Shared Partnership v. Meta Platforms, Inc.

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 SHARED PARTNERSHIP, 10 Case No. 22-cv-02366-RS Plaintiff, 11 v. ORDER DENYING MOTION TO 12 DISMISS SECOND AMENDED META PLATFORMS, INC., COMPLAINT, DENYING REQUEST 13 FOR JUDICIAL NOTICE, AND Defendant. GRANTING ADMINISTRATIVE 14 MOTION TO SEAL

16 I. INTRODUCTION 17 Plaintiff Shared.com (“Shared”) is an online content creator that was deeply engaged in the 18 Facebook advertising ecosystem for many years. This suit arose following a series of alleged 19 incidents that effectively barred Shared from using, advertising on, and monetizing its engagement 20 with the social media platform. 21 Pursuant to Federal Rule of Civil Procedure 12(b)(6), Meta Platforms, Inc. moves to 22 dismiss Shared’s Fourth and Fifth Causes of Action in its Second Amended Complaint (“SAC”). 23 Meta relies upon the applicable statute of limitations, the economic loss rule, and additionally 24 contends that Shared’s averments in its SAC are insufficient to state a claim. For the reasons 25 below, Meta’s motion to dismiss is denied and Shared’s Administrative Motion to Consider 26 Whether Another Party’s Material Should Be Sealed (“sealing motion”) is granted. 1 Pursuant to 27 1 Civil Local Rule 7-1(b), the motion is suitable for disposition without oral argument, and the 2 hearing set for September 26, 2024 is vacated. 3 II. BACKGROUND2 4 Shared is a Canada-based publisher of original online content. In addition to operating its 5 own website, Shared ran several Facebook pages from 2006 to 2020.3 During this period, Shared 6 engaged with two of Facebook’s advertising features and amassed 25,000,000 followers across 7 its Facebook pages. First, Shared used Facebook’s “Instant Articles” monetization program to 8 embed Shared content into the Facebook news feed. Second, starting in 2008, Shared used 9 Facebook’s “self-service” advertising, a service that allowed Shared to purchase ads which, in 10 turn, drove traffic to its own website. Shared spent approximately $53,000,000 CAD on Facebook 11 advertising from 2006 to 2020, as well as $3,500,000 CAD from 2016 to 2020 to optimize its 12 content for social media platforms. 13 Issues arose when Shared lost access to the Instant Articles monetization program at least 14 three times between April and November of 2018. Shared’s lack of advance notice for these 15 terminations and Facebook’s delayed payment (by roughly four months) of Instant Articles 16 revenue violated Shared’s understanding of the Facebook Audience Network Terms (“FAN 17 Terms”). The FAN Terms indicated Facebook would make “good faith efforts” to notify 18 publishers before withdrawing their access to the Instant Articles program and would pay 19 publishers revenue from Instant Articles within 21 days after the month in which the transaction 20 occurred. Facebook’s failure to pay within the FAN Term window and its terminations of access 21 to the Instant Articles program without advance notice caused Shared to lose revenue and lay off 22

23 Because this order does not rely on Exhibits A and B and the corresponding references made in 24 Shared’s opposition, Shared’s request is denied as moot. 25 2 The factual background of this case is based on the well-pled allegations in Shared’s Second Amended Complaint, which are taken as true for the purposes of this motion. See Knievel v. 26 ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). 27 3 Meta is Facebook’s parent company. 1 more than 20 employees in 2018. 2 Shared also encountered difficulties while using Facebook’s self-serve advertising feature. 3 Shared used these services pursuant to one or more contracts set forth in the Self-Serve Ad Terms 4 and Commercial Terms, which combined to form the services purchase contract between Shared 5 and Facebook. Shared was also required to comply with Facebook’s Advertising Policies, which 6 were extrinsic to the contract. Facebook on multiple occasions rejected ads Shared purchased 7 through Facebook’s self-service feature. Facebook’s Advertising Policies between 2016 and June 8 2021 stated in the “Edit Your Ads” provision that advertisers would be informed why particular 9 ads were rejected and how they could bring their ads into compliance with Facebook policy. 10 Shared alleges it did not receive sufficient details as to why its ads were rejected or how to bring 11 its ads into compliance with the Advertising Policies. At multiple points, Shared would attempt to 12 re-run an ad that Facebook had previously approved, only to have that ad rejected without detailed 13 explanation. 14 These issues culminated in October 2020 when Facebook unpublished Shared’s pages, 15 suspended Shared’s ability to advertise on Facebook, and disabled several personal profiles 16 belonging to Shared employees. Such action is warranted under the Facebook Terms of Service 17 when accounts repeatedly breach Facebook policies. Shared avers it had not, to its knowledge, 18 violated any Facebook policies. 19 Shared brought this suit in July of 2022. Meta now moves to dismiss Plaintiff’s Fourth 20 Cause of Action for intentional misrepresentation and Fifth Cause of Action for negligent 21 misrepresentation. 22 III. MOTION TO DISMISS 23 A. Legal Standard 24 A complaint must contain “a short and plain statement of the claim showing that the 25 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While “detailed factual allegations” are not 26 required, a complaint must have sufficient factual allegations to state a claim that is “plausible on 27 its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 1 544, 555, 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that 2 allows the court to draw the reasonable inference that the defendant is liable for the misconduct 3 alleged.” Id. (citing Twombly, 550 U.S. at 556). This standard asks for “more than a sheer 4 possibility that a defendant has acted unlawfully.” Id. 5 Claims sounding in fraud must meet a higher specificity standard. See Fed. R. Civ. P. 9(b) 6 (“In alleging fraud or mistake, a party must state with particularity the circumstances constituting 7 fraud or mistake.”). Such averments “must be accompanied by ‘the who, what, when, where, and 8 how’ of the misconduct charged,” such that they are “specific enough to give defendants notice of 9 the particular misconduct.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009) 10 (quoting Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) and Bly-Magee v. 11 California, 236 F.3d 1014, 1019 (9th Cir. 2001)). Knowledge may be pleaded generally under 12 Rule 9(b), but the complaint “must set out sufficient factual matter from which a defendant’s 13 knowledge of a fraud might reasonably be inferred.” United States ex rel. Anita Silingo v. 14 WellPoint, Inc., 904 F.3d 667, 679–80 (9th Cir. 2018). 15 A Rule 12(b)(6) motion to dismiss tests the sufficiency of the claims alleged in the 16 complaint. Dismissal under Rule 12(b)(6) may be based on either the “lack of a cognizable legal 17 theory” or on “the absence of sufficient facts alleged under a cognizable legal theory.” See 18 Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (internal quotation marks and 19 citation omitted). When evaluating such a motion, the court must accept all allegations of material 20 fact in the complaint as true and construe them in the light most favorable to the non-moving 21 party. In re Quality Sys., Inc. Sec. Litig., 865 F.3d 1130, 1140 (9th Cir. 2017). It must also “draw 22 all reasonable inferences in favor of the nonmoving party.” Usher v. City of Los Angeles, 828 F.2d 23 556, 561 (9th Cir. 1987). 24 B. Discussion 25 Meta asserts three grounds to dismiss Shared’s Fourth and Fifth Causes of Action for 26 intentional misrepresentation and negligent misrepresentation, respectively. Meta, approximately 27 two years after filing its motion to dismiss, argues that these claims are barred by California’s 1 statute of limitations and the economic loss rule. Meta additionally contends that Shared’s claims 2 for intentional misrepresentation and negligent misrepresentation are insufficiently pled. 3 1. Statute of Limitations 4 At the motion to dismiss stage, dismissal can be granted on statute of limitations grounds 5 only if the assertions of the complaint, “read with the required liberality,” would not permit the 6 plaintiff to prove that the statute was tolled or otherwise modified. See Jablon v. Dean Witter & 7 Co., 614 F.2d 677, 682 (9th Cir.1980); Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1207 8 (9th Cir. 1995) (“[A] complaint cannot be dismissed unless it appears beyond doubt that the 9 plaintiff can prove no set of facts that would establish the timeliness of the claim.”). Meta 10 contends that Shared’s Claims Four and Five are barred by the three-year statute of limitations set 11 by California law because the claims accrued as early as 2016, when the Advertising Policies were 12 updated to include the “Edit Your Ads” provision. See Cal. Code Civ. Proc. § 338(d). 13 Shared, in its opposition to Meta’s motion to dismiss, has averred fraudulent inducement 14 occurred after April 2019 and therefore within the relevant period. It raises several exceptions and 15 modifications to the statute of limitations, invoking first the “continuing-wrong accrual 16 principles.” First, Shared contends that it purchased ads on numerous occasions within the time 17 period of 2008 to 2020, invoking the continuous accrual theory. Under this theory, a series of 18 wrongs or injuries may be viewed as each triggering its own limitations period, “such that a suit 19 for relief may be partially time-barred as to older events but timely as to those within the 20 applicable limitations period.” Aryeh v. Canon Bus. Sols., Inc., 55 Cal. 4th 1185, 1191, 292 P.3d 21 871, 875–76 (2013) (citing Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 811–818, 111 22 Cal.Rptr.2d 87, 29 P.3d 175; National Railroad Passenger Corporation v. Morgan (2002) 536 23 U.S. 101, 118, 122 S.Ct. 2061, 153 L.Ed.2d 106.) Alternatively, if the ad purchases were made 24 under a single contract, Shared argues the continuing violation doctrine applies. This doctrine 25 aggregates a series of wrongs or injuries for purposes of the statute of limitations, treating the 26 limitations period as accruing for all of them upon commission or sufferance of the last of them. 27 Id. Finally, Shared appeals to the discovery rule, which can “postpone accrual of a cause of action 1 until the plaintiff discovers, or has reason to discover, the cause of action.” Id. 2 Shared has adequately averred that Meta fraudulently induced Shared to purchase 3 Facebook advertising services after April 2019, less than three years before Shared filed its 4 misrepresentation claims in April 2022. Meta argues that continuous accrual is inappropriate 5 because Shared’s claim is based on a single fraud committed at the single contract formation in 6 2008. This argument turns on interpreting the agreements Shared made to purchase advertising 7 services. Despite Meta’s contentions, the terms of the agreement do not, on their face, clearly 8 create one contract between Shared and Meta for all advertisements. At this stage, Plaintiff’s 9 contention that there were multiple contracts must be accepted and it can be reasonably inferred 10 that if ad purchases were made between 2008 and 2020, at least one of those purchases was made 11 after April 2019. Therefore, Shared has adequately pled continuing accrual of harm for any 12 agreements after that time. While some of Shared claims are potentially time-barred under the 13 continuous accrual theory, it is unnecessary to differentiate the time period for recoverable 14 damages at the motion to dismiss stage. It is also unnecessary to evaluate the merits of Shared’s 15 appeal to the continuing violation doctrine, as Shared’s claims are not untimely on their face under 16 a theory of continuous accrual. Because the complaint alleges fraudulent inducement within the 17 three-year statute of limitations, it is not completely barred. See Aryeh, 55 Cal. 4th at 1201. 18 As Shared’s complaint is not time-barred on its face, it is also premature to evaluate 19 Shared’s argument that the discovery rule tolls Shared’s claims until no earlier than October 26, 20 2020. Meta can always reassert its timeliness argument in later proceedings, such as a motion for 21 summary judgment, when the factual questions underlying the statute of limitations and its 22 potential modifications can be more fully developed. 23 2. Economic Loss Rule 24 Meta argues Shared’s claims of intentional misrepresentation and negligent 25 misrepresentation are barred by the economic loss rule and should be dismissed. Under California 26 law, the economic loss rule precludes a party from recovering both in contract and in tort unless it 27 “can demonstrate harm above and beyond a broken contractual promise.” Robinson Helicopter Co. 1 v. Dana Corp., 34 Cal. 4th 979, 988 (2004). This means a party cannot recover pure monetary 2 damages that “resulted from a breach of contract unless [it] can show a violation of some 3 independent duty arising in tort.” Rattagan v. Uber Techs., Inc., 19 F.4th 1188, 1191 (9th Cir. 4 2021). The rule is at least partially intended to protect the ability of parties to contract with one 5 another to set rules governing liability. See Sheen v. Wells Fargo Bank, N.A., 12 Cal. 5th 905, 6 922–23 (2022). 7 Fraudulent inducement to enter a contract is one of several exceptions to the economic loss 8 rule. See Erlich v. Menezes, 21 Cal. 4th 543, 551–52 (1999) (listing instances in which tort 9 damages have been permitted in contract cases).4 Fraudulent inducement “occurs when the 10 promisor knows what he is signing but his consent is induced by fraud, mutual assent is present 11 and a contract is formed, which, by reason of the fraud, is voidable.” Rosenthal v. Great Western 12 Fin. Secs. Corp., 14 Cal. 4th 394, 415 (1996). 13 a. Intentional Misrepresentation 14 An intentional misrepresentation claim based on an allegedly false promise “is 15 alternatively called a ‘promissory fraud’ claim.” R Power Biofuels, LLC v. Chemex LLC, No. 16- 16 cv-716, 2017 WL 1164296, at *7 (N.D. Cal. Mar. 29, 2017); see Lazar v. Superior Ct., 12 Cal. 4th 17 631, 638 (1996) (noting that when there is a promise to do something “without such intention, 18 there is an implied misrepresentation of fact”). A claim for promissory fraud can constitute 19 fraudulent inducement, even where “the defendant’s promise is ultimately enforceable as a 20 contract.” Lazar, 12 Cal. 4th at 638. In other words, whether a promise becomes part of a written 21 contract does not preclude application of the fraudulent inducement exception. Shared’s 22 “intentional misrepresentation” claim is premised on what it avers was Facebook’s false 23

24 4 Shared also contends that Robinson Helicopter and the recent California Supreme Court ruling in 25 Rattagan v. Uber Techs., Inc., 19 F.4th 1188, 1191 (9th Cir. 2021) endorse an exception for affirmative misrepresentations and thus provide an independent basis to conclude the economic 26 loss rule does not bar its causes of action for intentional and negligent misrepresentation. This argument need not be addressed given that these causes of action fall within the fraudulent 27 inducement exception to that rule. 1 representation it would, if ads were rejected, explain why. 2 Shared’s averments in its intentional misrepresentation cause of action are sufficient to 3 invoke the fraudulent inducement exception to the economic loss rule.5 See Second Amended 4 Complaint ¶ 109 (“Shared reasonably relied on [the “Edit Your Ads”] provision in connection 5 with its decision to invest millions of dollars in connection with its use of Facebook’s self-serve 6 advertising services pursuant to the Self-Serve Advertising Contract.”). Shared avers it relied on 7 these representations before contracting with Meta and while deciding to continue advertising on 8 Facebook. See Second Amended Complaint para. 45 (averring that Shared used Facebook’s 9 advertising services “pursuant to one or more contracts); compare World Surveillance Grp. Inc. v. 10 La Jolla Cove Investors, Inc., 66 F. Supp. 3d 1233, 1236–37 (N.D. Cal. 2014) (deeming 11 statements “made well after the parties had executed the contracts” insufficient to state fraud claim 12 because party “could not have relied upon them as a basis for entering into the contracts or 13 relationship”). Therefore, Meta’s contention that any misrepresentation would have needed to 14 occur in 2008 before the formation of any contract is inapplicable. 15 Shared has sufficiently pled that it would have ceased or otherwise decreased its contracts 16 with Meta if not for the 2016 Facebook Advertising Policies. Despite Meta’s claims to the 17 contrary, the fact that a representation becomes part of a contract does not bar the application of 18 the fraudulent inducement exception, as explained above. Meta asserts Shared is simply 19 recharacterizing Meta’s “purported breach of contract,” Dkt. 99, at 18 (relying on JMP Securities 20 LLP v. Altair Nanotechs. Inc., 880 F. Supp. 2d 1029, 1043 (N.D. Cal. 2012)). As explained above, 21

22 5 Meta objects to Shared’s averments as contrary to prior allegations and the agreements themselves. However, an “amended complaint supersedes the original, the latter being treated 23 thereafter as nonexistent.” Ramirez v. Cnty. Of San Bernadino, 806 F.3d 1002, 1008 (9th Cir. 2015). Additionally, whether the Advertising Policies are incorporated into the Self-Service 24 Advertising Contracts is not dispositive for the fraudulent inducement exception, as explained above. 25 Separately, Meta objects to Shared’s references to “extrinsic evidence” (namely, deposition 26 testimony), arguing that this material may not be considered on a motion to dismiss. Dkt. 108, at 10–11. This evidence, including Plaintiff’s Proposed Third Amended Complaint, is unnecessary to 27 resolve Meta’s motion and will not be considered. 1 a claim for promissory fraud can trigger the fraudulent inducement exception to the economic loss 2 rule regardless of whether a promise becomes part of the contract. Though Meta cites cases it 3 argues demand a different conclusion, the California Supreme Court’s decision in Lazar is better 4 read as permitting the invocation of the fraudulent inducement exception even where the “promise 5 becomes part of an enforceable contract.” R Power Biofuels, LLC, 2017 WL 1164296, at *6. 6 Meta also asserts that Shared is disguising contractual claims as sounding in tort because it 7 seeks only economic (compensatory) and no personal damages. However, personal damages are 8 not required to invoke the fraudulent inducement exception to the economic loss rule. See Dhital 9 v. Nissan N. Am., Inc., 84 Cal. App. 5th 828, 834–25 (clarifying that while generally, “there is no 10 liability in tort for economic loss caused by negligence in the performance or negotiation of a 11 contract,” tort compensatory damages are permitted when an exception to the economic loss rule 12 is met). Additionally, Shared alleges punitive damages available under fraud, but not contract. In 13 sum, Shared states sufficient facts to meet the fraudulent inducement exception. 14 b. Negligent Misrepresentation 15 Shared’s negligent misrepresentation cause of action also survives. Unlike a cause of 16 action for intentional misrepresentation, which requires knowledge of falsity, a negligent 17 misrepresentation claim “requires a misrepresentation of fact by a person who has no reasonable 18 grounds for believing it to be true.” Chapman v. Skype Inc., 220 Cal. App. 4th 217, 230–31 19 (2013). Courts have held negligent misrepresentation claims fall within the fraudulent inducement 20 exception to the economic loss rule. See, e.g., Grouse River Outfitters Ltd. v. NetSuite, Inc., No. 21 16-cv-2954, 2016 WL 5930273, at *11 (N.D. Cal. Oct. 12, 2016) (fraudulent inducement claims 22 include “claims stated in negligent misrepresentation”). Negligent misrepresentation is a “species 23 of fraud.” Kalitta Air, L.L.C. v. Central Texas Airborne Sys., Inc., 315 F. App’x 604, 607 (9th Cir. 24 2008) (“Negligent misrepresentation is a separate and distinct tort, a species of the tort of deceit.”) 25 (citing Bily v. Arthur Young & Co., 3 Cal. 4th 370, 407 (1992)). The California Supreme Court has 26 affirmed tort damages are permitted in contract cases “when one party commits a fraud during the 27 contract formation or performance.” Robinson Helicopter Co., 34 Cal. 4th at 989–90 (quoting 1 Harris v. Atl. Richfield Co., 14 Cal. App. 4th 70, 78 (1993)). 2 There is no basis to distinguish Shared’s claims of negligent misrepresentation and 3 intentional misrepresentation for purposes of applying the fraudulent inducement exception. 4 Moreover, Meta makes no argument along these lines. Thus, Meta’s motion for judgment on the 5 pleadings is denied as to this cause of action as well. 6 3. Insufficiency 7 Finally, every claim must make a minimum showing of plausibility to survive a motion to 8 dismiss, and Rule 9(b) further requires claims sounding in fraud to be pleaded with particularity. 9 Meta argues that Shared’s causes of action are predicated on a claim of fraudulent inducement. In 10 Meta’s telling, because fraudulent inducement is insufficiently pled, Shared’s intentional and 11 negligent misrepresentation causes of action fail. Specifically, Meta contends that Shared could 12 not have been fraudulently induced into entering a 2008 initial contract by terms first published in 13 2016. However, Shared has adequately averred that there were multiple contracts governing its ad 14 purchases from 2008 to 2020. Shared has also adequately averred that it was fraudulently induced 15 into entering agreements after relying on Facebook’s Advertising Policies. 16 As discussed above, Shared adequately states that the misrepresentations that induced it to 17 begin and continue using Meta’s advertising services were distinct from the agreed-upon 18 contractual obligations. Despite Meta’s arguments to the contrary, whether or not the Advertising 19 Policies were at some point extrinsic to the Self-Serve Advertising Contract is open to 20 interpretation and therefore must be resolved in favor of Shared. 21 While Defendant Meta does not seek to dismiss Plaintiff’s First Cause of Action for 22 violations of California’s Unfair Competition Law (UCL, Plaintiff’s Claims Four and Five almost 23 entirely overlap with Claim One. Plaintiff states that if not for the promises Meta made in the 24 Facebook Advertising Policies and the potential for revocation of ad campaigns or privileges, it “would have purchased fewer advertisements.” Dkt. 94 ¶ 77. Given that Plaintiff satisfactorily 25 stated a claim under the “fraudulent” prong of the UCL, it has also stated a plausible claim for 26 misrepresentation with respect to Facebook’s Advertising Policies. 27 1 Although Plaintiff does not state who or when anyone at Shared read the “Edit Your Ads” 2 provision of Facebook’s Advertising Policies, the SAC nevertheless states that Shared “reasonably 3 believed that Facebook’s representations in the ‘Edit Your Ads’ Provision of the Advertising 4 Policies were true” and “prior to deciding to advertise and/or continue advertising on Facebook… reasonably relied upon the [policies].” Dkt. 94 ¶¶ 58, 62. The SAC avers Defendant’s wrongful 5 conduct with sufficient particularity to satisfy Rule 9(b), and Defendant’s motion is therefore 6 denied with respect to Claims Four and Five.6 7 IV. SEALING MOTION 8 Shared has filed, pursuant to Civil Local Rules 7-11 and 79-5, an Administrative Motion to 9 Consider Whether Another Party’s Material Should Be Sealed (“sealing motion”). See Dkt. 106. 10 Meta has timely filed a statement related to the Administrative Motion, in compliance with Civil 11 Local Rule 79-5(f)(3). See Dkt. 107. There is a strong presumption in favor of allowing public 12 access when deciding whether materials should be sealed. See Apple Inc. v. Psystar Corp., 658 13 F.3d 1150, 1162 (9th Cir. 2011). A request to seal must be narrowly tailored. Civ. L.R. 79-5(c)(3). 14 To overcome the presumption in favor of public access to a judicial record, there generally must 15 be “compelling reasons supported by specific factual findings.” Kamakana v. City & Cty. of 16 Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (“The mere fact that the production of records may 17 lead to a litigant's embarrassment, incrimination, or exposure to further litigation will not, without 18 more, compel the court to seal its records.”). Where a litigant presents compelling reasons to seal 19 material, the court must then balance the interests of the public and the party seeking sealing. Ctr. 20 for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096–97 (9th Cir. 2016). This balancing 21 test involves such factors as the public’s interest in understanding the functioning of the judicial 22 process and the volume of material sought to be sealed. See Zakinov v. Ripple Labs, Inc., No. 18- 23 cv-6753, 2023 WL 5280193, at *1 (N.D. Cal. Aug. 15, 2023). 24

25 6 As previously noted, Plaintiff pleads Claim Four and Five in the alternative, as it must, because it 26 is impossible to be liable for intentional and negligent misrepresentation simultaneously for the same conduct. The distinction turns on Defendant’s knowledge, but since knowledge may be 27 alleged generally under Rule 9(b), Plaintiff has met this requirement. 1 Here, parties seek to redact portions (approximately one page total) of Shared’s opposition 2 to Meta’s motion to dismiss and portions of that oppositions Exhibits D and E. Additionally, 3 parties seek to file Exhibit G to the opposition under seal in its entirety. Meta contends that 4 compelling reasons exist here, where the information at issue could be used “as sources of business information that might harm a litigant’s competitive standing.” In re Electronic Arts, Inc., 5 298 Fed. App’x 568, 569 (9th Cir. 2008). Meta has adequately supported its averment that the 6 publication of the information would put Meta at a competitive disadvantage. Given that and the 7 relatively narrow portions of the opposition motion and supporting exhibits designated as 8 sensitive, the sealing motion is granted. 9 The following are ordered to be filed under seal until such time as the propriety of the 10 designations is fully adjudicated. 11 Document Portion(s) to be Sealed 12 Plaintiff’s Opposition to Defendant’s Motion Highlighted portions. 13 to Dismiss Plaintiff’s Second Amended See 13:11-14:15, n. 8, and 19:10-17. Complaint 14 (Dkt. 105) 15 Exhibit D to the Alciati Opposition Highlighted portions. Declaration See ¶¶60-62, including n. 6. 16 (Dkt. 105-6) 17 Exhibit E to the Alciati Opposition Declaration Highlighted portions. (Dkt. 105-7) See ¶¶60-62, including n. 6. 18 Exhibit G to the Alciati Opposition Document in its entirety. 19 Declaration (Dkt. 105-9) 20 21 22 V. CONCLUSION 23 Meta’s Motion to Dismiss Shared’s Second Amended Complaint is denied. Shared’s 24 Administrative Motion to Consider Whether Another Party’s Material Should Be Sealed is 25 granted. 26 27 IT IS SO ORDERED. 1 2 || Dated: September 23, 2024 3 RICHARD SEEBORG 4 Chief United States District Judge 5 6 7 8 9 10 11 12

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Z 18 19 20 21 22 23 24 25 26 27 ORDER ON MOTION TO DISMISS SECOND AMENDED COMPLAINT CASE No. 22-cv-02366-RS