Parler's breach of contract claim
Parler argues that the contract clause Amazon is relying on should be discounted because it would nullify all the other breach provisions, since Amazon could always say some end user violated the terms. It would be like a contract term saying, "All five of the above clauses of this contract are invalid, and I, the drafting party, am not bound by any of it." Is this a good argument in general, or in this application?
To quote Parler's lawyer in his supplementary document after the hearing:
The contract at issue is a form contract. And form contracts must be construed “most strongly” against the writer of such contracts—here, AWS. See Pitts v. Coronado Custom
Homes, LLC, 57 F. App'x 313, 315 (9th Cir. 2003) (“[A]ny ambiguities in the contract between the parties must be construed most strongly against . . . the drafting party.”) (internal quotation marks omitted). Also, under AWS’s reading of its form contract, Clause 7.2(b)(ii) would make 7.2(b)(i) superfluous, allowing AWS to never have to worry about providing a thirty-day notice. This would also violate the Surplusage Canon (or, the Canon against Superfluity).1 See In re Crystal Properties, Ltd., L.P., 268 F.3d 743, 748 (9th Cir. 2001) (“[A] court must give effect to every word or term employed by the parties and reject none as meaningless or surplusage.”) (citation omitted). See also City of Chicago v. Fulton, No. 19-357, slip op. at 5 (U.S. Jan. 14. 2021) (rejecting proffered statutory construction based on surplusage canon), https://www.supremecourt.gov/opinions/20pdf/19-357_6k47.pdf. Thus, for both these reasons, AWS’s reading cannot be allowed.
5. WS also appears to claim that it can rely on Clause 6.1(b), which authorizes temporary suspension if Parler, “or any End User is, in breach of this Agreement,” to invoke Clause 7.2(b)(ii) to allow immediate termination. But this also runs into the Surplusage Canon and the requirement that the contract be “most strongly” construed against AWS. That’s because, under that reading, if one End User did anything deemed to breach AWS’s User Guidelines, AWS could immediately terminate Parler’s account. That would turn the contract into an at-will contract, and it would render completely superfluous the contractual protections inhering in both a 30-days’ notice provision and a threshold for material breach. After all, if AWS can immediately terminate Parler’s account for a breach by a single end user, then Clause 7.2(b)(ii), which demands 30 days’ notice for a material breach, serves no purpose.
--Document 31-a, Parler's supplemental filing.
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