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1 CAROLYN HOECKER LUEDTKE (SBN: 207976) Carolyn.Luedtke@mto.com 2 JONATHAN H. BLAVIN (SBN: 230269) Jonathan.Blavin@mto.com 3 MUNGER, TOLLES & OLSON LLP 560 Mission Street, 27th Floor 4 San Francisco, CA 94015 Telephone: (415) 512-4000 5 Facsimile: (415) 512-4077 6 KELLY M. KLAUS (SBN: 161091) Kelly.Klaus@mto.com 7 LAURA K. WIRTH (SBN: 280800) Laura.Wirth@mto.com 8 MUNGER TOLLES & OLSON LLP 355 South Grand Avenue, Thirty-Fifth Floor 9 Los Angeles, CA 90071-9100 Telephone: (213) 683-9100 10 Facsimile: (213) 687-3702 11 ROBERT N. KLIEGER (SBN: 192962) rklieger@kbkfirm.com 12 KENDALL BRILL & KLIEGER LLP 10100 Santa Monica Blvd., Suite 1725 13 Los Angeles, California 90067 Telephone: (310) 556-2700 14 Facsimile: (310) 556-2705 15 Attorneys for Plaintiff/Counter-Defendant Electronic Arts Inc. 16 17 18 19 20 ELECTRONIC ARTS INC., 21 22 v. Plaintiff, CASE NO. CV 12 4099 SI NOTICE OF MOTION AND MOTION TO STRIKE COUNTERCLAIM PURSUANT TO CAL. CODE CIV. PROC. 425.16; MEMORANDUM OF POINTS AND AUTHORITIES Judge: Date: Time: Crtrm.: Hon. Susan Illston January 18, 2013 9:00 a.m. 10 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

23 ZYNGA INC., 24 25 26 AND RELATED COUNTERCLAIMS 27 28

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Defendant.

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1 2

TO ZYNGA INC. AND ITS COUNSEL OF RECORD: PLEASE TAKE NOTICE THAT on January 18, 2013, at 9:00 a.m., or as soon thereafter

3 as counsel may be heard, in the courtroom of the Honorable Susan Illston, located in the United 4 States Courthouse, 450 Golden Gate Avenue, San Francisco, California 94102, Plaintiff and 5 Counter-Defendant Electronic Arts Inc. (EA) will and hereby does move this Court to Strike the 6 Counterclaim of Counter-Claimant Zynga Inc. (Zynga) pursuant to California Code of Civil 7 Procedure 425.16 (the anti-SLAPP statute). 8 9 This Motion is made upon the following grounds: Zyngas first claim for relief, for alleged breach of contract, asserts that EA breached the

10 terms of certain settlement agreements between the parties by filing its Complaint for Copyright 11 Infringement in this action. EAs filing of its complaint is a core protected activity under the anti12 SLAPP statute, such that Zynga is required to establish a probability of prevailing on its breach of 13 contract claim in order to survive EAs motion to strike. The plain and unambiguous terms of the 14 settlement agreements neither released the copyright infringement claim asserted by EA nor 15 restricted EAs filing of its complaint. Zynga therefore cannot establish a probability of prevailing 16 on its first claim for relief. 17 Zyngas second claim for relief charges EA with having violated California Business and

18 Professions Code 17200 by threatening to file an action against Zynga in connection with its 19 practices in soliciting, recruiting, and hiring EA employees. EAs alleged threats to initiate 20 litigation arise from its constitutionally protected right to petition for redress of grievances and are 21 protected activities under the anti-SLAPP statute, such that Zynga is required to establish a 22 probability of prevailing on its Section 17200 claim in order to survive EAs motion to strike. 23 Zynga cannot make that showing. EAs alleged threats are protected by Californias litigation 24 privilege and therefore cannot serve as a basis for Zyngas Section 17200 claim. Moreover, even 25 in the absence of that privilege, Zynga can neither plead nor prove any unlawful or unfair 26 business practice within the meaning of Section 17200. 27 Because each of Zyngas claims for relief is directed at protected activities under

28 Californias anti-SLAPP statute, and because Zynga cannot establish a probability of prevailing on 120924.1 CV 12 4099 SI 1
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1 either claim, Zyngas Counterclaim must be stricken in its entirety. EA is further entitled to 2 recover all of the attorneys fees and costs it incurs in connection with this motion and the 3 accompanying motion to dismiss. See Cal. Civ. Proc. Code 425.16(c)(1). 4 This Motion is based on this Notice of Motion, the attached Memorandum of Points and

5 Authorities, the Declaration of Stephen Bene filed concurrently herewith, all of the pleadings, 6 files, and records in this proceeding, all other matters of which the Court may take judicial notice, 7 and any argument or evidence that may be presented to or considered by the Court prior to its 8 ruling. 9 Dated: October 26, 2012 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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MUNGER TOLLES & OLSON LLP KENDALL BRILL & KLIEGER LLP

By: /s/ Robert N. Klieger Robert N. Klieger Attorneys for Plaintiff/Counter-Defendant Electronic Arts Inc.

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1 2 3 I. 4 II. 5 6 7 8 9 10 11 12 III. 13 14 15 1. 16 2. 17 18 19 20 21 22 1. 23 2. 24 25 26 (b) 27 28

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TABLE OF CONTENTS

INTRODUCTION ................................................................................................................. 1 BACKGROUND ................................................................................................................... 2 A. Zyngas Predatory Recruiting And Hiring Practices................................................. 2 1. 2. 3. 4. B. C. Steve Chiang ................................................................................................. 2 John Schappert .............................................................................................. 3 Travis Boatman and Jeff Karp ...................................................................... 3 Barry Cottle ................................................................................................... 4

EAs Present Complaint For Copyright Infringement .............................................. 5 Zyngas Counterclaim ............................................................................................... 5

ARGUMENT ........................................................................................................................ 5 A. B. Californias Anti-SLAPP Statute .............................................................................. 5 Zyngas First Claim For Relief, For Breach of Contract, Is Barred By The Anti-SLAPP Statute .................................................................................................. 6 Zyngas First Claim For Relief Arises From Protected Activity .................. 6 Zynga Cannot Establish A Probability Of Prevailing On Its First Claim For Relief ............................................................................................ 7 (a) (b) EA Did Not Release Its Claim For Copyright Infringement ............. 7 The Dispute Resolution Provisions Of The Settlement Agreements Do Not Apply To EAs Copyright Infringement Claim ................................................................................................. 9

C.

Zyngas Second Claim For Relief, For Violation Of California Business & Professions Code 17200, Is Barred By The Anti-SLAPP Statute ........................ 10 Zyngas Second Claim For Relief Arises From Protected Activity ............ 10 Zynga Cannot Establish A Probability Of Success On Its Second Claim For Relief .......................................................................................... 12 (a) Zyngas Second Claim For Relief Is Barred By The Litigation Privilege .......................................................................... 12 Zynga Cannot Prove An Unlawful Or Unfair Business Practice Within The Meaning Of Section 17200 ............................ 13

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1 2 3 IV. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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D.

EA Is Entitled To Recover Its Attorneys Fees And Costs Incurred In Connection With Its Motion To Strike And Accompanying Motion To Dismiss .................................................................................................................... 15

CONCLUSION ................................................................................................................... 16

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1 TABLE OF AUTHORITIES 2 3 Cases 4 Action Apartment Assn, Inc. v. City of Santa Monica, 41 Cal. 4th 1232 (2007)....................................................................................................... 12 5 Baker Pac. Corp. v. Suttles, 6 220 Cal. App. 3d 1148 (1990) ............................................................................................... 7 7 Blanchard v. DIRECTV, Inc., 123 Cal. App. 4th 903 (2004) ................................................................................... 11, 12-13 8 Briggs v. Eden Council for Hope & Opportunity, 9 19 Cal. 4th 1106 (1999)................................................................................................. 11, 12 10 Carr v. Asset Acceptance, LLC, No. CV F 11-0890 LJO GSA, 2011 WL 3568338 (E.D. Cal. Aug. 12, 2011) ................... 12 11 Cel-Tech Commcns, Inc. v. L.A. Cellular Tel. Co., 12 20 Cal. 4th 163 (1999)................................................................................................... 14, 15 13 Feist Publns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) .............................................................................................................. 8 14 Feldman v. 1100 Park Lane Assocs., 15 160 Cal. App. 4th 1467 (2008) ...................................................................................... 11, 13 16 Fin. Corp. of Am. v. Wilburn, 189 Cal. App. 3d 764 (1987) ............................................................................................... 12 17 Girafa.com, Inc. v. Alexa Internet, Inc., 18 No. C-08-02745 RMW, 2008 WL 4500858 (N.D. Cal. Oct. 6, 2008) ................................ 15 19 Graham-Sult v. Clainos, No. CV 10-4877 CW, 2012 WL 994754 (N.D. Cal. Mar. 23, 2012) ............................. 15-16 20 Kearney v. Foley & Lardner, 21 553 F. Supp. 2d 1178 (S.D. Cal. 2008) ............................................................................... 16 22 Ketchum v. Moses, 24 Cal. 4th 1122 (2001)....................................................................................................... 15 23 Khoury v. Malys of Cal., Inc., 24 14 Cal. App. 4th 612 (1993) ........................................................................................... 13-14 25 L.A. Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841 (9th Cir. 2012) ................................................................................................. 8 26 Marsh v. Anesthesia Servs. Med. Grp., Inc., 27 200 Cal. App. 4th 480 (2011) .............................................................................................. 15 28
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1 Metabolife Intl, Inc. v. Wornick, 213 F. Supp. 2d 1220 (S.D. Cal. 2002) ............................................................................... 16 2 Navellier v. Sletten, 3 29 Cal. 4th 82 (2002)......................................................................................................... 6, 7 4 Pardi v. Kaiser Found. Hosps., 389 F.3d 840 (9th Cir. 2004) ................................................................................................. 8 5 Parrish v. Natl Football League Players Assn, 6 534 F. Supp. 2d 1081 (N.D. Cal. 2007) .............................................................................. 14 7 Peoples Choice Wireless, Inc. v. Verizon Wireless, 131 Cal. App. 4th 656 (2005) .............................................................................................. 15 8 Powertech Tech., Inc. v. Tessera, Inc., 9 No. C 11-6121 CW, 2012 WL 1835699 (N.D. Cal. May 21, 2012) ..................................... 7 10 Price v. Stossel, 620 F.3d 992 (9th Cir. 2010) ................................................................................................. 6 11 Rebel Oil Co., Inc. v. Atl. Richfield Co., 12 51 F.3d 1421 (9th Cir. 1995) .......................................................................................... 14-15 13 Ret. Grp. v. Galante, 176 Cal. App. 4th 1226 (2009) ............................................................................................ 14 14 Rohde v. Wolf, 15 154 Cal. App. 4th 28 (2007) ................................................................................................ 11 16 Rubin v. Green, 4 Cal. 4th 1187 (1993)......................................................................................................... 12 17 Seltzer v. Barnes, 18 182 Cal. App. 4th 953 (2010) .............................................................................................. 13 19 Silberg v. Anderson, 50 Cal. 3d 205 (1990) .................................................................................................... 12, 13 20 Sonoma Foods, Inc. v. Sonoma Cheese Factory, LLC, 21 634 F. Supp. 2d 1009 (N.D. Cal. 2007) .............................................................................. 13 22 Stearns v. Select Comfort Retail Corp., No. 08-2746 JF, 2009 WL 1635931 (N.D. Cal. June 5, 2009) ........................................... 14 23 Three Boys Music Corp. v. Bolton, 24 212 F.3d 477 (9th Cir. 2000) ................................................................................................. 9 25 U.S. ex rel. McLean v. Cnty. of Santa Clara, No. C05-01962 HRL, 2006 WL 2067061 (N.D. Cal. July 25, 2006) ................................ 6-7 26 U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., 27 190 F.3d 963 (9th Cir. 1999) ................................................................................................. 6 28
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1 Vess v. CibaGeigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003) ............................................................................................... 6 2 Villacres v. ABM Indus. Inc., 3 189 Cal. App. 4th 562 (2010) ................................................................................................ 8 4 Weco Supply Co. v. Sherwin-Williams Co., No. 1:10-CV-00171 AWI BAM, 2012 WL 1910078 (E.D. Cal. May 25, 2012) ......... 14, 15 5 6 Statutes 7 Cal. Bus. & Prof. Code 16600 ...................................................................................................... 14 8 Cal. Bus. & Prof. Code 17200 ...................................................................................................... 10 9 Cal. Civ. Proc. Code 425.16 ........................................................................................... 1, 6, 15, 16 10 Cal. Civ. Code 47 ......................................................................................................................... 12 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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1 2 3 4

MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION In June 2012, Defendant and Counter-Claimant Zynga Inc. (Zynga) released its social

5 networking game entitled The Ville. Like most games released by Zynga, The Ville was not an 6 original creation, but was instead a slavish copy of a game developed by one of Zyngas 7 competitorsin this instance, The Sims Social developed by Plaintiff and Counter-Defendant 8 Electronic Arts Inc. (EA). EA commenced this action to redress Zyngas willful infringement of 9 EAs copyright. 10 Through its Counterclaim, Zynga wants to litigate an entirely different case, albeit one that

11 also has its roots in Zyngas unlawful business practices. Specifically, Zyngas Counterclaim 12 focuses on EAs efforts beginning in March 2010 to redress Zyngas violations of its contractual, 13 common law, and statutory obligations in connection with its recruitment and hiring of certain EA 14 executives. Zynga, of course, has consistently denied that there was anything improper about its 15 recruiting and hiring practices. With its Counterclaim, however, Zynga goes further. Zynga 16 charges that EA somehow behaved improperly by threatening to sue Zynga for its unlawful 17 practices, and that the parties settlements of those disputes somehow authorized Zyngas willful 18 infringement of EAs copyright in The Sims Social. Zynga is wrong on both counts. 19 EA brings this special motion to strike Zyngas Counterclaim pursuant to California Code

20 of Civil Procedure 425.16 (the anti-SLAPP statute). The alleged conduct at the heart of 21 Zyngas claims for reliefnamely, EAs filing of its Complaint for Copyright Infringement and 22 its threats to seek redress for Zyngas unlawful recruiting and hiring practicesare core activities 23 in furtherance of EAs right to petition for grievances and fall squarely within the protections of 24 the anti-SLAPP statute. To defeat EAs motion, Zynga therefore bears the burden of 25 demonstrating a probability of prevailing on each of its claims for relief. As discussed below and 26 in EAs accompanying motion to dismiss, Zynga cannot adequately plead, much less prove, its 27 claims for alleged breach of contract or violation of Section 17200 of the California Business and 28 Professions Code. The Court should therefore strike Zyngas Counterclaim in its entirety and CV 12 4099 SI 1
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1 award EA all of the attorneys fees and costs it has incurred, and hereafter incurs, in connection 2 with the briefing and any hearing on these motions. 3 4 5 A. 6 II. BACKGROUND Zyngas Predatory Recruiting And Hiring Practices Beginning at least as early as March 2010, Zynga engaged in a concerted effort to poach

7 high-level executives from EA who possessed competitively sensitive information regarding EAs 8 strategies and plans in the social gaming market. From January 2010 through January 2012, 9 Zynga poached five high-level executives (as well as more than four dozen other EA employees) 10 from EA who possessed competitively sensitive information regarding EAs strategies and plans 11 in the social gaming market. Declaration of Stephen Bene (Bene Declaration) 3. These five 12 were the executives who were most directly involved in, and possessed the most competitively 13 sensitive information regarding, EAs plans to develop and release social gaming products in 14 direct competition with Zynga. Id. 15 While recruiting from a competitor, standing alone, is generally lawful, it may not be

16 accomplished in a manner that violates governing contractual, common law, and statutory 17 standards. When Zyngas activities crossed the line (repeatedly) from permissible recruiting to 18 violations of its legal obligations, EA strongly objected and threatened Zynga with litigation. 19 Id. 5. In each such instance, Zynga avoided litigation through grudging (and typically short20 lived) commitments to conform its recruiting and hiring practices to the governing contracts and 21 law. Id. 7, 9, 11. 22 23 1. Steve Chiang

One of the first key EA executives hired by Zynga was Steve Chiang, who served as EA

24 SPORTSs Senior Vice President for Development and Group General Manager. Id. 6. In 25 early 2010, Chiang was just finishing the product design specifications for EAs first sports26 related Facebook game and was privy to all of EAs product and marketing plans for the social 27 and mobile gaming markets for the coming yearproducts and plans that were specifically 28 designed to compete head-to-head with Zynga. Id. On February 5, 2010, Chiang abruptly 120924.1 CV 12 4099 SI 2
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1 resigned from EA to join Zynga, and thereafter apparently helped Zynga identify and recruit other 2 of his former colleagues to Zynga. Id. Immediately following Chiangs departure, EA engaged 3 counsel in Northern California (where Zynga is based) and Florida (where Chiang had been 4 employed) to prepare a complaint and preliminary injunction motion seeking to enjoin Zyngas 5 misuse of EAs competitively sensitive information and Chiangs violations of his contractual 6 obligations to EA. Id. 7. Rather than face litigation, Zynga agreed to enter into a Confidential 7 Settlement and Release Agreement dated March 15, 2010. Id. 8 9 2. John Schappert

Zyngas next EA recruit was John Schappert, EAs Chief Operating Officer and the most

10 senior executive responsible for EAs social and mobile gaming businesses. Id. 8. It was 11 apparent that Zynga had targeted Schappert because of his critical position inside EA and his 12 intimate knowledge of EAs strategies and product plans in the social and mobile gaming markets, 13 including as reflected in EAs just-recently-completed operating plan for the coming fiscal year. 14 Id. Schappert also had detailed knowledge regarding the key executives and other personnel at EA 15 who were engaged in EAs social and mobile games businesses, which Zynga apparently 16 leveraged in subsequent recruiting. Id. 17 On April 4, 2011, EA and Zynga entered into a Stand-Still and Hold Harmless Agreement,

18 pursuant to which EA released Zynga from then-existing claims related to Zyngas recruitment of, 19 offer of employment to, or discussions with Schappert. Id. 9; Countercl., Ex. A. EA and Zynga 20 further agreed to refrain from initiating claims against one another related to Schapperts 21 recruitment for a specified period. Countercl., Ex. A When Schappert eventually chose to accept 22 Zyngas offer of employment, EA affirmed its release in an exhibit to the Stand-Still and Hold 23 Harmless Agreement (collectively, the Spring 2011 Agreement). Id. 24 25 3. Travis Boatman and Jeff Karp

Barely four months later, Zynga targeted two more EA executives who had critical roles in

26 EAs plans to compete with Zynga in the Facebook and mobile gaming markets: Travis Boatman, 27 EAs Senior Vice President in charge of developing games for mobile devices, who was 28 responsible for the development of more than a dozen games in EAs pipeline, including games 120924.1 CV 12 4099 SI 3
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1 that were designed to compete directly with Zynga; and Jeff Karp, the head of EAs casual games 2 division, who had detailed knowledge regarding EAs marketing strategies in the social gaming 3 market. Bene Decl. 10. By this point in time, a clear pattern had developed Zynga was using 4 its recent EA recruits to identify other high-ranking EA executives who possessed highly 5 confidential information related to EAs plans for competing with Zynga, and then recruiting those 6 individuals to Zynga for the purpose of gaining access to that information and using it to diffuse 7 the competitive threat from EA. Id. 8 EA again engaged outside counsel to prepare claims against Zynga and the former EA

9 executives who were working with Zynga to execute this unlawful plan. Id. 11. As before, 10 Zynga agreed to reform its behavior rather than face imminent litigation, and the parties entered 11 into a Confidential Settlement and Release Agreement dated September 21, 2011 (the Fall 2011 12 Agreement and, collectively with the Spring 2011 Agreement, the Settlement Agreements), 13 pursuant to which EA agreed to release claims related to Zyngas recruitment, hiring, and 14 employment of former or current EA employees in exchange for express contractual undertakings 15 by Zynga, Schappert, Chiang, Karp, and Boatman, including limited non-solicitation obligations 16 through December 31, 2011. Id. 11; Countercl., Ex. B. 17 18 4. Barry Cottle

With the ink barely dry on the Fall 2011 Agreement, Zynga undertook to recruit Barry

19 Cottle, the chief executive of EA Interactive, the division of EA that was responsible for EAs 20 mobile and social gaming businesses. Bene Decl. 12. Cottle was the person at EA who was 21 most directly responsible for competing with Zynga in the Facebook and mobile gaming markets. 22 Id. Zynga solicited and encouraged Cottle to depart EA for Zynga at the same time that he was 23 crafting EAs strategic plan for competing with Zynga in the mobile and social gaming markets. 24 Id. Zyngas efforts were successful, and Cottle resigned EA to join Zynga in January 2012, 25 reportedly becoming one of Zyngas highest-paid executives. Id. 26 EA again engaged outside counsel to prepare a complaint against Zynga and the former EA

27 employees who it believed had breached their contractual undertakings to EA in an effort 28 improperly to gain access to EAs confidential strategies and plans for competing with Zynga. Id. 120924.1 CV 12 4099 SI 4
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1 13. Since the claims in the draft complaint were based on breaches of the Fall 2011 Agreement, 2 EA complied with that agreements dispute resolution procedures as a prerequisite to suit 3 including participating in meetings between EAs and Zyngas General Counsels and senior 4 business representatives and, when those proved unsuccessful, participating in two mediation 5 sessions before the Hon. William J. Cahill (Ret.). Id. Although those mediation sessions have not 6 yet yielded a settlement, Zynga appears to have reformed its recruiting practices in the meantime, 7 and EA, while reserving all rights, has therefore held its complaint in abeyance. Id. 8 B. 9 EAs Present Complaint For Copyright Infringement Zynga released The Ville for Facebook in June 2012. Compl. 59. As alleged in EAs

10 Complaint for Copyright Infringement, The Ville copies the original, creative expression and 11 distinctive audio-visual elements of EAs The Sims Social. EAs complaint asserts a single cause 12 of action, for infringement of its copyright in The Sims Social in violation of the Copyright Act, 17 13 U.S.C. 501. EAs complaint does not allege that Zynga violated any contractual, statutory, or 14 common law duties through its solicitation, recruiting, or hiring of Chiang, Schappert, Boatman, 15 Karp, Cottle, or any other EA employee; does not assert claims for breach of the Settlement 16 Agreements; and does not seek relief for any wrongful conduct beyond Zyngas unabashed 17 infringement of EAs copyright in The Sims Social. 18 C. 19 Zyngas Counterclaim On September 9, 2012, Zynga filed its Counterclaim against EA. Zynga asserts two claims

20 for relief: First, that EA breached the Settlement Agreements by filing its Complaint for 21 Copyright Infringement; and second, that EA violated Section 17200 of the California Business 22 and Professions Code by repeatedly threatening to sue Zynga for its predatory and unlawful 23 recruiting and hiring practices. As discussed below, neither claim has any merit. 24 25 26 A. 27 III. ARGUMENT Californias Anti-SLAPP Statute Californias anti-SLAPP statute authorizes a defendant to bring a special motion to strike

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1 speech in connection with a public issue, unless the plaintiff has established that there is a 2 probability that the plaintiff will prevail on the claim. Cal. Civ. Proc. Code 425.16(b)(1). 3 Although it is a state statute, Californias anti-SLAPP protections apply to state law claims 4 brought in federal court. See U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 5 963, 97173 (9th Cir. 1999). 6 In evaluating anti-SLAPP motions, courts engage in a two-part inquiry. First, a defendant

7 must make an initial prima facie showing that the plaintiffs suit arises from an act in furtherance 8 of the defendants rights of petition or free speech. Vess v. CibaGeigy Corp. USA, 317 F.3d 9 1097, 1110 (9th Cir. 2003) (internal quotation marks omitted). Second, once the defendant has 10 made a prima facie showing, the burden shifts to the plaintiff to demonstrate a probability of 11 prevailing on the challenged claims. Id. (internal quotation marks omitted). The plaintiffs 12 burden is comparable to that used on a motion for judgment as a matter of law. Price v. Stossel, 13 620 F.3d 992, 1000 (9th Cir. 2010). The plaintiff must demonstrate that the complaint is legally 14 sufficient and supported by a prima facie showing of facts to sustain a favorable judgment if the 15 evidence submitted by the plaintiff is credited. Id. at 1000 (internal quotation marks 16 omitted). An anti-SLAPP motion must be granted when a plaintiff presents an insufficient legal 17 basis for the claims or when no evidence of sufficient substantiality exists to support a judgment 18 for the plaintiff. Id. 19 B. 20 21 22 Zyngas First Claim For Relief, For Breach of Contract, Is Barred By The AntiSLAPP Statute 1. Zyngas First Claim For Relief Arises From Protected Activity

Zynga first claims that EA breached the Settlement Agreements by bringing suit against

23 Zynga for claims purportedly released by those agreements and without first comply[ing] with 24 the mandatory dispute resolution provisions set forth in those agreements. Countercl. 79. As 25 the California Supreme Court held in Navellier v. Sletten, 29 Cal. 4th 82 (2002), [a] claim for 26 relief filed in federal district court indisputably is a statement or writing made before a judicial 27 proceeding and therefore constitutes protected activity within the meaning of the anti-SLAPP 28 statute. Id. at 90; see U.S. ex rel. McLean v. Cnty. of Santa Clara, No. C05-01962 HRL, 2006 WL 120924.1 CV 12 4099 SI 6
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1 2067061, at *3-5 (N.D. Cal. July 25, 2006) (filing of lawsuit constitutes protected activity under 2 anti-SLAPP statute). Because Zyngas first claim for relief is expressly predicated on EAs filing 3 of its Complaint for Copyright Infringement, that claim falls squarely within the ambit of the 4 anti-SLAPP statues arising from prong. Navellier, 29 Cal. 4th at 90. 5 That Zyngas first claim for relief is based in part on EAs alleged failure to comply with

6 the dispute resolution provisions of the Settlement Agreements does not take that claim outside the 7 scope of the anti-SLAPP statute. Zynga contends that EA breached the dispute resolution 8 provisions by filing suit without first complying with those provisions. Countercl. 79(b). But for 9 EAs filing of its copyright infringement complaint, Zynga would have no claim. The breach of 10 contract claim therefore arises in its entirety from EAs protected activity, see Powertech Tech., 11 Inc. v. Tessera, Inc., No. C 11-6121 CW, 2012 WL 1835699, at *7 (N.D. Cal. May 21, 2012), and 12 Zynga must establish a probability of prevailing on that claim to survive EAs motion to strike. 13 14 15 2. Zynga Cannot Establish A Probability Of Prevailing On Its First Claim For Relief Zynga cannot establish a probability of prevailing on its breach of contract claim. To prevail

16 on this claim, Zynga must plead and prove (a) that EA released its present claim for copyright 17 infringement as part of the Settlement Agreements, and/or (b) that EAs copyright infringement 18 claim is governed by the dispute resolution provisions of those agreements. Zynga can do neither. 19 20 (a) EA Did Not Release Its Claim For Copyright Infringement

EAs single-count complaint in this action is simple and straightforward: Through its

21 release and distribution of The Ville beginning in June 2012, Zynga has infringed, and continues to 22 infringe, EAs copyright in The Sims Social. This infringement claim falls far outside both the 23 temporal and subject matter scope of the releases set forth in the Settlement Agreements, and those 24 agreements are therefore incapable of barring EAs claim. 25 Under California law, to be valid and enforceable, a written release exculpating a

26 tortfeasor from liability for future negligence or misconduct must be clear, unambiguous and 27 explicit in expressing the intent of the parties. Baker Pac. Corp. v. Suttles, 220 Cal. App. 3d 28 1148, 1153 (1990). Under the Spring 2011 Agreement, EA released all possible disputes and 120924.1 CV 12 4099 SI 7
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1 claims arising out of or related to Zyngas recruitment of, or offer of employment to, or 2 discussions with Schappert , whether known or unknown that could have been asserted by EA 3 against Zynga and/or Schappert. Countercl., Ex. A (emphasis added). In other words, EA 4 released only claims existing as of the date of that agreement. The releases in the Fall 2011 5 Agreement were even more expressly limited to claims that EA may possess arising from any 6 omissions, acts or facts that have occurred up until and including the Effective Date [September 7 21, 2011]. Id., Ex. B (emphasis added). Neither agreement included a release of claims for 8 future wrongful acts. 9 EAs present complaint is directed at a single wrongful actnamely, Zyngas

10 infringement of EAs copyright in The Ville. Zyngas infringing conduct began in June 2012 and 11 continues to the present. The infringement claim therefore is not one that EA could have 12 asserted in April 2011, nor is it one that arises from acts occurring before September 21, 2011. It 13 therefore falls outside the temporal scope of the releases. See Pardi v. Kaiser Found. Hosps., 389 14 F.3d 840, 845 n.3, 845-47, 849 (9th Cir. 2004) (holding release of claims arising from or 15 attributable to any incident or event, occurring, in whole or in part, on or before the date of [the 16 settlement agreement] to not bar claims based on acts occurring after the agreement); Villacres v. 17 ABM Indus. Inc., 189 Cal. App. 4th 562, 572, 591 (2010) (holding that release did not waive 18 future claims where release stated plaintiffs release and forever discharge [defendants] from any 19 and all claims of any kind, whether known or unknown, which have been or could have been 20 asserted against [defendants]). 21 Moreover, timing is not Zyngas only problem. EAs copyright infringement claim also

22 falls outside the subject matter of the releases. To establish copyright infringement, [EA] must 23 prove two elements: (1) ownership of a valid copyright, and (2) copying of constituent elements 24 of [The Sims Social] that are original. L.A. Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 25 841, 846 (9th Cir. 2012) (quoting Feist Publns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 26 (1991)). The releases in the Settlement Agreements did not waive EAs claim to ownership of the 27 copyright in The Sims Social or its contention that The Ville (which did not yet even exist) copied 28 original elements of EAs game. Rather, EA released only claims related to Zyngas recruiting, 120924.1 CV 12 4099 SI 8
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1 hiring, or employment of EA employees. See Countercl., Ex. A (releasing claims arising out of 2 or related to Zyngas recruitment of, or offer of employment to, or discussions with Schappert); 3 id., Ex. B (releasing claims that relate to the recruitment and/or hire and/or employment of former 4 or current EA employees). It was Zyngas decision to slavishly copy The Sims Social, and not its 5 poaching of EA executives, that has landed Zynga in court.1 6 In short, EAs Complaint for Copyright Infringement falls outside both the temporal and

7 subject matter scope of the releases set forth in the Settlement Agreements, and those releases are 8 therefore incapable of barring EAs claim in this action. 9 10 11 (b) The Dispute Resolution Provisions Of The Settlement Agreements Do Not Apply To EAs Copyright Infringement Claim Zynga fares no better on its claim that EA breached the Settlement Agreements by failing

12 to follow the dispute resolution procedures of those agreements in connection with its copyright 13 infringement claim. In the first instance, the Spring 2011 Agreement does not contain any dispute 14 resolution procedure at all.2 The Fall 2011 Agreement does set forth certain dispute resolution 15 procedures that EA must follow [s]hould EA believe that Zynga, Schappert, Chiang, Karp and/or 16 Boatman, or any of them, has breached this Agreement. However, the only contractual 17 18 19 20 21 22 23 Zynga asserts that the Settlement Agreements released Zynga from the alleged claim EA asserts predicated on the targeting and hiring of former EA employees alleged in Paragraphs 53-57 of EAs Complaint. Countercl. 77. EA, however, does not assert any claim in Paragraphs 53-57 of its Complaint, which are included only in the way of background. Moreover, the fact that Zynga had access to The Sims Social is undisputed, and not dependent on Zyngas hiring of the former employees, because the game was widely distributed on Facebook for nearly a year before Zynga released its copycat game, The Ville. Compl. 58; Answer 58; see Three Boys Music Corp. v. Bolton, 212 F.3d 477, 482-83 (9th Cir. 2000) (holding access established through widespread dissemination of plaintiffs work).
2 1

Paragraph 2(b) of that agreement provides that, [i]f, following April 4, 2011, EA has a 24 good faith belief that a potential new claim or basis for liability against Zynga, its officers, directors and employees and/or Schappert has arisen that is related to the Schappert Recruitment, 25 then EA must notify Zynga and/or Schappert in writing within 72 hours after EAs CEO or 26 General Counsel becomes aware of the facts substantiating such potential new claim. However, as discussed above, EAs copyright infringement claim in this action is not related to Zyngas 27 recruitment of, offer of employment to, or discussions with Schappert, and the notice provision therefore does not apply. 28 120924.1 CV 12 4099 SI 9
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1 obligations created by the Fall 2011 Agreement, and the only terms that the identified parties are 2 therefore capable of breaching, are set forth in paragraph 1 of that agreement: 3 4 5 6 7 8 9 10 11 12 13 14 (c) (b) (a) [Former EA executive] Boatman will not in any way be involved in the solicitation or hiring of any Third-Party Game Developer listed in Attachment A, or any employee thereof, until after the date set forth for each such Third-Party Game Developer; [B]etween the Effective Date of this Agreement and November 30, 2011, [former EA executive] Karp will not personally participate in any marketing efforts of Zynga pertaining to any SIMS-Social equivalent unreleased Zynga game currently under active development by Zynga; and [T]hrough December 31, 2011, no former EA employee now working for Zynga will (i) directly or indirectly solicit any EA employees to work for Zynga, or (ii) use information regarding an EA employee acquired while working at EA, in order to influence Zyngas recruitment of an EA employee.

15 Countercl., Ex. B. EAs Complaint for Copyright Infringement does not allege a breach of any of 16 these obligations, and therefore the dispute resolution procedures of the Fall 2011 Agreement 17 simply do not apply. 18 In sum, Zynga cannot demonstrate even a possibility, let alone a probability, of prevailing

19 on its first claim for relief, for breach of contract, and that claim for relief must be stricken. 20 C. 21 22 23 Zyngas Second Claim For Relief, For Violation Of California Business & Professions Code 17200, Is Barred By The Anti-SLAPP Statute 1. Zyngas Second Claim For Relief Arises From Protected Activity

Zyngas second claim for relief, for alleged violation of Section 17200 of the California

24 Business and Professions Code, Cal. Bus. & Prof. Code 17200, is based upon EAs alleged 25 threats to sue Zynga in connection with its solicitation, recruitment, and hiring of EA employees. 26 Countercl. 85-86. Those alleged threats by EA fall squarely within the protections of the anti27 SLAPP statute. 28
120924.1

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The petitioning activities protected by the anti-SLAPP statute include not only the filing of

2 litigation, but also threats and demands made in anticipation of litigation. See Briggs v. Eden 3 Council for Hope & Opportunity, 19 Cal. 4th 1106, 1115 (1999) ([J]ust as communications 4 preparatory to or in anticipation of the bringing of an action or other official proceeding are within 5 the protection of the litigation privilege of Civil Code section 47 such statements are equally 6 entitled to the benefits of section 425.16.) (internal quotation marks omitted). Such pre-litigation 7 statements arise from a partys constitutionally protected right to petition for redress of 8 grievances and therefore constitute protected activities under the anti-SLAPP statute. Blanchard 9 v. DIRECTV, Inc., 123 Cal. App. 4th 903, 918 (2004).3 10 Here, Zyngas Counterclaim hinges on EAs intention to sue Zynga for its practices in

11 soliciting, recruiting, and hiring EA employees, and the actions that Zynga allegedly had to take to 12 stave off imminent litigation. See Countercl. 86. EA prepared not just one but several draft 13 complaints based upon Zyngas repeated poaching of EA executives, and EA invoked and 14 scrupulously complied with the dispute resolution procedures that were a contractual prerequisite 15 to suit for breach of the Fall 2011 Agreement. See Bene Decl. 7, 13. In short, for more than 16 two years the spectre of litigation [has] loomed over all communications between EA and Zynga 17 related to Zyngas solicitation, recruitment, and hiring of EA employees. Rohde v. Wolf, 154 Cal. 18 App. 4th 28, 36 (2007). Under these circumstances, EAs actions constituted petitioning activities 19 20
3 Zynga apparently believes that it can circumvent the anti-SLAPP statute by alleging that 21 EA disavowed the merits of the litigation it intended to file against Zynga and conceded that its 22 claims would be subjectively meritless and filed for an improper purpose. See Countercl. 85, 86. But even if those allegations were true (which they are not), EAs right to seek redress is 23 protected by the anti-SLAPP statute. See Blanchard, 123 Cal. App. 4th at 920-21 (holding that demand letter constituted protected activity even if sender knew it did not have a legally viable 24 claim). Indeed, in Feldman v. 1100 Park Lane Associates, 160 Cal. App. 4th 1467 (2008), the California Court of Appeal specifically rejected the argument that a plaintiff can defeat an anti25 SLAPP motion simply by asserting that litigation to which the statement is related is without 26 merit, and therefore the proponent of the litigation could not in good faith have believed it had a legally viable claim. Id. at 1489. As long as litigation is under serious contemplation, neither the 27 speakers subjective belief in the merits of its position nor its motivations for filing suit have any bearing on the anti-SLAPP analysis. Id. 28 120924.1 CV 12 4099 SI 11

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1 protected by the anti-SLAPP statute, and thus, to avoid EAs motion to strike, Zynga must 2 establish a probability of prevailing on its Section 17200 claim. 3 4 5 2. Zynga Cannot Establish A Probability Of Success On Its Second Claim For Relief Zynga cannot establish a probability of success on its Section 17200 claim for two

6 independent reasons: First, EAs alleged threats to sue Zynga in connection with its solicitation, 7 recruitment, and hiring of EA employees were absolutely privileged under Section 47(b) of the 8 California Civil Code, and therefore cannot serve as the basis for a Section 17200 claim. Second, 9 even if the litigation privilege did not apply, Zynga cannot prove an unlawful or unfair 10 business practice within the meaning of Section 17200. 11 12 (a) Zyngas Second Claim For Relief Is Barred By The Litigation Privilege

The litigation privilege, which is codified as California Civil Code 47(b), generally

13 precludes statements made in connection with actual or contemplated judicial or quasi-judicial 14 proceedings from being used as the basis for a cause of action. See Action Apartment Assn, Inc. 15 v. City of Santa Monica, 41 Cal. 4th 1232, 1241 (2007); Briggs, 19 Cal. 4th at 1115; Silberg v. 16 Anderson, 50 Cal. 3d 205, 216 (1990). The litigation privilege is expansive and applies to nearly 17 all tort actions, including those arising under Section 17200. Carr v. Asset Acceptance, LLC, No. 18 CV F 11-0890 LJO GSA, 2011 WL 3568338, at *9-10 (E.D. Cal. Aug. 12, 2011); Rubin v. Green, 19 4 Cal. 4th 1187, 1193-94 (1993). Indeed, the only recognized exception is for malicious 20 prosecution actions. See Rubin, 4 Cal. 4th at 1194. EAs threats of litigation, upon which Zyngas 21 Section 17200 claim are premised, fall squarely within the scope of the litigation privilege. See, 22 e.g., Fin. Corp. of Am. v. Wilburn, 189 Cal. App. 3d 764, 777 (1987) (It is established that 23 demands to resolve disputes made in anticipation of litigation are privileged [in accordance with 24 section 47(b)].). 25 Zyngas contention that EA intended to file subjectively meritless claims, and to do so

26 for an improper, anti-competitive purpose, does not allow it to sidestep the litigation privilege. To 27 the contrary, the litigation privilege is simply a test of connectedness or logical relationship of a 28 statement to actual or anticipated litigation, and it applies without regard to motives, morals, 120924.1 CV 12 4099 SI 12
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1 ethics or intent. Blanchard, 123 Cal. App. 4th at 922 (quoting Silberg, 50 Cal. 3d at 220). The 2 California Court of Appeals discussion in Feldman, supra, is particularly instructive. The 3 landlord in that case (Hawkins) threatened his tenants (the Feldmans) with legal action if they did 4 not agree to pay market rent, asserted that they could not win an eviction suit, and told them that 5 whatever the result of the threatened eviction, they would never be able to rent another apartment 6 in San Francisco. Feldman, 160 Cal. App. 4th at 1474-75. The Feldmans argued that Hawkinss 7 threats of litigation were made in bad faith and therefore were not privileged. Id. The court 8 disagreed: 9 10 11 12 Whether taken individually or as a whole, Hawkinss statements were clearly connected to and made in anticipation of the eviction action they threatened. Whether done maliciously or without reasonable grounds to believe that the Feldmans were unlawful occupants of the premises, the statements were privileged.

13 Id. at 1489; see id. at 1489-90 (explaining that privilege attached even if Hawkins used the threat 14 of an eviction action as a negotiating tactic, hoping to persuade the Feldmans to leave or pay 15 market rent). 16 Because the litigation privilege applies as a matter of law to EAs allegedly wrongful

17 activities, Zynga cannot demonstrate a probability of prevailing on its Section 17200 cause of 18 action and EAs motion to strike Zyngas second claim for relief must be granted. See Seltzer v. 19 Barnes, 182 Cal. App. 4th 953, 972 (2010) (remanding with instructions to grant anti-SLAPP 20 motion based upon litigation privilege). 21 22 23 (b) Zynga Cannot Prove An Unlawful Or Unfair Business Practice Within The Meaning Of Section 17200 Even if the litigation privilege was not an absolute bar to Zyngas Section 17200 claim,

24 Zynga still could not establish an unlawful or unfair business practice as required to prevail on 25 its second claim for relief. 26 To establish an unlawful business practice under Section 17200, a plaintiff must identify

27 and prove that the defendant violated a particular statute, regulation, or other law. See Sonoma 28 Foods, Inc. v. Sonoma Cheese Factory, LLC, 634 F. Supp. 2d 1009, 1022 (N.D. Cal. 2007); 120924.1 CV 12 4099 SI 13
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1 Khoury v. Malys of Cal., Inc., 14 Cal. App. 4th 612, 619 (1993). Here, the only law that Zynga 2 alleges EA has violated, and that serves as the predicate for its Section 17200 claim, is Section 3 16600 of the California Business and Professions Code. Section 16600 states that, with certain 4 exceptions, every contract by which anyone is restrained from engaging in a lawful profession, 5 trade, or business of any kind is to that extent void. Cal. Bus. & Prof. Code 16600. Zynga does 6 not identify any contract that allegedly ran afoul of Section 16600, but instead contends that EAs 7 threats of litigation discouraged employees from leaving EA and therefore operated as a de facto 8 non-compete. Countercl. 90. By its very terms, however, Section 16600 applies only to anti9 competitive contracts, and not to anti-competitive activity more generally. See Ret. Grp. v. 10 Galante, 176 Cal. App. 4th 1226, 1238 (2009) (stating that Section 16600 applies only to 11 contractual undertakings). Because Section 16600 does not apply, there is no predicate 12 unlawful act to sustain its Section 17200 claim. 13 Nor can Zynga establish an unfair business practice within the meaning of Section 17200.

14 In cases between competitors, a business practice is unfair only if it threatens an incipient 15 violation of an antitrust law, or violates the policy or spirit of one of those laws because its effects 16 are comparable to or the same as a violation of the law, or otherwise significantly threatens or 17 harms competition. Cel-Tech Commcns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163, 187 18 (1999). Although Section 17200 is broad, unfair practices under Californias unfair competition 19 law must still at least threaten significant harm to competition because of a violation of a 20 recognized policy of antitrust law. Parrish v. Natl Football League Players Assn, 534 F. Supp. 21 2d 1081, 1092 (N.D. Cal. 2007) (emphasis added); see Weco Supply Co. v. Sherwin-Williams Co., 22 No. 1:10-CV-00171 AWI BAM, 2012 WL 1910078, at *5 (E.D. Cal. May 25, 2012) (Under the 23 Cel-Tech test, courts look to the federal antitrust laws to evaluate an unfair competition claim.). 24 The antitrust laws are intended not to protect competition generally, but instead to prevent

25 harm to competition manifested as higher prices, lower output, or decreased quality in the products 26 within a defined market. Stearns v. Select Comfort Retail Corp., No. 08-2746 JF, 2009 WL 27 1635931, at *13 (N.D. Cal. June 5, 2009). The focus is on injury to the consumer in the form of 28 higher prices, harmed allocative efficiency, or diminished quality of goods or services sold. Rebel 120924.1 CV 12 4099 SI 14
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1 Oil Co. v. Atl. Richfield Co., 51 F.3d 1421, 1433 (9th Cir. 1995); Weco Supply Co., 2012 WL 2 1910078, at *5; Marsh v. Anesthesia Servs. Med. Grp., Inc., 200 Cal. App. 4th 480, 501-02 (2011). 3 Injury to a competitor is not equivalent to injury to competition; only the latter is the proper focus 4 of antitrust laws. Cel-Tech, 20 Cal. 4th at 186; see Girafa.com, Inc. v. Alexa Internet, Inc., No. C5 08-02745 RMW, 2008 WL 4500858, at *2 (N.D. Cal. Oct. 6, 2008) (To be sure, [defendants] 6 conduct threatens its competitor [plaintiff], but that is not the same as threatening competition.) 7 (emphasis in original). 8 Zynga does not plead the type of antitrust injury required to establish an unfair business

9 practice under Section 17200. Zynga claims that it was forced to unnecessarily incur additional 10 costs to combat EAs unlawful conduct and that EAs litigation threats have adversely 11 impact[ed] Zynga, as well as other industry competitors, from lawfully competing for EAs 12 employees. Countercl. 90, 93. Injury to a competitor, however, is not enough. Cel-Tech, 20 13 Cal. 4th at 186; see Peoples Choice Wireless Inc. v. Verizon Wireless, 131 Cal. App. 4th 656, 668 14 (2005) (holding that court cannot consider injury to competitors, as opposed to injury to 15 competition generally, in ruling on unfair business practices claim). Thus, regardless of whether 16 the conduct alleged by Zynga may have been unfair in the colloquial sense of the word, it is not 17 unfair within the meaning of Section 17200. Weco Supply, 2012 WL 1910078, at *5. 18 Zyngas inability to plead or prove an unlawful or unfair business practice within the

19 meaning of Section 17200 provides an independent basis upon which EAs motion to strike must be 20 granted. 21 D. 22 23 EA Is Entitled To Recover Its Attorneys Fees And Costs Incurred In Connection With Its Motion To Strike And Accompanying Motion To Dismiss Under the California anti-SLAPP statute, an award of attorneys fees and costs to a

24 successful defendant is mandatory. Ketchum v. Moses, 24 Cal. 4th 1122, 1131 (2001); see Cal. 25 Civ. Proc. Code 425.16(c) ([A] prevailing defendant on a special motion to strike shall be 26 entitled to recover his or her attorneys fees and costs.) (emphasis added). In addition to fees and 27 costs incurred directly in connection with an anti-SLAPP motion, [a] prevailing party can recover 28 fees not incurred directly on the anti-SLAPP motion if the work done is based entirely on a 120924.1 CV 12 4099 SI 15
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1 common factual scenario and the issues are inextricably intertwined. Graham-Sult v. Clainos, 2 No. CV 10-4877 CW, 2012 WL 994754, at *4 (N.D. Cal. Mar. 23, 2012) (quoting Kearney v. 3 Foley & Lardner, 553 F. Supp. 2d 1178, 1184 (S.D. Cal. 2008)). 4 Here, the work of EAs counsel on the motion to dismiss being filed concurrently herewith

5 is based entirely on a common factual scenario, and is inextricably intertwined with, this anti6 SLAPP motion, such that EAs attorneys fees and costs incurred in connection with its motion to 7 dismiss should be included in the award. See Metabolife Intl, Inc. v. Wornick, 213 F. Supp. 2d 8 1220, 1223-24 (S.D. Cal. 2002) (stating that anti-SLAPP statute must be construed broadly to 9 entitle prevailing defendant to attorneys fees and costs incurred in connection with motion to 10 dismiss). EA will submit a formal motion for attorneys fees with supporting declarations in the 11 event that the Court grants this motion. 12 13 14 IV. CONCLUSION For the foregoing reasons, EA respectfully requests that the Court grant EAs special

15 motion to strike Zyngas Counterclaim pursuant to California Code of Civil Procedure 425.16 16 and further award EA the attorneys fees and costs that it incurs in connection with this and the 17 accompanying motion to dismiss. 18 Dated: October 26, 2012 19 20 21 22 23 24 25 26 27 28
120924.1

MUNGER TOLLES & OLSON LLP KENDALL BRILL & KLIEGER LLP

By: /s/ Robert N. Klieger Robert N. Klieger Attorneys for Plaintiff/Counter-Defendant Electronic Arts Inc.

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1 CAROLYN HOECKER LUEDTKE (SBN: 207976) Carolyn.Luedtke@mto.com 2 JONATHAN H. BLAVIN (SBN: 230269) Jonathan.Blavin@mto.com 3 MUNGER, TOLLES & OLSON LLP 560 Mission Street, 27th Floor 4 San Francisco, CA 94015 Telephone: (415) 512-4000 5 Facsimile: (415) 512-4077 6 KELLY M. KLAUS (SBN: 161091) Kelly.Klaus@mto.com 7 LAURA K. WIRTH (SBN: 280800) Laura.Wirth@mto.com 8 MUNGER TOLLES & OLSON LLP 355 South Grand Avenue, Thirty-Fifth Floor 9 Los Angeles, CA 90071-9100 Telephone: (213) 683-9100 10 Facsimile: (213) 687-3702 11 ROBERT N. KLIEGER (SBN: 192962) rklieger@kbkfirm.com 12 KENDALL BRILL & KLIEGER LLP 10100 Santa Monica Blvd., Suite 1725 13 Los Angeles, California 90067 Telephone: (310) 556-2700 14 Facsimile: (310) 556-2705 15 Attorneys for Plaintiff/Counter-Defendant Electronic Arts Inc. 16 17 18 19 20 ELECTRONIC ARTS INC., 21 22 v. Plaintiff, CASE NO. CV 12 4099 SI DECLARATION OF STEPHEN BENE IN SUPPORT OF ELECTRONIC ARTS INC.S MOTION TO STRIKE PURSUANT TO CAL. CODE CIV. PROC. 425.16 Judge: Date: Time: Crtrm.: Hon. Susan Illston January 18, 2013 9:00 a.m. 10 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

23 ZYNGA INC., 24 25 26 AND RELATED COUNTERCLAIMS 27 28

CV 12 4099 SI DECLARATION OF STEPHEN BENE

Defendant.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 ELECTRONIC ARTS INC., 16 17 v. Plaintiff, CASE NO. CV 12 4099 SI [PROPOSED] ORDER GRANTING ELECTRONIC ARTS INC.S MOTION TO STRIKE PURSUANT TO CAL. CODE CIV. PROC. 425.16 Date: Time: Courtroom: January 18, 2013 9:00 a.m. 10 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

18 ZYNGA INC., 19 20 Complaint Filed: August 3, 2012 21 AND RELATED COUNTERCLAIMS 22 23 24 25 26 27 28

CV 12 4099 SI [PROPOSED] ORDER GRANTING ELECTRONIC ARTS INC.'S MOTION TO STRIKE PURSUANT TO CAL. CODE. CIV. PROC. 425.16

Defendant.

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This matter comes before the Court on Plaintiff/Counter-Defendant Electronic Arts Inc.s

2 Motion to Strike the Counterclaim of Defendant/Counter-Claimant Zynga Inc. pursuant to 3 California Code of Civil Procedure 425.16. 4 The Court, having fully considered the motion, the opposing papers, and all evidence and

5 other matters presented to the Court, hereby GRANTS Electronic Arts Inc.s Motion to Strike and 6 STRIKES the Counterclaim filed by Zynga, Inc. 7 Electronic Arts Inc. shall be entitled to recover its attorneys fees and costs in accordance

8 with California Code of Civil Procedure 425.16(c)(1). Electronic Arts Inc. shall file its motion 9 for attorneys fees, including supporting declarations, within fourteen (14) days following the date 10 of this Order. 11 12 13 Dated: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
CV 12 4099 SI 1 [PROPOSED] ORDER GRANTING ELECTRONIC ARTS INC.'S MOTION TO STRIKE PURSUANT TO CAL. CODE. CIV. PROC. 425.16

IT IS SO ORDERED.

HONORABLE SUSAN ILLSTON United States District Judge