`Case 3:21-cv-00561-MAB Document 174 Filed 01/28/22 Page 1 of 4 Page ID #676
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF ILLINOIS
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`Case No.: 3:21-cv-561
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`Plaintiff,
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`v.
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`CITY OF EAST ST. LOUIS, individually and on
`behalf of all others similarly situated,
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`NETFLIX, INC., DISNEY STREAMING
`SERVICES, LLC, APPLE INC., HULU, LLC,
`HOME BOX OFFICE, INC., AMAZON.COM
`SERVICES, LLC, CBS ENTERTAINMENT, LLC,
`YOUTUBE, INC., CURIOSITYSTREAM, INC,
`PEACOCK TV, LLC, DIRECTV
`CORPORATION, and DISH NETWORK
`SERVICE, LLC
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`Defendants.
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`DEFENDANT NETFLIX, INC.’S MOTION TO DISMISS AND REQUEST FOR ORAL
`ARGUMENT
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`Defendant Netflix, Inc. (“Netflix”), pursuant to Federal Rule of Civil Procedure 12(b)(6),
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`moves to dismiss Plaintiff City of East St. Louis’ Amended Complaint with prejudice. Netflix
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`respectfully requests that that the Court schedule an oral argument on this Motion to Dismiss.
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`In support of its Motion to Dismiss, Netflix states Plaintiff’s Amended Complaint is fatally
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`deficient as a matter of law for the following separate and independently sufficient reasons:
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`1.
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`Illinois’s Cable and Video Competition Law of 2007 (220 ILCS 5/21-100 et. seq.)
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`(the “CVCL”) does not grant Plaintiff a private right of action.
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`2.
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`By its terms, the CVCL does not extend to Netflix’s online streaming service
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`because: (1) only franchise “holders” are liable for franchise fees and Netflix is not a “holder;”
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`Case 3:21-cv-00561-MAB Document 174 Filed 01/28/22 Page 2 of 4 Page ID #677
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`(2) Netflix does not construct, install, or operate any infrastructure in any public rights-of-way or
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`otherwise use or occupy any public rights-of-way; (3) Netflix’s content is not “video
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`programming;” (4) Netflix does not operate a “video system;” and (5) Netflix’s content is offered
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`over the public Internet.
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`3.
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`The imposition of state or local franchise fees on Netflix is inconsistent with, and
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`preempted by, the Communications Act of 1934, as amended, 47 U.S.C. § 151 et seq. and long-
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`standing Federal Communications Commission precedent.
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`4.
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`5.
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`Application of the CVCL to Netflix would violate the Internet Tax Freedom Act.
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`Application of the CVCL to Netflix would violate the First Amendment of the
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`United States Constitution and Article I, Section 4 of the Illinois Constitution.
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`6.
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`Application of the CVCL to Netflix would violate the Uniformity Clause of the
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`Illinois Constitution.
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`7.
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`8.
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`Netflix has not trespassed upon Plaintiff’s property.
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`Netflix has not unjustly enriched itself by use of the Plaintiff’s public rights-of-
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`way because Netflix does not construct, install, or operate any infrastructure in Plaintiff’s public
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`rights-of-way.
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`9.
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`Netflix has not resold cable signals or service.
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`Therefore, as set forth more fully in the attached Memorandum of Law In Support of this
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`Motion, the Court should dismiss Plaintiff’s Amended Complaint with prejudice because it fails
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`to state a claim upon which relief can be granted.
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`Case 3:21-cv-00561-MAB Document 174 Filed 01/28/22 Page 3 of 4 Page ID #678
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`Dated: January 26, 2022
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`Respectfully submitted,
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`/s/ Mary Rose Alexander
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`Mary Rose Alexander
`Robert C. Collins III
`LATHAM & WATKINS LLP
`330 North Wabash Avenue, Suite 2800
`Chicago, IL 60611
`Tel: (312) 876-7700
`Email: mary.rose.alexander@lw.com
`Email: robert.collins@lw.com
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`Jean A. Pawlow (pro hac vice)
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Suite 1000
`Washington, DC 20004
`Tel.: (202) 637-3331
`Email: jean.pawlow@lw.com
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`Julie Fix Meyer
`ARMSTRONG TEASDALE LLP
`7700 Forsyth Blvd., Suite 1800
`St. Louis, Missouri 63105-1847
`Tel.: (314) 621-5070
`Email: jfixmeyer@atllp.com
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`Counsel for Defendant Netflix, Inc.
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`Case 3:21-cv-00561-MAB Document 174 Filed 01/28/22 Page 4 of 4 Page ID #679
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`CERTIFICATE OF SERVICE
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`I hereby certify that, on January 28, 2022, a copy of the foregoing was filed electronically
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`and sent to all counsel of record by operation of the Court’s CM/ECF System.
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`/s/ Mary Rose Alexander
`Mary Rose Alexander
`Counsel for Defendant Netflix, Inc.
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