OpenAI: The Lawsuit Should Be Dismissed Because Plaintiffs Lack Article III Standing

MEMORANDUM OF POINTS AND AUTHORITIES

IV. ARGUMENT

A. The Complaint Fails for Reasons Applicable to All Causes of Action.

1. Plaintiffs Lack Article III Standing to Assert Their Claims.

The complaint must be dismissed because Plaintiffs have failed to sufficiently plead that they suffered a cognizable injury to satisfy “the irreducible constitutional minimum of standing” under Article III. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

The plaintiff bears the burden of establishing standing “for each claim [s]he seeks to press and for each form of relief that is sought.” Davis v. FEC, 554 U.S. 724, 734 (2008) (cleaned up).

To satisfy Article III standing, a plaintiff must allege: (1) an injury in fact that is concrete and particularized, as well as actual or imminent; (2) that the injury is fairly traceable to the challenged action; and (3) that it is likely (not merely speculative) that injury will be redressed by a favorable decision. Id. at 733. A plaintiff does not satisfy the standing requirement “[w]hen speculative inferences are necessary . . . to establish [the] injury.”

Johnson v. Weinberger, 851 F.2d 233, 235 (9th Cir. 1988) (cleaned up). In a putative class action, the named plaintiffs seeking to represent the class must establish that they personally have standing to bring the action.

See Lewis v. Casey, 518 U.S. 343, 357 (1996) (“[N]amed plaintiffs who represent a class must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.”) (cleaned up); Birdsong v. Apple, Inc., 590 F.3d 955, 960 (9th Cir. 2009) (affirming dismissal of putative class action brought by iPod users for lack of standing where “[t]he risk of injury the plaintiffs allege is not concrete and particularized as to themselves”); see also Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018, 1022-23 (9th Cir. 2003) (vacating class certification where named plaintiff lacked standing to assert a claim under state law).

Here, the complaint contains no allegation or explanation of whether and how any Plaintiff was harmed. Plaintiffs rely entirely on generic descriptions of the alleged practices of the OpenAI Entities to support their theory of injury. (See, e.g., Compl. ¶¶ 90-91.)

Plaintiffs do not allege that Copilot or Codex reproduced their code or disclosed their personal information. Instead, the complaint describes the purported reproduction of the code or personal information of others.

(See Compl. ¶¶ 48-63, 68-77, 87-89.) Plaintiffs have not provided a single example nor alleged any injury that is concrete and particularized as to them. This is insufficient under Article III. See, e.g., Alsheikh v. Lew, No. 3:15-CV-03601-JST, 2016 WL 1394338, at *2-3 (N.D. Cal. Apr. 7, 2016) (dismissing claim for lack of Article III standing where plaintiff did not “identif[y] any particular injury that he has suffered”).