Thread by @AkivaMCohen

Looks like we need to spend some time talking about the Parler lolsuit against Amazon and why it's deader than a Mitch McConnell comedy special. They've brought three claims - antitrust, breach of contract, and tortious interference. None will survive. Here's why

Here's the meat of their intro: Amazon isn't being fair to us. They're holding us to a higher standard than Twitter - they say we allow violent content, but look what Twitter does!

There are a few problems with this approach. First, there's a factual problem: Twitter and Parler take very different approaches to moderation. Hell, *that's Parler's entire pitch.* So "we're the same as Twitter, why are you treating us different" isn't going to fly

ALSO, the hashtag was mostly people saying "these folks are calling to hang Mike Pence!"

https://twitter.com/jawafawa/status/1348512103506710529

And ALSO also, did anyone notice any prominent right wingers complaining about losing tens of thousands of followers yesterday? You know why they did? Because Twitter has been active in deleting accounts that violate its TOS

So factually, this complaint isn't going to fly.

But more fundamentally, Parler has a legal problem: There's no right to have a contracting party apply its rules equally. If you and I sign a contract with a supplier that says the supplier can stop providing us with beer if

we support the NE Patriots (and by "sign a contract" I mean we sign 2 separate contracts, 1 for me and 1 for you), and we both tweet out love for that horrible organization, and the supplier terminates me but not you, you know what happens if I sue them?

The only thing that governs my contract with that supplier is my contract with that supplier. If they have discretion to terminate me, the fact that they exercised that discretion for me, but didn't for someone else, doesn't give me a cause of action. Not even a little bit

(Note: The one exception to this would be if I could show the company was exercising its discretion as a means of discriminating against a protected class - i.e. it terminated all white people who did X but no black people who did, ever. That's not and couldn't be alleged here)

So ... this is NOT what you would call a good start to a complaint. If your intro - which is the part of the complaint that should hit the reader in the gut, set the hook, and make them start thinking "you have a case" - is "they did something they were allowed to do"

Moving on. They then *specifically allege* that Amazon is motivated by "political animus" before ALSO claiming that it's an antitrust violation.

Folks ...

Words can't express how bad a job this is. It really can't.

But I guess I'll try

First, "political animus" is NOT a problem in our society. Parties are allowed to choose to do or not do business with counterparties whose politics they dislike. "Republican Pollsters & PR R Us" does not have to take on the DSA as a client.

I don't have to take on David Duke if he comes looking for a lawyer. Tom O'Halloran's Irish Pub is allowed to boot out Unionists if it wants to.

So when Parler says "Amazon booted us because they don't like our politics" they are *specifically alleging* that Amazon was doing a thing it was entitled to do

This is a problem, because Parler is *also* trying to allege a Sherman anti-trust act claim based on wishes and innuendo. Essentially, Parler - which sued only Amazon and not Twitter - is alleging that Amazon is working with Twitter to shut down competition for Twitter

There are lots of reasons why this won't fly, and we'll get there as they get to the meat of the claim.

But when your core argument is "this conduct makes me think it's an anti-competitive conspiracy," DON'T SPECIFICALLY ALLEGE AN ALTERNATIVE, NON-CONSPIRACY EXPLANATION FOR IT

Also, it's worth pausing here to talk about Bell Atlantic Corp. v. Twombly, which is the "Tw" in the term "Twiqbal", the cases that set up the "plausibility" standard we've discussed in prior threads. (Refresher on plausibility here

https://twitter.com/AkivaMCohen/status/1332392940166131712

)

The claim in Twombly was that telephone companies were conspiring to reduce competition by not entering into their competitors' markets, violating the Sherman Antitrust Act.

Here's the wikipedia summary of what the Supreme Court held, which is good enough to work with.

Do you see the problem this poses for Parler?

If so, you're a step ahead of Parler's lawyers, who apparently completely missed it.

Onward for the rest of the intro, which sets out the claims: Aside from the Sherman Antitrust Act, they're also alleging breach of contract, based on a provision they say gives them a right to 30 days notice of termination (spoiler, it does not), and tortious interference

To show tortious interference, btw, you need to show that someone: Knew you had (or were about to have) a contract, and did something that you weren't allowed to do, or for an improper reason, specifically designed to cause your contracting party to breach the contract

Tl;dr, that's also not going to fly here, for various and many reasons

Now we move into the "Parties" section, where Parler tells the court who it's suing. This particular paragraph is basically "but your Honor, we REALLY REALLY want to use AWS"

The problem?

No, seriously. There is no cause of action for "a business we really want to partner with doesn't want to partner with us".

That's just not a thing.

Next, they describe what's happening: We built our product around AWS, they're kicking us off, and it's going to really suck for us.

Also, we're a competitor of Twitter. This is important, because we're about to segue into their evidence of an antitrust conspiracy

In my head, I call this section "This is Evidence of a Conspiracy, Right? (No)"

Let me explain.

No, it is too much, let me sum up:

Amazon serves us and also Twitter. It was afraid we would grow at Twitter's expense, so it shut us down to prevent that.

That's their conspiracy theory. All of it. One problem

Your ... your theory is that ... that Amazon has a financial interest in preventing your growth because Twitter is a client?

And that's why it kicked, you, ALSO AN AMAZON CLIENT, off their servers?

Idiots, user migration from Twitter (an Amazon client) to Parler (an Amazon client at the time) literally CANNOT harm Amazon. It's a zero net business effect for Amazon; whichever of the two of you the users go to, they're still on platforms using AWS

In fact, the only way that could possibly harm Amazon is if users migrate from platforms that use AWS to platforms that DON'T. On your "protect its business" theory, Amazon should be *encouraging* Twitter competitors on its platform, so it has a better chance of retaining users

Instead, you just argued that Amazon did the one thing that could *harm* Amazon, economically, in this particular environment: Cut off a within-Amazon-ecosystem destination for users exiting Twitter

Not only do you have a Twombly problem - nothing here comes close to alleging an agreement between Amazon and Twitter - but the allegations directly contradict any claim that could have possibly been the motivation

Or, in gif form

Also, they talked about Amazon's letter to them. Here it is. Note what it says: We've been raising issues about this stuff for weeks, you haven't responded effectively, and you've affirmatively told us that you won't be responding effectively

Because of that, you are in breach of the terms of service and we think you're a risk to public safety, so we're terminating you on Sunday.

Wow.

Can they do that?

In a word, yes.

Let's take a look at Amazon's relevant agreements and terms.

Amazon's AWS Terms of service, which expressly bind any customer to the Amazon Acceptable Use Policy

Amazon's Acceptable Use Policy, which says "nothing illegal, or that may harm others, or that may harm our reputation, or offensive"

And Amazon's AWS Customer Agreement, which has a few relevant sections. 4.2, which requires customers to make sure their users' content complies with the Acceptable Use Policy, and holds customers responsible for end-user content that violates it

4.5, which says, basically, you are responsible for your end users and you MUST ban end-users for violating the acceptable use policy if you know about it. So, for example, when Parler deleted Lin Wood's post about killing people, but didn't ban him for it, they violated this

6.1: We get to suspend your access to AWS *without any notice at all* if you violate the customer agreement (which, as referenced in the above Tweet, Parler inarguably did)

Section 7.2, which has the 30 days notice provision Parler is relying on - but which ALSO says (check the red) "except we don't need to give you any notice at all if we could suspend you under Section 6"

And also, just to cap it off, a limitation of liability that says "you can't recover any lost profit damages against us, you can just get a refund"

With all of this background, you can see why this case is deader than a year-old fruit fly. They're suing for breach of contract based on a 30-day notice provision that the contract EXPRESSLY says doesn't apply. And they are no-doubt unquestionably toast

Anyway, back to Parler saying "but we were positioned to do so well before we got shut down for violating the terms of the contract we agreed to"

More paragraphs of "but having consequences for breaching our agreements with Amazon will really suck for us", to which a court will reply ...

Seriously. Parler signed a contract that said "Do NOT allow your end users to post violent, harmful stuff that might damage Amazon's reputation."

They agreed that if they violated that contract, Amazon could terminate them without notice.

They violated the contract.

And now they're complaining that they are getting the consequences they agreed to for doing the thing they agreed not to do?

That's ... that's not gonna move the needle, son.

Back to "no fair, what about Twitter", which just isn't a thing that a court will give even 1 fuck about, let alone 2

Now they're arguing that "hey, we finally took this stuff down" should be good enough. But it isn't. Not under the contract they signed. And especially not when they deleted the content but left the users

And here we get to the actual causes of action. First, antitrust, which I've been mentally referring to as

"Let's Do the Twombly Again"

Seriously, look those allegations over again. They're even less meaty than the ones the Supreme Court looked at in Twombly and said "nah, that's not enough to let your antitrust claim survive in court". Basically "Twitter is now an Amazon client and this thing will help Twitter"

"They could suspend us without notice, sure, but this is really a termination so we needed notice" is NOT a good argument when your contract says "we can terminate you without notice for anything we can suspend you for"

Seriously, this is the worst possible version of this breach of contract claim; by conceding that they could've been suspended without notice, they affirmatively argued that there was no breach

Full disclosure - in my first run-through of the AWS agreement I missed 7.2(b) (the "we can terminate if we can suspend"). But, um ... I wasn't being paid to litigate this claim, so "we were just as careless as the guy reading it for sport" is not a strong argument, guys

"Give us an injunction, because this is really going to suck for us": sorry, that the contract specifically says you lose means no injunction.

Also, the fact that the contract says "your only possible damages are what you paid us" means they are very very easy to calculate

Seriously, did these attorneys just not bother reading the relevant contract before Leeroy Jenkinsing this filing? How do you build your irreparable harm claim around lost profits that the contract specifically bars you from recovering??

Last, we have our turtle law claim (tortoise interference, yeah, I got dad jokes). This isn't going to fly for any number of reasons.

For one thing, tortious interference claims are based on "you made Dave, who had a contract with me, breach it, and therefore harmed me"

This seems to be "you made me breach my contract with Dave"

That's ... um ... not a thing.

Also, and I guess this is a minor note, but when you're alleging tortious interference you need to show that there was an existing contract that was breached

Maybe I missed it in the Complaint, but did any of you see any paragraphs detailing what Parler's "contract" with its users are or explaining how "not being able to provide Parler for a while" is a *breach* of that contract?

Seriously - they're essentially alleging that any Parler user can now sue Parler for breach of contract due to Parler being down, which ... well ...

I mean, I haven't reviewed the Parler terms of service but I feel preeeetty preeeeetty confident that isn't a good faith reading of them

Also, as our returning Threadnought sailors know very well, you can't get to tortious interference based on "third parties doing things they're allowed to do"

If your contract says "hey, Amazon, you can terminate me without notice if I don't delete Lin Wood's account now that he's called for murder", and then you don't delete the account and get terminated, you can't say "no, actually, turtle law says that's a problem"

That's not "improper means" or "improper purpose"

It's (again) what you SPECIFICALLY agreed would happen if you did the things you actually did.

Bottom line - this suit is a heaping pile of garbage with no chance of any success at all. It won't even make it to discovery. Whatever they paid their lawyers for this - even if it was on contingency - was too much.

/fin

cc @DefiantlyFree you may be interested in the above