Case 5:24-cv-07885-EJD Document 59 Filed 01/29/25 Page 1 of 6
`
`Bradley A. Benbrook (SBN 177786)
`Stephen M. Duvernay (SBN 250957)
`BENBROOK LAW GROUP, PC
`701 University Avenue, Suite 106
`Sacramento, CA 95825
`Telephone: (916) 447-4900
`brad@benbrooklawgroup.com
`steve@benbrooklawgroup.com
`
`
`
`
`Steven P. Lehotsky*
`Scott A. Keller*
`Jeremy Evan Maltz*
`Shannon Grammel*
`LEHOTSKY KELLER COHN LLP
`200 Massachusetts Avenue, NW, Suite 700
`Washington, DC 20001
`(512) 693-8350
`steve@lkcfirm.com
`scott@lkcfirm.com
`jeremy@lkcfirm.com
`shannon@lkcfirm.com
`
`Joshua P. Morrow*
`LEHOTSKY KELLER COHN LLP
`408 W. 11th Street, 5th Floor
`Austin, TX 78701
`(512) 693-8350
`josh@lkcfirm.com
`
`Jared B. Magnuson*
`LEHOTSKY KELLER COHN LLP
`3280 Peachtree Road NE
`Atlanta, GA 30305
`(512) 693-8350
`jared@lkcfirm.com
`* Admitted pro hac vice.
`
`Attorneys for Plaintiff NetChoice
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`NETCHOICE,
`
`
`Plaintiff,
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`
`
`
`
`
`
`
`ROB BONTA, in his official capacity as
`Attorney General of California,
`
`
`v.
`
`Defendant.
`
` Case No. 5:24-cv-07885-EJD
`
`PLAINTIFF’S MOTION TO STAY
`PROCEEDINGS PENDING APPEAL
`
`Date: March 13, 2025
`Time: 9:00 am
`Judge: Hon. Edward J. Davila
`Courtroom: San Jose, Courtroom 4, 5th Floor
`
`
`
`
`PLAINTIFF’S MOTION TO STAY PROCEEDINGS PENDING APPEAL
`
`
`
`

`

`
`
`Case 5:24-cv-07885-EJD Document 59 Filed 01/29/25 Page 2 of 6
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`NOTICE OF MOTION
`PLEASE TAKE NOTICE that on March 13, 2025, at 9:00am, or as soon thereafter as may
`be convenient for the Court, Plaintiff NetChoice will bring for hearing this motion to stay proceed-
`ings in this Court pending appeal.
`
`RELIEF SOUGHT
`Plaintiff NetChoice moves this Court to stay proceedings and all future deadlines in this
`case while NetChoice’s appeal is pending—including any Supreme Court review. NetChoice has
`appealed this Court’s order denying in part Plaintiff’s Motion for Preliminary Injunction. ECF 39.
`This Court granted a time-limited injunction pending appeal that expires at the end of February 1,
`2025. ECF 47. NetChoice then moved in the Ninth Circuit for an injunction pending appeal.
`ECF 48. And the Ninth Circuit has granted NetChoice’s motion for injunction pending appeal,
`expediting the appeal for an April 2025 argument setting. See ECF 58. And NetChoice’s opening
`appellate brief on the merits is due January 30, 2025. Nevertheless, Defendant opposes the relief
`requested in this motion.
`The Ninth Circuit’s decision will resolve the core First Amendment issues at the heart of
`this case. This Court has already recognized the importance of appellate review: “Given that
`SB 976 can fundamentally reorient social media companies’ relationship with their users, there is
`great value in testing the law through appellate review.” ECF 47 at 4. To preserve NetChoice’s
`members’ rights and to ensure that the parties are not required to conduct inefficient dual-track
`litigation at the expense of two courts’ resources, NetChoice respectfully moves to stay proceed-
`ings in this Court while NetChoice’s appeal is pending.
`PROCEDURAL HISTORY
`NetChoice moved for a preliminary injunction of Defendant’s enforcement of California
`Senate Bill 976 (“Act”). ECF 2. The parties jointly stipulated to a briefing schedule under which
`Defendant’s responsive pleading to NetChoice’s complaint is due “no later than 21 days following
`final resolution of the Motion for Preliminary Injunction – including any appellate proceedings.”
`ECF 15 at 5. Accordingly, there will not be a responsive pleading filed in this case for months—
`at a minimum.
`
`1
`PLAINTIFF’S MOTION TO STAY PROCEEDINGS PENDING APPEAL
`
`

`

`
`
`Case 5:24-cv-07885-EJD Document 59 Filed 01/29/25 Page 3 of 6
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`On December 31, 2025, this Court partially granted and partially denied NetChoice’s mo-
`tion for preliminary injunction. ECF 39. Particularly relevant here, this Court concluded
`that: (1) NetChoice’s challenges to the Act’s assurance requirements (Cal. Health & Safety Code
`§§ 27001(a)(1)(B), 27002(a)(2), 27006(b)-(c)) were unripe, ECF 39 at 8-14; (2) NetChoice’s chal-
`lenges to the Act’s regulations of personalized feeds (Cal. Health & Safety Code §§ 27001(a),
`27002(a)(2)) and certain default settings on minors’ accounts (id.§ 27002(b)(2)-(5)) were unlikely
`to succeed on the merits, ECF 39 at 14-23, 28-29, 31-32; and (3) NetChoice’s vagueness challenge
`to the Act’s central coverage definition was unlikely to succeed on the merits, id. at 32-33.
`NetChoice timely appealed. ECF 40.
`NetChoice also moved for an injunction pending appeal in this Court. ECF 42. This Court
`granted that motion, and ordered that Defendant is “ENJOINED from enforcing the entirety of
`SB 976 for thirty (30) days until February 1, 2025 at 11:59 p.m. PT. At that time, if the Ninth
`Circuit has not extended this injunction pending appeal or issued its own, this injunction shall
`dissolve and the more limited injunction issued in the Court’s preliminary injunction order (ECF
`No. 39) shall take effect.” ECF 47 at 4. After that, NetChoice moved for an injunction pending
`appeal in the Ninth Circuit.
`The Ninth Circuit granted that motion on January 28, 2025, after applying the same “stand-
`ard for preliminary injunction in district court.” ECF 58. It also expedited the appeal. Id.
`NetChoice’s opening brief on the merits is due in the Ninth Circuit on January 30, 2025. And the
`case is set for argument in April 2025. Id.
`The initial case management conference in this Court is set for February 13, 2025. ECF 54.
`Counsel for NetChoice conferred with Defendant’s counsel about staying proceedings in
`this Court while NetChoice’s appeal is pending. Defendant’s counsel did not agree to jointly stip-
`ulate to stay proceedings
`
`ARGUMENT
`NetChoice satisfies the conditions for a stay of proceedings because: “(1) there is a ‘fair
`possibility’ of ‘hardship or inequity,’ (2) it would not result in ‘undue delay,’ or (3) ‘it is efficient
`for [the court’s] docket and the fairest course for the parties to enter a stay of an action before it,
`
`2
`PLAINTIFF’S MOTION TO STAY PROCEEDINGS PENDING APPEAL
`
`

`

`
`
`Case 5:24-cv-07885-EJD Document 59 Filed 01/29/25 Page 4 of 6
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`pending resolution of [] proceedings which bear upon the case.” Harville v. Three Wishes Foods,
`Inc., 2023 WL 4535476, at *1 (N.D. Cal. July 13, 2023) (quoting Dependable Highway Exp., Inc.
`v. Navigators Ins. Co., 498 F.3d 1059, 1066 (9th Cir. 2007)). Any one of these conditions is suffi-
`cient to grant NetChoice a stay of proceedings. See id. NetChoice can demonstrate all three.
`At bottom, the resolution of NetChoice’s appeal will lend greater clarity to the course of
`proceedings in this Court. Accordingly, this Court should stay proceedings pending NetChoice’s
`appeal.
`First, NetChoice and its members face “hardship or inequity” absent a stay. Id. (citation
`omitted). Without a stay, NetChoice will be required to conduct dual-track litigation in this Court
`and the Ninth Circuit. And the litigation in this Court will lack the Ninth Circuit’s guidance on
`what the Court has acknowledged are “novel, difficult, and important” questions. ECF 47 at 4.
`Without that guidance, the “parties would expend additional resources litigating [] theories that
`may be” undermined by the Ninth Circuit. Harville, 2023 WL 4535476, at *2.
`Gaining greater clarity before proceeding to discovery is especially important here, because
`this is a First Amendment case. The First Amendment doctrines invoked by NetChoice exist pre-
`cisely to facilitate decisions with “minimal if any discovery, to allow parties to resolve disputes
`quickly without chilling speech through the threat of burdensome litigation.” FEC v. Wis. Right
`To Life, Inc., 551 U.S. 449, 469 (2007) (controlling plurality op. of Roberts, C.J.); see also Gibson
`v. Fla. Legislative Investigation Comm., 372 U.S. 539, 546 (1963) (“[I]t is an essential prerequisite
`to the validity of an investigation which intrudes into the area of constitutionally protected rights
`of speech . . . that the State convincingly show a substantial relation between the information
`sought and a subject of overriding and compelling state interest.”).
`Second, a stay of proceedings pending appeal “would not result in undue delay.” Harville,
`2023 WL 4535476, at *1 (citation omitted). As an initial matter, any delay would not be “undue.”
`Id. (emphasis added) Because the Ninth Circuit’s decision would clarify the legal issues in the
`case, it would preserve judicial and party resources to wait for the Ninth Circuit’s decision.
`The current scheduling order in this case already contemplates some “delay.” Id. The par-
`ties jointly stipulated—and this Court ordered—that Defendant’s responsive pleading to
`
`3
`PLAINTIFF’S MOTION TO STAY PROCEEDINGS PENDING APPEAL
`
`

`

`
`
`Case 5:24-cv-07885-EJD Document 59 Filed 01/29/25 Page 5 of 6
`
`NetChoice’s Complaint is due “no later than 21 days following final resolution of the Motion for
`Preliminary Injunction – including any appellate proceedings.” ECF 15 at 5 (emphasis added). In
`other words, the schedule the parties agreed to months ago contemplated that an appeal could halt
`proceedings in this Court.
`Furthermore, both this Court and Defendant have concluded that NetChoice’s challenge to
`the Act’s age-assurance provisions are not ripe because they are effective January 1, 2027, and
`“the regulations governing age assurance have not yet been issued.” ECF 39 at 7; see ECF 18 at 7
`(“The requirements are not in effect until 2027, and their specifics are still to be determined.”).
`Although NetChoice disagrees, see, e.g., ECF 29 at 1-2; staying the litigation will also allow the
`Attorney General time to promulgate those regulations.
`Third, “it is efficient for [the court’s] docket and the fairest course for the parties to enter
`a stay of an action before it, pending resolution of [] proceedings which bear upon the case.”
`Harville, 2023 WL 4535476, at *1. The Court considers “the orderly course of justice measured
`in terms of the simplifying or complicating of issues, proof, and questions of law which could be
`expected to result from a stay.” Id. at *3 (quoting CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir.
`1962)).
`Here, the Ninth Circuit’s decision will [] provide guidance to this Court,” id. (citation omit-
`ted); about what the Court has called “novel, difficult, and important” questions of constitutional
`law, ECF 47 at 4; see Roffman v. Rebbl, Inc., 2023 WL 4186011, at *2 (N.D. Cal. June 26, 2023)
`(staying litigation when “the Ninth Circuit’s decision would provide guidance on two of [] three
`theories of liability,” even “if they do not resolve all of [the] claims”). That is especially true after
`the Ninth Circuit granted NetChoice an injunction pending appeal, applying the same “standard
`for preliminary injunction in district court.” ECF 58.
`CONCLUSION
`Accordingly, NetChoice respectfully requests this Court stay proceedings while
`NetChoice’s appeal is pending—including any future Supreme Court review.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`4
`PLAINTIFF’S MOTION TO STAY PROCEEDINGS PENDING APPEAL
`
`

`

`
`
`Case 5:24-cv-07885-EJD Document 59 Filed 01/29/25 Page 6 of 6
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
` *
`
`
`
`
`/s/ Steven P. Lehotsky
`Steven P. Lehotsky*
`Scott A. Keller*
`Jeremy Evan Maltz*
`Shannon Grammel*
`LEHOTSKY KELLER COHN LLP
`200 Massachusetts Avenue, NW,
` Suite 700
`Washington, DC 20001
`(512) 693-8350
`scott@lkcfirm.com
`steve@lkcfirm.com
`jeremy@lkcfirm.com
`shannon@lkcfirm.com
`
`
`
`
`DATED: January 29, 2025
`
`
`Bradley A. Benbrook (SBN 177786)
`Stephen M. Duvernay (SBN 250957)
`BENBROOK LAW GROUP, PC
`701 University Avenue, Suite 106
`Sacramento, CA 95825
`Telephone: (916) 447-4900
`brad@benbrooklawgroup.com
`steve@benbrooklawgroup.com
`
`Joshua P. Morrow*
`LEHOTSKY KELLER COHN LLP
`408 W. 11th Street, 5th Floor
`Austin, TX 78701
`(512) 693-8350
`josh@lkcfirm.com
`
`Jared B. Magnuson*
`LEHOTSKY KELLER COHN LLP
`3280 Peachtree Road NE
`Atlanta, GA 30305
`(512) 693-8350
`jared@lkcfirm.com
`
` Admitted pro hac vice.
`
`Attorneys for Plaintiff NetChoice
`
`5
`PLAINTIFF’S MOTION TO STAY PROCEEDINGS PENDING APPEAL
`
`