Case 5:20-cv-00363-BLF Document 120 Filed 02/28/22 Page 1 of 6
`
`NOT FOR PUBLICATION
`
`FILED
`
`FEB 28 2022
`
`UNITED STATES COURT OF APPEALS
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
` FOR THE NINTH CIRCUIT
`
`REVEAL CHAT HOLDCO LLC, a
`Delaware limited liability company; et al.,
`
`No. 21-15863
`
`Plaintiffs-Appellants,
`
`D.C. No. 5:20-cv-00363-BLF
`
` v.
`
`MEMORANDUM*
`
`META PLATFORMS, INC., a Delaware
`corporation,
`
`Defendant-Appellee.
`
`Appeal from the United States District Court
`for the Northern District of California
`Beth Labson Freeman, District Judge, Presiding
`
`Argued and Submitted February 17, 2022
`San Francisco, California
`
`Before: SILER,** S.R. THOMAS, and CALLAHAN, Circuit Judges.
`
`Mobile application developers Reveal Chat HoldCo, LLC, Beehive
`
`Biometric, Inc., and USA Technology and Management Services, Inc.
`
` *
`
`This disposition is not appropriate for publication and is not precedent
`except as provided by Ninth Circuit Rule 36-3.
`
` * *
`
`The Honorable Eugene E. Siler, United States Circuit Judge for the
`U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
`
`
`
`NOT FOR PUBLICATION
`
`FILED
`
`FEB 28 2022
`
`UNITED STATES COURT OF APPEALS
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
` FOR THE NINTH CIRCUIT
`
`REVEAL CHAT HOLDCO LLC, a
`Delaware limited liability company; et al.,
`
`No. 21-15863
`
`Plaintiffs-Appellants,
`
`D.C. No. 5:20-cv-00363-BLF
`
` v.
`
`MEMORANDUM*
`
`META PLATFORMS, INC., a Delaware
`corporation,
`
`Defendant-Appellee.
`
`Appeal from the United States District Court
`for the Northern District of California
`Beth Labson Freeman, District Judge, Presiding
`
`Argued and Submitted February 17, 2022
`San Francisco, California
`
`Before: SILER,** S.R. THOMAS, and CALLAHAN, Circuit Judges.
`
`Mobile application developers Reveal Chat HoldCo, LLC, Beehive
`
`Biometric, Inc., and USA Technology and Management Services, Inc.
`
` *
`
`This disposition is not appropriate for publication and is not precedent
`except as provided by Ninth Circuit Rule 36-3.
`
` * *
`
`The Honorable Eugene E. Siler, United States Circuit Judge for the
`U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
`
`
`
`Case 5:20-cv-00363-BLF Document 120 Filed 02/28/22 Page 2 of 6
`
`(collectively, “Developers”) appeal the district court’s dismissal of their claims for
`
`injunctive relief and damages pursuant to the Sherman and Clayton Acts against
`
`Meta Platforms, Inc. (“Meta”), formerly known as Facebook. Because the parties
`
`are familiar with the factual and procedural history of this case, we need not
`
`recount it here. We dismiss in part and affirm in part.
`
`We review dismissals under Rules 9(b) and 12(b)(6) of the Federal Rules of
`
`Civil Procedure, Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1102 (9th Cir.
`
`2003), and dismissals based on statutes of limitation de novo, Whidbee v. Pierce
`
`County, 857 F.3d 1019, 1022 (9th Cir. 2017).
`
`I
`
`Plaintiffs are required to demonstrate Article III standing for each form of
`
`relief sought, Friends of the Earth, Inc. v. Laidlaw Env. Servs., Inc., 528 U.S. 167,
`
`185 (2000), and federal courts lack jurisdiction over the case if the plaintiffs lack
`
`Article III standing, see Gerlinger v. Amazon.com Inc., 526 F.3d 1253, 1255 (9th
`
`Cir. 2008). We are required to raise the absence of constitutional standing sua
`
`sponte. Interpipe Contracting, Inc. v. Becerra, 898 F.3d 879, 891 n.9 (9th Cir.
`
`2018).
`
`To survive the pleading stage, the Developers must allege facts showing
`
`each element of Article III standing. Spokeo, Inc. v. Robins, 578 U.S. 330, 338
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`2
`
`
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`Case 5:20-cv-00363-BLF Document 120 Filed 02/28/22 Page 3 of 6
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`(2016). Thus, the Developers must show that that they (1) have suffered or face a
`
`future injury-in-fact (2) fairly traceable to the Meta’s actions, and (3) redressible
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`by a favorable judicial decision. In re Online DVD-Rental Antitrust Litig., 779
`
`F.3d 914, 921–22 (9th Cir. 2015).
`
`
`
`
`
`After careful consideration of the record and arguments of the parties, we
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`conclude that the Developers lack Article III standing to seek injunctive relief. The
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`Developers claim damage from allegedly anticompetitive actions taken by Meta in
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`2019. However, the Developers’ actual injuries occurred in 2015, and therefore
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`are not fairly traceable to Meta’s challenged conduct in 2019. Uzuegbunam v.
`
`Preczewski, 141 S. Ct. 792, 796 (2021).
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`Further, Developers offer no facts suggesting that Meta’s 2019 actions
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`threaten future harm to them. Cargill, Inc. v. Monfort of Colo., Inc., 479 U.S. 104,
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`110–11 (1986) (quoting 15 U.S.C. § 26 and stating that plaintiffs seeking
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`injunctive relief under Section 16 of the Clayton Act need only show that the
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`defendant’s conduct “threaten[s] loss or damage”); see also City of Los Angeles v.
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`Lyons, 461 U.S. 95, 102, 111 (1983) (“[P]ast exposure to illegal conduct does not
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`in itself show a present case or controversy regarding injunctive relief . . . if
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`unaccompanied by any continuing, present adverse effects” and plaintiffs must
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`3
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`
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`Case 5:20-cv-00363-BLF Document 120 Filed 02/28/22 Page 4 of 6
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`show “a sufficient likelihood that [they] will again be wronged” (internal quotation
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`marks and citation omitted)).
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`Developers also have not alleged facts demonstrating that any of the harms
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`they claim are redressible by an injunction. Therefore, the Developers lack Article
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`III standing to assert their claims for injunctive relief, and we must dismiss them.
`
`II
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`The district court properly dismissed Developers’ antitrust damage claims as
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`time-barred. 15 U.S.C. § 15(b) (four-year statute of limitations); see Zenith Radio
`
`Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338 (1971) (“[A] cause of action
`
`accrues and the statute begins to run when a defendant commits an act that injures
`
`a plaintiff’s business.”). The alleged damage occurred in 2015, but the complaint
`
`was not filed until January 2020.
`
`The district court also properly determined that Developers failed to allege
`
`fraudulent concealment sufficiently to toll the Sherman Act’s statute of limitations.
`
`To show fraudulent concealment, plaintiffs must plead facts showing that the
`
`defendant affirmatively misled it. Hexcel Corp. v. Ineos Polymers, Inc., 681 F.3d
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`1055, 1060 (9th Cir. 2012). Developers claim that Meta’s statements about the
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`scope and reasons for its 2015 actions misled them, but the antitrust laws do not
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`obligate Meta to share its motivations for its business decisions with the
`
`4
`
`
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`Case 5:20-cv-00363-BLF Document 120 Filed 02/28/22 Page 5 of 6
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`Developers. Cf. Aerotec Int’l, Inc. v. Honeywell Int’l, Inc., 836 F.3d 1171, 1183
`
`(9th Cir. 2016) (“[A]s a general matter, the Sherman Act does not restrict the long
`
`recognized right of a trader . . . engaged in an entirely private business, freely to
`
`exercise his own independent discretion as to parties with whom he will deal.”
`
`(internal alteration, quotation marks, and citation omitted)). “Silence or passive
`
`conduct . . . is not deemed fraudulent, unless the relationship of the parties imposes
`
`a duty upon the defendant to make disclosure.” Rutledge v. Bos. Woven Hose &
`
`Rubber Co., 576 F.2d 248, 250 (9th Cir. 1978). Developers offer only conclusory
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`allegations to suggest a relationship with Meta that would entitle them to the
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`disclosures at issue in this case. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
`
`(“Threadbare recitals of the elements of a cause of action, supported by mere
`
`conclusory statements, do not suffice.”).
`
`The district court properly dismissed the Developers’ antitrust claims as
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`time-barred.
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`III
`
`We dismiss the injunction claims for lack of Article III standing. We affirm
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`the district court’s dismissal of the antitrust claims as time-barred. Given our
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`resolution of these issues, we need not—and do not—reach any other issue urged
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`by the parties.
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`
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`5
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`
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`Case 5:20-cv-00363-BLF Document 120 Filed 02/28/22 Page 6 of 6
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`DISMISSED in part; and AFFIRMED in part.
`
`6
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`
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