LAW O
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Plaintiff Anthony Pompliano
s
latest move confirms that this litigation is just one big
2 publicity stunt for him. His lawyers filed a ho-hum opposition to a motion-something that
3 thousands
of
lawyers
do
in thousands
of
courthouses each da
y
ut still felt compelled to trumpet
4 that umemarkable feat
of
civil procedure in a press release that practically hyperventilates.
5 But the substance
of
Pompliano' s opposition confirms a more troubling pattern: He cares
6 more about getting attention than getting things right. Recall that Pompliano initially filed a
7 private arbitration against Snap, as his employment agreement required him to do. After many
8 months
of
arbitration,
he
ginned up this complaint as a way to air his grievances in open court-
9 and in the media. But his original attorneys withdrew soon after Snap noted the falsity
of
his
10
complaint's central claim: that after firing him, Snap supposedly maligned him to the point
of
11
making him unemployable. What Pompliano neglected to tell the Court then and now is that he
12
not only got a
job
soon after Snap terminated him, but he was also then promptly fired from that
13
job for poor performance. He then (in his well-worn pattern) hit that company too with a
14
complaint reciting vague allegations
of
fraud.
See Pompliano v. Brighten Labs Inc.
Los Angeles
15
Superior Court Case No. BC613185;
see also
Def. Pet. to Compel Arb., pp. 2,
4
16
Pompliano now resurfaces after three months
of
inactivity with new attorneys but the same
17
publicity-hungry game plan. In his latest dramatic installment, Pompliano doubles down on the
18
main canard from his complaint-that Snap gave investors misstated user metrics back in 2015-
19
by asserting that Snap
is
urrently
misleading investors. Both halves
of
that remarkable claim are 20 false. And they regrettably show that the thirstier Pompliano grows for attention, the more
he
21
starves his filings
of
truth and common sense.
22
On his first contention: Snap did not give investors misstated user metrics back in 2015;
23
nor did Snap employees commit any
of
the panoply
of
alleged bad acts that litter Pompliano' s
24 complaint. Snap will demonstrate as much at the appropriate time in the appropriate forum. But
25
here
is
one example for the time being: Pompliano's centerpiece claim is that in mid-2015 Snap
26 was overstating its daily active users ( DA Us ). He says Snap had solicited advertisers at that time
27
by
represent[ing] that Snapchat had over 100 million DAUs, when in fact the DAU count
28
generated by one computer program, Flurry, '·showed only
97
million DA Us,'' and the count
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generated by another, Blizzard, showed only
95
million DAUs. Cmplt. 50, 55. Put aside for
2 the moment that this musty, two-year-old allegation about a minor metrics deviation hardly
3 measures up to Pompliano's gasping rhetoric about Snap being built on a house
of
cards. 4 Opp.
1.
The more important point is that the allegation is false. Snap was
not
telling advertisers or 5 investors
in
mid-2015 that the app had over 100 million DAUs. That, no doubt, is why Pompliano
6 fails to identify who made these supposed statements, to whom they were made, or how he is
7 aware
of
them. Moreover, by making much ado about the difference between the Flurry count and
8 the Blizzard
count-which
continues elsewhere in his complaint-Pompliano shows how
9 uninfo1med he is about the company-then and now. After all, Snap long ago switched over from
10
one system to the other, reduced its historical
DA
Us
to
account for the switch, told its investors as
11
much, and disclosed all this to the public twice over in its IPO prospectus.
1
12
Pompliano's new
claim-that
Snap is currently misleading investors-is even more
13
inexplicable. How a disgruntled employee fired for poor performance, who last worked at Snap
14
almost two years ago, would have any basis to talk about Snap
s
current practices is a mystery
15
Pompliano never bothers to explain. The simple fact
is
that he knows exactly nothing about Snap's
16
current metrics. He and his lawyers are-not to put too fine a point on matters
ust making
17
things
up.
18
That
is
why Snap has nothing to hide, especially now that it
is
a public company. When
19
Snap filed its motion to preserve the confidentiality
of
the redactions that Pompliano
himse
l
made 20
to
his complaint, Snap was still a private company that jealously guarded the secrecy
of
21 infom1ation that is now a matter
of
public record. Had Pompliano
s
new counsel been interested at
22 all in litigating the merits
of
this Motion or this case-rather than maximizing publicity
23
opportunit
ie
s-arid
contacted Snap to discuss the issues at hand, the parties likely would have
24
1
[B]efore June 2015, we used a third party that counted a Daily Active User when the
25
application was opened or a notification was received via the application on any devic
e.
We now use an analytics platform that we developed and operate and we count a Daily Active User only
26 when a user opens the application and only once per user per day Additionally, to a
li
gn our
pre-June 2015 Daily Ac
ti
ve Users with this new methodolog
y
we red
uc
ed our pre-June 2015
27 Daily Active Users by 4.8%, the amount
by
which we estimated the data generated
by
the third
pai1y
was overstated. Snap Inc., Registration Statement (Fo1m
S-1
A), at
51
(Feb. 24, 20
17
);
see
28
also
id
at 24.
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