Parler v. Amazon
Parler v. Amazon Page (January 22, 2021)
Parler LLC v. Amazon Web Services Inc (2:21-cv-00031) District Court, W.D. Washington
The CourtListener Parler v. Amazon docket has the complaint, answer, and other documents. Or, you can get some of them from this site at the directory https://rasmusen.org/parler/docket_entries/, where I give the document files more meaningful names.
I'll put media articles in the directory at https://rasmusen.org/parler/journalism/ . Better, see https://www.rasmusen.org/rasmapedia/index.php?title=Parler_company.
Parler LLC v. Amazon Web Services Inc (2:21-cv-00031) District Court, W.D. Washington. Judge Barbara Rothstein. Filed January 11, 2021.
Background. Parler is a 2018 entrant into the internet discussion market occupied by Twitter. After Twitter started kicking off a large number of conservatives after Biden's victory in November 2020, Parler gained market share. Parler used Amazon servers (computer hardware, rented), with a long-term contract that required 12 months notice to terminate without cause and gave Parler 30 days to remedy violations of the agreement. After Parler's success, both Apple and Google (Android) kicked the Parler phone app out of their playstores, though it was still available for Android phones, at least, via Parler's own website. Then, in January, Amazon kicked Parler off of its servers, forcing it to shut down for lack of hardware. Amazon claimed that the reason was that Parler violated the contract by allowing people posting on it to incite violence.
This lawsuit. On January 11, 2021, Parler sued Amazon, with three claims: 1. Amazon breached its contract. 2. Amazon interfered with Parler's prospective business with end-users. 3. Amazon violated anti-monopoly law by trying to kill Parler to benefit Twitter. Parler also asked for a TRO (temporary restraining order), a court order that Amazon continue to host Parler until the lawsuit was decided. Amazon responded by claiming that Parler had breached the contract first by allowing its customers to post violent content, that Parler had no evidence that Amazon was motivated by a desire to help Twitter, and that Parler shouldn't get a TRO because its case was too weak and its damage wouldn't be irreparable.
January 22. Revising our paper took till midnight, so I've been slow returning. I'll write more this afternoon. My thoughts on the tortious interference claims are here.
January 21. More thoughts. In a document filed on CourtListener at 12:35pm Pacific Time, 3:35 Eastern Time today, Judge Rothstein turned down Parler's request for a TRO. I will write my immediate reaction shortly. I'll post paragraphs as I write them.
The TRO request was converted to a preliminary injunction request by mutual consent of the parties. A TRO is a super-emergency court order, needed so quickly that the court only listens to one party. A preliminary injunction is a less urgent court order, needed before the litigation finishes, but that might just mean needed because the litigation might last two years, not because it is needed tomorrow. A preliminary injunction lasts longer, but to get it, both parties must be given a hearing. Also, I bet (tho I don't know) that to appeal a TRO denial successfully is almost impossible, because the trial judge is given tremendous discretion, but to appeal denial of a preliminary injunction is not so hard, because while the trial judge is still given lots of deference by the appeals court, the barrier is not impossibly high. So I think there will be a quick interlocutory appeal (an appeal made before the main lawsuit is concluded, which is disallowed for most items a party might appeal on).
On page 5, the judge says that Parler failed to provide the required certificate that Amazon (AWS) had been notified of Parler's application for a TRO. That is significant. How could an attorney fail to include something so basic, which presumably is spelled out in the Federal Rules of Civil Procedure? It's right there in Rule 65, near the beginning. Even I, an amateur at law, would have known to do that.
I think the answer is that Parler's lawyer, though no doubt quite capable generally, is not in a big law firm and doesn't have back-up. In rushing out something like a TRO application, the attorney needs to pull an all-nighter (perhaps literally). He needs someone to check his work, to check for typos and, more important, to double-check for things like missing certificates and page limits.
If anybody is in contact with Parler's lawyer, CEO, or legal department, please let me know. I'd be willing to help out with things like checking filings.
Also on page 5, the judge lays out the standard criteria in the 9th Circuit (the West Coast and other far Western states) for when a preliminary injunction will be granted. The criteria differ by circuit and are unclear, the Supreme Court having left the law rather a mess on this crucial subject. Judges nonetheless pretty much know what the sensible thing to do is ---to follow what I think the 7th Circuit does, perhaps as the result of Posner and Easterbrook decisions, and do cost-benefit on what decision to make. They pretend they are following the criteria in their circuit, though, and this can obscure what's really going on in their heads.
I now need to attend to a scholar paper that my co-author and I are hoping to get into shape to resubmit tonight. I'll return at around 10 or 11pm. One thought I don't want to lose, though, is this. This case involves two state claims, breach of contract and interference with prospective customers, and one federal claim, monopoly exclusion. I forget if the federal court has "diversity jurisdiction", meaning that the two parties are from different states. Suppose not. Then, in deciding whether the movant has a strong enough case to justify a preliminary injunction, does the court look to just the federal question, or also to the two state questions? If anybody knows, let me know.
January 14. It's clear that Amazon's claim that Parler violated its terms is specious, though less clear that its motive was to help Twitter rather than dislike of conservatives. The most important issue is whether Amazon's link to Twitter is enough evidence of intent to help Twitter to justify Parler in suing without, for example, recordings of a Twitter executive promising to pay Amazon to breach its contract with Parler. For the TRO, the big issue is the fact question of whether it is really Amazon's refusal to allow its servers to be used that is why Parler has shut down, since the Parler executive is on record as telling users that loss of the servers would not hurt it very much.
Some of my own articles on antitrust are:
"Exclusive Dealing: Before, Bork, and Beyond," with J. Mark Ramseyer. Journal of Law and Economics, 57(S3): S145-S160 (August 2014). Antitrust scholars have come to accept the basic ideas about exclusive dealing that Bork articulated in The Antitrust Paradox. Indeed, they have even extended his list of reasons why exclusive dealing can promote economic efficiency. Yet they have also taken up his challenge to explain how exclusive dealing could possibly cause harm, and have modelled a variety of special cases where it does. Some (albeit not all) of these are sufficiently plausible to be useful to prosecutors and judges. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2308218 .
``Naked Exclusion,'' American Economic Review (December 1991) 81: 1137-1145 (with J. Mark Ramseyer and John Wiley ). Exclusive- dealing contracts can be part of rational entry deterrence if there is even a small positive minimum efficient scale. The excluder can get the other side of the market to agree to his exclusive contract without a side payment if they believe all others will sign too, and so the excluder's rivals will cease to exist. http://rasmusen.org/published/Rasmusen_91AER.exclusion.pdf . "Entry for Buyout," Journal of Industrial Economics (March 1988), 36: 281-300. Entry into a monopolized industry may be profitable if the entrant is bought out even if it would be unprofitable to enter for continuing operation. The stronger is duopoly competition, the greater is the incentive for buyout, so an incumbent's toughness in produce-market competition may be his own undoing. Evidence from the 1890's shows examples of entry for buyout. http://rasmusen.org/published/Rasmusen_88.JIE.buyout.pdf.
Eric Rasmusen, [email protected], (812) 345-8573.
Parler.
Attorney: David J. Groesbeck,
WSBA No. 24749,
1716 Sylvester St. SW,
Olympia, Washington 98501,
509-747-2800,
[email protected]
Amazon. general press number: sdfd. sdfdsf, (212) sdfdf, has been the spokesmen in stories about this lawsuit.
Attorneys: Ambika Kumar Doran, WSBA #38237; Davis Wright Tremaine LLP,
920 Fifth Avenue, Suite 3300,
Seattle, WA 98104-1610,
206.622.3150, [email protected]
Alonzo Wickers IV, Cal. State Bar #169454,
865 S. Figueroa Street, Suite 2400,
Los Angeles, CA 90017,
213-633-6800,
[email protected]
For Expert Comment: Brian Leiter's 10 Most-Cited Antitrust Faculty in the U.S. for the period 2013-2017 (CORRECTED)
Other Links, in Sections
Legal Papers for This Suit
Government Documents: Statutes, Regulations, and Notices
Media Coverage and Political Commentary
People and Organizations
