Janson et al v. LegalZoom.com, Inc.

Filing 118

REPLY SUGGESTIONS to motion re 88 MOTION for partial summary judgment filed by Matthew A. Clement on behalf of Plaintiffs Gerald T. Ardrey, C & J Remodeling LLC, Chad M Ferrell, Todd Janson. (Attachments: # 1 Exhibit)(Related document(s) 88 ) (Clement, Matthew)

IN UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
TODD JANSON, et al., on behalf of
themselves and on behalf of all others
similarly situated,

Plaintiffs,
v.
LEGALZOOM.COM, INC.

Defendant.

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Case No. 2:10-cv-04018-NKL

Plaintiffs’ Reply to Defendant’s Suggestions in Opposition of
Plaintiffs' Motion for Partial Summary Judgment

INTRODUCTION
As LegalZoom acknowledges in its opposition to this Motion, the Court indicated that a
central issue in the case is “what type of online interaction between buyer and seller of legal
forms constitutes ‘assisting in the drawing for a valuable consideration of any paper, document
or instrument affecting or relating to secular rights.’” See Order Granting Class Certification
(Doc. #61), p. 10 (emphasis added). In an effort to streamline the case and reduce the number of
issues necessary to present at trial, Plaintiffs filed this Motion for Partial Summary Judgment
asking the Court for a ruling that the documents at issue are documents that affect or relate to
secular rights. LegalZoom opposes the Motion arguing that this issue is “irrelevant” and “would
not save one minute of time at trial.” Such an argument, however, ignores the last prong of what
this Court clearly stated is a central issue in the case – whether the documents at issue affect or
relate to secular rights.
As set forth in the Suggestions in Support of this Motion and in this Reply, the
determination of whether the documents at issue relate to or affect secular rights is a purely legal
question and a ruling on this issue would spare the finder of fact the time consuming task of
listening to testimony regarding what rights each particular document may affect.
ARGUMENT
I.

LegalZoom Ignores the Issue Raised in Plaintiff’s Motion
A.

Plaintiffs’ Motion for Partial Summary Judgment Addresses a
Central Issue of this Case and Serves to Expedite and Advance this
Litigation

LegalZoom first argues Plaintiffs’ Motion for Partial Summary Judgment “glides over all
the central issues in the case.” It then completely ignores the true issue raised by Plaintiffs’
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Motion and accuses Plaintiffs of failing to address LegalZoom’s conduct in creating the
documents at issue. Such is not the case. As this Court stated in the Order Granting Class
Certification, Plaintiffs must show 1) Defendant assisted in the drawing for valuable
consideration of 2) any paper, document or instrument affecting or relating to secular rights. See
(Document #61), p. 10. Plaintiffs’ Motion for Partial Summary Judgment simply asks this Court
to find that the documents at issue in this matter, those documents resulting from the services
offered by LegalZoom, affect or relate to secular rights. Contrary to LegalZoom’s argument,
Plaintiffs’ Motion does not glide over the central issue in this case but, rather, directly addresses
one part of that central issue. Resolution of this simple and straightforward issue will greatly
streamline the trial of this case.
B.

Missouri Case Law Supports Plaintiffs’ Motion

LegalZoom next attempts to re-argue the issues presented in its Motion for Summary
Judgment by asserting that it is merely selling “forms” and not assisting in the drawing of
documents. Again, this issue was not raised in Plaintiffs’ Motion for Partial Summary Judgment.
This goes to the first prong of the central issue in the case – i.e. “what type of online interaction .
. . constitutes ‘assisting in the drawing for a valuable consideration.” See Order Granting Class
Certification (Doc. #61), p. 10. This issue was addressed in LegalZoom’s Motion for Summary
Judgment and will be addressed at trial.
Furthermore, LegalZoom does more than just sell fill-in-the-blank forms such as those at
issue in the In Re Thompson case on which it relies. The LegalZoom process is more completely
explained in Plaintiffs’ Suggestions in Opposition to Defendant’s Motion for Summary
Judgment. See (Doc. # 113) , Plaintiffs’ Response to LegalZoom’s Statement of Fact 2., pp. 2 –
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6. In obtaining the documents at issue in this case, the consumers never even see a form or fillin-the-blank document.

Rather, the customer is asked a series of questions and LegalZoom

prepares a document based on these answers. Id. This case is far different from the facts of In
Re Thompson, 574 S.W.2d 365 (Mo. 1978).
Interestingly, LegalZoom’s advertisements, in stark contrast the position it now takes
with this Court, proudly confirm that it is LegalZoom that prepares the legal documents, not its
customers. For example, a national television advertisement states:
I’m Robert Shapiro. Over a million people have discovered how easy it is use
LegalZoom for important legal documents, and LegalZoom will help you incorporate
your business, file a patent, make a will and more. You can complete our online
questions in minutes. Then we’ll prepare your legal documents and deliver them
directly to you. So start your business, protect your family, launch your dreams. At
LegalZoom.com we put the law on your side.
See Plaintiffs’ Suggestions in Opposition to Defendant’s Motion for Summary Judgment (Doc.
# 113), Additional Uncontroverted Material Fact #4, pg 39 (emphasis added), (the Deposition
Testimony is attached again hereto as Exhibit 1 to this Motion). LegalZoom is talking out of
both sides of its mouth by now arguing that consumers are the ones preparing the legal
documents and not LegalZoom.
Plaintiffs do agree with LegalZoom on at least one point – the judiciary is the arbiter of
what constitutes the practice of law. Eisel v. Midwest BankCentre, 230 S.W.3d 335 (Mo. Banc
2007). However, LegalZoom is incorrect in its implication that whether the documents at issue
affect or relate to secular rights is irrelevant under Missouri caselaw. As the Eisel Court held
(and this Court agreed in the Order Granting Class Certification), §484.010, RSMo. which uses
the very language LegalZoom wishes to ignore, aids the courts in determining whether the
unauthorized practice of law has occurred.
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The Missouri Supreme Court discussed at length the interplay between the statutes at
issue and the power of the Court as it relates to the unauthorized practice of law in Clark v.
Austin, 101 S.W.2d 977 (Mo.1937). The Clark Court held courts have the:
inherent power to regulate the practice of law…and that any statute frustrating that power
is unconstitutional. But... ‘The legislature may enact police legislation for the protection
of the public against things hurtful or threatening to their safety and welfare. [So long as
they do not infringe upon the powers properly belonging to the courts,] they may
prescribe reasonable conditions which will exclude from the practice those persons
through whom injurious consequences are likely to result to the inhabitants of the state.’
Clark v. Austin, 101 S.W.2d at 990.
The Missouri legislature enacted §§484.010 - .020, RSMo. to protect the public against
the unauthorized practice of law. Missouri courts uniformly approve these statutes and the
definitions provided therein to aid in the determination of whether conduct constitutes the
unauthorized practice of law. See Eisel v. Midwest BankCentre, 230 S.W.3d 335 (Mo. 2007),
Carpenter v. Countrywide Home Loans, Inc., 250 S.W.3d 697 (Mo. 2008), In re Mid-Am. Living
Trust Assocs., Inc., 927 S.W.2d 855 (Mo. 1996); Hulse v. Criger, 247 S.W.2d 855 (Mo. 1952),
Zmuda v. Chesterfield Valley Power Sports, Inc., 267 S.W.3d 712 (Mo. App. 2008). Thus, the
definitions contained in these statutes are not “irrelevant” or immaterial as LegalZoom argues.
Rather, they are central to the issues raised by this case and this Motion, namely whether the
documents are those “relating to or affecting secular rights.” § 484.010.2, RSMo.
There simply is no conflict between the statutes and the case law as LegalZoom implies.
LegalZoom cites no case that finds that the documents at issue in an unauthorized practice of law
case did not relate to or affect secular rights. The cases all cite the statutes at issue with
approval. Because there is generally no issue in the unauthorized practice of law cases as to
whether the documents at issue related to or affected secular rights, the decisions rarely analyze
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that issue. Id. Accordingly, some of the Courts refer to the documents simply as “legal”
documents as short hand for documents that relate to or affect secular rights.

See e.g.,

Carpenter, 250 S.W.3d at 702; Zmuda v. Chesterfield Valley Power Sports, Inc., 267 S.W.3d
712, 715 (Mo. App. E.D. 2008). Regardless of which term is used, there can be no serious
question as to whether the documents at issue are “legal” documents1 and/or documents that
relate to or affect “secular rights.”
C.

Plaintiffs’ Motion for Partial Summary Judgment Only Addresses the
Documents at Issue, Not LegalZoom’s Conduct

LegalZoom next argues Plaintiffs “mischaracterize” its conduct related to the documents
at issue, creatively arguing that it does not sell legal documents despite the fact that in return for
payment, it sends a customized and individualized legal document to the customer’s door.
LegalZoom even tells the public that “we’ll prepare your legal documents and deliver them
directly to you.” See Plaintiffs’ Suggestions in Opposition to Defendant’s Motion for Summary
Judgment (Doc. # 113), Additional Uncontroverted Material Fact #4, pg 39, (Deposition
Testimony attached again hereto as Exhibit 1 to this Motion). LegalZoom is even a licensed
document preparer in the State of California. Id., Additional Uncontroverted Material Fact # 9.
However, it now expects the Court to believe that it plays no role in preparing the documents or
even in assisting in the drawing of the documents.
LegalZoom continually repeats the mantra that “customers create” documents via the
LegalZoom website and LegalZoom plays no role. However, repeating the phrase over and over

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LegalZoom’s own advertisement even state that the documents it delivers directly to its
customers are “legal documents.” See Plaintiffs’ Suggestions in Opposition to Defendant’s
Motion for Summary Judgment (Doc. # 113), Additional Uncontroverted Material Fact #4, pg 39,
(Deposition Testimony attached again hereto as Exhibit 1 to this Motion).

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simply does not make it so. LegalZoom’s public statements completely contradict its statements
to this Court. Regardless, for purposes of the motion at issue, LegalZoom’s conduct and whether
that conduct arises to the unauthorized practice of law (in other words, whether its conduct
constitutes the assisting in the drawing of such documents for valuable consideration) is not at
issue. That is a factual issue that will be determined at trial (if LegalZoom escapes a directed
verdict after all evidence is presented).2 The issue presented in this Motion is simply whether the
documents at issue relate to or affect secular rights (or are “legal” documents).
D.

This Motion Does Not Implicate Constitutional Issues

Likewise, LegalZoom’s arguments regarding whether is conduct is protected by the First
Amendment is not at issue in the Motion at hand. For the sake of brevity, Plaintiffs’ respectfully
refer the Court to their Response to LegalZoom’s Motion for Summary Judgment on the
constitutional issues for their response to these arguments. Such issues simply have nothing to
do with whether the documents at issue affect or relate to secular rights.
II.

The Documents at Issue Relate to or Affect Secular Rights and Are
Therefore Legal Documents

LegalZoom next argues that the documents at issue do not “affect secular rights” because
they may not be effective until a subsequent event occurs (e.g., execution, filing, etc.). Again,
the argument misses the mark. Of course, it is true with many documents, even those documents
prepared by a lawyer, that they may not have final effect until such documents are filed or
executed. However, that does not mean that it falls outside of the definition of documents
implicated by the unauthorized practice of law statutes and caselaw.
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The issue is also addressed in Plaintiff’s Suggestions in Opposition to Defendant’s Motion for
Summary Judgment. By stating there is an issue of fact now, Plaintiffs do not waive the right to
ask the Court to direct a verdict after all of the evidence is presented.

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If LegalZoom were correct that documents not yet signed are not implicated by the
unauthorized practice of law statutes and caselaw, the laws governing the unauthorized practice
of law would be rendered meaningless. Under such an interpretation, a real estate broker could
prepare wills for his or her clients and simply tell them not to sign them in his or her office, but
rather take them somewhere else to make them effective. Under LegalZoom’s view of the law,
this would be perfectly acceptable because when the will left the broker’s office it was not yet
“effective” as it was not signed. Such a result is obviously preposterous.
The interpretation urged by LegalZoom is not tenable. Under Missouri law, when
“construing a statute enacted under the police power and primarily intended to protect the public
from the rendition of certain services, deemed to require special fitness and training on the part
of those performing the same, by persons not lawfully held to possess the requisite
qualifications….the statute [] should be interpreted, if possible, so as to effectuate the legislative
intent.” State ex inf. Miller v. St. Louis Union Trust Co., 74 S.W.2d 348, 357 (Mo. 1934). The
legislative intent in enacting §§484.010-.020, RSMo was clearly to make sure that those people
or entities that assist in the drawing of legal documents, such as those at issue in this case, must
be licensed to practice law in Missouri. If LegalZoom is successful in arguing that because
documents may not be signed or filed when they leave LegalZoom’s office they therefore do not
fall within the definitions of §484.010, RSMo, it would render the statute meaningless.
The flaw in LegalZoom’s argument is further demonstrated in the In re Mid-America
Living Trust Associates, Inc. case. There, an unlicensed entity creating trusts, pour-over wills,
durable and general power of attorneys, among other legal documents, and delivering unsigned
documents to the customer for execution was found to be conducting the unauthorized practice
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of law. In Re Mid-America Living Trust Associates, Inc., 927 S.W.2d, 850, 856-57 (Mo. 1996).
Clearly, the court there understood that the documents in that case were delivered to the
customer in a state in which they were not yet executed. However, that fact did not keep the
Court from finding those documents fell within the purview of the unauthorized practice of law,
i.e., documents that affect or relate to secular rights.
In addition, LegalZoom’s argument focuses solely on the term “affecting” and
completely ignores the fact the statute at issue actually reads that the documents or instruments
implicated are those “affecting or relating to secular rights.” § 484.010.2, RSMo (emphasis
added). It does not even attempt to address how the documents identified in Plaintiffs’ Motion
do not, at a minimum, “relate to” the consumers’ secular rights.
Simply put, the documents at issue are clearly “affecting or relating to secular rights.”
Whether LegalZoom’s conduct associated with those documents amounts to the “drawing of” or
“assisting in the drawing” of such documents is not at issue in this Motion and will be decided at
another time.
III.

The Issue Raised in this Motion is Procedurally Proper

LegalZoom’s final argument is that the issue raised by Plaintiffs’ Motion is procedurally
improper because it will not resolve a “material issue” in the case. Again, LegalZoom simply
ignores the fact that there are two parts of what it acknowledges is a “central issue” in the case.
That is, 1) what “constitutes assisting in the drawing for valuable consideration” of 2) “any
paper, document or instrument affecting or relating to secular rights.’” See Defendant’s
Suggestions in Opposition to Plaintiffs’ Motion for Partial Summary Judgment (Doc. #112), p.
10 (quoting this Court’s Order Granting Class Certification). Obviously, part of this “central
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issue” is whether the documents affect or relate to secular rights. That is the “part of” the claim
on which Plaintiffs seek partial summary judgment.
Federal Rule of Civil Procedure 56(a) provides that:
A party may move for summary judgment, identifying each claim or defense--or the part
of each claim or defense--on which summary judgment is sought. The court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.
(emphasis added). LegalZoom argues that the “part of each claim” language of Rule 56(a)
should be ignored, and this Court should deny Plaintiffs’ Motion on grounds that seeking an
order on just part of a claim is inappropriate. However, even before the language regarding
summary judgment on “part of each claim” was added to Rule 56(a), this Court addressed the
issue of summary judgment on just a portion of a claim in Blackford v. Action Products Co., Inc.,
92 F.R.D. 79 (W.D. Mo. 1981) and stated as follows:
Defendant maintains that summary judgment is not permitted as to a portion of a single
claim…The Federal Rules of Civil Procedure provide that a party seeking to recover
upon a claim may be awarded summary judgment “upon all or part thereof”. Rule 56(a)
F.R.Civ.P…We decline defendant's invitation to read less into the rule than is there. We
do not believe defendant's interpretation to represent either the intent of the drafters or
sound procedural policy. The award of summary judgment on a portion of a claim is
clearly covered by the words of Rule 56(a). It is a not uncommon occurrence, and has
been the practice since early decisions applying the Federal Rules of Civil Procedure.
Blackford v. Action Products Co., Inc., 92 F.R.D. at 79-80.
The relief requested in this Motion is entirely appropriate under both Fed. R. Civ. P. 56
and the caselaw. Disposition of the issue advances the case and will expedite the litigation
because it is part of the central issue in this case. “Partial summary judgment accelerates
litigation by framing and narrowing triable issues, and by eliminating, before trial, matters that

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contain no genuine issue of material fact.” Antenor v. D & S Farms, 866 F.Supp. 1389, 1396
(S.D.Fla. 1994).
CONCLUSION
LegalZoom prepares legal documents. LegalZoom advertises its services as an entity that
will “prepare” legal documents Missouri consumers.

It is even a licensed legal document

preparer in the state of California. However, who prepares the documents is not at issue in this
Motion. Rather, Plaintiffs’ Motion simply seeks a determination that the documents purchased
by the class as specified in the Motion for Partial Summary Judgment are in fact what
LegalZoom sold and advertised them as – legal documents (i.e. those affecting or relating to
secular rights). The jury in this matter will have enough issues to deal with and decide besides
whether certain documents are “legal” or not. This matter is not genuinely contested and is best
resolved in a Motion for Partial Summary Judgment.
Respectfully submitted,

____/s/Matthew A. Clement_____________ ____
Timothy Van Ronzelen, #44382
Matthew A. Clement, #43833
Kari A. Schulte, #57739
COOK, VETTER, DOERHOFF & LANDWEHR
231 Madison
Jefferson City, Missouri 65101
Telephone: [phone]
Facsimile: 573-635-7414
[e-mail]
[e-mail]
[e-mail]
and

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Edward D. Robertson, Jr., # 27183
Mary Doerhoff Winter, # 38328
BARTIMUS, FRICKLETON, ROBERTSON
& GORNY
715 Swifts Highway
Jefferson City, MO 65109
Telephone: [phone]
Facsimile: 573 659-4460
[e-mail]
[e-mail]

David T. Butsch, # 37539
James J. Simeri, #52506
BUTSCH SIMERI FIELDS LLC
231 S. Bemiston Ave., Ste. 260
Clayton, MO 63105
Telephone: [phone]
Facsimile: 314-863-5711
[e-mail]
[e-mail]

Randall O. Barnes, #39884
RANDALL O. BARNES & ASSOCIATES
219 East Dunklin Street, Suite A
Jefferson City, Missouri 65101
Telephone: [phone]
Facsimile: 573-635-6291
[e-mail]

Steven E. Dyer, #45397
LAW OFFICES OF STEVEN DYER
10850 Sunset Office Drive, Ste. 300
St. Louis, MO 63127
Telephone: [phone]
[e-mail]

ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE
I certify that on April 11, 2011, I served this paper upon the following via this Court’s
ECF system:

Party

Defendant
LegalZoom.com, Inc.

Counsel
Robert M. Thompson
James T. Wicks
BRYAN CAVE LLP
One Kansas City Place
1200 Main Street, Ste. 3500
Kansas City, MO 64105
816.374.3200, 816.374.3300 (fax)
John Michael Clear
Michael Biggers
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James Wyrsch
BRYAN CAVE LLP
One Metropolitan Square – Ste. 3600
211 N. Broadway
St. Louis, MO 63102
314.250.2000, 314.259.2020 (fax)

___/s/ Matthew A. Clement __

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