Twitter, Inc. v. Skootle Corp. et al

Filing 84

CASE MANAGEMENT STATEMENT Further Joint Case Management Statement filed by Twitter, Inc.. (Graves, Charles) (Filed on 2/26/2013)

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1 2 3 4 5 DAVID H. KRAMER, SBN 168452 CHARLES T. GRAVES, SBN 197923 RIANA S. PFEFFERKORN, SBN 266817 WILSON SONSINI GOODRICH & ROSATI Professional Corporation 650 Page Mill Road Palo Alto, CA 94304-1050 Telephone: (650) 493-9300 Facsimile: (650) 565-5100 Email: 6 7 8 9 10 11 12 13 14 Attorneys for Plaintiff TWITTER, INC. DOUG COLT, SBN 210915 THOMAS E. WALLERSTEIN, SBN 232086 NICOLE M. NORRIS, SBN 222785 COLT / WALLERSTEIN LLP Shorebreeze II 255 Shoreline Drive, Suite 540 Redwood Shores, CA 94065 Telephone: (650) 453-1980 Facsimile: (650) 453-2411 Attorneys for Defendants SKOOTLE CORP., JAMES KESTER, and TROY FALES 15 UNITED STATES DISTRICT COURT 16 NORTHERN DISTRICT OF CALIFORNIA 17 SAN FRANCISCO DIVISION 18 19 TWITTER, INC., a Delaware corporation, 20 21 22 23 24 Plaintiff, Case No. 3:12-cv-1721 JST FURTHER JOINT CASE MANAGEMENT STATEMENT v. SKOOTLE CORP., a Tennessee corporation; JAMES KESTER, an individual; and TROY FALES, an individual, Defendants. 25 26 27 28 FURTHER JOINT CASE MANAGEMENT STATEMENT Case No. 3:12-cv-1721-JST Date: Time: Place: Judge: TBD TBD Courtroom 9 Hon. Jon S. Tigar 1 The parties to the above-entitled action jointly submit this FURTHER JOINT CASE 2 MANAGEMENT STATEMENT pursuant to the Court’s Order dated February 11, 2013. 3 (Docket No. 83). 4 1. 5 Date of Case Filing The original Complaint was filed on April 5, 2012 against defendants Skootle Corp. and 6 James Kester, among others. (Docket No. 1). By leave of Court, Plaintiff filed its First 7 Amended Complaint on November 19, 2012 to which Twitter added defendant Troy Fales. 8 (Docket Nos. 68, 69, 74, 76). 9 2. The Parties 10 Plaintiff: Plaintiff Twitter, Inc. (“Twitter”) is a Delaware corporation with its principal 11 place of business in San Francisco, California. Twitter runs an eponymous online real-time 12 communications platform through which users share and receive information via short messages 13 called “Tweets.” 14 Defendants: Defendant Skootle Corporation (“Skootle”) is a corporation incorporated in 15 Tennessee, with its principal place of business in Richmond, Virginia. Defendant James Kester 16 (“Kester”) is an individual residing in Virginia and the principal officer of Skootle. Defendant 17 Troy Fales (“Fales”) is an individual residing in North Carolina and a contractor for Skootle. 18 3. Claims 19 Plaintiff’s Amended Complaint asserts claims for (1) breach of contract, (2) tortious 20 interference with contract, (3) fraud, and (4) unfair or deceptive business practices under Cal. 21 Bus. & Prof. Code § 17200. (Docket No. 76). 22 4. Events Underlying the Action 23 Plaintiff’s Statement: 24 Twitter operates a popular online communications platform, well-known for the short, 25 140-character “Tweets” that Twitter users post for others to read and follow. Twitter brought 26 this lawsuit in order to combat unwanted messages known as “spam” on its platform. 27 Defendants offer a software product to Twitter users called TweetAdder, which does not comply 28 -1FURTHER JOINT CASE MANAGEMENT STATEMENT Case No. 3:12-cv-1721-JST 1 with Twitter’s rules for third party software developers, and which is designed to enable spam 2 messages on Twitter’s service – generally mass advertising messages generated through 3 automated means and sent in bulk to Twitter users. Whether or not the businesses which send 4 these messages are legitimate businesses in and of themselves, Defendants do not have a right to 5 enable their disruption of Twitter’s user experience. 6 It is undisputed that Defendants’ TweetAdder product does not use Twitter’s required 7 authentication protocol for user password security. It is likewise undisputed that Defendants’ 8 TweetAdder product contains numerous features that are prohibited by Twitter’s Terms of 9 Service. Unlike many other third party developers who successfully market software products 10 that comply with Twitter’s Terms of Service, Defendants have refused to comply with Twitter’s 11 rules so that they can make money from spammers. 12 Twitter therefore alleges that Defendants violate Twitter’s Terms of Service, interfere 13 with Twitter’s agreements with its users, engage in deceitful marketing, and damage Twitter by 14 marketing the TweetAdder software. Twitter has expended a great amount of time, money, and 15 resources to combat the problems caused by Defendants. 16 Twitter’s rules, which all third party developers building businesses on the Twitter platform are 17 required to follow. Defendants could have modified their software to conform to Twitter’s 18 Terms of Service, but they refuse to do so. Defendants refuse to abide by 19 Defendants’ Statement: 20 James Kester is the owner and founder of defendant Skootle Corp, which licenses a 21 software program that enables businesses and other Twitter users to automate their use of Twitter 22 to promote and advance legitimate business, social, and branding objectives. 23 Despite Twitter’s contentions, TweetAdder is not “spamware.” TweetAdder is a useful 24 tool for legitimate businesses and individuals that can be used to automate certain repetitive, 25 mundane, and time-consuming tasks that are otherwise permitted by Twitter. Customers of 26 TweetAdder include popular television shows and newspapers, radio stations, PR firms, 27 charities, law firms, musicians, celebrities, politicians and political campaigns, city chambers of 28 -2FURTHER JOINT CASE MANAGEMENT STATEMENT Case No. 3:12-cv-1721-JST 1 commerce, banks, and numerous other businesses from small startups to Fortune 500 companies. 2 These customers use TweetAdder to save the time and expense of manually locating and 3 following users so they can spend more time engaging with the Twitter users that want to hear 4 what they have to say and stay connected with them. 5 Many tasks that TweetAdder performs can already be performed manually by the end 6 user. TweetAdder simply makes it easier with added search capabilities. Defendants 7 specifically elected to exclude certain features from TweetAdder that would otherwise allow 8 users to abuse Twitter. Without these features, it would be exceedingly difficult to use 9 TweetAdder for illegitimate and malicious purposes. These excluded features include: 10  11 12 automatically. They must create their profiles manually with Twitter.  13 14 Bulk profile editing - TweetAdder users must create and edit each profile they enter into the program manually.  15 16 Account creation - TweetAdder clients have no ability to create multiple profiles Mass importing accounts - TweetAdder users must input each Twitter profile manually. They cannot upload a list of multiple profiles into the program.  Duplication of account settings - TweetAdder users must open each profile in 17 TweetAdder one by one and manually set each profile setting for that particular 18 profile. They cannot simply copy over settings to their remaining profiles. 19  Following the same user on multiple accounts - TweetAdder does not provide an 20 automated method to follow the same user with multiple accounts. Each 21 TweetAdder account is managed independently of each other account. 22  @Replies based on user keywords - TweetAdder allows a user to send an 23 “@reply” only on the condition that another Twitter user mentioned them in an 24 @reply, such as a “thank you for mentioning me.” TweetAdder does not allow its 25 users to indiscriminately send @replies to Twitter users who have not already 26 mentioned them. 27 28 -3FURTHER JOINT CASE MANAGEMENT STATEMENT Case No. 3:12-cv-1721-JST  1 Automatic conversion of keywords to hash-tags - TweetAdder does not permit 2 users to automatically convert keywords to hash-tags. TweetAdder specifically 3 seeks to exclude certain features from TweetAdder that would otherwise allow 4 users to abuse Twitter in the way now claimed. Specifically, TweetAdder clients 5 cannot: 6 Defendants and the TweetAdder software abide by all terms of the TOS into which they 7 entered with Twitter. TweetAdder does not “spam” other Twitter users as that term is used in 8 Twitter’s Terms of Service attached to its Complaint. Furthermore, TweetAdder accesses the 9 Twitter service through Twitter’s own currently available, published services that are provided 10 by Twitter. On more than one occasion prior to filing this lawsuit, Defendants have worked with 11 Twitter to address any concerns Twitter had about TweetAdder users abusing the software and 12 engaging in frowned-upon behavior, including committing to changes requested by Twitter, 13 blocking abusing users, and modifying the TweetAdder software to remove features so requested 14 by Twitter. 15 5. Relief Sought and Damages Claimed 16 Plaintiff’s Statement: 17 Twitter seeks injunctive relief and specific performance against the Defendants, enjoining 18 and restraining their ongoing violations of the Twitter TOS, from engaging in their unlawful and 19 deceptive practices, and from offering or supporting any version of the TweetAdder software 20 containing any features that violate the TOS. Twitter also seeks to recover compensatory and 21 statutory damages, including restitution and disgorgement of profits. In addition, Twitter is 22 seeking exemplary and punitive damages and attorneys’ fees and costs. 23 Defendants’ Statement: 24 Defendants seek no affirmative relief other than the declination of the Court to grant 25 Twitter its requested relief. Defendants reserve the right to supplement this response, if and 26 when, they make a damages claim. 27 28 -4FURTHER JOINT CASE MANAGEMENT STATEMENT Case No. 3:12-cv-1721-JST 1 6. Discovery Status 2 Discovery is ongoing and is subject to the parties’ stipulated protective order. (Docket 3 No. 61). Pursuant to the Court’s Order, non-expert fact discovery closes on April 1, 2013, and 4 expert discovery closes on May 9, 2013. (Docket No. 82). The parties have both engaged in 5 written discovery, have produced documents, and are proceeding with depositions. 6 7. Procedural Background 7 The instant case was originally assigned to Magistrate Judge Laurel Beeler, but was later 8 reassigned to Judge Susan Illston after Defendants Kester and Skootle declined to proceed before 9 a magistrate. (Docket Nos. 1, 31, 32, 35, 37). 10 In its original Complaint, Plaintiff named as defendants Skootle and Kester, as well as 11 five other defendants who have since been dismissed by Plaintiff or severed by the Court.1 12 (Docket Nos. 1, 41, 42, 43, 46, 49, 45, 54). Before his severance from the action, former 13 defendant Harris moved to dismiss the Complaint against him on various grounds, including lack 14 of personal jurisdiction. The Court denied the motion, upholding the forum selection clause in 15 Plaintiff’s TOS.2 (Docket Nos. 23, 36, 44). 16 Shortly before the filing of the Amended Complaint, the Court granted in part and denied 17 in part Plaintiff’s motion to compel discovery responses by Kester, Skootle, and Fales. At the 18 time, Fales was a non-party on whom Twitter had served a third-party document and deposition 19 subpoena. 20 information (redacted for relevance or sensitive personal information where needed), and also 21 ordered Fales to produce all communications relating to Twitter, Skootle, or TweetAdder. 22 (Docket No. 71). Plaintiff’s First Amended Complaint added Fales as a defendant. (Docket No. 23 76). The Court ordered Defendants to produce financial, tax, and compensation 24 25 26 27 28 1 Plaintiff’s voluntary dismissal of two defendants located in the Philippines rendered moot Plaintiff’s motion for alternative service on them. (Docket Nos. 41, 49). 2 In its order, the Court also denied Plaintiff’s earlier motion for entry of default as to Harris. (Docket Nos. 16, 44). -5- FURTHER JOINT CASE MANAGEMENT STATEMENT Case No. 3:12-cv-1721-JST 1 2 The parties agreed to private mediation as their chosen ADR process. (Docket Nos. 58, 63). The parties plan a mediation before JAMS on February 28, 2013. 3 4 No motions are currently pending before the Court. 8. Other Deadlines in Place Before Reassignment 5 A case management conference was set for March 1, 2013. (Docket No. 75). The 6 deadline for dispositive motions was set for May 13, 2013, with oppositions and replies due June 7 3 and 10, 2013, respectively. A dispositive motion hearing was set for June 24, 2013. (Docket 8 No. 82). The pre-trial conference was set for July 23, 2013, and trial was set to begin on August 9 5, 2013. (Docket No. 62). 10 9. 11 12 Requested Modifications to Deadlines Plaintiff: Plaintiff does not request any modifications to the foregoing deadlines at this time, save to request a different date for a case management conference, as detailed below. 13 Defendants: Defendants do not request any modifications to the foregoing deadlines at 14 this time. 15 10. 16 17 Trial by Magistrate Judge The parties do not consent to trial by a magistrate judge. 11. Immediate Need for Case Management Conference 18 Plaintiff: Plaintiff requests that a case management conference be held on or about the 19 first week of April 2013, in order to update the Court on the status of the case following 20 mediation and close of fact discovery. 21 Defendants: Defendants have no objection to scheduling a case management conference 22 on or about the first week of April 2013. 23 12. Immediate Relief Sought Regarding Case Schedule 24 Plaintiff: Plaintiff does not seek any immediate relief at this time. 25 Defendants: Defendants do not seek any immediate relief at this time. 26 27 28 -6FURTHER JOINT CASE MANAGEMENT STATEMENT Case No. 3:12-cv-1721-JST 1 Dated: February 26, 2013 2 WILSON SONSINI GOODRICH & ROSATI P.C. By: 3 4 /s Charles T. Graves Charles T. Graves Attorneys for Plaintiff TWITTER, INC. 5 6 Dated: February 26, 2013 COLT / WALLERSTEIN LLP 7 By: 8 Attorneys for Defendants SKOOTLE CORP., JAMES KESTER, and TROY FALES 9 /s Nicole M. Norris 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7FURTHER JOINT CASE MANAGEMENT STATEMENT Case No. 3:12-cv-1721-JST 1 2 CERTIFICATION I, Charles T. Graves, am the ECF User whose identification and password are being used 3 to file the Further Joint Case Management Statement. In compliance with General Order 4 45.X.B, I hereby attest that Nicole M. Norris has concurred in this filing. 5 6 DATED: February 26, 2013 WILSON SONSINI GOODRICH & ROSATI Professional Corporation 7 8 By: 9 s/Charles T. Graves Charles T. Graves 10 Attorneys for Plaintiff Twitter, Inc. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1CERTIFICATION Case No. 3:12-cv-1721-JST

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