Case 2:12-cv-09291-MWF-JC Document 14

Filed 12/26/12 Page 1 of 18 Page ID #:38

7 Attorneys for Defendants CLEAR CHANNEL 8 COMMUNICATIONS, INC. 9 10 11 12 13 BRENT BATEMAN, 14 15 V. Plaintiff,

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

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16 ASSOCIATE PRESS, TIME WARNER, NEWS COPR, VIACOM, 17 INC., NBC UNIVERSAL, WALT DISNEY COMPANY, COMPCAST, 18 CCC, Defendant(s).

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SMR11:407675197.1

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Case No. 2:12-cv-09291-MWF-JC

DEFENDANT CLEAR CHANNEL COMMUNICATIONS, INC.'S (1) NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT; AND (2) MEMORANDUM OF POINTS AND AUTHORITIES
Date: January 28, 2013 Time: 10:00 a.m. Location: Courtroom 1600 [Complaint Filed: November 13, 2012 Complaint Served: December 7, 2012] [Proposed Order lodged concurrently herewith]

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1 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership IncludingProfessional Corporations 2 GUYLYN R. CUMMINS, Cal. Bar No. 122445 3 gcurnminsgshepRardmullin.com \TALERIE E. ALTER, Cal. Bar No. 239905 4 valtergsheppardmullin.vm 501 West Broadway, 19' Floor 5 San Diego, California 92101-3598 Telephone: 619.338.6500 6 Facsimile: 619.234.3815

Case 2:12-cv-09291-MWF-JC Document 14

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1 TO THE ABOVE-CAPTIONED COURT AND TO ALL PLAINTIFF BRENT

PLEASE TAKE NOTICE that on January 28, 2013 at 10:00 a.m., or as

5 States Courthouse, 312 North Spring Street, Los Angeles, CA 90012-4701, the 6 Honorable Michael W. Fitzgerald, presiding, Defendant Clear Channel

7 Communications, Inc., (referred to in the Complaint as "CCC" and hereafter

8 referred to as "Clear Channel") will and hereby does move the Court for an order

10 Plaintiff Brent Bateman's ("Plaintiff') Complaint. 11

The motion to dismiss is made on the grounds that none of Plaintiffs'

12 causes of action against Clear Channel state a claim upon which relief may be 13 granted, as follows: 14 15 16 17 18 19 20 21

The Entire Complaint: Plaintiff's Complaint in its entirety does not comply with Rule 8. Plaintiff makes no allegations specific to Clear Channel, let alone allegations that are sufficient to put Clear Channel

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on notice of the claims against it. Plaintiff's Complaint as a whole also fails because it is nothing more than an attempt to compel media companies to publish a story about his film and the alleged conspiracy involving President Obama's birth certificate. The First Amendment does not countenance such compelled publication.

Cause of Action for Violation of the Racketeer Influenced Corrupt Organizations Act ("RICO"), 18 U.S.C. 1962(c): Plaintiff fails to allege any racketeering activity, let alone a pattern thereof. Moreover,

Plaintiff fails to allege the predicate act of wire fraud with specificity.

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9 pursuant to Federal Rules of Civil Procedure 8, 9(b), and 12(b)(6) dismissing

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4 soon as possible thereafter as counsel can be heard in Courtroom 1600 of the United

2 BATEMAN:

Case 2:12-cv-09291-MWF-JC Document 14

Filed 12/26/12 Page 3 of 18 Page ID #:40

1 2 3 4 5 6

Cause of Action for Violation of the Clayton Antitrust Act: Plaintiff

particularity. Moreover, Plaintiff fails to allege antitrust injury.

In support of these motions, Clear Channel relies on the attached

7 Memorandum of Points and Authorities, any other matters of which the Court may 8 take judicial notice, and any argument that may be presented to the Court in

10 11

This motion is made following the conference of counsel pursuant to

12 L.R. 7-3, which counsel for Clear Channel attempted to initiate on December 20, 13 2012. Plaintiff, however, informed counsel that he refused to meet and confer until

15 that there was no motion on calendar for January 7, 2013 and Clear Channel's 16 response must be filed by December 28, 2012. (See Docket No. 13.) 17

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18 Dated: December 26, 2012

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14 after a purported hearing on January 7, 2013, even though counsel informed Plaintiff

SHEPPARD, MULLIN, RICHTER & HAMPTON LLP

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Attorneys for Defendants CLEAR CHANNEL COMMUNICATIONS, INC.

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9 connection with this motion.

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/s Valerie E. Alter VALERIE E. ALTER

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fails to allege his claim for "conspiracy to commit fraud" with

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1 2 3 4

TABLE OF CONTENTS

8 9 10 11 12 13 15 16 17 18 19 20 21

B. C.

Plaintiff s Entire Complaint Fails Rule 8's Basic Pleading Requirements.

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5 II. PLAINTIFFS' CLAIMS AGAINST CLEAR CHANNEL SHOULD BE DISMISSED PURSUANT TO RULE 12(b)(6) ... . ..... . . ......... . . ......... .... ....2 6 A. Standard For Granting A Motion To Dismiss Pursuant To Rule 12(b)(6) 2 7 3 4 5 8 10

E.

Plaintiff s Clayton Act Claim Fails.

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14 III. CONCLUSION

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D.

To The Extent That Plaintiff Attempts To Allege A Violation Of The RICO Statute, His Claim Fails.

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Plaintiff s Entire Complaint Appears To Seek A Compelled Publication, Which Would Viol-ate Clear Channel's First Amendment Rights

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I. INTRODUCTION AND SUMMARY OF ALLEGATIONS IN THE COMPLAINT

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1 2 3 4 5 6

TABLE OF AUTHORITIES Federal Cases

Anderson v. Liberty Lobby, Inc. 477 U.S. 242 (1986)

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Ashcroft v. Iqbal 7 556 U.S. 662 (2009) 8 Assocs. & Aldrich Co. v. Times Mirror Co. 440 F. 2d 133 (9th Cir. 1971) 9 10 Balistreri v. Pacifica Police Dep t 901 F.2d 969 (9th Cir. 1988) 11

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12 Bell Atlantic Corp. v. Twombly 550 U.S. 544 (2007) 13 Franchise Realty Interstate Corp. v. S.F. Local Joint Executive Bd. Of 14 Culinary Workers 15 542 F.2d 1076 (9th Cir. 1976) 16 Glen Holly Entertainment, Inc. v. Tektronix 352 F.3d 367 (9th Cir. 2003) 17

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18 Hustler Magazine v. Falwell 485 U.S. 485 U.S. 46 (1988) 19 20 Ivey v. Bd. of Regents 673 F.2d 266 (9th Cir. 1982) 21 22 Miami Herald Publishing Company v. Tornillo 418 U.S. 241 (1974) 23 Neubronner v. Milken 24 6 F.3d 666 (9th Cir. 1993) 25 Pacific Gas & Elec. Co. v. Public Util. Comm 'n 26 475 U.S. 1 (1986) 27 Paladin Assocs., Inc. v. Mont. Power Co. 328 F.3d 1145 (9th Cir. 2003) 28
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Page(s) 3 2 5 2 2 2 9 5 3 4, 5 ........... ...7 5 9

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1 Rebel Oil Co. v. Atl. Richfield Co.

3 Sanford v. Memberworks, Inc. 625 F.3d 550 (9th Cir. 2010) 4 Schmidt v. Herrmann 5 614 F.2d 1221 (9th Cir. 1980) 6 Schreiber Distributing v. Serv-Well Furniture 7 806 F.2d 1393 (9th Cir. 1986) US. v. Pelisamen 9 641 F.3d 399 (9th Cir. 2011) 10 United States v. Rodriguez 761 F.2d 1339 (9th Cir. 1985) 11 12 United States v. United Foods, Inc. 533 U.S. 405 (2001) 13

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14 Vess v. Ciba-Geigy Corp., USA 317 F.3d 1097 (9th Cir. 2003) 15 Winestock v. Immigration & Naturalization Serv 16 576 F.2d 234 (9th Cir. 1978) 17 Wooley v. Maynard 18 430 U.S. 705 (1977) 19 State Cases 20 Arp Phramacy Services, Inc. v. Gallagher Bassett Services, Inc. 21 138 CaLApp.4th 1307 (2006) 22 Blatty v. New York Times Co. 23 42 Ca1.3d 1033 (1986)

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24 Gerawan Farming, Inc. v. Lyons 24 Ca1.4th 468 (2000) 25 26 Reader's Digest Ass 'n v. Superior Court 37 Ca1.3d 244 (1984) 27 28
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3 7 7 6 .4 7, 9 7 4 5 5 5 3

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51 F.3d 1421 (9th Cir. 1995)

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1 Federal: Statutes, Rules, Regulations, Constitutional Provisions 2 18 U.S.C. 471 3 18 U.S.C. 472 4 18 U.S.C. 1426 5 18 U.S.C. 1951 6 7 18 U.S.C. 1961(1) 8 18 U.S.C. 1962(c) 9 FED. R. Civ. P. 8(a) 10 FED. R. Civ. P. 9(b) 11 FED. R. Civ. P. 12(b)(6) 12 13 14 15 16 17 18 19 20 21

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION AND SUMMARY OF ALLEGATIONS IN THE COMPLAINT

Plaintiff Brent Bateman ("Plaintiff') believes that President Obama was born in Kenya, and that his United States birth certificate is a forgery. He

fraud. (Complaint 4:10-25.) The sum and substance of Plaintiff's Complaint is that Defendant Associated Press did not sufficiently vet the President's birth certificate and declined to report on Plaintiff's film. (Id. 6:2-15, 20-23.) It is unclear how Plaintiff s allegations relate in any way to Defendant Clear Channel

Nonetheless, Plaintiff purports to assert claims against "all Defendants" including Clear Channel for violation of the Racketeer Influenced Corrupt Organizations Act ("RICO"), 18 U.S.C. 1962(c), and the Clayton Act, based on the above facts. Plaintiff's claims against Clear Channel fail for four reasons:

First, Plaintiff's Complaint as a whole does not satisfy Rule 8.

Plaintiff has not pled any facts specifically relating to Clear Channel, let alone sufficient facts to put Clear Channel on notice of the claims against it.

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Second, Plaintiff's Complaint as a whole fails because it is

nothing more than an attempt to compel media companies to publish a story about his film and the alleged conspiracy involving President Obama's birth certificate. The First Amendment does not countenance such compelled publication.

Third, Plaintiff s RICO claim should be dismissed because he

does not allege any racketeering activity, let alone a pattern

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Communications, Inc. ("Clear Channel"), which Plaintiff calls "CCC."

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produced a documentary film, FRAUD, which chronicles the President's alleged

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1 2 3 4 5 6

thereof. Moreover, Plaintiff fails to allege the predicate act of

Fourth, Plaintiff s Clayton Act claim should be dismissed

alleged "conspiracy to commit fraucrwith particularity. Moreover, Plaintiff does not allege any antitrust injury.

7 Thus, Clear Channel respectfully requests that Plaintiff s Complaint be dismissed. 8 9 10 A. 11 PLAINTIFFS' CLAIMS AGAINST CLEAR CHANNEL SHOULD BE DISMISSED PURSUANT TO RULE 12(b)(6) Standard For Granting A Motion To Dismiss Pursuant To Rule 12(b)(6) A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of

12 claims asserted in a complaint. A claim should be dismissed where there is either a 13 "lack of a cognizable legal theory or "the absence of sufficient facts alleged under a

15 Cir. 1988). A plaintiff must do more than allege "labels and conclusions, and a 16 formulaic recitation of the elements of a cause of action will not do." Bell Atlantic 17 Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). A

19 speculative level." Id. Federal Rule of Civil Procedure 8 "does not empower 20 respondent to plead the bare elements of his cause of action . . . and expect his

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21 complaint to survive a motion to dismiss." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. 22 Ct. 1937, 1949 (2009). 23 Moreover, the First Amendment is important, even at the pleading stage.

24 "[W]here a plaintiff seeks damages . . . for conduct which is prima facie protected 25 by the First amendment, the danger that the mere pendency of the action will chill 26 the exercise of the First Amendment rights requires more specific allegations than 27 would otherwise be required." Franchise Realty Interstate Corp. v. S.F. Local Joint 28 Executive Bd. Of Culinary Workers, 542 F.2d 1076, 1082-83 (9th Cir. 1976). Early
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18 complaint must at least allege sufficient facts "to raise a right to relief above a

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14 cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 969, 699 (9th

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because Plaintiff fails to plead that claimwhich is based on an

wire fraud with particularity.

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1 dispositive motions have long been universally favored to resolve free speech cases,

3 of free speech. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct.

4 2505, 91 L.Ed.2d 202 (1986) ("[T]here is no issue for trial unless there is sufficient

5 evidence favoring the nonmoving party for a jury to return a verdict for that party"); 6 cf Reader's Digest Ass 'n v. Superior Court, 37 Ca1.3d 244, 251 (1984) (summary

7 dismissal of libel claims is a favored remedy due the chilling effect of litigation on 8 free speech). Accordingly, for reasons stated below, this motion should be granted. 9 B. 10 11 12 13 14 15 16 17 18

Rule 8 provides:

A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and

and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different

19 FED. R. Civ. P. 8(a). Plaintiff's Complaint contains no allegations whatsoever that 20 are specific to Clear Channel. On the contrary, Plaintiff makes vague and

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21 unintelligible claims against the Associated Press. It is unclear which causes of 22 action Plaintiff alleges, or against whom, such that Clear Channel can formulate a 23 meaningful response to Plaintiff s Complaint. Thus, Plaintiffs Complaint should be 24 dismissed as to Clear Channel for failure to comply with Rule 8. Ivey v. Bd. of 25 Regents, 673 F.2d 266, 268 (9th Cir. 1982) (explaining that vague allegations are 26 not sufficient to withstand a motion to dismiss); Schmidt v. Herrmann, 614 F.2d 27 1221, 1223-1224 (9th Cir. 1980) (affirming a dismissal with prejudice where the 28 pleadings were "confusing, distracting, ambiguous, and unintelligible").
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types of relief.

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the claim needs no new jurisdictional support; (2) a short

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Plaintiffs Entire Complaint Fails Rule 8's Basic Pleading Requirements.

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2 as expensive, protracted litigation has an intolerable chilling effect on the exercise

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Filed 12/26/12 Page 11 of 18 Page ID #:48

While it is unclear how any of Plaintiff s allegations relate in any way to

5 based on Clear Channel's decision not to report on Plaintiff's film, such allegations

6 fail to support a viable claim under the First Amendment. (Complaint 6:2-15, 20-23, 7 passim.) 8

The First Amendment to the United States Constitution protects against

10 prohibiting speech, the Amendment may prevent the government from compelling 11 individuals to express certain views. . . . " United States v. United Foods, Inc., 533 12 U.S. 405, 410 (2001) (citations omitted). For example, the United States Supreme 13 Court has held that drivers in the state of New Hampshire could not be punished for

15 would force drivers who object to this sentiment to be associated with "an idea they 16 find morally objectionable." Wooley v. Maynard, 430 U.S. 705, 715 (1977). 17 Freedom of press protections are equally strong. In Miami Herald Publishing

19 statute requiring newspapers which assail the character of political candidates to 20 afford free space to those candidates for reply is unconstitutional as its violates the

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21 First Amendment's free press guarantee. Id. at 256. The Court stated: 22 23 A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of

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18 Company v. Tornillo, 418 U.S. 241 (1974), the Supreme Court held that a Florida

material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officialswhether fair or unfairconstitute the exercise of editorial control and judgment. It has yet to be demonstrated how

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14 obscuring the state's motto, "Live Free or Die," on license plates, because doing so

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9 compelled speech. "Just as the First Amendment may prevent the government from

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4 Clear Channel, even assuming arguendo that Plaintiff attempted to state a claim

1 C. Plaintiff's Entire Complaint Appears To Seek A Compelled Publication s Which Would Violate Clear Channel's First Amendment Rights 2

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Filed 12/26/12 Page 12 of 18 Page ID #:49

governmental regulation of this crucial process can be

free press as they have evolved to this time."

5 (1986) (holding the "choice to speak includes within it the choice of what not to

6 say."); Assocs. & Aldrich Co. v. Times Mirror Co., 440 F. 2d 133, 135-136 (9th Cir. 7 1971) (holding newspapers cannot be compelled to publish advertising in violation

8 of its editorial control, even if it has attained substantial monopoly in its area).
10 Inc. v. Gallagher Bassett Services, Inc., 138 Cal.App.4th 1307, 1313 (2006), citing, 11 Gerawan Farming, Inc. v. Lyons (2000) 24 Ca1.4th 468, 491); Blatty v. New York 12 Times Co., 42 Ca1.3d 1033, 1042 (1986) (dismissing claims for failure to list 13 author's book on best seller list, as you cannot pled around First Amendment

15 concerning plaintiff author or his novel, and therefore not actionable). 16 Accordingly, any purported claim based on Clear Channel's refusal to report

17 on or publicize Plaintiff s documentary cannot withstand First Amendment scrutiny

19 the First Amendment to state any other viable claim. Hustler Magazine v. Falwell, 20 485 U.S. 485 U.S. 46, 56-57 (1988) (barring emotional distress claims); Blatty v.

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21 New York Times, supra, 42 Cal.3d at pp. 1041-1045 (barring business interference 22 claims. 23 D. To The Extent That Plaintiff Attempts To Allege A Violation Of The RICO Statute, His Claim Fails. 24 25 To state a civil RICO claim, "a plaintiff must allege (1) conduct (2) of an

26 enterprise (3) through a pattern (4) of racketeering activity." Sanford v. 27 Memberworks, Inc., 625 F.3d 550, 557 (9th Cir. 2010). Plaintiff s RICO claim fails 28 because he has not alleged any "racketeering activity," let alone pattern thereof.
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18 and courts may not compel such speech to occur. Plaintiff also cannot plead around

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14 prerequisites for speech-based claims; failure to list author was not "of and

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California's Constitution compels the same result. Arp Phramacy Services,

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4 Id. at 258. Accord Pacific Gas & Elec. Co. v. Public Util. Comm'n, 475 U.S. 1, 16

exercised consistent with First Amendment guarantees of a

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Filed 12/26/12 Page 13 of 18 Page ID #:50

"Racketeering activity is any act indictable under several provisions of Title

3 fraud and obstruction of justice." Sanford, 625 F.3d at 557 (internal quotations

4 omitted). See also 18 U.S.C. 1961(1) (defining "racketeering activity" to include

5 "any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, 6 extortion, dealing in obscene matter, or dealing in a controlled substance or listed

7 chemical. . . , which is chargeable under State law and punishable by imprisonment

8 for more than one year" and specific sections of Title 18). Here, Plaintiff alleges

10 11 12 13 14 15 16

are in direct and blaring violation of the RICO Act of 1964, specifically related to multiple sections that include: sections 471, 472, and 473 relating to counterfeiting, section 1343 related to their direct violation of wire fraud,

citizenship papers, section 1951 related to inference to commerce and extortion.

17 (Complaint 1:22-26.) Although Plaintiff has mouthed the words of numerous

19 committed any of those acts, let alone a pattern of them. 20 Plaintiff first attempts to allege the predicate act of counterfeiting. To do so,

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21 Plaintiff must allege that Clear Channel made (471), possessed (472), or pass off 22 (473) counterfeit currency. See 18 U.S.C. 471 ("Whoever, with intent to defraud, 23 falsely makes, forges, counterfeits, or alters any obligation or other security of the 24 United States, shall be fined under this title or imprisoned not more than 20 years, or 25 both."); United States v. Rodriguez, 761 F.2d 1339, 1340 (9th Cir. 1985) ("To 26 support a conviction for possession of counterfeit currency with intent to defraud

27 under 18 U.S.C. 472, the government must prove three elements: (1) possession of 28 counterfeit money; (2) knowledge, at the time of possession, that the money is
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18 predicate acts, he does not plead facts sufficient to even suggest that Clear Channel

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section 1426 related to reproduction of naturalization of

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9 that Defendants collectively

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2 18 of the United States Code, and includes the predicate acts of mail fraud, wire

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Filed 12/26/12 Page 14 of 18 Page ID #:51

1 counterfeit; and (3) possession with intent to defraud.");

Winestock v. Immigration

3 an intent to pass off, as genuine, obligations that are in fact counterfeit."). Plaintiff's

5 his documentary relates to counterfeit United States currency, let alone any 6 malfeasance by Clear Channel. 7

Plaintiff next attempts to allege the predicate act of wire fraud, which required

8 Plaintiff to allege "(1) the existence of a scheme to defraud; (2) the use of wire,

10 Pelisamen, 641 F.3d 399, 409 (9th Cir. 2011). Moreover, because Plaintiff attempts 11 to state a RICO claim based on a predicate act involving fraud, he must plead the 12 claim with specificity pursuant to Federal Rule of Civil Procedure Rule 9(b). 13 Schreiber Distributing v. Serv-Well Furniture, 806 F.2d 1393, 1400-01 (9th Cir.

15 received, and other details of the alleged fraudulent activity, Neubronner v. Milken, 16 6 F.3d 666, 671 (9th Cir. 1993), i.e., "who, what, when, where, and how" the fraud 17 occurred, Vess v. Ciba-Geigy Corp., USA 317 F.3d 1097, 1106 (9th Cir. 2003).

19 documentary does not even come close to meeting this standard. 20 Third, 18 U.S.C. 1426 concerns the reproduction of naturalization or

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21 citizenship papers. Plaintiff alleges that President Obama's birth certificate is a 22 fraud, and that "the Associated Press released an altered document to the world 23 different from the While House released document by the Barack Hussein Obama 24 Administration." (Complaint 4:17-19, 6:25-27.) Plaintiff, however, does not allege 25 a single fact in support of this wild conclusion. He does not even state what the 26 Associated Press allegedly changed. Such vague and conclusory allegations cannot 27 28
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18 Plaintiff's vague allegations that Associated Press declined to report on his

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14 1986). In other words, Plaintiff must have alleged "the times, dates, places, benefits

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9 radio, or television to further the scheme; and (3) specific intent to defraud."

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U.S. v.

4 Complaint does not explain how the Associate Press's alleged failure to report on

2 & Naturalization Serv, 576 F.2d 234, 235 (9th Cir. 1978) (Section 473 "it requires

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Filed 12/26/12 Page 15 of 18 Page ID #:52

1 give rise to a RICO claim against Clear Channel based on the illegal reproduction of

Finally, Plaintiff attempts to allege a predicate act of violation of 18 U.S.C.

4 1951, which criminalizes any act that "obstructs, delays, or affects commerce. . .

5 by robbery or extortion . . . or threatens physical violence. . . ." Plaintiff has alleged 6 that he has received "more than 25 death threats via his film production companies

7 web site . . . and more recently, a phone call. . . threaten[ing] to cut his head off and 8 blow-up (with a bomb) the Houston, Texas theater premier" of his film. (Complaint

10 Plaintiff does not allegenor can hethat Clear Channel (or any of the other 11 Defendants) was in any way responsible for those threats. Thus, 1951 cannot 12 serve as a predicate act for Plaintiff's RICO claim. Having alleged no predicate act, 13 Plaintiff s RICO claim fails and must be dismissed.

15 16 17 18 19 20 21

Plaintiff alleges that

The Associated Press, along with 100% of its members, including all listed Defendants in said complaint, along

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Plaintiff also alleges "counterfeiting by the Associate Press, via its paying 26 subscribers, and 100% of its members of said documents, including a fake Osama Bin Laden death photo hoax, released by the Associated Press and redacted within a 27 few days." (Id. 7:1-3.) That allegation, however, has nothing to do with 28 naturalization papers.
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with, inadvertently, all paying subscribers to the Associated Press products and services from all over the United States and the world have engaged in a conspiracy

to commit fraud by virtue of the 'rule of reason' clause defined in the Clayton Anti Trust Act of 1914, . . . .

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Plaintiff's Clayton Act Claim Fails.

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9 4:20-23.) While it is regrettable that Plaintiff has had threats made against him,

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2 naturalization or citizenship papers.'

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specifically relating to 'exclusive dealing agreements,'

3 (Complaint 3:4-14.) This claimto the extent it is even possible to discern

4 Plaintiff's allegationsfails first because Plaintiff fails to allege the "conspiracy to 5 commit fraud" with any particularity, let alone that required by Rule 9(b).

6 317 F.3d at 1106. The claim additional fails because Plaintiff has not alleged

7 antitrust injuryan essential element of a Clayton Act claim. See Glen Holly 8 Entertainment, Inc. v. Tektronix, 352 F.3d 367, 371 (9th Cir. 2003). "Antitrust

10 restrictively as 'injury of the type the antitrust laws were intended to prevent and 11 that flows from that which makes defendants' acts unlawful." Id. Here, Plaintiff 12 does not allege that he was injured by an alleged violation of the Clayton Act, let 13 alone that his injury was of the type that the antitrust laws were designed to prevent,

15 or Clear Channel specifically. On the contrary, the thrust of Plaintiff s Complaint is 16 that the Associated Press did not report on his documentary. That is certainly not 17 the type of purported injury that the antitrust laws were designed to protect against.

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At times, Plaintiff also claims that the Associated Press "willfully committed felony fraud under the Sherman Anti-Trust Act." (Complaint 6:27-7:1.) Although it is entirely unclear whether Plaintiff intends to allege a Sherman Act claim, let alone one against Clear Channel, such a claim would fair for the same reasons that Plaintiff's purported Clayton Act claim fails: . Plaintiff has not alleged fraud with specificity ancl does not allege an antitrust injury. Rebel Oil Co. v. Atl. Richfield Co., 51 F.3d 1421, 1432 (9th Cir. 1995)- 51 F.3d at 1433, 1443-45, 1448; Paladin 1145, 1163 n. 22 (9th Cir. 2003); Vess, Assocs., Inc. v. Mont. Power Co., 328 F.3d 317 F.3d at 1106.

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18 Thus, Plaintiff's claim for violation of the Clayton Act should be dismissed. 2

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14 i.e., an injury resulting from any "anticompetitve" behavior on behalf of Defendants

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9 injury is defined not merely as injury caused by an antitrust violation, but more

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See Vess,

which the Associated Press has with each member . . .

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1
2 3

CONCLUSION
For the reasons set forth above, Clear Channel respectfully requests that the

4 Court dismiss Plaintiff's Complaint. 5 6 Dated: December 26, 2012 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 By

SHEPPARD, MULLIN, RICHTER & HAMPTON LLP

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SMRH:407675197.1

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Attorneys for Defendants CLEAR CHANNEL COMMUNICATIONS, INC.

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/s Valerie E. Alter VALERIE E. ALTER

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Case 2:12-cv-09291-MWF-JC Document 14

Filed 12/26/12 Page 18 of 18 Page ID #:55

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PROOF OF SERVICE

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On December 26, 2012, I served true copies of the following document(s) described as:

(1) NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT; AND

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I declare under penalty of perjury under the laws of the United States of America that the foreping is true and correct and that I am employed in the office of a member of 17 the bar of this Court at whose direction the service was made.

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Executed on December 26, 2012, at Los Angeles, California. fi

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BY EXPRESS MAIL: I enclosed said document(s) in an envelope or package 14 provided by the United States Postal Service and addressed to the persons at the addresses listed in the Service List. I placed the envelope or package for collection and overnight 15 delivery at an office or a regularly utilized drop box of the United States Postal Service.

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Brent Bateman 5207 Beeman Avenue Valley Village, CA 91607 12 Telephone: (310) 210-2858

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SMRH:407712320.1

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Att
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(2) MEMORANDUM OF POINTS AND AUTHORITIES on the interested parties in this action as follows:

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DEFENDANT CLEAR CHANNEL COMMUNICATIONS, INC.'S

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At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 4 1901 Avenue of the Stars, Suite 1600, Los Angeles, CA 90067-6055.

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES