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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

DANIEL PARISI, et al., )

)
Plaintiffs, )
)
vs. )
) Civil Case No. 1:10-cv-00897 (RJL)
LAWRENCE W. SINCLAIR , )
)
BOOKS-A-MILLION, INC., et al., )
)
Defendants. )
)

REPLY MEMORANDUM IN SUPPORT OF DEFENDANT BOOKS-A-

MILLION, INC.’S MOTION TO DISMISS

Despite Plaintiffs’ efforts to recast their allegations, they cannot escape their admission

that the book synopsis on Books-A-Million, Inc.’s (“BAM”) website was created by third parties

Ingram Content Group, Inc. (“Ingram”) and Lightning Source Inc. (“Lightning Source”). The

Communication Decency Act (“CDA”) thus shields BAM from liability for the same. Plaintiffs

fail to cite allegations in the Complaint or on-point case law for their contention that BAM

“adopted” the synopsis as its own such that CDA immunity would for some reason not apply to

such third-party content. Plaintiffs also fail to cite any case establishing a bookseller’s liability

for the sale of a book containing defamatory material. Plaintiffs’ allegations do not trigger

application of § 581 of the Restatement (Second) of Torts. For these reasons, Plaintiffs’ claims

against BAM must be dismissed for failure to state a claim upon which relief can be granted.

Plaintiffs flagrantly violate a fundamental rule of dismissal litigation by attaching

unpleadedd exhibits to their opposition. They even fault BAM for not including evidence in

connection with its dismissal motion. BAM has separately filed a motion to strike Plaintiffs’

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improper exhibits. The argument below pertains regardless of the Court’s ruling on BAM’s

motion to strike.

ARGUMENT AND AUTHORITIES

I. THE COMMUNICATIONS DECENCY ACT BARS PLAINTIFFS’ CLAIMS WITH RESPECT

TO THE BOOK SYNOPSIS ON BOOKS-A-MILLION’S WEBSITE.

Plaintiffs admit in a parallel lawsuit that third parties Ingram and Lightning Source wrote

and distributed the synopsis of Sinclair’s book used on Books-A-Million’s website. Plaintiffs

fail to state a claim upon which relief can be granted based upon the website synopsis because

the Communications Decency Act of 1996 immunizes Books-A-Million from liability.

A. CDA Immunity is an Appropriate Basis for Rule 12(b)(6) Dismissal.

Where the allegations set forth in the complaint demonstrate the CDA immunizes the

conduct complained of, Rule 12(b)(6) dismissal is appropriate. See, e.g. Nemet Chevrolet, Ltd. v.

consumeraffairs.com, 564 F. Supp. 2d 544, 550 (E.D. Va. 2008) (dismissing claim based on

CDA immunity); Novak v. Overture Services, Inc., 309 F. Supp. 2d 446 (E.D. N.Y. 2004)

(dismissing claim based on CDA immunity). As set forth below, the factors used to determine

CDA immunity are established on the face of the Complaint and a parallel complaint of which

the Court may take judicial notice and consider in connection with BAM’s dismissal motion.

Plaintiffs make no effort to distinguish Nemet and cite only inapposite cases in support of

their incorrect assertion that CDA immunity may only be decided on summary judgment.

Gomez v. Toledo, 446 U.S. 635 (1980), was handed down 16 years before the CDA’s adoption

and deals with a police superintendent’s qualified immunity from suit under 42 U.S.C. § 1983,

not CDA immunity. There was no assertion in Gomez, as there is in this case, that facts alleged

in the complaint established the applicability of the defense at issue.

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Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007), also not a CDA case,

demonstrates Gomez’s inapplicability and supports BAM’s position. Goodman establishes that

where, as here, “facts sufficient to rule on an affirmative defense are alleged in the complaint, the

defense may be reached by a motion to dismiss filed under Rule 12(b)(6) . . . if all facts

necessary to the affirmative defense clearly appear on the face of the complaint.” Id. at 464

(quotation omitted, emphasis in original). That is what occurred in Nemet and is the case here.

The CDA cases Plaintiffs do cite either support BAM or are distinguishable. After noting

CDA immunity, as an affirmative defense, “is generally not fodder for a Rule 12(b)(6) motion,”

Novak held the complaint established CDA immunity and granted 12(b)(6) dismissal. See 309 F.

Supp. 2d at 453. The state court case of Sabbato v. Hardy, 2000 WL 33594542 (Ohio Ct. App.

Dec. 18, 2000), turned on whether the defendant could be determined to be a “provider” under

47 U.S.C. § 230(c) of the CDA on dismissal. That is not the issue here. Plaintiffs do not contest

that BAM is a “provider of an interactive computer service” within the meaning of the CDA.

See Complaint ¶¶ 34, 38; Nemet, 564 F. Supp. 2d at 550 (“It is clear from the allegations that

[consumer internet site] provides an interactive computer service.”); Schneider, 31 P.3d at 41.

The unreported state circuit court case of Hill v. StubHub, Inc., attached as Ex. 16 to the

Declaration of Richard J. Opparil (“Opparil Dec.”), contemplated dismissing the petition on

CDA immunity grounds but declined to do so due to fact questions concerning the source of the

content at issue. Ex.16 at 7. The court in the unreported case of Doctor’s Associates v. QIP

Holders, Inc., 2007 WL 1186026 (D. Conn. 2007), did the same thing without even identifying

what the fact issue was. As set forth below, Plaintiffs’ pleadings makes it abundantly clear that

Ingram and Lightning Source, not BAM or the other booksellers, were the source of the content

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at issue.1 As the Complaint does not allege BAM was an “information content provider” for

purposes of CDA immunity, Hill and Doctor’s Associates are inapplicable.

To the extent the Court concludes the Complaint and parallel lawsuit establish CDA

immunity, dismissal is appropriate under controlling law. The determinative issue presented is

therefore whether Plaintiffs’ allegations establish CDA immunity. They do.

B. The Allegations in Plaintiffs’ Complaints Establish CDA Immunity.

Plaintiffs offer no resistance to BAM’s motion to dismiss with respect to two of the three

CDA immunity factors: (1) whether BAM provides an inter-active computer service and (2)

whether Plaintiffs seek to treat BAM as a publisher or speaker. See Nemet, 564 F. Supp. 2d at

548; see Schneider v. Amazon.com, Inc., 31 P.3d 37, 39 (Wash. Ct. App. 2001); Complaint ¶¶ 34,

38, 45, 55-56, 66, 71-72, 80 and 84. Plaintiffs solely premise their opposition on whether “the

postings at issue are information provided by another information content provider.” Nemet, 564

F. Supp. 2d at 548.

Plaintiffs work hard to unearth themselves from their glaring admission that Ingram and

Lightning Source “wrote, distributed and/or published” the website synopsis of Sinclair’s book

provided to BAM, Amazon and Barnes & Noble. Ex. A, ¶ 35.2 They raise three arguments: (1)

that the Complaint alleges BAM made the website synopsis; (2) that even if BAM did not make

the synopsis, it adopted the synopsis as its own statement and (3) that their right of publicity

1
The court in Doctor’s Associates distinguished Novak on the basis that the Novak
plaintiff did not ask for discovery but the Doctor’s Associates plaintiff did. Assuming arguendo
the presence or absence of such a request constitutes a proper basis for refusing dismissal, here
Plaintiffs have already conducted enough pre-litigation discovery to identify Ingram and
Lightning Source as the entities that “wrote, distributed and/or published” the website synopsis.
Ex. A, ¶ 35. No discovery is therefore necessary.
2
Plaintiffs fail to contest BAM’s assertion that the Court may take judicial notice of the
admissions contained in their parallel lawsuit and consider them in ruling on BAM’s motion.

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claim survives dismissal anyway under 47 U.S.C. § 230(e). Plaintiffs’ contentions all lack merit.

Their allegations establish that a third party wrote the website synopsis and provided it to BAM.

1. The Complaint herein does not Allege BAM Originated the Synopsis.

Plaintiffs would have the Court ignore their admission that third parties “wrote,

distributed and/or published” the website synopsis by construing the Complaint as claiming

BAM prepared the synopsis. See Ex. A, ¶ 35; Complaint ¶¶ 38, 58. Plaintiffs’ interpretation of

their pleadings smacks of spin artistry conjured by a litigant caught red-handed admitting facts in

one lawsuit (Ex. A) fatal to its claims in another (the Complaint).3

Plaintiffs manifestly allege a third party created the website synopsis. Their other lawsuit

alleges “Ingram and Lightning wrote, distributed and/or published the above-described

promotional statements.” Ex. A, ¶ 35. Among those “promotional statements” written and

distributed by Ingram and Lightning Source is the one found in ¶ 32 of the Ingram / Lightning

Source lawsuit and also ¶ 38 of the Complaint herein: the website synopsis at issue.

Ex. A, ¶ 32; compare Complaint, ¶ 38. In the very next paragraph of the Complaint, Plaintiffs

allege identical language appeared on Barnes & Noble’s website:

3
The implications of the fact that Ingram and Lightning Source wrote the synopsis for the
booksellers’ CDA immunity may very well explain why Plaintiffs elected to file a separate
lawsuit against Ingram and Lightning Source rather then including them as defendants herein.

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Id. ¶ 39. Plaintiffs further allege the same verbiage appeared on amazon.com’s website.

Id. ¶ 35.

The Complaint fails to assert BAM wrote, distributed or originated the third-party

synopsis, instead alleging it simply appeared on BAM’s website. The allegation that BAM

“makes” defamatory statements via the synopsis merely refers to its appearance on BAM’s

website, not that BAM originated the content. Taken together, the two pleadings admit Ingram

and Lightning Source wrote the synopsis such that it is “information provided by another

information content provider” to BAM under 47 U.S.C. § 230. CDA immunity thus applies.

Plaintiffs try very hard to confuse the issue and cover their tracks. They first quixotically

fault BAM for failing to provide “affidavits or other competent evidence” in support of its

motion to dismiss, as if doing so would be permissible. Opp. at 17. Plaintiffs then cite a

personal jurisdiction dismissal case, not one considering failure to state a claim, as support for

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their position. See Whitney Inf. Network v. Xcentric Ventures, 199 Fed. App. 738 (11th Cir.

2006). Not only is BAM not obliged to provide an affidavit in support of its motion to dismiss

for failure to state a claim, it is prohibited from doing so under the well-worn standard governing

such motions. “When considering a 12(b)(6) Motion to Dismiss, the Court may only consider

those facts alleged in the Complaint.” Harris v. Dist. of Columbia, 696 F.Supp.2d 123, 136 (D.

D.C. 2010) (dismissal opposition alleging facts outside the complaint improper). Plaintiffs ought

to know better. Their own pleading admits third parties wrote the synopsis and distributed it to

BAM. No collateral evidence would be necessary even if it were allowed on dismissal.

Plaintiffs attempt to split hairs in arguing the allegation that “Ingram and Lightning

wrote, distributed and/or published the [synopsis]” is disjunctive. Taken together, the two suits

do not allege Ingram and Lightning published the synopsis on any website of their own, nor do

they allege BAM, amazon.com or Barnes & Noble wrote or distributed the synopsis. Plaintiffs

manifestly are suing Ingram and Lightning for creating and distributing the synopsis and are

suing the booksellers for using it on their respective websites. The CDA immunizes the latter.

Plaintiffs’ contention that the CDA’s definition of “information content provider”

includes “any person or entity that is responsible, in whole or in part, for the creation or

development of information provided through the Internet . . . .” is beside the point. Opp. at 19

(quoting 47 U.S.C. 230(f)(3)) (emphasis Plaintiffs’). The Complaint contains no allegation that

BAM wrote the synopsis “in part.” That all three booksellers used the same synopsis verbatim

as that written by Ingram and Lightning Source demonstrates BAM and the others did not write

it “in part,” but that Ingram and Lightning Source were exclusively responsible for its “creation”

and “development.” Plaintiffs’ pleadings contain no contrary allegation.

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Despite Plaintiffs’ efforts to blur the picture, the Complaint and parallel lawsuit plainly

admit the synopsis was created entirely by third parties, not BAM.

2. The Complaint Contains No Allegations that BAM Altered, Edited,

Solicited or Adopted as its Own the Synopsis Written by Ingram and
Lightning Source.

Plaintiffs claim BAM adopted the website synopsis as its own statement such that CDA

immunity would for some reason be inapplicable. Plaintiffs contend, in essence, that website

content written and provided by third parties must be displayed with attribution to the third-party

source in order for CDA immunity to apply. That is not the law. Rather than citing cases or

allegations from the Complaint supporting their interpretation, Plaintiffs improperly rely on

evidence extrinsic to the Complaint that must be disregarded for purposes of a motion to dismiss.

See Opp. at 20, citing Oparil Dec. Exs. 9-10; Harris, 696 F. Supp.2d at 136. Even if such

evidence had been pled, Plaintiffs conspicuously fail to cite cases supporting their contention.

The reason why is simple: none exist.

Here again Plaintiffs confuse the issue. In asserting “[c]ontent providers are not immune

under the CDA, which only immunizes ‘information provided by another content provider,’”

Plaintiffs disregard that their argument assumes “a third party wrote the product description.”

Opp. at 20 (emphasis in original). Anthony v. Yahoo! Inc., 421 F. Supp. 2d 1257, 1263 (N.D.

Cal. 2006), only states CDA immunity is inapplicable where the defendant allegedly created the

content at issue. As set forth above, that uncontroversial proposition is not at issue.

Plaintiffs completely remove from context a half-sentence appearing in Donato v.

Moldow, 865 A.2d 711, 720 (N.J. App. Div. 2005). See Opp. at 20. The defendant webmaster in

Donato allegedly edited, deleted or re-wrote anonymously posted third-party content. Id. at 719.

He also posted his own messages commenting on third-party posts. Id. The court held that the

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webmaster was the “information content provider” for any messages he himself composed and

posted. Id. at 720. But those posts did not lead to the lawsuit. The statements in question arose

from third-party content edited by the webmaster. Id. The court held the CDA shielded the

webmaster with immunity from liability for posts written by third parties like the synopsis

written by Ingram and Lightning Source in this case. Id. at 725. Donato supports dismissal.

Plaintiffs take Fair Housing Coun. of San Fernando Valley v. Roommates.com, 489 F.3d

921 (9th Cir. 2007), reh’g en banc granted, 506 F.3d 716 (9th Cir. Oct. 12, 2007), on reh’g 521

F.3d 1157 (9th Cir. Apr. 3, 2008), out of context. Roommates.com held CDA immunity was

unavailable where a roommate-finding website took information provided by third parties and

then manipulated it, categorized it and channeled it to those with compatible profiles. 489 F.3d

at 929. The Ninth Circuit held CDA immunity inapplicable because the third-party content was

altered, re-packaged and channeled such that the website was “’responsible’ at least ‘in part’ for

creating or developing it,” not because the website “actively encourage[d], solicit[ed] and

profit[ed] from the tortious and unlawful communications of others.” Id. at 928-929. The latter

passage, quoted by Plaintiffs in their Opposition, merely characterized the bounds of another

case the Ninth Circuit reviewed in connection with Roommates.com. The opinion Plaintiffs

quote was superceded by the subsequent en banc opinion.4 Contrary to Plaintiffs’ insinuation, no

case holds encouraging, soliciting or profiting from third-party content vitiates CDA immunity.

The case of Hy Cite Corp. v. Badbusinessbureau.com, 418 F. Supp.2d 1142 (D. Ariz.

2005), like others Plaintiffs cite, is totally irrelevant to whether CDA immunity applies to the

appearance of the Ingram / Lightning Source synopsis of Sinclair’s book on BAM’s website.

Dismissal was held improper in Hy Cite where the defendant allegedly added defamatory

4
Roommates.com was similarly distinguished in another case Plaintiffs rely upon, Atlantic
Recording Corp. v. Project Playlist, Inc., 603 F. Supp.2d 690, 704 (S.D. N.Y. 2009).

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editorial content to third-party postings it solicited. Plaintiffs make no allegation that BAM

added anything to the synopsis Ingram and Lightning Source wrote and distributed – indeed, the

other booksellers allegedly displayed the same synopsis verbatim. Nor do Plaintiffs allege BAM

solicited the synopsis from Ingram and Lightning Source. The case of FTC v. Accusearch, Inc.,

2007 WL 4356786 (D. Wyo. Sept. 28, 2007), may be distinguished on the same basis as Hy Cite

and also because none of the other CDA immunity factors were met in that case.

The Complaint and Ingram / Lightning lawsuit, of which the Court may take judicial

notice for purposes of dismissal, allege third parties wrote and distributed the website synopsis,

and that BAM and other booksellers posted it. The Complaint does not allege BAM solicited,

altered or adopted the synopsis. The Ingram / Lightning Source synopsis was “provided by

another information content provider” within the meaning of the CDA.

If the Court is unconvinced that the Complaint and admissions in Plaintiffs’ other lawsuit

establish CDA immunity for claims based on the website synopsis, it should deny the motion to

dismiss without prejudice to Defendants’ ability to assert CDA immunity on summary judgment.

3. CDA Immunity Bars Plaintiffs’ Right of Publicity Claim

Plaintiff Daniel Parisi incorrectly claims that even if CDA immunity bars Plaintiffs’ other

claims concerning the synopsis, his state common law false light invasion and misappropriation

of privacy claim survives under the CDA’s intellectual property carve-out. Opp. at 21-23, citing

47 U.S.C. § 230(e)(2). But that carve-out applies only to federal intellectual property claims, not

state law claims. Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1119 (9th Cir. 2007).

That CDA immunity applies to state law intellectual property claims is absolutely

essential for preserving a sensible, nation-wide regime for regulating conduct on the internet,

which by its very nature is everywhere at once. “While the scope of federal intellectual property

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is well-established, state laws protecting ‘intellectual property,’ however defined, are by no

means uniform.” Id. In Perfect 10, the Ninth Circuit further reasoned that

Because material on a website may be viewed across the Internet, and thus in
more than one state at a time, permitting the reach of any particular state’s
definition of intellectual property to dictate the contours of this federal immunity
would be contrary to Congress’s expressed goal of insulating the development of
the Internet from the various state-law regimes.

Id.(citing 47 U.S.C. 230(a), (b)). Interpreting the CDA to exclude from immunity state

intellectual property claims would thwart the CDA’s purpose of ensuring a single regulatory

regime. At least 51 sets of rules would apply where Congress intended there be only one.

Plaintiffs mischaracterize the state of the case law. The First Circuit’s analysis in

Universal Comm’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 422-23 (1st Cir. 2007), of whether

CDA immunity applies to state law claims constitutes dicta, in that the First Circuit held the

plaintiffs failed to state a claim under Florida statutory law. See Doe v. Friendfinder Network,

540 F. Supp. 2d 288, 298 (D. N.H. 2008). The court in Doe followed Universal because it sat

within the First Circuit and thus deferred to that court’s dicta. Id. at 299. Plaintiffs thus identify

just one solitary jurisdiction – the Southern District of New York – that has held CDA immunity

inapplicable to state law intellectual property claims.

Perfect 10 expressly distinguishes Universal. “[N]either party in [Universal] raised the

question of whether state law counts as ‘intellectual property’ for purposes of § 230 and the court

seems to simply have assumed that it does. We therefore create no conflict with Universal . . . .”

Id. at 1119 n. 5. The Ninth Circuit noted

[Universal] demonstrates the difficulties inherent in allowing state laws to count

as intellectual property for state purposes. In that case, the district court struggled
with the question of whether a ‘trademark dilution’ claim brought under Florida
Law counted as intellectual property for purposes of the CDA, and concluded that
it was more like a defamation claim than a trademark claim. Rather than decide
how to draw the line between defamation and trademark, the First Circuit held

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that ‘because of the serious First Amendment issues that would be raised’ if
Lycos were found liable, defendant had not violated the Florida statute. The First
Circuit was able to sidestep the question of what counted as intellectual property
on First Amendment grounds.

Id. The approach in Universal is cumbersome, awkward and clearly not what Congress

intended. Plaintiffs’ espoused textual interpretation runs contrary to Congress’ manifest intent.

II. PLAINTIFFS FAIL TO STATE A CLAIM FOR DEFAMATION BASED UPON MERE
DISTRIBUTION OF SINCLAIR’S BOOK.

Plaintiffs fail to cite even a single case holding a bookseller liable for defamation in the

pages of a book it sold. None is known to exist. The unreported Kansas state court opinion

Plaintiffs drug up is not even close to being on point. The defendant there was a self-publishing

company, not a mainstream bookseller carrying thousands of titles. See Opparil Dec., Ex. 15.

Plaintiffs make no effort to distinguish the principles articulated in Lerman v. Flynt

Distributing Co., 745 F.2d 123, 139 (2d Cir. 1984) (citing Smith v. California, 361 U.S. 147, 150

(1959)). “Obviously, the national distributor of hundreds of periodicals has no duty to monitor

each issue . . . it distributes. Such a rule would be an impermissible burden on the First

Amendment.” Id. Absent any case law supporting their position, Plaintiffs rely upon § 581 of

the Restatement in asserting a bookseller may be liable for delivering or transmitting defamatory

third party matter only if it “knows or has reason to know of [the book’s] defamatory character.”

Even if the Restatement somehow trumped Lerman and Smith, Plaintiffs still fail to state

a claim upon which relief can be granted. Contrary to Plaintiffs’ assertion, ¶¶ 47 and 49 of the

Complaint do not allege BAM knew Sinclair’s book contained defamatory matter at the time

BAM sold the books. Those paragraphs merely allege BAM knew or had reason to know of the

defamatory statements “[p]rior to the filing of this action” rather than prior to BAM’s sale of the

book. Complaint, ¶¶ 47, 49 (emphasis added). The allegations in the Complaint apparently refer

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to a letter Plaintiffs’ counsel sent BAM on May 18, 2010 just before filing suit. See Opparil Dec.

and Ex. 14 thereto. Plaintiffs fail to allege (or evidence) any sale of Sinclair’s book by BAM

after the letter Plaintiffs improperly attach to their opposition. Paragraphs 47 and 49 therefore

fail to allege knowledge on the part of BAM sufficient to meet even the Restatement § 581

standard. The allegations in ¶ 72 are not even directed to BAM, as Plaintiffs do not allege that it

“made the defamatory statements,” just that it sold a book containing them.

The conclusory allegations in ¶ 45, mimicked in ¶ 58, and those in ¶ 67 are insufficient to

state a claim. Conclusory allegations that a distributor knew or had reason to know of

statements’ falsity are insufficient to establish distributor liability. See Cubby, Inc. v.

Compuserve, Inc., 776 F. Supp. 135, 141 (S.D. N.Y. 1991); Beus v. Uinta County Bd. of County

Com’rs, 143 Fed. Appx. 945, 950 (10th Cir. 2005). Nor do Plaintiffs allege Sinclair has

“frequently published notoriously sensational or scandalous books.” Restatement § 581, cmt. e.

Plaintiffs’ reliance on comment e to Restatement § 581 is therefore improper.

Plaintiffs further defend BAM’s motion by improperly filing a series of unpleaded

exhibits in support of their point. Even if Plaintiffs’ exhibits could be construed as part of the

Complaint, and they cannot, they do not establish actual knowledge on the part of BAM of

defamatory statements in Sinclair’s book.

The duty Plaintiffs seek to impose on booksellers such as BAM is simply preposterous.

Plaintiffs’ counsel claims “BAM’s local retail store in the District of Columbia will accept

special orders for books [like Sinclair’s] that are not in stock. The book will be shipped to the

store and the customer contacted to come pick up the special order.” Opparil Dec. ¶ 24. Under

Plaintiffs’ view, BAM would duty-bound to review the book upon procurement and investigate

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whether it contains defamatory content before allowing the person who specifically asked for it

in the first place to come to the store and retrieve it. That simply is not and cannot be the law.

CONCLUSION

WHEREFORE, defendant Books-A-Million, Inc. respectfully requests that the Court

enter its order dismissing the claims against it, awarding Books-A-Million, Inc. its costs and

granting such other and further relief as the Court deems necessary and just under the

circumstances.

Dated: September 14, 2010

HUSCH BLACKWELL SANDERS LLP

By: /s/ Steven J. Weber

Steven J. Weber # 412165
750 17th Street N.W., Suite 1000
Washington, D.C. 20006
Telephone: (202) 378-2300
Facsimile: (202) 378-2319
E-mail: steven.weber@huschblackwell.com

Ralph W. Kalish, Jr. (pro hac vice)

R. Prescott Sifton, Jr. (pro hac vice)
190 Carondelet Plaza, Suite 600
St. Louis, MO 63105
Telephone: (314) 480-1500
Facsimile: (314) 480-1505
E-mail: scott.sifton@huschblackwell.com

Attorneys for Defendant Books-A-Million, Inc.

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CERTIFICATE OF SERVICE

The undersigned certifies that on September 14, 2010 the foregoing was filed
electronically with the Clerk of the Court to be served by operation of the Court’s electronic
filing system upon Richard J. Oparil and Kevin M. Bell of Patton Boggs LLP, attorneys for
plaintiffs; Stephen Smith, Mathew Segal, Kari Vander Stoep and John Longstreth of K&L Gates
LLP, attorneys for defendant Amazon.com, Inc. and Linda Steinman and John Eastburg of Davis
Wright Tremaine LLP, attorneys for defendant Barnes & Noble, Inc. and Barnesandnoble.com,
Inc. The undersigned further certifies that a copy of the foregoing was mailed to Lawrence W.
Sinclair, P.O. Box 1963, Washington, D.C. 20013, this 14th day of September, 2010 via first-
class U.S. Mail, postage pre-paid.

/s/ Steven J. Weber

Attorney

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