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

Filing 152

Declaration of Sharon M. Bunzel in Support of 151 Memorandum in Opposition,, Declaration of Sharon M. Bunzel in Support of Plaintiff eBay Inc.'s Consolidated Opposition to Defendants' Motions to Stay Civil Action Pending Resolution of Criminal Proceedings filed byeBay Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O)(Related document(s) 151 ) (Kennedy, Colleen) (Filed on 10/30/2009)

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

Doc. 152

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DAVID R. EBERHART (S.B. #195474) [e-mail] SHARON M. BUNZEL (S.B. #181609) [e-mail] COLLEEN M. KENNEDY (S.B. #227107) [e-mail] O'MELVENY & MYERS LLP Two Embarcadero Center, 28th Floor San Francisco, CA 94111 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff eBay Inc.

UNITED STATES DISTRICT COURT 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. C 08-04052 JF PVT DECLARATION OF SHARON M. BUNZEL IN SUPPORT OF PLAINTIFF EBAY INC.'S CONSOLIDATED OPPOSITION TO DEFENDANTS' MOTIONS TO STAY CIVIL ACTION PENDING RESOLUTION OF CRIMINAL PROCEEDINGS Hearing Date: Time: Courtroom: Judge: November 20, 2009 9:00 a.m. 3 Hon. Jeremy Fogel

BUNZEL DECL. ISO OPP. TO MOT. TO STAY CASE NO. C 08-04052 JF PVT
Dockets.Justia.com

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I, Sharon M. Bunzel, declare as follows: 1. I am a member of the Bar of the State of California and a partner in the law

firm of O'Melveny & Myers LLP, counsel for eBay Inc. in this matter. I submit this declaration in support of eBay's Consolidated Opposition to Defendants' Motions to Stay Civil Action Pending Resolution of Criminal Proceedings. I have personal knowledge of the facts set forth in this declaration and, if called to testify as a witness, could and would do so under oath. 2. From 1999 to 2005, I served as an Assistant United States Attorney

("AUSA") in the Criminal Division of the Northern District of California. As an AUSA, I was responsible for overseeing numerous complex criminal investigations and prosecutions. I am readily familiar with all aspects of the federal criminal charging and prosecution process, including grand jury investigations and indictments. 3. The United States Attorney's Manual ("USAM") contains various

guidelines regarding the indictment process. Excerpts from the USAM relevant to the issues discussed in eBay's Opposition to Defendants' Stay Motions are attached hereto as Exhibit A. 4. Pursuant to the USAM, the decision to seek an indictment is within the

discretion of the U.S. Attorney's Office, and an indictment should only be sought if the AUSA believes that the admissible evidence will support a conviction, which requires proof beyond a reasonable doubt (even though the grand jury itself need only find probable cause in order to return an indictment). An AUSA may decline to pursue a viable prosecution for several reasons, including if, in the AUSA's judgment, "[n]o substantial federal interest will be served by the prosecution," or "[t]here exists an adequate non-criminal alternative to prosecution." Based on my experience as an AUSA in the Northern District of California, I know that as a matter of practice in this District, after an AUSA determines that criminal charges are warranted, various levels of supervisory approval are required before an indictment can be presented to the grand jury, including approval by the AUSA's Section Chief and either the Chief of the Criminal
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Division (in the case of a San Francisco indictment) or the Chief of the Branch Office (for an indictment in either San Jose or Oakland). Regardless of the U.S. Attorney's Office's position with respect to whether an indictment should be sought, and regardless of whether an indictment is approved as a matter of form by all appropriate supervisors, the ultimate decision to return an indictment lies with the grand jury, not with any prosecutor. 5. Many factors influence how an AUSA ultimately charges a given case or

crafts a particular indictment. For example, pre-indictment cooperation by individuals who were previously considered subjects or targets of the investigation may lead an AUSA to decline to seek charges against such individuals. 6. The United States Attorney's Office is empowered to decline prosecution of

any matter under investigation, except in certain limited situations related to national security, bankruptcy, and Selective Service System offenses. Upon such declinations, the U.S. Attorney's Office is only required by the USAM to make a notation in its files. Based on my experience, notice of a declined prosecution is rarely given to subjects and targets of an investigation. 7. I have reviewed the docket and documents filed in the matter of Commission

Junction, Inc. v. Thunderwood Holdings, Inc., et al., No. 30-2008 00101025 (Orange County, California Superior Court). Based on that review, I am informed of and believe the following: In August 2007, Commission Junction, Inc. ("CJ") filed an action (the "CJ Action") in California state court against several of the Defendants in this matter: Kessler's Flying Circus ("KFC"), Brian Dunning, Thunderwood Holdings, Inc. ("THI") and Todd Dunning (collectively, the "CJ Defendants"). CJ's lawsuit asserted breach of contract and related claims seeking to recoup commissions CJ had paid to the CJ Defendants for the month of May 2007. In September and October 2008, the CJ Defendants moved for a stay of discovery in the state court proceedings based on the same criminal investigation described in the motions to stay currently before this Court. 8. Attached hereto as Exhibit B is a true and correct copy of CJ Defendants
BUNZEL DECL. ISO OPP. TO MOT. TO STAY CASE NO. C 08-04052 JF PVT

Brian Dunning and THI's motion to stay the CJ Action, filed with the Superior Court of
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California, County of Orange on September 29, 2008. 9. Attached hereto as Exhibit C is a true and correct copy of the Declaration of

Brian Dunning in support of CJ Defendants Brian Dunning and THI's motion to stay the CJ Action, filed with the Superior Court of California, County of Orange on September 29, 2008. 10. Attached hereto as Exhibit D is a true and correct copy of the Declaration of

William Kopeny in support of CJ Defendants Brian Dunning and THI's motion to stay the CJ Action, filed with the Superior Court of California, County of Orange on September 29, 2008. 11. Attached hereto as Exhibit E is a true and correct copy of the official court

reporter's transcript of the hearing on CJ Defendants Brian Dunning and THI's motion to stay the CJ Action, held on October 29, 2008 in Superior Court of California, County of Orange. 12. Attached hereto as Exhibit F is a true and correct copy of CJ Defendants

Todd Dunning and KFC's motion to stay the CJ Action, filed with the Superior Court of California, County of Orange on October 20, 2008. 13. Attached hereto as Exhibit G is a true and correct copy of the Declaration

of Todd Dunning in support of CJ Defendants Todd Dunning and KFC's motion to stay the CJ Action, filed with the Superior Court of California, County of Orange on October 20, 2008. 14. Attached hereto as Exhibit H is a true and correct copy of the Declaration

of Robert J. Breakstone in support of CJ Defendants Todd Dunning and KFC's motion to stay the CJ Action, filed with the Superior Court of California, County of Orange on October 6, 2008. 15. Attached hereto as Exhibit I is a true and correct copy of the official court

reporter's transcript of the hearing on CJ Defendants Todd Dunning and KFC's motion to stay the CJ Action, held on November 19, 2008 in Superior Court of California, County of Orange.
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16.

Attached hereto as Exhibit J is a true and correct copy of the Joint Case

Management Statement and [Proposed] Order in this action, filed with the Court on January 9, 2009. 17. Attached hereto as Exhibit K is a true and correct copy of the official court

reporter's transcript of the August 14, 2009 Case Management Conference in this action. 18. Attached hereto as Exhibit L is a true and correct copy of a letter dated May

29, 2009 from Leo Presiado to Colleen Kennedy. 19. Attached hereto as Exhibit M is a true and correct copy of a letter dated

May 27, 2009 from Ross Campbell to Colleen Kennedy. 20. Attached hereto as Exhibit N is a true and correct copy of the official

Reporter's Transcript of the September 25, 2009 Case Management Conference in this action. 21. Attached hereto as Exhibit O is a true and correct copy of the Stipulated

Protective Order, filed in this action on June 25, 2009. 22. I have directed that a review be conducted of the Northern District of

California's electronic case filing system. Based on that review, I am informed and believed that no Defendant in this action has been indicted in federal court in connection with the criminal investigation described in the motions to stay currently before this Court. 23. Neither eBay nor its counsel has provided the federal government with any

discovery obtained by eBay from the Defendants in this action, nor has the government requested such information from eBay or its counsel. I declare under penalty of perjury under the laws of the United States and the State of California that the foregoing is true and correct. Signed on this 30th day of October, 2009 in San Francisco, California. ____/s/ Sharon M. Bunzel________ Sharon M. Bunzel
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