Asia Economic Institute et al v. Xcentric Ventures LLC et al

Filing 146

STATEMENT of Facts In Support Of MOTION for Summary Judgment as to Entire Case 145 filed by Defendants Edward Magedson, Xcentric Ventures LLC. (Gingras, David)

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Asia Economic Institute et al v. Xcentric Ventures LLC et al Doc. 146 1 2 3 4 5 6 7 8 9 10 11 12 13 GINGRAS LAW OFFICE, PLLC 4072 EAST MOUNTAIN VISTA DRIVE PHOENIX, ARIZONA 85048 David S. Gingras, CSB #218793 Gingras Law Office, PLLC 4072 E Mountain Vista Dr. Phoenix, AZ 85048 Tel.: (480) 668-3623 Fax: (480) 248-3196 David.Gingras@webmail.azbar.org Maria Crimi Speth, (Admitted Pro Hac Vice) Jaburg & Wilk, P.C. 3200 N. Central Ave., Suite 2000 Phoenix, AZ 85012 Tel: (602) 248-1000 Fax: (602) 248-0522 mcs@jaburgwilk.com Attorneys for Defendants Xcentric Ventures, LLC and Edward Magedson UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ASIA ECONOMIC INSTITUTE, LLC, et al., Plaintiffs, vs. XCENTRIC VENTURES, LLC, et al. Defendants. Case No: 2:10-cv-01360-SVW-PJW DEFENDANTS' SEPARATE STATEMENT OF FACTS IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Hearing Date: Nov. 1, 2010 Time: 1:30 PM Courtroom: 6 (Hon. Stephen Wilson) 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pursuant to Fed. R. Civ. P 56, Defendants Xcentric Ventures, LLC and Edward Magedson respectfully submit the following Statement of Uncontested Facts in Support of their Motion for Summary Judgment. DEFENDANTS' SEPARATE STATEMENT OF FACTS Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 GINGRAS LAW OFFICE, PLLC 4072 EAST MOUNTAIN VISTA DRIVE PHOENIX, ARIZONA 85048 FACT(S) 1. Defendant XCENTRIC VENTURES, LLC ("Xcentric") operates the website www.RipoffReport.com. 2. Defendant EDWARD MAGEDSON ("Mr. Magedson") is the manager of Xcentric and the founder and "ED"itor of the Ripoff Report site which he started in 1998. 3. Plaintiffs RAYMOND MOBREZ ("Mr. Mobrez") and his wife ILIANA LLANERAS ("Ms. Llaneras") are the principals of ASIA ECONOMIC INSTITUTE, LLC ("AEI"). 4. As of September 2010, six complaints (called "reports") have been posted about AEI on the Ripoff Report site. All of these reports and any comments thereto are attached as Exhibit 22 to the First Amended Complaint. 5. All of these reports were created by third parties, not by Defendants. 6. Before it appeared on the site, each report about AEI was reviewed by one of Xcentric's staff of content monitors. 7. Xcentric's servers automatically record the name of each content monitor who reviews a post made to the site. 8. Each content monitor who reviewed the posts about EVIDENCE Affidavit of Ed Magedson In Support of Defendants' Motion for Summary Judgment ("Magedson Aff.") 2 Magedson Aff. 2 Plaintiffs' First Amended Complaint ("FAC") 68. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FAC Ex. 22 Magedson Aff. 6 Affidavit of Ben Smith ("Smith Aff.") 11 Smith Aff. 17 Smith Aff. 18; Declaration of Amy 2 DEFENDANTS' SEPARATE STATEMENT OF FACTS CV10-01360 SVW 1 2 3 4 5 6 7 8 9 10 11 12 13 GINGRAS LAW OFFICE, PLLC 4072 EAST MOUNTAIN VISTA DRIVE PHOENIX, ARIZONA 85048 AEI has testified that no changes, additions, or deletions were made to any of these reports, nor were any changes, additions or deletions made to the comments/rebuttals. 9. The text of each report and each comment/rebuttal originated entirely with the third party author and was not created or altered by either Xcentric or Magedson. 10. When an author submits a report to the Ripoff Report site, they are presented with a series of blank forms that help them to construct their report. 11. The forms ask the author for basic information such as the name of the person or company they want to write about, and the address and phone number of the company at issue. 12. During this process, the author is asked to prepare a title for their report by entering data into four boxes. The first box asks for the name of the company being reported, the second box asks for "descriptive words" explaining what the report is about, the third box asks for the city, and the fourth box asks for the state. 13. During this process, the site explains "The title of your report is divided into four boxes below but will appear as one line after your report is submitted." 14. The site also shows the author a sample of how the report title will appear based on the data they have entered. 15. At the screen where the actual report text is entered, Thompson; Declaration of Kim Jordan; Declaration of Lynda Craven Magedson Aff. 6 Smith Aff. 510 Smith Aff. 5 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Smith Aff. 6 Smith Aff. 9, Ex. B Smith Aff. 9, Ex. B Smith Aff. 8, Ex. C 3 DEFENDANTS' SEPARATE STATEMENT OF FACTS CV10-01360 SVW 1 2 3 4 5 6 7 8 9 10 11 12 13 GINGRAS LAW OFFICE, PLLC 4072 EAST MOUNTAIN VISTA DRIVE PHOENIX, ARIZONA 85048 the author is presented with a blank box. 16. Xcentric makes no suggestion as to what the author should say other than offering generic comments about style such as "DO NOT use ALL CAPITAL LETTERS, it makes it hard to read." 17. Before the author is allowed to submit their report, they are required to review and agree to certain terms which state, among other things, "By posting this report/rebuttal, I attest this report is valid." The author must also separately agree to Xcentric's Terms of Service which state, among other things, "You will NOT post on ROR any defamatory, inaccurate, abusive, obscene, profane, offensive, threatening, harassing, racially offensive, or illegal material, or any material that infringes or violates another party's rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity)." 18. When a report is finally submitted to the site, Xcentric's servers automatically combine the unique text supplied by the author with various HTML code that is generic to every page on the site. 19. During this process and using keywords supplied by the author (such as the name of the company being reported), Xcentric's servers automatically create "meta tags" which are used by search engines to index the contents of the specific page at issue. 20. The meta tags for each page are not normally visible Smith Aff. 15 Smith Aff. 15 Smith Aff. 14 Smith Aff. 10, Ex. E Smith Aff. 8, Ex. C 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 DEFENDANTS' SEPARATE STATEMENT OF FACTS CV10-01360 SVW 1 2 3 4 5 6 7 8 9 10 11 12 13 GINGRAS LAW OFFICE, PLLC 4072 EAST MOUNTAIN VISTA DRIVE PHOENIX, ARIZONA 85048 to viewers, but they can be seen by individuals with basic technical knowledge who choose to view the actual HTML code for a report's webpage. 21. The term "Ripoff Report" is a federally registered trademark, Registration #2958949, used to identify the website www.RipoffReport.com. 22. Every report page on the Ripoff Report site includes meta tags based on unique keywords supplied from the author such as the name of the company involved and other words used by the author to create the title for their report. 23. Xcentric's servers also automatically include three different keywords--rip-off, ripoff, rip off--into the meta tags of every page on the site. 24. Again, these words are NOT visible in the title or body of any particular report; they are simply indexing references used by search engines in order to accurately reflect the source of the indexed page. 25. If the keywords "rip-off, ripoff, rip off" were removed from the meta tags for each report page, the page would appear physically unchanged to anyone viewing it. 26. Mr. Mobrez admitted in his deposition that he had no evidence Defendants created or altered any of the postings about AEI. 27. The First Amended Complaint alleges that Defendants committed fraud by representing to 5 DEFENDANTS' SEPARATE STATEMENT OF FACTS CV10-01360 SVW Mobrez Depo. Excerpts (Ex. A to Declaration of David Gingras) at 98:599:5; 107:22108:17 Magedson Aff. 9 Smith Aff. 16 Smith Aff. 15 Smith Aff. 15 Smith Aff. 15 Smith Aff. 22 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 GINGRAS LAW OFFICE, PLLC 4072 EAST MOUNTAIN VISTA DRIVE PHOENIX, ARIZONA 85048 Plaintiffs that "filing a rebuttal has only a positive effect ..." but no such representation was ever made. 28. At no time did Defendants ever inform Plaintiffs that filing a rebuttal has only a positive effect. 29. When contacted by Plaintiff Raymond Mobrez in May 2009, Defendant Ed Magedson sent Mr. Mobrez a lengthy "form email" response. 30. Mr. Magedson honestly believes that filing a rebuttal is the best way of responding to a complaint. 31. Mr. Magedson has no control over how Google or any other search engine decides to rank content, and he does not know and does not believe that filing a rebuttal always increases the prominence of a report in search engines such as Google. 32. Mr. Magedson is aware of reports containing rebuttals which are not prominently located in search engine results such as Google. 33. Neither Xcentric nor Mr. Magedson had any knowledge of Plaintiffs' relationships with their employees at the time each report was posted. 34. At his deposition, Mr. Mobrez was unable to identify a single employee of AEI who quit as a result of any actions of Xcentric or Mr. Magedson. Mobrez Depo. at 174:12178:2 Magedson Aff. 15 Magedson Aff. 1213 Magedson Aff. 14 Magedson Aff. 8 FAC Ex. 10 Magedson Aff. 9 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 DEFENDANTS' SEPARATE STATEMENT OF FACTS CV10-01360 SVW 1 2 3 4 5 6 7 8 9 10 11 12 13 GINGRAS LAW OFFICE, PLLC 4072 EAST MOUNTAIN VISTA DRIVE PHOENIX, ARIZONA 85048 DATED this 27th day of September, 2010. GINGRAS LAW OFFICE, PLLC /S/ David S. Gingras David S. Gingras Attorneys for Defendants Ed Magedson and Xcentric Ventures, LLC 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 DEFENDANTS' SEPARATE STATEMENT OF FACTS CV10-01360 SVW 1 2 3 4 5 6 7 8 9 10 11 12 13 GINGRAS LAW OFFICE, PLLC 4072 EAST MOUNTAIN VISTA DRIVE PHOENIX, ARIZONA 85048 CERTIFICATE OF SERVICE I hereby certify that on September 27, 2010 I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing, and for transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Mr. Daniel F. Blackert, Esq. Ms. Lisa J. Borodkin, Esq. Asia Economic Institute 11766 Wilshire Blvd., Suite 260 Los Angeles, CA 90025 Attorneys for Plaintiffs And a courtesy copy of the foregoing delivered to: Honorable Stephen V. Wilson U.S. District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /s/David S. Gingras 8 DEFENDANTS' SEPARATE STATEMENT OF FACTS CV10-01360 SVW

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