LegalZoom.com Inc v. Rocket Lawyer Incorporated
Filing
180
PROPOSED SPECIAL JURY VERDICT filed by defendant/counterclaimant Rocket Lawyer Incorporated. (Jones, Michael)
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Patricia L. Glaser (SBN 55668)
pglaser@glaserweil.com
Fred D. Heather (SBN 110650)
fheather@glaserweil.com
Aaron P. Allan (SBN 144406)
aallan@glaserweil.com
GLASER WEIL FINK HOWARD
AVCHEN & SHAPIRO LLP
10250 Constellation Blvd., 19th Floor
Los Angeles, California 90067
Telephone: (310) 553-3000
Facsimile: (310) 556-2920
Attorneys for Plaintiff
LEGALZOOM.COM, INC.
Forrest A. Hainline III (SBN 64166)
fhainline@goodwinprocter.com
Hong-An Vu (SBN 266268)
hvu@goodwinprocter.com
GOODWIN PROCTER LLP
Three Embarcadero Center, 24th Floor
San Francisco, California 94111
Tel.: 415.733.6000
Fax.: 415.677.9041
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Michael T. Jones (SBN 290660)
mjones@goodwinprocter.com
GOODWIN PROCTER LLP
135 Commonwealth Drive
Menlo Park, California 94025-1105
Tel.: 650.752.3100
Fax.: 650.853.1038
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[Addt’l counsel listed in signature block]
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Attorneys for Defendant
ROCKET LAWYER INCORPORATED
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
LEGALZOOM.COM, INC., a Delaware Case No. 2:12-cv-09942-GAF-AGR
corporation,
DISPUTED SPECIAL VERDICT
Plaintiff,
FORMS
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v.
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PTC:
ROCKET LAWYER
INCORPORATED, a Delaware
corporation,
Defendant.
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964097.1
Trial:
Judge:
Courtroom:
November 10, 2014
1:30 p.m.
December 9, 2014
Judge Gary A. Feess
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Action Filed: November 20, 2012
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Plaintiff and counterclaim defendant, LegalZoom.com, Inc. (“LegalZoom”),
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and defendant and counterclaimant, Rocket Lawyer Incorporated (“Rocket Lawyer”),
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hereby submit their respective proposed verdict forms. LegalZoom’s proposed special
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verdict for is attached as Exhibit A. Rocket Lawyer’s proposed special verdict form is
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attached as Exhibit B.
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The parties are generally in agreement relating to the law governing the claims
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as reflected in the undisputed jury instructions. However, they are not in agreement
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regarding the form to be provided to the jury. The parties have agreed to continue to
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meet and confer to try to narrow the dispute relating to these forms.
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LegalZoom’s Position:
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LegalZoom contends that the jury should be able to determine whether there
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has been a violation of the false advertising or unfair competition law based on the
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detailed jury instructions provided by the Court. Rocket Lawyer’s proposed special
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verdict form, by providing an incomplete and at times misleading recitation of the
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elements to be considered, would operate to substitute for those jury instructions in a
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manner which would prejudice LegalZoom. For example, the Rocket Lawyer form
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would allow the jury to ignore the question of literal falsity as to a Lanham Act
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violation. But if the jury finds the subject advertisements are literally false, then there
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is no need for the jury to examine whether the advertisements have a tendency to
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deceive, which Rocket Lawyer would improperly require the jury to examine in all
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cases. There are also evidentiary presumptions that are not taken into account in
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Rocket Lawyer’s form. Because Rocket Lawyer’s proposed form would improperly
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guide the jury, and would require a yes answer to all four elements before requesting
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that the jury enter a damages amount, the form would be unfair and prejudicial to
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LegalZoom. LegalZoom agrees, however, that further meet and confer by counsel
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would be appropriate in an attempt to reach common ground before the pretrial
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conference.
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Rocket Lawyer’s Position:
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Rocket Lawyer contends that LegalZoom’s special verdict form is a general,
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not a special verdict form. A special verdict form is a “written finding on each issue
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of fact.” Fed. R. Civ. Proc. 49. Both parties appear to agree that a special verdict
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form is appropriate in this case. As such, Rocket Lawyer has submitted a proposed
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form that provides for a finding on each issue of fact related to the causes of action
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advanced by both parties.
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Additionally, LegalZoom’s example is misleading. As Rocket Lawyer states in
the Disputed Jury Instructions, consumer deception is not presumed in the case of
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literal falsity, but only in the case of deliberately false claims and only for the purpose
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of equitable relief. See Southland Sod Farms, 108 F.3d 1134, 1146 (9th Cir. 1997)
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(“Publication of deliberately false comparative claims gives rise to a presumption of
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actual deception and reliance.”); William H. Morris Co. v. Grp. W, Inc., 66 F.3d 255,
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258 (9th Cir. 1995) (“If Omicron intentionally misled consumers, we would presume
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consumers were in fact deceived and Omicron would have the burden of
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demonstrating otherwise.”); see also POM Wonderful LLC v. Purely Juice, Inc., CV-
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07-02633CAS(JWJX), 2008 WL 4222045, at *11 (C.D. Cal. July 17, 2008) aff’d, 362
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F. App’x 577 (9th Cir. 2009) (citing cases excusing the consumer deception element
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in the case of intentional deception and for the purposes of an injunction). Even if the
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presumption applies, it is rebuttable and only applies to equitable relief that is not
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properly before a jury. Accordingly, even if the presumption were appropriate, it is
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not for the jury to apply.
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To the extent that LegalZoom has an issue regarding the presentation of some
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of the elements, but will agree that each element should be addressed, meeting and
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conferring further may result in narrowing the disputed issues.
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///
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///
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Dated: October 28, 2014
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Respectfully submitted,
By:
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Attorneys for Defendant
ROCKET LAWYER INCORPORATED
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Dated: October 28, 2014
Respectfully submitted,
By:
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/s/ Michael T. Jones
Forrest A. Hainline III
fhainline@goodwinprocter.com
Hong-An Vu (SBN 266268)
hvu@goodwinprocter.com
Michael T. Jones (SBN 290660)
mjones@goodwinprocter.com
Brian W. Cook (Pro Hac Vice)
bcook@goodwinprocter.com
GOODWIN PROCTER LLP
Three Embarcadero Center
24th Floor
San Francisco, California 94111
Tel.: 415.733.6000
Fax.: 415.677.9041
/s/ Fred D. Heather
PATRICIA GLASER
FRED HEATHER
AARON ALLAN
Attorneys for Plaintiff
LEGALZOOM.COM, INC.
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EXHIBIT A
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PA
ATRICIA L. GLASE - State Bar No. 55668
L
ER
B
pg
glaser@glaserweil.com
m
FR
RED D. HE
EATHER - State Bar No. 11065
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fhe
eather@gla
aserweil.co
om
AA
ARON P. ALLAN - State Bar No. 144406
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N
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aal
llan@glase
erweil.com
m
GL
LASER WEIL FINK HOWAR
W
K
RD
AVCHEN & SHAPIR LLP
A
RO
10250 Const
tellation Bo
oulevard, 19th Floor
1
Lo Angeles, California 90067
os
Te
elephone: (310) 553(
-3000
Fa
acsimile: (310) 556-2920
(
At
ttorneys for Plaintiff
r
Le
egalZoom.c
com, Inc.
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DISTRICT COURT
T
UNITED STATES D
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CENTRAL DISTRIC OF CAL
C
L
CT
LIFORNIA
A
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WESTERN DIVISION
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N
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LE
EGALZOO
OM.COM, INC., a De
elaware
cor
rporation,
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Plai
intiff,
CASE N
NO.: CV 1
12-9942-GA (AGRx
AF
x)
Hon. G
Gary A. Fee
ess
Courtro
oom: 740
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v.
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RO
OCKET LA
AWYER IN
NCORPOR
RATED,
a Delaware corporation
D
c
n,
Def
fendant.
LEGAL
LZOOM’S PROPO
OSED
SPECI
IAL VERD
DICT FOR
RM
Pre-Tria Conf.: November 10, 2014
al
r
1:30 p.m.
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Trial:
December 9, 2014
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LEG
GALZOOM’S PROPOSED SPECIAL V
S
D
VERDICT FOR
RM
961857
EXHIBIT A -4-
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Plaintiff LegalZoom.com, Inc. hereby submits its Proposed Special Verdict
Form in this matter as follows:
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961857
EXHIBIT A -5-
Special Verdict
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We, the jury in the above-entitled action, find the following Special Verdict on
the questions submitted to us:
PLAINTIFF CLAIM 1 - LANHAM ACT – FALSE ADVERTISING
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Question No. 1:
Do you find Defendant Rocket Lawyer Incorporated (“Rocket Lawyer’) liable
to Plaintiff for violation of the Lanham Act?
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Yes_____
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No______
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If you answered “Yes,” go to Question No. 2
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If you answered “No,” go to Questions No. 3
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Question No. 2:
State the amount of damages you award to Plaintiff as a result of Rocket
Lawyer’s violation of the Lanham Act.
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$__________________________
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Go to Question No. 3
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PLAINTIFF CLAIM 2 - FALSE ADVERTISING – CALIFORNIA LAW
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Question No. 3:
Do you find Defendant Rocket Lawyer liable to Plaintiff for violation of
California Business and Professions Code Section 17500?
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Yes_____
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No______
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Go to Question No. 4
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2
961857
EXHIBIT A -6-
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PLAINTIFF CLAIM 3 - CALIFORNIA UNFAIR COMPETITION LAW
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Question No. 4:
Do you find Defendant Rocket Lawyer liable to Plaintiff for violation of
California Business and Professions Code Section 17200?
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Yes_____
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No______
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DEFENDANT CLAIM 4 - LANHAM ACT – FALSE ADVERTISING
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Question No. 5:
Do you find Plaintiff Legalzoom.com, Inc. (“LegalZoom”) liable to Defendant
and Counterclaimant Rocket Lawyer for violation of the Lanham Act?
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Yes_____
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No______
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If you answered “Yes,” go to Question No. 6
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If you answered “No,” go to Questions No. 7
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Question No. 6:
State the amount of damages you award to Rocket Lawyer as a result of
LegalZoom’s violation of the Lanham Act.
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$__________________________
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Go to Question No. 7
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DEFENDANT CLAIM 5 - FALSE ADVERTISING – CALIFORNIA LAW
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Question No. 7:
Do you find Plaintiff LegalZoom liable to Rocket Lawyer for violation of
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961857
EXHIBIT A -7-
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California Business and Professions Code Section 17500?
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Yes_____
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No______
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Go to Question No. 8
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DEFENDANT CLAIM 6 - CALIFORNIA UNFAIR COMPETITION LAW
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Question No. 8:
Do you find Plaintiff LegalZoom liable to Rocket Lawyer for violation of
California Business and Professions Code Section 17200?
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Yes_____
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No______
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961857
EXHIBIT A -8-
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DATED: October 28, 2014
GLASER WEIL FINK HOWARD AVCHEN &
SHAPIRO LLP
By: /s/ Fred D. Heather
PATRICIA GLASER
FRED HEATHER
AARON ALLAN
Attorneys for Plaintiff
LEGALZOOM.COM, INC.
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LEGALZOOM’S PROPOSED SPECIAL VERDICT FORM
961857
EXHIBIT A -9-
EXHIBIT B
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Forrest A. Hainline III (SBN 64166)
fhainline@goodwinprocter.com
Hong-An Vu (SBN 266268)
hvu@goodwinprocter.com
GOODWIN PROCTER LLP
Three Embarcadero Center
24th Floor
San Francisco, California 94111
Tel.: 415.733.6000
Fax.: 415.677.9041
Michael T. Jones (SBN 290660)
mjones@goodwinprocter.com
GOODWIN PROCTER LLP
135 Commonwealth Drive
Menlo Park, California 94025-1105
Tel.: 650.752.3100
Fax.: 650.853.1038
Brian W. Cook (Pro Hac Vice)
bcook@goodwinprocter.com
GOODWIN PROCTER LLP
53 State Street
Boston, MA 02109-2802
Tel.: 617.570.1000
Fax.: 617.523.1231
Attorneys for Defendant
ROCKET LAWYER INCORPORATED
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
LEGALZOOM.COM, INC., a Delaware Case No. 2:12-cv-09942-GAF-AGR
corporation,
DEFENDANT ROCKET LAWYER
INCORPORATED'S [PROPOSED]
Plaintiff,
SPECIAL VERDICT FORM
v.
PTC:
November 10, 2014
1:30 p.m.
ROCKET LAWYER
Trial:
December 9, 2014
INCORPORATED, a Delaware
corporation,
Judge:
Judge Gary A. Feess
Courtroom: 740
Defendant.
255 East Temple Street
Los Angeles, CA 90012
Action Filed: November 20, 2012
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EXHIBIT B -10ACTIVE/79865652.5
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Defendant Rocket Lawyer Incorporated hereby submits its Proposed Special
Verdict Form in this matter.
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Dated: October 28, 2014
Respectfully submitted,
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By: /s/ Michael T. Jones
Forrest A. Hainline III
fhainline@goodwinprocter.com
Hong-An Vu (SBN 266268)
hvu@goodwinprocter.com
Michael T. Jones (SBN 290660)
mjones@goodwinprocter.com
Brian W. Cook (Pro Hac Vice)
bcook@goodwinprocter.com
GOODWIN PROCTER LLP
Three Embarcadero Center
24th Floor
San Francisco, California 94111
Tel.: 415.733.6000
Fax.: 415.677.9041
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Attorneys for Defendant
ROCKET LAWYER INCORPORATED
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ACTIVE/79865652.5
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EXHIBIT B -11-
SPECIAL VERDICT FORM
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PLEASE NOTE THAT YOUR ANSWERS TO ALL QUESTIONS
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ON THIS FORM MUST BE UNANIMOUS
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WE THE JURY in the above-entitled action, find the following special
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verdict on the following questions submitted to us:
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I.
QUESTION NO. 1: LEGALZOOM’S LANHAM ACT CLAIM
Listed below are advertising claims made by Rocket Lawyer that LegalZoom
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challenges. Please answer “YES” or “NO” beside Questions A-D for each
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advertising claim.
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1.
Advertising free business entity formation services on search engines results
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pages.
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A. Does this claim make a false or misleading statement of fact?
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Answer: __________
B. Has this claim deceived or does this claim have the tendency to deceive a
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substantial segment of its target audience? Answer: __________
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C. Is this claim material, in that it is likely to influence a consumer’s
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purchasing decision? Answer: __________
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D. Has this claim injured LegalZoom? Answer: __________
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E. If you answered YES to all of Questions A-D, please state the amount of
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harm suffered by LegalZoom as a result of this claim. If you answered
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NO to any of Questions A-D, leave this line blank. $__________
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ACTIVE/79865652.5
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EXHIBIT B -12-
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2.
Advertising a free trial on RocketLawyer.com.
A. Does this claim make a false or misleading statement of fact?
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Answer: __________
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B. Has this claim deceived or does this claim have the tendency to deceive a
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substantial segment of its target audience? Answer: __________
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C. Is this claim material, in that it is likely to influence a consumer’s
purchasing decision? Answer: __________
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D. Has this claim injured LegalZoom? Answer: __________
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E. If you answered YES to all of Questions A-D, please state the amount of
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harm suffered by LegalZoom as a result of this claim. If you answered
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NO to any of Questions A-D, leave this line blank. $__________
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3.
Advertising “free help from local attorneys” on RocketLawyer.com.
A. Does this claim make a false or misleading statement of fact?
Answer: __________
B. Has this claim deceived or does this claim have the tendency to deceive a
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substantial segment of its target audience? Answer: __________
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C. Is this claim material, in that it is likely to influence a consumer’s
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purchasing decision? Answer: __________
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D. Has this claim injured LegalZoom? Answer: __________
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E. If you answered YES to all of Questions A-D, please state the amount of
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harm suffered by LegalZoom as a result of this claim. If you answered
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NO to any of Questions A-D, leave this line blank. $__________
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ACTIVE/79865652.5
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EXHIBIT B -13-
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4.
Advertising “free legal review” on RocketLawyer.com.
A. Does this claim make a false or misleading statement of fact?
Answer: __________
B. Has this claim deceived or does this claim have the tendency to deceive a
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substantial segment of its target audience? Answer: __________
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C. Is this claim material, in that it is likely to influence a consumer’s
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purchasing decision? Answer: __________
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D. Has this claim injured LegalZoom? Answer: __________
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E. If you answered YES to all of Questions A-D, please state the amount of
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harm suffered by LegalZoom as a result of this claim. If you answered
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NO to any of Questions A-D, leave this line blank. $__________
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ACTIVE/79865652.5
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EXHIBIT B -14-
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II.
QUESTION NO. 2: LEGALZOOM’S BUSIENSS AND PROFESSIONS
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CODE SECTION 17500 CLAIM
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Listed below are advertising claims made by Rocket Lawyer that LegalZoom
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challenges. Please answer “YES” or “NO” beside Questions A-E for each
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advertising claim.
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1.
Advertising free business entity formation services on search engines results
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pages.
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A. Did you find this statement to be false or misleading in response to
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Question I.1.A above?
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Answer: __________
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B. If yes, did Rocket Lawyer know or should Rocket Lawyer by the exercise
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of reasonable care have known that the statement was false or misleading?
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Answer: __________
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C. Is this claim likely to deceive reasonable members of the target audience?
Answer: __________
D. Is this claim material, in that it is likely to influence a consumer’s
purchasing decision? Answer: __________
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E. Has this claim injured LegalZoom? Answer: __________
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F. If you answered YES to all of Questions A-E, please state the amount of
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harm suffered by LegalZoom as a result of this claim. If you answered
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NO to any of Questions A-E, leave this line blank. $__________
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ACTIVE/79865652.5
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EXHIBIT B -15-
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2.
Advertising a free trial on RocketLawyer.com.
A. Did you find this statement to be false or misleading in response to
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Question I.2.A above?
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Answer: __________
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B. If yes, did Rocket Lawyer know or should Rocket Lawyer by the exercise
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of reasonable care have known that the statement was false or misleading?
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Answer: __________
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C. Is this claim likely to deceive reasonable members of the target audience?
Answer: __________
D. Is this claim material, in that it is likely to influence a consumer’s
purchasing decision? Answer: __________
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E. Has this claim injured LegalZoom? Answer: __________
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F. If you answered YES to all of Questions A-E, please state the amount of
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harm suffered by LegalZoom as a result of this claim. If you answered
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NO to any of Questions A-E, leave this line blank. $__________
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ACTIVE/79865652.5
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EXHIBIT B -16-
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3.
Advertising “free help from local attorneys” on RocketLawyer.com.
A. Did you find this statement to be false or misleading in response to
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Question I.3.A above?
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Answer: __________
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B. If yes, did Rocket Lawyer know or should Rocket Lawyer by the exercise
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of reasonable care have known that the statement was false or misleading?
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Answer: __________
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C. Is this claim likely to deceive reasonable members of the target audience?
Answer: __________
D. Is this claim material, in that it is likely to influence a consumer’s
purchasing decision? Answer: __________
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E. Has this claim injured LegalZoom? Answer: __________
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F. If you answered YES to all of Questions A-E, please state the amount of
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harm suffered by LegalZoom as a result of this claim. If you answered
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NO to any of Questions A-E, leave this line blank. $__________
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ACTIVE/79865652.5
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EXHIBIT B -17-
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4.
Advertising “free legal review” on RocketLawyer.com.
A. Did you find this statement to be false or misleading in response to
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Question I.4.A above?
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Answer: __________
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B. If yes, did Rocket Lawyer know or should Rocket Lawyer by the exercise
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of reasonable care have known that the statement was false or misleading?
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Answer: __________
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C. Is this claim likely to deceive reasonable members of the target audience?
Answer: __________
D. Is this claim material, in that it is likely to influence a consumer’s
purchasing decision? Answer: __________
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E. Has this claim injured LegalZoom? Answer: __________
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F. If you answered YES to all of Questions A-E, please state the amount of
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harm suffered by LegalZoom as a result of this claim. If you answered
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NO to any of Questions A-E, leave this line blank. $__________
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ACTIVE/79865652.5
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EXHIBIT B -18-
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III.
QUESTION NO. 3: ROCKET LAWYER’S LANHAM ACT CLAIM
Listed below are advertising activities undertaken by LegalZoom that Rocket
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Lawyer challenges. Please answer “YES” or “NO” beside Questions A-E for each
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advertising activity.
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1.
LegalZoom’s Rating and Reputation on LegalSpring.com.
A. Does this claim make a false or misleading statement of fact?
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Answer: __________
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B. Do you find that LegalZoom intended to deceive consumers?
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Answer:_________
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C. Has this claim deceived or does this claim have the tendency to deceive a
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substantial segment of its target audience? Answer: __________
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D. Is this claim material, in that it is likely to influence a consumer’s
purchasing decision? Answer: __________
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E. Has this claim injured Rocket Lawyer? Answer: __________
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F. If you answered YES to all of Questions A, B and D or A, C, D, and E,
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please state the amount of harm suffered by Rocket Lawyer as a result of
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this claim. If you answered NO to any of Questions A, C, D, and E, leave
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this line blank. $__________
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2.
Participation in the operation of LegalSpring.com and the manipulation of
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reviews found on LegalSpring.com, which was held out as a neutral third-
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party review site.
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A. Does this claim make a false or misleading statement of fact?
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Answer: __________
B. Do you find that LegalZoom intended to deceive consumers?
ACTIVE/79865652.5
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EXHIBIT B -19-
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Answer:_________
C. Has this claim deceived or does this claim have the tendency to deceive a
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substantial segment of its target audience? Answer: __________
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D. Is this claim material, in that it is likely to influence a consumer’s
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purchasing decision? Answer: __________
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E. Has this claim injured Rocket Lawyer? Answer: __________
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F. If you answered YES to all of Questions A, B and D or A, C, D, and E,
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please state the amount of harm suffered by Rocket Lawyer as a result of
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this claim. If you answered NO to any of Questions A, C, D, and E, leave
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this line blank. $__________
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EXHIBIT B -20-
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IV.
QUESTION NO. 4: ROCKET LAWYER’S BUSINESS AND
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PROFESSIONS CODE SECTION 17500 CLAIM
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Listed below are advertising claims made by Rocket Lawyer that LegalZoom
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challenges. Please answer “YES” or “NO” beside Questions A-E for each
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advertising claim.
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1.
LegalZoom’s Rating and Reputation on LegalSpring.com.
A. Did you find this statement to be false or misleading in response to
Question III.1.A above?
Answer: __________
B. If yes, did LegalZoom know or should LegalZoom by the exercise of
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reasonable care have known that the statement was false or misleading?
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Answer: __________
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C. Is this claim likely to deceive reasonable members of the target audience?
Answer: __________
D. Is this claim material, in that it is likely to influence a consumer’s
purchasing decision? Answer: __________
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E. Has this claim injured Rocket Lawyer? Answer: __________
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F. If you answered YES to all of Questions A-E, please state the amount of
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harm suffered by LegalZoom as a result of this claim. If you answered
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NO to any of Questions A-E, leave this line blank. $__________
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EXHIBIT B -21-
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2.
Participation in the operation of LegalSpring.com and the manipulation of
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reviews found on LegalSpring.com, which was held out as a neutral third-
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party review site.
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A. Did you find this statement to be false or misleading in response to
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Question III.2.A above?
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Answer: __________
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B. If yes, did LegalZoom know or should LegalZoom by the exercise of
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reasonable care have known that the statement was false or misleading?
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Answer: __________
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C. Is this claim likely to deceive reasonable members of the target audience?
Answer: __________
D. Is this claim material, in that it is likely to influence a consumer’s
purchasing decision? Answer: __________
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E. Has this claim injured Rocket Lawyer? Answer: __________
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F. If you answered YES to all of Questions A-E, please state the amount of
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harm suffered by LegalZoom as a result of this claim. If you answered
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NO to any of Questions A-E, leave this line blank. $__________
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EXHIBIT B -22-
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V.
QUESTION NO. 5: ROCKET LAWYER’S LACHES DEFENSE
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Listed below are the elements to a laches defense. Please answer “YES” or
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“NO” as instructed below:
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A. Do you find that LegalZoom unreasonably and inexcusably delayed in
bringing suit against Rocket Lawyer? Answer: __________
i.
Question No. 6.
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If your answer to A is “NO,” skip B and C below, and go directly to
B. If you answered YES to A: Do you find that LegalZoom’s delay caused
prejudice to Rocket Lawyer? Answer: __________
C. If you answered YES to A: Do you find that LegalZoom acquiesced in the
conduct about which it complains? Answer: __________
i.
If yes, did LegalZoom acquiesced in the conduct?
Answer: __________
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EXHIBIT B -23-
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VI.
QUESTION NO. 6: ROCKET LAWYER’S UNCLEAN HANDS
DEFENSE
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Please answer “YES” or “NO” to the following question:
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Do you find that LegalZoom has engaged in inequitable conduct directly to
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the subject matter of its claims against Rocket Lawyer? Answer: __________
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EXHIBIT B -24-
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