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

Filing 238

STIPULATION AND ORDER AS MODIFIED BY THE COURT CONTINUING CASE MANAGEMENT CONFERENCE. The case management conference scheduled for 1/13/2012 is VACATED. The Clerk shall administratively close this action. The parties shall submit a joint status repo rt apprising the court of any developments which may affect the stay no later than 4/15/2012, and shall submit a similar report every three months thereafter. This Order shall not prevent either party from seeking toreopen this case and lift the stay to set a Case Management Conference or request other relief should the circumstances warrant. Signed by Judge Edward J. Davila on 12/15/2011. (ejdlc1, COURT STAFF) (Filed on 12/15/2011)

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Attorneys for Plaintiff
EBAY INC.

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UNIT
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DAVID R. EBERHART (S.B. #195474)
[e-mail]
SHARON M. BUNZEL (S.B. #181609)
[e-mail]
O’MELVENY & MYERS LLP
Two Embarcadero Center, 28th Floor
San Francisco, CA 94111
Telephone:
[phone]

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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EBAY INC.,
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Plaintiff,
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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,

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Defendants.

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Case No. CV 08-04052-EJD-PSG
STIPULATION AND [PROPOSED]
ORDER CONTINUING CASE
MANAGEMENT CONFERENCE

Judge:
Dept.:

Hon. Edward J. Davila
Courtroom 1

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THE PARTIES TO THE ABOVE-ENTITLED ACTION HEREBY STIPULATE
PURSUANT TO CIVIL LOCAL RULES 7-12 AND 16-2:
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Plaintiff alleges that Defendants, as participants in eBay’s affiliate marketing

program, engaged in cookie stuffing intended to defraud Plaintiff. Defendants deny Plaintiff’s
allegations.
2.

On or about October 15, 2009, Defendants moved to stay this action under Keating

v. Office of Thrift Supervision, 45 F.3d 322 (9th Cir. 1995), pending resolution of parallel
criminal investigations undertaken by the United States Attorney’s Office and Federal Bureau of

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STIPULATION AND [PROPOSED] ORDER
Case No. CV 08-04052 EJD PSG

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Investigation concerning the same alleged cookie stuffing scheme at issue in this civil action.

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3.

On February 25, 2010, the Court issued an Order denying, without prejudice,

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Defendants’ motions to stay this civil action. The primary basis for the denial of the motions was

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that no indictment had been returned as to any Defendant.

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4.

Defendants Shawn Hogan and Brian Dunning were indicted on June 24, 2010.

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United States v. Hogan, CR 10-0495 JF (N.D. Cal. June 24, 2010); United States v. Dunning, CR

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10-0494 JF (N.D. Cal. June 24, 2010). The indictments are based on the same alleged cookie

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stuffing scheme at issue in this civil action.

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5.

On June 29, 2010, the United States filed a Notice of Related Case stating that

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defendants Shawn Hogan and Brian Dunning in the instant action are alleged to have engaged in

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the same cookie stuffing scheme that is the subject of the indictments. On July 7, 2010, the Court

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issued an order finding that the instant civil action and the aforementioned criminal cases are

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related.

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6.

Based on the foregoing, on July 28, 2010, the parties to this action stipulated and

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moved that this civil action be stayed in its entirety as to all parties until further order by the

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Court. The parties also stipulated and moved the Court to vacate the existing case management

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dates, including but not limited to the fact and expert discovery cut-off dates, the pretrial

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conference date, and the jury trial date. The parties stipulated and moved that a further case

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management conference be set for February 11, 2011.

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7.

On August 3, 2010, the Court, pursuant to the parties’ stipulation and motion,

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stayed the case in its entirety as to all parties and vacated all existing case management dates.

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The Court set a further case management conference for February 11, 2011 at 10:30 a.m.

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8.

Thereafter, on February 10 and August 5, 2011, pursuant to the parties’ stipulation,

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the Court entered successive orders continuing the case management conferences in light of the

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pending criminal proceedings. After reassignment to this Court, this matter was set for further

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case management conference on January 13, 2012 at 10:00 a.m.

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9.

The criminal cases against defendants Shawn Hogan and Brian Dunning are

ongoing. On November 7, 2011, the Court set trial dates for United States v. Dunning and
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STIPULATION AND [PROPOSED] ORDER
Case No. CV 08-04052 EJD PSG

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United States v. Hogan on October 23, 2012 and January 15, 2013, respectively.

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10.

The parties stipulate and request that the Court continue the case management

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conference scheduled for January 13, 2012 10:00 a.m. until June 8, 2012, or as otherwise

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convenient for the Court. If either or both of the criminal cases are resolved prior to the

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rescheduled case management conference, the parties shall timely inform the Court.

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11.

Notwithstanding the foregoing, the parties further stipulate that any party may

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move at any time to lift the current stay or to set a case management conference before June 8,

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2012.

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STIPULATION AND [PROPOSED] ORDER
Case No. CV 08-04052 EJD PSG

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IT IS SO STIPULATED.

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DATED: December 13, 2011

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DAVID R. EBERHART
SHARON M. BUNZEL
O’MELVENY & MYERS LLP

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By: /s/ David R. Eberhart
David R. Eberhart

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Attorneys for Plaintiff
EBAY INC.

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DATED: December 13, 2011

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SEYAMACK KOURETCHIAN
ROSS M. CAMPBELL
COAST LAW GROUP LLP

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By: /s/ Ross M. Campbell
Ross M. Campbell

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Attorneys for Defendants
SHAWN HOGAN and DIGITAL POINT
SOLUTIONS, INC.

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DATED: December 13, 2011

LEO J. PRESIADO
RUS, MILIBAND & SMITH

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By: /s/ Leo J. Presiado
Leo J. Presiado

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Attorneys for Defendants
THUNDERWOOD HOLDINGS, INC., BRIAN
DUNNING and BRIANDUNNING.COM

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DATED: December 13, 2011

PATRICK K. MCCLELLAN
LAW OFFICE OF PATRICK K. MCCLELLAN

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By: /s/ Patrick K. McClellan
Patrick K. McClellan
Attorneys for Defendant
KESSLER’s FLYING CIRCUS

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STIPULATION AND [PROPOSED] ORDER
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DATED: December 13, 2011

TODD DUNNING

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By: /s/ Todd Dunning
Todd Dunning

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Pro Se

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DATED: December 13, 2011

DUNNING ENTERPRISE, INC.

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By: /s/ Todd Dunning
Todd Dunning

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ATTESTATION

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Pursuant to General Order No. 45X(B), I hereby attest that concurrence in the filing of this
document has been obtained from each of the above-listed signatories.
DATED: December 13, 2011

By: /s/ David R. Eberhart
David R. Eberhart

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STIPULATION AND [PROPOSED] ORDER
Case No. CV 08-04052 EJD PSG

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[PROPOSED] ORDER
Pursuant to the foregoing stipulation, and good cause appearing therefor, IT IS HEREBY
ORDERED that the case management conference scheduled for January 13, 2012 at 10:00 a.m.
is VACATED. Since it appears at this time that the stay imposed in this case will
shall be continued into June 8, 2012 at 10:00 a.m. This stipulation is without prejudice to
continue in effect until 2013, the Clerk shall administratively close this action. The any
parties shall submit a joint status before the continued case management conference should the
party moving to lift the current stay report apprising the court of any developments which
may affect the stay no later than April 15, 2012, and shall submit a similar report every
circumstances so thereafter. party may also move prevent either case from seeking
three (3) monthswarrant. Any This Order shall notthe Court to set aparty management to
reopen this case and lift the stay to set a Case Management Conference or request
conference should the circumstances warrant.
other relief before June 8, 2012.

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IT IS SO ORDERED.

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December 15, 2011
Dated: ____________________

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_______________________________________
The Honorable Edward J. Davila
United States District Court Judge
Northern District of California

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STIPULATION AND [PROPOSED] ORDER
Case No. CV 08-04052 EJD PSG