Janson et al v. LegalZoom.com, Inc.

Filing 24

SUGGESTIONS in opposition re 17 MOTION to dismiss case Without Prejudice for Improper Venue filed by James J. Simeri on behalf of Plaintiffs Gerald T. Ardrey, C & J Remodeling LLC, Chad M Ferrell, Todd Janson. Reply suggestions due by 4/12/2010 unless otherwise directed by the court (Related document(s) 17 ) (Simeri, James)

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. ) ) ) ) ) ) ) ) ) ) ) ) )

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

Plaintiffs' Suggestions in Opposition to Defendant's Motion to Dismiss for Improper Venue

Table of Contents
Table of Authorities I. II. Introduction Argument A. B. The Forum-Selection Clause Is Not Valid Because There Is No Valid Contract ii 1 3 3

The Forum-Selection Clause Is Not Valid Because It Is Unfair and Unreasonable 4 1. 2. The Forum-Selection Clause Is Unfair Because It Is a Contract of Adhesion The Forum-Selection Clause is Unreasonable Because it Contravenes a Significant Public Policy in the State of Missouri 5 8 11 12

C. III.

The Forum Selection Clause Cannot Be Enforced Because It Is Vague and Ambiguous

Conclusion

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Table of Authorities
Cases Aral v. Earthlink, Inc., 36 Cal. Rptr. 3d 229 (Cal. Ct. App. 2005) 2

Burcham v. Expedia, Inc., No. 4:07-cv -1963, 2009 WL 586513 (E.D. Mo. Mar. 6, 2009) 3, 10-11 Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991) Carpenter v. Countrywide, 250 S.W.3d 697 (Mo. 2008) (en banc) Colonial Leasing Co. of New England v. Best, 552 F. Supp. 605 (D. Or. 1982) Curry v. Dahlberg, 110 S.W.2d 742 (Mo. 1937) Eisel v. Midwest BankCentre, 230 S.W.3d 335 (Mo. 2007) (en banc) Gilbert v. Edwards, 276 S.W.2d 611 (Mo. App. 1955) Global Satellite Commc'n Co. v. Starmill U.K. Ltd., 378 F.3d 1269 (11th Cir. 2004) Hicks v. Clay County, 636 F. Supp. 2d 903, 912 (W.D. Mo. 2008) High Life Sales Co. v. Brown-Foreman Corp., 823 S.W.2d 493 (Mo. 1992) In re Mid-Am. Living Trust Assocs. Inc., 927 S.W.2d 855, 859 (Mo. 1996) (en banc) 2,7 10 5 4 4 3 11 3 passim 9

Jitterswing, Inc. v. Francorp, Inc., No. ED93045, 2010 WL 933763 (Mo. App. Mar. 16, 6 2010) O'Bannon v. Widick, 198 S.W. 432 (Mo. App. 1917) Paramount Props., LLC v. LaSalle Bank Nat'l Assoc., No. 4:08-cv-00193, 2008 U.S. Dist. Lexis 27596 (E.D. Mo. Apr. 4, 2008) Public Sch. Ret. Sys. of Mo. v. State St. Bank & Trust Co., No. 09-4215-CV-C-NKL, 2010 WL 318538 (W.D. Mo. Jan. 21, 2010) Reisler v. Dempsey, 232 S.W. 229, 230 (Mo. App. 1921) Schoene v. Hickam, 397 S.W. 2d 596 (Mo. 1965) Servewell Plumbing, Inc. v. Federal Ins. Co., 439 F.3d 786 (8th Cir. 2006) Smith, Valentino & Smith, Inc. v. Superior Court, 551 P.2d 1206 (Cal. 1976) Swain v. Auto Services, Inc., 128 S.W.3d 103 (Mo. App. 2003) 3 2 11 3 3 2,4,7 2 6

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Statutes, Rules, Regulations, and Other Authorities § 407.413 RSMo § 484.010, RSMo § 484.020, RSMo Cal. Bus. & Prof. Code §§ 6450-6456 8 1,4,9 10 10

iii

Defendant LegalZoom.com ("LegalZoom") has moved to dismiss for improper venue based on a forum-selection clause that LegalZoom included in the "clickwrap" agreement on its website. The forum-selection clause, if enforced, would require that Plaintiffs file suit "in the courts of the city of Los Angeles, state of California." The Court should deny this motion for three reasons. First, for a forum-selection clause to be enforceable, there must be a valid contract. A contract for the unauthorized practice of law, however, is not a valid contract. Second, LegalZoom's forum-selection clause is not enforceable because it is unfair and unreasonable. Finally, LegalZoom's forum-selection clause is not enforceable because it is ambiguous -- by its terms, it is impossible to determine the appropriate forum.

I.

Introduction
Plaintiffs have alleged four claims against LegalZoom. In Count I, Plaintiffs seek

recovery based on LegalZoom's unauthorized practice of law in violation of §484.010, RSMo. In Count II, Plaintiffs seeks recovery under the theory of money had and received. In Counts III and IV, Plaintiffs seek recovery based on LegalZoom's violation of the Missouri Merchandising Practices Act. All of these claims are based on Missouri law. All of these claims arise out of LegalZoom's unauthorized practice of law in Missouri. Furthermore, all of the named Plaintiffs and putative class members are Missourians. The Plaintiffs did not negotiate these terms of service. Instead, the terms were presented on a take-it-or leave-it basis. See Aff. of Todd Janson attached as Ex. 1, and Aff. of Chad Ferrell, attached as Ex. 2. As reflected in Plaintiffs' affidavits, and the factual background set forth by LegalZoom in its suggestions in support of its motion, LegalZoom presented Plaintiffs with adhesion contracts. 1

As a preliminary matter, to decide this motion, the Court must determine which law to apply. There is some disagreement among the federal courts of appeal as to whether state law or federal law applies to a decision of whether to enforce a forum-selection clause, and the Eighth Circuit has not adopted a position. Servewell Plumbing, Inc. v. Federal Ins. Co., 439 F.3d 786, 789 (8th Cir. 2006). In this case, whether Missouri law or federal law applies will not affect the outcome because the federal standard and the Missouri standard are the same. Paramount Properties, LLC v. LaSalle Bank Nat'l Assoc., No. 4:08-cv-00193, 2008 U.S. Dist. Lexis 27596 (E.D. Mo. Apr. 4, 2008) Assuming that state law did apply, the clickwrap agreement containing the forumselection clause that LegalZoom seeks to enforce also contains a California choice-of-law clause. Despite this choice-of-law clause, curiously, in support of its motion, LegalZoom has cited only Missouri law. The reason is apparent: under California law, LegalZoom's forum-selection clause would not be enforceable. Aral v. Earthlink, Inc., 36 Cal. Rptr. 3d 229, 241 (Cal. Ct. App. 2005) (holding that a forum selection-clause that requires a consumer to travel 2,000 miles to recover a small sum is not reasonable, citing Smith, Valentino & Smith, Inc. v. Superior Court, 551 P.2d 1206 (Cal. 1976) and Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991)). Plaintiffs agree with LegalZoom that Missouri law, not California law, should apply to the Court's decision on this motion. Plaintiffs do not believe that the California choice-of-law clause is enforceable because there is no valid contract, as will be discussed infra, in § II.A. But based on the position that LegalZoom has taken in support of this motion, LegalZoom is precluded from later arguing in this litigation that the California choice-of-law clause is somehow enforceable.

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II.

Argument A. The Forum-Selection Clause Is Not Enforceable Because There Is No Valid Contract

As LegalZoom acknowledges, the first issue is whether a valid contract exists. (See Document 18, Suggs. in Supp. of Mot. to Dismiss p.4, citing Burcham v. Expedia, Inc., No. 4:07cv -1963, 2009 WL 586513, at *2 (E.D. Mo. Mar. 6, 2009)). LegalZoom proceeds to argue that online agreements are valid. Plaintiffs do not take issue with the fact that online agreements can be valid. But there can be no valid contract for performing a service that violates Missouri law. Plaintiffs' allege that LegalZoom is engaging in the unauthorized practice of law in Missouri. For purposes of this motion, Plaintiffs' allegations must be taken as true. Hicks v. Clay County, 636 F. Supp. 2d 903, 912 (W.D. Mo. 2008). As such, LegalZoom cannot overcome the first hurdle it must clear to enforce the forum-selection clause -- namely, that a valid and enforceable contract exists. Enforceable contracts cannot arise out of transactions prohibited by statute . Gilbert v. Edwards, 276 S.W.2d 611, 620 (Mo. App. 1955). The illegality inherent at the inception of such contracts taints them throughout and effectually bars enforcement. Schoene v. Hickam, 397 S.W. 2d 596, 602 (Mo. 1965) (contract for commission between plaintiff and unlicensed real-estate broker not enforceable); see also O'Bannon v. Widick, 198 S.W. 432, 433 (Mo. App. 1917) (contract for medical care performed by unlicensed person not enforceable); Reisler v. Dempsey, 232 S.W. 229, 230 (Mo. App. 1921) (contract for prize-fighting not enforceable). In the context of the unauthorized practice of law, Missouri courts have not only refused to enforce contracts for the unauthorized practice of law, but have gone the further step of upholding treble damages for fees charged to consumers in violation of §484.010, RSMo. See,

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e.g., Eisel v. Midwest BankCentre, 230 S.W.3d 335 (Mo. 2007) (en banc) (affirming award of treble damages to consumers who had contracted with Midwest BankCentre for services deemed the unauthorized practice of law); Curry v. Dahlberg, 110 S.W.2d 742, 748 (Mo. 1937) (en banc) (holding that a contract for services involving the unauthorized practice of law invalid because contracts for illegal purposes are invalid). In this case, Plaintiffs allege that the purported contracts between Plaintiffs and LegalZoom were for the unauthorized practice of law in violation of §484.010, RSMo. Therefore, the purported contracts were void as illegal from their inception. The forum-selection clause in these contracts may not be enforced against Plaintiffs. In short, because the contracts are void, the forum-selection clauses are also void and unenforceable.

B.

The Forum-Selection Clause Is Not Enforceable Because It Is Unfair and Unreasonable

Even if the underlying contracts were enforceable, the forum-selection clause on LegalZoom's website cannot be enforced. Under both Missouri law, and federal law, a forumselection clause cannot be enforced if it is either unfair or unreasonable. High Life Sales Co. v. Brown-Foreman Corp. 823 S.W.2d 493, 495 (Mo. 1992) (en banc); Servewell Plumbing, LLC v. Federal Ins. Co. 439 F.3d 786, 789-90 (8th Cir. 2006). The forum-selection clause at issue here is both unfair and unreasonable. It is unfair because the contract is of one of adhesion. It is unreasonable because Missouri has a substantial interest, as reflected in its court decisions and statutes, in protecting the public from the unauthorized practice of law within its borders.

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1.

The Forum-Selection Clause Is Unfair Because It Is a Contract of Adhesion

In High Life Sales, the court held that as a threshold matter, a court must consider whether the forum-selection clause is "unfair." The court stated, "Many courts have refused to enforce a forum[-]selection clause on the grounds of unfairness if the contract was entered into under circumstances that caused it to be adhesive." High Life Sales, 823 S.W.2d. at 497 (citing Colonial Leasing Co. of New England v. Best, 552 F. Supp. 605, 607-08 (D. Or. 1982). To make this determination, the inquiry is "if the contract was entered into under circumstances that caused it be adhesive." Id. The court explained: "An adhesive contract is one in which the parties have unequal standing in terms of bargaining power (usually a large corporation versus an individual) and often involve take-it-or-leave-it provisions in printed form contracts." Id. Examining the contract before it, the court determined that it was not adhesive because it was negotiated by counsel for the parties in give-and-take negotiations. Id. The court also found an additional reason why enforcement of the forum-selection clause would not be unfair. The forum-selection clause provided that if the franchisee were to institute suit, it would be required to initiate suit at the principal place of business of the franchisor. Id. Likewise, if the franchisor initiated the suit, it would be required to initiate suit at the place of business of the franchisee. Id. Noting the clause was reciprocal and would serve to discourage hasty litigation, the Court found that its enforcement could not be said to be unfair. Id. Based on the standard articulated in High-Life Sales, LegalZoom's forum-selection clause is unenforceable. In contrast with the clause at issue in High Life Sales, Plaintiffs entered LegalZoom's clickwrap agreement under circumstances that were adhesive because its terms were not the subject of give-and-take negotiation. As stated in the affidavits presented by both Plaintiffs and by LegalZoom, the terms were presented on a take-it-or-leave-it basis. Moreover, 5

the parties were in an unequal bargaining position. Plaintiffs are individuals while LegalZoom is a nationwide corporation. In sum, the circumstances show of a contract of adhesion. LegalZoom's forum-selection clause is also unfair because, unlike the clause at issue in High Life Sales, it is not reciprocal. All disputes are to be resolved by the courts of Los Angeles, California, the location of LegalZoom's business. Where a venue selection clause provides a non-neutral site, it will not be enforced. Swain v. Auto Services, Inc., 128 S.W.3d 103, 108 (Mo. App. 2003) (venue provision providing for arbitration in Arkansas not enforceable where plaintiff was a Missouri consumer and defendant was an Arkansas corporation). As in Swain, LegalZoom's one-sided forum-selection clause should not be enforced because it is unfair. In a very recent decision involving a claim of unlawful practice of law, a Missouri appellate court determined that a forum-selection clause designating Illinois as the forum for resolution of all disputes was unenforceable as unfair. Jitterswing, Inc. v. Francorp, Inc., No. ED93045, 2010 WL 933763 (Mo. App. Mar. 16, 2010). In Jitterswing, the plaintiff and defendant entered into an agreement where the defendant would create a franchise program for the plaintiff, including associated documents and forms. Id. at *1. The plaintiff filed suit against the defendant in Missouri, alleging that the defendant's actions under the agreement constituted the practice of law without a law license. The defendant moved to dismiss, citing a provision of the agreement providing that any dispute would be resolved in accordance in the state of Illinois. Id. The trial court granted the motion. Reversing the trial court, appellate court determined that the forum-selection clause's language did not encompass the unlawful practice of law claim, but that even if it did encompass the claim, the forum-selection clause was unenforceable as unfair. Id. at *2. The court explained:

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We find that in enforcing the forum selection clause in the contract between Jitterswing and Francorp would create an unfair result. Jitterswing's claim for practice of law without a license occurred in Missouri and arises under section 484.020. If required to bring its claim in Illinois, Jitterswing would be without recourse, as this is a tort claim created by a Missouri statute and the courts of Illinois would be without jurisdiction. Id. As in Jitterswing, enforcement of the forum selection clause in the present case would create an unfair result. A claim for the unlawful practice of law in Missouri should not be decided by the courts of a foreign jurisdiction. 2. The Forum-Selection Clause is Unreasonable Because it Contravenes a Significant Public Policy in the State of Missouri

LegalZoom's forum-selection clause is not enforceable because enforcement would be unreasonable. Enforcement would contravene a significant public policy in Missouri: the protection of the public from the unauthorized practice of law. Under both federal law and Missouri law, forum-selection clauses are not enforceable when enforcement contravenes a strong public policy. In Servewell Plumbing, the Eighth Circuit stated: "[A] forum[-] selection clause may be set aside if `enforcement would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or judicial decision.'" Servewell, 439 F.3d at 790 (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972)). In High Life Sales, the Missouri Supreme Court reached a similar holding. High Life Sales Co., 823 S.W.2d 493 at 494. In High Life Sales, the plaintiff was the beer distributor for Miller Brewing Company in Jackson County, Missouri. The plaintiff and the defendant were parties to a distributorship agreement. The distributorship agreement contained a forum-selection clause providing that any action related to the agreement shall be brought only in the judicial district containing the defendant's principal place of business. Id. at 494. The defendant terminated the distributorship 7

agreement. The plaintiff sued, alleging that the termination violated § 407.413, RSMo, which governs the termination of liquor franchises. The defendant moved to dismiss arguing, among other things, that the forum-selection clause in the distributorship agreement required that the lawsuit be brought in Kentucky. Id. at 494-95. The trial court denied the motion, and entered judgment on a jury verdict for the plaintiff. The defendant appealed, arguing that the trial court erred by not dismissing based on the forum-selection clause. The court rejected these arguments and affirmed. It held that enforcement of the forum-selection clause would be unreasonable based on the important public policy to the state of Missouri in determining the application of § 407.413, RSMo to the distributorship agreement at issue. Id. at 497-98. The court determined that Missouri had an important interest at stake in the enforcement of § 407.413 RSMo. It explained: It is evident that in this area what one state may approve and even encourage, another state may prohibit and declare illegal. This principle even has constitutional endorsement by reason of the Twenty-First Amendment to the United States Constitution repealing Prohibition. Thus, the interest that a particular state has in construing and applying liquor control legislation in its own state is apparent. It is very much within the interest of the state of Missouri to protect its licensed liquor distributors from unwarranted or unjustified termination of their franchise. Id. at 498. The court noted that liquor distributors were protected by § 407.413 from the unjust termination of their franchise. Essentially, the court found that Missouri's interest in protecting its liquor distributors outweighed any public policy considerations pertaining to the enforcing of the forum-selection clause. It stated: [T]he general subject of liquor control in the specific statutory protection of a holder of a liquor distribution franchise carry 8

heightened public policy considerations that outweigh any public policy considerations involved in the enforcement of the forumselection clause. Id. at 498. Thus, where Missouri has a substantial interest in enforcing its law for the protection of the public, such public policy considerations outweigh any public policy considerations pertaining to the enforcement of a forum-selection clause. The court also held that other factors made enforcement of the forum-selection clause unreasonable. The Court expressly noted that Kentucky did not have a statute similar to Missouri's, and that Kentucky's public policy as to franchise termination was contrary to that of Missouri. The Court concluded held that it "should not abrogate the responsibility of interpreting this important statute to the Kentucky Courts." Id. at 499-500. As in High Life Sales, this case involves a matter of strong public policy of significant importance to Missouri. Missouri courts have continually recognized that the regulation of the practice of law is an important state interest because the public must be protected from those who are unskilled or otherwise unsuited to engage in the practice of law. In re Mid-Am. Living Trust Assocs. Inc., 927 S.W.2d 855, 859 (Mo. 1996) (en banc). Further, Missouri statutes provide both criminal and civil penalties for the unlawful practice of law, reflecting the importance of this state interest. § 484.020 RSMo. In In re Mid-America Living Trust Associates, the Chief Disciplinary Counsel sought to enjoin a corporation not licensed to practice law in Missouri from preparing trusts, wills and powers of attorney for Missouri residents. Id. at 856. Granting the Chief Disciplinary Counsel's request, the Court noted its duty to protect the public from the unauthorized practice of law. It stated, "The duty of this Court is not to protect the Bar from competition but to protect the public

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from being advised or represented in legal matters by incompetent or unreliable persons." Id. at 858. The court continued: The consequences of incompetent representation are especially dangerous because they are often invisible for many years, but then cause great hardship and expense, such as when a deed, will, or trust is found to be ineffective or not to achieve the results originally intended. Accordingly, we seek to allow only those who have been found by investigation and examination to be properly prepared and skilled to practice law and who demonstrate that they conform to higher standards of ethical conduct necessary in fiduciary and confidential relationships. Id. Thus, the Court recognized that allowing those who are not competent in the practice of law pose a significant threat to the public and should be forbidden from doing so. Recent decisions of the Missouri Supreme Court have reconfirmed that only licensed attorneys may be compensated for the preparation of legal documents. See, e.g., Carpenter v. Countrywide, 250 S.W.3d 697 (Mo. 2008) (en banc); Eisel v. Midwest BankCentre, 230 S.W.3d 335 (Mo. 2007) (en banc). Missouri's well-established public policy and regulatory scheme contrasts with California's, which permits registered non-attorney "legal document assistants" to, for compensation, provide document preparation services to members of the public who represent themselves in legal matters.1 Cal. Bus. & Prof. Code §§ 6450-6456. Given California's substantially different policy on the practice of law, enforcement of the provisions of Missouri's statute, namely § 484.020, RSMo., should not be left to the courts of California. LegalZoom relies upon the decision in Burcham v. Expedia, Inc., No. 4:07-cv -1963, 2009 WL 586513, at *2 (E.D. Mo. Mar. 6, 2009), for the blanket assertion that forum-selection
1

A "disclaimer" on LegalZoom's website states that it is a "is a registered and bonded legal document assistant." http://www.legalzoom.com/disclaimer-popup.html

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clauses in clickwrap agreements are enforceable. In Burcham, the plaintiff booked a hotel room through the Expedia website and later sued Expedia under the Missouri Merchandising Practices Act, asserting the hotel did not have the amenities promised on the website, such as a pool, bar and restaurant. Id. at *2. The court determined that the forum-selection clause in the clickwrap agreement of the Expedia website should be enforced. Unlike this case, however, the Burcham court expressly stated that there was no showing that the Expedia forum-selection clause "is unreasonable or contravenes a strong public policy in the State of Missouri." Id. at *5. Thus, where a strong public policy interest is not involved, such agreements are enforceable. The Burcham decision is readily distinguishable from this case. This case concerns an important question of public policy embodied in numerous court decisions and state statutes. Burcham, in contrast, was a commonplace commercial dispute that did not invoke larger public policy considerations. In short, Burcham does not apply to the present circumstances.

C.

The Forum Selection Clause Cannot Be Enforced Because It Is Vague and Ambiguous

The court should not enforce LegalZoom's forum-selection clause because it is vague and ambiguous. "`[W]hen ordinary contract principles fail to elucidate a single reasonable interpretation for an ambiguous forum selection clause, and instead the provision is subject to opposing yet reasonable interpretation, an interpretation is preferred which operates more strongly against' the drafter." Public Sch. Ret. Sys. of Mo. v. State St. Bank & Trust Co., No. 094215-CV-C-NKL, 2010 WL 318538, at *2 (W.D. Mo. Jan. 21, 2010) (quoting Global Satellite Commc'n Co. v. Starmill U.K. Ltd., 378 F.3d 1269, 1271 (11th Cir. 2004)). In support of its motion to dismiss, LegalZoom attached a declaration of Edward Hartman (Docket No. 17-1), which attached as exhibit B the terms and conditions of the

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clickwrap agreement containing the forum-selection clauses at issue. In exhibit B, at ¶ 3, the clickwrap agreement states, "[T]he courts of the city of Los Angeles, state of California, shall have exclusive jurisdiction over any disputes."2 This clause is vague and ambiguous. Is LegalZoom asking that this case be transferred to a municipal court, superior court, or some other court located within the city limits of Los Angles? What is a "city" court? Asking a municipal court in the city of Los Angles to determine whether LegalZoom violated the rights of Missouri consumers by committing the unauthorized practice of law in Missouri violates Plaintiffs' and the putative class members' opportunity to have their day in court. In any event, because this forum-selection clause, drafted by LegalZoom, is ambiguous as to which of the various courts that may be located in Los Angeles may hear this case, the Court should not enforce it.

III.

Conclusion
LegalZoom's forum-selection clause should not be enforced because there can be no

valid contract for the unauthorized practice of law, because the forum-selection clause is unfair and unreasonable, and because the forum-selection clause is ambiguous. Therefore, Plaintiffs request that the Court deny LegalZoom's motion to dismiss.

2

In Exhibit C, ¶ 3, the clickwrap agreement states, "that the courts of the County of Los Angeles, State of California, shall have exclusive jurisdiction over any disputes."

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Respectfully submitted, Edward D. Robertson, Jr., # 27183 Mary Doerhoff Winter, # 38328 BARTIMUS, FRICKLETON, ROBERTSON & GORNY 715 Swifts Highway Jefferson City, MO 65109 573.659.4454, 573.659.4460 (fax) [e-mail], [e-mail] Timothy Van Ronzelen, #44382 Matthew A. Clement, #43833 Kari A. Schulte, #57739 COOK, VETTER, DOERHOFF & LANDWEHR, PC 231 Madison Jefferson City, Missouri 65101 573.635.7977, 573.635.7414 (fax) [e-mail] [e-mail] [e-mail] Steven E. Dyer, #45397 LAW OFFICES OF STEVEN DYER 10850 Sunset Office Drive, Ste. 300 St. Louis, MO 63127 314.898.6715 [e-mail] /s/ David T. Butsch David T. Butsch, # 37539 James J. Simeri, #52506 BUTSCH SIMERI FIELDS LLC 231 S. Bemiston Ave., Ste. 260 Clayton, MO 63105 314.863.5700, 314.863.5711 (fax) [e-mail] [e-mail] Randall O. Barnes, #39884 RANDALL O. BARNES & ASSOCIATES 219 East Dunklin Street, Suite A Jefferson City, Missouri 65101 573.634.8884, 573.635.6291 (fax) [e-mail]

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CERTIFICATE OF SERVICE I certify that on March 25, 2010, I filed the foregoing with the Clerk of the Court using the CM/ECF system. The system sent notification of this filing to the following: Party 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 James Wyrsch BRYAN CAVE LLP One Metropolitan Square ­ Ste. 3600 211 N. Broadway St. Louis, MO 63102 314.250.2000, 314.259.2020 (fax)

Defendant LegalZoom.com, Inc.

/s/ David T. Butsch

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