Case 3:23-cv-04597-EMC Document 73 Filed 05/20/24 Page 1 of 49
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`ASHLEY M GJOVIK,
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`Plaintiff,
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`v.
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`APPLE INC.,
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`Defendant.
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`Case No. 23-cv-04597-EMC
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`ORDER GRANTING IN PART AND
`DENYING IN PART DEFENDANT’S
`MOTION TO DISMISS; DENYING
`DEFENDANT’S MOTION TO STRIKE;
`AND GRANTING PLAINTIFF’S
`MOTION TO STRIKE
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`Docket Nos. 48, 49, 64
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`
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`Plaintiff Ashley Gjovik, proceeding pro se,1 is a former employee of Defendant Apple, Inc.
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`She started to work for Apple in 2015 and was terminated in September 2021. About two years
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`after she was fired, she initiated this lawsuit. Ms. Gjovik has asserted fifteen different claims
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`against Apple, both federal and state. The gist of her suit is that Apple retaliated against her
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`because she complained about conduct at the company, including but not limited to
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`environmentally unsafe conditions.
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`Now pending before the Court are several motions. The primary motions are two motions
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`filed by Apple: (1) a motion to dismiss the operative third amended complaint (“TAC”) and (2) a
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`related motion to strike. In addition to Apple’s motions, there is a motion that Ms. Gjovik has
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`filed. Specifically, Ms. Gjovik has moved to strike two declarations that were filed by an ex-
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`Apple employee, Cher S. Scarlett, whom Ms. Gjovik has referred to in the TAC as “Joanna
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`Appleseed.” See Docket No. 62 (Scarlett Decl.); Docket No. 66 (Supp. Scarlett Decl.).
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`1 Ms. Gjovik appears to have a J.D. from Santa Clara University.
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`Case 3:23-cv-04597-EMC Document 73 Filed 05/20/24 Page 2 of 49
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`Having considered the parties’ briefs, as well as the oral argument presented at the hearing
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`on May 16, 2024, the Court hereby GRANTS in part and DENIES in part Apple’s motion to
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`dismiss; DENIES Apple’s motion to strike; and GRANTS Ms. Gjovik’s motion to strike.
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`I.
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`FACTUAL & PROCEDURAL BACKGROUND
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`The operative pleading is the third amended complaint (“TAC”). Although the TAC is
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`difficult to follow at times, the main categories of misconduct as described in the TAC are as
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`follows:
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`(1) During her employment with Apple, Ms. Gjovik lived in an apartment near an
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`Apple factory (known as the ARIA factory) and became ill because the factory
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`released toxic substances into the environment.
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`(2) Ms. Gjovik’s office at Apple (known as Stewart 1) was located on a contaminated
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`site subject to EPA regulation, i.e., a Superfund site, and she became ill because of
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`Apple’s actions/omissions related to the site.
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`(3) Apple made employees, including Ms. Gjovik, participate in studies related to
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`Apple products that were invasive to their privacy.
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`(4) Apple retaliated against Ms. Gjovik for making complaints about harassment and
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`environmental safety. Ms. Gjovik’s complaints included internal complaints,
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`complaints to governmental agencies, complaints to the press, and complaints made
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`in social media. The retaliation by Apple included but was not limited to the
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`termination of Ms. Gjovik from employment.
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`Below, the Court provides more details regarding Apple’s alleged misconduct and Ms.
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`Gjovik’s termination from employment. To be clear, the discussion below is based on the
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`allegations made in the TAC.
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`A.
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`Harassment at Work
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`In February 2015, Ms. Gjovik began to work for Apple. She started out as an Engineering
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`Project Manager in Software Engineering and continued to work in that office until January 2017.
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`See TAC ¶ 13. During her time in that office, she was harassed, primarily by two male co-
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`workers. See TAC ¶ 13. In addition, during her time in the office, she investigated a trend of
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`battery failures in the field. When she did not comply with her managers’ directive to ignore the
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`problem, she was essentially forced out of that office. See TAC ¶ 17.
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`In January 2017, she left Software Engineering and joined Hardware Engineering as a
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`Senior Engineering Project Manager. See TAC ¶ 18. There, she was harassed by two of her
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`superiors, including on the basis of her sex and disability. See TAC ¶ 18. As indicated below,
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`Ms. Gjovik became disabled because of Apple’s release of toxic substances into the environment.
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`B.
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`Chemical Exposure from the Apple ARIA Factory
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`In February 2020, while she was still working for Apple, Ms. Gjovik moved into an
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`apartment building located at 3255 Scott Blvd. in Santa Clara. See TAC ¶ 25. There was an
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`Apple factory located less than 300 feet away at 3250 Scott Blvd. See TAC ¶ 22. The factory had
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`the code name “ARIA” and was used for semiconductor fabrication. See TAC ¶ 22. “Apple
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`intentionally vented its fabrication exhaust – . . . consisting of toxic solvent vapors, gases, and
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`fumes – into the ambient outdoor air.” TAC ¶ 22.
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`Because of Apple’s release of toxic substances into the air, Ms. Gjovik became “severely
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`ill,” i.e., because she was living in the apartment near the Apple ARIA factory. TAC ¶ 25. Ms.
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`Gjovik suffered “severe fainting spells, dizziness, chest pain, palpitations, stomach aches,
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`exhaustion fatigue, . . . strange sensations in her muscle and skin,” a slow heart rate, volatile blood
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`pression, and arrythmia. TAC ¶ 25. At some point, she became so sick that she went on
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`disability. See TAC ¶ 26.
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`From February through September 2020, Ms. Gjovik sought medical treatment, including
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`at a medical clinic sponsored by Apple, known as AC Wellness. See TAC ¶¶ 25-26. In or about
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`September 2020, she consulted with “multiple occupational and environmental exposure doctors,
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`who told [her] that all of her symptoms were consistent with solvent and other chemical
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`exposures.” TAC ¶ 29. Ms. Gjovik hired an industrial hygienist to test the indoor air at her
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`apartment, and the results showed a number of chemicals which were “in use by Apple at ARIA.”
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`TAC ¶ 30. (At that time, Ms. Gjovik knew that there was an Apple facility near her apartment, see
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`TAC ¶ 32, but it appears she did not know about the semiconductor fabrication at the factory until
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`February 2023. See TAC ¶ 39.)
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`Subsequently, from September 2020 through April 2021, Ms. Gjovik contacted various
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`governmental agencies about the problem, including the EPA and California EPA. See TAC ¶¶
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`29, 36.
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`In March 2021, Ms. Gjovik wrote an article, which was published in the SF Bay View
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`newspaper, about her chemical exposure experience with the air around her apartment. This led to
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`other victims coming forward, including other Apple employees. See TAC ¶¶ 33-34.
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`In April 2021, Ms. Gjovik met with several local, state, and federal politicians “about what
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`occurred to her next to ARIA.” TAC ¶ 36.
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`In July and August 2021, Ms. Gjovik continued to meet with local, state, and federal
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`politicians. See TAC ¶ 38.
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`As discussed in more detail, infra, in September 2021, Apple terminated Ms. Gjovik.
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`Not until some two years later, in February 2023, did Ms. Gjovik learn that there was
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`semiconductor fabrication taking place at the Apple ARIA factory. See TAC ¶ 39.
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`In June 2023, Ms. Gjovik filed a complaint about the ARIA factory with the EPA and
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`California EPA. The EPA inspected in August 2023 and January 2024. Ms. Gjovik is still
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`waiting for the results of the investigation. See TAC ¶ 40.
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`C.
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`Chemical Exposure from the Apple Stewart 1 Office
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`From about 2017 to the date of her termination (in September 2021), Ms. Gjovik worked at
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`an Apple office located at 825 Stewart Dr. in Sunnyvale. The office was known as “Stewart 1.” It
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`was located on a Superfund site (i.e., a contaminated site regulated by the EPA). The
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`contamination was in the groundwater and came about due to a semiconductor fabrication facility
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`that used to be on the site. See TAC ¶¶ 41-42. It appears that the Northrop Grumman used to
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`operate on the site. See TAC ¶ 43.
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`Apple became a tenant on the site in 2015. See TAC ¶ 45. In late 2015, after it became a
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`tenant, Apple installed a new HVAC system in the building. As a part of the installation, Apple
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`sawed off vent stacks on the main building roof; these stacks had been put in place as part of the
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`ventilation of the area beneath the concrete slab foundation, i.e., to allow hazardous waste vapors
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`to discharge to the atmosphere. After Apple sawed off the vent stacks (from three feet to one
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`Case 3:23-cv-04597-EMC Document 73 Filed 05/20/24 Page 5 of 49
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`foot), it then put the HVAC system in close proximity to the stacks, so that the discharge from the
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`stacks could be taken in by the intake of the HVAC system. See TAC ¶¶ 44-46. Apple did vapor
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`intrusion testing in December 2015, and the results showed an increase in indoor air pollution
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`(compared to a test that Northrop Grumman had conducted back in May 2015). Nevertheless,
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`Apple had its employees move into the building. See TAC ¶ 47.
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`In March 2021, Apple informed Ms. Gjovik and others that it would be conducting vapor
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`intrusion testing for Stewart 1. See TAC ¶ 49. Ms. Gjovik expressed concern to her superiors
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`because the office was on the Superfund site, and she shared that fact with her coworkers. See
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`TAC ¶¶ 49, 51. She also met subsequently (on more than one occasion) with Apple’s
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`Environmental Health & Safety (“EH&S”) office. See TAC ¶ 52.
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`In April 2021, Ms. Gjovik contacted the EPA about the Superfund site and continued to
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`communicate with the agency through August 2021. See TAC ¶ 52.
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`In June 2021, Apple’s EH&S office and its Employee Relations office notified Ms. Gjovik
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`that the foundation of Stewart 1 was cracked, that the foundation would need to be repaired, and
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`that air testing would be conducted thereafter. See TAC ¶ 53. Apple refused to contact the EPA;
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`therefore, Ms. Gjovik reported Apple to the EPA herself (and told Apple that she had done so).
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`See TAC ¶ 53.
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`By the end of July 2021, Ms. Gjovik made open complaints about Apple’s conduct at
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`Stewart 1 to various people: coworkers, the press, and social media. See TAC ¶ 59.
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`In response, Apple retaliated against Ms. Gjovik. For example:
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`•
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`In or about July 2021, Apple issued “gag orders” to Ms. Gjovik, e.g., to prevent her
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`from communicating about safety concerns to her coworkers. See TAC ¶ 55; see
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`also TAC ¶ 60 (alleging that an Apple investigator “interrogated” her about
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`communications with coworkers).
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`•
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`In or about July 2021, Apple opened what Mr. Gjovik seems to allege as an
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`investigation into sexism by Ms. Gjovik’s superiors. There was in fact no real
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`investigation; rather Ms. Gjovik’s superiors were simply told that she was
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`complaining about their behavior. See TAC ¶ 56.
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`•
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`In or about July 2021, Ms. Gjovik discovered that one of her superiors (Mr. West)
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`“had been reassigning her best projects (things that would help her receive a
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`positive review)” to others. TAC ¶ 58. At or about the same time, another superior
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`(Mr. Powers) “quadrupled her workload with highly unfavorable projects (things
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`that were certain to upset people and fail).” TAC ¶ 58.
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`•
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`In or about July 2021, Apple assigned an investigator (Mr. Okpo) to look into Ms.
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`Gjovik’s concerns apparently about retaliation and fraud dating back to 2015 but
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`this was essentially a meaningless gesture; there was no intent that the investigator
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`would act in good faith (e.g., he tried to prevent her from communicating with
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`coworkers, and he did not comply with her request to keep things in writing). See
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`TAC ¶¶ 58-60, 62; see also TAC ¶¶ 98-100.
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`• Apple persistently told Ms. Gjovik to take a leave. See TAC ¶ 59.
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`In late July 2021, the EPA told Apple, as well as Northrop Grumman, that it wanted to
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`inspect Stewart 1. See TAC ¶ 61. Thereafter, in August 2021, Apple announced that they would
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`begin to do maintenance at the building – implicitly to cover up the problems at the site. See TAC
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`¶¶ 61, 64. Ms. Gjovik told her coworkers to take pictures of problems at the site – e.g., cracks in
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`the foundation of the building. See TC ¶ 64. The next day, Mr. Okpo (the Apple investigator) put
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`Ms. Gjovik on an indefinite administrative leave. See TAC ¶ 65.
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`In mid-August 2021, the EPA conducted an inspection of Stewart 1. See TAC ¶ 68. The
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`EPA noted, inter alia, that cracks had been sealed but it was not clear whether the foundation slab
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`had been penetrated due to equipment bolted to the slab. The EPA also noted that there could be a
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`problem given the proximity of the vent stacks on the roof to the HVAC intake. See TAP ¶ 68.
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`As discussed in more detail, infra, in September 2021, Apple terminated Ms. Gjovik.
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`In May 2022, the EPA instructed Northrop Grumman to do air testing. See TAC ¶ 69.
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`In January 2023, the EPA again instructed that air testing be done. See TAC ¶ 70.
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`In August 2023, the EPA commented on vapor intrusion testing that Apple had done in
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`May 2023, “calling Apple’s testing report and strategy ‘fundamentally incorrect,’ having ‘no
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`fundamental basis,’ and [being] ‘not accurate,’ ‘confusing,’ and ‘misleading.’” TAC ¶ 70
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`Case 3:23-cv-04597-EMC Document 73 Filed 05/20/24 Page 7 of 49
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`(emphasis omitted).
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`D.
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`Termination in September 2021
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`As noted above, Ms. Gjovik was put on indefinite administrative leave in August 2021. In
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`or about that period (July-August 2021), Ms. Gjovik made various public complaints about Apple.
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`See TAC ¶ 71 et seq. Some complaints were made to coworkers (e.g., through Slack channels), to
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`the press, or to social media; other complaints were filed with governmental agencies such as the
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`EEOC, the California DFEH, the NLRB, the U.S. Department of Labor, the California Department
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`of Labor, and even the SEC and FBI. The complaints covered a wide range of conduct by Apple –
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`e.g., its response to COVID-19, its response to her complaints about sexism, its response to her
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`complaints about unsafe work conditions, its forcing her on administrative leave, etc.
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`On September 9, 2021, Apple terminated Ms. Gjovik’s employment. See TAC ¶ 90. The
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`day that she was terminated, Ms. Gjovik was contacted by an Apple Workplace Violence and
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`Threat Assessment investigator (Mr. Kagramanov) via email. The investigator claimed that he
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`was looking into a sensitive IP matter and demanded to speak to her within the hour. Ms. Gjovik
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`said she was willing to participate but wanted a written record of their conversation. The
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`investigator replied that Apple was investigating allegations that she had improperly disclosed
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`confidential information belonging to Apple and falsely asserted that she was refusing to
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`participate in the investigation. The investigator then suspended all of Ms. Gjovik’s account
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`access at Apple (including Slack). See TAC ¶ 101-03; see also TAC ¶¶ 83, 88. Ms. Gjovik
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`reiterated to the investigator that she was willing to participate. However, a few hours later, she
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`was terminated. See TAC ¶ 105. “The termination letter repeated an ambiguous charge of leaking
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`and said she ‘failed to cooperate and to provide accurate and complete information during the
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`Apple investigatory process.’” TAC ¶ 105.
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`About a week later, Apple’s outside counsel emailed Ms. Gjovik a letter, suggesting that
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`Apple had terminated her because (1) she had complained about Apple asking to 3-D scan her ear
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`canals and (2) she had “posted some of the surveillance photos Apple secretly took of her through
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`her phone when it was illegally harvesting her biometrics through its face Gobbler app.” TAC ¶
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`106; see also TAC ¶ 80 (alleging that “Apple frequently requested that Gjovik and her coworkers
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`participate in invasive, oppressive, and humiliating medical studies, anatomical studies (like ear
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`scans), DNA test, biometrics data collection (like the Gobbler app), and other highly personal
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`studies”).
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`E.
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`Post-Termination Harassment
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`Even after Ms. Gjovik was fired from Apple, the company harassed her. In fact, Apple
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`conducted a campaign of harassment against her from at least July 2021 (i.e., a few months before
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`it terminated her). The harassment included the following conduct:
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`• Making repetitive, unwanted communications to Ms. Gjovik. See TAC ¶ 107.
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`• Making false accusations against Ms. Gjovik. See TAC ¶ 107.
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`• Mailing to Ms. Gjovik “menacing packages.” TAC ¶ 107.
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`• Physically surveilling Ms. Gjovik, including through the use of private
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`investigators. See TAC ¶¶ 107, 110.
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`• Using fake social media accounts to make, inter alia, threatening, defamatory, and
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`insulting statements about Ms. Gjovik. See TAC ¶ 108.
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`• “[B]ugging [Ms. Gjovik’s] chattel property” such as the statute on her desk and her
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`fig tree. TAC ¶ 110 (also alleging that Apple installed cables and cords in her
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`attic).
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`• Breaking into her apartment and adjacent apartments, and even handling her dog
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`during one of the break-ins. See TAC ¶ 110.
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`For similar allegations, see also TAC ¶ 132 (alleging that Apple engaged in criminal
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`witness tampering “with break-ins, stalking, destruction of property, physical and digital
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`harassment, lawsuits, reports to police and FBI (SWATing), and threats of physical violence sent
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`over wires such as threatening to decapitate one of Gjovik’s loved ones, or that Gjovik would be
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`found dead of ‘suicide’ but ‘never mind the double-tap’”) (emphasis omitted); and TAC ¶ 134
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`(alleging that Apple broke into her apartment, messed with her telephone/cable/electrical lines,
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`stalked her, etc.)
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`Case 3:23-cv-04597-EMC Document 73 Filed 05/20/24 Page 9 of 49
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`F.
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`Causes of Action
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`Based on, inter alia, the above allegations, Ms. Gjovik has asserted the following causes of
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`action:
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`(1)
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`(2)
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`(3)
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`(4)
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`(5)
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`(6)
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`(7)
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`(8)
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`(9)
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`Violation of RICO.
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`Violation of the Sarbanes-Oxley Act (whistleblower).
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`Violation of the Dodd-Frank Act (whistleblower).
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`Private nuisance and nuisance per se.
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`Ultrahazardous/abnormally dangerous activities (strict liability).
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`Violation of the Bane Civil Rights Act.
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`Violation of the Ralph Civil Rights Act.
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`Violation of the California Whistleblower Protection Act.
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`Retaliation for filing complaints in violation of California Labor Code § 98.6.
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`(10) Retaliation for safety activities in violation of California Labor Code § 6310.
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`(11) Termination in violation of public policy.
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`(12) Breach of implied contract and breach of the implied covenant of good faith
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`and fair dealing.
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`(13)
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`Intentional infliction of emotional distress.
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`(14) Negligent infliction of emotional distress.
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`(15) Violation of California Business & Professions Code § 17200.
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`In the pending 12(b)(6) motion, Apple moves to dismiss outright 11 out of the 15 causes of
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`action – specifically, Counts 1-3, 5-8 and 12-15. Apple also moves for partial dismissal of 2 other
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`counts – specifically, Counts 4 and 9. The only claims that Apple does not challenge in its
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`12(b)(6) motion are Count 10 (retaliation for safety activities) and Count 11 (termination in
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`violation of public policy).
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`A.
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`Legal Standard
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`II.
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`MOTION TO DISMISS
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`Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include “a short and plain
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`statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A
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`Case 3:23-cv-04597-EMC Document 73 Filed 05/20/24 Page 10 of 49
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`complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil
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`Procedure 12(b)(6). See Fed. R. Civ. P. 12(b)(6). To overcome a Rule 12(b)(6) motion to dismiss
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`after the Supreme Court’s decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic
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`Corp. v. Twombly, 550 U.S. 544 (2007), a plaintiff’s “factual allegations [in the complaint] ‘must .
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`. . suggest that the claim has at least a plausible chance of success.’” Levitt v. Yelp! Inc., 765 F.3d
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`1123, 1135 (9th Cir. 2014). The court “accept[s] factual allegations in the complaint as true and
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`construe[s] the pleadings in the light most favorable to the nonmoving party.”2 Manzarek v. St.
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`Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But “allegations in a
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`complaint . . . may not simply recite the elements of a cause of action [and] must contain sufficient
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`allegations of underlying facts to give fair notice and to enable the opposing party to defend itself
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`effectively.” Levitt, 765 F.3d at 1135 (internal quotation marks omitted). “A claim has facial
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`plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
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`inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The
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`plausibility standard is not akin to a probability requirement, but it asks for more than a sheer
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`possibility that a defendant has acted unlawfully.” Id. (internal quotation marks omitted).
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`B.
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`Violation of RICO (Count 1)
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`In Count 1, Ms. Gjovik asserts a claim for violation of RICO, but there are technically
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`subclaims to the extent she has asserted violations of 18 U.S.C. §§ 1962(a), (c), and (d). The
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`factual predicate for the RICO claim, including the subclaims, is muddled. The gist of it (as
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`described in the TAC) seems to be that Apple markets itself as a progressive brand – e.g.,
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`2 On a motion to dismiss, a court generally limits its review to the four corners of the complaint.
`See Van Buskirk v. Cnn, 284 F.3d 977, 980 (9th Cir. 2002) (“Ordinarily, a court may look only at
`the face of the complaint to decide a motion to dismiss.”); Lee v. City of Los Angeles, 250 F.3d
`668, 688 (9th Cir. 2001) (“[W]hen the legal sufficiency of a complaint's allegations is tested by a
`motion under Rule 12(b)(6), ‘review is limited to the complaint.’”). Accordingly, the Court does
`not consider the two declarations filed by Ms. Scarlett (and grants Ms. Gjovik’s motion to strike
`the same), nor does it consider the declaration filed by Ms. Gjovik.
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`A court may still take judicial notice of documents, if appropriate, on a 12(b)(6) motion.
`See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018) (noting that a court
`may “consider materials outside a complaint” at the 12(b)(6) phase if it can, e.g., take judicial
`notice of materials). The Court addresses Apple’s requests for judicial notice, where necessary,
`below.
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`Northern District of California
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`United States District Court
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`Case 3:23-cv-04597-EMC Document 73 Filed 05/20/24 Page 11 of 49
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`environmentally responsible – when in fact it is not. By marketing itself as a progressive brand,
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`Apple benefits financially. In addition, because Apple does not comply with regulations on
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`health, safety, employment, etc., it gets an edge over its competitors: while the competitors spend
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`money to comply with regulations, Apple saves money by not complying. Apple conceals the
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`truth that it is not progressive by retaliating against employees who report issues, using unlawful
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`NDAs, and so forth. See TAC ¶¶ 115, 123, 126. The specific racketeering activity in which
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`Apple engages includes bribery, witness tampering, witness retaliation, wire fraud, securities
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`fraud, and possessing and using chemical weapons. See TAC ¶¶ 128-65 (describing ten predicate
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`acts).
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`1.
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`Section 1962(a)
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`As noted above, Ms. Gjovik first asserts a claim for violation of § 1962(a). Section
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`1962(a) provides in relevant part as follows: “It shall be unlawful for any person who has received
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`any income derived, directly or indirectly, from a pattern of racketeering activity . . . to use or
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`invest, directly or indirectly, any part of such income, or the proceeds of such income, in . . . the
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`establishment or operation of, any enterprise . . . .” 18 U.S.C. § 1962(a). “This provision was
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`primarily directed at halting the investment of racketeering proceeds into legitimate businesses,
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`including the practice of money laundering.” Brittingham v. Mobil Corp., 943 F.2d 297, 303 (3d
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`Cir. 1991).
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`A plaintiff asserting a § 1962(a) claim must prove the following: (1) the defendant received
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`money from a pattern of racketeering activity; (2) the defendant used or invested that money in an
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`enterprise; and (3) the plaintiff was injured as a result of the use or investment of racketeering
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`income. See Lightning Lube v. Witco Corp., 4 F.3d 1153, 1188 (3d Cir. 1993).
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`Regarding element (3), “an injury resulting from the [use or] investment of racketeering
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`income [is] distinct from an injury caused by the predicate acts themselves.” Id. (emphasis
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`added). The former is required because § 1962(a) “‘is directed specifically at the use or
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`investment of racketeering income.’” Id.; see also Wagh v. Metris Direct, Inc., 363 F.3d 821, 829
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`(9th Cir. 2003) (stating that a plaintiff must allege that “funds derived from the alleged
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`racketeering activity . . . were used to injure him”); NRB Indus. v. R.A. Taylor & Assocs., No. 97
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`Northern District of California
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`Case 3:23-cv-04597-EMC Document 73 Filed 05/20/24 Page 12 of 49
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`Civ. 181 (JSR), 1998 U.S. Dist. LEXIS 25, at *4 (S.D.N.Y. Jan. 6, 1998) (stating that “‘the
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`essence of a violation of § 1962(a) is not commission of predicate acts but investment of
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`racketeering income,’” and therefore, “a plaintiff suing under § 1962(a) must ‘allege a “use or
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`investment injury” that is distinct from the injuries resulting from predicate acts’”) (emphasis
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`added). See, e.g., Compagnie De Reassurance D'Ile De Fr. v. New Eng. Reinsurance Corp., 57
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`F.3d 56, 91 (1st Cir. 1995) (“Even assuming that [plaintiffs] had been defrauded through the use
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`of the mails or international wires, that alone is not enough to show that they were harmed
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`additionally by [defendant’s] use or investment of the proceeds of that fraud to establish or operate
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`[the enterprise].”).
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`Furthermore, “[r]einvestment of proceeds from alleged racketeering activity back into the
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`enterprise to continue its racketeering activity is insufficient to show proximate causation.”
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`Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137, 1149 (9th Cir. 2008). The rationale
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`behind that principle is that a distinction between § 1962(a) and (c) must be maintained. See id. at
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`1150.
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`As the Third Circuit in Brittingham explained, "[a] plaintiff must
`allege . . . more than a remote connection between the use or
`investment of racketeering income and the injury suffered." 943
`F.2d at 304. The Brittingham court concluded that the reinvestment
`of racketeering proceeds is too remote a connection. See id. at 305.
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`If this remote connection were to suffice, the use-or-
`investment injury requirement would be almost
`completely eviscerated when the alleged pattern of
`racketeering is committed on behalf of a corporation .
`. . Over the long term, corporations generally reinvest
`their profits, regardless of the source. Consequently,
`almost every racketeering act by a corporation will
`have some connection to the proceeds of a previous
`act. Section 1962(c) is the proper avenue to redress
`injuries caused by the racketeering acts themselves.
`If plaintiffs' reinvestment injury concept were
`accepted, almost every pattern of racketeering
`activity by a corporation would be actionable under §
`1962(a), and the distinction between § 1962(a) and §
`1962(c) would become meaningless.
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`Westways World Travel v. AMR Corp., 182 F. Supp. 2d 952, 960 (C.D. Cal. 2001).
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`In the instant case, Apple argues that the § 1962(a) claim should be dismissed because Ms.
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`Gjovik has failed to make allegations that satisfy element (3). The Court agrees.
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`Northern District of California
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`United States District Court
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`

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`For example, Ms. Gjovik argues that “Defendant . . . reinvested its earnings and saved
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`costs back into its enterprise, in order to be able to continue silencing witnesses, including
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`Plaintiff, and to be able to more effectively silence witnesses in order to engage in more fraud and
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`chemical weapon use.” Opp’n at 18. But, as noted above, “[r]einvestment of proceeds from
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`alleged racketeering activity back into the enterprise to continue its racketeering activity is
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`insufficient to show proximate causation.” Sybersound, 517 F.3d at 1149. The same problem
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`arises to the extent Ms. Gjovik suggests that Apple invested its racketeering profits by (1) hiring
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`lawyers “to harass, intimidate, and coerce . . . witnesses” to its misconduct or by (2) investing in
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`progressive nonprofit organizations “in order to capture and control them, conspire with them, and
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`prevent them from protecting and helping witnesses to Defendant’s racketeering.” Opp’n at 18-
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`19.
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`To the extent Ms. Gjovik asserts Apple invested its racketeering profits by bribing local
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`law enforcement, see Opp’n at 18, there is another problem. The bribery incident described in the
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`TAC has to do with Tom Moyer, Apple’s Head of Global Security, “paying bribes to public
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`officials in exchange for concealed carry handgun permits for Apple employees.” TAC ¶ 128.
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`Ms. Gjovik fails to explain how this use of racketeering profits injured her; there is no allegation
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`that, e.g., an Apple employee threatened her with a gun obtained through this bribery scheme.
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`And even if that happened, it is clear how Ms. Gjovik’s business or property was harmed as a
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`result. See Glob. Master Int'l Grp., Inc. v. Esmond Nat., Inc., 76 F.4th 1266, 1271, 1274 (9th Cir.
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`2023) (stating that “[a] civil RICO plaintiff only has standing if, and can only recover to the extent
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`that, he has been injured in his business or property by the conduct constituting the violation”;
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`e.g., “a plaintiff must demonstrate (1) harm to a specific property interest cognizable under state
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`law, and (2) that the injury resulted in concrete financial loss”) (int