Plaintiff’s Reply ISO Motion to Supplement

Source document: Plaintiff’s Reply ISO Motion to Supplement; document type: Reply brief (in support of Rule 15(d) motion to supplement).

Full text

Plaintiff’s Reply ISO Motion to Supplement

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 REPLY IN SUPPORT OF
MOTION TO SUPPLEMENT SECOND
AMENDED COMPLAINT

F.R.C.P 15(d)

Hon. Susan Illston
Courtroom 1 – 17th Floor
Date: May 5, 2021
Time: 10:30 a.m.

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Plaintiff’s Reply ISO Motion to Supplement

Second Amended Complaint
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TABLE OF CONTENTS
Page #
TABLE OF AUTHORITIES ......................................................................................................................ii
MEMORANDUM OF POINTS AND AUTHORITIES ............................................................................ 1
I.
OVERVIEW ....................................................................................................................... 1
II.
CHD HAS ACTED IN GOOD FAITH AND WITHOUT PREJUDICE ........................... 2
III.
PLAINTIFF’S SUPPLEMENT IS NOT FUTILE .............................................................. 5
A.
Defendants Ignore Common Sense and Rule 12(b)(6) Interpretative Canons
in Assessing CHD’s “Federal Actor” Allegations .................................................. 5
B.
Injury to CHD Arising From Mr. Kennedy’s Instagram Termination.................. 10
C.
Injury to CHD Arising From Facebook’s Third-Party User Warnings ................ 13
D.
The Supplement Supports CHD’s Allegations of Cognizable RICO Injury ........ 15
IV.
CONCLUSION ................................................................................................................. 15

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Plaintiff’s Reply ISO Motion to Supplement

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TABLE OF AUTHORITIES

Federal Cases
Adickes v. S. H. Kress & Co.,
398 U.S. 144 (1970) ...........................................................................................................................6, 7
Adult Video Ass’n v. Barr,
960 F.2d 781 (9th Cir. 1992) ...............................................................................................................12
Adult Video Ass’n v. Reno,
41 F.3d 503 (9th Cir. 1994) .................................................................................................................12
Albert v. Embassy of Music GMBH,
2020 U.S. Dist. LEXIS 132657 (N.D. Cal. July 27, 2020) ....................................................................4
Alpha Energy Savers, Inc. v. Hansen,
381 F.3d 917 (9th Cir. 2004) ...............................................................................................................12
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ...............................................................................................................................5
Bastidas v. Good Samaritan Hosp. LP,
2016 U.S. Dist. LEXIS 33405 (N.D. Cal. 2016) .................................................................................13
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) ...............................................................................................................................5
Blum v. Yaretsky,
457 U.S. 991 (1982) ...............................................................................................................................6
Brown v. Board of Education,
347 U. S. 483 (1954) ..............................................................................................................................6
Burton v. Wilminton Parking Auth.,
365 U.S. 715 (1961) ...............................................................................................................................6
Circle Click Media LLC v. Regus Mgmt. Grp. LLC,
2016 U.S. Dist. LEXIS 140002 (N.D. Cal. Oct. 7, 2016) ......................................................................3
Coalition of Clergy, Lawyers & Professors v. Bush,
310 F.3d 1153 (9th Cir. 2002) .............................................................................................................11
Coszalter v. City of Salem,
320 F.3d 968 (9th Cir. 2003) ...............................................................................................................12
Eminence Capital, LLC v. Aspeon, Inc.,
316 F.3d 1048 (9th Cir. 2003) ...............................................................................................................4
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Plaintiff’s Reply ISO Motion to Supplement

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Evans v. Valero Energy Corp.,
No. CV F 07-0130, 2007 U.S. Dist. Lexis 21402 (E.D. Cal. Mar. 6, 2007) ..........................................6
Fed. Agency of News LLC v. Facebook, Inc.,
432 F. Supp. 3d 1107 (N.D. Cal. 2020) ...........................................................................................9, 10
Foman v. Davis,
371 U.S. 178 (1962) ...........................................................................................................................2, 3
Godinez ex rel. Godinez v. City of Chicago,
2019 U.S. Dist. LEXIS 187994 (N.D. Ill. 2019) .................................................................................13
Hang On, Inc. v. City of Arlington,
65 F.3d 1248 (5th Cir. 1995) ...............................................................................................................12
Hartman v. Gilead Scis., Inc. (In re Gilead Scis. Sec. Litig.),
536 F.3d 1049 (9th Cir. 2008) ...............................................................................................................6
Hunt v. Cromartie,
526 U.S. 541 (1999) .............................................................................................................................13
Keith v. Volpe,
858 F.2d 467 (9th Cir. 1988) ...........................................................................................................4, 12
Keyser v. Sacramento City Unified Sch. Dist.,
265 F.3d 741 (9th Cir. 2001) ...............................................................................................................12
Louisiana Comm’n for Needy Children v. Poindexter,
393 U.S. 17 (1968) ...............................................................................................................................11
Miller v. Rykoff-Sexton, Inc.,
845 F.2d 209 (9th Cir. 1988) .................................................................................................................5
Pasquantino v. United States,
544 U.S. 349 (2005) .............................................................................................................................15
Planned Parenthood of Southern Ariz. v. Neely,
130 F.3d 400 (9th Cir. 1997) .....................................................................................................4, 11, 12
Poindexter v. Louisiana Fin. Assistance Comm’n,
296 F. Supp. 686 (E.D. La.) .................................................................................................................11
Reno v. Adult Video Ass’n,
509 U.S. 917 (1993) .............................................................................................................................12
S.O.C., Inc. v. County of Clark,
152 F.3d 1136 (9th Cir. 1998) .............................................................................................................12
Sorosky v. Burroughs Corp.,
826 F.2d 794 (9th Cir. 1987) .................................................................................................................3
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Plaintiff’s Reply ISO Motion to Supplement

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Ulrich v. City & County of San Francisco,
308 F.3d 968 (9th Cir. 2002) ...............................................................................................................12
United Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n,
531 U.S. 288 (2001) ...............................................................................................................................1
United States v. Avenatti,
432 F. Supp. 3d 354 (S.D.N.Y. 2020)..................................................................................................15
United States v. George,
477 F.2d 508 (7th Cir. 1973) ...............................................................................................................15
United States v. Louderman,
576 F.2d 1383 (9th Cir. 1978) .............................................................................................................15
United States v. Menendez,
132 F. Supp. 3d 635 (D.N.J. 2015) ......................................................................................................15
United States v. Siegelman,
640 F.3d 1159 (11th Cir. 2011) ...........................................................................................................15
United States v. Sorich,
523 F.3d 702 (7th Cir. 2008) ...............................................................................................................15
Yartzoff v. Thomas,
809 F.2d 1371 (9th Cir. 1987) .............................................................................................................13
United States Constitution
First Amendment .......................................................................................................................2, 11, 12
Federal Statutes
47 U.S.C. § 230 ......................................................................................................................................6
42 U.S.C. § 1983 ....................................................................................................................................7
Federal Rules of Civil Procedure
Rule 12 ...................................................................................................................................................2
Rule 12(b)(6) ..............................................................................................................................3, 4, 5, 9
Rule 15(a)...............................................................................................................................................2
Rule 15(a)(1)(B).....................................................................................................................................2
Rule 15(a)(2) ..........................................................................................................................................2
Rule 15(d) ................................................................................................................................ 1, passim
Rule 16 ...................................................................................................................................................4
Rule 42(a).............................................................................................................................................11

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Plaintiff’s Reply ISO Motion to Supplement

Second Amended Complaint
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Federal Rules of Evidence
Rule 201(b)(2) ........................................................................................................................................8
Rule 408 .................................................................................................................................................4
Rule 408(b) ............................................................................................................................................4
Civil Local Rules
Rule 6-1(b) .............................................................................................................................................4
Other Authorities
Adickes v. S. H. Kress & Company, Oyez,
https://www.oyez.org/cases/1969/79 (last visited Mar 29, 2021)..........................................................7
Editorial Board, Congress Summons its Speech Regulators, WALL STREET JOURNAL
(Mar. 26, 2021),
https://www.wsj.com/articles/congress-summons-its-speech-regulators-
11616711928?mod=opinion_lead_pos3 ................................................................................................9
“Event 201” pandemic war-gaming exercise,
 https://www.centerforhealthsecurity.org/event201/media ....................................................................8
Jesse O’Neil, White House working with social media giants to silence anti-vaxxers, NEW
YORK POST (Feb. 19, 2021),
https://nypost.com/2021/02/19/white-house-working-with-social-media-to-silence-
anti-vaxxers ............................................................................................................................................9
6A Wright, Miller & Kane, Federal Practice and Procedure:
Civil 2D § 1506 (1990) ........................................................................................................................11

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Plaintiff’s Reply ISO Motion to Supplement

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MEMORANDUM OF POINTS AND AUTHORITIES
Plaintiff Children’s Health Defense’s (“CHD”) submits this reply on its motion to supplement its
Second Amended Complaint (“SAC”) pursuant to Fed. R. Civ. P. 15(d) (hereafter “Rule 15(d)”).
Contrary to Defendants’ opposition, CHD’s motion to supplement is neither dilatory nor in bad faith,
and would cause no prejudice to Defendants. Nor is it futile.1 The supplementation order should issue
with direction that the parties may commence discovery relating to the well-founded allegations of
CHD’s supplemented SAC.
I.
OVERVIEW
This is not an ordinary case. These are not ordinary times. Private party conduct becomes state
action “when [the private party’s conduct] results from the State’s exercise of ‘coercive power,’ when
the State provides ‘significant encouragement, either overt or covert,’ or when a private actor operates as
a ‘willful participant in joint activity’” with the government.” United Brentwood Acad. v. Tenn.
Secondary Sch. Athletic Ass’n, 531 U.S. 288, 298 (2001). Elements of all three are present in Facebook’s
recent acts against CHD, and in the government’s involvement in those acts.
CHD’s supplement pleads new retaliatory acts by Facebook against CHD through direct action
against Mr. Robert F. Kennedy, Jr., CHD’s founder and chairman, and through statements by federal
actors and Facebook itself publicizing both significant encouragement and joint action to censor
COVID-19 vaccine “misinformation.” These recent actions highlight the existence of ongoing, and
increasingly flagrant collusion between Facebook and U.S. government officials and agencies.
Facebook acknowledges in its own recent Policy Guidelines that it does not censor vaccine and
coronavirus information on the basis of actual falsity. Rather, in partnership and working jointly with
the Centers for Disease Control and Prevention (“CDC”) -- a federal agency, as alleged in the SAC -- it
censors information “when public health authorities conclude that the information is false.” Thus, when
individuals and actors such as Plaintiff CHD post true information contradicting CDC pronouncements,
Facebook—in partnership and through joint activity with the CDC—labels such posts “misinformation”

1
Defendant The Poynter Institute for Media Studies (“Poynter”), one of Facebook’s “fact-
checkers,” is alleged to be a spoke in a larger hub-and-spokes conspiracy. (SAC ¶¶ 21-22, 79, 90, 93-
108, 151-155.) Poynter's opposition essentially adopts Facebook's opposition, and should be rejected for
the same reasons, as shown herein.
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and restricts or removes them.
Recent occurrences set forth in CHD’s supplement underscore the Executive Branch’s
involvement and that Facebook is essentially serving as the censorship arm of a United States agency.
The First Amendment does not permit viewpoint-based censorship of speech. Outside of narrowly
defined categories of unprotected speech (such as obscenity or incitement, which have no applicability
here), the First Amendment bars content-based restrictions of speech unless the restrictions are narrowly
tailored to further compelling governmental interests. It is for this Court to apply that rigorous standard
to Facebook, a federal actor engaged in impermissible censorship of vaccine-related speech. The Court
is also called upon to decide that Facebook’s false statements in this context are actionable as fraud and
false promotion. Respectfully, the Court should grant the supplement, deny the motion to dismiss, and
allow the parties to develop the record on this urgent First Amendment matter.
II.
CHD HAS ACTED IN GOOD FAITH AND WITHOUT PREJUDICE
Defendants argue that CHD’s supplement is “dilatory” (Dkt. 82 at 1) because it follows previous
amendments of the complaint: first, by right under Fed. R. Civ. Pro. 15(a)(1)(B), (Dkt. 64), and again --
with Defendants’ consent -- pursuant to Rule 15(a)(2) (Dkts. 65-1, 67). Defendants assert that “Rule 12
motions are not a game of whack-a-mole.” (Dkt. 82 at 5.) Plaintiff has engaged in no such maneuver,
which would serve no one’s interest. Defendants’ factually baseless effort to impugn CHD’s motives is
no substitute for legal argument. Contrary to Defendants’ implicit assertion, CHD’s previous – and
uncontested – amendments in no way invalidate the present supplementation.
Rule 15(d) allows a party to supplement a pleading when events occur after the filing of that
pleading that are material to the case. That is, exactly and simply, what happened here. Days after filing
its Reply in support of its Motion to Dismiss, Defendants took new actions injurious to CHD, and both
White House officials and Facebook itself newly confirmed “direct” joint activity between them to
censor vaccine-related speech online. A Rule 15(d) supplement is therefore squarely appropriate here.
Motions to supplement are to be freely granted in the absence of: (1) undue delay, (2) bad faith
or dilatory motive on the part of the movant, (3) repeated failure of previous amendments, (4) undue
prejudice to the opposing party, and (5) futility of the amendment. See Foman v. Davis, 371 U.S. 178,
182 (1962). Both of Plaintiff’s prior amendments were proper under Rule 15(a). CHD’s operative
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complaint has not been tested, much less “repeatedly failed.” Foman, id. Defendants’ Rule 12(b)(6)
motion to dismiss the SAC is fully-briefed and calendared for hearing on a schedule to which
Defendants themselves agreed. CHD has acted with dispatch, not delay. Moreover, Defendants ask the
Court to treat their previously-filed motion to dismiss as directed to CHD’s “new allegations” (Dkt. 82
at 11), conceding both that Plaintiff is adding new facts - not new “claims” or causes of action - and that
Defendants suffer no legitimate prejudice from the inclusion of new facts at the Rule 12(b)(6) stage.
Facebook’s “bad faith” argument is misplaced. The nature and timing of CHD’s supplement of
the factual basis of existing claims, e.g., for prospective relief, bear none of the marks of gamesmanship
in belated attempts to add new parties, theories or claims to defeat jurisdiction or an adverse ruling. Cf.
Dkt. 82 at 3, 4 n.3; Sorosky v. Burroughs Corp., 826 F.2d 794, 805 (9th Cir. 1987) (plaintiff conceded
that motion to amend would “destroy diversity”); Circle Click Media LLC v. Regus Mgmt. Grp. LLC,
2016 U.S. Dist. LEXIS 140002, at *11 (N.D. Cal. Oct. 7, 2016) (plaintiffs waited 15 months to seek
leave to amend). CHD’s supplement (Dkt. 76-1) indisputably raises “occurrence[s] or event[s] that have
happened since the date of the pleading to be supplemented[,]” pursuant to Rule 15(d) -- i.e., since the
date the SAC became operative on December 15, 2020. (Dkt. 67.) Consistent with the Rule, Plaintiff has
informed the Court of four recent significant acts by Defendants in furtherance of Defendants’ scheme
and in violation of the laws cited in the SAC: (1) Facebook’s termination of Mr. Kennedy’s Instagram
account (Feb. 10, 2021); (2) Facebook’s press statement falsely disparaging Mr. Kennedy (Feb. 11,
2021); (3) Facebook’s acknowledgment of “direct engagement” with the White House to censor
vaccine-related speech online; and (4) CHD’s discovery of a new falsely-disparaging notice on a third-
party user’s Facebook account warning her to “unfollow CHD,” accompanied by an icon enabling her to
do that, and encouraging her instead to go to the WHO to “correct common, untrue rumors about
COVID-19” (March 5, 2021). (Dkt. 76-1 at 2-3, 14, 40 [Exhs. 1, 3, 6].) Tellingly, Facebook waited until
after CHD had filed its opposition to Defendants’ motion to dismiss to take adverse action against Mr.
Kennedy. While the timing of the rollout of Facebook’s new third-party warning label is known only to
Facebook, this too appears to be very recent. Facebook is the one playing games here, not CHD.
Consistent with Rule 15(d), CHD has also informed the Court of recent public statements by the
Executive Branch that add to and provide additional plausible support for CHD’s pleaded allegations of
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continuing encouragement and joint action by Facebook in concert with the federal government to
censor so-called “vaccine misinformation.” (Dkt. 76-1 at 2-3, 10-12, 21, 36-38, [Exhs. 1, 2, 4, 5].) CHD
has pleaded, with as much detail as the often exiguous public record permits, ongoing overlapping
circles of collusion between Facebook and various federal government officials to suppress disfavored
vaccine-related speech by CHD and Mr. Kennedy. CHD acted with dispatch in filing its supplement on
March 8, and moving to shorten time under Civil L.R. 6-1(b) – not the typical artifice of those seeking
delay – at the hearing on Defendants’ motion to dismiss.2 Supplementation aligns with Rule 15(d)’s
important goal of promoting judicial efficiency. See Planned Parenthood of Southern Ariz. v. Neely, 130
F.3d 400, 402 (9th Cir. 1997); Keith v. Volpe, 858 F.2d 467, 473 (9th Cir. 1988).

Absent prejudice or a “strong showing” of any other Foman factor, there is a presumption in
favor of granting leave to supplement. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th
Cir. 2003). Defendants’ sole claim of “prejudice” -- purportedly resulting from rescheduling the March
23 hearing to May 5 -- rings hollow given their prior stipulations agreeing to (1) filing of the SAC, (2)
the briefing schedule on the motion to dismiss the SAC, and (3) the current hearing date. (Dkts. 66-1,
78.) Defendants do not and cannot argue legitimate prejudice because the supplement relates to their
own recent acts, CHD’s theories are the same, no Rule 16 scheduling order has issued, and discovery is
stayed. Defendants’ request that the Court treat its motion to dismiss as directed to CHD’s new
allegations effectively concedes that there is no prejudice because Defendants’ futility argument is
coextensive with the motion to dismiss. (Dkt. 82 at 11.)
The supplemented SAC asserts claims which are certainly “stable” enough to pass the Rule
12(b)(6) test (Dkt. 82 at 5). CHD’s allegations of Defendants’ escalating tactics are plausibly, if not
certainly, evidence of Facebook’s ongoing collusion with federal actors or retaliation against CHD, or

2
Defendants’ disingenuous “delay” argument ignores Facebook’s own part in this matter –
specifically, Mr. Kennedy’s written offer to have his matter heard by Facebook’s Oversight Board which
was made on February 24, 2021, but only responded to by Facebook on March 16, 2021. Teich Dec. ¶2
& Ex. 1; See e.g., Fed. R. Evid. 408(b) (permitting use of offer of compromise evidence to “negat[e] a
contention of undue delay”); Albert v. Embassy of Music GMBH, 2020 U.S. Dist. LEXIS 132657, **16-
19 (N.D. Cal. July 27, 2020) (effort to initiate settlement discussion which never took place not excluded
by Fed. R. Evid. 408). Defendants’ lack of candor with the Court requires submission of the
correspondence between counsel to set the record straight.
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both. Do they pass the line from conceivable to plausible? Just ask the cartoon “Pearls before Swine.”3
III.
PLAINTIFF’S SUPPLEMENT IS NOT FUTILE
“[A] proposed amendment is futile only if no set of facts can be proved under the amendment to
the pleadings that would constitute a valid and sufficient claim or defense.” Miller v. Rykoff-Sexton, Inc.,
845 F.2d 209, 214 (9th Cir. 1988). Nonetheless, Defendants argue that the supplement does not add
support to any of CHD’s four claims for relief: (1) Bivens; (2) Lanham Act; (3) RICO Act; or (4)
Declaratory/Injunctive Relief. Defendants are mistaken as to all four counts.
A.
Defendants Ignore Common Sense and Rule 12(b)(6) Interpretative Canons
in Assessing CHD’s “Federal Actor” Allegations
Facebook argues that CHD’s supplement falls short of the “plausibility” standard of Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 557 n.5 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), because it
does not definitively link any federal actor to any particular Facebook CHD content decision. (Dkt. 82 at
6-7.)4 Facebook would have the Court apply the Rule 12(b)(6) test too restrictively. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. A reasonable
inference or warranted deduction arises from the close temporal connection between federal officials’
statements of “direct engagement” with “social media platforms” or “Big Tech” to censor or deter the
spread of “vaccine misinformation,” and Defendants’ adverse actions against CHD, even without

3

4
The White House source’s opinion that “it is too soon to say whether or not [the administration’s
outreach] translates into lessening the spread of misinformation” supports rather than rebuts the
reasonable inference that the White House is actively encouraging Facebook to do just that. Cf. Dkt. 82
at 7 n.4.
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Plaintiff’s Reply ISO Motion to Supplement

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specific mention by name of Facebook or Zuckerberg, or CHD, in every cited allegation. See, e.g.,
Hartman v. Gilead Scis., Inc. (In re Gilead Scis. Sec. Litig.), 536 F.3d 1049, 1057 (9th Cir. 2008) (“But
so long as the plaintiff alleges facts to support a theory that is not facially implausible, the court's
skepticism is best reserved for later stages of the proceedings when the plaintiff’s case can be rejected
on evidentiary grounds.”).
Common sense and experience also have a role to play in the Court’s assessment that CHD’s
supplemented SAC allegations of federal actor coercion, encouragement, and joint activity with
Facebook in vaccine-related speech censorship are “plausible,” not merely “conceivable.” The SAC
alleges that federal actors actively participated in the program design and methods by which Facebook
identified and labeled particular CHD speech content as “false.” (SAC ¶¶ 49-52, 69-70, 308, 314-17.)
Facebook concedes, as it must, that the SAC and the supplement show both “outreach” and a “common
goal,” but insists that more is needed to make the connection between shared ends and means
“plausible.” (Dkt. 82 at 7.) Defendants are mistaken.
The case law recognizes that government participation may assume “non-obvious” or “covert”
forms, necessitating a fact-bound inquiry into the totality of the circumstances. Blum v. Yaretsky, 457
U.S. 991, 1004 (1982); see also Burton v. Wilminton Parking Auth., 365 U.S. 715, 722 (1961) (“private
conduct abridging individual rights does no violence to the Equal Protection Clause unless to some
significant extent the State in any of its manifestations has been found to have become involved in it”)
(emphasis added); Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970); see also Evans v. Valero Energy
Corp., No. CV F 07-0130, 2007 U.S. Dist. Lexis 21402 at *9 (E.D. Cal. Mar. 6, 2007).
There was, for example, no pleaded allegation that an overt agreement or “specific custom”
existed between the Hattiesburg, Mississippi police department and the S.H. Kress & Co. restaurant, that
a Kress waitress could refuse to serve Sandra Adickes, a white woman, because she was in the company
of six African-Americans, and that the police would arrest Ms. Adickes for vagrancy upon her departure
from the store. What Ms. Adickes knew, and could plead, was the backdrop of a Mississippi trespass
statute, enacted after Brown v. Board of Education, 347 U. S. 483 (1954), which gave Kress the right to
choose customers by refusing service (id. at 147 n.3) (not unlike, in our day, 47 U.S.C. § 230); the
statement of a waitress that “we have to serve the colored, but we don’t have to serve the whites who
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come in with them”; and testimony that a policeman went into the store and gave an “eye signal” to one
of the waitresses. As Eleanor Jackson Piel, Ms. Adickes’ attorney, argued before the High Court, “you
can say that’s not conclusive proof, but we have a right to go to trial on these issues. We have a right to
draw whatever comfort that we can from the inferences that come out of this situation.” Adickes v. S. H.
Kress & Company, Oyez, https://www.oyez.org/cases/1969/79 (last visited Mar 29, 2021).
The Supreme Court agreed and reversed summary judgment for Kress, holding that Ms. Adickes
would be entitled to relief under 42 U.S.C. § 1983 if she could prove, through discovery and trial, that
those public and private actors “somehow reached an understanding” or “meeting of the minds” to deny
Ms. Adickes service or to cause her subsequent arrest because she was a white person in the company of
African-Americans. Adickes, 398 U.S. at 146, 151-52. Kress’s motive was also an issue best reserved for
trial. Id. at 174. Adickes, with its spectral echoes from the 1964 Mississippi “Freedom Summer,” carries
special resonance with CHD’s current pursuit of judicial protection of its fundamental individual rights
in our day, when such rights – here, the freedom from viewpoint censorship – are vulnerable to new and
increasingly insidious encroachments. Like the Kress restaurant in Adickes, Facebook’s test of pleading
sufficiency is far too restrictive, ignoring the growing evidence of collusion between the federal
government and social media companies to censor online speech and the degree to which such
government and private actor partnership has undoubtedly been strategized and effected in secret,
making discovery crucial. CHD’s pleading evidence is like Ms. Adickes' witness affidavit that the
policeman was in the restaurant and exchanged eye-signals with the waitress when she was refused
service. CHD needs, just as Ms. Adickes was afforded, full discovery of the state-private actor
conspiracy at issue in light of the “inferences that come out of the situation.” Adickes v. S. H. Kress &
Company, Oyez, https://www.oyez.org/cases/1969/79 (last visited Mar 29, 2021).
Facebook argues that the White House Executive Order and CDC Director’s public statement
referencing the need to curb vaccine-related “misinformation” (Dkt. 76-1) do not “plausibly suggest any
connection whatsoever between Facebook and any federal action.” (Dkt. 82 at 7.) But, the Court need
not ignore recent events -- both those cited in the supplement and those which have occurred since – in
making that determination.
Immediately after taking office on January 20, 2021, President Joseph Biden pledged a “full-
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scale wartime effort” to combat COVID-19. The White House did not have to invent its “wartime”
strategy from scratch. In October 2019, a high-level pandemic war-gaming exercise called “Event 201”
took place in New York City. See, e.g., https://www.centerforhealthsecurity.org/event201/media.
Among its participants were past, present, and future U.S. governmental officials, including
representatives of the CDC and former CIA Deputy Director Avril Haines. A major topic at Event 201
was governmental control of what was described as vaccine “misinformation” and “disinformation” on
social media. Ms. Haines stated: “obviously you want to work with the private sector and those who are
spreading information generally to see that they can bring things down that are in fact lies or false
information.” Numerous participants agreed with Ms. Haines that managing the problem of so-called
“misinformation” online was critical and that to achieve this goal, reducing the overall information
available to the public would be justifiable. Said one: “If the solution means controlling and reducing
access to information, I think it’s the right choice.”5
On January 21, 2021, Avril Haines became President Biden’s Director of National Intelligence,
overseeing eighteen intelligence agencies, including the CIA and National Security Agency. President
Biden’s “wartime effort” to combat COVID-19 implemented the policy advocated by participants at
Event 201, including Director of National Intelligence Haines, of seeing to it that social media
companies block what the government deems vaccine misinformation. In late January or early February,
2021, according to an unnamed senior administration official speaking to the Reuters news organization,
the White House commenced “direct engagement” with “social media” companies, including Facebook,
to “clamp down” on “COVID misinformation.” (Dkt. 76-1.)
The unnamed administration official further stated: “Disinformation that causes vaccine
hesitancy is going to be a huge obstacle to getting everyone vaccinated and there are no larger players in
that than the social media platforms. We are talking to them . . . so they understand the importance of
misinformation and disinformation and how they can get rid of it quickly.” Id. (emphasis added).
Facebook has confirmed its participation in this “direct engagement” between the White House and

5
Under Fed. R. Evid. 201(b)(2), “the Court may judicially notice a fact that is not subject to
reasonable dispute because it can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned. These facts concerning Director Haines’ participation in Event 201 are
proper subjects of judicial notice.
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social media platforms. Again as reported by Reuters, a Facebook spokesperson confirmed Facebook’s
communication with White House officials and that Facebook had agreed to supply “any assistance we
can provide” in cracking down on so-called “vaccine misinformation.” Id. (emphasis added.) Thus, as of
early February, 2021, Facebook by its own admission was directly engaged with the federal government
in censoring so-called “vaccine misinformation,” and the White House was by its own admission
“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),
https://nypost.com/2021/02/19/white-house-working-with-social-media-to-silence-anti-vaxxers.
On the issue of federal actor “coercion,” as alleged in the SAC, a March 26, 2021 Wall Street
Journal editorial aptly placed Zuckerberg’s most recent appearance before the House of Representatives
in context:
Progressives have deputized Big Tech executives as de facto regulators of American
debate. Hearings like this one - as well as Congressional letters to the CEOs - have
become so frequent because social media management is now performing what has all
the hallmarks of a quasi-governmental function. Congress regularly enforced the
arrangement through legislative threats.

The Editorial Board, Congress Summons its Speech Regulators, WALL STREET JOURNAL (Mar. 26, 2021),
https://www.wsj.com/articles/congress-summons-its-speech-regulators-
11616711928?mod=opinion_lead_pos3. CHD alleges that, as part of this “direct engagement,”
Defendants were specifically and explicitly instructed and/or encouraged by White House officials and/or
other federal governmental actors in late January or early February, 2021, to target, restrict and remove
certain content or accounts identified by the CDC or other governmental agents associated with “vaccine
misinformation,” including content posted by or accounts belonging to CHD, or Mr. Kennedy. The
supplement meets the test of Rule 12(b)(6) and is not futile.
Facebook next argues that the supplement is “wholly irrelevant” because it “post-dates” the
allegations of the SAC. (Dkt. 82 at 6.) Facebook relies on Fed. Agency of News LLC v. Facebook, Inc.,
432 F. Supp. 3d 1107 (N.D. Cal. 2020), but that case is readily distinguishable. In Fed. Agency of News
LLC, plaintiff Federal Agency of News, LLC (“FAN”) sued over Facebook’s decision to remove FAN's
profile and content following the 2016 presidential election. The Court dismissed FAN’s Bivens claim
because FAN’s only allegation was that Facebook provided information to the government after that
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removal relating to the government’s investigation into Russian interference with the 2018 midterm
elections, not the 2016 presidential election, and that responding to government requests for information
alone cannot form the basis for joint action. Id. at 1121, 1125-26. But, none of FAN’s post-2018
allegations plausibly related to Facebook's earlier deletion of FAN’s Facebook page. Id. at 1126.
Here, by contrast, CHD alleges (which FAN did not) ongoing acts of retaliation by Facebook
since the filing of this action, SAC at ¶¶ 323-328, and a claim for declaratory relief for injuries which
are continuing in nature and require injunctive relief. Id. at ¶¶ 387-391. Facebook’s recent acts of
terminating Mr. Kennedy’s Instagram account, for which it widely disseminated a false reason as its
basis -- that Mr. Kennedy has “repeatedly shared debunked claims about the coronavirus or vaccines” --
and of issuing new warning labels to third-party users to “unfollow” CHD’s Facebook page and instead
urging them to follow a direct CHD competitor, the World Health Organization (“WHO”) (Dkt. 76-1 at
2-3, 14, 40 [Exhs. 1, 3, 6]), are clearly actionable under CHD’s retaliation theory and its claim for
prospective relief. The recent statements of federal officials regarding joint action between Facebook
and the federal government to suppress disfavored vaccine-related speech are also clearly relevant to the
recent acts set forth in CHD’s supplemental pleading. Id. at 2-3, 10-12, 21, 36-38 (Exhs. 1, 2, 4, 5). The
White House now says that it is “specifically pushing” Facebook to suppress or prevent from reaching
wide audiences “chatter that deviates from officially distributed COVID-19 information,” and Facebook
confirms that it has offered “any assistance we can provide” to the federal government’s effort to block
what it describes as the “spread” of “vaccine misinformation.” Id. The actions under coordination are a
far cry from merely “responding to government requests for information alone.” Fed. Agency of News
LLC does not apply to the particular facts or circumstances of CHD’s case.
B.
Injury to CHD Arising From Mr. Kennedy’s Instagram Termination
CHD alleges that Facebook’s attack on Mr. Kennedy’s vaccine-related posts is an attack on
CHD’s credibility and reliability, since Mr. Kennedy is CHD’s founder and chairman, and their separate
accounts and pages are often cross-linked. (Dkt. 76 at 6; see also SAC ¶¶ 14-15, 24, 30, 68-69, 125.)
CHD frequently disseminates Mr. Kennedy’s opinions and expression on a variety of health-related
issues. Defendants’ attempt to invoke “alter ego” doctrine to deny this close relationship is misplaced.
(Dkt. 82 at 10.) CHD is a separate legal non-profit entity, not a mere shell or conduit for Mr. Kennedy’s
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affairs. But, at the same time, since CHD and Facebook were already litigants in this First Amendment
action, CHD can plausibly assert an injury-in-fact to CHD’s standing, reputation, and capacity to raise
funds from Facebook’s post-filing acts of retaliation and false disparagement of its founder and
chairman’s truthful speech activities.
Facebook argues that CHD lacks standing to raise these new allegations. (Dkt. 82 at 10.)
Defendants are wrong. CHD asserts that the supplemental allegations describe further actionable harms
to itself just as in the SAC, e.g., chilling of its First Amendment rights, damage to CHD’s goodwill and
decrease in donations, from Facebook’s recent actions against Mr. Kennedy. Unlike the putative
plaintiffs who brought suit on behalf of detainees in Coalition of Clergy, Lawyers & Professors v. Bush,
310 F.3d 1153, 1163 (9th Cir. 2002), CHD does not sue as “next-friend” to redress Mr. Kennedy’s own
reputational harm and denial of constitutional rights. Additionally, CHD and Facebook were adverse
parties in litigation when Facebook took action against Mr. Kennedy, a classic case of indirect
retaliation. Mr. Kennedy’s separate entitlement to pursue any independent remedies as may exist before
Facebook’s Oversight Board,6 or a potential consolidated action in this Court,7 cannot abrogate or
subvert CHD’s present right to seek redress for its own injuries. Cf. Planned Parenthood v. Neely, 130
F.3d at 402 (plaintiff sought to supplement its complaint in the original action, which had reached final
judgment four years earlier, with no retention of jurisdiction in the district court, with a challenge to a
different state statute). Indeed, Planned Parenthood makes clear that the goal of Rule 15(d) is judicial
efficiency. “To determine if efficiency might be achieved, courts assess ‘whether the entire controversy
between the parties could be settled in one action . . . .’ 6A Wright, Miller & Kane, Federal Practice and
Procedure: Civil 2D § 1506 (1990). Id. Such is the case with CHD’s supplement. The Ninth Circuit also
cites with approval cases which permitted supplementation, even post-judgment, where the Court had
retained jurisdiction to supervise the parties’ compliance with certain directives. See, e.g., Poindexter v.

6
On information and belief, Mr. Kennedy attempted to lodge his submission with the Oversight
Board today. It remains far from clear whether he will be notified of its receipt, much less whether or
not or when his matter may be heard there. (Teich Dec. ¶3.)

7
Far from being “separate” or “distinct,” Planned Parenthood, 130 F.3d at 402, such an action, if
filed, would involve these same “common questions of law and fact,” the criteria for consolidation with
his action under Fed. R. Civ. P. 42(a).
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Louisiana Fin. Assistance Comm'n, 296 F. Supp. 686, 688 (E.D. La.), aff'd sub nom. Louisiana Comm'n
for Needy Children v. Poindexter, 393 U.S. 17 (1968) (enjoining defendants from enforcing a series of
acts, each more “subtle” than the next, that had the effect of racially segregating the school system).
Such is also the case with Facebook’s recent series of acts against CHD which are both in furtherance of
its ongoing joint action with federal officials and in retaliation for CHD filing suit. The Court should not
permit any “technical obstacles,” Planned Parenthood, 130 F.3d at 402-03, such as Defendants’ plaint
about “delay,” to thwart its determination of the full extent of the controversy between the parties, and
its award of “complete relief, or more nearly complete relief, in one action[.]” Keith v. Volpe, 858 F.2d
467, 473 (9th Cir. 1988).
Moreover, ordinary rules of standing are “relaxed” in First Amendment cases such as CHD’s.
S.O.C., Inc. v. County of Clark, 152 F.3d 1136, 1142-43 (9th Cir. 1998). Here, CHD can assert standing
because its own First Amendment activities are chilled by the threat (and reality) of prosecution of a
third party. See, e.g., Adult Video Ass'n v. Reno, 41 F.3d 503, 504 (9th Cir. 1994), readopting holding of
Adult Video Ass'n v. Barr, 960 F.2d 781, 785 (9th Cir. 1992), vac'd by Reno v. Adult Video Ass'n, 509
U.S. 917 (1993). Moreover, CHD is legally entitled to assert the First Amendment rights of close
associates where its own financial interest is affected. Hang On, Inc. v. City of Arlington, 65 F.3d 1248,
1251-52 (5th Cir. 1995) (topless bar owner had standing to assert First Amendment rights of dancers
under city “no touching” ordinance; owner's financial interest affected). Facebook’s recent retaliation
against CHD through adverse actions against Mr. Kennedy threatens CHD’s own speech and fundraising
activities. No resort to principles of third-party standing is necessary to grant the supplement.
CHD clearly has standing to raise its retaliation theory based on post-filing actions taken against
Mr. Kennedy. See, e.g., Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917 (9th Cir. 2004). Moreover,
Plaintiff’s supplement alleges (i) proximity in time between CHD and Mr. Kennedy’s expressive
conduct and the allegedly retaliatory actions; (ii) Defendants expressed opposition; and (iii) that their
proffered explanations for their adverse actions are false and pretextual. Coszalter v. City of Salem, 320
F.3d 968, 977 (9th Cir. 2003); Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 751-52 (9th
Cir. 2001). “As with proof of motive in other contexts, this element of a First Amendment retaliation
suit . . . involves questions of fact that normally should be left for trial.” Ulrich v. City & County of San
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Francisco, 308 F.3d 968, 979 (9th Cir. 2002) (citing Hunt v. Cromartie, 526 U.S. 541, 552 (1999).)
CHD’s supplementation is not futile as it relates to Facebook’s recent actions against Mr. Kennedy.
SAC ¶¶ 69-70 alleges that two related events of significance occurred on September 4, 2019:
first, the WHO publicly lauded Facebook for its close collaboration with the WHO to “ensure people
can access authoritative information [] and reduce the spread of inaccuracies[,]” and second, Facebook
published its “Warning Label” on CHD’s Facebook page. Similarly, here, Facebook terminated Mr.
Kennedy’s Instagram account and widely disseminated a false basis for that act on February 10-11, 2021
-- a mere matter of days before White House officials publicly acknowledged that they had asked
Facebook to remove COVID-19 vaccine “misinformation.” (Dkt. 76-1.) Temporal proximity is a fact or
circumstance that supports a plausible inference of causation. Yartzoff v. Thomas, 809 F.2d 1371, 1376
(9th Cir. 1987) (“inference of a causal link is strengthened by the closeness in time between particular
events”); Bastidas v. Good Samaritan Hosp. LP, 2016 U.S. Dist. LEXIS 33405, at *17 (N.D. Cal. 2016)
(Ilston, J.) (temporal proximity of protected activity and occurrence of adverse act can support an
inference of retaliatory causation). The allegations of the supplement, just like the SAC, of a causal link
between what the government says it has “asked” Facebook to do, and what Facebook does, are
plausible and should be permitted in this action. See, e.g., Godinez ex rel. Godinez v. City of Chicago,
2019 U.S. Dist. LEXIS 187994, at **12-13 (N.D. Ill. 2019) (public officials’ statements which
suggested that Chicago police “code of silence” was an ongoing issue were “admissions” showing that
judgment as a matter of law against plaintiff in civil rights action was inappropriate).
C.
Injury to CHD Arising From Facebook’s Third-Party User Warnings
On March 5, 2021, CHD learned that Facebook had issued a warning label not affixed on CHD’s
page as alleged in the SAC ¶¶ 70, 79(C), 81-86, 339-56, but directly to the account of a third-party user.
That warning notice encourages and enables the third-party user to “unfollow” CHD and purports that
CHD’s “information [] could mislead people about how to cure or prevent a disease or could discourage
people from seeking medical treatment.” The warning also refers the user to the WHO, CHD’s direct
competitor, and purports that the WHO “corrects common, untrue rumors about COVD-19.” (Dkt. 76-1
at 2 [Rita Shreffler Dec. ¶7], 40 [Ex. 6].)
CHD contends that the Exhibit 6 warning label is actionable under all four counts for relief for
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the same pleaded reasons as the warning label affixed to CHD’s page, and only Defendants know how
widely they have been disseminating (or have been covertly disseminating) these warning labels to
CHD’s many other third-party users. Facebook argues that “CHD provides no context – for example,
what CHD post that (sic) this notice was displayed in connection with or when – to enable the Court to
evaluate the notice in connection with any of CHD’s claims.” (Dkt. 82 at 4 n.3.) Defendants’ lack of
candor displayed in the above comment is cause for concern.
Facebook itself did not identify to the third-party user the particular CHD post or posts she had
“liked” or shared that purportedly violated Facebook’s terms. Since Facebook has retroactively removed
multiple CHD posts, the information sufficient to identify the specific post or posts in question remains
in Defendants’ sole possession, custody, or control. (Teich Dec. ¶4.) CHD has sought Defendants’
agreement to preserve Facebook’s algorithms for identifying third-party users for such warning
notifications, and all communications with government actors, including but not limited to public health
officials, concerning the development of such algorithms, and related “misinformation” strategies, as
Defendants have agreed to do with respect to CHD’s SAC allegations. (Id. ¶5 & Ex. 2) The Court should
not be misled by Facebook’s suggestions that CHD’s supplement is deficient for not providing that
context in detail at this stage, or that without it, the third-party warning label does not support CHD’s
claims that Facebook is committing ongoing harms to its reputation and standing with its users and
capacity to raise funds. (Dkt. 82 at 4 n.3.)
Facebook is a difficult “mole” to “whack,” but Rule 15(d) discretion thankfully exists for such
cases. Upon being informed of the facts, CHD promptly pled this most recent post-filing subterfuge of
Defendants to blacklist and warn third-party users who “like” or share CHD posts without CHD’s
knowledge. Facebook argues that the third-party warning label (Dkt. 76-1 at 40 [Ex. 6]) is irrelevant
because it “relates entirely to content on another individual’s Facebook page, not CHD’s Facebook
page.” (Dkt. 82 at 4, n.2.) Defendants ignore the plain text of their own warning label which tells the
third-party user(s), in pertinent part, “we don’t allow false information that can cause physical harm[,]”
“Unfollow Children’s Health Defense[.] Stop seeing posts from this Page[.]” and “See Facts about
COVID-19[.] The World Health Organization corrects common, untrue rumors about COVID-19[.]”
The new warning indisputably refers to, and as alleged in the Supplement, falsely disparages CHD and
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materially misleads third-party users to donate to CHD’s rival non-profit philanthropy, the WHO. In
material respects, this constitutes a continuation of Facebook’s conduct in promulgating its prior
warning labels as alleged in the SAC. In all of these respects, the Supplement bolsters CHD’s pleaded
allegations that Defendants have violated the Lanham and RICO Acts.
D.
The Supplement Supports CHD’s Allegations of Cognizable RICO Injury

Facebook argues that its recent third-party warning label does not “alter the fact that the SAC’s
multi-step theory of causation is too attenuated to support a RICO claim.” (Dkt. 82 at 10, citing Dkt. 74.)
For example, in its reply brief on the motion to dismiss, Facebook argues that fraudulently inducing
users to donate to competing charities does not constitute fraud because Facebook did not first receive
the money itself and then donate it. See Dkt. 74 at 13. But there is no such requirement. See, e.g., United
States v. Siegelman, 640 F.3d 1159, 1165-1166 (11th Cir. 2011) (defendant guilty of fraud after
exchanging seat on state board for third party’s donation to a foundation); United States v. Sorich, 523
F.3d 702, 709-10 (7th Cir. 2008) (defendant would be guilty of fraud if he told third parties “he only
wanted the kickbacks to go to charity”); United States v. Menendez, 132 F. Supp. 3d 635, 640 (D.N.J.
2015) (fraud allegations sufficient where defendant said to have induced third party to donate money to
independent organization.)

Facebook also claims that CHD must prove not only that Defendants fraudulently directed users
to give money to competing charities, but that users actually did so. See Dkt. 74 at 13 (“CHD does not
allege that any visitor to its Page was in fact deceived into donating to another organization.”) This
misrepresents well-settled law. The wire fraud statute “punishes the scheme, not its
success.” Pasquantino v. United States, 544 U.S. 349, 371 (2005); United States v. Louderman, 576 F.2d
1383, 1387 (9th Cir. 1978) (no proof required that “the intended victim suffered a loss”); United States v.
George, 477 F.2d 508, 512 (7th Cir. 1973) (no requirement that government “allege or prove that the
victim of the scheme was actually defrauded”); United States v. Avenatti, 432 F. Supp. 3d 354, 362
(S.D.N.Y. 2020) (same).
IV.
CONCLUSION

For all of the foregoing reasons, Plaintiff CHD urges the Court to grant its motion to supplement.

Case 3:20-cv-05787-SI   Document 84   Filed 03/29/21   Page 21 of 22

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Plaintiff’s Reply ISO Motion to Supplement

Second Amended Complaint
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Dated:  March 29, 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 84   Filed 03/29/21   Page 22 of 22

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