Case 5:20-cv-00363-BLF Document 115 Filed 04/26/21 Page 1 of 17
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`REVEAL CHAT HOLDCO LLC, et al.,
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`Plaintiffs,
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`v.
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`FACEBOOK, INC.,
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`Case No. 20-cv-00363-BLF
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`ORDER GRANTING MOTION TO
`DISMISS
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`[Re: ECF 71]
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`Defendant.
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`Three web developers—Reveal Chat Holdco LLC (“Reveal Chat”), USA Technology and
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`Management Services, Inc. (“Lenddo”), and Beehive Biometric, Inc. (“Beehive”) (collectively
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`“Plaintiffs”)—have brought this lawsuit against Defendant Facebook, Inc. (“Facebook”) for
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`removing access to a set of application programming interfaces (“APIs”) in 2015 that Plaintiffs
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`relied on for their mobile applications. See Am. Compl., ECF 62. Plaintiffs allege that Facebook’s
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`removal of these APIs was part of an elaborate scheme that violates Section 2 of the Sherman Act.
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`See id. The Court previously found that Plaintiffs’ claims were time-barred and granted them leave
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`to amend their complaint. See Order (“Prior MTD order”), ECF 61. Facebook has again filed a
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`motion to dismiss that includes the threshold issue of whether Plaintiff’s claims are time-barred.
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`See Mot., ECF 71. Plaintiffs oppose this motion. See Opp’n, ECF 73. The Court held a two-hour
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`oral argument on December 3, 2020, giving Plaintiffs ample opportunity to discuss the viability of
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`their claims. See Min Entry, ECF 78. For the reasons detailed below, the Court GRANTS
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`Facebook’s motion.
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`I.
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` BACKGROUND
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`Plaintiffs allege that between 2004 and 2010, Facebook vanquished a number of rivals in
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`order to emerge as the dominant social network in the United States. Am. Compl. ¶ 76. “By 2010,
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`Facebook stood alone as the dominant player in the newly emergent market for social data (the
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`‘Social Data Market’)—a market in which Facebook’s own users provided Facebook with a
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`constant stream of uniquely valuable information, which Facebook in turn monetized through the
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`sale of social data (for example, through advertising, monetizing APIs, or other forms of
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`commercializing access to Facebook’s network).” Am. Compl. ¶ 90. Facebook sold access to
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`social data to developers and sold advertisements targeting Facebook’s network of engaged and
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`active users. Am. Compl. ¶ 91. Because user data made Facebook’s network more valuable and
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`thus attracted more customers, which then led to more data and more customers, a feedback loop
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`emerged. Am. Compl. ¶¶ 92-95. Data provided by users made Facebook’s network more valuable,
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`thereby attracting more users to the network. Am. Compl. ¶ 92. A barrier to entry emerged from
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`this feedback loop—to compete with Facebook, a new entrant would have to rapidly replicate both
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`the breadth and value of the Facebook network by building its own vast network and duplicating
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`the active user engagement on the same massive scale. Am. Compl. ¶ 95. Plaintiffs allege that this
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`“Social Data Barrier to Entry” allows Facebook to control and increase prices in the Social Data
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`and Social Advertising Markets without the pressures of price competition from existing
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`competitors or new entrants. Am. Compl. ¶ 96.
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`In 2012, Facebook coined the term “Open Graph” “to describe a set of tools developers
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`could use to traverse Facebook’s network of users, including the social data that resulted from user
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`engagement.” Am. Compl. ¶ 131. Open Graph contained a set of APIs, which “allowed those
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`creating their own social applications to query the Facebook network for information.” Am.
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`Compl. ¶ 132. Beginning in the fall of 2011, to allegedly address the threat posed by mobile
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`applications, Facebook devised a scheme to attract third-party developers to build for their
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`platform and then remove access to the APIs that were central to these applications. Am. Compl. ¶
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`157. For example, the “Friends API” allowed third-party developers to search through a user’s
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`friends, as well as their friends of friends. Am. Compl. ¶ 158. Plaintiffs consider the Friends API,
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`News Feed API, and certain Messaging APIs the “Core APIs.” Am. Compl. ¶ 5. Without access to
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`this data, third-party applications “would be abruptly left with none of the social data they needed
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`to function.” Am. Compl. ¶ 159. By August 2012, Facebook planned to prevent competitive third-
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`Case 5:20-cv-00363-BLF Document 115 Filed 04/26/21 Page 3 of 17
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`party applications from buying social data from Facebook. Am. Compl. ¶ 167. Facebook even
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`identified direct, horizontal competitors in the Social Data and Social Advertising Markets. Am.
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`Compl. ¶ 168. In November 2012, Facebook announced that it would block competitors or require
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`full data reciprocity for continued access to its data. Am. Compl. ¶ 176. Plaintiffs allege that
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`Facebook’s statements from September 2011 through April 2014 about the functionality of the
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`Core APIs were false, half-truths that created a duty to speak fully and truthfully about the Core
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`APIs. Am. Compl. ¶ 450.
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`In April 2014, Facebook announced that it would remove access to several “rarely used”
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`APIs, including the Friends and News Feed APIs. Am. Compl. ¶ 242. Plaintiffs allege that these
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`APIs were in fact quite popular and relied on by tens of thousands of third-party applications. Am.
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`Compl. ¶ 243. After this announcement and through the full removal of the APIs in April 2015,
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`Facebook entered into Whitelist and Data Sharing Agreements with certain third-party developers
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`that allowed continued access to the Friends or News Feed APIs and included a provision
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`acknowledging that the covered APIs were not available to the general public. Am. Compl. ¶¶
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`247-248. These agreements “were only offered in exchange for massive purchases of Facebook’s
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`social data through mobile advertising and/or through the provision of the developer’s own social
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`data back to Facebook (so-called ‘reciprocity’).” Am. Compl. ¶ 249. Plaintiffs allege that
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`Facebook covered up the real reason for the removal of the APIs—while Facebook publicly stated
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`that the change was made to give users more control over their data, Plaintiffs allege that the real
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`reason for the change was to kill applications that were competitive or potentially competitive
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`with Facebook. Am. Compl. ¶¶ 461-62, 469. Plaintiffs allege that they first learned that
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`Facebook’s purported reasons for the removal of the APIs was false on November 6, 2019, when
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`NBC News posted a trove of internal Facebook documents seized by the United Kingdom
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`Parliament that allegedly showed that Facebook internally viewed the purported withdrawal as
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`lacking any legitimate business or technical justification and that the scheme had a broad impact
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`on competition. Am. Compl. ¶ 475.
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`Case 5:20-cv-00363-BLF Document 115 Filed 04/26/21 Page 4 of 17
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`A. Reveal Chat
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`Plaintiff Reveal Chat1 was a dating platform whose business model was to consume social
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`data through Facebook’s APIs to provide match-making services and create a platform from which
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`it could sell advertising. Am. Compl. ¶ 21. Reveal Chat learned in late 2014 that Facebook had
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`slated APIs it relied on for removal. Am. Compl. ¶ 24. In 2015, Reveal Chat allegedly contacted
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`Facebook “to determine if there was a way forward.” Am. Compl. ¶ 25. Facebook allegedly
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`referred Reveal Chat to its official policy documents and developer documentation, which
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`suggested that the APIs were being removed for user control and privacy reasons. Am. Compl. ¶
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`25. Reveal Chat then allegedly “contacted acquaintances that worked at Facebook to get more
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`clarity as to the APIs and to determine whether [Reveal Chat] could obtain an exemption from the
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`decision.” Am. Compl. ¶ 26. Reveal Chat never obtained an exception and accepted Facebook’s
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`explanation that the APIs were being removed due to user privacy concerns. Am. Compl. ¶ 27.
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`One of Reveal Chat’s founders reviewed Facebook’s blog post in December 2018, which
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`responded to documents released as part of a United Kingdom Parliament investigation that again
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`allegedly misled him into believing the APIs had been removed due to user privacy and control
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`concerns. Am. Compl. ¶ 30. Reveal Chat alleges that it did not and could not learn the true reasons
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`for the removal of the APIs until November 6, 2019, when internal Facebook documents were
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`publicly released. Am. Compl. ¶ 31.
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`B. Lenddo
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`Plaintiff Lenddo developed a mobile application that used social data to assess a user’s
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`creditworthiness based on studies showing that a person’s network of associations is predictive as
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`to credit risk, fraud, and likelihood of loan repayment. Am. Compl. ¶¶ 32-33. Lenddo’s business
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`model was based on consuming social data from Facebook. Am. Compl. ¶ 39. Lenddo learned in
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`April 2015 that Facebook was eliminating the Core APIs and the Messaging APIs for all
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`companies that were not given exemptions. Am. Compl. ¶ 43. On April 23, 2015, Lenddo entered
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`a developer ticket, seeking to obtain an exemption from the new policy. Am. Compl. ¶ 44. Lenddo
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`1 Reveal Chat is the successor in interest to Reveal Chat, Inc. (f/k/a LikeBright, Inc.), pursuant to
`an April 2015 merger between Reveal Chat and Reveal Chat, Inc. Am. Compl. ¶ 18. The Court
`will refer to this company both pre- and post-merger as Reveal Chat.
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`Case 5:20-cv-00363-BLF Document 115 Filed 04/26/21 Page 5 of 17
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`alleges it communicated with Facebook’s Neil Hiltz and Simon Cross, and Cross informed
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`Lenddo that it could not have access to the Core APIs and the Messaging APIs because the its
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`application was credit-related and was part of a business that provided credit. Am. Compl. ¶¶ 45-
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`46. Lenddo alleges that this explanation is false, as Royal Bank of Canada had allegedly obtained
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`an exemption after having purchased large amounts of advertising from Facebook. Am. Compl. ¶
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`47. Lenddo allegedly spoke with other developers, reviewed documentation from Facebook, and
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`spoke to “other acquaintances at Facebook” and concluded that Facebook’s policy change was for
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`legitimate reasons. Am. Compl. ¶ 48. Lenddo alleges that it did not and could not learn the true
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`reasons for the removal of the APIs until 2019 when internal Facebook documents were publicly
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`released. Am. Compl. ¶ 52.
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`C. Beehive
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`Plaintiff Beehive had devised an algorithm that would analyze a user’s social connections
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`and interactions to determine whether the individual’s identification was authentic and thus
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`establish whether a Facebook user was a real person. Am. Compl. ¶¶ 55-56. Beehive targeted its
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`product to dating sites, and as a result, the dating sites saw immediate increases in reliability of
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`users on their platforms and a significant drop in fraud risk. Am. Compl. ¶ 58. Beehive’s business
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`was halted in 2015 when it discovered that Facebook was removing the APIs, including the
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`Friends and News Feed APIs, that Beehive’s business depended on for its functionality. Am.
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`Compl. ¶ 60. Beehive sought an exemption from Facebook but never received a response. Am.
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`Compl. ¶ 61. “Beehive sought an exemption from Facebook but received no answer. Beehive then
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`contacted an acquaintance that worked at Facebook, who advised them that they would never
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`receive an exemption.” Am. Compl. ¶ 61. Beehive allegedly spoke to other developers, read
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`documentation by Facebook, and viewed developer message boards and did not find any
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`explanation other than the one Facebook had offered regarding user privacy for the API removals.
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`Am. Compl. ¶ 63. Beehive alleges that it did not and could not learn the true reasons for the
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`removal of the APIs until 2019 when internal Facebook documents were publicly released. Am.
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`Compl. ¶ 65.
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`Case 5:20-cv-00363-BLF Document 115 Filed 04/26/21 Page 6 of 17
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`D. Prior Order Granting Facebook’s Motion to Dismiss
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`This Court previously granted a motion to dismiss filed by Facebook on July 8, 2020. See
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`Prior MTD Order; see also Reveal Chat Holdco, LLC v. Facebook, Inc., 471 F. Supp. 3d 981
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`(N.D. Cal. 2020). The Court found as a matter of law that Plaintiffs’ claims were time-barred by
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`the four-year statute of limitations for antitrust claims and that Plaintiffs had not adequately pled
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`fraudulent concealment in part because they had not plausibly alleged they were without actual or
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`constructive knowledge of the facts giving rise to their claims. Prior MTD Order 10, 14. The Court
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`found that, “[t]o allege fraudulent concealment, Plaintiffs must establish that ‘its failure to have
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`notice of its claim was the result of [Facebook’s] affirmative conduct.’” Prior MTD Order 9
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`(quoting Conmar Corp. v. Mitsui & Co. (U.S.A.), 858 F.2d 499, 505 (9th Cir. 1988)). The Court
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`found that Plaintiffs had notice as of April 30, 2014, that access to the Friends and News Feed
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`APIs would be removed, and Plaintiffs had notice of the Whitelist and Data Sharing Agreements
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`in September 2015 via an article published in the Wall Street Journal. Prior MTD Order 10. “Thus,
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`at the very least, Plaintiffs had constructive knowledge of the facts that give rise to their claims.”
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`Prior MTD Order 10. The Court also found that Facebook’s decision to keep “tightly underwraps”
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`the “real reason for the removal of the APIs” is not affirmative conduct that necessarily tolls the
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`statute of limitations. Prior MTD Order 10.
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` The Court further found that Plaintiffs had failed to allege how they had acted diligently in
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`trying to uncover facts giving rise to their claims. Prior MTD Order 10-11. “Here, the publicly
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`available facts regarding Facebook’s allegedly anticompetitive conduct would excite the inquiry of
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`a reasonable person, and therefore Plaintiffs must plead diligence with particularity. They have
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`failed to do so here.” Prior MTD Order 11. The Court granted Plaintiffs leave to amend on the
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`issue of fraudulent concealment, which if applicable, would toll the statute of limitations. Prior
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`MTD Order 14.
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`II.
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` LEGAL STANDARD
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`A. Rule 12(b)(6)
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`“A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a
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`claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” Conservation
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`Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d
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`729, 732 (9th Cir. 2001)). When determining whether a claim has been stated, the Court accepts as
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`true all well-pled factual allegations and construes them in the light most favorable to the plaintiff.
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`Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). However, the Court
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`need not “accept as true allegations that contradict matters properly subject to judicial notice” or
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`“allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable
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`inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation
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`marks and citations omitted). While a complaint need not contain detailed factual allegations, it
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`“must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
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`on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
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`U.S. 544, 570 (2007)). A claim is facially plausible when it “allows the court to draw the
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`reasonable inference that the defendant is liable for the misconduct alleged.” Id. “However, as the
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`Supreme Court has noted precisely in the context of private antitrust litigation, ‘it is one thing to
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`be cautious before dismissing an antitrust complaint in advance of discovery, but quite another to
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`forget that proceeding to antitrust discovery can be expensive.’” Feitelson v. Google Inc., 80 F.
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`Supp. 3d 1019, 1025 (N.D. Cal. 2015) (quoting Twombly, 550 U.S. at 558-59). “As such, ‘a
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`district court must retain the power to insist upon some specificity in pleading before allowing a
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`potentially massive factual controversy to proceed.’” Feitelson, 80 F. Supp. 3d at 1025–26
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`(quoting Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U.S. 519, 528 n.17 (1983)
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`quoted with approval in Twombly, 550 U.S. at 559). On a motion to dismiss, the Court’s review is
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`limited to the face of the complaint and matters judicially noticeable. MGIC Indem. Corp. v.
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`Weisman, 803 F.2d 500, 504 (9th Cir. 1986); N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578,
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`581 (9th Cir. 1983).
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`In deciding whether to grant leave to amend, the Court must consider the factors set forth
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`by the Supreme Court in Foman v. Davis, 371 U.S. 178 (1962), and discussed at length by the
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`Ninth Circuit in Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048 (9th Cir. 2009). A district
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`court ordinarily must grant leave to amend unless one or more of the Foman factors is present: (1)
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`undue delay, (2) bad faith or dilatory motive, (3) repeated failure to cure deficiencies by
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`amendment, (4) undue prejudice to the opposing party, or (5) futility of amendment. Eminence
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`Capital, 316 F.3d at 1052. “[I]t is the consideration of prejudice to the opposing party that carries
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`the greatest weight.” Id. However, a strong showing with respect to one of the other factors may
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`warrant denial of leave to amend. Id.
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`B. Rule 9(b)
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`Claims sounding in fraud are subject to the heightened pleading requirements of Federal
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`Rule of Civil Procedure 9(b), which require that a plaintiff alleging fraud “must state with
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`particularity the circumstances constituting fraud.” Fed. R. Civ. P. 9(b); see also Kearns v. Ford
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`Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009). To satisfy the heightened standard under Rule
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`9(b), the allegations must be “specific enough to give defendants notice of the particular
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`misconduct which is alleged to constitute the fraud charged so that they can defend against the
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`charge and not just deny that they have done anything wrong.” Semegen v. Weidner, 780 F.2d 727,
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`731 (9th Cir. 1985). Thus, claims sounding in fraud must allege “an account of the time, place,
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`and specific content of the false representations as well as the identities of the parties to the
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`misrepresentations.” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (per curiam)
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`(citation omitted). “A plaintiff must set forth what is false or misleading about a statement, and
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`why it is false.” In re GlenFed, Inc. Secs. Litig., 42 F.3d 1541, 1548 (9th Cir. 1994) (en banc),
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`superseded by statute on other grounds as stated in SEC v. Todd, 642 F.3d 1207, 1216 (9th
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`Cir.2011). However, “intent, knowledge, and other conditions of a person’s mind” need not be
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`stated with particularity, and “may be alleged generally.” Fed. R. Civ. P. 9(b).
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`III.
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` DISCUSSION
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`A. Request for Judicial Notice
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`Defendants request judicial notice of three documents: the Complaint in Six4Three, LLC v.
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`Facebook, Inc, No. CIV 533328 (San Mateo Cnty. Super. Ct. April 10, 2015), see Ex. 1, State
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`Court Complaint, ECF 71-2; a September 21, 2015 Wall Street Journal article, Facebook’s
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`Restrictions on User Data Cast a Long Shadow, see Ex. 2, Data Sharing Article, ECF 71-3; and an
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`October 20, 2020 Wall Street Journal article, Snapchat Nears 250 Million Daily Users as
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`Advertisers Lift Spending on Platform, see Ex. 1, Snapchat Article, ECF 74-2. Courts may take
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`judicial notice of matters either that are “generally known within the trial court’s territorial
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`jurisdiction” or that “can be accurately and readily determined from sources whose accuracy
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`cannot reasonably be questioned.” Fed. R. Evid. 201(b). “Specifically, a court may take judicial
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`notice: (1) of matters of public record, (2) that the market was aware of information contained in
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`news articles, and (3) publicly accessible websites whose accuracy and authenticity is not subject
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`to dispute.” In re Facebook, Inc. Sec. Litig., 405 F. Supp. 3d 809, 827 (N.D. Cal. 2019) (internal
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`citations and quotation marks omitted). Plaintiffs do not object to judicial notice of these
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`documents. The Court grants Defendants’ request and finds the state court complaint judicially
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`noticeable as a publicly available court document, see Reyn’s Pasta Bella, LLC v. Visa USA, Inc.,
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`442 F.3d 741, 746 n.6 (9th Cir. 2006) and the Wall Street Journal articles judicially noticeable “as
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`an indication of what information was in the public realm at the time,” see Van Saher v. Norton
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`Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010).
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`B.
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`Statute of Limitations
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`Facebook argues that Plaintiffs’ claims are time-barred, as the Court found in its prior
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`order, and the amendments do not cure the identified deficiencies in the pleading. Mot. 4-5.
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`Plaintiffs chose to not address this threshold issue until the last section of their brief and argue that
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`there is an intra-circuit split as to whether a “discovery rule” or an “injury rule” applies to antitrust
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`claims, and if this Court chooses the discovery rule, then Plaintiffs’ claims have not accrued.
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`Opp’n 20-21.
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`The Court disagrees with Plaintiffs and finds that the Supreme Court and Ninth Circuit
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`have clearly stated that the injury rule applies to antitrust cases. See Klehr v. A.O. Smith Corp.,
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`521 U.S. 179, 188 (1997) (finding that the ordinary Clayton Act rule, applicable in private
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`antitrust treble damages actions holds “a cause of action accrues and the statute begins to run when
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`a defendant commits an act that injures a plaintiff’s business.”) (quoting Zenith Radio Corp. v.
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`Hazeltine Research, Inc., 401 U.S. 321, 338 (1971)); Hexcel Corp. v. Ineos Polymers, Inc., 681
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`F.3d 1055, 1060 (9th Cir. 2012) (“We do not require a plaintiff to actually discover its antitrust
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`claims before the statute of limitations begins to run.”) (citing Beneficial Standard Life Ins., Co. v.
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`Madariaga, 851 F.2d 271, 274–75 (9th Cir. 1988)). The statute of limitations under the Sherman
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`Act is four years. Hexcel, 681 F.3d at 1057 (citing 15 U.S.C. § 15b). To the extent that Plaintiffs
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`are seeking injunctive relief, the Court reiterates its previous finding that “the doctrine of laches
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`applies to the instant case”, Prior MTD Order 7, and the same “four-year statute of limitations in
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`15 U.S.C. § 15b furnishes a guideline for computation of the laches period.” Prior MTD Order 7
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`(quoting Samsung Elecs. Co. v. Panasonic Corp., 747 F.3d 1199, 1205 (9th Cir. 2014)).
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`Plaintiffs admit that they had notice of their injury by April 30, 2015 when the Core APIs
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`that their businesses relied on were withdrawn. Am. Compl. ¶¶ 6, 13, 245.2 Plaintiffs did not
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`commence this lawsuit until January 16, 2020. See Compl., ECF 1. Therefore, Plaintiffs’ claims
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`are time barred unless the Sherman Act statute of limitations is properly tolled. The Court finds
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`that it is not.
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` Continuing Violation
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`Plaintiffs argue that Facebook’s conduct restarted the statute of limitations under the
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`“continuing violation” doctrine. Opp’n 21-22. Plaintiffs argue that Facebook continued to operate
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`its Onavo spyware to spy on mobile application users as part of its scheme to prevent the advent of
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`a rival social advertising platform or generator of social data. Opp’n 21. This allegedly prevented
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`Snapchat from evolving into a viable platform that would allow Plaintiffs to reacquire the social
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`data they needed for their original business models, as Facebook “cloned” Snapchat’s
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`functionality in 2016. Opp’n 21-22. Plaintiffs also argue that Facebook continued to operate under
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`Whitelist and Data Sharing Agreements that allowed some companies to continue having access to
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`the necessary APIs in exchange for social data sharing or advertising purposes. Opp’n 22.
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`Facebook argues that Plaintiffs did not allege in their complaint that Facebook’s purported
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`“cloning” of Snapchat’s features caused them injury. Reply 4, ECF 74. Facebook argues that since
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`Plaintiffs were already allegedly excluded from the social data market as of April 2015, when they
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`2 Plaintiffs do not allege that they signed any Whitelist or Data Sharing Agreements with
`Facebook, but they had notice of those agreements by September 2015. See Prior MTD Order 10;
`Ex. 2, Data Sharing Article, ECF 71-3.
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`lost access to the Core APIs, Plaintiffs have failed to plead how any alleged cloning in 2016
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`somehow worsened their pre-existing injury or constituted a new injury. Reply 4. Facebook also
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`argues that the continued existence of the Data Sharing Agreements, which Plaintiff had notice of
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`by September 2015, do not establish a continuing violation. Reply 4.
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`“To state a continuing violation of the antitrust laws in the Ninth Circuit, a plaintiff must
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`allege that a defendant completed an overt act during the limitations period that meets two criteria:
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`1) It must be a new and independent act that is not merely a reaffirmation of a previous act; and 2)
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`it must inflict new and accumulating injury on the plaintiff.” Samsung Elecs. Co. v. Panasonic
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`Corp., 747 F.3d at 1202 (9th Cir. 2014); accord Oliver v. SD-3C LLC, 751 F.3d 1081, 1086
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`(9th Cir. 2014) (stating limitations begins to run from date of each “new overt act causing injury”).
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`Here, Plaintiffs were allegedly injured when they were excluded from the social data
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`market by virtue of losing access to the Core APIs by April 30, 2015. Am. Compl. ¶¶ 6, 13, 245
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`The Court has reviewed the allegations concerning Facebook cloning Snapchat features, see Am.
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`Compl. ¶¶ 311-12 and agrees with Facebook that Plaintiffs have not pled facts demonstrating that
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`this alleged cloning inflicted any new and accumulating injury on Plaintiffs beyond their pre-
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`existing injury via exclusion in April 2015. Accordingly, these allegations do not constitute a
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`“continuing violation.”
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`The Court also agrees with Facebook that the relevant act concerning the Data Sharing
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`Agreements occurred in April 2015, the latest start date Plaintiffs allege for the agreements. Am.
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`Compl. ¶¶ 247, 256. Accordingly, the continued existence of these Data Sharing Agreements does
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`not constitute new and independent acts that restart the statute of limitations. See Ryan v.
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`Microsoft Corp. (“Ryan II”), 147 F. Supp. 3d 868, 884 (N.D. Cal. 2015) (where the defendant
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`entered into an allegedly unlawful contract prior to the limitations period, the defendant still must
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`take an unlawful ‘new and independent act that is not merely a reaffirmation of a previous act’
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`during the limitations period.”) (citing Pace Indus. v. Three Phoenix Co., 813 F.2d 234, 237 (9th
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`Cir.1987)).
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`In conclusion, the Court does not find that the continuing violation doctrine applies here to
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`toll the statute of limitations. Plaintiffs already received an opportunity to amend their complaint
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`to properly plead this theory, and they have not suggested that a third attempt would be more
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`productive than the first two. The Court finds that further amendment would be futile and
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`accordingly dismisses this theory with prejudice.
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` Fraudulent Concealment
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`Plaintiffs argue that the doctrine of fraudulent concealment applies to toll the statute of
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`limitations in this case. Opp’n 22-25. Plaintiffs allege that Facebook had a duty to speak fully and
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`truthfully about its plans for removing the APIs, and Facebook affirmatively lied about the real
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`reasons for removing the APIs. Opp’n 22-24. Plaintiffs also argue that, if the Court finds that
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`“facts exist that would excite the inquiry of a reasonable person” regarding Facebook’s
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`misconduct, they were diligent in trying to discover the misconduct. Opp’n 25. Facebook argues
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`that Plaintiffs have not cured the deficiencies the Court identified in its prior order finding that the
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`doctrine of fraudulent concealment does not apply. Mot. 5-11, Reply 5-8. Specifically, Facebook
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`argues that Plaintiffs have not pled affirmative acts Facebook took to mislead them Mot. 5-11.
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`Facebook argues that Plaintiffs knew of their injuries by April 2015, and the fact that they were
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`allegedly unaware of Facebook’s motives for the removal of the APIs does not impact the
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`fraudulent concealment analysis. Mot. 6, 8-9. Facebook also argues that Plaintiffs have not
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`adequately alleged that they were diligent after learning of their injuries. Mot. 11.
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`“A statute of limitations may be tolled if the defendant fraudulently concealed the
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`existence of a cause of action in such a way that the plaintiff, acting as a reasonable person, did
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`not know of its existence.” Hexcel, 681 F.3d at 1060. “The plaintiff carries the burden of pleading
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`and proving fraudulent concealment.” Id. (brackets and internal quotation marks omitted). “To
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`plead fraudulent concealment, the plaintiff must allege that: (1) the defendant took affirmative acts
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`to mislead the plaintiff; (2) the plaintiff did not have ‘actual or constructive knowledge of the facts
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`giving rise to its claim’; and (3) the plaintiff acted diligently in trying to uncover the facts giving
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`rise to its claim.” In re Animation Workers Antitrust Litig. (“Animation Workers II”), 123 F. Supp.
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`3d 1175, 1194 (N.D. Cal. 2015) (quoting Hexcel, 681 F.3d at 1060)). Thus, “[a] fraudulent
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`concealment defense requires a showing both that the defendant used fraudulent means to keep the
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`plaintiff unaware of his cause of action, and also that the plaintiff was, in fact, ignorant of the
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`Case 5:20-cv-00363-BLF Document 115 Filed 04/26/21 Page 13 of 17
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`existence of his cause of action.” Wood v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d
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`1515, 1521 (9th Cir. 1983). “The plaintiff is deemed to have had constructive knowledge if it had
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`enough information to warrant an investigation