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

Filing 79

DECLARATION of Ben Smith In Support of Defendants' Reply Re: Motion for Summary Judgment 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 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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' REPLY RE: MOTION FOR SUMMARY JUDGMENT Hearing Date: June 28, 2010 Time: 1:30 PM Courtroom: 6 (Hon. Stephen Wilson) AFFIDAVIT OF BEN SMITH 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, 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. 3. I have personally reviewed the pleading entitled "Plaintiffs' Statement of Genuine Issues In Opposition To Defendants' Motion For Summary Judgment", and I have reviewed the statement of additional facts offered by Plaintiffs beginning on page 16 of that pleading. 4. I am aware that 20 of Plaintiffs' additional facts alleges the following: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. 5. I am also aware that 21 of Plaintiffs' additional facts alleges: "A business or individual may file a rebuttal for free. However, as Magedson admits, these rebuttals do not appear as Internet search results." 6. Both of these statements are partially true but also partially false. It is true that depending on the search terms used, rebuttals posted on Ripoff Report might not always appear as results on search engines such as Google. However, like all text on Ripoff Report rebuttals are indexed by Google and rebuttals do show up as search results in Google depending on the actual search terms entered by the person doing the search. 2 AFFIDAVIT OF BEN SMITH 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. Insofar as Plaintiffs claim that their rebuttals never appear as results on Google, this statement is not true. In fact, this can easily be demonstrated by comparing the results returned by Google when different search terms are used. 8. For instance, below is a screenshot of a search performed on Google on June 23, 2010 for the terms "Asia Economic Institute". The third result shown relates to report #417493 which is a report about AEI on the Ripoff Report. The result includes a short snippet of text taken from the title of that report, not from any of the rebuttals: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9. I have personally reviewed report #417493 (located here: http://www.ripoffreport.com/employers/asia-economic-instit/asia-economic-institute-aeief3f4.htm) and I am aware that as of June 23, 2010, this report contains eight separate rebuttals. One of the rebuttals (#6) was posted on April 3, 2009 and it bears the title: "Asia Economic Institute is saddened by the false allegations posted on this RipOff Internet gossip site". I am informed that rebuttal #6 was posted by Plaintiffs, and I am informed that the same or similar rebuttals were posted by Plaintiffs to each of the other reports about them on RipoffReport.com. 3 AFFIDAVIT OF BEN SMITH 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 10. As reflected in the screenshot above, rebuttal #6 does not appear in the short "snippet" of text displayed in Google's results. By the same token, none of the text of any of the other seven rebuttals appears in the snippet either. However, all of the text in report #417493 and all of the text in each of the rebuttals is indexed by Google and the text of rebuttal #6 will be displayed in Google's results depending on the actual search terms entered by the user. 11. For instance, rebuttal #6 includes a unique word--"saddened"--which is not found anywhere else in the text of report #417493 or in any other rebuttals on that page. Because Google's unique algorithms attempt to return search results based on the relevance of content in Google's index to the terms entered by the searcher, when a search is conducted for the term "Asia Economic Institute" plus the word "saddened", the very first result returned is a link to report #417493--the same as in the first search. 12. However, unlike the results returned in the first search (without the word 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 "saddened") which did not show any text from rebuttal #6, adding the word saddened produces a different short snippet of text taken entirely from rebuttal #6: 4 AFFIDAVIT OF BEN SMITH 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 6 AFFIDAVIT OF BEN SMITH CV10-01360 SVW

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