LegalZoom.com Inc v. Rocket Lawyer Incorporated

Filing 37

OPPOSITION re: MOTION for Summary Judgment 31 filed by Defendant Rocket Lawyer Incorporated. (Attachments: # 1 Memorandum of Evidentiary Objections, # 2 Separate Statement of Undisputed Material Facts, # 3 Declaration of Paul Hollerbach with Exhibits A-C)(Jones, Michael)

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Forrest A. Hainline III (SBN 64166)
[e-mail]
Hong-An Vu (SBN 266268)
[e-mail]
GOODWIN PROCTER LLP
Three Embarcadero Center, 24th Floor
San Francisco, California 94111
Tel.: [phone]
Fax.: [phone]
Michael T. Jones (SBN 290660)
[e-mail]
GOODWIN PROCTER LLP
135 Commonwealth Drive
Menlo Park, California 94025-1105
Tel.: [phone]
Fax.: [phone]
Attorneys for Defendant
ROCKET LAWYER INCORPORATED

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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,

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v.
ROCKET LAWYER
INCORPORATED, a Delaware
corporation,
Defendant.

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LIBA/2434460.2

Case No. 2:12-cv-09942-GAF-AGR
DEFENDANT’S MEMORANDUM
OF EVIDENTIARY OBJECTIONS
IN SUPPORT OF ITS OPPOSITION
TO LEGALZOOM’S MOTION FOR
SUMMARY JUDGMENT
Date:
Time:
Judge:
Courtroom:

October 21, 2013
9:30 a.m.
Judge Gary A. Feess
740
255 East Temple Street
Los Angeles, CA 90012
Action Filed: November 20, 2012

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Pursuant to the Court’s current standing Scheduling Order, Defendant Rocket

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Lawyer Incorporated (“Rocket Lawyer”) submits this Memorandum of Evidentiary

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Objections to Plaintiff Legalzoom.com, Inc.’s Separate Statement of Undisputed

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Material Facts.

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Separate Statement Paragraph 7: Objection to Paragraph 5 of the Declaration

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of Mary Ann T. Nguyen (“Nguyen Decl.”) (“Rocket Lawyer’s customers are

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required to pay the state fees associated with incorporation and formation”) on the

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grounds that it is misleading. To the extent this statement implies that Rocket

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Lawyer imposes the fees, as opposed to the state, or that customers of LegalZoom or

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of any other competitor are not required to pay the same fees, it is misleading. Fed.

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R. Evid. 403.

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Separate Statement Paragraph 8: Objection to Exhibit D to the Nguyen Decl.,

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“Screen grabs of Rocket Lawyer’s ‘Interview’ for ‘Company Set-Up’ and

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‘Company Details,’” on the grounds that the evidence is incomplete and misleading.

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To the extent that it is offered to show the only disclosure of state filing fees on

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Rocketlawyer.com, it is incomplete and misleading. Fed. R. Evid. 106, 403.

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Separate Statement Paragraph 9: Objection to the assertion that “Rocket

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Lawyer subsequently changed the language of these advertisements after

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LegalZoom filed its original Complaint” on the grounds that it is irrelevant,

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evidence of a subsequent remedial measure, and misleading. Any Rocket Lawyer

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advertising not complained of is irrelevant. Fed. R. Evid. 401, 402. To the extent it

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is offered as a subsequent remedial measure demonstrating culpable conduct, it is

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inadmissible. Fed. R. Evid. 407. To the extent it is offered to show an admission of

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guilt, it is misleading as LegalZoom has offered no evidence and Rocket Lawyer has

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made no concession that its new advertisements resulted from the original

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Complaint. Fed. R. Evid. 403.

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Separate Statement Paragraph 10: Objection to Exhibit E to the Nguyen Decl.,
“Screen grabs of Rocket Lawyer’s Advertisements,” on the grounds that the

LIBA/2434460.2

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evidence is misleading and irrelevant. Page 45 of Exhibit E purports to show that

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Rocket Lawyer advertised “free legal review.” The evidence is taken from Rocket

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Lawyer’s website and does not make clear when in the user experience this screen is

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encountered. Thus, to the extent it is offered to show what Rocket Lawyer

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advertised to non-customers, it is misleading and irrelevant to the fact asserted. Fed.

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R. Evid. 401, 402, 403.

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Separate Statement Paragraph 12: Objection to the supporting evidence of

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http://www.rocketlawyer.com/on-call-terms-of-service.rl for assertion that “The

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paid-membership requirement for access to the purported ‘free help from local

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attorneys’ and ‘free legal review’ was not disclosed in close proximity to the

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advertisements on Rocket Lawyer’s website” on the grounds that it is irrelevant and

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misleading. The evidence provided does not demonstrate the disclosure’s proximity

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or lack thereof to Rocket Lawyer’s advertising and is therefore irrelevant to the

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asserted fact. Fed. R. Evid. 401, 402. To the extent it is used for such purpose, it is

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misleading. Fed. R. Evid. 403.

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Separate Statement Paragraph 13: Objection to the supporting evidence of

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http://www.rocketlawyer.com/on-call-terms-of-service.rl for assertion that “The

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paid-membership requirement was only disclosed in Rocket Lawyer’s ‘On Call

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Terms of Service,’ which was accessible to customers on a separate link found at

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http://www.rocketlawyer.com/on-call-terms-of -service.rl.” The evidence provided

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does not support the assertion that the Terms of Service are the only disclosure. To

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the extent that it is used for that purpose, it is misleading. Fed. R. Evid. 403.

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Separate Statement Paragraph 14: Objection to the supporting evidence of

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Rocket Lawyer’s On Call Terms of Service dated November 2012 on the grounds

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that it is irrelevant, misleading, and evidence of a subsequent remedial effort. Any

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Rocket Lawyer terms of service not complained of are not relevant. Fed. R.

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Evid. 401, 402. To the extent it is offered as a subsequent remedial measure

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demonstrating culpable conduct, it is inadmissible. Fed. R. Evid. 407. To the extent

LIBA/2434460.2

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it is offered to show an admission of guilt or that the prior terms of service were

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insufficient as a disclosure, it is misleading. Fed. R. Evid. 403.

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Separate Statement Paragraph 15: Objection to the supporting evidence of

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Rocket Lawyer’s On Call Terms of Service, dated July 2012, and Rocket Lawyer’s

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On Call Terms of Service, dated November 2012, on the grounds that they are

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misleading. Rocket Lawyer’s terms of service do not demonstrate what customers

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actually had access to attorney review. To the extent they are offered for that

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purpose, they are misleading. Fed. R. Evid. 403.

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Separate Statement Paragraph 16: Objection to the supporting evidence of

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Rocket Lawyer’s On Call Terms of Service, dated November 2012, on the grounds

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that it is misleading. To the extent Rocket Lawyer’s terms of service are offered to

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show that customers provided Rocket Lawyer with credit card information and were

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billed, they are misleading. Fed. R. Evid. 403.

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Separate Statement Paragraph 18: Objection to Paragraph 13 of the

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supporting Nguyen Decl. (“[C]ustomers who sign up for a one-week free trial

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membership under the ‘Basic Legal Plan’ or ‘Pro Legal Plan’ must first provide

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Rocket Lawyer with their credit card information and enroll in Rocket Lawyer’s

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‘negative option’ program – i.e., a program in which customers are automatically

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enrolled and billed and must contact Rocket Lawyer to opt out of.”) on the grounds

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that it is misleading and improperly sets forth a legal conclusion. To the extent that

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it is offered to show that Rocket Lawyer charges its customers for free trials, it is

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misleading. Fed. R. Evid. 403. It is also misleading as to the use of the word “first.”

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Id. To the extent that it concludes Rocket Lawyer’s free trial is a negative option

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plan, it is an improper legal conclusion. Fed. R. Civ. Proc. 56(c)(4); L.R. 7-7; see

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Jones v. Corbis Corp., 815 F. Supp. 2d 1108, 1112 (C.D. Cal. 2011) aff’d, 489 F.

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App’x 155 (9th Cir. 2012) (agreeing with defendant that “while Plaintiff may testify

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to facts relevant to the legal determination [at issue], she may not testify as to the

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legal determination itself.”).

LIBA/2434460.2

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Separate Statement Paragraph 19: Objection to Exhibit I to the supporting

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Nguyen Decl. on the grounds that it is incomplete, misleading, and an improper

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legal conclusion. To the extent that it is offered to show that this is the only

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disclosure of Rocket Lawyer’s free trial terms, it is incomplete, misleading, and

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offers an improper legal conclusion. Fed. R. Evid. 106, 403; Fed. R. Civ.

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Proc. 56(c)(4); L.R. 7-7. To the extent it concludes that Rocket Lawyer’s free trial is

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a negative option plan, it is an improper legal conclusion. Fed. R. Civ.

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Proc. 56(c)(4); L.R. 7-7. Furthermore, to the extent it alleges a violation of the

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Negative Option law, it is irrelevant since LegalZoom lacks a right of action under

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that law. See Noll v. eBay Inc., 5:11-CV-04585-EJD, 2013 WL 2384250 (N.D. Cal.

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May 30, 2013) (“The Legislature employed specific language in Section 17602

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limiting recovery under Section 17600 et seq. to California consumers. The court

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will not contravene the Legislature’s clear intention.”) (emphasis added).

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Separate Statement Paragraph 20: Objection to Paragraph 13 (“No further

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acknowledgement regarding the negative option is provided.”) of and Exhibit I to

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the supporting Nguyen Decl. on the grounds that it is incomplete, misleading, and an

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improper legal conclusion. To the extent that it is offered to show that this is the

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only disclosure of Rocket Lawyer’s free trial terms, it is incomplete and misleading.

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Fed. R. Evid. 106, 403. To the extent it concludes that Rocket Lawyer’s free trial is

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a negative option plan, it is an improper legal conclusion. Fed. R. Civ.

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Proc. 56(c)(4); L.R. 7-7. Furthermore, to the extent it alleges a violation of the

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Negative Option law, it is irrelevant since LegalZoom lacks a right of action under

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that law. See Noll v. eBay Inc., 5:11-CV-04585-EJD, 2013 WL 2384250 (N.D. Cal.

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May 30, 2013) (“The Legislature employed specific language in Section 17602

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limiting recovery under Section 17600 et seq. to California consumers. The court

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will not contravene the Legislature’s clear intention.”) (emphasis added).

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Separate Statement Paragraph 21: Objection to Exhibit J to the Nguyen Decl.

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on the grounds that it is misleading, incomplete and contains irrelevant hearsay. To

LIBA/2434460.2

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the extent it is offered to show the exchange between Mssrs. Liu and Nye, it is

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incomplete. Fed. R. Evid. 106. To the extent it is offered to show that LegalZoom’s

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legal department raised these alleged issues, it is irrelevant hearsay, since the

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initiation of the conversation is not at issue. Fed. R. Evid. 401, 402, 801, 802.

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LegalZoom’s evidence shows no communication between mid-November 2011 and

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November 2012, when Rocket Lawyer was served with papers for this dispute.

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Therefore to the extent the evidence is offered to show that LegalZoom sought to

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resolve this dispute out of court before filing this lawsuit, it is misleading. Fed. R.

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Evid. 403.

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Separate Statement Paragraph 22: Objection to Exhibit J to the Nguyen Decl.

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on the grounds that it is incomplete. To the extent it is offered to show the exchange

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between Mssrs. Liu and Nye, it is incomplete. Fed. R. Evid. 106.

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Separate Statement Paragraph 23: Objection to Exhibit K to the Nguyen Decl.

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on the grounds that it is irrelevant and contains irrelevant hearsay and an improper

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legal conclusion. To the extent that it is offered to show that LegalZoom took issue

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with Rocket Lawyer’s advertising, it is irrelevant hearsay since LegalZoom’s state

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of mind is not at issue. Fed. R. 401, 402, 801, 802. To the extent it is offered to

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show that state-imposed fees negate a free service, it is an improper legal

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conclusion. Fed. R. Civ. Proc. 56(c)(4); L.R. 7-7.

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Separate Statement Paragraph 24: Objection to Exhibit K to the Nguyen Decl.

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on the grounds that it is irrelevant, misleading, and contains irrelevant hearsay and

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an improper legal conclusion. To the extent it is offered to show that Rocket Lawyer

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has violated the Federal Trade Commission’s guidelines regarding the use of the

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word free (“FTC Guide”), it is irrelevant, since compliance with the FTC Guide is

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not at issue, hearsay, misleading, and an improper legal conclusion. Fed. R. Evid.

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401, 402, 403, 801, 802; Fed. R. Civ. Proc. 56(c)(4); L.R. 7-7. Furthermore, to the

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extent it is offered to show the requirements of the FTC Guide, it is not the best

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evidence, which would be the Guide itself. Fed. R. Evid. 1001, 1002.

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Separate Statement Paragraph 25: Objection to Exhibit K to the Nguyen Decl.

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on the grounds that it is misleading, prejudicial, hearsay, and an improper legal

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conclusion. To the extent that it is offered to show that any of Rocket Lawyer’s

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advertisements were misleading, the exhibit is misleading and prejudicial, hearsay,

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and an improper legal conclusion. Fed. R. Evid. 403, 801, 802; Fed. R. Civ. Proc.

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56(c)(4); L.R. 7-7.

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Separate Statement Paragraph 26: Objection to Exhibit L to the Nguyen Decl.

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on the grounds that it is hearsay and not the best evidence. To the extent that it is

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offered to show that Rocket Lawyer’s advertisements of free services had not been

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changed or removed, it is hearsay and not the best evidence of that purported fact.

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Fed. R. Evid. 801, 802, 1001, 1002.

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Separate Statement Paragraph 27: Objection to Exhibit L to the Nguyen Decl.

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on the grounds that it is hearsay, misleading and prejudicial, and an improper legal

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conclusion. To the extent it is offered to show that Rocket Lawyer’s conduct

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constituted false advertising or unfair competition, it is misleading and prejudicial,

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hearsay, and an improper legal conclusion. Fed. R. Evid. 403, 801, 802; Fed. R. Civ.

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Proc. 56(c)(4); L.R. 7-7.

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Dated: September 23, 2013

Respectfully submitted,

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By: /s/ Michael T. Jones
Forrest A. Hainline III (SBN 64166)
[e-mail]
Hong-An Vu (SBN 266268)
[e-mail]
Michael T. Jones (SBN 290660)
[e-mail]
GOODWIN PROCTER LLP

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Attorneys for Defendant
ROCKET LAWYER INCORPORATED

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LIBA/2434460.2

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