throbber
Case: 22-80100, 09/29/2022, ID: 12553090, DktEntry: 8, Page 1 of 23
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`No. 22-80100
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`
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`IN RE: FACEBOOK SIMULATED
`CASINO-STYLE GAMES LITIGATION
`
`
`
`
`
`On Petition for Permission to Appeal from an Order of the
`United States District Court for the Northern District of California
`Case No. 5:21-CV-02777 | The Honorable Edward J. Davila
`
`
`MOTION BY META PLATFORMS, INC. FOR LEAVE TO FILE
`REPLY IN SUPPORT OF PETITION FOR PERMISSION
`TO APPEAL UNDER 28 U.S.C. § 1292(b)
`
`
`
`Behnam Dayanim
`PAUL HASTINGS LLP
`2050 M Street, NW
`Washington, DC 20036
`Telephone: (202) 551-1700
`
`Sean D. Unger
`PAUL HASTINGS LLP
`101 California Street
`San Francisco, CA 94111
`Telephone: (415) 856-7000
`
`
`
`
`Christopher Chorba
`Timothy Loose
`Patrick J. Fuster
`Adrienne M. Liu
`GIBSON, DUNN & CRUTCHER LLP
`333 South Grand Avenue
`Los Angeles, CA 90071-3197
`Telephone: (213) 229-7000
`
`Attorneys for Petitioner Meta Platforms, Inc.
`
`
`
`

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`Petitioner Meta Platforms, Inc. respectfully requests leave to file a
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`reply in support of its petition for permission to appeal under 28 U.S.C.
`
`§ 1292(b). Dkt. 1-2.
`
`This Court regularly grants motions for leave to file reply briefs in
`
`support of § 1292(b) petitions. See, e.g., Cinnamon Mills v. Target Corp.,
`
`No. 21-80111, Dkt. 11 (9th Cir. Dec. 6, 2021); West Coast Stock Transfer,
`
`Inc. v. Terra Tech Corp., No. 19-80022, Dkt. 9 (9th Cir. May 31, 2019);
`
`Swinomish Indian Tribal Community v. BNSF Ry. Co., No. 18-80062,
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`Dkt. 11 (9th Cir. Aug. 21, 2018). Although neither the Federal Rules of
`
`Appellate Procedure nor this Court’s rules expressly address the filing of
`
`a reply in support of a § 1292(b) petition, the Federal Rules of Appellate
`
`Procedure generally give the party seeking relief an opportunity to file a
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`reply. See Fed. R. App. P. 27(a)(4) (authorizing a reply to a response to a
`
`motion); Fed. R. App. P. 28(c) (authorizing appellant to file reply brief).
`
`Meta’s proposed reply complies with the length and timing
`
`requirements in Federal Rule of Appellate Procedure 27(a)(4) and (d)(2)
`
`and Circuit Rules 27-1(1)(d) and 32-3 for reply briefs in support of
`
`motions, as it does not exceed 2,800 words and is being filed within seven
`
`days of the filing of the answer to the petition. Dkt. 6. The Court will
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`
`i
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`

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`benefit from the proposed reply because it clarifies the issues presented,
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`rebuts arguments raised in the answer, and corrects the record. Counsel
`
`for Meta has conferred with counsel for Plaintiffs. Plaintiffs do not
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`oppose this motion.
`
`Meta therefore respectfully requests that the Court grant this
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`motion and consider the attached reply in deciding the petition.
`
`
`
`Dated: September 29, 2022
`
`GIBSON, DUNN & CRUTCHER LLP
`
`By: /s/ Christopher Chorba
`Counsel for Petitioner
`Meta Platforms, Inc.
`
`
`
`
`
`ii
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`Case: 22-80100, 09/29/2022, ID: 12553090, DktEntry: 8, Page 4 of 23
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`
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`TABLE OF CONTENTS
`
`Page
`
`INTRODUCTION ....................................................................................... 1
`
`ARGUMENT ............................................................................................... 4
`
`I.
`
`This Court Should Grant Meta’s § 1292(b) Petition ............... 4
`
`A.
`
`Section 230 Presents a Controlling Question of
`Law .................................................................................. 4
`
`B. Reasonable Jurists Could Conclude That Section
`230 Protects an Online Service When It
`Facilitates Access to Third-Party Content for a
`Fee ................................................................................... 6
`
`C. An Interlocutory Appeal Would Materially
`Advance the Termination of This Case ........................ 11
`
`II. Plaintiffs’ Proposed Cross-Appeal Is Foreclosed by
`Circuit Precedent ................................................................... 13
`
`CONCLUSION ......................................................................................... 15
`
`CERTIFICATE OF COMPLIANCE ........................................................ 16
`
`
`
`iii
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`TABLE OF AUTHORITIES
`
`Page(s)
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`
`
`Cases
`
`Carafano v. Metrosplash.com, Inc.,
`339 F.3d 1119 (9th Cir. 2003) ................................................................ 9
`
`In re Cement Antitrust Litig.,
`673 F.2d 1020 (9th Cir. 1981) .............................................................. 11
`
`Coffee v. Google, LLC,
`2022 WL 94986 (N.D. Cal. Jan. 10, 2022) ........................................... 10
`
`Dent v. Nat’l Football League,
`968 F.3d 1126 (9th Cir. 2020) .............................................................. 14
`
`Dyroff v. Ultimate Software Grp., Inc.,
`934 F.3d 1093 (9th Cir. 2019) .......................................................... 6, 14
`
`Fair Housing Council of San Fernando Valley v. Roommates.com, LLC,
`521 F.3d 1157 (9th Cir. 2008) ................................................................ 3
`
`Gonzalez v. Google, Inc.,
`335 F. Supp. 3d 1156 (N.D. Cal. 2018) ................................................ 14
`
`Gonzalez v. Google LLC,
`2 F.4th 871 (9th Cir. 2021) .......................................................... 2, 8, 14
`
`HomeAway.com, Inc. v. City of Santa Monica,
`918 F.3d 676 (9th Cir. 2019) ........................................................ 2, 7, 10
`
`ICTSI Oregon, Inc. v. Int’l Longshore & Warehouse Union,
`22 F.4th 1125 (9th Cir. 2022) .............................................................. 11
`
`Kater v. Churchill Downs Inc.,
`886 F.3d 784 (9th Cir. 2018) .................................................................. 9
`
`Kimzey v. Yelp! Inc.,
`836 F.3d 1263 (9th Cir. 2016) ........................................................ 10, 14
`
`
`
`iv
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`

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`
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`Perfect 10, Inc. v. CCBill LLC,
`488 F.3d 1102 (9th Cir. 2007) ............................................................ 8, 9
`
`Reese v. BP Exploration (Alaska) Inc.,
`643 F.3d 681 (9th Cir. 2011) .................................................... 11, 12, 13
`
`Rivera v. NIBCO, Inc.,
`364 F.3d 1057 (9th Cir. 2004) ................................................................ 5
`
`Schmitt v. Kaiser Found. Health Plan of Wash.,
`965 F.3d 945 (9th Cir. 2020) ................................................................ 12
`
`Whittlestone, Inc. v. Handi-Craft Co.,
`618 F.3d 970 (9th Cir. 2010) ................................................................ 14
`
`Yamaha Motor Corp., U.S.A. v. Calhoun,
`516 U.S. 199 (1996) ............................................................................ 4, 5
`
`Statutes
`
`28 U.S.C. § 1292.................................................................................... 1, 11
`
`47 U.S.C. § 230...................................................................................... 6, 11
`
`Rules
`
`Fed. R. App. P. 5 ......................................................................................... 5
`
`
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`v
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`INTRODUCTION
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`Meta’s petition for interlocutory appeal raises a legal question of
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`paramount importance to the marketplace for online content: whether
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`Section 230 of the Communications Decency Act bars claims against
`
`online services for hosting and processing content created and sold by
`
`third parties. The district court concluded that Section 230 did not bar
`
`Plaintiffs’ attempt to hold Meta liable for allegedly illegal content created
`
`and sold by third parties within casino-themed video games hosted on
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`Facebook. But given its doubts, the district court sua sponte certified its
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`order for interlocutory appeal under 28 U.S.C. § 1292(b).
`
`Plaintiffs oppose immediate review of this order, but their answer
`
`contains only formalistic objections and distortions of this Court’s
`
`precedent. They criticize the district court for not articulating a precise
`
`“question presented” in its certification order and for not citing enough
`
`contrary authorities in its discussion of the substantial ground for
`
`difference of opinion. But what matters is that the order plainly satisfies
`
`the requirements of § 1292(b). Meta’s defense—that Section 230
`
`forecloses claims against online services where liability would depend on
`
`the existence or nature of content created by a third party—is a
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`1
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`

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`controlling question of law, and there is fair ground to disagree with the
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`district court’s rejection of that defense, as confirmed by the contrary
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`results reached by other district courts within this Circuit.
`
`Although Plaintiffs contend that their position follows from
`
`HomeAway.com, Inc. v. City of Santa Monica, 918 F.3d 676 (9th Cir.
`
`2019), and Gonzalez v. Google LLC, 2 F.4th 871 (9th Cir. 2021), the
`
`district court was unsure how to read those decisions. Reasonable jurists
`
`could and should recognize that the claims in HomeAway and Gonzalez
`
`went forward despite Section 230 only because the liability theories
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`targeted transactions that were alleged to be illegal regardless of any
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`third-party content. Here, in contrast, Plaintiffs’ claims turn on the
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`nature of online content sold in casino-themed video games that third-
`
`party developers created and then chose to host on Facebook. That
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`theory would require Meta to monitor and evaluate the nature of third-
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`party content on Facebook before processing sales of that content.
`
`The district court’s novel exception to Section 230 for websites that
`
`process transactions for online content created and sold by third parties
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`calls for immediate review, as the district court itself recognized.
`
`Section 230 is an “immunity statute” that should be resolved at the
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`
`
`2
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`

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`earliest possible stage to protect defendants “not merely from ultimate
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`liability, but from having to fight costly and protracted legal battles.”
`
`Fair Housing Council of San Fernando Valley v. Roommates.com, LLC,
`
`521 F.3d 1157, 1174-75 (9th Cir. 2008) (en banc). Yet without an
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`interlocutory appeal, Meta will irreparably lose that immunity from suit
`
`when forced to defend itself against a litany of claims based on third-
`
`party content hosted and sold on Facebook. Notably, Plaintiffs do not
`
`dispute the centrality of this issue to the litigation or the sweeping
`
`consequences for online services that facilitate access to third-party
`
`content for a fee. And their speculation that they might uncover new
`
`evidence and then might move to amend their complaint is no reason to
`
`defer resolving whether Section 230 bars this action.
`
`Plaintiffs also have conditionally cross-petitioned to appeal on the
`
`ground that a district court cannot grant a motion to dismiss as to invalid
`
`theories of liability, but only as to whole claims. Although Meta takes no
`
`position on whether the Court should grant Plaintiffs’ cross-petition, this
`
`Court has held that district courts can dismiss invalid portions of claims,
`
`making a cross-appeal a questionable use of appellate resources.
`
`Regardless, if Meta prevails on appeal, this action would be dismissed in
`
`
`
`3
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`

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`its entirety, rendering moot Plaintiffs’ formalistic objections to partial
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`dismissal.
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`ARGUMENT
`
`I.
`
`This Court Should Grant Meta’s § 1292(b) Petition
`
`The order under review meets the jurisdictional requirements of
`
`§ 1292(b), and the strong interest in resolving Section 230 at the outset
`
`of an action clearly outweighs Plaintiffs’ prudential arguments for
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`delaying review.
`
`A. Section 230 Presents a Controlling Question of Law
`
`Plaintiffs contend that this Court lacks jurisdiction because the
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`district court did not adequately articulate a controlling question of law.
`
`Ans. at 8-10. This argument is both irrelevant to jurisdiction under
`
`§ 1292(b) and wrong.
`
`Plaintiffs’ nitpicking is irrelevant because § 1292(b) requires only
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`that the district court certify its order for appeal—not a particular
`
`question. Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205
`
`(1996). A district court often will specify a question for appeal, but this
`
`Court can “‘review the entire order, either to decide a question different
`
`than the one certified as controlling or to decide the case despite the lack
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`4
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`of any identified controlling question.’” Rivera v. NIBCO, Inc., 364 F.3d
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`1057, 1063 (9th Cir. 2004) (emphasis added) (quoting Yamaha, 516 U.S.
`
`at 205). All that matters for jurisdiction is that Meta’s petition identified
`
`a controlling question of law arising from the order—specifically,
`
`whether Section 230 bars claims that seek to hold an online service liable
`
`for processing sales of virtual content if the content is the reason why the
`
`transaction is allegedly unlawful. Pet. at 8; see Fed. R. App. P. 5(b)(1)(B)
`
`(requiring petitioner to present question for review).
`
`Plaintiffs’ characterization also is wrong because the district court
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`did identify a controlling question of law: “whether the Platforms are
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`entitled to immunity for their hosting of the allegedly unlawful social
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`casino apps.” Dkt. 119 at 36. Plaintiffs assert that their claims don’t
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`impose liability for hosting the games. Ans. at 9-11. But that, of course,
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`is the crux of this dispute. The question is whether Section 230 bars
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`claims based on content created and sold by third parties using Meta’s
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`neutral payment-processing tools. Pet. at 8-10. Although Plaintiffs feign
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`confusion, the district court clearly intended to certify the application of
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`Section 230 to the “second theory of liability” regarding in-app purchases
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`5
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`

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`of virtual currency. Dkt. 119 at 36. That controlling question of law
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`warrants immediate appellate resolution.
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`B. Reasonable Jurists Could Conclude That Section 230
`Protects an Online Service When It Facilitates Access
`to Third-Party Content for a Fee
`
`Section 230 protects online services when they would “face liability”
`
`for “facilitat[ing] the communication and content of others.” Dyroff v.
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`Ultimate Software Grp., Inc., 934 F.3d 1093, 1098 (9th Cir. 2019). As
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`Plaintiffs admit, their claims seek to impose liability for in-app sales of
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`virtual currency only within casino-themed video games because players
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`will likely use the purchased content to play animated slot machines.
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`Ans. at 4. But both the virtual currency and the casino-themed video
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`games are third-party content—“information provided by another
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`information content provider” (namely, the app developers). 47 U.S.C.
`
`§ 230(c)(1). Section 230 therefore bars claims that would hold Meta liable
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`either for what content third parties sell within apps (virtual currency)
`
`or how third parties use such content in casino-themed video games (to
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`play games that, despite paying out no real money, allegedly constitute
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`gambling).
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`
`
`6
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`

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`The district court disagreed, concluding that the processing of
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`“unlawful transactions for unlawful gambling” could be separated from
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`what makes the transactions for virtual currency allegedly unlawful in
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`the first place: that third parties designed casino-themed video games
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`that allegedly allow gambling with virtual currency. Dkt. 119 at 33. But
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`the court sua sponte confessed uncertainty about how to read “the Ninth
`
`Circuit’s precedent on this complicated question.” Id. at 36.
`
`Plaintiffs spend most of their effort insisting that this case is just a
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`rerun of HomeAway. But that’s obviously not true. There, the ordinance
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`prohibited real estate transactions involving unregistered properties.
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`918 F.3d at 681. The ordinance did “not proscribe, mandate, or even
`
`discuss the content of the listings” by third-party property owners, which
`
`meant that the platforms would “face no liability for the content of the
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`bookings.” Id. at 683-84. Here, by contrast, Plaintiffs claim that Meta
`
`violated the law by processing in-app purchases of third-party online
`
`content because federal and state law “proscribe[s]” virtual currency
`
`within casino-themed video games, but not other games like Candy
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`Crush or Madden NFL. Id. at 683. Their claims therefore would impose
`
`liability for the content of third-party games and the in-app purchases of
`
`
`
`7
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`

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`content created by others. Apart from involving “transactions,” Ans.
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`at 17, these cases share nothing in common.
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`Gonzalez confirms that Meta—not Plaintiffs—has read HomeAway
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`correctly. Section 230 didn’t bar claims that Google illegally shared
`
`revenue generated by ISIS’s YouTube videos because this theory did “not
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`depend on the particular content ISIS places on YouTube.” 2 F.4th
`
`at 898. Federal law prohibits giving money to designated terrorist
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`organizations under any circumstances, which made the existence or
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`content of the videos irrelevant to the claims. Pet. at 20. If Plaintiffs
`
`were right, Gonzalez would have announced that revenue-sharing
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`transactions fall outside Section 230 even when the claims “depend on
`
`the particular content ISIS places on YouTube”—i.e., the opposite of its
`
`actual holding. Section 230 applies here, but not to the transactions in
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`HomeAway and Gonzalez, because Meta’s liability would turn on the
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`nature of the content placed on Facebook by the third-party developers
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`of casino-themed video games.
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`Only one of this Court’s decisions has addressed claims brought
`
`against an online service for processing third-party sales of digital
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`content—and it’s not HomeAway or Gonzalez. In Perfect 10, Inc. v. CCBill
`
`
`
`8
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`

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`LLC, 488 F.3d 1102 (9th Cir. 2007), this Court held that Section 230
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`protected an entity that processed payments for “subscriptions or
`
`memberships” to access pirated images posted online by third parties. Id.
`
`at 1108, 1118. Perfect 10 makes clear that, if there is something harmful
`
`or illegal about virtual currency or casino-themed video games, Plaintiffs
`
`must bring their claims against the content developers, not the content
`
`distributors. Id. at 1118-19 & n.5; accord Carafano v. Metrosplash.com,
`
`Inc., 339 F.3d 1119, 1123-24 (9th Cir. 2003). Plaintiffs do not cite, let
`
`alone distinguish, Perfect 10. In fact, they argue that they can bring
`
`claims against the third-party developers and then turn their sights on
`
`the hosting services, where the only “major difference” in the cases is “the
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`identity of the defendants.” Ans. at 3-4 (citing Kater v. Churchill Downs
`
`Inc., 886 F.3d 784 (9th Cir. 2018)).
`
`Plaintiffs argue that Meta should simply refrain from processing
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`in-app purchases of virtual currency within casino-themed video games.
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`Ans. at 19. But consider what a content-based duty not to process
`
`transactions would entail in this context. Meta cannot know when to
`
`withhold its payment-processing tools unless it monitors the content of
`
`every app hosted on Facebook, “reviews the content” selected for every
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`9
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`purchase by any user, and evaluates what every user can do or experience
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`with the purchased content within every app. HomeAway, 918 F.3d
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`at 682. This asserted duty to monitor third-party content confirms that
`
`the district court’s interpretation of Section 230 has gone awry.
`
`The order here also created an intra-circuit conflict with Coffee v.
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`Google, LLC, 2022 WL 94986 (N.D. Cal. Jan. 10, 2022), which held that
`
`Section 230 protects online services when they process sales of third-
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`party content for a fee. Judge Freeman explained that Google (also a
`
`defendant here) did “not become responsible for offending content” in
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`apps hosted on its site just because it offered developers neutral
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`payment-processing tools. Id. at *6. Plaintiffs try to distinguish Coffee
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`on the theory that the plaintiffs there alleged that Google illegally
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`facilitated gambling by processing in-app purchases of virtual currency,
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`whereas Plaintiffs here allege that Meta illegally facilitated gambling by
`
`processing illegal in-app purchases of virtual currency. Ans. at 20. But
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`there’s no substantive difference between these two theories. In this
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`Circuit, that sort of “creative pleading” cannot circumvent Section 230
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`protection. Kimzey v. Yelp! Inc., 836 F.3d 1263, 1265 (9th Cir. 2016).
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`10
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`Section 1292(b) does not require the “‘development of contradictory
`
`precedent’” before an interlocutory appeal. ICTSI Oregon, Inc. v. Int’l
`
`Longshore & Warehouse Union, 22 F.4th 1125, 1130-31 (9th Cir. 2022).
`
`Yet the district court’s order conflicts with the reasoning of HomeAway
`
`and Gonzalez, this Court’s on-point decision in Perfect 10, and the result
`
`in Coffee—all of which “provides a credible basis for a difference of
`
`opinion on the issue.” Reese v. BP Exploration (Alaska) Inc., 643 F.3d
`
`681, 688 (9th Cir. 2011) (quotation marks omitted).
`
`C. An Interlocutory Appeal Would Materially Advance
`the Termination of This Case
`
`Because the district court found that a ruling in Meta’s favor would
`
`end the entire case, Dkt. 119 at 36, an immediate appeal “may materially
`
`advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b).
`
`This case also warrants review as a discretionary matter. The petition
`
`concerns a statutory prohibition that “[n]o cause of action may be
`
`brought” that, as here, holds an online service responsible for third-party
`
`content. 47 U.S.C. § 230(e)(3); see Pet. at 26-27. But absent a ruling from
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`this Court, Meta will irreparably lose its immunity from suit in
`
`“protracted and expensive litigation” on Plaintiffs’ claims. In re Cement
`
`Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1981). Meanwhile, the
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`11
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`district court’s interpretation could have far-reaching consequences by
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`requiring content monitoring by all online services that facilitate access
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`to third-party content (such as newsletters and podcasts) for a fee. Pet.
`
`at 27-28.
`
`Plaintiffs don’t dispute these points. Instead, they suggest that an
`
`interlocutory appeal could produce an advisory opinion because they
`
`might, at some unspecified point, seek to amend their complaint. Ans. at
`
`20-22. But the possibility of amendment would not make this Court’s
`
`decision advisory. A decision on Section 230 “‘may’ take’” the claims
`
`about in-app purchases “out of the case,” Reese, 643 F.3d at 688, and
`
`would guide any assessment whether amendment would be futile, e.g.,
`
`Schmitt v. Kaiser Found. Health Plan of Wash., 965 F.3d 945, 949 (9th
`
`Cir. 2020). At any rate, amendment would be futile, as Meta argued,
`
`Dkt. 108 at 10, and as the district court evidently found in bypassing
`
`Plaintiffs’ request for leave to add allegations that Meta materially
`
`contributed to the alleged illegality of casino-themed video games,
`
`Dkt. 104 at 30. In short, this issue should be taken up now.
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`12
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`II. Plaintiffs’ Proposed Cross-Appeal Is Foreclosed by Circuit
`Precedent
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`Plaintiffs propose a cross-appeal so that they can argue that the
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`district court erred in dismissing their claims insofar as they rest on
`
`theories that Meta hosted casino-themed video games or provided neutral
`
`tools for third-party developers to promote and distribute their content.
`
`Dkt. 119 at 32, 34-35. Relying on Seventh Circuit precedent, they assert
`
`that Rule 12 authorizes dismissal only of claims in toto—not isolated
`
`liability theories. Ans. at 24-25. Although Meta takes no position on the
`
`cross-petition, two considerations might inform how this Court allocates
`
`its appellate resources.
`
`First, the cross-petition issue would not affect the controlling
`
`question of law presented by the petition. If Meta prevails on appeal,
`
`Section 230 would bar every liability theory and every claim, necessitating
`
`dismissal of the entire complaint. Dkt. 119 at 36. This Court can grant
`
`both Meta’s petition and Plaintiffs’ cross-petition, but there’s no
`
`impediment—jurisdictional or prudential—to granting only Meta’s
`
`petition if allowing a cross-appeal would be “a waste of judicial
`
`resources.” Reese, 643 F.3d at 689.
`
`
`
`13
`
`

`

`Case: 22-80100, 09/29/2022, ID: 12553090, DktEntry: 8, Page 20 of 23
`
`
`
`Second, binding precedent already forecloses Plaintiffs’ argument.
`
`Whatever the Seventh Circuit might say about waiting until summary
`
`judgment to trim invalid grounds for relief, this Circuit has held that
`
`arguments regarding “portions of the suit” are “suited for a Rule 12(b)(6)
`
`motion or a Rule 56 motion.” Whittlestone, Inc. v. Handi-Craft Co., 618
`
`F.3d 970, 975 (9th Cir. 2010) (emphasis added). A motion to dismiss can
`
`and should be granted as to “improperly pled” theories even when a claim
`
`can proceed under another theory. Dent v. Nat’l Football League, 968
`
`F.3d 1126, 1136 (9th Cir. 2020).
`
`District courts can use Rule 12(b)(6) to dismiss invalid portions of
`
`the complaint under Section 230 as well. In Gonzalez, the plaintiffs
`
`claimed that Google had provided material support to terrorists. The
`
`district court granted Google’s motion to dismiss under Section 230 as to
`
`all theories of material support except for revenue-sharing. 335 F.
`
`Supp. 3d 1156, 1170-74 (N.D. Cal. 2018). This Court affirmed, holding
`
`that Section 230 barred all theories but the “revenue-sharing theory.” 2
`
`F.4th at 897-98. Other decisions similarly consider Section 230 on a
`
`theory-by-theory basis. E.g., Dyroff, 934 F.3d at 1099-1100; Kimzey, 836
`
`F.3d at 1270.
`
`
`
`14
`
`

`

`Case: 22-80100, 09/29/2022, ID: 12553090, DktEntry: 8, Page 21 of 23
`
`
`
`Given the in-circuit precedent governing this issue, Plaintiffs could
`
`not credibly have “relied upon” out-of-circuit cases—none of which they
`
`cited below—in deciding to forfeit arguments against dismissal. Ans.
`
`at 26. The district court here committed errors, but dismissing legal
`
`theories foreclosed by Section 230 was not one of them.
`
`CONCLUSION
`
`Meta respectfully requests that the Court grant its petition for
`
`permission to appeal under 28 U.S.C. § 1292(b). Meta takes no position
`
`on whether Plaintiffs’ cross-petition should be granted.
`
`
`
`Dated: September 29, 2022
`
`
`Respectfully submitted,
`
`GIBSON, DUNN & CRUTCHER LLP
`
`By: /s/ Christopher Chorba
`Counsel for Petitioner
`Meta Platforms, Inc.
`
`
`
`
`
`15
`
`
`
`
`
`
`

`

`Case: 22-80100, 09/29/2022, ID: 12553090, DktEntry: 8, Page 22 of 23
`
`
`
`CERTIFICATE OF COMPLIANCE
`
`The motion complies with the word limit of Circuit Rules 27-1(1)(d)
`
`and 32-3(2) because it contains 280 words, excluding the portions
`
`exempted by Rule 32(f) of the Federal Rules of Appellate Procedure.
`
`The reply complies with the word limit of Circuit Rules 5-2(b) and
`
`32-3(2) because it contains 2,796 words, excluding the portions exempted
`
`by Rules 5(b)(1)(E) and 32(f) of the Federal Rules of Appellate Procedure.
`
`The motion and reply comply with the typeface and type-style
`
`requirements of Rule 32(a)(5)(A) and (a)(6) because it has been prepared
`
`in a proportionally spaced typeface using Microsoft Word in 14-point,
`
`New Century Schoolbook font.
`
`
`Dated: September 29, 2022
`
`
`Respectfully submitted,
`
`GIBSON, DUNN & CRUTCHER LLP
`
`By: /s/ Christopher Chorba
`Counsel for Petitioner
`Meta Platforms, Inc.
`
`
`
`
`
`
`
`
`
`16
`
`

`

`Case: 22-80100, 09/29/2022, ID: 12553090, DktEntry: 8, Page 23 of 23
`
`
`
`CERTIFICATE OF SERVICE
`
`I certify that on September 29, 2022, I electronically filed the
`
`foregoing petition with the Clerk of the Court for the United States Court
`
`of Appeals for the Ninth Circuit by using the appellate CM/ECF system,
`
`which will send a notification of that filing to all counsel of record.
`
`
`
`Dated: September 29, 2022
`
`
`Respectfully submitted,
`
`GIBSON, DUNN & CRUTCHER LLP
`
`
`
`
`
`By: /s/ Christopher Chorba
`Counsel for Petitioner
`Meta Platforms, Inc.
`
`
`
`17
`
`

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