Full text
CASE NO.: 3:20-CV-05787-SI
THE POYNTER INSTITUTE FOR MEDIA
STUDIES, INC.’S REPLY MEMORANDUM IN
SUPPORT OF ITS MOTION TO DISMISS
VERIFIED SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
JASSY VICK CAROLAN LLP
KEVIN L. VICK (SBN 220738)
kvick@jassyvick.com
800 Wilshire Boulevard, Suite 800
Los Angeles, CA 90017
Telephone: (310) 870-7048
Facsimile: (310) 870-7010
Attorneys for Defendant The Poynter
Institute for Media Studies, Inc.
THOMAS & LOCICERO PL
CAROL JEAN LOCICERO (pro hac vice)
clocicero@tlolawfirm.com
MARK R. CARAMANICA (pro hac vice)
mcaramanica@tlolawfirm.com
601 South Boulevard
Tampa, FL 33606
Telephone: (813) 984-3060
Facsimile: (813) 984-3070
-and-
DANIELA B. ABRATT (pro hac vice)
dabratt@tlolawfirm.com
915 Middle River Drive, Suite 309
Fort Lauderdale, FL 33304
Telephone: (954) 703-3416
Facsimile: (954) 400-5415
Attorneys for Defendant The Poynter
Institute for Media Studies, Inc.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
CHILDREN’S HEALTH DEFENSE, a Georgia non-
profit organization,
Plaintiff,
v.
FACEBOOK, INC., a Delaware corporation; MARK
ZUCKERBERG, a California resident; SCIENCE
FEEDBACK, a French corporation; THE POYNTER
INSTITUTE FOR MEDIA STUDIES, INC., a
Florida corporation; and DOES 1-20.
Defendants.
Case No.: 3:20-cv-05787-SI
DEFENDANT THE POYNTER
INSTITUTE FOR MEDIA STUDIES,
INC.’S REPLY MEMORANDUM IN
SUPPORT OF ITS MOTION TO
DISMISS VERIFIED SECOND
AMENDED COMPLAINT
DATE: MARCH 23, 2021
TIME: 11:00 A.M.
COURTROOM: 1-17TH FLOOR
Case 3:20-cv-05787-SI Document 73 Filed 03/05/21 Page 1 of 22
i
CASE NO.: 3:20-CV-05787-SI
THE POYNTER INSTITUTE FOR MEDIA
STUDIES, INC.’S REPLY MEMORANDUM IN
SUPPORT OF ITS MOTION TO DISMISS
VERIFIED SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
REPLY MEMORANDUM OF POINTS AND AUTHORITIES .................................................. 1
I.
INTRODUCTION ........................................................................................................ 1
II.
THE COURT NEED NOT ACCEPT IMPLAUSIBLE ALLEGATIONS
AS TRUE ...................................................................................................................... 2
III.
CHD’S COUNTS ALSO SUBSTANTIVELY FAIL AS A MATTER OF LAW ....... 5
A. As to Bivens, CHD Argues State Action Grounded in Tortured Conspiracy
Theory, Ingoring that No Claim Lies Against Corporate Entities Like Poynter ... 5
State Actor Status Predicated on an Implausible Conspiracy Theory .................... 5
No Bivens Claim Lies Against Corporations Like Poynter, No Matter the
Grounds................................................................................................................... 8
B. The False Advertising Claim Fails Because it is Vague, CHD and Poynter are
Not Competitors, and the PolitiFact Fact-Check is Not Commercial Speech ...... 10
C. The RICO Count Fails to Plead Predicate Acts and Remaining RICO Elements..13
D. The Declaratory Relief Would Unconstitutionally Restrain Protected Speech…. 15
IV.
CONCLUSION ........................................................................................................... 15
SIGNATURE ATTESTATION.................................................................................................... 17
CERTIFICATE OF SERVICE ..................................................................................................... 17
Case 3:20-cv-05787-SI Document 73 Filed 03/05/21 Page 2 of 22
ii
CASE NO.: 3:20-CV-05787-SI
THE POYNTER INSTITUTE FOR MEDIA
STUDIES, INC.’S REPLY MEMORANDUM IN
SUPPORT OF ITS MOTION TO DISMISS
VERIFIED SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TABLE OF AUTHORITIES
CASES
Ariix, LLC v. NutriSearch Corp., No. 19-55343, 2021 WL 221878 (9th Cir. Jan. 22, 2021)………. 12
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...................................................................................... ..passim
Association of American Physicians & Surgeons v. Schiff,
No. 20-106 (RC), 2021 WL 354174 (D. D.C. Feb. 2, 2021). ........................................................... 7
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ................................................................. passim
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,
403 U.S. 388 (1971) ................................................................................................................. passim
Bly-Magee v. California, 236 F.3d 1014 (9th Cir. 2001) ..................................................................... 4
Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983) ....................................................... 12, 13
Boule v. Egbert, 980 F.3d 1309 (9th Cir. 2020) ................................................................................... 9
Bowyer v. Ducey, No. CV-20-02321-PHX-DJH, 2020 WL 7238261 (D. Ariz. Dec. 9, 2020) ........ 3, 4
Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288 (2001) .. 5, 6
Camps Newfound/Owatonna, Inc. v. Town of Harrison, Maine, 520 U.S. 564 (1997) ...................... 12
Contawe v. County of San Mateo,
No. 15-cv-00222-JD, 2015 WL 9311919 (N.D. Cal. Dec. 23, 2015) ............................................... 4
Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001). ................................................... 8, 9, 10
Davison v. Facebook, Inc., 370 F. Supp. 3d 621 (E.D. Va. 2019). ...................................................... 9
Eclectic Properties East, LLC v. Marcus & Millichap Co., 751 F.3d 990 (9th Cir. 2014) .................. 3
Federal Agency of News LLC v. Facebook, Inc., 432 F. Supp. 3d 1107 (N.D. Cal. 2020) .................. 9
Feminist Women’s Health Center v. Roberts,
No. C86-161Z, 1989 WL 56017 (W.D. Wash. May 5, 1989)……………………………………. 14
Freedom Watch, Inc. v. Google, Inc., 368 F. Supp. 3d 30 (D. D.C. 2019)........................................... 9
Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180 (9th Cir. 2001)................................................. 13
In re Century Aluminum Co. Securities Litigation, 729 F.3d 1104 (9th Cir. 2013) ............................. 4
Case 3:20-cv-05787-SI Document 73 Filed 03/05/21 Page 3 of 22
- iii -
CASE NO.: 3:20-CV-05787-SI
THE POYNTER INSTITUTE FOR MEDIA
STUDIES, INC.’S REPLY MEMORANDUM IN
SUPPORT OF ITS MOTION TO DISMISS
VERIFIED SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
In re Gilead Sciences Securities Litigation, 536 F.3d 1049 (9th Cir. 2008) ..................................2, 3
Kelly v. United States, 140 S. Ct. 1565 (2020) ................................................................................14
Lexmark International, Inc. v. State Control Components, Inc., 572 U.S. 118 (2014) .............10, 11
Manhattan Community Access Corp. v. Halleck, 139 S. Ct. 1921 (2019) .....................................5, 6
Mimedx Group, Inc. v. Osiris Therapeutics, Inc.,
No. 16 Civ. 3645 (KPF), 2017 WL 3129799 (S.D.N.Y. July 21, 2017) .........................................5
Moss v. United States Secret Service, 572 F.3d 962 (9th Cir. 2009) .................................................2
Nebraska Press Association v. Stuart, 427 U.S. 539 (1976) ...........................................................15
Perez v. LinkedIn Corp., No. 5:20-cv-07238-EJD, 2021 WL 519379 (N.D. Cal. Feb. 5, 2021).......9
Planned Parenthood Federation of America, Inc. v. Center For Medical Progress,
No. 16-cv-00236-WHO, 2020 WL 2065700 (N.D. Cal. Apr. 29, 2020) .......................................15
Prager University v. Google LLC,
No. 17-CV-06064-LHK, 2018 WL 1471939 (N.D. Cal. Mar. 26, 2018) ........................................9
Scheidler v. National Organization for Women, Inc., 537 U.S. 393 (2003) ....................................14
Smith v. United Healthcare Insurance Company,
No. 18-cv-06336-HSG, 2019 WL 3238918 (N.D. Cal. July 18, 2019) .......................................4, 5
Sprewell v. Golden State Warriors, 266 F.3d 979 (9th Cir. 2001) ....................................................2
Thermolife International LLC v. Sparta Nutrition LLC,
No. CV-19-01715-PHX-SMB, 2020 WL 248164 (D. Ariz. Jan. 16, 2020) ..................................11
United States v. Garlick, 240 F.3d 789 (9th Cir. 2001). ..................................................................14
United States v. Rezko, No. 05 CR 691, 2007 WL 2904014 (N.D. Ill. Oct. 2, 2007) ................14, 15
Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003) ......................................................10
Wilson v. Twitter, No. 3:20-cv-00054, 2020 WL 3410349 (S.D. W. Va. May 1, 2020) ...................9
STATUTES
18 U.S.C. § 1343 ..............................................................................................................................13
Case 3:20-cv-05787-SI Document 73 Filed 03/05/21 Page 4 of 22
- iv -
CASE NO.: 3:20-CV-05787-SI
THE POYNTER INSTITUTE FOR MEDIA
STUDIES, INC.’S REPLY MEMORANDUM IN
SUPPORT OF ITS MOTION TO DISMISS
VERIFIED SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
FEDERAL RULES
Fed. R. Civ. P. 8 .................................................................................................................................4
Fed. R. Civ. P. 9(b) ......................................................................................................................4, 10
MISCELLANEOUS
All Issues, POLITIFACT, https://www.politifact.com/issues/ .............................................................2
Charlie Warzel, Don’t Go Down the Rabbit Hole, N.Y. TIMES, Feb. 18, 2021,
https://www.nytimes.com/2021/02/18/opinion/fake-news-media-attention.html ......................1, 2
CHD Legal Team Led by Robert F. Kennedy, Jr. Sues Facebook, Mark Zuckerberg, and Three of
Facebook’s So-Called “Fact-Checkers”, CHILDREN’S HEALTH DEFENSE, Aug. 18, 2020, (last
visited Feb. 28, 2021),
https://childrenshealthdefense.org/press-release/chd-legal-team-led-by-robert-f-kennedy-jr-sues-
facebook-mark-zuckerberg-and-three-of-facebooks-so-called-fact-checkers-for-government-
sponsored-censorship-false-dispar/ ................................................................................................11
CHD Holds Press Conference with Legal Team and Plaintiff in Lawsuit Against Facebook, Mark
Zuckerberg, and Three of Facebook’s So-Called “Fact-Checkers”, CHILDREN’S HEALTH
DEFENSE, Aug. 20, 2020 (last visited Feb. 28, 2021),
https://childrenshealthdefense.org/news/chd-holds-press-conference-with-legal-team-and-
plaintiff-in-lawsuit-against-facebook-mark-zuckerberg-and-three-of-facebooks-so-called-fact-
checkers/ ..................................................................................................................................…..11
International Fact-Checking Network Transparency Statement, POYNTER, available at,
https://www.poynter.org/international-fact-checking-network-transparency-statement/ ...............7
Largest funders of Poynter, POYNTER, https://www.poynter.org/major-funders/ ............................7
People and Groups, POLITIFACT, https://www.politifact.com/personalities/ ...................................2
Case 3:20-cv-05787-SI Document 73 Filed 03/05/21 Page 5 of 22
1
CASE NO.: 3:20-CV-05787-SI
THE POYNTER INSTITUTE FOR MEDIA
STUDIES, INC.’S REPLY MEMORANDUM IN
SUPPORT OF ITS MOTION TO DISMISS
VERIFIED SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
REPLY MEMORANDUM OF POINTS AND AUTHORITIES
The simplest solution is preferable to one that is more complex. - Occam’s razor
I.
INTRODUCTION
In times when visions of conspiracy too often drive public discourse and burden the judiciary
with lawsuits devoid of substance, CHD’s Opposition Memorandum (Dkt. No. 70, the “Opposition”)
continues pushing a victimhood fantasy rooted in “deep state” conspiracies. It strings together
disparate allegations—a letter from a Congressman, CDC/WHO vaccine policy, Facebook’s private
speech platform, a fact-checking process, and non-profit funding—in an attempt to state claims
intended to punish civil rights violations by state actors, organized crime syndicates, and false
advertising that hurts commercial consumers.
Dubious vaccine-related information propagated on Facebook is rightfully subject to
scrutiny. Ironically, while CHD argues for its own free speech rights, it eschews the very
marketplace of ideas resting at the First Amendment’s core, diving deeper into the imaginings
underlying its Verified Second Amended Complaint (“SAC”). Because it cannot compete on ideas,
CHD turns to this Court in hopes of violating The Poynter Institute for Media Studies, Inc.’s
(“Poynter”) right to comment on speech about vaccines CHD deems counter to its anti-vaxxer
theories. Even crediting its implausible version of reality, no Bivens, civil RICO, or Lanham Act
claims can be sustained. Thus, no matter how many paranoid allegations are posited in this third
round of pleading, this lawsuit must be dismissed with prejudice.
And while CHD’s claims fail no matter what deference is given at this stage, their
implausibility under Iqbal/Twombly cannot be ignored. CHD views the Defendants as a collective,
veiled government-controlled cabal specifically conceived to destroy CHD’s reputation and cripple
its fundraising, while also promoting Mark Zuckerberg’s alleged financial interest in 5G buildout.1
1 CHD would have this Court believe the Defendants have singled out it and its founder, Robert F.
Kennedy, Jr., but Mr. Kennedy’s anti-vaxxer activism attracts a much wider critical audience.
Academics studying digital media literacy view him as a textbook opportunity to educate about
problematic message sources through a process known as SIFT: (S)top, (I)nvestigate the source,
(F)ind better coverage, (T)race claims, quotes, and media to the original context. See Charlie Warzel,
Case 3:20-cv-05787-SI Document 73 Filed 03/05/21 Page 6 of 22
- 2 -
CASE NO.: 3:20-CV-05787-SI
THE POYNTER INSTITUTE FOR MEDIA
STUDIES, INC.’S MOTION TO DISMISS
VERIFIED SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
But plausibility, judicial experience, and common sense counsel that, in reality, Facebook simply
sought to stem misinformation on the social media platform it owns and engaged fact-checking
organizations like Poynter to assess public health information postings at odds with scientific
consensus. This better explains why, for example, third-party content shared on CHD’s Facebook
page that was fact-checked by Poynter was corrected consistent with Poynter’s critique—and is
not part of a nefarious plot against CHD.
II.
THE COURT NEED NOT ACCEPT IMPLAUSIBLE ALLEGATIONS AS TRUE
CHD misconstrues applicable motion to dismiss standards, inviting this Court to stretch
the deference given to the “truth” of pleading allegations into one that blindly accepts every
conclusion alleged, no matter how disjointed or far-fetched. This is not the standard. As set forth
in Poynter’s Motion to Dismiss and Incorporated Memorandum (Dkt. No. 68, “Poynter Memo”),
to survive a motion to dismiss, a plaintiff must plead enough facts to state a claim that on its face
is not simply a possibility but actually plausible based on context, judicial experience, and
common sense. See Poynter Memo at 7-8. Unsurprisingly, CHD focuses on deference and its
claimed need to take discovery to expose the imagined conspiracy. See Opposition at 6-7.
Accepting CHD’s conclusions would turn Iqbal/Twombly on its head. First, despite the
general deference complaints receive at this stage, courts are not required to credit “unreasonable
inferences” or “unwarranted deductions of fact” to save plaintiffs from motions to dismiss. See
Moss v. U.S. Secret Serv., 572 F.3d 962, 971 (9th Cir. 2009) (citing Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001)); In re Gilead Sciens. Sec. Litig., 536 F.3d 1049,
Don’t Go Down the Rabbit Hole, N.Y. TIMES, Feb. 18, 2021, available at:
https://www.nytimes.com/2021/02/18/opinion/fake-news-media-attention.html. Moreover, CHD’s
claim that Poynter/PolitiFact exist to undermine CHD’s message is belied by, for example, the
wide-ranging topics PolitiFact covers. Since its inception in 2007, PolitiFact has covered hundreds
upon hundreds of topics and people/organizations of public interest. See
https://www.politifact.com/issues/; https://www.politifact.com/personalities/. It is equally absurd
that Poynter’s International Fact-Checking Network (“IFCN”), founded years before any
allegations in this lawsuit to develop best practices and collaboration among fact-checkers, exists
to provide a veneer of credibility to organizations whose true mission is solely to discredit CHD.
Case 3:20-cv-05787-SI Document 73 Filed 03/05/21 Page 7 of 22
- 3 -
CASE NO.: 3:20-CV-05787-SI
THE POYNTER INSTITUTE FOR MEDIA
STUDIES, INC.’S MOTION TO DISMISS
VERIFIED SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1055 (9th Cir. 2008) (same). In fact, when assessing plausibility, courts must also consider an
“obvious alternative explanation” for a defendant’s alleged conduct. See Eclectic Props. E., LLC
v. Marcus & Millichap Co., 751 F.3d 990, 996 (9th Cir. 2014) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 567 (2007)). A complaint should be dismissed “when defendant’s
plausible alternative explanation is so convincing that plaintiff’s explanation is implausible.” Id.
(emphasis in original).
For example, in Eclectic Property East, plaintiff alleged that defendants acted with intent
to defraud under RICO when they inflated real estate prices and corresponding rent payments
based on sham appraisals. Id. at 994-95. The court applied the standards under Iqbal/Twombly as
well as their “judicial experience and common sense” to reject the contention that the allegations
were plausible, instead finding real estate values can fluctuate based on market conditions: “The
Plaintiffs’ fraud theory is not plausible when considered in light of the innocent explanation that
failure of franchise businesses in making rental payments, and their abandonment of leases, took
place in the context of a deep national recession.” Id. at 998-99.
One of the many failed recent election challenges also illustrates the point. In Bowyer v.
Ducey, plaintiffs sought to overturn the 2020 presidential election results based on claims that the
election was fraudulent. They relied on over 300 pages of attachments to the complaint to support
claims of conspiracy to manipulate results, “irregularities” with the signature matching process
and voting machines, and voting machine hacking to preload blank ballots and then cast them for
President Biden. See Bowyer v. Ducey, No. CV-20-02321-PHX-DJH, 2020 WL 7238261, at *13-
14 (D. Ariz. Dec. 9, 2020). The court rightfully noted that “[a]lthough a plaintiff’s specific factual
allegations may be consistent with a plaintiff’s claim, a district court must assess whether there are
other ‘more likely explanations’ for a defendant’s conduct such that a plaintiff’s claims cannot
cross the line ‘from conceivable to plausible.’” Id. at *13 (emphasis added).
Case 3:20-cv-05787-SI Document 73 Filed 03/05/21 Page 8 of 22
- 4 -
CASE NO.: 3:20-CV-05787-SI
THE POYNTER INSTITUTE FOR MEDIA
STUDIES, INC.’S MOTION TO DISMISS
VERIFIED SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The Bowyer court granted the motion to dismiss because the plaintiff failed to adequately
plead fraud, holding that while a spike in votes for President Biden “could be explained by an
illicit hacking of the voting machinery in Arizona, the spike is ‘not only compatible with, but
indeed was more likely explained by, lawful, unchoreographed’ reporting of early ballot
tabulation.” Id. at *14 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009)) (emphasis in
original); see also In re Century Aluminum Co. Sec. Litig., 729 F.3d 1104, 1108 (9th Cir. 2013)
(dismissing complaint because allegations were only “possible rather than plausible” and noting
where allegations were “‘merely consistent with’ their favored explanation but are also consistent
with the alternative explanation...[s]omething more is needed, such as facts tending to exclude the
possibility that the alternative explanation is true.”) (emphasis in original).
CHD also seeks to avoid dismissal of the SAC by arguing it should be permitted discovery
to substantiate its claims. See Opposition at 6-7, 20. This too is wrong. The law does not permit
CHD to simply draw claims from thin air, aver Poynter is magically in possession of information
that would prove its theories, and then argue entitlement to discovery before dismissal can occur.
Plausibility must always be established first. See, e.g., Contawe v. Cty. of San Mateo, No. 15-cv-
00222-JD, 2015 WL 9311919, at *3 (N.D. Cal. Dec. 23, 2015) (rejecting plaintiff’s argument that
“[f]urther facts in support of the complaint can be obtained through discovery” because the
“notice-pleading standard under Rule 8 ‘does not unlock the doors of discovery for a plaintiff
armed with nothing more than conclusions.’”) (quoting Iqbal, 556 U.S. at 678-79). When, as here,
fraud allegations are present, the same is true under Rule 9 which “serves not only to give notice
to defendants of the specific fraudulent conduct against which they must defend, but also ‘to deter
the filing of complaints as a pretext for the discovery of unknown wrongs…’” Bowyer, 2020 WL
7238261 at *12 (quoting Bly-Magee v. Cal., 236 F.3d 1014, 1018 (9th Cir. 2001)).
CHD’s reliance on Smith v. United Healthcare Insurance Company is unavailing. See
Opposition at 6-7. In Smith, a plaintiff asserted a Parity Act violation against an insurer, alleging it
discriminated against mental health services. Smith v. United Healthcare Ins. Co., No. 18-cv-
Case 3:20-cv-05787-SI Document 73 Filed 03/05/21 Page 9 of 22
- 5 -
CASE NO.: 3:20-CV-05787-SI
THE POYNTER INSTITUTE FOR MEDIA
STUDIES, INC.’S MOTION TO DISMISS
VERIFIED SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
06336-HSG, 2019 WL 3238918, at *2 (N.D. Cal. July 18, 2019). The court was not evaluating
whether the claim was “plausible.” See id. at *5-6. Instead, the court rejected defendant’s
argument that plaintiff was required at the outset to identify a specific “medical or surgical
analogue for which [defendant] does not apply a comparable reimbursement reduction.” Id. at *6.
Such pleading was not required when the analogue was “peculiarly within the possession and
control of” the defendant. Id. CHD’s citation to Mimedx Group, Inc. v. Osiris Therapeutics, Inc. is
equally unavailing. The salient issue again was whether the allegations were specific enough given
that certain details would be difficult to allege absent discovery. Again, the court did not question
the actual plausibility of the claims. See Mimedx Grp., Inc. v. Osiris Therapeutics, Inc., No. 16
Civ. 3645 (KPF), 2017 WL 3129799, at *8 (S.D.N.Y. July 21, 2017). All told, courts do not
permit a “ready-fire-aim” pleading approach that later asserts a need for discovery to prove
facially implausible claims. CHD’s arguments in this regard should be rejected.
III.
CHD’S COUNTS ALSO SUBSTANTIVELY FAIL AS A MATTER OF LAW
A.
As to Bivens, CHD Argues State Action Grounded in Tortured Conspiracy
Theory, Ignoring that No Claim Lies Against Corporate Entities Like Poynter.
State Actor Status Predicated on an Implausible Conspiracy Theory
“[S]tate action may be found if, though only if, there is such a ‘close nexus between the
State and the challenged action’ that seemingly private behavior ‘may be fairly treated as that of
the State itself.’” Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295
(2001) (citation omitted). CHD wields the state action doctrine as a sword, but it is better viewed
as a shield to enforce the “boundary between the governmental and the private” thus “protect[ing]
a robust sphere of individual liberty.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921,
1928 (2019). This is particularly so when the First Amendment is implicated. Id. at 1932 (rejecting
theory that state regulation makes a private party a state actor, and noting that “would significantly
endanger individual liberty and private enterprise” and “would be especially problematic in the
Case 3:20-cv-05787-SI Document 73 Filed 03/05/21 Page 10 of 22
- 6 -
CASE NO.: 3:20-CV-05787-SI
THE POYNTER INSTITUTE FOR MEDIA
STUDIES, INC.’S MOTION TO DISMISS
VERIFIED SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
speech context, because it could eviscerate certain private entities’ rights to exercise editorial
control over speech and speakers on their properties or platforms.”).
CHD argues certain Brentwood indicia of state action conclusively establish it here. See
Opposition at 9-10. But Brentwood does not lay down a rigid test as no “set of circumstances [is]
absolutely sufficient, for there may be some countervailing reason against attributing activity to
the government.” Brentwood, 531 U.S. at 295 (citations omitted). Nevertheless, CHD concludes
Poynter’s alleged conduct a) results from coercive government power, b) is joint action with
government, and c) encouraged by government. CHD gets there by playing an implausible game
of “six degrees of separation” that fails to establish a “close nexus.” See Opposition at 9-10.
Because CHD cannot allege any plausible, direct relationship between Poynter and a government
plot to silence CHD, it resorts to circular allegations requiring multiple fantastical leaps. PolitiFact
is operated by Poynter, a non-profit that has for decades been a center for developing impactful
journalism and ethics. Yet, CHD wants this Court to now assume that Poynter is the antithesis of a
journalism center: a covert arm of government.
CHD first envisions a vendetta among Facebook, Mr. Zuckerberg and the CDC/WHO to
attack CHD. See, e.g., SAC, Dkt. No. 65-1 at ¶ 9. This has its roots in a February 2019 letter from
Rep. Adam Schiff warning Facebook to take action on vaccine misinformation on its platform or
potentially risk losing certain immunities under Section 230 of the CDA. See id. at ¶¶ 60-68.
Facebook and Mr. Zuckerberg then allegedly cave, begin working at the behest of the CDC/WHO,
and design a nefarious fact-checking campaign aimed at CHD. See id. at ¶¶ 69-80.2
CHD then posits Facebook engages Poynter, which has operated IFCN since 2015 (see
SAC at ¶ 98), four years before the Schiff letter, to supply accredited fact-checking services like
2 At the same time Facebook and Mr. Zuckerberg are allegedly being strong-armed by
government, CHD also pleads that Mr. Zuckerberg has independent, personal motivations in
promoting sound vaccine policy and has connections to a charity (CZI) that promotes this as well.
See SAC at ¶¶ 281-83. This contradicts any claims of coercion, encouragement, or joint action.
Case 3:20-cv-05787-SI Document 73 Filed 03/05/21 Page 11 of 22
- 7 -
CASE NO.: 3:20-CV-05787-SI
THE POYNTER INSTITUTE FOR MEDIA
STUDIES, INC.’S MOTION TO DISMISS
VERIFIED SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PolitiFact. The SAC contains no allegations that Poynter had contact with Rep. Schiff or the
CDC/WHO, that Poynter knew of the alleged interactions with Facebook, or that there was any
coercion/meeting of the minds to implement a government censorship scheme and anoint fact-
checkers whose mission was to flag content on CHD’s page.3 Instead, CHD concludes Facebook
controls the entirety of the fact-checking process, assuming sinister motivations for Facebook, and
labeling Poynter Facebook’s hand puppet. See Opposition at 8. This Court is left to leap to the
conclusion that Poynter is now knowingly doing the government’s bidding.
CHD then turns to Poynter’s finances—drawing wild connections between Facebook,
unrelated government funders,4 2016 Presidential executive orders, and Rep. Schiff—to conclude
Poynter is on the take, doing government’s bidding. Poynter allegedly gets funding from
Facebook and the National Endowment for Democracy, which allegedly receives Congressional
funding through the State Department. See SAC at ¶ 98; Opposition at 10. The State Department
also is alleged to provide funding to IFCN and to be tasked with implementing Executive Order
(“EO”) 13747, the “Global Health Security Agenda.” Among many things, the EO seeks to
improve immunization rates. See id. at ¶ 99. CHD next concludes that the State Department/NED
funding was made for Poynter to execute EO 13747 to “induce fact-checker censorship” of CHD.
See id. at ¶ 101. CHD then alleges that Rep. Schiff sits on NED’s advisory board. See id. at ¶ 98.
For CHD, this all again supports a conclusion that Poynter, who is levels removed from Rep.
Schiff and executive orders, is somehow working in concert with government.
3 Rep. Schiff was recently sued by a different group of anti-vaxxers who claimed his 2019 letter to
Facebook (and similar letters to Amazon and Google) rendered them unable to receive vaccine-
related information they sought online. The case was dismissed. Among other things, the court
noted the implausible nature of allegations that Rep. Schiff’s “very generalized public
statements” regarding vaccine misinformation on social media would cause companies to alter
editorial policy or modify their specific treatment of the plaintiff. See Ass’n of Am. Physicians &
Surgeons v. Schiff, No. 20-106 (RC), 2021 WL 354174, at *6 (D. D.C. Feb. 2, 2021).
4 In reality, Poynter has numerous funding sources that CHD ignores. Its major funding sources
are publicly available: https://www.poynter.org/major-funders/. IFCN’s are too:
https://www.poynter.org/international-fact-checking-network-transparency-statement/.
Case 3:20-cv-05787-SI Document 73 Filed 03/05/21 Page 12 of 22
- 8 -
CASE NO.: 3:20-CV-05787-SI
THE POYNTER INSTITUTE FOR MEDIA
STUDIES, INC.’S MOTION TO DISMISS
VERIFIED SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
All told, CHD pleads a conspiracy requiring this Court to make several implausible
connections and assumptions at multiple levels. But arguing such allegations that could be
consistent with a conspiracy to execute the state’s will falls far short of alleging something that is
plausible. Poynter is simply not a state actor and no Bivens claim lies.
No Bivens Claim Lies Against Corporations Like Poynter, No Matter the Grounds
CHD argues that because the Ninth Circuit has recognized First Amendment-based Bivens
claims and it allegedly has no alterative remedies, it is permitted to pursue its Bivens damages
claim against Poynter regardless of the Supreme Court’s express admonition against suing
corporate entities under Bivens. See Opposition at 10-11. CHD is wrong because: (1) Supreme
Court precedent is clear that Bivens claims cannot be brought against a corporation, irrespective of
the alleged nature of the constitutional violation; (2) CHD is not claiming violation of any “well
established” First Amendment right; and (3) Bivens is rarely extended.
CHD is seeking money damages under Count I (see Opposition at 11; SAC at ¶ 304), and
Supreme Court precedent is clear that Bivens is limited to providing a damages remedy against
individual federal officers for constitutional deprivations when no alternative remedy exists. See
Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70-71 (2001). As noted in Poynter’s memorandum,
the Court was explicit that permitting Bivens to be extended to corporate entities would wholly
undermine its purpose of deterring individual action. See Poynter Memo at 10. Further, while
Malesko did discuss that it was not a situation where the plaintiff lacked alternative remedies (thus
further undermining any Bivens claim), it did not hold, as CHD would apparently have this Court
find, that the absence of an adequate alternative legal remedy would then permit a plaintiff to
proceed under Bivens against a corporate entity. See Malesko, 534 U.S. at 72-73. In all
circumstances, and regardless of the nature of the claimed constitutional deprivation, Bivens is
limited to remedies against individual federal officers. Id. at 66.
Case 3:20-cv-05787-SI Document 73 Filed 03/05/21 Page 13 of 22
- 9 -
CASE NO.: 3:20-CV-05787-SI
THE POYNTER INSTITUTE FOR MEDIA
STUDIES, INC.’S MOTION TO DISMISS
VERIFIED SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Yet, CHD argues that because the Ninth Circuit in Boule v. Egbert extended Bivens to
apply to certain First Amendment violations, it is now somehow permitted to pursue Poynter for
money damages. See Opposition at 11. CHD misreads the significance of Boule. Boule filed a
Bivens claim against Egbert, an individual federal border patrol agent. See Boule v. Egbert, 980
F.3d 1309, 1312 (9th Cir. 2020). He alleged that after complaining to Egbert’s superiors about an
immigration check inquiry Egbert initiated on Boule’s business property, Egbert retaliated by,
among other things, requesting the IRS look into Boule’s tax status. Id.
First, the Boule case dealt with the application of Bivens to an individual federal officer,
not a private corporate entity. See id. at 1312-13. It does not interpret Malesko, nor does it ever
cite the case. Second, the Boule court, cognizant of the hesitance of courts to even modestly
extend Bivens to establish new implied rights, permitted a First Amendment-based claim to
proceed because the particular facts of that case set out a “well established” First Amendment
retaliation claim. See id. at 1316. CHD’s claim in this case—that its speech on a private social
media platform is protected by the First Amendment and trumps others’ speech rights—is
anything but well-established. Indeed, as the growing body of case law addressing the issue
establishes, such claims—often in Bivens contexts with courts (including this Court) questioning
imparting state actor status on social media companies—are rejected.5
5 See, e.g., Perez v. LinkedIn Corp., No. 5:20-cv-07238-EJD, 2021 WL 519379 (N.D. Cal. Feb. 5,
2021); Fed. Agency of News LLC v. Facebook, Inc., 432 F. Supp. 3d 1107 (N.D. Cal. 2020);
Prager Univ. v. Google LLC, No. 17-CV-06064-LHK, 2018 WL 1471939 (N.D. Cal. Mar. 26,
2018), aff’d, 951 F.3d 991 (9th Cir. 2020); Wilson v. Twitter, No. 3:20-cv-00054, 2020 WL
3410349 (S.D. W. Va. May 1, 2020), report and recommendation adopted, 2020 WL 3256820
(S.D. W. Va. June 16, 2020); Freedom Watch, Inc. v. Google, Inc., 368 F. Supp. 3d 30 (D. D.C.
2019), aff’d, 816 F. App’x 497 (D.C. Cir. 2020), cert. petition filed, Jan. 2, 2021; Davison v.
Facebook, Inc., 370 F. Supp. 3d 621 (E.D. Va. 2019), per curiam aff’d, 774 F. App’x 162 (4th
Cir. 2019), cert. denied, 140 S. Ct. 1111 (2020).
Case 3:20-cv-05787-SI Document 73 Filed 03/05/21 Page 14 of 22
- 10 -
CASE NO.: 3:20-CV-05787-SI
THE POYNTER INSTITUTE FOR MEDIA
STUDIES, INC.’S MOTION TO DISMISS
VERIFIED SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Finally, because Bivens jurisprudence counsels a limited remedy applicable to few
circumstances, it should not be gratuitously extended, as CHD urges. See Malesko, 534 U.S. at 68-
69. There simply is no Bivens claim here.
B.
The False Advertising Claim Fails Because it is Vague, CHD and Poynter are
Not Competitors, and the PolitiFact Fact-Check is Not Commercial Speech.
CHD’s argument that it has pled a Lanham Act false advertising claim aptly illustrates the
attenuated nature of this lawsuit. It argues that (1) it has plead fraud sufficiently; (2) as non-
profits, CHD and Poynter are competitors because all non-profits seek donor dollars; and (3) a
fact-check of third-party speech about public health matters is commercial speech. See Opposition
at 15-18. CHD is again wrong.
First, CHD has not satisfied the fraud particularity requirements of Rule 9(b). To do so, it
must satisfy “the who, what, when, where, and how” of the claimed fraud. Vess v. Ciba-Geigy
Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003). CHD cannot plead anything more than strained
conspiracy theories. It does not identify a single “consumer” who was “defrauded” by the fact-
check, when that fraud occurred, or how consumers were “defrauded” by a fact-check whose basis
was fully disclosed. This is of course impossible to do when the subject reporting on third-party
Collective Evolution’s headline was deemed a valid critique by Collective Evolution itself. CHD
also cannot specifically allege how the “false” fact-check on the Collective Evolution article led to
any fundraising harm to CHD, or any fundraising boon for Poynter. Fraud allegations cannot rest
in thin air, and CHD has failed to satisfy Rule 9(b).
Second, CHD implausibly argues (but does not allege in the SAC) that it and Poynter are
competitors under the Lanham Act.6 See Opposition at 6, 15. CHD cites Lexmark for the
6 CHD takes another leap by suggesting that “donate” buttons appearing on PolitiFact’s website
are designed to drive donations away from CHD to it. See Opposition at 6. Like most non-profits,
PolitiFact’s public website contains donate buttons just as CHD’s public website contains a
Case 3:20-cv-05787-SI Document 73 Filed 03/05/21 Page 15 of 22
- 11 -
CASE NO.: 3:20-CV-05787-SI
THE POYNTER INSTITUTE FOR MEDIA
STUDIES, INC.’S MOTION TO DISMISS
VERIFIED SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
proposition that one need not be a direct competitor to assert a Lanham Act false advertising
claim. See Opposition at 15. Yet in Lexmark, there was a clear competitive nexus between the
companies that could influence consumer behavior: a printer/toner cartridge company and a
company selling components used in aftermarket to refurbish cartridges. CHD further ignores the
additional Lexmark holding that false “advertising” must have also proximately caused
commercial injury. See Lexmark Int’l, Inc. v. State Control Components, Inc., 572 U.S. 118, 132-
34 (2014) (noting the key inquiry is whether “the harm alleged has a sufficiently close connection
to the conduct the [Lanham Act] prohibits”). CHD’s allegations of alleged harm and its causes fail
Iqbal/Twombly and are speculative and conclusory. See Iqbal, 556 U.S. at 680. They further do
not satisfy the threshold “zone of interests” test set out in Lexmark. See Thermolife Int’l LLC v.
Sparta Nutrition LLC, No. CV-19-01715-PHX-SMB, 2020 WL 248164, at *9 (D. Ariz. Jan. 16,
2020) (dismissing complaint that failed to “connect[] the dots” between the purported false
advertising and alleged harm noting that the “attenuated relationship between Plaintiff and
Defendant's products warrants no inference that a profit gained by Defendant would have
necessarily gone to Plaintiff.”). The mental leaps required to substantiate CHD’s allegations doom
the Lanham Act claim.
The additional case law CHD cites in support of its “competitor” argument is
unremarkable. It seizes on general points of law, grounded in entirely different scenarios: (1) non-
“Support Our Efforts” page and “Donate” links throughout. And similar to recent voter “fraud”
cases, CHD is fundraising off this lawsuit, holding “press conferences” and issuing releases that
include donation solicitations. See, e.g., https://childrenshealthdefense.org/press-release/chd-legal-
team-led-by-robert-f-kennedy-jr-sues-facebook-mark-zuckerberg-and-three-of-facebooks-so-
called-fact-checkers-for-government-sponsored-censorship-false-dispar/, Aug. 18, 2020 (last
visited Feb. 28, 2021); https://childrenshealthdefense.org/news/chd-holds-press-conference-with-
legal-team-and-plaintiff-in-lawsuit-against-facebook-mark-zuckerberg-and-three-of-facebooks-so-
called-fact-checkers/, Aug. 20, 2020 (last visited Feb. 28, 2021).
Case 3:20-cv-05787-SI Document 73 Filed 03/05/21 Page 16 of 22
- 12 -
CASE NO.: 3:20-CV-05787-SI
THE POYNTER INSTITUTE FOR MEDIA
STUDIES, INC.’S MOTION TO DISMISS
VERIFIED SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
profits can acquire trademark rights and sue for infringement and (2) non-profits are not precluded
from suing for damages under the Lanham Act. See Opposition at 16. Similarly, CHD then cites
Camps Newfound/Owatonna, Inc. v. Town of Harrison, Me., 520 U.S. 564 (1997), holding non-
profit activity can be commercial activity for purposes of the dormant commerce clause. See
Opposition at 16. These cites do nothing to support CHD’s claim that Poynter is its competitor.
Finally, CHD argues Poynter’s critique of a third-party’s speech about vaccine
effectiveness on certain coronaviruses is commercial. Poynter does not fully re-argue why this
critique does not qualify as commercial speech (see Poynter Memo at 12-15). It does, however,
highlight how case law cited in the Opposition does not help CHD. Presumably because it
involves a ratings/certification system, CHD cites to the recent Ninth Circuit decision in Ariix. See
Opposition at 16-17; Ariix, LLC v. NutriSearch Corp., No. 19-55343, 2021 WL 221878, at *1-3
(9th Cir. Jan. 22, 2021). CHD focuses on the very different facts of Ariix concerning an alleged
“pay-to-play” certification system where a nutritional supplement company, Ariix, accused the
publisher of a well-known supplement guide of promoting a competitor and refusing to provide
certifications in exchange for direct payments and benefits. See id. Those facts are a far cry from
what CHD alleges here, and it ignores the bigger picture of whether speech is in fact commercial
for purposes of the Lanham Act. For example, citing Bolger v. Youngs Drug Prods. Corp., 463
U.S. 60 (1983), the Ariix court specifically noted that the third Bolger commercial speech factor—
whether a speaker has an economic motivation7—asks whether a speaker “acted primarily out of
economic motivation, not simply whether the speaker had any economic motivation.” Id. at *6
(emphasis in original). It goes further to note that not all economic motivation even qualifies. “A
simple profit motive to sell copies of a publication or to obtain an incidental economic benefit,
7 The third element of a Lanham Act claim—whether speech was made to influence consumers to
buy a defendant’s goods/services—similarly involves pleading plausible economic motivation.
Case 3:20-cv-05787-SI Document 73 Filed 03/05/21 Page 17 of 22
- 13 -
CASE NO.: 3:20-CV-05787-SI
THE POYNTER INSTITUTE FOR MEDIA
STUDIES, INC.’S MOTION TO DISMISS
VERIFIED SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
without more, does not make something commercial speech. Otherwise, virtually any newspaper,
magazine, or book for sale could be considered a commercial publication.”8 Id.
Under both Bolger and the Lanham Act itself, it is facially clear that Poynter’s motivation
was to fact-check the accuracy of a third-party headline, not somehow convince would-be CHD
donors to instead contribute to Poynter. And even crediting such implausible claims, it could never
plausibly be concluded that the primary purpose motivating the fact-check was an economic one.
Count II fails, and this Court should dismiss it with prejudice.
C.
The RICO Count Fails to Plead Predicate Acts and Remaining RICO Elements.
CHD argues it has plausibly pled a civil RICO claim. See Opposition at 12-14. As to
Poynter, CHD focuses primarily on its allegations regarding the “predicate acts” element of a
RICO claim. CHD theorizes that the predicate acts here were actions constituting wire fraud under
18 U.S.C. § 1343, namely, the subject Collective Evolution fact-check and Poynter’s IFCN fact-
checker certifications, which CHD claims are deceptive because these fact-checkers are allegedly
controlled by Facebook. See Opposition at 12. But neither of these qualifies as a RICO “predicate
act” because neither is itself an act of wire fraud. 9 Thus, CHD has failed to allege any plausible
facts to establish all the three elements of wire fraud as to each alleged predicate act: “(1) a
scheme to defraud, (2) use of the wires in furtherance of the scheme and (3) a specific intent to
8 CHD’s later reliance on Hoffman v. Cap. Cities/ABC, Inc., further undermines its position. See
Opposition at 19-20. In Hoffman, the defendant published a magazine article featuring altered
images of celebrities from classic movies, including Dustin Hoffman. See Hoffman, 255 F.3d
1180, 1183 (9th Cir. 2001). Hoffman sued under the Lanham Act, arguing the publication was
commercial speech. Id. The court declined to deem the publication “commercial” even though it
was for-profit, the article may have helped sell copies, and a “shopper’s guide” was printed in the
back. Id. Because it was not commercial speech, actual malice applied. Id. at 1188-89.
9 In its Opposition, CHD cites to a number of paragraphs in the SAC that purportedly allege
predicate acts. But it fails to explain how they constitute wire fraud. For example, it cites to
paragraphs regarding Poynter/IFCN’s alleged receipt of state funding. See Opposition at 12 (citing
SAC ¶¶ 98, 101). Government funding does not constitute wire fraud and is not a predicate act.
Case 3:20-cv-05787-SI Document 73 Filed 03/05/21 Page 18 of 22
- 14 -
CASE NO.: 3:20-CV-05787-SI
THE POYNTER INSTITUTE FOR MEDIA
STUDIES, INC.’S MOTION TO DISMISS
VERIFIED SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
deceive or defraud.” United States v. Garlick, 240 F.3d 789, 792 (9th Cir. 2001). Moreover, CHD
has not alleged anything establishing how Poynter “used the wires” in certifying an organization
under IFCN or receiving government funds in furtherance of the scheme. Instead, it takes random,
unrelated facts, trying to patch together a Frankenstein-like assertion that the conspiracy itself is
why the fact-check and the IFCN certification constitute predicate acts.10
CHD further conclusively posits that the scheme was to “defund and damage CHD,”
reviving its unpled argument that CHD and Poynter are somehow funding “competitors” and
Poynter intended to steal CHD donations. See Opposition at 12-14. As noted earlier, CHD has not
plausibly pled any such allegations and only suggests them through argument now in its
Opposition. Even so, CHD cannot and, consequently, has not alleged Poynter actually obtained
any money or property, a fatal deficiency. See Scheidler v. Nat’l Org. for Women, Inc., 537 U.S.
393, 404-05, 411 (2003) (even if a defendant sought to deprive plaintiff of a property interest and
succeeded in shutting down plaintiff’s business, RICO claim failed because defendant obtained no
money or property from plaintiff); Kelly v. United States, 140 S. Ct. 1565, 1571 (2020) (wire fraud
statute requires a showing that defendant in fact obtained money or property from the person
deceived to “prevent[] these statutes from criminalizing all acts of dishonesty.”). Thus, even if
somehow the SAC could plausibly allege an intent to deceive through Poynter’s “false” rating or
IFCN certification, the RICO claim would still fail because Poynter has no CHD property.
CHD also cites a single, non-binding case as support for the proposition that a wire fraud
claim is properly pled where it alleges the defendant caused money to go to the defendant’s
“associates.” See Opposition at 14. In United States v. Rezko, the court determined that the
10 CHD cites Feminist Women’s Health Ctr. v. Roberts, No. C86-161Z, 1989 WL 56017, at *7
(W.D. Wash. May 5, 1989) (see Opposition at 19), but there the court rejected an attempt to use
the underlying conspiracy to buttress its statements establishing the predicate acts. Id.
Case 3:20-cv-05787-SI Document 73 Filed 03/05/21 Page 19 of 22
- 15 -
CASE NO.: 3:20-CV-05787-SI
THE POYNTER INSTITUTE FOR MEDIA
STUDIES, INC.’S MOTION TO DISMISS
VERIFIED SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
elements of wire fraud had been sufficiently pled in the indictment, but its analysis of financial
gain pertained, not to wire fraud, but to whether the indictment sufficiently alleged a “private
gain” under the Honest Services Act, if the defendant’s associates received a portion of diverted
funds. See No. 05 CR 691, 2007 WL 2904014, at *5 (N.D. Ill. Oct. 2, 2007). Clearly, that federal
act is not at issue, nor has CHD alleged any such diversion of funds. Rezko in fact distinguished a
case in which the court held an indictment was not adequately pled where it failed to allege the
defendant had knowledge of a kick-back scheme. See Rezko, 2007 WL 2904014 at *4. All told,
CHD has not plausibly pled anything establishing willful participation in a predicate act of fraud.
D.
The Declaratory Relief Would Unconstitutionally Restrain Protected Speech.
CHD’s request for injunctive/declaratory relief asks this Court to choose sides in the public
debate on vaccines. CHD admits it seeks a prior restraint prohibiting Poynter from performing
future fact-checks on its posts. See Opposition at 20-21. But the Supreme Court is resolute: prior
restraints are the “most serious and the least tolerable infringement on First Amendment rights.”
Neb. Press Ass’n v. Stuart, 427 U.S. 539, 558-59 (1976) (an “injunction operates, not to redress
alleged private wrongs, but to suppress, on the basis of previous publications, distribution” of
future speech). CHD argues its request is “narrowly-tailored,” citing a single, inapplicable case,
Planned Parenthood Fed’n of Am, Inc. v. Ctr. For Med. Progress, No. 16-cv-00236-WHO, 2020
WL 2065700 (N.D. Cal. Apr. 29, 2020). See Opposition at 21. That case did not involve First
Amendment speech rights, but did enjoin trespass, non-consensual recordings by anti-abortion
activists, and misrepresenting identities. See id. at *17-23. In short, CHD wants this Court to
elevate its speech and suppress Poynter’s. It must reject that invitation.
IV.
CONCLUSION
For the foregoing reasons, and for those in Poynter’s Memo, Poynter’s Motion to Dismiss
the SAC should be granted with prejudice.
Case 3:20-cv-05787-SI Document 73 Filed 03/05/21 Page 20 of 22
- 16 -
CASE NO.: 3:20-CV-05787-SI
THE POYNTER INSTITUTE FOR MEDIA
STUDIES, INC.’S MOTION TO DISMISS
VERIFIED SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Dated: March 5, 2021
JASSY VICK CAROLAN LLP
By: /s/ Kevin L. Vick
KEVIN L. VICK
THOMAS & LOCICERO PL
By: /s/ Carol Jean LoCicero
CAROL JEAN LOCICERO
Attorneys for Defendant, The Poynter Institute
for Media Studies, Inc.
Case 3:20-cv-05787-SI Document 73 Filed 03/05/21 Page 21 of 22
- 17 -
CASE NO.: 3:20-CV-05787-SI
THE POYNTER INSTITUTE FOR MEDIA
STUDIES, INC.’S REPLY MEMORANDUM IN
SUPPORT OF ITS MOTION TO DISMISS
VERIFIED SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
SIGNATURE ATTESTATION
I am the ECF User whose identification and password are being used to file the foregoing.
Pursuant to Civil Local Rule 5-1(i), I hereby attest that the other signatures have concurred in this
filing.
CERTIFICATE OF SERVICE
I hereby certify that on March 5, 2021, I electronically filed the above document with the
Clerk of the Court using CM/ECF which will send electronic notification of such filing to all
registered counsel.
Dated: March 5, 2021
By:
/s/ Kevin L. Vick
Kevin L. Vick
Dated: March 5, 2021
By:
/s/ Kevin L. Vick
Kevin L. Vick
Case 3:20-cv-05787-SI Document 73 Filed 03/05/21 Page 22 of 22