Nearly 100 tech companies file an amicus brief opposing the ban

Court filing by 97 tech companies including Apple, Google and Twitter opposed to the immigration order. Opposition to Trump travel ban grows as key court decision looms

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No. 17-35105
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STATE OF WASHINGTON, et al.,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, et al.,
Defendants-Appellants.

On Appeal from an Order of the United States
District Court for the Western District of Washington
United States District Judge James L. Robart
Case No. 2:17-cv-00141-JLR
MOTION FOR LEAVE TO FILE BRIEF OF
TECHNOLOGY COMPANIES AND OTHER BUSINESSES
AS AMICUS CURIAE IN SUPPORT OF APPELLEES

Andrew J. Pincus
Paul W. Hughes
MAYER BROWN LLP
1999 K Street N.W.
Washington, D.C. 20006
(202) 263-3000
Counsel for Amici Curiae
February 5, 2017

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MOTION FOR LEAVE TO FILE BRIEF OF
TECHNOLOGY COMPANIES AND OTHER BUSINESSES
AS AMICI CURIAE IN SUPPORT OF APPELLEES
Pursuant to Rule 29 of the Federal Rules of Appellate Procedure and Circuit
Rule 29-3, amici curiae (a full list of amici is attached as Appendix A to Exhibit
A1), by and through undersigned counsel, respectfully move for leave to file a 20page amicus curiae brief in support of Appelleesa Opposition to Appellantsa
Emergency Motion for Stay Pending Appeal. Amici state as follows:
1.

Amici are leading technology companies and leading businesses from

other sectors of the U.S. economy. These companiesa operations are affected by the
Executive Order issued on January 27, 2017, entitled aProtecting the Nation from
Foreign Terrorist Entry into the United Statesa (the aOrdera).
2.

The Order represents a significant departure from the principles of

fairness and predictability that have governed the immigration system of the
United States for more than fifty yearsaand the Order inflicts significant harm on
American business, innovation, and growth as a result. The Order makes it more
difficult and expensive for U.S. companies to recruit, hire, and retain some of the
worldas best employees. It disrupts ongoing business operations. And it threatens
companiesa ability to attract talent, business, and investment to the United States.

Complete corporate disclosure statements for each amici are attached as
Appendix B to Exhibit A.
1

1

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3.

The proposed amicus brief, attached to this motion as Exhibit A,

explains how the Order will harm amicias business operations and is contrary to
law.
4.

Counsel for Appellants and Appellees both have consented to the

filing of an amicus brief.
5.

Out of an abundance of caution, amici file this motion to request the

Courtas leave to file a 20-page brief.
6.

Neither the Federal Rules of Appellate Procedure nor this Courtas

Rules clearly authorize the filing of an amicus curiae brief in connection with a
motion for a stay, even when the parties have consented to its filing.
7.

In addition, Fed. R. App. P. 29(a)(5) states that, except with the

Courtas permission, an amicus brief may be no more than one-half the maximum
length authorized by these rules for a partyas principal brief. Circuit Rule 271(1)(d) does not speak in terms of abriefs,a instead stating that, except with the
Courtas permission, a motion or response to a motion may not exceed 20 pages.
Because it is unclear whether Circuit Rule 27-1 limits amici to 10 pages, and
because amici believe that a 20-page brief is warranted in light of the importance
and novelty of the issues presented, amici request the Courtas leave to file a 20page brief.

2

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CONCLUSION
Amici respectfully request that the Court grant their motion for leave to file a
20-page amicus curiae brief and accept for filing the amicus curiae brief attached
as Exhibit A.
Respectfully submitted,
/s/ Andrew J. Pincus
Andrew J. Pincus
Paul W. Hughes
MAYER BROWN LLP
1999 K Street, N.W.
Washington, D.C. 20006
(202) 263-3000
Counsel for Amici Curiae
Dated: February 5, 2017

3

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CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), the
undersigned counsel certifies that this motion:
(i)

complies with the typeface requirements of Rule 32(a)(5) and the type

style requirements of Rule 32(a)(6) because it has been prepared using Microsoft
Office Word 2007 and is set in Times New Roman font in a size equivalent to 14
points or larger and,
(ii)

complies with the length requirement of Rule 27(d)(2) because it is

470 words.

Dated: February 5, 2017

/s/ Paul W. Hughes
Paul W. Hughes
MAYER BROWN LLP

4

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CERTIFICATE OF SERVICE
I certify that on this 5th day of February 2017, I served the foregoing Motion
for Leave to File Brief of Technology Companies and Other Businesses as Amici
Curiae in Support of Appellees via the Courtas ECF system upon all counsel.

Dated: February 5, 2017

/s/ Paul W. Hughes
Paul W. Hughes
MAYER BROWN LLP

5

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No. 17-35105
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STATE OF WASHINGTON, et al.,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, et al.,
Defendants-Appellants.

On Appeal from an Order of the United States
District Court for the Western District of Washington
United States District Judge James L. Robart
Case No. 2:17-cv-00141-JLR
BRIEF OF TECHNOLOGY COMPANIES AND
OTHER BUSINESSES AS AMICI CURIAE
IN SUPPORT OF APPELLEES

Andrew J. Pincus
Paul W. Hughes
MAYER BROWN LLP
1999 K Street N.W.
Washington, D.C. 20006
(202) 263-3000
Counsel for Amici Curiae

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CORPORATE DISCLOSURE STATEMENTS
Amici curiae submit their corporate disclosure statements, as required by
Fed. R. App. P. 26.1 and 29(c), in Appendix B.

/s/ Paul W. Hughes
Paul W. Hughes
Attorney for Amici Curiae

February 5, 2017

i

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TABLE OF CONTENTS
Interest of Amici Curiae.............................................................................................1
Argument....................................................................................................................1
I.

American Innovation And Economic Growth Are Intimately Tied To
Immigration........................................................................................................4

II.

The Executive Order Harms The Competitiveness Of U.S. Companies ...........8

III. The Executive Order Is Unlawful ....................................................................13
A. The Order discriminates on the basis of nationality ...................................13
B. The Order exercises discretion arbitrarily...................................................16
Conclusion ...............................................................................................................20
Appendix A - List of Amici Curiae..........................................................................1a
Appendix B - Corporate Disclosures for Amici Curiae.......................................... 6a

ii

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TABLE OF AUTHORITIES
Page(s)
Cases
Arizona v. United States,
132 S. Ct. 2492 (2012)........................................................................................16
Aziz v. Trump,
17-cv-116 (E.D. Va. Feb. 1, 2017) .......................................................................9
Bertrand v. Sava,
684 F.2d 204 (2d Cir. 1982) ...............................................................................15
Coates v. City of Cincinnati,
402 U.S. 611 (1971)............................................................................................19
FCC v. League of Women Voters of Cal.,
468 U.S. 364 (1984)............................................................................................18
Foley v. Connelie,
435 U.S. 291 (1978)..............................................................................................1
Grayned v. City of Rockford,
408 U.S. 104 (1972)................................................................................17, 19, 20
Judulang v. Holder,
565 U.S. 42 (2011)..............................................................................................16
United States ex rel. Knauff v. Shaughnessy,
338 U.S. 537 (1950)................................................................................16, 17, 18
Legal Assistance for Vietnamese Asylum Seekers v. Depat of State,
45 F.3d 469 (D.C. Cir. 1995)..............................................................................14
Mojica v. Reno,
970 F. Supp. 130 (E.D.N.Y. 1997) .......................................................................7
Olsen v. Albright,
990 F. Supp. 31 (D.D.C. 1997)...........................................................................15
Rosenberg v. Fleuti,
374 U.S. 449 (1963)......................................................................................16, 20
iii

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Wong Wing Hang v. INS,
360 F.2d 715 .......................................................................................................15
Statutes and Rules
8 U.S.C.
ASS 1152(a)(1)(A).......................................................................................14, 15, 16
ASSa1182(f) ........................................................................................................17, 18
ASSa1185(a)(1)......................................................................................................... 17
Fed. R. App. 29(a)(4)(E)............................................................................................1
Other Authorities
Americas Socay & Council of The Americas, Bringing Vitality To
Main Street (2015), https://goo.gl/i9NWc9......................................................4, 5
Anca D. Cristea, Buyer-Seller Relationships in International Trade,
84 J. Intal Econ. 207 (2011) ................................................................................11
BGRS, Breakthrough to the Future of Global Talent Mobility: Global
Mobility Trends Survey (2016), http://goo.gl/ZhIxSr.........................................11
Cong. Research Serv., Executive Authority to Exclude Aliens: In Brief
(Jan. 23, 2017), https://goo.gl/D0bRkS ..............................................................19
Depat of Homeland Security, Protecting The Nation From Foreign
Terrorist Entry To The United States (Jan. 29, 2017),
https://goo.gl/IYa1bg ............................................................................................9
Diana Furchtgott-Roth, Manhattan Institute, The Economic Benefits
Of Immigration (Feb. 2013), https://goo.gl/lsWhb5.............................................5
Elizabeth Grieco, U.S. Census Bureau, The Foreign-Born Population
in the United States (2012), https://goo.gl/PZ3pnE..............................................1
Gallup, Majority of Americans Identify Themselves as Third
Generation Americans (July 10, 2001), https://goo.gl/o7PRxv ...........................1
H.R. Rep. No. 89-745 (1965).............................................................................14, 16
The Hamilton Project, Ten Economic Facts About Immigration
(Sept. 2010), goo.gl/3zpdpn..................................................................................6
iv

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Harv. Bus. Rev., Strategic Global Mobility (2014),
http://goo.gl/AV3nhJ ..........................................................................................11
Hearing before the Subcomm. on Immigration and Naturalization, S.
Comm. on the Judiciary, 89th Cong., 1st Sess. (Feb. 10, 1965) ........................14
Immigration Laws and Iranian Students,
4A Op. O.L.C. 133 (1979) ..................................................................................17
John F. Kennedy, A Nation of Immigrants (1958)................................................1, 2
Jonathan Shieber, Apple CEO Tim Cook Sent An Email to Employees
About the Immigration Ban, TechCrunch (Jan. 28, 2017),
https://goo.gl/qzXDJO ........................................................................................10
Kathianne Boniello, Customs Agents Ignore Judge, Enforce Trumpas
Travel Ban: ACLU, N.Y. Post, Jan. 19, 2017,
https://goo.gl/AgcHd4...........................................................................................9
Laura King et al., Confusion Reigns at U.S. Airports as Protests of
Trump Executive Order Enter Second Day, L.A. Times,
Jan. 29, 2017, goo.gl/9kSm9G..............................................................................8
Letter from Bradford L. Smith, President and Chief Legal Advisor,
Microsoft, to John F. Kelly, Secay of Homeland Security, and Rex
W. Tillerson, Secay of State (Feb. 2, 2017), https://goo.gl/AZtcFV ..................10
Lyndon B. Johnson, Remarks at the Signing of the Immigration Bill
(Oct. 3, 1965) ........................................................................................................7
Maksim Belenkiy & David Riker, Face-to-Face Exports: The Role of
Business Travel in Trade Promotion, 51 J. Travel Res. 632 (2012) ..................11
Memorandum from Donald F. McGahn II, Counsel to the President,
to the Acting Secay of State, the Acting Attay Gen., and the Secay
of Homeland Security (Feb. 1, 2017), https://goo.gl/oqb9A6..............................9
Miriam Jordan et al., Donald Trumpas Immigration Order Sparks
Confusion, Despair at Airports, Wall St. J., Jan. 29, 2017,
goo.gl/eTbrsY .......................................................................................................8

v

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Muzaffar Chishti & Claire Bergeron, Post-9/11 Policies Dramatically
Alter the U.S. Immigration Landscape, Migration Policy Inst. (Sep.
8, 2011), https://goo.gl/6rdagt ..............................................................................2
New American Economy, Reason for Reform (Oct. 2016) .......................................5
Nune Hovhannisyan & Wolfgang Keller, International Business
Travel: An Engine of Innovation, 20 J. Econ. Growth 75 (2015) ......................11
Pew Research Center, Second-Generation Americans: A Portrait of
the Adult Children of Immigrants (Feb. 7, 2013),
https://goo.gl/SRaXxc...........................................................................................1
Pia Orrenius, Benefits of Immigration Outweigh the Costs, The
Catalyst: A Journal of Ideas from the Bush Institute (2016),
https://goo.gl/qC9uOc...........................................................................................5
Partnership for a New American Economy, The aNew Americana
Fortune 500 (2011), http://goo.gl/yc0h7u ............................................................4
Partnership for a New American Economy, Open For Business: How
Immigrants Are Driving Small Business Creation in the United
States, Aug. 2012, https://goo.gl/zqwpVQ ...........................................................5
S. Rep. No. 89-748 (1965) .......................................................................................14
Seth Fiegerman, Former Google Exec Calls Trump Travel Ban An
aEnormous Problem,a CNN Tech (Jan. 30, 2017),
https://goo.gl/vNVgLt.........................................................................................11
Shannon Pettypiece & Michelle Jamrisko, Trumpas Order on Refugee
Limits Draws Iran Retaliation Threat, Bloomberg Politics
(Jan. 27, 2017), http://goo.gl/DKLWgf ..............................................................12
Stuart Anderson, Immigrant Flooding America with Nobel Prizes,
Forbes (Oct. 16, 2016), http://goo.gl/RILwXU ....................................................6
Tara Palmeri & Bryan Bender, Politico, U.S. Diplomats Warning
GEas Major Deals in Iraq at Risk over Travel Ban, Feb. 1, 2017,
http://goo.gl/nhj9CZ ...........................................................................................12

vi

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U.S. Depat of State, National Consortium for the Study of Terrorism
and Responses to Terrorism: Annex of Statistical Information
(2016)..................................................................................................................18
U.S. Depat of State, Office of the Historian, The Immigration Act of
1924 (The Johnson-Reed Act), https://goo.gl/5foFNZ .........................................7
Vivek Wadhwa, et al., Americaas New Immigrant Entrepreneurs
(2007), https://goo.gl/wCIySz ..............................................................................6
4 Woodrow Wilson, A History of the American People (1902) ...............................7

vii

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INTEREST OF AMICI CURIAE
Amici curiae are 97 leading businesses from the technology sector and other
parts of the economy. A list of amici is set forth in Appendix A.1
ARGUMENT
America proudly describes itself as aa nation of immigrants.a Foley v.
Connelie, 435 U.S. 291, 294 (1978). We are: in 1910, 14.7% of the population was
foreign born; in 2010, 12.9%.2 A quarter of us have at least one parent who was
born outside the country.3 Close to half of us have a grandparent born somewhere
else.4 Nearly all of us trace our lineage to another country.
The acontributions of immigrants,a then-Senator John F. Kennedy explained,
acan be seen in every aspect of our national life.a John F. Kennedy, A Nation of
Immigrants 4 (1958). aWe see it in religion, in politics, in business, in the arts, in
education, even in athletics and in entertainment.a Id. There is ano part of our nation,a he recognized, athat has not been touched by our immigrant background.a Id.
1

Amici state that no partyas counsel authored this brief in whole or in part, that
no party or partyas counsel contributed money that was intended to fund preparing
or submitting the brief, and that no person other than amici or its counsel contributed money that was intended to fund preparing or submitting the brief. See Fed. R.
App. 29(a)(4)(E).
2
Elizabeth Grieco, U.S. Census Bureau, The Foreign-Born Population in the
United States 3 (2012), https://goo.gl/PZ3pnE.
3
Pew Research Center, Second-Generation Americans: A Portrait of the Adult
Children of Immigrants 8 (Feb. 7, 2013), https://goo.gl/SRaXxc.
4
Gallup, Majority of Americans Identify Themselves as Third Generation Americans (July 10, 2001), https://goo.gl/o7PRxv.

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Immigrants make many of the Nationas greatest discoveries, and create some
of the countryas most innovative and iconic companies. Immigrants are among our
leading entrepreneurs, politicians, artists, and philanthropists. The experience and
energy of people who come to our country to seek a better life for themselves and
their childrenato pursue the aAmerican Dreamaaare woven throughout the social,
political, and economic fabric of the Nation.
For decades, stable U.S. immigration policy has embodied the principles that
we are a people descended from immigrants, that we welcome new immigrants,
and that we provide a home for refugees seeking protection. At the same time,
America has long recognized the importance of protecting ourselves against those
who would do us harm. But it has done so while maintaining our fundamental
commitment to welcoming immigrantsathrough increased background checks and
other controls on people seeking to enter our country.5
On January 27, 2017, President Donald J. Trump signed Executive Order
13769. See 82 Fed. Reg. 8977 (2017) (the aOrdera). The Order alters immigration
policy in significant respects:
5

aIn the decade since 9/11,a immigration policy has incorporated, among other
things, amajor new border security and law enforcement initiatives, heightened visa controls and screening of international travelers and would-be immigrants, the
collection and storage of information in vast new interoperable databases used by
law enforcement and intelligence agencies, and the use of state and local law enforcement as force multipliers in immigration enforcement.a Muzaffar Chishti &
Claire Bergeron, Post-9/11 Policies Dramatically Alter the U.S. Immigration
Landscape, Migration Policy Inst. (Sep. 8, 2011), https://goo.gl/6rdagt.
2

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aC/ Seven-nation entry bar: for a period of at least 90 days, nationals of seven nationsaSyria, Libya, Iran, Iraq, Somalia, Yemen, and Sudanaare barred from
entering the United States. Order ASS 3(c).
aC/ Potential expansion of entry bar: the Order indicates that this entry bar could
be lengthened, and may be expanded to include individuals from any country
that is determined, based on unspecified criteria, not to provide sufficient information to the United States. Id. ASS 3(e)-(f).
aC/ Waivers based on unconstrained discretion: the Order permits the Secretaries
of State and Homeland Security to exercise discretion in issuing visas to nationals from the seven affected countries aon a case-by-case basis.a Id. ASS 3(g).
aC/ Refugee suspension: for a period of at least 120 days, the United States is suspending the Refugee Admissions Program. Id. ASS 5(a). If the Refugee Admission
Program resumes, the Secretary of Homeland Security is to aprioritize refugee
claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individualas
country of nationality.a Id. ASS 5(b).
The Order effects a sudden shift in the rules governing entry into the United
States, and is inflicting substantial harm on U.S. companies. It hinders the ability
of American companies to attract great talent; increases costs imposed on business;
makes it more difficult for American firms to compete in the international marketplace; and gives global enterprises a new, significant incentive to build operationsaand hire new employeesaoutside the United States.
The Order violates the immigration laws and the Constitution. In 1965, Congress prohibited discrimination on the basis of national origin precisely so that the
Nation could not shut its doors to immigrants based on where they come from.
Moreover, any discretion under the immigration laws must be exercised reasonably,
and subject to meaningful constraints.
3

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I.

American Innovation And Economic Growth Are Intimately Tied To
Immigration.
The tremendous impact of immigrants on Americaaand on American busi-

nessais not happenstance. People who choose to leave everything that is familiar
and journey to an unknown land to make a new life necessarily are endowed with
drive, creativity, determinationaand just plain guts. The energy they bring to
America is a key reason why the American economy has been the greatest engine
of prosperity and innovation in history.
Immigrants are leading entrepreneurs. aThe American economy stands apart
because, more than any other place on earth, talented people from around the globe
want to come here to start their businesses.a Partnership for a New American
Economy, The aNew Americana Fortune 500, at 5 (2011), http://goo.gl/yc0h7u.
Some of these businesses are large. Immigrants or their children founded
more than 200 of the companies on the Fortune 500 list, including Apple, Kraft,
Ford, General Electric, AT&T, Google, McDonaldas, Boeing, and Disney. Id. at 1.
Collectively, these companies generate annual revenue of $4.2 trillion, and employ
millions of Americans. Id. at 2.
Many of these businesses are small. aWhile accounting for 16 percent of the
labor force nationally and 18 percent of business owners, immigrants make up 28
percent of Main Street business owners.a Americas Socay & Council of The
Americas, Bringing Vitality To Main Street (2015), https://goo.gl/i9NWc9. These
4

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are athe shops and services that are the backbone of neighborhoods around the
country.a Id. Between 2006 and 2010, immigrants opened 28% of all new businesses in the United States. See Partnership for a New American Economy, Open
For Business: How Immigrants Are Driving Small Business Creation in the United
States 3, Aug. 2012, https://goo.gl/zqwpVQ.
Immigrant-entrepreneurs come from all parts of the world. In 2014, a19.1
percent of immigrants from the Middle East and North Africa were entrepreneurs.a
New

American

Economy,

Reason

for

Reform

2

(Oct.

2016),

https://goo.gl/32dLNM.
Immigrants also fuel the growth of the economy as a whole. aWhen immigrants enter the labor force, they increase the productive capacity of the economy
and raise GDP. Their incomes rise, but so do those of natives.a Pia Orrenius, Benefits of Immigration Outweigh the Costs, The Catalyst: A Journal of Ideas from the
Bush Institute (2016), https://goo.gl/qC9uOc. Immigrants do not take jobs away
from U.S. citizensathey create them. Thus, immigration aexpand[s] the American
work-force,

and

encourage[s]

more

business

start-upsaaensuring

that

a[b]usinesses ranging from Apple Corporation to apple growers would be able to
find the workers they need in America.a Diana Furchtgott-Roth, Manhattan Institute, The Economic Benefits Of Immigration 1 (Feb. 2013), https://goo.gl/lsWhb5.
Immigrants are innovators. Since 2000, more than one-third of all American
5

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Nobel prize winners in Chemistry, Medicine, and Physics have been immigrants.
See Stuart Anderson, Immigrant Flooding America with Nobel Prizes, Forbes (Oct.
16, 2016), http://goo.gl/RILwXU. Among individuals with advanced educational
degrees, immigrants are nearly three times more likely to file patents than U.S.born citizens. Michael Greenstone & Adam Looney, The Hamilton Project, Ten
Economic Facts About Immigration 11 (Sept. 2010), https://goo.gl/3zpdpn. By one
estimate, non-citizen immigrants were named on almost a quarter of all U.S.-based
international patent applications filed in 2006. Vivek Wadhwa et al., Americaas
New Immigrant Entrepreneurs 4 (Jan. 4, 2007), https://goo.gl/wCIySz. Inventions
and discoveries by immigrants have profoundly changed our Nation. Some, like
alternating current (Nikola Tesla), power our world. Others, like nuclear magnetic
resonance (Isidore Rabi) and flame-retardant fiber (Giuliana Tesoro), save lives.
And yet others, like basketball (James Naismith), blue jeans (Levi Strauss), and the
hot dog (Charles Feltman), are integral to our national identity.
Americaas success in attracting and incorporating immigrants into our society is unrivaled in the world. To be sure, America has in the past deviated from this
ideal. Woodrow Wilson in 1901 decried the immigration to the United States of
amultitudes of men of the lowest class from the south of Italy and men of the
meanest sort out of Hungary and Poland, men out of the ranks, where there was
neither skill nor energy nor any initiative of quick intelligence, and they came in
6

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numbers which increased from year to year, as if the countries of the south of Europe were disburdening themselves of the more sordid and hapless elements of
their population.a 4 Woodrow Wilson, A History of the American People 212-13
(1902). The Immigration Act of 1917 (also known as the Literacy Act) barred immigration from parts of Asia. And in 1924, the Johnson-Reed Act significantly restricted Italian and Jewish immigration to the United States in an effort to apreserve the ideal of U.S. homogeneity.a U.S. Depat of State, Office of the Historian,
The Immigration Act of 1924 (The Johnson-Reed Act), https://goo.gl/5foFNZ.
But the march of time has discredited these laws and policies. Since World
War II, American immigration policy has been one of atolerance, equality and
opennessa in which athe United States has revived its traditional rhetoric of welcomeaand matched its words with action.a Mojica v. Reno, 970 F. Supp. 130, 145
(E.D.N.Y. 1997).
When President Johnson signed the Immigration and Nationality Act in
1965athe law establishing the immigration framework that remains today, including the elimination of national quotas, he stated:
America was built by a nation of strangersa|. And from this experience, almost unique in the history of nations, has come Americaas attitude toward the rest of the world. We, because of what we are, feel
safer and stronger in a world as varied as the people who make it upa
a world where no country rules another and all countries can deal with
the basic problems of human dignity and deal with those problems in
their own way.
7

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Lyndon B. Johnson, Remarks at the Signing of the Immigration Bill (Oct. 3, 1965).
These principles have defined American immigration policy for the past 50
years. The beneficiaries are not just the new immigrants who chose to come to our
shores, but American businesses, workers, and consumers, who gain immense advantages from immigrantsa infusion of talents, energy, and opportunity.
II.

The Executive Order Harms The Competitiveness Of U.S. Companies.
The Executive Order abandons those principlesaand inflicts significant

harm on American business, innovation, and growth as a result. The Order makes
it more difficult and expensive for U.S. companies to recruit, hire, and retain some
of the worldas best employees. It disrupts ongoing business operations. And it
threatens companiesa ability to attract talent, business, and investment to the United States.
1. The Order threatens the long-standing stability of the U.S. immigration
laws, which have been marked by clear, settled standards and constrained discretionaintroducing sudden changes without notice, unclear standards for implementation, and no standards for the exercise of waiver authority. That shift deprives
employees and businesses of the predictability they require.
The uncertainty became apparent as soon as the Order was issued. Officials
at U.S. airports struggled to implement it.6 After several courts temporarily en-

6

See, e.g., Laura King et al., Confusion Reigns at U.S. Airports as Protests of
8

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joined the Order, government officials reportedly did not comply.7
This confusion appears to be a consequence of the sudden issuance of the
Order, without public notice and without following the normal channels for government review. Because the Order denies entry to all aaliensa from the seven targeted countries, Order ASS 3(c), government officials initially excluded lawful permanent residents (LPRs) from the country; within two days, the Department of
Homeland Security changed course and exempted LPRs from the Orderas scope;8
then, four days later, the Counsel to the President reversed course again and
claimed that the Order did not (despite its plain text) apply to LPRs in the first
place.9
The Order establishes a system of acase-by-casea exceptions, but does not
specify any criteria for issuing exceptions. Order ASSASSa3(g), 5(e). Because individual
immigration officers appear to have unconstrained discretion in issuing exceptions,
Trump Executive Order Enter Second Day, L.A. Times, Jan. 29, 2017,
goo.gl/9kSm9G; Miriam Jordan et al., Donald Trumpas Immigration Order Sparks
Confusion, Despair at Airports, Wall St. J., Jan. 29, 2017, http://goo.gl/eTbrsY.
7
See, e.g., Aziz v. Trump, 17-cv-116 (E.D. Va. Feb. 1, 2017) (Dkt. No. 20) (motion by Commonwealth of Virginia to hold the government in contempt);
Kathianne Boniello, Customs Agents Ignore Judge, Enforce Trumpas Travel Ban:
ACLU, N.Y. Post, Jan. 19, 2017, https://goo.gl/AgcHd4.
8
See, e.g., Depat of Homeland Security, Protecting The Nation From Foreign
Terrorist Entry To The United States (Jan. 29, 2017), https://goo.gl/IYa1bg.
9
Memorandum from Donald F. McGahn II, Counsel to the President, to the Acting Secay of State, the Acting Attay Gen., and the Secay of Homeland Security
(Feb. 1, 2017), https://goo.gl/oqb9A6 (a[T]o remove any confusion, I now clarify
that Sections 3(c) and 3(e) do not apply to such individuals.a).
9

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it is unclear what exemptions will be given, or whyaand whether that authority is
being exercised fairly and without discrimination or favoritism.
If the Order stands, it is impossible for individuals and businesses to anticipate which countries may be affected next. The Order itself promises to ban individuals from additional countries if those nations do not provide information the
Secretary of State deems necessary to approve visas. See Order ASSa3(e)-(f).
The Order has had immediate, adverse effects on the employees of American businesses. Several major companies reported substantial disruptions from the
Order, because their employees were ensnared in the Orderas travel restrictions.10
This instability and uncertainty will make it far more difficult and expensive
for U.S. companies to hire some of the worldas best talentaand impede them from
competing in the global marketplace. Businesses and employees have little incentive to go through the laborious process of sponsoring or obtaining a visa, and relocating to the United States, if an employee may be unexpectedly halted at the border. Skilled individuals will not wish to immigrate to the country if they may be
cut off without warning from their spouses, grandparents, relatives, and friendsa
they will not pull up roots, incur significant economic risk, and subject their family
10

See, e.g., Letter from Bradford L. Smith, President and Chief Legal Advisor,
Microsoft, to John F. Kelly, Secay of Homeland Security, and Rex W. Tillerson,
Secay of State, at 5 (Feb. 2, 2017), https://goo.gl/AZtcFV; Jonathan Shieber, Apple
CEO Tim Cook Sent An Email to Employees About the Immigration Ban,
TechCrunch (Jan. 28, 2017), https://goo.gl/qzXDJO.
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to considerable uncertainty to immigrate to the United States in the face of this instability.11
2. The Orderas bans on travel are also significantly impairing day-to-day
business. The marketplace for todayas businesses is global. Companies routinely
send employees across borders for conferences, meetings, or job rotations, and invite customers, clients, or users from abroad. Global mobility is critical to businesses whose customers, suppliers, users, and workforces are spread all around the
world.12
Global business travel lets employees develop new skills, take on expanded
roles, and stay abreast of new technological or business developments. It also facilitates new markets and business partnerships. Indeed, one study has shown that
each additional international business trip increases exports from the United States
to the visited country by, on average, over $36,000 per year.13
But the Order means that many companies and employees (both inside and
11

Seth Fiegerman, Former Google Exec Calls Trump Travel Ban An aEnormous
Problem,a CNN Tech (Jan. 30, 2017), https://goo.gl/vNVgLt (aIt sends a powerful
signal that this is not a country that wants the best people in the world.a).
12
See, e.g., BGRS, Breakthrough to the Future of Global Talent Mobility: Global
Mobility Trends Survey (2016), http://goo.gl/ZhIxSr; Harv. Bus. Rev., Strategic
Global Mobility (2014), http://goo.gl/AV3nhJ.
13
Maksim Belenkiy & David Riker, Face-to-Face Exports: The Role of Business
Travel in Trade Promotion, 51 J. Travel Res. 632, 637 (2012); see also Anca D.
Cristea, Buyer-Seller Relationships in International Trade, 84 J. Intal Econ. 207
(2011); Nune Hovhannisyan & Wolfgang Keller, International Business Travel:
An Engine of Innovation, 20 J. Econ. Growth 75 (2015).
11

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outside the United States) are unable to take advantage of these opportunities. That
is true even for persons or countries not currently covered by the Order because
there is no way to know whether a given country may be added to the no-entry list.
The Order also could well lead to retaliatory actions by other countries,
which would seriously hinder U.S. companiesa ability to do business or negotiate
business deals abroad.14 Many companies do business in one or more of the countries currently covered by the Order. Indeed, U.S. diplomats already are reporting
that General Electric may lose out on business deals in Iraq potentially worth billions of dollars. 15 Additional actions against American citizens or business will
have a further ripple effect.
3. For all of these reasons, the Order will incentivize both immigration to
and investment in foreign countries rather than the United States. Highly skilled
immigrants will be more interested in working abroad, in places where they and
their colleagues can travel freely and with assurance that their immigration status
will not suddenly be revoked. Multinational companies will have strong incentives,
including from their own employees, to base operations outside the United States
or to move or hire employees and make investments abroad. Foreign companies
14

See Shannon Pettypiece & Michelle Jamrisko, Trumpas Order on Refugee Limits Draws Iran Retaliation Threat, Bloomberg Politics (Jan. 27, 2017),
http://goo.gl/DKLWgf.
15
Tara Palmeri & Bryan Bender, U.S. Diplomats Warning GEas Major Deals in
Iraq at Risk over Travel Ban, Politico (Feb. 1, 2017), http://goo.gl/nhj9CZ.
12

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will have significantly less incentive to establish operations in the United States
and hire American citizens, because the Order will preclude the ability of those
companies to employ their world-class talent within their U.S. subsidiaries. Ultimately, American workers and the economy will suffer as a result.
Of course, the federal government can and should implement targeted, appropriate adjustments to the nationas immigration system to enhance the Nationas
security. But a broad, open-ended banatogether with an indication that the ban
could be expanded to other countries without noticeadoes not fit the goal of making the country more secure. Instead, it will undermine American interests.
III.

The Executive Order Is Unlawful.
The problems that render the Executive Order harmful to businesses and

their employees also make it unlawful. Fairness, regularity, and predictability are
core principles of immigration law and of U.S. law generally.
A.

The Order discriminates on the basis of nationality.

Immigration law contains a clear command: in issuing visas and making
admission decisions, immigration officials cannot discriminate based on an alienas
nationality, race, sex, or any other invidious classification. The Order violates that
commitment, and harms the Nationas economy and competitiveness in the process.
Congress first codified an antidiscrimination requirement in the immigration
laws in 1965. For four decades before that, U.S. immigration was governed by the
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anational origin system,a a set of discriminatory quotas under which athe selection
of immigrants was based upon race and place of birth.a H.R. Rep. No. 89-745, at
8-10 (1965). As President Johnson explained in 1965, this system was not just aincompatible with our basic American traditiona; atoo often,a he added, ait arbitrarily denie[d] us immigrants who ha[d] outstanding and sorely needed talents and
skills.a Id. at 11-12. Many others echoed these views.16
Congress agreed. That year, it aaboli[shed] a| the national origins systema
and replaced it with one based largely upon athe advantage to the United States of
the special talents and skills of an immigrant.a Id. at 18; see S. Rep. No. 89-748, at
10 (1965). To make this reform effective, Congress enacted 8 U.S.C.
ASS 1152(a)(1)(A), a sweeping antidiscrimination rule providing that ano person shall
a| be discriminated against in the issuance of an immigrant visa because of the
personas race, sex, nationality, place of birth, or place of residence.a As the D.C.
Circuit has observed, aCongress could hardly have chosen more explicit language.a Legal Assistance for Vietnamese Asylum Seekers v. Dep't of State, 45 F.3d
469, 473 (D.C. Cir. 1995), vacated on other grounds, 519 U.S. 1 (1996). It aunambiguously directed that no nationality-based discrimination shall occur.a Id.

16

See Hearing before the Subcomm. on Immigration and Naturalization, S. Comm.
on the Judiciary, 89th Cong., 1st Sess. 8 (Feb. 10, 1965) (statement of Attay Gen.
Katzenbach) (a[W]e are depriving ourselves of brilliant, accomplished, and skilled
residents of foreign countries who want to bring their talents here.a).
14

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This clear directive is reinforced by other antidiscrimination requirements.
Since 1966, federal courts have categorically held that discretion under the immigration laws amay not be exercised to discriminate invidiouslya against any arace
or group,a even if that group is not specifically named in section 1152(a)(1)(A).
Wong Wing Hang v. INS, 360 F.2d 715, 719 (2d Cir. 1966) (Friendly, J.); see also
Bertrand v. Sava, 684 F.2d 204, 212 n.12 (2d Cir. 1982) (aInvidious discrimination
against a particular race or group a| is a type of irrational conduct generally not
countenanced by our law.a). The Equal Protection Clause bars all federal officials,
including the President, from treating individuals differently because of their national origin.
The Order violates these basic precepts. It bars anyone from seven countries
from immigrating to the United States for a period of 90 days, and provides that
the President may indefinitely bar immigration from other countries, as well. Order
ASSa3(c), (e)-(f). The Order thus does exactly what section 1152(a)(1)(A) and the
Constitution prohibit: it discriminates against immigrants on the basis of nationality. See Olsen v. Albright, 990 F. Supp. 31, 39 (D.D.C. 1997) (aThe principle that
government must not discriminate against particular individuals because of the
color of their skin or the place of their birth means that the use of generalizations
based on these factors [in the immigration context] is unfair and unjustified.a).
In so doing, the Executive Order revives a form of the discriminatory and
15

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costly anational origin systema that Congress abolished in 1965. Although the rationale for the Order differs from that systemas, its basic contours are nearly the
same: a system of priority abased upon a| place of birth.a H.R. Rep. No. 89-745, at
10. And its costs will be much the same, too. It will deprive the United States of
some of the best and brightest; needlessly break up families; and betray aour basic
American tradition.a Id. at 11. In 1965, Congress enacted section 1152(a)(1)(A) to
stop these harms and base admission decisions instead on an immigrantas aspecial
talents and skills,a id. at 18aa decent and fair policy that has served the Nation, its
businesses, and its immigrants well for half a century.
B.

The Order exercises discretion arbitrarily.

The Order is also contrary to the immigration lawsa and the Constitutionas
insistence that discretion must be reasonably exercised and adequately constrained.
Numerous provisions of the immigration laws vest Executive officials with abroad
discretiona to admit, deport, or deny entry to foreign nationals. Arizona v. United
States, 132 S. Ct. 2492, 2499 (2012). But Congress and the courts have long recognized that everyoneafrom the President to individual immigration officersa
must exercise his or her discretion in a rational manner that accords with the policies of the immigration laws. See, e.g., Judulang v. Holder, 565 U.S. 42, 58-59
(2011); Rosenberg v. Fleuti, 374 U.S. 449, 455 (1963); United States ex rel. Knauff
v. Shaughnessy, 338 U.S. 537, 544 (1950).
16

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Moreover, the Due Process Clause demands that every grant of discretion
aprovide explicit standardsa so that officers will not act aon an ad hoc and subjective basis.a Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). These safeguards ensure that the immigration laws are not enforced in an aarbitrary and discriminatorya manner, id. at 109, and that immigrants, their families, and their employers are afforded consistent and predictable treatment at the hands of the Federal Government. The Executive Order fails to satisfy that standard in two significant
respects.
1. The Order issues an overbroad, seven-country ban on immigration that
lacks any basis in precedent. The Order justifies this ban by citing 8 U.S.C.
ASSa1182(f), which authorizes that President to asuspend the entry of a| any class of
aliensa whose entry he finds awould be detrimental to the interests of the United
States.a Like other grants of discretion under the immigration laws, however, that
power is not unbounded. As the Office of Legal Counselathe Presidentas own legal adviserahas explained, any suspension the President makes under this provision amust meet the test of areasonableness.aa U.S. Depat of Justice, Immigration
Laws and Iranian Students, 4A Op. O.L.C. 133, 140 (1979). Other immigration
provisions reinforce that conclusion: section 1185(a)(1) provides that aliens may
not aenter the United States except under such reasonable rules, regulations, and
orders a| as the President may prescribe,a 8 U.S.C. ASSa1185(a)(1) (emphasis added),
17

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while in Knauff the Supreme Court reviewed whether an order suspending entry
was areasonable in the circumstances of the period for which [it was] authorized,a
338 U.S. at 544 (emphasis added).
The Order is not areasonablea in scope. The Order says that its purpose is to
aprevent infiltration by foreign terrorists or criminals.a Order ASSa3(c). But the ban it
imposes applies to millions of individuals who could not plausibly be foreign terrorists: hundreds of thousands of students, employees, and family members of citizens who have already been admitted to the United States; thousands of visaholders who have already passed the Nationas rigorous screening process; and
countless peaceful individuals residing or born in the targeted countries. The Order
is also under-inclusive with respect to its goal; a number of countries left off the
list have a greater incidence of terrorist attacks than the seven the Order includes.17
There is a mismatch between means and ends. See, e.g., FCC v. League of Women
Voters of Cal., 468 U.S. 364, 396 (1984).
There is no precedent for an order like this one in magnitude or kind. Since
section 1182(f) was enacted in 1952, Presidents have invoked the provision dozens
of times. But in every prior instance, Presidents issued a targeted restriction on entryausually limited to dozens or hundreds of individualsabased on the determi17

See U.S. Depat of State, National Consortium for the Study of Terrorism and
Responses to Terrorism: Annex of Statistical Information 5 (2016) (listing top 10
countries with most terrorist attacks, of which only three are included in the order).
18

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nation that each affected individual had engaged in culpable conduct, such as human trafficking, illegal entry, or corruption. See Cong. Research Serv., Executive
Authority to Exclude Aliens: In Brief 6-10 (Jan. 23, 2017), https://goo.gl/D0bRkS
(listing each previous order). No order before this one imposed a categorical ban of
hundreds of millions of foreign nationals.
The Order also introduces severe uncertainty into the immigration system. If
this approach were upheld, future orders might apply to any nation, and suddenly
and unexpectedly bar its nationals from entering or returning to the United States.
That severely undermines immigrantsa and businessesa ability to make plans, conduct business, or manage any affairs involving non-citizens.
2. The Executive Order vests immigration officials with open-ended discretion to make exceptions to the immigration ban, as to both visa holders (Order ASS
3(g)) and refugees (id. ASS 5(e)).
These provisions establish precisely the sort of arbitrary enforcement
scheme that both the Due Process Clause and the immigration laws prohibit. It is
inconceivable that thousands of border patrol and consular officers, adjudicating
millions of visa applications and requests for entry around the globe, will agree
even in broad terms when admission is ain the national interest.a18

18

Grayned, 408 U.S. at 108-09 (due process forbids laws that adelegate[] basic
policy matters a| for resolution on an ad hoc and subjective basisa); Coates v. City
of Cincinnati, 402 U.S. 611, 614 (1971) (invalidating ordinance whose enforce19

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Regrettably, some immigration officers could use their discretion improperlyaengaging in profiling or favoritism, for instance, or in aarbitrary and discriminatory enforcement.a Grayned, 408 U.S. at 108. Yet the Order provides no system
to police such inconsistency or abuse; to the contrary, it states that every exercise
of discretion be acase-by-case,a and purports to block judicial review of officersa
decisions entirely. See Order ASSa11(c) (stating that the Order adoes not a| create any
right or benefit, substantive or procedural, enforceable at law or in equity by any
persona).
For any immigrant ensnared in this system, the prospect of entry becomes a
asport of chance.a Rosenberg, 374 U.S. at 460. Immigrants, family members, and
businesses deserve much betteraand Congress and the Constitution entitle them to
an immigration system that is administered reasonably, non-arbitrarily, and in accord with statutory requirements. The Order contravenes that bedrock guarantee.
CONCLUSION
The Court should deny Appellantsa motion.

ment aentirely depend[ed] upon whether or not a policeman is annoyeda).
20

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Respectfully submitted.
/s/ Andrew J. Pincus
Andrew J. Pincus
Paul W. Hughes
MAYER BROWN LLP
1999 K Street, N.W.
Washington, D.C. 20006
(202) 263-3000
apincus@mayerbrown.com
phughes@mayerbrown.com
Counsel for Amici Curiae

Dated: February 5, 2017

21

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CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), the undersigned counsel certifies that this brief:
(i)

complies with the typeface requirements of Rule 32(a)(5) and the type

style requirements of Rule 32(a)(6) because it has been prepared using Microsoft
Office Word 2007 and is set in Times New Roman font in a size equivalent to 14
points or larger and,
(ii)

amici have requested leave to file a 20-page brief.

Dated: February 5, 2017

/s/ Paul W. Hughes
Paul W. Hughes
MAYER BROWN LLP

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CERTIFICATE OF SERVICE
I hereby certify that on this 5th day of February 2017, I filed the foregoing
Brief of Technology Companies and Other Businesses As Amici Curiae in Support
of Appellees via the CM/ECF system and served the foregoing via the CM/ECF
system on all counsel who are registered CM/ECF users.

Dated: February 5, 2017

/s/ Paul W. Hughes
Paul W. Hughes
MAYER BROWN LLP

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APPENDIX A
LIST OF AMICI CURIAE
1.

AdRoll, Inc.

2.

Aeris Communications, Inc.

3.

Airbnb, Inc.

4.

AltSchool, PBC

5.

Ancestry.com, LLC

6.

Appboy, Inc.

7.

Apple Inc.

8.

AppNexus Inc.

9.

Asana, Inc.

10.

Atlassian Corp Plc

11.

Autodesk, Inc.

12.

Automattic Inc.

13.

Box, Inc.

14.

Brightcove Inc.

15.

Brit + Co

16.

CareZone Inc.

17.

Castlight Health

18.

Checkr, Inc.
1a

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19.

Chobani, LLC

20.

Citrix Systems, Inc.

21.

Cloudera, Inc.

22.

Cloudflare, Inc.

23.

Copia Institute

24.

DocuSign, Inc.

25.

DoorDash, Inc.

26.

Dropbox, Inc.

27.

Dynatrace LLC

28.

eBay Inc.

29.

Engine Advocacy

30.

Etsy Inc.

31.

Facebook, Inc.

32.

Fastly, Inc.

33.

Flipboard, Inc.

34.

Foursquare Labs, Inc.

35.

Fuze, Inc.

36.

General Assembly

37.

GitHub

38.

Glassdoor, Inc.
2a

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39.

Google Inc.

40.

GoPro, Inc.

41.

Harmonic Inc.

42.

Hipmunk, Inc.

43.

Indiegogo, Inc.

44.

Intel Corporation

45.

JAND, Inc. d/b/a Warby Parker

46.

Kargo Global, Inc.

47.

Kickstarter, PBC

48.

KIND, LLC

49.

Knotel

50.

Levi Strauss & Co.

51.

LinkedIn Corporation

52.

Lithium Technologies, Inc.

53.

Lyft, Inc.

54.

Mapbox, Inc.

55.

Maplebear Inc. d/b/a Instacart

56.

Marin Software Incorporated

57.

Medallia, Inc.

58.

A Medium Corporation
3a

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59.

Meetup, Inc.

60.

Microsoft Corporation

61.

Motivate International Inc.

62.

Mozilla Corporation

63.

Netflix, Inc.

64.

NETGEAR, Inc.

65.

NewsCred, Inc.

66.

Patreon, Inc.

67.

PayPal Holdings, Inc.

68.

Pinterest, Inc.

69.

Quora, Inc.

70.

Reddit, Inc.

71.

Rocket Fuel Inc.

72.

SaaStr Inc.

73.

Salesforce.com, Inc.

74.

Scopely, Inc.

75.

Shutterstock, Inc.

76.

Snap Inc.

77.

Spokeo, Inc.

78.

Spotify USA Inc.
4a

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79.

Square, Inc.

80.

Squarespace, Inc.

81.

Strava, Inc.

82.

Stripe, Inc.

83.

SurveyMonkey Inc.

84.

TaskRabbit, Inc

85.

Tech:NYC

86.

Thumbtack, Inc.

87.

Turn Inc.

88.

Twilio Inc.

89.

Twitter Inc.

90.

Turn Inc.

91.

Uber Technologies, Inc.

92.

Via

93.

Wikimedia Foundation, Inc.

94.

Workday

95.

Y Combinator Management, LLC

96.

Yelp Inc.

97.

Zynga Inc.

5a

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APPENDIX B
CORPORATE DISCLOSURES FOR AMICI CURIAE
1.

AdRoll, Inc. has no parent corporation and no publicly held corpora-

tion owns 10% or more of its stock.
2.

Aeris Communications, Inc. has no parent corporation and no publicly

held corporation owns 10% or more of its stock.
3.

Airbnb, Inc. has no parent corporation and no publicly held corpora-

tion owns 10% or more of Airbnbas stock.
4.

AltSchool, PBC has no parent corporation and no publicly held corpo-

ration owns 10% or more of its stock.
5.

Ancestry.com, LLC has no parent corporation and no publicly held

corporation owns 10% or more of its stock.
6.

Appboy, Inc. has no parent corporation and no publicly held corpora-

tion owns 10% or more of its stock.
7.

Apple Inc. has no parent corporation and no publicly held corporation

owns 10% or more of its stock.
8.

AppNexus Inc. has no parent corporation and the following publicly

held corporations own 10% or more of its stock: Microsoft Corporation and WPP
Luxembourg Gamma Three S.A r.l.

6a

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9.

Asana, Inc. has no parent corporation and no publicly held corporation

owns 10% or more of its stock.
10.

Atlassian Corp. Plc has no parent corporation and no publicly held

corporation owns 10% or more of its stock.
11.

Autodesk, Inc. has no parent corporation and no publicly held corpo-

ration owns 10% or more of its stock.
12.

Automattic Inc. has no parent corporation and no publicly held corpo-

ration owns 10% or more of its stock.
13.

Box, Inc. has no parent corporation and no publicly held corporation

owns 10% or more of its stock.
14.

Brightcove Inc. has no parent corporation and no publicly held corpo-

ration owns 10% or more of its stock.
15.

Brit Media, Inc. d/b/a Brit + Co has no parent corporation and no pub-

licly held corporation owns 10% or more of its stock.
16.

CareZone Inc. has no parent corporation and no publicly held corpora-

tion owns 10% or more of its stock.
17.

Castlight Health has no parent corporation and no publicly held corpo-

ration owns 10% or more of its stock.
18.

Checkr, Inc. has no parent corporation, and no publicly held corpora-

tion owns 10% or more of its stock.
7a

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19.

Chobani Global Holdings, LLC is the sole member of Chobani, LLC

and no publicly held corporation owns 10% or more of the membership interest in
either entity.
20.

Citrix Systems, Inc. has no parent corporation and no publicly held

corporation owns 10% or more of its stock.
21.

Cloudera, Inc. has no parent corporation and the following publicly

held corporation own 10% or more of its stock: Intel Corporation.
22.

Cloudflare, Inc. has no parent corporation and no publicly held corpo-

ration owns 10% or more of its stock.
23.

Copia Institute has no parent corporation and no publicly held corpo-

ration owns 10% or more of its stock.
24.

DocuSign, Inc. has no parent corporation and no publicly held corpo-

ration owns 10% or more of its stock.
25.

DoorDash has no parent corporation and no publicly held corporation

owns 10% or more of its stock.
26.

Dropbox, Inc. has no parent corporation and no publicly held corpora-

tion owns 10% or more of its stock.
27.

Dynatrace LLCas parent corporation is Compuware Parent, LLC and

no publicly held corporation owns 10% or more of its stock.

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28.

eBay Inc. has no parent corporation and no publicly held corporation

owns 10% or more of its stock.
29.

Engine Advocacy has no parent corporation and no publicly held cor-

poration owns 10% or more of its stock.
30.

Etsy Inc. has no parent corporation and no publicly held corporation

owns 10% or more of its stock.
31.

Facebook, Inc. has no parent corporation and no publicly held corpo-

ration owns 10% or more of its stock.
32.

Fastly, Inc. has no parent corporation and no publicly held corporation

owns 10% or more of its stock.
33.

Flipboard, Inc. has no parent corporation and no publicly held corpo-

ration owns 10% or more of its stock.
34.

Foursquare Labs, Inc. has no parent corporation and no publicly held

corporation owns 10% or more of its stock.
35.

Fuze, Inc. has no parent corporation and no publicly held corporation

owns 10% or more of its stock.
36.

General Assembly Space, Inc. has no parent corporation and no pub-

licly held corporation owns 10% or more of its stock.
37.

GitHub, Inc. (aGitHuba) has no parent corporation and no publicly

held corporation owns 10% or more of its stock.
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38.

Glassdoor, Inc. has no parent corporation and no publicly held corpo-

ration owns 10% or more of its stock.
39.

Google Inc. is a wholly owned subsidiary of Alphabet Inc.; according-

ly, Alphabet Inc. has more than 10% ownership of Google Inc.
40.

GoPro, Inc. has no parent corporation and no publicly held corpora-

tion owns 10% or more of its stock.
41.

Harmonic Inc. has no parent corporation and the following publicly

helds corporation own 10% or more of its stock: investment funds affiliated with
BlackRock hold more than 10% of Harmonic common stock; investment funds affiliated with T Rowe Price hold more than 10% of Harmonic common stock.
42.

Hipmunkas parent corporation is Concur (a division of SAP), and the

following publicly held corporation own 10% or more of its stock: SAP.
43.

Indiegogo, Inc. has no parent corporation and no publicly held corpo-

ration owns 10% or more of its stock.
44.

Intel Corporation has no parent corporation and no publicly held cor-

poration owns 10% or more of its stock.
45.

JAND, Inc. d/b/a Warby Parker has no parent corporation and no pub-

licly held corporation owns 10% or more of its stock.
46.

Kargo Global, Inc. has no parent corporation and no publicly held

corporation owns 10% or more of its stock.
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47.

Kickstarter, PBC has no parent corporation and no publicly held cor-

poration owns 10% or more of its stock.
48.

KIND, LLCas parent corporation is KIND, Inc., no publicly held cor-

poration owns 10% or more of KIND, Inc.
49.

Knotel has no parent corporation and no publicly held corporation

owns 10% or more of its stock.
50.

Levi Strauss & Co. has no parent corporation and no publicly held

corporation owns 10% or more of its stock.
51.

LinkedIn Corporationas parent corporation is Microsoft Corporation,

and the following publicly held corporation owns 10% or more of its stock: Microsoft Corporation.
52.

Lithium Technologies, Inc. has no parent corporation and no publicly

held corporation owns 10% or more of its stock.
53.

Lyft, Inc. has no parent corporation and the following publicly held

corporation own 10% or more of its stock: Rakuten, Inc., a publicly held corporation traded on the Tokyo Stock Exchange, and General Motors Company, a publicly held corporation traded on the New York Stock Exchange, each own more than
ten percent of Lyftas outstanding stock, in each case through a subsidiary.
54.

Mapbox, Inc. has no parent corporation and no publicly held corpora-

tion owns 10% or more of its stock.
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55.

Maplebear Inc. d/b/a Instacart has no parent corporation and no pub-

licly held corporation owns 10% or more of its stock.
56.

Marin Software Incorporated has no parent corporation and no public-

ly held corporation owns 10% or more of its stock.
57.

Medallia, Inc. has no parent corporation and no publicly held corpora-

tion owns 10% or more of its stock.
58.

A Medium Corporation has no parent corporation and no publicly

held corporation owns 10% or more of its stock.
59.

Meetup, Inc. has no parent corporation and no publicly held corpora-

tion owns 10% or more of its stock.
60.

Microsoft Corporation has no parent corporation and no publicly held

corporation owns 10% or more of its stock.
61.

Motivate International Inc.as parent corporation is Bikeshare Hold-

ings, LLC and no publicly held corporation owns 10% or more of its stock.
62.

Mozilla Corporationas parent corporation is Mozilla Foundation and

no publicly held corporation owns 10% or more of its stock.
63.

Netflix, Inc. has no parent corporation and no publicly held corpora-

tion owns 10% or more of its stock.
64.

NETGEAR, Inc. has no parent corporation and no publicly held cor-

poration owns 10% or more of its stock.
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65.

NewsCred, Inc. has no parent corporation and no publicly held corpo-

ration owns 10% or more of its stock.
66.

Patreon, Inc. has no parent corporation and no publicly held corpora-

tion owns 10% or more of its stock.
67.

PayPal Holdings, Inc. has no parent corporation and no publicly held

corporation owns 10% or more of its stock.
68.

Pinterest, Inc. has no parent corporation and no publicly held corpora-

tion owns 10% or more of its stock.
69.

Quora, Inc. has no parent corporation and no publicly held corporation

owns 10% or more of its stock.
70.

Reddit, Inc. has no parent corporation and no publicly held corpora-

tion owns 10% or more of its stock.
71.

Rocket Fuel Inc. has no parent corporation and no publicly held cor-

poration owns 10% or more of its stock.
72.

SaaStr Inc. has no parent corporation and no publicly held corporation

owns 10% or more of its stock.
73.

Salesforce.com, Inc. has no parent corporation and no publicly held

corporation owns 10% or more of its stock.
74.

Scopely, Inc. has no parent corporation and no publicly held corpora-

tion owns 10% or more of its stock.
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75.

Shutterstock, Inc. has no parent corporation and no publicly held cor-

poration owns 10% or more of its stock.
76.

Snap Inc. has no parent corporation and no publicly held corporation

owns 10% or more of its stock.
77.

Spokeo, Inc. has no parent corporation and there are no publicly-held

corporations that own 10% or more of Spokeo, Inc.as stock.
78.

Spotify USA Inc. is a wholly-owned subsidiary of Spotify AB, a

company organized under the laws of Sweden. Spotify AB is a wholly-owned subsidiary of Spotify Technology S.A., a company organized under the laws of the
Grand Duchy of Luxembourg. Spotify Technology S.A. does not have a parent
corporation and no publicly held corporation owns 10% or more of its stock.
79.

Square, Inc. has no parent corporation and no publicly held corpora-

tion owns 10% or more of its stock.
80.

Squarespace, Inc. has no parent corporation and no publicly held cor-

poration owns 10% or more of its stock.
81.

Strava, Inc. has no parent corporation and no publicly held corpora-

tion owns 10% or more of its stock.
82.

Stripe, Inc. has no parent corporation and no publicly held corporation

owns 10% or more of its stock.

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83.

SurveyMonkey Inc.as parent corporation is SUMK Inc. and no public-

ly held corporation owns 10% or more of its stock.
84.

TaskRabbit, Inc. has no parent corporation and no publicly held cor-

poration owns 10% or more of its stock.
85.

Tech:NYC has no parent corporation and no publicly held corporation

owns 10% or more of its stock.
86.

Thumbtack, Inc. has no parent corporation and no publicly held cor-

poration owns 10% or more of its stock.
87.

Turn Inc. has no parent corporation and no publicly held corporation

owns 10% or more of its stock.
88.

Twilio Inc. has no parent corporation and no publicly held corporation

owns 10% or more of its stock.
89.

Twitter Inc. has no parent corporation and no publicly held corpora-

tion owns 10% or more of its stock.
90.

Turn Inc. has no parent entity and no publicly held corporation holds

10% or more of its stock.
91.

Uber Technologies, Inc. has no parent entity and no publicly held cor-

poration holds 10% or more of its stock.
92.

Via Transportation, Inc. has no parent corporation and no publicly

held corporation owns 10% or more of its stock.
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93.

Wikimedia Foundation, Inc. has no parent corporation and no publicly

held corporation owns 10% or more of its stock.
94.

Workday has no parent entity and no publicly held corporation holds

10% or more of its stock.
95.

Y Combinator Management, LLC has no parent corporation and no

publicly held corporation owns 10% or more of its stock.
96.

Yelp Inc. has no parent corporation and no publicly held corporation

owns 10% or more of its stock.
97.

Zynga Inc. has no parent corporation and no publicly held corporation

owns 10% or more of its stock.

16a