eBay Inc. v. Digital Point Solutions, Inc. et al

Filing 116

ANSWER to Amended Complaint byShawn Hogan. (Campbell, Ross) (Filed on 8/31/2009)

eBay Inc. v. Digital Point Solutions, Inc. et al

Doc. 116

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Seyamack Kouretchian (State Bar No. 171741) [e-mail] Ross M. Campbell (State Bar No. 234827) [e-mail] COAST LAW GROUP, LLP 169 Saxony Road, Suite 204 Encinitas, California 92024 Tel: [phone] Fax: [phone] Attorneys for Defendants, SHAWN HOGAN and DIGITAL POINT SOLUTIONS, INC. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION EBAY, INC., ) ) Plaintiff, ) ) v. ) DIGITAL POINT SOLUTIONS, INC., SHAWN ) ) HOGAN, KESSLER'S FLYING CIRCUS, THUNDERWOOD HOLDINGS, INC., TODD ) ) DUNNING, DUNNING ENTERPRISE, INC., BRIAN DUNNING, BRIANDUNNING.COM, ) ) and Does 1-20, ) ) Defendants. ) ) Case No. CV 08-04052 JF PVT ANSWER OF DEFENDANT SHAWN HOGAN TO PLAINTIFF'S SECOND AMENDED COMPLAINT Date action filed: Dept.: August 25, 2008 Courtroom 3

Defendant SHAWN HOGAN ("Defendant") hereby answer the allegations of Plaintiff E-BAY, INC.'s ("Plaintiff's") March 26, 2009 Second Amended Complaint ("SAC") in the above-captioned matter as follows: 1. In response to paragraph 1 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. /././
A n sw e r of Defendant Shawn Hogan to Plaintiff's Second Amended Complaint Case No. CV 08-04052 JF PVT

Dockets.Justia.com

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2.

In response to paragraph 2 of the SAC, Defendant admits that Defendant DIGITAL

POINT SOLUTIONS, INC. was incorporated as a California corporation on May 14, 2007, but denies all remaining allegations contained therein. 3. In response to paragraph 3 of the SAC, Defendant admits that at all relevant times,

Defendant was an individual residing and doing business in the State of California. Defendant admits that Defendant DIGITAL POINT SOLUTIONS, INC. was incorporated as a California corporation on May 14, 2007 and that Defendant has been the sole owner thereof at all relevant times thereafter. Defendant denies all remaining allegations contained in paragraph 3. 4. In response to paragraph 4 of the SAC, this paragraph does not allege any facts and

therefore does not require a response. 5. In response to paragraph 5 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 6. In response to paragraph 6 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 7. In response to paragraph 7 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 8. In response to paragraph 8 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 9. In response to paragraph 9 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 10. In response to paragraph 10 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein.
A n sw e r of Defendant Shawn Hogan to Plaintiff's Second Amended Complaint Case No. CV 08-04052 JF PVT

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11.

In response to paragraph 11 of the SAC, this paragraph does not allege any facts and

therefore does not require a response. 12. In response to paragraph 12 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 13. In response to paragraph 13 of the SAC, this paragraph does not allege any facts and

therefore does not require a response. JURISDICTION AND VENUE 14. In response to paragraph 14 of the SAC, Defendant denies each and every allegation

contained therein. 15. In response to paragraph 15 of the SAC, Defendant denies each and every allegation

contained therein. 16. In response to paragraph 16 of the SAC, Defendant denies each and every allegation contained therein. INTRADISTRICT ASSIGNMENT 17. In response to paragraph 17 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations that Plaintiff's headquarters are located in San Jose, Santa Clara County, California, and on that basis denies said allegations. As to the remaining allegations contained therein, Defendant asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to supplement and/or seek leave to amend this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. GENERAL ALLEGATIONS 18. In response to paragraph 18 of the SAC, Defendant admits that Plaintiff operates an

online trading forum and that sellers may list items for sale and buyers may bid on and purchase items of
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interest through Plaintiff's website. Defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations regarding the present circumstances under which Plaintiff operates its affiliate marketing program, and on that basis denies each and every remaining allegation contained therein. 19. In response to paragraph 19 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations regarding the circumstances under which Plaintiff presently operates its affiliate marketing program, and on that basis denies each and every allegation contained therein. 20. In response to paragraph 20 of the SAC, Defendant admits that Plaintiff has used the

services of Commission Junction's in administering the affiliate marketing program. Defendant is without sufficient knowledge or information to form a belief as to the truth of the remaining allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 21. In response to paragraph 21 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations regarding the circumstances under which Plaintiff presently operates its affiliate marketing program, and on that basis denies each and every allegation contained therein. 22. In response to paragraph 22 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations regarding the circumstances under which Plaintiff presently operates its affiliate marketing program, and on that basis denies each and every allegation contained therein. 23. In response to paragraph 23 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations regarding the circumstances under which Plaintiff presently operates its affiliate marketing program, and on that basis denies each and every allegation contained therein. 24. In response to paragraph 24 of the SAC, the alleged definition of "cookie stuffing" does

not allege any facts and therefore does not require a response. Defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations relating to Plaintiff's alleged analyses, and on that basis denies each such allegation. Defendant is without sufficient knowledge or
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information to form a belief as to the truth of the allegations relating to KFC, and on that basis denies each such allegation. As to the remaining allegations contained therein, Defendant asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to supplement and/or seek leave to amend this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 25. In response to paragraph 25 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to KFC, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 26. In response to paragraph 26 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations that the User Agreement was agreed to by Defendant, and on that basis denies each such allegation contained therein. Defendant denies the applicability of the alleged User Agreement and that any causes of action set forth in the SAC arose therefrom. Defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations relating to KFC, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek
A n sw e r of Defendant Shawn Hogan to Plaintiff's Second Amended Complaint Case No. CV 08-04052 JF PVT

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leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 27. In response to paragraph 27 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to KFC, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 28. In response to paragraph 28 of the SAC, Defendant hereby asserts the privilege against

self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 29. In response to paragraph 29 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to KFC, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. /././
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30.

In response to paragraph 30 of the SAC, Defendant hereby asserts the privilege against

self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 31. In response to paragraph 31 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 32. In response to paragraph 32 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to KFC, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 33. In response to paragraph 33 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to KFC, and on that basis denies each such allegation contained therein. Defendant denies the applicability of the alleged User Agreement and that any causes of action set forth in the SAC arose therefrom. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response
A n sw e r of Defendant Shawn Hogan to Plaintiff's Second Amended Complaint Case No. CV 08-04052 JF PVT

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accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 34. In response to paragraph 34 of the SAC, Defendant admits that Commission Junction

filed an action against Defendants Kessler's Flying Circus, Brian Dunning and Todd Dunning; Commission Junction sought to recoup payments made to said defendants; and that said action has settled. Defendant is without sufficient knowledge or information to form a belief as to the truth of the remaining allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. FIRST CAUSE OF ACTION (18 U.S.C. §1030) 35. In response to paragraph 35 of the SAC, Defendant refers to and incorporates herein

Defendant's responses as provided in paragraphs 1 through 34 above. 36. In response to paragraph 36 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to KFC, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 37. In response to paragraph 37 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations regarding the similarity of the alleged User Agreements or the terms thereof, and on that basis denies each such allegation contained therein. Defendant denies the applicability of the alleged User Agreement and that any causes of action set forth in the SAC arose therefrom. Defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations relating to KFC, and on that basis denies each such allegation contained therein. As to the remaining allegations contained in said paragraph, Defendant hereby asserts the
A n sw e r of Defendant Shawn Hogan to Plaintiff's Second Amended Complaint Case No. CV 08-04052 JF PVT

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privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 38. In response to paragraph 38 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to KFC, and on that basis denies each such allegation contained therein. Defendant denies each and every remaining allegation contained therein. 39. In response to paragraph 39 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to KFC, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 40. In response to paragraph 40 of the SAC, Defendant hereby asserts the privilege against

self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 41. In response to paragraph 41 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations contained in said paragraph, and on that
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basis denies each and every allegation contained therein. 42. In response to paragraph 42 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 43. In response to paragraph 43 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to KFC, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 44. In response to paragraph 44 of the SAC, Defendant responds to Plaintiff's prayer for

relief as set forth below. SECOND CAUSE OF ACTION (18 U.S.C. §1962(c)) 45. In response to paragraph 45 of the SAC, Defendant refers to and incorporates herein

Defendant's responses as provided in paragraphs 1 through 44 above. 46. In response to paragraph 46 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to defendants Brian Dunning and Todd Dunning, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response
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for any purpose whatsoever. 47. In response to paragraph 47 of the SAC, Defendant admits that Defendant DIGITAL

POINT SOLUTIONS, INC. was incorporated as a California corporation on May 14, 2007. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 48. In response to paragraph 48 of the SAC, Defendant hereby asserts the privilege against

self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 49. In response to paragraph 49 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 50. In response to paragraph 50 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to KFC and/or the alleged Dunning Group, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response
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accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 51. In response to paragraph 51 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to KFC and/or the alleged Dunning Group, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 52. In response to paragraph 52 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to any investigation conducted by Plaintiff, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 53. In response to paragraph 53 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to any tests conducted by Plaintiff, and on that basis denies each such allegation contained therein. Defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations relating to KFC and/or the alleged Dunning Group, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination
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under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 54. In response to paragraph 54 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to investigations conducted or actions undertaken by Gallivan, Gallivan & O'Melia LLC, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 55. In response to paragraph 55 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to investigations conducted or actions undertaken by Gallivan, Gallivan & O'Melia LLC, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 56. In response to paragraph 56 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to investigations conducted or
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actions undertaken by Plaintiff, and on that basis denies each such allegation contained therein. Defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations relating to KFC and/or the alleged Dunning Group, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 57. In response to paragraph 57 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to actions undertaken by Plaintiff, and on that basis denies each such allegation contained therein. Defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations relating to KFC and/or the alleged Dunning Group, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 58. In response to paragraph 58 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to actions undertaken by Plaintiff, and on that basis denies each such allegation contained therein. Defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations relating to KFC and/or Todd Dunning, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the
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Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 59. In response to paragraph 59 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to KFC and/or the alleged Dunning Group, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 60. In response to paragraph 60 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to KFC, Todd Dunning, Brian Dunning, and/or the alleged Dunning Group, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 61. In response to paragraph 61 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to KFC, and on that basis denies
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each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 62. In response to paragraph 62 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to the alleged Dunning Group, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 63. In response to paragraph 63 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to the alleged Dunning Group, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. /././
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64.

In response to paragraph 64 of the SAC, Defendant responds to Plaintiff's prayer for

relief as set forth below. THIRD CAUSE OF ACTION (Fraud) 65. In response to paragraph 65 of the SAC, Defendant refers to and incorporates herein

Defendant's responses as provided in paragraphs 1 through 64 above. 66. In response to paragraph 66 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to the alleged DOE defendants, and on that basis denies each such allegation contained therein. As to the remaining allegations, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 67. In response to paragraph 67 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 68. In response to paragraph 68 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to KFC and/or the alleged DOE defendants, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever.
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69.

In response to paragraph 69 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to KFC and/or the alleged DOE defendants, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 70. In response to paragraph 70 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to KFC and/or the alleged DOE defendants, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 71. In response to paragraph 71 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to KFC and/or the alleged DOE defendants, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement
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this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 72. In response to paragraph 72 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to KFC and/or the alleged DOE defendants, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 73. In response to paragraph 73 of the SAC, Defendant hereby asserts the privilege against

self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 74. In response to paragraph 74 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to KFC and/or the alleged DOE defendants, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response
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for any purpose whatsoever. 75. In response to paragraph 75 of the SAC, Defendant responds to Plaintiff's prayer for

relief as set forth below. FOURTH CAUSE OF ACTION (California Penal Code §502) 76. In response to paragraph 76 of the SAC, Defendant refers to and incorporates herein

Defendant's responses as provided in paragraphs 1 through 75 above. 77. In response to paragraph 77 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to KFC, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 78. In response to paragraph 78 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to KFC, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 79. In response to paragraph 79 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to KFC, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant
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hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 80. In response to paragraph 80 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to KFC, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 81. In response to paragraph 81 of the SAC, Defendant responds to Plaintiff's prayer for

relief as set forth below. FIFTH CAUSE OF ACTION (Restitution and Unjust Enrichment) 82. In response to paragraph 82 of the SAC, Defendant refers to and incorporates herein

Defendant's responses as provided in paragraphs 1 through 81 above. 83. In response to paragraph 83 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to KFC, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the
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privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 84. In response to paragraph 84 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to KFC, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 85. In response to paragraph 85 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to KFC, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 86. In response to paragraph 86 of the SAC, Defendant responds to Plaintiff's prayer for

relief as set forth below. SIXTH CAUSE OF ACTION (California Business & Professions Code §17200) 87. In response to paragraph 87 of the SAC, Defendant refers to and incorporates herein

Defendant's responses as provided in paragraphs 1 through 86 above. 88. In response to paragraph 88 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to KFC, and on that basis denies
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each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 89. In response to paragraph 89 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to KFC, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 90. In response to paragraph 90 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to KFC, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 91. In response to paragraph 91 of the SAC, Defendant is without sufficient knowledge or

information to form a belief as to the truth of the allegations relating to KFC, and on that basis denies each such allegation contained therein. As to the remaining allegations contained therein, Defendant
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hereby asserts the privilege against self-incrimination under the Fifth Amendment to the United States Constitution; the Federal Rules of Evidence, Rule 501; the California Constitution, Article 1, Section 15; and California Evidence Code section 940. To the extent Defendant determines that there is no longer potential for criminal prosecution, Defendant expressly reserves the right to withdraw his assertion of the privilege, to seek leave to amend and/or supplement this response accordingly (in whole or in part), and to object to the use or disclosure of the this response for any purpose whatsoever. 92. In response to paragraph 92 of the SAC, Defendant responds to Plaintiff's prayer for

relief as set forth below. AFFIRMATIVE DEFENSES Defendant alleges the following affirmative defenses: FIRST AFFIRMATIVE DEFENSE (Failure to State a Claim) 93. As a first, separate and distinct affirmative defense, and solely by way of an alternative

defense, not to be construed as an admission or waiver of any kind, Defendants allege that Plaintiff's SAC, and every purported cause of action stated therein, fails to state facts sufficient to constitute a cause of action against Defendant. SECOND AFFIRMATIVE DEFENSE: (Contractual Limitations Period) 94. As a second and separate Affirmative Defense, and solely by way of an alternative

19 defense, not to be construed as an admission or waiver of any kind, Defendant alleges that the SAC and 20 each and every cause of action therein is barred by the one-year contractual limitations provision set 21 forth in the Commission Junction Publisher Services Agreement of which Plaintiff is a third party 22 beneficiary and which Plaintiff incorporated by reference into the eBay Supplemental Terms & 23 Conditions. 24 25 26 27 28 95. THIRD AFFIRMATIVE DEFENSE: (Statute of Limitations) As a third and separate Affirmative