Petition for Writ of Certiorari — The Estate of Isabella "Bella" Herndon, et al., Petitioners v. Netflix, Inc.

APPENDIX

APPENDIX CONTENTS

APPENDIX A: NINTH CIRCUIT OPINION ASSUMING

JURISDICTION AND RENDERING DECISION

UPON THE MERITS .............................................. 1A

APPENDIX B: DISTRICT COURT ORDER DENYING

PETITIONER’S MOTION TO REMAND FOR LACK

OF JURISDICTION ................................................. 8A

APPENDIX C: NINTH CIRCUIT ORDER DENYING

PETITIONER’S TIMELY FILED PETITION FOR

REHEARING ....................................................... 32A

APPENDIX D: EXCERPT OF PETITIONERS’ NINTH

CIRCUIT BRIEF PERTAINING TO LACK OF

JURISDICTION.................................................... 34A

APPENDIX E: EXCERPT OF PETITIONERS’ PETITION

FOR REHEARING PERTAINING TO LACK OF

JURISDICTION.................................................... 36A

APPENDIX F: EXCERPT OF RESPONDENT’S NOTICE

OF REMOVAL PERTAINING TO DIVERSITY OF

CITIZENSHIP ...................................................... 46A

APPENDIX G: EXCERPT OF RESPONDENT’S SUICIDE

FACT SHEET FROM THE WORLD HEALTH

ORGANIZATION (WHO) ..................................... 47A

1a

APPENDIX A:

NINTH CIRCUIT OPINION ASSUMING JURISDICTION

AND RENDERING DECISION UPON THE MERITS

FILED

FEB 27 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THE ESTATE OF ISABELLA “BELLA” HERNDON;

et al.,

Plaintiffs-Appellants,

v.

NETFLIX, INC.,

Defendant-Appellee.

No. 22-15260

D.C. No. 4:21-cv-06561-YVR

2a

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Yvonne Gonzalez Rogers, District Judge, Presiding

Argued and Submitted February 15, 2024

San Francisco, California

Before: MILLER, BADE, and VANDYKE, Circuit

Judges.

Plaintiffs-Appellants (Plaintiffs) appeal from the

district court’s order granting Defendant-Appellee

Netflix, Inc.’s motion to dismiss the First Amended

Complaint (FAC) and granting Netflix’s motion to

strike under California’s anti-SLAPP statute. In

March 2017, Netflix released the show 13 Reasons

Why, which portrayed the suicide of the main character. After watching the show in April 2017, minor Isabella Herndon (Bella) committed suicide.

Four years after her death, Bella’s father, John

Herndon, and brothers, J.H. and T.H., sued Netflix in

* This disposition is not appropriate for publication

and is not precedent except as provided by Ninth Circuit Rule 36-3.

3a

a putative class action. In the FAC, John Herndon, as

the successor in interest to Bella, brought a survival

action against Netflix for (1) strict liability based on

its failure to warn about the show’s alleged risks to

mental health and (2) negligence. J.H. and T.H.

brought a claim against Netflix for wrongful death.

The district court dismissed these claims with

prejudice under Federal Rule of Civil Procedure

12(b)(6). The district court also struck the FAC under

California’s anti-SLAPP statute, Cal. Code Civ. Proc.

§ 425.16(b).

We review de novo the district court’s order

granting the motion to dismiss and granting the

motion to strike under California’s anti-SLAPP

statute. Holt v. County of Orange, 91 F.4th 1013, 1017

(9th Cir. 2024); Makaeff v. Trump Univ., LLC, 715

F.3d 254, 261 (9th Cir. 2013). We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

1. The district court did not err by dismissing John

Herndon’s survival claims as time-barred. California

Code of Civil Procedure section 366.1 provides that a

survival action may be commenced before the

expiration of the later of two terms: (a) “[s]ix months

after the person’s death” or (b) “[t]he limitations

period that would have been applicable if the person

had not died.” Cal. Code Civ. Proc. § 366.1. Plaintiffs

contend that, had Bella not died, the limitations

period for her claims would not have begun until her

4a

eighteenth birthday, pursuant to the minor tolling

provision in California Code of Civil Procedure section

352. Id. § 352(a).

In answering questions of statutory interpretation,

California courts first consider the ordinary meaning

of the language in question, the text of related

provisions, and the overall statutory structure, and, if

the language is unambiguous after considering these

sources, need not look further. See Larkin v. Workers’

Comp. Appeals Bd., 358 P.3d 552, 555 (Cal. 2015).

Plaintiffs’ argument fails because the ordinary

meaning of the phrase “limitations period” is distinct

from the ordinary meaning of the phrase “tolling

period.” “Limitations period” ordinarily means the

statutorily-defined time limit for bringing a claim

based on the nature of the claim and the date of

accrual. See Norgart v. Upjohn Co., 981 P.2d 79, 92

(Cal. 1999) (“Under the statute of limitations, a

plaintiff must bring a cause of action for wrongful

death within one year of accrual . . . . The limitations

period is thus defined by the Legislature.”); see also

Limitation, Black’s Law Dictionary (11th ed. 2019). In

contrast, a “tolling statute” suspends or interrupts the

limitations period in various situations. Mitchell v.

State Dep’t of Pub. Health, 205 Cal. Rptr. 3d 261, 269

(Ct. App. 2016) (“The term ‘tolled’ in the context of the

statute of limitations is commonly understood to mean

‘suspended’ or ‘stopped.’”); see also Tolling Statute,

5a

Black’s Law Dictionary (11th ed. 2019). Moreover,

interpreting the phrase “limitations period” as being

distinct from a “tolling period” is consistent with the

overall statutory scheme, which places the sections

providing for limitations periods in a separate chapter

from the sections providing for tolling periods.

Compare Cal. Code Civ. Proc. Part 2, Title 2, Ch. 3 §

335 (listing the “periods of limitation,” which are the

“periods prescribed for the commencement of

actions”), with Cal. Code Civ. Proc. Part 2, Title 2, Ch.

4 (separately listing tolling statutes). Furthermore,

California courts have explained that “minority does

not toll a limitations period or excuse noncompliance

unless a statute specifically says so.” Blankenship v.

Allstate Ins. Co., 111 Cal. Rptr. 3d 528, 535 (Ct. App.

2010).

We therefore predict that the California Supreme

Court would interpret the phrase “limitations period”

to mean the statutorily-defined time limit for bringing

a claim based on the nature of the claim and the date

of accrual, without inclusion of a tolling period. See

Larkin, 358 P.3d at 555. And because actions for the

death of an individual caused by a wrongful act or

neglect of another must be brought “[w]ithin two

years,” Shalabi v. City of Fontana, 489 P.3d 714, 717

(Cal. 2021), John Herndon’s claims, which were

brought over four years after Bella died, were

appropriately dismissed as time-barred.

6a

2. The district court also did not err by dismissing

the claims brought by Bella’s siblings for lack of

standing under the wrongful death statute. When a

decedent has no spouse, domestic partner, issue, or

grandchild, only immediate successors under

California’s probate code may bring a wrongful death

action. See Scott v. Thompson, 109 Cal. Rptr. 3d 846,

848–49 (Ct. App. 2010). Under California’s probate

code, the immediate successor if a decedent lacks a

spouse, domestic partner, or issue, is “the decedent’s

parent or parents equally,” if alive, not the decedent’s

siblings. Id. (quoting Cal. Prob. Code § 6402).

Therefore, because Bella’s father is still alive, the

district court correctly held that J.H. and T.H. lacked

standing to bring a wrongful death action.

3. Netflix has not sought, and agrees it will not

seek, attorney’s fees against Plaintiffs if we affirm the

district court’s order dismissing Plaintiffs’ claims.

Plaintiffs concede that if we affirm the district court

on statute of limitations and standing grounds,

Netflix’s agreement not to seek attorney’s fees moots

their argument that the district court erred in its

application of the anti-SLAPP statute. Given this

concession, and the overlap between the standards

governing the Rule 12(b)(6) motion and the antiSLAPP motion, we do not separately address the

district court’s motion to strike.

See Planned

7a

Parenthood Fed’n of Am., Inc v. Ctr. for Med. Progress,

890 F.3d 828, 833–35 (9th Cir. 2018).

4. Plaintiffs requested leave to amend if we reverse

on either the statute of limitations issue or the

wrongful death standing issue. Because we affirm on

both procedural issues, any amendment would be

futile. See Newland v. Dalton, 81 F.3d 904, 907 (9th

Cir. 1996) (courts “need not accommodate futile

amendments”).

AFFIRMED.

8a

APPENDIX B:

DISTRICT COURT ORDER DENYING PETITIONER’S

MOTION TO REMAND FOR LACK OF JURISDICTION

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

THE ESTATE OF B.H., et al.,

Plaintiffs,

v.

NETFLIX, INC.,

Defendant.

Case No. 4:21-cv-06561-YGR

ORDER DENYING MOTION TO REMAND AND MOTION

FOR JURISDICTIONAL DISCOVERY

Dkt. Nos. 25, 26.

Plaintiffs the Estate of B.H., John Herndon, B.H.’s

father and successor in interest, J.H., a minor, and

T.H. a minor, on behalf of themselves and others

similarly situated (collectively “plaintiffs”), have filed

a motion to remand this class action against defendant

Netflix, Inc. (“Netflix”). Plaintiffs have also filed a

motion for jurisdictional discovery.

9a

Having carefully considered the papers submitted

on both motions along with the pleadings in this

action, and for the reasons set forth below, the Court

DENIES both motions.1

I. BACKGROUND

On April 30, 2021, plaintiffs filed their class action

complaint in the Superior Court of the State of

California for the County of Santa Clara. (Dkt. No. 31, the “Complaint.”) The class action alleged claims

for failure to adequately warn, wrongful death, and

negligence stemming from an alleged increase in

youth suicide after Netflix released its show Thirteen

Reasons Why. Netflix removed the class action

complaint to this Court on August 25, 2021, asserting

that jurisdiction is proper under the Class Action

Fairness Act (“CAFA”), 28 U.S.C. § 1332(d)(2)(A).

(Dkt. No. 3.) After the case was removed to this Court,

plaintiffs filed a First Amended Complaint, which

included new class definitions.

(Dkt. No. 22.)

Plaintiffs then filed a motion to remand and a motion

1

Pursuant to Federal Rule of Civil Procedure 78(b)

and Civil Local Rule 7-1(b), the Court finds this motion

appropriate for decision without oral argument and

VACATES the hearing set for November 16, 2021.

10a

for discovery necessary to establish exceptions to

CAFA jurisdiction. (Dkt. Nos. 25-26.)

II. LEGAL STANDARD

A defendant’s removal is proper where the federal

courts have original jurisdiction over an action

brought in state court. 28 U.S.C. § 1441(a). Pursuant

to CAFA, this Court has original jurisdiction over class

actions in which there are at least 100 class members,

at least one of which is diverse in citizenship from any

defendant, and for which the aggregate amount in controversy exceeds the sum of $5 million, exclusive of interest and costs. 28 U.S.C. § 1332(d); Ibarra v. Manheim Invs., Inc., 775 F. 3d 1193, 1196-97 (9th Cir.

2015). Generally, courts strictly construe the removal

statute against removal jurisdiction. See, e.g., Provicial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d

1083, 1087 (9th Cir. 2009). However, “no antiremoval

presumption attends cases invoking CAFA, which

Congress enacted to facilitate adjudication of certain

class actions in federal court.” Dart Cherokee Basin

Operating Co., LLC v. Owens, 574 U.S. 81, 89 (2014).

Under CAFA, the removing party bears the burden

of establishing federal jurisdiction. Ibarra, 775 F.3d

at 1197. The removing party must prove by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional threshold, Dart Cherokee, 574 U.S. at 88 (citing 28 U.S.C. § 1446(c)(2)(B)),

11a

that the number of class members exceeds 100, and

that minimal diversity exists between the parties. See

Abrego v. Dow Chem. Co., 443 F.3d 676, 685 (9th Cir.

2006).

When a party moves to remand under CAFA, they

present either a “facial” attack or a “factual” attack on

the removing party’s showing of the jurisdictional elements. A facial attack does not present any new evidence, but instead argues that the allegations offered

“are insufficient on their face to invoke federal jurisdiction.” Salter v. Quality Carriers, Inc., 974 F.3d 959,

964 (9th Cir. 2020) (quoting Leite v. Crane Co., 749

F.3d 1117, 1121 (9th Cir. 2014) (cleaned up and citation omitted)). By contrast, a “factual” attack “contests the truth of the [] factual allegations, usually by

introducing evidence outside the pleadings.” Salter,

974 F.3d at 964 (quoting Leite, 749 F.3d at 1121 (citation omitted)). When a removing party is presented

with a facial attack, the Court applies a lower evidentiary standard; in those cases, a removal “need not

contain evidentiary submissions but only plausible allegations of jurisdictional elements.” See Salter, 974

F.3d at 964 (quoting Arias v. Residence Inn by Marriott, 936 F.3d 920, 922 (9th Cir. 2019)) (cleaned up).

When the attack is factual, courts apply a higher evidentiary standard. The removing party “must support

[the] jurisdictional allegations with ‘competent proof’ .

. . under the same evidentiary standard that governs

12a

in the summary judgment context.” Salter, 974 F.3d at

964 (quoting Leite, 749 F.3d at 1121 (citations omitted)).

III. DISCUSSION

A. Identifying The Operative Complaint For

Removal

Plaintiffs filed the First Amended Complaint after

Netflix’s removal to this Court. Before the Court can

begin a jurisdictional analysis, it must determine

which complaint is operative for removal purposes.

“[T]he circuits have unanimously and repeatedly held

that whether remand is proper must be ascertained on

the basis of the pleadings at the time of removal. . . .

This unanimity seems firmly to establish that

plaintiffs’ attempts to amend a complaint after

removal to eliminate federal jurisdiction are doomed

to failure.” Broadway Grill, Inc. v. Visa Inc., 856 F.3d

1274, 1277 (9th Cir. 2017). The Ninth Circuit has

recognized a narrow exception for amendments that

provide some amplification for federal jurisdiction. Id.

(explaining the “very narrow” exception set forth in

Benko v. Quality Loan Service Corp., 789 F.3d 1111

(9th Cir. 2015)). The Ninth Circuit has clarified that

the very narrow exception does not “strike a new path

to permit plaintiffs to amend their class definition, add

or remove defendants, or add or remove claims in such

13a

a way that would alter the essential jurisdictional

analysis.” Id. at 1279 (emphasis supplied).

Here, plaintiffs First Amended Complaint includes

express class definitions that were not present in their

original Complaint filed in the state court. The

proposed classes are as follows:

California Negligence and Failure-to-Warn Class: All

ascertainable California citizens (the harmed minors

who survived or their successors in interest on behalf

of the decedents who did not) who watched Netflix’s

Show, in full or in part, and assert that they suffered

as a result of Netflix’s failure to adequately warn

and/or as a result of being negligently targeted and

manipulated by Netflix (or its streaming and contentdelivery products) to watch the Show.

Global Wrongful-Death Class: All ascertainable

beneficiaries (or their equivalents such as those

otherwise legally entitled or with standing to bring

claims for wrongful death or an equivalent under their

state or national laws) of decedents who watched

Netflix’s Show, in full or in part, and died as a result

of Netflix’s failure to adequately warn and/or as a

result of being negligently targeted and manipulated

by Netflix (or its streaming and content-delivery

products) to watch the Show.

14a

(First. Am. Compl. ¶ 76.) Both parties agree that

plaintiffs’ original Complaint did not include such

express class definitions even though it made broad

class-type allegations.

In its Notice of Removal, Netflix alleged that while

the “Plaintiffs failed to include a class definition in

their Complaint, Plaintiffs purport to bring the Action

on behalf of class members allegedly harmed by the

Netflix Show Thirteen Reasons Why, which was

distributed throughout the United States via Netflix

streaming service. Because the class is not

geographically limited, it includes members

nationwide, and CAFA’s requirement is satisfied.”

(Dkt. No. 3 at ¶ 6.) Indeed, plaintiffs filed suit in their

original Complaint as class-representatives “on behalf

of all others similarly situated,” without any

geographic restrictions or limitations. (Compl. ¶¶ 73,

78, 82.) In a subsection entitled “Netflix’s failure to

adequately warn harmed and caused the death of

many children,” the original Complaint references an

“alarming story” from shortly after the shows release

where a school in Florida reported a significant spike

in self-mutilation and threats of suicide. (Compl. ¶

44.) The same section also alleges that “[t]he effect was

not merely domestic. For example, similar devastating

impacts were identified in Canada.” (Compl. ¶ 48.)

Plaintiffs’ own description of its “ascertainable and

numerous” class in its original Complaint is consistent

15a

with this broad scope. Plaintiffs described their

classes as: “Here, as a result of Netflix’s inadequate

warnings, Netflix caused the death of an estimated

hundreds, possibly a thousand, children who

committed suicide since the release of the Show, with

their many survivors, heirs, etc., holding viable

claims. Beyond those who died, there are many more

who suffered substantial trauma at the hands of

callous business decisions that prioritized reaching

certain business milestones over the safety of Netflix’s

customers.” (Compl. ¶ 69.)

Now, after removal, plaintiffs have limited the

failure to warn class to “all ascertainable California

citizens” and have submitted declarations that this

limitation was intended when the Complaint was filed

in state court. Broadway Grill does not give this Court

discretion to consider the First Amended Complaint.

Restricting the class to California citizens when a

limitation did not exist in the original Complaint is the

exact definitional change rejected by the Ninth

Circuit. Broadway Grill, 856 F.3d at 1277-78 (“Instead

of being composed of all the merchants in the state of

California, regardless of citizenship, the class, as

defined in the amended complaint, became exclusively

composed of California citizens. We conclude such an

amendment is outside the exception recognized in

Benko and thus cannot affect the removability of the

action.”).

Accordingly, the Court considers the

16a

original Complaint as filed in the state court as the

operative complaint for removal.

B. Whether An Express Class Definition Is A

Prerequisite For Removal

A threshold issue presented in the motion to

remand is whether the case should be remanded to the

state court on the basis that the original Complaint

does not expressly include a “class definition.” Under

CAFA, a “class action” is defined as “any civil action

filed under rule 23 of the Federal Rules of Civil

Procedure or similar State statute or rule of judicial

procedure authorizing an action to be brought by 1 or

more representative persons as a class action.” 28

U.S.C. § 1332(d)(1)(B). To “determine whether the

matter in controversy” exceeds the sum of $5 million,

“the claims of the individual class members shall be

aggregated.” Id. § 1332(d)(6). The phrase “class

members” includes “persons (named or unnamed) who

fall within the definition of the proposed or certified

class.” Id. § 1332(d)(1)(D) (emphasis supplied).

There is no dispute that this case is a class action

within the meaning of CAFA. In its Notice of

Removal, Netflix highlights that “Plaintiffs fail to

include a [class] definition in their complaint.” (Dkt.

No. 3 at ¶ 4.) Plaintiffs argue that this dispenses of

Netflix’s jurisdictional argument and that the case

should be remanded. Specifically, plaintiffs argue that

17a

in order for there to be “class members” in this case,

“there must be a definition of the proposed or certified

class in a class action.” Since there is no class

definition, plaintiffs argue that there are no class

members, and in turn no class under section

1332(d)(1). The Court is not persuaded.

To begin, the Court notes that CAFA does not

provide a meaning for “definition of the proposed . . .

class” and that the Ninth Circuit has not addressed

this precise issue. However, in analyzing whether a

district court can consider amendments to a pleading,

the Ninth Circuit has stated that “[a] class definition,

however, will always be present in any class action

complaint, state or federal.” Broadway Grill, 856 F.3d

at 1278. Broadway Grill does not explain why. The

First Circuit’s decision cited by the parties, which is

instructive here, helps fill the gap as the only case

analyzing whether removal can be denied based on an

insufficient “class definition.” In College of Dental

Surgeons of Puerto Rico v. Connecticut General Life

Insurance Company, the First Circuit acknowledged

that “[a] complaint that contains class-type

allegations historically has been assumed to assert a

class action before formal class certification.” 585 F.3d

33, 40 (1st Cir. 2009). Ultimately, the First Circuit

held that evaluating the inadequacy of a class

definition is a question for the class certification stage

18a

and not on a motion for remand under CAFA. Id. at

42.

In light of the foregoing, the Court understands

that its duty is to analyze the undisputed class-type

allegations in order to discern what the proposed class

is without weighing the adequacy of any purported

class definition, whether express or implied. This

approach is consistent with CAFA’s legislative history

which stresses that vague class definitions cannot be

used to evade federal jurisdiction.2

2

See Senate Report, S. Rep. 109-14, S. Rep. No. 14,

109th Cong. 1st Sess. 2005, 2005 WL 627977 *43 (Feb.

28, 2005) (“[N]amed plaintiffs will not be able to evade

federal jurisdiction with vague class definitions or

other efforts to obscure the citizenship of class members. The law is clear that, once a federal court

properly has jurisdiction over a case removed to federal court, subsequent events generally cannot ‘oust’

the federal court of jurisdiction. While plaintiffs undoubtedly possess some power to seek to avoid federal

jurisdiction by defining a proposed class in particular

ways, they lose that power once a defendant has

properly removed a class action to federal court.”).

Plaintiffs criticize reliance on this Senate Report.

However, the Ninth Circuit in Broadway Grill

19a

Here, plaintiffs filed suit as class-representatives

“on behalf of all others similarly situated” without any

express geographical restriction. (Compl. ¶¶ 73, 78,

82.) Even without an expressly stated “class

definition,” “class members” are referenced several

times in the original complaint. See, e.g., Compl. ¶ 68

(“the members of the class”); id. ¶ 68(a) (“each class

member”); id. ¶ 68(c) (“members of the class”).

Furthermore, as discussed above, plaintiffs’ original

Complaint characterizes what they view as

“ascertainable and numerous” classes. (Compl. ¶ 69.)

That conceded description includes at least three

classes of similarly situated individuals. The first

relates to those similarly situated persons, who

Netflix “as a result of Netflix’s inadequate warnings,

[] caused the death of an estimated hundreds, possibly

a thousand, children who committed suicide since the

release of the Show.” (Id.) The second relates to “their

many survivors, heirs, etc., holding viable claims.”

(Id.) The third relates to the “many more who suffered

substantial trauma at the hands of callous business

decisions that prioritized reaching certain business

milestones over the safety of Netflix’s customers.” (Id.)

considered it in reaching its holding concerning

amended class definitions. 856 F.3d at 1278-79.

20a

These are enough to support the jurisdictional

analysis under CAFA.3

C.

Whether

CAFA’s

Requirements Are Satisfied

Jurisdictional

i. Numerosity

3

Plaintiffs’ strategy here illustrates why it is improper

to consider amendments to a class definition on a motion to remand after a case has been removed. As discussed below, plaintiffs argue that their original class

action complaint lacked a “class definition” and that

this precluded removal. They do not argue that the

Court can or should consider the amended class definitions in order to clarify whether the numerosity,

minimal diversity, and the amount in controversy requirements were satisfied. However, plaintiffs seek to

reap the benefit of the amendment in forging their

purported class into a home state exception. Plaintiffs

are the masters of their complaint for jurisdictional

purposes. Hawaii ex rel. Louie v. HSBC Bank Nevada,

N.A., 761 F.3d 1027, 1040 (9th Cir. 2014). Broadway

Grill instructs that plaintiffs could have structured

their Complaint to avoid CAFA in the first instance

and before removal. Because they did not, they cannot

avoid CAFA through amendments that would alter

the jurisdictional analysis.

21a

A district court shall not have original jurisdiction

pursuant to CAFA if the number of members of all

proposed plaintiff classes in the aggregate is less than

100. 28 U.S.C. § 1332(d)(5)(B). Plaintiffs do not

dispute that the number is less than 100. (Dkt. No. 26

at 11 n.4.) Instead, plaintiffs argue that Netflix has

failed to plead and prove that there are at least 100

class members.

Here, the Court finds that Netflix’s Notice sets

forth a plausible allegation that the plaintiffs’ class is

composed of over 100 individuals. The Notice of

Removal incorporates plaintiffs’ admission that there

“are hundreds, possibly a thousand” proposed class

members. Plaintiffs argue that Netflix has not met its

burden because it has not produced any evidence,

however, this misconstrues the standard applicable

here. As outlined in the legal standard section, Netflix

is only required to produce evidence when a factual

attack is made. Plaintiffs actually agree here with the

plausible allegation that there “are hundreds, possibly

a thousand” proposed class members. Thus, evidence

was not required. Salter, 974 F.3d 959 at 964-65

(holding that the district court erred in requiring

factual evidence when the truth of CAFA

jurisdictional allegations were not disputed).

Plaintiffs’ pleading is also a judicial admission

sufficient to establish the jurisdictional element.

Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373,

22a

376-77 (9th Cir. 2006).

requirement is met.

CAFA’s

numerosity

ii. Minimal Diversity

CAFA confers jurisdiction on federal district courts

over class actions when, among other things, “any

member of a class of plaintiffs is a citizen of a State

different from any defendant.”

28 U.S.C. §

1332(d)(2)(A). There is no dispute here that Netflix

and the named plaintiffs are not diverse. Netflix

nevertheless argues that minimal diversity is met

because plaintiffs filed their class action on behalf of

class members harmed by Thirteen Reasons Why,

which was distributed throughout the United States

and internationally via Netflix’s streaming platform.

Netflix also highlights that there are no geographical

limits to the class and points to the allegation

concerning Florida’s spike in youth at-risk behavior

after the show was released. (Dkt. No. 3 at ¶ 6.)

Again, plaintiffs do not dispute that they are

seeking a global class and “that minimal diversity very

likely exists.” (Dkt. No. 26 at 11 n.4.) Instead,

plaintiffs argue that Netflix has not met its factual

burden of proving by preponderance of the evidence

that there are class members outside of California.

However, plaintiffs misconstrue the burdens of a facial

attack. They have not contested the truth of Netflix’s

allegation. Furthermore, Netflix’s allegation that

23a

minimal diversity is satisfied is plausible given the

broad class proposed in plaintiffs’ Complaint. Indeed,

Ninth Circuit case law suggests that the burden is low.

In Ehrman v. Cox Communs., Inc., a defendant’s

burden was satisfied even though allegations were

made on information and belief based upon the

plaintiffs’ own pleading. 932 F.3d 1223, 1227-1228

(9th Cir. 2019). Plaintiffs have not persuaded that a

different result should be reached, especially where

their own allegations identify harms in Florida and

Canada for a sprawling global class. (Compl. ¶¶ 44,

49.) Accordingly, the minimal diversity requirement

is met.

iii. Amount in Controversy

There is no dispute here that the Complaint did not

expressly allege an amount in controversy. Netflix

nevertheless argues that the amount of controversy is

sufficient based upon the face of the Complaint due to

the wrongful death damages sought.

The removing party may not establish federal

jurisdiction “by mere speculation and conjecture, [or]

with unreasonable assumptions.” Ibarra, 775 F.3d at

1197-98. Instead, it must rely on “real evidence and

the reality of what is at stake in the litigation.” Id.

Nevertheless, “a defendant’s notice of removal need

include only a plausible allegation that the amount in

24a

controversy exceeds the jurisdictional threshold.”

Dart Cherokee, 574 U.S. at 89.

Here, Netflix’s Notice of Removal outlines the

assumptions that it makes concerning the amount in

controversy. First, Netflix highlights the various

economic and non-economic damages for injuries

allegedly suffered in connection with wrongful death

claims. (Dkt. No. 3 at ¶ 9.) Second, it alleges that

“Courts have recognized that individual claims for

wrongful death are sufficient to establish that the

complaint has put in controversy more than $75,000

for purposes of diversity jurisdiction under 28 U.S.C.

§ 1332(a)” for individual claims. (Id.) Third, assuming

there are only 100 putative class members with just

$75,000 each, the amount put in controversy by the

plaintiffs is more than $5 million. (Id.)

Plaintiffs do not dispute that the amount in

controversy exceeds $5,000,000. (Dkt. No. 26 at 11

n.4.) Instead, they argue that Netflix is still required

to produce evidence in order to satisfy its burden.

Again, this is inconsistent with the controlling legal

standard. Since the plaintiffs have not challenged the

“reasonable assumptions” in Netflix’s plausible

allegations, and instead embrace their truth, the

amount in controversy requirement is met. Salter,

974 F.3d at 965; see also Ibarra, 775 F. 3d at 1199

(permitting reasonable assumptions in calculating the

25a

amount of controversy).4 Furthermore, plaintiffs’

judicial admission concedes that the amount in

controversy is sufficient to satisfy this element.

Singer, 116 F.3d at 376-77 (holding that a judicial

admission may establish the amount in controversy).

Accordingly, all three CAFA factors are satisfied and

removal was proper.

D. Whether CAFA’s Exceptions Are Satisfied

In order to escape federal jurisdiction under CAFA,

plaintiffs invoke two exceptions. The first is the

mandatory home-state exception pursuant to 28

U.S.C. § 1332(d)(4)(B). The second is the discretionary

home-state exception pursuant to 28 U.S.C. §

1332(d)(3). As the party seeking to remand these

proceedings, the plaintiffs bear the burden of proving

that a CAFA exception applies. See Serrano v. 180

Connect, Inc., 478 F.3d 1018, 1024 (9th Cir. 2007).

Under the mandatory home-state controversy

exception, the Court must decline to exercise

jurisdiction where “two-thirds or more of the members

4

Plaintiffs’ suggestions that Dart Cherokee was

wrongly decided or that it is inapplicable lacks any

support grounded in Ninth Circuit case law. The

Court has not been persuaded that any deviation is

necessary.

26a

of all proposed plaintiff classes in the aggregate, and

the primary defendants, are citizens of the State in

which the action was originally filed.” 28 U.S.C. §

1332(d)(4)(B). To meet this burden, plaintiffs must

provide “some facts in evidence from which the district

court may make findings regarding class members’

citizenship.” Mondragon v. Capital One Auto Fin., 736

F.3d 880, 884 (9th Cir. 2013).

While this

“jurisdictional finding of fact should be based on more

than guesswork,” the Court may “make reasonable

inferences from facts in evidence.” Id. at 884, 886.

Here, plaintiffs fail to provide sufficient facts to

carry their burden of showing that two thirds of

proposed class members are California citizens. They

concede that they do not know the scope of their

national class, let alone the composition of its

members across states. Therefore, this factor is not

satisfied. Broadway Grill, 856 F.3d at 1276 (“The

district court correctly denied the motion to remand

because the class, on its face, included many noncitizens of California, and [the moving party] could not

establish two-thirds were California citizens.”).

Plaintiffs’ second exception fails for similar

reasons. The Court “may, in the interests of justice

and looking at the totality of the circumstances,

decline to exercise jurisdiction” when more than onethird of the putative class, and the primary

defendants, are citizens of the state where the action

27a

was originally filed.” 28 U.S.C. § 1332(d)(3). There is

no evidence in the record to support a finding that

more than one-third of the putative class are citizens

of California. Therefore, this exception fails. Because

plaintiffs have failed to establish that an exception to

CAFA applies, their motion to remand is DENIED

WITHOUT PREJUDICE.

E. Timeliness Of Removal

Plaintiffs on reply raise a new argument in support

of remand. For the first time, they assert that

Netflix’s removal was untimely.

Raising new

argument in reply is improper. See Floyd v. Filson,

949 F.3d 1128, 1145 n.6. (9th Cir. 2020) (holding that

new argument was forfeited when it was not raised in

the opening brief); Colgate v. JUUL Labs, Inc., 345 F.

Supp. 3d 1178, 1196 (N.D. Cal. 2018) (declining to

consider theory for dismissal raised for the first time

in reply). The timing requirements are also

procedural, not jurisdictional, and can be forfeited.

Corono-Contreras v. Gruel, 857 F.3d 1025, 1029 (9th

Cir. 2017); Firstoe v. Reynolds Metals Co., 615 F.2d

1209, 1212 (9th Cir. 1980) (“Although the time limit is

mandatory and a timely objection to a late petition will

defeat removal, a party may waive the defect or be

estopped from objecting to the untimeliness by sitting

on his rights.”). Plaintiffs waived the issue by not

raising it earlier.

28a

F. Jurisdictional Discovery

Plaintiffs also request jurisdictional discovery in

order to meet their burden in order to establish that a

CAFA exception applies.5 The request is DENIED.

The Court has discretion to grant jurisdictional

discovery to assist it in determining whether it has

subject matter jurisdiction. See Wells Fargo & Co. v.

Wells Fargo Exp. Co., 556 F.2d 406, 430 n. 24 (9th Cir.

1977).

“[A]ny decision regarding jurisdictional

5

Specifically:

Plaintiffs seek information that is exclusively

in the province of Netflix about which accounts watched the Show, who Netflix targeted and manipulated into watching the

Show, and their contract information and account addresses—all with the simple goal of

ascertaining, if for the California citizens,

there is any assertion of harm as a result as a

result of Netflix’s targeting and/or failure to

adequately warn and, for both California and

non-California citizens alike, whether anyone

died as a result of Netflix’s targeting or failure

to warn.

(Dkt. No. 25 at 13.)

29a

discovery is a discretionary one, and is governed by

existing

principles

regarding

post-removal

jurisdictional discovery, including the disinclination to

entertain substantial, burdensome discovery on

jurisdictional issues.”

Abrego, 443 F.3d at 692

(internal quotation marks and citation omitted).

Furthermore, it is appropriate to deny a request for

jurisdictional discovery that is “based on a little more

than a hunch that it might yield jurisdictionally

relevant facts.” Boschetto v. Hansing, 539 F.3d 1011,

1020 (9th Cir. 2008).

Limited jurisdictional discovery is permissible in

those instances where it is likely to support a CAFA

exception. See Modragon, 736 F.3d at 885 (permitting

jurisdictional discovery where it was suspected that

the two-thirds citizen requirement would be satisfied).

Netflix has submitted unrefuted evidence that its

content can be accessed in more than 190 countries.

(Long Decl. ¶ 2.) Based on the face of plaintiffs’

Complaint, which asserts global claims, it is apparent

that the class as alleged includes many non-citizens of

California. Plaintiffs only speculate that there are

more California citizens in the class than non-citizens

and they have not persuaded the Court that limited

discovery is appropriate.

This speculation is

insufficient to support a claim for jurisdictional

discovery. Boschetto, 539 F.3d at 1020.

30a

Notably, Netflix opposed the discovery sought by

plaintiffs on the ground that it does not exist, that it

would be unduly burdensome, and that it cannot

establish the “simple goal” sought by plaintiffs.

Declarations were submitted in support of Netflix’s

assertions. Plaintiffs did not file a reply and have

effectively conceded Netflix’s argument.6 The request

for jurisdictional discovery is DENIED.

IV. CONCLUSION

For the reasons state above, plaintiffs’ motion for

remand is DENIED.

Plaintiffs’ motion for

jurisdictional discovery is also DENIED. Pursuant to

this Court’s Order Granting Stipulated Request for

Order Changing time (Dkt. No. 35), plaintiffs have 14

days to file an opposition to Netflix’s Motion to

Strike/Dismiss the First Amended Complaint. Netflix

has 21 days from the opposition to file a reply.

6

Netflix also presented unrefuted evidence and argument that in 2017, when Thirteen Reasons Why was

released, only 0.5% of the estimated global number of

child suicides occurred in California. Plaintiffs did file

the Declaration of Rory Stevens in support of their motion for jurisdictional discovery. (Dkt. No. 39.) However, it is not cited and its relevancy has not been

made clear.

31a

This Order terminates Docket Numbers 25 and 26.

IT IS SO ORDERED.

Dated: November 12, 2021

/s/ Yvonne Gonzalez Rogers

YVONNE GONZALEZ ROGERS

UNITED STATES DISTRICT JUDGE

32a

APPENDIX C:

NINTH CIRCUIT ORDER DENYING PETITIONER’S

TIMELY FILED PETITION FOR REHEARING

FILED

MAY 17 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THE ESTATE OF ISABELLA “BELLA” HERNDON;

et al.,

Plaintiffs-Appellants,

v.

NETFLIX, INC.,

Defendant-Appellee.

No. 22-15260

D.C. No. 4:21-cv-06561-YVR

Northern District of California,

Oakland

ORDER

33a

Before: MILLER, BADE, and VANDYKE, Circuit

Judges.

The panel has voted to deny the petition for rehearing and the petition for rehearing en banc. The full

court has been advised of the petition for rehearing en

banc, and no judge has requested a vote on whether to

rehear the matter en banc. Fed. R. App. P. 35.

The petition for panel rehearing and the petition

for rehearing en banc (Dkt. 116) are DENIED.

34a

APPENDIX D:

EXCERPT OF PETITIONERS’ NINTH CIRCUIT BRIEF

PERTAINING TO LACK OF JURISDICTION

JURISDICTIONAL STATEMENT

(A) This action was asserted with class allegations

by California plaintiffs against a California defendant

in California state court under California law. 6-ER1137-1160. No non-California citizen has ever been

identified or joined into this action. Nonetheless, the

District Court purported to exercise diversity jurisdiction after removal based upon an erroneous reading of

the provisions of the Class Action Fairness Act. 1-ER28-39; see 28 U.S.C. §1332(d); U.S. Cons. Art. III, §2.

(B) The District Court entered final judgment below. 1-ER-2. This Court has appellate jurisdiction. 28

U.S.C. §1291.

Even though the District Court lacked subject-matter jurisdiction, this Court nonetheless has the “inherent authority” to consider and correct the erroneous

exercise of subject-matter jurisdiction below. E.g.,

Hoffmann v. Pulido, 928 F.3d 1147, 1151 (9th Cir.

2019). Indeed, “every federal appellate court has a

special obligation to satisfy itself not only of its own

jurisdiction, but also that of the lower courts in a cause

under review[.]’” Bender v. Williamsport Area Sch.

Dist., 475 U.S. 534, 541 (1986).

35a

Upon appellate review, “if a district court has

wrongfully exercised subject matter jurisdiction over

a dispute, the appellate court must vacate the district

court’s decision[.]” Latch v. United States, 842 F.2d

1031, 1033 (9th Cir. 1988).

(C) Judgment was entered on January 19, 2022.

1-ER-2. Plaintiffs timely noticed their appeal on February 16, 2022. 7-ER-1282-1284; see 28 U.S.C.

§2107(a); Fed. R. App. P. 4(a)(1)(A).

(D) This appeal is from a final order and judgment. 1-ER-2.

36a

APPENDIX E:

EXCERPT OF PETITIONERS’ PETITION FOR

REHEARING PERTAINING TO LACK OF JURISDICTION

I. NEITHER THE DISTRICT COURT NOR THE PANEL

EVER IDENTIFIED A MINIMALLY-DIVERSE PARTY

THAT ESTABLISHED SUBJECT-MATTER JURISDICTION

BASED UPON DIVERSITY.

Here, a grieving California family sued a

California corporation in California state court on

California claims.

The defendant removed (and the plaintiffs sought

remand). No minimally-diverse person has ever been

identified—not by the defendant, not by the District

Court, not by the Panel—whose opinion is silent on

jurisdiction. No one has ever answered any of the

following questions: Who is the diverse person?

Where are they from? How are they in this case?

The Herndon family asks the Panel or this Court

to explain why it believes it has jurisdiction. See, e.g.,

Herklotz v. Parkinson, 848 F.3d 894, 897 (9th Cir.

2017) (“This Court has an independent obligation

to assess both its own and the district court’s

jurisdiction.”); 1-ER-35. If the Panel believes it has

identified a minimally diverse party, the Herndon

family, and the public, should be afforded to know the

following:

37a

(1) Who are they?

(2) What state are they from?

(3) How are they in the case?

Absent those answers, minimal diversity is plainly

lacking.3

****

In ruling on minimal diversity, the District Court

ignored them; and the Panel passed over them in

silence. 1-ER-35; see generally Opinion. There are six

glaring

problems

regarding

subject-matter

jurisdiction.

Problem 1: Inapposite Authority

The District Court cited a single case regarding

minimal diversity. 1-ER-35 (citing Ehrman v. Cox

Communs., Inc., 932 F.3d 1223, 1227-1228 (9th Cir.

2019). Erhman is plainly inapposite.

Erhman involved named parties from different

states. Id. In Ehrman, the defendant corporation was

a “citizen of Delaware and Georgia” (id. at 1226)

If the Panel cannot answer these questions,

respectfully, it should call for response for Netflix to

do so. Netflix repeatedly and willfully refused to do so

below.

3

38a

whereas the plaintiff was a “a citizen of California” (id.

at 1228).

Here, the named parties are plainly not diverse. 1ER-35 (“There is no dispute here that Netflix and the

named plaintiffs are not diverse.”).

California

plaintiffs sued a California defendant. And, Netflix

has never identified any putative class member that’s

diverse. Netflix has never identified what state the

diverse party is from.

Erhman doesn’t address the minimal diversity

problems here.

Problem 2: Failure to specifically identify a

diverse party.

Minimal diversity requires identifying “a specific

class member who is a citizen of a state other than

[California].” See Toulon v. Cont’l Cas. Co., 877 F.3d

725, 733 (7th Cir. 2017). Here, Netflix has never

specifically identified the name and state of

citizenship of any putative class member who’s

diverse. Neither has the District Court. Neither did

the Panel.

That’s egregiously insufficient. See id. (“identify

the name and state of citizenship”); Dancel v.

Groupon, Inc., 940 F.3d 381, 385-386 (7th Cir. 2019)

(“Failure to identify a specific party from a diverse

state fails to meet CAFA’s minimal diversity

39a

requirement.”); Sanchez v. Ameriflight, LLC, 724 F.

App’x 524, 526 (9th Cir. 2018) (“identify any specific

putative class member that was diverse[.]”).

If you think there’s jurisdiction here, then the

Herndon family asks this Court to specifically

identify: (1) the name of the diverse class

member and (2) what state they are from?4

Problem 3: Confusing Place of Harm with

Place of Citizenship

Conflating place of harm with place of citizenship is

a basic error. 1-ER-35 (“harms in Florida and

Canada”).

Jurisdiction turns on citizenship.

See, e.g.,

Broadway Grill, Inc. v. Visa Inc. 856 F.3d 1274, 1279

(9th Cir. 2017) (“CAFA means what it says—

citizenship of the class for purposes of minimal

diversity must be determined as of the operative

complaint at the date of removal.”). Identifying the

place of harm doesn’t address that question.

Californians can be harmed in Florida or Canada. If.

4 Or, this Court should ask Netflix to “identify the

name and citizenship” of at least one “specific

class member” who was a citizen of a state other

than California at the time the suit was commenced.

See Toulon, 877 F.3d at 733.

40a

a car accident took place in Florida, that wouldn’t

speak to the jurisdictional question of citizenship.

So too here.

Looking at the place of harm, rather than

identifying a specific party’s citizenship entirely

misses the boat. Place of citizenship (not place of

harm) is a basic feature of diversity jurisdiction.

Problem 4: The Timing Problem

Speculating about citizenship at the time of the

harm also misses the boat. 1-ER-35 (“harms in

Florida and Canada” in 2017)

That’s because the “jurisdiction of the Court

depends upon the state of things at the time of the

action brought.” See Grupo Dataflux v. Atlas Global

Group, L.P., 541 U.S. 567, 570 (2004); 28 U.S.C.

§1332(d)(7). Indeed, this “rule is hornbook law (quite

literally) taught to first-year law students in any basic

course on federal civil procedure.” Grupo Dataflux,

541 U.S. at 570-571.

Nevertheless, the District Court believed—and the

Panel silently adopted the view that—that harms

occurring in 2017 somehow determined diversity of

citizenship in 2021. See 1-ER-35 (“harms in Florida

and Canada”). Harms that occurred in 2017 don’t

41a

speak to the citizenship of putative class members as

of 2021.

CAFA Jurisdiction turns on citizenship of the party

at the time of the suit—not at the time of the harm.

See 28 U.S.C. §1332(d)(7); see also Broadway Grill,

Inc. v. Visa Inc., 856 F.3d 1274, 1277 (9th Cir. 2017).

That’s axiomatic.

The operative jurisdictional question never

answered is: In 2021, what specific class member who

was a citizen of a state other than California? Neither

the District Court nor the Panel ever addressed that

question.

Problem 5:

The Methodological Problem

Neither Netflix, nor the District Court, nor the

Panel has ever identified the specific person who

establishes minimal diversity. Not a name. Not a

place of citizenship.

Instead, jurisdiction was based on statistical

likelihood and probabilistic hunch–the hunch that

there must be someone, somewhere who’s diverse. See

1-ER-35 (“sprawling global class”); 5-ER-814-829

(reference to purely statistical reasoning without

identification).

42a

Jurisdiction by mere statistical inference is

simply illegitimate:

The rule, springing from the nature and

limits of the judicial power of the United

States, is inflexible and without

exception, which requires this court, of

its own motion, to deny its own

jurisdiction, and, in the exercise of its

appellate power, that of all other courts

of the United States, in all cases where

such jurisdiction does not affirmatively

appear in the record on which, in the

exercise of that power, it is called to act.

On every writ of error or appeal, the first

and fundamental question is that of

jurisdiction, first, of this court, and then

of the court from which the record comes.

This question the court is bound to ask

and answer for itself, even when not

otherwise suggested, and without respect

to the relation of the parties to it.

Moreover, because it is not sufficient

that jurisdiction may be inferred

argumentatively from averments in

the pleadings, it follows that the

necessary factual predicate may not

be gleaned from the briefs and

arguments themselves. This first

43a

principle of federal jurisdiction

applies whether the case is at the

trial stage or the appellate stage.

E.g., Bender v. Williamsport Area Sch. Dist., 475 U.S.

534, 546-547 (1985) (cleaned up).

Simply put, you can’t just rely on the statistical

distributions of human beings across the planet to

establish diversity of specific persons. See 5-ER-814829; 1-ER-35 (“sprawling global class”).

Doing so would have radical implications. Suppose

a Nevadan sues a defendant of unknown citizenship.

Probabilistically, there’s a 99% chance the defendant

is not a Nevadan.5 But that wouldn’t tell us anything

about the specific defendant. Who are they? Where

are they from?

That’s why courts require identification of the

diverse party. In CAFA or otherwise, courts don’t do

jurisdiction by statistics and minimal diversity isn’t a

game of probability. Instead, minimal diversity

requires identifying specific persons of specific

5 Nevada has a population of 3 million.

The U.S.

has a population of 336.3 million. The world has a

population of 8.04 billion. See Census Population

Clock, https://www.census.gov/popclock/

44a

citizenship. E.g., Toulon, 877 F.3d at 733, (“identify

the name and state of citizenship”); Dancel, 940

F.3d at 385-386 (7th Cir. 2019) (“Failure to identify

a specific party from a diverse state”); Sanchez,

724 F. App’x at 526 (9th Cir. 2018) (“identify any

specific putative class member that was diverse”).

The gut instinct that that there is someone from

somewhere who is diverse just doesn’t engage minimal

diversity’s requirement to identify a specific

party/class member.

And, of course, even if Netflix could identify

someone, somewhere, they would still need to

establish how they were made a part of this case or

controversy—without notice and without an

opportunity to simply opt out. See, e.g., Phillips

Petroleum Co. v. Shutts, 472 U.S. 797, 811 (1985); U.S.

Const. art. 3, §2.

*****

No one—not Netflix, not the District Court, and not

the Panel—has ever identified any specific class

member who is diverse. No showing of minimal

diversity has ever been made. The theory seems to be

a hunch that it’s someone, from somewhere, and it’s

not California. But we just can’t tell you who. And,

we can’t tell you where they’re from.

45a

That doesn’t satisfy minimal diversity’s

requirement to identify a specific person. Simply put,

“it is not sufficient that jurisdiction may be inferred

argumentatively from averments in the pleadings[.]”

See Bender, 475 U.S. at 546-547. The Herndon family

asks this Court to identify the specific person and the

specific state of citizenship that creates diversity in

this case—or call for a response for Netflix to do so.

Otherwise, this Court must remand to the

Superior Court of California for want of

jurisdiction.

46a

APPENDIX F:

EXCERPT OF RESPONDENT’S NOTICE OF REMOVAL

PERTAINING TO DIVERSITY OF CITIZENSHIP

6. Minimal Diversity. The diversity requirement of

§ 1332(d) is satisfied if at least one putative class

member is a citizen of a different state than at least

one defendant. 28 U.S.C. § 1332(d)(2)(A). Here, defendant Netflix is a citizen of California, where its

principal place of business is located, and Delaware,

where it is incorporated. Compl. ¶ 9; Young Decl. ¶ 2.

Though Plaintiffs fail to include a class definition in

their Complaint, Plaintiffs purport to bring the Action

on behalf of class members allegedly harmed by the

Netflix show Thirteen Reasons Why, which was distributed throughout the United States via Netflix’s

streaming service. Because the class is not geographically limited, it includes members nationwide, and

CAFA’s diversity requirement is satisfied. See, e.g.,

Compl. ¶ 44 (alleging that a Florida school superintendent reported a spike in youth at-risk behavior shortly

after the show’s release); id. ¶ 48 (alleging suicide

rates “in the United States” have been correlated to

the release of the show).

47a

APPENDIX G:

EXCERPT OF RESPONDENT’S SUICIDE FACT SHEET

FROM THE WORLD HEALTH ORGANIZATION (WHO)

World Health

Organization

Suicide

17 June 2021

Key Facts

•

•

•

•

•

More than 700 000 people die due to suicide every

year.

For every suicide there are many more people who

attempt suicide. A prior suicide attempt is the

single most important risk factor for suicide in the

general population.

Suicide is the fourth leading cause of death in 1519-year-olds.

77% of global suicides occur in low- and middleincome countries.

Ingestion of pesticide, hanging and firearms are

among the most common methods of suicide

globally.

Every year 703 000 people take their own life and

there are many more people who attempt suicide.

Every suicide is a tragedy that affects families,

48a

communities and entire countries and has long-lasting

effects on the people left behind. Suicide occurs

throughout the lifespan and was the fourth leading

cause of death among 15-29 year-olds globally in 2019.

Suicide does not just occur in high-income countries,

but is a global phenomenon in all regions of the world.

In fact, over 77% of global suicides occurred in lowand middle-income countries in 2019.

Suicide is a serious public health problem; however,

suicides are preventable with timely, evidence-based

and often low-cost interventions. For national

responses to be effective, a comprehensive

multisectoral suicide prevention strategy is needed.

Who is at risk?

While the link between suicide and mental disorders

(in particular, depression and alcohol use disorders) is

well established in high-income countries, many

suicides happen impulsively in moments of crisis with

a breakdown in the ability to deal with life stresses,

such as financial problems, relationship break-up or

chronic pain and illness.

In addition, experiencing conflict, disaster, violence,

abuse, or loss and a sense of isolation are strongly

associated with suicidal behaviour. Suicide rates are

also high amongst vulnerable groups who experience

49a

discrimination, such as refugees and migrants;

indigenous

peoples;

lesbian,

gay,

bisexual,

transgender, intersex (LGBTI) persons; and prisoners.

By far the strongest risk factor for suicide is a previous

suicide attempt.

Methods of suicide

It is estimated that around 20% of global suicides are

due to pesticide self-poisoning, most of which occur in

rural agricultural areas in low- and middle-income

countries. Other common methods of suicide are

hanging and firearms.

Knowledge of the most commonly used suicide

methods is important to devise prevention strategies

which have shown to be effective, such as restriction

of access to means of suicide.

Prevention and control

Suicides are preventable. There are a number of

measures that can be taken at population,

subpopulation and individual levels to prevent suicide

and suicide attempts. LIVE LIFE, WHO’s approach

to suicide prevention, recommends the following key

effective evidence-based interventions:

•

limit access to the means of suicide (e.g.

pesticides, firearms, certain medications);

50a

•

•

•

interact with the media for responsible

reporting of suicide;

foster

socio-emotional

life

skills

in

adolescents;

early identify, assess, manage and follow up

anyone who is affected by suicidal

behaviours.,

These need to go hand-in-hand with the following

foundational pillars: situation analysis, multisectoral

collaboration, awareness raising, capacity building,

financing,

surveillance

and

monitoring

and

evaluation.

Challenges and obstacles

Stigma and taboo

Stigma, particularly surrounding mental disorders

and suicide, means many people thinking of taking

their own life or who have attempted suicide are not

seeking help and are therefore not getting the help

they need. The prevention of suicide has not been

adequately addressed due to a lack of awareness of

suicide as a major public health problem and the taboo

in many societies to openly discuss it. To date, only a

few countries have included suicide prevention among

their health priorities and only 38 countries report

having a national suicide prevention strategy.

51a

Raising community awareness and breaking down the

taboo is important for countries to make progress in

preventing suicide.

Data quality

Globally, the availability and quality of data on suicide

and suicide attempts is poor. Only some 80 Member

States have good-quality vital registration data that

can be used directly to estimate suicide rates. This

problem of poor-quality mortality data is not unique to

suicide, but given the sensitivity of suicide – and the

illegality of suicidal behaviour in some countries – it

is likely that under-reporting and misclassification

are greater problems for suicide than for most other

causes of death.

Improved surveillance and monitoring of suicide and

suicide attempts is required for effective suicide

prevention strategies. Cross-national differences in

the patterns of suicide, and changes in the rates,

characteristics and methods of suicide, highlight the

need

for

each

country

to

improve

the

comprehensiveness, quality and timeliness of their

suicide-related data. This includes vital registration

of suicide, hospital-based registries of suicide

attempts and nationally-representative surveys

collecting information about self-reported suicide

attempts.

52a

WHO response

WHO recognizes suicide as a public health priority.

The first WHO World Suicide Report “Preventing

suicide: a global imperative”, published in 2014, aims

to increase the awareness of the public health

significance of suicide and suicide attempts and to

make suicide prevention a high priority on the global

public health agenda. It also aims to encourage and

support countries to develop or strengthen

comprehensive suicide prevention strategies in a

multisectoral public health approach.

Suicide is one of the priority conditions in the WHO

Mental Health Gap Action Programme (mhGAP)

launched in 2008, which provides evidence-based

technical guidance to scale up service provision and

care in countries for mental, neurological and

substance use disorders. In the WHO Mental Health

Action Plan 2013–2030, WHO Member States have

committed themselves to working towards the global

target of reducing the suicide rate in countries by one

third by 2030.

In addition, the suicide mortality rate is an indicator

of target 3.4 of the Sustainable Development Goals: by

2030, to reduce by one third premature mortality from

noncommunicable diseases through prevention and

treatment, and promote mental health and well-being.