Free Affidavit in Support of Motion - District Court of California - California

Case 5:07-cv-05248-JW

Document 111

Filed 02/11/2008

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HAROLD J. MCELHINNY (CA SBN 66781) [email protected] MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: 415.268.7000 Facsimile: 415.268.7522 KENNETH A. KUWAYTI (CA SBN 145384) [email protected] MARC DAVID PETERS (CA SBN 211725) [email protected] MORRISON & FOERSTER LLP 755 Page Mill Road Palo Alto, CA 94304-1018 Telephone: 650-813-5600 Facsimile: 650-494-0792 Attorneys for Defendants ADVANCED MICRO-FABRICATION EQUIPMENT, INC. CHINA, ADVANCED MICRO-FABRICATION EQUIPMENT, INC. ASIA, and ADVANCED MICROFABRICATION EQUIPMENT INC. UNITED STATES DISTRICT COURT

14 NORTHERN DISTRICT OF CALIFORNIA 15 SAN JOSE DIVISION 16 17 APPLIED MATERIALS, INC., 18 Plaintiff, 19 v. 20 21 22 23 Defendants. 24 25 26 27 28
DECLARATION OF KENNETH A. KUWAYTI IN SUPPORT OF AMEC INC.'S AND AMEC CHINA'S MOTIONS TO DISMISS APPLIED'S FAC CASE NO. C07 05248 JW (PVT) pa-1229404

Case No.

C07 05248 JW (PVT)

ADVANCED MICRO-FABRICATION EQUIPMENT, INC. CHINA, ADVANCED MICRO-FABRICATION EQUIPMENT, INC. ASIA, ADVANCED MICRO-FABRICATION EQUIPMENT INC.,

DECLARATION OF KENNETH A. KUWAYTI IN SUPPORT OF AMEC INC.'S AND AMEC CHINA'S MOTIONS TO DISMISS APPLIED'S FIRST AMENDED COMPLAINT Date: Time: Courtroom: February 25, 2008 9:00 a.m. 8, 4th Floor

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I, Kenneth A. Kuwayti, do declare as follows: 1. I am a partner in the law firm of Morrison & Foerster LLP. I am admitted to

practice in the Northern District of California and am counsel for Defendants. 2. Attached hereto as Exhibit A is a true and correct copy of Applied's Factsheet for

the Fourth Quarter Fiscal 2007, available at http://www.appliedmaterials.com/about/assets/corporate_factsheet.pdf (last visited February 10, 2008), showing that Asia accounted for 77% of Applied's orders. 3. Attached hereto as Exhibit B is a true and correct copy of Applied's offices in

China, http://www.appliedmaterials.com/about/china_addresses.html?menuID=4_2 (last visited February 11, 2008). 4. Attached hereto as Exhibit C is a true and correct copy of a January 24, 2008 San

Jose Mercury News article quoting Applied CEO Mike Splinter, who was interviewed at the World Economic Forum in Davos, Switzerland. 5. Attached hereto as Exhibit D is a true and correct copy of a November 1, 2004

press release by Applied Materials, on the occasion of its 20th anniversary in China. 6. Attached hereto as Exhibit E is a true and correct copy of Applied's Standards of

Business Conduct, http://www.appliedmaterials.com/investors/cg_standards.html (last visited February 11, 2008). 7. Attached hereto as Exhibit F is a true and correct copy of an October 18, 2007

press release by the Department of Commerce's Bureau of Industry and Security, available at http://www.bis.doc.gov/news/2007/china10182007.htm (last visited February 9, 2008), which announces that Applied Materials China just received approval under a program to facilitate exports to civilian end-users in China. 8. Attached hereto as Exhibit G is a true and correct copy of Applied's February 5,

2008 Initial Disclosures, which identifies more than twenty people who Applied asserts may have "knowledge relating to the trade secrets that Applied alleges Defendants have misappropriated and to the particular circumstances surrounding Defendant's misappropriation of those trade secrets."
DECLARATION OF KENNETH A. KUWAYTI IN SUPPORT OF AMEC INC.'S AND AMEC CHINA'S MOTIONS TO DISMISS APPLIED'S FAC CASE NO. C07 05248 JW (PVT) pa-1229404

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9.

Attached hereto as Exhibit H is a true and correct copy of Gerald Yin's Employee

Exit Package Termination Certification, executed on January 20, 2004. 10. Attached hereto as Exhibit I is a true and correct copy of Applied's Corporate

Officers webpage, along with the biographies of Michael Splinter and Thomas St. Dennis, available at http://www.appliedmaterials.com/about/corporate_officers.html?menuID=2 (last visited February 11, 2008). 11. During several meet and confer discussions that the parties had with respect to

jurisdictional discovery, the parties reached agreement with respect to the production of documents in response to many of Applied's discovery requests, including, to my understanding, all of the requests relating to the defendants' California contacts. The parties' dispute has been over the production of documents relating to alter ego discovery, such as documents relating to the defendant companies' capitalization, or "all agendas" of every board meeting any of the companies had. Applied refers to the production of certain documents in Chinese. I am informed and believe that these documents are simply articles of incorporation for AMEC China and other AMEC China corporate filings such as corporate inspection reports and annual certificates of renewal to do business in China, which Applied had requested we produce as part of alter ego discovery. They were produced on February 1, promptly after we received them. I declare under penalty of perjury under the laws of the United States that to the best of my knowledge the foregoing is true and correct. Executed on February 11, 2008, in Palo Alto, California.

/s/ Kenneth A. Kuwayti Kenneth A. Kuwayti

DECLARATION OF KENNETH A. KUWAYTI IN SUPPORT OF AMEC INC.'S AND AMEC CHINA'S MOTIONS TO DISMISS APPLIED'S FAC CASE NO. C07 05248 JW (PVT) pa-1229404

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GENERAL ORDER 45 ATTESTATION I, Marc Peters, am the ECF User whose ID and password are being used to file the Declaration Of Kenneth A. Kuwayti In Support Of AMEC Inc.'s And AMEC China's Motions To Dismiss Applied's First Amended Complaint. In compliance with General Order 45, X.B., I hereby attest that Kenneth A. Kuwayti has concurred in this filing.

/s/ Marc David Peters Marc David Peters

DECLARATION OF KENNETH A. KUWAYTI IN SUPPORT OF AMEC INC.'S AND AMEC CHINA'S MOTIONS TO DISMISS APPLIED'S FAC CASE NO. C07 05248 JW (PVT) pa-1229404

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