Preview
wo oY AWN YN
ELECTRONICAL|
DAVID J. COOK, ESQ. (State Ba Bar # 060859)
ROOK COLLECTION ATTORNEYS sunely TILED fa
A PROFESSIONAL LAW Co co ORATION ounty of San Franciscp.
el treet, San Franc sco, C.
P.O. Box 270, Sen Francisco, CA| 94104-0270 08/01/201
‘Telephone: (415) 989-4730
Facsimile: (415) 989-0491
Clerk of the Cou
BY: VANESSA WU
Email: Cool vl Deputy Chor
File No. 57,619
Atomeys for for Plaintiff
ALIGN TECHNOLOGY, IN
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
UNTY OF SAN FRANCISCO
JMITED CIVIL JURISDICTION
ALIGN TECHNOLOGY, INC., al CASE NO, CGC-17-561692
corporation, ! Co hae tip
' DECLARATION OF ALBERTO CHAVES
Plaintiff, BARRANTES IN SUPPORT OF EX PARTE °
APPLICATION FOR ISSUANCE OF ORDER
vs, AUTHORIZING DISCOVERY (NOTICE OF *
TAKING DEPOSITION, REQUEST FOR
NICOLE LAMBERT, an individual, PRODUCTION OF DOC! » AND
CONTINUANCE OF HEARING]
AND DOES I THROUGH X, Al
EACH OF THEM, INCLUSIVE,
Date: Al 1, 2018
Defendant, Time: 11:00 am,
Dept.: 302
Judge: Harold E. Kahn
I, ALBERTO CHAVES BARRANTES, hereby declare and state as follows:
1. Declarant is an employge of ALIGN TECHNOLOGY, INC., hereinafter “ALIGN” from
and after February 19, 2009, and
Collections, Americas. ALIGN is
4
las the following job title of Senior Manager, Credit &
the leading provider of “Invisalign” products which are
provided to dentists as part of thei} orthodontic practice.
2. My specific duties are
¢ following:
Hiring and managing members of the team.
Planning, evaluating, implementing and continually improving all aspects of Credit and
DECLARATION OF ALBERTO CHAV:
ISSUANCE OF ORDER AUTHORIZ!
PRODUCTION OF DOCUMENTS, Al
BARRANTES IN SUPPORT OF EX PARTE APPLICATION FOR
DISCOVERY {NOTICE OF TAKING DEPOSITION, REQUEST FOR
CONTINUANCE OF HEARING]Collections functionality agd process.
Assisting in formulating specific collection objectives and achievements,
Ensuring professional relationship establish and maintained with clients and external
business partners such as bit not limited to third party collection agencies and attorneys.
Work on special projects
Create monthly standard id ad hoc reports on the effectiveness of the department
yt management as required
Provide interaction with selected clients in resolving receivables delinquencies
Provide first level supervision to assigned Credit & Collection Staff
Monitor performance of aspigned staff and make recommendations to management
Participate in team efforts {o achieve departmental and company goals
Perform other Credit & Collection related duties as assigned
12 || Ihave become familiar with the T. and conditions of ALIGN in undertaking sales with the
13 dentists over many years and regularly refer to the terms in my direct dealings with dentists.
Declarant is familiar with most fuiets of its business, including the method and manner of
contracting with dentists, Declaraht regularly participates with other managers and executives of
16 ALIGN in discussions of the cm dealings with the dentist and has been informed of, and
| conditions of the sales of the ALIGN product line to the
dentists. 1
3. Declarant is familiar with all facets of ALIGN including the method and manner of how
H dentists place an order with ALIGN, the methodology of contracting, the terms of the sale
21 }| arrangement, and generally the rel tionship between the dentists and ALIGN.
4, Declarant and or membbrs of the Declarant’s department have direct contact with the
dentists in an attempt to resolve differences, discuss the accounts, and resolve disputes if possible.
5. Declarant, on behalf oflALIGN, has engaged in worldwide travel to meet with other
25 |\ ALIGN personnel in the discussion of these issues.
6. The general procedure {s that a dentist who has qualified to order Aligners and retainers
H from ALIGN, hereinafter collectively “Qualified Dentists,” will undertake the following
28 || 2
DECLARATION OF ALBERTO CHAVES BARRANTES IN SUPPORT OF EX PARTE APPLICATION FOR
ISSUANCE OF ORDER AUTHORIZING DISCOVERY [NOTICE OF TAKING DEPOSITION, REQUEST FOR
PRODUCTION OF DOCUMENTS, AND CONTINUANCE OF HEARING}wo oes aA HW & & DN
procedure:
1
3,
Customer 4 to ALIGN web page, www.align.com, by using their
usemame and password. This is called the “Log in.”
The next stp is that the Qualified Dentist clicks on the add new patient
option. |
The Quelifled Dentist enters the patient records, patient data, clinical
conditions, \portraits, X-rays, scans, etc.
After entering all of this information, the Qualified Dentist will have to
click on the “confirm” button, where at the same time he is accepting the
terms and donditions on the screen that says “confirm” order.
The Quali fed Dentist cannot place an order until he clicks on the “confirm”
button, The language which is on the top of the screen is the following:
Terms and Conditions
See ree ee aig
profess for customer aligners or retainers for this patient. By
no! Ee Places sorts Prick, ead editions for
Invisalign, and the Arts & Advertising Standard Guide for Invisalign
pro ucts which govern this transaction.
CONFIRM
7. Declarant personally cycled through the process as set forth above of a Qualified Dentist
going through the order process. f did this to make sure that when a Qualified Dentist
sought to place an order, that upoj{ clicking on the “confirm” button, that the terms and conditions
are incorporated into the sale.
8. Dr. NICOLE LAMBERT, hereinafter “DR. LAMBERT,” is a customer of ALIGN, For
| DECLARATION OF ALBERTO CHAVES BARRANTES IN SUPPORT OF EX PARTE APPLICATION FOR
her to order from ALIGN she hadjto go through a training process in order to become a Qualified
Dentist in the administration of tht Aligners and retainers on behalf of her patients. DR.
LAMBERT had a username and alpassword. DR. LAMBERT has been a customer of ALIGN
since February 19, 2013. For DR.|LAMBERT to become a customer she had to go through a
ISSUANCE OF ORDER AUTHORIZING DISCOVERY [NOTICE OF TAKING DEPOSITION, REQUEST FOR
PRODUCTION OF DOCUMENTS, AND CONTINUANCE OF HEARING]coe NAW & YY WD
10
28
training process,
9, The subject matter of fhis action are 44 separate invoices, marked Exhibits “A-I"
through “A-44," Declarant is p¢rsonally familiar with these invoices, and directed that they be
forwarded to outside counsel to support a lawsuit against DR. LAMBERT for nonpayment in the
sum of $47,772.23. The copies which are attached masked Exhibits “A-I" through “A-44" are
of the electronic copies which are kept and maintained by
ALIGN. Declarant personally confirmed that these are the invoices accrued by DR. LAMBERT.
10. By the fact that therelare 44 unpaid invoices, means that DR. LAMBERT had to
personally hit the “confirm” buttgn on her screen to order the ALIGN Aligners and retainers,
which are generally described in Exhibits “A-I" through “A-44.” The “confirm” button is on the
lower right hand of the screen. The “confirm” button is in blue color, and is readily visible. The
dentist has the ability to “cancel”ithe order.
11. This means that DR. I BERT was advised that each transaction, i.e. each invoice,
was governed by the terms and cdnditions of ALIGN at the time. DR, LAMBERT could click on
to the “Pricing, Terms and Condi ions” which would be a direct link to the ALIGN Pricing, Terms
and Conditions, Therefore, with hothing more than hitting the “link” she could have read the
ALIGN “Pricing, Terms and Conditions.”
12. From and after om 19, 2013, DR. LAMBERT placed a total of 159 orders. She
copies of the originals, i.e, copi
paid for 108 of these orders, She| lhas not paid for $1 of the orders. This means that she hit the
“confirm” button in placing these|159 orders. DR. LAMBERT was the sole holder of the account,
ie, with her username and personal password and therefore the sole person to have ordered the
Aligners and retainers from ALIGN. She ordered Aligners and retainers from ALIGN 159 times,
in which each of these orders ot that the ALIGN “terms and conditions” would govern the
transaction. In Declarant’s positign, Declarant is familiar with all of the terms and conditions
relevant to this case, including ii “B,” “C,” “D” and “E,” as set forth below.
13. The ALIGN Pricing ferms and Conditions are set forth below marked Exhibits “B,”
*C," “D” and “E,” and incorporgted herein by reference.
4
j
Fe
DECLARATION OF ALBERTO CHAVES BARRANTES IN SUPPORT OF EX PARTE APPLICATION FOR
ISSUANCE OF ORDER AUTHORIZING DISCOVERY [NOTICE OF TAKING DEPOSITION, REQUEST FOR
PRODUCTION OF DOCUMENTS, AND CONTINUANCE OF HEARING]won ann & WwW WN
|
{
Exhibit “B” - AKIGN Technolo, Pricing Terms and Conditions (“Terms”) for
USA Effective as of July 1, 201
Exhibit “C” - AIIGN Technology Pricing Terms and Conditions (“Terms”) for
USA Effective as of Fe
Exhibit “D” - AUIGN Technology Pricing Terms and Conditions (“Terms”) for
USA shox as of April 1, 2017
Exhibit “E” - Al
USA E
14, Each of these “Te:
GN Technology Pricing Terms and Conditions (“Terms”) for
fective as of April 1, 2017
ary 27, 2017
and Conditions” masked Exhibits “B,” “C,” “D” and “E,”
provides for a California forum selection clause on page two (2) as follows:
“Law. mie Align agree that all contracts between the parties, and
dispute or claim arisin;
of formation including
construed in accordance
Jurisdiction. Cul
shall have exclusive juris
, and any
t of or in connection with any such contract or its subject matter
n-contractual disputes or claims) shall be governed by and
With the laws of the state of California USA.
mer and Align agree that the courts of the state of California
iction over any dispute or claim arising out of or in connection
with these Terms and any,contract or their or its subject matter or formation (Dispute), save
that in either case and if
jurisdiction of the country
cal law permits, Align shall have the right to seize the
or any of the countries in which the Customer and/ or does
siness to resolve a Disyjte.”
This forum selection clause is pait and parcel of all of ALIGN’s terms and conditions with the
15, ALIGN sells on a nai
at
selection clause to insure that all |
lonal and worldwide basis, ALIGN has incorporated a forum
legal matters would be resolved through the California courts,
which would ensure on behalf “.. uniformity and reasonable certainty of results, The
forum selection clause has been |
ngstanding, and based among other grounds, that ALIGN’s
headquarters are located at 2820 Orchard Parkway, San Jose, California 95134, The headquarters
of ALIGN includes senior manag
functions of ALIGN. |
ent, management, the legal department, and other core
16. Prior to the filing of this action, members of Declarant’s staff have been in contact
with DR. LAMBERT for eee requesting that she pay the outstanding indebtedness, but
without success, Declarant there:
of filing suit.
re directed that the matter go to outside counsel for the purpose
5
DECLARATION OF ALBERTO CHAVES BARRANTES IN SUPPORT OF EX PARTE APPLICATION FOR
ISSUANCE OF ORDER AUTHORIZING DISCOVERY [NOTICE OF TAKING DEPOSITION, REQUEST FOR
PRODUCTION OF DOCUMENTS, AND CONTINUANCE OF HEARING]oe NAH Ph wD
17, Declarant has personalland firsthand knowledge of the matters as set forth above, and
if called as a witness could competently testify thereto. Declarant is the Senior Manager of the
department, as set forth above, and as part of his daily activities, aids and assists in the
management of ALIGN’s relationship with the dentists. Declarant therefore is familiar with the
terms and conditions as part and 1 for the last eight (8) years,
I declare under penalty of perjury under the laws of the State of California that the above is
true and correct. Executed at Tn ldy ; Hen A
I
t 6
DECLARATION OF ALBERTO CHAVES BARRANTES IN SUPPORT OF EX PARTE APPLICATION FOR
ISSUANCE OF ORDER AUTHORIZING DISCOVERY [NOTICE OF TAKING DEPOSITION, REQUEST FOR
PRODUCTION OF DOCUMENTS, ap CONTINUANCE OF HEARING]EXHIBITS PREVIOUSLY FILED
Preview
wo oY AWN YN ELECTRONICAL| DAVID J. COOK, ESQ. (State Ba Bar # 060859) ROOK COLLECTION ATTORNEYS sunely TILED fa A PROFESSIONAL LAW Co co ORATION ounty of San Franciscp. el treet, San Franc sco, C. P.O. Box 270, Sen Francisco, CA| 94104-0270 08/01/201 ‘Telephone: (415) 989-4730 Facsimile: (415) 989-0491 Clerk of the Cou BY: VANESSA WU Email: Cool vl Deputy Chor File No. 57,619 Atomeys for for Plaintiff ALIGN TECHNOLOGY, IN SUPERIOR COURT FOR THE STATE OF CALIFORNIA UNTY OF SAN FRANCISCO JMITED CIVIL JURISDICTION ALIGN TECHNOLOGY, INC., al CASE NO, CGC-17-561692 corporation, ! Co hae tip ' DECLARATION OF ALBERTO CHAVES Plaintiff, BARRANTES IN SUPPORT OF EX PARTE ° APPLICATION FOR ISSUANCE OF ORDER vs, AUTHORIZING DISCOVERY (NOTICE OF * TAKING DEPOSITION, REQUEST FOR NICOLE LAMBERT, an individual, PRODUCTION OF DOC! » AND CONTINUANCE OF HEARING] AND DOES I THROUGH X, Al EACH OF THEM, INCLUSIVE, Date: Al 1, 2018 Defendant, Time: 11:00 am, Dept.: 302 Judge: Harold E. Kahn I, ALBERTO CHAVES BARRANTES, hereby declare and state as follows: 1. Declarant is an employge of ALIGN TECHNOLOGY, INC., hereinafter “ALIGN” from and after February 19, 2009, and Collections, Americas. ALIGN is 4 las the following job title of Senior Manager, Credit & the leading provider of “Invisalign” products which are provided to dentists as part of thei} orthodontic practice. 2. My specific duties are ¢ following: Hiring and managing members of the team. Planning, evaluating, implementing and continually improving all aspects of Credit and DECLARATION OF ALBERTO CHAV: ISSUANCE OF ORDER AUTHORIZ! PRODUCTION OF DOCUMENTS, Al BARRANTES IN SUPPORT OF EX PARTE APPLICATION FOR DISCOVERY {NOTICE OF TAKING DEPOSITION, REQUEST FOR CONTINUANCE OF HEARING]Collections functionality agd process. Assisting in formulating specific collection objectives and achievements, Ensuring professional relationship establish and maintained with clients and external business partners such as bit not limited to third party collection agencies and attorneys. Work on special projects Create monthly standard id ad hoc reports on the effectiveness of the department yt management as required Provide interaction with selected clients in resolving receivables delinquencies Provide first level supervision to assigned Credit & Collection Staff Monitor performance of aspigned staff and make recommendations to management Participate in team efforts {o achieve departmental and company goals Perform other Credit & Collection related duties as assigned 12 || Ihave become familiar with the T. and conditions of ALIGN in undertaking sales with the 13 dentists over many years and regularly refer to the terms in my direct dealings with dentists. Declarant is familiar with most fuiets of its business, including the method and manner of contracting with dentists, Declaraht regularly participates with other managers and executives of 16 ALIGN in discussions of the cm dealings with the dentist and has been informed of, and | conditions of the sales of the ALIGN product line to the dentists. 1 3. Declarant is familiar with all facets of ALIGN including the method and manner of how H dentists place an order with ALIGN, the methodology of contracting, the terms of the sale 21 }| arrangement, and generally the rel tionship between the dentists and ALIGN. 4, Declarant and or membbrs of the Declarant’s department have direct contact with the dentists in an attempt to resolve differences, discuss the accounts, and resolve disputes if possible. 5. Declarant, on behalf oflALIGN, has engaged in worldwide travel to meet with other 25 |\ ALIGN personnel in the discussion of these issues. 6. The general procedure {s that a dentist who has qualified to order Aligners and retainers H from ALIGN, hereinafter collectively “Qualified Dentists,” will undertake the following 28 || 2 DECLARATION OF ALBERTO CHAVES BARRANTES IN SUPPORT OF EX PARTE APPLICATION FOR ISSUANCE OF ORDER AUTHORIZING DISCOVERY [NOTICE OF TAKING DEPOSITION, REQUEST FOR PRODUCTION OF DOCUMENTS, AND CONTINUANCE OF HEARING}wo oes aA HW & & DN procedure: 1 3, Customer 4 to ALIGN web page, www.align.com, by using their usemame and password. This is called the “Log in.” The next stp is that the Qualified Dentist clicks on the add new patient option. | The Quelifled Dentist enters the patient records, patient data, clinical conditions, \portraits, X-rays, scans, etc. After entering all of this information, the Qualified Dentist will have to click on the “confirm” button, where at the same time he is accepting the terms and donditions on the screen that says “confirm” order. The Quali fed Dentist cannot place an order until he clicks on the “confirm” button, The language which is on the top of the screen is the following: Terms and Conditions See ree ee aig profess for customer aligners or retainers for this patient. By no! Ee Places sorts Prick, ead editions for Invisalign, and the Arts & Advertising Standard Guide for Invisalign pro ucts which govern this transaction. CONFIRM 7. Declarant personally cycled through the process as set forth above of a Qualified Dentist going through the order process. f did this to make sure that when a Qualified Dentist sought to place an order, that upoj{ clicking on the “confirm” button, that the terms and conditions are incorporated into the sale. 8. Dr. NICOLE LAMBERT, hereinafter “DR. LAMBERT,” is a customer of ALIGN, For | DECLARATION OF ALBERTO CHAVES BARRANTES IN SUPPORT OF EX PARTE APPLICATION FOR her to order from ALIGN she hadjto go through a training process in order to become a Qualified Dentist in the administration of tht Aligners and retainers on behalf of her patients. DR. LAMBERT had a username and alpassword. DR. LAMBERT has been a customer of ALIGN since February 19, 2013. For DR.|LAMBERT to become a customer she had to go through a ISSUANCE OF ORDER AUTHORIZING DISCOVERY [NOTICE OF TAKING DEPOSITION, REQUEST FOR PRODUCTION OF DOCUMENTS, AND CONTINUANCE OF HEARING]coe NAW & YY WD 10 28 training process, 9, The subject matter of fhis action are 44 separate invoices, marked Exhibits “A-I" through “A-44," Declarant is p¢rsonally familiar with these invoices, and directed that they be forwarded to outside counsel to support a lawsuit against DR. LAMBERT for nonpayment in the sum of $47,772.23. The copies which are attached masked Exhibits “A-I" through “A-44" are of the electronic copies which are kept and maintained by ALIGN. Declarant personally confirmed that these are the invoices accrued by DR. LAMBERT. 10. By the fact that therelare 44 unpaid invoices, means that DR. LAMBERT had to personally hit the “confirm” buttgn on her screen to order the ALIGN Aligners and retainers, which are generally described in Exhibits “A-I" through “A-44.” The “confirm” button is on the lower right hand of the screen. The “confirm” button is in blue color, and is readily visible. The dentist has the ability to “cancel”ithe order. 11. This means that DR. I BERT was advised that each transaction, i.e. each invoice, was governed by the terms and cdnditions of ALIGN at the time. DR, LAMBERT could click on to the “Pricing, Terms and Condi ions” which would be a direct link to the ALIGN Pricing, Terms and Conditions, Therefore, with hothing more than hitting the “link” she could have read the ALIGN “Pricing, Terms and Conditions.” 12. From and after om 19, 2013, DR. LAMBERT placed a total of 159 orders. She copies of the originals, i.e, copi paid for 108 of these orders, She| lhas not paid for $1 of the orders. This means that she hit the “confirm” button in placing these|159 orders. DR. LAMBERT was the sole holder of the account, ie, with her username and personal password and therefore the sole person to have ordered the Aligners and retainers from ALIGN. She ordered Aligners and retainers from ALIGN 159 times, in which each of these orders ot that the ALIGN “terms and conditions” would govern the transaction. In Declarant’s positign, Declarant is familiar with all of the terms and conditions relevant to this case, including ii “B,” “C,” “D” and “E,” as set forth below. 13. The ALIGN Pricing ferms and Conditions are set forth below marked Exhibits “B,” *C," “D” and “E,” and incorporgted herein by reference. 4 j Fe DECLARATION OF ALBERTO CHAVES BARRANTES IN SUPPORT OF EX PARTE APPLICATION FOR ISSUANCE OF ORDER AUTHORIZING DISCOVERY [NOTICE OF TAKING DEPOSITION, REQUEST FOR PRODUCTION OF DOCUMENTS, AND CONTINUANCE OF HEARING]won ann & WwW WN | { Exhibit “B” - AKIGN Technolo, Pricing Terms and Conditions (“Terms”) for USA Effective as of July 1, 201 Exhibit “C” - AIIGN Technology Pricing Terms and Conditions (“Terms”) for USA Effective as of Fe Exhibit “D” - AUIGN Technology Pricing Terms and Conditions (“Terms”) for USA shox as of April 1, 2017 Exhibit “E” - Al USA E 14, Each of these “Te: GN Technology Pricing Terms and Conditions (“Terms”) for fective as of April 1, 2017 ary 27, 2017 and Conditions” masked Exhibits “B,” “C,” “D” and “E,” provides for a California forum selection clause on page two (2) as follows: “Law. mie Align agree that all contracts between the parties, and dispute or claim arisin; of formation including construed in accordance Jurisdiction. Cul shall have exclusive juris , and any t of or in connection with any such contract or its subject matter n-contractual disputes or claims) shall be governed by and With the laws of the state of California USA. mer and Align agree that the courts of the state of California iction over any dispute or claim arising out of or in connection with these Terms and any,contract or their or its subject matter or formation (Dispute), save that in either case and if jurisdiction of the country cal law permits, Align shall have the right to seize the or any of the countries in which the Customer and/ or does siness to resolve a Disyjte.” This forum selection clause is pait and parcel of all of ALIGN’s terms and conditions with the 15, ALIGN sells on a nai at selection clause to insure that all | lonal and worldwide basis, ALIGN has incorporated a forum legal matters would be resolved through the California courts, which would ensure on behalf “.. uniformity and reasonable certainty of results, The forum selection clause has been | ngstanding, and based among other grounds, that ALIGN’s headquarters are located at 2820 Orchard Parkway, San Jose, California 95134, The headquarters of ALIGN includes senior manag functions of ALIGN. | ent, management, the legal department, and other core 16. Prior to the filing of this action, members of Declarant’s staff have been in contact with DR. LAMBERT for eee requesting that she pay the outstanding indebtedness, but without success, Declarant there: of filing suit. re directed that the matter go to outside counsel for the purpose 5 DECLARATION OF ALBERTO CHAVES BARRANTES IN SUPPORT OF EX PARTE APPLICATION FOR ISSUANCE OF ORDER AUTHORIZING DISCOVERY [NOTICE OF TAKING DEPOSITION, REQUEST FOR PRODUCTION OF DOCUMENTS, AND CONTINUANCE OF HEARING]oe NAH Ph wD 17, Declarant has personalland firsthand knowledge of the matters as set forth above, and if called as a witness could competently testify thereto. Declarant is the Senior Manager of the department, as set forth above, and as part of his daily activities, aids and assists in the management of ALIGN’s relationship with the dentists. Declarant therefore is familiar with the terms and conditions as part and 1 for the last eight (8) years, I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed at Tn ldy ; Hen A I t 6 DECLARATION OF ALBERTO CHAVES BARRANTES IN SUPPORT OF EX PARTE APPLICATION FOR ISSUANCE OF ORDER AUTHORIZING DISCOVERY [NOTICE OF TAKING DEPOSITION, REQUEST FOR PRODUCTION OF DOCUMENTS, ap CONTINUANCE OF HEARING]EXHIBITS PREVIOUSLY FILED