Case No.: 3:20-Cv-05787-Si [Proposed] Order On Motion To Dismiss, Doc. 58 — Children's Health Defense v. Facebook Inc

Summary

A proposed order on Facebook, Inc.'s and Mark Zuckerberg's motion to dismiss, filed October 28, 2020 as Document 58 in Children's Health Defense v. Facebook, Inc., et al., Case No. 3:20-cv-05787-SI, in the U.S. District Court for the Northern District of California, by defense counsel at Wilmer Cutler Pickering Hale and Dorr LLP. The proposed order would dismiss Count I, a Bivens claim, for lack of federal action, and Counts II and III, under the Lanham Act, 15 U.S.C. § 1125(a)(1)(B), and civil RICO, 18 U.S.C. § 1962(c), on First Amendment grounds and under 47 U.S.C. § 230(c)(1). It gives further grounds, including lack of statutory standing, and would dismiss Count IV because the Declaratory Judgment Act is not an independent cause of action. It would grant the motion and dismiss the complaint with prejudice, with a signature line for Hon. Susan Illston.

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            Case 3:20-cv-05787-SI Document 58 Filed 10/28/20 Page 1 of 3




1    SONAL N. MEHTA (SBN 222086)
      Sonal.Mehta@wilmerhale.com
2    WILMER CUTLER PICKERING
      HALE AND DORR LLP
3    2600 El Camino Real, Suite 400
     Palo Alto, California 94306
4    Telephone: (650) 858-6000
     Facsimile: (650) 858-6100
5
     ARI HOLTZBLATT (pro hac vice)
6     Ari.Holtzblatt@wilmerhale.com
     MOLLY M. JENNINGS (pro hac vice)
7     Molly.Jennings@wilmerhale.com
     ALLISON SCHULTZ (pro hac vice)
8     Allison.Schultz@wilmerhale.com
     WILMER CUTLER PICKERING
9     HALE AND DORR LLP
     1875 Pennsylvania Ave, NW
10   Washington, DC 20006
     Telephone: (202) 663-6000
11   Facsimile: (202) 663-6363

12   Attorneys for Defendants
     FACEBOOK, INC. and
13   MARK ZUCKERBERG

14

15

16

17                                 UNITED STATES DISTRICT COURT

18                                NORTHERN DISTRICT OF CALIFORNIA

19                                      SAN FRANCISCO DIVISION

20   CHILDREN’S HEALTH DEFENSE,
                                                      Case No. 3:20-cv-05787-SI
21                                  Plaintiff,
22                                                    [PROPOSED] ORDER ON
             v.
                                                      FACEBOOK, INC.’S AND MARK
23   FACEBOOK, INC., ET AL.,                          ZUCKERBERG’S MOTION TO
                                                      DISMISS
24                                  Defendants.
25

26

27

28

     CASE NO.: 3:20-CV-05787-SI                          [PROPOSED] ORDER ON MOTION TO DISMISS
            Case 3:20-cv-05787-SI Document 58 Filed 10/28/20 Page 2 of 3




1           [PROPOSED] ORDER ON FACEBOOK, INC.’S AND MARK ZUCKERBERG’S

2                                           MOTION TO DISMISS

3            Plaintiff Children’s Health Defense (“CHD”) brings four claims against Facebook, Inc. and

4    Mark Zuckerberg. Count I seeks damages under the implied cause of action recognized in Bivens v.

5    Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Count II

6    claims that Defendants violated the Lanham Act’s false-advertising provision, 15 U.S.C.

7    § 1125(a)(1)(B). Count III asserts that Defendants committed multiple acts of wire fraud in a manner

8    that gives CHD a civil claim under the Racketeer Influenced and Corrupt Organizations (“RICO”)

9    statute, 18 U.S.C. § 1962(c). And Count IV seeks declaratory relief associated with Counts I-III.
10           Count I is dismissed because CHD has not plausibly alleged federal action. Facebook and
11   Mr. Zuckerberg are private actors, and CHD has not sufficiently alleged that the “joint action”
12   doctrine applies. See Mathis v. Pacific Gas & Elec. Co., 75 F.3d 498, 503 (9th Cir. 1995). Count I
13   additionally fails because neither Facebook nor Mr. Zuckerberg is a proper Bivens defendant here.
14   Bivens does not apply to corporations, like Facebook. Correctional Servs. Corp. v. Malesko, 534
15   U.S. 61, 70-71 (2001). And CHD has not alleged that Mr. Zuckerberg had any personal involvement
16   in any decision specific to CHD. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Finally, and in any
17   event, the Court declines to expand Bivens liability to the novel facts presented here. See Ziglar v.
18   Abbasi, 137 S. Ct. 1843, 1859 (2017).
19           Moreover, because Counts II and III arise out of activity by Facebook and Mr. Zuckerberg
20   that is fully protected by the First Amendment, CHD cannot hold Facebook or Mr. Zuckerberg liable
21   for those actions. Counts II and III accordingly must be dismissed.
22           Counts II and III are additionally barred by the Communications Decency Act (“CDA”), 47
23   U.S.C. § 230(c)(1), because they would treat Facebook and Mr. Zuckerberg “as the publisher or
24   speaker of … information provided by another information content provider.” Id. § 230(c)(1).
25   Counts II and III are therefore dismissed on this ground as well.
26           Count II is also dismissed because CHD has not stated a false-advertising claim under the
27   Lanham Act, for two reasons. First, CHD does not allege the kind of commercial injury cognizable
28   under the Act. It alleges only injuries (1) arising out of its relationship to Facebook as a customer,
                                                         -1-
     CASE NO.: 3:20-CV-05787-SI                                   [PROPOSED] ORDER ON MOTION TO DISMISS
                Case 3:20-cv-05787-SI Document 58 Filed 10/28/20 Page 3 of 3




1     not competitor, and (2) to its position in the “marketplace of ideas.” These alleged injuries are

2     insufficient to confer statutory standing under the Lanham Act. See Animal Legal Defense Fund v.

3     HVFG LLC, 939 F. Supp. 2d 992, 1000 (N.D. Cal. 2013). Second, the complaint nowhere alleges

4     a promotional statement by Facebook or Mr. Zuckerberg that contained false representations about

5     CHD. See Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139 (9th Cir. 1997).

6                Count III is additionally dismissed because CHD has not stated a civil RICO claim. CHD

7     lacks statutory standing to bring a civil RICO claim, see 18 U.S.C. § 1964(c), because its injuries

8     were not the direct result of the alleged fraudulent scheme, see Anza v. Ideal Steel Supply Corp.,

9     547 U.S. at 451, 459 (2006). CHD also has not pleaded any predicate acts of wire fraud, both
10    because it has not pleaded that Facebook or Mr. Zuckerberg took money or property from CHD
11    through their purported fraud, see Monterey Plaza Hotel L.P. v. Local 483, 215 F.3d 923, 926-927
12    (9th Cir. 2000), and because it has not adequately pleaded false statements under Rule 9(b), see
13    Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065-1066 (9th Cir. 2004).
14               Count IV is dismissed because, while “the Declaratory Judgment Act creates a remedy for
15    litigants,” it “is not an independent cause of action.” County of Santa Clara v. Trump, 267 F.
16    Supp. 3d 1201, 1215-1216 (N.D. Cal. 2017).
17               In addition to the above failings, CHD has not stated any claim against Mr. Zuckerberg
18    because it has not adequately alleged his personal involvement in any of the conduct at issue.
19               These “deficiencies cannot be cured by amendment.” Cheung v. Wells Fargo Bank, N.A.,
20    987 F. Supp. 2d 972, 976 (N.D. Cal. 2013). Leave to amend the complaint would therefore be
21    futile.
22               Defendants Facebook, Inc.’s and Mark Zuckerberg’s Motion to Dismiss the Complaint is
23    GRANTED. CHD’s Complaint is DISMISSED WITH PREJUDICE in its entirety.
24

25    Dated: _______________________

26                                                                     _____________________________
27                                                                      By: Hon. Susan Illston
                                                                            United States District Judge
28
                                                        -2-
     CASE NO.: 3:20-CV-05787-SI                                   [PROPOSED] ORDER ON MOTION TO DISMISS


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