Entrepreneur Media Inc v. Rieva Lesonsky et al

Filing 36

DECLARATION of Mark Tavarozzi in Support of MOTION for Preliminary Injunction re: TO STOP DEFENDANTS RIEVA LESONSKY, MARIA ANTON AND ALLBUSINESS.COM, INC. FROM MISAPPROPRIATING ENTREPRENEUR MEDIA, INC.'S TRADE SECRETS AND UNLAWFULLY USING ENTREPRENEUR MEDIA, INC.'S WEBSITE DATA 18 filed by Plaintiff Entrepreneur Media Inc. (Barry, Jennifer)

1 LATHAM & WATKINS LLP
Mark A. Finkelstein (Bar No. 173851)
2 [e-mail]
Mark D. Kachner (Bar No. 234192)
3 [e-mail]
650 Town Center Drive, 20th Floor
4 Costa Mesa, California 92626-1925
Telephone: [phone]
5 Facsimile: [phone]
6 LATHAM & WATKINS LLP
Jennifer L. Barry (Bar No. 228066)
7 [e-mail]
600 West Broadway, Suite 1800
8 San Diego, California 92101-3375
Telephone: [phone]
9 Facsimile: [phone]
10 Attorneys for Plaintiff
ENTREPRENEUR MEDIA, INC.
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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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15 ENTREPRENEUR MEDIA, INC., a
California corporation,
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Plaintiff,
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vs.
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RIEVA LESONSKY d/b/a SMB
19 CONNECTS, an individual, MARIA
ANTON, an individual,
20 ALLBUSINESS.COM, INC., a
California corporation, and DOES 1
21 through 10, inclusive,

CASE NO. SACV 08-1066 DOC (ANx)
DECLARATION OF MARK
TAVAROZZI IN SUPPORT OF
PLAINTIFF ENTREPRENEUR MEDIA
INC.’S MOTION FOR PRELIMINARY
INJUNCTION

Defendants.

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OC\981391.1
ATTORNEYS AT LAW
ORANGE COUNTY

CASE NO. SACV 08-1066 DOC (ANx)
DECLARATION OF M. TAVAROZZI ISO PLAINTIFF’S
MOTION FOR PRELIMINARY INJUNCTION

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I, Mark Tavarozzi, hereby declare as follows:

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1.

I am, and have been since January 28, 1998, an employee of

3 Entrepreneur Media, Inc. (“EMI”), and am currently EMI’s Vice President of
4 Consumer Marketing. I have personal knowledge of the matters set forth in this
5 Declaration and, if called upon to do so, could and would testify competently
6 thereto.
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2.

In the course of its business as a publisher of print and online

8 publications and other information about and of interest to small and midsized
9 businesses and entrepreneurs, EMI accumulates and maintains proprietary and
10 confidential databases, including databases of its various customers and EMI’s
11 database of franchise information used in its annual Franchise 500® ranking (the
12 “Franchise 500® Database”).
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3.
During the entire period of my employment with EMI, I have been in
14 charge of supervising the “renting” of EMI’s various databases (collectively, the
15 “EMI Lists”), and in particular the names, postal and/or email addresses and other
16 contact information of the persons or companies identified therein (collectively, the
17 “End Users”), for a fee to third-party marketers wishing to send their marketing
18 and other promotional materials to those End Users.
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4.
All EMI list rentals are handled through a single and exclusive
20 authorized list manager, with which EMI has contracted. In response to a third21 party request to rent a specific EMI List or portion thereof, the list manager will
22 require that the marketer first sign and hence agree to the terms set forth in the list
23 manager’s list rental agreement and that EMI first approve the request, which
24 includes approval of the marketer involved and the specific marketing materials to
25 be sent. A true and correct copy of the list rental agreement, which EMI’s list
26 manager, Worldata Infocenter, Inc., requires that all marketers sign, is attached and
27 incorporated by reference as Exhibit A. Once the list rental agreement is signed
28 and the rental request approved by EMI, the list manager will forward the EMI List
OC\981391.1
ATTORNEYS AT LAW
ORANGE COUNTY

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CASE NO. SACV 08-1066 DOC (ANx)
DECLARATION OF M. TAVAROZZI ISO PLAINTIFF’S
MOTION FOR PRELIMINARY INJUNCTION

1 or requested portion thereof to an independent and bonded mailing house, which
2 will mail the approved marketer’s particular marketing materials to the End Users
3 identified in that list on a one-time basis only (absent EMI’s prior approval of any
4 multiple use). Under the above procedure, the approved marketer does not have
5 possession of nor see the information contained in the EMI List being rented and,
6 after the mailing has been completed, the mailing house is supposed to scrub or
7 otherwise destroy the EMI List.
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5.

In the past the Franchise 500® Database has been made available for

9 rental through our list manager, but only for the purpose of allowing approved
10 marketers to send their marketing materials to the franchises listed in that database.
11 It is my understanding, and I have been assured by our list manager, that the only
12 information in the Franchise 500® Database made available for use by marketers is
13 the same contact information concerning the franchisors that is published in EMI’s
14 magazine and/or online website, namely, the name and address of the company and
15 contact person (“Contact Information”); that no other information in the Franchise
16 500® Database is made available to any third party through this list rental process;
17 and that, as indicated in paragraph 4 above, even the Contact Information is never
18 shared with, nor made available to, the marketer.
6.

19

NextMark is an online datacard library, which allows marketers to

20 search for lists they may wish to rent. NextMark does not have possession of, nor
21 sell, rent or otherwise make available to third parties, any EMI Lists and in
22 particular the Franchise 500® Database. Rather, NextMark simply forwards third23 party requests for specific lists identified in its datacard library to the list managers
24 of those lists, which, in the case of a request to rent an EMI List, would be
25 Worldata.
I declare under penalty of perjury under the laws of the United States

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27 of America that the foregoing is true and correct and that this declaration was
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OC\981391.1
ATTORNEYS AT LAW
ORANGE COUNTY

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CASE NO. SACV 08-1066 DOC (ANx)
DECLARATION OF M. TAVAROZZI ISO PLAINTIFF’S
MOTION FOR PRELIMINARY INJUNCTION

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OC\981391.1
ATTORNEYS AT LAW
ORANGE COUNTY

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CASE NO. SACV 08-1066 DOC (ANx)
DECLARATION OF M. TAVAROZZI ISO PLAINTIFF’S
MOTION FOR PRELIMINARY INJUNCTION

EXHIBIT A

LIST RENTAL AGREEMENT
This Agreement dated as of _______________________, 2008 (the “Effective Date”),
shall have a term commencing on the Effective Date and ending 12- months thereafter
day of _____________,2009
between_______________________ (hereinafter called LIST OWNER) and
_______________________________ (hereinafter called MAILER):
1. In consideration of the mutual covenants hereinafter contained, it is agreed as follows:
LIST OWNER hereby agrees to rent____________________ (hereinafter called the
“List”) to the MAILER for one time mailing only. The MAILER hereby covenants and
agrees that he (it) will not transfer, duplicate, reproduce, or retain all or any portion of
the List in any form whatsoever, nor permit any third party, agent, employee, or
contractor and their agents and employees to do so.
2. MAILER acknowledges that:
a. The List shall at all times remain the sole property of the LIST OWNER;
b. The List is unique and cannot be readily complied from materials generally
available to the general public.
3. MAILER agrees not to disclose the list source or identify LIST OWNER in its mailing or
other materials or in any other way. The parties agree that in the event of a breach of
the provisions of this paragraph it will be impossible to ascertain definitively, the
damage which may be sustained by LIST OWNER by reason thereof and accordingly
and without prejudice to the LIST OWNER’S right to equitable relief, MAILER agrees
to pay to LIST OWNER, as liquidated damages, an amount equal to ten times the
rental price for the list transaction involved for each such breach.

4. The one-time use of the List shall be limited solely and exclusively to the agreed
specific merchandise or service as offered and as described in the complete mailing
sample attached hereto, or submitted in connection with this agreement, which sample
must be approved by LIST OWNER prior to use of the List. MAILER agrees that no
telephone solicitation to, or telephone follow up of the List will be made or permitted,
except in the instance of those individuals who respond to the MAILER’S offer made
on the one-time mailing.

5. MAILER agrees to indemnify and hold harmless LIST OWNER from any and all
claims, damages, losses or expense, however incurred, occasioned by the use of the
List contrary to the provisions of this Agreement by MAILER or any of those referred to
above.
6. It is understood and agreed that the List has been and will be monitored to prevent
improper and unauthorized use of the List, by a combination of one or more methods
of computer control and/or planted and/or varied names and addresses, or
combinations of these and others to all which MAILER consents and agrees.
7. Orders must be cancelled in writing at least five (5) days prior to cleared mail date.
Orders cancelled after that period must be paid in full. Running charges must be paid
if labels or tape was produced for a cancelled order.
8. MAILER guarantees full payment to LIST OWNER or its authorized agent on all list
rentals of the List no later than 30 days after date of mailing or each List rented
pursuant to this Agreement.
9. This Agreement shall be effective with respect to each rental of the List made to
MAILER by LIST OWNER for a period of one year from date of this Agreement.
10. In the event of a breach or threatened breach of paragraphs 1, 3, and 4 of this
Agreement, LIST OWNER, in addition to any other remedies it may have, shall have
the right to equitable relief including an injunction restraining MAILER from breaching
or further breaching such provisions, without a showing or proving any actual
pecuniary damages sustained.
MAILER:

LIST OWNER:

Print Name______________________

Print Name_____________________

Title_________________________

Title___________________________

Company _____________________

Signature ______________________

Address______________________

Date____________________

_____________________________
Phone _______________________
Email ________________________
Signature_____________________
Date_______________