PhoneDog, LLC v. Kravitz
Filing
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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:
(510) 451-0544
Facsimile:
(510) 832-1486
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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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1.
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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7.
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
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