Motion To Further

Date: 2021-07-16

Summary

Defendants Facebook, Inc. and Mark Zuckerberg's opposition to the plaintiff's motion to further supplement its Second Amended Complaint and for in camera inspection, filed June 21, 2021 as Document 104 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. The opposition, set for a July 16, 2021 hearing before Hon. Susan Illston, argues that the proposed allegations about removal of vaccine-hesitancy groups, comment demotion, the lab-leak hypothesis and emails with a federal official do not relate to the plaintiff's claims or plausibly allege state action. It asks that the motion be denied or, if granted, that the Second Amended Complaint be dismissed with prejudice. It is signed by Sonal N. Mehta of Wilmer Cutler Pickering Hale and Dorr LLP.

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Case 3:20-cv-05787-SI Document 104 Filed 06/21/21 Page 1 of 10

1 SONAL N. MEHTA (SBN 222086)
Sonal.Mehta@wilmerhale.com
2 WILMER CUTLER PICKERING
HALE AND DORR LLP
3 2600 El Camino Real, Suite 400
Palo Alto, California 94306
4 Telephone: (650) 858-6000
Facsimile: (650) 858-6100
5
ARI HOLTZBLATT (pro hac vice)
6 Ari.Holtzblatt@wilmerhale.com
MOLLY M. JENNINGS (pro hac vice)
7 Molly.Jennings@wilmerhale.com
ALLISON SCHULTZ (pro hac vice)
8 Allison.Schultz@wilmerhale.com
WILMER CUTLER PICKERING
9 HALE AND DORR LLP
1875 Pennsylvania Ave, NW
10 Washington, DC 20006
Telephone: (202) 663-6000
11 Facsimile: (202) 663-6363

12 Attorneys for Defendants
FACEBOOK, INC. and
13 MARK ZUCKERBERG

15
UNITED STATES DISTRICT COURT
16
NORTHERN DISTRICT OF CALIFORNIA
17
SAN FRANCISCO DIVISION
18
CHILDREN’S HEALTH DEFENSE,
19 Case No. 3:20-cv-05787-SI
Plaintiff,
20
DEFENDANTS FACEBOOK INC.’S
v.
21 AND MARK ZUCKERBERG’S
FACEBOOK, INC., ET AL., OPPOSITION TO PLAINTIFF’S
22 MOTION TO FURTHER
Defendants. SUPPLEMENT ITS SECOND
23 AMENDED COMPLAINT AND FOR
IN CAMERA INSPECTION
24

25 Hon. Susan Illston
Courtroom 1 – 17th Floor
26 Date: July 16, 2021
Time: 10:00 a.m.
27

CASE NO.: 3:20-CV-05787-SI FACEBOOK’S OPP. TO PL.’S MOT. TO
FURTHER SUPPLEMENT SAC
Case 3:20-cv-05787-SI Document 104 Filed 06/21/21 Page 2 of 10

1 Children’s Health Defense (“CHD”) now seeks its fifth modification to the complaint it

2 originally filed nearly a year ago. Including the allegations in CHD’s pending motions to

3 supplement, the operative pleading would span 431 paragraphs over three separate filings. But the

4 allegations in the second proposed supplement—like those in the first proposed supplement and

5 many of those in the Second Amended Complaint (“SAC”) itself—have nothing to do with any

6 claimed injury to CHD. The latest proposed allegations concern, instead, efforts by Defendants

7 Facebook, Inc. and Mark Zuckerberg (“Defendants”) to remove groups, Pages, and accounts that

8 promote vaccine hesitancy and to demote comments that do the same—initiatives with no relevance

9 to Facebook posts of the kind at issue here and distinct from the fact-checking program that forms
10 the core of this case. CHD’s attempts to prolong this litigation—and delay adjudication of the
11 incurable defects in its claims—through successive supplemental pleadings should be put to an end.
12 Its latest supplementation is too little to save its claims, too late. CHD’s motion should be denied,
13 and its case dismissed with prejudice.
14 FACTUAL STATEMENT

15 CHD filed the original Complaint in this action on August 17, 2020. ECF No. 1. As set forth

16 in more detail in Facebook’s Opposition to CHD’s first Motion to Supplement, CHD has since filed

17 two amended complaints and a motion to supplement, serially waiting until after Defendants had

18 addressed the previous iteration of its allegations before seeking to shift the target. See ECF No. 82

19 at 1-2. Now, after Defendants’ motion to dismiss has already been argued and taken under

20 submission by this Court, and after CHD filed two unauthorized submissions to further augment the

21 record, CHD once again seeks to lob in new allegations to its ever-changing complaint.

22 ARGUMENT

23 As fully briefed in the context of CHD’s last motion to supplement, there are five factors

24 relevant to a motion to supplement pleadings: “(1) undue delay, (2) bad faith or dilatory motive on

25 the part of the movant, (3) repeated failure of previous amendments, (4) undue prejudice to the

26 opposing party, and (5) futility of the amendment.” Lyon v. U.S. Immigration & Customs

27 Enforcement, 308 F.R.D. 203, 214 (N.D. Cal. 2015) (quoting Foman v. Davis, 371 U.S. 178, 182

28 (1962)); see also Yates v. Auto City 76, 299 F.R.D. 611, 614 (N.D. Cal. 2013) (the same standard
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Case 3:20-cv-05787-SI Document 104 Filed 06/21/21 Page 3 of 10

1 applies to motions to supplement under Rule 15(d) as to motions to amend under Rule 15(a)). While

2 there is a general presumption in favor of granting leave to amend, “prejudice or a ‘strong showing’”

3 on the other factors outweighs that presumption. Lyon, 308 F.R.D. at 214. (quoting Eminence

4 Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003)). Because each factor weighs

5 against supplementation, CHD’s motion should be denied. Alternatively, even if the Court were to

6 grant CHD’s motion to supplement, it should dismiss CHD’s SAC, twice supplemented, with

7 prejudice. Any further amendment, just like the instant motion to supplement, would be futile.

8 I. SUPPLEMENTATION WOULD BE FUTILE BECAUSE CHD’S FIFTH ATTEMPT

9 TO STATE A CLAIM STILL FAILS
10 CHD’s proposed second-supplemental allegations do nothing to bolster its claims, and its
11 motion should be denied as futile. Even if the proposed new allegations had any bearing on the
12 claims in the SAC (they do not), the proposed supplemental allegations fail to support any claim for
13 relief as they neither render it any more plausible that Facebook made any false statements relating
14 to CHD nor plausibly allege that any federal actor was involved in any decision with respect to
15 CHD, as is required to allege state action, see Belgau v. Inslee, 975 F.3d 940, 946 (9th Cir. 2020)
16 (state action requires that “the challenged conduct that caused the alleged constitutional deprivation
17 [be] ‘fairly attributable’ to the state[]” (citation omitted)).
18 First, CHD is wrong that the new allegations that Facebook takes action against COVID-
19 and vaccine-related content even if not verifiably false renders it any more plausible that Facebook
20 falsely labeled CHD’s posts as containing false information. See Mot. 6. The relevant supplemental
21 allegations are wholly unrelated to the claims in this case:
22 • The May 11, 2021 article relied upon in paragraphs 1 and 2 of CHD’s proposed
23 supplemental allegations explains that Facebook “is now removing groups, pages and
24 accounts that deliberately discourage people from taking vaccines, regardless of whether
25 the information can be verified as false or not,” describing that as “a shift in policy.” BBC
26 Trending, The Volunteers Using ‘Honeypot” Groups To Fight Anti-Vax Propaganda
27 (May, 11, 2021), https://tinyurl.com/bbchoneypot (quoted at ECF No. 103-1 Ex. 1 ¶ 2).
28 That is irrelevant to CHD’s claims for at least two reasons: (1) the policy postdates any
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Case 3:20-cv-05787-SI Document 104 Filed 06/21/21 Page 4 of 10

1 alleged action against CHD by approximately eight months, see SAC ¶¶ 173, 180, 184,

2 191, 194 (alleging that Facebook most recently took action against CHD posts in

3 September 2020); and (2) the SAC does not allege that CHD has had any group, Page, or

4 account removed. 1

5 • The documents published by Project Veritas and relied upon in paragraphs 3, 4, and 5 of
6 the proposed supplement pertain only to “[c]omment [d]emotion” as a way to “reduce

7 user exposure to vaccine hesitancy (VH) in comments.” ECF No. 103-1 at 18. That

8 effort—which uses an algorithm to identify and demote comments with statements

9 promoting vaccine hesitancy, see id. at 18-31—has no bearing on content that a user posts
10 directly to his or her own Facebook Page (as CHD alleges it did here, see, e.g., SAC ¶¶ 1,
11 33, 129, 139). It is also distinct from the fact-checking program that forms the basis of
12 CHD’s complaint, in which third-party fact-checkers identify whether a post contains
13 false or misleading information, see ECF No. 69 at 3-4 (explaining Facebook’s fact-
14 checking program). CHD does not allege that Facebook has ever demoted or otherwise
15 taken action against any comment it has posted.
16 Second, the allegation that Facebook revised its position with respect to the COVID lab-leak
17 hypothesis, see Mot. 6; ECF No. 103-1 Ex. A ¶¶ 22-24, does not support any inference that
18 Facebook either falsely identified CHD’s posts as containing false information or made any content-
19 moderation decision—and certainly no decision with respect to CHD’s content—at the behest of
20 the federal government. CHD does not allege that it ever posted any content regarding the lab-leak
21 hypothesis or that Facebook took action against any such content. Nor does CHD allege that
22 Facebook had any reason to doubt its stance on the lab-leak hypothesis prior to its official change
23 in position. Rather, the only reasonable inference supported by the allegation is that Facebook
24 revises its policies as new facts emerge. On May 14, 2021, for example—approximately a week-
25 and-a-half before Facebook’s alleged reversal—a letter in Science published by a group of academic
26
1
Even if CHD’s supplemental allegation regarding the suspension of non-party Robert F. Kennedy,
27 Jr. from Instagram was relevant here, but see ECF No. 82 at 10-11, that, too, occurred prior to the
28 change in policy referenced in CHD’s supplemental allegations. See ECF No. 76-1 Ex. 1 ¶ 2
(alleging that Mr. Kennedy’s Instagram account was terminated on February 10, 2021).
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Case 3:20-cv-05787-SI Document 104 Filed 06/21/21 Page 5 of 10

1 researchers noted that “more investigation is still needed to determine the origin of the [COVID-19]

2 pandemic” and that “[t]heories of accidental release from a lab and zoonotic spillover both remain

3 viable.” Jesse D. Bloom et al., Investigate the Origins of COVID-19, 372 Science 694, 694 (May

4 14, 2021), https://tinyurl.com/sciencemagcovidorigins. 2 And around the time of Facebook’s change

5 in policy, the global media reported that the lab-leak hypothesis “ha[d] been gaining traction”

6 following the release of a report indicating that “researchers at the Wuhan laboratory were treated

7 in hospital in November 2019, just before the virus began infecting humans in the city.” BBC News,

8 Covid Origin: Why the Wuhan Lab-Leak Theory is Being Taken Seriously (May 27, 2021),

9 https://tinyurl.com/bbccovidorigin. 3 The mere fact that Facebook revised its position on the lab-leak
10 hypothesis in the face of this emerging recognition of its potential validity does not support an
11 inference of state action. Nor does the fact that Dr. Fauci changed his position around the same time.
12 General alignment in views or even a “shared goal” does not support state action unless the shared
13 goal is specifically to “violat[e] a plaintiff’s constitutional rights.” Franklin v. Fox, 312 F.3d 423,
14 445 (9th Cir. 2002). That test is plainly not met here, given that CHD does not allege that it ever
15 posted any content related to the lab-leak hypothesis.
16 Third, the email communications between Mr. Zuckerberg and Dr. Fauci relied upon in
17 paragraphs 6 through 21 of CHD’s amended allegations do not lend credibility to CHD’s claims.
18 As CHD recognizes in its motion, the allegations in this case focus on the alleged “suppression of
19 COVID- and vaccine-related speech” by CHD. Mot. 7. The referenced communications, by contrast,
20 concern only promoting authoritative information about COVID-19, not suppressing or even fact-
21 checking any other information, let alone any posts by CHD. The communications discuss “a few
22

23
2
The Court may take judicial notice of the fact that, on May 14, 2021, a group of academics
24 published an article noting the viability of the lab-leak hypothesis. See Threshold Enters. Ltd. v.
Pressed Juicery, Inc., 445 F. Supp. 3d 139, 146 (N.D. Cal. 2020). The existence and content of the
25 letter cannot reasonably be disputed as they can be readily determined from reliable sources—
26 namely, the Science publication and website.
3
The Court may take judicial notice of the fact that a May 27, 2021 BBC article stated that the lab-
27 leak hypothesis was gaining traction because of recently released information. See Threshold
28 Enters. Ltd., 445 F. Supp. 3d at 146. The existence and content of the article cannot reasonably be
disputed as they can be readily determined from a reliable source—namely, the BBC website.
CASE NO.: 3:20-CV-05787-SI -4- FACEBOOK’S OPP. TO MOT. TO SUPPL.
Case 3:20-cv-05787-SI Document 104 Filed 06/21/21 Page 6 of 10

1 ideas of ways [Facebook] could help get [Dr. Fauci’s] message out,” including by “building a

2 Coronavirus Information Hub” to make available “authoritative information” and “encourage

3 people to practice social distance” and by creating “a series of livestreamed Q&As with health

4 experts.” ECF No. 103-1 at 37-38. And public statements from Facebook’s Policy Communications

5 Director explain that the redacted portions of the emails similarly have nothing to do with

6 misinformation or factchecking. Rather, consistent with the subject of amplifying authoritative

7 information, Mr. “Zuckerberg told Dr. Fauci of [Facebook’s] plan … to share Facebook ad credits

8 with government agencies to help them run coronavirus PSAs.” Twitter, Andy Stone on Twitter

9 (June 9, 2021), tinyurl.com/andystonetwitter.
10 Those communications are irrelevant here. CHD does not and could not allege any injury in
11 connection with the Coronavirus Information Hub, any livestreamed Q&As, or any public service
12 announcements. Nor do the communications support any inference of state action. Absent specific
13 “language suggesting or requiring” the allegedly unconstitutional conduct—which here consists of
14 the fact-checking, demotion, and removal of various CHD posts as well as the deactivation of
15 fundraising tools, none of which is so much as referenced in the email communications—general
16 “offer[s] to assist” between state and private actors do not give rise to state action. Lansing v. City
17 of Memphis, 202 F.3d 821, 833 (6th Cir. 2000); see also Morse v. North Coast Opportunities, Inc.,
18 118 F.3d 1338, 1343 (9th Cir. 1997) (state action requires sufficient government involvement that
19 it be “fair to attribute the challenged activity to … the federal … government” (emphasis added)).
20 Facebook’s offer to help the government combat the coronavirus in ways wholly unrelated to CHD’s
21 claims therefore fall far short of alleging state action with respect to any actions taken against CHD.
22 More fundamentally, CHD’s proposed supplemental allegations point to nothing but
23 Facebook and Mr. Zuckerberg’s exercise of their own constitutionally protected rights. As private
24 actors, defendants have the First Amendment right to exercise their own discretion regarding the
25 content distributed or promoted through their platforms. See, e.g., Jian Zhang v. Baidu.com Inc., 10
26 F. Supp. 3d 433, 443 (S.D.N.Y. 2014) (First Amendment protects the decision to block content from
27 search results). They may decide what messages to exclude from their platforms, see Miami Herald
28
CASE NO.: 3:20-CV-05787-SI -5- FACEBOOK’S OPP. TO MOT. TO SUPPL.
Case 3:20-cv-05787-SI Document 104 Filed 06/21/21 Page 7 of 10

1 Publ’g Co. v. Tornillo, 418 U.S. 241, 258 (1974), as well as what messages to amplify, even if those

2 messages originate from the federal government.

3 Ultimately, as with CHD’s prior attempts to state a claim, the supplemental allegations fail

4 to establish any state action with respect to the activity challenged in CHD’s amended counterclaim,

5 and the motion to supplement should be denied as futile. Alternatively, and for the same reasons, if

6 the Court grants CHD’s motion to supplement, it should dismiss the SAC as supplemented with

7 prejudice. CHD has now had five attempts to state a claim for relief based on the fact-checking of

8 its posts and Facebook’s related content-moderation decisions. No further amendments will be any

9 more fruitful.
10 II. CHD HAS ACTED WITH UNDUE DELAY AND BAD FAITH AND
11 SUPPLEMENTATION WOULD UNDULY PREJUDICE DEFENDANTS
12 CHD’s motion should also be denied for the independent reason that CHD’s
13 supplementation is the result of undue delay and not brought in good faith.
14 As this Court is well aware, CHD has repeatedly sought to alter its pleadings while a motion
15 to dismiss was pending before the Court. First, CHD sought to file a First Amended Complaint
16 rather than respond to Defendants’ original motion to dismiss, filed on October 23, 2020. ECF No.
17 56. Then, on December 4, 2020—two weeks before Defendants’ motions to dismiss CHD’s First
18 Amended Complaint were due, CHD sought leave to file a SAC. ECF No. 65. Three days after
19 completion of briefing on Defendants’ motion to dismiss the SAC, CHD filed its first motion to
20 “supplement”; almost all of the proposed supplemental allegations were known to CHD well before
21 briefing on the motion to dismiss was complete, but CHD waited until after Defendants had briefed
22 the motion to come forward with them. ECF No. 82. Most recently, after the Court had already
23 heard extended oral argument on Defendants’ motions to dismiss and taken them under submission,
24 CHD lobbed in yet more unauthorized submissions, including a “Request for Judicial Notice” that
25 was nothing more than a thinly-veiled supplemental brief attempting to submit new argument and
26 authority to the Court. ECF No. 97.
27 Distressingly, CHD’s latest submission is more of the same. The latest supplement does not
28 even attempt to add factual allegations that would address the fundamental failings in CHD’s legal
CASE NO.: 3:20-CV-05787-SI -6- FACEBOOK’S OPP. TO MOT. TO SUPPL.
Case 3:20-cv-05787-SI Document 104 Filed 06/21/21 Page 8 of 10

1 theories that have been exposed by Defendants’ motions to dismiss. As described above, see supra

2 pp. 2-3, many of CHD’s proposed supplemental allegations of purported collaboration between

3 Facebook and the federal government post-date the alleged conduct set forth in CHD’s SAC. Of

4 course, allegations of federal-private interactions that “post-date the relevant conduct that allegedly

5 injured Plaintiff[]” “do not establish joint action,” Federal Agency of News LLC v. Facebook, Inc.,

6 432 F. Supp. 3d 1107, 1125-1126 (N.D. Cal. 2020). CHD’s other proposed supplemental allegations

7 concern specific moderation activity distinct from the third-party independent fact-checking

8 program at issue here. 4

9 Eleven months (and 100+ docket entries) into this case, Defendants have expended
10 substantial resources in addressing CHD’s successive pleadings and multiple unauthorized
11 submissions. And significantly, the Court has already invested substantial time in considering the
12 viability (or lack of viability) of CHD’s claims in conjunction with the latest motion to dismiss.
13 Whatever extrajudicial reasons CHD may have for seeking to delay adjudication of the pending
14 motions to dismiss, it has by now pled its best case—a few times over. CHD must stop attempting
15 to move the target and allow the Court to rule.
16 III. CHD’S REQUEST FOR IN CAMERA INSPECTION SHOULD BE DENIED
17 CHD’s request for in camera inspection of a March 2020 email must be denied as well.

18 Curiously, CHD styles its motion as a motion pursuant to the All Writs Act, 28 U.S.C. § 1651, but

19 that law applies only in “the most critical and exigent circumstances,” Brown v. Gilmore, 533 U.S.

21
4
Indeed, even after Defendants have highlighted the troubling pattern of CHD’s filings in this case,
22 CHD persists. See ECF No. 82 at 5 (“CHD’s latest amendment continues the same strategy: let
Defendants expend time and money addressing the insufficiency of CHD's pleading, and then, at
23
the eleventh hour, change the pleading to avoid or delay adjudication of that question. It is time for
24 the Court to put this maneuvering to a stop. Rule 12 motions are not a game of whack-a-mole. At
some point, the plaintiff must state claims that are stable enough for the Court to evaluate them.
25 Here, after multiple amendments and over 150 pages, CHD has surely pled its best case. The Court
must now rule on whether that pleading states a viable claim. ECF No. 99 n.1 (“[T]he pattern and
26 timing of CHD’s serial supplements and motions is troubling to say the least. CHD’s latest
submissions only exacerbate the concern that CHD is unjustifiably prolonging and multiplying these
27
proceedings, thereby imposing unreasonable burden and expense not only on Defendants but also
28 on the Court.”).

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1 1301 (2001) (Rehnquist, C.J., in chambers) (quoting Ohio Citizens for Responsible Energy, Inc. v.

2 NRC, 479 U.S. 1312, 1313 (1986) (Scalia, J. in chambers)). Relief under the All Writs Act is

3 available “only if the legal rights at issue are indisputably clear.” Id. (internal quotation marks

4 omitted).

5 CHD fails to explain why such extraordinary relief would be warranted here, and for good

6 reason: it is not. The communication between Mr. Zuckerberg and Dr. Fauci described in the motion

7 to supplement does not support CHD’s fact-checking claims. To the contrary, it concerns distinct

8 efforts to promote authoritative information about a developing global pandemic. As noted above,

9 public statements from Facebook’s Policy Communications Director explain that the redacted
10 portions of the emails are not related to misinformation or factchecking. Consistent with the subject
11 of amplifying authoritative information, Mr. “Zuckerberg told Dr. Fauci of [Facebook’s] plan … to
12 share Facebook ad credits with government agencies to help them run coronavirus PSAs.” Twitter,
13 Andy Stone on Twitter (June 9, 2021), tinyurl.com/andystonetwitter.
14 Of course, if the Court wishes to review the document at issue in camera and confirm for
15 itself that the unredacted document is irrelevant to CHD’s claims, Defendants stand ready to submit
16 the document for the Court’s review.
17 CONCLUSION

18 CHD’s Motion to Further Supplement and for In Camera Inspection should be denied, or, if

19 granted, its Second Amended Complaint should be dismissed with prejudice because the

20 supplemental allegations still fail to cure its fatal defects.

23 Dated: June 21, 2021 WILMER CUTLER PICKERING, HALE AND
DORR LLP
24
By: /s/ Sonal N. Mehta
25 SONAL N. MEHTA

26 Attorney for Defendants
Facebook, Inc. and Mark Zuckerberg
27

28
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Case 3:20-cv-05787-SI Document 104 Filed 06/21/21 Page 10 of 10

1 CERTIFICATE OF SERVICE

2 I hereby certify that on June 21, 2021, I electronically filed the above document with the

3 Clerk of the Court using CM/ECF which will send electronic notification of such filing to all

4 registered counsel.

6 Dated: June 21, 2021 By: /s/ Sonal N. Mehta
Sonal N. Mehta
7

9
10

28
-1-
CASE NO.: 3:20-CV-05787-SI FACEBOOK’S OPP. TO MOT. TO SUPPL.

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Motion To Further

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