PROOF OF SERVICE
l, Jenny Z. Ren, declare:
I am employed in the City and County of San Francisco; I am over the
age of 18 years and not a party to the within action; my business
address i$ 333 Market Street, Thirty-Second Floor, San Francisco,
California 94105-2150. I declare that I am employed in the office or a
member of the bar of this Court at whose direction the service was
made.
On July 23, 1999, I caused to be served the following documents:
OPPOSITION OF PLAINTIFF BUSINESS WIRE TO DEFENDANTS' SPECIAL MOTION TO
STRIKE ON THE THRESHOLD ISSUE OF WHETHER CALIFORNIA CODE OF CIVIL
PROCEDURE '425.16 APPLIES TO PLAINTIFF'S CAUSES OF ACTION.
DECLARATION OF CATHY BARON TAMRAZ IN SUPPORT OF OPPOSITION OF PLAIN-
TIFF BUSINESS WIRE TO DEFENDANTS' SPECIAL MOTION TO STRIKE ON THE
THRESHOLD ISSUE OF WHETHER CALIFORNIA CODE OF CIVIL PROCEDURE '425.16
APPLIES TO PLAINTIFF'S CAUSES OF ACTION.
DECLARATION OF NEIL BARDACH IN SUPPORT OF OPPOSITION OF PLAINTIFF
BUSINESS WIRE TO DEFENDANTS' SPECIAL MOTION TO STRIKE ON THE THRESHOLD
ISSUE OF WHETHER CALIFORNIA CODE OF CIVIL PROCEDURE '425.16 APPLIES TO
PLAINTIFF'S CAUSES OF ACTION.
DECLARATION OF LAUREN KUNIS IN SUPPORT OF OPPOSITION OF PLAINTIFF
BUSINESS WIRE TO DEFENDANTS' SPECIAL MOTION TO STRIKE ON THE THRESHOLD
iSSUE OF WHETHER CALIFORNIA CODE OF CIVIL PROCEDURE '425.16 APPLIES TO
PLAiNTIFF'S CAUSES OF ACTION.
DECLARATION OF LIS A M. SITKIN iN SUPPORT OF OPPOSITION OF PLAINTIFF
BUSINESS WIRE TO DEFENDANTS' SPECIAL MOTION TO STRIKE ON THETHRESHOLD
ISSUE OF WHETHER CALIFORNIA CODE OF CIVIL PROCEDURE {}425.16 APPLIES
TO PLAINTIFF'S CAUSES OF ACTION.
REQUEST FOR JUDICIAL NOTION IN SUPPORT OF OPPOSITION OF PLAINTIFF
BUSINESS WIRE TO DEFENDANTS' SPECIAL MOTION TO STBIKE ON THE TI-IRESH-
OLD ISSUE OF WHETHER CALIFORNIA CODE OF CIVIL PROCEDURE {}425.16
APPLIES TO PLAINTIFF'S CAUSES OF ACTION.
7_ PLAINTIFF BUSINESS WIRE'S OBJECTIONS TO DEFENDANTS' EVIDENCE iN
SUPPORT OF DEFENDANTS' SPECIAL MOTION TO STRIKE UNDER CALIFORNIA CODE
OF CIVIL PROCEDURE '425.16 CAUSES OF ACTION.
MAIL: by placing a tree copy(les) thereof in a sealed envelope(s) in
the outgoing mail tray located in my office for deposit in the United
States mail, with postage fully prepaid, addressed as shown below. I
am readily familiar with'the business practice at my place of business
for collection and processing of outgoing mail with the U_S. Postal
Service. Mail so collected and processed is deposited with the U_S.
Postal Service that same day in the ordinary course of business.
BY MESSENGER: A true and correct copy of the above entitled document
in a sealed envelope was placed into the care of an agent of Special-
ized Legal Services for delivery to the party below on this date.
PERSONAL SERVICE: by personally serving by hand-delivery the same in
an envelope(s) addressed as shown below_
OVERNIGHT DELIVERY: by enclosing a tree copy(ies) in a sealed Federal
Express envelope(s), fully prepaid, addressed as shown below.
BY FACSIMILE: by transmitting by telefax to the number(s) shown below.
Said document(s) was/were served on:
METHVEN & ASSOCIATES BRUCE E. METHVEN (SBN 095486) .OUISE M, QUINTAP.
D (SBN 106230) ERIC K. FERItARO (SBN 172699) 2232 Sixth Street,
Berkeley, CA 94710
Telephone: (510) 649-4019
Fax: (510) 649-4024
Attorneys for Defendants
JEFFREY S. MITCHELL, WILLIAM ULI~ICH
and JANICE SI-IELL
I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct and that this decla-
ration was executed on July 23, 1999, at San Francisco, Cali#omia.
STEINHART & FALCONER LLP ROGER R. MYERS (State Bar NO. 146164) LISA M.
SITKIN State (Bar No. 194127) 333 Market Street, Suite 3200
San Francisco, California 94105 Telephone: (415) 777-3999
Facsimile: (415) ~,42-0856
Attorneys for Plaintiff BUSINESS WIRE
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION
3USINESS WIRE, a California corporation, Plaintiff,
V.
IEFFREY S. MITCHELL, an individual;
WILLIAM ULRICH, an individual; JANiCE
SHELL, an individual,
Defendants.
Case No. C 99-1987 CAL
DECLARATION OF CATHY BARON TAMRAZ IN SUPPORT OF OPPOSITION OF PLAIN-
TIFF BUSINESS WIRE TO DEFENDANTS' SPECIAL MOTION TO STRIKE ON THE TI-
IRESHOLD ISSUE OF WHlgTttlgR CALIFORNIA CODE OF CIVIL PROCEDURE
'425.16 APPLIES TO PLAINTIFF'S CAUSES OF ACTION
I, Cathy Baron Tararaz, declare:
I. I am the Executive Vice President of Business Wire, plaintiffin the
above-referenced action. I make this declaration in support of Busi-
ness Wire's Opposition to defendants' special motion to strike filed
herewith. I can testify competently and of my own )ersonal knowledge
to the matters set forth herein.
2. For more than 30 years, Business Wire has distributed corporate
press releases news organizations, informational databases and busi-
nesses. Business Wire currently distributes such releases to subscrib-
ers throughout the world. These subscribers rely on Business Wire's
reputation, credibility and goodwill as assurance that press releases
that Business Wire distributes accurately reflect what actual compa-
nies are saying.
3. Business Wire is a proprietary service that is not open to the
general public.
Business Wire limits access to its press release services to members
who must register by completing a membership application and agreement
before submitting press releases for distribution. Business Wire only
distributes press releases for members in good standing, and has a
firm policy against knowingly distributing any press release put out
by a phony company or that contains false information about the exist-
ence or activities of a company. Business Wire does not allow members
to use its services for April Fools jokes or other hoaxes. A tree and
correct copy of Business Wire's March 1999 newsletter, published
before defendants submitted their phony press release Business Wire,
containing notice of Business Wire's policy against April Fools hoaxes
is attached hereto as Exhibit 1.
4. In late March 1999, defendants registered for Business Wire's press
release distribution services and submitted a press release for dis-
tribution by Business Wire. In their registration agreement and in
discussions with Business Wire employees, defendants made false state-
ments and gave false assurances to Business Wire concerning, among
other things, the existence of their company and accuracy of any press
release submitted by them to Business Wire for distribution. Notwith-
standing these statements and assurances, defendants submitted a press
release to Business Wire about a non-existent company called
Webnode.com that advertised a sham Internet investment opportunity.
The press release purported to provide tree information. Defendants
never informed Business Wire that the press release was actually
completely phony, and that none of the material representations in the
release were true. But for defendants assurances and omissions regard-
ing their company and the accuracy of the press release, Business Wire
would not have distributed the release.
5. In reliance on defendants' assurances find on the apparent authen-
ticity of the press release itself, Business Wire distributed the
release over its wire service under the BUSINESS WIRE. mark. In addi-
tion, defendants posted the press release, with the BUSINESS WIRE.
mark prominently displayed, on their Webnode.com website. As a result,
the press release, with
EXHIBIT I
N E W S L E T T E R
=====
STEINHART & FALCONER LLP ROGER R. MYERS (State Bar No. 146164) LiSA M.
SITKIN State (Bar No. 194127) 333 Market Street, Suite 3200
San Francisco, California 94105 Telephone: (415) 777-3999
Facsimile: (415) 442-0856
Attorneys for Plaintiff BUSINESS WIRE
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION
BUSINESS WIRE, a California corporation.
Plaintiff,
V.
JEFFREY S. MITCHELL, an individual;
WILLIAM ULRICH, an individual; JANICE
SHELL, an individual,
Defendants.
Case No. C 99-1987 CAL
DECLARATION OF LISA M. SITKIN IN SUPPORT OF OPPOSITION OF PLAINTIFF
BUSINESS WIRE TO DEFENDANTS' SPECIAL MOTION TO STRIKE ON THE THRESHOLD
ISSUE OF WHETHER CALIFORNIA CODE OF CIVIL PROCEDURE '425.16 APPLIES TO
PLAINTIFF'S CAUSES OF ACTION
I, Lisa M. Sitkin, declare:
1. I am an attorney with Steinhart & Falconer LLP, counsel for plain-
tiff Business Wire in the above-referenced action. I make this decla-
ration in support of Business Wire's Opposition to defendants' special
motion to strike filed herewith. 1 can testify competently and of my
own personal knowledge to the matters set forth herein.
2. Attached here as Exhibit 1 is a true and correct printout from the
website for defendant William Ulrich's web design business, magnetic-
diary.com showing defendant's affiliation with magneticdiary.com and
promoting his services using past website designs for websites used in
defendants' previous April Fools hoaxes.
3. Attached here as Exhibit 2 is a true and correct printout of a
message posted by defendant Janice Shell to an online discussion group
on the Silicon Investor website on April 1, 1999.
4. Attached here as Exhibit 3 is a true and correct printout of a
message posted by defendant Bill Ulrich to an online discussion group
on the Silicon Investor website ~>n April 1, 1999.
5. Attached here as Exhibit 4 are a true and correct printouts from
the Webnode.com website where defendants' press release was posted
with a mark confusingly similar mark to the BUSINESS WIRE trademark.
I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.
Lisa M. Sitkin
=====
Exhibit 1
Marketing 101
Display your
assets with
appeal.
web design
digital media
contact us
Bill Ulrich
Michal Daniel
Exhibit 2
Pictures of Magnetic Diary site
Exhibit 3
Post 24608 from Janice Shell to Johnlag on the Anthony@Equity thread
Exhibit 4
Post 15 from Bill Ulrich to T. Pierce Baker on the Webnode thread
Exhibit 5
Picture of the BW PR as it appeared on Webnode.com
=====
STEINHART & FALCONER LLP
ROGER R. MYERS (State Bar No. 146164)
LISA M. SITKIN State (Bar No. 194127)
333 Market Street, Suite 3200
San Francisco, California 94105
Telephone: (415) 777-3999
Facsimile: (415) 442-0856
Attorneys for Plaintiff
BUSINESS WIRE
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
BUSINESS WIRE, a California corporation,
Plaintiff,
V.
JEFFREY S. MITCHELL, an individual;
WILLIAM ULRICH, an individual;
JANICE SHELL, an individual,
Defendants.
Case No. C 99-1987 CAL
DECLARATION OF LAUREN
KUNIS IN SUPPORT OF
OPPOSITION OF PLAINTIFF TO
DEFENDANTS' SPECIAL
MOTION TO STRIKE ON THE
THRESHOLD ISSUE OF
WHETHER CALIFORNIA
CODE OF CIVIL PROCEDURE
'425.16 APPLIES TO
PLAINTIFF'S CAUSES OF
ACTION
I, Lauren Kunis, declare:
1. I am a client services representative with Business Wire, plaintiff
in the above-referenced action. I make this declaration in support of
Business Wire's Opposition to defendants' special motion to strike
filed herewith. I can testify competently and of my own personal
knowledge to the matters set forth herein.
2. In late March 1999, defendants contacted Business Wire by telephone
to register as members of Business Wire and become eligible to have
Business Wire distribute press releases for them. Following the tele-
phone conversation, they submitted a membership application and agree-
ment to Business Wire by facsimile. Defendants' membership application
and agreement form listed Morgan Laurel Communications as their compa-
ny name and gave the e-mail address "info@webnode.com" as their e-mail
address. A true and correct copy of defendants' membership application
and agreement is attached hereto as Exhibit 1.
3. Because defendants answered the question "number of years in busi-
ness" on the membership application and agreement form by describing
the company as "new," I contacted them at the telephone number listed
on the form to inquire about the company. I spoke with the defendant
Jeff Mitchell, who told me that the company's start date "was compli-
cated" but led me to believe that the company did exist and had been
operating for a month. I therefore added the words "1 month" to the
membership application form. Mr. Mitchell did not disclose that Morgan
Laurel Communications and Webnode.com were not legitimate business
entities.
4. All communications between Business Wire and defendants concerning
defendants' registration for a membership with Business Wire took
place either by telephone or facsimile, over private telephone lines.
I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.
DATED: July 23,1999
Lauren Kunis
Copy of Business Wire Membership Agreement
STEINHART & FALCONER LLP
ROGER R. MYERS (State Bar No. 146164)
LISA M. SITKIN State (Bar No. 194127)
333 Market Street, Suite 3200
San Francisco, California 94105
Telephone: (415) 777-3999
Facsimile: (415) 442-0856
Attorneys for Plaintiff
BUSINESS WIRE
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
BUSINESS WIRE, a California corporation,
Plaintiff,
V.
JEFFREY S. MITCHELL, an individual;
WILLIAM ULRICH, an individual;
JANICE SHELL, an individual,
Defendants.
Case No. C 99-1987 CAL
REQUEST FOR JUDICIAL
NOTICE IN SUPPORT OF
OPPOSITION OF PLAINTIFF
BUSINESS WIRE TO
DEFENDANTS' SPECIAL
MOTION TO STRIKE ON THE
THRESHOLD ISSUE OF
WHETHER CALIFORNIA
CODE OF CIVIL PROCEDURE
'425.16 APPLIES TO
PLAINTIFF'S CAUSES OF
ACTION
Date: August 20, 1999
Time: 9:30 a.m.
Judge: Charles A. Legge
Court Room: 10
Plaintiff Business Wire hereby requests that the Court take judicial
notice of the following document pursuant to Federal Rule of Evidence
201:
Complaint filed in Hitsgalore.com, Inc. v. Shell, et al.., No. 99-1397
CIV-T26C on June 14, 1999 in the District Court for the Middle Dis-
trict of Florida (Tampa Division). A true and correct copy of relevant
excerpts from the Complaint is attached here as Exhibit 1.
DATED: July 23, 1999
STEINHART & FALCONER LLP
ROGER R. MYERS
LISA M. SITKIN
Lisa M. Sitkin
Attorneys for Plaintiff
BUSINESS WIRE
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