He Depu v. Yahoo! Inc. ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 7, 2019 Decided February 28, 2020
No. 18-7161
HE DEPU, ET AL.,
APPELLANTS
v.
YAHOO! INC., ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cv-00635)
Times Wang argued the cause and filed the briefs for
appellants.
Matthew Allen Fitzgerald argued the cause for appellees.
With him on the brief were Elizabeth P. Redpath, David I.
Bledsoe, Mikhael D. Charnoff, William D. Blakely, and George
E. Kostel.
Before: SRINIVASAN, Chief Judge,* and GARLAND and
WILKINS, Circuit Judges.
*
Chief Judge Srinivasan was a member of the panel at the time
the case was argued but did not participate in this opinion.
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Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: The plaintiffs in this case are
Chinese citizens who were imprisoned for expressing dissent on
the internet. The defendants are Yahoo, a web services provider
now owned by Verizon Media, and associated entities and
individuals. The plaintiffs allege that, as part of the settlement
of an earlier lawsuit, Yahoo established a charitable trust to
provide humanitarian and legal assistance to imprisoned Chinese
dissidents. Thereafter, they charge, the defendants improperly
depleted the trust’s funds and terminated it altogether.
The district court dismissed the plaintiffs’ complaint on the
threshold grounds that they failed to plausibly allege either: (1)
that Yahoo established a charitable trust, or (2) that they have
standing to bring such a claim under the law of the District of
Columbia. We conclude that the plaintiffs plausibly alleged
both. Accordingly, we reverse the dismissal of the complaint.
I
In April 2007, Wang Xiaoning and Shi Tao, two imprisoned
Chinese dissidents, and Wang’s wife, Ling Yu, sued Yahoo for
violations of federal and state law. They alleged that Yahoo had
abetted Wang’s and Shi’s imprisonment by turning over their
Yahoo email account information to the Chinese government,
which used the information to prosecute them for political
dissent. See Second Am. Compl. (SAC) ¶ 2; Wang v. Yahoo!
Inc., No. 07-cv-2151-CW (N.D. Cal. Apr. 18, 2007), 2007 WL
1230526. In late 2007, Yahoo settled the case.
The 2007 Settlement Agreement provided for payments of
$3.2 million each to the families of Wang and Shi, the money
“to be held in trust” by a non-profit organization, the Laogai
Research Foundation (the “Foundation”). Settlement
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Agreement § II.B (J.A. 175). The Agreement also provided for
another payment of $17.3 million to be “made in trust” to the
Foundation, to be maintained “separately from other Foundation
funds” and to be “known as the ‘Yahoo! Human Rights Fund’”
(the “Fund”). Id. § II.C. The Fund was to be used “for three
purposes only:
(a) to provide humanitarian and legal assistance
primarily to persons in or from the People’s Republic
of China who have been imprisoned for expressing
their views through Yahoo! or another medium; (b) to
resolve claims primarily by such persons, or persons
threatened with prosecution or imprisonment, against
the Yahoo! Entities . . . ; and (c) for payment of
Foundation operating expenses and the Foundation’s
educational work conducted in the United States in
support of human rights.
Id. § II.C.2.
In 2017, the plaintiffs here -- seven Chinese citizens, who
allege that China also imprisoned them for their online speech,
again with evidence obtained from their Yahoo accounts -- sued
Yahoo, the Foundation, and the other defendants. Six of the
plaintiffs allege that they received money from the Fund’s
assistance program in the past and remain potential future
recipients. SAC ¶¶ 10-15. The seventh alleges that he applied
for funding but was advised that the program had been
terminated. Id. ¶ 16.
The plaintiffs claim that the 2007 Settlement Agreement
established the Fund as a charitable trust and that the defendants
are its trustees. Id. ¶¶ 1, 17-27. They allege that a purpose of
the Fund was to provide humanitarian and legal assistance to
Chinese dissidents imprisoned for expressing their views online.
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Id. ¶¶ 1, 39-40. As beneficiaries of that purpose, they also
allege a “special interest” in enforcement of the trust. Id. ¶ 136.
Finally, they allege that the defendant-trustees violated their
fiduciary duties by improperly depleting the trust’s assets and,
ultimately, terminating the trust’s humanitarian and legal
assistance program altogether. Id. ¶ 151.
Pursuant to Federal Rule of Civil Procedure 12(b)(6), the
district court dismissed the plaintiffs’ first amended complaint
with prejudice for failure to state a claim. The court did not
reach the plaintiffs’ allegations of breach of fiduciary duty.
Instead, it held that the plaintiffs had failed to plausibly allege
either: (1) that the Settlement Agreement established a
charitable trust, or (2) that the plaintiffs had the kind of “special
interest” standing required to enforce the alleged trust. He Depu
v. Yahoo! Inc., 306 F. Supp. 3d 181, 187-91 (D.D.C. 2018).
Thereafter, the plaintiffs moved to alter the prejudicial
effect of the court’s order under Federal Rule of Civil Procedure
59(e), and for leave to file a second amended complaint under
Rule 15(a)(2). The court denied both motions, concluding that
no additional allegations consistent with the first amended
complaint could save its claims and that the proposed second
amended complaint was “futile” because it did not cure the two
deficiencies noted in the preceding paragraph. He Depu v.
Yahoo! Inc., 334 F. Supp. 3d 315, 319-21 (D.D.C. 2018). Those
asserted deficiencies are the only issues on this appeal.1
1
In ruling on the plaintiffs’ Rule 59(e) motion, the district court
“conclude[d] that its finding that plaintiffs lack standing to enforce
any charitable trust [did] not independently warrant dismissal with
prejudice” of the first amended complaint. He Depu, 334 F. Supp. 3d
at 320 n.6. It therefore went on to address (and dismiss) the standing
allegations of the second amended complaint. Id. at 323-24.
Accordingly, for the allegations of special interest standing, we must
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II
We review a district court’s dismissal of a complaint for
failure to state a claim de novo. Kassem v. Wash. Hosp. Ctr.,
513 F.3d 251, 253 (D.C. Cir. 2008). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In
deciding a motion to dismiss, a court may (and in this case did)
consider documents “attached to or incorporated in the
complaint.” EEOC v. St. Francis Xavier Parochial Sch., 117
F.3d 621, 624 (D.C. Cir. 1997).
The plaintiffs here invoked the diversity jurisdiction of the
district court, see 28 U.S.C. § 1332(a), which was therefore
charged with applying the substantive law of the District of
Columbia, see Novak v. Capital Mgmt. & Dev. Corp., 452 F.3d
902, 907 (D.C. Cir. 2006). Typically, “to achieve the same
outcome we believe would result if the District of Columbia
Court of Appeals considered this case,” id., we look to that
examine the second amended complaint. With respect to the
establishment of a charitable trust, the district court found that the
second amended complaint merely “repackage[d] identical facts” from
the first amended complaint. Id. at 320 n.7. Thus, for ease of
reference, this opinion will cite to the second amended complaint on
both issues. See also Yahoo Br. 41-43 (advising that there is “no
reason for this Court to address the Rule 59 issue,” id. at 41, because
the district court “considered the[] Second Amended Complaint
anyway” and because “there is no meaningful difference between the
two” complaints, id. at 43). In any event, because we find that both
complaints are sufficient to survive a motion to dismiss, we reverse
the district court’s rulings regarding Rules 59(e) and 15(a)(2).
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court’s published opinions, Metz v. BAE Sys. Tech. Sols. &
Servs. Inc., 774 F.3d 18, 22 (D.C. Cir. 2014).
The challenge here is that only a few D.C. Court of Appeals
cases examine the two issues presented by this appeal, while an
“almost endless variety” of legal relationships can arise from a
transfer of funds. GEORGE G. BOGERT ET AL., THE LAW OF
TRUSTS AND TRUSTEES ch. 2 intro. (3d ed. 2017) [hereinafter
BOGERT ON TRUSTS]. In these circumstances, reasonable minds
may well differ as to the proper application of limited case law
to the factual allegations of a complaint. And because we must
review the dismissal of a complaint de novo, we may be
required to depart from the district court’s conclusions, even if
they are reasonable.
That is the result we reach here. We conclude that the
complaint in this case plausibly alleges both that Yahoo created
a charitable trust and that the plaintiffs’ “special interest” in the
trust is sufficient to give them standing to enforce it.
A
We begin with the question of whether the plaintiffs
plausibly allege that Yahoo established a charitable trust in
2007.
As the D.C. Court of Appeals has explained, the elements
of a trust are: “1) a trustee, who holds the trust property and is
subject to equitable duties to deal with it for the benefit of
another; 2) a beneficiary, to whom the trustee owes such duties;
[and] 3) the trust property, which is held by the trustee for the
beneficiary.” Cabaniss v. Cabaniss, 464 A.2d 87, 91 (D.C.
1983) (citing, inter alia, RESTATEMENT (SECOND) OF TRUSTS
§§ 2, 23, 24, 32 [hereinafter RESTATEMENT (SECOND)]). “As
distinguished from a private trust, which is characterized by
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identified beneficiaries, . . . in a charitable trust ‘the obligation
of the trustee is to apply the trust res for some form of public
benefit.’” Hooker v. Edes Home, 579 A.2d 608, 611 (D.C. 1990)
(quoting BOGERT ON TRUSTS § 411).2
In addition, “there must be proof of the settlor’s intention to
create a trust.” Duggan v. Keto, 554 A.2d 1126, 1133 (D.C.
1989).3 This intention to create a trust may be manifested “by
written or spoken language or by conduct, in light of all
surrounding circumstances.” Cabaniss, 464 A.2d at 91. No
magic words are required. Id. The principal dispute in this case
centers on whether Yahoo manifested the requisite intention to
create a trust.
1. As evidence of Yahoo’s intention to create a trust, the
plaintiffs point first to the text of the Settlement Agreement
establishing the Fund. As we said in Beckett v. Air Line Pilots
Association, “[a]n expressed intention to create a trust may be
2
Because the D.C. Court of Appeals cites Bogert on Trusts and
the Restatement (Second) of Trusts as authoritative in applying the
common law of the District, we do so as well.
3
According to the defendants, “the D.C. Court of Appeals has
stated that ‘the intention to create a trust should be clearly
manifested.’” Yahoo Br. 12 (quoting Duggan, 554 A.2d at 1136(emphasis added)). But the quotation the defendants cite is merely the
D.C. Court of Appeals’ quotation from a Maryland case describing
Maryland law. See Duggan, 554 A.2d at 1136-37 (quoting Moore v.
Layton, 127 A. 756, 757 (Md. 1925)). Noting that the Maryland case
was “not binding,” the D.C. Court of Appeals found it “persuasive
[t]here because its facts [were] very similar.” Id. at 1137 (emphasis
added). And in stating the intention requirement elsewhere in the
opinion, the court did not repeat the word “clearly.” Id. at 1133, 1136.
In any event, with or without the adverb, we conclude that the
plaintiffs’ complaint plausibly alleges trust intent.
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revealed by . . . the articulation of the essential elements of a
trust.” 995 F.2d 280, 287 (D.C. Cir. 1993). The Agreement
plausibly identifies all of them: a trustee (the Foundation), trust
property ($17.3 million), and a charitable purpose
(“humanitarian and legal assistance” to persons meeting
specified criteria). Settlement Agreement § II.C.
Moreover, the Settlement Agreement specifically directs
that Yahoo’s payments to the Foundation be “made in trust.”
Settlement Agreement § II.C. The Bogert treatise, frequently
cited by the D.C. Court of Appeals, states that in the context of
a transfer to a charitable corporation (like the Foundation), if the
transfer “used the words ‘in trust’ . . . , that language may be
used to find an intent to make the corporation a trustee[.]”
BOGERT ON TRUSTS § 324; see In re Strack, 524 F.3d 493, 499
(4th Cir. 2008) (noting that “the parties’ use of the word ‘trust’
is to be given great weight”).
An intention to create a trust may also be revealed by
articulation of “the specifics necessary to implement and
administer the trust.” Beckett, 995 F.2d at 287 (internal
quotation marks omitted). Here, the Settlement Agreement
subjects the Foundation’s handling of the Fund to trust-like
restrictions, and does so in imperative language. See Cabaniss,
464 A.2d at 91-92 (“Among the . . . factors pertinent to a
determination of a settlor’s intention to create a trust are . . . the
imperative, as distinguished from precatory, nature of the words
used.”).4 It prohibits the Foundation from commingling Fund
monies with its own general funds, see Settlement Agreement
§ II.C (“[T]hese payments shall be maintained separately from
other Foundation funds.” (emphasis added)), an indicator of trust
4
See also Beckett, 995 F.2d at 287 (relying in part on a settlement
agreement’s use of “the mandatory ‘shall’” to conclude that it created
a trust).
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intent.5 It provides that the money “may be used for three
purposes only,” “shall not be used” for specified prohibited
purposes, and includes specific mechanisms to remedy “any
disbursements that do not conform with the stated purposes” of
the Fund. Settlement Agreement §§ II.C, II.C.2, II.C.2(iii)
(emphases added). The Agreement also bars the Foundation
from spending more than $1 million per year of the Fund on its
own operating expenses, id. § II.C.2(iii), and requires it to
provide semi-annual reports of its activities, id. § II.C.2(vi). All
of this together plausibly signals the hallmark of a charitable
trust: “a fiduciary relationship with respect to property,
subjecting the person by whom the title to the property is held
to equitable duties to deal with the property for a charitable
purpose.” RESTATEMENT (SECOND) § 348; see Cabaniss, 464
A.2d at 91.6
The complaint also alleges circumstances surrounding the
creation of the Fund that are probative of trust intent. For
example, the complaint alleges that the plaintiffs in the original
Wang lawsuit met with Yahoo’s then-CEO, Jerry Yang, on
November 7, 2007, to discuss settlement. SAC ¶¶ 32-33. At
that meeting, Yang allegedly promised to “finance a trust fund
to provide financial assistance to imprisoned Chinese
dissidents.” Id. ¶ 33. The complaint further alleges that Yahoo
publicly stated that it wanted to go beyond just “provid[ing]
5
See, e.g., In re Strack, 524 F.3d at 499 (holding that a
segregation of funds provision supports a finding of trust intent);
Quaif v. Johnson, 4 F.3d 950, 954 (11th Cir. 1993) (same); In re Prof’l
Air Traffic Controllers Org. (PATCO), 26 B.R. 337, 343-44 (Bankr.
D.D.C. 1982) (same).
6
The defendants do not dispute that the Foundation appears to
hold legal but not equitable title to the Fund, arguing only that such
evidence is not “probative of charitable trust intent in this context.”
Yahoo Br. 26. We disagree.
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financial, humanitarian and legal support” to the Wang plaintiffs
through a “private agreement,” and instead wanted to ensure
“our actions match our values” by establishing “a separate
human rights fund to provide humanitarian and legal support to
political dissidents who have been imprisoned for expressing
their views online.” Id. ¶ 42.7
2. In response to these indicia of trust intent, the defendants
levy a barrage of counter-arguments. They are not persuasive.
7
In the district court, the defendants argued and the court agreed
that dismissal of the first amended complaint with prejudice was
warranted because the “plaintiffs’ only theory for the existence of any
trust relied on the language of the settlement agreement itself,” and
thus they could not -- by further amendment or otherwise -- rely on
“conduct” or other extra-textual support. He Depu, 334 F. Supp. 3d
at 319-20. The defendants did not repeat this argument in their
appellate brief, and rightly so. The plaintiffs’ complaint relied on the
language of the agreement not as a theory of liability but as evidence
of the trust relationship that was the predicate for their theory of
liability. See First Am. Compl. ¶¶ 33-46, 125-31 (J.A. 26-30, 52-54).
A plaintiff’s proof is not limited to the evidence cited in the complaint.
See Kingman Park Civic Ass’n v. Williams, 348 F.3d 1033, 1040 (D.C.
Cir. 2003). In any event, the complaint did rely on conduct and other
extra-textual support as well. See First Am. Compl. ¶¶ 33, 41, 43 (J.A.
26, 28-29).
At oral argument in this court, the defendants suggested that we
could not look outside the four corners of the Settlement Agreement
for evidence of trust intent, presumably as a matter of trust law.
Recording of Oral Arg. at 35:39. They did not take this position in
their brief, and it directly contradicts District of Columbia precedent,
which expressly authorizes examination of “extrinsic circumstances.”
Cabaniss, 464 A.2d at 91-92; see Family Fed’n for World Peace v.
Hyun Jin Moon, 129 A.3d 234, 246 (D.C. 2015).
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It is true, as the defendants argue, that the Settlement
Agreement’s use of the words “in trust” is not “determinative.”
Yahoo Br. 25-26 (citing In re Strack, 524 F.3d at 499; BOGERT
ON TRUSTS § 324). But whether those (or any other) words
conclusively establish the existence of a trust is not before us.
At the motion-to-dismiss stage, the only question is whether the
words used make the existence of a trust “plausible.” See Iqbal,
556 U.S. at 678.
The defendants also argue that the Settlement Agreement is
merely a settlement “contract -- with no trust document or
announcement of trust intent in sight.” Yahoo Br. 8. The latter
claim is plainly incorrect, given the Agreement’s express use of
the phrase “in trust” as well as the other indicia noted above. As
to the claim that the Agreement is just a settlement contract, “[i]t
is settled that the mere existence of a contractual relationship
does not preclude the existence of a trust relationship.”
Christiansen v. Nat’l Sav. & Tr. Co., 683 F.2d 520, 530 (D.C.
Cir. 1982); see BOGERT ON TRUSTS § 323 (explaining that a
charitable trust can be created “by the making of a contract by
the settlor in favor of a trustee”). Nor is it unusual for a trust to
be established as part of a settlement agreement.8 The fact that
Yahoo “aimed to resolve claims brought against Yahoo by the
Wang parties,” Yahoo Br. 15 (citing Settlement Agreement
§ I.B.3); He Depu, 306 F. Supp. 3d at 189, does not preclude its
establishment of a charitable trust as part of that settlement.
The defendants further rely on a provision of the Settlement
Agreement that disclaims the existence of third-party
8
See, e.g., Beckett, 995 F.2d at 285-86 (holding that a contract
to settle a case “established a trust”); D’Agrosa v. Coniglio, 824
N.Y.S.2d 761 (Sup. Ct. 2006) (analyzing a trust arising in connection
with a settlement); In re Estate of Binder, 386 N.W.2d 910, 913 (N.D.
1986) (same).
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beneficiaries, Settlement Agreement § IV.N, to insist that Yahoo
cannot have intended to create a trust. But such a provision is
not necessarily inconsistent with trust intent. The provision may
bar third parties from suing for breach of contract, but it is
black-letter law that -- with or without such a provision -- a
“trustee who fails to perform his duties as trustee is not liable to
the beneficiary for breach of contract.” RESTATEMENT
(SECOND) § 197 cmt. b. That is so because a trustee’s “duties
are not contractual in nature.” Id. § 169 cmt. c; see id. § 74 cmt.
a (stating that trust beneficiary status arises from the “trust
relation” itself and is not “based . . . upon contract”); see also
Christiansen, 683 F.2d at 530 (distinguishing between a third-
party beneficiary contract and a trust).
The defendants further point out that, although the
Settlement Agreement lists the first purpose for which the Fund
may be used as “humanitarian and legal assistance,” the second
purpose listed is to resolve claims brought against Yahoo.
Noting that “not all jurisdictions even recognize ‘mixed trusts’”
with both charitable and private purposes, they maintain that
therefore the Fund cannot constitute a charitable trust. Yahoo
Br. 20. But we apply the law of the District of Columbia, not
the law of “all” jurisdictions. And the D.C. Uniform Trust Code
does recognize the validity of mixed trusts. See D.C. CODE
§ 19-1301.03(3) (defining a charitable trust as “a trust, or
portion of a trust, created for a charitable purpose” (emphasis
added)).9
9
The district court held that the plaintiffs could not make this
“mixed trust” argument because they had not alleged a “mixed trust”
in their first amended complaint. He Depu, 306 F. Supp. 3d at 189
n.5. But a plaintiff is not required to include in its complaint every
argument that might support its general claims. See Kingman Park
Civic Ass’n, 348 F.3d at 1040. In any event, the second amended
complaint does allege that the Fund is “at least in part, a charitable
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Still, the defendants warn, the Fund’s private claims-
resolution purpose could have “theoretically” exhausted the
entire Fund. Yahoo Br. 20. But where a trust has multiple
beneficiaries, trustees must act “impartially in . . . [the
distribution of] trust property,” paying “due regard” to the
“respective interests” of each. D.C. CODE § 19-1308.03. The
Foundation could not have distributed all $17.3 million of the
Fund to fulfill its claims-resolution purpose without running
afoul of this requirement. See also Settlement Agreement
§ II.C.2(i) (requiring the Foundation to use its “best efforts to
maximize the benefits achieved through [ ] use of a portion of
the [ ] Fund for humanitarian and legal assistance” (emphasis
added)).
Finally, the defendants shift focus from the original 2007
Settlement Agreement to Yahoo’s later establishment, in 2009,
of a different trust. They note that the document Yahoo used in
2009 expressly denominated the fund it established there as a
“trust” and the holders of that fund as “trustees.” Agreement &
Decl. of Trust (J.A. 132). This, they assert, is “fatal” to the
plaintiffs’ claim concerning the 2007 Agreement. Yahoo Br. 23.
But although language like “‘in trust’ or ‘trustee’ in connection
with [a] transfer . . . may be used to find an intent to make the
[transferee] a trustee,” the “failure to use such language is not
conclusive.” BOGERT ON TRUSTS § 324.10 Nor is it dispositive
trust, and/or a mixed trust.” SAC ¶ 1; id. ¶ 40.
10
See In re PATCO, 26 B.R. at 343-44 (holding that “the mere
fact that the terms ‘trust’ or ‘trustee’ were not specifically employed
. . . is not dispositive” of whether there was an intention to create a
trust); In re Timothy Dean Rest. & Bar, 342 B.R. 1, 9-10 (Bankr.
D.D.C. 2006) (holding, under D.C. law, that an arrangement
constituted a trust notwithstanding that the document did not use the
term “trust”).
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of Yahoo’s intent in executing the 2007 Settlement Agreement
that two years later it used more formal documents to create a
different trust.
3. For the above reasons, we conclude that the plaintiffs’
complaint plausibly alleges that the Settlement Agreement
created a charitable trust.
B
The defendants argue, and the district court agreed, that
even if the complaint plausibly alleges that the Settlement
Agreement created a charitable trust, it does not plausibly allege
that the plaintiffs have standing to enforce that trust under
District of Columbia law.11 Traditionally, “only a public officer,
usually the state Attorney General” could bring an action to
enforce a charitable trust. Family Fed’n for World Peace, 129
A.3d at 244 (quoting Hooker, 579 A.2d at 612). However, in
light of the “exponential expansion of charitable institutions”
and a “busy Attorney General,” the District of Columbia has
“relax[ed]” this rule, granting standing to those with “a ‘special
interest’ in continued performance of the trust distinguishable
from that of the public at large.” Id. (quoting Hooker, 579 A.2d
at 612) (internal quotation marks omitted).
Hooker v. Edes Home is the leading District of Columbia
case on “special interest” standing. The case concerned a
challenge to the closing, sale, and relocation of the Edes Home,
a charitable corporation. Hooker, 579 A.2d at 608. The Home
was established pursuant to the will of Margaret Edes, who
bequeathed the residue of her estate to maintain a free home “for
aged and indigent Widows, residing, or to reside,” in
11
This is distinct from Article III standing, which all parties and
this court agree the plaintiffs have. See Yahoo Br. 29 n.4.
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Georgetown. Id. at 609. Subsequently, the trustees adopted by-
laws that “established additional admission criteria beyond those
set out in the will,” id., requiring that residents be “in good
health” and “have been for at least five years immediately
preceding the date of application residents of Georgetown,” id.
at 615. The D.C. Court of Appeals held that members of a class
of elderly, indigent, and widowed residents of the District of
Columbia had the requisite “special interest” standing to sue. Id.
at 608-09.
Hooker established two requirements for “special interest”
standing: (1) that the action challenge an “extraordinary
measure threatening the existence of the trust,” not just an
“ordinary exercise of discretion” committed to the trustees; and
(2) that the plaintiffs belong to a class of potential beneficiaries
that is “sharply defined” and “limited in number.” Id. at 614-15.
The court held that the plaintiff widows met both requirements.
Id. at 609.
The defendants do not dispute that this case satisfies
Hooker’s first prong. See Recording of Oral Arg. at 26:30. Nor
could they. The plaintiffs challenge the outright termination of
the Fund, SAC ¶¶ 74-75, 151, and there could hardly be
anything more “threatening [to its] existence,” Hooker, 579
A.2d at 615. Instead, the defendants assert that the plaintiffs
cannot meet Hooker’s second prong. We disagree.
1. First, the plaintiffs plausibly allege that they belong to a
class of potential beneficiaries that is “sharply defined.”
Hooker, 579 A.2d at 614. For a class to meet this description,
there must be “definite criteria . . . identifying its present
members with . . . particularity.” Id. at 615. Here, the plaintiffs’
proffered class includes these defining criteria: (1) Chinese
persons, (2) imprisoned in China, (3) for exercising their
freedom of expression, (4) online. SAC ¶ 136.
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These criteria are grounded in the language of the
Settlement Agreement, which directs the Fund to assist
“primarily [ ] persons in or from the People’s Republic of China
who have been imprisoned for expressing their views through
Yahoo! or another medium.” Settlement Agreement § II.C.2.
According to the complaint, Yahoo also repeatedly touted the
Fund as intended for “dissidents who have been imprisoned for
expressing their views online.” SAC ¶¶ 42, 45, 113. And after
the settlement, Yahoo allegedly drafted guidelines for the Fund
that gave the “highest priority” to Chinese persons, imprisoned
(or otherwise subject to “violations of fundamental human
rights”) for the exercise of their freedom of expression using
“Yahoo’s services or other electronic media.” SAC ¶¶ 50-51.12
The defendants contend that the above-described criteria are
insufficiently narrow. But they are sufficient under Hooker. As
set out above, Hooker found the plaintiffs’ proffered class of
beneficiaries sufficiently narrow because the Edes will and a
subsequent charter required “the beneficiary to be (1) female, (2)
indigent, (3) aged, and (4) widowed,” and because subsequent
“by-laws further require[d] her (5) to ‘be in good health’
(certifiably) and (6) to ‘have been for at least five years
immediately preceding the date of application [a] resident[ ] of
12
The Yahoo defendants maintain that the guidelines the
plaintiffs cite in their complaint were not for the 2007 Fund, but rather
for the 2009 trust, and that the final guidelines for that trust did not use
the terms “‘priority’ or ‘highest priority.’” Yahoo Br. 37. The
plaintiffs disagree, maintaining that the guidelines they cite were for
the 2007 Fund and differ from the later guidelines. Reply Br. 5.
Needless to say, this is a factual dispute inappropriate for resolution
at the motion-to-dismiss stage. See Iqbal, 556 U.S. at 678 (noting
that, at the motion-to-dismiss stage, the complaint’s factual matter is
“accepted as true”).
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Georgetown.’” 579 A.2d at 615. The Settlement Agreement
and subsequent guidelines have a similar narrowing effect.
The defendants argue that the Fund is not strictly limited to
individuals in China and could extend to online dissidents
anywhere. In Hooker, however, the court approvingly discussed
Alco Gravure, Inc. v. Knapp Found., 479 N.E.2d 752 (N.Y.
1985), in which the New York Court of Appeals granted
standing to plaintiffs “who were entitled to a preference in the
distribution of the foundation’s assets.” Hooker, 579 A.2d at614 (citing Alco Gravure, 479 N.E.2d at 765). In that case, the
foundation’s “primary purpose was to assist employees of the
founder’s corporations and their families,” although it was
authorized “to benefit a broader class of charitable purposes.”
Alco Gravure, 479 N.E.2d at 754 (emphasis added). So too
here, where the Settlement Agreement directs that the Fund
“primarily” assist “persons in or from the People’s Republic of
China,” Settlement Agreement § II.C.2, and the subsequent
guidelines allegedly give “highest priority” to Chinese persons,
SAC ¶ 51.
The defendants further insist that the proposed beneficiary
class is “limitless” because it has “tremendous potential” to
grow over time. Yahoo Br. 39. The Hooker court addressed,
and rejected, a similar argument. 579 A.2d at 615. There, the
defendants contended that the “class of potential beneficiaries
includes ‘all women’ and so is limitless because any woman
could [in the future] become poor and widowed” (and,
presumably, move to Georgetown). Id. But the D.C. Court of
Appeals focused instead on the standing of the “present
members” of the class of potential beneficiaries. Id.13
13
We note that, although D.C. law extends special interest
standing not only to current trust beneficiaries, but also to potential
beneficiaries, see Family Fed’n for World Peace, 129 A.3d at 245, the
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2. The plaintiffs also plausibly allege that the class of
beneficiaries they have described is sufficiently “limited in
number.” Hooker, 579 A.2d at 614-15. Drawing on a U.S.
congressional database of all Chinese political prisoners, SAC
¶ 138, they plausibly estimate that the proposed class (as defined
by the above criteria) currently consists of between 800 and
1,200 individuals, id. ¶ 141. The defendants assert that
conferring standing on a beneficiary class of that size would be
“unprecedented.” Yahoo Br. 34. In Hooker, however, the
complaint alleged a class of potential beneficiaries that
numbered “in the hundreds, if not the thousands.” Hooker, 579
A.2d at 611 (internal quotation marks omitted). Here, as there,
those numbers are not too large to sustain a complaint against a
motion to dismiss.
3. In sum, we conclude that the plaintiffs’ allegations
plausibly satisfy the two prongs of Hooker’s “special interest”
standing test.
First, the plaintiffs challenge “an extraordinary measure
threatening the existence of the trust, hence raising an issue that,
by its nature, could only be tried once.” Hooker, 579 A.2d at
614-15. Accordingly, unlike a challenge “to an ordinary
exercise of discretion on a matter expressly committed to the
trustees,” the probability of “recurring litigation” is low. Id. at
614-15.
Second, they plausibly satisfy Hooker’s requirement that
they belong to a class of potential beneficiaries that is “sharply
defined and . . . limited in number.” Id. at 614. The “essence of
a ‘special interest’ in a charitable trust is a particularized interest
distinct from that of members of the general public.” Id. at 613.
plaintiffs in this case are more than just potential beneficiaries. Six
have previously benefited from the Fund. SAC ¶¶ 10-15.
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Just as the members of the Hooker class plausibly alleged “a
present opportunity to enjoy a direct benefit differing markedly
from the incidental and indirect benefit the public realizes from
the housing of indigent elderly widows,” id. at 617, here the
members of the proposed class plausibly allege an opportunity
to benefit from the Fund that differs from the incidental and
indirect benefit the public may realize from the Fund’s
humanitarian and legal assistance program.
III
For the foregoing reasons, we conclude that the plaintiffs
plausibly allege that Yahoo created a charitable trust and that
they have standing to enforce it. Accordingly, their complaint
survives at the pleading stage. As the case proceeds, additional
evidence may come to light that either supports or undermines
those allegations. But “[h]owever the evidence may eventually
turn out to be, we are not persuaded that any decision on this
issue can be based on an inadequacy in the complaint.” Family
Fed’n for World Peace, 129 A.3d at 246.
The judgment of the district court is reversed, and the case
is remanded for further proceedings consistent with this opinion.
So ordered.