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					                                                                                Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 1 of 38 Page ID

                                                                                  1   MICHAEL K. GRACE (SBN 126737)
                                                                                  2   PAMELA D. DEITCHLE (SBN 222649)
                                                                                  3   pdeitchle@gracelaw.com
                                                                                  4   GRACE+GRACE LLP
                                                                                      444 South Flower Street, Suite 1650
                                                                                  5   Los Angeles, California 90071
                                                                                  6   Telephone: (213) 452-1220
                                                                                      Facsimile: (213) 452-1222
                                                                                  8   Attorneys for Defendants XenForo Limited
                                                                                  9   and Kier Darby
                                                                                                          UNITED STATES DISTRICT COURT
                                                                                                    FOR THE CENTRAL DISTRICT OF CALIFORNIA
                                          444 South Flower Street, Suite 1650

                                                                                                                  WESTERN DIVISION
                                                Los Angeles, CA 90071
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                                                                                 14   vBULLETIN SOLUTIONS, INC., a          )   Case No.: CV 10-8209-R (JEMx)
                                                                                 15   California corporation,               )
                                                                                                                            )   DECLARATION OF KIER DARBY IN
                                                                                                    Plaintiff,              )   SUPPORT OF DEFENDANTS’
                                                                                 17                                         )   MOTION FOR SUMMARY
                                                                                 18          v.                             )   JUDGMENT
                                                                                 19   XENFORO LIMITED, an English           )
                                                                                 20   private limited company; and KIER     )
                                                                                 21   DARBY, a British citizen; and DOES 1- )
                                                                                      10, inclusive,                        )
                                                                                 22                                         )
                                                                                 23                 Defendants.             )
                                                                                 24                                         )


                                                                                                              DECLARATION OF KIER DARBY
                                                                                Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 2 of 38 Page ID

                                                                                  1                           DECLARATION OF KIER DARBY
                                                                                  2         I, Kier Darby, declare as follows:
                                                                                  3         1.     I have personal knowledge of the facts set forth in this declaration and,
                                                                                  4   if called upon to do so, I could and would testify competently from personal
                                                                                  5   knowledge as follows:
                                                                                  6         2.     In 1998, I graduated with a B.A. Honors degree from the National
                                                                                  7   Centre of Computer Animation at Bournemouth University in the United
                                                                                  8   Kingdom. After university, I started a computer graphics animation company,
                                                                                  9   Alternate Perspective 3D Ltd. (“AP3D”) with two fellow graduates. Our clients
                                                                                 10   included FIFA, AMD, and Ferrero Kinder.
                                                                                 11         3.     In 2000, while developing the AP3D website and working on my own
                                          444 South Flower Street, Suite 1650

                                                                                 12   personal projects, I became an active member of an online community of persons
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                                                                                      who develop third-party add-ons, which provide additional functionality for the
                                                                                 14   Internet forum software “vBulletin”. The vBulletin Internet forum software was
                                                                                 15   developed by Jelsoft Enterprises Limited (“Jelsoft”), a private limited company in
                                                                                 16   the UK founded by James E. Limm and John Percival.
                                                                                 17         4.     Like the majority of other Internet forum software applications, of
                                                                                 18   which dozens if not hundreds are available, vBulletin is written using the “PHP”
                                                                                 19   programming language. I made use of the programming training I had received at
                                                                                 20   university learn how to program in PHP.
                                                                                 21         5.     In early 2001, John Percival, a co-founder, lead developer and project
                                                                                 22   manager of vBulletin, took notice of my vBulletin add-on work. He offered me a
                                                                                 23   job as a freelance developer responsible for integrating my add-ons into the core
                                                                                 24   code for the next major release of vBulletin: vBulletin 2. I accepted his offer and
                                                                                 25   joined the Jelsoft team that already included Michael Sullivan and Freddie
                                                                                 26   Bingham. At the time, we all worked from our respective homes using our own
                                                                                 27   computer equipment, because Jelsoft did not have any physical offices.


                                                                                                                DECLARATION OF KIER DARBY
                                                                                Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 3 of 38 Page ID

                                                                                  1         6.     After the release of vBulletin 2 in 2002, Jelsoft started development of
                                                                                  2   vBulletin version 3. The nature of vBulletin development was to continually add
                                                                                  3   new features and improvements to the existing code. vBulletin 2 included most of
                                                                                  4   the code and features from vBulletin 1, and vBulletin 3 would include most of the
                                                                                  5   code and features from both vBulletin 1 and 2.
                                                                                  6         7.     In 2003, Percival resigned from the vBulletin development team, and I
                                                                                  7   was invited to take over the jobs of lead developer and product manager of
                                                                                  8   vBulletin on a freelance basis, which I accepted.
                                                                                  9         8.     As the lead developer and product manager, I had overall day-to-day
                                                                                 10   control over vBulletin software development. I also assumed responsibility for
                                                                                 11   many of the day-to-day tasks of managing the vBulletin business and had full
                                          444 South Flower Street, Suite 1650

                                                                                 12   access to all of Jelsoft’s computer systems, including servers hosting vBulletin’s
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                                                                                      websites, sales, license and customer data. I also had full access to the complete
                                                                                 14   history of all vBulletin software development.
                                                                                 15         9.     By the Spring of 2006, Jelsoft had become very successful due to the
                                                                                 16   popularity of the vBulletin software. On my recommendation, Jelsoft leased office
                                                                                 17   space in Pangbourne, Berkshire – approximately two miles from my home – to
                                                                                 18   serve as Jelsoft’s business and software development headquarters.
                                                                                 19         10.    In addition, Michael Sullivan, Ashley Busby, Scott MacVicar, and I, as
                                                                                 20   well as a number of other UK-based freelancers, became full-time, permanent
                                                                                 21   employees working out of the new Jelsoft office. I was entirely satisfied with the
                                                                                 22   compensation that I received both as a freelancer, and also as a full-time employee
                                                                                 23   of Jelsoft. True and correct copies of my employment agreement and Restrictive
                                                                                 24   Covenant Agreement, both dated April 6, 2006, are attached hereto as Exhibit A
                                                                                 25   and Exhibit B, respectively.
                                                                                 26         11.    When I became an employee of Jelsoft in April 2006, we had been
                                                                                 27   working on vBulletin 3.6. I believed that the architecture of vBulletin was
                                                                                 28   becoming outdated and cumbersome to maintain, due to the fact that it still


                                                                                                                DECLARATION OF KIER DARBY
                                                                                Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 4 of 38 Page ID

                                                                                  1   included large amounts of older code from older versions of vBulletin. The
                                                                                  2   development process was reaching the point at which almost as much effort was
                                                                                  3   being expended maintaining the old code and correcting errors therein as was
                                                                                  4   being spent developing new features.
                                                                                  5         12.    With considerable input from the development team, I decided that
                                                                                  6   3.6 would be the final version to use the old code, and that the next major release of
                                                                                  7   vBulletin (“vBulletin 4”) would consist of all new code, employing new “object
                                                                                  8   oriented” programming techniques that had only become available to PHP after
                                                                                  9   vBulletin 3 was released. I understood that this change would allow for faster, more
                                                                                 10   robust future development. We estimated that vBulletin 4 would require
                                                                                 11   approximately two years of design and development work before commercial
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                                                                                 12   release. We referred to vBulletin 4 as a “rewrite”, as we intended to implement all
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                                                                                      of the existing vBulletin 3 features using brand new code.
                                                                                 14         13.    We decided to make use of an approach called “model-view-
                                                                                 15   controller” (“MVC”) for the new PHP code, and “semantic XHTML” for the
                                                                                 16   vBulletin 4 user interface. Both MVC and semantic XHTML are widely-known,
                                                                                 17   industry-standard patterns, consistent with modern programming practices and
                                                                                 18   customer expectations. Both are subject to the interpretation of the individual
                                                                                 19   developer as to the manner in which they are implemented, in the same way as a
                                                                                 20   determination to make a cake does not dictate the ingredients or method.
                                                                                 21         14.    Many products and software frameworks implement their own
                                                                                 22   versions of MVC in PHP, and hundreds of thousands, if not millions of websites
                                                                                 23   and web software applications employ semantic HTML and XHTML, including
                                                                                 24   two of vBulletin’s major competitors, Invision Power Board and phpBB, both of
                                                                                 25   which released versions of their forum software using semantic XHTML in late
                                                                                 26   2007 to early 2008.
                                                                                 27         15.    After the release of vBulletin 3.6 in 2006, Jelsoft was focused on the
                                                                                 28   development of two add-on products for vBulletin (“Blog” and “Project Tools”).


                                                                                                                DECLARATION OF KIER DARBY
                                                                                Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 5 of 38 Page ID

                                                                                  1   During this period, Limm suddenly informed me that he wanted to add “social
                                                                                  2   networking” features to vBulletin as soon as possible. This was the first time that
                                                                                  3   Limm had ever instructed the development team to follow a specific development
                                                                                  4   path. I told Limm that development of these features would delay the start of work
                                                                                  5   on vBulletin 4, but he was insistent that the social networking features must be
                                                                                  6   developed immediately. Limm’s requirements for the features kept expanding, and
                                                                                  7   the aging vBulletin 3 architecture hampered the development process. Eventually,
                                                                                  8   we decided that the new features could only be achieved with a new vBulletin
                                                                                  9   version, and as a result we began working on vBulletin 3.7.
                                                                                 10         16.    In mid-2007, while we were developing vBulletin 3.7, Limm informed
                                                                                 11   me that he and Percival had sold their Jelsoft shares to IB Services Limited, an
                                          444 South Flower Street, Suite 1650

                                                                                 12   English affiliate of an American company, Internet Brands, Inc. (“Internet
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                                                                                      Brands”). I had been unaware that Limm was interested in selling Jelsoft, and I had
                                                                                 14   never met or had any contact with anyone from Internet Brands.
                                                                                 15         17.    Days before the sale of Jelsoft to Internet Brands completed, Ashley
                                                                                 16   Busby arranged for generous bonuses to be paid to all Jelsoft staff. These bonuses
                                                                                 17   were linked to the completion and release of vBulletin 3.6, but had been delayed for
                                                                                 18   several months.
                                                                                 19         18.    From June 2007 to mid-2008, I continued to work on the vBulletin 3.7
                                                                                 20   release with the features as directed by James Limm. With the exception of a single
                                                                                 21   conference call in the first days of 2008, which was unrelated to software
                                                                                 22   development, I had no direct contact with anyone from Internet Brands. I
                                                                                 23   understand that all communications between Jelsoft and Internet Brands were
                                                                                 24   conducted through James Limm, who remained managing director of Jelsoft.
                                                                                 25         19.    Throughout this time, Jelsoft continued to maintain its own
                                                                                 26   computing environment and servers; the Internet Brands network and that of
                                                                                 27   Jelsoft were not integrated at all.


                                                                                                                  DECLARATION OF KIER DARBY
                                                                                Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 6 of 38 Page ID

                                                                                  1         20.    In late June 2008, Internet Brands’ CEO Robert Brisco, Technology
                                                                                  2   Director Jennifer Rundell, and Project Manager Michael Anders visited Jelsoft’s
                                                                                  3   offices in England on short notice. The Saturday before Internet Brands’ visit on
                                                                                  4   the following Monday, James Limm sent me an email instructing me to prepare a
                                                                                  5   presentation about the development of vBulletin 4. vBulletin 4, however, was not
                                                                                  6   being developed at that time, because the development team had been diverted by
                                                                                  7   Limm to develop and write the social networking features that would debut in
                                                                                  8   vBulletin 3.7.
                                                                                  9         21.    I was present at and participated in meetings with Internet Brands at
                                                                                 10   the Pangbourne office over three days in June 2008. During the first of these
                                                                                 11   meetings, I discovered that Internet Brands’ corporate representatives believed that
                                          444 South Flower Street, Suite 1650

                                                                                 12   Jelsoft had been working on vBulletin 4 since at least 2007. Brisco expressed shock
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                                                                                      when I told him that we had been working on upgrades to the vBulletin 3 series,
                                                                                 14   that we were just starting to plan the development of vBulletin 4, and that vBulletin
                                                                                 15   4 was two years away from commercial release.
                                                                                 16         22.    I have since learned that Brisco has testified that, prior to June 2008,
                                                                                 17   Limm had assured him on a regular basis that Jelsoft was working on vBulletin 4
                                                                                 18   and that progress was good. Contrary to Limm’s assurances to Brisco, vBulletin 4
                                                                                 19   had only reached its early planning stages, with functional requirements still being
                                                                                 20   defined. With the exception of the decision to make use of MVC and semantic
                                                                                 21   XHTML principles, no technical design or development work for vBulletin 4 had
                                                                                 22   been undertaken at all.
                                                                                 23         23.    Over the subsequent days of meetings in Pangbourne, Scott MacVicar
                                                                                 24   and I met with Rundell and Anders to formulate a development plan and schedule
                                                                                 25   for vBulletin 4, which was still intended to be all new code at that time. I felt that
                                                                                 26   the meetings were productive, and understood that Rundell and Anders believed
                                                                                 27   the same. We parted on good terms.


                                                                                                                 DECLARATION OF KIER DARBY
                                                                                Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 7 of 38 Page ID

                                                                                  1         24.    One of the resolutions made at the Pangbourne meetings was to
                                                                                  2   improve communications between the vBulletin team and Internet Brands, by,
                                                                                  3   among other things, scheduling weekly conference calls with Internet Brands’ staff.
                                                                                  4   By participating in the subsequent conference calls, I became acquainted with
                                                                                  5   Joseph Rosenblum, who is now Chief Technology Officer for Internet Brands.
                                                                                  6         25.    James Limm advised me that, based on his discussions with Internet
                                                                                  7   Brands, the scope of vBulletin 4 would have to be revised to be ready for
                                                                                  8   commercial release within 18 months, not two years. He instructed me to draft a
                                                                                  9   document that would illustrate roughly how the development process might
                                                                                 10   occupy the 18-month period. I produced a high-level document named
                                                                                 11   “schedule_draft.doc”, which was a single page with less than 100 words consisting
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                                                                                 12   of four or five colored blocks containing text like “Design vB4 core: 3 months” and
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                                                                                      “Write vB4 application: 12 months.” I gave Limm a printed copy of this document.
                                                                                 14         26.    On August 4th, 2008, at Limm’s direction, I posted a public
                                                                                 15   announcement on vBulletin.com, stating among other things that vBulletin 4
                                                                                 16   would be consist of all-new code, using a modern industry-standard programming
                                                                                 17   approach called “MVC”, and that vBulletin 4 would employ “semantic XHTML”
                                                                                 18   for its user-facing output, consistent with modern website design standards.
                                                                                 19         27.    In late August 2008, Limm told me that Internet Brands’ management
                                                                                 20   had requested that Sullivan and I travel to corporate headquarters in Los Angeles,
                                                                                 21   California, USA, for a series of meetings about vBulletin 4 development. Around
                                                                                 22   the same time, I learned that Internet Brands had hired a Los Angeles-based project
                                                                                 23   manager, Ray Morgan, to manage Jelsoft’s development of vBulletin 4 in England.
                                                                                 24   The result was that vBulletin development would be subject to multiple levels of
                                                                                 25   management in California and my previous decision-making responsibility was
                                                                                 26   greatly diminished.
                                                                                 27         28.    On September 2, 2008, Limm, Sullivan and I flew to Los Angeles.
                                                                                 28   During the flight, Limm told me and Sullivan, for the first time, that our eighteen-


                                                                                                                DECLARATION OF KIER DARBY
                                                                                Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 8 of 38 Page ID

                                                                                  1   month development schedule for vBulletin 4 was not acceptable to Internet Brands,
                                                                                  2   and that we would probably need to deliver a product half that time, or only nine
                                                                                  3   months.
                                                                                  4         29.    When we arrived in Los Angeles on the afternoon of September 3rd
                                                                                  5   2008, we met Brisco, who was was cold and sharply criticized our development
                                                                                  6   pace as “glacial.” He said that he had already informed Internet Brands’
                                                                                  7   shareholders that vBulletin 4 would be ready very soon, and, therefore, Internet
                                                                                  8   Brands in Los Angeles would assume direct control over the vBulletin development
                                                                                  9   process to ensure the delivery of vBulletin 4 by March 2009. To meet this
                                                                                 10   accelerated schedule, Brisco proposed outsourcing all development to China and
                                                                                 11   transforming Jelsoft’s development staff from code developers to code reviewers of
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                                                                                 12   work by Chinese software writers.
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                                                                                            30.    I told Brisco that the vBulletin 4 product as then planned could not be
                                                                                 14   developed within six months, and in a period of six months we could only develop
                                                                                 15   a very limited set of new features based on the creaky and outdated architecture of
                                                                                 16   vBulletin 3. Brisco replied that only programmers care about software architecture,
                                                                                 17   and that anyone who proposed a project to him with a timeline exceeding six
                                                                                 18   months would be fired. He indicated that if we did not agree with his new
                                                                                 19   direction for developing vBulletin on an accelerated schedule, we were free to leave
                                                                                 20   and not return for further meetings.
                                                                                 21         31.    Following the meeting with Brisco, the scope of the vBulletin 4 project
                                                                                 22   changed completely, from an effort to write a brand new product with all-new
                                                                                 23   code, into a one where a handful of new features would be added on top of the
                                                                                 24   existing vBulletin 3 code with minor changes thereto. Planning for the previously
                                                                                 25   envisioned project was abandoned, and no further work was done to progress it.
                                                                                 26         32.    Sullivan and I also attended a meeting with a number of Internet
                                                                                 27   Brands’ staff, including Jennifer Rundell and Christopher Holland (a web
                                                                                 28   developer) about search engine optimization (“SEO”) features that Internet Brands


                                                                                                                DECLARATION OF KIER DARBY
                                                                                Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 9 of 38 Page ID

                                                                                  1   wanted to include in vBulletin 4. “Search engine optimization” is a practice
                                                                                  2   whereby websites attempt to improve their ranking on search engines such as
                                                                                  3   Google, with the goal of appearing as close to the top of the list of search results as
                                                                                  4   possible. We reviewed the features of a popular third-party vBulletin add-on called
                                                                                  5   vBSEO, developed by Crawlability, Inc., of Puerto Rico. We noted on a whiteboard
                                                                                  6   a number of the features from vBSEO that we felt would be of benefit and could be
                                                                                  7   developed for vBulletin 4 quickly and easily. At the meeting I took a photograph of
                                                                                  8   the whiteboard rather than transcribe its contents onto paper and emailed a copy
                                                                                  9   of the photo to the other attendees so that they could have a record of the
                                                                                 10   whiteboard, too.
                                                                                 11         33.    In mid-September 2008, Ray Morgan travelled to Jelsoft’s office in
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                                                                                 12   Pangbourne to continue working on specifications for vBulletin 4. I was instructed
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                                                                                      to write a specification for a new vBulletin content management system (“CMS”),
                                                                                 14   which I did, and I forwarded the specification to Internet Brands senior personnel,
                                                                                 15   including Jennifer Rundell. A “content management system” in this context is a
                                                                                 16   software application that allows text, pictures and other material to be prepared for
                                                                                 17   publishing on a website, and provides a structure within which the material can be
                                                                                 18   published.
                                                                                 19         34.    Rundell asked me to travel back to California at very short notice in
                                                                                 20   order to work through the CMS specification with Internet Brands’ personnel. I
                                                                                 21   was reluctant to make the journey, because I had a year-old son and for many
                                                                                 22   months I had been spending the majority of my days and evenings working on
                                                                                 23   vBulletin rather than spending time with my family. Rundell informed me that if I
                                                                                 24   did not travel to California, my involvement with developing the initial design for
                                                                                 25   the vBulletin 4 CMS would be diminished.
                                                                                 26         35.    Accordingly, I flew to California and worked on the CMS specification
                                                                                 27   with Ray Morgan in a small office in Internet Brands’ building. I had no need to


                                                                                                                 DECLARATION OF KIER DARBY
                                                                                Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 10 of 38 Page ID

                                                                                   1   access Internet Brands’ secured network, computers or data servers while I was in
                                                                                   2   California, and I never did so.
                                                                                   3         36.    Before returning to England, I had an informal and cordial meeting
                                                                                   4   with Brisco, Rundell and Morgan in Brisco’s office. During that meeting, Brisco
                                                                                   5   and Rundell thanked me for travelling to California and participating in valuable
                                                                                   6   and productive meetings. I asked them why they had previously believed that
                                                                                   7   Jelsoft would be ready to deliver the vBulletin 4 “rewrite” in late 2008. Brisco and
                                                                                   8   Rundell told me that that there had been a series of miscommunications between
                                                                                   9   Internet Brands and James Limm. I was also told that Internet Brands’ lack of
                                                                                  10   involvement with Jelsoft before the acquisition and for a full year after the
                                                                                  11   acquisition occurred in June 2007 was due to Internet Brands’ management’s focus
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                                                                                  12   on preparing for a public offering of common stock in Internet Brands.
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                                                                                             37.    Over the next several months, I worked diligently to comply with
                                                                                  14   Internet Brands’ development schedule and methodology. I frequently expressed
                                                                                  15   concern about the unreasonable timeframe demanded by Internet Brands and
                                                                                  16   proposed that we work on a rewrite for a new version of vBulletin rather than
                                                                                  17   adding a handful of new features to vBulletin 3 and calling it “vBulletin 4.” I was
                                                                                  18   concerned that vBulletin customers would reject the product, which I had been
                                                                                  19   previously announced to be an all-new version. This concern was especially acute,
                                                                                  20   as Internet Brands also had decided to change the vBulletin licensing fees and
                                                                                  21   structure to a model that I believed was less favorable to customers.
                                                                                  22         38.    In early January 2009, vBulletin 3.8 was released. It was the first
                                                                                  23   version of vBulletin whose release was managed by Internet Brands. I reviewed
                                                                                  24   numerous instances of negative consumer feedback, based on Internet Brands’
                                                                                  25   failure to explain in advance certain features that were perceived by customers as
                                                                                  26   enabling Internet Brands to surreptitiously harvest private data about vBulletin
                                                                                  27   customers. These customer concerns were exacerbated by Internet Brands’ long
                                                                                  28   delays in responding to questions from customers following the release.


                                                                                                                 DECLARATION OF KIER DARBY
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                                                                                   1         39.    Around the same time, James Limm decided to create a series of
                                                                                   2   “developer blogs” for the vBulletin.com website in which members of the team
                                                                                   3   would reveal various aspects of the development process, including new features
                                                                                   4   that were being developed. Over a period of months, vBulletin staff posted blogs
                                                                                   5   and forum posts detailing the upcoming features and technical information
                                                                                   6   intended to be included in vBulletin 4.
                                                                                   7         40.    From October 2008 -- when coding of the vBulletin 4 features began --
                                                                                   8   to my last day at Jelsoft, my work met with praise from Ray Morgan and Internet
                                                                                   9   Brands’ management. My work on the visual style for vBulletin 4 received a
                                                                                  10   particularly effusive response, and Jennifer Rundell described the developer blog I
                                                                                  11   authored, in which I detailed some of my styling work, as “gold”. This blog also
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                                                                                  12   met with an excellent reaction from vBulletin customers. I understood that
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                                                                                       Internet Brands’ management was delighted with my work, and never received any
                                                                                  14   comments to the contrary.
                                                                                  15         41.    In late February 2009, while I was attending a conference in London
                                                                                  16   with the rest of the UK-based vBulletin development team, I learned that Internet
                                                                                  17   Brands had informed Ashley Busby that his position was made “redundant” that
                                                                                  18   morning, and that his employment was terminated by Jelsoft. Given that Internet
                                                                                  19   Brands had refused to hire more developers for the UK office but was actively
                                                                                  20   recruiting in Los Angeles, I became concerned about my own job security.
                                                                                  21         42.    I also observed that the mounting pressure to develop vBulletin 4
                                                                                  22   features on the outdated vBulletin 3 code base on an expedited schedule was taking
                                                                                  23   its toll on my Jelsoft development team. During a spring 2009 conference call with
                                                                                  24   the whole development team, Joseph Rosenblum stated that no Jelsoft employees
                                                                                  25   would be permitted to take any time off until vBulletin 4 was completed. I
                                                                                  26   responded that the team was already working around the clock to meet an
                                                                                  27   impossible deadline, and that such an oppressive tactic would not improve
                                                                                  28   productivity or quality but would further erode Jelsoft team morale. Rosenblum


                                                                                                                 DECLARATION OF KIER DARBY
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                                                                                   1   appeared not to understand the scope of the problem and refused to change the
                                                                                   2   new “no holiday” policy.
                                                                                   3         43.    On April 14th 2009, Michael Sullivan resigned from Jelsoft, despite
                                                                                   4   my efforts to persuade him to stay. During his final weeks, at Jelsoft he continued
                                                                                   5   to work hard, and I observed no drop in his productivity. He even delivered a final
                                                                                   6   release of the vBulletin Project Tools product to customers just a couple of days
                                                                                   7   before the end of his employment.
                                                                                   8         44.    After Sullivan left, the development of vBulletin 4 slowed
                                                                                   9   considerably, because I was the only person remaining with the expertise to
                                                                                  10   complete many of the outstanding tasks. Internet Brands sought to speed up
                                                                                  11   production by outsourcing some template development work to a company located
                                          444 South Flower Street, Suite 1650

                                                                                  12   in India, but the work product was slow to be delivered and was unsatisfactory in
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                                                                                       many ways. Likewise, Internet Brands re-purposed some of its own in-house
                                                                                  14   development staff to work on vBulletin 4 under my supervision, but their work was
                                                                                  15   inferior to that of seasoned vBulletin developers and was often unusable without
                                                                                  16   significant editing from me. I became increasingly frustrated by Internet Brands’
                                                                                  17   lack of support and rejection of my efforts to maintain the high quality of vBulletin
                                                                                  18   and to provide the superb customer service that had been the cornerstone of
                                                                                  19   vBulletin and of my professional life.
                                                                                  20         45.    On May 8, 2009, I submitted my letter of resignation to James Limm,
                                                                                  21   effective thirty days later. Later that day, I spoke with Limm and Morgan about the
                                                                                  22   reasons for my departure and about plans for helping Jelsoft to manage vBulletin
                                                                                  23   development after I left. We agreed that I would document my processes for
                                                                                  24   developing and managing vBulletin software, and that I would put affairs in order
                                                                                  25   prior to my exit, so that the ongoing development task would be as easy to manage
                                                                                  26   as possible. I was also candid about my fears that vBulletin was being driven down
                                                                                  27   a dangerous path that would damage its sales, reputation and market position. I
                                                                                  28   stated that I did not want to be associated with an incremental version of vBulletin


                                                                                                                  DECLARATION OF KIER DARBY
                                                                                Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 13 of 38 Page ID

                                                                                   1   4 to be released prematurely, because it would severely damage my own reputation
                                                                                   2   for developing high-quality software products.
                                                                                   3         46.    Morgan asked me to stay with Jelsoft for an extra two weeks -- until
                                                                                   4   June 19, 2009 -- so I could help to complete the beta (pre-release) process for
                                                                                   5   vBulletin 4. I agreed to assist in any way I could. He also asked if I had any future
                                                                                   6   plans. I responded that I had no firm plans, but that I believed I could probably
                                                                                   7   find work as a freelance developer. He said that my expertise would be missed and
                                                                                   8   proposed that Jelsoft and/or Internet Brands would likely want to engage my
                                                                                   9   development services. I told him that I would entertain such an offer if and when it
                                                                                  10   was made.
                                                                                  11         47.    On May 11, 2009, Scott MacVicar resigned from Jelsoft. Morgan and
                                          444 South Flower Street, Suite 1650

                                                                                  12   Limm asked that he also stay until June 19th 2009, and he agreed.
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                                                                                             48.    After Scott MacVicar and I resigned from Jelsoft, the only personnel
                                                                                  14   remaining in the Jelsoft office were James Limm and Darren Gordon. Limm
                                                                                  15   decided to close the office and have the two of them work from home, as had been
                                                                                  16   the case in the early years of vBulletin. Because Jelsoft had no further need for
                                                                                  17   office furniture and equipment, MacVicar and I asked Limm if we could take our
                                                                                  18   desks, chairs and computer displays. Limm agreed and also allowed Sullivan and
                                                                                  19   Busby, who had already left, to do the same. I also took a printer and miscellaneous
                                                                                  20   office supplies including pens, post-it notes and printer paper, with permission
                                                                                  21   from James Limm. MacVicar also asked Limm if he could donate one of the three
                                                                                  22   servers from the office to the PHP project, as Jelsoft for had not used it over a year.
                                                                                  23   Limm agreed.
                                                                                  24         49.    Prior to closing the office, I saw Limm spending several days
                                                                                  25   shredding documents. He also directed the employees at the office to electronically
                                                                                  26   “shred” the disk drives from our office computers in order to permanently and
                                                                                  27   irreversibly erase the data stored on them, which we did. I understood that Limm
                                                                                  28   instructed us to do this because a suggestion had been made that the computers


                                                                                                                  DECLARATION OF KIER DARBY
                                                                                Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 14 of 38 Page ID

                                                                                   1   would be donated to charity. I understood that this electronic “shredding” process
                                                                                   2   would destroy no valuable data, as copies of all electronic documents on which the
                                                                                   3   staff worked were stored on the two remaining office servers, which Limm said that
                                                                                   4   he would take away himself. I expected Limm would forward the data on these
                                                                                   5   servers, or the servers themselves, to Internet Brands.
                                                                                   6          50.   Any Jelsoft or vBulletin property in the form of electronic data to
                                                                                   7   which I had access remained on the Jelsoft servers, and what little paper material I
                                                                                   8   had, I left at the office. I did not attempt to retain any of this material with the
                                                                                   9   exception of my email, which I retained due to the presence of personal messages
                                                                                  10   within it.
                                                                                  11          51.   At no point during my work for and with Jelsoft was I ever asked by
                                          444 South Flower Street, Suite 1650

                                                                                  12   Internet Brands to return or destroy any vBulletin, Jelsoft or Internet Brands
                                                Los Angeles, CA 90071
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                  Intellectual Property

                                                                                       property or proprietary materials in my possession, custody or control. Until this
                                                                                  14   lawsuit, I never received any communications, telephonic or electronic, from Lynn
                                                                                  15   Tokeshi or anyone affiliated with Internet Brands or Jelsoft about the return of any
                                                                                  16   allegedly proprietary materials obtained during my employment with Jelsoft.
                                                                                  17          52.   On June 19th 2009, my last day at Jelsoft, the working day concluded
                                                                                  18   with an extended teleconference with the entire vBulletin development team. As
                                                                                  19   the meeting ended, Rundell, Morgan and others thanked me for my contributions
                                                                                  20   to vBulletin, and wished me well for the future.
                                                                                  21          53.          The following week, I received a “farewell and best wishes”
                                                                                  22   greetings card and £100 Amazon.co.uk gift certificate from Internet Brands, in
                                                                                  23   which was the following written notes. True and correct copies of the card and gift
                                                                                  24   certificate are attached hereto as Exhibits C and D, respectively.
                                                                                  25          54.   After my final day at Jelsoft on June 19, 2009, Sullivan, MacVicar,
                                                                                  26   Busby and I decided to design and develop a wholly new forum software
                                                                                  27   application. This forum software would eventually become known as XenForo.
                                                                                  28   Our goal was to build a saleable product by the end of 2010.


                                                                                                                  DECLARATION OF KIER DARBY
                                                                                Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 15 of 38 Page ID

                                                                                   1         55.    Based on my knowledge of developing Internet forum software, I
                                                                                   2   understood that our target release date was ambitious. Sullivan, MacVicar and I
                                                                                   3   agreed that we would not follow the traditional software development process, in
                                                                                   4   which a long time is spent drafting an extensive design for the software before
                                                                                   5   starting to write code. Rather, we decided to employ modern development
                                                                                   6   processes known as “Agile” and “Rapid Application Development”, in which only
                                                                                   7   very small amounts of design are done prior to writing a small amount of code and
                                                                                   8   reviewing it, followed by another small amount of design work before another
                                                                                   9   round of coding and review. This cycle repeats for the entire duration of the
                                                                                  10   development process. As such, the software evolved organically as time progressed
                                                                                  11   -- there was never an all-encompassing design to which we worked.
                                          444 South Flower Street, Suite 1650

                                                                                  12         56.    Further, we decided that to give ourselves the best chance of achieving
                                                Los Angeles, CA 90071
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                  Intellectual Property

                                                                                       our goal in the proposed time, and to avoid “reinventing the wheel”, we would use
                                                                                  14   third-party, Open Source software as the foundation of our application, including
                                                                                  15   the Zend Framework (for our PHP code) and jQuery (for our JavaScript).
                                                                                  16         57.    Software developers frequently use third-party repositories to secure,
                                                                                  17   back-up and monitor source code and its development. These repositories are also
                                                                                  18   referred to as “version control” systems. XenForo uses a publicly-available system
                                                                                  19   called Subversion (“SVN”), which besides storing a secure “master” copy of our
                                                                                  20   software source code, also tracks and logs every single change made to the source
                                                                                  21   code by user and date.
                                                                                  22         58.    After a few days of discussions regarding the basic architectural
                                                                                  23   structure of our new software, which we called simply “Foro” at that time, Michael
                                                                                  24   Sullivan wrote the first lines of code on June 30, 2009 and committed them to the
                                                                                  25   SVN repository.
                                                                                  26         59.    Our first few weeks of programming were focused on building a
                                                                                  27   flexible framework upon which we could build a forum application with a limited
                                                                                  28   set of features. This framework would serve as the base for continuing development


                                                                                                                 DECLARATION OF KIER DARBY
                                                                                Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 16 of 38 Page ID

                                                                                   1   for years to come. Our development process was very fluid, and most decisions
                                                                                   2   were made “on-the-fly” following discussions and debates between Michael
                                                                                   3   Sullivan and me.
                                                                                   4         60.    Around the end of September 2009, Scott MacVicar told Sullivan,
                                                                                   5   Busby and me that his passion for forum software had waned, and that he wanted
                                                                                   6   to depart. He did so, and quickly gained a position as a software developer for
                                                                                   7   Facebook in San Francisco.
                                                                                   8         61.    To mark progress in the development of XenForo, Sullivan and I
                                                                                   9   defined “milestones” that would focus our development efforts until such time as
                                                                                  10   they were achieved. These milestones included being able to output a page of
                                                                                  11   HTML to a web browser, the ability to register a user account, and the ability to
                                          444 South Flower Street, Suite 1650

                                                                                  12   post a message to a discussion topic. I was very pleased at the speed with which we
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                  Intellectual Property

                                                                                       achieved these milestones, but the software required far more work after these
                                                                                  14   milestones were achieved in order to become a marketable product.
                                                                                  15         62.    Except for several Open Source libraries, all of our source code is
                                                                                  16   original work authored by me, Michael Sullivan and to a lesser extent, Scott
                                                                                  17   MacVicar. Throughout our design and development, we never used, copied or
                                                                                  18   referenced any vBulletin source code or designs, which in any case is incompatible
                                                                                  19   with the object-oriented MVC software architecture that we developed for our
                                                                                  20   product. We did not and could not refer to any technical design documents related
                                                                                  21   to the vBulletin 4 “rewrite”, because the vBulletin 4 “rewrite” had been cancelled
                                                                                  22   before any design work could commence. Although XenForo contains a number
                                                                                  23   of general forum features that are also present in vBulletin, these features are
                                                                                  24   common to virtually every other Internet forum software application (of which
                                                                                  25   there are hundreds), and are present on innumerable websites. Our software
                                                                                  26   executes these features in a completely different way from vBulletin.
                                                                                  27         63.    During the time in which we were developing the XenForo software, I
                                                                                  28   continued to take an interest in vBulletin. I regularly read vBulletin-related


                                                                                                                  DECLARATION OF KIER DARBY
                                                                                Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 17 of 38 Page ID

                                                                                   1   discussions on various public forums, including those on vBulletin.com, and
                                                                                   2   occasionally logged in to the customer area of the vBulletin.com website, to which
                                                                                   3   all vBulletin customers, myself included, have access.
                                                                                   4         64.     I also remained in touch with several of my Jelsoft friends and former
                                                                                   5   colleagues including Freddie Bingham and Darren Gordon. On a number of
                                                                                   6   occasions, using the “Skype” text messaging system and by email, they told me
                                                                                   7   generally what they were working on or invited me to see some of their recent
                                                                                   8   work. I believe that they did this solely in the spirit of friendly conversation, and
                                                                                   9   none of the material that I saw had any bearing whatsoever upon the development
                                                                                  10   of XenForo.
                                                                                  11         65.     After I left Jelsoft, my former vBulletin colleagues occasionally asked
                                          444 South Flower Street, Suite 1650

                                                                                  12   me for help with various technical aspects of the vBulletin software, which I
                                                Los Angeles, CA 90071
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                  Intellectual Property

                                                                                       happily answered. Attached as Exhibit E, Exhibit F, and Exhibit G are true and
                                                                                  14   correct copies of email exchanges between me and vBulletin staff after I left Jelsoft.
                                                                                  15         66.     In the summer of 2010, when we were nearing the point at which we
                                                                                  16   had built an application that could be demonstrated to the public, we decided that
                                                                                  17   the time had come to decide upon a name for our software. After much
                                                                                  18   consideration of names that included “Foro” in some way, we chose “XenForo”,
                                                                                  19   which means “different/unique forum”.
                                                                                  20         67.     On June 24th 2010, more than one year after Sullivan, Busby and I had
                                                                                  21   left Jelsoft, we incorporated XenForo Ltd. as a private, limited liability UK
                                                                                  22   company. The three of us are the sole directors and shareholders in XenForo Ltd.
                                                                                  23         68.     Late on July 28th 2010, we deployed our software to our website --
                                                                                  24   XenForo.com -- in order to allow the public to use the XenForo product on our
                                                                                  25   website. I was thrilled by the response that our debut received, including very
                                                                                  26   positive messages from members of the vBulletin community and our former
                                                                                  27   Jelsoft and vBulletin colleagues.


                                                                                                                  DECLARATION OF KIER DARBY
                                                                                Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 18 of 38 Page ID

                                                                                   1         69.    On September 20th 2010, I announced on XenForo.com that a “beta”
                                                                                   2   or test version of our software would be made available for sale in the first week of
                                                                                   3   October, and then on September 28th gave a more specific date of October 5th
                                                                                   4   2010. The XenForo software at that point was still not complete and we advised
                                                                                   5   potential customers that it was unsuitable for deployment to mission-critical
                                                                                   6   websites, but it was at a sufficient state of readiness to allow customers to
                                                                                   7   experiment with it and provide further feedback.
                                                                                   8         70.    Development of the XenForo software continued after the release of
                                                                                   9   the beta version, and several further test versions were released to XenForo
                                                                                  10   licensees before Sullivan and I decided that it was sufficiently complete and robust
                                                                                  11   to warrant a “final” or “gold” release. We released this version as XenForo 1.0.0 on
                                          444 South Flower Street, Suite 1650

                                                                                  12   March 8, 2011. This represents a total development time from start to finish of
                                                Los Angeles, CA 90071
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                  Intellectual Property

                                                                                       slightly more than 20 months. Development of the XenForo software is ongoing,
                                                                                  14   and we released a major new version, XenForo 1.1.0, to public beta testing on
                                                                                  15   October 5 2011.
                                                                                  16         71.    On October 4 2010, only a few hours before the release of the XenForo
                                                                                  17   1.0.0 beta software, Internet Brands suddenly and without prior notice announced
                                                                                  18   on the public vBulletin.com website that Jelsoft and vBulletin Solutions Inc., had
                                                                                  19   filed a Claim in the High Court of Justice, alleging copyright infringement and
                                                                                  20   misappropriation of trade secrets among other claims. We received no prior
                                                                                  21   warning of this litigation, and were not contacted prior to its filing with any
                                                                                  22   attempt to answer their questions or to resolve the dispute.
                                                                                  23         72.    I have never sought to divert business from vBulletin, and I do not
                                                                                  24   have access to vBulletin customer lists or any other means to do so. XenForo is
                                                                                  25   marketed to the public at large, and is not specifically targeted to vBulletin
                                                                                  26   licensees. XenForo is not “backwards-compatible” with vBulletin in any way and
                                                                                  27   the two products cannot interoperate. As is common with Internet forum software,
                                                                                  28   XenForo offers an “import” system by which data such as users, discussions and


                                                                                                                  DECLARATION OF KIER DARBY
                                                                            Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 19 of 38 Page ID

                                                                               1   messages from other forum products can be translated into a format usable by
                                                                               2   XenForo. XenForo provides importers for vBulletin 3, and Invision Power Board
                                                                               3   3. Independently, XenForo customers have also developed importers for vBulletin
                                                                               4   4 and PunBB. By contrast, vBulletin itself offers importers for approximately one
                                                                               5   hundred other products.
                                                                               7         EXECUTED this 8th day of October, 2011 at Reading, Berkshire, England.
                                                                               8         I declare under penalty of perjury under the laws of the United States that
                                                                               9   the foregoing is true and correct.
                                                                              10                                         ______________________________
                                                                              11                                         Kier Darby
                                      444 South Flower Street, Suite 1650

                                            Los Angeles, CA 90071
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              Intellectual Property



                                                                                                             DECLARATION OF KIER DARBY
Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 20 of 38 Page ID

               EXHIBIT A
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               EXHIBIT B
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               EXHIBIT C
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              EXHIBIT D
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               EXHIBIT E
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               EXHIBIT F
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Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 37 of 38 Page ID

               EXHIBIT G
Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 38 of 38 Page ID

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