Court filing
MOTION to Dismiss and Motion to Strike filed by Thomson Reuters… — Brooks v. Thomson Reuters Corporation (Dkt. 28)
No. 3:21-cv-01418-EMC · Doc. 28 · Docket on CourtListener
Summary
Thomson Reuters Corporation's notice of motion to dismiss under Rule 12(b)(6) and motion to strike under Cal. Civ. Proc. Code § 425.16, with memorandum in support, filed April 5, 2021 in Brooks v. Thomson Reuters Corporation, Case No. 3:21-cv-01418-EMC, U.S. District Court for the Northern District of California (Document 28). Plaintiffs Cat Brooks and Rasheed Shabazz assert right of publicity, UCL and unjust enrichment claims over information in Thomson Reuters' CLEAR database. The motion, noticed for hearing on June 3, 2021 before Judge Edward M. Chen, asks the court to dismiss and strike the complaint with prejudice. It argues the claims are not adequately pleaded, are barred by the First Amendment and by the Communications Decency Act, 47 U.S.C. § 230, and should be stricken under California's anti-SLAPP statute. The 35-page filing is signed by Susan D. Fahringer of Perkins Coie LLP.
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Case 3:21-cv-01418-EMC Document 28 Filed 04/05/21 Page 1 of 35
1 Susan D. Fahringer, Bar No. 21567 Gabriella Gallego, Bar No. 324226
SFahringer@perkinscoie.com GGallego@perkinscoie.com
2 Nicola C. Menaldo, pro hac vice PERKINS COIE LLP
NMenaldo@perkinscoie.com
3 Anna M. Thompson, pro hac vice 3150 Porter Drive
AnnaThompson@perkinscoie.com Palo Alto, CA 94304-1212
4 PERKINS COIE LLP Telephone: 650.838.4300
1201 Third Avenue, Suite 4900 Facsimile: 650.838.4350
5 Seattle, WA 98101-3099
Telephone: 206.359.8000
6 Facsimile: 206.359.9000
7 Attorneys for Defendant
Thomson Reuters Corporation
8
9 UNITED STATES DISTRICT COURT
10 NORTHERN DISTRICT OF CALIFORNIA
11 SAN FRANCISCO DIVISION
12
13 CAT BROOKS and RASHEED Case No. 3:21-cv-01418-EMC
SHABAZZ, individually and on behalf of
14 all others similarly situated, NOTICE OF DEFENDANT’S MOTION TO
DISMISS PURSUANT TO FRCP 12(b)(6),
15 Plaintiffs, AND MOTION TO STRIKE PURSUANT
16 TO CALIFORNIA CODE OF CIVIL
v. PROCEDURE § 425.16, AND
17 MEMORANDUM IN SUPPORT
THOMSON REUTERS CORPORATION,
18 Date: June 3, 2021
Defendant. Time: 1:30 p.m.
19 Place: Courtroom 5, 17th Floor
20 Judge: Hon. Edward M. Chen
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DEFENDANT’S MOTION TO DISMISS AND MOTION TO STRIKE CASE NO. 3:21-CV-01418-EMC
Case 3:21-cv-01418-EMC Document 28 Filed 04/05/21 Page 2 of 35
1 TABLE OF CONTENTS
2 Page
3 I. NOTICE OF MOTION AND MOTION ............................................................................ 1
4 II. STATEMENT OF ISSUES ................................................................................................ 1
5 III. INTRODUCTION .............................................................................................................. 2
6 IV. BACKGROUND ................................................................................................................ 3
7 A. Thomson Reuters and the CLEAR Research Platform ........................................... 3
8 B. Plaintiffs .................................................................................................................. 5
9 V. ARGUMENT ...................................................................................................................... 6
10 A. Legal Standard Under Federal Rule of Civil Procedure 12(b)(6) ........................... 6
11 B. Plaintiffs Fail to Plead Facts Establishing Essential Elements of Their
Claims ..................................................................................................................... 7
12
1. Plaintiffs have not stated a common law publicity claim ........................... 7
13
a. Plaintiffs have not alleged the “use” or “appropriation” of
14 their identities necessary to establish a common law
publicity claim................................................................................. 7
15
b. Plaintiffs’ right of publicity claim is barred by the First
16 Amendment ..................................................................................... 9
17 (i) There is a strong public interest in the information
made available through CLEAR ....................................... 10
18
(ii) Plaintiffs fail to allege a substantial competing
19 interest sufficient to overcome the public interest in
access to information available in CLEAR ....................... 12
20
(iii) The injunction that Plaintiffs seek would be an
21 impermissible prior restraint ............................................. 14
22 2. Plaintiffs have not stated a claim for violation of the UCL ...................... 14
23 a. Plaintiffs have not established an “unlawful” act or practice ....... 14
24 b. Plaintiffs have not established an “unfair” practice ...................... 15
25 (i) Thomson Reuters’ conduct is not “unfair” because it
is expressly permitted by the CCPA ................................. 15
26
(ii) Thomson Reuters’ conduct is not “unfair” under any
27 of the tests employed by California courts........................ 16
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DEFENDANT’S MOTION TO DISMISS AND MOTION TO STRIKE CASE NO. 3:21-CV-01418-EMC
Case 3:21-cv-01418-EMC Document 28 Filed 04/05/21 Page 3 of 35
1 TABLE OF CONTENTS
(continued)
2 Page
3 c. Plaintiffs’ UCL claim fails because they have not pled an
inadequate remedy at law .............................................................. 18
4
3. Plaintiffs have not stated a claim for unjust enrichment ........................... 18
5
C. Plaintiffs’ Claims Are Barred by the Communications Decency Act................... 19
6
1. Thomson Reuters provides an “interactive computer service” ................. 19
7
2. Plaintiffs seek to hold Thomson Reuters liable as a “publisher” or
8 “speaker” ................................................................................................... 20
9 3. Thomson Reuters is not the “information content provider” with
respect to the information content at issue ................................................ 21
10
D. The Court Should Strike the Complaint Under California’s Anti-SLAPP
11 Statute.................................................................................................................... 23
12 1. Publishing the CLEAR profiles is protected activity ................................ 24
13 2. Plaintiffs cannot show a probability of prevailing at trial ......................... 25
14 VI. CONCLUSION ................................................................................................................. 25
15
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DEFENDANT’S MOTION TO DISMISS AND MOTION TO STRIKE CASE NO. 3:21-CV-01418-EMC
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1 TABLE OF AUTHORITIES
2 Page(s)
3 CASES
4 Alexander v. United States,
509 U.S. 544 (1993) ..................................................................................................................14
5
Aligo v. Time-Life Books, Inc.,
6 No. C 94-20707 JW, 1994 WL 715605 (N.D. Cal. Dec. 19, 1994) ............................................8
7 Ashcroft v. Iqbal,
556 U.S. 662 (2009) ................................................................................................................6, 7
8
Balistreri v. Pacifica Police Dep’t,
9 901 F.2d 696 (9th Cir. 1988), as amended (May 11, 1990)........................................................6
10 Baral v. Schnitt,
1 Cal. 5th 376 (2016) ................................................................................................................25
11
Barnes v. Yahoo!, Inc.,
12 570 F.3d 1096 (9th Cir. 2009), as amended (Sept. 28, 2009) .............................................20, 21
13 Barrett v. Rosenthal,
40 Cal. 4th 33 (2006) ................................................................................................................24
14
Barry v. State Bar of Cal.,
15 2 Cal. 5th 318 (2017) ................................................................................................................23
16 Bartnicki v. Vopper,
532 U.S. 514 (2001) ..................................................................................................................13
17
Batzel v. Smith,
18 333 F.3d 1018 (9th Cir. 2003)...................................................................................................22
19 Bosley Med. Inst., Inc. v. Kremer,
403 F.3d 672 (9th Cir. 2005).....................................................................................................24
20
Browne v. Avvo, Inc.,
21 525 F. Supp. 2d 1249 (W.D. Wash. 2007) ................................................................................12
22 Callahan v. Ancestry.com Inc.,
No. 20-cv-08437-LB, 2021 WL 783524 (N.D. Cal. Mar. 1, 2021) ..............................20, 21, 23
23
Caraccioli v. Facebook, Inc.,
24 167 F. Supp. 3d 1056 (N.D. Cal. 2016), aff’d, 700 F. App’x 588 (9th Cir.
2017) .........................................................................................................................................20
25
Carafano v. Metrosplash.com, Inc.,
26 339 F.3d 1119 (9th Cir. 2003).............................................................................................19, 21
27 Carlisle v. Fawcett Publ’ns, Inc.,
201 Cal. App. 2d 733 (1962).....................................................................................................10
28
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1 TABLE OF AUTHORITIES
(continued)
2 Page(s)
3 CASES (CONT.)
4 Castle Rock Remodeling, LLC v. Better Bus. Bureau of Greater St. Louis, Inc.,
354 S.W.3d 234 (Mo. Ct. App. 2011) .......................................................................................12
5
Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co.,
6 20 Cal. 4th 163 (1999) ..............................................................................................................15
7 Cox Broad. Corp. v. Cohn,
420 U.S. 469 (1975) ............................................................................................................10, 13
8
Cross v. Facebook, Inc.,
9 14 Cal. App. 5th 190 (2017) .......................................................................................................7
10 DC Comics v. Pac. Pictures Corp.,
706 F.3d 1009 (9th Cir. 2013)...................................................................................................24
11
Dora v. Frontline Video, Inc.,
12 15 Cal. App. 4th 536 (1993) ...............................................................................................13, 15
13 Downing v. Abercrombie & Fitch,
265 F.3d 994 (9th Cir. 2001).....................................................................................................15
14
Dreamstime.com, LLC v. Google, LLC,
15 No. C 18-01910 WHA, 2019 WL 2372280 (N.D. Cal. June 5, 2019) ......................................11
16 Dunkin v. Boskey,
82 Cal. App. 4th 171 (2000) .....................................................................................................18
17
Dyroff v. Ultimate Software Group, Inc.,
18 934 F.3d 1093 (9th Cir. 2019), cert. denied, 140 S. Ct. 2761 (2020) .......................................19
19 Eastwood v. Super. Ct. for Cty. of L.A.,
149 Cal. App. 3d 409 (1983).................................................................................................7, 10
20
Ebeid v. Facebook, Inc.,
21 No. 18-CV-07030-PJH, 2019 WL 2059662 (N.D. Cal. May 9, 2019) .....................................21
22 Exeltis USA Inc. v. First Databank, Inc.,
No. 17-CV-04810-HSG, 2017 WL 6539909 (N.D. Cal. Dec. 21, 2017)..................................25
23
Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC,
24 521 F.3d 1157 (9th Cir. 2008).............................................................................................19, 22
25 Fleet v. CBS, Inc.,
50 Cal. App. 4th 1911 (1996) .....................................................................................................9
26
Fraley v. Facebook, Inc.,
27 830 F. Supp. 2d 785 (N.D. Cal. 2011) ........................................................................................8
28
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DEFENDANT’S MOTION TO DISMISS AND MOTION TO STRIKE CASE NO. 3:21-CV-01418-EMC
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1 TABLE OF AUTHORITIES
(continued)
2 Page(s)
3 CASES (CONT.)
4 Gardiner v. Walmart Inc.,
No. 20-cv-04618-JSW (N.D. Cal. Mar. 5, 2021), ECF No. 43 .................................................16
5
Gates v. Discovery Communications, Inc.,
6 34 Cal. 4th 679 (2004) ..............................................................................................................13
7 Gionfriddo v. Major League Baseball,
94 Cal. App. 4th 400 (2001) ...........................................................................................9, 10, 12
8
Goddard v. Google, Inc.,
9 640 F. Supp. 2d 1193 (N.D. Cal. 2009) ....................................................................................23
10 Good Gov’t Grp. of Seal Beach, Inc. v. Super. Ct.,
22 Cal. 3d 672 (1978) ...............................................................................................................23
11
Huynh v. Quora, Inc.,
12 — F. Supp. 3d —, No. 5:18-cv-07597-BLF, 2020 WL 7495097 (N.D. Cal.
Dec. 21, 2020) ...........................................................................................................................18
13
In re Anthem, Inc. Data Breach Litig.,
14 162 F. Supp. 3d 953 (N.D. Cal. 2016) ................................................................................16, 17
15 In re Facebook, Inc., Consumer Privacy User Profile Litigation,
402 F. Supp. 3d 767 (N.D. Cal. 2019) ....................................................................................8, 9
16
In re Google Assistant Priv. Litig.,
17 457 F. Supp. 3d 797 (N.D. Cal. 2020) ........................................................................................3
18 In re: Zoom Video Commc’ns Inc. Priv. Litig.,
No. 20-CV-02155-LHK, 2021 WL 930623 (N.D. Cal. Mar. 11, 2021) .............................20, 22
19
Jefferson Cty. Sch. Dist. No. R-1 v. Moody’s Investor’s Servs., Inc.,
20 175 F.3d 848 (10th Cir. 1999)...................................................................................................12
21 Julian v. TTE Tech., Inc.,
No. 20-cv-02857-EMC, 2020 WL 6743912 (N.D. Cal. Nov. 17, 2020) ..................................18
22
Jurin v. Google Inc.,
23 695 F. Supp. 2d 1117 (E.D. Cal. 2010) .....................................................................................21
24 Kwikset Corp. v. Super. Ct. of Orange Cnty.,
51 Cal. 4th 310 (2011) ..............................................................................................................14
25
La Park La Brea A LLC v. Airbnb, Inc.,
26 285 F. Supp. 3d 1097 (C.D. Cal. 2017) ....................................................................................21
27 Loo v. Toyota Motor Sales, USA, Inc.,
No. 19-cv-00750-VAP, 2019 WL 7753448 (C.D. Cal. Dec. 20, 2019)....................................18
28
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DEFENDANT’S MOTION TO DISMISS AND MOTION TO STRIKE CASE NO. 3:21-CV-01418-EMC
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1 TABLE OF AUTHORITIES
(continued)
2 Page(s)
3 CASES (CONT.)
4 Low v. LinkedIn Corp.,
900 F. Supp. 2d 1010 (N.D. Cal. 2012) ....................................................................................18
5
Lozano v. AT & T Wireless Servs., Inc.,
6 504 F.3d 718 (9th Cir. 2007).....................................................................................................17
7 Lugosi v. Universal Pictures,
25 Cal. 3d 813 (1979) .................................................................................................................7
8
Makaeff v. Trump Univ., LLC,
9 715 F.3d 254 (9th Cir. 2013).....................................................................................................24
10 Maloney v. T3Media, Inc.,
853 F.3d 1004 (9th Cir. 2017).....................................................................................................9
11
McCann v. Lucky Money, Inc.,
12 129 Cal. App. 4th 1382 (2005) .................................................................................................16
13 Michaels v. Internet Entm’t Grp., Inc.,
5 F. Supp. 2d 823 (C.D. Cal. 1998).............................................................................................8
14
Mortg. Specialists, Inc. v. Implode-Explode Heavy Indus., Inc.,
15 999 A.2d 184 (N.H. 2010) ........................................................................................................14
16 New Kids On The Block v. News Am. Publ’g, Inc.,
745 F. Supp. 1540 (C.D. Cal. 1990), aff’d, 971 F.2d 302 (9th Cir. 1992) ..........................11, 24
17
Okla. Publ’g Co. v. Dist. Ct. In & For Okla. Cnty.,
18 430 U.S. 308 (1977) ..................................................................................................................13
19 Partington v. Bugliosi,
56 F.3d 1147 (9th Cir. 1995).....................................................................................................12
20
Perfect 10, Inc. v. CCBill LLC,
21 488 F.3d 1102 (9th Cir. 2007)...................................................................................................21
22 Perfect 10, Inc. v. Google, Inc.,
No. CV 04-9484 AHM (SHx), 2010 WL 9479060 (C.D. Cal. July 30, 2010) ,
23 aff’d, 653 F.3d 976 (9th Cir. 2011) .............................................................................................7
24 Perkins v. LinkedIn Corp.,
53 F. Supp. 3d 1190 (N.D. Cal. 2014) ........................................................................................8
25
Perkins v. LinkedIn Corp.,
26 53 F. Supp. 3d 1222 (N.D. Cal. 2014) ........................................................................................8
27 Planned Parenthood Fed’n of Am., Inc. v. Ctr. for Med. Progress,
890 F.3d 828 (9th Cir. 2018), as amended, 897 F.3d 1224 (9th Cir. 2018) .............................25
28
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DEFENDANT’S MOTION TO DISMISS AND MOTION TO STRIKE CASE NO. 3:21-CV-01418-EMC
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1 TABLE OF AUTHORITIES
(continued)
2 Page(s)
3 CASES (CONT.)
4 Reynolds v. Binance Holdings Ltd.,
481 F. Supp. 3d 997 (N.D. Cal. 2020) ........................................................................................5
5
Rojas-Lozano v. Google, Inc.,
6 159 F. Supp. 3d 1101 (N.D. Cal. 2016) ....................................................................................17
7 Simmons v. Allstate Ins.,
92 Cal. App. 4th 1068 (2001) ...................................................................................................23
8
Smith v. Daily Mail Publ’g Co.,
9 443 U.S. 97 (1979) ..............................................................................................................12, 13
10 Sonner v. Premier Nutrition Corp.,
971 F.3d 834 (9th Cir. 2020).....................................................................................................18
11
Stayart v. Google Inc.,
12 783 F. Supp. 2d 1055 (E.D. Wis. 2011), aff’d, 710 F.3d 719 (7th Cir. 2013) ..........................22
13 The Fla. Star v. B.J.F.,
491 U.S. 524 (1989) ..................................................................................................................13
14
United States v. Alvarez,
15 617 F.3d 1198 (9th Cir. 2010)..................................................................................................11
16 Wilbanks v. Wolk,
121 Cal. App. 4th 883 (2004) ...................................................................................................24
17
Zeran v. Am. Online, Inc.,
18 129 F.3d 327 (4th Cir. 1997).....................................................................................................19
19
20 STATUTES
21 47 U.S.C. § 230 .............................................................................................................19, 20, 21, 25
22 Cal. Civ. Code § 1798.115 ..............................................................................................................15
23 Cal. Civ. Code § 1798.120 ..............................................................................................................15
24 Cal. Civ. Code § 1798.150 ..............................................................................................................16
25 Cal. Civ. Code § 3344 .....................................................................................................................15
26 Cal. Civ. Proc. Code § 425.16........................................................................................................ 24
27
28
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DEFENDANT’S MOTION TO DISMISS AND MOTION TO STRIKE CASE NO. 3:21-CV-01418-EMC
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1 TABLE OF AUTHORITIES
(continued)
2 Page(s)
3
4 OTHER AUTHORITIES
5 Privacy Torts § 6:9 (2020) ..............................................................................................................10
6 Restatement (Second) of Torts § 652C cmt. d (1977) ..................................................................8, 9
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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DEFENDANT’S MOTION TO DISMISS AND MOTION TO STRIKE CASE NO. 3:21-CV-01418-EMC
Case 3:21-cv-01418-EMC Document 28 Filed 04/05/21 Page 10 of 35
1 I. NOTICE OF MOTION AND MOTION
2 TO THE PARTIES AND THEIR ATTORNEYS OF RECORD:
3 PLEASE TAKE NOTICE that on June 3, 2021 at 1:30 p.m. or as soon thereafter as this
4 Motion may be heard in this Court, Defendant Thomson Reuters Corporation (“Thomson
5 Reuters”), by and through its counsel of record, will and does move the Court for an Order
6 dismissing the Complaint with prejudice pursuant to Federal Rule of Civil Procedure (“Rule”)
7 12(b)(6), and for an Order striking the Complaint with prejudice pursuant to Cal. Civ. Proc. Code
8 § 425.16(b)(1). This Motion is based on this Notice, the Memorandum of Points and Authorities
9 filed herewith, the pleadings and papers on file in this action, any argument and evidence to be
10 presented at hearing, and any other matters that may properly come before the Court.
11 II. STATEMENT OF ISSUES
12 1. Whether Plaintiffs have failed to establish the “use” or “appropriation” of their
13 identities that is required to state a claim for violation of the common law right of publicity.
14 2. Whether Plaintiffs have failed to establish that their private economic and non-
15 economic interests in their names and likenesses outweigh the public interest in the dissemination
16 of information available in Thomson Reuters’ CLEAR database.
17 3. Whether Plaintiffs have failed to allege facts showing that Thomson Reuters
18 engaged in unlawful or unfair business practices in violation of the California Unfair Competition
19 Law (“UCL”), Cal. Bus. & Prof. Code § 17200, et seq.
20 4. Whether Plaintiffs’ claim for unjust enrichment should be dismissed because it is
21 not a valid claim under California law.
22 5. Whether Plaintiffs’ claims seeking equitable relief should be dismissed because
23 Plaintiffs have failed to allege facts showing that they lack an adequate remedy at law.
24 6. Whether the Communications Decency Act (“CDA”), 28 U.S.C. § 230, bars
25 Plaintiffs’ claims because they seek to hold Thomson Reuters, the provider of an interactive
26 computer service, liable as a publisher or speaker of third-party content.
27 7. Whether the Complaint should be stricken and attorneys’ fees and costs awarded
28 under California’s anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16, because Plaintiffs’ claims
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DEFENDANT’S MOTION TO DISMISS AND MOTION TO STRIKE CASE NO. 3:21-CV-01418-EMC
Case 3:21-cv-01418-EMC Document 28 Filed 04/05/21 Page 11 of 35
1 arise from Thomson Reuters’ exercise of free speech and Plaintiffs cannot show the claims are
2 legally sufficient and factually substantiated.
3 III. INTRODUCTION
4 Thomson Reuters is a leading provider of worldwide news and business information
5 services, delivering highly specialized information-enabled software and tools for legal, tax,
6 accounting, and compliance professionals. One of the products that Thomson Reuters offers to
7 authorized customers is a subscription-based, online platform referred to as “CLEAR.” CLEAR
8 helps streamline investigative research by collecting and aggregating information from sources
9 such as the internet, public records, and third-parties, and makes it easy for authorized customers
10 to locate and search that information in a reliable and accurate way.
11 Plaintiffs Cat Brooks and Rasheed Shabazz (“Plaintiffs”) allege that Thomson Reuters,
12 through its CLEAR product, offers access to information about them without compensating them
13 or obtaining their consent. They assert claims for violation of their common law right of publicity,
14 violation of the UCL, and unjust enrichment. Plaintiffs’ claims fail for multiple reasons, each of
15 which independently justifies dismissal.
16 First, Plaintiffs have not alleged facts establishing the essential elements of any of their
17 claims. Their common law right of publicity claim fails because the claim requires a showing that
18 Thomson Reuters used and appropriated Plaintiffs’ names or likenesses, but Plaintiffs have
19 instead alleged merely the display of their names, information, and photographs in search results
20 generated by CLEAR, which does not qualify as either use or appropriation under common law.
21 This claim also fails because Thomson Reuters’ speech is protected by the First Amendment to
22 the U.S. Constitution, and Plaintiffs’ private interests do not outweigh the public interest in the
23 dissemination of the information available through CLEAR.
24 Plaintiffs’ claims for violation of the UCL fail because Plaintiffs have not alleged facts
25 showing that Thomson Reuters’ conduct is “unlawful” or “unfair.” Nor can they, because the
26 California Consumer Protection Act (“CCPA”), Cal. Civ. Code § 1796.100, et seq., permits the
27 conduct at issue here—the alleged collection, disclosure, and sale of personal information—
28 subject to certain requirements, which Plaintiffs do not allege Thomson Reuters failed to meet.
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DEFENDANT’S MOTION TO DISMISS AND MOTION TO STRIKE CASE NO. 3:21-CV-01418-EMC
Case 3:21-cv-01418-EMC Document 28 Filed 04/05/21 Page 12 of 35
1 See Compl. ¶¶ 49, 57. The UCL claims also should be dismissed because any relief under the
2 UCL is inherently equitable in nature, but Plaintiffs have not alleged that they lack an adequate
3 remedy at law.
4 Plaintiffs’ unjust enrichment claim fails because that is a form of relief, not a claim, under
5 California law, and because Plaintiffs have not shown they lack an adequate remedy at law.
6 Second, even if Plaintiffs had pled all essential elements of their claims, the claims still
7 would fail because they seek to impose liability on Thomson Reuters for conduct that is protected
8 by Section 230 of the CDA. The CDA provides a safe harbor that immunizes providers of an
9 interactive computer service against claims that treat the provider as a publisher or speaker of
10 content provided by another. Thomson Reuters is entitled to that protection here: it provides an
11 interactive computer service, and Plaintiffs’ claims treat it as the publisher or speaker of content
12 supplied by third parties.
13 In addition, because the Complaint seeks to restrain constitutionally protected speech in a
14 public forum about a matter of public interest and Plaintiffs are unlikely to succeed on the merits,
15 the Court should strike the Complaint under California’s anti-SLAPP statute.
16 IV. BACKGROUND
17 A. Thomson Reuters and the CLEAR Research Platform
18 Thomson Reuters, based in Toronto, Canada, is “best known for its news agency (Reuters)
19 and its online legal-research service (Westlaw).” Compl. ¶¶ 1, 8.1 Thomson Reuters’ CLEAR
20 product is a research platform that serves as a “records resource” that brings key content on
21 individuals, assets, and businesses together into a single working environment to allow more
22 streamlined and efficient searches of that content.2 The content made available through the
23
1
24 For purposes of this Motion, Thomson Reuters will treat the allegations in the Complaint as true
but does not admit that they are accurate. While it is not relevant to this Motion, Westlaw and
25 CLEAR are products offered by Thomson Reuters’ subsidiary, West Publishing Corporation.
2
The Smarter Way to Get Your Investigative Facts Straight, Thomas Reuters,
26 https://www.thomsonreuters.com/content/dam/openweb/documents/pdf/legal/fact-sheet/clear-
brochure.pdf (last visited Apr. 5, 2021), cited at Compl. ¶ 20 and n.8. By repeatedly citing to the
27 Thomson Reuters website and quoting from many of its pages, the Complaint incorporates the
entire site by reference, and the Court may consider it in deciding this Motion. See In re Google
28
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1 CLEAR platform is not created by Thomson Reuters; rather, Thomson Reuters “collects,”
2 “purchases,” and “consolidates” the data “from public records, government sources, Internet
3 searches, and third-party data brokers.” Id. ¶¶ 14, 16.
4 CLEAR is used for a variety of purposes, including to prevent money laundering, to verify
5 and “know your vendor,” to facilitate commercial lending, and to prevent healthcare and
6 insurance fraud.3 CLEAR is also used to find absent parents and to protect victims of human
7 trafficking and sexual exploitation.4 CLEAR is available only to “authorized businesses and
8 government organizations for their legitimate internal business uses,” whose “use must comply
9 with applicable laws.”5
10 The Complaint focuses on two search tools made available through CLEAR: “Person
11 Search” and “Risk Inform.” See, e.g., id. ¶ 23. Person Search allows authorized, credentialed
12 subscribers6 to search the CLEAR database using “information such as an individual’s name,
13 address, contact information, social security number, date of birth, age range, or driver’s license
14 number.” Id. ¶ 24. “Risk Inform” enables such subscribers to customize their searches to find
15 public records that are relevant to their assessments of risks relating to businesses and
16 individuals.7 To do this, subscribers “establish [their] own risk level by assigning certain scores
17
18
Assistant Priv. Litig., 457 F. Supp. 3d 797, 813 (N.D. Cal. 2020) (doctrine of incorporation by
19 reference “permits a court to consider a document ‘if the Plaintiff refers extensively to the
document or the document forms the basis of the plaintiff’s claim’”) (quoting United States v.
20 Ritchie, 342 F.3d 903, 908 (9th Cir. 2003)).
3
See Locate, Identify, and Connect the Facts You Need, Thomas Reuters,
21 https://legal.thomsonreuters.com/en/products/clear-investigation-software (last visited Apr. 5,
2021) (use cases), cited at Compl. ¶ 11, n.2.
4
22 See Online Investigation Software CLEAR Case Studies, Thomas Reuters,
https://legal.thomsonreuters.com/en/products/clear-investigation-software/case-studies (last
23 visited Apr. 5, 2021).
5
See Public Records Privacy Statement, Thomas Reuters,
24 https://legal.thomsonreuters.com/en/legal-notices/privacy-records (last visited Apr. 5, 2021)
(“Public Records Products [like CLEAR] are not accessible by the general public. They are only
25 available to authorized, credentialed customers.”).
6
Id.
7
26 Electronic Risk Assessment CLEAR Risk Inform,
https://legal.thomsonreuters.com/en/products/clear-investigation-software/clear-risk-inform (last
27 visited Apr. 5, 2021), cited at Compl. ¶ 31 n.10 (with Risk Inform, “Thomson Reuters has
simplified and organized criminal records across all state and federal criminal jurisdictions,” and
28
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1 for various risk factors,” which allows subscribers to “quickly review risk indicators such as
2 arrests, bankruptcies, redundant SSNs, synthetic identity, and more.”8
3 B. Plaintiffs
4 Ms. Brooks is an actor and Mr. Shabazz is a journalist. Id. ¶¶ 41, 50. Both are self-
5 described “activist[s],” see id. ¶¶ 6, 7, and substantial information about them is readily available
6 online.9 Plaintiffs allege that Thomson Reuters “sold” access to information about them through
7 CLEAR, id., including their current and former names, their partially redacted Social Security
8 Numbers, and their addresses, phone numbers, businesses, licenses, employers, and associates, id.
9 ¶¶ 43, 53.
10 Plaintiffs have not alleged that CLEAR has been used in any illegitimate way with respect
11 to either of them. Rather, they allege that Thomson Reuters did not pay them “for the right to sell
12 [their] information,” id. ¶¶ 42, 51, and that they do not want information about them made
13 available through CLEAR. But Plaintiffs do not allege having taken any steps to expunge the
14 public records that CLEAR allegedly “aggregate[s].” Id. ¶¶ 14, 41-49, 50-57. And Plaintiffs admit
15 that Thomson Reuters made a link available on its website that would have allowed them to opt
16 out of the sale of their personal information. Plaintiffs saw and clicked on this link, but chose not
17 to complete the opt-out process because it required them to verify their identities by scanning
18 their driver’s licenses and uploading photos of themselves. Id. ¶¶ 49, 57. Plaintiffs allege that they
19 did not want to provide that information to Thomson Reuters even though their claims are based
20 on the allegation that Thomson Reuters has this (or substantially similar) information already, and
21
22 “CLEAR Risk Inform lets you automate and configure your risk analysis to fit the unique
requirements of your organization”).
8
23 See supra note 3, cited at Compl. ¶ 11, n.2.
9
Searching Google for “Cat Brooks Oakland” and “Rasheed Shabazz Oakland” reveals several
24 websites with photos and other personal information about Plaintiffs and their professional and
personal lives—including a Wikipedia page dedicated to Ms. Brooks, which indicates that she ran
25 for mayor of Oakland in 2018. See Cat Brooks, Wikipedia,
https://en.wikipedia.org/wiki/Cat_Brooks (last visited Apr. 5, 2021). The court may “take judicial
26 notice of the fact that the internet, Wikipedia, and journal articles are available to the public,”
even if “it may not take judicial notice of the truth of the matters asserted therein.” Reynolds v.
27 Binance Holdings Ltd., 481 F. Supp. 3d 997, 1002 (N.D. Cal. 2020) (quoting Bruce v. Chaiken,
No. 15-cv-00960-TLN-KJN, 2019 WL 645044, at *1 (E.D. Cal. Feb. 15, 2019)).
28
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1 Thomson Reuters’ privacy statement makes clear that “[p]ersonal information that we may collect
2 from individuals through their use of our products and services is never added to our Public
3 Records Products.”10
4 Plaintiffs each allege that a Risk Inform report “penalizes” them for changing their names,
5 but they do not allege who ran the reports, how they were penalized, or that anything at all
6 happened to them as a result. Id. ¶¶ 44, 55. Mr. Shabazz alleges that some of the information
7 made available about him is inaccurate, id. ¶ 54, but he does not allege that any inaccuracy
8 affected or prejudiced him in any way, nor that he used processes available on Thomson Reuters’
9 website to correct inaccurate information.11 Plaintiffs allege that they “lost money” because “[b]ut
10 for its violation of law, Thomson Reuters would have either paid Ms. Brooks and Mr. Shabazz for
11 consent to sell their information or ceased the sale of their information.” Id. ¶ 117. They also
12 allege that they lost privacy and the “right to control the dissemination of their information.” Id.
13 ¶¶ 87 (privacy), 101 (control).
14 V. ARGUMENT
15 Plaintiffs have not pled facts establishing essential elements of any of their claims, and
16 even if they had done so, their claims would be barred by the CDA. Each of these fatal flaws
17 independently justifies dismissal. In addition, the Complaint should be stricken under California’s
18 anti-SLAPP statute.
19 A. Legal Standard Under Federal Rule of Civil Procedure 12(b)(6)
20 A Rule 12(b)(6) motion tests the legal adequacy of a complaint. “Dismissal can be based
21 on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a
22 cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988),
23 as amended (May 11, 1990). A complaint must contain enough factual matter to “state a claim to
24 relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
25
26
10
See supra note 5 (privacy policy).
27 11
Id. (“If you believe that information we have associated with you in our Public Records
Products is incorrect, you are encouraged to submit a correction request via the Public Records
28 Data Subject Portal.”).
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1 “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a
2 cause of action will not do.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 555 (2007)).
3 B. Plaintiffs Fail to Plead Facts Establishing Essential Elements of Their Claims
4 1. Plaintiffs have not stated a common law publicity claim
5 a. Plaintiffs have not alleged the “use” or “appropriation” of their
identities necessary to establish a common law publicity claim
6
The common law right of publicity does not prohibit the mere publication of facts about a
7
person. Rather, it protects the “commercially exploitable opportunities” that result from “the
8
reaction of the public to [a] name and likeness.” Lugosi v. Universal Pictures, 25 Cal. 3d 813,
9
823 (1979) (emphasis added). To state a claim for violation of this right, a plaintiff must establish
10
“(1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or
11
likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and
12
(4) resulting injury.” Eastwood v. Super. Ct. for Cty. of L.A., 149 Cal. App. 3d 409, 417 (1983).
13
Failure to establish any of these elements is fatal to the claim. Here, Plaintiffs fail to establish at
14
least the first two.
15
The display of a plaintiff’s name or likeness in third-party content, without more, does not
16
qualify as “use” of a person’s identity for purposes of a right of publicity claim, even if the
17
defendant profits from it. For example, in Perfect 10, Inc. v. Google, Inc., the court held that
18
Google did not “use” models’ identities when it displayed thumbnails of their photos from third-
19
party websites in response to search queries. No. CV 04-9484 AHM (SHx), 2010 WL 9479060, at
20
*13 (C.D. Cal. July 30, 2010) (dismissing right of publicity claims), aff’d, 653 F.3d 976 (9th Cir.
21
2011). And in Cross v. Facebook, Inc., the court held that Facebook did not “use” the plaintiff’s
22
identity by placing ads near a user-created Facebook page that included the name and likeness of
23
the plaintiff. 14 Cal. App. 5th 190, 209 (2017) (affirming dismissal of right of publicity claims).
24
The result should be the same here. The gravamen of Plaintiffs’ right of publicity claim is
25
that their names and likenesses, as they appear in various third-party sources, are available on the
26
CLEAR platform (along with the names and likenesses of millions of other people). Compl. ¶¶ 2,
27
82. As in Perfect 10, Thomson Reuters’ Person Search tool merely locates and provides access to
28
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1 information from other third-party sources. Id. ¶ 83. And as in Cross, the Risk Inform tool merely
2 constitutes Thomson Reuters’ placement of its own content adjacent to that third-party content.
3 Id. These facts are insufficient to establish “use” for purposes of a right of publicity claim.12
4 “Appropriation” requires that a defendant take “advantage of [a plaintiff’s] reputation,
5 prestige, or other value associated with [him or her], for purposes of publicity.” Restatement
6 (Second) of Torts § 652C cmt. d (1977) (emphasis added). This would involve, for example,
7 exploiting a person’s name and likeness for promotional purposes or to imply endorsement. See,
8 e.g., Perkins v. LinkedIn Corp., 53 F. Supp. 3d 1190, 1216 (N.D. Cal. 2014) (finding
9 appropriation where “reminder emails” sent to an individual’s personal contacts were designed to
10 imply endorsement); Fraley v. Facebook, Inc., 830 F. Supp. 2d 785, 791 (N.D. Cal. 2011)
11 (finding appropriation where “sponsored stories” used a person’s name and likeness to imply
12 endorsement). Alternatively, appropriation could involve exploiting someone’s prestige or
13 reputation, such as by using a celebrity’s status as a sex symbol to sell adult video subscriptions.
14 Michaels v. Internet Entm’t Grp., Inc., 5 F. Supp. 2d 823, 837 (C.D. Cal. 1998) (finding claim to
15 be well-pled where an adult entertainment company ran radio advertisements that named Pamela
16 Anderson and Bret Michaels).
17 Appropriation therefore requires more than an allegation that a defendant sold information
18 about a person, even if that data includes a plaintiff’s “names, image[], and likeness[],” as
19 Plaintiffs allege here. For example, in In re Facebook, Inc., Consumer Privacy User Profile
20 Litigation, the plaintiffs alleged that Facebook violated their common law right of publicity
21 because it profited from disclosing their personal information to app developers. 402 F. Supp. 3d
22 767, 776, 780 (N.D. Cal. 2019). The court dismissed this claim because “[t]he allegations about
23
24
12
If including Plaintiffs’ names and likenesses within CLEAR were “use,” it would be incidental
25 use, which “does not give rise to liability.” Perkins v. LinkedIn Corp., 53 F. Supp. 3d 1222, 1254
(N.D. Cal. 2014) (quoting Yeager v. Cingular Wireless LLC, 673 F. Supp. 2d 1089, 1100 (E.D.
26 Cal. 2009)); see also Aligo v. Time-Life Books, Inc., No. C 94-20707 JW, 1994 WL 715605, at *3
(N.D. Cal. Dec. 19, 1994) (granting motion to dismiss where infomercial displayed photo of a
27 police officer responding to a Vietnam War protest because the photo was featured on “one of
dozens of Rolling Stone covers used in the program and [was] insignificant to the commercial
28 purpose of selling the music anthology”).
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1 how Facebook shared the plaintiffs’ information with third parties is categorically different from
2 the type of conduct made unlawful by this tort, such as using a plaintiff’s face or name to promote
3 a product or service.” Id. at 803. The court dismissed the claim with prejudice because the factual
4 scenario was so “categorically different” from a misappropriation scenario that the court “[could
5 not] conceive of a way that the plaintiffs could successfully allege this claim.” Id. (citing Comedy
6 III Prods. Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387, 399 (2001), Abdul-Jabbar v. Gen. Motors
7 Corp., 85 F.3d 407, 415 (9th Cir. 1996), and Perkins, 53 F. Supp. 3d at 1217).
8 Similarly, here, Plaintiffs’ common law right of publicity claim should be dismissed with
9 prejudice because the scenario described by Plaintiffs is “categorically different” from one where
10 a defendant uses a plaintiff’s name and likeness to take “advantage of [the plaintiff’s] reputation,
11 prestige, or other value associated with [him or her], for purposes of publicity.” Restatement
12 (Second) of Torts § 652C cmt. d (1977) (emphasis added). Unlike the defendants in Perkins,
13 Fraley, and Michaels, Thomson Reuters has neither suggested that Plaintiffs endorse CLEAR nor
14 plausibly exploited Plaintiffs’ reputation or prestige in any way. Simply presenting factual
15 information about Plaintiffs to subscribers is not appropriation within the meaning of the common
16 law right of publicity.
17 Finally, to the extent that Plaintiffs’ common law right of publicity claim is based on the
18 distribution of photographs, it must also be dismissed as “preempted by section 301 of the
19 Copyright Act.” See Maloney v. T3Media, Inc., 853 F.3d 1004, 1011 (9th Cir. 2017); Fleet v.
20 CBS, Inc., 50 Cal. App. 4th 1911, 1918-19 (1996).
21 b. Plaintiffs’ right of publicity claim is barred by the First Amendment
22 Even if Plaintiffs had established all elements of a right of publicity claim, the claim
23 would still fail because Thomson Reuters’ speech about Plaintiffs is protected by the First
24 Amendment. “The common law right [of publicity] does not provide relief for every publication
25 of a person’s name or likeness.” Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400, 409
26 (2001). Rather, “[t]he First Amendment requires that the right to be protected from unauthorized
27 publicity be balanced against the public interest in the dissemination of news and information
28 consistent with the democratic processes under the constitutional guarant[ees] of freedom of
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1 speech and of the press.” Id. at 409-10 (internal quotation marks and citations omitted). To do
2 this, “a court must first consider the nature of the precise information conveyed and the context of
3 the communication to determine the public interest in the expression. The public interest must
4 then be weighed against the plaintiffs’ economic interests in cases of this sort and the plaintiffs’
5 noneconomic interests if the publicity right relied on is rooted in privacy.” Id. at 410.
6 Here, the public interest in the dissemination of news and information about Plaintiffs, and
7 the public interest in the freedom to express an opinion, outstrips Plaintiffs’ alleged economic and
8 noneconomic interests.
9 (i) There is a strong public interest in the information made
available through CLEAR
10
The dissemination of news and information about current and historical events is
11
quintessential First Amendment-protected speech. Carlisle v. Fawcett Publ’ns, Inc., 201 Cal.
12
App. 2d 733, 746 (1962). Recognizing the strong public interest in protecting this speech, a news-
13
reporting privilege applies where, as here, a plaintiff seeks to impose restraints on the publication
14
of truthful facts about individuals who have placed themselves in the public eye. Id. at 746-47
15
(“Certainly, the accomplishments . . . of those who have achieved a marked reputation or
16
notoriety by appearing before the public such as actors and actresses, professional athletes, [or]
17
public officers . . . may legitimately be mentioned and discussed in print or on radio or
18
television.”). This privilege extends both to the “current” facts alleged in the Complaint, such as
19
Plaintiffs’ current names, addresses, and associates, id. at 745, and to “historical” facts, such as
20
Plaintiffs’ previous names and addresses, Gionfriddo, 94 Cal. App. 4th at 411 (“[T]he public
21
interest is not limited to current events; the public is also entitled to be informed and entertained
22
about our history.”); see also Cox Broad. Corp. v. Cohn, 420 U.S. 469, 495 (1975) (“[A] public
23
benefit is performed by the reporting of the true contents of [public] records by the media.”).
24
Indeed, this privilege extends not only to news about public figures, such as Plaintiffs—
25
one of whom is an actor, the other a journalist, and both of whom are activists, see Compl. ¶¶ 41,
26
50—but also to news about private individuals. See Eastwood, 149 Cal. App. 3d at 421; see also
27
Privacy Torts § 6:9 (2020) (“[T]he newsworthiness-public interest privilege . . . has been freely
28
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1 defined to extend to an almost limitless variety of matters about private individuals which are of
2 interest to the viewing, reading or listening public.”) (collecting cases). When evaluating whether
3 the First Amendment bars a right of publicity claim, courts consider first and foremost the
4 “purpose” of the alleged use of the plaintiff’s name or likeness. New Kids On The Block v. News
5 Am. Publ’g, Inc., 745 F. Supp. 1540, 1546 (C.D. Cal. 1990), aff’d, 971 F.2d 302 (9th Cir. 1992).
6 “If the purpose is ‘informative or cultural’ the use is immune; ‘if it serves no such function but
7 merely exploits the individual portrayed, immunity will not be granted.’” Id. (quoting Peter L.
8 Felcher & Edward L. Rubin, Privacy, Publicity and the Portrayal of Real People by the Media,
9 88 Yale L.J. 1577, 1596 (1979)).
10 Here, the Complaint establishes that the purpose for Thomson Reuters’ CLEAR service is
11 to inform. See, e.g., Compl. ¶¶ 1, 2, 11, 24 (repeatedly referencing “data points” and various
12 forms of factual “information,” and incorporating documents that demonstrate that CLEAR is
13 used to prevent money laundering, to verify and “know your vendor,” to facilitate commercial
14 lending, to prevent healthcare and insurance fraud,13 to protect victims of human trafficking and
15 sexual exploitation, and to find absent parents14). There certainly is no plausible allegation that,
16 by providing a tool to search and analyze third-party information about Plaintiffs, Thomson
17 Reuters is “exploit[ing]” either Plaintiff to garner attention for itself or its services, suggest an
18 endorsement, or otherwise. See also Dreamstime.com, LLC v. Google, LLC, No. C 18-01910
19 WHA, 2019 WL 2372280, at *2 (N.D. Cal. June 5, 2019) (“[T]he First Amendment protects as
20 speech the results produced by an Internet search engine.”) (citations omitted).15
21
22
23 13
See supra note 3 (use cases), cited at Compl. ¶ 11, n.2.
14
See supra note 4.
24 15
The First Amendment also protects speech where innocent mistakes are made as to the facts.
Compare, e.g., United States v. Alvarez, 617 F.3d 1198, 1206-07 (9th Cir. 2010) (“[T]he [U.S.
25 Supreme] Court has consistently held that when a speaker publishes a false statement of fact
about a matter of public concern, such a statement can be punished only upon some showing of
26 malice (as opposed to mere negligence), because the malice requirement avoids the potential for
punishing speakers who simply make innocent errors.”) (footnote omitted), with Compl. ¶ 54
27 (alleging that some of the information made available about him is inaccurate without alleging
any malice or negligence by Thomson Reuters).
28
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1 The First Amendment likewise protects opinions. Partington v. Bugliosi, 56 F.3d 1147,
2 1152 (9th Cir. 1995). Thus, to the extent that the Plaintiffs’ Risk Inform scores “do not imply the
3 assertion of an objective fact” and “are not capable of being proved true or false,” id. at 1153,
4 they are non-actionable opinions. See, e.g., Jefferson Cty. Sch. Dist. No. R-1 v. Moody’s
5 Investor’s Servs., Inc., 175 F.3d 848, 853 (10th Cir. 1999) (holding that statements by a credit
6 rating service about the creditworthiness of bonds were protected by the First Amendment);
7 Browne v. Avvo, Inc., 525 F. Supp. 2d 1249, 1252 (W.D. Wash. 2007) (Avvo’s ratings and
8 classifications of attorneys were protected speech); see also Castle Rock Remodeling, LLC v.
9 Better Bus. Bureau of Greater St. Louis, Inc., 354 S.W.3d 234, 242-43 (Mo. Ct. App. 2011)
10 (noting that “[a]lthough one may disagree with [the Better Business Bureau’s] evaluation of the
11 underlying objective facts [that inform its rating of a business], the rating itself cannot be proved
12 true or false . . . [and thus], the rating is protected as opinion under the First Amendment”).
13 (ii) Plaintiffs fail to allege a substantial competing interest
sufficient to overcome the public interest in access to
14 information available in CLEAR
15 As a general matter, “state action to punish the publication of truthful information seldom
16 can satisfy constitutional standards.” Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 102 (1979).
17 Thus, “[P]laintiffs can only prevail if they demonstrate a substantial competing interest.”
18 Gionfriddo, 94 Cal. App. 4th at 414. They have not. First, Plaintiffs fail to allege significant
19 economic interests in their names and likenesses. They claim that Thomson Reuters did not pay
20 them “for the right to sell [their] information,” Compl. ¶¶ 42 (Brooks), 51 (Shabazz), but have not
21 alleged facts to plausibly suggest a significant value associated with any missing payment. To the
22 contrary, a single Person Search report on CLEAR is sold for just $5. Id. ¶ 62. Nor do Plaintiffs
23 allege that Thomson Reuters’ inclusion of their names and likenesses in CLEAR diminishes their
24 ability to capitalize on their own publicity or otherwise profit from their own names and
25 likenesses through endorsements or otherwise. See Gionfriddo, 94 Cal. App. 4th at 415
26 (“Plaintiffs never suggest how [the defendant’s] actions impair their economic interests.”).
27 Second, Plaintiffs claim non-economic privacy interests, but admit that information
28 available on CLEAR is, at least in large part, also available in public records. Compl. ¶¶ 2, 14, 16.
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1 As the Supreme Court has recognized, “interests in privacy fade when the information involved
2 already appears on the public record.” Cox, 420 U.S. at 494-95. As an actor and a journalist
3 engaged in activism, Compl. ¶¶ 41, 50, Plaintiffs’ privacy interests are diminished further still.
4 See Dora v. Frontline Video, Inc., 15 Cal. App. 4th 536, 543-44 (1993) (dismissing publicity
5 claims despite the fact that Plaintiff “spent a good deal of energy avoiding the limelight” because
6 “a person may by his or her own activities or by the force of circumstances become a public
7 personage and thereby relinquish a part of their right of privacy”).
8 Indeed, had Plaintiffs brought a claim for invasion of privacy rather than a right of
9 publicity claim, it would plainly be barred under Cox and its progeny. As described in Gates v.
10 Discovery Communications, Inc., the Supreme Court has repeatedly confronted the tension
11 between the media’s First Amendment rights to report on current events and information in the
12 public record and the privacy interests of the individuals subject to the reporting. 34 Cal. 4th 679,
13 696 (2004). In those cases, the Supreme Court has considered the privacy interests of minors
14 facing murder convictions, sex crime victims, and individuals who were illegally phone-tapped—
15 and in no case has the Supreme Court determined that individual privacy interests surpass the free
16 speech rights of the press to disseminate information to the public. See Cox, 420 U.S. 469 (17-
17 year-old sex crime victim); Okla. Publ’g Co. v. Dist. Ct. In & For Okla. Cnty., 430 U.S. 308
18 (1977) (11-year-old murder defendant); Smith v. Daily Mail Publ’g Co., 443 U.S. 97 (1979) (14-
19 year-old assailant in classmate shooting); The Fla. Star v. B.J.F., 491 U.S. 524 (1989) (sex crime
20 victim); Bartnicki v. Vopper, 532 U.S. 514 (2001) (victim of illegal interception of cell phone
21 conversation). Plaintiffs here, despite alleging potentially well-founded fears surrounding how
22 their personal information might be abused in the hands of bad actors, simply do not possess
23 legally-established privacy interests sufficient to overcome the countervailing interests, enshrined
24 in the First Amendment, in the dissemination of truthful information.
25 Finally, the alternative methods of relief available to Plaintiffs further diminish their
26 privacy interests. Plaintiffs could take steps to stop the “sale” of their own information through
27 CLEAR by clicking a link on Thomson Reuters’ website, see Compl. ¶¶ 49, 57; they could move
28 to seal the court records relating to their name changes; or they could seek to expunge public
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1 records that appear in CLEAR. Although some of these actions would prevent anyone from
2 accessing Plaintiffs’ information—not just CLEAR’s subscribers—Plaintiffs have undertaken
3 none of them.
4 (iii) The injunction that Plaintiffs seek would be an impermissible
prior restraint
5
Plaintiffs seek a permanent injunction banning Thomson Reuters from “selling” their
6
personal data without consent by making it available through CLEAR, Compl. at 21 (Prayer for
7
Relief), but permanent injunctions that prohibit speech are “classic examples” of prior restraints,
8
Alexander v. United States, 509 U.S. 544, 550 (1993). Indeed, “[e]ven when confidential
9
information has allegedly been obtained unlawfully by the publisher, courts have invalidated prior
10
restraints.” Mortg. Specialists, Inc. v. Implode-Explode Heavy Indus., Inc., 999 A.2d 184, 196
11
(N.H. 2010). The constitutional protection against prior restraints is even more clearly present
12
where, as here, the information is not “confidential” and was obtained lawfully.
13
* * *
14
Because Plaintiffs have neither satisfied the elements of a right of publicity claim nor
15
alleged private interests that outweigh the strong public interest in Thomson Reuters engaging in
16
constitutionally protected speech, their right of publicity claim must be dismissed.
17
2. Plaintiffs have not stated a claim for violation of the UCL
18
The UCL “prohibits, and provides civil remedies for, unfair competition, which it defines
19
as ‘any unlawful, unfair or fraudulent business act or practice.’” Kwikset Corp. v. Super. Ct. of
20
Orange Cnty., 51 Cal. 4th 310, 320 (2011) (quoting Cal. Bus. & Prof. Code § 17200). Here,
21
Plaintiffs allege that Thomson Reuters engaged in unlawful and unfair (but not fraudulent)
22
business practices. Compl. ¶¶ 90-104 (monetary relief), 111-18 (injunctive relief). Yet Plaintiffs
23
have not alleged facts establishing the unlawful or unfair act or practice necessary to state a claim,
24
nor have they shown that they lack an adequate remedy at law as required to seek equitable relief.
25
a. Plaintiffs have not established an “unlawful” act or practice
26
Plaintiffs allege, as predicate “unlawful” acts, violation of (1) their common law right of
27
publicity, and (2) the statutory right of publicity under California Civil Code Section 3344(a).
28
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1 Compl. ¶¶ 93, 94-110. But Plaintiffs have not established a violation of the common law right of
2 publicity for the reasons discussed above in section V.B.1.a. This failure also dooms their effort
3 to establish a Section 3344(a) claim, because such a claim requires a plaintiff to prove “all the
4 elements of the common law cause of action” in addition to “a knowing use by the defendant as
5 well as a direct connection between the alleged use and the commercial purpose.” Downing v.
6 Abercrombie & Fitch, 265 F.3d 994, 1001 (9th Cir. 2001) (citing Eastwood, 149 Cal. App. 3d at
7 417). The Section 3344(a) claim also fails because the “use of a name, voice, signature,
8 photograph, or likeness in connection with any news, public affairs, or sports broadcast or
9 account, or any political campaign” is expressly permitted under the statute. Cal. Civ. Code
10 § 3344(d). As explained in section V.B.1.b, that permissible use applies here: CLEAR permits
11 credentialed subscribers access to factual information about Plaintiffs—both of whom are in the
12 public eye due to their roles as activists, actors, and journalists. See Compl. ¶¶ 41, 50. The alleged
13 conduct thus falls within the “public affairs” exception. See, e.g., Dora, 15 Cal. App. 4th at 545.
14 b. Plaintiffs have not established an “unfair” practice
15 Plaintiffs also base their UCL claims on the allegation that “selling Californians’ personal
16 information without consent” constitutes an “unfair” business practice. Compl. ¶ 92. Thomson
17 Reuters’ conduct is not “unfair” because it is expressly permitted by statute and because it does
18 not meet any of the tests for “unfair” conduct used by California courts.
19 (i) Thomson Reuters’ conduct is not unfair because it is expressly
permitted by the CCPA
20
Plaintiffs base their UCL claim on the alleged sale of personal information without the
21
subject’s advance consent. See Compl. ¶¶ 92, 98, 101, 113, 117. But “[s]pecific legislation may
22
limit the judiciary’s power to declare [business] conduct unfair. If the Legislature has permitted
23
certain conduct . . . courts may not override that determination.” Cel-Tech Commc’ns, Inc. v. L.A.
24
Cellular Tel. Co., 20 Cal. 4th 163, 182 (1999). Here, the legislature has permitted the sale of
25
personal information if there is a mechanism to opt out of such sale. Cal. Civ. Code
26
§§ 1798.115(c), 1798.120 (imposing notice but not consent requirements on the collection,
27
disclosure, and sale of personal information). And Plaintiffs concede that Thomson Reuters made
28
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1 the required opt-out mechanism available to them. See, e.g., Compl. ¶¶ 46-47, 57 (describing “do
2 not sell my information” link). Accordingly, Plaintiffs have not alleged any unfair conduct.
3 This case is similar to McCann v. Lucky Money, Inc., 129 Cal. App. 4th 1382 (2005).
4 There, the plaintiffs pursued UCL claims for conduct that was regulated by California’s Money
5 Transmission Law, Cal. Fin. Code § 1800, et seq., which lacked a private right of action. See id.
6 at 1395. But the court dismissed the claim, holding that “[t]he fact that California’s
7 comprehensive regulation of Defendants’ practices does not label the challenged practices unfair
8 is a . . . defense to any such claim.” Id. The result here should be the same: because the CCPA
9 regulates the very conduct on which Plaintiffs base their claim and does not label it unfair, and
10 because the CCPA lacks a private right of action for violations of these requirements,16 Plaintiffs
11 cannot base their UCL claim on the alleged sale of their personal information without consent.
12 (ii) Thomson Reuters’ conduct is not “unfair” under any of the
tests employed by California courts
13
Even if the CCPA did not permit the very conduct on which Plaintiffs base their UCL
14
claim, the claim also fails under the tests that California courts use to make that determination.
15
See In re Anthem, Inc. Data Breach Litig., 162 F. Supp. 3d 953, 989 (N.D. Cal. 2016) (describing
16
“balancing,” “tethering,” and “FTC” tests).
17
The “balancing test” requires a court to weigh the utility of the defendant’s conduct
18
against the gravity of the harm to the alleged victim, and the plaintiff must also allege “immoral,
19
unethical, oppressive, unscrupulous, or substantially injurious” conduct or demonstrate that the
20
defendant’s conduct violated an “established public policy.” Id. at 990. Plaintiffs fail to show any
21
of these factors here. They allege that their information is made more accessible through CLEAR,
22
but the only harms they identify are failing to pay them and making information that is already
23
available to third parties more readily available. Plaintiffs further allege that they were
24
25
16
See Cal. Civ. Code §§ 1798.150(c) (“Nothing in this title shall be interpreted to serve as the
26 basis for a private right of action under any other law.”), 1798.150(a) (private right of action
limited to certain data breaches); see also, e.g., Order Granting Motion to Dismiss and Denying
27 Motion to Strike Class Allegations, Gardiner v. Walmart Inc., No. 20-cv-04618-JSW (N.D. Cal.
Mar. 5, 2021), ECF No. 43 (dismissing UCL claim where Plaintiff conceded that CCPA claim
28 “cannot serve as [a] predicate for . . . UCL claim”).
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1 “penalized” by a Risk Inform report, but this conclusory allegation is too vague to establish harm.
2 And none of these alleged harms outweigh the utility of Thomson Reuters’ conduct, which is
3 substantial. See supra § V.B.1.b(i)-(ii); see also, e.g., Rojas-Lozano v. Google, Inc., 159 F. Supp.
4 3d 1101, 1106, 1118 (N.D. Cal. 2016) (holding that plaintiff failed to allege immoral and
5 oppressive conduct where plaintiff alleged that Google used “CAPTCHA” human-user
6 confirmations to “‘crowd sourc[e]’ the transcription of words that a computer cannot decipher . . .
7 [because] the harm—if any—of typing a single word without knowledge of how Google profits
8 from such conduct does not outweigh the benefit,” which included the benefit to users of free
9 Google services). Finally, Plaintiffs do not allege that Thomson Reuters’ conduct—providing
10 tools to facilitate searching third-party content—is immoral, unethical, oppressive, unscrupulous,
11 or substantially injurious conduct or that it violated an established public policy. Indeed, they
12 likely cannot do so since that tools provide an opt-out mechanism consistent with the CCPA.
13 The “tethering test” requires that the alleged unfairness be tethered to some legislatively
14 declared policy or proof of some actual or threatened impact on competition. Plaintiffs have
15 identified no public policy requiring businesses like Thomson Reuters to obtain consent before
16 making third-party content more readily accessible, nor could they, because the CCPA confirms
17 that the legislature preferred an “opt out” approach over an “advance consent” one. Finally,
18 Plaintiffs have not pled “some actual or threatened impact on competition,” because that requires
19 an impact not on them but on Thomson Reuters’ competitors. See Lozano v. AT & T Wireless
20 Servs., Inc., 504 F.3d 718, 735 (9th Cir. 2007) (recognizing that the “threatened impact on
21 competition” showing is “limited to actions based on unfairness to competitors”).
22 Under the “FTC test,” “(1) the consumer injury must be substantial; (2) the injury must
23 not be outweighed by any countervailing benefits to consumers or competition; and (3) it must be
24 an injury that consumers themselves could not reasonably have avoided.” In re Anthem, Inc., 162
25 F. Supp. 3d at 989. As explained above, any alleged injury is minimal, it is outweighed by
26 countervailing First Amendment concerns and the public’s interest in the benefits of CLEAR
27 (such as protecting victims of human trafficking and sexual exploitation and finding absent
28
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1 parents), and Plaintiffs could reasonably have avoided it by using Thomson Reuters’ “do not sell”
2 link or taking other steps to seal or expunge records.
3 c. Plaintiffs’ UCL claim fails because they have not pled an inadequate
remedy at law
4
A UCL claim is “equitable in nature.” See Huynh v. Quora, Inc., — F. Supp. 3d — , No.
5
5:18-cv-07597-BLF, 2020 WL 7495097, at *19 (N.D. Cal. Dec. 21, 2020) (citation omitted). A
6
court cannot grant equitable remedies unless “a plain, adequate and complete remedy at law [is]
7
wanting.” Sonner v. Premier Nutrition Corp., 971 F.3d 834, 840 (9th Cir. 2020) (quoting Guar.
8
Tr. Co. of N.Y. v. York, 326 U.S. 99, 105 (1945)); see also Julian v. TTE Tech., Inc., No. 20-cv-
9
02857-EMC, 2020 WL 6743912, at *4 (N.D. Cal. Nov. 17, 2020) (Chen, J.) (“[A] plaintiff ‘must
10
establish that she lacks an adequate remedy at law before securing equitable restitution for past
11
harm under the UCL.’”) (quoting Sonner, 971 F.3d. at 844). Plaintiffs here have not alleged that
12
they lack an adequate remedy at law. On the contrary: they seek compensatory damages. See
13
Compl. ¶¶ 89; id. at 21 (Prayer for Relief); see also id. ¶¶ 39, 86, 88, 99 (alleging that Thomson
14
Reuters failed to compensate Plaintiffs for their personal information).
15
Since Plaintiffs also seek monetary damages for violation of their common law right of
16
publicity, see id. ¶ 89, and therefore have an adequate remedy at law with respect to the violation
17
of that right, restitution under the UCL is inappropriate and the UCL claims should be dismissed.
18
See, e.g., Sonner, 971 F.3d at 840; Loo v. Toyota Motor Sales, USA, Inc., No. 19-cv-00750-VAP
19
(ADSx), 2019 WL 7753448, at *13 (C.D. Cal. Dec. 20, 2019).
20
3. Plaintiffs have not stated a claim for unjust enrichment
21
Plaintiffs assert a claim for unjust enrichment, Compl. ¶¶ 105-10, but it is well-established
22
that unjust enrichment “is not a cause of action” but rather a request for relief in the form of
23
restitution. See, e.g., Low v. LinkedIn Corp., 900 F. Supp. 2d 1010, 1031 (N.D. Cal. 2012)
24
(collecting cases). Further, unjust enrichment is an equitable remedy, see Dunkin v. Boskey, 82
25
Cal. App. 4th 171, 195 (2000), but Plaintiffs have not pled facts showing that legal remedies are
26
inadequate, see supra section V.B.2.c. Accordingly, Plaintiffs’ claim for unjust enrichment should
27
be dismissed with prejudice because amendment would be futile.
28
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1 C. Plaintiffs’ Claims Are Barred by the Communications Decency Act
2 Even if Plaintiffs had pled facts establishing the essential elements of their claims (they
3 did not), their claims would be barred by the CDA. The CDA was enacted to promote the
4 continued development of interactive computer services and other interactive media, which
5 “represent an extraordinary advance in the availability of educational and informational resources
6 to our citizens.” 47 U.S.C. § 230(a)(1). To further this purpose, Section 230 of the CDA ensures
7 that “[n]o provider or user of an interactive computer service shall be treated as the publisher or
8 speaker of any information provided by another information content provider” and provides that
9 “[n]o cause of action may be brought and no liability may be imposed under any State or local
10 law that is inconsistent with this section.” 47 U.S.C. § 230(c)(1), (e)(3). Courts apply CDA
11 immunity broadly to protect covered entities “not merely from ultimate liability, but from having
12 to fight costly and protracted legal battles.” Fair Hous. Council of San Fernando Valley v.
13 Roommates.com, LLC, 521 F.3d 1157, 1175 (9th Cir. 2008). Courts in this circuit take an
14 “expansive” view of the protections and immunity that Section 230 confers on companies such as
15 Thomson Reuters, Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003),
16 because early and robust protection is critical to avoid the “obvious chilling effect” on speech that
17 intermediary liability would impose on Internet platforms, Zeran v. Am. Online, Inc., 129 F.3d
18 327, 331 (4th Cir. 1997).
19 Section 230 of the CDA immunizes (1) the provider of an interactive computer service,
20 (2) against claims that treat the provider as a “publisher” or “speaker,” where (3) the “information
21 [was] provided by another ‘information content provider.’” 47 U.S.C. § 230 (c)(1). These
22 elements are satisfied here.
23 1. Thomson Reuters provides an “interactive computer service”
24 An “interactive computer service,” a term that is generally interpreted “expansively,”
25 Dyroff v. Ultimate Software Group, Inc., 934 F.3d 1093, 1097 (9th Cir. 2019), cert. denied, 140
26 S. Ct. 2761 (2020), is (1) “any information service, system, or access software provider” that
27 (2) “provides or enables computer access by multiple users to a computer server.” 47 U.S.C.
28 § 230(f)(2). An “access software provider,” in turn, is “a provider of software . . . or enabling
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1 tools that . . . filter, screen, allow, or disallow content; . . . pick, choose, analyze, or digest
2 content; or . . . transmit, receive, display, forward, cache, search, subset, organize, reorganize, or
3 translate content.” Id. § 230(f)(4).
4 Thomson Reuters provides software such as CLEAR and enabling tools such as Risk
5 Inform and Person Search that “give[] users the ability to search and analyze massive amounts of
6 data” and “display,” “search,” and “organize” content. See Compl. ¶¶ 17 (CLEAR), 24, 33
7 (Person Search and Risk Inform). Thomson Reuters is therefore an “access software provider.”
8 See 47 U.S.C. § 230(f)(4); see also Callahan v. Ancestry.com Inc., No. 20-cv-08437-LB, 2021
9 WL 783524, at *6 (N.D. Cal. Mar. 1, 2021) (holding that defendant that made available yearbook
10 records from third parties was interactive computer service provider). Thomson Reuters also
11 “provides or enables computer access by multiple users to a computer server,” 47 U.S.C.
12 § 230(f)(2), through its CLEAR platform, which allegedly “receives approximately 100,000
13 search queries each day” from a wide variety of “individuals, private corporations, law
14 enforcement, and other government agencies.” Compl. ¶¶ 21, 58. Thomson Reuters therefore
15 qualifies as an “interactive computer service” provider, and the first prong of the Section 230
16 analysis is satisfied. See In re: Zoom Video Commc’ns Inc. Priv. Litig., No. 20-CV-02155-LHK,
17 2021 WL 930623, at *7 (N.D. Cal. Mar. 11, 2021) (Zoom video service provider was interactive
18 computer service); Caraccioli v. Facebook, Inc., 167 F. Supp. 3d 1056, 1065 (N.D. Cal. 2016)
19 (website operator was interactive computer service where it provided computer access to multiple
20 users), aff’d, 700 F. App’x 588 (9th Cir. 2017).
21 2. Plaintiffs seek to hold Thomson Reuters liable as a “publisher” or “speaker”
22 To determine whether Plaintiffs seek to hold Thomson Reuters liable as a publisher or
23 speaker, “[w]hat matters is not the name of the cause of action—[but] whether the cause of action
24 inherently requires the court to treat the defendant as [a] publisher or speaker.” Barnes v. Yahoo!,
25 Inc., 570 F.3d 1096, 1101-02 (9th Cir. 2009), as amended (Sept. 28, 2009). “[C]ourts must ask
26 whether the duty that the Plaintiff alleges the defendant violated derives from the defendant’s
27
28
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1 status or conduct as a ‘publisher or speaker.’” La Park La Brea A LLC v. Airbnb, Inc., 285 F.
2 Supp. 3d 1097, 1107 (C.D. Cal. 2017).17
3 Here, Plaintiffs seek to hold Thomson Reuters liable for disseminating their personal
4 information through CLEAR and for perceived harms resulting from its publication of personal
5 details about them. This is a paradigmatic example of attempting to hold an entity liable as a
6 publisher or speaker. See, e.g., Barnes, 570 F.3d at 1102 (alternatively defining a publisher as
7 “the reproducer of a work intended for public consumption”) (quoting WEBSTER’S THIRD NEW
8 INTERNATIONAL DICTIONARY 1837 (Philip Babcock Gove ed., 1986)). And courts regularly apply
9 the CDA to bar the types of claims at issue here. See Carafano, 339 F.3d at 1125 (Section 230
10 barred misappropriation of right of publicity claim); Ancestry.com, 2021 WL 783524, at *6
11 (misappropriation of right of publicity claims and related UCL claims); Ebeid v. Facebook, Inc.,
12 No. 18-CV-07030-PJH, 2019 WL 2059662, at *3 (N.D. Cal. May 9, 2019) (UCL claim); Jurin v.
13 Google Inc., 695 F. Supp. 2d 1117, 1122-23 (E.D. Cal. 2010) (unjust enrichment claim). The
14 second prong of the analysis under Section 230 is therefore satisfied.
15 3. Thomson Reuters is not the “information content provider” with respect to
the information content at issue
16
Under Section 230, “[t]he term ‘information content provider’ means any person or entity
17
that is responsible, in whole or in part, for the creation or development of information provided
18
through the Internet or any other interactive computer service.” 47 U.S.C. § 230(f)(3). Here, the
19
“information content” at issue is the “name[s], photographs, personal identifying information,
20
[and] other personal data . . . included in the CLEAR database.” See Compl. ¶ 70 (class
21
definition). That information content was created and developed by entities other than Thomson
22
Reuters. As Plaintiffs acknowledge, Thomson Reuters only “collects and aggregates,” Compl.
23
¶ 11, information originating from other sources such as “social networks,” “third-party data
24
25
26 17
None of the narrowly-drawn exceptions to Section 230 immunity apply here. See 47 U.S.C.
§ 230(e)(1), (2), (4) (excepting prosecutions under a “Federal criminal statute,” claims “pertaining
27 to intellectual property,” and claims involving certain statutes); see also Perfect 10, Inc. v. CCBill
LLC, 488 F.3d 1102, 1119 (9th Cir. 2007) (“In the absence of a definition from Congress . . . the
28 term ‘intellectual property’ . . . mean[s] ‘federal intellectual property.’”).
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1 providers,” and “law enforcement agencies,” id. ¶ 2; see also id. ¶ 14 (alleging that “[t]he
2 information aggregated and stored on the CLEAR database [is] collect[ed] from public records,
3 government sources, Internet searches, and third-party data brokers”); id. ¶¶ 16-17 (alleging that
4 Thomson Reuters “purchases and consolidates information held by third-party data tracking
5 firms, data brokers, and other companies that compile consumer and location data”).
6 Most critically, Plaintiffs seek to hold Thomson Reuters responsible for providing and
7 selling information without their consent specifically because of the content of that information:
8 because the content (supplied by third parties) includes their names and likenesses and other
9 personal details. Given that Plaintiffs’ claims “(1) challenge the harmfulness of content provided
10 by another; and (2) derive[ ] from the defendant’s status or conduct as a publisher or speaker of
11 that content,” CDA immunity applies. See In re: Zoom Video Commc’ns, 2021 WL 930623, at *7
12 (“Plaintiffs cannot hold Zoom liable for injuries stemming from the heinousness of third-party
13 content”) (internal quotation marks omitted).
14 Indeed, for the same reason that search engines are immune under the CDA from claims
15 resulting from the content their search engines surface, Thomson Reuters is immune from claims
16 resulting from the content that results when a subscriber conducts a Person Search or Risk Inform
17 search through the CLEAR platform. See Stayart v. Google Inc., 783 F. Supp. 2d 1055, 1056
18 (E.D. Wis. 2011) (“The [CDA] effectively immunizes search engines like Yahoo and Google
19 from claims that they displayed information created by third parties which presents an individual
20 in an unfavorable light.”), aff’d, 710 F.3d 719 (7th Cir. 2013); see also Roommates.Com, 521
21 F.3d at 1169 (“[P]roviding neutral tools to carry out what may be unlawful or illicit searches does
22 not amount to ‘development’ for purposes of the immunity exception.”).
23 Nor does it matter that Thomson Reuters allegedly “creates” a “dossier” or “profile” based
24 on the third-party content in its database. See, e.g., Compl. ¶¶ 43, 53. The CDA’s “exclusion of
25 ‘publisher’ liability necessarily precludes liability for exercising the usual prerogative of
26 publishers to choose among proffered material and to edit the material published while retaining
27 its basic form and message.” Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir. 2003). Plaintiffs do
28 not allege that CLEAR’s profiles altered the “basic form and message” of the underlying third-
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1 party records. Rather, they allege that CLEAR “uncover[s]” factual information contained in
2 third-party records, such as information about their name changes and other personal details, and
3 makes it available to third parties. Compl. ¶ 2. Because Thomson Reuters is not the information
4 content provider, CDA immunity applies. See also Ancestry.com, 2021 WL 783524, at *6
5 (holding that Ancestry.com was not an information content provider even though it added to
6 third-party content estimated information, such as age, and interactive buttons); Goddard v.
7 Google, Inc., 640 F. Supp. 2d 1193, 1197-98 (N.D. Cal. 2009) (holding that Google did not
8 become an information content provider by providing a keyword search tool).18
9 Because Plaintiffs seek to impose liability on Thomson Reuters as the provider of an
10 interactive computer service (CLEAR) for publishing third-party content, Section 230 of the CDA
11 bars their claims, and the claims must be dismissed.
12 D. The Court Should Strike the Complaint Under California’s Anti-SLAPP Statute
13 In California, the summary resolution of First Amendment cases is favored because of the
14 burden that litigation places on free speech. See Good Gov’t Grp. of Seal Beach, Inc. v. Super.
15 Ct., 22 Cal. 3d 672, 684-85 (1978). Section 425.16 of the California Code of Civil Procedure
16 (California’s “anti-SLAPP” statute) therefore provides “a mechanism through which complaints
17 that arise from the exercise of free speech rights ‘can be evaluated at an early stage of the
18 litigation process’ and resolved expeditiously,” Simmons v. Allstate Ins., 92 Cal. App. 4th 1068,
19 1073 (2001), and generally (i.e., subject to exceptions not applicable here) gives prevailing
20 defendants the right to attorneys’ fees and costs. See Barry v. State Bar of Cal., 2 Cal. 5th 318,
21 320 (2017) (“Unless the plaintiff establishes a probability of prevailing on the claim, the court
22 must grant the motion and ordinarily must also award . . . fees and costs.”).
23 California’s anti-SLAPP statute involves a two-step, burden-shifting test in which the
24 defendant must first show that the action arises from any act “in furtherance of the person’s right
25
26 18
The Risk Inform tool merely enables subscribers to customize searches to find public records
that are relevant to their assessments of risks relating to businesses and individuals, so Risk
27 Inform results likewise constitute third-party content. See supra note 7, cited at Compl. ¶ 31 n.10.
But to the extent that such content constitutes Thomson Reuters’ own speech, it is non-actionable
28 opinion protected by the First Amendment. See supra § V.B.1.b(i).
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1 of petition or free speech.” Cal. Civ. Proc. Code § 425.16(b)(1). If the defendant does so, the
2 “burden then shifts to the Plaintiff . . . to establish a reasonable probability that it will prevail on
3 its claim in order for that claim to survive dismissal.” Makaeff v. Trump Univ., LLC, 715 F.3d
4 254, 261 (9th Cir. 2013). This special motion is available in federal court proceedings. See, e.g.,
5 DC Comics v. Pac. Pictures Corp., 706 F.3d 1009, 1015 (9th Cir. 2013). Qualifying activities
6 include “any written or oral statement or writing made in a place open to the public or a public
7 forum in connection with an issue of public interest” and “any other conduct in furtherance of the
8 exercise of the constitutional right of petition or the constitutional right of free speech in
9 connection with a public issue or an issue of public interest.” Cal. Civ. Proc. Code § 425.16(e)(3),
10 (e)(4). “The defendant need not show that Plaintiff’s suit was brought with the intention to chill
11 defendant’s speech; the Plaintiff’s intentions are ultimately beside the point.” Bosley Med. Inst.,
12 Inc. v. Kremer, 403 F.3d 672, 682 (9th Cir. 2005) (quotations marks and citations omitted).
13 1. Publishing the CLEAR profiles is protected activity
14 The conduct at issue clearly falls within the scope of Section 425.16. First, it is well
15 established that “[w]eb sites accessible to the public . . . are ‘public forums’ for purposes of the
16 anti-SLAPP statute.” Barrett v. Rosenthal, 40 Cal. 4th 33, 41 n.4 (2006); see also Wilbanks v.
17 Wolk, 121 Cal. App. 4th 883, 897 (2004) (website is a public forum even if the operator limits
18 access). Plaintiffs’ allegations that Thomson Reuters unlawfully collected, aggregated, and sold
19 their information through the online CLEAR platform thus implicates speech in a public forum.
20 Moreover, by making information available to subscribers through the CLEAR platform,
21 Thomson Reuters is otherwise engaged in “conduct in furtherance of the exercise of the . . .
22 constitutional right of free speech.” Cal. Civ. Proc. Code § 425.16(e)(4); see, e.g., New Kids On
23 The Block, 745 F. Supp. at 1546 (“gathering [of] information for dissemination to the public” is
24 “a protected First Amendment activity”).
25 Second, as discussed above in section V.B.1.b., Plaintiffs’ claims arise from conduct in
26 connection with an issue of public interest because Thomson Reuters’ CLEAR platform provides
27 access to current and historical factual information. Indeed, the public value in facilitating
28 widespread availability of the type of information that Thomson Reuters provides through the
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1 CLEAR platform was recognized by Congress in enacting the CDA. See 47 U.S.C. § 230(a)(1)
2 (recognizing that the “rapidly developing array of Internet and other interactive computer services
3 available to individual Americans represent an extraordinary advance in the availability of
4 educational and informational resources to our citizens”). And widespread use brings the content
5 at issue even further into the public interest. See Compl. ¶¶ 21, 58 (CLEAR “platform receives
6 approximately 100,000 search queries each day” from a wide variety of subscribers); Exeltis USA
7 Inc. v. First Databank, Inc., No. 17-CV-04810-HSG, 2017 WL 6539909, at *12 (N.D. Cal. Dec.
8 21, 2017) (complaint’s description of defendant’s database as “industry’s most widely used
9 database” is sufficient to prove public interest).
10 2. Plaintiffs cannot show a probability of prevailing at trial
11 Because this case seeks to inhibit speech in connection with an issue of public interest,
12 Thomson Reuters has met its burden, and Plaintiffs must demonstrate their claims are “legally
13 sufficient and factually substantiated.” Baral v. Schnitt, 1 Cal. 5th 376, 396 (2016). Where, as
14 here, “an anti-SLAPP motion to strike challenges only the legal sufficiency of a claim, a district
15 court should apply the Federal Rule of Civil Procedure 12(b)(6) standard and consider whether a
16 claim is properly stated.” Planned Parenthood Fed’n of Am., Inc. v. Ctr. for Med. Progress, 890
17 F.3d 828, 834 (9th Cir. 2018), as amended, 897 F.3d 1224 (9th Cir. 2018).
18 As discussed above, Plaintiffs’ claims should be dismissed under Rule 12(b)(6) because
19 (1) they fail to allege plausible claims for right of publicity and unfair competition under state
20 law; (2) unjust enrichment is not a cause of action; and (3) their claims are barred by the CDA.
21 Consequently, Plaintiffs cannot demonstrate that these claims are “legally sufficient and factually
22 substantiated,” and the claims should be stricken under the anti-SLAPP statute.
23 VI. CONCLUSION
24 For the foregoing reasons, Thomson Reuters’ Motion to Dismiss and Motion to Strike
25 should be granted.
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DATED: April 5, 2021 PERKINS COIE LLP
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3 By: /s/ Susan D. Fahringer
Susan D. Fahringer, Bar No. 21567
4 SFahringer@perkinscoie.com
5 Attorneys for Defendant
Thomson Reuters Corporation
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