Internet Brands Inc et al v. UltimateCoupons.com LLC et al

Filing 112

MINUTES (IN CHAMBERS) by Judge Christina A. Snyder: Plaintiff's Ex Parte Application to Continue the Trial 102 is hereby DENIED. Court Reporter: Not Present. (gk)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 11-5358 CAS (CWx)

Title

INTERNET BRANDS, INC. V. ULTIMATECOUPONS.COM, LLC, ET
AL.

Present: The Honorable

Date

June 3, 2013

CHRISTINA A. SNYDER

Catherine Jeang
Deputy Clerk

Not present
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants

Not present

Not present

Proceedings:

(In Chambers:) PLAINTIFF’S EX PARTE APPLICATION
TO CONTINUE THE TRIAL (filed May 29, 2013) [Dkt. No.
102]

On May 29, 2013, plaintiff Internet Brands filed the instant ex parte application to
continue the trial in this action, presently scheduled for Wednesday, June 5, 2013. For
the reasons set forth below, the Court DENIES plaintiff’s ex parte application.
Plaintiff seeks a continuance of ninety (90) days in order complete a full audit of
the underlying revenue categories that comprise the “Year 3” earn out payment.
Previously, plaintiff reported total revenues for this period from the subject website of
$3,706,001, but failed to provide the documentation required by the parties’ agreement.
In its application, plaintiff notes the large volume of information that must be reviewed.
Defendants previously provided plaintiff with much of this information, but plaintiff
contends that its own audit remains ongoing. Part of the reason for the delay, plaintiff
notes, is that the third-party commission report from Commission Junction contains
entries for a number of different websites that plaintiff owns, including Bargainist, Tjoos,
BensBargains, DealLocker, among others.
Plaintiff further notes that trial counsel was only recently associated in on this
matter; complete review of this information may render trial unnecessary; and some of
plaintiff’s potential witnesses “may” be unavailable due to “their current involvement in
another transaction involving a publicly traded corporation.” Finally, plaintiff contends
that there will be no meaningful prejudice to defendants if this application is granted,
because defendants only oppose the continuance in order to obtain an adverse inference
that defendants’ damages calculations must be accepted.
CV-90 (06/04)

CIVIL MINUTES - GENERAL

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 11-5358 CAS (CWx)

Date

June 3, 2013

Title

INTERNET BRANDS, INC. V. ULTIMATECOUPONS.COM, LLC, ET
AL.

The Court agrees with defendants and counterclaimants Jeff Grossman, Andrew
Kardon, and JAG Ventures, however, that a continuance of the trial date is not
appropriate.
First, as defendants note, plaintiff is seeking a continuance not to produce any
records, but merely to analyze the records that defendants/ counterclaimants produced to
plaintiff in December 2012. These records were also discussed extensively in
defendants’ expert report, which was also provided to plaintiff prior to the motion for
summary judgment. Seeking more time to conduct an audit based on records that were
already in its possession is not a tenable ground for continuing trial.
Second, to date, plaintiff has never produced any data or documentation to
defendants regarding the Year 3 earnout payment based on the net revenues of the
ultimatecoupon.com site. This is despite the fact that plaintiff’s general counsel, B. Lynn
Walsh, stated in an October 2012 declaration that she had “reviewed [plaintiff’s]
corporate books and records regarding gross revenue for ultimatecoupons.com for the
period May 1, 2010 through April 30, 2011, which totaled $3,706,001,” and that she had
“verified this revenue figure and know it to be true and accurate.” See Dkt. 59-9, ¶¶ 5–6.
As defendants note, however, plaintiff has never produced these “books and records” that
Walsh purportedly reviewed in verifying the Year 3 figure. Given that plaintiff =has
already “verified this revenue figure” during the pendency of this litigation, a
continuance to allow plaintiff to conduct a further audit is not appropriate.1

1

Defendants also contend that plaintiff’s ex parte application reveals another
breach of the parties’ agreement (the “APA”). In particular, section 1.9 of the APA states
that “Internet Brands shall not commingle or aggregate any of the business affiliate
accounts, such that [ultimatecoupons.com’s] business is segregated from Internet Brands’
other website businesses.” These “affiliate accounts” include the Commission Junction
account referenced above, which plaintiff appears to concede is commingled with other
websites in plaintiff’s portfolio. Defendants aver that they did not become aware of this
purported breach until reading plaintiff’s ex parte application. The Court declines to
decide whether plaintiff is in breach of this section of the APA for purposes of this ex
parte application.
CV-90 (06/04)

CIVIL MINUTES - GENERAL

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 11-5358 CAS (CWx)

Date

June 3, 2013

Title

INTERNET BRANDS, INC. V. ULTIMATECOUPONS.COM, LLC, ET
AL.

In accordance with the foregoing, plaintiff’s ex parte application to continue the
trial in this action is hereby DENIED.
IT IS SO ORDERED.
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Initials of Preparer

CV-90 (06/04)

CIVIL MINUTES - GENERAL

:

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CMJ

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