Facebook, Inc. v. MaxBounty, Inc

Filing 40

Brief re 39 MOTION to Dismiss and Notice of Motion filed byMaxBounty, Inc. (Related document(s) 39 ) (Lewry, Thomas) (Filed on 5/13/2011)

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Mark B. Mizrahi, State Bar No. 179384
[e-mail]
BROOKS KUSHMAN P.C.
6701 Center Drive, Suite 610
Los Angeles, CA 90045
Tel. [phone]; Fax [phone]
Thomas A. Lewry (Admitted Pro Hac Vice)
[e-mail]
John S. LeRoy (Admitted Pro Hac Vice)
[e-mail]
BROOKS KUSHMAN P.C.
1000 Town Center, Twenty-Second Floor
Southfield, MI 48075
Tel. [phone]; Fax [phone]
Attorneys for Defendant MaxBounty, Inc.

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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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FACEBOOK, INC., a Delaware
corporation,

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v.

Plaintiff,

MAXBOUNTY, INC., a Canadian
corporation,
Defendant.

Case No. 5:10-cv-4712-JF
DEFENDANT MAXBOUNTY, INC.’S
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF ITS
MOTION TO DISMISS COUNTS I, II
AND III OF FACEBOOK’S AMENDED
COMPLAINT PURSUANT TO
FED. R. CIV. P. 12(b)(6)

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Hearing

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Date: Friday, July 8, 2011

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Time: 9:00 a.m.

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MEMORANDUM IN SUPPORT OF MOTION
TO DISMISS AMENDED COMPLAINT
Case No. 5:10-cv-4712-JF

TABLE OF CONTENTS

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I.

INTRODUCTION .............................................................................................................. 1

II.

ANALYSIS ......................................................................................................................... 2

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A.

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Facebook‟s CAN-SPAM Act Claim (Count I) must be Dismissed ........................ 2
1.

The Court Must Dismiss Facebook‟s Claim That MaxBounty
Induced A Violation Of The Act Because The Amended
Complaint Does Not Allege Any Relationship Between
MaxBounty And The (Unidentified) “Facebook Users” Who Sent
The Allegedly Improper Emails.................................................................. 2

2.

The Court Must Dismiss Count I Because The Amended
Complaint Does Not Allege That The (Unidentified) Messages
Contained “Materially False or Materially Misleading” “Header
Information” ................................................................................................ 3

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Count I‟s Other Allegations Also Lack Sufficient Factual Detail .............. 3

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B.

Facebook‟s Computer Fraud and Abuse Act Claim (Count II) Fails Because
MaxBounty And Its Customers Were Authorized To Access Facebook‟s
Computers and Post Pages on Facebook.com......................................................... 4

C.

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Facebook‟s Fraud Claim (Count III) Fails Because It Contains No Factual
Allegations MaxBounty Has Engaged In Any Fraud ............................................. 7

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III.

CONCLUSION ................................................................................................................... 9

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MEMORANDUM IN SUPPORT OF MOTION
TO DISMISS AMENDED COMPLAINT
Case No.10-cv-04712-JF

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TABLE OF AUTHORITIES

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Cases

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Ashcroft v. Iqbal,
129 S.Ct. 1937 (2008) ..................................................................................................... 3, 7
AtPac, Inc. v. Aptitude Solutions, Inc.,
730 F.Supp.2d 1174 (E.D. Cal. 2010)............................................................................. 5, 6
BellAtlantic Corp. v. Twombly,
127 S.Ct. 1955 (2007) ......................................................................................................... 3
Facebook, Inc. v. ConnectU LLC,
489 F.Supp.2d 1087 (N.D.Cal. 2007) ................................................................................. 3
LVRC Holdings LLC v. Brekka,
581 F.3d 1127 (9th Cir. 2009) ..................................................................................... 4, 5, 6
Schreiber Distributing Co. v. Serv-Well Furniture Co., Inc.,
806 F.2d 1393 (9th Cir.1986) ............................................................................................. 7

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Statutes
15 U.S.C. §7701 et seq.................................................................................................................... 2
15 U.S.C. §7702(12) ....................................................................................................................... 2
15 U.S.C. §7702(9) ......................................................................................................................... 2
15 U.S.C. §7704(a)(1) ................................................................................................................. 2, 3
18 U.S.C. §1030 ...................................................................................................................... 4, 5, 6
Rules

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Fed.R.Civ.P. 12(b)(6).......................................................................................................... 1, 2, 3, 9
Fed.R.Civ.P. 9(b) ............................................................................................................................ 7

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MEMORANDUM IN SUPPORT OF MOTION
TO DISMISS AMENDED COMPLAINT
Case No.10-cv-04712-JF

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I.

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INTRODUCTION

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Defendant MaxBounty hosts computer servers “behind the scenes” to manage Internet
traffic between Internet advertisers and merchants who sell goods and services on the Internet.
MaxBounty, itself, is not an Internet advertiser or a merchant. The advertisers and merchants are
MaxBounty‟s customers, referred to by Facebook as MaxBounty‟s “affiliates.” MaxBounty‟s
servers route and track Internet traffic to ensure that the Internet advertisers who refer buying
customers to merchants are paid appropriate referral fees. Some of MaxBounty‟s advertising
customers have, in the past, run advertising campaigns on Facebook.com.
Facebook alleges that three of MaxBounty‟s advertising customers violated the CANSPAM Act, the Computer Fraud and Abuse Act (CFAA), and committed fraud through
deceptive advertising on Facebook.com. But Facebook did not sue those customers. Instead,
Facebook sued MaxBounty, alleging, inter alia, (1) that MaxBounty “induced” the customers to
violate the statutes, and (2) that MaxBounty “aided and abetted” the customers‟ allegedly
fraudulent advertising.
MaxBounty moved to dismiss Facebook‟s CAN-SPAM, CFAA, and fraud claims
(Counts I-III). (Dkt. #11.) The Court granted the motion as to the fraud claim for lack of
particularity, but permitted Facebook to file an amended complaint. (Dkt. #35.)
In its amended complaint, Facebook revealed, for the first time, its “basis” for suing
MaxBounty. Its new allegations make clear that Facebook‟s CAN-SPAM, CFAA, and fraud
claims against MaxBounty are meritless – even assuming that all of Facebook‟s allegations are
true. Facebook‟s new allegations cannot establish MaxBounty‟s indirect liability as a matter of
law, and Facebook omits the same critical details with respect to its “aiding and abetting” fraud
claim that the Court found lacking in the original complaint.
Therefore, Counts I (CAN-SPAM), II (CFAA) and III (fraud) of the amended complaint
should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6).

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MEMORANDUM IN SUPPORT OF MOTION
TO DISMISS AMENDED COMPLAINT
Case No.10-cv-04712-JF

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II.

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Facebook’s CAN-SPAM Act Claim (Count I) must be Dismissed
1.
The Court Must Dismiss Facebook’s Claim That MaxBounty
Induced A Violation Of The Act Because The Amended
Complaint Does Not Allege Any Relationship Between
MaxBounty And The (Unidentified) “Facebook Users” Who
Sent The Allegedly Improper Emails

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In Count I of the Amended Complaint, Facebook asserts a violation of the CAN-SPAM

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Act, 15 U.S.C. §7701 et seq. (Dkt. #36 at ¶¶63-80.) The CAN-SPAM Act prohibits the

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transmission of “electronic mail messages” that contain “header information that is materially

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false or materially misleading.” 15 U.S.C. §7704(a)(1). The Act can be violated by “initiat[ing]”

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or “procur[ing]” the transmission of misleading messages. 15 U.S.C. §7702(9). The Act defines

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the term “procure” to include “induc[ing] another person to initiate such a message on one‟s

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behalf.” 15 U.S.C. §7702(12).

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A.

ANALYSIS

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The “electronic mail messages” at issue in the Amended Complaint are those sent

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“between users on the Facebook site,” in other words, from one Facebook user to another. (Dkt.

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#36, Amended Complaint, ¶66.) Facebook does not allege that MaxBounty sent any of the

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“electronic mail messages” at issue, or even that MaxBounty had any contact with anyone that

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sent any of the “electronic mail messages.” Facebook never identifies (1) an actual sender, (2)

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an actual recipient, or (3) the content of any actual electronic mail message that was allegedly

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transmitted in violation of the Act.

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Because the unidentified messages at issue were transmitted by unidentified “Facebook

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users” and not MaxBounty, MaxBounty cannot be liable for the “origination or transmission of

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such message” under 15 U.S.C. §7702(9). Because the Amended Complaint fails to (and cannot)

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allege any relationship of any kind between MaxBounty and the “Facebook users” that sent the

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unidentified messages, Facebook has failed to show that MaxBounty is liable for procurement or

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inducement of such messages under 15 U.S.C. §7702(9) and (12). Thus, dismissal pursuant to

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Fed.R.Civ.P. 12(b)(6) is required.

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MEMORANDUM IN SUPPORT OF MOTION
TO DISMISS AMENDED COMPLAINT
Case No.10-cv-04712-JF

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The Court Must Dismiss Count I Because The Amended
Complaint Does Not Allege That The (Unidentified) Messages
Contained “Materially False or Materially Misleading” “Header
Information”

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Facebook alleges that (unidentified) email messages “contain header information that is

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materially false or misleading as to the true initiator of the messages.” (Dkt. #36, ¶ 69.) But this

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allegation merely recites the pertinent language of the CAN–SPAM Act without factual details.

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Nowhere does Facebook identify the content of any allegedly improper email header or show

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that the header contained “materially false or materially misleading” information as required to

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violate 15 U.S.C. §7704(a)(1).

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Such bare allegations are insufficient as a matter of law. BellAtlantic Corp. v. Twombly,

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127 S.Ct. 1955, 1959 (2007) (“[A] plaintiff's obligation to provide the grounds of his entitlement

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to relief requires more than labels and conclusions, and a formulaic recitation of a cause of

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action's elements will not do.”)

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allegations in ¶¶70-72 are not “enough to raise a right to relief above the speculative level on the

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assumption that all of the complaint's allegations are true.” BellAtlantic, 127 S.Ct. at 1959.

(Internal quotations and citations omitted.)

Facebook‟s

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Magistrate Judge Seeborg previously dismissed a Facebook CAN-SPAM Act claim for

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this very reason. Facebook, Inc. v. ConnectU LLC, 489 F.Supp.2d 1087, 1094-1095 (N.D.Cal.

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2007) (dismissing Facebook‟s CAN-SPAM claim pursuant to Fed.R.Civ.P. 12(b)(6) because

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“nothing in the complaint suggests that emails subsequently sent to those addresses included

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headers that were misleading or false as to the source from which they originated, or in any other

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manner.”)

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dismissed.

Facebook‟s allegations in the present case are equally deficient and must be

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3.

Count I’s Other Allegations Also Lack Sufficient Factual Detail

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Facebook makes other boilerplate allegations in Count I, for example in paragraphs 70-74

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of its Amended Complaint. While “a court must accept as true all of the allegations contained in

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a complaint . . .[, t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2008) (citation

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omitted). For this reason, “a court considering a motion to dismiss can choose to begin by

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MEMORANDUM IN SUPPORT OF MOTION
TO DISMISS AMENDED COMPLAINT
Case No.10-cv-04712-JF

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identifying pleadings that, because they are no more than conclusions, are not entitled to the

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assumption of truth.” Id. at 1950.

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The key allegations in Count I are “[t]hreadbare recitals of the elements of a cause of

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action,” not factual pleadings. Accordingly, the Court must ignore them when deciding this Rule

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12(b)(6) motion. But without those allegations, Count I does not state a cause of action, so it

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must be dismissed.

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B.

Facebook’s Computer Fraud and Abuse Act Claim (Count II) Fails
Because MaxBounty And Its Customers Were Authorized To Access
Facebook’s Computers and Post Pages on Facebook.com
The CFAA “was originally designed to target hackers who accessed computers to steal

information or to disrupt or destroy computer functionality.” LVRC Holdings LLC v. Brekka,
581 F.3d 1127, 1130 (9th Cir. 2009). Section 1030(a)(4) states:
(a) Whoever-

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(4) knowingly and with intent to defraud, accesses a protected computer
without authorization, or exceeds authorized access, and by means of
such conduct furthers the intended fraud and obtains anything of value,
unless the object of the fraud and the thing obtained consists only of the
use of the computer and the value of such use is not more than $5,000 in
any 1-year period;
(18 U.S.C. §1030(a)(4), emphasis added.)
In LVRC, the Ninth Circuit made clear that the “without authorization” language of the
Act does not prohibit authorized computer access, regardless of any alleged wrongdoing that
may be done following such authorized access.

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[F]or purposes of the CFAA, when an employer authorizes an employee to use a
company computer subject to certain limitations, the employee remains
authorized to use the computer even if the employee violates those limitations. It
is the employer's decision to allow or to terminate an employee's authorization to
access a computer that determines whether the employee is with or “without
authorization.”

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LVRC, 581 F.3d at 1133. Although this is not an employment case, the same principles apply. It

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is Facebook‟s decision “to allow or to terminate” MaxBounty or its customers‟ access to
Facebook‟s computers.
MEMORANDUM IN SUPPORT OF MOTION
TO DISMISS AMENDED COMPLAINT
Case No.10-cv-04712-JF

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“While the CFAA itself does not define the terms „authorization‟ or „without

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authorization,‟ the Ninth Circuit has interpreted the term „without authorization‟ to mean

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„without any permission at all.‟” AtPac, Inc. v. Aptitude Solutions, Inc., 730 F.Supp.2d 1174,

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1179 (E.D. Cal. 2010), quoting LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1133 (9th Cir.

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2009). In AtPac, the Eastern District of California granted the defendants‟ Rule 12(b)(6) motion

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to dismiss AtPac‟s CFAA claim under §1030(a)(4) because the defendants had permission to

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access the computers at issue – they had used the passwords that the plaintiff had provided them

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for access to the computer. AtPac, 730 F.Supp.2d at 1180-1181.

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What [defendant] chose to do once it accessed the AtPac directories-what its
intent in accessing those portions of the ER-Recorder server was-is irrelevant. The
CFAA simply does not apply to those who have authority to access specific parts
of a computer but do so with an improper purpose. While [defendants] actions
may have violated the terms of the License Agreement or other contract with
AtPac and may have constituted an inappropriate use of the information, they did
not violate the CFAA. See State Analysis, Inc. v. American Financial Services
Assoc., 621 F.Supp.2d 309 (E.D.Va.2009).

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AtPac, 730 F.Supp.2d at 1181.
There is no dispute that MaxBounty is “a registered Facebook user.”

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Amended Complaint at ¶40.) Thus, MaxBounty accessed Facebook with authorization, not
“without authorization” as prohibited by the statute. LVRC, 581 F.3d at 1133. The same is true
for MaxBounty‟s customers. Otherwise, they could not “post” their promotions on “Facebook
Pages” as they were alleged to have done in the Amended Complaint. (Dkt. #36, Amended
Complaint, ¶¶ 43-44, 46-47.) The Amended Complaint does not allege these entities were
unauthorized “hackers” that accessed Facebook without authorization from Facebook.
Facebook also alleges that MaxBounty‟s customers violate 18 U.S.C. §1030(a)(4) by

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(Dkt. #36,

operating “in excess of authorization” as defined by Facebook‟s terms and conditions. (Dkt.
#36, ¶83.) The CFAA provides: “the term „exceeds authorized access' means to access a
computer with authorization and to use such access to obtain or alter information in the
computer that the accesser is not entitled so to obtain or alter.” 18 U.S.C. § 1030(e)(6) (italics
added).

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MEMORANDUM IN SUPPORT OF MOTION
TO DISMISS AMENDED COMPLAINT
Case No.10-cv-04712-JF

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In LVRC Holdings, the Ninth Circuit stated, in dicta, that “[a] person who „exceeds

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authorized access,‟ has permission to access the computer, but accesses information on the

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computer that the person is not entitled to access.” 581 F.3d at 1133 (citations omitted). This

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statement was discussed in AtPac as follows:

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[I]f she has authority to access information on a computer then she cannot violate
the CFAA by accessing it. See United States v. Nosal, No. 08-0237, 2010 WL
934257, at *6 (N.D.Cal. Jan. 6, 2010) (“If a person is authorized to access the „F‟
drive on a computer or network but is not authorized to access the „G‟ drive of
that same computer or network, the individual would „exceed authorized access' if
he obtained or altered anything on the „G‟ drive.”). Indeed, the LVRC court wrote
in dicta that, had the issue been before it, it would have also found that Brekka
had not exceeded authorized access when he downloaded files from his
employer's computer and sent them to his wife during his employment and
continued to access his employer's website with his administrative log-in after his
employment ended. 581 F.3d at 1135 n. 7.
AtPac, 730 F.Supp.2d at 1180-1181.

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The Amended Complaint identifies three sets of terms and conditions that MaxBounty

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allegedly induced its customers to violate: (1) Facebook‟s “Statement,” (2) Facebook‟s “Pages

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Terms” and (3) Facebook‟s “Advertising Guidelines.” (Dkt. #36, Amended Complaint, ¶¶83-84,

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citing Exhibits B, C and D, respectively.) However, the Amended Complaint does not identify

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any provision from these documents defining permissible or impermissible access to Facebook‟s

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computers, let alone any access provision that MaxBounty violated or induced its customers to

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violate. The Amended Complaint does not allege that MaxBounty induced its customers to “use

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such access to obtain or alter information in the computer that the accesser is not entitled so to

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obtain or alter” as the Act requires to “exceed authorized access.” 18 U.S.C. §1030(e)(4) and

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(6). Facebook does not allege that MaxBounty‟s customers “accessed” anything they were not

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permitted to access, “obtain[ed]” something that the terms and conditions prohibited them from

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“obtaining,” or that they “alter[ed]” something that the terms prohibited them from altering.

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Facebook‟s allegations that its terms and conditions were somehow violated do not,

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without more, give rise to a claim under the CFAA. As the court in AtPac held “[w]hile

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[defendants] actions may have violated the terms of the License Agreement or other contract

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MEMORANDUM IN SUPPORT OF MOTION
TO DISMISS AMENDED COMPLAINT
Case No.10-cv-04712-JF

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with AtPac and may have constituted an inappropriate use of the information, they did not

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violate the CFAA.” AtPac, 730 F.Supp.2d at 1181. Thus, Count II must be dismissed.

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C.

Facebook’s Fraud Claim (Count III) Fails Because It Contains No
Factual Allegations MaxBounty Has Engaged In Any Fraud

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In its Order dismissing Facebook‟s original fraud claim, the Court held:

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Facebook alleges no facts concerning who at MaxBounty had knowledge of the
alleged scheme, what those individuals knew, or how MaxBounty contributed to
the alleged fraud. Nor does Facebook identify any of the affiliates responsible for
creating the Facebook pages at issue. Facebook must provide significantly more
factual detail in order for the Court to make a reasoned evaluation as to the
plausibility of its claim.

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(Dkt. #35, Order at 10.)
In the Amended Complaint, Facebook alleges that MaxBounty‟s customers – not
MaxBounty – “generate traffic for Defendant‟s customers through fraudulent and deceptive
means, including false and deceptive promotions posted to Facebook Pages.”

(Dkt. #36,

Amended Complaint, ¶43.) The Amended Complaint does not include any factual allegations
whatsoever that MaxBounty, itself, has engaged in any fraud. Thus, Facebook‟s conclusory
allegation in Count III that “Defendant intended to and in fact did defraud Facebook” lacks any
factual support in the Amended Complaint, and must be dismissed. Fed.R.Civ.P. 9(b); Schreiber
Distributing Co. v. Serv-Well Furniture Co., Inc., 806 F.2d 1393, 1400-01 (9th Cir.1986)
(compliance with Rule 9(b) requires a statement of “the time, place, and specific content of the
false representations as well as the identities of the parties to the misrepresentation.”).
The Supreme Court in Iqbal addressed this very issue. Iqbal argued that “the Federal
Rules expressly allow him to allege petitioners‟ discriminatory intent „generally,‟ which he
equates with a conclusory allegation.” Iqbal, 129 S.Ct. at 1954. Rejecting Iqbal‟s argument, the
Court held “the Federal Rules do not require courts to credit a complaint‟s conclusory statements
without reference to its factual context.” Id. The Court explained that “generally” does not
mean “conclusory”:
It is true that Rule 9(b) requires particularity when pleading “fraud or mistake,”
while allowing “[m]alice, intent, knowledge, and other conditions of a person's
mind [to] be alleged generally.” But “generally” is a relative term. In the context
MEMORANDUM IN SUPPORT OF MOTION
TO DISMISS AMENDED COMPLAINT
Case No.10-cv-04712-JF

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of Rule 9, it is to be compared to the particularity requirement applicable to fraud
or mistake. Rule 9 merely excuses a party from pleading discriminatory intent
under an elevated pleading standard. It does not give him license to evade the
less rigid-though still operative-strictures of Rule 8. [Citation omitted.] And
Rule 8 does not empower respondent to plead the bare elements of his cause
of action, affix the label “general allegation,” and expect his complaint to
survive a motion to dismiss.
Id. (emphasis added).
Facebook‟s fraud claim boils down to its allegation that MaxBounty “aided and abetted”
fraud allegedly committed by MaxBounty‟s customers, referred to in the complaint as
“affiliates.”
Through the actions described in the preceding paragraphs, Defendant aids and
abets its affiliates‟ fraud. Defendant has actual knowledge of its affiliates‟ fraud
and provides substantial assistance in furtherance of the fraud by assigning
affiliates who are generating a significant amount of Facebook traffic to specific
Facebook Affiliate Managers like Adam Harrison, who review affiliates‟ Pages
and give suggestions for deals and content designed to maximize traffic to
Defendant’s customers’ websites.
(Dkt. #36, ¶104, emphasis added.)
Facebook alleges that Mr. Harrison provided its customers with unidentified
“suggestions” that are “designed to maximize traffic” to MaxBounty‟s customers. Elsewhere in
the complaint, Facebook alleges that Mr. Harrison (1) provided one of its affiliates with
“technical help for designing Facebook Pages and for increasing the number of Facebook users
who would receive notice and act upon the offers presented,” and (2) encouraged the customer to
“to run other Facebook campaigns for other similar offers and to use techniques that were
designed to increase the effectiveness of these campaigns.” (Dkt. #36, ¶52.) These non-specific
allegations regarding Mr. Harrison are clearly not instances of aiding and abetting fraud.
In the Order dismissing Facebook‟s original fraud claim, the Court held:
A claim for aiding and abetting requires (1) the existence of an independent
primary wrong, (2) actual knowledge by the alleged aider and abettor of the
wrong and his or her role in furthering it, and (3) substantial assistance in the
wrong." In re 3Corn Securities Litigation, 761 F. Supp. 1411, 1418 (N.D. Cal.
1990) (citing Harmsen v. Smith, 693 F.2d 932, 943 (9th Cir. 1982)). "Substantial
assistance requires that the defendant‟s actions be a ‟substantial factor‟ in causing
the plaintiff‟s injury." Impac Warehouse Lending Group v. Credit Sussie First
Boston LLC, 270 Fed.Appx. 570, 572 (9th Cir. 2008) (internal citation omitted).
(Dkt. #35 at 10, emphasis added.)

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MEMORANDUM IN SUPPORT OF MOTION
TO DISMISS AMENDED COMPLAINT
Case No.10-cv-04712-JF

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Facebook‟s Amended Complaint contains no allegation that Mr. Harrison took any

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particular “role in furthering [the alleged fraud]” or “substantial assistance in the wrong” as the

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law and the Federal Rules require. Just as the Court found with Facebook‟s original fraud claim,

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neither the second or third element of aiding and abetting is adequately pled.
Facebook claims conclusorily that MaxBounty knows its affiliates are creating
misleading Facebook pages and aids and abets this activity by “providing
technical support, suggestions for Pages, and financial incentives to affiliates.”
(Opp. to MTD, 8:18-21; see also Compl. 11 43-45, 85-88). These allegations
merely provide a "formulaic recitation of a cause of action" and lack factual
support. Bell Atl. v. Twombly, 550 U.S. 544, 555 (2007).

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(Dkt. #35 at 11.)

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Facebook has added only generalized allegations to its Amended Complaint, none of

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which state a claim against MaxBounty for fraud, or for aiding and abetting fraud. Count III

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should be dismissed for failure to state a claim upon which relief can be granted.

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III.

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CONCLUSION

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For the above reasons, Counts I – III of the Amended Complaint should be dismissed
pursuant to Fed.R.Civ.P. 12(b)(6).

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Respectfully submitted,

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By:_/s/ Thomas A. Lewry
Thomas A. Lewry (Admitted Pro Hac Vice)
[e-mail]
John S. LeRoy (Admitted Pro Hac Vice)
[e-mail]
BROOKS KUSHMAN P.C.
1000 Town Center, Twenty-Second Floor
Southfield, MI 48075
Tel. [phone]; Fax [phone]

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Mark B. Mizrahi, State Bar No. 179384
[e-mail]
BROOKS KUSHMAN P.C.
6701 Center Drive, Suite 610
Los Angeles, CA 90045
Tel. [phone]; Fax [phone]

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Date: May 13, 2011

Attorneys for Defendant, MaxBounty, Inc.

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MEMORANDUM IN SUPPORT OF MOTION
TO DISMISS AMENDED COMPLAINT
Case No.10-cv-04712-JF

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CERTIFICATE OF ELECTRONIC SERVICE
I hereby certify that on May 13, 2011 , I electronically filed the foregoing document
with the Clerk of the Court for the Northern District of California using the ECF System which
will send notification to the following registered participants of the ECF System as listed on the
Court's Notice of Electronic Filing: Joseph Perry Cutler, James R. McCullagh, and Brian Patrick
Hennessy.
I also certify that I have mailed by United States Postal Service the paper to the following
non-participants in the ECF System: NONE.

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By: /s/ Thomas A. Lewry
[e-mail]
BROOKS KUSHMAN P.C.

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Attorneys for Defendant, MaxBounty, Inc.

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MEMORANDUM IN SUPPORT OF MOTION
TO DISMISS AMENDED COMPLAINT
Case No.10-cv-04712-JF

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