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Exhibit B

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 1:13-cv-22131-JLK
SEGUROS UNIVERSALES, S.A., a Guatemalan
anonymous society, FIANZAS UNIVERSALES,
S.A. n/k/a ASEGURADORA FIDEUS, S.A., a
Guatemalan anonymous society, and
ORDENADORES, S.A., a Guatemalan
anonymous society,
Plaintiffs,
v.
MICROSOFT CORPORATION, a Washington
corporation,
Defendant.
DECLARATION OF ALFREDO SKINNER-KLEE
I, Alfredo Skinner-Kiee, being duly sworn, hereby state as follows:
1. My name is Alfredo Skinner-Kiee. I am over the age of eighteen (18) years. I am
a citizen and resident of the Republic of Guatemala ("Guatemala").
2. I am licensed to practice law in Guatemala and am admitted to, and in good
standing before, the Bar of Guatemala. I am a native Spanish speaker and have received some
training in the English language and can speak it fluently.
3. Currently, I am a senior partner at the law firm of Arenales & Skinner-Kiee in
Guatemala, Guatemala. My law firm is recognized as one of the leading law firms in
international business transactions and litigation in Central America. The firm and several of its
members, including me, consistently have been rated as among the best in Guatemala by
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several independent publications} including Chambers and Partners (Global and latin America);
Latin Lawyer 250; International Financial Law Review 1000; and Legal500.
4. Although I have a broad and diverse law practice} I specialize primarily in the
areas of complex commercial and civil and transaction and litigation; constitutional law;
administrative law; international commercial law; product liability; corporate law; and
banking/financial law. I represent (or have represented) numerous high-profile clients in some
of the most significant civil and commercial matters in Guatemala.
5. I currently serve as the President of the Board of Directors of the "Centro de
Arbitraje y Conciliaci6n de Ia Camara de Comercio de Guatemalan (the "Center for Arbitration
and Mediation of the Chamber of Commerce of Guatemalan) ("CENAC
11
)
1
the first and largest
private institution of its kind in Guatemala. CENAC administers} promotes} and facilitates the
arbitration and mediation of legal disputes among private litigants in the commercial and
financial settings. In addition} from 1990 to 1995
1
I served as a member of the "Parlamento
Centroamericand
1
(the "Central American Parliament
11
) ("PARLACEN
11
)
1
which is the
parliamentary body of the "Central American Integration Systemn r'SICA
11
)
1
an institution with
the fundamental aim of promoting the political} legal} economic} and ideological integration of
the countries of Central America. The PARLACEN is charged with
1
among other duties}
proposing and analyzing legislation} international and regional treaties} and other agreements
on behalf of SICA. I also served as a director from 2004 to 2008 of the "Banco Centroamericano
de lntegracion Economican (the "Central American Bank of Economic Integration}}) ("CABEI
11
)
1
a
multilateral bank that aims to promote the economic integration and development of the
countries of Central America.
2
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6. Throughout my thirty-plus years legal career, I have served on the board of
directors of several leading corporations in Guatemala, including Tabacalera Centroamericana
S.A. (Philip Morris International subsidiary); Mexichem Guatemala, S.A.; various subsidiaries of
the Neumann Kaffee Gruppe in Guatemala; Corrugadora de Guatemala, S.A.; and various
subsidiaries of Fresh Del Monte Inc. in Guatemala.
7. I have been retained as an expert witness or expert consultant in proceedings in
both Guatemala and the United States. Previously, I served as an expert on behalf of one of the
defendants in a matter before this Court that was styled, Vil/eda Aldana v. Fresh Del Monte
Produce, Inc. d/b/a Del Monte Fresh Produce Company and Compafiia de Desarrollo Bananero
de Guatemala, S.A., No. 01-3399-civ-MORENO (S.D. Fla. 2003).
8. I have been engaged by the Defendant, Microsoft Corporation ("Microsoft" or
"Defendant") in the matter styled, Seguros Universales, S.A., eta/. v. Microsoft Corporation, No.
1:13-cv-22131-JLK (S.D. Fla.). Upon information and belief, Microsoft has filed (or intends to
file) a motion to dismiss (the "Motion") the First Amended Complaint for Damages and
Injunctive Relief (the "Complaint"). I have been requested by Microsoft's legal counsel to
address certain matters of Guatemalan law which are implicated by the allegations in the
Complaint. I submit this declaration based upon my review and analysis of the Complaint
(including all exhibits); the "Settlement Agreement" entered into by the parties and dated April
27, 2012;
1
relevant sources of Guatemalan law; and my own personal knowledge of the laws,
legal processes, legal procedures, and judiciary of Guatemala.
1
A copy of the Settlement Agreement, along with a certified English translation, was provided
to me by Microsoft's legal counsel as part of this engagement.
3
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Copyright Protection and Enforcement in the Guatemalan Legal Regime
9. The
11
Ley de Derecho de Autor y Derechos Conexos de Guatemala, Decreto No 33-
1998 (as amended by Decreto No 56-2000 and by Decreto 11-2006} del Congreso de Ia
Republica" (hereinafter, referred to as, the (/Guatemalan Copyright Law") defines a computer
software program as (/a work made up of all instructions expressed through words, codes, plans
or in any other way that, when incorporated by machine into a legible support, is capable of
making a computer execute a certain task or obtain a certain result." (Guatemalan Copyright
Law, Article 4 (defining the term
11
Programa de ordenador'')). The Guatemalan Copyright Law
states that a computer software program shall be "protected in the same way as literary
works," and includes both the operating systems and any applications that are part of the
software. (Guatemalan Copyright Law, Article 30).
10. The
11
Reglamento de Ia Ley de Derecho de Autor y Derechos Conexos, Acuerdo
Gubernativo No 233-2003" (hereinafter, referred to as, the (/Implementing Regulation of the
Guatemalan Copyright Law") expressly recognizes the rights of copyright owners to register
their works, including copyrighted computer software programs, with the Intellectual Property
Registry of Guatemala. (See Implementing Regulation of the Guatemalan Copyright Law,
Articles 1 through 17). In addition, the Implementing Regulation of the Guatemalan Copyright
Law provides a means for copyright owners to protect and give notice of their rights to their
works by "us[ing] the expression 'Rights Reserved/ or the abbreviation [in Spanish] 'D.R.'
followed by the year in which the copyright protection began, the letter
11
C" enclosed in a circle,
and the full name of the copyright owner. (Implementing Regulation of the Guatemalan
Copyright Law, Article 24).
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11. The Guatemalan Copyright Law provides that "[o]nly copyright owners and those
expressly authorized by them may use the work in any way .... " Thus, copyright owners may
seek to enforce their rights in the computer software programs against anyone who infringes
on those rights. Acts of infringement may include, inter alia, any of the following: (1) the
unauthorized and direct or personal use of a copyrighted computer software program; (2) the
unauthorized and partial or complete assignment of the rights to a copyrighted computer
software program; (3) improperly authorizing or prohibiting a third party's use or exploitation
of a copyrighted computer software program; (4) the unauthorized and partial or complete
reproduction or transfer of the copyrighted computer software program to a different format
or medium, whether temporarily or permanently, through any process whatsoever, whether
currently known or to be developed in the future; (5) the unauthorized communication to the
public of the copyrighted computer software program, either directly or indirectly, through any
process whatsoever, whether currently known or to be developed in the future; (6) the
unauthorized distribution or dissemination to the public of the original or copies of the
copyrighted computer software program either by sale, lease, loan, or in any other way. (See
Guatemalan Copyright Law, Article 21).
12. Guatemalan law provides for both criminal and civil copyright infringement
actions. The "C6digo Penal de Guatemala" (the "Guatemalan Criminal Code") provides, in
pertinent part, that anyone who alters, erases, or, in any way, disables the programming or
rights-management instructions or applications used by a computer software program, without
the authorization of the copyright owner, shall be punished with imprisonment of six months to
four years and fined between two thousand and ten thousand quetzales. (See Guatemalan
5
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Criminal Code, Articles 274 "A" and 274 "B"). Moreover, anyone who copies or, in any way,
reproduces the programming or rights-management instructions or applications used by a
computer software program, without the authorization of the copyright owner, shall be
punished with imprisonment of six months to four years and fined between five hundred to
twenty-five hundred quetzales. (See Guatemalan Criminal Code, Article 274 "C"). Furthermore,
the Guatemalan Criminal Code provides that anyone who sells, licenses/leases, or otherwise
distributes versions of an original covered work, without the authorization of the author or
copyright owner, shall be punished with imprisonment of between one and six years and fined
between fifty thousand and seven hundred and fifty thousand quetzales. (See Guatemalan
Criminal Code, Article 274).
13. In the year 2006, the Guatemalan Congress passed some amendments to the
Guatemalan Copyright Law, which were published as Decereto No 11-2006 and became
effective on May 5, 2006. Among other things, Decreta No 11-2006: (a) recognized criminal
copyright crimes as "public actions," thus authorizing law enforcement authorities to arrest
suspected infringers and seize illegal "pirated" software programs and computer equipment;
(b) substantially expanded the number of infringing acts, creating new crimes that, as described
above, penalize the circumvention of copy-protection technologies and the removal or
alteration of programming or rights management information from computer software
programs; (c) created the "Fiscalia de Seccion de Delitos Contra Ia Propiedad lntelectual" (the
"Office of the Special Prosecutor for Intellectual Property Crimes") (hereinafter, referred to as,
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the "Guatemalan Special Prosecutor
11
), as part of the "Office of the Attorney General,
112
to have
exclusive responsibility for prosecuting criminal copyright infringements; and (d) established
procedures for the Guatemalan Special Prosecutor or an aggrieved copyright owner to request
and obtain precautionary remedial measures from a court of competent jurisdiction in both
criminal and civil copyright infringement actions. {See generally, Guatemalan Copyright Law,
Articles 123 - 134 ).
14. The Guatemalan Copyright law provides, in pertinent part, that the Guatemalan
Special Prosecutor shall have responsibility for the prosecution of criminal actions against
persons who commit felonies and misdemeanors, as established under the Guatemalan
Copyright law, the Guatemalan Criminal Code, and other laws. (See Guatemalan Copyright Law,
Article 127). Pursuant to the Guatemalan Copyright law, the owner or holder of a copyright (or
a consumer organization or trade association that adequately represents the interests of the
owner or holder of a copyright) may cause the Guatemalan Special Prosecutor to initiate
criminal proceedings against an infringing party by filing a complaint with the Guatemalan
Special Prosecutor describing and offering evidence of the alleged infringing acts. (See id.) The
law the Guatemalan Special Prosecutor to take
11
direct and immediate action
11
against the infringing parties. {See id.) The Guatemalan Special Prosecutor, either sua sponte or
at the request of the owner or holder of the copyright, and in accordance with the
11
C6digo
Procesal Penal de Guatemala" (the
11
Guatemalan Code of Criminal Procedure"), shall request
that a court of competent jurisdiction order any precautionary remedial measure permitted
2
Several of the English-language translations which are attached as exhibits to the Complaint
refer to the Guatemalan Special Prosecutor generally as the
11
Attorney General."
7
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under Article 128bis. of the Guatemalan Copyright Law as necessary to safeguard the rights of
the owner or holder of the copyright which is or may soon be infringed. (See Guatemalan
Copyright Law, Article 128). The court, in turn, is required to act "urgently" and rule on the
Guatemalan Special Prosecutor's request so as to enable the Guatemalan Special Prosecutor to
implement (with the aid of the local police authority, as the situation may require) the,
precautionary remedial measure(s) necessary to address an actual or imminent violation.
3
(See
id.)
15. The precautionary remedial measures available under Article 128bis. of the
Guatemalan Copyright Law, include the following:
(a) The immediate cessation of the unlawful or infringing acts;
(b) The search of public or private properties, whether opened or closed;
(c) The seizure of real and personal property, including, but not limited to, bank
accounts held by companies or individuals identified as possible perpetrators or
accomplice responsible for the reported illegal act, and seizure of the alleged
infringing party's net profits;
(d) The immediate seizure or confiscation of copies illegally produced from
protected works and/or the instruments used to produce, transport, store,
distribute, offer for sale, rent or communicate them to the public in any way;
3
Article 181 of the Guatemalan Code of Criminal Procedure provides that, unless otherwise
established by the criminal law, the Attorney General and the courts must examine the
admissible evidence to seek out the "truth" concerning the alleged infringing acts. (See
Guatemalan Code of Criminal Procedure, Article 181).
8
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(e) An order to review accounting files for natural or juridical persons identified as
potentially responsible for the infringing act;
(f) The temporary closure of the store or business where illegal copies of the
protected works are found, as well as any other infringing merchandise, media or
instruments used to produce them;
4
(g) The seizure of the accounting books or the computers that contains them of the
persons of corporations whom may be liable for the felony;
(h) Other temporary measures (implemented through binding orders) that, based on
the circumstances, appear more appropriate in order to bring about a temporary
cessation of the crime, while protecting rights recognized by this law or
preserving evidence or proof related to an actual or imminent violation. (See
Guatemalan Copyright Law, Article 128bis).
16. The Guatemalan Copyright Law contemplates that the owner or holder of the
copyright and the alleged infringing party may agree to an
11
0Ut-of-court" monetary settlement
of the dispute. "If there is agreement between the victim and the person or persons accused of
the unlawful criminal act, and the former has been satisfactorily compensated or duly
guaranteed payment for the damages caused by the commission of the crime by the latter, the
criminal infringement action may be terminated." (Guatemalan Copyright Law, Article 128ter).
4
Any such measure shall remain in place for whatever time is necessary in order to ensure the
results of the process, and may not be lifted while a risk of repeat violation exists or other
infringement of rights established by law and in treaties regarding copyright and other related
rights of which Guatemala is a party. (See Guatemalan Copyright Law, Article 128bis).
9
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17. Besides authorizing the Guatemalan Special Prosecutor to criminally prosecute
copyright infringement claims, the Guatemalan Copyright Law also permits the owners or
holders of copyrights to file civil copyright infringement actions. (See Guatemalan Copyright
Law, Article 133). Civil copyright infringement actions are governed by the "C6digo Procesal
Civil y Mercantil de Guatemala" (the "Guatemalan Code of Civil and Mercantile Procedures" or
"Guatemalan Code of Civil Procedure"), and applicable provisions of the Guatemalan Copyright
Law. (See Guatemalan Copyright Law, Article 133). Just like in a criminal copyright infringement
prosecution, a court of competent jurisdiction may order precautionary remedial measures to
protect the rights of the aggrieved holder or owner of the copyright, prevent the commission of
an alleged infringing act, avoid the consequences of an alleged infringing act, or preserve
evidence for trial. (See Guatemalan Copyright Law, Article 133bis).
18. The "statute of limitation" for a civil action arising under the Guatemalan
Copyright Law is five (5) years from the date of discovery of the alleged infringing act. (See
Guatemalan Copyright Law, Article 134). A civil copyright infringement claim may be asserted
jointly or independently of a criminal prosecution concerning the same alleged infringing
conduct. (See id.)
II. Summary of Complaint Allegations and Terms of the Settlement Agreement
19. Based upon my review of the Complaint, plaintiffs' allegations center on a
criminal (not a civil) copyright infringement action brought by the Guatemalan Special
Prosecutor, like the ones I generally described in paragraphs 14-16, above. The crux of
plaintiffs' allegations appears to be that Microsoft "abused" the legal process of Guatemala,
"maliciously prosecuted" the plaintiffs by filing a "fraudulenf' copyright infringement complaint
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(accompanied by "false" or "perjured" sworn statements), and/or "defrauded" the court in
Guatemala in that proceeding. Specifically, plaintiffs allege that Microsoft - either directly or
through its affiliate, Microsoft de Guatemala, S.A. ("Microsoft Guatemala") - filed a "false" or
"fraudulent" copyright infringement complaint
5
with the Guatemalan Special Prosecutor to
improperly secure the issuance of an order by a Guatemalan court, which authorized the
Guatemalan Special Prosecutor to take certain precautionary remedial measures against the
plaintiffs. (See 13-17, 28, 31-35, 65, 73).
20. The documents attached as exhibits to the Complaint in this case, include the
"criminal complaint" submitted by Microsoft to the Guatemalan Special Prosecutor requesting
that the Guatemalan .. Special Prosecutor institute criminal proceedings against the plaintiffs in
Guatemala (see paragraph 14, above), and related filings in those proceedings. On or about
April 27, 2012, the Second District Court for Criminal, Narcotics and Environmental Crimes in
and for the Municipal District of Guatemala City (the "Guatemalan Criminal Court
11
) entered an
order authorizing the Guatemalan Special Prosecutor, and its authorized agents, to conduct a
physical inspection and "audit" of the computer hardware located on plaintiffs' business
premises. (See Settlement Agreement, pp. 3 of 20; 7 of 20). As indicated above, such
authorization can only be ordered by a Guatemalan court at the request of the Guatemalan
Special Prosecutor. (See paragraph 14, above). The "audit" of plaintiffs' business premises was
conducted on Apri l 27, 2012. (See Settlement Agreement, p. 3). In the Complaint, plaintiffs
allege that Microsoft's representatives "appeared with armed Guatemalan law enforcement
5
Throughout the Complaint in this case, plaintiffs refer to the "criminal complaint" filed by
Microsoft with the Guatemalan Special Prosecutor as a "sworn declaration" or "seizure
motion," which, technically speaking, is not an accurate description of that document.
11
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officers" at plaintiffs' offices on April 27, 2012 (hereinafter, referred to as, the "Apri l 27th
Audit"), "halted Plaintiffs' business operations," "extorted" a settlement payment of US$70,000
from plaintiffs, and "coerced" plaintiffs' authorized representative to accept the terms of the
Settlement Agreement and execute it under "duress." (See Complaint, ~ ~ 37-40, 43-45, 65, 73,
79-80, 83). I note that although the Complaint alleges that it was Microsoft's representatives
who "appeared with armed Guatemalan law enforcement officers" at plaintiffs' offices on April
27, 2012, the type of precautionary remedial measures described in the Complaint are normally
carried out, pursuant to Articles 127, 128, and 128bis. of the Guatemalan Copyright Law, by the
Guatemalan Special Prosecutor who, in turn, may enlist the assistance of law enforcement
officers, as needed. (See paragraphs 14 and 15, above).
Ill. Issues of Guatemalan Law Relevant to Microsoft's Motion to Dismiss
Based on the Doctrine of Forum Non Conveniens
21. Upon information and belief, Microsoft has filed (or intends to file) a motion to
dismiss the Complaint based, in part, on the doctrine of forum non conveniens. I have been
asked by Mircrosoft, through its legal counsel in the United States, to opine on whether, if this
Court were to dismiss the Complaint on forum non conveniens grounds, Microsoft would be
amenable to service of process in Guatemala, and whether the plaintiffs would have a remedy
against Microsoft in the courts of Guatemala. It is my expert opinion that Microsoft would be
amenable to service or process in Guatemala. Furthermore, in my expert opinion, plaintiffs
would potentially have a remedy against Microsoft in Guatemala, based on the conduct alleged
in the Complaint. Below, I describe the bases for my opinions.
22. First, with respect to my opinion that Microsoft would be amenable to service of
process in Guatemala, I note that, in a case for damages, Article 16 of the Guatemalan Code of
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Civil Procedure confers "jurisdiction" (a legal concept referred to as "competencia," under
Guatemalan jurisprudence) to the judge presiding over the place where the damages are
alleged to have occurred. Because the Complaint seeks damages against Microsoft that
allegedly were sustained by the plaintiffs in Guatemala - and more specifically, at plaintiffs'
business offices in Guatemala City - the Guatemalan court presiding over that location would
have "jurisdiction" to hear plaintiffs' claims.
23. In addition, Article 14 of the Guatemalan Code of Civil Procedure provides, in
pertinent part, that one who has elected a "domicile," in writing, for purposes of certain acts or
matters, may be sued before the judge corresponding to such "domicile." The "criminal
complaint" filed by lVlicrosoft with the Guatemalan Special Prosecutor, which is attached as
Exhibit "A" to the Complaint in this action, states that, in or around June 19, 2007, Microsoft
recorded, with the "Registry of Powers of Attorney at the Judicial Branch's General Archives" of
Guatemala, a "notarial' deed" in which it appointed Mr. Rodolfo Estaurdo Varela Martinez to act
as Microsoft's duly authorized "power of attorney," and further provides Mr. Varela's address
as the "Place of Receiving Notices" in Guatemala. (See Complaint, Exhibit "A" at p. 1}. Because
Microsoft registered the address of Mr. Varela- its "power of attorney" - with the Guatemalan
authorities, it would appear that Microsoft elected a "domicile" in Guatemala, is capable of
being sued in a court presiding over the area where that "domicile" is located, and may receive
"notice" of any legal action filed against it in Guatemala at the address of its duly registered
"power of attorney."
24. I further note that the parties entered into a Settlement Agreement pursuant to
which they agreed that their rights and obligations under the agreement must be performed
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within the
11
framework of the Guatemalan legal system" (which is described as the
11
0rdenamiento jurfdico guatemalteco" in the Spanish-language original of the Settlement
Agreement). (See Settlement Agreement, p. 9, ~ ElEVEN). In my opinion, under Article 2 of the
Guatemalan Code of Civil Procedure, the aforementioned provision of the Settlement
Agreement constitutes, at a minimum, a
11
tacit" manifestation of the parties' mutual intention
to submit to the courts of Guatemala with respect to matters concerning or arising under the
Settlement Agreement.
6
25. It is worth noting that the Settlement Agreement states that the aforementioned
Mr. Varela represents Microsoft through the exercise of a
11
Special Judicial Power of Attorney,"
which is consistent with the information about Mr. Varela's authority that is contained in the
11
Criminal complaint," as described above. (See Settlement Agreement, p. 10; see also paragraph
23, above). Accordingly, pursuant to Articles 188 and 190 of the law of the Judicial Branch
(Decree of Congress 2-89 and amended), Mr. Varela is invested with all available powers to
represent and act on behalf of Microsoft in court proceedings in Guatemala, including, but not
limited to, the authority to accept service of process - including of any action arising under or
concerning the Settlement Agreement- on Microsoft's behalf in Guatemala.
26. As it relates to my opinion that plaintiffs would potentially have a remedy against
Microsoft for damages in Guatemala on the basis of the conduct alleged in the Complaint, I
note that, pursuant to the express terms of the Settlement Agreement, plaintiffs waived the
right to assert any
11
past, present, or future" claim against Microsoft based on the April 27th
6
Article 2 of the Guatemalan Code of Civil Procedure distinguishes between the terms
II express" and
11
tacit," with respect to the manner by which parties may manifest their intent to
submit to a court's
11
jurisdiction."
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Audit or arising out of or relating to the criminal copyright infringement action brought by the
Guatemalan Special Prosecutor against the plaintiffs in Guatemala. (See Settlement Agreement,
p. 6, ~ S E V E N ) .
27. The Settlement Agreement executed by the parties, is regulated under
Guatemalan law by Articles 2151 through 2169 of the "C6digo Civil de Guatemala" (the
"Guatemalan Civil Code"). Under Article 2151, a contract, like the Settlement Agreement, is
recognized as a valid "agreement in which the parties decided to resolve an unresolved or
litigious matter or terminate a pending proceeding." Based on my review of the Complaint and
the Settlement Agreement, that is precisely what the Settlement Agreement was designed to
accomplish with respect to the parties' dispute in the criminal copyright infringement action
brought by the Guatemalan Special Prosecutor. It also is consistent with Article 128ter. of the
Guatemalan Copyright law, which, as indicated above, contemplates that the parties may enter
into an "out-of-court'" monetary settlement to terminate a criminal copyright proceeding
brought by the Guatemalan Special Prosecutor (see paragraph 16, above).
28. Furthermore, the "waiver" of liability/"general release" in the Settlement
Agreement constitutes a valid and enforceable "legal undertaking" or "juridical act" ("Negocio
Juridico") under Articles 1251, et seq., of the Guatemalan Civil Code, and also is a valid and
enforceable obligation under Articles 1319, et seq., of the Guatemalan Civil Code. In particular,
Article 1326 of the Guatemalan Civil Code regulates and permits a party to voluntarily agree to
"abstain" or "refrain" from exercising any "right." In sum, the "waiver" of liability/"general
release" executed by the plaintiffs would be recognized and enforceable under Article 1326 of
the Guatemalan Civil Code, given that it constitutes a manifestation of plaintiffs' right to
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"abstain
11
or "refrain
11
from asserting any "past, present, or future
11
claim against Microsoft,
arising out of or relating to the April 27th Audit or the criminal copyright infringement
proceeding brought by the Guatemalan Special Prosecutor against the plaintiffs in Guatemala.
29. Under Article 1303 of the Guatemalan Civil Code, any "juridical act" ("Negocio
Jurfdico
11
), including an agreement to settle or resolve a pending dispute or legal proceeding,
may be subject to an if it is proven that the agreement was entered into without a
party's "consent
11
or against a party's "free will.
11
Plaintiffs' allegations in the Complaint that
they entered into the Settlement Agreement under may provide a basis for them to
seek an of the Settlement Agreement in a Guatemalan court. In particular, Article
214 of the Guatemalan Criminal Code provides, in pertinent part, that "any person, who,
without any legitimate authority, acts with violence or intimidation or, who, in any manner,
exerts control over another to compel him or her to act or refrain from acting against his or her
free will,
11
commits the crime of which, under Guatemalan law, is known as
"coacci6n." In Guatemala, private litigants, like the plaintiffs, are permitted to initiate criminal
proceedings with the office of the prosecutor, based upon certain crimes, including
("coacci6n").
30. In my opinion, based on the allegations in the Complaint, plaintiffs fail to
sufficiently plead ("coacci6n") as a matter of Guatemalan law. First, as indicated
above, Article 214 of the Guatemalan Criminal Code requires that the person committing the
"duressn do so without any legitimate authority. In this case, the alleged acts of -
namely the Apri l 27th Audit of plaintiffs' business premises (with the assistance of local law
enforcement officers); the potential or possible of plaintiffs' "computer servers
11
and
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other media; and the "halting" of plaintiffs' business operations, ALL were undertaken pursuant
to the legitimate authority granted by the Guatemalan Criminal Court to the Guatemalan
Special Prosecutor, and its authorized agents, to implement certain precautionary remedial
measures, pursuant to the Guatemalan Copyright Law. (See Complaint, Exhibit "A" ("Criminal
Complaint"), at pp. 8-9); Settlement Agreement, p. 3, ~ ONE.RECITALS; p. 6-7, ~ FIVE; p. 7, ~
SEVEN). Therefore, the allegations in the Complaint are insufficient to state a claim for "duress"
under Guatemalan law.
31. Additionally, nowhere in the Complaint do plaintiffs allege that Microsoft used
violence, force, or intimidation against plaintiffs' authorized representative, Ms. Maria Virginia
Rosado Zaldana (the person who executed the Settlement Agreement on plaintiffs' behalf), or
any other agent or representative of plaintiffs, or exerted such control over Ms. Zaldaiia or any
other agent or representative of plaintiffs, "so as to prevent them from exercising 'free will."'
On the contrary, the Settlement Agreement states that it is being entered into "by means of
mutual concessions" and upon the "common agreementn of both parties, and further contains
an attestation by each of the parties' representatives affirming that he or she is "duly
acquainted with the content, purpose, validity and other legal effects" of the agreement.
(Settlement Agreement, p. 3, ~ TWO.SETILEMENT; p. 10).
32. Moreover, upon information and belief, the plaintiffs tendered the full amount
of the settlement payment (US$70,000). The settlement payment was made in four separate
installments of $17,500.00. Three of the installment payments were made over a three (3)
month period after the Settlement Agreement was signed and the alleged "duress" occurred
(on April 27, 2012). In my opinion, because the plaintiffs continued to comply with the terms of
17
Case 1:13-cv-22131-JLK Document 18-3 Entered on FLSD Docket 09/20/2013 Page 8 of 11
the Settlement Agreement for several months after the agreement was signed and the alleged
"duress" occurred - and did so without disputing the terms of the agreement in a Guatemalan
court or with the Guatemalan Special Prosecutor or refusing to tender any portion or
installment of the settlement payment to Microsoft - plaintiffs have effectively uratified" the
Settlement Agreement and/or
11
Waived" any right to claim they agreed to its terms under
"duress/' as a matter of Guatemalan law.
33. In addition to the criminal remedy for "annulment" described above,
Guatemalan law also provides a civil remedy for the of a contract. Civil
11
annulment" actions are governed under the Guatemalan Code of Civil Procedure, which
permits the recovery of monetary damages suffered by a plaintiff as a result of the
enforcement of a contract to which he or she did not freely or voluntarily consent.
34. To the extent plaintiffs were able to successfully have the Settlement Agreement
11
annulled" by a court in Guatemala (thereby also nullifying the
11
Waiver" of liability/"general
release" provision in the agreement), plaintiffs could potentially assert other claims against
Microsoft. For instance, plaintiffs' core allegations in this case are that Microsoft essentially
engaged in an
11
abuse of process" or the "malicious prosecution" of the plaintiffs, or committed
a
11
fraud on the court," by virtue of filing a
11
false" or "fraudulent" criminal complaint and
"sworn declarations" with the Guatemalan Special Prosecutor and Guatemalan Criminal Court.
In Guatemala, Microsoft's alleged conduct, if true, could be subject to penalty under the
Guatemalan Criminal Code, in particular, Articles 453, 454 and 455, and plaintiffs would be
permitted to file a criminal complaint against Microsoft on the basis of those allegations.
35. Furthermore, under Article 1653 of the Guatemalan Civil Code, plaintiffs
18
Case 1:13-cv-22131-JLK Document 18-3 Entered on FLSD Docket 09/20/2013 Page 9 of 11
also would be free to pursue a cause of action for "abuse of rights," ("Abusos del Derecho").
Under that cause of action, plaintiffs could seek the recovery of monetary damages against
Microsoft.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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Case 1:13-cv-22131-JLK Document 18-3 Entered on FLSD Docket 09/20/2013 Page 10 of 11
FURTHER DECLARANT SAYETH NAUGHT.
I declare under penalty of perjury under the laws of the United States of America that
the foregoing is true and correct and that this declaration was executed on this 20th day of
September, 2013.
20
Case 1:13-cv-22131-JLK Document 18-3 Entered on FLSD Docket 09/20/2013 Page 11 of 11

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