Free Reply Memorandum - District Court of California - California

Case 3:08-cv-00824-JSW

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Filed 02/13/2008

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MARTIN D. SINGER, ESQ. (BAR NO. 78166) WILLIAM J. BRIGGS, II, ESQ. (BAR NO. 144717) EVAN N. SPIEGEL, ESQ. (BAR NO. 198071) LAVELY & SINGER PROFESSIONAL CORPORATION 2049 Century Park East, Suite 2400 Los Angeles, California 90067-2906 Telephone: (310) 556-3501 Facsimile: (310) 556-3615 E-mail: [email protected] E-mail: [email protected] Attorneys for Plaintiffs BANK JULIUS BAER & CO. LTD and JULIUS BAER BANK AND TRUST CO. LTD UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) ) ) ) ) Plaintiffs, ) ) v. ) WIKILEAKS, an entity of unknown ) form, WIKILEAKS.ORG, an entity ) of unknown form; DYNADOT, ) LLC, a California limited liability ) corporation, and DOES 1 through ) 10, inclusive, ) ) Defendants. ) ) ) CASE NO. CV08-0824 JSW [Hon. Jeffrey S. White; CRTM 2] PLAINTIFFS' NOTICE OF NON-OPPOSITION BY DEFENDANTS WIKILEAKS AND WIKILEAKS.ORG TO PLAINTIFFS' APPLICATION FOR TRO [Filed Concurrently With: Declaration of Evan Spiegel in Support Thereof] DATE: FEBRUARY 14, 2008 TIME: 10:00tha.m. CTRM: 2, 17 FL

BANK JULIUS BAER & CO. LTD, a Swiss entity; and JULIUS 13 BAER BANK AND TRUST CO. LTD, a Cayman Islands entity,
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TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that there has been no written opposition filed by Defendants Wikileaks and Wikileaks.org (collectively, the "Wikileaks Defendants") to Plaintiffs Bank Julius Baer & Co. Ltd's ("BJB") and Julius Baer Bank and Trust
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Co. Ltd's ("JBBT") (collectively,"Plaintiffs") Application for TRO (the "Application") and the Order to Show Cause, dated February 11, 2008, as to why a temporary restraining order should not issue against Defendants, which is set for hearing on February 14, 2008, at 10:00 a.m. before this Court. On February 8, 2008, Plaintiffs filed the Application, the Memorandum of Points and Authorities and supporting documents with this Court. On February 11, 2008, the Court issued an OSC re Issuance of TRO and Setting Briefing and Hearing Schedule ("OSC re Issuance of TRO"). Plaintiffs served the Wikileaks Defendants with the Application, the Memorandum of Points and Authorities and the supporting documents and OSC re Issuance of TRO on February 11, 2004, via personal service on their counsel. Plaintiffs also, alternatively, served the Wikileaks Defendants on February 11, 2004, via Overnight Priority Mail to their listed contact/agent via their Dynadot registration privacy service listing. Plaintiffs served defendant Dynadot with the Application, the Memorandum of Points and Authorities and the supporting documents and OSC re Issuance of TRO on February 11, 2004, via personal service at its place of business. See the accompanying Declaration of Evan N. Spiegel ("Spiegel Decl."), ¶¶3, 4; and see Proofs of Service filed with this Court, Docket Numbers 15-17 and 20-25. The OSC re Issuance of TRO set Tuesday, February 12, 2008 at 3:00 p.m. as the deadline for Defendants to file and serve any opposition to the Application and OSC re Issuance of TRO. As of Tuesday, February 12, 2008 at approximately 11:30 p.m., no opposition papers to the Application and OSC re Issuance of TRO have been served by the Wikileaks Defendants to Plaintiff (Spiegel Decl., ¶5).1 ///

Dynadot has not filed an Opposition as Dynadot and Plaintiffs have reached an agreement and stipulation in this matter, which will be presented to the Court at 27 the time of hearing on the OSC re Issuance of TRO. Pursuant to Dynadots' and Plaintiffs' agreement, Dynadot will stipulate to entry of a Permanent Injunction 28 upon terms to be presented to the Court. (Id., ¶6).
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Based on the foregoing, Plaintiffs requests that the Wikileaks Defendants be precluded from offering oral argument at the hearing on the Application and OSC re Issuance of TRO, and that the Court find that the failure of the Wikileaks Defendants to file any opposition papers creates an inference that the Application is meritorious. Wherefore, Plaintiffs respectfully request that the Application be granted in its entirety and the TRO issue. CONCLUSION Based on the foregoing, Plaintiffs respectfully request that this Court issue a Temporary Restraining Order and Order to Show Cause Re Preliminary Injunction in the form set forth in the Amended [Proposed] Temporary Restraining Order and Order to Show Cause re Preliminary Injunction submitted herewith, and for such other alternative and further relief as the Court may deem to be just and appropriate. Respectfully submitted, DATED: February 13, 2008 LAVELY & SINGER PROFESSIONAL CORPORATION MARTIN D. SINGER WILLIAM J. BRIGGS, II EVAN N. SPIEGEL /s/ William J. Briggs, II By:________________________________ WILLIAM J. BRIGGS, II Attorneys for Plaintiffs BANK JULIUS BAER & CO. LTD and JULIUS BAER BANK AND TRUST CO. LTD

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