BGC, Inc. v. Bryant, No. 3:2022cv04801 - Document 33 (N.D. Cal. 2022)
Court Description: ORDER GRANTING PLAINTIFF'S RENEWED MOTION FOR A TEMPORARY RESTRAINING ORDER. Signed by Judge Jacqueline Scott Corley on September 23, 2022. Status Conference set for 9/28/2022 at 2:00 p.m. by Zoom videoconference before Judge Jacqueline Scott Corley. (ahm, COURT STAFF) (Filed on 9/23/2022)
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BGC, Inc. v. Bryant Doc. 33 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BGC, INC., Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No. 22-cv-04801-JSC v. KIMBERLY BRYANT, Defendant. ORDER GRANTING PLAINTIFF’S RENEWED MOTION FOR A TEMPORARY RESTRAINING ORDER Re: Dkt. No. 27 12 13 Plaintiff, BGC, Inc., alleges that its founder and former CEO, Kimberly Bryant, hijacked 14 the company’s website following her removal by the Board of Directors on August 12, 2022. The 15 Court previously denied BGC’s motion for a temporary restraining order (TRO) finding that it had 16 not shown a likelihood of success on the merits of its legal claims as currently pled. (Dkt. No. 23.) 17 BGC thereafter filed an amended complaint and renewed TRO alleging that after her removal Ms. 18 Bryant (1) rerouted the company domain names to a new domain and website, and (2) deleted and 19 altered data related to the BGC website, rendering BGC’s website nonfunctional. (Dkt. Nos. 26, 20 27.) After carefully considering the parties’ briefs, the relevant legal authority, and the 21 supplemental evidentiary submissions (Dkt. Nos. 31, 32), the Court concludes that oral argument 22 is unnecessary, see Civ. L.R. 7-1(b), and GRANTS Plaintiff’s TRO. BGC has demonstrated the 23 existence of serious legal questions, faces irreparable harm, and the balance of equities and public 24 interest tip sharply in its favor. 25 26 BACKGROUND Ms. Bryant founded BGC in 2011 to advance equal representation for Black women in the 27 tech sector. (First Amended Complaint, Dkt. No. 26 at ¶ 1.) Since its founding, “BGC has 28 worked to build pathways for Black girls to enter the tech sector as builders and creators by Dockets.Justia.com United States District Court Northern District of California 1 introducing them to skills in computer programming and technology” through “one day 2 workshops, enrichment activities, summer camps, and code clubs.” (Dkt. No. 27-3, Mohammed 3 Decl. at ¶ 2.) The BGC website, which was located at the domains names <blackgirlscode.com>, 4 <blackgirlscode.org>, <blackgirlscode.site> and <blackgirlscode.net>, (hereafter “the original 5 BGC domain names”), is “integral to its operation and mission.” (Dkt. No. 26 at ¶¶ 2, 12.) The 6 website is used to allow “Black girls to enroll in programs and services, promotes upcoming 7 events, provides news relevant to its intended beneficiary class, contains information regarding its 8 various chapters and how to get involved, and allows visitors to make donations or volunteer, both 9 of which BGC relies on to operate.” (Id. at ¶ 12.) In addition, over the past ten years, the original 10 BGC domain names, which “utilize BGC’s Registered Trademark, have played an important role 11 in building and running the BGC Website,” and “growing and maintaining BGC’s brand identity 12 and online presence, and facilitating interactions with the community, intended beneficiaries, and 13 donors.” (Id. at ¶ 14.) 14 Ms. Bryant registered the original BGC domain names with Register.com in 2011 and 15 shortly thereafter launched “the first iteration of the BGC Website.” (Id. at ¶¶ 25, 27.) She 16 incorporated BGC the following year. (Id. at ¶ 26.) Since March 25, 2011, the original “BGC 17 Domain Names (blackgirlscode.com, blackgirlscode.org, and blackgirlscode.net) have only been 18 used to host the BGC Website.” (Id. at ¶ 28.) “The BGC Website has always reflected the BGC 19 name, logo, and mission statement, and has always exclusively described itself as the official page 20 of BGC.” (Id. at ¶ 29.) 21 BGC alleges that on August 17, 2022, Ms. Bryant logged into BGC’s Bluehost.com 22 account (Bluehost is the web hosting server BGC used to host the BGC website) and “altered data 23 and deleted two user accounts from the system which caused substantial damages to the BGC 24 Website.” (Id. at 9.) Further, “[i]mmediately after deleting data in BGC’s Bluehost account, 25 Bryant caused BGC’s Domain Names, which are hosted on Register.com, to be re-routed so that 26 they directed to Bryant’s own website located at <saveblackgirlscode.com>.” (Id. at ¶ 10.) 27 On August 22, 2022, BGC filed this action alleging claims for conversion, and violation of 28 the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030, and the California Computer Data 2 1 Access and Fraud Act (CCDAFA), Cal. Penal Code § 502. (Dkt. No. 1 at ¶¶ 38-57.) The 2 following day, BGC filed a TRO. After briefing and a hearing, the Court denied the TRO because 3 BGC had not shown a likelihood of success on the merits of the claims as they were pled. (Dkt. 4 No. 23.) The Court, however, granted BGC leave to file an amended complaint to allege claims 5 based on the evidence developed after the TRO was filed. BGC has now filed a First Amended Complaint pleading claims for conversion, violation United States District Court Northern District of California 6 7 of the CFAA, and violation of the CCDAFA based on allegations that Ms. Bryant (1) intentionally 8 accessed BGC’s Bluehost server and without permission altered and/or deleted critical data 9 associated with BGC’s website, (Dkt. No. 26 at ¶¶ 64, 71, 81), and (2) logged into BGC’s 10 Register.com account and rerouted the original BGC domain names to her own website, (Id. at ¶¶ 11 65, 72, 86). Plaintiff filed a renewed TRO with its First Amended Complaint. (Dkt. No. 27.) The 12 Court directed Ms. Bryant to file a response. (Dkt. No. 28.) Upon receipt of Ms. Bryant’s 13 response, the Court requested further evidence on the question of irreparable harm. (Dkt. No. 30.) 14 Both parties submitted supplemental declarations in response to the Court’s Order. (Dkt. Nos. 31, 15 32.) 16 17 DISCUSSION The standard for issuing a TRO is identical to the standard for a preliminary injunction. 18 Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A 19 court considers four factors before granting preliminary relief: (1) whether the applicant is likely 20 to succeed on the merits of the action; (2) whether the applicant is likely to suffer irreparable harm 21 in the absence of preliminary relief; (3) whether the balance of the equities tip in the applicant’s 22 favor; and (4) that an injunction is in the public interest. Doe v. Reed, 586 F.3d 671, 676 (9th Cir. 23 2009) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). An adequate 24 showing of irreparable harm is the “single most important prerequisite for the issuance of a 25 [TRO].” Universal Semiconductor, Inc. v. Tuoi Vo, No. 5:16-CV-04778-EJD, 2016 WL 9211685, 26 at *2 (N.D. Cal. Nov. 29, 2016) (quoting Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112, 114 (2d 27 Cir. 2005)). A TRO is an “extraordinary remedy that may only be awarded upon a clear showing 28 that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. 3 1 BGC contends that a TRO is necessary to avoid irreparable injury. While BGC has 2 launched a new website using the domain name www.wearebgc.com, it insists that “[w]ithout the 3 ability to utilize [the original] BGC’s Domain Names – which are well established and known in 4 the community, have built up over a decade of good will, Google search priority, and ‘search 5 engine optimization’ or ‘SEO’ – the community, beneficiary class, and BGC donors cannot easily 6 find BGC on the internet.” (Dkt. No. 26 at ¶ 15.) BGC thus insists that unless the original BGC 7 domain names are rerouted to BGC’s new website, members of the public will not be able find 8 BGC’s new website and enroll in BGC programs, apply for scholarships, learn about events, 9 volunteer, make donations, or learn about BGC and its chapters. (Dkt. No. 27-3, Mohammed Dec. 10 at ¶¶ 4-6.) It is undisputed that Defendant has rerouted the original BGC domain names to her own United States District Court Northern District of California 11 12 website. (Dkt. No. 13-1 at ¶ 15.) It is also undisputed that when you search for “black girls code” 13 on Google, the new BGC website does not come up in the first 15 pages of search results.1 (Dkt. 14 No. 31 at ¶¶ 3-4.) Given this evidence, BGC has met its burden of demonstrating a likelihood of 15 irreparable harm absent return of the original BGC domain names. As Ms. Bryant concedes, “if a 16 member of the public wants information about BGC, they simply type ‘black girls code’ into any 17 search engine and immediately engage with many of BGC’s online presences.” (Dkt. No. 29 at 9.) 18 The evidence shows, however, that if a member of the public types “black girls code” into Google, 19 they are not able to “immediately engage with many of BGC’s online presences.” (Id.) If 20 members of the public cannot find BGC, it will lose goodwill, the ability to recruit girls and 21 volunteers to its programs, and the ability to fulfill its mission. See Rent-A-Ctr., Inc. v. Canyon 22 Television & Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991) (finding that while 23 “economic injury alone does not support a finding of irreparable harm,…intangible injuries, such 24 as damage to ongoing recruitment efforts and goodwill, qualify as irreparable harm”). This evidence also shows that balance of hardships and public interest tip sharply in 25 26 27 28 1 Ms. Bryant does not dispute that the new website does not appear in Google search results; instead, she argues that BGC’s social media profiles on Instagram and Facebook appear. (Dkt. No. 32.) This result does not eliminate the harm from the website not appearing as not everyone uses social media. 4 United States District Court Northern District of California 1 BGC’s favor. BGC mission is to “build pathways for Black girls to enter the tech sector as 2 builders and creators by introducing them to skills in computer programming and technology” and 3 to this end offers “workshops, enrichment activities, summer camps, and code clubs.” (Id.) Ms. 4 Bryant, for her part, has not identified any equities that weigh in her favor. In fact, she concedes 5 that the Court’s analysis in its order on Plaintiff’s first TRO finding that the equities sharply 6 weighed in BGC’s favor was “appropriate” given concerns that BGC could not “solicit donations 7 and engage with the general public.” (Dkt. No. 29 at 17.) Because these concerns remain given 8 that a Google search for “black girls code” does not direct members of the public to BGC’s new 9 website, the Court’s initial finding that the equities sharply favor BGC remains the same. 10 Finally, BGC has shown the existence of serious legal questions. The question of who 11 owns the original BGC domain names presents a novel legal issue that this Court will have to 12 decide. While the Ninth Circuit has held that domain name registrants “have property rights in 13 their domain names,” Kremen v. Cohen, 337 F.3d 1024, 1029 (9th Cir. 2003), neither party has 14 cited a case involving the issue of domain name ownership where the original domain name 15 registrant formed a company after purchasing the domain name and the domain name was only 16 ever used to host the company’s website and information, including the company’s registered 17 trademark, and not the registrant’s personal information or content. This novel question presents a 18 serious legal issue that is a predicate to each of Plaintiff’s claims for relief. See Romero v. Securus 19 Techs., Inc., 383 F. Supp. 3d 1069, 1074 (S.D. Cal. 2019) (“District courts in this circuit often find 20 that serious legal questions are presented when novel issues or matters of first impression are 21 raised” and collecting cases). 22 In sum, the Court finds that the extraordinary remedy of a TRO is appropriate given the 23 likelihood of irreparable harm to BGC, the balance of equities and public interest tip sharply in 24 BGC’s favor, and there are serious legal questions underlying Plaintiff’s conversion, CFAA, and 25 CCDAFA claims. 26 27 28 CONCLUSION For the reasons stated above, the Court GRANTS BGC’s TRO. By 5:00 p.m. Friday, September 23, 2022, Defendant is ORDERED to: 5 1 1. Direct the DNS configuration to point the original BGC domain names to the new 2 BGC website (www.wearebgc.org) and ensure the new BGC website remains 3 accessible through the original BGC domain names unless and until ordered 4 otherwise; 5 6 BGC to facilitate the operation of the original BGC domain names and website; 7 and 8 9 10 11 United States District Court Northern District of California 2. Provide Defendant’s administrative credentials to the Register.com account to 3. Provide BGC any other administrative credentials to any accounts necessary in the operation of the original BGC domain names. 4. Defendant may not alter the DNS configuration or content of the original BGC domain names and website. 12 No bond is required. See Connecticut Gen. Life Ins. Co. v. New Images of Beverly Hills, 321 F.3d 13 878, 882 (9th Cir. 2003) (“the bond amount may be zero if there is no evidence the party will 14 suffer damages from the injunction”). 15 The Court sets a status conference for September 28, 2022 at 2:00 p.m. via Zoom video. 16 The parties should be prepared to discuss next steps, including preliminary injunction briefing or 17 whether preliminary injunction proceedings should be combined with trial on the merits. See Fed. 18 R. Civ. P. 65(a)(2). ADR options will also be addressed. Given the short time frame, no joint 19 case management conference statement is required. 20 21 IT IS SO ORDERED. Dated: September 23, 2022 22 23 JACQUELINE SCOTT CORLEY United States District Judge 24 25 26 27 28 6
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