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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`TWITTER, INC.,
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`Plaintiff,
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`v.
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`KEN PAXTON,
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`Defendant.
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`Case No. 21-cv-01644-MMC
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`ORDER DENYING PLAINTIFF'S
`MOTION FOR PRELIMINARY
`INJUNCTION PENDING APPEAL
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`Before the Court is plaintiff Twitter, Inc.'s ("Twitter") Motion, filed May 27, 2021,
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`"for Injunction Pending Appeal." On June 2, 2021, defendant Ken Paxton, in his official
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`capacity as Attorney General of Texas ("Attorney General"), filed opposition. Having
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`read and considered the parties' respective written submissions, the Court rules as
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`follows.1
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`On March 8, 2021, Twitter filed the above-titled action, in which it alleged that, on
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`January 13, 2021, the Attorney General issued a "Civil Investigative Demand" ("CID")
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`(see Compl. ¶ 3, Ex. 1), by which the Attorney General seeks from Twitter specified
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`documents described as "relevant to the subject matter of an investigation of possible
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`violations of sections 17.46(a) and (b) of the DTPA [Texas Deceptive Trade Practices –
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`Consumer Protection Act] in Twitter's representations and practices regarding what can
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`be posted on its platform" (see Compl. Ex. 1). Based thereon, Twitter asserted a single
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`Claim for Relief, brought pursuant to 42 U.S.C. § 1983 and titled "The First Amendment
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`1 By order filed May 28, 2021, the Court approved the parties' stipulation to take
`the matter under submission as of the date on which the opposition was filed.
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`Northern District of California
`United States District Court
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`Case 3:21-cv-01644-MMC Document 74 Filed 06/08/21 Page 2 of 4
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`Bars the Attorney General's Retaliatory Investigation and Civil Investigative Demand." As
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`relief, Twitter sought, in addition to declaratory relief, an injunction prohibiting the
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`Attorney General from "initiating any action to enforce the CID or to further the unlawful
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`investigation into Twitter's internal editorial policies and practices." (See Compl. ¶¶ 69-
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`70.)
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`By Order filed May 11, 2021 ("May 11 Order"), the Court granted the Attorney
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`General's motion to dismiss, finding the above-titled action was premature. That same
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`date, judgment was entered, and, on May 14, 2021, Twitter filed a notice of appeal.
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`By the instant motion, Twitter seeks an order granting a preliminary injunction
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`pending appeal. Specifically, Twitter seeks an order enjoining the Attorney General from
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`"[i]nitiating any action to enforce the CID or to continue the investigation announced on
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`January 13, 2021[,] into Twitter's content-moderation policies and practices." (See Pl.'s
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`Proposed Order at 3:2-6.) In support thereof, Twitter relies on Rule 62(d) of the Federal
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`Rules of Civil Procedure, which Rule provides that "[w]hile an appeal is pending from an
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`interlocutory order or final judgment that grants, continues, modifies, refuses, dissolves,
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`or refuses to dissolve or modify an injunction, the court may suspend, modify, restore, or
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`grant an injunction on terms for bond or other terms that secure the opposing party's
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`rights." See Fed. R. Civ. P. 62(d).2
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`"In evaluating a motion for an injunction pending appeal, [courts] consider whether
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`the moving party has demonstrated [1] that they are likely to succeed on the merits,
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`[2] that they are likely to suffer irreparable harm in the absence of preliminary relief,
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`[3] that the balance of equities tips in their favor, and [4] that an injunction is in the public
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`interest." South Bay United Pentecostal Church v. Newsom, 959 F.3d 938, 939 (9th Cir.
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`2020). Alternatively, with respect to the first factor, a plaintiff may show "serious
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`questions going to the merits," provided the plaintiff also shows "the balance of hardships
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`2 Twitter asserts, and the Court agrees, that the May 11 Order "effectively denied
`Twitter's then-pending motion for a preliminary injunction." (See Pl.'s Mot. at 3:1-2.)
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`Northern District of California
`United States District Court
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`Case 3:21-cv-01644-MMC Document 74 Filed 06/08/21 Page 3 of 4
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`tips sharply in the plaintiff's favor." See Alliance for the Wild Rockies v. Cottrell, 632 F.3d
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`1127, 1134-35 (9th Cir. 2011) (internal quotation and citation omitted).
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`Here, the Court finds, for reasons stated by the Attorney General (see Def.'s Opp.,
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`filed June 1, 2021, 3:18-7:28, 9:3-10:28), Twitter has not made the requisite showing as
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`to the first factor, and, accordingly, will deny the motion.
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`In particular, with respect to the first factor, Twitter's claim for injunctive relief is, as
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`discussed in greater detail in the May 11 Order, premature under Reisman v. Caplin, 375
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`U.S. 440 (1964) and subsequent cases applying its holding, as the CID is not self-
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`executing and the Attorney General has taken no steps to enforce it. See id. at 443-44,
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`446 (affirming, for "want of equity," dismissal of claim challenging issuance of summons,
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`where defendant had "no power to enforce compliance or to impose sanctions for
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`noncompliance"; finding plaintiff had "adequate remedy at law," as "enforcement action"
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`by agency would "afford[ ] a judicial determination of the challenges to the summons").
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`Although Twitter now raises a new argument, namely, that financial penalties may
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`be imposed if a court were to find Twitter violated the DPTA, the Attorney General here,
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`unlike the investigative agencies in the cases cited in the Court's May 11 Order, has no
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`authority to itself impose such sanction and there is no evidence before the Court to
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`suggest the Attorney General has threatened to file an action pursuant to the DPTA, nor
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`is there any evidence otherwise suggesting such filing is imminent. Cf. Morales v. Trans
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`World Airlines, Inc., 504 U.S. 374, 382 (1992) (holding injunctive relief proper where state
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`attorney general threatened to file action alleging violation of consumer protection
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`statute).
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`Consequently, the first factor does not weigh in favor of issuance of a preliminary
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`injunction, and, in light thereof, the Court does not address herein the second, third, and
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`fourth factors. See DISH Network Corp. v. Federal Communications Comm'n, 653 F.3d
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`771, 776-77 (9th Cir. 2011) (holding where plaintiff fails to demonstrate first factor weighs
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`in its favor, a court "need not consider the remaining three").
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`//
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`3
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`Northern District of California
`United States District Court
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`Case 3:21-cv-01644-MMC Document 74 Filed 06/08/21 Page 4 of 4
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`Accordingly, Twitter's motion is hereby DENIED.
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`IT IS SO ORDERED.
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`Dated: June 8, 2021
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`MAXINE M. CHESNEY
`United States District Judge
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`Northern District of California
`United States District Court
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