Elvey v. TD Ameritrade, Inc.

Filing 20

Elvey v. TD Ameritrade, Inc.

Doc. 20

Case 3:07-cv-02852-MJJ

Document 20

Filed 08/22/2007

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MAYER, BROWN, ROWE & MAW LLP LEE H. RUBIN (SBN 141331) SHIRISH GUPTA (SBN 205584) Two Palo Alto Square, Suite 300 Palo Alto, CA 94306 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail]

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ­ SAN FRANCISCO DIVISION MATTHEW ELVEY, an individual, and GADGETWIZ, INC., an Arizona corporation, on their own behalf and on behalf of all others similarly situated, Plaintiffs v. TD AMERITRADE, INC., a New York corporation, and DOES 1 to 100, Defendants. Case No. C-07-2852 MJJ DECLARATION OF LEE H. RUBIN IN SUPPORT OF DEFENDANT TD AMERITRADE INC.'S MOTION FOR EXTENSION OF TIME TO FILE OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION AND MOTION FOR CLASS CERTIFICATION Hon. Martin J. Jenkins Date: September 18, 2007 Time: 9:30 a.m. Location: Courtroom 11, 19th Floor 450 Golden Gate Ave. San Francisco, CA 94102

RUBIN DECLARATION ISO MOTION FOR EXTENSION OF TIME TO FILE OPPOSITION CASE NO. C 07 2852 MJJ Dockets.Justia.com

Case 3:07-cv-02852-MJJ

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Filed 08/22/2007

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1.

I am an attorney admitted to practice in the state of California and before this

Court. I am a partner with the law firm of Mayer, Brown, Rowe & Maw LLP, counsel for Defendant TD Ameritrade, Inc. ("TD AMERITRADE") in the above-titled action. I make this declaration, as required by Civ. L.R. 6-3(a), in support of Defendant TD Ameritrade, Inc.'s Motion For Extension Of Time To File Opposition To Plaintiffs' Motion For Preliminary Injunction And Motion For Class Certification, filed herewith. I make this declaration based on my own personal knowledge, and could and would testify competently hereto. 2. Plaintiffs' filed a motion for preliminary injunction and motion for class

certification on July 10, 2007. 3. Soon thereafter, the Court approved a stipulated extension of the briefing schedule

to give TD AMERITRADE time to consider and respond to the motion. TD AMERITRADE's opposition is currently due on Thursday, August 23, 2007. 4. This past Sunday, August 19, 2007, there was a significant development in TD

AMERITRADE's ongoing internal investigation of possible unauthorized acquisition of customer e-mail addresses from TD Ameritrade's computer systems. 5. TD AMERITRADE is currently in the midst of evaluating the newly discovered

information and intends to confer with its regulators regarding the matter. The results of these efforts may significantly affect the company's arguments in response to Plaintiffs' pending motion. 6. Based on the available information, I believe that 14 additional days will allow

TD AMERITRADE sufficient time to evaluate its recent discoveries, confer with its regulators, and revise its opposition accordingly. 7. TD AMERITRADE's request will require that the remainder of the briefing and

hearing schedule be continued for a two-week period. This extension, however, will not affect the schedule of the initial Case Management Conference, which is currently set for October 16, 2007. 8. According to the First Amended Complaint, Plaintiffs became aware of

spamming events in October 2006, but did not file the original Complaint until May 2007. 1
RUBIN DECLARATION ISO MOTION FOR EXTENSION OF TIME TO FILE OPPOSITION CASE NO. C 07 2852 MJJ

Case 3:07-cv-02852-MJJ

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9.

On the morning of Wednesday, August 22, 2007, I spoke with Ethan Preston,

counsel of record for Plaintiffs. I explained the recent developments and asked if Plaintiffs would stipulate to the extension. In the afternoon of the 22nd, Mr. Preston informed me that Plaintiffs would not consent to the requested extension. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 22nd day of August, 2007, in Palo Alto, California. /s/ Lee H. Rubin Lee H. Rubin

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RUBIN DECLARATION ISO MOTION FOR EXTENSION OF TIME TO FILE OPPOSITION CASE NO. C 07 2852 MJJ