Federal Trade Commission v. Swish Marketing, Inc et al

Filing 77

STIPULATION AND ORDER RE #74 TO FILE AMENDED COMPLAINT UNDER TEMPORARY SEAL. Signed by Judge Richard Seeborg on 4/5/10. (cl, COURT STAFF) (Filed on 4/6/2010)

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WILLARD K. TOM General Counsel LISA D. ROSENTHAL, Bar # 179486 KERRY O'BRIEN, Bar # 149264 EVAN ROSE, Bar # 253478 ERIC D. EDMONDSON, D.C. Bar # 450294 Federal Trade Commission 901 Market Street, Ste. 570 San Francisco, CA 94103 [phone] (voice) [phone] (fax) [e-mail] [e-mail] [e-mail] Attorneys for Plaintiff Federal Trade Commission

*E-Filed 4/6/10*

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA San Jose Division

FEDERAL TRADE COMMISSION, Plaintiff, v. SWISH MARKETING, INC., a corporation, MARK BENNING, individually and as an officer of SWISH MARKETING, INC., MATTHEW PATTERSON, individually and as an officer of SWISH MARKETING, INC., and JASON STROBER, individually and as an officer of SWISH MARKETING, INC., Defendants.

Case No. C09-03814 RS Hearing Date: Hearing Time: Courtroom: TBD TBD 4, 5th Floor

[xxxxxx] STIPULATED ORDER TO FILE AMENDED COMPLAINT UNDER TEMPORARY SEAL

ORDER TO FILE UNDER TEMP. SEAL - C09-03814 RS

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I.

INTRODUCTION AND PROCEDURAL HISTORY The Federal Trade Commission ("FTC") filed a complaint (Dkt. #1) in this matter

on August 19, 2009. On February 22, 2010, this Court issued an order granting Defendant Mark Benning's motion to dismiss the FTC's complaint as to him. (Dkt. #60) In the order, the Court granted the Commission leave to amend its Complaint but did not set a deadline by which it needed to do so. On March 8, 2010, Defendants Swish Marketing, Inc. ("Swish"), Matthew Patterson, and Jason Strober, but not Defendant Benning, filed an administrative motion, requesting that the Court impose a filing deadline for an amended complaint. (Dkt. #64) On March 12, 2010, the Court entered an order setting a deadline of April 5, 2010, for the FTC to file an amended complaint as to Defendant Benning. (Dkt. #69) The parties now stipulate to the filing of the FTC's First Amended Complaint under a temporary seal. The amended complaint may contain certain material submitted by the defendants pursuant to, or in lieu of, compulsory process. Pursuant to 16 C.F.R. 4.10(g), such material may be disclosed by the FTC in court proceedings. Prior to disclosure of such material in a proceeding, the FTC must afford the submitter "an opportunity to seek an appropriate protective or in camera order." Id. The defendants will not have had an opportunity to review the contents of the First Amended Complaint until it has been filed with the Court herewith. To allow the defendants an opportunity to seek an appropriate protective order over protected material if they so desire, the parties agree to the procedure set forth below. II. PROPOSED PROCEDURE FOR SEEKING AN APPROPRIATE PROTECTIVE ORDER So that the defendants may seek an appropriate protective order over material that they submitted to the FTC pursuant to, or in lieu of, compulsory process that is contained in the FTC's First Amended Complaint, the parties agree to the filing of the First Amended Complaint under temporary seal, as follows: 1. The defendants shall have until April 19, 2010 to file a motion with the Page 2 of 4

ORDER TO FILE UNDER TEMP. SEAL - C09-03814 RS

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Court, seeking an appropriate protective order over material contained in the FTC's First Amended Complaint, pursuant to 16 C.F.R. 4.10(g); 2. The FTC shall have until May 3, 2010, to respond to any such motion filed by any defendant; 3. If no defendant has moved for a protective order by April 19, 2010, then the seal shall automatically be lifted, with no further action required by the Court or any party, and the FTC's First Amended Complaint shall be placed on the public record; and 4. If any defendant has moved for a protective order by April 19, 2010 as to any portion of the First Amended Complaint, then the Complaint shall remain under seal until the Court has issued its ruling on the defendants' motion/s. IV. CONCLUSION The parties respectfully request that the Court temporarily seal the FTC's First Amended Complaint as set forth above.

Respectfully submitted,

DATED: April 5, 2010

/s/ Lisa D. Rosenthal LISA D. ROSENTHAL KERRY O'BRIEN EVAN ROSE Attorneys for Plaintiff FEDERAL TRADE COMMISSION

(The filer attests that concurrence in the filing of this document has been obtained from each of the other signatories.)

DATED: April 5, 2010

/s/ Michael A. Thurman MICHAEL L. MALLOW MICHAEL A. THURMAN LOEB & LOEB LLP Page 3 of 4

ORDER TO FILE UNDER TEMP. SEAL - C09-03814 RS

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Attorneys for Defendants SWISH MARKETING, INC. and MATTHEW PATTERSON DATED: April 5, 2010 /s/ Brian Grossman BRIAN GROSSMAN TESSER & RUTTENBERG Attorneys for Defendants SWISH MARKETING, INC., MATTHEW PATTERSON, and JASON STROBER DATED: April 5, 2010 /s/ Donald P. Gagliardi DONALD P. GAGLIARDI ELIZABETH D. LEAR BERGESON, LLP Attorneys for Defendant MARK BENNING

PURSUANT TO STIPULATION, IT IS SO ORDERED: DATED: 4/5/10

___________________________________ RICHARD SEEBORG UNITED STATES DISTRICT JUDGE

ORDER TO FILE UNDER TEMP. SEAL - C09-03814 RS

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