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

Filing 76

DEFENDANTS' RESPONSE TO PLAINTIFFS' STATEMENT OF ADDITIONAL FACTS re MOTION for Summary Judgment as to Entire Case 40 filed by Defendants Edward Magedson, Xcentric Ventures LLC. (Gingras, David)

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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 Paul S. Berra, CSB #186675 Law Offices of Paul S. Berra 1404 3rd Street Promenade, Suite 205 Santa Monica, CA 90401 Tel: (310) 394-9700 Fax: (310) 394-9755 Paul@Berra.org 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' RESPONSE TO PLAINTIFFS' STATEMENT OF ADDITIONAL FACTS Hearing Date: June 28, 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 response to Plaintiffs Statement of Additional Facts. DEFENDANTS' RESPONSE TO PLAINTIFFS' STATEMENT OF ADDITIONAL FACTS 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. Defendants' Web site, Ripoff Report, is a "consumer reporting Web site and publication, by consumers, for consumers, to file and document complaints about companies or individuals." RESPONSE Undisputed 2. Only complaints are published. Positive reports will not be posted. Disputed but irrelevant and immaterial; misstates testimony of Ms. Brast who testified that positive statements can be posted as a "comment or a reply." Brast Decl. 10. Undisputed 3. To draft a complaint, users of the Defendants' Web site are guided through a five-step process. 4. In Step 1 the Web site requires users to input certain information about the business or individual that is the target of the report such as its name, address, and telephone number. 5. In Step 2, the Web site requires users to create a "title" for their report. The title is composed of four parts: (1) the name of the company or individual that is the target of the report, (2) a "creative" description of the target's alleged wrongdoing, (3) the city in which the target is located in, and (4) the sate in which the target is located. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Undisputed Undisputed 6. Later in Step 2, the user is required to categorize the complaint into one of many predetermined categories such as "Con Artists" and "Court Judges." Undisputed that a user must choose a category and topic for his/her report; remaining "facts" misstate the testimony of Ben Smith but are otherwise irrelevant and immaterial. 2 DEFENDANTS' RESPONSE TO PLAINTIFFS' STATEMENT OF ADDITIONAL 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 7. In Step 3, the Web site provides users with a blank text box in which to draft the body of the report. 8. In Step 4, users have the option of including photographs with their reports. 9. Step 5 allows users to finally submit their report. Undisputed Undisputed Undisputed Disputed; misstates the testimony of 13 of Ben Smith's affidavit (part of the cited information is contained in 14 of Smith's affidavit); disputed to the extent 10 alleges that Defendants automatically create codes; 14 of Mr. Smith's affidavit states: "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." (emphasis added) Undisputed that the phrase "Ripoff Report:" appears in parts of every page on the website www.RipoffReport.com; remainder of 11 is disputed; nothing in the cited source (Declaration of Kristi Jahnke) supported these purported fact; Ms. Jahnke's declaration fails to demonstrate that the witness has any personal knowledge of Defendants' actions. 10. After this information is submitted, Defendants automatically combine the text supplied by the author with various HTML codes. This combined effort appears in the "meta tags" and are "used by search engines to index the contents of the specific page at issue." 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11. Specifically, Defendants input original content into the "title meta tag" of the particular webpage. Defendants create the title meta tag for each report by adding the phrase "Ripoff Report:" to the beginning of the title created in Step 2. This title appears as a search result on Internet search engines such as Google and is visible to anyone conducting an online search of the target. 3 DEFENDANTS' RESPONSE TO PLAINTIFFS' STATEMENT OF ADDITIONAL 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 12. Defendants also create "description meta tags" using the four-part title developed by the original poster. The description meta tag is displayed on Internet search engines in two lines beneath the title tag. Thus, the description meta tag is visible to anyone conducting an online search of the target. 13. Finally, Defendants create "keyword meta tags" using the "unique keyword supplied by the author such as the name of the company" and three unique keywords "rip-off, ripoff, rip off." These keyword meta tags are "used by search engines in order to accurately reflect the source of the indexed page." Disputed; nothing in the cited source (Declaration of Kristi Jahnke) supported these purported fact; Ms. Jahnke's declaration fails to demonstrate that the witness has any personal knowledge of Defendants' actions. Disputed; misstates the testimony of 1416 of Ben Smith's affidavit; Mr. Smith testified that meta tags were created by Xcentric's servers, not by "Defendants". See Smith Aff. 14. Undisputed that six reports about Plaintiffs appear on the Ripoff Report website; disputed that Defendants have "published" these reports because Defendants may not be treated as the publisher of such information. See 47 U.S.C. 230(c)(1). Undisputed Undisputed that certain search engines may display results stating "Ripoff Report: Asia Economic Institute, AEI, WorldEcon: Raymond...Asia Economic Insitute, AEI, 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15. The title, description and keyword meta tags of these reports are attached as EXHIBIT 1 to the Declaration of Kristi Jahnke. 16. Because of the combined efforts of the Defendants and the anonymous users of the Defendants' Web sites, anyone conducting an online search of the Plaintiffs will see: "Ripoff Report: Asia Economic Institute, AEI, WorldEcon: Raymond...Asia Economic Insitute, AEI, 14. To date, the Defendants have published six reports referencing the Plaintiffs. 4 DEFENDANTS' RESPONSE TO PLAINTIFFS' STATEMENT OF ADDITIONAL 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 WorldEcon: Raymond Mobrez And Iliana Llaneras Complete Exploitation as an employee. Do not work for the Asia Economic..." WorldEcon: Raymond Mobrez And Iliana Llaneras Complete Exploitation as an employee. Do not work for the Asia Economic...". Additional Fact 16 is disputed to the extent that it is primarily a legal conclusion rather than a fact; nothing in the cited source (Declaration of Kristi Jahnke) supports the purported facts concerning the "combined efforts of the Defendants and the anonymous users of Defendants' Web sites ..."; Ms. Jahnke's declaration fails to demonstrate that the witness has any personal knowledge of Defendants' actions. Disputed; the cited references are hearsay and/or double hearsay; Fed. R. Evid. 802; 17 also mischaracterizes the cited references which do not support the asserted fact. Disputed; the cited reference is hearsay; Fed. R. Evid. 802. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17. The appearance of this text on Internet search engines has caused certain individuals to refuse to engage in or discontinue engaging in business with the Plaintiffs. 18. Moreover, the appearance of this text on Internet search engines have caused others to decline employment offers from the Plaintiffs after conducting online searches of the Plaintiffs. 19. On February 15, 2009, Mobrez sent an e-mail to Ripoff Report informing the Defendants of the Undisputed 5 DEFENDANTS' RESPONSE TO PLAINTIFFS' STATEMENT OF ADDITIONAL 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 "outlandish lies" published on their Web site. In an effort to avoid the judicial process, Mobrez simply requested that the Defendants remove the posts from their Web site and identify the individuals responsible. Likewise, Mobrez informed Defendants "Your false publishing has caused me and others that you have named hardship and enormous loss." At this time, Mobrez made Defendants aware of the damage we were suffering because of these posts. 20. After there had been no response, AEI filed a "Rebuttal" on April 3, 2009 for each report listed on the Ripoff Report Web site at that time. These "rebuttals," however, do not appear as "results" on Internet search engines such as Google and Yahoo. Undisputed that AEI filed rebuttals; remainder of 20 is disputed as to whether "rebuttals appear as results on search engines"; see Affidavit of Ben Smith In Support of Defendants' Reply Re: Motion for Summary Judgment at 614 Undisputed that rebuttals may be filed for free; Irrelevant and disputed to the extent this fact implies that Defendants block favorable information from appearing in search results; see Affidavit of Ben Smith In Support of Defendants' Reply Re: Motion for Summary Judgment at 614 N/A (same as 21) Undisputed that Magedson sent an email dated May 5, 2009 the contents of which speak for themselves. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21. A business or individual may file a rebuttal for free. However, as Magedson admits, these rebuttals do not appear as Internet search results. 22. N/A (same as 21) 23. On May 5, 2009, Mr. Magedson made a lengthy response describing, among other things, the "Rip-off Report's Corporate Advocacy, Business Remediation 6 DEFENDANTS' RESPONSE TO PLAINTIFFS' STATEMENT OF ADDITIONAL 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 and Customer Satisfaction Program." The program, as described by Mr. Magedson's email, promised to change "the negative listings on search engines into a positive along with all the Reports on Rip-off Report." Mobrez never threatened to sue Mr. Magedson or his company; yet, the email warned that a lawsuit against the Web site was a losing battle. The email boasted that the Web site "NEVER lost a case" and that suing would "only get [us] more publicity and additional listings on search engines." 24. This e-mail is one of two standard e-mails sent to targeted businesses and individuals who express interest in removing or remedying the reports. 25. The hyperlink included in the May 12, 2009 e-mail from Mr. Magedson directed Mr. Mobrez to apply for Defendants' Corporate Advocacy Program. The application form requires targeted businesses or individuals to fill in certain information, such as the name of the business/individual, number of offices, average sales, and the number of complaints published by the Defendants. 26. Once this application is completed, applicants are sent a second generic e-mail. Among other things, the email demonstrates that title and description meta tags of all reports regarding CAP members are changed. The email states: "See how other Corporate Advocacy Program member listing look on search engines. Then 7 DEFENDANTS' RESPONSE TO PLAINTIFFS' STATEMENT OF ADDITIONAL FACTS CV10-01360 SVW Undisputed that CAP applicants are sent a second email, the contents of which speak for themselves. Undisputed that the email from Mr. Magedson contains a link to a form with certain questions; disputed that Defendants have "published" any complaints because Defendants may not be treated as the publisher of such information. See 47 U.S.C. 230(c)(1). Undisputed 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 look at the beginning of the reports that are listed on the search engines. You will see about 250 words injected into the beginning of the Report with your stated commitments." This statement is followed by several hyperlinks exemplifying the final result. 27. The e-mail includes their standard "Rate Sheet." According to this document, fees for the CAP are calculated in three ways: (1) calculation by amount of reports filed, (2) by the number of offices, or (3) by gross sale of a product or service. Which methodology is chosen is dependent on which calculation is higher. 28. According to the Defendants' rate sheet, fees are calculated using the amount of reports filed using the following standard: "1 to 20 Reports One time charge $7,500 Programming Plus $600 Per Report..Then Monthly Monitoring Fee 36 month minimum. $40.00 per Report times the Reports originally filed. Minimum $100.00 per month monitoring. NOTE: no matter how many Reports you have, ..the first 20 Reports will still cost $600 per Report then the balance of the Reports will be calculated as stated below. 21 to 50 Reports One time charge $7,500 Programming Plus $500 Per Report. Then Monthly Monitoring Fee 36 month min. $35.00 per Report times the Reports originally filed.. 51 to 150 Reports One time charge $7,500 Programming Plus $425 Per Report.. Then Monthly Monitoring Fee 36 month min. $25.00 per Report times the Reports originally filed. 151 to 350 Reports One time charge $7,500 Programming Plus $400 Per Report.. Then Monthly Monitoring Fee 36 month min. $20.00 per Report times 8 DEFENDANTS' RESPONSE TO PLAINTIFFS' STATEMENT OF ADDITIONAL FACTS CV10-01360 SVW Undisputed that CAP fees are always calculated based on the number of reports filed; disputed as to remainder of 27; see Affidavit of Ed Magedson In Support of Defendants' Reply Re: Motion for Summary Judgment at 58 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Undisputed but irrelevant 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 Report originally filed. 351 to 500 Reports One time charge $8,500 Programming Plus $350 Per Report.. Then Monthly Monitoring Fee 36 month min. $15.00 per Report times the Reports originally filed. 501 to 1000 Reports One time charge $15,500 Programming Plus $300 Per Report.. Then Monthly Monitoring Fee 36 moth min. $15.00 per Report times the Reports originally filed. 1001 to 1500 Reports One time charge $20,500 Programming Plus $250 Per Report.. Then Monthly Monitoring Fee 36 month min. $10.00 per Report times the Reports originally filed.." 29. The initial fee of $7,500 is based on what Mr. Magedson thought was "fair." 30. It also appears that the more defamatory reports that appear on the Defendants Web site, the higher the cost of the CAP program. 31. Furthermore, Magedson admits that the longer a target waits, the more expensive it will be to join the CAP. 32. If higher, fees will be calculated based on the amount of offices is calculated using the following standard: "There will be a minimum one time charge for each office location of $2,500. Monthly monitoring fees will be $100 per month per office for a minimum of 36 months from date of our agreement. If you want our services after that time, a new rate can be negotiated. **initial programming and setup fees to apply. $5,500" 33. If higher, fees will be based on gross sale of a Irrelevant and disputed, see Affidavit of Ed Irrelevant and disputed, see Affidavit of Ed Magedson In Support of Defendants' Reply Re: Motion for Summary Judgment at 58 Undisputed but irrelevant Undisputed but irrelevant Undisputed but irrelevant 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 DEFENDANTS' RESPONSE TO PLAINTIFFS' STATEMENT OF ADDITIONAL 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 product or service. According to the Defendants' rate sheet, Defendants "will look at the average cost of the product you sell (that was complained about) or the cost of the service you may provide and multiply that times an amount equal to one month of sales (in other words, your average monthly revenue from the product) as the down payment plus $5,500 programming fee plus % per month for minimum 36 months thereafter." 34. Monthly fees for the CAP must be paid by the 8th of each month. If not paid, "all privileges incorporated within the Business Remediation Program will cease after 30 days." 35. Had the Plaintiffs been accepted into the CAP, they would be required to pay an initial fee of $11,100 ($7,500 + $600 times 6 reports). They would also be required to pay $240 a month for 36 months. At the end of these 36 months, Plaintiffs would have spent $19,740. 36. For this cost, Mr. Magedson sends a generic e-mail to the authors of the reports, commending the CAP member for wanting to "make it right." 37. In addition, Mr. Magedon [sic] adds a generic statement to the beginning of each report in red, bold lettering. This statement discredits the report and praises the CAP member for its dedication to customer satisfaction. 38. The title meta tags of each report are then changed Magedson In Support of Defendants' Reply Re: Motion for Summary Judgment at 58 Undisputed but irrelevant 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Disputed; this is a hypothetical conclusion, not a "fact" subject to judicial notice pursuant to Fed. R. Evid. 201 Undisputed but irrelevant Irrelevant and disputed to the extent this statement is not supported by the cited source. Undisputed but irrelevant 10 DEFENDANTS' RESPONSE TO PLAINTIFFS' STATEMENT OF ADDITIONAL 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 include the positive affirmations. The once negative title meta tags no longer appear on Internet search engines. Because Ripoff Report "gets a good ranking" on search engines, there is an added value to joining CAP. 39. Complaints made against CAP members are prevented from publication. 40. No "investigation" takes place. No third parties are hired to conduct an investigation into the truth or falsity of the postings. 41. If a targeted business or individual declines to pay this fee, the defamatory meta tags continue to appear on Internet search results and the damage incurred as a result of this image remains. 42. Although the Plaintiffs feared continued economic loss, they refused to join CAP. As such, the content of the search result remains negative and more defamatory reports appear on the Defendants' Web site. 43. Because of these reports, Plaintiffs continue to lose business opportunities and are unable to hire new employees. 44. Mr. Magedson admits that targeted business and individuals may be too intimidated to bring a suit against the Defendants. Disputed; the cited sources of information do not support the fact asserted; the cited sources of information are hearsay and/or double hearsay; Fed. R. Evid. 802. Irrelevant and disputed; the cited source of information does not support the fact asserted. Irrelevant and disputed; the cited source of information does not support the fact asserted. Irrelevant and disputed; the cited source of information does not support the fact asserted. Irrelevant and disputed; the cited source of information does not support the fact asserted. Irrelevant and disputed; the cited source of information does not support the fact asserted. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 DEFENDANTS' RESPONSE TO PLAINTIFFS' STATEMENT OF ADDITIONAL 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 I. ADDITIONAL POINTS a. The Sham Affidavit Rule Applies In various places in their Response to Defendants' Separate Statement of Facts, Plaintiffs attempt to create a factual dispute by citing to the "corrected" declaration of Raymond Mobrez dated May 20, 2010 (Doc. #38). Specifically, Plaintiffs rely on Mr. Mobrez's "corrected" declaration as the sole evidence demonstrating the existence of a factual dispute as to each of the following paragraphs in Defendants' Separate Statement of Facts: 2633, 36, 37, 4145. For the most part, these specific facts are merely background points which are not material to Defendants' motion and would not require the motion to be denied even assuming a genuine factual dispute were to exist as to those facts. However, as previously explained in a pleading filed in this matter on May 24, 2010 entitled "Notice Re: Plaintiffs' Corrected Declarations" (Doc. #48), a party is not permitted to contradict his own prior testimony in an effort to create a factual dispute to avoid summary judgment; "The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony." Nelson v. City of Davis, 571 F.3d 924 (9th Cir. 2009) (quoting Kennedy v. Allied Mutual Insurance Co., 952 F.2d 262 (9th Cir.1991)). For this reason, to the extent that any statements made in Mr. Mobrez's "corrected" declaration conflict with either his prior deposition testimony given on May 7, 2010 or his earlier declaration dated May 3, 2010, this sham testimony is insufficient to create a genuine factual dispute and cannot be relied upon as a basis for denying summary judgment. Based on a close review and comparison of Mr. Mobrez's original May 3 declaration, his "corrected" May 20 declaration, and his May 7 deposition testimony, it appears for the most part that only two key areas of testimony would be affected by applying the sham affidavit rule. Specifically, in 2 of his "corrected" May 20 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 declaration, Mr. Mobrez states that, "There were a number of calls made by me to Ripoff Report. In addition, there were a number of incoming calls to me from Ripoff Report." 12 DEFENDANTS' RESPONSE TO PLAINTIFFS' STATEMENT OF ADDITIONAL 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 This "corrected" testimony directly conflicts with Mr. Mobrez's original declaration made in response to the court's April 19th order, in which he never identified any "incoming calls" from Ripoff Report. This testimony also directly conflicts with Mr. Mobrez's deposition testimony in which he stated that he had no memory of Mr. Magedson ever calling him on the phone: [By Mr. Gingras]: Q: Did Mr. Magedson ever call you? So far we've talked about four prior calls, all of which you initiated. Did he ever call you? [By Mr. Mobrez]: A: Q: I truly don't remember exactly if he ever called back. Okay. And I assume we can have phone records that would determine whether or not that happened. But as you sit here, you don't remember? A: No. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 May 7, 2010 Deposition of Raymond Mobrez at 246:513 (Exhibit A to Doc. #47) (emphasis added). The second area of testimony affected by the application of the sham affidavit rule is 5 of Mr. Mobrez's "corrected" declaration in which he described a conversation with "someone" in which $5,000 was discussed. Although this testimony does not implicate Defendants in any wrongdoing, it nevertheless conflicts with the prior testimony of Mr. Mobrez insofar as no such additional conversation was ever disclosed. For these reasons, Defendants respectfully submit that the sham affidavit rule bars Plaintiffs efforts to create factual disputes as to 2633, 36, 37, 4145 of Defendants' Separate Statement of Facts. As such, these facts should each be construed as undisputed for the purposes of summary judgment. b. Plaintiffs' Non-Disclosure Arguments Re: The Identity Of Anonymous Authors Are Groundless In various places throughout their response to Defendants' Separate Statement of Facts, Plaintiffs complain that information about the true identity of the anonymous authors who created the reports about AEI has not been disclosed by Defendants. For 13 DEFENDANTS' RESPONSE TO PLAINTIFFS' STATEMENT OF ADDITIONAL 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 example, in 6466, 68, 72, 74 & 75, Plaintiffs attempt to dispute the asserted factual matters noting, "Defendants have not yet disclosed the identity of the posters." This objection is disingenuous and misleading because it implies that Plaintiffs have actually requested such information when, in fact, they have not. To date, Plaintiffs have never asked Defendants to produce information that would identify any author of any reports about Plaintiffs on the Ripoff Report website. Although such information might ordinarily appear to be subject to the compulsory disclosure obligations of Rule 26, this is not the case because information concerning the true identity of an anonymous author is privileged and confidential under the First Amendment. This issue has been the subject of substantial litigation in Arizona. See Mobilisa v. Doe, 217 Ariz. 103, 11415, 170 P.3d 712, 72324 (Ariz.App. 2007) (finding identity of anonymous author was protected under First Amendment and could not be compelled without notice to the author and additional requirements); Best Western Int'l, Inc. v. Doe, 2006 WL 2091695, *3 (D.Ariz. 2006) (same). California courts have also determined that the First Amendment protects the right to anonymous speech. See Highfields Capital Mgmt., L.P. v. Doe, 385 F.Supp.2d 969 (N.D.Cal. 2005) (granting motion to quash subpoena seeking identity of anonymous Internet author where requesting party failed to demonstrate viable claims against the author). These issues have been fully discussed with Plaintiffs' counsel. If Plaintiffs wish to obtain the identity of any of the authors of reports appearing on the Ripoff Report website, they are obligated to, among other things, provide notice of such a request to each author and to demonstrate compliance with the standards set forth in Mobilisa and/or Highfields Capital. To date, Plaintiffs have made no efforts of any kind to fulfill these obligations, nor have Plaintiffs asked Defendants to disclose the identity of each other. For those reasons, unless and until Plaintiffs satisfy the legal requirements for obtaining this information, they are not entitled to breach the First Amendment's veil of anonymity as to each author and their lack of diligence in pursing this information does not create a genuine factual dispute as to whether summary judgment is proper. 14 DEFENDANTS' RESPONSE TO PLAINTIFFS' STATEMENT OF ADDITIONAL FACTS CV10-01360 SVW 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 c. Plaintiffs' Non-Disclosure Arguments Re: Defendants' Cell Phone Records Are Groundless Finally, Plaintiffs attempt to dispute 4750 of Defendants' Separate Statement of Facts which relate to the absence of any additional conversations between Mr. Mobrez and Mr. Magedson other than the six recorded calls which are described in Defendants' Motion for Summary Judgment. The primary and/or sole basis for the alleged dispute is that "Plaintiffs have not yet received Mr. Magedson's cell phone records ... ." As with the anonymous author issue, this position is groundless and disingenuous because Plaintiffs have never requested any cell phone records from Mr. Magedson or Xcentric. Plaintiffs cannot legitimately complain about the lack of disclosure of information which they have not requested and which, in any case, would not contain any information to support Plaintiffs' position. As noted above, in his declaration dated May 3, 2010, Mr. Mobrez never identified any conversations with Mr. Magedson other than the ones which Mr. Mobrez initiated and which were automatically recorded by Xcentric. Moreover, in his deposition Mr. Mobrez confirmed that he had no memory of any incoming calls from Mr. Magedson, and Mr. Magedson confirmed that fact in 37 of his affidavit filed in support of Defendants' motion in which he stated that he never called Mr. Mobrez. These 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 uncontested facts show there is no genuine dispute as to the existence of any additional conversations between Mr. Mobrez and Mr. Magedson. As such, Plaintiffs cannot avoid summary judgment by complaining about the non-disclosure of phone records which they have had ample opportunity to obtain but which they have never requested. DATED June 23, 2010. GINGRAS LAW OFFICE, PLLC /S/ David S. Gingras David S. Gingras Attorneys for Defendants Ed Magedson and Xcentric Ventures, LLC 15 DEFENDANTS' RESPONSE TO PLAINTIFFS' STATEMENT OF ADDITIONAL 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 June 24, 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 /s/David S. Gingras 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 DEFENDANTS' RESPONSE TO PLAINTIFFS' STATEMENT OF ADDITIONAL FACTS CV10-01360 SVW

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