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

Filing 180

DECLARATION of Justin Crossman In Support Of Defendants' Opposition To MOTION for Leave to Under Rule 56(f) to Take Discovery and Continue Determination of Defendants' SUmmary Judgment Motion MOTION for Leave to Under Rule 56(f) to Take Discovery and Continue Determination of Defendants' SUmmary Judgment Motion MOTION for Leave to Under Rule 56(f) to Take Discovery and Continue Determination of Defendants' SUmmary Judgment Motion 173 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. 180 1 2 3 4 5 6 7 8 9 10 11 12 13 GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, ARIZONA 85048 David S. Gingras, CSB #218793 Gingras Law Office, PLLC 3941 E Chandler Blvd., #106-243 Phoenix, AZ 85048 Tel.: (480) 668-3623 Fax: (480) 248-3196 David@GingrasLaw.com 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 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AFFIDAVIT OF JUSTIN CROSSMAN 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 JUSTIN CROSSMAN Hearing Date: Nov. 29, 2010 Time: 1:30 PM Courtroom: 6 (Hon. Stephen Wilson) 1 2 3 4 5 6 7 8 9 10 11 12 13 GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, ARIZONA 85048 I, JUSTIN CROSSMAN, declare as follows: 1. My name is Justin Crossman. 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. Previously as an independent contractor and currently as an employee, 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 two 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. 3. I am aware that in this case, the Plaintiffs claim they need to take my 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 deposition in order to obtain information that they believe would bear on various matters. In addition, I am aware that Plaintiffs have explained the matters for which they seek to depose me as including the following information: Plaintiffs propose to obtain evidence sufficient to defeat Defendants' motion for summary judgment through the Declaration of James P. Rogers, written discovery and/or depositions of Justin Crossman, Scott Cates, Ben Smith and/or the Lavidge Company, the continued deposition of Edward Magedson and Xcentric, cross-examination of Ben Smith, Amy Thompson, Kim Jordan and/or Lydia Craven, and/or voluntary statements from thirdparty witnesses with first-hand knowledge of facts involving the Defendants' use and offers to sell custom written computer code and meta tags to make subjects of Reports appear in a more favorable light on Google searches. 4. I am also aware that Plaintiffs have suggested that by deposing me (and others) they will obtain information that relates to one or more of the following points: The facts expected to be gained from such discovery will suffice to defeat the pending motion for summary judgment because they would controvert 2 AFFIDAVIT OF JUSTIN CROSSMAN CV10-01360 SVW 1 2 3 4 5 6 7 8 9 10 11 12 13 GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, ARIZONA 85048 the assertions in Defendants' statement of material facts 5, 7, 18-19 and 2225, 28-31 and 33 showing that Defendants actively play a large role in determining what appears on Google search results about subjects of Reports such as Plaintiffs, that servers do not "automatically" and "generically" generate the HTML computer code and meta tags that determine how subjects of Reports appear on Google searches in accordance with generally accepted search engine optimization practices, that Defendants falsely or misleadingly advertise themselves to be a neutral consumer complaint forum when they are in fact a for-profit business seeking to make money from paid endorsements and advertising, and that Defendants mislead the public regarding the degree to which Defendants are willing to alter or suppress Reports, which has a harmful effect on Plaintiffs. 5. As these claims relate to me, they are groundless. I do not have any knowledge or information showing that "Defendants actively play a large role in determining what appears on Google search results about subjects of Reports such as Plaintiffs ... ." On the contrary, I believe this statement to be entirely false; I do not have any information showing that Defendants actively play a large role (or any role) in determining what appears on Google search results whether related to Plaintiffs or anyone else. If I was asked to testify on that issue, I could and would truthfully state that I do not believe that Defendants have any role in determining what information Google displays in response to search inquiries. 6. I have no "first-hand knowledge of facts involving the Defendants' use and 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 offers to sell custom written computer code and meta tags to make subjects of Reports appear in a more favorable light on Google searches ... ." On the contrary, I believe this statement to be entirely false as it relates to Plaintiffs. I am aware that as part of their Corporate Advocacy Program, Defendants can and do make changes to reports by adding positive language to the section of the page above the existing report (which is not removed) and that by making these changes the underlying HTML for each page may also be updated to reflect such changes. However, I am informed that Plaintiffs did not join the Corporate Advocacy Program and I have no knowledge or information that Defendants ever made any offer to "sell custom written computer code and meta tags" to 3 AFFIDAVIT OF JUSTIN CROSSMAN CV10-01360 SVW 1 2 3 4 5 6 7 8 9 10 11 12 13 GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, ARIZONA 85048 the Plaintiffs or that Defendants did anything to alter the original HTML code or meta tags for any pages containing reports about Plaintiffs. 7. I have no knowledge that Defendants "servers do not `automatically' and `generically' generate the HTML computer code and meta tags that determine how subjects of Reports appear on Google searches in accordance with generally accepted search engine optimization practices ... ." On the contrary, I believe this statement to be entirely false because Defendants' servers do automatically generate the HTML code for each report page appearing on the Ripoff Report website, and this code normally does contain a substantial amount of generic content (including the words "ripoff, rip-off, and rip off") which are common to every single page on the Ripoff Report website. 8. I have no knowledge "that Defendants falsely or misleadingly advertise themselves to be a neutral consumer complaint forum when they are in fact a for-profit business seeking to make money from paid endorsements and advertising ... ." On the contrary, I do not believe that Ripoff Report has ever represented itself to be a "neutral consumer complaint forum" if anything, Ripoff Report has always expressed a bias in favor of consumers and against big businesses, but to the extent that Plaintiffs believe the site is not neutral because it also offers "paid endorsements and advertising," I do not believe that this fact has been "falsely or misleadingly" concealed from anyone. On the contrary, anyone viewing the Ripoff Report website can plainly see that it contains advertisements, so this point is not misleading. To the extent the Corporate Advocacy Program constitutes a "paid endorsement", Ripoff Report has always freely and openly disclosed that fact when endorsing a CAP member. In other words, Ripoff Report does not "endorse" any company or individual as part of its CAP program without clearly disclosing the fact that the endorsement is the result of that company joining the program. 9. I have no knowledge that "Defendants mislead the public regarding the 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 degree to which Defendants are willing to alter or suppress Reports, which has a harmful effect on Plaintiffs." To the extent I understand this statement, I disagree with it. Again, I believe this statement is some type of reference to the Corporate Advocacy Program 4 AFFIDAVIT OF JUSTIN CROSSMAN CV10-01360 SVW 1 2 3 4 5 6 7 8 9 10 11 12 13 GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, ARIZONA 85048 (which I am informed Plaintiffs never joined), but I do not believe the statement is accurate insofar as it suggests that Defendants "mislead the public" by failing to disclose when company has joined the program or what the program entails. On the contrary, the Ripoff Report website contains extensive information explaining the CAP program including, but not limited to, the following pages: http://www.ripoffreport.com/CorporateAdvocacy.aspx http://www.ripoffreport.com/CorporateAdvocacy/HowItWorks.aspx http://www.ripoffreport.com/CorporateAdvocacy/BenefitsOfJoining.aspx http://www.ripoffreport.com/CorporateAdvocacy/WhatCustomersSay.aspx http://www.ripoffreport.com/CorporateAdvocacy/Application.aspx 10. In addition to the specific points above, I am aware that Plaintiffs have argued that they need my deposition in order to help them establish one or more of the following points: It is Likely Discovery Would Yield Evidence to Oppose Defendants' Claim that All HTML Code and Meta Tags Are Generated "Automatically" It is Likely Discovery Would Yield Evidence to Refute Defendants' Claim that all Meta Tags Are Generated from Content Contributed by Third-Party Users It is Likely Discovery Would Yield Evidence to Refute Defendants' Claim that Mr. Magedson has No Control Over How Google or Any Other Search Engine Decides to Rank Content 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11. I have no knowledge or other information that would assist Plaintiffs in As noted above, to the extent these matters are within my making these points. knowledge, I disagree with each of the points Plaintiffs are attempting to establish. 5 AFFIDAVIT OF JUSTIN CROSSMAN CV10-01360 SVW 1 2 3 4 5 6 7 8 9 10 11 12 13 GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, ARIZONA 85048 CERTIFICATE OF SERVICE I hereby certify that on November 8, 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 7 AFFIDAVIT OF JUSTIN CROSSMAN CV10-01360 SVW /s/David S. Gingras

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