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Case3:08-cv-00824-JSW Document102 Filed02/29/08 Page1 of 7
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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BANK JULIUS BAER & CO. LTD and
JULIUS BAER BANK AND TRUST CO.
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LTD,
No. C 08-00824 JSW
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Plaintiffs,
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v.
ORDER DENYING MOTION FOR
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PRELIMINARY INJUNCTION;
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WIKILEAKS, an entity of unknown form;
DISSOLVING PERMANENT
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WIKILEAKS.ORG, an entity of unknown
INJUNCTION; AND SETTING
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form; DYNADOT, LLC, a California limited
BRIEFING AND HEARING
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liability corporation, and DOES 1 through 10,
SCHEDULE
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inclusive,
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Defendants.
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United States District Court
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This matter comes before the Court upon consideration of Plaintiffs’ motion for a
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preliminary injunction. Having considered Plaintiffs’ pleadings, the relevant legal authority,
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and the record in this case, the Court DENIES Plaintiffs’ motion for a preliminary injunction,
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DISSOLVES the stipulated permanent injunction between Plaintiffs and Defendant Dynadot,
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and sets the hearing and briefing schedule on the pending motions.
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BACKGROUND
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On February 6, 2008, Plaintiffs Bank Julius Baer & Co., Ltd. and Julius Baer Bank and
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Trust Co, Ltd. (“Plaintiffs”) filed this action alleging causes of action for unlawful and unfair
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business practices in violation of California Business and Professions Code section 17200,
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declaratory relief, interference with contract, interference with prospective economic advantage,
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conversion, and injunctive relief. Plaintiffs allege that Defendants WikiLeaks, Wikileaks.org

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Case3:08-cv-00824-JSW Document102 Filed02/29/08 Page2 of 7
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and Dynadot, LLC have unlawfully and wrongfully published on the website wikileaks.org
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confidential, as well as forged, bank documents belonging to Plaintiffs. Plaintiffs allege that
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such publication violates consumer banking and privacy protection law, under both foreign and
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American law.
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On February 8, 2008, Plaintiffs filed an ex parte application for a temporary restraining
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order (“TRO”) and order to show cause re preliminary injunction. The Court set out a briefing
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schedule requiring any opposition be filed no later than February 12, 2008. Although duly
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served, the Court received no response from any defendant. On February 14, 2008, this Court
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held a hearing at which Plaintiffs and Defendant Dynadot appeared and represented that they
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had reached an agreement. Per that agreement, Dynadot would (1) lock the wikileaks.org
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domain name and account in order to prevent access to and any changes from being made to the
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domain name and account information, and (2) disable the website such that the optional private
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who-is service for the domain name and account remained turned off. On February 15, 2008,
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the Court approved the parties’ settlement agreement and issued the agreed-upon permanent
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injunction, pending further order of the Court. In addition, on February 15, 2008, the Court
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entered the unopposed amended TRO against WikiLeaks which restrained WikiLeaks, or its
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agents, from the display, use or dissemination of the property identified by the Plaintiffs as
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private, personal banking information of its clients.
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In order granting the TRO, the Court further issued an Order to Show Cause (“OSC”) to
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WikiLeaks to demonstrate why a preliminary injunction should not issue continuing the TRO.
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Any opposition papers were due to be filed by no later than noon on February 20, 2008 and any
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reply was to be filed by no later than noon on February 26, 2008. The Court set a hearing on
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the motion for a preliminary injunction for February 29, 2008 at 9:00 a.m. Again, the Court did
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not receive an opposition or filing from any party, or related or interested party, by the deadline
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set in its OSC. However, between February 26, 2008 and February 28, 2008, the Court received
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numerous filings from various interested parties seeking to be heard as amicus curiae, moving
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to intervene and moving to dismiss. The Court did not receive any submission from Defendant
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Dynadot and received only a notice to appear and joinder in the various amicus briefs by an
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individual, John Shipton, who claims to be the owner of the wikileaks.org domain name.
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On February 29, 2008, this Court held a hearing on the motion for preliminary
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injunction and heard at length from all concerned parties, including Plaintiffs, Dynadot, Mr.
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Shipton, the website’s domain name owner, Daniel Mathews, a user and potential officer of
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wikileaks.org, and the numerous amicus curiae.
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The issues pending before this Court are whether the stipulated permanent injunction
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between Plaintiffs and Dynadot should be dissolved, whether Plaintiffs’ motion for preliminary
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injunction against WikiLeaks should be granted, and how to proceed procedurally with the
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various interested parties before this Court. As addressed at the hearing on this matter, the
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Court sets out its reasons and final adjudication pertaining to those issues.
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ANALYSIS
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A.
Standards Applicable to Motions for Preliminary Injunction.
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The standards for obtaining a preliminary injunction are well established. It is
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appropriate to issue a preliminary injunction if the moving party establishes either (1) a
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combination of probable success on the merits and the possibility of irreparable injury, or (2)
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that serious questions are raised and the balance of hardships tips sharply in favor of the moving
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party. Stuhlbarg Intern. Sales Co. v. John D. Brush and Co., 240 F.3d 832, 839-840 (9th Cir.
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2001). “‘These formulations are not different tests, but represent two points on a sliding scale
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in which the degree of irreparable harm increases as likelihood of success on the merits
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decreases.’” Associated Gen. Contractors of Calif. v. Coalition for Economic Equity, 950 F.2d
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1401, 1410 (9th Cir. 1991) (quoting Big Country Foods, Inc. v. Board of Education, 868 F.2d
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1085, 1088 (9th Cir. 1989)).
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In addition, within the Ninth Circuit, the Court also must consider the public interest
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when it assesses the propriety of issuing an injunction. Sammartano v. First Judicial District
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Court, 303 F.3d 959, 973 (9th Cir. 2002).
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B.
Concerns Before the Court.
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1.
Subject Matter Jurisdiction.
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The record has been substantially developed since the last hearing on this matter on the
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initial TRO. Although the amicus curiae have not as yet been granted the right to appear as
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intervenors due at least in part to the expediency of the proceedings, the interested parties have
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raised many issues which were not raised previously. In addition, federal courts have a duty to
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raise and decide issues of subject matter jurisdiction sue sponte, if at any time it appears that
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subject matter jurisdiction may be lacking. Fed. R. Civ. P. 12; Augustine v. United States, 704
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F.2d 1074, 1077 (9th Cir. 1983).
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From the face of the Complaint, Plaintiffs have indicated that they are themselves
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foreign citizens and entities formed and operated under the laws of Switzerland and the Cayman
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Islands. (Compl., ¶¶ 5, 6.) In addition, Plaintiffs have alleged that although Dynadot is a
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citizen of California, other “Defendants are each citizens or subjects of a State or different
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States or foreign states, with some of them located in and residing within the State of
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California.” (Id., ¶ 3.) Plaintiffs further allege that Defendant WikiLeaks is “a fictitious
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business name, alias and/or entity of unknown type and origin, with its principal place of
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business in the State of California.” (Id., ¶ 7.) Although there is no firm evidence of the
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citizenship of the named defendants, except Dynadot, during the oral argument on the pending
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motion, counsel for Mr. Shipton appeared and represented that the owner of the domain name
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wikileaks.org is a citizen of Australia and a resident of Kenya.
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From the founding of the federal courts, it has been unanimously held that “the courts of
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the United States have no jurisdiction of cases between aliens.” Montalet v. Murray, 8 U.S. (4
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Cranch) 46 (1807). The Ninth Circuit has adhered to this rule. “Diversity jurisdiction does not
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encompass foreign plaintiffs suing foreign defendants.” Cheng v. Boeing Co., 708 F.2d 1406,
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1412 (9th Cir. 1983). The presence of citizen defendants does not preserve jurisdiction as to the
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alien. Faysound Limited v. United Coconut Chemical, Inc., 878 F.2d 290, 294 (9th Cir. 1989)
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(citing Boeing, 708 F.2d at 1412). In order for the Court to exercise subject matter jurisdiction
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over this matter, complete diversity must be established under the original Complaint. See
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Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978).
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The Court is concerned that it may well lack subject matter jurisdiction over this matter
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in its entirety.1
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2.
Public Interest.
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Within the Ninth Circuit, the Court must consider the public interest when it assesses the
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propriety of issuing an injunction. Sammartano, 303 F.3d at 973. As made abundantly clear by
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the various submissions of the amicus curiae, the current request for an injunction, as well as
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the Court’s original entry of a stipulated injunction, raises issues regarding possible
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infringement of protections afforded to the public by the First Amendment to the United States
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Constitution. The First Amendment encompasses the “right to receive information and ideas.”
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Kleindienst v. Mandel, 408 U.S. 753, 762 (19720 (citation omitted); see also Board of
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Education v. Pico, 457 U.S. 853, 867 (1982) (“the right to receive ideas is a necessary predicate
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to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom”)
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(emphasis in original).
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Although the matter of the First Amendment implications of the permanent injunction
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against Dynadot or the more limited preliminary injunction Plaintiffs seek against WikiLeaks
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has not been fully briefed, it is clear that in all but the most exceptional circumstances, an
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injunction restricting speech pending final resolution of the constitutional concerns is
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impermissible. See Proctor & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 226-27 (6th Cir.
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1996).
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3.
Efficacy of an Injunction.
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The record currently before the Court indicates that even the broad injunction issued as
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to Dynadot had exactly the opposite effect as was intended. The private, stolen material was
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transmitted over the internet via mirror websites which are maintained in different countries all
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1 Although Plaintiffs pleaded jurisdiction under 28 U.S.C. § 1350 for a “civil action
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by an alien for a tort committed in violation of a treaty of the United States,” the Complaint
does not state a cause of action under any specific treaty, and counsel for Plaintiffs conceded
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that the Court does not maintain jurisdiction under this alternative ground. (See Compl., ¶
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over the world. Further, the press generated by this Court’s action increased public attention to
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the fact that such information was readily accessible online. The Court is not convinced that
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Plaintiffs have made an adequate showing that any restraining injunction in this case would
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serve its intended purpose. See Nebraska Press Association v. Stuart, 427 U.S. 539, 569
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(1976). In addition, there is evidence in the record that “the cat is out of the bag” and the
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issuance of an injunction would therefore be ineffective to protect the professed privacy rights
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of the bank’s clients. See In re Charlotte Observer, 921 F.2d 47, 50 (4th Cir. 1990); see also
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Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S.
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557, 564 (1980) (law that restricts speech must directly advance the state interest involved and
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may not be sustained if it provides only ineffective or remote support for that purpose.)
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4.
Narrowly Tailored Remedy.
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At the TRO hearing, the Court was concerned that because WikiLeaks failed to appear
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and no interested party appeared on their behalf, the only effective remedy to stop the leaking of
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personal banking information was the broad remedy it made available by signing the stipulated
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permanent injunction between Plaintiffs and Dynadot. However, now that the Court has the full
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panoply of parties and the interested entities before it, the Court is concerned that an injunctive
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remedy, if any, that may be available to Plaintiffs should be narrowly tailored and the least
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restrictive means to achieve the purpose of protecting banking clients from disclosure of their
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personal information. For example, given sufficient evidence that the Court has jurisdiction to
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hear the matter and that the restriction would be constitutionally valid, the Court might fashion
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an injunction requiring the limited redaction of identifying information on the leaked
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documents. Because the Court is not convinced that the existing permanent injunction is the
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least restrictive means to achieve Plaintiffs’ goals, this additional reason counsels against
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maintaining the permanent injunction or issuing a preliminary injunction at this time.
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CONCLUSION
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For the above reasons, the Court DISSOLVES the stipulated permanent injunction
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between Plaintiffs and Dynadot. In addition, the Court DENIES Plaintiffs’ motion for a
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preliminary injunction and DECLINES to extend the TRO. Lastly, the Court addresses the
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remaining interested and amicus curiae parties. All pending motions to dismiss or to intervene
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and any further motions to dismiss shall be heard on Friday, May 16, 2008 at 9:00 a.m. Any
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motion not already filed shall be filed no later than March 14, 2008. Any opposition to any
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pending motion shall be filed no later than March 28, 2008. Any reply brief shall be filed no
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later than April 4, 2008. This schedule supercedes all previous orders or stipulations approved
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by the Court. If the Court determines that any matter is suitable for resolution without oral
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argument, it will so advise the parties in advance of the hearing date. If the parties wish to
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modify this schedule, they may submit for the Court’s consideration a stipulation and proposed
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order demonstrating good cause for any modification requested.
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IT IS SO ORDERED.
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Dated: February 29, 2008

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JEFFREY S. WHITE
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UNITED STATES DISTRICT JUDGE
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