United States District Court, D. Oregon
AXTS INC., d/b/a Radian Weapons, an Oregon corporation; Plaintiff,
GY6VIDS LLC, a Texas limited liability Company, Defendant.
OPINION AND ORDER
MICHAEL MCSHANE UNITED STATES DISTRICT JUDGE
AXTS Inc. (Radian) manufactures firearms and firearm
accessories in Redmond, OR. They hired Defendant GY6vids LLC
(GY6) to promote their products on a YouTube channel. Radian
brings claims of fraud and unlawful trade practices against
GY6 who, in turn asserts five counterclaims: (1) breach of
contract (failure to pay); (2) breach of contract
(confidentiality); (3) intentional interference with economic
relations; (4) a civil action under the Computer Fraud and
Abuse Act (18 U.S.C. § 1030(g)) (CFAA); and (5) attorney
fees. Radian moves to dismiss counterclaims two through four.
the facts alleged do not support a claim under the CFFA,
Radian's motion is GRANTED as to the fourth counterclaim.
That claim is DISMISSED with prejudice. Radian's motion
is DENIED with respect to the remaining counterclaims.
a video production company with a focus on firearms related
content. Def.'s Answer, Affirmative Defenses, and
Countercls. (Answer) at 51, ECF No. 15. In August of 2017,
Josiah Underwood, Radian's Director of Operations,
contacted Andrew Boetjer, GY6's CEO, to discuss the
possibility of Radian sponsoring a GY6 video. Id.
¶¶ 52-53. Mr. Underwood proposed that GY6 create a
promotional video featuring a Radian product to appear in
front of a GY6 video. Id. ¶ 53.
Radian then signed a contract stating that Radian would pay
$0.03 per view for the first six months that Radian posted
the video to YouTube. Id. ¶ 54. GY6 alleges
that it agreed to the discounted price of $0.03 per view with
the hope that it would lead to more business with Radian in
the future. Id. The contract also contained a
confidentiality clause that restricted the ability of the
parties to discuss the terms of the contract with third
parties. Id. ¶ 59.
created a 30-second video that promoted Radian and attached
it to a video GY6 posted to YouTube on October 1, 2017.
Id. ¶ 60. The video was viewed 527, 208 times
in its first month of release. Id. ¶ 65. GY6
sent Radian an invoice for $15, 816.24 for the first month,
which Radian paid. Id. GY6 then sent Radian an
invoice for $42, 442.29 for the second month's 1, 414,
743 views. Id. ¶¶ 66, 70. Radian did not
pay the second invoice. Id. On December 14, 2017, an
attorney representing Radian sent GY6 a letter asserting that
the contract was void and unenforceable. Id. ¶
February 5, 2018, GY6's counsel sent a demand letter
seeking damages for Radian's failure to pay under the
contract. Id. ¶ 74. Counsel for Radian
maintained that the contract was “void and
unenforceable.” Id. GY6 then experienced a
rapid uptick in “dislikes” of its YouTube videos.
Id. ¶ 75. GY6's videos had received fewer
than 50, 000 aggregate dislikes in the six years that it had
posted content to YouTube prior to its contract dispute with
Radian. Id. On February 20, 2018, GY6's videos
received nearly 19, 000 dislikes. Id. One month
later, GY6's videos received approximately 4, 000
dislikes in a single day. Id. Specifically, GY6
alleges that Radian, “directly or indirectly,
coordinated and executed a cyberattack on GY6vids'
YouTube channel by causing an excessive number of dislikes to
appear on GY6vids' videos, and by obscuring [Radian] as
the source of those dislikes.” Id. ¶ 77.
In response to the influx of dislikes, GY6 removed the video,
and others, from public availability. Id. ¶ 78.
April 6, 2018, Radian filed the complaint in this matter and
the marked increase in dislikes of GY6's content stopped.
Id. ¶ 76. Radian alleges that GY6 breached its
contractual obligations when it removed the video sponsored
by Radian from public availability. Id. ¶ 78.
GY6 alleges that Radian “orchestrated its cyberattack
against GY6vids for the improper purposes of harming GY6vids
and evading its debts.” Id. ¶¶
77-78. In addition to the claims discussed below, GY6 alleges
that Radian breached the contract by refusing to pay $.03 per
view for the second month's views, or any later views.
Radian does not move to dismiss that claim.
survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a
complaint must contain sufficient factual matter that
“state[s] a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). A claim is plausible on its face when
the factual allegations allow the court to infer the
defendant's liability based on the alleged conduct.
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The
factual allegations must present more than “the mere
possibility of misconduct.” Id. at 678.
considering a motion to dismiss, the court must accept all
allegations of material fact as true and construe those facts
in the light most favorable to the non-movant. Burget v.
Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663
(9th Cir. 2000). But the court is “not bound to accept
as true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555. If the
complaint is dismissed, leave to amend should be granted
unless “the pleading could not possibly be cured by the
allegation of other facts.” Doe v. United
States, 58 F.3d 494, 497 (9th Cir. 1995).
moves to dismiss the following counterclaims: (2) breach of
contract (confidentiality); (3) IIER; and (4) a civil ...