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)

Download PDF
1 2 3 4 5 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: (510) 451-0544 Facsimile: (510) 832-1486 6 7 Attorneys for Plaintiff PHONEDOG, LLC 8 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA 11 12 PHONEDOG, LLC, a Delaware corporation, 13 14 15 16 17 18 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 19 20 21 22 23 24 25 26 27 28 DECLARATION OF TOM KLEIN ISO OPPOSITION TO MOTION TO DISMISS CASE NO. 11-CV-03474-MEJ 1 I, Tom Klein, declare as follows: 2 1. I am the President of PhoneDog, LLC, the plaintiff in this matter. 3 2. I have reviewed the Declaration of Noah Kravitz ("Kravitz" or "Defendant") in 4 support of Defendant's Motion to Dismiss. I disagree with certain factual assertions made in his 5 declaration. 6 3. I have worked in the Internet publishing industry for over 10 years. The practice of 7 driving Internet users to websites from various mediums is a primary source of revenue and 8 branding for online publishing companies. Advertisers pay for ads placed on the publishers web 9 properties and the revenue generated correlates directly with the amount of traffic a particular 10 website receives. The more traffic a website generates, the greater the advertisement revenue for 11 the publisher. 12 4. A significant source of PhoneDog's income derives from advertisements being 13 sold on its website. The advertisers pay for ad inventory on PhoneDog for every 1000 pageviews 14 (known as the CPM rate) generated from users visiting our site. Because PhoneDog is so reliant 15 on advertising to generate revenue, PhoneDog devotes substantial resources into finding ways to 16 drive Internet users to its website. 17 5. PhoneDog generates pageviews on its website through a variety of social 18 mediums, including YouTube, Facebook and Twitter. Twitter is one of the top sources for routing 19 pageviews to PhoneDog's website. As such, PhoneDog requests that its employees maintain 20 Twitter accounts to use in the scope of their employment with PhoneDog. PhoneDog's 21 representatives tweet links directing users to PhoneDog content via the Twitter accounts in order 22 to generate traffic to the PhoneDog website and in turn, generate advertising revenue for 23 PhoneDog. Specifically with respect to Kravitz, PhoneDog paid for Kravitz to appear in media, 24 including on television, where the Twitter account would be displayed. PhoneDog paid for 25 Kravitz to travel to various locations around the world where the use of the Twitter account was 26 an important tool to promote PhoneDog content. 27 28 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 1 efforts to maintain the secrecy of the passwords to its Twitter accounts by restricting access to 2 and distribution of the passwords generally to only one specific editor who maintains the account. 3 4 5 7. Kravitz provided product reviewer and video blogger services for PhoneDog beginning on or around April 13, 2006. 8. Kravitz agreed to maintain a Twitter account with the name @PhoneDog_Noah 6 (the "Account"). The decision to use the PhoneDog name within the Twitter handle was decided 7 internally and agreed to by Kravitz. PhoneDog and Kravitz agreed that Kravitz's primary use of 8 the Account was to promote PhoneDog utilizing Twitter. Kravitz was to publish content and 9 PhoneDog related activities to the Account in order to drive users to the website. 10 During the time that Kravitz provided services to PhoneDog, the Account generated 11 approximately 17,000 followers (the "Followers"). The Followers were integral in generating 12 traffic to PhoneDog's website. The Followers on the Twitter account were derived from links 13 placed throughout the PhoneDog website, PhoneDog's YouTube page, PhoneDog's Facebook 14 page, PhoneDog's video content, television media appearances, all mediums managed by 15 PhoneDog to promote its properties and editors. In the year and a half that Kravitz provided 16 services to PhoneDog, 17,000 followers on the Twitter account were generated. Since then, only a 17 small percentage of that amount have been added as followers to the Twitter account. 18 9. In Paragraph 12 of Kravitz's declaration, Kravitz states that, after he left 19 PhoneDog, each time PhoneDog requested that he tweet or publish articles and promotions on the 20 Account, he "obliged without hesitate." This assertion by Kravitz is not true. In fact, Kravitz was 21 requested to tweet certain items for PhoneDog and did not respond to multiple requests. It has 22 always been my understanding, which was communicated to Kravitz, that the Account is to be 23 used for the benefit of PhoneDog and Kravitz refusing to tweet or publish articles on the Account 24 promoting PhoneDog is what prompted me to insist that access to the Account be given back to 25 PhoneDog. 26 10. In Paragraph 17 of his declaration, Kravitz states that "in [his] opinion" the 27 Account is worth less than $10,000. I disagree. My valuation of the Account is based on my years 28 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

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?