1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 THOMAS FAN, Case No. 23-cv-05069-SI

8 Plaintiff, ORDER DENYING DEFENDANT NBA

PROPERTIES’ MOTION TO DISMISS

9 v. SECOND AMENDED COMPLAINT

AND GRANTING MOTIONS TO FILE

10 NBA PROPERTIES INC., et al., UNDER SEAL 11 Defendants. Re: Dkt. Nos. 59, 60, 61, 66, 69

12 Now before the Court is defendant NBA Properties Inc.’s motion to dismiss plaintiff’s 13 second amended complaint. Dkt. No. 59. The Court determined that this matter was suitable for 14 resolution without oral argument and VACATED the hearing on this matter pursuant to Civil Local 15 Rule 7-1(b). For the reasons set forth below, defendant’s motion is DENIED. In addition, the Court 16 GRANTS the parties’ administrative motions to seal. 17 Plaintiff Thomas Fan brings this putative class action against NBA Properties, Inc. (“NBA 18 Properties”), and Dapper Labs, Inc. (“Dapper”), asserting claims under the Video Privacy Protection 19 Act (“VPPA”), 18 U.S.C. § 2710, and California Civil Code § 1799.3. The second amended 20 complaint (“SAC”) alleges that defendants sell blockchain video clips known as “Moments” on 21 www.nbatopshot.com, and that defendants collected and shared highly sensitive and specific 22 personal information about NBA Top Shot users’ video consumption habits without their informed 23 written consent. SAC ¶¶ 1, 5 (Dkt. No. 50). 24 The Court previously granted defendants’ motion to dismiss Fan’s first amended complaint 25 as to defendants NBA Properties and National Basketball Players Association, with leave to amend 26 to amplify the joint venture allegations. Dkt. No. 48 (“Order”) at 2. The Court denied the motion 27 as to Dapper, holding that Fan stated a claim under the VPPA and California Civil Code § 1799.3 1 because, inter alia, NBA Top Shot is “video tape service provider” under the VPPA and that it 2 “provide[s] video recording sales” under § 1799.3. Id. at 6. 3 On April 5, 2024, Fan filed the SAC asserting claims against defendants Dapper and NBA 4 Properties. The SAC alleges that NBA Top Shot is either a “joint venture or partnership” and 5 defendants are “partners” in the NBA Top Shot “[e]nterprise,” and includes new joint venture 6 allegations based upon a publicly recorded conversation between Dapper’s CEO, Roham 7 Gharegouzlou, and NBA Commissioner Adam Silver, at NBA Con 2023; a “pop-up” on the 8 nbatopshop.com website; and the license agreements between the parties. Id. ¶¶ 52-66.1 The SAC 9 alleges that NBA Properties has control over various aspects of the NBA Top Shot venture, shares 10 in its profits, has an ownership interest in the venture, and that the conduct of the parties 11 demonstrates that the parties created a joint venture or partnership. Id. 12 NBA Properties contends that the joint venture/partnership allegations are insufficient, and 13 that for the same reason, Fan lacks standing to bring a claim against NBA Properties. To create a 14 joint venture under California law,2 the members must: (1) “have joint control over the venture (even 15 though they may delegate it)”; (2) “share the profits of the undertaking”; and (3) “each have an 16 ownership interest in the enterprise.” Unruh-Haxton v. Regents of Univ. of Cal., 162 Cal. App. 4th 17 343, 370 (2008). “Whether a joint venture actually exists depends on the intention of the parties.” 18 Id.; see also Holmes v. Lerner, 74 Cal. App. 4th 442, 454 (1999) (elements of joint venture or 19 partnership “should be viewed in the light of the crucial factor of the intent of the parties revealed 20 in the terms of their agreement, conduct, and the surrounding circumstances when determining 21 whether a partnership exists”). 22 The Court concludes that Fan’s allegations are sufficient as a pleading matter and that 23 whether the parties have in fact created a joint venture or partnership is a factual question that must 24 1 Although the first amended complaint did not contain allegations based upon the license 25 agreements, the parties’ briefing on the prior motion to dismiss did discuss those agreements.

26 2 The parties’ briefing cites both California and New York law, and the parties appear to agree that the elements of a joint venture are largely the same under either law. NBA Properties 27 also states that it reserves the choice-of-law question. Mot. at 7 n.1. In resolving the current motion, 1 be determined on a full factual record. “Where evidence is in dispute the existence or non-existence 2 || ofajoint venture is a question of fact to be determined by the jury.” April Enterprises, Inc. v. KTTV, 3 147 Cal. App. 3d 805, 819-20 (1983). The Court notes that many, if not most, of the cases cited by 4 || the parties were decided on summary judgment or after a trial. NBA Properties emphasizes that the 5 Court previously stated that allegations based upon the license agreements, without more, would not 6 || be sufficient because the license agreements disclaim an intent to create a joint venture. However, 7 || the SAC does contain new allegations aside from those based on the license agreements, and Fan’s 8 opposition briefing cites authority for the proposition that a joint venture or partnership can be 9 created even where the parties have expressly disclaimed an intent to do so. See, e.g., Celador □□□□□ 10 || Ltd. v. Walt Disney Co., 347 F. Supp. 2d 846, 853-54 (C.D. Cal. 2004). 11 Accordingly, the Court finds that Fan has alleged a basis for holding NBA Properties liable 12 and has standing to bring claims against NBA Properties, and DENIES defendant’s motion to 5 13 || dismiss plaintiff's second amended complaint. 14

IT IS SO ORDERED.

16 = 17 Dated: July 2, 2024

SUSAN ILL N

2 18 United States District Judge 19 20 21 22 23 24 25 26 27 28