Free Declaration - District Court of Delaware - Delaware

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EXHIBIT A

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BOCA RATON CHICAGO LONDON LOS ANGELES NEW ORLEANS NEW YORK NEWARK PARIS SÃO PAULO WASHINGTON

One International Place 22nd Floor Boston, MA 02110-2600 Telephone 617.526.9600 Fax 617.526.9899

Steven M. Bauer Member of the Firm Direct Dial: 617.526.9700 [email protected]

April 17, 2008 Via Email and U.S. Mail Donald Puckett, Esq. The Ware Firm 1701 North Market Street, Suit 330 Dallas, Texas 75202-2088 Re: Dear Don: Thank you for taking the time yesterday to speak with me. As per our conversation, the parties have agreed to a two week extension for LivePerson, Inc. ("LivePerson") to oppose the motions to dismiss brought by NextCard LLC ("NextCard") and Marshall Credit Strategies, LLC ("MCS"), to allow us time to further discuss potential agreement on a period of targeted jurisdictional discovery. As per your request, I have set forth below a sample list of documents and things that we are seeking from NextCard, MCS, and the related entities mentioned in the affidavits accompanying the motions to dismiss, including Warbler Technologies, L.P. ("Warbler"), Cardinal Partners, L.P. ("CP"), Cardinal Partners 2000, L.P. ("CP 2000"), CD Fund, L.P. ("CD Fund"), Fintan Master Fun, Ltd. ("Fintan"), and CPMG, Inc. ("CPMG"). As part of any agreement, I would expect that you would agree to accept service of subpoenas on behalf of the entities listed here which are not presently parties to the lawsuit. 1. 2. All documents and things referred to by any affiant in support of NextCard and MCS's Motions to Dismiss, filed on April 7, 2008. Documents sufficient to verify all statements made by any affiant in support of NextCard and MCS's Motions to Dismiss, filed on April 7, 2008. LivePerson Inc. v. NextCard LLC and Marshall Credit Strategies, LLC

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Donald Puckett, Esq. April 17, 2008 Page 2 3. 4. All documents and things concerning LivePerson, Inc. All documents and things concerning NextCard's representation that "it has no basis to know, one way or the other, whether LivePerson supplies software to the defendants that NextCard, LLC will accuse of infringement." See NextCard's Motion to Dismiss at 15, filed on April 7, 2008. All contacts between NextCard, MCS, Warbler, CP, CP 2000, CD Fund, Fintan, or CPMG with Delaware or any companies based or incorporated in Delaware. Documents sufficient to show the organization, management, control, ownership, common employees, date(s) and location(s) of incorporation, business location(s), and financial relationships of and between MCS, NextCard, Warbler, CPMG, CP, CP 2000, CD Fund, Fintan and any additional related corporate entities. Documents sufficient to show the basis for and the reasons behind the decisions to incorporate MCS, Warbler, and NextCard, including but not limited to, all board of director meeting minutes discussing strategies for or motivations behind corporate structures of those entities, and all communications between CPMG, CP, CP 2000, CD Fund, and Fintan and their agents in connection with and leading up to these incorporations. All documents and things from MCS, MCS's Managing Members, management, investors and other entities with an ownership or management interest in MCS, including but not limited to CPMG, CP, CP 2000, CD Fund, and Fintan, concerning the proposed purchase of and decision to purchase patents from NextCard, Inc. ("the NextCard Patents"), including, but not limited to, all documents and correspondence concerning the value of the NextCard Patents; any due diligence performed on the NextCard Patents; any plans to transfer the NextCard Patents after acquisition; all documents concerning and leading up to the execution of the Patent Purchase Agreement between NextCard Inc. and MCS, dated March 22, 2007; all documents concerning the assignment of the NextCard Patents from MCS to NextCard; and strategy for enforcing the NextCard Patents after their acquisition. All documents concerning MCS's efforts to comply with ¶ 10.11 of the Patent Purchase Agreement between NextCard Inc. and MCS, dated March 22, 2007.

5. 6.

7.

8.

9.

We would also expect to serve interrogatories related to these same categories of information.

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Donald Puckett, Esq. April 17, 2008 Page 3 In addition, we would want your agreement to take the depositions of at least James Traweek and James Bateman, who provided affidavits in support of NextCard and MCS's motions to dismiss. We assume that Mr. Traweek or Mr. Bateman would be able to authenticate those documents produced by the Defendants and other parties identified above during their depositions, but if they are unable to do so, we might need the deposition of an individual(s) who could do so. That issue, however, could be deferred until we see the documents. I look forward to hearing from you as soon as possible whether your clients will agree to provide us with this discovery, absent a court order. Can we discuss this tomorrow (Friday) at 10 a.m. EDT? Sincerely,

Steven M. Bauer

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EXHIBIT B

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THE WARE FIRM
Attorneys At Law DALLAS 1701 N. Market Suite 330 Dallas, Texas 75202 Phone: 214.744.5000 Fax: 214.744.5013 Donald Puckett
[email protected]

AUSTIN 300 West 6th Street, Suite 1700 Austin, Texas 78701 Phone: 512-692-8684 Fax: 512-692-8744

April 21, 2008 Via email to: [email protected] Steven M. Bauer Proskauer Rose LLP One International Place, 22nd Floor Boston, MA 02110-2600 Re: Dear Steven: I am writing in response to your letter of April 17 regarding LivePerson's request for my clients to agree to voluntary jurisdictional discovery. Since we spoke about this issue on the phone, I have taken a close look at the relevant authorities, and I have concluded that it is very unlikely the Court will order jurisdictional discovery on the facts of this case. In particular, I urge you to consider Judge Sleet's opinion in Telcordia Technologies, Inc. v. Alcatel, 2005 U.S. Dist. LEXIS 10194 (2005). In that case, Judge Sleet denied the plaintiff any jurisdictional discovery at all in light of his conclusion that the plaintiff's jurisdictional theories were frivolous. In our case, my clients believe LivePerson's jurisdictional theories are not simply wrong, but in fact are frivolous. Even if the Court considers MCS's and NextCard's Delaware contacts together ­ a point that we certainly do not concede ­ the Defendants' only contact with Delaware is the purchase of the patents there. That contact is only tangentially related to LivePerson's substantive patent claims, and does not have the required nexus with LivePerson's claims to support specific jurisdiction. As we stated in our briefs supporting the motions to dismiss, we are unaware of any case authority supporting your apparent contention that Delaware has personal jurisdiction over all substantive patent disputes related to the Patents-In-Suit merely because those patents passed through a Delaware bankruptcy. Indeed, this novel theory of personal jurisdiction is contrary to well established Federal Circuit cases such as Red Wing Shoe. Moreover, additional jurisdictional discovery is not needed to flesh-out this jurisdictional theory because all of the relevant specific jurisdictional contacts are already before the Court. Jurisdictional Discovery in Liveperson v. NextCard LLC

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Steven M. Bauer April 21, 2008 Page 2

The lion's share of your requested discovery is precisely the sort of "fishing expedition" disfavoured by Judge Sleet in the Telecordia opinion. LivePerson appears to be pursuing a theory that would establish general jurisdiction over one or more of the Defendants' parent corporations, and then attempt to impute general jurisdiction down-stream to the subsidiaries. This line of inquiry also is frivolous for at least two reasons. First, LivePerson has no reason to believe that any of the Defendants' parent corporations are subject to general jurisdiction in Delaware. If any of the parent corporations were conducting "systematic and continuous" business in Delaware, then you would be able to find some publicly available evidence documenting that. Second, even if LivePerson could establish general jurisdiction over one of the parent corporations, you would be required to show that the parent corporation was acting as the general agent or alter ego of NextCard or MCS in order to impute these jurisdictional contacts down-stream. In other words, even if NextCard or MCS were general agents of their parent corporations ­ a point that we again do not concede ­ this would not be a basis for imputing the parent corporation's general jurisdiction contacts down-stream to the subsidiary. It goes without saying that it would be an extraordinary case indeed when the parent corporation is the general agent or alter ego of the subsidiary, and I feel quite confident that you cannot present any evidence suggesting any possibility that you will be able to prove as much with your requested discovery. In short, we believe all of the relevant jurisdictional contacts (i.e. all contacts concerning the Patents-In-Suit) are before the Court based upon the affidavits submitted in support of the motions to dismiss, and LivePerson's attempt to explore jurisdictional contacts unrelated to the patents is overreaching. Notwithstanding our firm belief that you are unlikely to prevail on a motion seeking courtordered jurisdictional discovery, my clients will voluntarily agree to some limited discovery to permit LivePerson a reasonable opportunity to test the veracity of the affidavits submitted to the Court. Specifically, my clients will agree to the following discovery on the conditions set forth below. We will agree to produce all documents referenced in the affidavits of James Traweek and John Bateman, and we will present each of these two witnesses for depositions of no more than two hours each at my office in Dallas, Texas. The conditions are: (1) that the documents and deposition transcripts be protected under a protective order with an "attorneys eyes only" designation, and (2) LivePerson agrees in advance that it will not seek additional discovery from the Court following this voluntary discovery. We feel this is a reasonable offer of limited jurisdictional discovery that allows LivePerson to test the affidavits without imposing undue burden on my clients. If this proposal is not acceptable to LivePerson, then please be advised that we will oppose any discovery motion you intend to file with

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Steven M. Bauer April 21, 2008 Page 3 the Court by asking the Court to deny all jurisdictional discovery, as Judge Sleet did in the Telcordia case. Let me raise one independent issue. As you know, the face of LivePerson's complaint recognizes that MCS no longer retains any ownership interest in the Patents-In-Suit, and you should therefore agree that MCS is not a proper party to the lawsuit. We feel that the inclusion of MCS in the lawsuit is not warranted, and it is incumbent upon LivePerson to immediately dismiss MCS from the lawsuit. We respectfully ask that you do so immediately. I look forward to conferring with you and/or Kimberly Mottley on these issues on Tuesday, April 22, 2008 at 3pm CST (4pm EST). Sincerely,

Donald Puckett cc: Kimberly Mottley (via email to [email protected])

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EXHIBIT C

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BOCA RATON CHICAGO LONDON LOS ANGELES NEW ORLEANS NEW YORK NEWARK PARIS SÃO PAULO WASHINGTON

One International Place Boston, MA 02110-2600 Telephone 617.526.9600 Fax 617.526.9899

Kimberly A. Mottley Attorney at Law Direct Dial 617.526.9616 [email protected]

April 24, 2008 By E-Mail Donald Puckett, Esq. Monts & Ware LLP 1701 N Market St Suite 330 Dallas, Texas 75202-1897 Re: Dear Don: I write to follow-up on our April 22, 2008 call concerning whether we will be able to reach a compromise position on jurisdictional discovery in the above-referenced matter. As I expressed during our call, we disagree with your argument that jurisdiction is lacking in Delaware. As I understand it, your clients' primary concern is whether the discovery we seek will be aimed towards establishing specific jurisdiction (i.e., related to the patents-in-suit or LivePerson), or general jurisdiction (i.e., looking to all contacts of your clients, including CPMG, Inc. and Warbler Technologies, LP, with Delaware, including those wholly unrelated to the patents-in-suit or LivePerson). As we understand the facts, we may argue general jurisdiction, but we can mostly limit the jurisdictional discovery we're seeking here to discovery related to specific jurisdiction, along with corporation/operations information regarding the relations of the four entities as discussed during our call and set out in paragraphs 6 and 7 of our April 17, 2008 letter. The only change to our April 17 proposal this agreement would require would be dropping our request in paragraph 5. I also agree that we should be able to reach agreement on a reasonable number of document requests and interrogatories. Basically, you have our document requests in the April 17, 2008 letter (but for removal of paragraph 5 as discussed above), and I do not anticipate much change to those. As to interrogatories, 15 per answering party should be sufficient. LivePerson, Inc. v. NextCard, LLC and Marshall Credit Strategies, LLC

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Donald Puckett, Esq. April 24, 2008 Page 2 Please let me know if we can discuss this further on Monday, April 28, 2008, at 4:00 p.m. Eastern, once you've had the chance to discuss with your clients.

Regards,

Kimberly A. Mottley

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EXHIBIT D

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EXHIBIT E

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EXHIBIT F

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THE WARE FIRM
Attorneys At Law DALLAS 1701 N. Market Suite 330 Dallas, Texas 75202 Phone: 214.744.5000 Fax: 214.744.5013 Donald Puckett
[email protected]

AUSTIN 300 West 6th Street, Suite 1700 Austin, Texas 78701 Phone: 512-692-8684 Fax: 512-692-8744

May 1, 2008 Via email to: [email protected] Kimberly Mottley Proskauer Rose LLP One International Place, 22nd Floor Boston, MA 02110-2600 Re: Dear Kim: I was disappointed to learn today that LivePerson is not only going forward with its jurisdictional theories against NextCard and MCS, but that LivePerson also intends to add two additional parties to this lawsuit, neither of which have any direct ownership interest in the patents. I was also disappointed to learn that LivePerson now wants to back-track in our negotiations over the scope of jurisdictional discovery. It was my understanding LivePerson had agreed that discovery would not be necessary regarding topic 5 from Mr. Bauer's April 17 letter (discovery related to NextCard's corporate parents about Delaware activities that are not specifically related to the patents). Now, however, it appears that LivePerson has changed its mind since you are insisting on discovery regarding CPMG, Inc's investments in Delaware and relationships to Delaware companies that are not related to the patents at all. In view of these developments, I believe we are at an impasse over jurisdictional discovery. We believe that LivePerson is setting off on a fishing expedition and casting its line in waters that are far removed from anything relevant to jurisdiction. Following our telephone call this afternoon, I discussed the situation with my client and can confirm the following for you: 1. Defendants oppose your motion for leave to amend your pleadings to add additional parties with no ownership interest in the patents. 2. At this time, Defendants oppose any and all request you have for jurisdictional discovery. As I have told you throughout this process, if we do not reach a global resolution on the Jurisdictional Discovery in Liveperson v. NextCard LLC

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Kimberly Mottley May 1, 2008 Page 2 scope of discovery, then we reserve our right to argue that jurisdictional discovery should be denied altogether, as Judge Sleet held in the Telcordia case. Kim, we have attempted in good faith to permit you some limited discovery to test the veracity of the affidavits we submitted in support of the motions to dismiss, but we simply cannot agree to the broad scope of discovery that your client wants to pursue. Sincerely,

Donald Puckett cc: Steven Bauer (via email to [email protected])