myspace.coms commercial
19
search agreement .
20
484. Defendants conduct injured Plaintiffs and the Plaintiff Sub-Classes3
21
by: i) lowering the value of MySpace upon its acquisition by News Corp.
22
and ii) reducing the competition in the general search marketplace which.
23
Further, such Defendants conduct harmed Plaintiffs and
24
Sub-Classes from suppressing the competition in the general search marketplace
25
since 2005 through the present as described above. And Plaintiffs including the
26 Sub-
27 Classes will continue to be harmed unless this Court grants the relief requested
28 including permanent injunctive relief.
204
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%.-&%3@%.(&
1
4
5
6 Diller, Bronfman, Carlick, Yang, conspired to induce, direct, or aid and abet the
7
8
Defendant Sub-Class C members to conspire to take actions with the goal of
9
10 Violating Sherman Act 2 through allocating over 50% of the general search market
11 to
12 Google.
13
486. Further, the defendant Sub-Class A members conspired and continue
14
15 to conspire to aid and abet the the Sherman 2 Google general search monopoly by
16 failing to disclose the existence of their company having been or continuing to be a

17
counterparty to the Special Agreement or Gentlemens Agreement or a newly
18
19 titled secret agreement of similar illegal employment suppressing hiring protocol
20 in their SEC 10Q or 10K filings during 2005 and through the present.
21
487. The defendant Sub-Class B members conspired to aid and abet the
22
23 the Sherman 2 Google general search monopoly by breaching their fiduciary duties
25
26
205
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%.-)%3@%.(&
1
2 488. The defendant Sub-Class C members conspired and continue to
3 conspire to aid and abet the Sherman 2 Google general search monopoly
4
by failing to force the individuals they compensated in between 2005 through the
5
6 present, including their employees, partners, limited partners, general partners, and
7 directors, ensured the defendant Sub-Class A members had non defective internal
8
controls and proper disclosure policies so that such defendant Sub-Class A
9
10 members would not fail to disclose in annual 10Ks and 10Qs the existence of such
11 defendant Sub-Class A member being a counterparty to the Special Agreement
12
or Gentlemens Agreement.
13
14 489. The defendant Sub-Class C members further conspired and continue
15 to conspire to aid and abet theSherman 2 conspiracy by failing to force the Sub-
16
Class B members they compensated or compensate in between 2005 through the
17
18 present to disclose in any 10Q or 10K that the public company they served at was a
19
counter party to the Special Agreement.
20
THIRTEENTH CAUSE OF ACTION
21
VIOLATION OF THE CLAYTON ACT
22 (15 U.S.C. 14)
23
24
herein in full.
25
491. Plaintiffs bring this claim on their own behalf and on behalf of all
26
Plaintiff Sub-Classes described above.
27
492. Beginning at a time presently unknown to Plaintiffs, but at least as early
28
206
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%.-B%3@%.(&
1 as 2003 and continuing through the present, Defendants and their co-conspirators
2 entered into a continuing agreement, understanding, and conspiracy in restraint of
3 trade in violations of Section 16 of the Clayton Act, 15 U.S.C. 15 and Section 1
4 of the Sherman Act, 15 U.S.C. 1.
5 493. In furtherance of the unlawful conspiracy, each of the Defendants and
6 their co- has committed overt acts, including, inter alia:agreeing to charge prices at
7 certain levels and otherwise to fix, increase, maintain Googles general search
8 market share above 50% through ; participating in meetings, conversations, and
9 communications with co- conspirators regarding salaries for technology employees
10 and value of stock options;agreeing to allocate customers;meeting with co-
11 conspirators in order to keep the existence of the conspiracy unknown as to foster
12 the illegal anti-competitive conduct described herein; andrefraining from
13 competing by refusing to make counter acquisition offers.
14 494. The combination and conspiracy alleged herein has had the following
15 effects,
16 a. Competition and innovation for general search has been restrained,
17 suppressed, and/or eliminated;
18 b. Market share of the general search products and services sold or
19 offered by Defendants and their co-conspirators have been fixed, raised,
20 maintained and stabilized at artificially high, non-competitive levels; and
21 c. Those who use or need a computer devices general search
22 capability have been deprived of the benefits of free and open competition.
23 495. Defendants and their co-conspirators engaged in the activities described
24 above for the purpose of effectuating unlawful arrangements to fix, maintain, raise
25 Googles share of the general search market share above 50%.
26 496. As a direct and proximate result of Defendants illegal agreement,
27 contract, combination trust and/or conspiracy, Plaintiffs and the members of the
28 Sub-Classes have been injured and damaged in their respective businesses and
207
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%.-/%3@%.(&
1
property according to proof and will continue to be damaged as long as
2
Defendants actions continue, and are accordingly entitled to injunctive relief
3
pursuant to Section 16 of the Clayton Act, 15 U.S.C. 26.
4
495. Plaintiffs and the Sub-Classes have been harmed by Googles
5
conduct. First, they have been harmed in terms of the denial of choice and other
6
injuries to competition and innovation as alleged herein. Second, they have been
7
harmed in terms of the supra-competitive prices they paid for their smartphones
8
and tablets due to the inability of Googles rivals to compete for default search
9
engine status or exclusive application pre-loading, including by way of paying
10
device manufacturers fees for such status. Had Googles rivals market share of
11
general search not been unlawfully eliminated such rivals would have been able to
12
charge similar cost per click rates as Google instead of only being able to charge a
13
fraction per click of what a monopoly controlling over 50% of the market share in
14
general search market . Therefore rivals cant compete for such status on a given
15
device, including by way of making payments to device manufacturer, the effect
16
would have been to lower the cost to produce that device, and consumer prices
17
would have been lower than what they were but for Googles unlawful conduct.
18
For these reasons, Googles conduct has been a substantial factor in causing
19
plaintiffs and Sub-Classes harm.
20
497. Further, Plaintiffs and Sub-Class members are inclined to purchase
21
Android OS devices in the future, in part because of their investment in learning
22
the Android OS system and also because of their desire to continue using
23
applications they have purchased from the Android Market or Google Play store.
24
Plaintiffs and the federal law class are entitled to an injunction, pursuant to 15
25
U.S.C. 26, to prevent Google from persisting in its unlawful behavior to their
26
detriment.
27
28
208
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%.-C%3@%.(&

2
3

6
Defendant Sub-Class C members to takeactions in restraint of
7
Trade, in violation of Section 16 of the Clayton Act, 15 U.S.C. 15 and Section
8
1 of the Sherman Act,.
9
499. Further, the defendant Sub-Class A members aided and abetted and
10
continue to aid and abet violations of Section 16 of the Clayton Act, 15 U.S.C.
11
15 and Section 1 of the Sherman Act, 15 U.S.C. 1 including by failing to disclose
12
13
14 through
15 the present.
16 500. The defendant Sub-Class B members continue to aid and abet
17 agreements, understandings, and conspiracy in restraint of trade in violations of
18 Section 16 of the Clayton Act, 15 U.S.C. 15 and Section 1 of the Sherman Act,
19 15 U.S.C. 1. Including by breaching their fiduciary duties and duties of
20
loyalty to the public companies they worked for by failing disclose the existence of
21
23 Agreement in their employers SEC 10Q or 10K filings between 2005 through the
24
present.
25
501. The defendant Sub-Class C members continue to aid and abet the
26
continuing agreement, understanding, and conspiracy in restraint of
27
trade in violations of Section 16 of the Clayton Act, 15 U.S.C. 15 and Section 1
28
209
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1 of the Sherman Act, 15 U.S.C. 1, including by failing to force the individuals

2 they compensatethrough the present, including their employees, partners, limited
3 partners, general partners, and directors, ensure the defendant Sub-Class A
4
members have non defective internal controls and proper disclosure policies so that
5
6 such defendant Sub-Class A members will not fail to disclose in annual 10Ks
7
8
counterparty to the Special Agreement or Gentlemens Agreement or newly
9
10 titled similar unlawful employment suppressing agreements.
11 502. The defendant Sub-Class C members aid and abet the continuing
12 agreement, understanding, and conspiracy in restraint of trade in violations of
13 Section 16 of the Clayton Act, 15 U.S.C. 15 and Section 1 of the Sherman Act,
14 15 U.S.C. 1.by failing to force the Sub-Class B members they compensate
15 through the present to disclose in any 10Q or 10K that the public company they
16 serve
17 as a Director or Officer or affiliate of is a counter party to the Special
18 Agreement or Gentlemens Agreement, or newly titled secret agreement
19 That suppresses employment competition through similar illegal hiring protocols
20 as the aforementioned known to exist agreements.
21 FOURTEENTH CAUSE OF ACTION

INTERFERENCE WITH ECONOMIC ADVANTAGE
22 (UNDER CALIFORNIA LAW)
24 503. Plaintiffs incorporate by reference and reallege the preceding
25
allegations asthough fully set forth herein.
26
27 504. As set forth in this Complaint, Defendants manipulated the market for
28 online search and internet acquisition market place
210
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1
2 505. An economic relationship existed between Plaintiffs owners of shares
3 in internet companies doing business or being sold in the internet and online search
4
business and defendants which owned, operated, or sought to purchase internet or
5
6 online search businesses
7 506. Defendants unlawful manipulation of market interfered with and

8
disrupted that relationship by defeating the parties expectations that the
9
10 acquisition prices or commercial services would be set or provided honestly and
11 accurately. As a result, Plaintiffs received lower payments on those securities than
12
they otherwise would have, and overpaid for the securities, and were damaged
13
14 thereby.
15 507. Defendants acted with the knowledge that interference or disruption
16
of Plaintiffs relationships with buyers of internet or online search companies or
17
18 providers of online search commercial services were certain or substantially certain
19 to result from Defendants unlawful manipulation.
20
FIFTEENTH CAUSE OF ACTION
21 Fraud, Deceit and Concealment
22 (California Code 1572, 1709,1710)
23
24 508. Plaintiffs incorporate by reference and reallege the preceding
25 allegations as though fully set forth herein.
26
509. Plaintiffs purchased securities issued by Defendants.
27
28 510. Defendant made numerous statements to Plaintiffs to induce them to
211
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1
2 purchase the securities
3 511. In fact, Defendants concealed their schemes to unlawfully manipulate

4
the online search and internet market.
5
6 512. Defendants never disclosed to Plaintiffs the inaccuracy of their quotes
7 in the market or that Defendants had manipulated the online search and internet
8
market to cause the buyout price to be lower than it should have been, and
9
10 perpetrated an ongoing conspiracy to do so.
11 513. The inaccuracy of Defendants public statements and their scheme to
12
manipulate the market were material facts of which Plaintiffs were unaware. If
13
14 Defendants had disclosed those facts, Plaintiffs would not have purchased the
15 subject securities or at least would have demanded an appropriately higher sales
16
price on those securities. Plaintiffs relied on the accuracy of Defendants statements
17
18 that did not include these material omissions.
19 514. Defendants concealment of the inaccuracy of their reported quotes
20
and their scheme to manipulate the online search and internet market damaged
21
22 Plaintiffs because Plaintiffs received a lower price for their securities than they
23 would have had the online search and internet market been accurately and honestly
24
set.
25
26 SIXTEENTH CAUSE OF ACTION
(Unjust Enrichment under California Law)
28 515. Plaintiff incorporates by reference all the allegations in the above
212
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1
paragraphs as if fully set forth herein.
2
516. All Defendants were enriched by violation of Federal and State
3
antitrust laws.
4
517. All Defendants were enriched by fraudulent concealment of
5
illegal agreements that suppressed competition.
6
518. All Defendants were enriched at the expense of Plaintiffs and
7
members of SubClasses.
8
519. It is against equity and good conscience to allow Defendants to retain
9
the value of the Myspace.com minority shares that were never sold back to
10
Intermix before the September 30, 2005 consumation.
11
520. It is against equity and good conscience to allow Defendants to
12
retain the value from misappropriating and hijacking Myspace.coms general
13
search audience and traffic in 2005.
14
521. It is against equity and good conscience to allow TimeWarner/AOL
15
affiliate, Time Magazine, Inc. to hold and continue to profit from the user data of
16
Myspace.com and the website it has recently taken possession of.
17
18 522. Plaintiffs detriment and Defendants enrichment are traceable to, and
19 resulted directly and proximately from, the conduct challenged in this Complaint.
20
523. Under the common law doctrine of unjust enrichment, it is inequitable
21
22 to permit Defendants to retain the benefits they received, and are still receiving,
23 without justification, from their manipulation of the online search market in an

24
unfair, unconscionable and oppressive manner. Defendants retention of such funds
25
26 under circumstances making it inequitable to do so constitutes unjust enrichment.
27 524. The Court should impose a constructive trust upon all unlawful or
28
213
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/%%%89:$;%(.<(=<()%%%>"?$%.(=%3@%.(&
1 inequitable sums including but not limited to the advertising revenue and other
2
revenue streams being generated each day from the Myspace.com and user data
3
4 that Time Magazine, Inc. is in possession of.
5 525. Further, Defendants continue to use Myspace.com and its user data to
6
promote the monopolization of general search marketplace scheme, further
7
8 enriching Google and other defendants while harming Plaintiffs who have no
9 adequate remedy at law to recover the ongoing property, user data, and monies
10
being generated from defendant
11
IX. PRAYER FOR RELIEF
12
Plaintiff, on behalf of himself individually and on behalf of Plaintiff Classes prays
13
for relief and judgment against Defendants, jointly and severally as follows:
14
15 A. 1. That the Court determine that this action may be maintained as a class action;
16 2. Appointment of Plaintiff as Lead or Co-Lead Class Representative and
17 his counsel of record as Class or Co-Lead Counsel;
18 3. Pre-judgment and post-judgment interest provided by law or allowed in equity;
19 4. An incentive award to compensate Class Plaintiff for his efforts in
20 pursuit of this litigation;
21 5. For nominal damages;
22 6. For compensatory damages;
23 7. For restitution of all monies due to Plaintiff, Plaintiff Class, and Plaintiff
24 Subclasses, and disgorged profits from unlawful business practices of Defendants;
25 8. For costs of suit and expenses incurred herein;
26 9. For reasonable attorneys fees;
27 10. For treble damages; and
28 11. For all such other and further relief the Court may deem just and proper.
214
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1
2 B. That the Court award them and the proposed classes all appropriate relief,
3 including, but not limited to, injunctive relief requiring that Google cease the
4 practices as described herein, and declaratory relief,
5 adjudging such practices unlawful, as well as monetary relief, whether by way of
6 restitution or damages, including treble, multiple, or punitive restitution or
7 damages where mandated by law or otherwise available, as well as recovery of
8 their attorneys fees, costs, and expenses;
9 C. That the Court grant such additional orders or judgments as may be
10 necessary to prevent the unlawful practices complained of herein; and
11
X. JURY DEMAND
12
13 Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiff demands a trial by
14
Jury on all issues.
15
Dated: December 6, 2016 LAW OFFICE OF JARED PETERSON
16
17 _________________
18 Jared Peterson,
Attorney for Plaintiff
19 Peng Chan, on behalf of himself and all
others similarly situated
20
21
22
23
24
25
26
27
28
215
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8 UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA
10 SAN JOSE DIVISION
For the Northern District of California
11 ) Case No.: 11-CV-02509-LHK

United States District Court
)
12 IN RE: HIGH-TECH EMPLOYEE ) ORDER DENYING DEFENDANTS
ANTITRUST LITIGATION
13 ) INDIVIDUAL MOTIONS FOR
) SUMMARY JUDGMENT
14 )
)
15 )
THIS DOCUMENT RELATES TO: )
16
)
ALL ACTIONS
17 )
)
18
19 Summary judgment is appropriate if, viewing the evidence and drawing all reasonable
20 inferences in the light most favorable to the nonmoving party, there are no genuine disputed issues
21 of material fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
22 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material if it might affect the
23 outcome of the suit under the governing law, and a dispute as to a material fact is genuine if
24 there is sufficient evidence for a reasonable trier of fact to decide in favor of the nonmoving party.
25 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). At the summary judgment stage, the
26 Court does not assess credibility or weigh the evidence, but simply determines whether there is a
27 genuine factual issue for trial. House v. Bell, 547 U.S. 518, 559-60 (2006). The moving party has
28 the burden of demonstrating the absence of a genuine issue of fact for trial. Celotex, 477 U.S. at
1
Case No.: 11-CV-02509-LHK
ORDER DENYING DEFENDANTS INDIVIDUAL MOTIONS FOR SUMMARY JUDGMENT
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1 323. To meet its burden, the moving party must either produce evidence negating an essential
2 element of the nonmoving partys claim or defense or show that the nonmoving party does not
3 have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.
4 Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000)
5 (citation omitted). Once the moving party has satisfied its initial burden of production, the burden
6 shifts to the nonmoving party to show that there is a genuine issue of material fact. Id. at 1103.
7 Importantly, at the summary judgment stage, the Court must view the record in the light most
8 favorable to the non-moving party. Brown v. City of Los Angeles, 521 F.3d 1238, 1240 (9th Cir.
9 2008).
10 The critical case for the legal standard to be applied to motions for summary judgment in
11 antitrust cases is Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986),
12 a case that challenged Japanese manufacturers lowering of prices as anti-competitive. In
13 Matsushita, the Supreme Court held that a plaintiff seeking damages for a violation of 1 [of the
14 Sherman Act] must present evidence that tends to exclude the possibility that the alleged
15 conspirators acted independently. Id. at 588. Under Matsushita, if Defendants can show a
16 plausible and justifiable reason for their conduct that is consistent with proper business practice,
17 Plaintiffs must show that the inference of conspiracy is reasonable in light of the competing
18 inferences of independent action or collusive action that could not have harmed [plaintiffs]. Id.
19 The Ninth Circuit has interpreted Matsushita to mean that where a defendant has demonstrated a
20 plausible business reason for its conduct, a plaintiff who relies solely on circumstantial evidence
21 of conspiracy . . . must produce evidence tending to exclude the possibility that defendants acted
22 independently. In re Citric Acid Litig., 191 F.3d 1090, 1096 (9th Cir. 1999). The Second Circuit,
23 in 2012, interpreted Matsushita and Citric Acid as follows: [Matsushita] further holds that the
24 range of inferences that may be drawn . . . depends on the plausibility of the plaintiffs theory.
25 Thus, where a plaintiffs theory of recovery is implausible, it takes strong direct or circumstantial
26 evidence to satisfy Matsushitas tends to exclude standard. By contrast, broader inferences are
27 permitted, and the tends to exclude standard is more easily satisfied, when the conspiracy is
28 economically sensible for the alleged conspirators to undertake and the challenged activities could
2
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1 not reasonably be perceived as procompetitive. In re Publn Paper Antitrust Litig., 690 F.3d 51,
2 63 (2d Cir. 2012) cert. denied, 133 S. Ct. 940 (2013).
3 The Court finds that in light of the summary judgment standard as viewed through the lens
4 of Matsushita and its progeny, Plaintiffs have presented sufficient evidence that tends to exclude
5 the possibility that Defendants acted independently even if Defendants satisfied the first prong of
6 Matsushita by showing a plausible and justifiable reason for their conduct that is consistent with
7 proper business practices. The Court need not determine whether Defendants have met their burden
8 with respect to Matsushitas first prong, because the Court finds that Plaintiffs have satisfied their
9 burden of providing specific evidence tending to show that [Defendants were] not engaging in
10 permissible competitive behavior. Citric Acid Litig., 191 F.3d at 1094.

11 Here, as Edward Catmull (Pixar President) noted, it was economically sensible for the
12 alleged conspirators to undertake the alleged conspiracy, because solicitation messes up the pay
13 structure. Catmull Depo. at 179. As George Lucas (former Lucasfilm Chairman of the Board and
14 CEO) stated, we cannot get into a bidding war with other companies because we dont have the
15 margins for that sort of thing. Lucas Depo. at 44. Further, as Meg Whitman (former CEO of eBay)
16 said to Eric Schmidt (Google Executive Chairman, Member of the Board of Directors, and former
17 CEO), Google is the talk of the Valley because [Google is] driving up salaries across the board.
18 Cisneros Decl., Ex. 872.
19 In light of this backdrop, the Court will now review some of the evidence that tends to
20 exclude the possibility that Defendants acted independently. Defendants have conceded that there
21 were a series of six bilateral agreements for the purpose of these motions: Pixar-Lucasfilm, Apple-
22 Adobe, Apple-Google, Apple-Pixar, Google-Intuit, and Google-Intel. All six of these agreements
23 contained nearly identical terms, precluding each pair from affirmatively soliciting any of each
24 others employees. ECF No. 531, October 24, 2013 Order Granting Plaintiffs Supplemental
25 Motion for Class Cert. (October Class Cert. Order) at 30. Defendants experts concede that they
26 are unaware of these types of long-term, all-employee agreements ever occurring between other
27 firms. See, e.g., Talley Depo. at 35.
28
3
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1 In addition, there is evidence that Defendants themselves recognized the similarities
2 between the agreements. For example, in an email, Lori McAdams (Pixar Vice President of Human
3 Resources and Administration), stated that effective now, well follow a gentlemans agreement
4 with Apple that is similar to our Lucasfilm agreement. October Class Cert. Order at 26. Moreover,
5 Google maintained an explicit do-not-cold-call list that grouped Apple, Intel, and Intuit together.
6 ECF No. 187, Ex. 29. Defendants also recognized that these agreements were not designed for
7 circulation, and tried to ensure that the agreements were known only to recruiters and executives
8 who had to enforce them. For example, Eric Schmidt (Google Executive Chairman, Member of the
9 Board of Directors, and former CEO) instructed one of his executives that Mr. Schmidt preferred
10 that the do-not-cold-call list be shared verbally, since I dont want to create a paper trail over
11 which we can be sued later. Id. at 27. Similarly, in response to a question from an Intel recruiter,
12 Paul Otellini (CEO of Intel and Member of the Google Board of Directors) stated regarding the
13 Intel-Google agreement we have a handshake no recruit between eric [Schmidt] and myself. I
14 would not like this broadly known. Id. at 28.
15 Furthermore, there is evidence that many of the Defendants knew about each others anti-
16 solicitation agreements. For example, according to Edward Catmull (Pixar President), Steve Jobs
17 (Co-Founder, Former Chairman, and Former CEO of Apple, Former CEO of Pixar) knew and
18 understood the Lucasfilm-Pixar agreement. Catmull Depo. at 61. Similarly, Eric Schmidt of
19 Google testified that it would be fair to extrapolate, based on Mr. Schmidts knowledge of Mr.
20 Jobs, that Mr. Jobs would have extended [anti-solicitation agreements] to others. Schmidt Depo.
21 at 169. Google recruiters were familiar that Apple and Adobe had an agreement. Flynn Depo. at 65.
22 Paul Otellini (CEO of Intel and Member of the Google Board of Directors) was told by Eric
23 Schmidt (Google Executive Chairman, Member of the Board of Directors, and former CEO) and
24 Sergey Brin (Google Co-Founder) about the Apple-Google agreement. Brin Depo. at 74; Schmidt
25 Depo. at 126. Intels own expert testified that Mr. Otellini was likely aware of Googles other
26 bilateral agreements by virtue of Mr. Otellinis membership on Googles board. Snyder Depo. at
27 258. In fact, in its Motion, Intel concedes for the purposes of the instant motions that Mr. Otellini
28 knew the contents of Googles do-not-cold-call list, which included Apple and Intel. Intel MSJ at 4.
4
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1 Next, these agreements were negotiated by a small group of intertwining high-level
2 executives at the Defendant firms. For example, Steve Jobs (Co-Founder, Former Chairman, and
3 Former CEO of Apple, Former CEO of Pixar) was personally involved in Apples anti-solicitation
4 agreements with Adobe, Google, and Pixar. With regard to Apples agreement with Google, Mr.
5 Jobs contacted Sergey Brin (Google Co-Founder) directly, which led Mr. Brin to recognize that
6 [b]asically, [Mr. Jobs] said if you hire a single one of these people that means war. Cisneros
7 Decl., Ex. 1871. The next day, Bill Campbell (Chairman of Intuit Board of Directors, Co-Lead
8 Director of Apple, and advisor to Google), a friend of Mr. Jobs, informed Mr. Jobs that Eric
9 Schmidt told me that he got directly involved and firmly stopped all efforts to recruit anyone from
10 Apple. Cisneros Decl., Ex. 199. Moreover, it was upon Mr. Campbells suggestion that Google
11 agreed to enter into its anti-solicitation agreement with Intuit, of which Mr. Campbell was Board
12 Chairman. Cisneros Decl., Ex. 597.
13 As discussed in some detail in this Courts October Class Certification Order, the same
14 small group of intertwining high-level executives were involved in strictly enforcing the
15 agreements. For example, when a Google recruiter contacted an Apple engineer, Steve Jobs (Co-
16 Founder, Former Chairman, and Former CEO of Apple, Former CEO of Pixar) forwarded the
17 message to Eric Schmidt (Google Executive Chairman, Member of the Board of Directors, and
18 former CEO), who had the recruiter terminated within the hour. Id. at 36. Bill Campbell (Chairman
19 of Intuit Board of Directors, Co-Lead Director of Apple, and advisor to Google) similarly emailed
20 Sergey Brin (Google Co-Founder), stating that Steve Jobs called me again and is pissed that we
21 are still recruiting his browser guy. Id. at 36. Paul Otellini (CEO of Intel and Member of the
22 Google Board of Directors) similarly forwarded an email regarding recruitment of an Intel
23 employee by a Google recruiter to Mr. Schmidt, Googles CEO, who responded by saying that, If
24 we find that a recruiter called into Intel, we will terminate the recruiter. Id. at 37.1 Edward
25 Catmull (Pixar President) similarly had direct discussions with Steve Jobs regarding whether Pixar
26 could communicate with specific individual Apple employees. Id. at 37-38. Bill Campbell
27 1
In an email to Mr. Campbell, Mr. Schmidt indicated that he directed a for-cause termination of
28 another Google recruiter, who had attempted to recruit an executive of eBay, which was on
Googles do-not-cold-call list. Cisneros Decl., Ex. 872.
5
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/*(%%%89:$;%(.<(=<()%%%>"?$%(.%3@%A()
!"#$%&''()*(+,%+-(./011123)45$6788'1119:;$<+=>,?>'@111A"B$C13D1?
1 (Chairman of Intuit Board of Directors, Co-Lead Director of Apple, and advisor to Google) was
2 also part of enforcing the Google-Intel agreement, because Mr. Campbell in communication with
3 Googles executives agreed that Google should call Paul Otellini (CEO of Intel and Member of the
4 Google Board of Directors) before making an offer to an Intel employee. October Class Cert. Order
5 at 28. That the agreements were entered into and enforced by a small group of intertwining high-
6 level executives bolsters the inference that the agreements were not independent.
7 Moreover, there is evidence that the Defendants shared confidential compensation
8 information with each other despite the fact that they considered each other competitors for talent.
9 For example, Adobe saw itself as in a talent war with Google and Apple and that Adobe was in a
10 six-horse compensation race against Google, Apple, Intuit, and three others. Id. at 47. Apple also
11 viewed Google and Intel as peer companies in terms of competition for talent. Id. at 48. Adobe
12 benchmarked its compensation against Google, Apple, and Intel, while Google compared its
13 compensation to Apple, Intel, Adobe, and Intuit; and Intel benchmarked against Apple and Google.
14 Id. at 47-48. The evidence shows that HR personnel at Intuit and at Adobe were communicating
15 about confidential information regarding how much compensation each firm would give and to
16 which employees that year. Cisneros Decl., Ex. 2812 (emphasis in original). Adobe and Intuit
17 shared confidential compensation information even though the two companies had no bilateral anti-
18 solicitation agreement, and Adobe viewed Intuit as a competitor in a six-horse compensation race.
19 Meanwhile, Google circulated an email that expressly discussed how its budget is comparable to
20 other tech companies and compared the precise percentage of Googles merit budget increases to
21 that of Adobe, Apple, and Intel. Cisernos Decl., Ex. 621. Google had Adobes precise percentage
22 of merit budget increases even though Google and Adobe had no bilateral anti-solicitation
23 agreement. Paul Otellini (CEO of Intel and Member of the Google Board of Directors) similarly
24 circulated information regarding peer companies bonus plans that he lifted from Google.
25 Cisneros Decl., Ex. 463. This Google document discusses bonuses at Apple and Intel. A reasonable
26 jury could infer that this confidential information could be shared safely by competitors only
27 because the anti-solicitation agreements squelched true competition.
28
6
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!"#$%&''()*(+,%+-(./011123)45$6788'1119:;$<+=>,?>'@111A"B$813C1?
1 Finally, there is evidence that Defendants, through many of the same executives who
2 negotiated and enforced the agreements at issue in this case, expanded and attempted to expand the
3 anti-solicitation agreements to non-Defendants, which undermines Defendants claim of
4 independent bilateral agreements. For example, Steve Jobs (Co-Founder, Former Chairman, and
5 Former CEO of Apple, Former CEO of Pixar) called Edward Colligan (former President and CEO
6 of Palm) to ask Mr. Colligan to enter into an anti-solicitation agreement and threatened patent
7 litigation against Palm if Palm refused to do so. Colligan Decl. 6-8. This was similar to Mr.
8 Jobs negotiation of the agreement with Adobe, which resulted from Mr. Jobs threat to start
9 aggressively recruiting Adobes employees absent such an agreement. Bill Campbell (Chairman of
10 Intuit Board of Directors, Co-Lead Director of Apple, and advisor to Google), in his capacity as an
11 advisor to Google, unsuccessfully sought to expand Googles anti-solicitation agreements to

12 Facebook by responding to an email about Facebooks solicitation of Googles employees with
13 Who should contact Sheryl [Sandberg] (or Mark [Zuckerberg]) to get a cease fire? We have to get
14 a truce. Mr. Chizen of Adobe, in response to discovering that Apple was recruiting employees of
15 Macromedia (a separate entity that Adobe would later acquire), helped ensure, through an email to
16 Mr. Jobs, that Apple would honor Apples pre-existing anti-solicitation agreements with both
17 Adobe and Macromedia after Adobes acquisition of Macromedia. Cisneros Decl., Exs. 1808,
18 1812. These expansions and attempted expansions of the anti-solicitation agreements suggest that
19 the agreements were not isolated, independent bilateral agreements, but rather were part of a
20 broader conspiracy.
21 In sum, the Court does not determine at the summary judgment stage which side should
22 prevail. Rather, the Courts task is only to determine whether the Plaintiffs have presented
23 sufficient evidence to warrant adjudication by a jury. For the reasons stated, the Court answers this
24 question in the affirmative. The similarities in the various agreements, the small number of
25 intertwining high-level executives who entered into and enforced the agreements, Defendants
26 knowledge about the other agreements, the sharing and benchmarking of confidential
27 compensation information among Defendants and even between firms that did not have bilateral
28 anti-solicitation agreements, along with Defendants expansion and attempted expansion of the
7
!"#$%&'()*+,*-).)/*012%%%23+45$67%(/*(%%%89:$;%(.<(=<()%%%>"?$%(=%3@%A()
!"#$%&''()*(+,%+-(./011123)45$6788'1119:;$<+=>,?>'@111A"B$?13C1?
1 anti-solicitation agreements constitutes evidence, viewed in the light most favorable to Plaintiffs,
2 that tends to exclude the possibility that defendants acted independently, such that the question of
3 whether there was an overarching conspiracy must be resolved by a jury. Accordingly, each of the
4 Defendants individual motions for summary judgment is DENIED.
6 IT IS SO ORDERED.
7 Dated: March 28, 2014 ________________________________

LUCY H. KOH !
8 United States District Judge
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8

Chan v. Timewarner Class Action Complaint

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1 Jared Peterson, Esq. (CA State Bar No. 270473)

FIRST AMENDED ANTITRUST CLASS ACTION COMPLAINT

3 Classes or individually, Subclass A, Subclass B, Subclass C, or Subclass

FIRST AMENDED ANTITRUST CLASS ACTION COMPLAINT

FIRST AMENDED ANTITRUST CLASS ACTION COMPLAINT

FIRST AMENDED ANTITRUST CLASS ACTION COMPLAINT

FIRST AMENDED ANTITRUST CLASS ACTION COMPLAINT

1 General Recruiting: For any non-exec position, we should be aware

FIRST AMENDED ANTITRUST CLASS ACTION COMPLAINT

FIRST AMENDED ANTITRUST CLASS ACTION COMPLAINT

1 25. The aforementioned anticompetitive effects were all a purpose of the

FIRST AMENDED ANTITRUST CLASS ACTION COMPLAINT

1 AOL and Google was extremely valuable.

FIRST AMENDED ANTITRUST CLASS ACTION COMPLAINT

11 39. The aforementioned anticompetitive effects were all a purpose of the

12 Sensitive Company Agreement and as explained below served as the impetus to

13 the bid-rigging scheme.

15 no-hire agreement was an illegal per se violation of Federal antitrust laws.

16 i. Plaintiffs fully incorporate by reference the findings by Federal

17 Judge Koh in Case No. 5:11-cv-02509: ORDER DENYING DEFENDANTS

28 Judge Koh in Document#147 Filed 08/20/15 in Case No:5:14-cv-04062-LHK:

FIRST AMENDED ANTITRUST CLASS ACTION COMPLAINT

5 42. According to company documents and testimony of former head of

FIRST AMENDED ANTITRUST CLASS ACTION COMPLAINT

FIRST AMENDED ANTITRUST CLASS ACTION COMPLAINT

FIRST AMENDED ANTITRUST CLASS ACTION COMPLAINT

FIRST AMENDED ANTITRUST CLASS ACTION COMPLAINT

1 admits it was customary in its dealings with Google to make agreements to

5 iii. and so the court looks to the agreement for elucidation of

FIRST AMENDED ANTITRUST CLASS ACTION COMPLAINT

28 63. Defendant News Corporation (News Corp) is a Delaware

FIRST AMENDED ANTITRUST CLASS ACTION COMPLAINT

3 Americas, New York, New York.

26 67. Defendant Edgar Bronfman Jr was a Director of IAC/Interactive

FIRST AMENDED ANTITRUST CLASS ACTION COMPLAINT

5 then one month during 2005 as Officers or Directors of a Defendant SubClass A

FIRST AMENDED ANTITRUST CLASS ACTION COMPLAINT

FIRST AMENDED ANTITRUST CLASS ACTION COMPLAINT

1 former Intermix CEO)

FIRST AMENDED ANTITRUST CLASS ACTION COMPLAINT

1 audience measurement audit firms like Comscore and Nielsen Netratings,

FIRST AMENDED ANTITRUST CLASS ACTION COMPLAINT

24 competitor Yahoo is a September 7, 2005 email at 10:52PM Google CEO Eric

FIRST AMENDED ANTITRUST CLASS ACTION COMPLAINT

FIRST AMENDED ANTITRUST CLASS ACTION COMPLAINT

1 Substantial Conflicts of Interest with Respect to Verisign

FIRST AMENDED ANTITRUST CLASS ACTION COMPLAINT

1 91. Allen & Company, a NY investment Bank provided investment

FIRST AMENDED ANTITRUST CLASS ACTION COMPLAINT

1 93. Private Equity firm VantagePoint Venture Partners (VPVP)

FIRST AMENDED ANTITRUST CLASS ACTION COMPLAINT

6 the AskJeeves acquisition.

7 ii. On or around July 13, 2005 News Corporation engaged Zakour

18 97. So, in approximately 2004, Google began developing trust

19 relationships with numerous other companies in an effort to ensure the sale of

21 to enter into a search contract for myspace.com.namely, News Corp.

22 i. Google in early 2004 hired John Hanke as a senior executive.

FIRST AMENDED ANTITRUST CLASS ACTION COMPLAINT

12 Corporation, AskJeeves, IAC, and other defendants to collude to gain economic

13 benefits by delaying closing of a competitive EUNI MySpace search engine

15 News Corporation acquiring 100% of eUniverse in September 2005. This

FIRST AMENDED ANTITRUST CLASS ACTION COMPLAINT

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