Expert Witness Profiler

Tag: Website

  • Digital Forensics Expert’s Analysis of Website Activity Considered Relevant

    Digital Forensics Expert’s Analysis of Website Activity Considered Relevant

    This is a copyright infringement action filed by CoStar Group, Inc. and CoStar Realty Information, Inc. (collectively, “CoStar”) in September 2020 against Commercial Real Estate Exchange Inc (“CREXi”).

    CoStar is a company that provides commercial real estate (“CRE”) information, analytics, and online property listing marketplaces. It owns and operates LoopNet.com, a digital marketplace platform for CRE listings. CoStar contended that CREXi has engaged in “mass infringement” of CoStar’s photographs. Apparently, CREXi and its BPOs copied listing information, including images, from LoopNet when a listing could only be found on LoopNet, and that CREXi would take screenshots of photos or otherwise crop out CoStar’s watermarks from photos to build out listings on its website.

    CREXi filed a Daubert Motion to exclude the opinions of CoStar’s expert, Mr. Daniel Roffman. CoStar retained Roffman to opine on CREXi’s access to the LoopNet website.

    Digital Forensics Expert Witness

    Daniel E. Roffman is Vice President in the Forensic Services Practice. He has over 20 years of digital forensics and information security consulting experience, helping clients protect their most valuable information, and investigating allegations of trade secret theft and cyber incidents.

    He has extensive testimony experience working on behalf of both plaintiffs and defendants and has served as a court-appointed neutral expert on theft of trade secret cases. Roffman has also testified on a range of other digital forensic subjects including software piracy, cyber investigations, and electronic document authenticity issues.

    Want to know more about the challenges Daniel Roffman has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    Roffman was supposed to analyze LoopNet logs and identify what activity in those logs can be attributable to CREXi and its representatives (including CREXi employees and third-party vendors CREXi retained to complete certain work).

    To begin with, Roffman explained how IP addresses can be used to identify users and track their activity on a website, LoopNet’s tools for logging activity (referred to as “hits”) on its website during a “session,” and how users “anonymous online campaigns” attempt to mask user activity through virtual private networks (“VPNs”), outsourcing tasks to third-party business process outsourcing companies (“BPOs”), and rotating through multiple IP addresses in a single session.

    Rule 403

    Basically, CoStar’s theory of copyright infringement is that CREXi copied its images from LoopNet “on a massive scale,” including by having BPOs copy images from CoStar, crop out CoStar’s watermark logo, and upload them onto CREXi’s website, and that this activity was a company policy at CREXi.

    Given that CoStar’s theory of the case is “mass infringement” by CREXi, the Court found that Roffman’s opinions are not substantially more prejudicial than probative. 

    Accordingly, Roffman’s analysis of the volume of activity on LoopNet’s website attributable to CREXi is relevant to and probative of whether CREXi employees and BPOs copied images off of LoopNet.

    Rule 702

    CREXi contended that Roffman’s opinions are unreliable because IP addresses identify a computer network, not an individual user. But if an IP address is identified as a computer network associated with CREXi, including activity from users on that computer network would likely show activity by users associated with CREXi. Roffman’s testimony attempts to identify LoopNet activity by CREXi and its BPOs. To the extent CREXi contended that this does not accurately capture activity attributable to CREXi, the Court held that it is free to challenge Roffman’s approach on cross-examination.

    Next, CREXi argued that Roffman’s opinions unreasonably assumed that activity from certain IP addresses containing no indicators, which appeared in the same sessions as IP addresses with an indicator, is also attributable to CREXi. Roffman explained why he “swept in” activity from IP addresses with no indicator of CREXi—if a user accessed LoopNet from a “CREXi Referring Website” once, only the activity from that particular session would appear as associated with CREXi. Other activity from that IP address where a user did not access LoopNet through a CREXi Referring Website would be left off of the activity log results. Thus, Roffman included activity from these IP addresses to capture potential CREXi activity where a VPN or rotating IP addresses were employed.

    Roffman relied on both IP addresses and sessions, which capture multiple IP addresses associated with one user in a session. He acknowledged that his approach to this analysis “may still be over inclusive,” despite taking measures to remove some data that appeared associated with CoStar’s clients, CoStar, and private IP addresses. 

    Held

    The Court denied the Defendant’s Daubert motion to exclude the opinions of Daniel E. Roffman.

    Key Takeaway:

    Roffman sufficiently explained his methodology, which is sound and based on his expertise in digital forensics. Again, to the extent CREXi disagreed with Roffman’s methodology because the results may be overinclusive, it is free to challenge his opinions on cross-examination. But questions that go to weight, not admissibility, are for the jury to decide—not the Court.

    Case Details:

    Case Caption: Costar Group, Inc. Et Al V. Commercial Real Estate Exchange Inc.
    Docket Number: 2:20cv8819
    Court Name: United States District Court, California Central
    Order Date: June 26, 2025
  • Class Size Calculations of Economics Expert Witness Held to be Reliable

    Class Size Calculations of Economics Expert Witness Held to be Reliable

    Spokeo owns and operates the website spokeo.com. It collects consumer and public data from various public sources and private vendors, associates that data with particular names, and publishes it online.

    Using proprietary algorithms and systems, Spokeo “attempts to collect and aggregate and merge all that data into persons, person objects, which are then designated with a unique [personal identifier or ‘PID’] for that person object.” That aggregated data, associated with a particular PID, can then be searched for by users of the website. It is also used to populate “teaser profiles,” which can be viewed by the public without a subscription to the website. The teaser profiles advertise additional personal information about the subject of the profile, including about their family, court records, sex offender registration status, marital status, and more. 

    The Plaintiffs, Aviva Kellman, Jason Fry, Nicholas Newell, Susan Gledhill Stephens, and William Williams V, found a teaser profile associated with their personal information.

    The Plaintiffs said that they did not consent to Spokeo’s use of their information on its website. They asserted that Spokeo’s publication of their personal information violated their statutory rights of publicity and common law rights regarding misappropriation of name and likeness. They sought class certification against Spokeo for four classes of people in California and Ohio.

    Spokeo filed motions to exclude the declaration and testimony of Plaintiffs’ experts, Michael Naaman and Steven Weisbrot. In response, the Plaintiffs also filed a motion to exclude Spokeo’s expert, David Alfaro.

    Class Size Calculations of Economics Expert Witness Held to be Reliable

    Economics Expert Witness

    Michael Naaman, Ph.D., is a senior consultant specializing in antitrust, econometrics, and machine learning. He has provided economic and econometric analysis in issues relating to patent infringement and intellectual property, false advertising, and antitrust disputes.

    Naaman has a decade of experience in the economic consulting industry. He received his Ph.D. in economics from Rice University, and he received a M.S. in statistics and B.S. in economics, math, and physics from Tulane University.

    Get in-depth insights into Michael Naaman’s expert witness experience by requesting his Expert Witness Profile today.

    Law Expert Witness

    Steven Weisbrot, Esq. has been responsible for the design and implementation of hundreds of court-approved notice and administration programs. He is President and Chief Executive Officer of Angeion Group, a leading provider of comprehensive settlement management services. Weisbrot is a licensed attorney in Pennsylvania and New Jersey.

    Gain a comprehensive understanding of Steven Weisbrot’s qualifications and casework history with his Expert Witness Profile report.

    Data Science Expert Witness

    David Alfaro is a Senior Managing Director and co-leads the Data & Analytics West Coast practice and is based in San Francisco. Over his 30-year career, Alfaro has led more than 200 engagements as an expert witness and expert consultant, nearly all of which have been in the investigations and disputes space.

    Moreover, he is an expert in the areas of collecting enterprise-wide information with extensive experience in complex, data-intensive analyses in response to government or internal investigations and litigation. In this capacity, Alfaro has provided formal and informal testimony to federal and state courts, the Federal Trade Commission (“FTC”), the Consumer Financial Protection Bureau (“CFPB”), the Federal Bureau of Investigation (“FBI”), the Securities and Exchange Commission (“SEC”), the Department of Justice (“DOJ”), the U.S. Attorney’s Office, the Financial Industry Regulatory Authority (“FINRA”) and other federal agencies.

    Get in-depth insights into David Alfaro’s expert witness experience by requesting his Expert Witness Profile today.

    Discussion by the Court

    Spokeo’s Motion to Exclude Declarations and Testimony of Michael Naaman and Spokeo’s Motion to Strike Naaman’s New Reply Declaration

    Spokeo filed a motion to exclude Naaman’s declaration and testimony, arguing that his class size calculations are unreliable and that his method to calculate damages is fundamentally flawed.

    Spokeo argued that Naaman failed to exclude Spokeo users, dead people, people who assigned their rights, duplicated profiles, profiles with inaccurate home addresses, and profiles that refer to people who are not real from his class size calculations. The Court considered the argument superfluous as Spokeo did not challenge numerosity. Even if Naaman should have excluded each of these, the classes clearly would still meet the numerosity requirements given the data upon which he relied and the evidence of Spokeo’s business model, which is apparently designed to have a teaser profile for every American adult.

    Also, Spokeo sought to exclude Naaman’s declaration and testimony about damages calculations, asserting that Naaman did not provide a method for calculating damages and instead simply multiplied the number of class members by the minimum statutory penalty sought by the Plaintiffs for the Viewed Prior to Purchase classes. 

    The Court held that, pursuant to Rule 702, it was a logical way to calculate damages in a case where the Plaintiffs seek the statutory minimum for damages, and this would help the trier of fact.

    Spokeo’s Motion to Exclude Declarations and Testimony of Steven Weisbrot

     Class Notification:

    Spokeo also moved to exclude the declaration and testimony from Weisbrot about class notification, asserting that it was irrelevant and that its methodology was unreliable.

    Weisbrot’s proposed notification method involved sending emails to potential class members using the email addresses posted on Spokeo’s teaser profiles, by publication in the media, and by website. Though his proposed method provided notice to the nationwide classes, he explained how he would and could use the same method on a narrower target audience if smaller classes were certified, such as statewide classes.

    Spokeo contended that Weisbrot’s notice plan will provide notice to all potential class members in the Purchase classes, and that this is overbroad because it is not directed only to members of the Viewed Prior to Purchase classes, for which notice is mandatory under Rule 23(b)(3). But the Federal Rules permitted notice to 23(b)(2) classes like the Purchase classes, and Spokeo offered no reason why notice should not be provided to them. 

    The Court rejected Spokeo’s argument that Weisbrot not offering a way to target solely Viewed Prior to Purchase members was merely another way to argue that the Plaintiffs were unable to identify their own class members from common evidence. Moreover, the Court found Spokeo’s argument about Plaintiffs self-identifying bizarre because claimants do not have to know pre-filing which class they are in.

    Notice Methodology

    Finally, Spokeo asserted that Weisbrot should not rely on the email addresses that Spokeo has in its possession and includes for teaser profiles because they might not be real or correspond to a real person. Despite Spokeo’s asserting that its email address data was inherently unreliable, and given the evidence about its use of data gathering and associating via personal identifier labels to connect names with addresses and other information, the Court found it highly likely that many of the email addresses were correct for many of the teaser profiles.

    Plaintiffs’ Motion to Exclude Declaration and Testimony of David Alfaro

    Plaintiff argued that Alfaro misrepresented evidence about Spokeo data vendors, was unqualified to opine on class size or Naaman’s methodology, was not an expert on class notice and could not opine on Weisbrot’s methodology, and provided improper legal conclusions. 

    The Court held that it did not rely on Alfaro’s declarations to assess Naaman’s declaration or the validity of Weisbrot’s methodology. In other words, the Court denied Plaintiff’s motion to exclude Alfaro’s testimony as moot because that was the driving basis for which the Plaintiffs challenged Alfaro’s declaration.

    Held

    The Court granted Plaintiffs’ motion for class certification for the California and Ohio classes, with certain amendments to the class definitions. The motion for the nationwide classes was withdrawn.

    To sum it up, the Court denied Spokeo’s motion to exclude the testimony of Michael Naaman and Steven Weisbrot. The Plaintiffs’ motion to exclude David Alfaro’s declaration and testimony was denied as moot.

    Key Takeaway:

    • Naaman simply multiplied the number of class members by the minimum statutory penalty sought by the Plaintiffs for the Viewed Prior to Purchase classes. The Court held it was a logical way to calculate damages in a case where the Plaintiffs seek the statutory minimum for damages.
    • Despite Spokeo’s assertion that its email address data was inherently unreliable, and given the evidence about its use of data gathering and associating via personal identifier labels to connect names with addresses and other information, the Court held that it was highly likely that many of the email addresses are correct for many of the teaser profiles. Hence, Weisbrot could rely on the email addresses that Spokeo had in its possession and remove junk, fake, or inaccurate emails, to the extent possible.