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Case 1:13-cv-01336-AJN Document 9 Filed 04/25/13 Page 1 of 11

James D. Weinberger
[email protected]
FROSS ZELNICK LEHRMAN & ZISSU, P.C.
866 United Nations Plaza
New York, NY 10017
Telephone: (212) 813-5900
Facsimile: (212) 813-5901

Michael H. Page (admitted pro hac vice)
[email protected]
DURIE TANGRI LLP
217 Leidesdorff Street
San Francisco, California 94111
Telephone: (415) 362-6666
Facsimile: (415) 236-6300

Attorneys for Defendants Chegg, Inc., Student of
Fortune, Inc. and Daniel Rosensweig

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

APOLLO GROUP, INC. and UNIVERSITY OF
PHOENIX, INC.,

Plaintiffs,

v.

CHEGG, INC., STUDENT OF FORTUNE,
INC., DANIEL ROSENSWEIG, and SEAN
MCCLEESE,

Defendants.



Civil Action No. 13 CV 01336 (AJN)

DEFENDANTS CHEGG, INC.,
STUDENT OF FORTUNE, INC.
AND DANIEL ROSENSWEIG’S
ANSWER TO PLAINTIFFS’
COMPLAINT

ECF Case

Defendants Chegg, Inc. (“Chegg”), Student of Fortune, Inc. (“SOF”) and Daniel

Rosensweig (collectively “Defendants”) hereby reply to the allegations set forth in Plaintiffs

Apollo Group, Inc. and University of Phoenix, Inc.’s (collectively “Plaintiffs”) Complaint and

Jury Demand (“Complaint”) as follows:

{F1214948.1 }



Case 1:13-cv-01336-AJN Document 9 Filed 04/25/13 Page 2 of 11

SUBSTANCE OF THE ACTION1

This introduction contains no allegations incorporated in any cause of action or to which

a response is required. To the extent it contains operative allegations, Defendants deny them.

PARTIES

1.

Defendants lack sufficient information to admit or deny the allegations of this

paragraph, and on that basis deny them.

2.

Defendants lack sufficient information to admit or deny the allegations of this

paragraph, and on that basis deny them.

3.

4.

5.

Admitted.

Admitted.

Defendants admit that SOF was acquired by Chegg in 2011. Defendants deny the

remaining allegations of this paragraph.

6.

Defendants admit that Daniel Rosensweig is the Chief Executive Officer of

Chegg, at the stated address. Defendants deny the remaining allegations of this paragraph.

7.

On information and belief, Defendants admit that Sean McCleese has an office at

the stated address. Defendants admit that Sean McCleese was a founder of SOF, and was its

President. Defendants deny the remaining allegations of this paragraph.

JURISDICTION AND VENUE

8.

9.

Admitted.

Denied.

10.

Denied.



1 Headings are reproduced verbatim from the Complaint for convenience only; to the extent they
include implicit or explicit allegations against Defendants, they are denied.

{F1214948.1 }

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Case 1:13-cv-01336-AJN Document 9 Filed 04/25/13 Page 3 of 11

11.

Defendants admit that SOF and Chegg operate websites accessible from

anywhere, including New York. Defendants deny the remaining allegations of this paragraph.

12.

13.

14.

15.

A.

16.

Denied.

Denied.

Denied.

Denied.

FACTS COMMON TO ALL CLAIMS FOR RELIEF

Plaintiffs’ Business

Defendants lack sufficient knowledge to admit or deny the allegations of this

paragraph, and on that basis deny them.

17.

Defendants lack sufficient knowledge to admit or deny the allegations of this

paragraph, and on that basis deny them.

18.

Defendants lack sufficient knowledge to admit or deny the allegations of this

paragraph, and on that basis deny them.

19.

Defendants lack sufficient knowledge to admit or deny the allegations of this

paragraph, and on that basis deny them.

20.

Defendants lack sufficient knowledge to admit or deny the allegations of this

paragraph, and on that basis deny them.

21.

Defendants lack sufficient knowledge to admit or deny the allegations of this

paragraph, and on that basis deny them.

22.

Defendants lack sufficient knowledge to admit or deny the allegations of this

paragraph, and on that basis deny them.

{F1214948.1 }

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Case 1:13-cv-01336-AJN Document 9 Filed 04/25/13 Page 4 of 11

B.

23.

24.

SOF website.

25.

26.

Defendants’ Unlawful Activities

Admitted.

Defendants admit that this paragraph accurately describes one function of the

Admitted.

Defendants lack sufficient knowledge to admit or deny the allegations of this

paragraph, and on that basis deny them.

27.

Defendants lack sufficient knowledge to admit or deny the allegations of this

paragraph, and on that basis deny them.

28.

Defendants lack sufficient knowledge to admit or deny the allegations of this

paragraph, and on that basis deny them.

29.

Defendants admit that tutors sometimes upload tutorials prior to receiving

requests for them, and that top tutors have publicized earnings in the ranges cited. Defendants

deny the remaining allegations of this paragraph.

30.

31.

Denied.

Defendants are unable to admit or deny this paragraph as phrased. Assuming that

“this process” refers to the process of (1) users posting allegedly infringing content on websites

and (2) website operators removing allegedly infringing content in response to Digital

Millennium Copyright Act notices, Defendants admit they are “well versed in this process.”

Defendants further admit that they were involved in the cited cases.

32.

Defendants admit that SOF charges an 18% commission on sales of tutorials.

Defendants deny the remaining allegations of this paragraph.

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Case 1:13-cv-01336-AJN Document 9 Filed 04/25/13 Page 5 of 11

33.

Defendants admit that the quoted material appears on the SOF website, and that

the 40% figure for subsequent sale is correct. Defendants deny the remaining allegations of this

paragraph.

34.

Defendants admit that portions of tutorials are made available as previews.

Defendants deny the remaining allegations of this paragraph.

35.

36.

Denied.

Denied.

COUNT I – Copyright Infringement of Plaintiffs’ Exclusive Reproduction Rights

37.

38.

Defendants incorporate by reference the foregoing responses.

Defendants lack sufficient knowledge to admit or deny the allegations of this

paragraph, and on that basis deny them.

39.

Defendants lack sufficient knowledge to admit or deny the allegations of this

paragraph and on that basis deny them.

40.

41.

42.

43.

44.

Denied.

Denied.

Denied.

Denied.

Denied.

COUNT II – Copyright Infringement of Plaintiffs’ Exclusive Distribution Rights

45.

46.

47.

48.

Defendants incorporate by reference the foregoing responses.

Denied.

Denied.

Denied.

{F1214948.1 }

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Case 1:13-cv-01336-AJN Document 9 Filed 04/25/13 Page 6 of 11

49.

50.

Denied.

Denied.

COUNT III – Copyright Infringement of Plaintiffs’ Exclusive Public Display Rights

51.

52.

53.

54.

55.

56.

57.

58.

Defendants incorporate by reference the foregoing responses.

Denied.

Denied.

Denied.

Denied.

Denied.

COUNT IV – Contributory Copyright Infringement

Defendants incorporate by reference the foregoing responses.

Defendants lack sufficient knowledge to admit or deny the allegations of the first

two and last sentences of this paragraph and on that basis deny them. Defendants deny the

remaining allegations of this paragraph.

59.

60.

61.

62.

63.

64.

Denied.

Denied.

Denied.

Denied.

COUNT V – Vicarious Copyright Infringement

Defendants incorporate by reference the foregoing responses.

Defendants lack sufficient knowledge to admit or deny the allegations of the first

two and last sentences of this paragraph and on that basis deny them. Defendants deny the

remaining allegations of this paragraph.

{F1214948.1 }

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Case 1:13-cv-01336-AJN Document 9 Filed 04/25/13 Page 7 of 11

65.

66.

67.

68.

Denied.

Denied.

Denied.

Denied.

COUNT VI – Inducement of Copyright Infringement

69.

Defendants incorporate by reference the foregoing responses. Defendants deny

that “Inducement of Copyright Infringement” states a cause of action separate and apart from

Contributory Copyright Infringement (Count IV), but repeat herein their answer to that Count.

70.

Defendants lack sufficient knowledge to admit or deny the allegations of the first

two and last sentences of this paragraph and on that basis deny them. Defendants deny the

remaining allegations of this paragraph.

71.

72.

73.

74.

Denied.

Denied.

Denied.

Denied.

AFFIRMATIVE DEFENSES

As separate and affirmative defenses to Plaintiff's’ Complaint and to each cause of action,

claim, and allegation contained therein, Defendants state as follows:

First Affirmative Defense: Digital Millennium Copyright Act

Plaintiffs’ claims are barred, in whole or in part, by the Digital Millennium Copyright

Act, 17 U.S.C. § 512 et seq.

Second Affirmative Defense: Fair Use

Fair use , 17 U.S.C. § 107, provides Defendants a complete defense to any claim by

Plaintiffs for copyright infringement.

{F1214948.1 }

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Case 1:13-cv-01336-AJN Document 9 Filed 04/25/13 Page 8 of 11

Third Affirmative Defense: Untimely Registration
Bars Recovery of Statutory Damages/Attorneys’ Fees

Pursuant to 17 U.S.C. § 412, Plaintiffs are not entitled to statutory damages or attorneys’

fees in connection with their copyright infringement claim to the extent any alleged infringement

occurred after the effective date of the applicable copyright registration and such registration was

not filed with the U.S. Copyright Office within three months after Plaintiffs' first publications of

the work covered thereby.

Fourth Affirmative Defense: Statutes of Limitations

Plaintiffs’ claims are barred, in whole or in part, by applicable statutes of limitations.

Fifth Affirmative Defense: Improper Forum

Plaintiffs’ claims are brought in an inconvenient forum, and are subject to transfer

pursuant to 28 U.S.C. § 1404(a).

Sixth Affirmative Defense: Laches

Plaintiffs’ claims are barred, in whole or in part, by the doctrine of laches.

Seventh Affirmative Defense: Waiver

Each cause of action in the Complaint has been waived in whole or in part, and, to the

extent waived, it is barred.

Eighth Affirmative Defense: Estoppel

Plaintiffs are estopped by their conduct and by operation of law from asserting the

allegations contained in each cause of action in the Complaint and from maintaining this action.

Ninth Affirmative Defense: Acquiescence

Each cause of action in the Complaint is barred by the doctrine of acquiescence.

Tenth Affirmative Defense: Lack of Copyright Registration

Plaintiffs’ claims are barred, in whole or in part, to the extent Plaintiffs did not, at the

time of suit, have valid copyright registrations covering the works alleged to be infringed.

{F1214948.1 }

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Case 1:13-cv-01336-AJN Document 9 Filed 04/25/13 Page 9 of 11

Eleventh Affirmative Defense: Failure to Mitigate

Plaintiffs have failed, and continue to fail, to act reasonably to mitigate the damages they

allege in this action.

Twelfth Affirmative Defense: Adequacy of Remedy at Law

The injury or damages suffered by Plaintiffs, if any, would be adequately compensated in

an action at law for damages. Accordingly, Plaintiffs have a complete and adequate remedy at

law and are not entitled to seek equitable relief.

PRAYER FOR RELIEF

WHEREFORE, Defendants pray for the following:

A.

B.

C.

D.

That Plaintiffs take nothing by their Complaint;

That judgment be entered in Defendants’ favor on all causes;

For costs of suit, including reasonable attorneys’ fees; and

Such other and further relief as this Court may deem just and proper.

JURY DEMAND

Defendants hereby demand a trial by jury pursuant to Fed. R. Civ. P. 38.

{F1214948.1 }

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Case 1:13-cv-01336-AJN Document 9 Filed 04/25/13 Page 10 of 11









Dated: April 25, 2013

New York, NY









Respectfully submitted,

FROSS ZELNICK LEHRMAN & ZISSU, P.C.













By:



James D. Weinberger


[email protected]
866 United Nations Plaza
New York, New York 10017
Telephone: (212) 813-5900
Facsimile: (212) 813-5901

Michael H. Page (admitted pro hac vice)
[email protected]
DURIE TANGRI LLP
217 Leidesdorff Street
San Francisco, California 94111
Telephone: (415) 362-6666
Facsimile: (415) 236-6300

Attorneys for Defendants Chegg, Inc., Student of
Fortune, Inc. and Daniel Rosensweig

{F1214948.1 }

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Case 1:13-cv-01336-AJN Document 9 Filed 04/25/13 Page 11 of 11



CERTIFICATE OF SERVICE

I certify that all counsel of record is being served on April 25, 2013 with a copy of this

document via the Court’s CM/ECF system.

Gregory Paul Gulia
Robert Terry Parker
Vanessa C. Hew
Duane Morris, LLP (NYC)
1540 Broadway
New York, NY 10036-4086
Tel: (212) 692-1000
Fax: (212) 692-1020
Email: [email protected]
[email protected]
[email protected]


Larry Selander
Duane Morris, LLP (IL)
190 South LaSalle Street, Suite3700
Chicago, IL 60603
Tel: (312) 499-0147
Fax: (212) 692-1020
Email: [email protected]

Attorneys for Plaintiffs
Apollo Group, Inc. and University of Phoenix, Inc.







James D. Weinberger



{F1214948.1 }

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