UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
YANGTZE MEMORY TECHNOLOGIES,
INC., et al.,
Plaintiffs,
v. Civil Action No. 1:25-cv-01795 (CJN)
MICRON TECHNOLOGY, INC., et al.,
Defendants.
MEMORANDUM OPINION
Yangtze Memory Technologies, Inc., and Yangtze Memory Technologies Co., Ltd.,
(collectively, YMTC) claim that Micron Technology, Inc., and DCI Group AZ, LLC, violated the
Lanham Act, 15 U.S.C. § 1125(a), by running an astroturfing campaign that discouraged
customers from purchasing memory chips from YMTC due to its connections to the Chinese
government. ECF 1. Micron and DCI move to dismiss. ECF 21; ECF 24. Because the
publications that YMTC challenges do not constitute commercial speech—and therefore cannot
be the basis for Lanham Act liability—the Court grants those motions.
I. Background
Headquartered in Wuhan, China, Yangtze Memory Technologies Co., Ltd., “is a leading
developer and manufacturer of advanced 3D NAND flash memory and related storage
technologies.”1 ECF 1 ¶ 21. Its U.S.-based subsidiary, Yangtze Memory Technologies, Inc.,
manages YMTC’s American presence and business development. Id. ¶ 22. “YMTC has
1
“[O]n a motion to dismiss,” the Court of course “accept[s] as true the well-pleaded factual allegations of the complaint.” Davis v. Billington, 681 F.3d 377, 379 (D.C. Cir. 2012).
1
successfully designed and manufactured 3D NAND flash memory chips that set new benchmarks
for bit density, input/output performance, and storage capacity.” Id. ¶ 31. Enticed by these
technological advancements and lower prices, Apple selected YMTC to be its supplier of advanced
memory chips in 2022.2 Id. ¶¶ 19, 34.
Micron competes against YMTC in the market for memory chips. Id. ¶ 2. “[T]hreatened
by YMTC’s ascension,” Micron worked with DCI, a public affairs firm, “to erect a sophisticated
. . . ‘astroturfing’ campaign . . . to damage YMTC’s reputation and business for their own profit.”
Id. ¶¶ 2, 7, 23. It funded a website called China Tech Threat that “purport[ed] to be focused on
policy” but was actually a front “to disseminate favorable messages about Micron’s products and
disparaging messages about YMTC’s competing products.” Id. ¶¶ 8–10.
In September 2020, China Tech Threat began its “disinformation campaign.” Id. ¶ 12. A
January 2021 blog post titled “As YMTC Booms, China Aims to Dominate Flash Memory
Industry” asserted that YMTC was associated with “criminal activity, including a Social Security
spoofing scam, identity theft and cyber extortion.” Id. ¶ 12 & n.4 (quoting ECF 1-3 at 2). And a
June 2022 report titled “Silicon Sellout: How Apple’s Partnership with Chinese Military Chip
Maker YMTC Threatens American National Security” implored “Apple to voluntarily end its
partnership with YMTC” and “source its chips from existing suppliers like Micron.” Id. ¶ 13
(alterations adopted) (quoting ECF 1-4 at 4).
YMTC alleges that China Tech Threat’s “false and misleading statements caused YMTC
to lose significant business opportunities and derailed ongoing negotiations with major customers
2
The complaint refers to the large customer in question generically as “OEM Customer #1.” See, e.g., ECF 1 ¶ 34. “OEM Customer #1” appears to be Apple given that YMTC challenges a publication that criticizes the deal between YMTC and Apple, see id. ¶ 13, and YMTC does not deny Micron’s assertion that “OEM Customer #1 refers to Apple,” ECF 24-1 at 28.
2
and technical partners.” Id. ¶ 60. Most notably, Apple suspended its plans to purchase chips from
YMTC in October 2022, resulting in “hundreds of millions of dollars in lost revenue.” Id. ¶ 61.
The astroturfing campaign also “inflicted lasting damage on YMTC’s reputation and commercial
standing across the technology sector.” Id. ¶ 62.
In June 2025, YMTC filed this suit. ECF 1. Citing five statements from the China Tech
Threat publications, YMTC raises claims of direct and contributory liability under the Lanham
Act, which “prohibits deceptive trade practices such as false advertising and trademark
infringement.” Farah v. Esquire Mag., 736 F.3d 528, 540 (D.C. Cir. 2013). Micron and DCI
move to dismiss. ECF 21; ECF 24. Although they make other arguments, both contend that
dismissal is required because the challenged publications are not commercial speech and are
therefore not actionable under the Lanham Act.
II. Article III Standing
The Court begins, as it must, with jurisdiction. “Because Article III limits the
constitutional role of the federal judiciary to resolving cases and controversies, a showing of
standing is an essential and unchanging predicate to any exercise of [the Court’s] jurisdiction.”
Nat. Res. Def. Council v. EPA, 755 F.3d 1010, 1016 (D.C. Cir. 2014) (quoting Fla. Audubon Soc’y
v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (en banc)). Article III standing requires that a
plaintiff “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v.
Robins, 578 U.S. 330, 338 (2016). “To establish injury in fact, a plaintiff must show that he or she
suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual
or imminent, not conjectural or hypothetical.’” Id. at 339 (quoting Lujan v. Defs. of Wildlife, 504
U.S. 555, 560 (1992)). Causation requires that the injury is “fairly traceable to the challenged
3
action of the defendant, and not the result of the independent action of some third party not before
the court.” Lujan, 504 U.S. at 560 (alterations adopted) (quoting Simon v. E. Ky. Welfare Rts.
Org., 426 U.S. 26, 41–42 (1976)). And “it must be ‘likely,’ as opposed to merely ‘speculative,’
that the injury will be ‘redressed by a favorable decision.’” Id. at 561 (quoting Simon, 426 U.S. at
38, 43).
DCI (but not Micron) contends that YMTC has failed to adequately allege that it has
Article III standing.3 ECF 21 at 7–11. As for injury in fact, YMTC alleges that “Defendants’ false
and misleading statements caused [it] to lose significant business opportunities and derailed
ongoing negotiations with major customers and technical partners.” ECF 1 ¶ 60. It details a
specific example of Micron’s and DCI’s alleged actions causing it to lose a major customer:
Apple. Id. ¶ 61. And YMTC explains that it “suffered substantial financial harm, including lost
sales, forfeited market opportunities, and increased mitigation costs” and “lasting damage on [its]
reputation and commercial standing across the technology sector.” Id. ¶ 62. Given that
“[e]conomic harm to a business clearly constitutes an injury-in-fact,” Carpenters Indus. Council
v. Zinke, 854 F.3d 1, 5 (D.C. Cir. 2017); see also Lexmark Int’l, Inc. v. Static Control Components,
Inc., 572 U.S. 118, 125 (2014) (agreeing that “allegations of lost sales and damage to its business
reputation give [a plaintiff] standing under Article III”), these allegations more than suffice. DCI’s
3
Micron does not argue that YMTC lacks Article III standing. See ECF 24-1. Nonetheless, “it is well established that the court has an independent obligation to assure that standing exists, regardless of whether it is challenged by any of the parties.” Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009). For the same reasons that YMTC has adequately pleaded that it has standing to pursue its claims against DCI, it also has adequately pleaded that it has standing to sue Micron. Indeed, YMTC alleges that Micron was the mastermind behind the scheme to injure it. See ECF 1 ¶ 24 (asserting that Micron “collaborated with DCI’s co-located operations to plan, fund, direct, and oversee the challenged campaign, using DCI as its agent and instrumentality to execute a coordinated effort to damage YMTC’s competitive standing while shielding Micron’s own direct involvement”).
4
suggestion—based on an outdated, out-of-circuit district court decision, see Stahl L. Firm v.
Judicate W., No. 13-cv-1668, 2013 WL 4873065, at *3, *6 (N.D. Cal. Sept. 12, 2013)—that
YMTC must plead a competitive injury lacks any basis in the standard for pleading an injury in
fact.
“Causation, or ‘traceability,’ examines whether it is substantially probable . . . that the
challenged acts of the defendant, not of some absent third party, . . . cause[d] the particularized
injury of the plaintiff.” Fla. Audubon Soc’y, 94 F.3d at 663 (citation omitted). “It may be enough,”
however, “that the defendant’s conduct is one among multiple causes.” Orangeburg v. FERC, 862
F.3d 1071, 1080 (D.C. Cir. 2017) (quoting 13A Wright & Miller’s Federal Practice & Procedure
§ 3531.5 (3d ed. 2008)). At the pleading stage, a plaintiff’s “burden” to establish that its “injury
is ‘fairly traceable’ to” the defendant’s conduct “is relatively modest.”4 Bennett v. Spear, 520 U.S.
154, 171 (1997); accord In re U.S. Off. of Pers. Mgmt. Data Sec. Breach Litig., 928 F.3d 42, 61
(D.C. Cir. 2019).
YMTC pleads a plausible chain of events that links DCI’s actions to YMTC’s injuries. The
complaint alleges that DCI directed China Tech Treat to publish a report in April 2022 that
“implore[d] ‘Apple to voluntarily end its partnership with YMTC’ and ‘source its chips from
existing suppliers like Micron.’” ECF 1 ¶ 13 (alterations adopted) (quoting ECF 1-4 at 4); see also
id. ¶¶ 8–10, 23–24, 37–38 (alleging facts about DCI’s connections to China Tech Threat and
Micron). It details how “[a]fter Defendants intensified their disinformation campaign in mid2022—specifically targeting this relationship with fabricated security allegations—[Apple]
4
DCI repeatedly relies on the Fifth Circuit’s decision in Ford v. NYLCare Health Plans of Gulf Coast, Inc., to support its argument that YMTC cannot meet the causation requirement. 301 F.3d 329 (5th Cir. 2002). But that case was decided on summary judgment, which requires a higher evidentiary burden for establishing standing than on a motion to dismiss. Id. at 332–33.
5
suspended and ultimately abandoned plans to use YMTC chips as of October 2022.” Id. ¶ 61; see
also id. ¶ 62 (alleging “lasting damage on YMTC’s reputation and commercial standing across the
technology sector” more broadly). And it bolsters the link by asserting that “[t]his deception
directly influenced and w[as] likely to influence the purchasing decisions of these audiences,
causing them to refrain from purchasing products with YMTC chips and from doing business with
YMTC, thereby directly and foreseeably harming YMTC’s sales, revenue, and market share.” Id.
¶ 70. Accepting these allegations as true—which the Court must do at this stage—“it is
substantially probable . . . that the challenged acts of the defendant . . . cause[d] the particularized
injury of the plaintiff.” Fla. Audubon Soc’y, 94 F.3d at 663.
DCI’s objection that warnings from sources other than China Tech Threat were the actual
cause of YMTC’s losses is premature and overstated.5 DCI emphasizes that “the statements
making up the alleged disinformation campaign allegedly impacting [Apple]’s decision-making
. . . appeared in several other more prominent publications that are completely unaffiliated with
DCI.” ECF 21 at 10. “But the existence of, perhaps, an equally important player in the story does
not erase [DCI]’s role.” Orangeburg, 862 F.3d at 1080. On the facts as pleaded, it is plausible
that YMTC’s injuries are fairly traceable to DCI’s alleged disinformation campaign—especially
given that several of the statements cited by DCI as evidence of intervening causes postdate
Apple’s decision to suspend its deal with YMTC. Compare ECF 1 ¶ 61 (Apple abandons plans to
5
YMTC moves for leave to file a sur-reply in part on the ground that DCI improperly raised a new argument about causation by citing additional pages of a June 2021 White House report in its reply. ECF 47 at 2–4. The Court denies that request because DCI’s reliance on additional statements in the report—which was attached in full to DCI’s motion—was not a “truly new” argument. United States ex rel. Pogue v. Diabetes Treatment Ctrs. of Am., Inc., 238 F. Supp. 2d 270, 277 (D.D.C. 2002). And, in any event, as explained below, YMTC pleads enough at this stage to plausibly suggest that its injuries are fairly traceable to DCI’s conduct even if there were other sources raising similar concerns about YMTC’s connections to China.
6
use YMTC chips in October 2022), with ECF 21-1 at 3 (entity list designation from December
2022), and ECF 21-3 at 2 (Department of Defense publication from January 2024). Although
more evidence that the China Tech Threat publications, rather than other sources, caused
customers not to do business with YMTC would likely be needed to establish standing at a later
stage of the case, see Lujan, 504 U.S. at 561 (“[E]ach element [of standing] must be supported in
the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the
manner and degree of evidence required at the successive stages of the litigation.”), YMTC has
met its present burden.
III. Merits
The Lanham Act imposes liability on “[a]ny person who, on or in connection with any
goods or services, . . . uses in commerce any word, term, name, symbol, or device, or any
combination thereof, or any false designation of origin, false or misleading description of fact, or
false or misleading representation of fact, which . . . (A) is likely to cause confusion, or to cause
mistake, or to deceive as to the affiliation, connection, or association of such person with another
person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial
activities by another person, or (B) in commercial advertising or promotion, misrepresents the
nature, characteristics, qualities, or geographic origin of his or her or another person’s goods,
services, or commercial activities.” 15 U.S.C. § 1125(a)(1). “Every circuit court of appeals to
address the scope of these provisions has held that they apply only to commercial speech.” Farah,
736 F.3d at 541. This limitation is based on the Lanham Act’s text restricting liability to only
where a speaker “uses in commerce” a “false or misleading description of fact, or false or
misleading representation of fact” “in connection with any goods or services,” 15 U.S.C.
§ 1125(a)(1), and the constitutional concern that “tak[ing] in broad swaths of noncommercial
7
speech would . . . ‘intrude on First Amendment values,’” Radiance Found., Inc. v. NAACP, 786
F.3d 316, 322 (4th Cir. 2015) (quoting Rogers v. Grimaldi, 875 F.2d 994, 998 (2d Cir. 1989)).
And, in any event, YMTC does not dispute that Micron and DCI can be liable under the Lanham
Act only for commercial speech.6
“Whatever the commercial speech doctrine entails, commercial advertising is at least at the
heart of the matter.” Nat’l Ass’n of Mfrs. v. SEC, 800 F.3d 518, 523 n.12 (D.C. Cir. 2015); see
also Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66 (1983) (“[T]he core notion of
commercial speech . . . [is] ‘speech which does no more than propose a commercial transaction.’”
(quoting Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 762
(1976))). “Commercial speech is defined as ‘expression related solely to the economic interests
of the speaker and its audience’ or ‘speech proposing a commercial transaction.’” United States
v. Philip Morris USA Inc., 566 F.3d 1095, 1143 (D.C. Cir. 2009) (quoting Cent. Hudson Gas &
Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 561–62 (1980)). “In addition to information
related to proposing a particular transaction, such as price, it can include material representations
about the efficacy, safety, and quality of the advertiser’s product, and other information asserted
for the purpose of persuading the public to purchase the product.” Id. When evaluating whether
a particular publication is commercial speech, the Court considers “the nature of the speech taken
as a whole.” Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 796 (1988); see also
Dex Media W., Inc. v. City of Seattle, 696 F.3d 952, 957 (9th Cir. 2012) (“When analyzing mixed6
Although DCI raises a “statutory standing” argument in addition to its Article III standing argument, ECF 21 at 11–15, the Court need not (and does not) address that contention before analyzing the merits of the commercial speech issue. Despite its “misleading” label, the “statutory standing” inquiry merely asks the nonjurisdictional question whether there is “a cause of action under the statute.” Lexmark, 572 U.S. at 128 & n.4.
8
content publications, . . . courts must determine as a threshold matter if a publication as a whole
constitutes commercial speech.” (emphasis added)).
As noted above, YMTC raises Lanham Act claims based on two publications from China
Tech Threat. It takes issue with a 20-page report from June 2022 titled “Silicon Sellout” that
detailed “how Apple’s partnership with Chinese military chip maker YMTC threatens American
national security.” ECF 1-4 at 2. It also objects to a short blog post from January 2021 titled “As
YMTC Booms, China Aims to Dominate Flash Memory Industry,” which warned that “statesponsored growth could position the People’s Republic of China to unseat the United States as a
leader in next-generation flash memory.” ECF 1-3 at 2. Within these publications, YMTC claims
that five statements are false and/or misleading:
• “YMTC is associated with criminal activity, including a Social Security spoofing
scam, identity theft, and cyber extortion.”
• “YMTC chips equipped with spyware and installed on Apple devices could funnel
collected data back to Beijing.”
• “YMTC chips . . . present the possibility that malicious technology . . . from the
Chinese military could be introduced to Apple end-users.”
• “YMTC chips could be . . . intentionally compromised with rogue features . . . .
These built-in and concealed vulnerabilities would not be detected during
manufacturing. They could be exploited . . . to disrupt performance or exfiltrate
data.”
• “Electronics with embedded chips are enabled with a ‘kill switch’ . . . . Such
features, under Chinese military production, could be enabled . . . to shut down
remotely by an unauthorized Chinese government actor.”
ECF 1 ¶¶ 66, 80 (alterations in original). YMTC also makes much of the 2022 report’s statement
that “[i]deally Apple will voluntarily end its partnership with YMTC” and instead “can source its
chips from existing suppliers like Micron, Kioxia, Samsung, SK Hynix, Western Digital, and
Intel.” ECF 1-4 at 4. But it does not argue—nor could it given the prescriptive and observational
9
nature of the comment—that this statement is false or misleading for purposes of Lanham Act
liability.
Micron and DCI argue that the China Tech Threat publications (and the challenged
statements therein) are not commercial speech. The Court agrees, whatever the formulation of the
doctrine. Most obviously, the 2021 blog post and 2022 report do not constitute “expression related
solely to the economic interests of the speaker and its audience.” Philip Morris, 566 F.3d at 1143
(emphasis added) (quoting Cent. Hudson, 447 U.S. at 561). The blog post warned about the risk
of China overtaking the United States in the flash memory industry and accordingly encouraged
the Trump administration “to implement controls to stop the flow of [semiconductor
manufacturing equipment] to China.” ECF 1-3 at 2–3. Given this clear focus on national security
concerns, the post was not primarily—much less solely—about economic interests. As for the
report, although it at least arguably contained some references to economic competitors in the chip
industry, the vast majority of it either outlined the foreign policy risks of the deal between YMTC
and Apple or proposed potential solutions to mitigate those risks. See ECF 1-4 at 7–17. The report
mentioned that the deal may have economic implications, but it was far from solely focused on
that aspect.
The publications in question also do not amount to “speech proposing a commercial
transaction.” Philip Morris, 566 F.3d at 1143 (quoting Cent. Hudson, 447 U.S. at 562). In Bolger
v. Youngs Drug Products Corp., the Supreme Court laid out three relevant considerations for
evaluating whether a publication “fall[s] within the core notion of commercial speech—‘speech
which does no more than propose a commercial transaction’”: (1) whether the speech is “conceded
to be [an] advertisement[],” (2) whether the speech “refer[s] to a specific product,” and (3) whether
the speaker had “an economic motivation.” 463 U.S. at 66–67 (quoting Va. State Bd., 425 U.S. at
10
762). Once again, the 2021 blog post fails this test. The post was a warning and call-to-action for
the government to stop China, not an advertisement about YMTC or its products.7 To be sure, it
did state that “YMTC is focused on 128-layer and 196-layer chips,” but it did so to flag the
company’s growing market share rather than to promote or disparage those particular products.
ECF 1-3 at 2 (citation and internal quotation marks omitted). And even if Micron, through DCI
and China Tech Threat, would potentially benefit financially from seeing its competitor’s
reputation suffer, that general economic motivation cannot alone transform the specific means at
issue here—a blog post flagging national security concerns—into commercial speech. See
Taucher v. Born, 53 F. Supp. 2d 464, 480 (D.D.C. 1999) (“Speech is not automatically considered
commercial . . . simply because it concerns economic subjects or is sold for a profit.” (citation and
internal quotation marks omitted)).
The 2022 report is similarly not “speech proposing a commercial transaction.” Philip
Morris, 566 F.3d at 1143 (quoting Cent. Hudson, 447 U.S. at 562). The report was a policy paper,
not an advertisement. See Bolger, 463 U.S. at 66. Given that “commercial advertising is at least
at the heart of” “the commercial speech doctrine,” Nat’l Ass’n of Mfrs., 800 F.3d at 523 n.12, this
non-advertising medium strongly counsels against YMTC’s position. Next, all the statements
within the report that YMTC decries as false or misleading discussed potential risks of “YMTC
chips” generally. See ECF 1-4 at 5, 10–11. It is doubtful that those references to a category of
7
The other part of YMTC’s motion for leave to file a sur-reply, ECF 47 at 4–6, argues that Micron changed its position in reply by stating that “[t]he first Bolger factor asks whether the articles ‘are advertisements as that term is commonly understood,’” ECF 41 at 9 (quoting Wash. Legal Found. v. Friedman, 13 F. Supp. 2d 51, 64 (D.D.C. 1998)). The Court also denies YMTC’s request on this issue. Micron could not and did not abandon the correct legal test, which is established by Bolger itself, and it was not a “truly new” argument for Micron to contend that the China Tech Threat publications were not advertisements under the ordinary meaning of that term, Pogue, 238 F. Supp. 2d at 277.
11
products satisfy Bolger’s second element, which concerns “reference[s] to a specific product.” 463
U.S. at 66 (emphasis added). And, once more, any potential economic motivation Micron might
have had for indirectly criticizing YMTC is not enough to transform a policy-focused publication
not “made in the context of commercial transactions” into commercial speech. Id. at 68.
Ultimately, the publications are “political speech expressing a point of view, not
commercial speech attempting to promote a good or service.” Nichols v. Club for Growth Action,
235 F. Supp. 3d 289, 298 (D.D.C. 2017). Both lacked the hallmarks of advertising. They instead
contained several indicators of advocacy, including calling for government—not consumer—
action, see, e.g., ECF 1-3 at 2 (“The Trump administration still has time to implement controls to
stop the flow of SME to China . . . .” (emphasis added)); id. at 3 (“[T]he United States should
restrict and ‘decouple’ its entire semiconductor industry from the People’s Republic of China.”
(emphasis added)); ECF 1-4 at 4 (“[T]he report describes how US policymakers must restrict
technology exports to and imports from YMTC.” (emphasis added)), and providing policy—rather
than purchase—recommendations, see, e.g., ECF 1-3 at 3 (warning of “China’s express strategy
of Military-Civil Fusion for obtaining sensitive dual-use technology”); ECF 1-4 at 5 (“[I]ncreasing
chip production in China runs counter to the strategy proposed by the U.S. Departments of
Homeland Security and Commerce to mitigate information and communications technology (ICT)
production risk and strengthen supply chain resiliency.”); id. at 10 (“The Apple-YMTC deal
presents risks to security, privacy, technology leadership, supply chain, and jobs.”). YMTC’s
attempt to focus on only four statements out of a 20-page report and one sentence out of a twopage blog post cannot overcome the overwhelmingly political nature of the publications. 8 See
8
That the China Tech Threat publications were forms of political advocacy also distinguishes this case from Ariix, LLC v. NutriSearch Corp., which concerned a review guide “that compares and
12
Riley, 487 U.S. at 796 (“[W]e do not believe that the speech retains its commercial character when
it is inextricably intertwined with otherwise fully protected speech.”).
IV. Leave to Amend
YMTC requests that the Court grant leave to amend if it finds a deficiency in the complaint.
ECF 36 at 42; ECF 37 at 31–32. The Court declines to do so. To start, YMTC’s request appears
procedurally improper because it provides no specifics as to how amendment could cure the defects
identified above. As the Court of Appeals has explained, “a bare request in an opposition to a
motion to dismiss—without any indication of the particular grounds on which amendment is
sought—does not constitute a motion [to amend] within the contemplation of Rule 15(a).”
Confederate Mem’l Ass’n, Inc. v. Hines, 995 F.2d 295, 299 (D.C. Cir. 1993) (citation omitted). In
any event, leave to amend is not appropriate here because amendment would be futile. See
Richardson v. United States, 193 F.3d 545, 548–49 (D.C. Cir. 1999) (listing “futility” as one of
the reasons that leave to amend should not be freely given). The publications are noncommercial
speech regardless of how an amended complaint might characterize them, and YMTC would
therefore be unable to state a claim for relief under the Lanham Act even if the Court permitted
amendment.
V. Conclusion
For the foregoing reasons, the Court grants Micron’s and DCI’s motions to dismiss, ECF
21; ECF 24, and denies YMTC’s motion for leave to file a sur-reply, ECF 47. The Court will issue
an Order contemporaneously with this Memorandum Opinion.
reviews nutritional supplements sold in the direct marketing industry”—a much more commercial publication. 985 F.3d 1107, 1111 (9th Cir. 2021).
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DATE: August 13, 2026
CARL J. NICHOLS
United States District Judge
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