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`Case 3:22-cv-02646-LB Document 81 Filed 10/27/22 Page 1 of 8
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`David C. Kiernan (State Bar No. 215335)
`dkiernan@jonesday.com
`Craig E. Stewart (State Bar No. 129530)
`cestewart@jonesday.com
`JONES DAY
`555 California Street, 26th Floor
`San Francisco, CA 94104
`Telephone:
`+1.415.626.3939
`Facsimile:
`+1.415.875.5700
`
`Dayme Sanchez (State Bar No. 323864)
`daymesanchez@jonesday.com
`JONES DAY
`1755 Embarcadero Road
`Palo Alto, CA 94303
`Telephone:
`+1.650.739.3939
`Facsimile:
`+1.650.739.3900
`Attorneys for Defendant
`THE PROCTER & GAMBLE COMPANY
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`LAURA LOOMER, as an individual and in
`her capacity as a Candidate for United
`States Congress, and LAURA LOOMER
`FOR CONGRESS, INC.,
`
`
`
`Plaintiffs,
`v.
`META PLATFORMS, INC., MARK
`ZUCKERBERG, in his capacity as CEO of
`Meta Platforms, Inc. and as an individual,
`TWITTER, INC., and JACK DORSEY, in
`his capacity as former CEO of Twitter, Inc.
`and as an individual, THE PROCTOR &
`GAMBLE CO., and DOES 1-100,
`Individuals,
`
` Defendants.
`
`Case No. 3:22-cv-02646-LB
`THE PROCTER & GAMBLE
`COMPANY’S MOTION TO DISMISS
`AND JOINDER IN CO-DEFENDANTS’
`MOTIONS TO DISMISS
`Judge: Honorable Laurel Beeler
`
`Date: January 26, 2023
`Time: 9:30 a.m.
`Courtroom: B, 15th Floor
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`P&G’s Mot. To Dismiss and Joinder
`No. 22-CV-02646-LB
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`Case 3:22-cv-02646-LB Document 81 Filed 10/27/22 Page 2 of 8
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`TABLE OF CONTENTS
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`Page
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`NOTICE OF MOTION AND MOTION ......................................................................................... 1
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`RELIEF SOUGHT ........................................................................................................................... 1
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`MEMORANDUM OF POINTS AND AUTHORITIES ................................................................. 1
`
`INTRODUCTION ........................................................................................................................... 1
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`BACKGROUND ............................................................................................................................. 1
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`ARGUMENT ................................................................................................................................... 2
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`CONCLUSION ................................................................................................................................ 5
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`P&G’s Mot. To Dismiss and Joinder
`No. 22-CV-02646-LB
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`Case 3:22-cv-02646-LB Document 81 Filed 10/27/22 Page 3 of 8
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`TABLE OF AUTHORITIES
`
`Cases
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`Page(s)
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`DJ Lincoln Enterprises, Inc. v. Google, LLC,
`No. 2:20-CV-14159, 2021 WL 184527 (S.D. Fla. Jan. 19, 2021) ............................................... 5
`
`Fraser v. Team Health Holdings, Inc.,
`No. 20-CV-04600-JSW, 2022 WL 971579 (N.D. Cal. Mar. 31, 2022) ....................................... 3
`
`Gilbert v. MoneyMutual, LLC,
`No. 13-CV-01171-JSW, 2018 WL 8186605 (N.D. Cal. Oct. 30, 2018) ...................................... 3
`
`Shaw v. Nissan N. Am., Inc.,
`220 F. Supp. 3d 1046 (C.D. Cal. 2016) ................................................................................... 3, 4
`
`Spotlight Ticket Management, Inc. v. StubHub, Inc.,
`No. CV 19-10791 PA (JCX), 2020 WL 4342260 (C.D. Cal. May 22, 2020) .............................. 4
`
`Woodell v. Expedia Inc.,
`No. C19-0051JLR, 2019 WL 3287896 (W.D. Wash. July 22, 2019) ...................................... 3, 4
`Rules
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`Fed. R. Civ. P., Rule 12(b)(6) .......................................................................................................... 1
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`P&G’s Mot. To Dismiss and Joinder
`No. 22-CV-02646-LB
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`Case 3:22-cv-02646-LB Document 81 Filed 10/27/22 Page 4 of 8
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`NOTICE OF MOTION AND MOTION
`Please take notice that on January 26, 2023, at 9:30 a.m., or as soon thereafter as the
`matter may be heard, in the Courtroom of the Honorable Laurel Beeler of the United States
`District Court for the Northern District of California, defendant The Procter & Gamble Company
`(“P&G”) will and hereby moves to dismiss the First Amended Complaint (ECF 69). Please take
`further notice that P&G joins in the motions to dismiss of co-defendants Meta Platforms, Inc. and
`Mark Zuckerberg (together, “Meta”) and Twitter, Inc. and Jack Dorsey (together, “Twitter”) to be
`heard on that same date.
`
`RELIEF SOUGHT
`P&G requests dismissal of all causes of action with prejudice under Federal Rule of Civil
`Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.
`MEMORANDUM OF POINTS AND AUTHORITIES
`INTRODUCTION
`This latest installment in plaintiff Laura Loomer’s serial lawsuits over her ban from
`Facebook and Twitter adds P&G as a defendant. But Loomer has not stated a valid claim against
`P&G. To the contrary, her complaint demonstrates that P&G’s conduct was lawful and not
`actionable. P&G is alleged only to have asserted its own legitimate business interest in not
`having its advertisements appear next to hateful, denigrating, discriminatory, or other similarly
`offensive content. Loomer alleges no possible basis for concluding that doing so was unlawful
`under any cognizable legal theory, let alone that P&G formed a RICO enterprise with Meta and
`Twitter to engage in a purported pattern of racketeering activity. The Court should dismiss her
`complaint with prejudice.
`
`BACKGROUND
`The complaint says very little about P&G, and nothing that states a valid claim. The 118-
`page, 387-paragraph complaint contains only a small handful of paragraphs that mention P&G.
`ECF 69, ¶¶ 37–8, 233–39, 291, 292. Loomer alleges that a P&G employee announced at an April
`11, 2019 meeting of the Association of National Advertisers that P&G “would require advertising
`platforms to ‘prove’ that their content was ‘under their complete control.’” Id. ¶ 233. The next
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`Case 3:22-cv-02646-LB Document 81 Filed 10/27/22 Page 5 of 8
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`month, P&G allegedly provided a list of persons who were to be banned from Facebook unless
`those persons disavowed the Proud Boys. Id. ¶ 234. The complaint offers no facts to support this
`implausible allegation, citing only an unidentified “knowledgeable and reliable source.” Id.
`Loomer does not allege who at P&G supposedly provided this list or to whom it was provided.
`Id. Nor does she allege that this purported list said anything about Loomer. In the complaint’s
`only allegation attempting to tie P&G specifically to Loomer, Loomer alleges that, “[o]n or about
`May 2019,” P&G demanded that Facebook label Loomer a “‘Dangerous Individual’ and ban her
`from using Facebook’s platform.” Id. ¶ 235. Again, Loomer offers no supporting facts and
`attributes the allegation only to an unidentified “knowledgeable and reliable source.” Id.
`That is the entirety of the allegations that attempt to connect P&G to Loomer. The
`remaining allegations about P&G describe alleged P&G statements or meetings as reported in
`news articles from June 24, 2020, more than a year after Loomer alleges she was permanently
`removed from Facebook and Twitter. Id. ¶¶ 236–39; see id. ¶ 217 (alleging permanent removal
`from Twitter on November 21, 2018); id. ¶ 218 (alleging permanent removal from Facebook on
`May 2, 2019). In those articles, a P&G employee is quoted as saying that P&G would not
`advertise near certain types of content and that it stopped spending on websites that do not meet
`its standards. Id. ¶¶ 237, 239. P&G is also reported to have met with a civil rights group to
`discuss Facebook’s removal of content. Id. ¶ 238.
`The complaint says nothing at all about any connection between P&G and Twitter, let
`alone any connection that involves Loomer. It does not allege anything about any P&G
`advertising on Twitter, any purported contacts between P&G and Twitter regarding offensive
`content on Twitter, or that Twitter took any action regarding Loomer or anyone else in response
`to anything P&G said or did. All of the statements or conduct attributed to P&G occurred long
`after Loomer alleges Twitter banned her in November 2018. Id. ¶ 217.
`ARGUMENT
`P&G joins in and adopts the arguments in Meta’s and Twitter’s motions to dismiss
`regarding Loomer’s failure to allege valid RICO claims. As those motions demonstrate, Loomer
`has failed to validly allege any of the required elements of a RICO claim, including a RICO
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`enterprise, a pattern of racketeering activity, causation, injury, predicate acts, or conspiracy. All
`of these defects defeat Loomer’s claim as to P&G, just as they do as to Meta and Twitter.
`Indeed, the claims against P&G are particularly unfounded given that P&G is alleged only
`to have acted to protect its own independent business interest in not having its advertisements
`appear next to hateful, denigrating, discriminatory, or other similarly offensive content. Id. ¶¶
`233–39. Loomer does not allege any relationship between P&G and Twitter at all, and alleges
`only that P&G advertises on Facebook and has interacted with Facebook regarding its
`advertisements. Id. ¶¶ 235–36, 238–39. She does not allege that P&G had any interest or
`involvement in Facebook’s or Twitter’s decisions or operations beyond P&G’s independent
`interest as an advertiser on Facebook. Nor does she allege that P&G made any fraudulent or
`extortionate statements to Loomer, that Loomer relied on anything P&G said or did, or that P&G
`obtained anything of value from her.
`All of this defeats her claim. Courts in the Ninth Circuit have routinely held that
`“ordinary business activities” undertaken by “entities . . . pursuing their own individual economic
`interest, rather than a shared purpose,” do not satisfy the “common purpose” element of a RICO
`enterprise. Woodell v. Expedia Inc., No. C19-0051JLR, 2019 WL 3287896, at *8 (W.D. Wash.
`July 22, 2019); Fraser v. Team Health Holdings, Inc., No. 20-CV-04600-JSW, 2022 WL 971579,
`at *11 (N.D. Cal. Mar. 31, 2022) (“Courts routinely reject attempts to characterize routine
`commercial relationships as RICO enterprises.”); Shaw v. Nissan N. Am., Inc., 220 F. Supp. 3d
`1046, 1054 (C.D. Cal. 2016) (“[C]ourts have overwhelmingly rejected attempts to characterize
`routine commercial relationships as RICO enterprises.” (internal quotations and citation
`omitted)); Gilbert v. MoneyMutual, LLC, No. 13-CV-01171-JSW, 2018 WL 8186605, at *11
`(N.D. Cal. Oct. 30, 2018) (“Although the reasoning varies, ‘there has been a remarkable
`uniformity in [the] conclusion that RICO liability must be predicated on a relationship more
`substantial than a routine contract between a service provider and its client.’” (citation omitted;
`alternation in original)).
` In Woodell, the plaintiff argued that the defendants, including Expedia and Hotels.com,
`formed an enterprise with Reservations.com to charge consumers a “Taxes and Fees” charge that
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`was not remitted to the government, but instead was additional profits for the defendants. 2019
`WL 3287896 at *1–2. The plaintiff alleged the defendants operated a RICO enterprise to deceive
`consumers for the purpose of obtaining money through the “Taxes and Fees” charge. Id. at
`*3. The court found the “[a]llegations . . . consistent with ordinary business activities or purposes
`[were] insufficient [to] plead[] an association-in-fact RICO enterprise.” Id. at *8. “Where the
`alleged association-in-fact is formed through routine contracts for services, the ‘common
`purpose’ element is unmet because the entities are pursuing their own individual economic
`interests, rather than a shared purpose.” Id.
`Similarly, in Spotlight Ticket Management, Inc. v. StubHub, Inc., No. CV 19-10791 PA
`(JCX), 2020 WL 4342260 (C.D. Cal. May 22, 2020), the court found the relationship between
`defendant StubHub and a company (Awin) with which it contracted to track and pay commissions
`owed for ticket sales was a “routine commercial relationship,” and thus not sufficient to plead a
`RICO enterprise. Id. at *4. The court explained the “[d]efendants were pursuing their individual
`economic interests, rather than a shared purpose.” Id. And “[p]arties that enter commercial
`relationships ‘for their own gain or benefit’ do not constitute an ‘enterprise.’” Id. “Simply
`characterizing routine commercial dealing as a RICO enterprise is not enough.” Id. (internal
`quotations and citation omitted). Thus, the court dismissed the complaint even though the
`plaintiff alleged that “Awin allegedly perpetuated StubHub’s misrepresentations by
`underreporting and underpaying commissions” to plaintiff and others. Id. at *3; see also Shaw,
`220 F. Supp. 3d at 1057 (granting motion to dismiss where the complaint “only demonstrate that
`the parties ‘are associated in a manner directly related to their own primary business activities’”).
`These rulings apply fully here and bar Loomer’s claim. Her complaint shows that, at
`most, P&G had a commercial relationship with Facebook in which it was pursuing its individual
`economic interest in its own primary business activities. That relationship does not constitute a
`RICO enterprise any more than the even closer commercial relationships the courts found
`insufficient in cases like Woodell and Spotlight, where the defendants each participated in the
`transaction at issue with the plaintiff and allegedly acted together to defraud the plaintiff. P&G
`has a business interest in how its company and products are advertised and what content those
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`advertisements are associated with. It pays Facebook for advertising space and is concerned
`about the context and placement of its advertisements. Loomer cannot transform the business
`relationship of P&G and Facebook into an unlawful RICO enterprise by alleging they shared a
`common purpose to ban Loomer. DJ Lincoln Enterprises, Inc. v. Google, LLC, No. 2:20-CV-
`14159, 2021 WL 184527, at *3 (S.D. Fla. Jan. 19, 2021) (“While Plaintiff alleges in a conclusory
`manner that members of the purported enterprise had a common purpose to discriminate against
`and censor conservatives and to damage businesses that conservatives run, Plaintiff has not
`alleged any facts to demonstrate that each member shared this common purpose.”). The
`allegations identify nothing more than an ordinary business transaction.
`CONCLUSION
`For the foregoing reasons, and the reasons stated in the motions to dismiss of Meta and
`Twitter, the complaint should be dismissed with prejudice.
`
`Dated: October 27, 2022
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`JONES DAY
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`By: /s/ David C. Kiernan
`David C. Kiernan
`Craig E. Stewart
`Dayme Sanchez
`Attorneys for Defendant
`THE PROCTER & GAMBLE COMPANY
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`No. 22-CV-02646-LB
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