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APPLICATION FOR APPROVAL OF COMPLEX LITIGATION DESIGNATION (TRANSACTION ID # 210065985) FILED BY DEFENDANT ALTMAN, SAMUEL BROCKMAN, GREGORY OPENAI, INC. OPENAI, LP OPENAI, LLC OPENAI GP, LLC OPENAI OPCO, LLC OPENAI GLOBAL LLC OAI CORPORATION, LLC OPENAI HOLDINGS LLC: 1
JORDAN ETH (CA SBN 121617)
JEth@mofo.com RAGESH K. TANGRI (CA SBN 159477) RTangri@mofo.com DAVID J. WIENER (CA SBN 291659) DWiener@mofo.com MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105 Telephone: (415) 268-7126 Facsimile: (415) 268-7522
COUNTY OF SAN FRANCISCO
ELON MUSK, an individual,
Plaintiff, v.
SAMUEL ALTMAN, an individual, GREGORY BROCKMAN, an individual, OPENAI, INC., a corporation, OPENAI, L.P., a limited partnership, OPENAI, L.L.C., a limited liability company, OPENAI GP, L.L.C., a limited liability company, OPENAI OPCO, LLC, a limited liability company, OPENAI GLOBAL, LLC, a limited liability company, OAI CORPORATION, LLC, a limited liability company, OPENAI HOLDINGS, LLC, a limited liability company, and DOES 1 through 100, inclusive,
Defendants.
BY: AUSTIN LAM
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
03/06/2024
Clerk of the Court
Attorneys for Defendants SAMUEL ALTMAN, GREGORY BROCKMAN, OPENAI, INC., OPENAI, LP, OPENAI, LLC, OPENAI GP, LLC, OPENAI OPCO, LLC, OPENAI GLOBAL LLC, OAI CORPORATION, LLC, AND OPENAI HOLDINGS LLC
FILED
Superior Court of California, County of San Francisco
William Savitt (pro hac vice application forthcoming) Sarah K. Eddy (pro hac vice application forthcoming) Randall W. Jackson (pro hac vice application forthcoming) WACHTELL, LIPTON, ROSEN & KATZ 51 West 52nd Street New York, NY 10019 Telephone: (212) 403-1000 Facsimile: (212) 403-2000
ELECTRONICALLY
Case No.: CGC-24-612746 DEFENDANTS’ APPLICATION FOR COMPLEX DESIGNATION Date Action Filed:
Trial Date:
DEFENDANTS’ APPLICATION FOR COMPLEX DESIGNATION CASE NO.: CGC-24-612746
February 29, 2024 None Set
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Defendants Samuel Altman, Gregory Brockman, OpenAI, Inc., and affiliated OpenAI
entities (collectively, “Defendants”) respectfully submit that this action warrants dedicated judicial
management and for that reason request an order designating the action “complex” pursuant to
California Rule of Court 3.400.
I.
INTRODUCTION AND BACKGROUND
Though an early supporter and board member of OpenAI, Inc. (together with its affiliates,
“OpenAI”), Plaintiff Elon Musk quit the company years ago and started his own for-profit AI
business. Were this case to proceed to discovery, the evidence would show that Musk supported a
for-profit structure for OpenAI, to be controlled by Musk himself, and dropped the project when
his wishes were not followed. Seeing the remarkable technological advances OpenAI has achieved,
Musk now wants that success for himself. So he brings this action accusing Defendants of
breaching a contract that never existed and duties Musk was never owed, demanding relief
calculated to benefit a competitor to OpenAI. Musk purports to bring this suit for humanity, Compl.
¶ 33, when the truth—evident even from the face of Musk’s contradictory pleading—is that he
brings it to advance his own commercial interests.
According to the complaint, all Defendants entered a “Founding Agreement” with Musk,
Compl. ¶ 24, promising him OpenAI would never operate for profit and would release all its AI
publicly—promises all Defendants purportedly breached by, among other things, licensing
OpenAI’s core GPT-4 technology. Id. ¶¶ 123-25. Musk further claims that all Defendants breached
fiduciary duties and engaged in unfair business practices by using early contributions Musk made
to OpenAI for purposes supposedly inconsistent with this alleged “Founding Agreement.”
Id. ¶¶ 133-44.
There is no Founding Agreement, or any agreement at all with Musk, as the complaint itself
makes clear. The Founding Agreement is instead a fiction Musk has conjured to lay unearned claim
to the fruits of an enterprise he initially supported, then abandoned, then watched succeed without
him. The documents Musk cites as purportedly memorializing a binding contract with him—
OpenAI’s certificate of incorporation and a few emails—on their face show no promises to Musk.
DEFENDANTS’ APPLICATION FOR COMPLEX DESIGNATION
CASE NO.: CGC-24-612746
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See id. ¶¶ 23-28, 50-57, 124. The pleading nowhere alleges that Musk’s early donations were
conditioned on Defendants following a specific business plan, nor could it.
The relief Musk seeks is as extraordinary as his claims are contrived. Musk requests an
order compelling OpenAI to reorganize and distribute its technology in accordance with the terms
of his fictitious contract. And he wants a “judicial determination”—with an accompanying
mandatory injunction—that certain OpenAI technology “constitutes Artificial General
Intelligence,” i.e., “having intelligence for a wide variety of tasks like a human” (when it does not).
Compl. at p. 34; id. ¶ 17.
Frivolous though Musk’s legal claims are, “exceptional judicial management” is warranted
to ensure that this case is litigated efficiently, expeditiously, and fairly. See Cal. R. Ct. 3.400(a).
Pretrial motion practice will be intensive; the facts Musk purports to put at issue are complicated,
highly technical, and span nearly a decade; and the relief Musk seeks is extraordinary and if granted
would require ongoing supervision. These factors weigh decisively in favor of a “complex”
designation and assignment for all purposes to this Court’s Complex Civil Litigation Department
pursuant to California Rule of Court 3.400.
II.
Under the California Rules of Court, a “complex case” is one that “requires exceptional
judicial management to avoid placing unnecessary burdens on the court or the litigants and to
expedite the case, keep costs reasonable, and promote effective decision making by the court, the
parties, and counsel.” Cal. R. Ct. 3.400(a).
DISCUSSION
In assessing whether a case merits “complex” treatment, courts consider a non-exhaustive list of factors, including whether it will likely involve:
(1) Numerous pretrial motions raising difficult or novel legal issues that will be time-consuming to resolve;
(2) Management of a large number of witnesses or a substantial amount of documentary evidence;
(3) Management of a large number of separately represented parties;
(4) Coordination with related actions pending in one or more courts in other counties, states, or countries, or in a federal court; or
DEFENDANTS’ APPLICATION FOR COMPLEX DESIGNATION
CASE NO.: CGC-24-612746
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(5) Substantial postjudgment judicial supervision.
Cal. R. Ct. 3.400(b).
This case warrants “complex” designation under this framework. Defendants’ application should accordingly be granted.
A.
This case will involve substantial pretrial motion practice.
Pretrial motion practice will likely be substantial and involved. Defendants intend to
challenge the numerous fatal procedural and substantive defects apparent on the face of the
complaint. Though Defendants believe early and swift dismissal is warranted, adjudication of a
dispositive motion will entail significant judicial resources and would benefit from assignment to
a dedicated judge in the Complex Department. See People v. Superior Ct. (Lavi), 4 Cal. 4th 1164,
1179 (1993) (“[A]ll purpose assignment . . . to a specific judge” can “permit the efficient disposition
of complex matters.”). Musk’s claims rest on convoluted—often incoherent—factual premises.
To take just one example, Musk says his Founding Agreement was “memorialized,” but any actual
agreement is conspicuously missing from the pleading. Compl. ¶ 25. Musk instead serves up
internally contradictory accounts of what documents constitute this “memorialization.” See id.
¶¶ 23-28, 124. Musk’s factual allegations span nearly a decade and are asserted against multiple
parties.
applicable legal principles will require time-consuming focus.
Sifting through the complaint’s sprawling allegations and mapping them onto the
Were this case to move beyond the pleading stage, further motion practice—including for summary judgment—likewise would be substantial.
B.
This case will likely present significant discovery disputes.
Complex designation is also appropriate given the high likelihood of serious and
consequential discovery disputes in the event this case proceeds beyond the pleading stage. Musk
competes directly with OpenAI. Were discovery to commence, Musk would use this suit to seek
access to OpenAI’s proprietary records and technology and to press for broad merits discovery.
Those demands would need to be carefully policed, including through resolution of discovery
motions.
and attendant disputes would be expected as well. Assigning this case to the Complex
Given the technical facts Musk purports to put at issue, expert discovery
DEFENDANTS’ APPLICATION FOR COMPLEX DESIGNATION
CASE NO.: CGC-24-612746
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Department would afford the Court significant power to actively manage discovery in the fair,
efficient, and expeditious manner necessary to safeguard OpenAI’s competitive interests against
Musk’s tactical discovery demands. See Hernandez v. Superior Ct., 112 Cal. App. 4th 285, 295
(2003) (“The trial court has broad discretion to fashion suitable methods of practice in order to
manage complex litigation.”); First State Ins. Co. v. Superior Ct., 79 Cal. App. 4th 324, 331-32
(2000) (“In complex litigation, judicial management should begin early and be applied
continuously and actively, based on knowledge of the circumstances of each case.” (citations and
alterations omitted)).
C.
Musk seeks extraordinary injunctive relief implicating complex facts.
Finally, Musk’s request for extraordinary relief entailing “[s]ubstantial postjudgment
judicial supervision,” Cal. R. Ct. 3.400(b)(5), counsels in favor of complex designation. The
complaint requests a suite of truly extraordinary measures calculated to benefit Musk, whose own
for-profit AI concern has not met with success in the marketplace. Musk asks for an order of
“specific performance” compelling OpenAI to operate and disclose its technology in accordance
with the terms Musk has conjured; “a judicial determination that GPT-4 constitutes Artificial
General Intelligence”; and other forms of atypical mandatory injunctive relief. Compl. at p. 34.
Were this case to move beyond the pleadings, and Musk to prevail on any of his claims, none of
the relief sought would be proper or warranted. But navigating the issues raised by the prayer for
relief in this case would benefit from the careful attention of a dedicated judge.
III.
For the foregoing reasons, Defendants’ application should be granted.
CONCLUSION
DEFENDANTS’ APPLICATION FOR COMPLEX DESIGNATION
CASE NO.: CGC-24-612746
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Date: March 6, 2024
MORRISON & FOERSTER LLP
By:
JORDAN ETH
JEth@mofo.com RAGESH K. TANGRI RTangri@mofo.com DAVID J. WIENER DWiener@mofo.com MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105 Telephone: (415) 268-7000 Facsimile: (415) 268-7522
WILLIAM SAVITT
(pro hac vice application forthcoming) SARAH K. EDDY (pro hac vice application forthcoming) RANDALL W. JACKSON (pro hac vice application forthcoming) WACHTELL, LIPTON, ROSEN & KATZ 51 West 52nd Street New York, NY 10019 Telephone: (212) 403-1000 Facsimile: (212) 403-2000
Attorneys for Defendants SAMUEL ALTMAN, GREGORY BROCKMAN, OPENAI, INC., OPENAI, LP, OPENAI, LLC, OPENAI GP, LLC, OPENAI OPCO, LLC, OPENAI GLOBAL LLC, OAI CORPORATION, LLC, AND OPENAI HOLDINGS LLC
DEFENDANTS’ APPLICATION FOR COMPLEX DESIGNATION CASE NO.: CGC-24-612746
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