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`David J. Groesbeck
`WSBA No. 24749
`David J. Groesbeck, P.S.
`1716 Sylvester St. SW
`Olympia, Washington 98501
`Tel.: 509-747-2800
`Fax: 509-747-2828
`Email: david@groesbecklaw.com
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF WASHINGTON
` AT SEATTLE
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`
`PARLER LLC,
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`v.
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`
`Plaintiff,
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`AMAZON WEB SERVICES, INC.,
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`
`
`Defendant
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` No. ______________________
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`
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`PLAINTIFF’S MOTION FOR
`TEMPORARY RESTRAINING
`ORDER
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`NOTE ON MOTION CALENDAR
`January 10, 2021
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`
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`PLAINTIFF’S MOTION FOR
`TEMPORARY RESTRAINING
`ORDER - 1
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`David J. Groesbeck, P.S.
`Attorney and Counselor
`1716 Sylvester St. SW
`Olympia, Washington 98501
`(509) 747-2800
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`Case 2:21-cv-00031-BJR Document 2 Filed 01/11/21 Page 2 of 11
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`INTRODUCTION
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`Plaintiff Parler, LLC moves the Court for a temporary restraining order
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`against Defendant Amazon Web Services, Inc (“AWS”). AWS is threatening to
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`suspend all services to Parler tonight at 11:59 PM PST—and thus shut Parler down
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`completely—with little more than a day’s notice. These actions not only breach the
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`parties’ contract memorialized in the AWS Customer Agreement (the “Agreement”)
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`but worse, threaten Parler with extinction right when the social media company
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`was experiencing explosive growth. The elements are met for Rule 65 relief.
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`To prevent irreparable harm to the plaintiff, the Court should enter a
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`temporary restraining order enjoining the defendant from suspending Parler’s
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`account with AWS or terminating the Agreement. A proposed form of order is
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`submitted to the Court in connection with this motion.
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`This motion is supported by the memorandum of points and authorities
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`submitted herein; and by the Verified Complaint and exhibits thereto. For the
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`reasons collectively presented to the Court, the motion should be granted.
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`RELEVANT FACTS
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`1.
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`Parler restates and incorporates by reference each of the allegations
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`set forth in the Complaint as if fully set forth herein.
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`2.
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`Last Month, Defendant Amazon Web Services (“AWS”) and the
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`popular social media platform Twitter signed a multi-year deal so that AWS could
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`David J. Groesbeck, P.S.
`Attorney and Counselor
`1716 Sylvester St. SW
`Olympia, Washington 98501
`(509) 747-2800
`
`
`
`PLAINTIFF’S MOTION FOR
`TEMPORARY RESTRAINING
`ORDER - 2
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`Case 2:21-cv-00031-BJR Document 2 Filed 01/11/21 Page 3 of 11
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`support the daily delivery of millions of tweets. AWS currently provides that same
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`service to Parler, a conservative microblogging alternative and competitor to
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`Twitter. (Compl. ¶ 1.)
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`3. When Twitter announced two evenings ago that it was permanently
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`banning President Trump from its platform, conservative users began to flee
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`Twitter en masse for Parler. The exodus was so large that the next day, yesterday,
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`Parler became the number one free app downloaded from Apple’s App Store.
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`(Compl. ¶ 2.)
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`4.
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`Yet last evening, AWS announced that it would suspend Parler’s
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`account effective Sunday, January 10th, at 11:59 PM PST. And it stated the reason
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`for the suspension was that AWS was not confident Parler could properly police its
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`platform regarding content that encourages or incites violence against others.
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`However, Friday night one of the top trending tweets on Twitter was “Hang Mike
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`Pence.” But AWS has no plans nor has it made any threats to suspend Twitter’s
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`account. (Compl. ¶ 3.)
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`5.
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`AWS’s decision to suspend Parler’s account is apparently motivated by
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`political animus. It is also apparently designed to reduce competition in the
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`microblogging services market to the benefit of Twitter. (Compl. ¶ 4.)
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`6.
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`Thus, AWS is violating Section 1 of the Sherman Antitrust Act in
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`combination with Twitter. AWS is also breaching its contract with Parler, which
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`David J. Groesbeck, P.S.
`Attorney and Counselor
`1716 Sylvester St. SW
`Olympia, Washington 98501
`(509) 747-2800
`
`
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`PLAINTIFF’S MOTION FOR
`TEMPORARY RESTRAINING
`ORDER - 3
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`Case 2:21-cv-00031-BJR Document 2 Filed 01/11/21 Page 4 of 11
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`requires AWS to provide Parler with a thirty-day notice before terminating service,
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`rather than the less than thirty-hour notice AWS actually provided. Finally, AWS
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`is committing intentional interference with prospective economic advantage given
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`the millions of users expected to sign up in the near future. (Compl. ¶ 5.)
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`7.
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`This emergency motion seeks a Temporary Restraining Order against
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`Defendant Amazon Web Services to prevent it from shutting down Parler’s account
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`at the end of today. Doing so is the equivalent of pulling the plug on a hospital
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`patient on life support. It will kill Parler’s business—at the very time it is set to
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`skyrocket. (Compl. ¶ 6.)
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`MEMORANDUM IN SUPPORT
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`To succeed on a motion for a temporary restraining order, the moving party
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`must show: (1) a likelihood of success on the merits; (2) a likelihood of irreparable
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`harm to the moving party in the absence of preliminary relief; (3) that a balance of
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`equities tips in the favor of the moving party; and (4) that an injunction is in the
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`public interest. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
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`The Ninth Circuit employs a “sliding scale” approach, according to which these
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`elements are balanced, “so that a stronger showing of one element may offset a
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`weaker showing of another.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127,
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`1131 (9th Cir. 2011). Under the Winter test, a party merits relief when it raises
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`serious questions going to the merits of its case and a balance of hardships that tips
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`David J. Groesbeck, P.S.
`Attorney and Counselor
`1716 Sylvester St. SW
`Olympia, Washington 98501
`(509) 747-2800
`
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`PLAINTIFF’S MOTION FOR
`TEMPORARY RESTRAINING
`ORDER - 4
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`Case 2:21-cv-00031-BJR Document 2 Filed 01/11/21 Page 5 of 11
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`sharply in its favor, provided it also makes a showing for the irreparable harm and
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`public interest factors. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131.
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`(9th Cir. 2011).
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`The plaintiff meets all four elements.
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`1.
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`The plaintiff will suffer immediate, irreparable harm unless
`the order issues.
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`To qualify for ex parte relief, Rule 65 requires a showing that “immediate and
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`irreparable injury, loss, or damage will result to the movant before the adverse
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`party can be heard in opposition.” Fed.R.Civ.P. 65(b)(1)(A). AWS has clearly
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`indicated willingness to inflict such harm. First, and most obviously, because AWS
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`has given Parler only a single day’s notice of its intent to suspend Parler’s account,
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`the threatened harm to Parler could hardly be more immediate.
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`The threatened suspension will have the effect of rendering Parler, a social
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`media service, entirely unable to function online, either on a web browser or an app
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`on a mobile phone. (Compl. ¶¶ 13, 20-21, 23.) That alone would inflict “[i]rreparable
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`harm … for which there is no adequate legal remedy.” Arizona Dream Act Coalition
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`v. Brewer, 757 F. 3d 1053, 1068 (9th Cir. 2014). First, by booting Parler from its
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`servers, AWS will entirely frustrate Parler’s mission to provide a privacy-focused
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`forum for free speech. (Compl. ¶¶ 10, 25.) Parler’s surging popularity in a crowded
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`field of social and mainstream media shows that the company is satisfying an
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`David J. Groesbeck, P.S.
`Attorney and Counselor
`1716 Sylvester St. SW
`Olympia, Washington 98501
`(509) 747-2800
`
`
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`PLAINTIFF’S MOTION FOR
`TEMPORARY RESTRAINING
`ORDER - 5
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`Case 2:21-cv-00031-BJR Document 2 Filed 01/11/21 Page 6 of 11
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`otherwise unmet demand for such a forum. (Compl. ¶¶ 2, 10, 25.) By shutting Parler
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`down, AWS eviscerates Parler’s whole corporate purpose and functionality, leaving
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`Parler without a remedy.
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`Second, although Parler occupies a unique space in the market, it still
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`competes with other microblogging services like Twitter to facilitate real-time
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`discussions of breaking news and other contemporaneous events. (Compl. ¶¶ 1-2,
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`14, 17-19, 22, 24.) Losing all of its online capabilities will leave Parler entirely
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`unable to compete with the offerings of those direct competitors, eliminating its
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`relevance as a forum for discussion and driving millions of users, out of necessity,
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`to those other platforms. (Compl. ¶ 24.) Because Parler’s business model is not
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`based on subscription fees, there is no adequate monetary remedy to measure and
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`compensate for Parler’s imminent loss of users and user loyalty. (Compl. ¶ 14.)
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`There is nothing speculative about the likelihood of harms Parler will suffer absent
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`preliminary relief. AWS has been quite forthright in publicizing when Parler will
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`lose its account and, with it, Parler’s ability to function at all. (Compl. ¶¶ 13, 21-
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`22.) To lose all functionality, even temporarily, will inflict irreparable damage on
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`Parler’s free-speech mission, reputation, and competitive position in a fluctuating
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`market. Given Parler’s current dynamic growth, it would be too difficult to calculate
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`money damages for these harms. Hence, the absence of an adequate legal remedy
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`necessitates preventative, injunctive relief.
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`PLAINTIFF’S MOTION FOR
`TEMPORARY RESTRAINING
`ORDER - 6
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`
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`David J. Groesbeck, P.S.
`Attorney and Counselor
`1716 Sylvester St. SW
`Olympia, Washington 98501
`(509) 747-2800
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`Case 2:21-cv-00031-BJR Document 2 Filed 01/11/21 Page 7 of 11
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`2.
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`The threatened injury to the plaintiff far outweighs whatever
`damage, if any, the proposed order or injunction may cause the
`defendant.
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`The defendant will suffer little to no inconvenience by being ordered to
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`preserve the status quo. Indeed, when, after several rounds of productive
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`discussions, AWS abruptly notified Parler that it would suspend the account, it
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`made no mention of any harm that AWS itself might suffer by continuing to comply
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`with its contractual obligations. By contrast, AWS’s intended actions signify an
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`existential threat to Parler. Weighing the inconvenience to AWS by continuing to
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`host Parler against Parler’s imminent loss of all ability to function as an online
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`service and consequent damage to its entire business and mission, the balance of
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`hardships tips sharply in favor of Parler. This element strongly favors the plaintiff.
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`3.
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`The order would serve the public interest.
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`The public interest is served when service providers, whether they be online
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`computing platforms or social media sites, fulfill their contractual obligations. The
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`public interest in fair and robust market competition is also served when companies
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`are prevented from construing the same contractual obligations inconsistently
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`when applied to different customers who are direct market competitors.
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`On the other hand, there is no public interest in allowing large, quasi-monopolies
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`to coordinate in stifling smaller, disruptive innovators or to tortiously interfere with
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`PLAINTIFF’S MOTION FOR
`TEMPORARY RESTRAINING
`ORDER - 7
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`David J. Groesbeck, P.S.
`Attorney and Counselor
`1716 Sylvester St. SW
`Olympia, Washington 98501
`(509) 747-2800
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`Case 2:21-cv-00031-BJR Document 2 Filed 01/11/21 Page 8 of 11
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`another’s contracts and business expectations. The public interest element favors
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`injunctive relief.
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`4.
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`There is a substantial likelihood that the plaintiffs will succeed
`on the merits of the underlying claims, or the case presents
`serious issues on the merits.
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`The plaintiffs have sued the defendants on three causes of action that form
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`the basis for this injunctive relief motion: Sherman Act violation, breach of contract,
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`and tortious interference with a contract or business expectancy. The plaintiffs are
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`likely to succeed on each of these claims, or they present serious issues on the
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`merits.
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`a.
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`Sherman Act Violation.
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`To prove a violation of Section 1 of the Sherman Act, Parler must show: (1)
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`the existence of a conspiracy, (2) intention on the part of the co-conspirators to
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`restrain trade, and (3) actual injury to competition.” Coalition For ICANN
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`Transparency, Inc. v. VeriSign, Inc., 611 F.3d 495, 501-02 (9th Cir. 2010). As stated
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`in the Verified Complaint, AWS provides online hosting services to both Parler and
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`Twitter, Parler’s direct competitor. The complaint further shows that, by shutting
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`down Parler for content comparable to that found in abundance on Twitter, AWS
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`suppresses a smaller but surging microblogging company to the direct benefit of a
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`larger one—a major customer of AWS—thereby reducing competition and severely
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`PLAINTIFF’S MOTION FOR
`TEMPORARY RESTRAINING
`ORDER - 8
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`David J. Groesbeck, P.S.
`Attorney and Counselor
`1716 Sylvester St. SW
`Olympia, Washington 98501
`(509) 747-2800
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`Case 2:21-cv-00031-BJR Document 2 Filed 01/11/21 Page 9 of 11
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`restraining commerce on pretextual grounds. Parler therefore has shown a
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`substantial likelihood of succeeding on this claim, and certainly presents serious
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`issues on the merits.
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`b.
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`Breach of Contract
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`Under Washington law, a claimant establishes breach of contract where he
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`shows that “the contract imposes a duty, the duty is breached, and the breach
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`proximately causes damage to the claimant.” See Northwest Independent Forest
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`Mfrs. v. Dept. of Labor and Industries, 78 Wn. App. 707, 712, 899 P.2d 6 (1995).
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`Plaintiff meets all of these elements.
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`As stated in the Verified Complaint, the Agreement allows either party to
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`terminate the Agreement “for cause if the other party is in material breach of this
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`Agreement and the material breach remains uncured for a period of 30 days from
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`receipts of notice by the other party.” (Compl., Ex. B.) AWS brought its concerns to
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`Parler on January 8, 2021 and, after approving Parler’s curing of those concerns,
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`nevertheless notified Parler on January 9 that it would suspend Parler’s account on
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`January 10. Although AWS used the term “suspension,” its language about
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`migrating Parler’s data to other servers revealed AWS’s intent to permanently
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`terminate Parler’s account without the requisite 30-day curing period. (Compl. ¶¶
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`40-43.) Because AWS’s threatened breach will entirely disrupt Parler’s ability to
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`function as an online microblogging service, and because even a temporary
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`David J. Groesbeck, P.S.
`Attorney and Counselor
`1716 Sylvester St. SW
`Olympia, Washington 98501
`(509) 747-2800
`
`
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`PLAINTIFF’S MOTION FOR
`TEMPORARY RESTRAINING
`ORDER - 9
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`Case 2:21-cv-00031-BJR Document 2 Filed 01/11/21 Page 10 of 11
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`disruption will hurt Parler’s mission, reputation, and competitive position in the
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`microblogging market, Parler has shown both serious issues on the merits of this
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`claim and a substantial likelihood of success.
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`c.
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`Tortious Interference with a Contract or Business
`Expectancy
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`Finally, under Washington law Parler can establish tortious interference by
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`showing “(1) the existence of a valid contractual relationship or business
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`expectancy; (2) the defendant’s knowledge of that relationship; (3) an intentional
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`interference inducing or causing a breach or termination of the relationship or
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`expectancy; (4) the defendant's interference for an improper purpose or by improper
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`means; and (5) resulting damage.” Koch v. Mutual of Enumclaw Ins. Co., 108 Wn.
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`App. 500, 506, 31 P.3d 698 (2001). The Verified Complaint shows that AWS is well
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`aware that: Parler has millions of users under contract, expects to add millions
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`more, and was about to go to the market to raise more capital. (Compl. ¶¶ 48-49.)
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`Thus, when coupled with AWS’s anti-competitive motives, pretextual reasons, and
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`contractual breaches, Parler has demonstrated a substantial likelihood of success
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`and serious issues on the merits.
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`///
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`///
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`PLAINTIFF’S MOTION FOR
`TEMPORARY RESTRAINING
`ORDER - 10
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`David J. Groesbeck, P.S.
`Attorney and Counselor
`1716 Sylvester St. SW
`Olympia, Washington 98501
`(509) 747-2800
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`Case 2:21-cv-00031-BJR Document 2 Filed 01/11/21 Page 11 of 11
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`CONCLUSION
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`For the foregoing reasons, the plaintiff requests that the Court grant it a
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`temporary restraining order against the defendant as set forth herein. A proposed
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`form of Temporary Restraining Order is submitted herewith.
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`Dated: January 10, 2021
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`Respectfully submitted,
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`
`/s David J. Groesbeck
`WSBA No. 24749
`DAVID J. GROESBECK, P.S.
`1716 Sylvester St. SW
`Olympia, WA 98501
`(509) 747-2800
`david@groesbecklaw.com
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`621 W. Mallon Ave., Suite 507
`Spokane, WA 99201
`
`Counsel for Plaintiff
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`PLAINTIFF’S MOTION FOR
`TEMPORARY RESTRAINING
`ORDER - 11
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`David J. Groesbeck, P.S.
`Attorney and Counselor
`1716 Sylvester St. SW
`Olympia, Washington 98501
`(509) 747-2800
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