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

Filing 148

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

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

Doc. 148

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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.: [phone] Fax: [phone] [e-mail] Maria Crimi Speth, (Admitted Pro Hac Vice) Jaburg & Wilk, P.C. 3200 N. Central Ave., Suite 2000 Phoenix, AZ 85012 Tel: [phone] Fax: [phone] [e-mail] Attorneys for Defendants Xcentric Ventures, LLC and Edward Magedson UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

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CV10-01360 SVW
Dockets.Justia.com

ASIA ECONOMIC INSTITUTE, LLC, et al., Plaintiffs, vs. XCENTRIC VENTURES, LLC, et al., Defendants.

Case No: 2:10-cv-01360-SVW-PJW AFFIDAVIT OF BEN SMITH IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Hearing Date: Nov. 1, 2010 Time: 1:30 PM Courtroom: 6 (Hon. Stephen Wilson)

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GINGRAS LAW OFFICE, PLLC 4072 EAST MOUNTAIN VISTA DRIVE PHOENIX, ARIZONA 85048

I, BEN SMITH, declare as follows: 1. My name is Ben Smith. I am a resident of the State of Arizona, am over the

age of 18 years, and if called to testify in court I could and would truthfully testify to the following information based upon my own personal knowledge. 2. As an independent contractor I provide computer information technology

services to Xcentric Ventures, LLC relating to the operation of the Ripoff Report website. I have provided such services to Xcentric and the previous operator of the Ripoff Report for over seven years. As part of the services I provide to the Ripoff Report site, I am extremely familiar with the technical aspects of the site's operations including the manner in which reports, rebuttals, updates, and similar submissions to the site are created. I am also extremely familiar with the meta tags, HTML, and other coding used on the site. HOW REPORTS ARE CREATED--OVERVIEW 3. As of May 2010, the Ripoff Report site contains more than 600,000 unique

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reports. When expanded to include comments to reports (known as "rebuttals") the site contains many millions of unique posts with up to 1,000 new submittals each day. 4. When a user wishes to submit a report to the Ripoff Report, they are

required to create a free user account before they are allowed to post anything. During this process, the user is asked for his/her name, address, phone number, and other contact information, all of which may be falsified by the user. The user is also required to provide an email address which the site's server automatically confirms by sending an email to that address which must be verified before the user is allowed to post anything. Our server also automatically records the IP address of the user at the time his/her account is created and also each time they submit a report to the site. 5. When a user wants to create a report, they are guided through a five-step

process. Step 1 of the process is reflected in the screenshot attached hereto as Exhibit A. As this image shows, at Step 1 the user is presented with a series of blank forms asking for basic information (name/address/phone) about the company or individual that the report is about. 2 AFFIDAVIT OF BEN SMITH CV10-01360 SVW

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GINGRAS LAW OFFICE, PLLC 4072 EAST MOUNTAIN VISTA DRIVE PHOENIX, ARIZONA 85048

6.

Step 2 of the process is reflected in the screenshot attached hereto as

Exhibit B. In Step 2, the user is asked to create a "report title" and to choose a category for their report. As this image shows, the title is created entirely by the user via a series of four blank boxes into which the user can enter: A.) the company's or individual's name; B.) words explaining what the report is about; C.) the city where the company or individual is located; and D.) the state where the company or individual is located. As the user enters information into each of these four boxes, the website automatically combines the text from each box into a single title which the user is shown on-the-fly as it is created. Every word in the title is based solely on the information entered by the user into these four boxes. 7. Later in Step 2, the user is asked to select a topic and a category for his or

her report. There are more than 500 available choices. Depending on the specific topic chosen, the site will offer a different list of categories. For instance, if the topic chosen is "dining" the list of categories will change to reflect words which relate to that topic such as "Bake shops, catering, Restaurants" and so forth. The selection of both the topic and the category is a decision made solely and exclusively by the user. 8. Step 3 of the process is reflected in the screenshot attached hereto as

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Exhibit C. This is the step where the user enters the actual text for the body of their report. As this image shows, the user is presented with a blank box into which they can type their text. Other than some generic style guidelines such as "DO NOT use ALL CAPITAL LETTERS..." which are visible near the text entry box, the page does not encourage or solicit users to say anything in particular; they are free to say whatever they wish. 9. Step 4 of the process is reflected in the screenshot attached hereto as

Exhibit D. At this step, users are allowed to attach images to their report. This step is optional and users are allowed to submit their reports without anything attached. 10. Step 5 of the process is reflected in the screenshot attached hereto as 3 AFFIDAVIT OF BEN SMITH CV10-01360 SVW

Exhibit E. As this image shows, the user is asked to review the Terms of Service (which

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GINGRAS LAW OFFICE, PLLC 4072 EAST MOUNTAIN VISTA DRIVE PHOENIX, ARIZONA 85048

require them, among other things, to refrain from posting anything false or defamatory). The user is also asked to review and affirm that their report is valid. If the user refuses to check this box, their report cannot be submitted to the site. 11. Every user-generated submission to the site is screened and reviewed by a

staff of monitors who are authorized to make minor editorial changes in order to redact certain types of content (primarily offensive language, profanity, threats, etc., and also including certain types of personal information such as social security numbers, bank account numbers and so forth). Other than such redactions, the staff is not authorized to make any changes to reports. 12. After a report has been reviewed by the staff, it is posted to the site using a

standardized layout as depicted in Exhibit F. Although the area around the report itself contains various artwork, links, advertisements, etc., the body of the actual report itself is entirely and completely supplied by the user. 13. Anyone who wishes to respond to a report by posting a rebuttal may do so

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for free at any time. The only requirement for posting a rebuttal is that the user must create a free account with the Ripoff Report site, just as they would when posting a report. Rebuttals appear directly below the report they are responsive to. 14. When a report is submitted to the Ripoff Report, 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. 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. The meta tags for each page are not normally visible 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. 15. 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. Xcentric's servers also 4 AFFIDAVIT OF BEN SMITH CV10-01360 SVW

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GINGRAS LAW OFFICE, PLLC 4072 EAST MOUNTAIN VISTA DRIVE PHOENIX, ARIZONA 85048

automatically include three different keywords--rip-off, ripoff, rip off--into the meta tags of every page on the site. These tags 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. 16. 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. 17. Ripoff Report's servers create a log showing the identity of each Ripoff

Report content monitor who reviewed each report before it was posted. According to the site's records, the six reports at issue were reviewed by the following employees of Xcentric: Report # 417493 423987 457433 502429 564331 571232 18. Content Monitor Amy T. Kim J. Amy T. Lynda C. Lynda C. Amy T.

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Submitted with this affidavit are affidavits of each of the above employees

affirming that they did not create or modify any of these reports, nor did they solicit anyone else to do so. 19. I am informed that negative postings about Mr. Mobrez have appeared on

other websites including two websites that are owned or operated by Mr. Mobrez. For instance, Exhibit 11 to Mr. Mobrez's deposition is a page located at

http://asiaecon.org/linkex which contains a link to one of the reports about Mr. Mobrez on the Ripoff Report site. I am informed that this site is owned or operated by Mr.

Mobrez. Also, Exhibit 12 to Mr. Mobrez's deposition is a page located at another site which I am informed is owned or operated by Mr. Mobrez: This page

http://asiabusinessinstitute.com/ component/content/15.html?task=view.

contains an anonymous comment which reads: "No shit, asshole...a non-PhD could have figured it out. You are a fake, a rip-off artist, immoral, and did I say asshole?" 5 AFFIDAVIT OF BEN SMITH CV10-01360 SVW

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GINGRAS LAW OFFICE, PLLC 4072 EAST MOUNTAIN VISTA DRIVE PHOENIX, ARIZONA 85048

20.

On September 16, 2009, a report (#495708) was submitted to the Ripoff The report (which is

Report regarding a company called Overnightmattress.com. available here:

http://www.ripoffreport.com/Bed-Bath/Overnightmattress-

co/overnightmattress-com-over-nig-355ee.htm) generally complained about the quality of a mattress purchased by the author, referring to it as follows: "this thing feels like a glorified futon." In addition, the author stated that the company's return policy was misleading and unfair. In closing, the author issued a strongly-worded warning

instructing other consumers to refrain from doing business with this company: "I would never use overnighmattress.com ever again and would STRONGLY suggest you never use them the transaction was horrible and expensive." 21. On February 26, 2010, the president of Overnightmattress.com posted a

clear and simple rebuttal to the complaint which explained his side of the story. The rebuttal, reflected in the screenshot below, accepted responsibility for the author's dissatisfaction and it informed readers that in order to improve customer satisfaction, the company had changed its return policy in a way that resolved the concerns expressed in the original report:

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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

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Exhibit A

Exhibit B

Exhibit C

Exhibit D

Exhibit E

Exhibit F