Case 2:21-cv-00031-BJR Document 34 Filed 01/21/21 Page 6 of 14 1 2 VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) (quoting All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134–35 (9th Cir. 2011)). Further, in the Ninth Circuit, “the elements of the 3 preliminary injunction test are balanced, so that a stronger showing of one element may offset a 4 weaker showing of another.” Hernandez v. Sessions, 872 F.3d 976, 990 (9th Cir. 2017) 5 (quotation omitted). 6 B. Likelihood of Success on the Merits 7 Parler’s motion asserts three distinct claims. The Court reviews each in turn. 8 9 10 1. Sherman Act Claim Parler alleges that AWS’s termination of services is “apparently designed to reduce 11 competition in the microblogging services market to the benefit of Twitter,” and therefore 12 violates Section 1 of the Sherman Act. Mot. at 3; 15 U.S.C. § 1 (prohibiting “[e]very contract, 13 combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce”). 14 To prove a violation of Section 1, Parler must show: “(1) the existence of an agreement, and (2) 15 that the agreement was in unreasonable restraint of trade.” Fed. Trade Comm'n v. Qualcomm 16 17 18 19 20 21 22 Inc., 969 F.3d 974, 989 (9th Cir. 2020) (citing, inter alia, Am. Needle, Inc. v. Nat'l Football League, 560 U.S. 183, 189–90 (2010)). At this stage in the proceedings, Parler has failed to demonstrate that it is likely to succeed on the merits of its Sherman Act claim. While Parler has not yet had an opportunity to conduct discovery, the evidence it has submitted in support of the claim is both dwindlingly slight, and disputed by AWS. Importantly, Parler has submitted no evidence that AWS and 23 24 25 Twitter acted together intentionally—or even at all—in restraint of trade. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 (2007)(“[A]n allegation of parallel conduct and a bare assertion 6