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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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: [phone]
Facsimile: [phone]
Email: [e-mail]

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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: [phone]
Facsimile: [phone]
Attorneys for Defendants
SKOOTLE CORP., JAMES KESTER,
and TROY FALES

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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,

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.

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FURTHER JOINT CASE MANAGEMENT STATEMENT
Case No. 3:12-cv-1721-JST

Date:
Time:
Place:
Judge:

TBD
TBD
Courtroom 9
Hon. Jon S. Tigar

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The parties to the above-entitled action jointly submit this FURTHER JOINT CASE

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MANAGEMENT STATEMENT pursuant to the Court’s Order dated February 11, 2013.

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(Docket No. 83).

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1.

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Date of Case Filing
The original Complaint was filed on April 5, 2012 against defendants Skootle Corp. and

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James Kester, among others.

(Docket No. 1).

By leave of Court, Plaintiff filed its First

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Amended Complaint on November 19, 2012 to which Twitter added defendant Troy Fales.

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(Docket Nos. 68, 69, 74, 76).

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2.

The Parties

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Plaintiff: Plaintiff Twitter, Inc. (“Twitter”) is a Delaware corporation with its principal

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place of business in San Francisco, California. Twitter runs an eponymous online real-time

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communications platform through which users share and receive information via short messages

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called “Tweets.”

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Defendants: Defendant Skootle Corporation (“Skootle”) is a corporation incorporated in

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Tennessee, with its principal place of business in Richmond, Virginia. Defendant James Kester

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(“Kester”) is an individual residing in Virginia and the principal officer of Skootle. Defendant

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Troy Fales (“Fales”) is an individual residing in North Carolina and a contractor for Skootle.

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3.

Claims

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Plaintiff’s Amended Complaint asserts claims for (1) breach of contract, (2) tortious

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interference with contract, (3) fraud, and (4) unfair or deceptive business practices under Cal.

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Bus. & Prof. Code § 17200. (Docket No. 76).

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4.

Events Underlying the Action

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Plaintiff’s Statement:

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Twitter operates a popular online communications platform, well-known for the short,

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140-character “Tweets” that Twitter users post for others to read and follow. Twitter brought

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this lawsuit in order to combat unwanted messages known as “spam” on its platform.

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Defendants offer a software product to Twitter users called TweetAdder, which does not comply

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-1FURTHER JOINT CASE MANAGEMENT STATEMENT
Case No. 3:12-cv-1721-JST

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with Twitter’s rules for third party software developers, and which is designed to enable spam

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messages on Twitter’s service – generally mass advertising messages generated through

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automated means and sent in bulk to Twitter users. Whether or not the businesses which send

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these messages are legitimate businesses in and of themselves, Defendants do not have a right to

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enable their disruption of Twitter’s user experience.

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It is undisputed that Defendants’ TweetAdder product does not use Twitter’s required

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authentication protocol for user password security. It is likewise undisputed that Defendants’

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TweetAdder product contains numerous features that are prohibited by Twitter’s Terms of

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Service. Unlike many other third party developers who successfully market software products

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that comply with Twitter’s Terms of Service, Defendants have refused to comply with Twitter’s

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rules so that they can make money from spammers.

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Twitter therefore alleges that Defendants violate Twitter’s Terms of Service, interfere

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with Twitter’s agreements with its users, engage in deceitful marketing, and damage Twitter by

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marketing the TweetAdder software. Twitter has expended a great amount of time, money, and

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resources to combat the problems caused by Defendants.

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Twitter’s rules, which all third party developers building businesses on the Twitter platform are

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required to follow. Defendants could have modified their software to conform to Twitter’s

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Terms of Service, but they refuse to do so.

Defendants refuse to abide by

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Defendants’ Statement:

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James Kester is the owner and founder of defendant Skootle Corp, which licenses a

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software program that enables businesses and other Twitter users to automate their use of Twitter

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to promote and advance legitimate business, social, and branding objectives.

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Despite Twitter’s contentions, TweetAdder is not “spamware.” TweetAdder is a useful

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tool for legitimate businesses and individuals that can be used to automate certain repetitive,

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mundane, and time-consuming tasks that are otherwise permitted by Twitter. Customers of

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TweetAdder include popular television shows and newspapers, radio stations, PR firms,

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charities, law firms, musicians, celebrities, politicians and political campaigns, city chambers of

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-2FURTHER JOINT CASE MANAGEMENT STATEMENT
Case No. 3:12-cv-1721-JST

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commerce, banks, and numerous other businesses from small startups to Fortune 500 companies.

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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

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what they have to say and stay connected with them.

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Many tasks that TweetAdder performs can already be performed manually by the end

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user. TweetAdder simply makes it easier with added search capabilities. Defendants

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

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

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TweetAdder for illegitimate and malicious purposes. These excluded features include:

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

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automatically. They must create their profiles manually with Twitter.
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Bulk profile editing - TweetAdder users must create and edit each profile they
enter into the program manually.

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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.

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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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Following the same user on multiple accounts - TweetAdder does not provide an

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automated method to follow the same user with multiple accounts. Each

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TweetAdder account is managed independently of each other account.

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@Replies based on user keywords - TweetAdder allows a user to send an

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“@reply” only on the condition that another Twitter user mentioned them in an

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@reply, such as a “thank you for mentioning me.” TweetAdder does not allow its

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

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mentioned them.

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-3FURTHER JOINT CASE MANAGEMENT STATEMENT
Case No. 3:12-cv-1721-JST

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Automatic conversion of keywords to hash-tags - TweetAdder does not permit

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users to automatically convert keywords to hash-tags. TweetAdder specifically

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seeks to exclude certain features from TweetAdder that would otherwise allow

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users to abuse Twitter in the way now claimed. Specifically, TweetAdder clients

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cannot:

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Defendants and the TweetAdder software abide by all terms of the TOS into which they

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entered with Twitter. TweetAdder does not “spam” other Twitter users as that term is used in

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Twitter’s Terms of Service attached to its Complaint. Furthermore, TweetAdder accesses the

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Twitter service through Twitter’s own currently available, published services that are provided

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by Twitter. On more than one occasion prior to filing this lawsuit, Defendants have worked with

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Twitter to address any concerns Twitter had about TweetAdder users abusing the software and

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engaging in frowned-upon behavior, including committing to changes requested by Twitter,

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blocking abusing users, and modifying the TweetAdder software to remove features so requested

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by Twitter.

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5.

Relief Sought and Damages Claimed

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Plaintiff’s Statement:

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Twitter seeks injunctive relief and specific performance against the Defendants, enjoining

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and restraining their ongoing violations of the Twitter TOS, from engaging in their unlawful and

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deceptive practices, and from offering or supporting any version of the TweetAdder software

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containing any features that violate the TOS. Twitter also seeks to recover compensatory and

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statutory damages, including restitution and disgorgement of profits. In addition, Twitter is

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seeking exemplary and punitive damages and attorneys’ fees and costs.

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Defendants’ Statement:

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Defendants seek no affirmative relief other than the declination of the Court to grant

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Twitter its requested relief. Defendants reserve the right to supplement this response, if and

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when, they make a damages claim.

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-4FURTHER JOINT CASE MANAGEMENT STATEMENT
Case No. 3:12-cv-1721-JST

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Discovery Status

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Discovery is ongoing and is subject to the parties’ stipulated protective order. (Docket

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No. 61). Pursuant to the Court’s Order, non-expert fact discovery closes on April 1, 2013, and

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expert discovery closes on May 9, 2013. (Docket No. 82). The parties have both engaged in

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written discovery, have produced documents, and are proceeding with depositions.

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Procedural Background

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The instant case was originally assigned to Magistrate Judge Laurel Beeler, but was later

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reassigned to Judge Susan Illston after Defendants Kester and Skootle declined to proceed before

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a magistrate. (Docket Nos. 1, 31, 32, 35, 37).

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In its original Complaint, Plaintiff named as defendants Skootle and Kester, as well as

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five other defendants who have since been dismissed by Plaintiff or severed by the Court.1

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(Docket Nos. 1, 41, 42, 43, 46, 49, 45, 54). Before his severance from the action, former

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defendant Harris moved to dismiss the Complaint against him on various grounds, including lack

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of personal jurisdiction. The Court denied the motion, upholding the forum selection clause in

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Plaintiff’s TOS.2 (Docket Nos. 23, 36, 44).

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Shortly before the filing of the Amended Complaint, the Court granted in part and denied

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in part Plaintiff’s motion to compel discovery responses by Kester, Skootle, and Fales. At the

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time, Fales was a non-party on whom Twitter had served a third-party document and deposition

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subpoena.

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information (redacted for relevance or sensitive personal information where needed), and also

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ordered Fales to produce all communications relating to Twitter, Skootle, or TweetAdder.

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(Docket No. 71). Plaintiff’s First Amended Complaint added Fales as a defendant. (Docket No.

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76).

The Court ordered Defendants to produce financial, tax, and compensation

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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).
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FURTHER JOINT CASE MANAGEMENT STATEMENT
Case No. 3:12-cv-1721-JST

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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.

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No motions are currently pending before the Court.
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Other Deadlines in Place Before Reassignment

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A case management conference was set for March 1, 2013. (Docket No. 75). The

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deadline for dispositive motions was set for May 13, 2013, with oppositions and replies due June

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3 and 10, 2013, respectively. A dispositive motion hearing was set for June 24, 2013. (Docket

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No. 82). The pre-trial conference was set for July 23, 2013, and trial was set to begin on August

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5, 2013. (Docket No. 62).

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9.

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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.

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Defendants: Defendants do not request any modifications to the foregoing deadlines at

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this time.

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10.

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Trial by Magistrate Judge
The parties do not consent to trial by a magistrate judge.

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Immediate Need for Case Management Conference

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Plaintiff: Plaintiff requests that a case management conference be held on or about the

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first week of April 2013, in order to update the Court on the status of the case following

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mediation and close of fact discovery.

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Defendants: Defendants have no objection to scheduling a case management conference

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on or about the first week of April 2013.

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12.

Immediate Relief Sought Regarding Case Schedule

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Plaintiff: Plaintiff does not seek any immediate relief at this time.

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Defendants: Defendants do not seek any immediate relief at this time.

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-6FURTHER JOINT CASE MANAGEMENT STATEMENT
Case No. 3:12-cv-1721-JST

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Dated: February 26, 2013

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WILSON SONSINI GOODRICH & ROSATI P.C.
By:

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/s Charles T. Graves
Charles T. Graves
[e-mail]

Attorneys for Plaintiff TWITTER, INC.

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Dated: February 26, 2013

COLT / WALLERSTEIN LLP

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By:

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Attorneys for Defendants SKOOTLE CORP.,
JAMES KESTER, and TROY FALES

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/s Nicole M. Norris

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-7FURTHER JOINT CASE MANAGEMENT STATEMENT
Case No. 3:12-cv-1721-JST

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CERTIFICATION
I, Charles T. Graves, am the ECF User whose identification and password are being used

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to file the Further Joint Case Management Statement. In compliance with General Order

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45.X.B, I hereby attest that Nicole M. Norris has concurred in this filing.

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DATED: February 26, 2013

WILSON SONSINI GOODRICH & ROSATI
Professional Corporation

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By:

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s/Charles T. Graves
Charles T. Graves

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Attorneys for Plaintiff Twitter, Inc.

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-1CERTIFICATION
Case No. 3:12-cv-1721-JST