PhoneDog, LLC v. Kravitz

Filing 14

DECLARATION of TOM KLEIN in Opposition to 4 First MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim filed byPhoneDog, LLC. (Related document(s) 4 ) (Kirke, John) (Filed on 8/18/2011)

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JOHN C. KIRKE, #175055
SOPHIA E.C. SCHWARTZ, #272915
DONAHUE GALLAGHER WOODS LLP
Attorneys at Law
1999 Harrison Street, 25th Floor
Oakland, California 94612-3520
P.O. Box 12979
Oakland, California 94604-2979
Telephone:
[phone]
Facsimile:
[phone]

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Attorneys for Plaintiff
PHONEDOG, LLC

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PHONEDOG, LLC, a Delaware
corporation,

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Plaintiff,
v.
NOAH KRAVITZ, an individual,

CASE NO. 3:11-cv-03474-MEJ
DECLARATION OF TOM KLEIN IN
SUPPORT OF PLAINTIFF PHONEDOG,
LLC'S OPPOSITION TO DEFENDANT
NOAH KRAVITZ'S MOTION TO DISMISS
FOR LACK OF SUBJECT MATTER
JURISDICTION AND FAILURE TO
STATE A CLAIM

Defendant.
Date:
Time:
Dept.:
Judge:

September 15, 2011
10:00 a.m.
Courtroom B - 15th Floor
Maria-Elena James

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DECLARATION OF TOM KLEIN ISO OPPOSITION TO MOTION TO DISMISS

CASE NO. 11-CV-03474-MEJ

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I, Tom Klein, declare as follows:

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I am the President of PhoneDog, LLC, the plaintiff in this matter.

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2.

I have reviewed the Declaration of Noah Kravitz ("Kravitz" or "Defendant") in

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support of Defendant's Motion to Dismiss. I disagree with certain factual assertions made in his

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declaration.

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3.

I have worked in the Internet publishing industry for over 10 years. The practice of

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driving Internet users to websites from various mediums is a primary source of revenue and

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branding for online publishing companies. Advertisers pay for ads placed on the publishers web

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properties and the revenue generated correlates directly with the amount of traffic a particular

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website receives. The more traffic a website generates, the greater the advertisement revenue for

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the publisher.

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4.

A significant source of PhoneDog's income derives from advertisements being

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sold on its website. The advertisers pay for ad inventory on PhoneDog for every 1000 pageviews

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(known as the CPM rate) generated from users visiting our site. Because PhoneDog is so reliant

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on advertising to generate revenue, PhoneDog devotes substantial resources into finding ways to

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drive Internet users to its website.

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5.

PhoneDog generates pageviews on its website through a variety of social

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mediums, including YouTube, Facebook and Twitter. Twitter is one of the top sources for routing

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pageviews to PhoneDog's website. As such, PhoneDog requests that its employees maintain

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Twitter accounts to use in the scope of their employment with PhoneDog. PhoneDog's

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representatives tweet links directing users to PhoneDog content via the Twitter accounts in order

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to generate traffic to the PhoneDog website and in turn, generate advertising revenue for

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PhoneDog. Specifically with respect to Kravitz, PhoneDog paid for Kravitz to appear in media,

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including on television, where the Twitter account would be displayed. PhoneDog paid for

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Kravitz to travel to various locations around the world where the use of the Twitter account was

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an important tool to promote PhoneDog content.

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6.

The passwords to PhoneDog's Twitter accounts are not known to individuals

outside of PhoneDog. In order to protect its access to the Twitter accounts, PhoneDog makes
-1DECLARATION OF TOM KLEIN ISO OPPOSITION TO MOTION TO DISMISS

CASE NO.11-CV-03474-MEJ

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efforts to maintain the secrecy of the passwords to its Twitter accounts by restricting access to

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and distribution of the passwords generally to only one specific editor who maintains the account.

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Kravitz provided product reviewer and video blogger services for PhoneDog

beginning on or around April 13, 2006.
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Kravitz agreed to maintain a Twitter account with the name @PhoneDog_Noah

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(the "Account"). The decision to use the PhoneDog name within the Twitter handle was decided

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internally and agreed to by Kravitz. PhoneDog and Kravitz agreed that Kravitz's primary use of

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the Account was to promote PhoneDog utilizing Twitter. Kravitz was to publish content and

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PhoneDog related activities to the Account in order to drive users to the PhoneDog.com website.

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During the time that Kravitz provided services to PhoneDog, the Account generated

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approximately 17,000 followers (the "Followers"). The Followers were integral in generating

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traffic to PhoneDog's website. The Followers on the Twitter account were derived from links

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placed throughout the PhoneDog website, PhoneDog's YouTube page, PhoneDog's Facebook

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page, PhoneDog's video content, television media appearances, all mediums managed by

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PhoneDog to promote its properties and editors. In the year and a half that Kravitz provided

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services to PhoneDog, 17,000 followers on the Twitter account were generated. Since then, only a

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small percentage of that amount have been added as followers to the Twitter account.

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9.

In Paragraph 12 of Kravitz's declaration, Kravitz states that, after he left

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PhoneDog, each time PhoneDog requested that he tweet or publish articles and promotions on the

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Account, he "obliged without hesitate." This assertion by Kravitz is not true. In fact, Kravitz was

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requested to tweet certain items for PhoneDog and did not respond to multiple requests. It has

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always been my understanding, which was communicated to Kravitz, that the Account is to be

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used for the benefit of PhoneDog and Kravitz refusing to tweet or publish articles on the Account

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promoting PhoneDog is what prompted me to insist that access to the Account be given back to

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PhoneDog.

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10.

In Paragraph 17 of his declaration, Kravitz states that "in [his] opinion" the

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Account is worth less than $10,000. I disagree. My valuation of the Account is based on my years

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of experience in the Internet publishing industry and on other methods of valuing Twitter
-2DECLARATION OF TOM KLEIN ISO OPPOSITION TO MOTION TO DISMISS

CASE NO.11-CV-03474-MEJ