Reply ISO Motion to Dismiss and Motion to Strike — Brooks v. Thomson Reuters

Summary

Reply in Support of Defendant's Motion to Dismiss Pursuant to FRCP 12(b)(6), and Motion to Strike Pursuant to California Code of Civil Procedure § 425.16, filed June 9, 2021 as Document 35 in Cat Brooks and Rasheed Shabazz v. Thomson Reuters Corporation, Case No. 3:21-cv-01418-EMC, U.S. District Court for the Northern District of California, with a hearing set for June 24, 2021 before Hon. Edward M. Chen. Thomson Reuters argues the plaintiffs fail to state right of publicity, UCL and unjust enrichment claims over its CLEAR database. It argues the claims are barred by the First Amendment and by Section 230 of the Communications Decency Act, 47 U.S.C. § 230, and that California's anti-SLAPP statute applies. Susan D. Fahringer of Perkins Coie LLP signed /s/ for the defendant.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Full text

REPLY ISO DEFENDANT’S MOTION TO
DISMISS AND MOTION TO STRIKE

CASE NO. 3:21-CV-01418-EMC

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
Susan D. Fahringer, Bar No. 21567
SFahringer@perkinscoie.com
Nicola C. Menaldo, pro hac vice
NMenaldo@perkinscoie.com
Anna M. Thompson, pro hac vice
AnnaThompson@perkinscoie.com
PERKINS COIE LLP
1201 Third Avenue, Suite 4900
Seattle, WA  98101-3099
Telephone:  206.359.8000
Facsimile:  206.359.9000
Attorneys for Defendant
Thomson Reuters Corporation

Gabriella Gallego, Bar No. 324226
GGallego@perkinscoie.com
PERKINS COIE LLP
3150 Porter Drive
Palo Alto, CA 94304-1212
Telephone: 650.838.4300
Facsimile: 650.838.4350

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
CAT BROOKS and RASHEED
SHABAZZ, individually and on behalf of
all others similarly situated,
Plaintiffs,
v.
THOMSON REUTERS CORPORATION,
Defendant.
Case No. 3:21-cv-01418-EMC
REPLY IN SUPPORT OF DEFENDANT’S
MOTION TO DISMISS PURSUANT TO
FRCP 12(b)(6), AND MOTION TO STRIKE
PURSUANT TO CALIFORNIA CODE OF
CIVIL PROCEDURE § 425.16
Date:                June 24, 2021
Time:               1:30 p.m.
Place:               Courtroom 5, 17th Floor
Judge:              Hon. Edward M. Chen

Case 3:21-cv-01418-EMC     Document 35     Filed 06/09/21     Page 1 of 23

TABLE OF CONTENTS

Page

REPLY ISO DEFENDANT’S MOTION TO
DISMISS AND MOTION TO STRIKE
-i-
CASE NO. 3:21-CV-01418-EMC

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
INTRODUCTION .......................................................................................................................... 1
ARGUMENT .................................................................................................................................. 2
I.
Plaintiffs have not established the essential elements of their claims. ................................ 2
A.
Plaintiffs have not stated a common law publicity claim. ...................................... 2
B.
Plaintiffs have not stated a UCL claim based on either “unlawful” or
“unfair” conduct. ..................................................................................................... 4
C.
Plaintiffs have not stated a claim for unjust enrichment. ........................................ 7
D.
Plaintiffs have not pleaded an inadequate remedy at law. ...................................... 7
II.
The First Amendment bars Plaintiffs’ claims. .................................................................... 8
III.
Section 230 of the CDA bars Plaintiffs’ claims. ............................................................... 11
A.
Plaintiffs’ claims treat Thomson Reuters as a “publisher” or “speaker.” ............. 12
B.
Thomson Reuters is not the “information content provider.” ............................... 13
IV.
California’s anti-SLAPP statute applies. .......................................................................... 14
A.
Plaintiffs have not shown that the public interest exception applies. ................... 14
B.
CLEAR is protected activity under the anti-SLAPP statute. ................................ 15
CONCLUSION ............................................................................................................................. 15
Case 3:21-cv-01418-EMC     Document 35     Filed 06/09/21     Page 2 of 23

TABLE OF AUTHORITIES

Page(s)

REPLY ISO DEFENDANT’S MOTION TO
DISMISS AND MOTION TO STRIKE
-ii-
CASE NO. 3:21-CV-01418-EMC

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
CASES
Aligo v. Time-Life Books, Inc.,
No. C 94-20707, 1994 WL 715605 (N.D. Cal. Dec. 19, 1994) ..................................................3
Astiana v. Hain Celestial Grp., Inc.,
783 F.3d 753 (9th Cir. 2015) .......................................................................................................7
Barnes v. Yahoo!, Inc.
570 F.3d 1096 (9th Cir. 2009) .............................................................................................11, 12
Blackburn v. ABC Legal Servs., Inc.,
No. C 11-01298, 2011 WL 8609453 (N.D. Cal. June 16, 2011) ..............................................14
Brodsky v. Apple Inc.,
445 F. Supp. 3d 110 (N.D. Cal. 2020) ........................................................................................7
Browne v. McCain,
611 F. Supp. 2d 1062 (C.D. Cal. 2009) ......................................................................................2
Bruton v. Gerber Prods. Co.,
703 F. App’x 468 (9th Cir. 2017) ...............................................................................................7
Callahan v. Ancestry.com Inc.,
No. 20-CV-08437-LB, 2021 WL 783524 (N.D. Cal. Mar. 1, 2021) ..................................12, 13
Carafano v. Metrosplash.com, Inc.,
339 F.3d 1119 (9th Cir. 2003) ...................................................................................................12
Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co.,
20 Cal. 4th 163 (1999) ................................................................................................................5
Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y.,
447 U.S. 557 (1980) ..................................................................................................................10
Club Members for an Honest Election v. Sierra Club,
45 Cal. 4th 309 (2008) ..............................................................................................................14
Comedy III Prods., Inc. v. Gary Saderup, Inc.,
25 Cal. 4th 387 (2001) ............................................................................................................3, 4
Cross v. Facebook, Inc.,
14 Cal. App. 5th 190 (2017) .......................................................................................................2
Cruz v. City of Culver City,
2 Cal. App. 5th 239 (2016), as modified (Aug. 8, 2016) ..........................................................14
Case 3:21-cv-01418-EMC     Document 35     Filed 06/09/21     Page 3 of 23

TABLE OF AUTHORITIES
(continued)
Page(s)

REPLY ISO DEFENDANT’S MOTION TO
DISMISS AND MOTION TO STRIKE
-iii-
CASE NO. 3:21-CV-01418-EMC

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
Cullen v. Netflix, Inc.,
880 F. Supp. 2d 1017 (N.D. Cal. 2012) ......................................................................................7
De Havilland v. FX Networks, LLC,
21 Cal. App. 5th 845 (2018) .......................................................................................................7
De La Torre v. CashCall, Inc.,
5 Cal. 5th 966 (2018) ..............................................................................................................5, 6
Downing v. Abercrombie & Fitch,
265 F.3d 994 (9th Cir. 2001) ...................................................................................................2, 4
Eastwood v. Super. Ct. for Cty. of L.A.,
149 Cal. App. 3d 409 (1983) ...............................................................................................2, 3, 4
Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council,
485 U.S. 568 (1988) ..................................................................................................................10
Ets-Hokin v. Skyy Spirits, Inc.,
225 F.3d 1068 (9th Cir. 2000) .....................................................................................................5
Exeltis USA Inc. v. First Databank, Inc.,
No. 17-cv-04810, 2017 WL 6539909 (N.D. Cal. Dec. 21, 2017) .............................1, 12, 14, 15
Fair Hous. Council v. Roommates.com, LLC,
521 F.3d 1157 (9th Cir. 2008) (en banc) ...................................................................................13
Fairfield v. American Photocopy Equip. Co.,
138 Cal. App. 2d 82 (1955) .........................................................................................................3
Fleet v. CBS, Inc.,
50 Cal. App. 4th 1911 (1996) .....................................................................................................5
Fraley v. Facebook, Inc.,
830 F. Supp. 2d 785 (N.D. Cal. 2011) ........................................................................................4
Garcia v. Sony Comput. Ent. Am., LLC,
859 F. Supp. 2d 1056 (N.D. Cal. 2012) ......................................................................................7
Guglielmi v. Spelling–Goldberg Prods.,
25 Cal. 3d 860 (1979) ...............................................................................................................15
Hartford Casualty Insurance Co. v. J.R. Marketing, L.L.C.,
61 Cal. 4th 988 (2015) ................................................................................................................7
Case 3:21-cv-01418-EMC     Document 35     Filed 06/09/21     Page 4 of 23

TABLE OF AUTHORITIES
(continued)
Page(s)

REPLY ISO DEFENDANT’S MOTION TO
DISMISS AND MOTION TO STRIKE
-iv-
CASE NO. 3:21-CV-01418-EMC

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
hiQ Labs, Inc. v. LinkedIn Corp.,
273 F. Supp. 3d 1099 (N.D. Cal. 2017) ....................................................................................15
HomeAway Inc. v. City of Santa Monica,
918 F.3d 676 (9th Cir. 2019) .....................................................................................................12
Huynh v. Quora, Inc.,
No. 18-cv-07597, 2020 WL 7495097 (N.D. Cal. Dec. 21, 2020) ...............................................7
IMDb.com Inc. v. Becerra,
962 F.3d 1111 (9th Cir. 2020) .........................................................................................9, 10, 11
In re Anthem, Inc. Data Breach Litig.,
162 F. Supp. 3d 953 (N.D. Cal. 2016) ........................................................................................6
In re Facebook, Inc., Consumer Privacy User Profile Litigation,
402 F. Supp. 3d 767, 803 (N.D. Cal. 2019) ................................................................................3
In re Google Location Hist. Litig.,
No. 18-cv-05062, 2021 WL 519380 (N.D. Cal. Jan. 25, 2021) ..................................................7
Liberi v. Taitz,
No. SACV 11-0485, 2011 WL 13315691 (C.D. Cal. Oct. 17, 2011) .......................................13
Low v. LinkedIn Corp.,
900 F. Supp. 2d 1010 (N.D. Cal. 2012) ......................................................................................7
Lugosi v. Universal Pictures,
25 Cal. 3d 813 (1979) .............................................................................................................2, 9
Lukis v. Whitepages Inc.,
2020 WL 6287369 (N.D. Ill. Oct. 27, 2020) .............................................................................10
Lyng v. Nw. Indian Cemetery Protective Ass’n,
485 U.S. 439 (1988) ..................................................................................................................10
Maloney v. T3Media, Inc.,
853 F.3d 1004 (9th Cir. 2017) .................................................................................................4, 5
McCullen v. Coakley,
573 U.S. 464 (2014) ....................................................................................................................9
McKesson HBOC, Inc. v. New York State Common Ret. Fund, Inc.,
339 F.3d 1087 (9th Cir. 2003) .....................................................................................................8
Case 3:21-cv-01418-EMC     Document 35     Filed 06/09/21     Page 5 of 23

TABLE OF AUTHORITIES
(continued)
Page(s)

REPLY ISO DEFENDANT’S MOTION TO
DISMISS AND MOTION TO STRIKE
-v-
CASE NO. 3:21-CV-01418-EMC

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
Miller v. Collectors Universe, Inc.,
159 Cal. App. 4th 988 (2008) .....................................................................................................8
N.Y. Times Co. v. Sullivan,
376 U.S. 254 (1964) ..................................................................................................................11
Nasser v. WhitePages, Inc.,
No. 12cv097, 2013 WL 6147677 (W.D. Va. Nov. 22, 2013) ...................................................13
New Kids on the Block v. News Am. Publ’g, Inc.,
745 F. Supp. 1540 (C.D. Cal. 1990), aff’d, 971 F.2d 302 (9th Cir. 1992) ..................................9
Newcombe v. Adolf Coors Co.,
157 F.3d 686 (9th Cir. 1998) .......................................................................................................4
Perfect 10, Inc. v. Google, Inc.,
No. CV 04-9484, 2010 WL 9479060 (C.D. Cal. July 30, 2010), aff’d, 653 F.3d
976 (9th Cir. 2011) ......................................................................................................................2
Reed v. Town of Gilbert, Ariz.,
576 U.S. 155 (2015) ....................................................................................................................8
Sarver v. Chartier,
813 F.3d 891 (9th Cir. 2016) .......................................................................................................8
Save Westwood Vill. v. Luskin,
233 Cal. App. 4th 135 (2014) ...................................................................................................14
Schnall v. Hertz Corp.,
78 Cal. App. 4th 1144 (2000) .....................................................................................................5
Sonner v. Premier Nutrition Corp.,
971 F.3d 834 (9th Cir. 2020) .......................................................................................................7
Sorrell v. IMS Health Inc.,
564 U.S. 552 (2011) ....................................................................................................................8
Stewart v. Rolling Stone LLC,
181 Cal. App. 4th 664 (2010) ...........................................................................................3, 4, 11
White v. Samsung Electronics America, Inc.,
971 F.2d 1395 (9th Cir. 1992) .....................................................................................................3
Wilbanks v. Wolk,
121 Cal. App. 4th 883 (2004) ...................................................................................................15
Case 3:21-cv-01418-EMC     Document 35     Filed 06/09/21     Page 6 of 23

TABLE OF AUTHORITIES
(continued)
Page(s)

REPLY ISO DEFENDANT’S MOTION TO
DISMISS AND MOTION TO STRIKE
-vi-
CASE NO. 3:21-CV-01418-EMC

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
Yeager v. Cingular Wireless LLC,
673 F. Supp. 2d 1089 (E.D. Cal. 2009) ...................................................................................3, 4
STATUTES AND CONSTITUTIONAL PROVISIONS
Communications Decency Act (“CDA”), 47 U.S.C. § 230 ............................................1, 11, 12, 13
California Consumer Privacy Act (“CCPA”), Cal. Civ. Code § 1798.100, et seq. ................4, 5, 14
Cal. Civ. Code § 3344.1 ....................................................................................................................4
Cal. Civ. P. Code § 425.17 ..............................................................................................................14
U.S. Const. amend. I  .............................................................................................................. passim
OTHER AUTHORITIES
Peter L. Felcher & Edward L. Rubin, Privacy, Publicity and the Portrayal of Real
People by the Media, 88 YALE L.J. 1577, 1596 (1979) ..............................................................9
RESTATEMENT (SECOND) OF TORTS § 652C cmt. d (1977 June 2021 update) ..................................2
Case 3:21-cv-01418-EMC     Document 35     Filed 06/09/21     Page 7 of 23

REPLY ISO DEFENDANT’S MOTION TO
DISMISS AND MOTION TO STRIKE
-1-
CASE NO. 3:21-CV-01418-EMC

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
INTRODUCTION
Plaintiffs have no claim against Thomson Reuters. Their Opposition (“Opp.”) only
confirms this: not one of the more than 70 cases they cite embraces their theory of liability, which
is that California—the birthplace of Silicon Valley—has made it unlawful for an information
technology company to charge a fee to access factual information about people online.
Multiple independent reasons justify dismissal. First, the Complaint does not state a claim
under any of its multitude of legal theories. Thomson Reuters’ actions are categorically different
from the conduct implicating the right of publicity, because that tort requires that a defendant use
another’s identity and appropriate their name and likeness for publicity purposes—i.e., to grab
public attention or to promote the defendant’s (commercial or non-commercial) endeavors. This
flaw also dooms Plaintiffs’ UCL “unlawful” claim, which is based on their rights of publicity.
Plaintiffs’ UCL “unfairness” claim fails because the California Consumer Privacy Act (“CCPA”),
Cal. Civ. Code § 1798.100, et seq., permits the very conduct attacked here (an opt-out, rather than
an opt-in, consent framework), and also because Plaintiffs fail the tests used to determine
unfairness. Plaintiffs are not entitled to equitable relief because their legal remedy is adequate,
and unjust enrichment is not a cognizable claim. Second, if any of Plaintiffs’ mistaken legal
theories were credited, the relief they seek would be a content-based restriction that would
contravene free speech protections enshrined by the First Amendment. Third, Plaintiffs’ claims
are barred by the Communications Decency Act (“CDA”), 47 U.S.C. § 230, which protects
interactive computer services like Thomson Reuters from being held liable for publishing content
provided by others.
Under Plaintiffs’ theory, no one could collect information about a Californian—even from
popular search engines or other public sources—and then charge a fee to access it without first
obtaining consent. This would fundamentally alter how this country operates, placing important
contributors to the marketplace of ideas in the crosshairs of class action litigation—including
newspapers, political campaigns and activists, biographers, libraries at universities, and
researchers. Everyone in California would be a potential plaintiff. And any politician, celebrity, or
convicted sex offender who preferred that the public not learn the truth about their past (or
Case 3:21-cv-01418-EMC     Document 35     Filed 06/09/21     Page 8 of 23

REPLY ISO DEFENDANT’S MOTION TO
DISMISS AND MOTION TO STRIKE
-2-
CASE NO. 3:21-CV-01418-EMC

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
present) could simply withhold consent to the publication of their information. It is therefore
unsurprising that the relief Plaintiffs seek is both unprecedented and contravened at virtually
every level of authority, from the U.S. Constitution to federal and state statutes. The Complaint
should be dismissed.
ARGUMENT
I.
Plaintiffs have not established the essential elements of their claims.
A.
Plaintiffs have not stated a common law publicity claim.
This tort requires establishing that Thomson Reuters (1) used Plaintiffs’ “identities” and
(2) appropriated their names and likenesses by taking advantage of the “commercially exploitable
opportunities” resulting from “the reaction of the public to [their] name and likeness.” Lugosi v.
Universal Pictures, 25 Cal. 3d 813, 823 (1979); see Eastwood v. Super. Ct. for Cty. of L.A., 149
Cal. App. 3d 409, 417 (1983); Mot. at 7-9. Plaintiffs have not shown use of their “identities,”
because they base their argument on the alleged sale of personal information. See Opp. at 3-5.
But “identity,” is not the same as “personal information,” and “[w]hat is protected by the Right of
Publicity is the very identity or persona of the plaintiff as a human being,” Downing v.
Abercrombie & Fitch, 265 F.3d 994, 1004 (9th Cir. 2001) (citation omitted), not the plaintiff’s
mere personal information, see Mot. at 7-8 (collecting cases where defendants did not use the
plaintiffs’ identities merely by placing ads next to photographs of the plaintiffs).1 Consistent with
this, not one of the cases Plaintiffs cite equates identity with personal information.
Plaintiffs have not established “appropriation,” because this requires that a person’s name
or likeness be used to a defendant’s advantage for purposes of publicity. See, e.g., Browne v.
McCain, 611 F. Supp. 2d 1062, 1070 (C.D. Cal. 2009) (campaign ad played plaintiff’s song to the

1 Plaintiffs try to distinguish these cases on the ground that third parties posted the content at
issue. See Opp. at 4-5 (discussing Perfect 10, Inc. v. Google, Inc., No. CV 04-9484, 2010 WL
9479060, at *13 (C.D. Cal. July 30, 2010), aff’d, 653 F.3d 976 (9th Cir. 2011), and Cross v.
Facebook, Inc., 14 Cal. App. 5th 190, 209 (2017)). Plaintiffs cite no authority holding that such a
distinction matters with respect to right of publicity claims. Even if such authority existed,
however, it would not matter, because Plaintiffs allege that CLEAR data is comprised of third-
party content. See, e.g., Compl. ¶ 2.
Case 3:21-cv-01418-EMC     Document 35     Filed 06/09/21     Page 9 of 23

REPLY ISO DEFENDANT’S MOTION TO
DISMISS AND MOTION TO STRIKE
-3-
CASE NO. 3:21-CV-01418-EMC

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
political advantage of the defendant); RESTATEMENT (SECOND) OF TORTS § 652C cmt. d (1977
June 2021 update) (tort requires that the defendant took “advantage of [the plaintiff’s] reputation,
prestige, or other value associated with [them], for purposes of publicity”) (emphasis added).
Here, as in In re Facebook, Inc., Consumer Privacy User Profile Litigation, Plaintiffs’
“allegations about how [Thomson Reuters] shared the plaintiffs’ information with third parties is
categorically different from the type of conduct made unlawful by this tort.” 402 F. Supp. 3d 767,
803 (N.D. Cal. 2019).
Plaintiffs argue that Thomson Reuters “appropriates” their names and likenesses because
it profits from selling access to CLEAR. Opp. at 5. Similar reasoning would bar newspapers from
charging for subscriptions. Plaintiffs cite no authority for such an expansive view of this tort, and
their own cases only confirm that “appropriation” is tied to publicity—one “appropriates” by, for
example, using another’s name or likeness to draw public attention in order to sell a product. See,
e.g., Eastwood, 149 Cal. App. 3d at 418 (defendants’ newspapers); White v. Samsung Electronics
America, Inc., 971 F.2d 1395, 1397 (9th Cir. 1992) (electronic products); Fairfield v. American
Photocopy Equip. Co., 138 Cal. App. 2d 82, 85-86 (1955) (copy machines); Comedy III Prods.,
Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387, 409 (2001) (t-shirts and lithographs); see also Stewart
v. Rolling Stone LLC, 181 Cal. App. 4th 664 (2010) (striking claim under the anti-SLAPP statute
where the plaintiffs complained that the defendant had implied they endorsed cigarettes).
Plaintiffs allege no such facts here; rather, they allege that Thomson Reuters might use Plaintiffs’
data only in response to a customer’s inquiry. See, e.g., Compl. ¶ 23.
Regardless, “incidental use of a plaintiff’s name or likeness does not give rise to liability
under a common law claim of commercial misappropriation or an action under Section 3344.”
Yeager v. Cingular Wireless LLC, 673 F. Supp. 2d 1089, 1100 (E.D. Cal. 2009) (citation and
quotation marks omitted). Whether use is incidental does not turn on the amount of information
available about the plaintiff, as Plaintiffs argue (see Opp. at 5 n. 2), but rather on the proportion of
offending content relating to the plaintiff. See Aligo v. Time-Life Books, Inc., No. C 94-20707,
1994 WL 715605, at *3 (N.D. Cal. Dec. 19, 1994) (dismissing claim where photo was “one of
dozens of Rolling Stone covers used in the program and [was] insignificant to the commercial
Case 3:21-cv-01418-EMC     Document 35     Filed 06/09/21     Page 10 of 23

REPLY ISO DEFENDANT’S MOTION TO
DISMISS AND MOTION TO STRIKE
-4-
CASE NO. 3:21-CV-01418-EMC

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
purpose of selling the music anthology”). Plaintiffs here are among “millions” of others whose
data is allegedly in the CLEAR database. Compl. ¶ 2. Any use of Plaintiffs’ names and likenesses
is therefore incidental and not actionable.
B.
Plaintiffs have not stated a UCL claim based on either “unlawful” or
“unfair” conduct.
Unlawful conduct. Plaintiffs base their “unlawful” UCL claim on alleged violations of
their common law and statutory rights of publicity. They fail to state a claim for violation of the
common law right of publicity for the reasons discussed above. Their statutory claim therefore
fails as well, because it requires “all the elements of the common law cause of action,” among
others.2 See Downing, 265 F.3d at 1001 (citing Eastwood, 149 Cal. App. 3d at 417). Plaintiffs
argue (Opp. at 6) that “section 3344 does not simply tack additional requirements onto the
common-law right,” but this is both incorrect and contravened by Plaintiffs’ own cases. See, e.g.,
Stewart, 181 Cal. App. 4th at 680 (“Under section 3344, a plaintiff must prove all the elements of
the common law cause of action.”) (citing Downing, 265 F.3d 994 at 1001); see also Maloney v.
T3Media, Inc., 853 F.3d 1004, 1008 n. 2 (9th Cir. 2017); Yeager, 673 F. Supp. 2d at 1095.3
Plaintiffs’ statutory claim also is barred by the newsworthiness exception of Section
3344(d), which, as Plaintiffs admit (Opp. at 7), “tracks the constitutional right to freedom of
speech under the First Amendment.” Fraley v. Facebook, Inc., 830 F. Supp. 2d 785, 804–05
(N.D. Cal. 2011). As discussed infra in Section II, the First Amendment forbids the type of
content-based restriction urged by Plaintiffs here.

2 The other elements are the defendant’s knowing use and a direct connection between the alleged
use and the commercial purpose. Plaintiffs have also failed to establish these. See, e.g., Mot. at 11
n. 15 (Shabazz failed to allege scienter as to allegedly false information about him in CLEAR).
3 Nor has the California Supreme Court, as Plaintiffs claim, “reject[ed] [a] Ninth Circuit case that
had overly-narrowly construed statute.” Opp. at 6. The case Plaintiffs cite involved a claim under
California Civil Code Section 3344.1 (not 3344), where the court merely noted that Newcombe v.
Adolf Coors Co., 157 F.3d 686 (9th Cir. 1998), did not cite language that appears in Section 3344
because the language was not relevant. See Comedy III Prods., Inc., 25 Cal. 4th at 396.
Case 3:21-cv-01418-EMC     Document 35     Filed 06/09/21     Page 11 of 23

REPLY ISO DEFENDANT’S MOTION TO
DISMISS AND MOTION TO STRIKE
-5-
CASE NO. 3:21-CV-01418-EMC

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, Plaintiffs’ publicity claims are preempted by section 301 of the Copyright Act to
the extent they are based on photographs. See Mot. at 9 (arguing preemption as to photographs);
Maloney, 853 F.3d at 1011 (Copyright Act preempts publicity claim); Fleet v. CBS, Inc., 50 Cal.
App. 4th 1911, 1918-19 (1996) (same). Plaintiffs contend that “Thomson Reuters does not argue,
because it cannot, that the photographs of Plaintiffs that Thomson Reuters sells were
copyrightable works of art.” Opp. at 21. This argument is meritless. “[A]lmost any[ ] photograph
may claim the necessary originality to support a copyright,” including photographs of Plaintiffs.
Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1076 (9th Cir. 2000).
Unfair conduct. Plaintiffs base their “unfair” UCL claim on the alleged sale of their data
without consent. In other words, they argue they must consent, or “opt-in,” to any sale before it
may occur, and they base their claim on Thomson Reuters’ use of an “opt-out” framework
instead. Compl. ¶¶ 47, 57. But in enacting the CCPA, the California legislature expressly adopted
the framework that Thomson Reuters uses—under the CCPA, one may sell another person’s data
unless the other person opts out of such a sale. See, e.g., Mot. at 15-16; Cal. Civ. Code
§§ 1798.115(c), 1798.120. The legislature therefore permitted precisely the conduct attacked
here. And “where the allegedly unfair business practice has been authorized by the Legislature,
no factual or equitable inquiry need be made, as the court can decide [and dismiss] the matter
entirely on the law.” Schnall v. Hertz Corp., 78 Cal. App. 4th 1144, 1160 (2000); see also Mot. at
15-16; Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163, 182 (1999).
Plaintiffs quibble with whether Thomson Reuters has complied with the CCPA’s specific
requirements, Opp. at 9-10, but they do not (and cannot) contest that the CCPA permits the
conduct they target here—an opt-out framework for the sale of personal data. Additionally, the
legislature made clear that it is not within courts’ purview to parse compliance with the CCPA in
private litigation: the private right of action in the CCPA is narrowly limited to incidents like
security breaches, Cal. Civ. Code § 1798.150(a), and the CCPA unequivocally bars any attempt to
use a CCPA violation as the predicate for another claim, see id. § 1798.150(c) (“Nothing in this
title shall be interpreted to serve as the basis for a private right of action under any other law.”)
Case 3:21-cv-01418-EMC     Document 35     Filed 06/09/21     Page 12 of 23

REPLY ISO DEFENDANT’S MOTION TO
DISMISS AND MOTION TO STRIKE
-6-
CASE NO. 3:21-CV-01418-EMC

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
Plaintiffs next argue that “a state statute only forecloses a UCL action where the statute
makes the challenged conduct ‘lawful, for all purposes, under all regulations.’” Opp. at 9 (citing
De La Torre v. CashCall, Inc., 5 Cal. 5th 966, 987 (2018)). Once again, this is simply not the law,
nor is it what De La Torre holds.4 De La Torre does not contravene the many decisions holding
that when the legislature permits conduct, it cannot be “unfair” under the UCL.
Because the CCPA bars Plaintiffs’ UCL “unfair” claim, there is no need to reach the
tethering or balancing tests.5 But Plaintiffs fail those tests, too. They fail the tethering test because
the “legislatively declared policy” on which Plaintiffs rely is compliance with Section 3344, but
they cannot show that statute was violated. See supra Section I.B; see also Mot. at 17. Plaintiffs
fail the balancing test because the alleged harm to Plaintiffs—which amounts to not being paid $5
for their data (see Compl. ¶ 62) and having their data sold rather than disclosed for free (see Opp.
at 18, arguing that Thomson Reuters “could comply with the law simply by . . . not charging for
Californians’ identities”)—does not outweigh the utility of Thomson Reuters’ conduct, which
includes important activities such as enabling news, research, and political activism; preventing
money laundering; facilitating commercial lending; protecting victims of human trafficking and
sexual exploitation; and finding absent parents.6 Plaintiffs also fail the balancing test because the
practice they target is not “immoral, unethical, oppressive, unscrupulous, or substantially
injurious,” because, among other reasons, it is permitted by the CCPA. For the same reasons it
does not “offend[] an established public policy.” In re Anthem, Inc. Data Breach Litig., 162 F.
Supp. 3d 953, 990 (N.D. Cal. 2016).

4 De La Torre regarded Section 22303 of the Financial Code, which capped interest rates on loans
under $2,500, and Section 22302 of the Financial Code, which prohibited unconscionable
contracts. Defendants argued that Section 22303 barred the plaintiffs from arguing that high
interest rates on loans of more than $2,500 were unconscionable under Section 22302. The court
disagreed, holding that Section 22303 did not apply and that the loans could be found
unconscionable under Section 22302. Id. at 976.
5 Plaintiffs concede that the FTC test does not apply, see Opp. at 7, n. 4, but they fail that test as
well, see Mot. at 17-18.
6 See Mot. at 3-4 (collecting website materials that the Complaint incorporates by reference).
Case 3:21-cv-01418-EMC     Document 35     Filed 06/09/21     Page 13 of 23

REPLY ISO DEFENDANT’S MOTION TO
DISMISS AND MOTION TO STRIKE
-7-
CASE NO. 3:21-CV-01418-EMC

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, Plaintiffs argue that the Court should wait to apply either test, but neither of the
two cases they cite in support involved a statute that reflects a public policy of permitting the
targeted conduct, like the CCPA here. See Opp. at 7-8. UCL “unfair” claims are commonly
subject to dismissal on the pleadings. See e.g., Cullen v. Netflix, Inc., 880 F. Supp. 2d 1017, 1029
(N.D. Cal. 2012) (dismissing unfair UCL claims on the pleadings); Garcia v. Sony Comput. Ent.
Am., LLC, 859 F. Supp. 2d 1056, 1066 (N.D. Cal. 2012) (same).
C.
Plaintiffs have not stated a claim for unjust enrichment.
As the Ninth Circuit has recognized, “in California, there is not a standalone cause of
action for ‘unjust enrichment[.]’” Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 762 (9th Cir.
2015); see also In re Google Location Hist. Litig., No. 18-cv-05062, 2021 WL 519380, at *8
(N.D. Cal. Jan. 25, 2021) (same); Brodsky v. Apple Inc., 445 F. Supp. 3d 110, 132 (N.D. Cal.
2020) (same); De Havilland v. FX Networks, LLC, 21 Cal. App. 5th 845, 870 (2018) (dismissing
unjust enrichment in right of publicity case because “[u]njust enrichment is not a cause of
action”). The contrary cases Plaintiffs cite (Opp. at 11-12) stem from Hartford Casualty
Insurance Co. v. J.R. Marketing, L.L.C., 61 Cal. 4th 988 (2015), which held that an insurer could
bring an unjust enrichment claim to recover attorneys’ fees directly from the lawyer to whom it
paid the fees, rather than from the insured. See id. at 1007-08. Although the Hartford court
described its decision as “narrow,” id., the Ninth Circuit cited it in an unpublished memorandum
disposition for the proposition that California law recognizes unjust enrichment claims. See
Bruton v. Gerber Prods. Co., 703 F. App’x 468, 470 (9th Cir. 2017). Hartford is not remotely
analogous, Bruton is not precedential (see Ninth Circuit Rule 36-3), Astiana remains good law,
and Plaintiff’s unjust enrichment claim should be dismissed. See Low v. LinkedIn Corp., 900 F.
Supp. 2d 1010, 1031 (N.D. Cal. 2012) (collecting cases).
D.
Plaintiffs have not pleaded an inadequate remedy at law.
A court may not grant equitable relief unless “a plain, adequate and complete remedy at
law [is] wanting.” Sonner v. Premier Nutrition Corp., 971 F.3d 834, 840 (9th Cir. 2020) (internal
citation omitted). Plaintiffs argue (Opp. at 11) that their mere demand for injunctive relief
establishes that their remedy at law is inadequate, but “cases in this Circuit have held that Sonner
Case 3:21-cv-01418-EMC     Document 35     Filed 06/09/21     Page 14 of 23

REPLY ISO DEFENDANT’S MOTION TO
DISMISS AND MOTION TO STRIKE
-8-
CASE NO. 3:21-CV-01418-EMC

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
extends to claims for injunctive relief.” Huynh v. Quora, Inc., No. 18-cv-07597, 2020 WL
7495097, at *19 (N.D. Cal. Dec. 21, 2020) (collecting cases). Plaintiffs also argue that
compensatory damages are inadequate “because the harm here is an invasion of privacy,” which
“can never be fully remedied through damages.” Opp. at 11. But Plaintiffs’ statutory remedy
(even if they chose not to assert it7) addresses exactly this type of harm. Miller v. Collectors
Universe, Inc., 159 Cal. App. 4th 988, 1005 (2008) (“[T]he harm Miller suffered, and which
section 3344(a)’s minimum statutory damages were intended to remedy, was the alleged injury to
his mental feelings and peace of mind.”). In any case, Plaintiffs’ allegations belie the argument
that they suffered a privacy harm that cannot be cured through damages: Plaintiffs argue that their
harm is not that their information is disclosed, it is that it is sold. See, e.g., Compl. ¶¶ 11-13, 39,
42, 51; Opp. at 18 (Thomson Reuters “could comply with the law simply by . . . not charging for
Californians’ identities”). “Selling” can be remedied through damages.
II.
The First Amendment bars Plaintiffs’ claims.
By challenging only Thomson Reuters’ sale of factual information about Plaintiffs, not the
Risk Inform score, see Opp. at 13 n. 9, Plaintiffs implicitly concede that barring Thomson Reuters
from expressing opinions through its Risk Inform tool would violate the First Amendment. See
Mot. at 12. Yet the First Amendment applies to factual information as well as opinions, see
Sorrell v. IMS Health Inc., 564 U.S. 552 (2011), and a bar on publishing Plaintiffs’ personal
information without consent is a content-based restriction on speech, see, e.g., Sarver v. Chartier,
813 F.3d 891, 903 (9th Cir. 2016) (“California’s right of publicity law clearly restricts speech
based upon its content.”). Content-based restrictions on speech are subject to strict scrutiny and
“presumptively unconstitutional.” See Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163 (2015).
It is unsurprising that Plaintiffs do not identify any U.S. Supreme Court case where the
Court so much as hinted that publishing accurate factual information could be punished consistent

7 See McKesson HBOC, Inc. v. New York State Common Ret. Fund, Inc., 339 F.3d 1087, 1093
(9th Cir. 2003) (emphasis added) (“Whether [a plaintiff] chooses to pursue [statutory] remedies
. . . does not alter the availability of the remedies at law.”).
Case 3:21-cv-01418-EMC     Document 35     Filed 06/09/21     Page 15 of 23

REPLY ISO DEFENDANT’S MOTION TO
DISMISS AND MOTION TO STRIKE
-9-
CASE NO. 3:21-CV-01418-EMC

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
with the First Amendment, yet that is precisely what Plaintiffs expansively seek. In fact, the
Supreme Court has repeatedly rejected attempts like Plaintiffs’ to restrict factual information on
the basis of alleged harms to privacy. See Mot. at 13 (collecting cases).
Plaintiffs’ claims are similar to those at issue in IMDb.com Inc. v. Becerra, where the
Ninth Circuit recently considered the constitutionality of a California law that sought to protect
celebrities’ privacy and prevent age discrimination by requiring subscription-based platforms,
upon request, to remove and not further disseminate for publication a celebrity’s age or date of
birth. 962 F.3d 1111, 1118-19 (9th Cir. 2020). The Court determined the law was content-based
because it “prohibit[ed] the dissemination of one type of speech: date of birth or age
information,” and it was unconstitutional because it did not survive strict scrutiny. Id. at 1120
(citation and quotation marks omitted). In this case, as in IMDb, Plaintiffs’ proposed restrictions
reflect a content-based restriction on speech because Plaintiffs seek to restrict the dissemination
of one type of speech—personal information—and the restriction is unconstitutional because it
does not survive strict scrutiny. Id.
Strict scrutiny in the misappropriation of likeness context means that, where a person’s
name, image, or likeness is used in speech for “informative or cultural” purposes, the use “is
immune” under the First Amendment. New Kids on the Block v. News Am. Publ’g, Inc., 745 F.
Supp. 1540, 1546 (C.D. Cal. 1990), aff’d, 971 F.2d 302 (9th Cir. 1992).8 Here, CLEAR’s purpose
is to inform, see, e.g., Compl. ¶¶ 1, 2, 11, 24 (alleging aggregation and sale of information), so
Plaintiffs’ proposed restriction on speech is presumptively unconstitutional.

8 Restricting such speech categorically fails strict scrutiny because of the weight of the public’s
interest in informative or cultural speech and the inapplicability of the countervailing interest or-
dinarily implicated in right of publicity cases—namely, the protection of the “commercially ex-
ploitable opportunities” resulting from public reaction to a name or likeness, see Lugosi, 25 Cal.
3d at 823; see also Mot. at 10-14 (applying balancing test). Only if the speech “serves no such
function but merely exploits the individual portrayed,” is the balance different and strict scrutiny
potentially satisfied. Id. (quoting Peter L. Felcher & Edward L. Rubin, Privacy, Publicity and the
Portrayal of Real People by the Media, 88 YALE L.J. 1577, 1596 (1979)) (emphasis added).
Case 3:21-cv-01418-EMC     Document 35     Filed 06/09/21     Page 16 of 23

REPLY ISO DEFENDANT’S MOTION TO
DISMISS AND MOTION TO STRIKE
-10-
CASE NO. 3:21-CV-01418-EMC

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
Even if Plaintiffs could evade the categorical rule in right of publicity cases insulating
informative or cultural speech, they would still need to show that their claims would survive strict
scrutiny. To do this, they would need to establish that their proposed restriction is “the least
restrictive means of achieving a compelling state interest.” McCullen v. Coakley, 573 U.S. 464,
478 (2014). The relief they seek fails this test. The content encompassed by their proposed
restriction is extraordinarily broad: all “personal data,” including information as innocuous as
“name” and “photographs,” of everyone in California. See Compl. ¶ 70 (class definition). Their
theory of relief would make a future defendant of anyone who charged a fee to access a
Californian’s data. And Plaintiffs do not even tie this relief to the harm they fear from, for
example, bad actors that seek to harm them (who are not alleged to use CLEAR). The First
Amendment does not tolerate such sweeping and indiscriminate relief. Additionally, to interpret
California law to encompass the relief that Plaintiffs seek would also raise serious constitutional
questions, which should be avoided. See Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S.
439, 445 (1988); Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council,
485 U.S. 568, 575 (1988).
In response, Plaintiffs argue that CLEAR does not concern a “public issue” and is not in
the “public interest,” citing defamation cases in support. See Opp. at 13. But the “public issue”
test applies only to false speech in the defamation context, and as the Ninth Circuit recently
reconfirmed, “neither this court, nor the Supreme Court, has held that content-based restrictions
on public speech touching on private issues escape strict scrutiny.” IMDb.com, 962 F.3d at 1123.9
Just as the Ninth Circuit in IMBd.com refused to carve out an exception to strict scrutiny for
dissemination of birthday and age information, 962 F.3d at 1123, this Court should decline to
carve out an exception for the even more sweeping category of “personal information.”

9 The only potentially analogous case cited by Plaintiffs, Lukis v. Whitepages Inc., 2020 WL
6287369 at *6-7 (N.D. Ill. Oct. 27, 2020), contradicts the Ninth Circuit decision in IMDB.com.

Case 3:21-cv-01418-EMC     Document 35     Filed 06/09/21     Page 17 of 23

REPLY ISO DEFENDANT’S MOTION TO
DISMISS AND MOTION TO STRIKE
-11-
CASE NO. 3:21-CV-01418-EMC

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
Plaintiffs also appear to argue that Thomson Reuters’ conduct is subject to lesser
protection because Plaintiffs challenge only the “private sale” of data. Opp. at 13. But while
“commercial speech” is afforded lesser First Amendment protection,10 a “speaker’s ‘economic
motivation’ is ‘insufficient by itself to render speech commercial,’” and what is instead required
is a showing that the speech “propose[s] a commercial transaction.” IMDb.com Inc., 962 F.3d at
1122 (citations omitted) (emphasis added). Here, Plaintiffs have not alleged that CLEAR
proposes a commercial transaction, nor can they. Strict scrutiny therefore applies.
Finally, to account for the narrow tailoring requirement of strict scrutiny, First
Amendment protections are heightened (and actual malice is required) when it comes to speech
about public figures such as Plaintiffs. See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 280-81
(1964); Stewart, 181 Cal. App. 4th at 681; see also Opp. at 16 (acknowledging that Plaintiffs’
professions situate them differently than others). Dismissal is therefore further warranted because
Plaintiffs have not alleged that Thomson Reuters acted with actual malice.
III.
Section 230 of the CDA bars Plaintiffs’ claims.
Plaintiffs’ claims also fail because they are barred by Section 230 of the CDA. Plaintiffs
effectively concede that Thomson Reuters is an interactive computer service, which satisfies the
first prong of the CDA test. See Opp. at 16-20. Plaintiffs then rebut strawmen11 and contest the
second and third prongs, arguing that (a) their claims do not treat Thomson Reuters as a publisher
or speaker, and (b) the content at issue was not provided by another. Plaintiffs’ arguments fail.

10 Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y., 447 U.S. 557 (1980)
(commercial speech restrictions limited to speech that is misleading or related to unlawful
activity).
11 To address the strawmen: Thomson Reuters argues that the CDA applies under the Ninth
Circuit’s three-part test for CDA immunity. See Mot. at 19-21. It does not argue that the CDA
immunizes companies for violating the law if they do so over the Internet. See Opp. at 17. Nor
does Thomson Reuters contend that the CDA applies to Plaintiffs’ claims just because Thomson
Reuters operates its service online. Id. Nor does Thomson Reuters argue that it is “automatically
immune” under the CDA simply because it acquires content from third parties. See Opp. at 18.
Case 3:21-cv-01418-EMC     Document 35     Filed 06/09/21     Page 18 of 23

REPLY ISO DEFENDANT’S MOTION TO
DISMISS AND MOTION TO STRIKE
-12-
CASE NO. 3:21-CV-01418-EMC

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
A.
Plaintiffs’ claims treat Thomson Reuters as a “publisher” or “speaker.”
To determine whether the claims treat Thomson Reuters as a publisher or speaker, “courts
must ask whether the duty allegedly violated derives from the defendant’s status or conduct as a
‘publisher or speaker.’” Barnes v. Yahoo!, Inc. 570 F.3d 1096, 1102 (9th Cir. 2009). Here,
Plaintiffs claim that Thomson Reuters had a duty to seek their permission or pay them before
deciding whether to publish content about them through its online service. See, e.g., Compl.
¶¶ 85, 86, 98, 99, 106, 108, 113, 117. This is “quintessential” publisher conduct. Barnes, 570 F.3d
at 1107. Plaintiffs’ claims are no different from the paradigmatic CDA-barred claim that demands
that a social media company remove defamatory statements from its service. See, e.g., Carafano
v. Metrosplash.com, Inc., 339 F.3d 1119, 1125 (9th Cir. 2003). In both cases, the publication is
the alleged offense, so the claims treat the defendant as publisher or speaker.
Plaintiffs’ sole response to this is that their claims do not require Thomson Reuters to
“monitor” content. The CDA has no such requirement, and Plaintiffs’ argument ignores the Ninth
Circuit’s definition of publishing as “reviewing, editing, and deciding whether to publish or to
withdraw from publication third-party content.” Barnes, 570 F.3d at 1102 (citing Fair Hous.
Council v. Roommates.com, LLC, 521 F.3d 1157, 1170–71 (9th Cir. 2008) (en banc)). It also
ignores the many cases finding CDA immunity from right of publicity claims that do not require
“monitoring.”12 The single case Plaintiffs cite for this argument, HomeAway Inc. v. City of Santa
Monica, is distinguishable because it is not a right of publicity case, and it merely held that the
CDA did not preempt a short-term rental ordinance because the ordinance said nothing about the
content on the defendants’ sites. 918 F.3d 676, 682 (9th Cir. 2019). Finally, even if “monitoring”
were required, Plaintiffs’ claims would qualify, because to determine whether consent is required
for a given piece of content, Thomson Reuters would need to evaluate whether that content

12 See Carafano, 339 F.3d at 1125 (Section 230 barred misappropriation of right of publicity
claim); Callahan v. Ancestry.com Inc., No. 20-CV-08437-LB, 2021 WL 783524, at *6 (N.D. Cal.
Mar. 1, 2021) (same).
Case 3:21-cv-01418-EMC     Document 35     Filed 06/09/21     Page 19 of 23

REPLY ISO DEFENDANT’S MOTION TO
DISMISS AND MOTION TO STRIKE
-13-
CASE NO. 3:21-CV-01418-EMC

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
pertained to a person with California rights. This is monitoring. Plaintiffs’ claims therefore treat
Thomson Reuters as a publisher, so the second prong of the CDA test is satisfied.
B.
Thomson Reuters is not the “information content provider.”
Plaintiffs allege that the content here comes from entities other than Thomson Reuters.
See Compl. ¶¶ 2, 14, 16-17. Plaintiffs nonetheless argue that Thomson Reuters is the information
content provider for two, mistaken reasons. First, Plaintiffs say that only user-generated content
is subject to CDA protection. Opp. at 18. Plaintiffs provide no authority for this radical
proposition, and the CDA includes no such requirement. 47 U.S.C. §§ 230(c)(1), 230(f)(3); see
also Liberi v. Taitz, No. SACV 11-0485, 2011 WL 13315691, at *11 (C.D. Cal. Oct. 17, 2011)
(CDA applied where the content was obtained from “State and Federal government agencies;
Mortgage companies; Banks; and Consumer Credit Reporting Agencies”); Nasser v. WhitePages,
Inc., No. 12cv097, 2013 WL 6147677, at *4 (W.D. Va. Nov. 22, 2013) (CDA applied where the
content was obtained through “agreements with third-party data providers”).
Second, Plaintiffs argue that Thomson Reuters is the information content provider because
Thomson Reuters “develops” and is the “sole cause” of “unlawful” content in CLEAR. Opp. at
19. But the Complaint alleges otherwise. The content at issue is the “name[s], photographs,
personal identifying information, [and] other personal data . . . included in the CLEAR database.”
Compl. ¶ 70. This is generated by third parties. See id. ¶¶ 2, 14, 16-17. That Plaintiffs argue that
the sale of that content is unlawful does not make the content itself unlawful. See Callahan, 2021
WL 783524, at *1, *6 (CDA immunity barred claims against defendant who had “databases of
personal and historical information . . . that it sells to subscribers”); Liberi, 2011 WL 13315691,
at *11 (CDA barred claims against defendants who sold reports containing personal information
about plaintiffs).
Third, Plaintiffs argue that the Ninth Circuit “held that an internet company can only be
immune for information that was ‘tendered’ to the company ‘for posting online.’” Opp. at 19
(citing Roommates.com, 521 F.3d at 1172 n. 32). But Roommates.com did not so hold. It stated
(in a footnote) that “Section 230 requires [courts] to scrutinize particularly closely any claim that
can be boiled down to the failure of an interactive computer service to edit or block user-
Case 3:21-cv-01418-EMC     Document 35     Filed 06/09/21     Page 20 of 23

REPLY ISO DEFENDANT’S MOTION TO
DISMISS AND MOTION TO STRIKE
-14-
CASE NO. 3:21-CV-01418-EMC

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
generated content that it believes was tendered for posting online.” 521 F.3d at 1172 n. 32
(emphasis added). Moreover, Plaintiffs do not allege that Thomson Reuters posted content on
CLEAR that Thomson Reuters did not believe was tendered to it for posting online. See Compl.
¶ 18 (alleging data elements collected online); Callahan, 2021 WL 783524, at *6 (“[N]o case
supports the conclusion that … immunity applies only if the website operator obtained the third-
party content from the original author.”). The third CDA prong is therefore satisfied, so the CDA
bars Plaintiffs’ claims.
IV.
California’s anti-SLAPP statute applies.
A.
Plaintiffs have not shown that the public interest exception applies.
Plaintiffs’ lawsuit does not fall within anti-SLAPP’s exception for actions “brought solely
in the public interest or on behalf of the general public.” Cal. Civ. P. Code § 425.17(b) (emphasis
added). First, “a litigant seeking ‘any’ personal relief may not rely on the [Section] 425.17(b)
exception.” Club Members for an Honest Election v. Sierra Club, 45 Cal. 4th 309, 317 (2008);
see also Cruz v. City of Culver City, 2 Cal. App. 5th 239, 250 (2016), as modified (Aug. 8, 2016)
(public interest exception denied where plaintiffs would receive a direct benefit); Blackburn v.
ABC Legal Servs., Inc., No. C 11-01298, 2011 WL 8609453, at *3 (N.D. Cal. June 16, 2011)
(same). Here, Plaintiffs seek payment for themselves, and they concede their unique position by
alleging they are in the public eye and are targeted by those who dislike their speech. Opp. at 1-2,
16. Second, Plaintiffs have not shown that their suit would enforce an important right affecting
the public interest and would confer a significant benefit on the general public. To do so,
Plaintiffs would at least need to provide some “legal basis” for their assertion that Thomson
Reuters has a “mandatory duty” to refrain from disseminating factual information that it obtained
through lawful means. Save Westwood Vill. v. Luskin, 233 Cal. App. 4th 135, 144 (2014). They
have not done so. See supra Sections I & II. Third, private enforcement is unnecessary. The
CCPA comprehensively covers the sale of personal information, and that statute is enforced by
the California Attorney General. See Cal. Civ. Code §§ 1795.150-1798.155.
Case 3:21-cv-01418-EMC     Document 35     Filed 06/09/21     Page 21 of 23

REPLY ISO DEFENDANT’S MOTION TO
DISMISS AND MOTION TO STRIKE
-15-
CASE NO. 3:21-CV-01418-EMC

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
B.
CLEAR is protected activity under the anti-SLAPP statute.
Because the relief that Plaintiffs seek would restrict Thomson Reuters’ protected speech in
a public forum on a matter of public interest, Plaintiffs are unlikely to prevail on the merits and
the Complaint should be stricken. First, Thomson Reuters’ speech is protected by the First
Amendment, see supra Section II, and the reach of California’s anti-SLAPP statute is even
“broader than the scope of constitutionally protected speech.” hiQ Labs, Inc. v. LinkedIn Corp.,
273 F. Supp. 3d 1099, 1116 (N.D. Cal. 2017). Second, Thomson Reuters’ speech is in a public
forum under the anti-SLAPP statute, because a website that receives over 100,000 search queries
a day, see Compl. ¶ 21, is a public forum within the meaning of the statute even if it is not
accessible by everyone and even if it charges for access. See, e.g., Wilbanks v. Wolk, 121 Cal.
App. 4th 883, 897 (2004) (website is a public forum even if the operator limits access); see also
Guglielmi v. Spelling–Goldberg Prods., 25 Cal. 3d 860, 868–69 (1979) (“The First Amendment is
not limited to those who publish without charge”). Third, Thomson Reuters’ speech is a matter of
public interest for the reasons already discussed. See supra at p. 1; Mot. at 10-12, 24.13 Like the
database of pharmaceutical information used by government subscribers in Exeltis USA Inc. v.
First Databank, Inc., the CLEAR database, which is also used by law enforcement and
government agencies, concerns a matter of public interest despite being available only to paying
subscribers. No. 17-cv-04810, 2017 WL 6539909 (N.D. Cal. Dec. 21, 2017); Compl. ¶¶ 59, 63
(database used by government).
CONCLUSION
For the foregoing reasons and those stated in the Motion, the Complaint should be
dismissed and Thomson Reuters’ motion to strike pursuant to California Code of Civil Procedure
Section 425.16 should be granted.

13 Plaintiffs’ argument that Thomson Reuters waived this argument is puzzling and unfounded.
See Opp. at 25.
Case 3:21-cv-01418-EMC     Document 35     Filed 06/09/21     Page 22 of 23

REPLY ISO DEFENDANT’S MOTION TO
DISMISS AND MOTION TO STRIKE
-16-
CASE NO. 3:21-CV-01418-EMC

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:  June 9, 2021

PERKINS COIE LLP
By: /s/ Susan D. Fahringer
Susan D. Fahringer, Bar No. 21567
SFahringer@perkinscoie.com
Attorneys for Defendant
Thomson Reuters Corporation

Case 3:21-cv-01418-EMC     Document 35     Filed 06/09/21     Page 23 of 23

File and source

File

gov.uscourts.cand.374304.35.0.pdf

Size

229,144 bytes

SHA-256

480aaec11f6a6fa57274a4669fde9ea8c1be6e8ed039a96776e1804dc2563efb

Our copy

gov.uscourts.cand.374304.35.0.pdf

Original

PACER (login required)