Plaintiff’S Motion To

Source document: Plaintiff’S Motion To; document type: Opposition brief (to administrative motion to shorten time).

Full text

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
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

SONAL N. MEHTA (SBN: 222086)
sonal.mehta@wilmerhale.com
WILMER CUTLER PICKERING
HALE AND DORR LLP
2600 El Camino Real, Suite 400
Palo Alto, CA 94306
Telephone:
(650) 858-6000
Facsimile:
(650) 858-6100
ARI HOLTZBLATT (pro hac vice)
ari.holtzblatt@wilmerhale.com
MOLLY M. JENNINGS (pro hac vice)
molly.jennings@wilmerhale.com
ALLISON SCHULTZ (pro hac vice)
allison.schultz@wilmerhale.com
WILMER CUTLER PICKERING
  HALE AND DORR LLP
1875 Pennsylvania Avenue
Washington, D.C. 20006
Telephone:   (202) 663-6000
Facsimile:
(202) 663-6363
Attorneys for Defendants
FACEBOOK, INC. AND MARK ZUCKERBERG
CHILDREN’S HEALTH DEFENSE,
Plaintiff,
v.
FACEBOOK, INC., ET AL.,
Defendants.

Case No. 3:20-cv-05787-SI
FACEBOOK’S OPPOSITION TO
PLAINTIFF’S MOTION TO
SHORTEN TIME TO HEAR ITS
MOTION FOR LEAVE TO
SUPPLEMENT THE SECOND
AMENDED COMPLAINT

Hon. Susan Illston

Case 3:20-cv-05787-SI   Document 77   Filed 03/11/21   Page 1 of 6

CASE NO. 3:20-CV-05787-SI

FACEBOOK’S OPPOSITION TO PL. MOTION TO
SHORTEN TIME
- 2 -
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 Court should deny the motion by Plaintiff Children’s Health Defense (“CHD”)
to shorten the notice requirements and briefing schedule for its motion to amend its
complaint for the third time.
CHD’s eleventh-hour request to “supplement” the Second Amended Complaint
(“SAC”) three days after the completion of briefing on Defendants’ motion to dismiss is the
latest in a series of tactical moves by CHD to try to shift the goalposts on Defendants—and,
importantly, the Court—on the threshold question of whether CHD’s claims can pass muster
under Federal Rule of Civil Procedure Rule 12.
• CHD filed its initial Complaint in this case over six months ago (ECF No. 1).  After
a lengthy negotiation in which CHD insisted on an extended period to oppose the
contemplated motions to dismiss and even motion practice, ECF Nos. 28, 43, a
schedule was set for briefing and hearing on the Defendants’ motions to dismiss,
which were filed on October 23, 2020.  ECF No. 56.
• Rather than oppose the motion on the negotiated schedule, CHD sought to file a First
Amended Complaint (“FAC”).  After yet more negotiation, the parties reached a
stipulation to set a briefing schedule on the amended pleading.  ECF No. 62.  The
new Complaint referenced a significant amount of purportedly “new” information
that was actually equally available to CHD at the time that CHD filed its original
Complaint, but that CHD had opted not to include in its original Complaint.  See,
e.g., ECF No. 64 at ¶¶ 87-108 (allegations concerning an alleged “agency”
relationship between Facebook and its third-party fact checkers); id. at ¶ 34
(allegations concerning the reliability of articles on CHD’s Facebook page); id. at ¶¶
40-46 (allegations concerning the relationship between the CDC and the CDC
Foundation).  Defendants began work on their motions to dismiss, which were due
on December 21, 2020.
• Then, on December 4, 2020, CHD filed a motion for leave to file a Second Amended
Complaint.  ECF No. 65.  Yet again, though CHD claimed to be amending its earlier
pleading in order to include “new” information, many of the allegations that CHD
Case 3:20-cv-05787-SI   Document 77   Filed 03/11/21   Page 2 of 6

CASE NO. 3:20-CV-05787-SI

FACEBOOK’S OPPOSITION TO PL. MOTION TO
SHORTEN TIME
- 3 -
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
sought to include concerned information that should have been known by CHD when
it filed its initial Complaint four months earlier.  See, e.g., ECF No. 65 at 2 and ECF
No. 65-1 at ¶¶ 98-100 (describing allegations concerning alleged U.S. government
funding for the Poynter Institute for Media Studies under a 2016 executive order);
ECF No. 65 at 3 and ECF No. 65-1 at ¶ 103 (describing the 1996 “InfraGard”
partnership between the FBI and the private sector and a 2019 article concerning the
anti-vaccine movement).  Although there was no justification for CHD’s failure to
raise these allegations in either of its earlier pleadings, Defendants agreed not to
oppose CHD’s motion for leave to avoid burdening the Court with simultaneous
briefing on CHD’s motion for leave to file the SAC and Defendants’ motions to
dismiss the FAC.  ECF No. 66.
At long last, briefing on the motion to dismiss the SAC concluded:  Defendants filed
their motions to dismiss on December 21, 2020,  ECF No. 69; CHD filed its oppositions on
February 5, 2021, ECF No. 71; and Defendants filed their reply briefs on March 5, 2021,
ECF No. 74. But the very next business day after Defendants filed their reply, CHD advised
Defendants for the first time that it would seek to “supplement” its pleading with new
allegations.  This proposed “supplement” seeks to add allegations to the pleadings that CHD
knew or should have known earlier.  All but one of the new allegations concern events that
occurred in February 2021,1 yet CHD waited until March 8, 2021 to raise the proposed
“supplement.”  See ECF No. 75 at 3.  And now, just two weeks before the hearing, CHD
asks the Defendants and the Court to consider these new allegations—and to do so on an
expedited schedule, no less.

1
The sole allegation concerning an event that occurred in March relates to a third-
party informing CHD of a Facebook “warning label” that referred to CHD’s promulgation
of false information.  ECF No. 75 at 3; see also Ex. 6 to ECF No. 67-1.  That allegation
relates entirely to content on another individual’s Facebook page, not CHD’s Facebook
page.  And to the extent that it has any relevance to CHD’s claims, it does not amount to
“new” information, as the crux of CHD’s complaint concerns “warning” labels that were
adhered to the content it posted on Facebook.  See, e.g., SAC at ¶ 1.
Case 3:20-cv-05787-SI   Document 77   Filed 03/11/21   Page 3 of 6

CASE NO. 3:20-CV-05787-SI

FACEBOOK’S OPPOSITION TO PL. MOTION TO
SHORTEN TIME
- 4 -
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
Given this history, it is perhaps little surprise that CHD has fallen short of the
showing necessary to shorten time under any of the three elements required by Local Rule
6-3.2  The sole reason CHD provides for shortening the briefing and hearing schedule on its
motion to supplement its SAC is that doing so would allow the Court to hear CHD’s new
motion on March 23, 2021, during the hearing currently scheduled for the Defendants’
motion to dismiss the SAC.  ECF No. 75 at 2.  There is no need to do so.  The motion to
dismiss the SAC is fully briefed and ripe for a hearing.  CHD has informed the Court that it
believes the “supplement,” even if it were to be permitted, would not moot the pending
motion.  Mehta Decl. ¶ 3.  And as Facebook will demonstrate in its opposition to CHD’s
motion for leave, the “supplement” should be rejected on multiple grounds, including that it
would be futile because CHD’s latest round of proposed amendments still cannot cure the
fundamental defects in CHD’s theories and because counsel for CHD has conceded that at
least one of the proposed new allegations is expected to be the basis of a separate lawsuit
brought by CHD’s Chairman.  Mehta Decl. ¶ 2.  Of course, to the extent that the Court
desires to hear CHD’s motion and Defendants’ motions to dismiss at the same time, it can
postpone the hearing on the motions to dismiss until CHD’s motion is fully briefed under a
normal briefing schedule—without any shortening of time.
Either way, CHD has not—and cannot—identify “the substantial harm or prejudice
that would occur if the Court did not change the time,” as Local Rule 6-3 requires.  To the
extent the Court wishes to delay the hearing on Defendants’ motions to dismiss until it can
consider whether to permit CHD’s proposed supplement, that modest delay stems from
CHD’s own delay in proposing the supplement.  CHD made the tactical decision to hold the
proposed supplement until after Defendants filed their reply briefs, and it cannot claim to be

2
CHD made little effort to obtain a stipulation shortening the briefing schedule as
required under Local Rule 6-3.  It emailed counsel for Facebook at 11:40 am on March 8,
2021 to ask for consent to shortening time on an undefined “supplement” to its pleading
(without any notice as to what the supplement would include), and gave Facebook less than
four hours to respond on whether it would stipulate to the schedule proposed.  ECF No. 75-1
at 2.
Case 3:20-cv-05787-SI   Document 77   Filed 03/11/21   Page 4 of 6

CASE NO. 3:20-CV-05787-SI

FACEBOOK’S OPPOSITION TO PL. MOTION TO
SHORTEN TIME
- 5 -
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
prejudiced from the consequences of that decision.  That alone is sufficient grounds for
denying CHD’s motion.

March 11, 2021

Respectfully Submitted,
/s/
Sonal N. Mehta

SONAL N. MEHTA (SBN: 222086)
sonal.mehta@wilmerhale.com
WILMER CUTLER PICKERING
HALE AND DORR LLP
2600 El Camino Real, Suite 400
Palo Alto, CA 94306
Telephone:
(650) 858-6000
Facsimile:
(650) 858-6100

ARI HOLTZBLATT (pro hac vice)
ari.holtzblatt@wilmerhale.com
MOLLY M. JENNINGS (pro hac vice)
molly.jennings@wilmerhale.com
ALLISON SCHULTZ (pro hac vice)
allison.schultz@wilmerhale.com
WILMER CUTLER PICKERING
   HALE AND DORR LLP
1875 Pennsylvania Avenue
Washington, D.C. 20006
Telephone:   (202) 663-6000
Facsimile:
(202) 663-6363

Attorneys for Defendants Facebook, Inc. and
Mark Zuckerberg

.
Case 3:20-cv-05787-SI   Document 77   Filed 03/11/21   Page 5 of 6

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
CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the above and
foregoing document has been served on March 11, 2021, to all counsel of record who are
deemed to have consented to electronic service via the Court’s CM/ECF system.

/s/      Sonal N. Mehta

   Sonal N. Mehta

Case 3:20-cv-05787-SI   Document 77   Filed 03/11/21   Page 6 of 6

File and source

File

gov.uscourts.cand.364478.77.0.pdf

Size

192,039 bytes

SHA-256

5cee4257ebe3bdd6f6fd6461e5fa09e4240eb3f11cddb0ed6ef5c4b791ffa48d

Our copy

gov.uscourts.cand.364478.77.0.pdf

Original

archive.org