Coupons, Inc. v. Stottlemire

Filing 116

Opposition to Motion for Administrative Relief Pursuant to Civil L. R. 7-11 Requesting that the Court set a Status Conference filed by Coupons, Inc. (Attachments: #1 (Proposed) Order (Goteiner, Neil) (Filed on 11/25/2008) Text modified on 11/26/2008 conforming to posted document caption (bw, COURT STAFF).

Coupons, Inc. v. Stottlemire

Doc. 116

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Farella Braun & Martel LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 [phone]

Neil A. Goteiner (State Bar No. 083524) Dennis M. Cusack (State Bar No. 124988) Carly O. Alameda (State Bar No. 244424) Farella Braun & Martel LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail], [e-mail], [e-mail] Attorneys for Plaintiff COUPONS, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION COUPONS, INC., Plaintiff, vs. JOHN STOTTLEMIRE, and DOES 1-10, Defendants. Case No. 5:07-CV-03457 HRL COUPONS' OPPOSITION TO DEFENDANT'S MOTION FOR ADMINISTRATIVE RELIEF PURSUANT TO CIVIL L.R. 7-11 REQUESTING THAT THE COURT SET A STATUS CONFERENCE Judge: Honorable Howard R. Lloyd

Plaintiff Coupons, Inc. opposes Defendant John Stottlemire's motion filed November 23, 2008 requesting a status conference regarding the collapse of the settlement. It is true that Stottlemire's breach constrained Coupons to rescind its settlement offer, to terminate the agreement and to proceed to obtain a judgment against Stottlemire. That judgment is necessary to repair the damage that Stottlemire caused and to stop the damage he will continue to cause to Coupons in the market place. But it would not be productive to discuss these issues informally in a conference with the Court. There are, however, two alternative procedures available to Stottlemire and singularly appropriate for addressing the question. The first is for Stottlemire to bring a motion before this Court to enforce the settlement agreement. The second is to return to the ENE evaluator in front of whom the parties attempted to settle this matter in order to seek his guidance. A status
COUPONS' OPPOSITION TO DEFENDANT'S MOTION FOR A STATUS CONFERENCE -- USDC/NDC/SJ 5:07-CV-03457 HRL

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Farella Braun & Martel LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 [phone]

conference is not necessary at this time.1 And certainly a request to enforce a settlement agreement in the face of asserted settlement breaches is not the stuff of Local Rule 7-11 administrative motions for requests such as permission to file long briefs. I. ARGUMENT As previously communicated to the Court, Coupons and Stottlemire participated in what then appeared as a successful Early Neutral Evaluation session with Mr. Harold McElhinny. The parties entered into a settlement agreement at the ENE session. However, after the ENE session, but before the final settlement agreement was fully executed and the case dismissed, Stottlemire materially breached the agreement. He posted on his blog and disclosed to the press and bloggers in interviews a confidential term of the settlement agreement, that he beat Coupons, and that he paid no money to Coupons. The settlement agreement, however, explicitly provided that the settlement terms were to remain confidential. Also improper, he combined his improper disclosure of the settlement terms with inaccurate information apparently in order to boast about his "victory" and to misguide the market. Coupons immediately informed Stottlemire of his breach of the terms of the agreement and that his conduct ­ specifically abusing the settlement process and disclosing confidential terms alloyed with mischaracterizations ­ had injured and would continue to injure Coupons. Coupons also provided a series of steps that Stottlemire could take to correct the breach and repair the damage he caused to Coupons. These steps would cost Stottlemire no money, and would simply require that he state the truth on his web site and to all reporters/bloggers with whom he spoke. Stottlemire, however, has refused to remedy his breach. Stottlemire's abuse of the settlement process therefore compelled Coupons to continue with the litigation to establish its rights against Stottlemire and to discourage others like Stottlemire who would interfere with Coupons' software and relationships with Coupons' customers. But the continuation of the litigation and Stottlemire's breach does not warrant a status conference at this time, since there is no issue properly before the Court.
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The only outstanding issue is setting up a revised discovery schedule which can be done either by stipulation or motion if the parties cannot agree on a schedule.
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COUPONS' OPPOSITION TO DEFENDANT'S MOTION FOR A STATUS CONFERENCE -- USDC/NDC/SJ 5:07-CV-03457 HRL

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Farella Braun & Martel LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 [phone]

Indeed, there is nothing for the Court to address in this context. Mr. Stottlemire obviously does not want to test his "no-breach" theory by filing a motion to enforce the settlement agreement. For such a motion would require sworn testimony and would expose his disclosure of confidential information, false facts and his improper use of a settlement agreement to injure Coupons and encourage others to interfere with Coupons' business. If Stottlemire wants guidance and mediative services, Stottlemire should contact ENE evaluator Harold McElhinny for guidance. This Court's good offices are not the proper refuge for Stottlemire's tactics. Rather, Coupons' counsel alerted Mr. McElhinny immediately when Stottlemire made it clear that he would not repair the breach, and suggested that Mr. McElhinny speak directly and ex parte with Stottlemire. Coupons hopes that Mr. McElhinny can provide some additional guidance to the parties on a reasonable repair and resolution approach. Mr. Stottlemire declined, and instead asked for the status conference with this Court. II. CONCLUSION In conclusion, Stottlemire's motion should be denied because a status conference would be a waste of the parties' and the Court's resources, and it is not necessary at this point. Stottlemire has at least two other alternatives to address whatever concerns he has.

Dated: November 25, 2008

FARELLA BRAUN & MARTEL LLP

By: __/s/______________________ Neil A. Goteiner Attorneys for Plaintiff COUPONS, INC.

COUPONS' OPPOSITION TO DEFENDANT'S MOTION FOR A STATUS CONFERENCE -- USDC/NDC/SJ 5:07-CV-03457 HRL

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