FPX, LLC v. Google, Inc. et al

Filing 96

RESPONSE in Opposition re 86 MOTION to Strike filed by FPX, LLC. (Attachments: # 1 Affidavit of Nathan D. Meyer)(Meyer, Nathan)

FPX, LLC v. Google, Inc. et al Doc. 96 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION FPX, LLC, (d.b.a. FIREPOND), Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. (1) (2) (3) (4) (5) (6) GOOGLE, INC.; YOUTUBE, LLC; AOL, LLC; TURNER BROADCASTING SYSTEM, INC.; MYSPACE, INC., and IAC/INTERACTIVECORP Defendants. Civil Action No. 2:09-cv-00142 OPPOSITION TO MOTION TO STRIKE Plaintiff FPX, LLC hereby opposes Defendants' motion to strike portions of the declaration of Marc A. Fenster. The exhibits and statements referenced in Defendants' one-page motion to strike are properly admitted, and the motion should be denied. Paragraph No. 2 The documents attached to Mr. Fenster's declaration do in fact reflect Google's trademark policy. Google has further authenticated this policy with its own declarations in connection with its opposition to class certification. See Declaration of Kerry Barker, generally. Because the exhibits and statements in Mr. Fenster's declaration are consistent with those in Google's own declaration, Paragraph No. 2 should be admitted. 3049-02 101105 FPX Opp MtStrike.doc 1 Dockets.Justia.com Paragraphs Nos. 5-6 and Exhs. C and D Mr. Fenster's declaration regarding keyword searches are likewise admissible and not subject to a motion to strike. Because the fact of the search is apparent from the screenshots attached to Mr. Fenster's declaration, the statements of sufficient indicia of reliability to be admissible non-hearsay. Likewise, the allegations regarding inability to buy good through the websites appearing as sponsored links are not vague they are simple, verifiable empirical statements.1 If Google thought those statements were in any way false, they could easily rebut them. CONCLUSION For the reasons stated above, the motion to strike should be denied. Dated: November 5, 2010 Respectfully submitted, By: /s/ Nathan D. Meyer Marc A. Fenster, CA SB # 181067 E-mail: mfenster@raklaw.com Nathan Meyer, CA SB # 239850 Email: nmeyer@raklaw.com RUSS, AUGUST & KABAT 12424 Wilshire Boulevard 12th Floor Los Angeles, California 90025 Telephone: 310/826-7474 Facsimile: 310/826-6991 ScottM.Kline,TXSB#11573 100 Email:scott.kline@snrdenton.com SNRDentonUSLLP 2000McKinneyAvenue,Suite1 900 Dallas,TX752011858 Direct214/2590970 Telephone:214/9065149 Facsimile:214/2590910 David M. Pridham, RI Bar No. 6625 E-mail: david@pridhamiplaw.com LAW OFFICE OF DAVID PRIDHAM 25 Linden Road 1 That said, to avoid even the appearance of an evidentiary issue, attached as Exhibit A is the declaration of Nathan D. Meyer, who actually performed the searches at issue. 3049-02 101105 FPX Opp MtStrike.doc 2 Barrington, Rhode Island 02806 Telephone: 401/633-7247 Facsimile: 401/633-7247 Andrew W. Spangler, TX SB # 24041960 E-mail: spangler@spanglerlawpc.com SPANGLER LAW P.C. 208 N. Green Street, Suite 300 Longview, Texas 75601 Telephone: 903/753-9300 Facsimile: 903/553-0403 Attorneys for Plaintiff FPX, LLC 3049-02 101105 FPX Opp MtStrike.doc 3 CERTIFICATE OF SERVICE I hereby certify that the counsel of record who are deemed to have consented to electronic service are being served on November 5, 2010 with a copy of this document via the Court's CM/ECF system per Local Rule CV-5(a)(3). Any other counsel of record will be served by electronic mail, facsimile transmission and/or first class mail on this same date. Dated: November 5, 2010 /s/ Nathan D. Meyer Nathan D. Meyer 3049-02 101105 FPX Opp MtStrike.doc 4