Plaintiffs now assert what are denominated as twelve separate causes of action: RICO violations (Counts I and II), Breach of Contract (Count III), Breach of Implied Contract (Count IV), Fraud (Count V), Deceit (Count VI), Unjust Enrichment (Count VII), Penguin Liable as Principal (VIII), Punitive Damages (Count lX), 9 Unjust Enrichment by MC (Count X), Accounting and Injunctive Relief (Count XI), and Class Act (CountXII). Defendants argue, interalia, that Plaintiffs' claims are barred by the First Amendment, and that the Complaint fails to (1) plead fraudulent activity with particularity, (2) meet plausibility standards, (3) plead necessary elements, and (4) allege cognizable injuries.
Standard of Review
Fed. R. Civ. P. 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to give a defendant a faif notice of what the claim is and the grounds upon which it is based. "All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party" in assessing a motion to dismiss for failure to state a claim under Rule 12(b)(6). Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. ] 996).
A two-step analytical process for determining the sufficiency of pleadings under Rule 8 was established by the United States Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). In step one, the court determines which allegations are merely "labels and conclusions," "formulaic recitations," or "naked assertion[s]." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555, 557). The reviewing court need not accept the truth of such allegations. Id. Step two requires the court to determine whether the remaining allegations, which the court must accept as true, "plausibly give rise to an entitlement to relief." Iqbal, 550 U.S. at 679. The reviewing court, in determining plausibility, is required to engage in a context-specific task drawing on the court's "judicial experience and common sense." Iqbal, 550 U.S. at 679. Satisfaction of this pleading requirement does not oblige the pleader to show probability of entitlement to relief, just plausibility.
Rule 9(b) requires a party alleging fraud to "state with particularity the circumstances constituting fraud or mistake, [while] [m]alice, intent, knowledge, and other conditions of a person's mind may be alleged generally." Iqbal acknowledged that Rule 9(b) allows "a person's mind to be alleged generally," but does "not require courts to credit a complaint's conclusory statements without reference to its factual context." Iqbal, 556 U.S. at 686. "Rule 9 ... excuses a party from pleading discriminatory intent under an elevated pleading standard," but does not enable evasion of"the less rigid ... strictures ofRule 8." Iqbal, 556 U.S. at 686-87.
A. Counts I and II - RICO Claims