Facebook, Inc. v. Studivz, Ltd et al

Filing 135

Declaration of Stephen S. Smith in Support of 133 Reply Memorandum,,,, 132 Reply Memorandum,, filed byStudivz, Ltd, Holtzbrinck Networks GmbH, Holtzbrinck Ventures GmbH. (Attachments: # 1 Appendix Exhibit K)(Related document(s) 133 , 132 ) (Walker, William) (Filed on 3/27/2009)

Facebook, Inc. v. Studivz, Ltd et al

Doc. 13

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GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP

STEPHEN S. SMITH (SBN 166539) SSmit [e-mail] WILLIAM M. WALKER (SBN 145559) [e-mail] AARON J. MOSS (SBN 190625) [e-mail] GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067-4590 Telephone: [phone] Fax: [phone] Attorneys for Defendants StudiVZ Ltd., Holtzbrinck Networks GmbH and Holtzbrinck Ventures GmbH

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37106-00002/1682147.1

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067 4590 -

FACEBOOK, INC., Plaint iff, v. STUDIVZ LTD., VERLAGSGRUPPE GEORG VON HOLTZBRINCK GmbH, HOLTZBRINCK NETWORKS GmbH, HOLTZBRINCK VENTURES GmbH, and DOES 1-25, Defendants.

Case No. 5:08-CV-03468 JF Assigned To: Hon. Jeremy Fogel SUPPLEMENTAL DECLARATION OF STEPHEN S. SMITH IN SUPPORT OF STUDIVZ LTD.'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND FORUM NON CONVENIENS; EXHIBIT K [Reply Briefs; Supplemental Declarat ions of William M. Walker and Martin Weber (and Exhibits Thereto) Filed Concurrently] Date: April 10, 2009 Time: 9:00 a.m. Place: Courtroom 3 Complaint Filed: July 18, 2008

SUPPLEMENTAL SMITH DECLARATION IN SUPPORT OF MOTIONS TO DISMISS

Dockets.Justia.com

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GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP

DECLARATION OF STEPHEN S. SMITH

I, Stephen S. Smith declare:

1.

I am an attorney at law duly licensed to practice in the State of California and

before the United States District Court for the Northern District of California, and am a partner at Greenberg Glusker Fields Claman & Machtinger LLP, counsel of record for Defendants Holtzbrinck Networks GmbH and Holtzbrinck Ventures GmbH (together, the "Holtzbrinck Defendants") and StudiVZ Ltd. ("StudiVZ") (collectively, "Defendants"). I have personal knowledge of the facts set forth herein and, if called as a witness, could and would testify competently thereto under oath. This declaration is submitted concurrently with Defendants' Reply Briefs in support of their Motions to Dismiss and in support of those motions.

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1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067 4590 -

2.

Within the past few weeks, I joined Facebook.com for the sake of seeing whether

Facebook's users are required to click an "I accept" or "Yes" button showing they assented to Facebook's Terms of Use before registering for, and entering, Facebook's website. When I clicked the "Sign Up" button, I was never required to view or assent to the terms to which Facebook would have its users be bound. In fact, Facebook's homepage does not even contain a warning near the "Sign Up" button that the user is agreeing to the terms of service by signing up; the only notice is a tiny "Terms" link at the very bottom of the page hidden among eight other links. Attached hereto as "Exhibit K" is a true and correct copy of Facebook's homepage that I saved earlier this week (with the assistance of a colleague who is more computer-literate than I am).

3.

Facebook's website does not contain a notice on any of its pages stating that "by

continuing past this page and/or using this site, you agree to abide by the Terms of Use for this site" /// /// ///
37106-00002/1682147.1

1 SUPPLEMENTAL SMITH DECLARATION IN SUPPORT OF MOTIONS TO DISMISS

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GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP

or any words to that effect.

I declare under penalty of perjury under the laws of the State of California and the United States that the foregoing is true and correct, and that this declaration was executed in Los Angeles, California on March 27, 2009. /s Stephen S. Smith Stephen S. Smith .

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37106-00002/1682147.1

1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067 4590 -

2 SUPPLEMENTAL SMITH DECLARATION IN SUPPORT OF MOTIONS TO DISMISS