Plaintiff's Request for Leave to File Statement of Recent Decision — Children's Health Defense v. Facebook, Case 3:20-cv-05787, Doc. 98 (Filed 05/11/21)

Summary

Plaintiff's Request for Leave to File Statement of Recent Decision, filed May 11, 2021 as Document 98 in Children's Health Defense v. Facebook, Inc., et al., Case No. 3:20-cv-05787-SI, in the U.S. District Court for the Northern District of California, San Francisco Division. Citing Civil L.R. 7-3(d)(2) and 7-11, the plaintiff asks permission to file a statement concerning an order in United States v. Lonich, Case No. 17-cr-00139 SI, dated April 28, 2021 and amended on other grounds on May 5, 2021. The request quotes that order on uncertainty about vaccine protection and argues that Facebook's COVID-19 vaccine policy bars the plaintiff from posting such a statement. It argues the order is relevant to the pending motions to dismiss and that the submission is timely. The three-page request ends with the signature block of the attorneys for the plaintiff.

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               Case 3:20-cv-05787-SI Document 98 Filed 05/11/21 Page 1 of 3



 1 ROGER I. TEICH
   California State Bar No. 147076
 2 290 Nevada Street
   San Francisco, CA 94110
 3 Telephone: (415) 948-0045
   E-Mail Address: rteich@juno.com
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   ROBERT F. KENNEDY, JR.
 5 MARY HOLLAND
   Children’s Health Defense
 6 1227 North Peachtree Parkway, Suite 202
   Peachtree City, GA 30269
 7 Telephone: (917) 743-3868
   E-Mail Address: mary.holland@childrenshealthdefense.org
 8
   Attorneys for Plaintiff
 9 CHILDREN’S HEALTH DEFENSE

10                               UNITED STATES DISTRICT COURT

11                              NORTHERN DISTRICT OF CALIFORNIA

12                                  SAN FRANCISCO DIVISION

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     CHILDREN’S HEALTH DEFENSE,
14                                                  Case No. 3:20-cv-05787-SI
                  Plaintiff,
15                                                  PLAINTIFF’S REQUEST
                                                    FOR LEAVE TO FILE STATEMENT
16        v.                                        OF RECENT DECISION
17 FACEBOOK, INC., et al.,

18                                                  Civil L.R. 7-3(d)(2), 7-11
                  Defendants.
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                                                                   Plaintiff’s Request for Leave to File
                                                                          Statement of Recent Decision
                                                          CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
               Case 3:20-cv-05787-SI Document 98 Filed 05/11/21 Page 2 of 3



 1                                    REQUEST FOR LEAVE TO FILE

 2                                 STATEMENT OF RECENT DECISION

 3          Pursuant to Civil Local Rule 7-3(d)(2) and 7-11, Plaintiff Children’s Health Defense (“CHD”)

 4 respectfully requests the Court’s permission to file the Statement of Recent Decision submitted

 5 herewith. The Statement of Recent Decision relates to an Order issued by this Court in United States v.

 6 Lonich, 2021 U.S. Dist. LEXIS 81562, Case No. 17-cr-00139 SI (N.D. Cal. April 28, 2021), amended on

 7 other grounds on May 5, 2021 (Dkt. #482).

 8          In Lonich, this Court stated that “uncertainty still surrounds the degree and duration of protection

 9 vaccines provide against the [COVID-19] virus or its mutations.” Id. at *7. CHD cannot post this simple,

10 truthful statement on its Facebook page because Facebook’s “COVID-19 and Vaccine Policy Updates &

11 Protections” prohibits posting any “claims that COVID-19 vaccines are not effective in preventing

12 COVID-19.” https://www.facebook.com/help/230764881494641.1 If Facebook decided that policy on its

13 own, it may be cause to lament an unwise use of private corporate power. But if, as plausibly alleged,

14 the Centers for Disease Control and Prevention (“CDC”) acted in concert with Facebook to decide that

15 policy, it is cause to lament the curtailment of the First Amendment, and for this Court to permit CHD’s

16 constitutional claims to proceed under 28 U.S.C. § 1331. Thus, this Order is relevant to the motions to

17 dismiss currently pending before this Court.

18          On April 30, 2021, the United States moved for reconsideration of the Court’s release order,

19 partly on the ground that “[a]ccording to the CDC, ‘[a]ll COVID-19 vaccines currently available in the
20 United States have been shown to be safe and effective at preventing COVID-19.’”2 (Dkt. #476 at 2.)

21 Plaintiff submits there is good cause for this Court to accept Plaintiff’s Statement of Recent Decision as

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           As explained in Plaintiff’s concurrently-filed Request for Judicial Notice, the Court may take
23 judicial notice of the existence and content of this website. See Threshold Enters. Ltd. v. Pressed

24 Juicery, Inc., 445 F. Supp. 3d 139, 146 (N.D. Cal. 2020). It cannot reasonably be disputed that Facebook
   made the quoted statement as that fact can be readily determined from sources whose accuracy cannot
25 reasonably be disputed. See id. at 145.

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          The United States’ statement that COVID vaccines are “safe and effective” is explicitly
   contravened by federal law. As Emergency Use Authorization products only, the Food and Drug
27 Administration has merely determined that COVID vaccines “may be effective in diagnosing, treating,
   or preventing – (i) such disease or condition.” 21 U.S.C. § 360bbb-3(C)(2)(A)(i).
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                                                                           Plaintiff’s Request for Leave to File
                                                                                  Statement of Recent Decision
                                                                 CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
               Case 3:20-cv-05787-SI Document 98 Filed 05/11/21 Page 3 of 3



 1 timely-submitted under Civil L.R. 7-3(d)(2), because this Court did not reaffirm the quoted portion of its

 2 April 28 order until May 5, 2021, which was the date of the noticed hearing in this action.

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 4         Dated: May 11, 2021                   Respectfully submitted,

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 7                                               ROBERT F. KENNEDY, JR.
                                                 Founder and Chairman, Children’s Health Defense
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                                                 MARY S. HOLLAND
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                                                 General Counsel, Children’s Health Defense
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                                                 ROGER I. TEICH
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14                                               Counsel for Plaintiff
                                                 Children’s Health Defense
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                                                                           Plaintiff’s Request for Leave to File
                                                                                  Statement of Recent Decision
                                                                CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI


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