Procedural Status Update

An update on the procedural status of the litigation is as follows:

January 8, 2010 — First case management conference. Court asked DocMagic to file a statement regarding DocMagic’s theories of antitrust liability and encouraged parties to consolidate state case action into federal court action.
February 11, 2010 — Parties participated in mediation, but were unable to settle their dispute at that time.
March 4, 2010 — DocMagic officially substituted counsel, relieving JMBM of Beverly Hills of their representation of DocMagic, and retaining Morrison & Forester LLP in San Francisco to take over.
March 11, 2010 — DocMagic submitted brief further detailing its antitrust claims.
April 9, 2010 — Parties voluntarily dismiss state court proceedings for purposes of consolidating claims in federal court action.
April 1, 2010 — Ellie Mae filed response to DocMagic’s antitrust submission.
April 19, 2010 — Second case management conference. Court sets schedule for filing of amended pleadings and motions to dismiss.
April 26, 2010 — Ellie Mae files an answer to complaint and an amended counterclaim. Significant amendments include (a) adding allegations regarding Reseller Agreement (this is carried over from state case), (b) adding a claim under the Calif. Comprehensive Computer Data Access and Fraud Act, based on the same allegations that support the Federal Computer Fraud Act Claim, and (c) adding claims for intentional interference with contractual relationship and intentional interference with prospective economic advantage, which are based on the allegation that DocMagic improperly solicited Ellie Mae’s customers by promoting direct access to DocMagic.
May 10, 2010 — DocMagic files First Amended Complaint against Ellie Mae, significantly expanding on the allegations and claims initially made against Ellie Mae. Significant amendments include: (a) expansion of antitrust allegations and claims, including (i) explanation of market definitions, (ii) monopoly leveraging, (iii) attempted monopolization, (iv) refusal to deal, and (v) denial of access to essential facility (all federal violations of Section 2 of the Sherman Act); (b) addition of claims under the Lanham Act for unfair competition and false advertising; (c) addition of claim for copyright infringement; (d) addition of claim for trade secret misappropriation and (e) a claim seeking a declaration that DSI didn’t infringe EM’s copyrights and ‘raw data’ ownership.

Upcoming dates:
June 14, 2010 — Deadline for both parties to file motions to dismiss, challenging the legal basis for claims in the amended pleadings.
July 12, 2010 — Deadline for both parties to file oppositions to motions to dismiss.
July 26, 2010 — Hearing on motions to dismiss.

Housing Wire: DocMagic Gets New Lawyers, Amends Antitrust Complaint Against Ellie Mae

Read full article here: http://bit.ly/ciKuW1

DocMagic Files Amended Complaint Against Ellie Mae

The amended complaint sets forth 14 federal and state claims, significantly expanding on the allegations and claims initially made against Ellie Mae.

Dominic Iannitti, President and founder of DocMagic, stated, “Now that we have had the opportunity to review Ellie Mae’s financial performance in its IPO Prospectus filed with the Securities Exchange Commission, it appears that the only financial success Ellie Mae can claim in the last two years is tied directly to the document preparation business, much of which is based on business and intellectual property stolen from DocMagic and others in violation of federal and state laws.” Iannitti further stated, “The more we discover about their conduct, the more compelled we are to make sure that the full scope and breadth of it is brought under scrutiny.”

Link to article: http://bit.ly/a2l5HY

Litigation Updates (State & Federal)

State Action Update as of 11-20-09: The complaint was filed on 8/28 alleging claims for breach of contract and unfair competition arising out of Ellie Mae’s misappropriation of proprietary information provided by DM pursuant to the Reseller Agreement. Parties began exchanging discovery requests on 9/22. EM filed a demurrer to DM’s unfair competition claim on 10/15, which was overruled on 11/17. EM’s answer is due on 12/7. A case management conference is scheduled for January 29, 2010, at which time the court may set a trial date.

Federal Action Update as of 11-20-09: Complaint was also filed on 8/28. On 9/18 we received notification that our case was being assigned to Judge Marilyn Hall Patel. On 9/30 EM filed a motion asking the court for permission to file a motion to challenge the claims pled in our complaint, which the court denied on 10/2. Accordingly, EM filed an answer on 10/6 and also a counterclaim against DM alleging claims for copyright infringement, violation of the Federal Computer Fraud and Abuse Act, breach of contract, inducing breach of contract and unfair competition, all arising out of DM’s attempts to continue servicing its customers following EM’s termination of DM from ePASS. DM answered the counterclaim on 10/29 and asserted an additional counterclaim against EM seeking a declaration that EM’s copyrights are invalid. On 10/20, Judge Patel issued an order requiring the parties to attempt to mediate by 2/17/10. A case management conference is scheduled before Judge Patel on 1/4/10 at which time the court will set a case management schedule including a trial date.

Judge Rules In DocMagic’s Favor

DocMagic, Inc. (DocMagic), developer of DocMagic®, the industry’s leading technology for compliant mortgage loan document preparation, announced today that the San Francisco Superior Court overruled Ellie Mae’s Demurrer to DocMagic’s Second Cause of Action, which asked the court to dismiss DocMagic’s Unfair Competition claim brought under California’s Business and Professions Code Section 17200.

Housing Wire: http://bit.ly/1vTuMU

RESPA Restraint

HUD Announces Four-Month Period of “Restraint” to Enforce New RESPA Rule http://bit.ly/UqS26

RESPA: GFE & HUD-1 Info that You Won’t Find Anywhere Else

Supplemental Information to New RESPA Rule FAQs

HUD has posted its most current FAQs on the new RESPSA rule effective January 1, 2009 on its website http://www.hud.gov/offices/hsg/ramh/res/resparulefaqs.pdf. The FAQs have been updated from time to time since they were first published on August 13, 2009. Despite the frequent updates, a number of fairly basic questions remain unanswered in one way or another. We contacted HUD recently and they were very helpful in providing the following answers to the questions posed below.

Q. Are there any paper size limitations regarding the model GFE? That is, can the GFE appear on either 8 ½ x 11 letter-sized paper, or 8 ½ x 14 paper, or are both paper sizes permissible?
A. Either paper size is permitted, that is, the GFE can appear on either 8 ½ x 11 letter-sized paper or 8 ½ x 14 legal-sized paper.

Q. Are there any specific top, bottom and/or side margin requirements with respect to the model GFE?
A. No, there is no requirement that either the top, bottom or side margins of the model form be a specific size, and the top, bottom and/or side margins of the model form may be adjusted as necessary.

Q. Can the size of individual data fields be modified from those shown in the model form?
A. Yes, the size of individual data fields may be modified, for example, to permit the requested data to fit in the applicable data field.

Q. The originator company name is to be placed in the Name of Originator field. HUD’s FAQs allow the name of the individual originator to also be placed in this field. Can the applicable licenses numbers for either or both the originator company and individual originator be added after their respective names?
A. Yes, license number information may be added if desired for either or both the company and the individual originator.

Q. Can an addendum to the GFE be utilized if the information does not fit in the space provided?
A. No, addenda to the GFE are not permitted.

GFE & HUD-1 Changes

Be assured that DocMagic will be ready when the current effective date of January 1, 2010 arrives … updates coming soon!

DocMagic Takes a Stand Against Anti-Competitive Behavior – Sues Ellie Mae for Anti-Trust Violations

If you’re wondering about the latest in the DocMagic vs. Ellie Mae litigation, here are posts to the official press releases
08/31/09: DocMagic Files Suit: http://www.docmagic.com/about/news/2009/08-28 

09/02/09: Ellie Mae Response: http://www.elliemae.com/aboutus/pr_090209.asp

09/03/09: DocMagic Response: http://www.docmagic.com/about/news/2009/09-03

We’d like to hear your comments and feedback regarding how Ellie Mae’s removal of DocMagic as a document provider has affected your business. Also please post any other general comments or feedback that you’d like to share with us.

Compliance Wizard (DocMagic Newsletters)

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