Case BLS Doc 596 Filed 09/20/17 Page 1 of 6

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1 Case BLS Doc 596 Filed 09/20/17 Page 1 of 6 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: ) Chapter 11 ) JMO WIND DOWN, INC., ) Case No (BLS) ) Debtor. ) LIMITED JOINDER AND LIMITED OBJECTION OF THOMAS KASTENHOFER TO MOTION OF NON-FOUNDER CIVIL ACTION DEFENDANTS (I) TO ENFORCE THE PLAN CONFIRMATION ORDER AND SALE ORDER AND (II) TO ENJOIN PLAINTIFF FROM PROSECUTING THE CIVIL ACTION AND SIMILAR CLAIMS IN OTHER FORUMS Thomas Kastenhofer, individually by and through his undersigned counsel, hereby submits this limited joinder and limited objection to the motion (the Motion ) [Docket No. 585] 1 for entry of an order (i) enforcing the terms of (a) the Plan, (b) the Confirmation Order and (c) the Sale Order and (ii) enjoining Plaintiff from prosecuting the Civil Action. In support of his joinder and objection, Mr. Kastenhofer respectfully states as follows: Preliminary Statement 1. Mr. Kastenhofer supports the arguments set forth in the Motion; however, if the Court rules that the claims Plaintiff has against the Non-Founder Defendants are derivative in nature and, as a result, Plaintiff lacks standing to pursue such claims under the terms of the Plan, then it necessarily follows that Plaintiff also lacks the standing to pursue the same derivative claims against Mr. Kastenhofer. 2. The proposed form of order the Non-Founder Defendants submitted as Exhibit 1 to the Motion overlooks this fact and, based on the use of the narrowly defined term Estate Claims and other limiting language, seeks relief only as to Plaintiff s claims against the Non- 1 Capitalized terms used and not otherwise defined herein have the meanings ascribed to them in the Motion. 1

2 Case BLS Doc 596 Filed 09/20/17 Page 2 of 6 Founder Defendants. Such an order is not appropriate: if relief is going to be granted as to the Non-Founder Defendants then relief should also be granted as to Mr. Kastenhofer, as the basis for the relief for all Defendants is the same, and the Plan s injunctive provisions apply equally to any attempt to exercise control over a cause of action belonging to the Liquidating Trust. Also, entry of the Order proposed by the non-founder Defendants would not be judicially efficient as its entry would just result in Mr. Kastenhofer filing his own motion for the same relief. 3. Accordingly, Mr. Kastenhofer objects to the form of Order submitted with the Motion and respectfully submits that the form of order attached hereto as Exhibit A should be entered by the Court on the Motion. All of Plaintiff s Claims are Derivative 4. As more fully set forth in the Motion, direct and derivative Causes of Action that could be asserted by or on behalf of Jumio were transferred to the Liquidating Trust pursuant to the Plan and Confirmation Order. All third parties were enjoined from pursuing such claims pursuant to the Plan and Confirmation Order. In addition, holders of Jumio common stock who did not opt-out of the Plan released and were enjoined from asserting both direct and derivative Causes of Action against the Non-Founder Defendants. Holders of Jumio common who did optout of the Plan, like Plaintiff, lost the right to pursue (and were enjoined from pursuing) derivative claims that could be asserted on Jumio s behalf against the Non-Founder Defendants, but retained the right to pursue direct claims they had against the Non-Founder Defendants. 5. Thus, whether Plaintiff can pursue the causes of action it asserted in Counts I, III, IV, V, VI, VII, and IX in Bloso v. Mattes, C.A. No VCS turns completely on whether the claims are derivative or direct. If the claims are derivative, then (i) the claims as to the Non- Founder Defendants were sold, released, exculpated and/or assigned to the Liquidating Trust and 2

3 Case BLS Doc 596 Filed 09/20/17 Page 3 of 6 (ii) the claims as to Mr. Kastenhofer were assigned to the Liquidating Trust. If the claims are individual, then Plaintiff retains the right to pursue its claims against both Mr. Kastenhofer and the Non-Founder Defendants. 6. The causes of action asserted against the Non-Founder Defendants and Mr. Kastenhofer in Counts I, III, IV, V, VI, VII, and IX in Bloso v. Mattes, C.A. No VCS are identical in theory and similar in substance Moreover, as set forth in the Motion, all of the causes of action asserted in Counts I, III, IV, V, VI, VII, and IX in Bloso v. Mattes, C.A. No VCS are derivative in nature and, as a result, can only be pursued against Mr. Kastenhofer by the Liquidating Trust. See Motion 3 (Counts I, III, IV, V, VI, VII, and IX constitute claims that belong to and could be asserted only by Jumio, Inc. s... estate and...were... assigned exclusively to the Liquidating Trust ); 5 ( the Civil Action asserts claims against... Kastenhofer... that were also assigned exclusively to the Liquidating Trust under the Plan ); 24 ( The Plan established a Liquidating Trust... which is exclusively empowered to pursue claims against the Officer Defendants ); 29 ( the claims made in the Complaint against the... Officer Defendants are clearly derivative ); and 34 (The Complaint improperly attempts to circumvent the Plan and usurp claims belonging to the Debtor s estate by asserting derivative claims ). 8. The limited joinder [Docket No. 586] to the Motion filed by the Liquidating Trust confirms that the Liquidating Trust agrees that the causes of action asserted in Counts I, III, IV, V, VI, VII, and IX in Bloso v. Mattes, C.A. No VCS are derivative and can only be (and 2 The theories of relief Plaintiff is pursuing -- breach of fiduciary duty, fraud, fraud in the inducement, equitable fraud, unjust enrichment, fraudulent transfer and conspiracy -- are identical as to the Non-Founder Defendants and Mr. Kastenhofer. The claims are slightly different in substance because Mr. Kastenhofer resigned months before Jumio filed for bankruptcy and, therefore, he had no involvement in certain acts challenged by Plaintiff. 3

4 Case BLS Doc 596 Filed 09/20/17 Page 4 of 6 have been) asserted by the Liquidating Trust. See Docket No. 586 at 2 and 3 ( all Estate Claims were released or are vested with the Liquidating Trust pursuant to the Plan and Confirmation Order and the Liquidating Trust commenced the Estate Action by filing its Complaint... against... [Mr.] Kastenhofer... Adversary No (BLS) ). 9. Thus, just as the causes of action asserted against the Non-Founder Defendants in Counts I, III, IV, V, VI, VII, and IX in Bloso v. Mattes, C.A. No VCS are derivative in nature, the claims asserted against Mr. Kastenhofer in the same counts are derivative in nature. Accordingly, for the reasons set forth in the Motion, Plaintiff should be enjoined (again) from pursuing Counts I, III, IV, V, VI, VII, and IX in Bloso v. Mattes, C.A. No VCS against Mr. Kastenhofer. The Order 10. While all of the claims Plaintiff has asserted against the Non-Founder Defendants and Mr. Kastenhofer are derivative and Plaintiff should be enjoined (again) from pursuing them further, the form of Order the Non-Founder Defendants submitted with the Motion does not appear to address claims against Mr. Kastenhofer. Paragraphs 2 and 3 of the Non-Founder Defendants proposed Order dismisses with prejudice the Estate Claims and enjoins Plaintiff from prosecuting the Estate Claims, but this term is defined in the Motion as only those claims Plaintiff asserted against the Non-Founder Defendants. Motion 2. While the Non-Founder Defendants proposed Order further dismisses Counts I, III, IV, V, VI, VII, and IX of the Civil Action, suggesting these Counts will be dismissed in their entirety as to all of the defendants in Bloso v. Mattes, C.A. No VCS, the form of Order further states that Plaintiff is only enjoined from pursuing the claims and causes of action asserted against the Non-Founder Defendants in the Civil Action. Order at

5 Case BLS Doc 596 Filed 09/20/17 Page 5 of The relief granted pursuant to the Motion should be broader than the relief set forth in the Non-Founder Defendants proposed form of Order. Whether Plaintiff can pursue its claims against the Non-Founder Defendants and/or Mr. Kastenhofer turns on the same issue: are the claims derivative. Once the Court determines that the claims are derivative, Mr. Kastenhofer is entitled to the same relief awarded to the Non-Founder Defendants, by operation of law and the plain terms of the Plan s injunctive provisions. 12. A proposed form of Order which extends the relief sought in the Motion to Mr. Kastenhofer is attached as Exhibit A. A redline showing the difference between the Non- Founder Defendants proposed order and Mr. Kastenhofer s proposed order is attached as Exhibit B. 13. Granting Mr. Kastenhofer s proposed form of Order is legally appropriate under the plain terms of the Plan s injunctive provisions and promotes efficiency. If the Court finds that the claims against the Non-Founder Defendants are derivative and enjoins Plaintiff from pursuing them pursuant to the Plan and the Confirmation Order but does not extend that relief to Mr. Kastenhofer, the result will be a new motion raising the same issues before the Court. The new motion will be redundant of the Motion and this limited joinder and limited objection. WHEREFORE, Mr. Kastenhofer respectfully requests that the Court enter the form of Order attached hereto as Exhibit A granting the Motion, and award Mr. Kastenhofer such further relief as is just and proper. 5

6 Case BLS Doc 596 Filed 09/20/17 Page 6 of 6 Dated: September 20, 2017 Respectfully Submitted, DRINKER BIDDLE & REATH LLP /s/ Todd C. Schiltz Todd C. Schiltz (ID No. 3253) Ryan T. Costa (ID No. 5325) 222 Delaware Avenue, Suite 1410 Wilmington, DE (302) Todd.Schiltz@dbr.com Ryan.Costa@dbr.com Attorneys for Thomas Kastenhofer 6

7 Case BLS Doc Filed 09/20/17 Page 1 of 3 Exhibit A (Proposed Order)

8 Case BLS Doc Filed 09/20/17 Page 2 of 3 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE JMO WIND DOWN, INC., 1 Debtor Chapter 11 Case No (BLS) Re: Docket No. ORDER APPROVING MOTION OF NON-FOUNDER CIVIL ACTION DEFENDANTS (I) TO ENFORCE THE PLAN, CONFIRMATION ORDER, AND SALE ORDER AND (II) TO ENJOIN PLAINTIFF FROM PROSECUTING THE CIVIL ACTION AND SIMILAR CLAIMS IN OTHER FORUMS Upon consideration of the Motion of Eduardo Saverin, Peng-Tsin Ong, Scott Weiss, Andreessen Horowitz, LLC, Andreessen Horowitz Fund, II, L.P., and Stephen Stuut (collectively, the Non-Founder Defendants ) (i) to enforce the Plan, Confirmation Order and Sale Order and (ii) to order Plaintiff to dismiss the Civil Action and enjoin, bar and/or estop Plaintiff from prosecuting Counts I, III, IV, V, VI, VII, and IX in Bloso v. Mattes, C.A. No VCS and similar claims and causes of action in other forums (the Motion ), 2 the Court finds that: (i) it has jurisdiction over the matters raised in the Motion; (ii) this is a core proceeding pursuant to 28 U.S.C. 157(b) and 1334 upon which this Court may issue a final order; (iii) notice of the Motion and any hearing thereon was sufficient, proper, and adequate; and (iv) upon the record herein and after due deliberation thereon, good and sufficient cause exists for the granting of the relief as set forth herein. Accordingly, the Court hereby ORDERS that: 1 The last four digits of the Debtor s tax identification number are Defined terms used but not defined herein shall have the meanings ascribed to such terms in the Motion. 1

9 Case BLS Doc Filed 09/20/17 Page 3 of 3 1. The Motion is GRANTED in all respects; and Plaintiff shall immediately take all necessary action, at its sole cost and expense, to effectuate the dismissal with prejudice of Counts I, III, IV, V, VI, VII, VIII and IX in Bloso v. Mattes, C.A. No VCS, currently pending in the Delaware Court of Chancery; and 3. Plaintiff is enjoined, barred and estopped from asserting or prosecuting Counts I, III, IV, V, VI, VII, VIII and IX in Bloso v. Mattes, C.A. No VCS, and Plaintiff is hereby directed to immediately cease and refrain from any further acts to prosecute or continue the claims and causes of action asserted against the Non-Founder Defendants and Thomas Kastenhfer in Bloso v. Mattes, C.A. No VCS (whether in the Delaware Court of Chancery or any other court) or to, in any other manner, seek to enforce such claims and causes of action against the Non- Founder Defendants, Thomas Kastenhofer or other parties; and 4. This order shall be effective immediately upon entry and shall not be stayed pursuant to any applicable rule of the Federal Rules of Bankruptcy Procedure or Federal Rules of Civil Procedure. Dated:, 2017 Wilmington, Delaware HONORABLE BRENDAN L. SHANNON UNITED STATES BANKRUPTCY JUDGE 2

10 Case BLS Doc Filed 09/20/17 Page 1 of 3 Exhibit B (Blackline)

11 Case BLS Doc Filed 09/20/17 Page 2 of 3 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE JMO WIND DOWN, INC., 1 Debtor Chapter 11 Case No (BLS) Re: Docket No. ORDER APPROVING MOTION OF NON-FOUNDER CIVIL ACTION DEFENDANTS (I) TO ENFORCE THE PLAN, CONFIRMATION ORDER, AND SALE ORDER AND (II) TO ENJOIN PLAINTIFF FROM PROSECUTING THE CIVIL ACTION AND SIMILAR CLAIMS IN OTHER FORUMS Upon consideration of the Motion of Eduardo Saverin, Peng-Tsin Ong, Scott Weiss, Andreessen Horowitz, LLC, Andreessen Horowitz Fund, II, L.P., and Stephen Stuut (collectively, the Non-Founder Defendants ) (i) to enforce the Plan, Confirmation Order and Sale Order and (ii) to order Plaintiff to dismiss the Civil Action and enjoin, bar and/or estop Plaintiff from prosecuting Counts I, III, IV, V, VI, VII, and IX in Bloso v. Mattes, C.A. No VCS the Civil Action and similar claims and causes of action in other forums (the Motion ), 2 the Court finds that: (i) it has jurisdiction over the matters raised in the Motion; (ii) this is a core proceeding pursuant to 28 U.S.C. 157(b) and 1334 upon which this Court may issue a final order; (iii) notice of the Motion and any hearing thereon was sufficient, proper, and adequate; and (iv) upon the record herein and after due deliberation thereon, good and sufficient cause exists for the granting of the relief as set forth herein. Accordingly, the Court hereby ORDERS that: 1 The last four digits of the Debtor s tax identification number are Defined terms used but not defined herein shall have the meanings ascribed to such terms in the Motion. 1

12 Case BLS Doc Filed 09/20/17 Page 3 of 3 1. The Motion is GRANTED in all respects; and Plaintiff shall immediately take all necessary action, at its sole cost and expense, to effectuate the dismissal with prejudice of the Estate Claims, specifically Counts I, III, IV, V, VI, VII, VIII and IX in Bloso v. Mattes, C.A. No VCS, in the Civil Action, currently pending in the Delaware Court of Chancery; and 3. Plaintiff is enjoined, barred and estopped from asserting or prosecuting Counts I, III, IV, V, VI, VII, VIII and IX in Bloso v. Mattes, C.A. No VCSthe Estate Claims, and Plaintiff is hereby directed to immediately cease and refrain from any further acts to prosecute or continue the claims and causes of action asserted against the Non-Founder Defendants and Thomas Kastenhfer in Bloso v. Mattes, C.A. No VCSthe Civil Action (whether in the Delaware Court of Chancery or any other court) or to, in any other manner, seek to enforce such claims and causes of action against the Non-Founder Defendants, Thomas Kastenhofer or other parties; and 4. This order shall be effective immediately upon entry and shall not be stayed pursuant to any applicable rule of the Federal Rules of Bankruptcy Procedure or Federal Rules of Civil Procedure. Dated:, 2017 Wilmington, Delaware HONORABLE BRENDAN L. SHANNON UNITED STATES BANKRUPTCY JUDGE 2

13 Case BLS Doc Filed 09/20/17 Page 1 of 1 CERTIFICATE OF SERVICE I, Todd C. Schiltz, hereby certify that on September 20, 2017, I caused a true and correct copy of the Limited Joinder And Limited Objection Of Thomas Kastenhofer To Motion Of Non-Founder Civil Action Defendants (I) To Enforce The Plan Confirmation Order And Sale Order And (II) To Enjoin Plaintiff From Prosecuting The Civil Action And Similar Claims In Other Forums to be served via the Court s CM/ECF system and first class mail upon the parties listed below. (Attorneys for Eduardo Saverin) Michael R. Nestor Elena C. Norman Young Conway Stargatt & Taylor, LLP Rodney Square 1000 North King Street Wilmington, Delaware (Attorneys for Eduardo Saverin) Manny A. Abascal Andrew R. Gray Ted A. Dillman Faraz R. Mohammadi Latham & Watkins LLP 355 South Grand Avenue, Suite 100 Los Angeles, California (Attorneys for JMO Wind Down Liquidating Trust) Christopher A. Ward Shanti M. Katona Polsinelli PC 222 Delaware Avenue, Suite 1101 Wilmington, Delaware David L. Buchbinder Office of the U.S. Trustee J. Caleb Boggs Federal Building Suite 2207 Wilmington, DE Dated: September 20, 2017 /s/ Todd C. Schiltz. Todd C. Schiltz (ID No. 3253)