LegalZoom.com Inc v. Rocket Lawyer Incorporated

Filing 161

REPLY MOTION for Sanctions Under Rule 11; Memorandum of Points and Authorities with Redactions 127 filed by Plaintiff LegalZoom.com Inc. (Attachments: # 1 Declaration of Aaron Allan)(Heather, Fred)

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PATRICIA L. GLASER - State Bar No. 55668
[e-mail]
FRED D. HEATHER - State Bar No. 110650
[e-mail]
AARON P. ALLAN - State Bar No. 144406
[e-mail]
GLASER WEIL FINK HOWARD
AVCHEN & SHAPIRO LLP
10250 Constellation Boulevard, 19th Floor
Los Angeles, California 90067
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff
LegalZoom.com, Inc.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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LEGALZOOM.COM, INC., a Delaware
corporation,
Plaintiff,
v.
ROCKET LAWYER INCORPORATED,
a Delaware corporation,
Defendant.

CASE NO.: CV 12-9942-GAF (AGRx)
Hon. Gary A. Feess
Courtroom: 740
REDACTED REPLY
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
LEGALZOOM.COM, INC’S
MOTION FOR RULE 11
SANCTIONS
Date:
October 27, 2014
Time:
9:30 a.m.
Courtroom: 740
Complaint Filed: November 20, 2012

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TABLE OF CONTENTS

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Page

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I.

INTRODUCTION ........................................................................................... 1

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II.

ROCKET LAWYER MADE AN UNSUPPORTED ASSERTION OF
FACT TO THE COURT ................................................................................. 1

III.

THE HIDDEN ROCKET LAWYER STUDIES SHOULD HAVE BEEN
CONSIDERED ALONG WITH THE COMPETING EXPERT
REPORTS AS PART OF THE SUMMARY JUDGMENT RECORD ......... 2

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A.

The Relative Size and Number of Participants in the Internal
Studies Did Not Provide a Basis For Rocket Lawyer to Conceal
Them. .................................................................................................... 2

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B.

Rocket Lawyer’s Case Law is Inapposite. ............................................ 3

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C.

The Internal Studies are Not Hearsay. .................................................. 4

D.

The Internal Studies Are Not Refuted by the “Notes” Which
Rocket Lawyer Now Provides With its Opposition.............................. 6

E.

LegalZoom Does Not Acknowledge that the Existing Record is
Inadequate to Defeat Rocket Lawyer’s Summary Judgment
Motion. .................................................................................................. 7

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IV.

LEGALZOOM’S COUNSEL MADE NO ETHICAL VIOLATION ............ 8

V.

ROCKET LAWYER HAS AGAIN VIOLATED RULE 11 IN ITS
FOOTNOTE 8 ................................................................................................. 8

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VI.

ROCKET LAWYER’S PROCEDURAL ARGUMENTS ARE MOOT........ 9

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VII. CONCLUSION AND REQUESTED REMEDY ........................................... 9

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TABLE OF AUTHORITIES

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Page

FEDERAL CASES 

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Block v. City of Los Angeles,
253 F.3d 410, 418-19 (9th cir.2001) ........................................................................ 5
Lucas v. Duncan,
574 F.3d 772 (D.C. Cir. 2009).............................................................................. 3, 4
Stitt v. Williams,
919 F.2d 516 (9th Cir. 1990) .................................................................................... 3

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William H. Morris Co. v. Grp. W, Inc.,
66 F.3d 255, 258 (9th Cir. 1995) .............................................................................. 5

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FEDERAL STATUTES 

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Fed. R. Civ. P. 801(d)(D) .............................................................................................. 4

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Fed. R. Evid. 602 ........................................................................................................... 6

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Fed. R. Evid. 612 ........................................................................................................... 6

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Fed. R. Evid. 803(5) ...................................................................................................... 6

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OTHER AUTHORITIES 

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California Rule of Professional Conduct 5-100 ............................................................ 8

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I.

INTRODUCTION
There is a clear line separating aggressive advocacy from an effort to deceive

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and mislead the Court. Faced with a choice to stand on the right side of that line, and

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after being given ample notice and repeated opportunities to take that stand, Rocket

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Lawyer and its counsel made the opposite choice. Instead of simply agreeing to argue

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on summary judgment the relative weight and impact of survey evidence available in

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the record, Rocket Lawyer and its counsel chose to continue an attempt first to hide

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from LegalZoom, and then to hide from the Court, the portion of that record that it

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knew would negatively impact its motion: Rocket Lawyer’s own internal studies,

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which suggested to Rocket Lawyer that consumers felt “

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Lawyer’s “free” advertisements, that consumers felt Rocket Lawyer was employing a

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“

,” and that the advertisements were “

” by Rocket
” which “

.” While Rocket Lawyer goes to great lengths in its opposition brief to

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argue why these internal studies are irrelevant or inadmissible, those are arguments

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that should have been made in the summary judgment briefing, and they provide no

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excuse for not having placed those documents into the record as part of Rocket

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Lawyer’s summary judgment motion, to be considered by the Court.1

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Rocket Lawyer’s opposition to this sanctions motion is replete with arguments

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that are merely side-show distractions, and some of those arguments are based on yet

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another failure to act with full candor to the Court.

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II.

ROCKET LAWYER MADE AN UNSUPPORTED ASSERTION OF

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FACT TO THE COURT

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In arguing against Rule 11 sanctions, Rocket Lawyer argues that “LegalZoom

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LegalZoom’s pending motion to supplement the record (the “Motion to
Supplement”) also presents evidence, including deposition testimony from Rocket
Lawyer witnesses and discovery misconduct by Rocket Lawyer’s counsel, which lend
support to any determination of sanctions. While we do not cite to, or rely upon, such
evidence here, because it was not referenced by our original Rule 11 moving papers,
LegalZoom invites the Court to independently consider such evidence as further
confirmation that this Rule 11 motion should be granted.
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does not point to any unsupported assertions of fact.” Opp. at 5:21-23. This is

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plainly not accurate. The motion identifies, and quotes, several factual statements

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made by Rocket Lawyer that were untrue and unsupported. The most grievous of

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those statements was a representation made to the Court, which was block quoted in

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the motion:

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“[R]ocket Lawyer has since conducted searches of documents in its

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possession, produced over 22,000 documents in response to

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LegalZoom’s discovery requests (including at least 10 spreadsheets of

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generated ad and conversion data), and conducted a comprehensive

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consumer survey. SSUF at 5-9, 92-93. These efforts have resulted in a

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record of undisputed facts demonstrating that Rocket Lawyer’s

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advertisements are truthful and have no tendency to deceive.”

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Rocket Lawyer’s Motion for Summary Judgment (“Motion”), pg. 14, fn. 8. (emphasis

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added). Other, similarly misleading, statements were also quoted by LegalZoom in

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its moving papers, at pp. 2-3. While Rocket Lawyer may argue about whether its

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internal usability studies are dispositive of the issues on summary judgment, it is mere

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sophistry for Rocket Lawyer to argue that they have no bearing at all on whether the

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advertisements “have no tendency to deceive.”

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III.

THE HIDDEN ROCKET LAWYER STUDIES SHOULD HAVE BEEN

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CONSIDERED ALONG WITH THE COMPETING EXPERT REPORTS

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AS PART OF THE SUMMARY JUDGMENT RECORD

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A.

The Relative Size and Number of Participants in the Internal Studies

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Did Not Provide a Basis For Rocket Lawyer to Conceal Them.

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Rocket Lawyer argues that its internal studies have “very few participants,” and

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that two of them “involved only twelve interviews each.” Opp. at 7:23-24. For this

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reason, Rocket Lawyer argues that the Court should disregard them in comparison to

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the study performed by its paid expert, Dr. Wind, which they claim was a survey of

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“over 400 consumers.” Id. at 6:9. Rocket Lawyer’s argument is self-defeating.
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As LegalZoom pointed out in its opposition to Rocket Lawyer’s motion for

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summary judgment, the Wind survey eliminates from consideration the vast majority

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of the original 400 respondents, and ultimately attempts to draw conclusions based on

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the responses of 15 respondents in a test group as compared to 13 respondents in a

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control group. See LegalZoom’s Statement of Genuine Disputes, No. 119. For that

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reason, there is nothing about the size of the responses evaluated in Rocket Lawyer’s

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internal studies (12 or more) which suffers in comparison from the responses

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evaluated by Dr. Wind. But in any event, this is exactly the type of argument that

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Rocket Lawyer could have made, and should have made, as part of the briefing on

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summary judgment after full disclosure of the internal studies to LegalZoom and to

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the Court.
Rocket Lawyer’s Case Law is Inapposite.

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B.

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Rocket Lawyer’s argument that Rule 11 does not require a party to supply

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known evidence which is contrary to its factual contentions is not supported by the

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case law to which it cites.

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In Stitt v. Williams, 919 F.2d 516 (9th Cir. 1990), the Ninth Circuit reversed a

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district court award of sanctions against a party and counsel who opposed a motion

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for summary judgment. The district court had found the opposition to be frivolous,

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and without basis, but the Ninth Circuit held that there were at least some declarations

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submitted which arguably supported the opposition. Id. at 527. It was on that basis

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that the Court held that insufficient evidence does not amount to factually unfounded

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claims for purposes of Rule 11. But here the issue is not whether Rocket Lawyer’s

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evidence is insufficient; the issue is whether Rocket Lawyer acted to conceal

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evidence. Stitt offers no opinion on that subject in the Rule 11 context or in any other

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context.

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In Lucas v. Duncan, 574 F.3d 772 (D.C. Cir. 2009), as in Stitt, Rule 11 was

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being examined in connection with a party’s opposition to summary judgment. In

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Lucas, sanctions were being sought, in part, because of a party’s reliance upon certain
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evidence that was in the factual record to support the presence of a triable issue of fact

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without simultaneously pointing out the contrary evidence that was also in the record.

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The Court properly rejected that conduct as being subject to Rule 11 sanctions:

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Karl’s obligation in opposing the defendant’s motion was to file a
separate statement “setting forth all material facts as to which it is
contended there exists a genuine issue necessary to be litigated.” To do
that, Karl was obliged to do no more than set forth facts in contravention
of the defendant’s claims. The rules do not require him to rehearse the
government’s evidence, and nothing in Rule 11 imposes that added
burden. Nor could the omission of that evidence have been misleading to
the reader. Many of the facts that the magistrate judge criticized Karl for
failing to disclose in his opposition were contained in the government
motion to which he was responding.

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Id. at 780. In marked contrast to the context being evaluated in Lucas, Rocket

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Lawyer is not simply selectively arguing based on some, but not all, of the facts

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available in the record in order to create a triable issue. Instead, Rocket Lawyer’s

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conduct involved an attempt to dilute that factual record so that the competing facts

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were simply not available to be argued by LegalZoom or considered by the Cout. As

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noted by the Lucas court, “context is relevant.” Id.
The Internal Studies are Not Hearsay.

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C.

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Rocket Lawyer protests that the internal studies are inadmissible hearsay

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because they are presented for “their truth regarding the interviewees’ opinions, and

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the underlying opinions for their truth about the nature of the website.” Opp. at 7:1-2.

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Rocket Lawyer’s hearsay objection is without merit.

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First, because Dr. Ferguson’s studies were commissioned by Rocket Lawyer

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and performed by its agent, the statements made are party admissions and are

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therefore excepted from the hearsay rule. Fed. R. Civ. P. 801(d)(D) (“a statement by

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the party’s agent or servant about a matter within the scope of agency or employment,

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made during the existence of the relationship”).

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Second, all of the studies, including the Google study, are no more hearsay than
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the paid expert study upon which Rocket Lawyer places its reliance.2
Third, the studies are not offered to prove the truth of any matter asserted. It

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does not matter whether each of the individual study participants was actually

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deceived, or whether each actually felt deceived, about the Rocket Lawyer “free”

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advertisements. It is the participants’ perception of the advertisements which matters,

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and the evidence is offered to show that the advertisements have at least a tendency to

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mislead or deceive. Moreover, these internal studies may be offered for another

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significant purpose separate and apart from a demonstration that the advertisements

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were actually deceptive or misleading: the fact that Rocket Lawyer was informed by

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Dr. Ferguson’s study that the advertisements could be viewed as deceptive, and yet

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Rocket Lawyer continued to run the advertisements after being armed with that

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knowledge, goes to the issue of whether Rocket Lawyer had an intent to deceive,

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which creates a presumption of actual deception under the Lanham Act. William H.

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Morris Co. v. Grp. W, Inc., 66 F.3d 255, 258 (9th Cir. 1995).
Fourth, these documents can be used to impeach Rocket Lawyer witnesses

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about the intent to deceive consumers and Rocket Lawyer’s knowledge of the

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potential to deceive, which presents another fair and appropriate use for these

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documents both on summary judgment and at trial.

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Lastly, at the summary judgment stage, courts do not focus on the admissibility

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of the evidence’s form, but instead focus on the admissibility of its contents. Block v.

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City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir.2001) (“To survive summary

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judgment, a party does not necessarily have to produce evidence in a form that would

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be admissible at trial, as long as the party satisfies the requirements of Federal Rules

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of Civil Procedure 56.”). The contents of the usability studies can therefore be

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In opposing Rocket Lawyer’s motion for summary judgment, LegalZoom argued
that Dr. Wind’s expert report, upon which Rocket Lawyer relied, was hearsay because
the report was simply attached to an attorney declaration and was not a sworn
statement made by Dr. Wind under penalty of perjury. That objection is different
than the one now being made by Rocket Lawyer as to the survey respondents.
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admitted into evidence at trial in a variety of ways. Dr. Ferguson and Mr. Margolis

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could testify to all relevant portions of their usability studies from their personal

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knowledge. Fed. R. Evid. 602. If Dr. Ferguson or Mr. Margolis forget about certain

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content within their reports, they may be able to use their respective reports to refresh

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their recollection. Fed. R. Evid. 612. If the reports fail to refresh their recollection,

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Dr. Ferguson and Mr. Margolis may still be able to read the reports into evidence as a

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recorded recollection under Fed. R. Evid. 803(5).
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The Internal Studies Are Not Refuted by the “Notes” Which Rocket
Lawyer Now Provides With its Opposition.

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Rocket Lawyer argues that LegalZoom failed to produce the underlying notes

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made in connection with the internal studies, and that such notes either contradict or

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undermine the findings of Dr. Ferguson about the advertisements being deceptive.

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Rocket Lawyer is mistaken. The April 2010 notes contain several damning

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. For example, comment no. 42, on page 34 of Jones

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Decl. Exhibit 1, states:

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(original case). In

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her subsequent May 2011 usability study, Dr. Ferguson states that user perceptions of

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“

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” in Rocket Lawyer advertisements were also observed “
.” But the limited set of notes attached by Rocket Lawyer’s counsel

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were, according to counsel, only taken as part of one study -- the April 2010 usability

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study. Rocket Lawyer has failed to identify any conflicting notes from the other

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studies. Moreover, the conclusions drawn by Dr. Ferguson in her reports, which were

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communicated by her to Rocket Lawyer, have independent significance, and can be

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used as evidence supporting an intent to deceive regardless of whether some elements

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of Dr. Ferguson’s notes fail to provide complete support for those conclusions.

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Rocket Lawyer’s argument about the notes also lacks appropriate evidentiary
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support. Rocket Lawyer’s counsel, Michael T. Jones, states in a declaration that his

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attached Exhibit 1 provides a “true and correct copy of notes taken as part of the April

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2010 usability study conducted by Dr. Elizabeth Ferguson, Ph.D., beginning Bates

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Number RLI0039820 and produced to LegalZoom on July 11, 2014,” but Rocket

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Lawyer has failed to produce a declaration of Dr. Ferguson confirming that these

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notes were taken as part of her study and/or confirming the interpretation of those

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notes offered by Rocket Lawyer’s counsel. Mr. Jones also failed to provide any facts

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in his declaration which substantiates his personal knowledge as to who is the author

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of the notes or how they should be interpreted. This is yet again an argument that

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should have been made as part of the summary judgment record, and not as an

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argument for withholding evidence from the Court.

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LegalZoom never misrepresented the information contained within the internal

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study, and merely offered direct quotes authored by Dr. Ferguson which were

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communicated to Rocket Lawyer. LegalZoom did not offer the underlying notes

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because LegalZoom had no ability to determine who authored those notes. While Mr.

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Jones’ declaration states that these notes were taken “as part” of the April 2010

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usability study, the notes are completely void of authorship and cannot be viewed as

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self-authenticating.

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E.

LegalZoom Does Not Acknowledge that the Existing Record is
Inadequate to Defeat Rocket Lawyer’s Summary Judgment Motion.

By moving for sanctions based on Rocket Lawyer’s concealment of evidence,

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LegalZoom is not in any way conceding that the existing factual record is inadequate

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as a basis for defeating Rocket Lawyer’s motion for summary judgment. For all of

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the reasons stated in LegalZoom’s opposition papers, the survey performed by Rocket

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Lawyer’s paid expert Dr. Wind is fatally flawed and unreliable; but in any event, the

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competing expert testimony in this case presents, at the very least, an intractable

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triable issue of fact which a jury must resolve. The internal studies which Rocket

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Lawyer attempted to conceal simply confirm the strength of LegalZoom’s opposition.
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IV.

LEGALZOOM’S COUNSEL MADE NO ETHICAL VIOLATION
Rocket Lawyer argues that LegalZoom’s counsel acted inappropriately by

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offering to withdraw its Rule 11 motion if Rocket Lawyer would simply reverse the

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sanctionable conduct by permitting the subject internal studies to be put before the

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Court. Rocket Lawyer describes this as an “inappropriate quid pro quo” and a

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violation of California Rule of Professional Conduct 5-100. Rocket Lawyer is once

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again mistaken, and once again over the line of aggressive advocacy.
Rule 11, by providing twenty-one days before any sanctions motion is actually

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filed with the court, encourages parties to meet and confer in an effort to cure the

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alleged violation and to avoid motion practice. Under Rocket Lawyer’s purported

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standard, every effort to meet and confer before filing a Rule 11 motion would

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constitute an ethical breach, and that cannot be the law. Moreover, as Exhibit 3 to the

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Jones declaration makes clear, LegalZoom’s counsel made no threats (its motion was

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already served and pending), and was simply attempting to give Rocket Lawyer’s

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counsel a full and fair opportunity to avoid the motion, and to cure its past misconduct

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by placing these internal studies into the summary judgment record.

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V.

ROCKET LAWYER HAS AGAIN VIOLATED RULE 11 IN ITS

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FOOTNOTE 8

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Rocket Lawyer refers in a footnote to LegalZoom’s recent withdrawal of a

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narrow argument that it had previously relied upon as support for its own motion for

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partial summary judgment. ECF No. 116. It is true that the withdrawal of that

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argument was prompted by a letter from Rocket Lawyer’s counsel which threatened

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Rule 11 sanctions against LegalZoom. Allan Decl. Exh. A. But LegalZoom does not

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agree with Rocket Lawyer that the original making of that argument was either

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unsupported or sanctionable. In deciding to withdraw that argument, LegalZoom was

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persuaded based on the arguments made by Rocket Lawyer in its letter that (a) the

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argument could be viewed by the Court as attended by triable issues of fact, not

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suitable for resolution on summary judgment; and (b) the other two arguments upon
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which LegalZoom relied to obtain partial summary judgment were much stronger and

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independently dispositive. LegalZoom therefore did what Rocket Lawyer should

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have done in this case -- mooted the need for any motion practice.

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Most significantly for this motion, however, is Rocket Lawyer’s statement that

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LegalZoom withdrew the argument while “[a]cknowledging its misconduct.” Opp. at

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6, note 8. Prior to withdrawing the argument, LegalZoom’s counsel sent a letter to

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Rocket Lawyer’s counsel which clearly and definitively states that LegalZoom would

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be withdrawing that argument without any acknowledgment that it had violated Rule

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11 (“We strongly disagree with the arguments upon which Rocket Lawyer’s [Rule 11]

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motion is based. . . . and solely to avoid what we view as time wasting and

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unnecessary motion practice, LegalZoom is prepared to withdraw that portion of its

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partial summary judgment motion, section III.B.3, which argues for judgment based

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on a lack of authorship or control of the content at Legalspring.com.”). Allan Decl.

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Exh. B. Rocket Lawyer’s misrepresentation to the court that LegalZoom was

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“acknowledging misconduct,” without referencing the letter from LegalZoom’s

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counsel stating exactly the opposite position, is once again a violation of Rule 11.

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VI.

ROCKET LAWYER’S PROCEDURAL ARGUMENTS ARE MOOT
Finally, Rocket Lawyer makes several procedural arguments that LegalZoom is

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attempting to gain an improper sur-reply; that LegalZoom waited too long before

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bringing this motion; and that LegalZoom has no excuse for having failed to move

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earlier to supplement the record. Based on the Court’s recent ruling (ECF No. 131)

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which granted LegalZoom’s ex parte application to move the hearing date on the

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competing summary judgment motions to October 27, 2014, to be heard along with

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this Rule 11 motion and LegalZoom’s motion to supplement the record, these

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arguments have already been rejected by the Court and should be treated as moot.

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VII.

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CONCLUSION AND REQUESTED REMEDY
Rocket Lawyer’s knowingly false statements that there is a record of

undisputed facts showing that its advertisements are not deceptive has burdened
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LegalZoom and the Court with additional costs. LegalZoom accordingly requests that

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the Court impose sanctions against Rocket Lawyer and Rocket Lawyer’s counsel,

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including the reasonable attorneys’ fees and costs incurred in preparing (a)

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LegalZoom’s Opposition to Rocket Lawyer’s motion for summary judgment, (b) this

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Rule 11 motion, and (c) any motion or application necessary to support the sanctions

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being requested by this motion.

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DATED: October 17, 2014

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Respectfully submitted,
GLASER WEIL FINK
HOWARD AVCHEN & SHAPIRO LLP
By: /s/ Fred Heather
PATRICIA L. GLASER
FRED D. HEATHER
AARON P. ALLAN
Attorneys for Plaintiff
LegalZoom.com, Inc.

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CERTIFICATE OF SERVICE

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STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

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I am employed in the County of Los Angeles, State of California; I am over the
age of 18 and not a party to the within action; my business address is 10250
Constellation Boulevard, 19th Floor, Los Angeles, California 90067.
On October 17, 2014, I electronically filed the following document(s) using the
CM/ECF system.
REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF LEGALZOOM.COM, INC’S MOTION FOR RULE 11 SANCTIONS
Participants in the case are registered CM/ECF users and will be served by the
CM/ECF system.
I declare that I am employed in the office of a member of the bar of this court at
whose direction the service was made. I declare under penalty of perjury that the
above is true and correct.
Executed on October 17, 2014 at Los Angeles, California.
/s/ Fred D. Heather
Fred D. Heather

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