UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

HIQ LABS, INC., No. 17-16783 Plaintiff-Appellee, D.C. No. v. 3:17-cv-03301-EMC

LINKEDIN CORPORATION, Defendant-Appellant. OPINION

On Remand from the United States Supreme Court

Argued and Submitted October 18, 2021 San Francisco, California

Filed April 18, 2022 Before: J. Clifford Wallace and Marsha S. Berzon, Circuit Judges, and Terrence Berg, * District Judge.

Opinion by Judge Berzon

* The Honorable Terrence Berg, United States District Judge for the Eastern District of Michigan, sitting by designation. 2 HIQ LABS V. LINKEDIN

SUMMARY **

Preliminary Injunction / Computer Fraud and Abuse Act

On remand from the United States Supreme Court, the panel affirmed the district court’s order preliminarily enjoining LinkedIn Corp. from denying hiQ Labs, Inc., a data analytics company, access to publicly available member profiles on LinkedIn’s professional networking website.

The panel previously affirmed the preliminary injunction. The Supreme Court granted certiorari, vacated the panel’s judgment, and remanded for further consideration in light of Van Buren v. United States, 141 S. Ct. 1648 (2021). On remand, the panel again affirmed the preliminary injunction, concluding that Van Buren reinforced its determination that hiQ had raised serious questions about whether LinkedIn may invoke the Computer Fraud and Abuse Act (“CFAA”) to preempt hiQ’s possibly meritorious tortious interference claim.

The panel held that a plaintiff seeking a preliminary injunction must establish that it is likely to succeed on the merits, that it is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in its favor, and that an injunction is in the public interest. The court uses a “sliding scale” approach to these factors, so that when the balance of hardships tips sharply in the plaintiff’s favor, it need demonstrate only serious questions going to the merits. Applying this approach, the district ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. HIQ LABS V. LINKEDIN 3 court concluded that the balance of hardships tipped sharply in hiQ’s favor and that hiQ raised serious questions on the merits.

The panel held that the district court did not abuse its discretion in concluding on the preliminary injunction record that hiQ currently had no viable way to remain in business other than using LinkedIn public profile data for its “Keeper” and “Skill Mapper” analytics services, and that hiQ therefore had demonstrated a likelihood of irreparable harm absent a preliminary injunction.

The panel concluded that the district court properly determined that the balance of hardships tipped sharply in hiQ’s favor, when weighing the likelihood that hiQ would go out of business against LinkedIn’s assertion that an injunction threatened its members’ privacy and therefore put at risk the goodwill that LinkedIn had developed with its members.

The panel concluded that hiQ showed a sufficient likelihood of establishing the elements of its claim for intentional interference with contract, and it raised a serious question on the merits of LinkedIn’s affirmative justification defense. Further, hiQ raised serious questions about whether LinkedIn could invoke the CFAA to preempt hiQ’s possibly meritorious tortious interference claim. The CFAA prohibits accessing a “protected computer” without authorization. The panel concluded that to scrape LinkedIn data, hiQ needed to access