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
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a Sherman Act violation. AWS, in contrast, has submitted sworn testimony disputing Parler’s
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allegations. Parler therefore has failed to demonstrate at this stage a likelihood of success on its
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Sherman Act claim.
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2. Breach of Contract Claim
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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
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is entitled to the 30-day cure period based on a provision in the CSA that provides “[e]ither party
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may terminate this Agreement for cause if the other party is in material breach of this Agreement
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and the material breach remains uncured for a period of 30 days from receipt of notice by the
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other party.” CSA § 7.2(b)(i). As noted above, Parler alleges that AWS notified Parler that the
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latter was in material breach, for the first time, only hours before suspending or terminating
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services. See Matze Decl., ¶ 10.
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AWS responds that it is Parler, not AWS, that has breached the Agreement. In particular,
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AWS claims that Parler breached Section 4.2 of the CSA, which requires Parler to “ensure that
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[Parler’s] Content and [Parler’s] and End Users’ use of [Parler’s] Content . . . will not violate any
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of the Policies,” including AWS’s Acceptable Use Policy. That AUP, as noted above, proscribes
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“activities that are illegal, that violate the rights of others, or that may be harmful to others, our
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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.
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AWS cites multiple examples of content posted on Parler’s site that undeniably meet this
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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).
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