1 Plaintiff’s Motion to Supplement — Children's Health Defense v. Facebook, Inc., et al.

Source document: 1 Plaintiff’s Motion to Supplement — Children's Health Defense v. Facebook, Inc., et al.; document type: Motion (for leave to file supplemental pleading, Fed. R. Civ. P. 15(d)).

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Plaintiff’s Motion to Supplement

the Second Amended Complaint
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
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ROGER I. TEICH
California State Bar No. 147076
290 Nevada Street
San Francisco, CA 94110
Telephone:  (415) 948-0045
E-Mail Address:  rteich@juno.com

ROBERT F. KENNEDY, JR.
MARY HOLLAND
Children’s Health Defense
1227 North Peachtree Parkway, Suite 202
Peachtree City, GA 30269
Telephone:  (917) 743-3868
E-Mail Address:  mary.holland@childrenshealthdefense.org

Attorneys for Plaintiff
CHILDREN’S HEALTH DEFENSE

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
CHILDREN’S HEALTH DEFENSE,

Plaintiff,

v.

FACEBOOK, INC., et al.,

Defendants.
Case No. 3:20-cv-05787-SI

PLAINTIFF’S MOTION PURSUANT TO
FED. R. CIV. P. 15(d) TO SUPPLEMENT
ITS SECOND AMENDED COMPLAINT;
RITA SHREFFLER DECLARATION AND
EXHIBITS THERETO

F.R.C.P 15(d)

Hearing Date: April 16, 2021
Hearing Time: 10:00 a.m.

Case 3:20-cv-05787-SI   Document 76   Filed 03/08/21   Page 1 of 6

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Plaintiff’s Motion to Supplement

the Second Amended Complaint
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
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NOTICE OF MOTION TO SUPPLEMENT THE SECOND AMENDED COMPLAINT
PLEASE TAKE NOTICE THAT Plaintiff Children’s Health Defense’s (“CHD”) hereby moves
for leave to file a pleading supplementing its Second Amended Complaint (“SAC”) pursuant to Fed. R.
Civ. P. 15(d).
STATEMENT OF REQUESTED RELIEF
Subsequent to the filing of CHD’s second amended complaint (“SAC”) and to the filing of
CHD’s opposition to Defendants’ Motions to Dismiss, Defendants Facebook and Zuckerberg have
engaged in significant further acts of retaliation and censorship against CHD and in significant further
acts of joint participation with the federal government to suppress CHD’s constitutionally protected
speech.  Because these new facts are material to this case, CHD respectfully requests, pursuant to Fed.
R. Civ. P. 15(d), permission to supplement the pleadings.  In addition, by separate motion pursuant to
Civil L.R. 6-3(d), CHD is requesting a shortening of time so that this Rule 15(d) motion may be heard
along with Defendants’ Motions to Dismiss at the hearing already scheduled on March 23, 2021, at
11:00 a.m., in Courtroom 1 of the U.S. District Court for the Northern District of California. The Court
may in its discretion set an expedited briefing schedule by which Defendants’ opposition to this motion
is due by March 17, 2021, and Plaintiff’s reply, if any, by March 19, 2021.

MEMORANDUM OF POINTS AND AUTHORITIES
FACTUAL STATEMENT
On December 21, 2020, Defendants filed their Motions to Dismiss Plaintiff CHD’s Second
Amended Complaint. (Dkts. ##68-69.) On February 5, 2021, CHD filed its Oppositions thereto. (Dkts.
##70-71.)   As this Court is aware, CHD’s allegations include claims that Defendants have violated
CHD’s free speech rights under the First Amendment; retaliated against CHD for bringing this action;
repeatedly made false assertions that CHD posted false information on its Facebook page, while
directing users to CHD’s direct competitors; and colluded with the federal government in the above.  In
recent weeks and days, Defendants Facebook and Zuckerberg have furthered—indeed escalated—all of
this conduct. Specifically, as alleged in CHD’s supplemental pleading (Shreffler Dec. Exh. 1):
 On February 10, 2021, five days after CHD filed its Opposition to Defendants’ Motions to
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Plaintiff’s Motion to Supplement

the Second Amended Complaint
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Dismiss, Facebook terminated the Instagram account of Robert F. Kennedy, Jr., CHD’s
founder and chairman, which at that time had over 800,000 followers. (Ex. 2.)1
 On or about February 11, 2021, Facebook issued a widely-circulated press statement
purporting to explain its cancelation of Mr. Kennedy’s Instagram account by falsely stating
that Mr. Kennedy has “repeatedly shared debunked claims about the coronavirus or
vaccines” on Facebook platforms. (Id.)
 On or about February 19, Defendant Facebook admitted that, just as CHD has claimed
throughout these proceedings, it is working hand in hand with the federal government to
censor constitutionally protected vaccine-related speech.  In particular:
 On or about February 19, a Facebook spokesperson confirmed that “the company has reached
out to the White House to offer ‘any assistance we can provide’” to the federal government’s
effort to block what it describes as the “spread” of vaccine “misinformation” online.  Nandita
Bose, Exclusive: White House working with Facebook and Twitter to tackle anti-vaxxers,
REUTERS (Feb. 20, 2021), https://www.reuters.com/article/health-coronavirus-white-house-
exclusive-idINKBN2AK0HP. (Ex. 3.)
 At the same time, the White House acknowledged its “direct engagement” with social media
companies including Facebook in “clamping down” on speech concerning vaccines that the
government seeks to suppress.  Id.
 These revelations marked the first acknowledgment by Big Tech companies such as
Facebook and by government sources that “[federal] officials are directly engaged with
Silicon Valley in censoring social media users.”  Jesse O’Neil, White House working with
social media giants to silence anti-vaxxers, NEW YORK POST (Feb. 19, 2021) (emphasis
added).
 As part of this joint, concerted action, the White House is “specifically pushing” Facebook,
Twitter, and Google to suppress or prevent from reaching wide audiences, or both, “chatter
that deviates from officially distributed COVID-19 information.”  Id.

1
Instagram is a Facebook product.
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Plaintiff’s Motion to Supplement

the Second Amended Complaint
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 This joint, concerted scheme to censor constitutionally protected speech on medical issues of
supreme public concern is confirmed by new reporting that the President’s chief of staff, Ron
Klain, had previously said “the administration will try to work with Silicon Valley on the
issue.” Bose, supra.
 On March 5, 2021, Facebook published a “warning label” on a third party user’s Facebook
account which included the message: “Unfollow Children’s Health Defense.” (Ex. 6.) The
warning label also implies that CHD is promulgating false and harmful information on its
Facebook page, encourages users to visit the World Health Organization’s COVID pages for
accurate information, and allows users to stop seeing posts from CHD by clicking on an
accompanying icon.  Id.
 The same day, March 5, 2021, Defendants filed their Replies in support of their Motions to
Dismiss (Dkts. ##73-74), making no mention of any of the events and circumstances
described above.
 Additionally, on January 21, 2021, President Joseph Biden issued an Executive Order on
Ensuring a Data-Driven Response to COVID-19. (See https://www.whitehouse.gov/briefing-
room/presidential-actions/2021/01/21/executive-order-ensuring-a-data-driven-response-to-
covid-19-and-future-high-consequence-public-health-threats.)  The Executive Order directed
“the heads of all executive departments and agencies” to assist in an effort “to deter the
spread of misinformation and disinformation” related to COVID-19. Id.
 Finally, on February 19, 2021, Dr. Rochelle Walensky, Director of the Centers for Disease
Control and Prevention (“CDC”), publicly stated: “I want to be sure that you know the facts
and not the myths about . . . vaccine safety. The fact is they are safe and they will save lives.
And that is why we are committed to working with state and local public health partners, as
well as partners in the private sector, to support getting people vaccinated and quickly and as
safely as possible.” Press Briefing by White House COVID-19 Response Team and Public
Health Officials (https://www.whitehouse.gov/briefing-room/press-briefings/2021/02/19/
press-briefing-by-white-house-covid-19-response-team-and-public-health-officials-5)
(emphasis added).
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Plaintiff’s Motion to Supplement

the Second Amended Complaint
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
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ARGUMENT
Federal Rule of Civil Procedure 15(d) “permit[s] a party to serve a supplemental pleading setting
out any transaction, occurrence, or event that happened after the date of the pleading to be
supplemented.” While a motion pursuant to Rule 15(d) is “addressed to the sound discretion of the
District Court,” United States v. Reiten, 313 F.2d 673, 675 (9th Cir. 1963), “leave to permit
supplemental pleading is ‘favored.’” Verinata Health, Inc. v. Sequenom, Inc., No. C 12-00865 SI, 2014
U.S. Dist. Lexis 67221 at * 6 (N.D. Cal. May 14, 2014) (Illston, J.) (quoting Planned Parenthood of
So. Ariz. v. Neely, 130 F.3d 400, 402 (9th Cir. 1997)).  In general, Rule 15(d) motions “should be
granted ‘[u]nless undue prejudice to the opposing party will result.’”  LaSalvia v. United Dairymen of
Ariz., 804 F.2d 1113, 1119 (9th Cir. 1986) (citation omitted).
The allegations set forth in a Rule 15(d) supplemental pleading need not arise from the same
“transaction” or facts set forth in the original pleading; instead, all that is required is a “relationship”
between the subject of the original pleading and the subsequently occurring facts.  Keith v. Volpe, 858
F.2d 467, 474 (9th Cir. 1988) (“While some relationship must exist between the newly alleged matters
and the subject of the original action, they need not all arise out of the same transaction.”); Verinata
Health, Inc., supra at * 6.
The new facts alleged in CHD’s supplemental pleading readily pass this test, bearing a direct
relationship to the claims made in the SAC.  The new facts: (1) add to and make more plausible CHD’s
original allegations of joint participatory action by Facebook in concert with the federal government to
censor so-called “vaccine misinformation”; (2) constitute additional acts in furtherance of Defendants’
efforts, alleged in detail in the SAC, to suppress CHD’s constitutionally protected speech; (3) constitute
additional acts of retaliation by Defendants against CHD, both directly and indirectly, by attacking its
founder and chairman and preventing him from communicating to his 800,000 Instagram followers, and
warning third-party users to “unfollow CHD”; and (4) constitute further efforts to falsely disparage CHD
content and to direct Facebook users toward a direct CHD competitor (here, the World Health
Organization, which competes with CHD for philanthropic dollars from donors interested in supporting
the publication of truthful vaccine information).  In all of these ways, the new facts are directly related to
“the subject of the original action.”  Keith, 858 F.2d at 474.
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Plaintiff’s Motion to Supplement

the Second Amended Complaint
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
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That the new matter involves not only Facebook and CHD, but also Instagram and Mr. Kennedy,
cannot and does not alter the fact that the new matter bears a direct relationship to the subject of this
case. Facebook owns Instagram, and Mr. Kennedy is CHD’s founder and chairman.  An attack on Mr.
Kennedy’s vaccine-related posts is an attack on CHD’s credibility and reliability.  Moreover, Mr.
Kennedy’s Instagram account and CHD’s Facebook page are often cross-linked and cross-accessed;
indeed, at least one of the falsely “fact-checked” posts described in the SAC originated on Mr.
Kennedy’s Instagram account. (See, e.g., SAC ¶¶ 68-69, 125.)  And Facebook itself, not Instagram,
issued the press statement, which purports to explain why it removed Mr. Kennedy’s Instagram account.
Most importantly, the new matter confirms and adds to the already-alleged collusion between Facebook
(not Instagram) and the federal government to suppress disfavored vaccine-related speech, an allegation
at the heart of the SAC.
Nor can Defendants claim surprise or prejudice.  The new facts involve actions taken by
Defendants themselves and are thus within Defendants’ knowledge.  Defendants have voluntarily
chosen to escalate their targeting and suppression of CHD and its chairman.  There can be no
“prejudice” to Defendants in the legal sense when their new acts furthering the very same illegal courses
of conduct originally pleaded are brought before the Court.
CONCLUSION

Accordingly, for the reasons stated above, Plaintiff CHD respectfully requests that the Court
grant its motion to supplement the pleadings pursuant to Fed. R. Civ. P. Rule 15(d).
Dated:  March 8, 2021

Respectfully submitted,

ROBERT F. KENNEDY, JR.
Founder and Chairman, Children’s Health Defense

MARY S. HOLLAND
General Counsel, Children’s Health Defense

ROGER I. TEICH

Counsel for Plaintiff Children’s Health Defense
Case 3:20-cv-05787-SI   Document 76   Filed 03/08/21   Page 6 of 6

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