Coronavirus Reporter v. Apple, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CORONAVIRUS REPORTER; No. 22-15166

CALID, INC.; PRIMARY

PRODUCTIONS LLC, D.C. No. 3:21-cv-

05567-EMC

Plaintiffs-Appellants,

and OPINION

JEFFREY D. ISAACS, Dr.,

Plaintiff,

v.

APPLE, INC.,

Defendant-Appellee,

and

FEDERAL TRADE COMMISSION,

Defendant.

2 CORONAVIRUS REPORTER V. APPLE, INC.

JEFFREY D. ISAACS, Dr., No. 22-15167

Plaintiff-Appellant, D.C. No. 3:21-cv-

and 05567-EMC

CORONAVIRUS REPORTER;

CALID, INC.; PRIMARY

PRODUCTIONS LLC,

Plaintiffs,

v.

APPLE, INC.,

Defendant-Appellee,

and

FEDERAL TRADE COMMISSION,

Defendant.

Appeal from the United States District Court

for the Northern District of California

Edward M. Chen, District Judge, Presiding

Argued and Submitted March 29, 2023

San Francisco, California

Filed November 3, 2023

CORONAVIRUS REPORTER V. APPLE, INC. 3

Before: Ronald M. Gould, Marsha S. Berzon, and Sandra

S. Ikuta, Circuit Judges.

Opinion by Judge Gould

SUMMARY *

Antitrust

The panel affirmed the district court’s dismissal, for

failure to state a claim, of an antitrust action against Apple,

Inc., alleging monopolist operation of the Apple App Store.

The panel held that appellants failed to state an antitrust

claim under Section 1 or Section 2 of the Sherman Act,

arising from Apple’s rejection of their apps for distribution

through the App Store, because they did not sufficiently

allege a plausible relevant market, either for their rejected

apps as compared to other apps, or for apps in general.

The panel held that appellants failed to state a claim for

breach of contract under California law because they did not

identify relevant specific provisions of Apple’s Developer

Agreement or Developer Program License Agreement or

show that Apple breached a specific provision.

Appellants also failed to state a claim under the

Racketeer Influenced and Corrupt Organizations Act or for

fraud.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 CORONAVIRUS REPORTER V. APPLE, INC.

COUNSEL

Keith Mathews (argued), American Wealth Protection,

Manchester, New Hampshire; Stephan M. Kernan, The

Kernan Law Firm, Beverly Hills, California; for Plaintiffs-

Appellants.

Jeffrey D. Isaacs (argued), West Palm Beach, Florida, pro se

Petitioner.

Julian W. Kleinbrodt (argued) and Rachel S. Brass, Gibson

Dunn & Crutcher LLP, San Francisco, California; Cynthia

E. Richman, Zachary B. Copeland, and Harry R.S. Phillips,

Gibson Dunn & Crutcher LLP, Washington, D.C.; Mark A.

Perry, Weil Gotshal & Manges LLP, Washington, D.C.; for

Defendants-Appellee.

OPINION

GOULD, Circuit Judge:

Plaintiffs-Appellants Coronavirus Reporter, CALID,

Inc., Primary Productions LLC, and Dr. Jeffrey D. Isaacs

sued Defendant-Appellee Apple for its allegedly monopolist

operation of the Apple App Store. The district court

dismissed the claims with prejudice for failure to state a

claim under Federal Rule of Civil Procedure 12(b)(6) and

denied the remaining motions as moot. Plaintiffs-Appellants

appealed. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

CORONAVIRUS REPORTER V. APPLE, INC. 5

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2008, a year after launching the iPhone, Apple

introduced the App Store. In order to distribute apps on the

App Store, app developers must abide by the App Store

Review Guidelines (“the Guidelines”) and enter into two

agreements with Apple: the Developer Agreement and the

Developer Program License Agreement (“DPLA”). By

signing these agreements, app developers expressly

“understand and agree” that Apple has “sole discretion” to

reject apps. The Guidelines provide developers with the

standards Apple applies when it reviews apps.

Plaintiffs-Appellants developed a group of apps that they

sought to distribute on Apple’s App Store. Two of their

apps—Coronavirus Reporter and Bitcoin Lottery—were not

approved for distribution. The Coronavirus Reporter app

sought to collect “bioinformatics data” from users about

COVID-19 symptoms that the app would then share with

“other users and [unidentified] epidemiology researchers.”

The Coronavirus Reporter team allegedly included Dr.

Robert Roberts, a former cardiologist for NASA. Apple

rejected Coronavirus Reporter under Apple’s policy

requiring that any apps related to COVID-19 be submitted

by a recognized health entity such as a government

organization or medical institution.1 Apple rejected Bitcoin

Lottery, a blockchain app, under its policy “generally

block[ing] blockchain apps.”

Plaintiffs-Appellants brought claims against Apple for

antitrust violations pursuant to Sections 1 and 2 of the

1

Guidelines § 5.1.1(ix): “Apps that provide services in highly-regulated

fields (such as banking and financial services, healthcare, and air travel)

or that require sensitive user information should be submitted by a legal

entity that provides the services, and not by an individual developer.”

6 CORONAVIRUS REPORTER V. APPLE, INC.

Sherman Act, breach of contract, racketeering, and fraud,

challenging Apple’s allegedly monopolist operation of the

iPhone “App Store” through the “curation” and

“censor[ship]” of apps. Plaintiffs-Appellants assert that they

“seek to vindicate” the right of “the end users of Apple’s

iPhone” to “enjoy unrestricted use of their smartphones” to

run “innovative applications, written by third party

developers.”

The district court dismissed Plaintiffs-Appellants’ First

Amended Complaint (“FAC”) with prejudice on November

30, 2021. The district court dismissed Plaintiffs-Appellants’

antitrust claims because they did not allege a plausible

relevant market nor antitrust injury. The district court

likewise dismissed the claims for breach of contract,

racketeering, and fraud because the Plaintiffs-Appellants

failed to plead required elements for each. Accordingly, the

district court denied as moot Plaintiffs-Appellants’ two

preliminary injunction motions, Plaintiffs-Appellants’

“motion to strike” Apple’s motion to dismiss, and Plaintiffs-

Appellants’ Notices for Discovery of Apple executives and

FTC Chair Lina Khan, along with Defendant-Appellee’s

motion to quash these requests. The district court later

rejected Plaintiffs-Appellants’ motions for reconsideration.

Plaintiffs-Appellants appeal the district court’s dismissal

of their claims, as well as the denial of their motions for

reconsideration and for preliminary injunction.

II. STANDARDS OF REVIEW

We review de novo a district court’s grant of a motion to

dismiss under Rule 12(b)(6), “accepting all factual

allegations in the complaint as true and construing them in

the light most favorable to the nonmoving party.” Ebner v.

Fresh, Inc., 838 F.3d 958, 962 (9th Cir. 2016) (quoting

CORONAVIRUS REPORTER V. APPLE, INC. 7

Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1014

(9th Cir. 2012)). The complaint must “plausibly give rise to

an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662,

679 (2009). “Conclusory allegations and unreasonable

inferences” do not provide such a basis. Sanders v. Brown,

504 F.3d 903, 910 (9th Cir. 2007). A dismissal may be

affirmed on any proper ground that is supported by the

record. See Johnson v. Riverside Healthcare System, LP,

534 F.3d 1116, 1121 (9th Cir. 2008); Adams v. Johnson, 355

F.3d 1179, 1183 (9th Cir. 2004); Papa v. United States, 281

F.3d 1004, 1009 (9th Cir. 2002).

Although decisions by the district court on the substance

and merits of claims are reviewed de novo, see Ebner, 838

F.3d at 962, many matters that routinely come before a

district court are committed to the sound discretion of the

district court and reviewed for abuse of discretion. See e.g.,

Ordonez v. Johnson, 254 F.3d 814, 815 (9th Cir. 2001) (per

curiam) (dismissal with prejudice); Pom Wonderful LLC v.

Hubbard, 775 F.3d 1118, 1123 (9th Cir. 2014) (denial of a

preliminary injunction); Kerr v. Jewell, 836 F.3d 1048, 1053

(9th Cir. 2016) (denial of a motion for reconsideration), cert.

denied sub nom. Kerr v. Haugrud, 580 U.S. 1198 (2017); cf.

Ryan v. Editions Ltd. W., Inc., 786 F.3d 754, 759 (9th Cir.

2015) (denying leave to amend), cert. denied, 577 U.S. 876

(2015).

III. DISCUSSION

A. Antitrust claims

An antitrust claim brought pursuant to Section 1 of the

Sherman Act requires a plaintiff to show: “(1) the existence

of an agreement, and (2) that the agreement was in

unreasonable restraint of trade.” Aerotec Int’l, Inc. v.

Honeywell Int’l, Inc., 836 F.3d 1171, 1177–78 (9th Cir.

8 CORONAVIRUS REPORTER V. APPLE, INC.

2016) (quoting Am. Needle, Inc. v. Nat’l Football League,

560 U.S. 183, 189-90 (2010)); FTC v. Qualcomm Inc., 969

F.3d 974, 988 (9th Cir. 2020) (citing Ohio v. Am. Express

Co., 138 S. Ct. 2274, 2283 (2018)).

An antitrust claim brought pursuant to Section 2 of the

Sherman Act requires proving the following two elements:

“(1) the defendant has monopoly power in the relevant

market, and (2) the defendant has willfully acquired or

maintained monopoly power in that market.”

Dreamstime.com, LLC v. Google LLC, 54 F.4th 1130, 1137

(9th Cir. 2022) (citing United States v. Grinnell Corp., 384

U.S. 563, 570–71 (1966)). To meet the first element, a

plaintiff must “(1) define the relevant market, (2) establish

that the defendant possesses market share in that market

sufficient to constitute monopoly power, and (3) show that

there are significant barriers to entering that market.” Id.

The second element requires showing that the defendant

undertook anticompetitive conduct that harms the

competitive process as a whole, rather than the success or

failure of individual competitors. Id.; see also Brunswick

Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488–89

(1977).

“A threshold step in any antitrust case is to accurately

define the relevant market.” Qualcomm, 969 F.3d at 992.

For both Section 1 and Section 2 of the Sherman Act, a

relevant market defines “the field in which meaningful

competition is said to exist.” Image Tech. Servs., Inc. v.

Eastman Kodak Co., 125 F.3d 1195, 1202 (9th Cir. 1997).

Market definition is essential to any antitrust case because

“[w]ithout a definition of [the] market there is no way to

measure [the defendant’s] ability to lessen or destroy

competition.’” Am. Express, 138 S. Ct. at 2285 (quoting

Walker Process Equip., Inc. v. Food Mach. & Chem.

CORONAVIRUS REPORTER V. APPLE, INC. 9

Corp., 382 U.S. 172, 177 (1965) (alternations in original).

“The principle most fundamental to product market

definition is ‘cross-elasticity of demand’ for certain products

or services.” Kaplan v. Burroughs Corp., 611 F.2d 286, 291

(9th Cir. 1979). Cross-elasticity of demand refers to the

extent to which consumers view two “products [as] be[ing]

reasonably interchangeable” or substitutable for one another.

Gorlick Distrib. Ctrs., LLC v. Car Sound Exhaust Sys., Inc.,

723 F.3d 1019, 1025 (9th Cir. 2013) (citing Brown Shoe Co.

v. United States, 370 U.S. 294, 325 (1962)). Products or

services that are “reasonably interchangeable” should be

considered as being in the same market for the purpose of an

antitrust claim. Kaplan, 611 F.2d at 291–92 (citing U.S. v.

E.I. DuPont De Nemous & Co., 351 U.S. 377 (1956)). “A

relevant market contains both a geographic component and

a product or service component.” Epic Games, Inc. v. Apple,

Inc., 67 F.4th 946, 975 (9th Cir. 2023) (citing Hicks v. PGA

Tour, Inc., 897 F.3d 1109, 1120 (9th Cir. 2018)). Courts also

consider the “practical indicia” of a market, including

industrial or public recognition of a market as a separate

entity or sensitivity to price changes. Id. at 976 (citing

Brown Shoe Co., 370 U.S. at 325).

A relevant market can be an aftermarket in which

demand depends entirely upon prior purchases in a

foremarket. Id. (citing Eastman Kodak Co. v. Image Tech.

Servs., Inc., 504 U.S. 451, 482 (1992) and Newcal Indus.,

Inc. v. Ikon Office Sol., 513 F.3d 1038, 1048 (9th Cir. 2008)).

However, such a market generally shows that the defendant

exploited consumers’ unawareness of the restrictions on the

aftermarket and must still show the cross-elasticity required

to define a market. Id.

10 CORONAVIRUS REPORTER V. APPLE, INC.

The relevant market can also be a two-sided market, with

consumers on both sides of a platform. 2 PLS.Com, LLC v.

Nat’l Ass’n of Realtors, 32 F.4th 824, 837–39 (9th Cir.

2022); see, e.g., Epic Games, 67 F.4th at 985 (discussing the

“two-sided market for mobile-game transactions,” in which

the relevant consumers are both game developers and users).

Under these circumstances, an antitrust plaintiff must show

anticompetitive impact on the “market as a whole.” Id. at

839 (quoting Am. Express, 138 S. Ct. at 2287).

Here, Plaintiffs-Appellants have not adequately defined

the relevant market. Plaintiffs-Appellants’ FAC alleged in

scattergun fashion that there were at least fifteen “relevant

markets” pertinent to its antitrust claims but made no effort

at all to define the markets or to distinguish them from one

another. 3 For example, Plaintiffs-Appellants did not clarify

2

“[A] two-sided platform offers different products or services to two

different groups who both depend on the platform to intermediate

between them.” PLS.Com, LLC, 32 F.4th at 837 (quoting Am. Express

Co., 138 S. Ct. at 2280). In American Express, the Supreme Court gave

two examples of two-sided platforms: credit card companies and

newspapers. “Credit card companies, the Court explained, sell credit to

consumers on one side of the market and sell transaction-processing

services to merchants on the other side of the market. Newspapers are

also ‘arguably’ two-sided platforms: they sell advertising space to

advertisers and news to subscribers.” Id. (citing Am. Express, 138 S. Ct.

at 2280, 2286).

3

Plaintiffs-Appellants’ alleged “relevant markets” are: (1) a

“Smartphone Enhanced National Internet Access Devices” market; (2) a

“smartphone market”; (3) a “single-product iOS Smartphone Enhanced

Internet Access Device” market; (4) “[t]he iOS market”; (5) the “market

for smartphone enhanced commerce and information flow (devices and

apps) transacted via the national internet backbone”; (6) the “institutional

app market”; (7) the “iOS institutional app market”; (8) the “iOS notary

stamps” market; (9) the “iOS onboarding software” market; (10) the

market for access rights to the iOS userbase; (11) the “national

CORONAVIRUS REPORTER V. APPLE, INC. 11

whether the markets that Plaintiffs-Appellants identified are

completely different from one another or whether they

overlap. Plaintiffs-Appellants later impermissibly tried

through a Motion to Strike to narrow their relevant markets

to “two foremarkets” and “four downstream markets,” but

our “[r]eview is limited to the complaint.” Lee v. City of Los

Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (quoting

Cervantes v. City of San Diego, 5 F.3d 1273, 1274 (9th

Cir.1993)).

Even if we were to review the narrower set of markets

posited in Plaintiffs-Appellants’ Motion to Strike, the

alleged markets lack sufficient clarity to state an antitrust

claim plausibly. See Am. Express, 138 S. Ct. at 2285. The

FAC does not attempt to demonstrate the cross-elasticity of

iOS end users’ demand either for Plaintiffs-Appellants’

rejected apps as compared to other apps, or for apps in

general, as it must. See Kaplan, 611 F.2d at 291-92. The

FAC fails to draw the market’s boundaries to “encompass

the product at issue as well as all economic substitutes for

the product.” Hicks, 897 F.3d at 1120 (quoting Newcal, 513

F.3d at 1045).

Additionally, the Plaintiffs-Appellants allege

downstream markets in a manner that implies that the Apple

App Store’s apps constitute their own market, which

amounts to an allegation of a single-brand market. This

allegation fails because Plaintiffs-Appellants did not allege

the prerequisites for a single-brand market. For example,

Plaintiffs-Appellants do not demonstrate that iOS end

consumers lacked awareness that buying an iPhone

smartphone app distribution market”; (12) the “iOS App market”; (13)

the “US iOS Device App market”; (14) the “market of COVID startups”;

and (15) “the App Market.”

12 CORONAVIRUS REPORTER V. APPLE, INC.

constrains which apps would be available to them through

the App Store. See Epic Games, 67 F.4th at 976–77 (“[T]o

establish a single-brand aftermarket, a plaintiff must show

. . . the challenged aftermarket restrictions are ‘not generally

known’ when consumers make their foremarket purchase.”).

Nor do Plaintiffs-Appellants demonstrate that iOS end users

would, if they could do so more readily, obtain apps through

means other than Apple’s App Store due to cost sensitivity

or for other reasons. See id. at 976–77 (“[T]o establish a

single-brand aftermarket, a plaintiff must show . . .

‘significant’ monetary or non-monetary switching costs

exist.”). To the extent that Plaintiffs-Appellants attempt to

define a two-sided platform market, they fail to properly

allege a relevant market (that is, a category of transactions

between developers and consumers on a two-sided

platform), given their reference to a broader market for

smartphones and the corresponding ability to access apps

outside of the Apple App Store’s two-sided platform. See

id. at 976, 985.

Because Plaintiffs-Appellants do not meet the threshold

step of defining a relevant market, we reject their antitrust

claims and need not proceed further with the analysis.

Failing to define a relevant market alone is fatal to an

antitrust claim. See Qualcomm, 969 F.3d at 992. Without a

defined relevant market in terms of product or service, one

cannot sensibly or seriously assess market power. See Epic

Games, 67 F.4th at 975.

Because the Plaintiffs-Appellants did not define the

relevant market, it follows that they could not, and did not,

establish that the Defendant-Appellee created an agreement

that unreasonably restrained trade, as required for a Section

1 claim. See Aerotec Int’l, 836 F.3d at 1177–78; Qualcomm,

969 F.3d at 988. It also follows that they could not, and did

CORONAVIRUS REPORTER V. APPLE, INC. 13

not, establish that the Defendant-Appellee possesses a

market share in a relevant market sufficient to constitute

monopoly power, nor did they show that there were existing

barriers to entry to that market, as required for a Section 2

claim. See Dreamstime.com, 54 F.4th at 1137. 4

Further, Plaintiffs-Appellants did not demonstrate that

the Defendant-Appellee undertook anticompetitive conduct

in that market sufficient to harm the competitive process as

a whole. See id.; see also Brunswick, 429 U.S. at 489. Two

of Plaintiffs-Appellants’ five apps did not get approved for

distribution for reasons explicitly set out in the Developer

Agreement and the DPLA. Antitrust law does not seek to

punish economic behavior that benefits consumers. See

Dreamstime.com, 54 F.4th at 1137. Disapproval of these

two apps on grounds ostensibly designed to protect

consumers, absent factual allegations to believe that these

disapprovals occurred for pretextual reasons, does not

suffice to demonstrate anticompetitive conduct. Further,

Plaintiffs-Appellants have not explained why or how they

could not distribute their apps by other means, even if not by

their most preferred means.

For all of these reasons, Plaintiffs-Appellants’ antitrust

claims must fail.

B. Breach of contract

To state a breach of contract claim under California law,

plaintiffs must show: (1) there was a contract, (2) plaintiff

either performed the contract or has an excuse for

nonperformance, (3) defendant breached the contract, and

4

We do not address whether, under different circumstances, a complaint

alleging antitrust claims could define a cognizable market encompassing

the Apple App Store.

14 CORONAVIRUS REPORTER V. APPLE, INC.

(4) plaintiff suffered damages as a result of defendant’s

breach. Hamilton v. Greenwich Invs. XXVI, LLC, 126 Cal.

Rptr. 3d 174, 183 (Cal. Ct. App. 2011).

Here, Plaintiffs-Appellants do not identify relevant

specific provisions of the Developer Agreement or the

DPLA, much less show that Apple breached a specific

provision. Plaintiffs-Appellants contend that there is a

“promise” in the Developer Agreement that “entities with

‘deeply rooted medical credentials’ were permitted to

publish COVID apps on the App Store.” But neither the

Developer Agreement nor any other contract between

Plaintiffs-Appellants and Defendant-Appellee contains any

such guarantee. Instead, and sharply to the contrary, the

DPLA specifically states that Apple has “sole discretion” to

approve or deny requests to distribute apps on the App Store.

Plaintiffs-Appellants’ contract claim fails because there was

no breach of contract. Similarly, in an attempt to make a

claim for breach of the covenant of good faith and fair

dealing, Plaintiffs-Appellants simply repeat their breach

allegations. This claim likewise fails.

C. RICO or fraud

To plead a civil claim under 18 U.S.C. § 1962(c) of the

Racketeer Influenced and Corrupt Organizations (“RICO”)

Act, Plaintiffs must allege “(1) conduct (2) of an enterprise

(3) through a pattern (4) of racketeering activity (known as

‘predicate acts’) (5) causing injury to plaintiff’s business or

property.” Living Designs, Inc. v. E.I. Dupont de Nemours &

Co., 431 F.3d 353, 361 (9th Cir. 2005) (quotation marks

omitted). If a corporation is the enterprise, it cannot also at

the same time be the RICO defendant. See Rae v. Union

Bank, 725 F.2d 478, 481 (9th Cir. 1984). Parties must allege

fraud with particularity under Federal Rule of Civil

CORONAVIRUS REPORTER V. APPLE, INC. 15

Procedure 9(b), including the “who, what, when, where, and

how of the misconduct charged . . . .” See Depot, Inc. v.

Caring for Montanans, Inc., 915 F.3d 643, 668 (9th Cir.

2019) (internal quotations and citations omitted).

Here, Plaintiffs-Appellants allege that Apple and

individuals within Apple’s App Store management, App

Review, their counsel, and friends formed a RICO enterprise

and engaged in predicate acts such as screening Plaintiffs-

Appellants’ apps for purported compliance with the DPLA

while appropriating Plaintiffs-Appellants’ ideas into Apple’s

own competing apps, as well as wire and mail fraud by

assigning Apple’s App Review employees to give false,

pretextual reasons for rejecting the apps of small developers.

These allegations center on the conduct of Apple and its

employees without describing in any particularity conduct or

activity outside of Apple as a corporation. As articulated,

this claim makes Apple as a corporation both the enterprise

and the RICO defendant, which is not permitted in a RICO

claim. See Rae, 725 F.2d at 481. To the extent the Plaintiffs-

Appellants attempt to make out a further claim for fraud,

their allegations are vague and conclusory without the

particularity required by FRCP 9(b). See Depot, Inc., 915

F.3d at 668.

D. Dismissal without leave to amend

Federal Rule of Civil Procedure 15(a) states that leave to

amend “shall be freely given when justice so requires,” but

“[a] district court acts within its discretion to deny leave to

amend when amendment would be futile[.]” Chappel v.

Lab’y Corp. of Am., 232 F.3d 719, 725–26 (9th Cir. 2000).

Here, the district court did not abuse its discretion in

concluding that further amendment was not warranted.

While the district court dismissed the Plaintiffs-Appellants’

16 CORONAVIRUS REPORTER V. APPLE, INC.

first amended complaint in this case, Plaintiffs-Appellants

were given a total of seven opportunities to amend similar

complaints across jurisdictions and between various

permutations of plaintiffs, but still failed to state their claims

here adequately. It is within the district court’s discretion to

determine that an eighth opportunity would produce a

similar result. See Ryan, 786 F.3d at 759.

E. Remaining motions

Because the district court properly dismissed with

prejudice all of the claims against Apple, it correctly denied

the remaining pending motions as moot. The court also

properly denied the motions for reconsideration by finding

that the Plaintiffs-Appellants simply reiterated their prior

claims and did not present newly discovered evidence or

controlling law, nor an error of law or manifest injustice. See

Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th

Cir. 1993); Kerr, 836 F.3d at 1053.

IV. CONCLUSION

We affirm the decisions of the district court to dismiss

Plaintiffs-Appellants’ FAC for failure to state any claim

under Federal Rule of Civil Procedure 12(b)(6) and to deny

Plaintiffs-Appellants’ motions for reconsideration and for

preliminary injunction.

AFFIRMED.