Twitter, Inc. v. Skootle Corp. et al

Filing 80

Defendants' ANSWER to Amended Complaint byTroy Fales, James Kester, Skootle Corp.. (Norris, Nicole) (Filed on 12/17/2012)

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COLT / WALLERSTEIN LLP
Doug Colt (Bar No. 210915)
[e-mail]
Thomas E. Wallerstein (Bar No. 232086)
[e-mail]
Nicole M. Norris (Bar No. 222785)
[e-mail]
Shorebreeze II
255 Shoreline Drive, Suite 540
Redwood Shores, California 94065
Telephone:
[phone]
Facsimile:
[phone]

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Attorneys for Defendants

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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TWITTER, INC., a Delaware corporation,

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Plaintiff,

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v.

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SKOOTLE CORP., a Tennessee corporation;
JAMES KESTER, an individual; and TROY
FALES, an individual,

CASE NO. CV 12-1721 SI

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DEFENDANTS’ ANSWER TO FIRST
AMENDED COMPLAINT

Filing Date:
Trial Date:

April 5, 2012
None Set

Defendants.

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DEFENDANTS’ ANSWER TO FIRST AMENDED COMPLAINT
CASE NO. CV 12-1721 SI

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Defendants Skootle Corp (“Skootle”), James Kester (“Mr. Kester”) and Troy Fales (“Mr.

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Fales,” collectively “Defendants”) hereby submit this Answer to the first amended complaint of

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Twitter, Inc. (“Twitter”) for Breach of Contract; Tortious Interference with Contract; Fraud; and

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Unfair or Deceptive Business Practices:

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PRELIMINARY STATEMENT
James Kester is the founder and President of Defendant Skootle Corporation. Skootle sells

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the product referred to in the complaint as “TweetAdder.” Twitter claims to have filed this action to

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fight “spam.” While some individuals, companies or products may abuse Twitter in order to send

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spam, TweetAdder does not. TweetAdder is a product far different from the other third-party

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products that use Twitter to spam unsuspecting users. TweetAdder is a lawful, legitimate program

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that helps businesses and individuals manage their Twitter accounts more efficiently and more

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effectively.

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Traditionally, “spam” refers to the use of electronic messaging systems to send unsolicited

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bulk commercial messages indiscriminately. TweetAdder is not intended to send spam, and in fact, it

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is impossible to send spam using TweetAdder. To the contrary, in order for any Twitter user to

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receive a tweet or direct message that originated from TweetAdder, the Twitter user must have either

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(a) made the decision to follow a TweetAdder user’s twitter profile and therefore elected to read

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tweets from the user; or (b) posted a tweet @[TweetAdder user].

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TweetAdder is a standalone desktop application. By automating certain repetitive and

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mundane tasks, TweetAdder users are able to find Twitter users with similar interests to follow and

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interact with. TweetAdder also allows users to schedule Tweets to be posted throughout the day to

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provide their followers with news, updates, and other information without the need to manually post

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each individual update. This feature is readily available, for example, with TweetDeck (a similar

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program owned by Twitter). For example, a news station or blogger can post an article on its

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website, and TweetAdder can automatically post an excerpt of the article with a link referencing the

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article on twitter.com. This is something the user could have done anyway, but TweetAdder saves

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them the extra time and extra steps. As another example, most celebrities are not able to sit at their

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computer all day and post tweets and manually follow back 1,000 or more Twitter users throughout
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CASE NO. CV 12-1721 SI

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the day. They can hire someone to do it for them, or they can automate the task with TweetAdder.

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This helps them grow their fan base through Twitter and allows their fans to feel they are more

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connected to them.

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Customers of TweetAdder include popular television shows and newspapers, radio stations,

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PR firms, charities, law firms, musicians, celebrities, politicians and political campaigns, city

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chambers of commerce, banks, and numerous other businesses from small startups to Fortune 500

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companies. These customers use TweetAdder to save the time and expense of manually locating and

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following users so they can spend more time engaging with the Twitter users that want to hear what

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they have to say and stay connected with them. Many tasks that TweetAdder performs can already

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be performed manually by the end user. TweetAdder simply makes it easier with added search

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capabilities.

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Skootle has created TweetAdder in a way that makes it a useful and legitimate tool. Skootle

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specifically elected to exclude certain features from TweetAdder that would otherwise allow users to

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abuse Twitter. Without these features, it would be exceedingly difficult to use TweetAdder for

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illegitimate and malicious purposes. Those excluded features include:

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a. Account creation. TweetAdder clients have no ability to create multiple profiles
automatically. They must create their profiles manually with Twitter.
b. Bulk profile editing. TweetAdder users must create and edit each profile they enter
into the program manually.
c. Mass importing accounts. TweetAdder users must input each twitter profile

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manually. They cannot upload a list of multiple profiles into the program.

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d. Duplication of account settings. TweetAdder users must open each profile in

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TweetAdder one by one and manually set each profile setting for that particular

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profile. They cannot simply copy over settings to their remaining profiles.

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e. Following the same user on multiple accounts. TweetAdder does not permit a user
to follow another user from multiple accounts.

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f. @Replies based on user keywords. TweetAdder allows a user to send an “@reply”

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only on the condition that another Twitter user mentioned them in an @reply, such
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CASE NO. CV 12-1721 SI

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as a “thank you for mentioning me.” TweetAdder does not allow its users to

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indiscriminately send @replies to Twitter users who have not already mentioned

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them.
g. Automatic conversion of keywords to hashtags. TweetAdder does not permit users

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to automatically convert keywords to hashtags.

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ANSWER TO TWITTER’S FIRST AMENDED COMPLAINT

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II.

INTRODUCTION
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Defendants are without knowledge or information sufficient to form a belief as to the

truth of the allegations in ¶ 1 and therefore deny them.
2.

Defendants admit that Twitter brought this action against them. To the extent any

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further allegations in ¶ 2 relate to Defendants, Defendants deny each and every other allegation

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and/or implication of wrongdoing.

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Defendants admit that Skootle distributes a software tool called “TweetAdder” but

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deny all other allegations and/or implications of wrongdoing.

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III. THE PARTIES

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4.

Defendants are without knowledge or information sufficient to form a belief as to the

truth of the allegations in ¶ 4 and therefore deny them.
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Defendants admit that Skootle is a corporation incorporated in Tennessee, with its

principal place of business in the State of Virginia, doing business in the State of California.
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Defendants admit that Mr. Kester is a resident of the State of Virginia but deny that

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Mr. Kester individually conducts business in California. Defendants admit that Mr. Kester is the

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principal officer of Skootle.

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Defendants admit that Mr. Fales is a resident of the State of North Carolina but deny

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that Mr. Fales individually conducts business in California. Defendants deny each and every other

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allegation.

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Defendants admit that Twitter refers to Skootle, Mr. Kester, and Mr. Fales collectively

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as “TweetAdder” in its First Amended Complaint, however Defendants deny that such collective

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reference is appropriate.
-3DEFENDANTS’ ANSWER TO FIRST AMENDED COMPLAINT
CASE NO. CV 12-1721 SI

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IV.

JURISDICTION AND VENUE

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Defendants do not contest this Court’s diversity jurisdiction.

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Defendants deny that either Mr. Kester or Mr. Fales are subject to personal jurisdiction

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in this jurisdiction. Otherwise, Defendants do not contest that venue is proper in this District under

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28 U.S.C. § 1391 (b)(2).

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V.

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INTRADISTRICT ASSIGNMENT
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Defendants are without knowledge or information sufficient to form a belief as to the

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truth of the allegations in ¶ 11 and therefore deny them.

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VI.

GENERAL ALLEGATIONS

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A. Twitter’s Service

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Defendants admit Twitter is an online communications platform that lets users share

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and receive information in real-time through short messages called “tweets,” which have a maximum

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length of 140 characters. Defendants admit the Twitter service is free of charge. As to the remaining

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allegations in ¶ 12, Defendants are without sufficient knowledge to form a belief and therefore deny

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them.

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Defendants admit this is an accurate reflection of how Twitter may be used.

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Defendants admit this is an accurate reflection of how Twitter may be used, with the

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clarification that a direct message may only be received by a user who is a follower.

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Defendants admit this is an accurate reflection of how Twitter may be used.

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B. “Spam” on Twitter

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Defendants admit that certain uses of Twitter are beneficial for businesses and that, as

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a result, companies of every size now use Twitter to connect with customers, including driving new

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businesses, offering discounts and deals, and providing customer service. Defendants are without

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knowledge or information sufficient to form a belief as to the special efforts taken by Twitter, and

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therefore deny that allegation.

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17.

Defendants admit that many legitimate companies have grown their businesses

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through Twitter. Defendants are without knowledge or information sufficient to form a belief as to

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the truth of the remaining allegations in ¶ 17 and therefore deny them.
-4DEFENDANTS’ ANSWER TO FIRST AMENDED COMPLAINT
CASE NO. CV 12-1721 SI

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18.

Defendants are without knowledge or information sufficient to form a belief as to the

truth of the allegations in ¶ 18 and therefore deny them.
19.

Defendants are without knowledge or information sufficient to form a belief as to the

truth of the allegations in ¶ 19 and therefore deny them.
20.

Defendants admit that Twitter attempts to limit the number of Tweets and direct

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messages an account can send per day and the number of users an account can follow. Otherwise,

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Defendants are without knowledge or information sufficient to form a belief as to the truth of the

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remaining allegations in ¶ 20 and therefore deny them.

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21.

Defendants are without knowledge or information sufficient to form a belief as to the

truth of the allegations in ¶ 21 and therefore deny them.
22.

To the extent any allegations in ¶ 22 relate to Defendants, Defendants deny each and

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every allegation and/or implication of wrongdoing. To the extent the allegations in ¶ 22 relate to

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software offered by any other person or entity, Defendants are without knowledge or information

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sufficient to form a belief as to the truth of the allegations and therefore deny them.

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23.

To the extent any allegations in ¶ 23 relate to Defendants, Defendants deny each and

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every allegation and/or implication of wrongdoing. To the extent the allegations in ¶ 23 relate to

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other unidentified “spammers” or “makers of spam software,” Defendants are without knowledge or

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information sufficient to form a belief as to the truth of the allegations and therefore deny them.

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C. Twitter’s User Agreement

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Defendants admit that in order to create a Twitter account, a would-be Twitter user

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must first agree to be bound by Twitter’s user agreement, which comprises the Twitter Terms of

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Service (“Terms”), the Twitter Rules, and Twitter’s Privacy Policy (collectively the “TOS”).

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Defendants deny that a Twitter account is necessary to access Twitter and use many of Twitter’s

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services. Defendants are without knowledge or information sufficient to form a belief as to the truth

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of the remaining allegations in ¶ 24 and therefore deny them.

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Defendants deny that by accessing or using Twitter’s websites and services a user

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agrees to be bound by the TOS. Defendants are without knowledge or information sufficient to form

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a belief as to the truth of the remaining allegations in ¶ 25 and therefore deny them.
-5DEFENDANTS’ ANSWER TO FIRST AMENDED COMPLAINT
CASE NO. CV 12-1721 SI

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26.

Defendants admit the terms of Twitter’s TOS and Twitter Rules speak for themselves.

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Defendants are without knowledge or information sufficient to form a belief as to the truth of the

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remaining allegations in ¶ 26 and therefore deny them.

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Defendants admit the terms of Twitter’s TOS and Twitter Rules speak for themselves.

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Defendants are without knowledge or information sufficient to form a belief as to the truth of the

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remaining allegations in ¶ 27 and therefore deny them.

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Defendants admit the terms of Twitter’s TOS and Twitter Rules speak for themselves.

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Defendants are without knowledge or information sufficient to form a belief as to the truth of the

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remaining allegations in ¶ 28 and therefore deny them.

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29.

Defendants admit to opening a Twitter account in 2009 and to agreeing to the TOS in

place at that time. Defendants deny all remaining allegations and/or implications of wrongdoing.

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D. TweetAdder

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30.

Defendants admit that Mr. Kester is the founder and President of Skootle, which owns

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and operates a website available at www.tweetadder.com. Defendants further admit that Skootle sells

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and services a product called “TweetAdder.” Defendants further admit that Skootle customers may

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purchase TweetAdder for more than one account. Defendants deny the remaining allegations in ¶ 30.

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31.

To the extent any allegations in ¶ 31 relate to Defendants, Defendants deny all

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allegations and/or implications of wrongdoing. Defendants are without knowledge or information

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sufficient to form a belief as to the truth of the remaining allegations in ¶ 31 and therefore deny them.

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32.

The allegations in this paragraph assert legal conclusions to which no response is

required and on that basis Defendants deny them.
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Defendants admit that Mr. Fales wrote the source code for the TweetAdder software.

Defendants deny all remaining allegations in ¶ 33.
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Defendants admit that the TweetAdder website states that licensees can “get more

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followers, instantly;” “use our program on an unlimited number of Twitter profiles with TweetAdder

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Platinum;” and “works your Twitter profile or profiles like a human being.” Defendants deny the

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remaining allegations in ¶ 34.

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-6DEFENDANTS’ ANSWER TO FIRST AMENDED COMPLAINT
CASE NO. CV 12-1721 SI

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35.

The allegations in this paragraph assert legal conclusions to which no response is

required and on that basis Defendants deny them.
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Defendants admit that at one time the TweetAdder website stated that licensees can

use TweetAdder without using Twitter’s “API.” Defendants deny the remaining allegations in ¶ 36.
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The allegations in this paragraph assert legal conclusions to which no response is

required and on that basis Defendants deny them.
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The allegations in this paragraph assert legal conclusions to which no response is

required and on that basis Defendants deny them.

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FIRST CLAIM FOR RELIEF

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Breach of Contract

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Defendants incorporate by reference each and every response contained in paragraphs

1 through 38.

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Defendants deny all allegations and/or implications of wrongdoing.

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41.

Defendants are without knowledge or information sufficient to form a belief as to the

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truth of the allegations in ¶ 41 and therefore deny them.

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42.

Defendants deny all allegations and/or implications of wrongdoing.

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43.

Denied.

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SECOND CLAIM FOR RELIEF

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Tortious Interference with Contract

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Defendants incorporate by reference each and every response contained in paragraphs

1 through 43.
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Defendants are without knowledge or information sufficient to form a belief as to the

truth of the allegations in ¶ 45 and therefore deny them.
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To the extent any allegations in ¶ 46 relate to Defendants, Defendants deny all

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allegations and/or implications of wrongdoing. To the extent the allegations in ¶ 46 relate to Twitter,

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Defendants are without knowledge or information sufficient to form a belief as to the truth of the

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allegations and therefore deny them.

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-7DEFENDANTS’ ANSWER TO FIRST AMENDED COMPLAINT
CASE NO. CV 12-1721 SI

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47.

Defendants admit they are aware Twitter has a TOS. Defendants deny all allegations

and/or implications of wrongdoing in ¶ 47.

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48.

Denied.

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Denied.

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Denied.

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51.

Denied.

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THIRD CLAIM FOR RELIEF

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Fraud

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52.

Defendants incorporate by reference each and every response contained in paragraphs

1 through 51.
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Defendants admit to having opened a Twitter account in 2009 and to agreeing to the

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TOS in place at that time. Defendants deny all remaining allegations and/or implications of

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wrongdoing in ¶ 53.

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54.

Denied.

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55.

Denied.

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56.

Denied.

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FOURTH CLAIM FOR RELIEF

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Unlawful, Unfair, and Fraudulent Business Practices Under California Business & Professions
Code § 17200, et seq.

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57.

Defendants incorporate by reference each and every response contained in paragraphs

1 through 56.

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58.

Denied.

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59.

To the extent any allegations in ¶ 59 relate to Defendants, Defendants deny all

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allegations and/or implications of wrongdoing. To the extent the allegations in ¶ 59 relate to Twitter,

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Defendants are without knowledge or information sufficient to form a belief as to the truth of the

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allegations and therefore deny them.

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60.

Denied.

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61.

Denied.
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CASE NO. CV 12-1721 SI

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62.

Defendants deny any and all allegations of the complaint that they have not expressly

admitted or qualified.
RESPONSE TO PRAYER FOR RELIEF

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Defendants deny that Twitter is entitled to any of the relief requested in its Prayer for Relief,
or any other relief.
AFFIRMATIVE DEFENSES

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In addition to the defenses described below, Defendants expressly reserve the right to allege

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additional defenses as they become known during the course of discovery. In asserting any or all of

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these defenses, Defendants do not concede that they bear the burden of establishing any fact or

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proposition on any issue.
AFFIRMATIVE DEFENSE 1

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63.

FAILURE TO STATE A CLAIM – Defendants assert that the complaint fails to state

a claim against Defendants upon which relief can be granted.
AFFIRMATIVE DEFENSE 2

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64.

do not breach the TOS.
AFFIRMATIVE DEFENSE 3

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NON-BREACHING USES – Defendants assert that TweetAdder offers features that

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NON-BREACH – Defendants assert they did not breach and have not breached

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(directly, indirectly, contributorily, or by inducement) any contracts alleged in the complaint. In fact,

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Defendants assert that the TOS alleged in the complaint contains terms in addition to and different

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from the terms of the TOS in place in 2009.
AFFIRMATIVE DEFENSE 4

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66.

thereof, are barred by the doctrine of accord and satisfaction.
AFFIRMATIVE DEFENSE 5

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ACCORD AND SATISFACTION – Defendants assert that Twitter’s claims, or parts

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PERFORMANCE – Defendants assert that they discharged each and every obligation,

if any, which they may have owed to Twitter.

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-9DEFENDANTS’ ANSWER TO FIRST AMENDED COMPLAINT
CASE NO. CV 12-1721 SI

AFFIRMATIVE DEFENSE 6

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68.

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SUBSTANTIAL COMPLIANCE – Defendants assert that Twitter’s claims against

Defendants are barred by the doctrine of substantial compliance.
AFFIRMATIVE DEFENSE 7

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ECONOMIC LOSS RULE – Defendants assert that Twitter’s claims are barred by the

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economic loss rule.
AFFIRMATIVE DEFENSE 8

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70.

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JUST CAUSE – Defendants assert that the actions taken of which Twitter complains

were taken with just cause and were not in violation of any federal or state statute.
AFFIRMATIVE DEFENSE 9

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71.

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LACHES – Defendants assert that Twitter’s claims are barred by the doctrine of

laches.
AFFIRMATIVE DEFENSE 10

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72.

ESTOPPEL – Defendants assert that Twitter’s claims are barred by the doctrine of

estoppel.
AFFIRMATIVE DEFENSE 11

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73.

FAILURE TO DO EQUITY – Defendants assert that no relief may be obtained under

the complaint by reason of Twitter’s failure to do equity in the matters alleged in the complaint.
AFFIRMATIVE DEFENSE 12

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74.

failure to mitigate damages.
AFFIRMATIVE DEFENSE 13

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FAILURE TO MITIGATE – Defendants assert that Twitter’s claims are barred for

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MERITLESS CLAIM(S) – Defendants assert that Twitter’s complaint and the

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cause(s) of action alleged therein is frivolous and brought and maintained in bad faith and without

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reasonable cause, is totally and completely without merit, and was brought for the sole purpose of

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harassing Defendants and that Defendants are entitled to recover reasonable expenses, including

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attorneys’ fees, from Twitter and its counsel.

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CASE NO. CV 12-1721 SI

AFFIRMATIVE DEFENSE 14

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76.

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RATIFICATION – Defendants assert that they did not ratify or approve any wrongful

conduct.
AFFIRMATIVE DEFENSE 15

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77.

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WAIVER – Defendants assert that Twitter’s claims are barred by the doctrine of

waiver.
AFFIRMATIVE DEFENSE 16

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78.

UNCLEAN HANDS - Defendants assert that Twitter’s claims are barred by the

doctrine of unclean hands.
AFFIRMATIVE DEFENSE 17

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79.

FIRST AMENDMENT – Defendants assert that the actions taken by Kester, Skootle

or Skootle’s customers are protected by the First Amendment.
JURY TRIAL DEMANDED

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Defendants hereby demand a trial by jury as to all issues so triable in this action.

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Date: December 17, 2012

COLT / WALLERSTEIN LLP

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By:_______________________________
Doug Colt
Thomas E. Wallerstein
Nicole M. Norris
Attorneys for Defendants

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CASE NO. CV 12-1721 SI