LegalZoom.com Inc v. Rocket Lawyer Incorporated

Filing 92

REPLY IN SUPPORT OF MOTION for Summary Judgment as to AND/OR ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF (REDACTED) 60 filed by Defendant Rocket Lawyer Incorporated. (Attachments: # 1 REDACTED SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF ROCKET LAWYER'S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, # 2 ROCKET LAWYER INCORPORATED'S MEMORANDUM OF EVIDENTIARY OBJECTIONS IN SUPPORT OF ITS SEPARATE STATEMENT OF UNDISPUTED FACTS)(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]
Brian W. Cook (Pro Hac Vice)
[e-mail]
GOODWIN PROCTER LLP
53 State Street
Boston, MA 02109-2802
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.

Case No. 2:12-cv-09942-GAF-AGR
REDACTED SEPARATE
STATEMENT OF UNDISPUTED
FACTS IN SUPPORT OF ROCKET
LAWYER’S REPLY IN SUPPORT
OF MOTION FOR SUMMARY
JUDGMENT
Date:
Time:
Judge:
Courtroom:
Action Filed:

August 18, 2014
9:30 a.m.
Judge Gary A. Feess
740
November 20, 2012

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Pursuant to Rule 56 of the Federal Rules of Civil Procedure and local Rule 56-1

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of the Central District of California, Defendant Rocket Lawyer Incorporated (“Rocket

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Lawyer”) hereby submits the following Separate Statement of Undisputed Facts

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pursuant to Central District of California Local Rule 56-2 and the Court’s Standing

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Order in support of Rocket Lawyer’s Reply in support of its Motion for Summary

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Judgment.

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LegalZoom, in its Statement of General Dispute, improperly lodged “General

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Objections” contrary to the Court’s Standing order not to “submit blanket or

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boilerplate objections” and that evidentiary objections should “not be argued in” the

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separate statement, but rather addressed in a separate memorandum organized

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according to the numbers in the separate statement. LegalZoom failed to provide a

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separate memorandum and therefore has no support for its objections to evidence.

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Furthermore, its blanket and boilerplate objections should be “disregarded and

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overruled” as warned by the Court. Standing order at 7.

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Pursuant to the Court’s Standing Order, Rocket Lawyer will address

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LegalZoom’s general objections in its evidentiary memorandum, including

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demonstrating that Professor Wind’s reports, properly signed/verified and exchanged

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pursuant to Rule 26(a)(2), are admissible.

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It should also be noted that LegalZoom improperly removed from the separate

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statement facts that it did not dispute. Dkt. 26 at II.C.1 (“The document must be in

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two columns; the left hand column must restate the allegedly undisputed fact, and the

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right hand column must indicate either undisputed, or disputed”) (emphasis added). In

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this SSUF, Rocket Lawyer has inserted the undisputed facts deleted by LegalZoom so

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that the record will be complete. The facts deleted by LegalZoom were not

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addressed, and are thus undisputed.

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FACTS NOT IN DISPUTE

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MOVING PARTY’S ALLEGED

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RESPONSE

UNDISPUTED FACT

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1.

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LegalZoom are competitors in the

Judgment (“Order”), ECF No. 44, at 1; Rocket

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online legal services market, which

Lawyer’s Amended Counterclaims, ECF No.

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consists of companies offering

17, at 12:2-3.

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access to legal forms, subscription

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plans, independent attorney

Rocket Lawyer and

Order Re: Plaintiff’s Motion for Summary

Deleted by LegalZoom, thus undisputed.

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consultation time, and other legal

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services at affordable prices.

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2.

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LegalZoom, like other competitors

Support of LegalZoom’s Motion for Summary

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in this market, advertise their

Judgment, (“Nguyen Decl. I”), ECF No. 28, ¶

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services on search engines such as

4, Ex. B (screen shots of Rocket Lawyer’s

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Google and Bing, and on their own

advertisements); Vu Decl. I, ECF No. 38, ¶ 4,

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websites.

Ex. 14.

Rocket Lawyer and

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Order, ECF No. 44, at 2; Mary Ann Nguyen in

Deleted by LegalZoom, thus undisputed.

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3.

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businesses to advertise on search

Rocket Lawyer Incorporated’s Motion for

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results by bidding on terms—

Summary Judgment and/or Summary

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“keywords”—that users may enter

Adjudication (“Vu Decl. II”), ECF No. 61, ¶

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into the search field. For example,

15,1 Ex. N; see also Google Instructions

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when a user searches for

Regarding Keyword Advertisements

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“incorporation,” immediately above (http://www.google.com/adwords/how-it-

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or along the side of the search

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Google and Bing allow

Declaration of Hong-An Vu In Support of

works/target-your-ads.html)

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Rocket Lawyer has inserted the ECF NO. for the Vu Decl. II throughout the statement of facts for the court’s
convenience.

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MOVING PARTY’S ALLEGED

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RESPONSE

UNDISPUTED FACT
results are ads for businesses that

Bing Instructions Regarding Keyword

have bid on that term—LegalZoom, Advertisements
Rocket Lawyer, LawDepot,

(http://advertise.bingads.microsoft.com/en-

IncforFree, etc.

us/reachyournextcustomer)

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Google “Incorporation” Keyword Results

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(https://www.google.com/#q=incorporation)

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Bing “Incorporation” Keyword Results

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(http://www.bing.com/search?q=incorporation)

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Deleted by LegalZoom, thus undisputed.

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Bing.com has provided the

Vu Decl. II, ECF No. 61, ¶ 6, Ex. E, at 7; see

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4.

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search engine marketing for Yahoo

also http://yahoobingnetwork.com/en-

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since August 2010.

apac/home.

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Deleted by LegalZoom, thus undisputed.

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5.

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instruction in the Order, Rocket

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Lawyer’s expert conducted a survey (Expert Report of Professor Jerry Wind

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to test the RLI Free Ads in context

Regarding Consumer Perceptions of Rocket

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(the “Wind Survey”).

Lawyer’s Advertisement and Website).

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Following the Court’s

Moving party’s evidence: Order, ECF No. 44,
at 10; Vu Decl. II, ECF No. 61, ¶ 2, Ex. A

Disputed.

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It is disputed that the Wind Survey tested the
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MOVING PARTY’S ALLEGED

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RESPONSE

UNDISPUTED FACT

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Rocket Lawyer ads in a manner that addresses

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LegalZoom’s allegations or in the proper

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context that would be relevant for testing

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LegalZoom’s allegations. Declaration of Dr.

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Bruck Isaacson in Support of LegalZoom.com,

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Inc.’s Opposition (“Isaacson Decl.”), ¶¶ 58-63,

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23-32

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Objections: Misleading (Fed. R. Evid. 403;

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Legal Conclusion (Fed. R. Civ. Proc. 56(c)(4);

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L.R. 7-7); Hearsay (Fed. R. Evid. 801, 802).
6.

Professor Jerry (Yoram)

Wind is a professor at the Wharton

Vu Decl. II, ECF No. 61, ¶ 3, Ex. B, App. B
(Professor Wind’s resume).

School of Business at the University
of Pennsylvania.

Deleted by LegalZoom, thus undisputed.

7.

Vu Decl. II, ECF No. 61, ¶ 3, Ex. B, Apps. B

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He is one of the leading

experts in marketing and has served

and C (list of cases in which Wind has

as an expert witness in over thirty

testified).

cases since 2007 alone.
Deleted by LegalZoom, thus undisputed.

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The Wind Survey took

Moving Party’s evidence: Vu Decl. II, ECF

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8.

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respondents through the typical

No. 61, ¶ 3, Ex. B, Apps. A (declaration of

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consumer journey from the

David Baga attesting to consumer journey
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UNDISPUTED FACT
advertisement to the point of

reflected in Wind’s stimuli) and E (stimuli used

purchase. Vu Decl. II, ¶ 3, Ex. B,

in Wind’s survey).

Apps. A (declaration of David Baga Disputed.
attesting to consumer journey
reflected in Wind’s stimuli) and E

It is disputed that the Wind Survey took

(stimuli used in Wind’s survey).

respondents through a “typical consumer

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journey.” Dr. Wind has no basis to believe that

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the “journey” that was taken was “typical” in

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any sense and there is no “typical” way a

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consumer can be said to move through the

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stimuli presented by Dr. Wind in his survey.

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Dr. Wind has testified that the path taken

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through the Rocket Lawyer website can vary

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across consumers. Also, the materials shown in

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the Wind Survey extend well beyond the point

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where a consumer would make the decision to

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purchase.

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Isaacson Decl., ¶¶ 36-48; Wind deposition,

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RESPONSE

33:15-37:18
9.

According to the Wind

Moving Party’s evidence: Vu Decl. II, ECF

Survey results, consumers’

No. 61, ¶ 3, Ex. A, at 62-64.

understanding of Rocket Lawyer’s

Disputed.

services would be the same whether
Rocket Lawyer had continued its

It is disputed that the Wind Survey tested or

advertising practices or had changed addressed LegalZoom’s allegations.
them to address LegalZoom’s

Accordingly, the survey is not a measure of any
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MOVING PARTY’S ALLEGED

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UNDISPUTED FACT
allegations.

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“free” affects consumer behavior in the manner

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alleged by LegalZoom. Moreover, the “results”

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of the Wind Survey are inconclusive on account

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of its small survey size (comparing 15 test

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responses against 13 control responses) and

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improper methodology.

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Isaacson Decl., ¶¶ 36-57, 64-67; Wind Depo.,

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73:3-10, 76:21-77:15, 110:3-11. Objections:

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Irrelevant (Fed. R. Evid. 401, 402); Misleading

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(Fed. R. Evid. 403); Hearsay (Fed. R. Evid. 801

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consumer’s understanding of whether the ads in
question were misleading or how the term

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RESPONSE

& 802).
10.

Since October 2008, Rocket

Moving Party’s evidence: Order, ECF No. 44,

Lawyer has offered to new users

at 2-3; Declaration of Paul Hollerbach in

free business formation (i.e.,

Support of Rocket Lawyer’s Opposition to

incorporation, LLC formation) with

Motion for Summary Judgment (“Hollerbach

enrollment in a free trial of its Pro

Decl. I”), ECF No. 37-3, ¶ 20; Vu Decl. II, ECF

Legal Plan (or currently, its

No. 61, ¶ 3, Ex. B, App. A (declaration of

Complete Plan).

David Baga attesting to consumer journey
reflected in Wind’s stimuli).
Disputed.

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It is disputed that Rocket Lawyer offers “free”
business formation to anyone. Rocket Lawyer
admits that users must pay state fees.
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MOVING PARTY’S ALLEGED

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RESPONSE

UNDISPUTED FACT

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Hollerbach Decl. I, ECF No. 37-3, ¶ 20.

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Objections: Misleading (Fed. R. Evid. 403).

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Users only had to pay state-

mandated fees, which passed

Moving Party’s evidence: Hollerbach Decl. I,
ECF No. 37-3, ¶ 20.

through entirely to the government.

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Disputed.

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It is disputed that any consumers enrolled in

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Rocket Lawyer’s “free trials” “only” paid the

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state fees in connection with their enrollment.

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Winograd Decl., ¶ 10, Ex. I (BBB 0000053,

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BBB complaint activity report regarding

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Rocket Lawyer’s “free 7-day trial” was not free

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and advertisement did not disclose customer

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charge.)

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Objections: Misleading (Fed. R. Evid. 403).
12.

Between October 2008 and

Moving Party’s evidence: Vu Decl. II, ECF

September 2013, Rocket Lawyer

No. 61, ¶ 7, Ex. F; ¶ 13, Ex. L; Declaration of

published approximately

Paul Hollerbach in Support of Rocket Lawyer’s

business formation ads that

Motion for Summary Judgment (“Hollerbach

contained the word “free” on search Decl. II”), ECF No. 60-1, ¶¶ 3, Disputed.
engines, and approximately
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RESPONSE

UNDISPUTED FACT
businesses were formed through

It is disputed that between October 2008 and

Rocket lawyer.com.

September 2013, Rocket Lawyer “published”

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only 1.2 million business formation ads. The

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ads were “published” or seen 250 million times.

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Declaration of Alan Goedde (“Goedde Decl.”)

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in Support of LegalZoom.com, Inc.’s

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Opposition to Rocket Lawyer Incorporated’s

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Motion for Summary Judgment and or

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Adjudication, ¶ 6; Vu Decl. II, ¶ 7, Ex. F; ¶ 13,

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Ex. L; Declaration of Paul Hollerbach in

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Support of Rocket Lawyer’s Motion for

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Summary Judgment (“Hollerbach Decl. II”)

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ECF No. 60-1, ¶¶ 3, 5.

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Objections: Irrelevant (Fed. R. Evid.

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401, 402); Misleading (Fed. R. Evid. 403).
13.

Each of these ads contained a

Moving Party’s evidence: Vu Decl. II, ECF

link to Rocket lawyer.com where

No. 61, ¶ 3, Ex. B, Apps. A and E. Order, ECF

consumers are required to click

No. 44, at 2-3; Nguyen Decl. I, ECF. No. 28,

through multiple disclosures of state ¶ 4, Ex. B.
fees before they can make a

Disputed.

purchasing decision.
It is disputed that any consumer or would-be
consumer of Rocket Lawyer’s products or
services is “required” to see any particular
content on the Rocket Lawyer website, let alone
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MOVING PARTY’S ALLEGED

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RESPONSE

UNDISPUTED FACT

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ever saw a “disclosure,” as that term is

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understood under the applicable law before

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making a purchase decision.

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Isaacson Decl., ¶¶ 36-37, 40; Wind Depo.,

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33:15-37:18.
14.

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Of these
—

ads, only Moving Party’s evidence: Vu Decl. II, ECF
—were Free

No. 61, ¶ 6, Ex. E, at 8; ¶ 7, Ex. F; Hollerbach

Business Formation Ads that did

Decl. II, ECF No. 60-1, ¶ 3.

not expressly disclose state fees.

Disputed.

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It is disputed that between October 2008 and

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September 2013, Rocket Lawyer “published”

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only 1.2 million business formation ads. The

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ads were “published” or seen 159 million times.

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Goedde Deck, ¶ 6; Vu Decl. II, ¶ 7, Ex. F; ¶ 13,

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Ex. L; Hollerbach Decl. II, ECF No. 60-1, ¶¶ 3,

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5.

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Objections: Irrelevant (Fed. R. Evid. 401,

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402); Misleading (Fed. R. Evid. 403).
15.

Rocket Lawyer received

Moving Party’s evidence: Vu Decl. II, ECF

conversions from these Free

No. 61, ¶ 6, Ex. E, at 8; ¶ 7, Ex. F; Hollerbach

Business Formation Ads at a very
low conversion rate of

Decl. II, ECF No. 60-1, ¶ 3.

%.
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MOVING PARTY’S ALLEGED

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RESPONSE

UNDISPUTED FACT

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Disputed.

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It is disputed that 5,647 “conversions” is a

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“very low” conversion rate. The data supplied

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by Rocket Lawyer indicates that the conversion

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rate suggests a 50% rate of success and is an

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appreciably higher conversion rate than that for

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the ads that did not contain the word “free.”

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Goedde Decl., ¶ 4.

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Objections: irrelevant (Fed. R. Evid. 401,

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402); Misleading (Fed. R. Evid. 403).
16.

“Conversion” as used herein

means that a consumer clicked on a

Vu Decl. II, ECF No. 61, ¶ 6, Ex. E, at 8; ¶ 7,
Ex. F; Hollerbach Decl. II, ECF No. 60-1, ¶ 3.

Free Business Formation Ad and
thereafter, reached the account

Deleted by LegalZoom, thus undisputed.

registration page, credit card billing
page and/or successfully formed a
business entity by completing the
credit card billing page.
17.

“Click(s)” means the number See Vu Decl. II, ECF No. 61, ¶ 7, Ex. F; ¶ 12,

of clicks on the ad (i.e. number of

Ex. K; Hollerbach Decl. II, ECF No. 60-1, ¶¶ 3-

visits to RL.com from that ad).

4.

Conversion rate is the number of
conversions per clicks.

Deleted by LegalZoom, thus undisputed.

18.

See Vu Decl. II, ECF No. 61, ¶ 6, Ex. E, at 8; ¶

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A “conversion” used in this

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MOVING PARTY’S ALLEGED

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RESPONSE

UNDISPUTED FACT
respect may not actually mean a

7, Ex. F; Hollerbach Decl. II, ECF No. 60-1, ¶ 3.

business was formed or that a
customer paid any fees to Rocket

Deleted by LegalZoom, thus undisputed.

Lawyer or a governmental entity.

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19.

Thus, even if all of Rocket

Lawyer’s Free Business Formation

No. 61, ¶ 6, Ex. E, at 8; ¶ 7, Ex. F;

Ads were false and/or misleading,

Hollerbach Decl. II, ECF No. 60-1, ¶ 3.

less than % of consumers who

Disputed.

encountered these ads could have
arguably been misled and decided

Consumers are still “misled” even when

to do business with Rocket Lawyer.

ultimate sale is not consummated. The Isaacson
survey demonstrates that the ads are likely to

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mislead a substantial segment of the population.

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Winograd Decl., ¶ 11, Ex. J (Isaacson Report.).

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Objections: Irrelevant (Fed. R. Evid. 401,

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402); Misleading (Fed. R. Evid. 403).

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Moving Party’s evidence: Vu Decl. II, ECF

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In addition, less than % of

Moving Party’s evidence: Vu Decl. II, ECF

Rocket Lawyer’s Free Business

No. 61, ¶ 6, Ex. E, at 11; ¶ 7, Ex. F; Hollerbach

Formation Ads were placed on

Decl. II, ECF No. 60-1, ¶ 3.

LegalZoom keywords—meaning

Disputed.

that Rocket Lawyer’s ad would
likely appear when a consumer

Rocket Lawyer’s own information shows that

searched for a combination of

when the Free Business formation ads were

“legal” and “zoom” (“Free LZ

placed on LegalZoom keywords, (“Free LZ

Triggered Business Formation

Triggered Business Formation ads”), the ads

Ads”).

have a conversion rate of 1.74%. The
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RESPONSE

UNDISPUTED FACT

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conversion rate of all 1.2 million ads is 1.33%.

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Therefore, the presence of “legal” and “zoom”

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in a consumer search is 31% more effective in

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generating conversions compared to the

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average conversion rate of all 1.2 million Free

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Business Formation ads.

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Goedde Decl., ¶ 4.

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Objections: Irrelevant (Fed. R. Evid. 401,

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402); Misleading (Fed. R. Evid.

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403).
21.

There were only

Moving Party’s evidence: Vu Decl. II, ECF

conversions on these ads with a

No. 61, ¶ 6, Ex. E, at 15; ¶ 7, Ex. F;

similarly low

Hollerbach Decl. II, ECF No. 60-1, ¶ 3

% conversion rate.

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Disputed.

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It is disputed that 48 “conversions,” or 3.0% is
a “low” conversion rate. Rocket Lawyer’s own
information shows that when the Free Business
formation ads were placed on LegalZoom
keywords, (“Free LZ Triggered Business
Formation ads”), the ads have a conversion rate
of 1.74%. The conversion rate of all 1.2 million
ads is 1.33%. Therefore, the presence of “legal”
and “zoom” in a consumer search is 31% more
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MOVING PARTY’S ALLEGED

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UNDISPUTED FACT

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effective in generating conversions compared to

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the average conversion rate of all 1.2 million

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Free Business Formation ads.

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Goedde Decl., ¶ 4.

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Objections: Irrelevant (Fed. R. Evid. 401,

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RESPONSE

402); Misleading (Fed. R. Evid. 403).
22.

In the Wind Survey, a test

Moving party’s evidence: Vu Decl. II, ECF

group of 104 actual and potential

No. 61, ¶ 2, Ex. A, at 17.

consumers of legal services viewed

Disputed.

a Free Business Formation Ad that
disclosed state fees, and a control

It is disputed that the Wind Survey included

group of 103 similar consumers

104 or 103 “actual and potential consumers.”

viewed an ad that did not disclose

No respondents in the Wind Survey were

state fees.

qualified as actual consumers or users of online
legal services. Only 22.7% of respondents to
the Wind Survey were actual purchasers of
online legal services; none of these purchasers
were qualified as using online legal services.
Nearly 30% of survey respondents “may or
may not” have “looked for” online legal
services, and should not have been included in
the group.
Isaacson Decl., ¶¶ 39, 66; Wind Depo., 38-39.
61:19-65:6.

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Objections: Misleading (Fed. R. Evid. 403);
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MOVING PARTY’S ALLEGED

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UNDISPUTED FACT

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RESPONSE

Hearsay (Fed. R. Evid. 801 & 802).
23.

The test and control ads were

placed in the same place, in the

Vu Decl. II, ECF No. 61, ¶ 2, Ex. A, at 10; ¶ 3,
Ex. B, App. E (Wind Survey stimuli).

same position amongst other ads
that appeared in a real search for

Deleted by LegalZoom, thus undisputed.

“incorporation.”

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MOVING PARTY’S ALLEGED

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RESPONSE

UNDISPUTED FACT
24.

Respondents then followed

the same path consumers follow on

Moving Party’s evidence: Vu Decl. II, ECF
No. 61, ¶ 2, Ex. A, ¶ 3; Ex. B, App. E

Rocket lawyer.com (the “consumer
journey”).

Disputed.

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It is disputed that consumers follow a “path”

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on Rocket Lawyer.com. There is no typical

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path that consumers follow, and there is no

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evidence that consumers follow a specific path

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other than a path they choose based on their

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interests and the materials they view. Consumer

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movements on the internet do not necessarily

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follow a predictable path, and movement about

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a website is not constrained in any fashion.

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Isaacson Decl., ¶ 36-48; Wind Depo., 33:22-

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37:18.

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Objections: Misleading (Fed. R. Evid. 403);

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Hearsay (Fed. R. Evid. 801 & 802); Improper

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Expert Opinion Testimony (Fed. R. Evid. 702).
25.

Stimuli showed respondents

Moving Party’s evidence: Vu Decl. II, ECF

images from the search engine ad

No. 61, ¶ 3, Ex. B, App. E.

through successive webpages on

Disputed.

Rocket lawyer.com to the point of
purchase.

It is disputed that these webpage images were
“successive” or were shown to the “point of
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MOVING PARTY’S ALLEGED

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RESPONSE

UNDISPUTED FACT

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purchase.” The Wind Survey included website

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pages that would be seen well after the point

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where a purchase decision would be made. The

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Rocket Lawyer website has many pages, and it

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is possible that a consumer could see a very

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different set of pages on their way to make a

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purchase.

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Isaacson Decl., ¶¶ 38, 43; Wind Depo.,

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34:17-36:21.

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Objections: Misleading (Fed. R. Evid. 403);

14

Hearsay (Fed. R. Evid. 801 & 802); Improper

15
16
17
18
19
20
21
22
23
24
25
26
27
28

Expert Opinion Testimony (Fed. R. Evid. 702).
26.

The Wind Survey was

Moving Party’s evidence: Vu Decl. II, ECF

designed to determine whether (i)

No. 61, ¶ 2, Ex. A, at 2.

more consumers in the control

Disputed.

group were drawn to Rocket
Lawyer’s website than in the test

It is disputed that the Wind Survey used a

group, and (ii) consumers in the test “design” that could measure any differences
group were more likely to

between test and control vis-a-vis the

understand that they must pay state

allegations concerning Rocket Lawyer’s use of

fees even if Rocket Lawyer’s

“free” as alleged by LegalZoom. Both test and

services were free than in the

control groups were shown ads containing the

control group.

word “free.” The overly complex stimuli used
in the Wind Survey masked the differences
between test and control. No respondents in the
16

1

MOVING PARTY’S ALLEGED

2

RESPONSE

UNDISPUTED FACT

3

Wind Survey were qualified as actual

4

consumers or users of online legal services.

5

Only 22.7% of respondents to the Wind Survey

6

were actual purchasers of online legal services;

7

none of these purchasers were qualified as

8

using online legal services. Nearly 30% of

9

survey respondents “may or may not” have

10

looked for online legal services, and should not

11

have been included in the group.

12

Isaacson Decl., ¶ 8, 36-48, 58-59; Wind Depo.,

13

74:11-79:10.

14
15

Objections: Misleading (Fed. R. Evid. 403);

16
17
18
19
20
21
22
23
24
25
26
27
28

Hearsay (Fed. R. Evid. 801 & 802).
27.

After viewing the search

Vu Decl. II, ECF No. 61, ¶ 2, Ex. A, at 19; ¶ 3,

engine results and ads, respondents

Ex. B, App. G (Wind Survey questionnaire).

were asked which of the companies

Deleted by LegalZoom, thus undisputed.

advertised did the user want to
explore further.
28.

Respondents in the control

Moving Party’s evidence: Vu Decl. II, ECF

group did not choose Rocket

No. 61, ¶ 2, Ex. A, at 3-4; 25-26.

Lawyer more than in the test group:

Disputed.

the survey established that there is
no statistically significant difference The Wind Survey did not “establish” that there
between the test and control groups

is no statistically significant difference between

with respect to choosing Rocket

the test and control groups with respect to
17

1

MOVING PARTY’S ALLEGED

2
3
4
5

RESPONSE

UNDISPUTED FACT
Lawyer or LegalZoom among the

“choosing” Rocket Lawyer or Legal Zoom

many competitors in the market at

among the many competitors in the market at

the search engine stage.

the search engine stage. The Wind Survey

6

included those who were “willing to explore”

7

the Rocket Lawyer website.

8

Isaacson Decl., ¶ 60; Wind Depo., 81:25¬82:5.

9
10

Objections: Irrelevant (Fed. R. Evid. 401,

11

402); Misleading (Fed. R. Evid. 403); Hearsay

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

(Fed. R. Evid. 801 & 802).
29.

In fact, slightly more

respondents chose LegalZoom in

Moving Party’s evidence: Vu Decl. II, ECF
No. 61, ¶ 2, Ex. A, at 25.

the control group (where the Rocket Disputed.
Lawyer advertisement did not
disclose state fees in its text).

The Wind Survey does not establish whether
respondents “chose” LegalZoom. Question 2 in
the Wind Survey asked respondents which “...
companies would be interested in exploring
further based on what you see?” Professor
Wind testified that this question asked
respondents to select websites to explore, and
agreed that using the word “chose” is
overstated.
Wind Report, Ex. E, Survey Simuli;
Wind Report, Ex. G., p. 8; Wind Depo., 82:612.
18

1

MOVING PARTY’S ALLEGED

2

RESPONSE

UNDISPUTED FACT

3
4

Objections: Irrelevant (Fed. R. Evid. 401,

5

402); Misleading (Fed. R. Evid. 403); Hearsay

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

(Fed. R. Evid. 801 & 802).
30.

The Wind Survey also found

Moving Party’s evidence: Vu Decl. II, ECF

that there is a portion of the relevant No. 61, ¶ 2, Ex. A at 66; see also ¶ 4, Ex. C, at
population that is skeptical about

7 (acknowledging skeptical population in the

free offers and that such ads

Isaacson survey and significant research

decrease the likelihood that these

supporting increase in skeptical consumers).

consumers would chose to explore

Disputed.

Rocket Lawyer and/or actually
provide business to Rocket Lawyer.

The Wind Survey did not make any findings
concerning skepticism concerning “free” offers.
Whether the “relevant population” is
“skeptical” about free offers has not been
tested. Moreover, there is no conclusive
evidence that the ads “decrease” the likelihood
that consumers would choose to explore Rocket
Lawyer and the Isaacson survey finds
otherwise.
Isaacson Decl., ¶ 31; Wind Deposition, 140:20148:19.

25
26
27
28

Objections: Irrelevant (Fed. R. Evid. 401,
402); Misleading (Fed. R. Evid. 403); Hearsay
(Fed. R. Evid. 801 & 802).
19

1

MOVING PARTY’S ALLEGED

2
3
4
5
6
7
8
9
10
11
12

RESPONSE

UNDISPUTED FACT
31.

Note that although the Wind

Moving Party’s evidence: Vu Decl. II, ECF

Survey analyzed whether there was

No. 61, ¶ 3, Ex. B, App. L (Table 6, Question 2,

any difference between the test and

Online Legal Services Companies Chosen

control groups in their decision to

Initially).

choose Rocket Lawyer or

Disputed.

LegalZoom, many respondents
chose other competitors whose ads

The Wind Survey did not test whether

appeared on the search engine

respondents “chose” another competitor in

results, as would occur in the real

connection with Rocket Lawyer or LegalZoom.

world.

Question 2 in the Wind Survey asked

13

respondents which “. companies would be

14

interested in exploring further based on what

15

you see?” Professor Wind testified that this

16

question asked respondents to select websites to

17

explore, and agreed that using the word “chose”

18

is overstated.

19

Isaacson Decl., ¶¶ 59, 60; Wind Report, Ex. G.,

20

p. 8; Wind Dep., 82:6-12.

21
22

Objections: Irrelevant (Fed. R. Evid. 401,

23

402); Misleading (Fed. R. Evid. 403); Hearsay

24
25
26
27
28

(Fed. R. Evid. 801 & 802).
32.

In addition, test respondents

Moving Party’s evidence: Vu Decl. II, ECF

did not exhibit any better

No. 61, ¶ 2, Ex. A, at 31, 62-63.

understanding that they must pay

Disputed.

state fees even if Rocket Lawyer’s
20

1

MOVING PARTY’S ALLEGED

2
3
4
5
6
7

RESPONSE

UNDISPUTED FACT
services were free than in the

Page 31 provides the responses to Q.B10a,

control group: the test and control

which asked, “... do you recall if you had to pay

groups were equally likely to

state fees to the state for Incorporation with the

understand the state fees issue at the free offer?” The question is vague, and does
decision-making point.

8

not specify whether it asks (a) if respondents
remembered whether or not they had to pay

9

fees, or (b) whether respondents thought state

10

fees were in fact required. Isaacson Decl., ¶ 62;

11

Wind Report, p. 31, 62 and Ex. G p. 10; Wind

12

Depo., 153:19-156:12.

13
14

Objections: Misleading (Fed. R. Evid. 403);

15
16
17
18
19
20
21
22
23
24
25
26
27
28

Hearsay (Fed. R. Evid. 801 & 802).
33.

Nearly 70% of all test

subjects understood that they were

Moving Party’s evidence: Vu Decl. II, ECF
No. 61, ¶ 2, Ex. A, at 31.

required to pay state fees regardless
of whether they were in the test or

Disputed.

control group.
Page 31 provides the responses to Q.B10a,
which asked, “... do you recall if you had to pay
state fees to the state for Incorporation with the
free offer?” The question is vague, and does
not specify whether it asks (a) if respondents
remembered whether or not they had to pay
fees, or (b) if respondents thought state fees
were in fact required. Also “test subjects” are
21

1

MOVING PARTY’S ALLEGED

2

RESPONSE

UNDISPUTED FACT

3

separate from those in the “control group.”

4

Isaacson Decl., ¶ 62; Wind Report, p. 31, 62,

5

and Ex. G p. 10.

6
7

Objections: Misleading (Fed. R. Evid. 403);

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

Hearsay (Fed. R. Evid. 801 & 802).
34.

Furthermore, there was no

Moving Party’s evidence: Vu Decl. II, ECF

significant difference between the

No. 61, ¶ 2, Ex. A, at 37

test and control respondents in

Disputed.

deciding to do business with Rocket
Lawyer.

Page 37 of the Wind Report provides the results
from Q.14a, which asks what the respondent is
“likely to do” after having seen the ad and the
website. One of the options was “decide not to
buy an online legal service.” No option
referenced Rocket Lawyer directly, or indicated
a decision not to do business with Rocket
Lawyer. Also, the long and complex stimuli in
the Wind Survey masked the difference
between test and control groups.
Isaacson Decl., ¶¶ 8, 36-48, 59, 62; Wind
Report, page 37 and Ex. G page 11; Isaacson
Suppl., ¶ 41-48.

26
27
28

Objections: Irrelevant (Fed. R. Evid. 401 &
402); Misleading (Fed. R. Evid. 403); Hearsay
22

1

MOVING PARTY’S ALLEGED

2

UNDISPUTED FACT

3
4
5
6
7
8
9
10

RESPONSE

(Fed. R. Evid. 801 & 802).
35.

However, slightly more

Moving Party’s evidence: Vu Decl. II, ECF

respondents in the control group,

No. 61, ¶ 2, Ex. A at 36-37.

who did not receive the state fees

Disputed.

disclosure in the search engine ad,
were more likely to continue

The long and complex stimuli in the Wind

searching for other online legal

Survey masked the difference between test and

services.

control groups, and make the results unreliable.

11

Also, the Wind Survey presented the search

12

engine ad on a page with 20 other ads and 8

13

suggested searches, making it unlikely that

14

respondents would notice minor differences

15

between the test and control ads. Additional

16

error was likely induced into the Wind Survey

17

because, in addition to the state fees disclosure,

18

there were other differences between the test

19

and control ads that make comparisons between

20

the test and control group suspect.

21

Isaacson Decl., ¶ 8, 36-48, 82.

22
23

Objections: Irrelevant (Fed. R. Evid. 401 &

24

402); Misleading (Fed. R. Evid. 403); Hearsay

25
26
27
28

(Fed. R. Evid. 801 & 802).
36.

Thus, adding state fee

Moving Party’s evidence: Vu Decl. II, ECF

disclosures to the ad copy itself, to

No. 61, ¶ 2, Ex. A, at 36, 62-63.

address LegalZoom’s allegations,

Disputed.
23

1

MOVING PARTY’S ALLEGED

2
3
4
5
6

RESPONSE

UNDISPUTED FACT
would have no effect on consumers’
decision to provide Rocket Lawyer

The Wind Survey does not provide a basis for

with business or benefit to Rocket

this statement. The long and complex stimuli

Lawyer.

in the Wind Survey masked the difference

7

between test and control groups, and make the

8

results unreliable. Also, the Wind Survey

9

presented the search engine ad on a page with

10

20 other ads and 8 suggested searches, making

11

it unlikely that respondents would notice minor

12

differences between the test and control ads.

13

Additional error was likely induced into the

14

Wind Survey because, in addition to the state

15

fees disclosure, there were other differences

16

between the test and control ads that make

17

comparisons between the test and control group

18

suspect.

19

Isaacson Decl., ¶¶ 8, 36-48.

20
21

Objections: Misleading (Fed. R. Evid. 403);

22

Hearsay (Fed. R. Evid. 801 & 802); Improper

23
24
25
26
27
28

Expert Opinion Testimony (Fed. R. Evid. 702).
37.

Moreover, respondents in the

Wind Survey also identified the

Moving Party’s evidence: Vu Decl. II, ECF
No. 61, ¶ 2, Ex. A, at 4, 40, 57.

advertisement as the least important Disputed.
factor in their decision making.
Pages 40 and 57 are based on Q.14e, which
24

1

MOVING PARTY’S ALLEGED

2

RESPONSE

UNDISPUTED FACT

3

asks respondents to indicate the three most

4

important factors in deciding whether to use an

5

online legal services company. The Wind

6

Survey did not measure how messages received

7

from ads may create impressions relating to

8

important reasons such as price, brand name,

9

opportunity to try the service for free, or

10

customer reviews.

11

Wind Report, p. 40, 57, Exh. G., p. 12.

12
13

Objections: Misleading (Fed. R. Evid. 403);

14

Hearsay (Fed. R. Evid. 801 & 802); Improper

15
16
17
18
19
20

Expert Opinion Testimony (Fed. R. Evid. 702).
38.

Rather, other customers’

reviews and price of the service

Moving Party’s evidence: Vu Decl. II, ECF
No. 61, ¶ 2, Ex. A, at 4, 40, 57.

provider were among the top factors Disputed.
affecting purchasing decisions in
both experiments.

The Wind Survey did not measure how

21

messages received from ads may create

22

impressions relating to important reasons such

23

as price, brand name, opportunity to try the

24

service for free, or customer reviews.

25

Wind Report, p. 40, 57, Exh. G., p. 12.

26
27
28

Objections: Misleading (Fed. R. Evid. 403);
Hearsay (Fed. R. Evid. 801 & 802); Improper
Expert Opinion Testimony
25

1

MOVING PARTY’S ALLEGED

2

UNDISPUTED FACT

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

RESPONSE

(Fed. R. Evid. 702).
39.

LegalZoom’s survey, or the

Moving Party’s evidence: Vu Decl. II, ECF

“Isaacson Survey,” did not test

No. 61, ¶ 4, Ex. C, at 7, 29; ¶ 5, Ex. D at Exs. 2

whether consumers were diverted

and 3 (Isaacson stimuli).

from LegalZoom to Rocket Lawyer. Disputed.
Instead of allowing respondents to
view the ads in the context of a

The Isaacson survey used a format consistent

search engine result page and

with past precedents and with the manner in

choose Rocket Lawyer or

which consumers encounter Rocket Lawyer

LegalZoom, the Isaacson Survey’s

materials in the marketplace. The purpose of a

stimuli failed to replicate market

false advertising survey is to measure the

conditions and merely directed

messages that respondents receive from an ad,

respondents to focus only on an

not whether they notice the ad. The Isaacson

isolated Rocket Lawyer

survey appropriately focused respondent

advertisement, blurring out all other attention on the Rocket Lawyer ad. By
ads and circling Rocket Lawyer’s.

19

contrast, the approach used in the Wind Survey
implicitly assumes that text which is not

20

noticed is not misleading, not matter how

21

deceptive.

22

Isaacson Decl., ¶¶ 84, 85.

23
24
25
26
27
28

Objections: Misleading (Fed. R. Evid. 403).
40.

The Isaacson Survey did not

provide any context.

Moving Party’s evidence: Vu Decl. II, ECF
No. 61, ¶ 4, Ex. C, at 6, 29; ¶ 5, Ex. D, at Exs. 2
and 3 (Isaacson stimuli).
Disputed.
26

1

MOVING PARTY’S ALLEGED

2

RESPONSE

UNDISPUTED FACT

3
4

The Isaacson survey used a format consistent

5

with past precedents and with the manner in

6

which consumers encounter Rocket Lawyer

7

materials in the marketplace. The Isaacson

8

survey provided the entire Rocket Lawyer ad or

9

website pages, without masking any Rocket

10

Lawyer content. The purpose of a false

11

advertising survey is to measure the messages

12

that respondents receive from an ad, not

13

whether they notice the ad. The Isaacson

14

survey appropriately focused respondent

15

attention on the Rocket Lawyer ad. By

16

contrast, the approach used in the Wind Survey

17

implicitly assumes that text which is not

18

noticed is not misleading, no matter how

19

deceptive.

20

Isaacson Decl., ¶¶ 84, 85.

21
22
23
24
25
26
27
28

Objections: Misleading (Fed. R. Evid. 403).
41.

The Isaacson Survey did not

Vu Decl. II, ECF No. 61, ¶ 4, Ex. C, at 7; ¶ 5,

allow respondents to view the

Ex. D, at Exs. 2 and 3 (Isaacson stimuli).

competitor ads that any real world

Deleted by LegalZoom, thus undisputed.

consumer would encounter.
42.

The Isaacson Survey also did

Moving Party’s evidence: Order, ECF No. 44,

not provide respondents with access at 7; Declaration of Hong-An Vu in Support of
27

1

MOVING PARTY’S ALLEGED

2
3
4
5
6
7
8

RESPONSE

UNDISPUTED FACT
to the information and disclosures

Rocket Lawyer’s Opposition to Motion for

on Rocket lawyer.com regarding

Summary Judgment, (“Vu Decl. I”), ECF No.

state fees, which every consumer

38, ¶ 3(d)-(j), Exs. 5-11; Vu Decl. II, ECF No.

must view before making a

61, ¶ 4, Ex. C, at 6; ¶ 5, Ex. D, at Exs. 2 and 3

purchasing decision, contrary to this (Isaacson stimuli).
Court’s instruction.

Disputed.

9
10

There is no typical consumer journey from

11

which to draw the conclusion that “every

12

consumer must view before making a

13

purchasing decision.” There is no typical path

14

that consumers follow, and there is no evidence

15

that consumers follow a specific path other than

16

what they choose based on their interests and

17

the materials they view. Moreover, this Court

18

did not provide any instruction as to whether

19

market surveys should provide respondents

20

access to the information and disclosures on

21

Rocket lawyer.com.

22

Isaacson Decl., ¶¶ 36-48; Wind Depo. 36:8-21.

23
24
25
26
27
28

Objections: Misleading (Fed. R. Evid. 403).
43.

The Isaacson Survey did not

Moving Party’s evidence: Vu Decl. II, ECF

test respondents’ understanding.

No. 61, ¶ 4, Ex. C, at 9-10; ¶ 5, Ex. D, at 19,

The Isaacson Survey was a reading

¶ 50

test that did not test consumers’

Disputed.
28

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

MOVING PARTY’S ALLEGED

RESPONSE

UNDISPUTED FACT
comprehension and perceptions of
the advertisements because

The reading test format is consistent with how

respondents had access to the

consumers encounter Rocket Lawyer’s ads and

advertisements at all times, thus

website pages in the marketplace. Consumers

rendering the survey an open book

form opinions while these materials are in

test where respondents could merely view, and can refer back to them again if they
copy the advertisements in response wish. Also, the reading test format is
to open ended questions.

conservative from Rocket Lawyer’s point of
view. If the Rocket Lawyer ads and websites
are not misleading, then any attempt to
reference these materials should provide
responses that are not misled. The alternative
format, a “memory test,” assumes that material
that is not remembered is acceptable, no matter
how deceptive. Also the reading test format
has been accepted by courts and recommended
for products similar to online legal services.
Isaacson Decl., ¶¶ 69-78; Novartis Consumer
Health v. Johnson & Johnson-Merck Consumer
Pharmaceuticals Co., (U.S.D.C., D. NJ) 129
F.Supp.2d 351 (2000). “... the Court finds that
leaving the products for the respondents to
examine rather than taking the products away
replicates market conditions.” Starter Corp, v.
Converse, Inc. 170 F.3d 286, 297 (2d Cir,
1999).
29

1

MOVING PARTY’S ALLEGED

2
3
4
5
6
7
8
9

UNDISPUTED FACT
44.

The Isaacson Survey did not

Amended Complaint (“FAC”), ECF No. 14; Vu

FAC. The Isaacson Survey stimuli

Decl. II, ECF No. 61, ¶ 4, Ex. C, at 18-19; ¶ 5,

entirely removed “free” from the

Ex. D at Ex. 3 (Isaacson control stimuli).

control ad instead of testing “free”

Disputed.

with additional disclosure of state
LegalZoom objects to how Rocket Lawyer’s

fees.

uses the word “free” in its ads. The best way to

11

test the effect associated with the word “free” is

12

to remove “free” from the control cell stimulus.

13

Testing the word “free” with additional

14

disclosures would confound the effect of those

15

disclosures with the effect of the word “free.”

16

FAC, ECF No. 14, pages 1, 5, 6, 8, 9, 10, 11,

17

19
20
21
22
23
24
25
26
27
28

Moving Party’s evidence: LegalZoom’s First

test LegalZoom’s allegations in the

10

18

RESPONSE

12, and 13.
45.

Further disclosure of state

Moving Party’s evidence: Vu Decl. II, ECF

fees in Rocket Lawyer’s Free

No. 61, ¶ 2, Ex. A, at 25, 37, Ex. C, at 12.

Business Formation Ads would not

Disputed.

affect consumer understanding or
decision to provide Rocket Lawyer

The Wind Survey does not provide measures

with business, and would have no

sufficiently reliable for this assertion.

effect on LegalZoom.

Differences between test and control stimuli in
the Wind Survey are masked by the survey’s
long and complex stimuli, improper
qualification methods, flawed questions, and
other problems. Q.3 in the Isaacson survey
30

1

MOVING PARTY’S ALLEGED

2

UNDISPUTED FACT

3

shows that 86.2% of respondents who saw the

4

ad run by Rocket Lawyer believe it

5

communicates or implies that you can

6

incorporate a business without paying any fees,

7

compared with 67.3% of those who saw a

8

modified version of the ads. Isaacson Decl.,

9
10
11
12
13
14
15
16
17
18
19
20
21

¶¶ 8, 36-48, 59.
46.

In Rocket Lawyer’s survey,

No. 61, ¶ 2, Ex. A, at 42-43, 59-60.

between the test and control groups

Disputed.

with respect to those who: (i) chose
Rocket Lawyer after seeing just the

Differences between test and control stimuli are

search engine advertisements, (ii)

masked by the Wind Survey’s long and

recalled the free offer, (iii)

complex stimuli, extraneous differences

perceived the free offer as valuable

between the test and control ads, and by the

(iv) exhibited or demonstrated some inordinately minor differences between test and
confusion as to the free offer, and

control website pages. Also, the Wind Survey,

(v) accepted the free trial or bought

which tested 15 test cell respondents against 13

other products from Rocket Lawyer. control respondents, did not have sufficient
sample size to test the difference between test

23

and control groups.

24

Wind Report, Figure 1, page 42, 59; Isaacson

25

27
28

Moving Party’s evidence: Vu Decl. II, ECF

there is no significant difference

22

26

RESPONSE

Decl., ¶¶ 8, 36-48, 64-67.
47.

There were slightly more

confused respondents who would

Moving Party’s evidence: Vu Decl. II, ECF
No. 61, ¶ 2, Ex. A, at 36; 42-43, 59-60.

have given Rocket Lawyer business Disputed.
31

1
2
3
4
5
6
7
8

MOVING PARTY’S ALLEGED

RESPONSE

UNDISPUTED FACT
in the test groups that viewed the
ads as LegalZoom demands.

The Wind Survey did not test the ads in a
manner consistent with the demands made in
LegalZoom’s First Amended Complaint.
FAC, ECF No. 14, ¶¶ 13, 14; Isaacson Decl.,
¶¶ 58-63, 23-32.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
32

1

MOVING PARTY’S ALLEGED

2
3
4
5
6
7
8

UNDISPUTED FACT
48.

In the control groups—those

No. 61, ¶ 2, Ex. A, at 42-43, 59-60.

as they were published—less than

Disputed.

5% of respondents exhibited some
confusion about Rocket Lawyer’s

If this item refers to Level 4 of the decision tree

services.

in the Wind Report, Professor Wind testified
that 60% of respondents in the test group, and

10

80% of respondents in the control group,

11

exhibited some degree of confusion. If this item

12

refers to Level 5 of the decision tree, it is

13

inappropriate to assume that only respondents

14

in Level 5 who accepted the free trial offer or

15

bought products from Rocket Lawyer could be

16

confused, when in fact respondents could be

17

confused at prior levels of the decision tree.

18

The decision tree in the Wind Report has no

19

basis in past precedent and does not measure

20

confusion or whether any type of deceptive

21

message is communicated, as would be

22

appropriate for a false advertising survey.

23

Wind Report, p. 42, 59; Wind Depo., 104:18-

24

105:4; Isaacson Decl., ¶¶ 8-10, 63; McCarthy

25

on Trademarks and Unfair Competition,

26

28

Moving Party’s evidence: Vu Decl. II, ECF

who viewed Rocket Lawyer’s ads

9

27

RESPONSE

32:192.
49.

The Wind Survey

demonstrates that after reviewing

Moving Party’s evidence: Vu Decl. II, ECF
No. 61, ¶ 2, Ex. A, at 37 (incorporation
33

1

MOVING PARTY’S ALLEGED

2
3
4
5
6

UNDISPUTED FACT
Rocket Lawyer’s advertisements

continue to search for other online

The Wind Survey shows that less than half of
consumers continue to search for other online

9

legal services providers. Dr. Wind confirmed

10

this finding in deposition testimony.

11

Wind Report, Table 12, p. 37; Wind Depo.,

12

15
16

Disputed.

legal services providers.

8

14

service), 54 (other legal services).

and websites, most consumers

7

13

RESPONSE

158:8-12.
50.

There is no significant

Moving Party’s evidence: Vu Decl. II, ECF

difference between the test and

No. 61, ¶ 2, Ex. A, at 37

control groups with respect to this

(incorporation service)

decision.

Disputed.

17
18

Differences between test and control are

19

masked by the survey’s long and complex

20

stimuli, and by the inordinately minor

21

differences between test and control materials.

22

Also, the Wind Survey, which tested 15 test

23

cell respondents against 13 control cell

24

respondents, did not have sufficient sample size

25

to test the difference between test and control

26

groups.

27
28

Isaacson Decl., ¶ 8, 36-48, 64-67.
51.

Only 5.5% of all respondents

Moving Party’s evidence: Vu Decl. II, ECF
34

1

MOVING PARTY’S ALLEGED

2
3
4
5
6
7
8

UNDISPUTED FACT
stated that they were not going to

No. 61, ¶ 2, Ex. A, at 37 (incorporation

buy online legal services at all—

service), 54 (other legal services).

meaning that 94.5% of all

Disputed.

respondents were open to using
online legal services after their

This conclusion is not provided by the text on

experience with Rocket lawyer.com

pages 37 or 54 of Ex A (the Wind Report).

9

Q.14a in the Wind Survey asks what the

10

respondent is “likely to do” after having seen

11

the Rocket Lawyer ad and website pages. One

12

of the options was “decide not to buy an online

13

legal service.” No response option referenced

14

“using online legal services.” Also,

15

respondents could only choose one response to

16

this question, so other respondents may have

17

wanted to select “decide not to buy an online

18

legal service” but did not do so because they

19

could only select a single option.

20
21
22
23
24
25
26
27
28

RESPONSE

Wind Report, p. 37, 54, and Exh. G, p. 11.
52.

Rocket Lawyer utilizes a

Hollerbach Decl. I, ECF No. 37-3, ¶ 4.

“freemium” business model and has Deleted by LegalZoom, thus undisputed.
offered a free trial of its
subscription plans since inception.
53.

Over 90% of Rocket

Lawyer’s registered users have not

Hollerbach Decl. I, ECF No. 37-3, ¶ 8.
Deleted by LegalZoom, thus undisputed.

paid Rocket Lawyer (or a
government entity) for use of its
35

1

MOVING PARTY’S ALLEGED

2
3
4
5
6
7
8

RESPONSE

UNDISPUTED FACT
services.
54.

Most of Rocket Lawyer’s

Moving Party’s evidence: Hollerbach Decl. I,

free trial advertisements are

ECF No. 37-3, ¶ 13-17, Ex. C; Vu Decl. II ECF

“intrawebsite,” meaning that the

No. 61, ¶ 12, Ex. K; Hollerbach Decl. II, ECF

free trial is advertised and offered

No. 60-1, ¶ 4; FAC, ECF No. 14, Ex. C and D.

primarily on Rocket lawyer.com.

Disputed.

9
10
11
12

Rocket Lawyer produced tens of thousands of
ads, none of which were on its website, relating
to its free trial. Winograd Decl., ¶ 13.

13
14

Objection: Relevance (Fed. R. Evid. 402).

15
16
17
18
19
20
21
22
23
24
25
26
27
28
36

1

MOVING PARTY’S ALLEGED

2
3
4
5
6
7

UNDISPUTED FACT
55.

10
11
12
13

Between November 2008 and Vu Decl. II, ECF No. 61, ¶ 12, Ex. K;

September 2013, Rocket Lawyer
published a total of

Hollerbach Decl. II, ECF No. 60-1, ¶ 4.

free trial

advertisements on LegalZoom

Deleted by LegalZoom, thus undisputed.

keywords, but Rocket Lawyer did

8
9

RESPONSE

conversion on
these advertisements.
56.

A typical user would

Hollerbach Decl. I, ECF No. 37-3, ¶ 13.

encounter a Rocket Lawyer Free
Trial Offer by first searching for a

Deleted by LegalZoom, thus undisputed.

document on Google or Bing.

14
15
16
17
18
19
20
21
22

57.

After clicking on a link in the Hollerbach Decl. I, ECF No. 37-3, ¶ 14.

ad, the user would be taken to
RocketLawyer.com and responding

Deleted by LegalZoom, thus undisputed.

to an interactive interview that
enabled the user to complete the
searched-for document.
58.

At the end of the interview,

Hollerbach Decl. I, ECF No. 37-3, ¶ 15.

the user could enroll in a free trial, a
monthly plan, or an annual plan.

Deleted by LegalZoom, thus undisputed.

25

59.

Hollerbach Decl. I, ECF No. 37-3, ¶¶ 16-18;

26

the Free Trial Offer, the user would

27

then be taken to a page presenting

28

the terms of the free trial and

23
24

If the user elected to accept

Vu Decl. I, ECF No. 38, ¶ 3.
Deleted by LegalZoom, thus undisputed.
37

1

MOVING PARTY’S ALLEGED

2
3
4
5
6
7
8
9
10
11
12

RESPONSE

UNDISPUTED FACT
various other terms of use, where he
or she could enter credit card
information and accept the terms —
or not.
60.

On the right-hand side of the

credit card form, Rocket Lawyer

Order, ECF No. 44, at 2; Vu Decl. I, ECF No.
38, ¶¶ 3(d)-(e), Exs. 5, 6.

provided information relating to the
free trial, including cost, length of

Deleted by LegalZoom, thus undisputed.

the free trial period, and the need to
cancel:

13
14

Your free trial entitles you to the

15

Pro [or Basic] Legal plan for one-

16

week. After your free trial ends, a

17

Rocket Lawyer Monthly plan with

18

unlimited free documents, e-

19

signatures, sharing and other

20

premium features will start and this

21

credit card will be charged $39.95

22

[or $19.95 for Basic Legal

23

Plan]/month. . . If you decide that

24

you don’t want to keep your

25

membership, simply downgrade the

26

service to a free membership to

27

discontinue the Legal Plan and

28

$39.95 [or $19.95 for basic Legal
38

1

MOVING PARTY’S ALLEGED

2
3
4
5
6
7
8
9
10

RESPONSE

UNDISPUTED FACT
Plan]/month billing. The legal
documents created and saved during
your trial are free, which means
they are yours to keep, and you can
access them at any time.
61.

The toll free phone number to Order, ECF No. 44, at 2; Vu Decl. I, ECF No.

cancel a free trial was, and still is, at 38, ¶¶ 3(d)-(e), Exs. 5, 6.
the top of every registration page.

11

Deleted by LegalZoom, thus undisputed.

12
13
14

62.

In addition, to ensure that

15

customers have answers to

16

questions about the free trial,

17

Rocket Lawyer has an FAQ section

18

which details the different ways a

19

customer can cancel any plan.

20

63.

21

the format of Rocket Lawyer’s

22

Order, ECF No. 44, at 2; Vu Decl. I, ECF No.

disclosures and not their substance.

LegalZoom only challenges

38, ¶¶ 3(d)-(e) at Exs. 5, 6.
Deleted by LegalZoom, thus undisputed.

Moving Party’s evidence: FAC, ECF No. 14,
at 18-40.

Disputed.

23
24
25

LegalZoom challenges both the format and the

26

substance of the disclosures. FAC, ECF No. 14,

27

¶¶ 13, 14.

28

64.

Rocket Lawyer conducted a

Moving Party’s evidence: Vu Decl. II, ECF
39

1

MOVING PARTY’S ALLEGED

2
3
4
5
6
7
8
9
10
11

UNDISPUTED FACT
survey where one group received

No. 61, ¶ 2, Ex. A, at 7, 13-15; ¶ 14, Ex. M.

the disclosures as Rocket Lawyer

Disputed.

has disclosed them (control group)
and a second group received the

The test and control stimuli each have 14

disclosures as LegalZoom displays

images, which only differ in that text near the

its own free trial information (test

top of Image 13 (“$19.95 per month after trail

group), to determine if either the

ends. No obligation.) is replaced with a single

test or control group better

sentence in small font near the bottom of the

understood the nature of a free trial.

image (“After the 7-day trial period, benefits of

12

the Monthly Legal Plan will continue

13

automatically for $19.95 per month.”), and a

14

block of text on Image 14 is put in color.

15

LegalZoom’s disclosures are displayed more

16

prominently, and are shown in conjunction with

17

the offer rather than buried deep in a series of

18

website pages. Also, the vast majority of the

19

other images shown to respondents relating to

20

the free trial offer were unrelated to the free

21

trial offer and did not provide any disclosures.

22

Wind Report, Ex. E, Survey Simuli;

23

Wind Depo., 79:1-10;

24
25
26
27
28

RESPONSE

FAC, ECF No. 14, ¶ 14, Ex. D.
65.

The test stimuli mirrored

Moving Party’s evidence: Vu Decl. II, ECF

LegalZoom’s formatting for its free

No. 61, ¶ 2, Ex. A, at 13-15; ¶ 3, Ex. B, App. E

trial offer and disclosures on

(Wind Survey stimuli); ¶ 14, Ex. M.

LegalZoom.com.

Disputed.
40

1

MOVING PARTY’S ALLEGED

2

RESPONSE

UNDISPUTED FACT

3
4

The test and control stimuli each have 14

5

images, which only differ in that text near the

6

top of Image 13 (“$19.95 per months after trail

7

ends. No obligation.) is replaced with a single

8

sentence in small font near the bottom of the

9

image (“After the 7-day trial period, benefits of

10

the Monthly Legal Plan will continue

11

automatically for $19.95 per month.”), and a

12

block of text on Image 14 is put in color.

13

LegalZoom’s disclosures are displayed more

14

prominently, and are shown in conjunction with

15

the offer rather than buried deep in a series of

16

website pages. Also, the vast majority of the

17

other images shown to respondents relating to

18

the free trial offer were unrelated to the free

19

trial offer and did not provide any disclosures.

20

Wind Report, Ex. E, Survey Simuli; FAC, ¶ 14,

21
22
23
24
25
26
27
28

Ex. D.
66.

The survey results

Moving Party’s evidence: Vu Decl. II, ECF

demonstrate that there is no

No. 61, ¶ 2, Ex. A, at 50-51.

significant difference in consumer

Disputed.

understanding of the free trial
between the test and control groups. The survey did not have sufficient sample size
to test the difference between test and control
groups, given the analysis methods used in the
41

1

MOVING PARTY’S ALLEGED

2

UNDISPUTED FACT

3

survey. The differences between test and

4

control are masked by the long and complex

5

stimuli used in the survey, and by the

6

inordinately minor differences between test and

7

control materials.

8
9
10
11
12

Isaacson Decl., ¶¶ 64-67.
67.

66.3% of the control

No. 61, ¶ 2, Ex. A, at 50.

had a time limit compared to 67.3%

Disputed.

in the test group.
Q.12a in the Wind Survey asked, “Do you

14

recall if the free trial offer has a time limit?”

15

The question is vague, and does not specify

16

whether it asks (a) if respondents remembered

17

whether or not the offer has a time limit, or (b)

18

if respondents thought the offer had a time

19

limit. Also, differences between test and control

20

are masked by the survey’s long and complex

21

stimuli, and by the inordinately minor

22

differences between test and control materials.

23

Wind Report, p. 50 and Exh. G, p. 11; Isaacson

24

26
27
28

Moving Party’s evidence: Vu Decl. II, ECF

respondents knew that the free trial

13

25

RESPONSE

Decl., ¶¶ 8, 36-48.
68.

52 of 70 test respondents

Moving Party’s evidence: Vu Decl. II, ECF

understood that they would be

No. 61, ¶ 2, Ex. A, at 51.

charged after the free trial period

Disputed.

ended compared to 54 of 67 control
42

1

MOVING PARTY’S ALLEGED

2
3

UNDISPUTED FACT
respondents.

4

Wind did not personally develop the codes,

6

provide instructions for the coder, conduct the

7

coding, or review the coding of the comments

8

from these questions, and has not indicated how

9

each verbatim comment was coded, so the

10

calculations behind these numbers cannot be

11

confirmed. Also, differences between test and

12

control are masked by the survey’s long and

13

complex stimuli, and by the inordinately minor

14

differences between test and control materials.

15

Isaacson Decl., ¶¶ 8, 36-48; Wind Depo., 52:8-

16

18
19
20
21
22

25, 53:1-23, 117:3-8.
69.

There was also no significant

Moving Party’s evidence: Vu Decl. II, ECF

difference in respondents’ decision

No. 61, ¶ 2, Ex. A, at 54.

to do business with Rocket Lawyer

Disputed.

between the test and control groups
(compare 41.7% test with 38.3%

Differences between test and control are

control).

masked by the survey’s long and complex

23

stimuli, and by the inordinately minor

24

differences between test and control materials.

25

The Wind Survey does not provide a reliable

26

test of respondent decision-making.

27
28

These percentages are based on verbatim
responses to Questions 12b and 12c. Professor

5

17

RESPONSE

Isaacson Decl., ¶¶ 8, 36-48.
70.

Revising Rocket Lawyer’s

Moving Party’s evidence: Vu Decl. II, ECF
43

1

MOVING PARTY’S ALLEGED

2
3
4
5
6
7

UNDISPUTED FACT
free trial disclosure format, even to

No. 61, ¶ 2, Ex. A, at 63-64.

directly conform with LegalZoom’s

Disputed.

own practices, would not affect
consumer understanding or decision Differences between test and control are
making.

8

differences between test and control stimuli.

10

The Wind Survey was not designed in a way

11

that would test the claims asserted by

12

LegalZoom in this matter.

13

15
16
17
18
19
20
21
22
23
24
25
26
27
28

masked by the survey’s long and complex
stimuli, and by the inordinately minor

9

14

RESPONSE

Isaacson Decl., ¶¶ 8, 36-48.
71.

LegalZoom has no evidence

Moving Party’s evidence: Vu Decl. II, ECF

sufficient to dispute the Wind

No. 61, ¶ 4, Ex. C, at 19; ¶ 5, Ex. D

Survey results and conclusions

Disputed.

because it did not test the Free Trial
Ads in the Isaacson Survey.

LegalZoom has evidence more than sufficient
to dispute the Wind Survey. The Isaacson
survey tested Rocket Lawyer website pages that
offer a free trial. Of respondents who saw the
website pages as displayed by Rocket Lawyer
online, only 37.8% responded to Q.7 that a
member has to pay for a legal plan before they
can get free help from a local attorney,
compared with 56.7% of those who saw
modified materials with additional disclaimers.
The Isaacson survey also tested the free
44

1

MOVING PARTY’S ALLEGED

2

UNDISPUTED FACT

3

incorporation ad run by Rocket Lawyer. In

4

response to Q.3, 86.2% of respondents who saw

5

the free incorporation ad run by Rocket Lawyer

6

answered that it does communicate or imply

7

that you can incorporate a business without

8

paying any fees, compared with 67.3% of those

9

who saw materials modified to add additional

10

disclaimers. Also, as described in the Isaacson

11

Declaration, the Wind Survey does not provide

12

reliable measures of false advertising.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

RESPONSE

Isaacson Decl., ¶¶ 8, 58-63.
72.

Rocket Lawyer’s subscription Order, ECF No. 44, at 3; Vu Decl. I, ECF No.

plans include access to Rocket

38, ¶ 3(k)-(l), Exs. 12-13; Hollerbach Decl. I,

Lawyer’s On Call attorneys who

ECF No. 37-3, ¶ 22.

can provide legal advice or live
consultations, answer written

Deleted by LegalZoom, thus undisputed.

questions, and/or review legal
documents.
73.

LegalZoom alleges that

Moving Party’s evidence: FAC, ECF 14, ¶ 20-

consumers have been misled

21, 28-31.

because Rocket Lawyer does not

Disputed.

adequately disclose that not all
members have access to these On

LegalZoom alleges that consumers have been

Call services.

misled by how and where Rocket Lawyer uses
the term “free” in the Rocket Lawyer
advertisements.
45

1

MOVING PARTY’S ALLEGED

2

UNDISPUTED FACT

3
4
5
6
7
8
9
10
11

FAC, ¶ 14.
74.

Between October 2008 and

ECF No. 38, ¶¶ 3(k)-(l), Exs. 12-13; Hollerbach

having an attorney review a

Decl. I, ECF No. 37-3, ¶ 15, Ex. C. and ¶ 22.

document drafted on Rocket

Disputed.

lawyer.com, was provided only to
annual plan members immediately

Pursuant to Rocket Lawyer’s own On Call

and to monthly plan members after

Terms of Service, Rocket Lawyer’s customers

90 days.

could access “help from local attorneys” or
“legal review” for free only if they were

13

“Eligible Members” who had either (a)

14

purchased three consecutive months of Rocket

15

Lawyer’s monthly Legal Plan, or (b) purchased

16

a Rocket Lawyer annual Legal Plan.

17

Nguyen Decl., ¶ 8, Ex. F (Rocket Lawyer’s On

18

Call Terms of Service, dated July 2012, as

19

21
22

Moving Party’s evidence: See Vu Decl. I,

November 2012, “legal review,”

12

20

RESPONSE

printed on November 27, 2012).
75.

Rocket Lawyer now allows

all members access to Legal

Order, ECF 44, at 3; Vu Decl. I, ECF No. 38,
¶¶ 3(k)-(l), Exs. 12 and 13.

Review.

23

Deleted by LegalZoom, thus undisputed.

24
25
26
27
28

76.

By contrast, as disclosed in

Moving Party’s evidence: Hollerbach Decl. I,

Rocket Lawyer’s opposition to

ECF No. 37-3, ¶ 23.

LegalZoom’s summary judgment

Disputed.

motion, free help from local
46

1

MOVING PARTY’S ALLEGED

2
3
4
5
6
7

UNDISPUTED FACT
attorneys is and has been available

members, in the form of

On Call attorneys.

Lawyer’s monthly Legal Plan, or (b) purchased
a Rocket Lawyer annual Legal Plan.

11

Declaration of Mary Ann T. Nguyen (“Nguyen

12

Decl.”) in Support of LegalZoom’s Motion for

13

Summary Judgment, ECF No. 31, ¶ 8, Ex. F

14

(Rocket Lawyer’s On Call Terms of Service,

15

dated July 2012, as printed on November 27,

16

20

“Eligible Members” who had either (a)
purchased three consecutive months of Rocket

10

19

could access “help from local attorneys” or

consultations with Rocket Lawyer’s “legal review” for free only if they were

9

18

Pursuant to Rocket Lawyer’s own On Call

to all registered users, even free trial Terms of Service, Rocket Lawyer’s customers

8

17

RESPONSE

2012).
77.

Rocket Lawyer does not

advertise “free help from local

Vu Decl. II, ECF No. 61, ¶¶ 8-11, Exs. G-J;
Hollerbach Decl. II, ECF No. 60-1, ¶ 5.

attorneys” or “free legal review” on
Google or Bing.

Deleted by LegalZoom, thus undisputed.

78.

Moving Party’s evidence: Hollerbach Decl. I,

21
22
23
24
25
26
27
28

Instead, consumers typically

encounter information relating to

ECF No. 37-3, ¶ 15, Ex. C.

Free Legal Review at the end of the

Disputed.

consumer journey that results from
searching for and completing a

There is no typical path, or path that consumers

form.

follow and there is no evidence that consumers
follow a specific path other than what they
47

1
2
3
4
5
6
7
8
9
10
11
12
13

MOVING PARTY’S ALLEGED

RESPONSE

UNDISPUTED FACT
choose based on their interests and the
materials they view. Consumer movements on
the internet do not necessarily follow a
predictable path and movement about a website
is not constrained in any fashion. To avoid
having a misleading advertisement, Rocket
Lawyer should provide information about “free
legal review” in the context of the
advertisement and not “at the end of the
consumer journey.” Isaacson Decl., bbv36-48;
Wind Depo., 36:8-21.

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
48

1

MOVING PARTY’S ALLEGED

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

UNDISPUTED FACT
79.

On the same screen as the

Hollerbach Decl. I, ECF No. 37-3, ¶ 15, Ex. C.

Free Trial Offer, Rocket Lawyer
disclosed that free document review Deleted by LegalZoom, thus undisputed.
was available immediately in the
annual plan, after 90 days for the
monthly plan, and not included in
the free trial.
80.

No additional disclosures

Moving Party’s evidence: Hollerbach Decl. I,

were provided for “free help from

ECF No. 37-3, ¶ 22-23.

local attorneys” because all Rocket

Disputed.

Lawyer registered users, whether on
a free trial or a paid legal plan, can

Pursuant to Rocket Lawyer’s own On Call

contact an attorney for a free

Terms of Service, Rocket Lawyer’s customers

consultation at any time.

could access “help from local attorneys” or

17

“legal review” for free only if they were

18

“Eligible Members” who had either (a)

19

purchased three consecutive months of Rocket

20

Lawyer’s monthly Legal Plan, or (b) purchased

21

a Rocket Lawyer annual Legal Plan.

22

Declaration of Mary Ann T. Nguyen (“Nguyen

23

Decl.”) in Support of LegalZoom’s Motion for

24

Summary Judgment, ECF No. 31, ¶ 8, Ex. F

25

(Rocket Lawyer’s On Call Terms of Service,

26

dated July 2012, as printed on November 27,

27
28

RESPONSE

2012).
81.

Despite knowledge that free

Moving Party’s evidence: Vu Decl. II, ECF
49

1

MOVING PARTY’S ALLEGED

2
3
4
5
6
7

UNDISPUTED FACT
help from local attorneys is

No. 61, ¶ 4, Ex. C, at 17-19; ¶ 5, Ex. D at 20,

available to all registered users, the

28, at Exs. 2 and 3 (Isaacson Stimuli).

Isaacson Survey tested “limitations” Disputed.
on Free Help Ads instead of Free
Legal Review.

8

that offer “Free help from local attorneys.”

10

Winograd Decl., ¶ 11, Ex. J (Isaacson Report,

11

13
14
15
16

¶¶ 3, 4.).
LegalZoom designed the

Moving Party’s evidence: Vu Decl. II, ECF

Isaacson Survey stimuli to test

No. 61, ¶ 4, Ex. C, at 17-19; ¶ 5, Ex. D at 20,

whether consumers understood

28, at Exs. 2 and 3 (Isaacson Stimuli).

82.

when they could get “free help from Disputed.
a local attorney.”

17

Dr. Isaacson, not LegalZoom, designed the

18

Isaacson survey. Among other topics, the

19

Isaacson survey tested consumer understanding

20

of who could get “free help from a local

21

attorney.”

22

Winograd Decl., ¶ 11, Ex. J (Isaacson Report,

23
24
25
26
27
28

The Isaacson survey tested consumer
understanding of Rocket Lawyer website pages

9

12

RESPONSE

¶ 27.).
83.

But the limitations that

Moving Party’s evidence: Vu Decl. II, ECF

LegalZoom tested do not apply to

No. 61, ¶ 4, Ex. C, at 18-19.

help from local attorneys, and thus,

Disputed.

LegalZoom’s survey does not test
Rocket Lawyer’s actual practices.

Dr. Isaacson, not LegalZoom, conducted the
50

1

MOVING PARTY’S ALLEGED

2

UNDISPUTED FACT

3

testing. The terms and conditions for the offers

4

tested in the Isaacson survey were taken

5

directly from Rocket Lawyer’s Terms of

6

Service page.

7

Winograd Decl., ¶ 11, Ex. J (Isaacson Report,

8
9
10
11
12
13
14
15

¶ 27.).
84.

In addition, LegalZoom’s

No. 61, ¶ 4, Ex. C, at 24-25; ¶ 5, Ex. D, at 28.

of both test and control respondents

Disputed.

understood that they were required
to be on some kind of Rocket

The survey was designed, conducted, analyzed,

Lawyer plan to receive free help

and reported by Dr. Isaacson, not LegalZoom.

from local attorneys.

The Isaacson report shows that only 37.8% of
respondents believe that a member has to pay

17

for a Basic or Pro Legal Plan before they can

18

get free help from a local attorney. Winograd

19

21
22
23
24
25
26
27
28

Moving Party’s evidence: Vu Decl. II, ECF

survey reveals that a high majority

16

20

RESPONSE

Decl., ¶ 11, Ex. J (Isaacson Report, ¶ 27.).
85.

Furthermore, LegalZoom

Moving Party’s evidence: Vu Decl. II, ECF

chose not to test Free Legal Review

No. 61, ¶ 4, Ex. C, at 30-31; ¶ 5, Ex. D at 28, at

Ads in the Isaacson Survey, and

Exs. 2 and 3 (Isaacson Stimuli).

therefore, has no evidence to

Disputed.

suggest that Rocket Lawyer’s
disclosures are inadequate.

The Isaacson survey tested consumer
understanding of offers for free help from local
attorneys as presented on the Rocket Lawyer
website. The terms and conditions for these
51

1

MOVING PARTY’S ALLEGED

2

UNDISPUTED FACT

3

offers were taken directly from Rocket

4

Lawyer’s Terms of Service page.

5

Winograd Decl., ¶ 11, Ex. J (Isaacson Report,

6
7
8
9

RESPONSE

¶ 32.).
86.

LegalZoom complains of

Moving Party’s evidence: Nguyen Decl. I, ¶ 4,

only one comparative ad—”Zoom

Ex. B, ECF No. 28-2.

costs $99, We’re Free.”

Disputed.

10
11

LegalZoom uses the comparative ad as

12

representative. Rocket Lawyer has referred to

13

its services as “business formation ads or “free

14

trial” or “free help” ads.

15
16
17
18
19

FAC, ECF No. 14, ¶ 13.
87.

However, LegalZoom does

Vu Decl. I, ECF No. 38, ¶ 7, Ex. 22 and 23;

charge $99 plus state fees, whereas

Order at 8 (“it is true that a customer can save

Rocket Lawyer’s service is $0 plus

the $99 charged by [LegalZoom] for its

state fees.

processing and filing fee by enrolling in the

20

free trial offered by [Rocket Lawyer]”).

21
22

Deleted by LegalZoom, thus undisputed.

23
24
25
26
27
28

88.

LegalZoom also alleged that

Rocket Lawyer advertised that it

FAC, ECF No. 14, at ¶ 14.
Deleted by LegalZoom, thus undisputed.

offered a Basic and Pro Legal plan,
but that only a free trial of the Basic
Plan was available to users.
52

1

MOVING PARTY’S ALLEGED

2
3
4
5

RESPONSE

UNDISPUTED FACT
89.

Rocket Lawyer offered free

Vu Decl. I, ECF No. 38, ¶¶ 3(d)-(e), Exs. 4-5.

trials of its Basic and Pro Legal
Deleted by LegalZoom, thus undisputed.

Plans.

6
7
8

90.

LegalZoom alleges that

9

See FAC, ECF No. 14, at 7-13.

Rocket Lawyer’s registration of two
Deleted by LegalZoom, thus undisputed.

10

domain names—

11

www.legalzoomer.com and

12

www.legalzoomgadget.com—but

13

does not allege a cause of action

14

based on registration of these

15

names.

16

91.

17

these domain names as they have

18

been and continue to be error

19

webpages with no content.

Deleted by LegalZoom, thus undisputed.

21

92.

Order Granting Ex Parte Application to

22

August 12, 2014.

Rocket Lawyer has not used

Answer to First Amended Complaint and
Counterclaim, ECF No. 17, Ex. 6.

20

The discovery cut-off date is

Continue Trial and Related Dates Set in the

23

Court’s January 22, 2014 Order for Good

24

Cause, ECF No. 56, at 3.

25

Deleted by LegalZoom, thus undisputed.

26
27
28

93.

As of the date of Rocket

Vu Decl. II, ECF No. 61, ¶ 17.
53

1

MOVING PARTY’S ALLEGED

2
3
4
5
6
7
8
9
10
11
12
13
14
15

UNDISPUTED FACT
Lawyer’s motion for summary
judgment, Rocket Lawyer has

response to LegalZoom’s discovery
requests, including at least 10
spreadsheets of generated
advertisement and conversion data.
94.

LegalZoom should have

No. 61, ¶ 4, Ex. C, at 8-9.

said “Free Incorporation — Pay

Disputed.

only state fees” or similar language
instead of removing the word “free” The survey was conducted by Dr. Isaacson, not
entirely.

to measure the amount of deception, if any,
associated with the “free” is to remove this

19

word from the control cell stimulus. By

20

retaining this word in both test and control, the

21

Wind Survey is unable to determine the effect

22

associated with Rocket Lawyer’s used of the

23

“free.” Winograd Decl., ¶ 11, Ex. J (Isaacson

24

28

LegalZoom. LegalZoom objects to Rocket
Lawyer’s use of the word “free.” The best way

18

27

Moving Party’s evidence: Vu Decl. II, ECF

tested consumer reaction to ads that

17

26

Deleted by LegalZoom, thus undisputed.

produced over 22,000 documents in

16

25

RESPONSE

Report, ¶ 27.).
95.

By removing “free” entirely

Moving Party’s evidence: Vu Decl. II, ECF

from the control stimuli,

No. 61, ¶ 4, Ex. C, at 9.

LegalZoom made it far less likely

Disputed.

that a consumer would actually type
54

1

MOVING PARTY’S ALLEGED

2
3
4
5
6

RESPONSE

UNDISPUTED FACT
“free” when answering an open

The survey was conducted by Dr. Isaacson, not

ended question about what they saw LegalZoom.
from the ad, especially where the ad LegalZoom objects to Rocket Lawyer’s use of
was available at all times.

7

the word “free.” The best way to measure the
amount of deception, if any, associated with the

8

“free” is to remove this word from the control

9

cell stimulus. By retaining this word in both test

10

and control, the Wind Survey is unable to

11

determine the effect associated with Rocket

12

Lawyer’s used of the “free.” Isaacson Decl.,

13

¶¶ 58-63.

14
15

LEGALZOOM’S ALLEGATIONS

16
17
18

FACTS IN SUPPORT OF ITS

20

OPPOSITION

21
22
23
24
25
26
27
28

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED

19

96.

The gravamen of LegalZoom’s suit

LegalZoom’s Evidence (“LZ
Evidence”): FAC, ECF No. 14, ¶ 13.

is that Rocket Lawyer’s advertisements
surrounding its business formation and
other products are literally false and

Disputed to the extent that LegalZoom

misleading because the ads boast that

implies that the “gravamen” of its claims

consumers can incorporate for “free” and

is the use of “free” generally instead of

receive other services allegedly for “free.” “free” without sufficient disclosure.
Moving Party’s Evidence: See
55

1

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED

2

FACTS IN SUPPORT OF ITS

3

OPPOSITION

4

generally, Order, ECF No. 44.

5

Objections to LZ Evidence: Misleading

6

(Fed. R. Evid. 403); Irrelevant (Fed. R.

7

Evid. 401, 402) to the extent that the

8

Court has already determined this fact.

9

Galen v. Mobil Oil Corp., 922 F. Supp.

10

318, 320 (C.D. Cal. 1996) (“Previous

11

findings of fact and conclusions of law in

12

this case govern the evaluation” of

13

remaining claims).

14
15
16
17
18
19
20
21
22

97.

LZ Evidence: FAC, ECF No. 14, ¶¶ 13,

LegalZoom alleges that Rocket

Lawyer’s advertisements for “free”

14.

incorporation and organization are false

Disputed to the extent that LegalZoom

and misleading because consumers are

implies that its claims concern the use of

ultimately required to pay a state filing

“free” generally instead of “free” without

fee and/or fees to Rocket Lawyer itself in

sufficient disclosure.

order to avail themselves of the

Moving Party’s Evidence: See

purportedly “free” services.

generally Order, ECF NO. 44.

23

Objections to LZ Evidence: Misleading

24

(Fed. R. Evid. 403); Irrelevant (Fed. R.

25

Evid. 401, 402) to the extent that the

26

Court has already determined this fact.

27

Galen v. Mobil Oil Corp., 922 F. Supp.

28

318, 320 (C.D. Cal. 1996) (“Previous
56

1

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED

2

FACTS IN SUPPORT OF ITS

3

OPPOSITION

4

findings of fact and conclusions of law in

5

this case govern the evaluation” of

6

remaining claims).

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

98.

LZ Evidence: Nguyen Decl., ECF No.

Costs and conditions are therefore

31, ¶ 6, Ex. D (Screen grabs of Rocket

attached to the receipt of the allegedly

“free” services and consumers who access Lawyer’s “Interview” for “Company
the Rocket Lawyer link to the Rocket

Set-up” and “Company Details” for

Lawyer “Incorporate for Free... Pay no

incorporation).

Fees $0,” “Incorporate Your Business at
Disputed as LegalZoom has not

Rocket Lawyer Free,” “Form Your LLC

Free at Rocket Lawyer” or “Free. LLCs” provided all pages in the incorporation
consumer journey and ignores several

ads do not discover that they must

actually pay the state filing fees until after disclosures of state fees before users
they have accessed the Rocket Lawyer

complete the company set up.

website, completed a “company setup”

Moving Party’s Evidence: See Vu

and filled out information relating to the

Decl. II, ECF No. 61, ¶ 3, Ex. B (stimuli

“company details.”

with all pages from incorporation

22

consumer journey)

23

Objections to LZ Evidence: Incomplete

24

(Fed. R. Evid. 106); Best Evidence (Fed.

25

R. Evid. 1001, 1002); Misleading (Fed.

26
27
28

R. Evid. 403)
99.

Rocket Lawyer purports to offer

LZ Evidence: FAC, ECF No. 14, ¶ 13,

“free help from local attorneys” and “free
57

Ex. C.

1
2

FACTS IN SUPPORT OF ITS

3
4

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED

OPPOSITION
legal review.”

Disputed to the extent that this implies

5

that Rocket Lawyer does not actually

6

provide “free help from local attorneys”

7

and “free legal review.”

8

Moving Party’s Evidence: Hollerbach

9

Decl. I, ECF No. 37-3, ¶ 15, Ex. C.

10

Objections to LZ Evidence: Best

11

Evidence (Fed. R. Evid. 1001, 1002);

12

Misleading (Fed. R. Evid. 403)

13
14
15
16
17
18
19

100. The paid membership requirement

LZ Evidence: FAC, ECF No. 14, ¶¶ 13,

for access to the purported “free help

14, Ex. C; Nguyen Decl., ¶¶ 7, 8, Exs. E,

from local attorneys” and “free legal

F (Screen grabs of Rocket Lawyer’s

review” is not disclosed in close

Advertisements; Rocket Lawyer’s On

proximity to the ads on Rocket Lawyer’s

Call Terms of Service, dated July 2012,

website.

as printed on November 27, 2012).

20
21

Disputed. Rocket Lawyer does provide

22

free help from local attorneys in the form

23

of free consultations and free legal

24

review as disclosed immediately before

25

consumers make a purchasing decision.

26

Moving Party’s Evidence: Hollerbach

27

Decl. I, ECF No. 37-3, Ex. C

28

Objections to LZ Evidence: Legal
58

1
2

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED
FACTS IN SUPPORT OF ITS

3

OPPOSITION

4

conclusion; Best Evidence (Fed. R. Evid.

5

1001, 1002); Misleading (Fed. R. Evid.

6

403)

7
8
9
10
11
12
13
14
15
16
17

101. Pursuant to Rocket Lawyer’s own

LZ Evidence: FAC, ECF No. 14, ¶ 13,

On Call Terms of Service, Rocket

14, Ex. C; Nguyen Decl., ¶ 8, Ex. F

Lawyer’s customers could access “help

(Rocket Lawyer’s On Call Terms of

from local attorneys” or “legal review”

Service, dated July 2012, as printed on

for free only if they were “Eligible

November 27, 2012); Winograd Decl.,

Members” who had either (a) purchased

¶ 10, Ex. I

three consecutive months of Rocket

(BBB 0000021, Better Business Bureau

Lawyer’s monthly Legal Plan, or (b)

(BBB) complaint activity report

purchased a Rocket Lawyer annual Legal

regarding Rocket Lawyer’s “free advice”

Plan.

advertisement as “false advertising”

18

because “no where [sic] on the [Rocket

19

Lawyer] site is an e-mail address

20

requested or registration requested.”)

21
22

Disputed. Rocket Lawyer does provide

23

free help from local attorneys in the form

24

of free consultations and free legal

25

review as disclosed immediately before

26

consumers make a purchasing decision.

27

Moving Party’s Evidence: Hollerbach

28

Decl. I, ECF No. 37-3, ¶¶ 22-23, and ¶
59

1
2
3

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED
FACTS IN SUPPORT OF ITS
OPPOSITION

4

15, Ex. C.

5

Objections to LZ Evidence: Legal

6

Conclusion (Fed. R. Civ. Proc. 56(c)(4);

7

L.R. 7-7); Best Evidence (Fed. R. Evid.

8

1001, 1002); Misleading (Fed. R. Evid.

9

403)

10
11
12
13
14
15
16

102. FAC alleges that Rocket Lawyer’s

LZ Evidence: FAC, ECF No. 14, ¶¶ 15,

advertisements violate directives of the

16.

Federal Trade Commission governing the
use of the word “free” and the California

Undisputed to the extent that

unfair competition statutes and, thus,

LegalZoom has merely alleged that

constitute unfair competition.

Rocket Lawyer has violated the Federal

17

Trade Commissions’ guidelines.

18

Disputed to the extent that LegalZoom

19

implies that Rocket Lawyer has actually

20

violated the FTC guidelines on use of

21

free. Disputed to the extent that

22

LegalZoom implies that it has evidence

23

to support this allegation.

24

Objections to LZ Evidence: Legal

25

Conclusion (Fed. R. Civ. Proc. 56(c)(4);

26

L.R. 7-7); Misleading (Fed. R. Evid.

27

403); Irrelevant (Fed. R. Evid. 401, 402)

28
60

1
2
3
4
5
6
7
8
9
10
11
12

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED
FACTS IN SUPPORT OF ITS
OPPOSITION
103. FAC alleges that Rocket Lawyer’s

LZ Evidence: FAC, ECF No. 14, ¶¶ 17,

use of advertising containing the word

25.

“free,” has not only misled the public to

Undisputed to the extent that

LegalZoom’s detriment but has allowed

LegalZoom has merely alleged that

Rocket Lawyer to compete unfairly and

Rocket Lawyer has misled the public and

has caused LegalZoom other harm,

harmed LegalZoom. Disputed to the

including the potential decline in sales

extent that LegalZoom implies that

and market share, loss of goodwill and

Rocket Lawyer has actually misled the

additional losses and damages.

public and harmed LegalZoom.

13

Disputed to the extent that LegalZoom

14

implies that it has evidence to support

15

this allegation.

16

Objections to LZ Evidence: Legal

17

Conclusion (Fed. R. Civ. Proc. 56(c)(4);

18

L.R. 7-7); Misleading (Fed. R. Evid.

19

403); Irrelevant (Fed. R. Evid. 401, 402)

20
21
22

104. The FAC seeks injunctive relief.

LZ Evidence: FAC, ECF No. 14, ¶¶ 25,

23

33, 40.

24

Disputed to the extent that LegalZoom

25

implies that it does not also seek

26

damages.

27

Moving Party’s Evidence: FAC, ECF

28

No, 14, Prayer.
61

1
2
3

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED
FACTS IN SUPPORT OF ITS
OPPOSITION

4

Objections to LZ Evidence: Misleading

5

(Fed. R. Evid. 403)

6
7
8
9
10
11
12
13
14
15

105. Rocket Lawyer largely ignores

LZ Evidence: Rocket Lawyer’s Motion

these allegations, and instead focuses the

for Summary Judgment and/or

Court’s attention on whether consumers

Adjudication (“RL’s MSJ”), ECF No.

who are led through a “typical consumer

60, 1:24-2:7; Vu Decl. II, ¶ 3, Ex. B,

journey from the advertisement to the

Apps. A (declaration of David Baga

point of purchase” are deceived into

attesting to consumer journey reflected

buying Rocket Lawyer’s products based

in Wind’s stimuli) and E (stimuli used in

on a belief that no fees are associated with Wind’s survey).
incorporating or starting a free trial.

16

Disputed. Rocket Lawyer tested

17

consumers’ perceptions and purchasing

18

decisions of the advertisements at issue

19

in context as directed by the Court.

20
21

Moving Party’s Evidence: Vu Decl. II,

22

ECF No. 61, ¶ 2, Ex. A (Wind report); ¶

23

3, Ex. B (stimuli); Order, ECF No. 44 at

24

9.

25
26

Objections to LZ Evidence: Misleading

27

(Fed. R. Evid. 403); Irrelevant (Fed. R.

28

Evid. 401, 402) to the extent that the
62

1
2
3

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED
FACTS IN SUPPORT OF ITS
OPPOSITION

4

Court has already determined the scope

5

of the case. SJ Order; Galen v. Mobil

6

Oil Corp., 922 F. Supp. 318, 320 (C.D.

7

Cal. 1996) (“Previous findings of fact

8

and conclusions of law in this case

9

govern the evaluation” of remaining

10

claims).

11
12
13
14

106. LegalZoom’s complaint is focused

LZ Evidence: FAC, ECF. No. 14, ¶¶ 13,

squarely upon Rocket Lawyer’s use of the 14.
term “free” in the subject advertising.

15

Disputed to the extent that LegalZoom

16

implies that its claims concern the use of

17

“free” generally instead of “free” without

18

sufficient disclosure.

19

Moving Party’s Evidence: See

20

generally, Order, ECF No. 44.

21

Objections to LZ Evidence: Misleading

22

(Fed. R. Evid. 403); Irrelevant (Fed. R.

23

Evid. 401, 402) to the extent that the

24

Court has already determined this fact;

25

Galen v. Mobil Oil Corp., 922 F. Supp.

26

318, 320 (C.D. Cal. 1996) (“Previous

27

findings of fact and conclusions of law in

28

this case govern the evaluation” of
63

1
2
3

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED
FACTS IN SUPPORT OF ITS
OPPOSITION

4

remaining claims).

5
6
7
8
9

107. LegalZoom has provided two

LZ Evidence: Winograd Decl., ¶¶ 11,

expert opinions which describe the

12, Exs. J, K.

misleading and unfair impact of the word

Undisputed to the extent that

“free” in that advertising.

LegalZoom has submitted two expert

10

reports. Disputed to the extent that

11

these opinions are admissible to

12

demonstrate the impact of the word

13

“free.”

14

Objections to LZ Evidence: Misleading

15

(Fed. R. Evid. 403); Irrelevant (Fed. R.

16

Evid. 401, 402); Inadmissible (Fed. R.

17

Evid. 702.

18
19
20
21
22
23
24
25

108. Dr. Wind’s survey is based on a

LZ Evidence: Wind Report, Ex. E,

“control” advertisement which is the

Survey Simuli.

original Rocket Lawyer ad containing the

Disputed to the extent that LegalZoom

phrase “Incorporate for free,” together

ignores that the test stimuli includes

with a “test” advertisement (the modified

“Pay only state fees.”

ad) which also contains the phrase

Moving Party’s Evidence: Vu Decl. II,

“Incorporate for free.”

ECF No. 61, Ex. A, (Wind Report,

26

Background); Ex. B (Stimuli)

27

Objections to LZ Evidence: Misleading

28

and Incomplete (Fed. R. Evid. 403); Best
64

1
2
3

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED
FACTS IN SUPPORT OF ITS
OPPOSITION

4

Evidence (Fed. R. Evid. 1001, 1002).

5
6
7
8
9
10
11
12
13

109. Only by comparing the consumer

LZ Evidence: Wind Report, Ex. E,

responses to these separate ad stimuli

Survey Simuli (The test and control

does Dr. Wind purport to offer opinions

stimuli each have 14 images, which only

that there is no significant difference in

differ in that text near the top of Image

response to original Rocket Lawyer ad

13 (“$19.95 per moths after trail ends.

(the control ad) and the ad which was

No obligation.) is replaced with a single

modified to supposedly address

sentence in small font near the bottom of

LegalZoom’s allegations (the test ad).

the image (“After the 7-day trial period,

14

benefits of the Monthly Legal Plan will

15

continue automatically for $19.95 per

16

month.”), and a block of text on Image

17

14 is put in color.); FAC, ECF No. 14,

18

¶ 14, Ex. D.

19
20

Undisputed to the extent that the Wind

21

Survey tested Rocket Lawyer’s free trial

22

disclosures compared to LegalZoom’s

23

free trial disclosures and was conducted

24

under recognized principles of analyzing

25

whether there are differences between

26

the test and control groups.

27

Moving Party’s Evidence: Vu Decl. II,

28

ECF No. 61, ¶ 2, Ex. A (Wind Report).
65

1
2
3

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED
FACTS IN SUPPORT OF ITS
OPPOSITION

4

Objections to LZ Evidence: Evidence

5

cited does not support proposition;

6

Misleading as used by LegalZoom (Fed.

7

R. Evid. 403)

8
9
10
11
12
13
14
15
16

110. Dr. Wind purports to have designed LZ Evidence: Wind deposition, p. 36,
lines 8-21.

a survey in which it took respondents
through the “typical consumer journey”
from the advertisement to the point of

Disputed.

purchase,” but there is no basis for Dr.

Moving Party’s Evidence: Hollerbach

Wind to believe that the journey taken

Decl. I, ECF No. 37-3, ¶¶ 13-16

was “typical” in any sense, and Dr. Wind

(identifying typical consumer journey);

admitted as such in his deposition.

Vu Decl. II, ECF No. 61, ¶ 3, Ex. B

17

(Baga Declaration) (regarding Rocket

18

Lawyer website and screenshots used in

19

stimuli); Vu Decl. III, ¶ 14 (Wind Dep.

20

at 39:23 – 40:13).

21

Objections to LZ Evidence: Misleading

22

(Fed. R. Evid. 403); Best Evidence (Fed.

23

R. Evid. 1001, 1002).

24
25
26
27
28

Wind Depo., p. 36, lines 8-21.

111. There is no “typical” way a
consumer can be said to move through the
13 or 14 web pages that Dr. Wind takes

Disputed.

the survey respondents through before he

Moving Party’s Evidence: Hollerbach

66

1
2
3
4

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED
FACTS IN SUPPORT OF ITS
OPPOSITION
asks them questions.

Decl. I, ECF No. 37-3, ¶¶ 13-16

5

(identifying typical consumer journey);

6

Vu Decl. II, ECF No. 61, ¶ 3, Ex. B

7

(Baga Declaration) (regarding Rocket

8

Lawyer website and screenshots used in

9

stimuli); Vu Decl., III, ¶ 15, Ex. C (Wind

10

Dep. at 39:23 – 40:13).

11

Objections to LZ Evidence: Misleading

12

(Fed. R. Evid. 403); Best Evidence (Fed.

13

R. Evid. 1001, 1002).

14
15
16

112. LegalZoom’s claims are not related LZ Evidence: FAC, ECF No. 14, ¶ 13,
to the purchase process.

14.

17
18

Undisputed.

19
20
21
22
23
24
25
26
27
28
67

1
2
3
4
5
6
7
8

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED
FACTS IN SUPPORT OF ITS
OPPOSITION
113. The claims address consumer

LZ Evidence: FAC, ECF No. 14, ¶ 13,

impressions formed at the point of

14.

reviewing an advertisement, before the
point of purchase, not once the consumer

Undisputed.

has embarked on the purchase journey.

Objections to LZ Evidence: Only to the

9

extent that LegalZoom implies ads need

10

not be viewed in context. Order, ECF

11

No. 44 at 9.

12
13
14
15
16
17

114. The majority of Wind’s

LZ Evidence: Wind Report, Ex. E,

complicated stimuli do not even involve

Survey Stimuli.

information on the website that allegedly

Disputed. In order for a consumer to

a consumer sees before making the

incorporate a business, consumers must

consumer decision.

complete all the webpages used in

18

Professor Wind’s incorporation stimuli.

19

As stated by Rocket Lawyer, for the free

20

trial, most consumers search for a free

21

form, and then proceed to complete the

22

form, at the end which they receive the

23

free trial offer and credit card page. Free

24

trial respondents were shown a stimulus

25

for the form that they were most likely to

26

search for in the near future to replicate

27

the context in which the free trial offer is

28

made.
68

1
2

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED
FACTS IN SUPPORT OF ITS

3

OPPOSITION

4

Moving party’s evidence:

5

www.rocketlawyer.com; Hollerbach

6

Decl. I, ECF No. 37-3, ¶¶ 13-16 and ¶

7

15, Ex. C; Vu Decl. II, ECF No. 61, ¶ 3,

8

Ex. B (Baga Declaration); see also

9

Nguyen Decl., ECF No. 31, Exs C and

10
11
12
13
14

D.
115. Of the 12 pages of stimuli shown to LZ Evidence: Wind Report, Ex. E,
respondents, only 2 pertain to information Survey Stimuli.
that even relates to price and terms and

Disputed. Disputed. In order for a

conditions.

consumer to incorporate a business,

15

consumers must complete all the

16

webpages used in Professor Wind’s

17

incorporation stimuli. This includes at

18

least three locations where state fees are

19

disclosed. As stated by Rocket Lawyer,

20

for the free trial, most consumers search

21

for a free form, and then proceed to

22

complete the form, at the end which they

23

receive the free trial offer and credit card

24

page. Free trial respondents were shown

25

a stimulus for the form that they were

26

most likely to search for in the near

27

future to replicate the context in which

28

the free trial offer is made.
69

1
2
3

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED
FACTS IN SUPPORT OF ITS
OPPOSITION

4

Moving party’s evidence: Hollerbach

5

Decl. I, ECF No. 37-3, ¶¶ 13-16 and ¶

6

15, Ex. C; Vu Decl. II, ECF No. 61, ¶ 3,

7

Ex. B (Baga Declaration); see also

8

Nguyen Decl., ECF No. 31, Exs C and

9

D.

10
11
12
13
14
15

116. The majority of the pages of the

LZ Evidence: Wind Report, Ex. E,

website shown to respondents are pages

Survey Stimuli; Isaacson Decl., ¶ 43.

that a consumer would only see after

Disputed. Consumers make a purchasing

making a purchasing decision.

decision at the credit card page where

16

they can chose to enroll in a free trial, a

17

paying plan, or pay for incorporation or a

18

specific form individually. This

19

typically occurs at the end of a document

20

interview for incorporation or a legal

21

form.

22

Moving party’s evidence: Hollerbach

23

Decl. I, ECF No. 37-3, ¶ 15-16 and ¶ 15,

24

Ex. C; Vu Decl., II, ¶ 3, Ex. B (Baga

25

Declaration); see also Nguyen Decl.,

26

ECF No. 31, Exs C and D.

27
28
70

1
2

FACTS IN SUPPORT OF ITS

3
4
5
6

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED

OPPOSITION
117. Dr. Wind’s survey is based on a

LZ Evidence: Wind Report, p. 42, 59;

decision tree which includes five separate

Wind Depo., 97:8-10.

levels.

Disputed. The survey is not based on the

7

tree diagram; rather the tree diagram is

8

based on the survey results. In addition,

9

Professor Wind’s survey is based on the

10

answers provided by the test and control

11

groups in each experiment based on the

12

stimuli presented to them. The Wind

13

Report contains over two dozen tables

14

comparing the responses of each group

15

to find that there was no statistically

16

significant difference between the two

17

groups across many tests. The decision

18

tree is only one of the tables used to

19

support Professor Wind’s findings. Each

20

level pertains to a factor necessary to be

21

a member of the potentially harmed

22

population. This is an important fact, but

23

the majority of Professor Wind’s opinion

24

is based on the many other tables and

25

responses provided as part of his report.

26

Moving Party’s evidence: Vu Decl. II,

27

ECF No. 61, ¶ 2, Ex. A (Wind Report) at

28

pp. 26-60.
71

1
2
3

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED
FACTS IN SUPPORT OF ITS
OPPOSITION

4

Objection to LZ’s evidence: Incomplete

5

(Fed. R. Evid. 106) and Misleading (Fed.

6

R. Evid. 403) as presented by

7

LegalZoom.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
72

1
2
3
4
5
6
7
8

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED
FACTS IN SUPPORT OF ITS
OPPOSITION
118. At each level, survey respondents

LZ Evidence: Wind Depo., 99:10-

are eliminated from consideration by Dr.

100:20.

Wind because they are deemed not to be

Disputed to the extent that LegalZoom

candidates for potential deception by

implies that Professor Wind did not

Rocket Lawyer ads.

consider the responses of respondents

9

who were eliminated from the decision

10

tree. Each respondent was considered by

11

Professor Wind in the more than two

12

dozen tables comparing the test and

13

control groups. Undisputed that

14

respondents were eliminated from the

15

potentially harmed population if they did

16

not meet the criteria for harm: chose

17

Rocket Lawyer, noticed the free offer,

18

saw value in the free offer, demonstrated

19

any amount of misunderstanding about

20

the offer, and provided Rocket Lawyer

21

with business.

22

Moving Party’s evidence: Vu Decl. II,

23

ECF No. 61, Ex. A (Wind Report) at pp.

24

26-60.

25

Objection to LZ’s evidence: Incomplete

26

(Fed. R. Evid. 106) and Misleading (Fed.

27

R. Evid. 403) as presented by

28

LegalZoom.
73

1
2
3
4
5
6
7
8
9
10
11
12

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED
FACTS IN SUPPORT OF ITS
OPPOSITION

LZ Evidence: Wind Depo., 105:16-22.

119. By the time Dr. Wind reaches the

bottom level of the decision tree, in which Disputed to the extent that LegalZoom
he purports to test whether the ads

implies that the decision tree is the only

actually have an impact in causing

metric Professor Wind relied on to

confused or misled respondents to choose

determine whether consumers were

Rocket Lawyer products for purchase,

misled. Professor Wind compared the

there are only 15 respondents in the test

entire test and control groups, over 400

group as compared against 13 in the

individuals in the two experiments,

control group.

across over two dozen questions to

13

demonstrate both at the individual

14

question level and holistically, there was

15

no difference between the responses of

16

test and control groups. Undisputed that

17

respondents were eliminated from the

18

potentially harmed population if they did

19

not meet the criteria for harm: chose

20

Rocket Lawyer, noticed the free offer,

21

saw value in the free offer, and

22

demonstrated any amount of

23

misunderstanding about the offer, such

24

that 15 and 13 respondents remained in

25

the incorporation experiment when

26

asked whether these respondents would

27

provide Rocket Lawyer with business.

28

This narrowing is the purpose of the
74

1
2
3

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED
FACTS IN SUPPORT OF ITS
OPPOSITION

4

decision tree – to identify the potentially

5

harmed population.

6

Moving Party’s evidence: Vu Decl. II,

7

ECF No. 61, Ex. A (Wind Report) at pp.

8

26-60.

9

Objections to LZ evidence: Incomplete

10

(Fed. R. Evid. 106) and Misleading (Fed.

11

R. Evid. 403) as presented by

12

LegalZoom.

13
14
15
16

120. Dr. Wind’s reading of 46.7% at the

LZ Evidence: Wind Report, p.42.

bottom of Figure 1 of his Original Report

Disputed to the extent that LegalZoom

is based on 15 interviews.

implies that Professor Wind did not take

17

the sample size into account in

18

ultimately determining that 46.7% in the

19

test group vs. 30.8% in the control group

20

was not a statistically significant

21

difference.

22

Moving Party’s evidence: Vu Decl. II,

23

ECF No. 61, Ex. A (Wind Report) at pp.

24

42.

25

Objections to LZ evidence: Incomplete

26

(Fed. R. Evid. 106) and Misleading (Fed.

27

R. Evid. 403) as presented by

28

LegalZoom.
75

1
2
3

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED
FACTS IN SUPPORT OF ITS
OPPOSITION

4
5
6
7
8
9
10

121. At the 95% level of confidence, Dr. LZ Evidence: Wind Report, p.42;
Wind’s reading of 46.7% at the bottom of

Isaacson Decl., ¶ 67.

Figure 1 of his Original Report has a

Disputed to the extent that LegalZoom

margin of error of +/- 25%, meaning that

implies that Professor Wind did not take

the true number could be as low as

the sample size into account in

21.5%, or as high as 71.9%.

ultimately determining that 46.7% in the

11

test group vs. 30.8% in the control group

12

was not a statistically significant

13

difference. Further disputed to the extent

14

that LegalZoom implies that the decision

15

tree is the only comparison of the test

16

and control groups used to support

17

Professor Wind’s opinion.

18

Objections to LZ evidence: Incomplete

19

(Fed. R. Evid. 106) and Misleading (Fed.

20

R. Evid. 403) as presented by

21

LegalZoom.

22
23
24
25
26
27

122. At step 1 of his decision tree, Dr.

LZ Evidence: Wind Depo., 81:25-82:5,

Wind eliminates respondents based on

83:7-12.

them answering that they are not

Undisputed, but clarified that

interested in Rocket Lawyer or in

respondents were eliminated from the

exploring Rocket Lawyer’s website.

decision tree, but not the survey.

28

123. Wind says that he disqualifies them LZ Evidence: Wind Depo., 82:6-83:6.
76

1
2

FACTS IN SUPPORT OF ITS

3
4
5
6
7

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED

OPPOSITION
from the survey because they are not
within a group that has a potential to be

Undisputed, but clarified that

deceived (i.e., tricked into buying an

Respondents were eliminated from the

Rocket Lawyer product).

decision tree, not the entire survey.

124. Dr. Wind qualifies respondents by

LZ Evidence: Wind Depo., 61:19-62:8.

asking if they “looked for” online legal

Disputed only to the extent that

products.

LegalZoom implies that this is not the

8
9
10
11
12

proper universe.

13

Moving Party’s evidence: Vu Decl. II,

14

ECF No. 61, ¶ 16, Ex. O (Wind Rebuttal

15
16
17
18
19
20

to Isaacson Report).
125. Dr. Wind fails to ever ask whether

LZ Evidence: Wind Report, Ex. E,

respondents are really “consumers” of

Survey Stimuli.

online legal products, in the sense that

Disputed.

they have used or would use such

Moving Party’s evidence: Vu Decl. II,

products.

ECF No. 61, Ex. B, App. G (stimuli), at

21

359 (S10c) (“Did you actually purchase

22

online legal services for [insert

23

service/form from S10a] from one of

24

these online legal companies you were

25

looking at?”).

26
27

126. A survey conducted by

LZ Evidence: Winograd Decl. ¶ 11, Ex.

LegalZoom’s expert, Dr. Bruce Isaacson,

J (Isaacson Report, ¶ 68, Table B.).

28
77

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED
FACTS IN SUPPORT OF ITS
OPPOSITION
determined that 41% of respondents

Disputed.

shown the subject business formation ads

Moving Party’s Evidence: Vu Decl. II,

believed that they could incorporate or

ECF No. 61, ¶ 16, Ex. O (Wind Rebuttal

form an LLC for free— that is, without

to Isaacson Report).

paying any fees to any entity or

Objection to LZ evidence: Inadmissible

organization (including a state or Rocket

as unreliable and unsound (Fed. R. Evid.

Lawyer)—as opposed to 0.3% of

702).

consumers in the control group who were
shown an advertisement that removed the
word “free,” and otherwise made it clear
that state fees or only services fees would
need to be paid for the incorporation.
127. Dr. Isaacson similarly found that an LZ Evidence: Winograd Decl. ¶ 11, Ex.
overwhelming majority of respondents

J (Isaacson Report, ¶ 98.).

indicated that the amount of fees paid

Undisputed to the extent that

would influence their decision regarding

LegalZoom only asked whether the

which service provider to select—thereby

“amount of fees” would affect

establishing materiality.

respondents’ decision which service

22

provider to select and not whether ‘state

23

fees” would affect consumers decision.

24

LegalZoom later interprets these

25

responses to mean that “price” is

26

material to consumers. Disputed to the

27

extent that this data can be interpreted as

28

meaning that payment of state fees is
78

1
2
3

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED
FACTS IN SUPPORT OF ITS
OPPOSITION

4

material to consumers.

5

Moving Party’s Evidence: Opposition,

6

ECF No. 74 at 13 n5; Winograd Decl.,

7

¶ 11, Ex. J (Isaacson Report, ¶ Table C.);

8

Vu Decl. II, ECF No. 61, ¶ 16, Ex. O

9

(Wind Rebuttal to Isaacson Report).

10

Objection to LZ evidence: Inadmissible

11

as unreliable and unsound (Fed. R. Evid.

12
13
14
15
16

702.
128. In one case, more than 82% of

LZ Evidence: Winograd Decl., ¶ 11, Ex.

respondents indicated that the cost would

J (Isaacson Report, 1 78, Table C.).

affect their purchase decision; in the

Undisputed to the extent that

other, 88.9% so indicated.

LegalZoom only asked whether the

17

“amount of fees” would affect

18

respondents’ decision which service

19

provider to select and not whether “state

20

fees” would affect consumers decision.

21

Undisputed also to the extent that “cost”

22

affects consumer purchase decisions.

23

Disputed to the extent that this data can

24

be interpreted as meaning that payment

25

of state fees is material to consumers.

26

Moving Party’s Evidence: Opposition,

27

ECF No. 74 at 13 n5; Winograd Decl.,

28

¶ 11, Ex. J (Isaacson Report, ¶ Table C.);
79

1
2
3

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED
FACTS IN SUPPORT OF ITS
OPPOSITION

4

Vu Decl. II, ECF No. 61, ¶ 16, Ex. O

5

(Wind Rebuttal to Isaacson Report).

6

Objection to LZ evidence: Inadmissible

7

as unreliable and unsound (Fed. R. Evid.

8
9
10
11
12
13

702).
129. Dr. Isaacson tests the impressions a LZ Evidence: Winograd Decl., ¶ 11, Ex.
consumer has in viewing the ads

J (Isaacson Report).

complained of, which include the term

Undisputed that Dr. Isaacson tested the

“free,” as compared to a modified ad

use of “free” generally instead of

which removes that term.

whether Rocket Lawyer’s use of “free”

14

needed additional disclosure.

15

Objection to LZ evidence: Inadmissible

16

as unreliable and unsound (Fed. R. Evid.

17
18
19

702); irrelevant (Fed. R. Evid, 401, 402).
130. Dr. Wind admits that his survey

LZ Evidence: Wind Depo., 73:14-20.

was not designed to test literal falsity.

Undisputed.

20
21
22
23
24
25
26
27
28
80

1
2
3
4
5
6

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED
FACTS IN SUPPORT OF ITS
OPPOSITION

Rocket Lawyer’s Answer and Amended

131. Rocket Lawyer has changed the

language of its “free” advertisements after Counterclaims, ECF No. 17, 2:26-3:1
(“Rocket Lawyer admits that it has

LegalZoom filed its original Complaint.

7

produced new advertisements regarding

8

its business and a variety of services it

9

offers since the service of the original

10

complaint....”).

11

Undisputed.

12

Objections to LZ evidence: Irrelevant

13

(Fed. R. Evid. 401, 402); Subsequent

14

Remedial Conduct (Fed. R. Evid. 407);

15

Misleading (Fed. R. Evid. 403).

16
17
18
19

LZ Evidence: Nguyen Decl., ¶ 10, Exs.

132. Other evidence shows that Rocket

Lawyer appears to have changed its terms F, G (Rocket Lawyer’s On Call Terms of
Service, dated July 2012, as printed on

and conditions.

20

November 27, 2012; Rocket Lawyer’s

21

On Call Terms of Service, dated

22

November 2012, as printed on

23

November 29, 2012).

24

Undisputed.

25

Objections to LZ evidence: Irrelevant

26

(Fed. R. Evid. 401, 402); Subsequent

27

Remedial Conduct (Fed. R. Evid. 407);

28

Misleading (Fed. R. Evid. 403).
81

1

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED

2

FACTS IN SUPPORT OF ITS

3

OPPOSITION

4
5
6
7

133. LegalZoom has complaints from

LZ Evidence: Winograd Decl., ¶ 10, Ex.

consumers demonstrating that they were

I.

deceived by Rocket Lawyer’s ads.

Disputed only to the extent that

8

LegalZoom relies on individual customer

9

complaints to try to dispute Rocket

10

Lawyer’s survey.

11

Objections to LZ evidence: Irrelevant

12

(Fed. R. Evid. 401, 402; Order ECF No.

13

44 at 10); Misleading (Fed. R. Evid.

14

403).

15
16
17
18
19
20
21
22
23

134. Rocket Lawyer’s own data shows

LZ Evidence: Goedde Decl., ¶ 4.

that there is a substantially higher

Disputed. Mr. Goedde performed no

conversion rate among those consumers

statistical analysis on the difference

who view Rocket Lawyers’ “free” ads

between the conversion rates of 0.63%

without a disclosure of state fees,

and 1.41% and is not qualified to do so

compared with those consumers who

given that he is not a statistics expert.

view such ads with the disclosure of state

Objections to LZ evidence: Misleading

fees.

(Fed. R. Evid. 403); inadmissible (Fed.

24

R. Evid 702).

25
26
27
28
82

1
2

FACTS IN SUPPORT OF ITS

3
4
5
6
7
8

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED

OPPOSITION
135. Rocket Lawyer watched

LZ Evidence: Winograd Decl., Exs. B,

LegalZoom like a hawk to try to find

C (RLI 0004047, Rocket Lawyer’s

ways of undercutting them competitively

“LegalZoom Comparison Review - July”

and to attempt to lure its customers to

PowerPoint; RLI 0004072-0004074,

them.

Email chain with Charley Moore, Rocket

9

Lawyer’s founder, stating “We think

10

about LegalZoom every day and I know

11

they think about the disruption our free

12

legal documents have caused every

13

day.”).

14

Undisputed.

15

Objections to LZ evidence: Irrelevant

16

(Fed. R. Evid. 401, 402); Misleading

17

(Fed. R. Evid. 403).

18
19
20
21
22
23

136. Rocket Lawyer intended to exploit

LZ Evidence: Exs. B, D, E (RLI

the use of the word “free” in its

0004047, Rocket Lawyer’s “LegalZoom

advertising, in part, as a way of

Comparison Review” PowerPoint

distinguishing itself from LegalZoom.

Presentation, referencing Rocket

24

Lawyer’s “free acquisition strategy; RLI

25

0004075, Rocket Lawyer’s “Investor

26

Update -March 2011” PowerPoint

27

Presentation, referencing “exploit the

28

power of free”; RLI 0004151-0004165,
83

1
2
3

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED
FACTS IN SUPPORT OF ITS
OPPOSITION

4

Rocket Lawyer presentation to

5

Lawyers.com, stating that more “free”

6

content “attracts more traffic and

7

potential revenue.).

8

Disputed as to the term “exploited.”

9

Undisputed that Rocket Lawyer offers

10

free products and services as a way of

11

distinguishing itself from LegalZoom

12

and other competitors.

13

Moving Party’s evidence: Order, ECF

14

No. 44 at 9; Hollerbach Decl. I, ECF No.

15

37-3, ¶ 4 (Rocket Lawyer’s “freemium

16

model”).

17

Objections to LZ evidence: Misleading

18

(Fed. R. Evid. 403).

19
20
21
22

137. Rocket Lawyer did intend to

LZ Evidence: Exs. F, G (RLI 0003249,

“convert” customers and tracked its

Rocket Lawyer Board of Directors

“conversions.”

Meeting, February 17, 2011, PowerPoint

23

Presentation, referencing information on

24

customer conversions; RLI 0003376 -

25

Rocket Lawyer Investor Update,

26

February 2011, referencing information

27

concerning customer conversions).

28

Undisputed.
84

1
2
3

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED
FACTS IN SUPPORT OF ITS
OPPOSITION

4

Objections to LZ evidence: Irrelevant

5

(Fed. R. Evid. 401, 402); Misleading

6

(Fed. R. Evid. 403).

7
8
9
10
11
12

LZ Evidence: Winograd Decl., ¶ 9, Ex.

138. Rocket Lawyer was on notice that

its use of the term “free” was confusing to H (RLI0003225, Rocket Lawyer
its consumers and dedicated time—to the

spreadsheet showing customer

tune of hundreds of hours—and attention

“complaints about free and “questions

to answering its customers’ complaints.

about free.”); Winograd Decl., ¶ 10, Ex.

13

I (BBB 0000086, BBB complaint

14

activity report regarding Rocket

15

Lawyer’s advertisement for “free”

16

contract as not actually “free”; BBB

17

0000076, BBB complaint activity report

18

regarding Rocket Lawyer’s “free”

19

advertisement as “very misleading”;

20

BBB 0000053, BBB complaint activity

21

report regarding Rocket Lawyer’s “free

22

7-day trial” advertisement with no

23

disclosure of customer charge as

24

“deceptive business practices”; BBB

25

0000021, BBB complaint activity report

26

regarding Rocket Lawyer’s “free advice”

27

advertisement as “false advertising”

28

because “no where [sic] on the [Rocket
85

1
2
3

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED
FACTS IN SUPPORT OF ITS
OPPOSITION

4

Lawyer] site is an e-mail address

5

requested or registration requested”;

6

BBB 00000001 00201, BBB complaint

7

activity report regarding Rocket

8

Lawyer’s “free” document advertisement

9

as “false advertising/ information”

10

because requirements that customer

11

accept a “free trial period” and “enter

12

credit card information” is not stated

13

“upfront and prominently”; BBB

14

0000001 00191, BBB customer

15

complaint report regarding Rocket

16

Lawyer’s “receive a free document no

17

gimmicks, no credit required, no

18

obligation” advertisement as “false

19

advertisement” because Rocket Lawyer

20

requires giving credit card and starting a

21

membership).

22

Disputed. RLI0003225, a spreadsheet

23

relating to customer service calls,

24

demonstrates 1,781/638,816 calls related

25

to questions or complaints about “free”

26

and does not provide any additional

27

information relating to the question or

28

complaint. Given the small percentage
86

1
2
3

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED
FACTS IN SUPPORT OF ITS
OPPOSITION

4

of issues relating to “free” (less than 1%)

5

in this file, the evidence submitted does

6

not support LegalZoom’s implication

7

that Rocket Lawyer spent even a

8

significant amount of time addressing

9

complaints about free. The BBB

10

complaints submitted demonstrate no

11

customer confusion regarding the need to

12

pay state fees or free legal advice or

13

legal review. Most of the complaints

14

provided relate to “free documents,” a

15

category of advertising that LegalZoom

16

has not alleged as misleading in its FAC

17

as Rocket Lawyer does provide free

18

documents. A handful of complaints,

19

which all companies have, is not market

20

research or equivalent to a survey.

21

Moving party’s evidence: Vu Decl. II,

22

ECF No. 61, Ex. A (Wind Survey).

23

Objections to LZ evidence: Irrelevant

24

(Fed. R. Evid. 401, 402; Order ECF No.

25

44 at 10); Misleading (Fed. R. Evid. 403)

26
27
28

139. Rocket Lawyer continued to use its

LZ Evidence: FAC, ECF No. 14, Exs.

misleading advertising even after receipt

A-2, A-3, A-4.
87

1
2

FACTS IN SUPPORT OF ITS

3
4

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED

OPPOSITION
of these complaints.

Disputed. Rocket Lawyer’s ads are not

5

misleading.

6

Moving party’s evidence: Vu Decl. II,

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ECF No. 61, Ex. A (Wind Survey); Vu

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Decl. III, ¶ 19.

9

Objections to LZ evidence: Irrelevant

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(Fed. R. Evid. 401, 402; Order ECF No.

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44 at 10); Misleading (Fed. R. Evid.

12

403).

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14
15
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140. Rocket Lawyer continued its use of LZ Evidence: FAC, ECF No. 14, Exs.
its misleading advertising even after

A-2, A-3, A-4.

LegalZoom warned that it believed it

Disputed. Rocket Lawyer’s ads are not

violative of the law.

misleading.

19

Moving party’s evidence: Vu Decl. II,

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ECF No. 61, Ex. A (Wind Survey).

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Objections to LZ evidence: Irrelevant

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(Fed. R. Evid. 401, 402; Order ECF No.

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44 at 10); Misleading (Fed. R. Evid.

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403).

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141. Rocket Lawyer has changed not

LZ Evidence: Rocket Lawyer’s Answer

only its advertisements but its website,

and Amended Counterclaims, ECF No.

too.

17, 2:26-3:1 (“Rocket Lawyer admits
88

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2
3

EVIDENTIARY SUPPORT

LEGALZOOM’S UNDISPUTED
FACTS IN SUPPORT OF ITS
OPPOSITION

4

that it has produced new advertisements

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regarding its business and a variety of

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services it offers since the service of the

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original complaint....”); Nguyen Decl.,

8

¶ 10, Exs. F, G (Rocket Lawyer’s On

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Call Terms of Service, dated July 2012,

10

as printed on November 27, 2012;

11

Rocket Lawyer’s On Call Terms of

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Service, dated November 2012, as

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printed on November 29, 2012).

14

Disputed to the extent that changes to

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Rocket Lawyer’s ads and website imply

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culpable conduct.

17

Objections to LZ evidence: Irrelevant

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(Fed. R. Evid. 401, 402); Subsequent

19

Remedial Conduct (Fed. R. Evid. 407);

20

Misleading (Fed. R. Evid. 403).

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22
23

ROCKET LAWYER’S ADDITIONAL UNDISPUTED FACTS

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25
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MOVING PARTY’S UNDISPUTED

EVIDENTIARY SUPPORT

FACTS

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142. There are many free trials offered

Vu Decl. II, ECF No. 61, Ex. A p. 41;

28

in the internet marketplace, including

Hollerbach Decl. I, ECF No. 37-3, ¶ 11,
89

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offers from Microsoft, Amazon, Turbo Ex. B.
Tax, Netflix, Sirius XM, and many
others identified by respondents in the
Wind Survey.
Declaration of Hong-An Vu III (Vu Decl.

143. Professor Wind testified that he
reviewed the Hollerbach deposition

III), ¶ 14, Ex. C (Wind Dep. at 14:22-

and had communicated with Rocket

15:8; 31:20-17; 39:23-40:13).

Lawyer in designing his stimuli.
Vu Decl. III, ¶ 14, Ex. C (Wind Dep.

144. As explained by Professor Wind,
the survey was designed to see if there

137:14-139:24).

was any difference in the perceptions
of individuals who viewed the control
stimuli (Rocket Lawyer’s actual ads)
vs. those who viewed the test stimuli
(modified as LegalZoom would
prefer).
Vu Decl. III, ¶ 14, Ex. C (Wind Dep. at

145. As explained by Professor Wind,

84:13-6; 86:25-88:12).

the absence of deception and
diversion of consumers is
demonstrated by the fact that there is
no difference between the test and
control groups—whether Rocket
Lawyer disclosed state fees in the
search engine ads had no effect on
consumers choice of Rocket Lawyer,
LegalZoom, or other competitors.

27

146. LegalZoom’s criticism of Professor Vu Decl. II, ECF No. 61, Ex. O at 2228,
28

Wind’s inclusion of individuals who

Vu Decl. III, ¶ 14, Ex. C (Wind Dep. at
90

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65:7-71:11).

“may or may not” look for legal
services in the near future ignores that
(i) the surveys deal with intended
behavior and thus, the “may or may
not” group were properly included
because there is a likelihood that many
of these individuals will indeed look
for and purchase online legal services
and (ii) that inclusion of this group
made no difference in the survey
results.

Vu Decl. III. ¶14, Ex. C (Wind Dep.

147. Professor Wind was able to

14:10-14;107:21-108:25).

substantively answer the questions
posed by counsel, even though counsel
refused to provide Professor Wind
with his complete report.
148. Professor Wind also testified about

Vu Decl. III. ¶14, Ex. C (Wind Dep.

how he oversaw and was involved in

21:17-22:18; 31:20-33:8; 41:21-48:11;

each aspect of the survey.

51:12-53:16).
Vu Decl. III. ¶14, Ex. C (Wind Dep. at

149. In Professor Wind’s over 40 years

of experience as a marketing professor 110:19-111:19).
and marketing expert for legal matters,
he has never seen the competitive
landscape entirely removed as Dr.
Isaacson did in this case.

26

150. On RocketLawyer.com, in order to

Vu Decl. II, ECF No. 61, ¶3, Ex. B, App.

27

incorporate, consumers must complete
28

the current incorporation pages used in
91

A (Baga Declaration) and E (Stimuli).

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Professor Wind’s survey.
151. Professor Wind has submitted bills

Vu Decl. III, ¶16, Ex. E (Wind Invoices).

relating to over 130 hours he
personally spent on the survey and
reports
152. Dr. Isaacson decided not to analyze Vu Decl. II, ECF No. 61, ¶4, Ex. C at
over 60% of the responses he received

2042.

merely because they were not helpful
to LegalZoom’s position.
153. Based on a comprehensive report

Vu Decl. III, ¶17, Ex. F (IBISWorld

on the online legal services industry,

report on online legal services in the

there are 16,692 businesses in this

U.S.).

market and that LegalZoom has 5.8%
of the market share.

15

Vu Decl. III, ¶15, Ex. D (LZ007420).

154. According to LegalZoom’s
16

tracking conventions, “affinity” is a
17

numeric score assigned to websites
18

that appear on searches for specific
19

keywords.
20
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25
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27
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Vu Decl. III, ¶15, Ex. D (LZ007420).

155. The affinity score shows the
relationship between two websites by
seeing how many more times the
audiences of the two websites are
going to choose the other for specific
keywords.

Vu Decl. III, ¶15, Ex. D (LZ007420).

156. In comparing Rocket Lawyer and
LegalZoom, LegalZoom has found
that for the target audience for
92

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LegalZoom, Rocket Lawyer is ranked
#6, which means that more often,
those searching LegalZoom are
interested in companies other than
Rocket Lawyer to also explore.
157. This same document demonstrates

Vu Decl. III, ¶15, Ex. D (LZ007420).

that LegalZoom is not even in the top
10 of sites visited from a search
related to Rocket Lawyer.
Vu Decl. III, ¶15, Ex. D (LZ007420).

158. LegalZoom’s the Senior Director,
Online Media & Marketing, stated
that given the affinity numbers, for
LegalZoom “it will be difficult to
sway users looking for ‘free’ toward a
quality product that has a price tag.”

Winograd Decl., ¶ 9, Ex. H (RLI0003225,

159. LegalZoom’s key evidence
regarding customer complaints, a

Rocket Lawyer spreadsheet showing

spreadsheet relating to customer

customer “complaints about free and

service calls, demonstrates that

“questions about free.”); Vu Decl. III at

1281/638.816 service calls involved

¶19

“questions” or “complaints” about
“free” (less than 1%).

23

160. LegalZoom has relatively far more
24

complaints than Rocket Lawyer:
25

LegalZoom: 133 complaints on the
26

BBB in 1 year and 4 months—8.3
27

complaints/month, compared to
28

Rocket Lawyer 181 complaints over 3
93

Vu Decl. III, ¶20.

1
2

years-5 complaints/month).
productions,2 totaling over 85,000

4

pages of documents (excluding native

5

electronic files and data pulls

6

produced in native format) in response

7

to LegalZoom’s broad discovery

8
9

requests.
Vu Decl. III, ¶13.

162. Despite prompting by Rocket

10

Lawyer, LegalZoom has been inactive

11

in discovery. LegalZoom has

12

produced less than 10,000 pages

13

between itself and nonparty, Travis

14

Giggy, who is represented by the same

15
16

Vu Decl. III, ¶12.

161. Rocket Lawyer has completed its

3

counsel as LegalZoom.
Vu Decl. III, ¶18.

163. LegalZoom chose not to notice

17

depositions for 19 months since they

18

filed this action and 10 months since

19

the discovery stay was lifted.

20
21
22
23
24
25
26
27
28

2

The only subsequent productions Rocket Lawyer anticipates may occur is if it declassifies documents marked as
privileged.

94

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2
3
4
5
6

Vu Decl. II, ECF No. 61, Ex. B, App. A

164. Rocket Lawyer has always

(Baga Declaration).

disclosed state fees multiple times
along the consumer journey for
incorporation and that journey has not
changed substantively since it was first
offered

7
8
9

Dated: August 4, 2014

Respectfully submitted,

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By:

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/s/ Michael T. Jones
Forrest A. Hainline III
[e-mail]
Hong-An Vu (SBN 266268)
[e-mail]
Michael T. Jones (SBN 290660)
[e-mail]
Brian W. Cook (Pro Hac Vice)
[e-mail]
GOODWIN PROCTER LLP

Attorneys for Defendant
ROCKET LAWYER INCORPORATED

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