Janson et al v. LegalZoom.com, Inc.

Filing 178

SUGGESTIONS in opposition re 158 MOTION in limine Regarding Statements or Declarations Made by the Federal Trade Commission filed by James T. Wicks on behalf of Defendant LegalZoom.com, Inc.. Reply suggestions due by 8/26/2011 unless otherwise directed by the court (Related document(s) 158 ) (Wicks, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
TODD JANSON, GERALD T. ARDREY, CHAD M.
FERRELL, and C & J REMODELING LLC, on behalf of
themselves and on behalf of all others similarly situated,
Plaintiffs,
Case No. 2:10-cv-04018-NKL
v.
LEGALZOOM.COM, INC.,
Defendant.

SUGGESTIONS IN OPPOSITION TO PLAINTIFFS’
MOTION IN LIMINE (DOC. NO. 158) REGARDING STATEMENTS
OR DECLARATIONS MADE BY THE FEDERAL TRADE COMMISSION
Defendant LegalZoom.com, Inc. (“LegalZoom”), for its Suggestions in Opposition to
Plaintiffs’ Motion in Limine Regarding Statements or Declarations Made by the Federal Trade
Commission (“Motion 158,” Doc. 158), states as follows:
In its motion for summary judgment, LegalZoom directed the Court to two letters
submitted by the Federal Trade Commission (“FTC”) to the ABA Task Force on the Model
Definition of the Practice of Law and to the Rule Committee of the Superior Court of
Connecticut. See Doc. 101 (sealed) at 21 and 22 of 49. Relying on Firemen’s Fund Insurance
Co. v. Thien, 63 F.3d 754 (8th Cir. 1995), Plaintiffs argue that the statements of the FTC will
serve only to confuse the jury. Motion 158 at 2-3. However, Thien is inapposite. The Court in
Thien upheld the district court’s decision to exclude evidence where the evidence was likely to
confuse the issues, prejudice the jury, and lead to litigation of collateral issues. There, in a
wrongful death action where the issue before the jury was whether the defendants’ potential
liability was covered by insurance — and not whether the defendants were in fact liable for the

plaintiff’s death — the court excluded evidence of one defendant’s alleged falsification of
records. Id. at 758. Because actual liability was not before the jurors, and the proffered evidence
pertained “directly to a collateral issue in th[e] case,” was “very likely” to cause the jury to feel
hostility toward the defendant, and would confuse the jury and waste time, the Eighth Circuit
upheld the lower court’s ruling. Id. at 758-59.
Plaintiffs cannot make — and indeed do not even try to make — the showing that was
made in Thien. Plaintiffs fail to offer any plausible explanation of how the jury would be
confused other than to say that the FTC declarations could “mislead the jury into possibly
thinking that the FTC is the standard by which they must view this evidence as compared to
Missouri law.” Motion 158 at 2. This concern is without basis. As set forth in LegalZoom’s
Suggestions in Opposition to Plaintiffs’ effort to strike the FTC comments, LegalZoom does not
contend that the declarations are legal authority or that they have the force and effect of law.
(See Doc. 120, p. 10). Rather, these documents are properly regarded as, and admissible as,
factual evidence of the views of relevant industry and regulatory offices as to the history of UPL
statutes and legal self-help tools like those central to this case.
Further, Plaintiffs fail to establish that any prejudice would result or that presentation of
the FTC letters would waste the jury’s or the Court’s time.
CONCLUSION
For the reasons set forth above, LegalZoom respectfully requests that the Court deny
Plaintiffs’ Motion in Limine Regarding Statements or Declarations Made by the Federal Trade
Commission.

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C072748/0306506/1046118.2

Respectfully submitted,
BRYAN CAVE LLP
By: s/ James T. Wicks
Robert M. Thompson
MO #38156
James T. Wicks
MO #60409
Christopher C. Grenz
MO #62914
One Kansas City Place
1200 Main Street, Suite 3500
Kansas City, MO 64105
Tel.: [phone]
Fax: [phone]
John Michael Clear
MO #25834
Michael G. Biggers
MO #24694
One Metropolitan Square – Suite 3600
211 North Broadway
St. Louis, MO 63102
Tel.: [phone]
Fax: [phone]
Attorneys for LegalZoom.com, Inc.

CERTIFICATE OF SERVICE
I hereby certify that on August 9, 2011, I electronically filed the above and foregoing
with the clerk of court using the CM/ECF system, which will send notice of electronic filing to
all counsel of record.

s/ James T. Wicks

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C072748/0306506/1046118.2