Case 2:21-cv-00031-BJR Document 34 Filed 01/21/21 Page 8 of 14 In short, Parler has proffered only faint and factually inaccurate speculation in support of 1 2 a Sherman Act violation. AWS, in contrast, has submitted sworn testimony disputing Parler’s 3 allegations. Parler therefore has failed to demonstrate at this stage a likelihood of success on its 4 Sherman Act claim. 5 2. Breach of Contract Claim 6 7 The gravamen of Parler’s breach of contract claim is that AWS terminated the Agreement without providing Parler 30 days to cure any alleged material breach. 2 Mot. at 9. Parler claims it 8 9 is entitled to the 30-day cure period based on a provision in the CSA that provides “[e]ither party 10 may terminate this Agreement for cause if the other party is in material breach of this Agreement 11 and the material breach remains uncured for a period of 30 days from receipt of notice by the 12 other party.” CSA § 7.2(b)(i). As noted above, Parler alleges that AWS notified Parler that the 13 latter was in material breach, for the first time, only hours before suspending or terminating 14 services. See Matze Decl., ¶ 10. 15 AWS responds that it is Parler, not AWS, that has breached the Agreement. In particular, 16 17 AWS claims that Parler breached Section 4.2 of the CSA, which requires Parler to “ensure that 18 [Parler’s] Content and [Parler’s] and End Users’ use of [Parler’s] Content . . . will not violate any 19 of the Policies,” including AWS’s Acceptable Use Policy. That AUP, as noted above, proscribes 20 “activities that are illegal, that violate the rights of others, or that may be harmful to others, our 21 22 operations or reputation” and “content that is defamatory, obscene, abusive, invasive of privacy, or otherwise objectionable.” AUP, Exec. 2 Decl., Exs. A, C; see CSA ¶ 14; Opp. Br. at 6-7. 23 24 AWS cites multiple examples of content posted on Parler’s site that undeniably meet this 25 2 AWS denies that it “terminated” Parler’s account, claiming it merely “suspended” its services. Opp. Br. at 6. As discussed below, the distinction is not material to Parler’s claim at this stage, however, as the CSA grants AWS the authority to take either action under the same circumstances. See CSA, §§ 6, 7.2(b)(ii). 8