UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
|THE TAUBMAN COMPANY|
| ||Civil Action No. 01-72987|
| ||District Judge Zatkoff|
|WEBFEATS AND HENRY MISHKOFF,
||Magistrate Judge Komives
MEMORANDUM IN SUPPORT OF
MOTION TO SUPPLEMENT RECORD ON APPEAL
Defendants have moved the Court to supplement the record on appeal for the following reasons:
In ruling on plaintiff's motion for an expanded preliminary injunction, and on defendants'
motion for a stay pending appeal, the Court repeatedly referred to its having inspected the web
sites whose propriety is an issue in this case.
Some of the text of the shopsatwillowbend.com web site was submitted with the motion for a
preliminary injunction, but the court reported having reviewed several of the links contained on the
web site, which do not appear in the printed materials submitted by the plaintiff. The only way to
include the HTML code that shows where the links point is to place the web site's electronic files
in the record.
Moreover, in reviewing the court's preliminary injunctions, the Court of Appeals should have
before it exactly the same material that this Court was reviewing, in the same format in which the
Court was able to review it. Although the printed text of the web site was submitted to the Court,
in the form that it existed as of November 8, the printed text lacks the quality that the actual
electronic files have for a person who visits them using an Internet browser.
The Court's preliminary injunctions required defendant to remove the web sites from the
Internet, and defendants promptly complied with that order. Accordingly, unless the files are placed
in the record in their electronic form, the Court of Appeals will not be able to review the basis
for this Court's ruling in the same way that this Court was able to do.
As shown by the attached affidavits, the attached CD's contain the web sites in exactly the
form that they had at the time this Court entered its preliminary injunctions against continued
display of the sites on the Internet. The Court is requested to approve the placement of these CD's
in the record to supplement the record on appeal.
In addition, in ruling on the motion for a stay pending appeal, the Court made reference to
what a member of the public would find if he conducted a search for "shops at willow bend" on the
popular Google search engine. The Court concluded that these search results might confuse an
Internet viewer about whether Taubman or one of his critics is the sponsor of defendant's site.
However, when defendant conducted such a search, he found that the first time his site appeared on
the listing of search results was in the 32nd position, on the fourth set (or seventh printed page)
of search results, and well after numerous "hits" for the official Shops at Willow Bend web site,
for Taubman's own web site, and for other sites at which Taubman advertises its shopping mall. This
context tends to defeat any finding that the web site would confuse Internet searchers into visiting
defendant's site when they ware looking for Taubman's own site.
There are no such search results in the record of this case, and so defendants assume that
the Court or one of its staff personally conducted an Internet search in the manner described. It is
possible that the Court's search produced results that are different from those produced by
defendant on a different date, because search engine results are dynamic depending on the precise
contents of the engine's database at the time of the search. The Court of Appeals should have the
Court's own search results available to it in the record so that it can review those results in
ruling on defendants' challenge to this Court's decision. Accordingly, the Court is requested to
place the written search results into the record, and to certify that supplemental record to the
Court of Appeals.
On Friday, January 25, 2002, defendants' counsel, Paul Alan Levy, Esquire, telephoned Julie
Greenberg, Esquire, to request her concurrence in this motion. Ms. Greenberg has never responded to
The record on appeal should be supplemented.
Barbara Harvey (P25478)
Detroit, Michigan 48226
Paul Alan Levy (DC Bar 946400)
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
Attorneys for Defendants
February 8, 2002