The sixth banker's box appeared sometime between last Tuesday and today. Ren counts them from across the conference table -- five were there before, the week they first met Nadia -- and the new one sits at the end of the row with a fresh label in Julian's handwriting: Prometheus v. Almeida et al. -- Dr. Chu declarations, v.1-3. Three versions of the same declaration. He does not know what changes between the first and the third, but the existence of a third suggests the first two were insufficient in ways that had to be argued over carefully, that the work of testifying accurately in legal language is a process of iteration that still might not be enough.
Julian has been at this for two years before Ren's name appeared on any of it. The boxes from the older cases stand in their corner, four of them, different companies. Ren checked the labels on his first visit, when he was waiting alone in this room not yet knowing that Nadia was across the street deciding to come in. None of them read won.
The conference table is covered: discovery responses from Prometheus's legal team, sorted into stacks by date and exhibit number; printouts from Dr. Chu annotated in Julian's compact handwriting; a draft brief Ren is not qualified to evaluate but has read twice anyway, looking for his name, looking for what is being argued on his behalf. The carafe of water on the corner of the table is the only thing not doing work. Ren pours himself a glass and sits.
Julian comes in and does not sit. He is a person who thinks from standing, Ren has learned -- the posture of a lawyer accustomed to moving in front of juries, working through argument on his feet.
"Here's the problem," Julian says. "Not the case -- we have a case. The structural problem inside it."
"Dr. Chu's clinical evidence establishes the pattern. Sixty-seven cases, consistent imaging profile -- reduced hippocampal-cortical activity during experiential recall, intact for factual recall. That's real. That's evidence." He pauses. "What she cannot do is connect the pattern to the mechanism. The scans show suppression. They don't show what's doing the suppressing. Prometheus will put an expert on the stand who says: stress, depression, ordinary age-related decline. Correlation with Hearthstone use doesn't eliminate any of them."
Ren has known this. He has been carrying it for three weeks, turning it over: how do you prove something was present before it went absent? The court requires you to demonstrate the presence before you can argue the absence. You can't prove it was there. You can only describe it well enough that the description itself serves as proof.
"What about the ToS architecture," Ren asks. "The forty-seven-thousand-word design -- the length, the buried clauses, the Accept button placed before any reading could happen."
"We can use it. It builds the picture of deliberate obfuscation, supports the consent argument." Julian opens the draft brief to a flagged page. "It doesn't establish the mechanism. It tells the court that the consent was engineered to be uninformed. We need something that tells the court what the consent was actually authorizing."
Nadia is twelve minutes late, which is not unusual. When she comes in, she is carrying the heavy bag and her folder and the expression she wears when she has already decided something but is still running calculations on how to present it. She sets her bag down, opens the folder, takes out the Chu declarations with her own annotations in two different colors.
"She's being held in clinical description," Nadia says. "Her counsel is right. She should stay there." She turns to a flagged page. "Version three is cleaner than version one. She's moved the mechanism language out of her declaration entirely -- she describes effects, not cause."
"Which is appropriate," Julian says. "She doesn't know the cause." Nadia looks at him. "I do." The room settles into something quieter.
"I can testify to the mechanism because I built it," she says. Her voice has the careful register of someone deploying precision as a discipline, because the alternative to precision is imprecision, and she will not be imprecise about this. "The NLP extraction architecture. The fixation threshold parameters. The specific clause constructions in Section 4.2 and how they interact with the neural mapping protocol. I can connect Dr. Chu's imaging results to the instrument producing them. I can explain, in technical terms a jury can follow, exactly how an eye moving across a specific arrangement of legal language can produce the suppression pattern she documented." She looks at Julian. "That closes the evidentiary gap." Julian is still. "It opens another one."
"Yes."
"You designed the system. You testify to mechanism, and Prometheus immediately reframes you as a co-defendant cooperating for leniency. They will argue your testimony is self-protective. They will go through your employment history, your compensation structure, your performance reviews, the dates on every clause you drafted. Anything you say about the mechanism speaks simultaneously to your role in building it. Do you understand that you may be exposing yourself to civil liability in addition to whatever professional consequences come from the employment side?"
"Yes." Nadia's hands are flat on the table, both of them, in the way Ren has learned to read: not a pose, a fact about where she is. "I'm offering because the case requires it. Without mechanism, you're asking the court to accept sixty-seven photographs of an effect and assume a cause. Prometheus will win that argument because they're right -- correlation isn't causation, and courts don't accept it for exactly the right reasons." She looks at Ren. "You described what was taken. I can describe the instrument that took it. Both need to be in the courtroom, or neither does enough."
Julian picks up his pen. "Then we proceed with you as expert witness," he says. "And we prepare for everything Prometheus will do when they see your name on the witness list."
Nadia nods. The decision is not new -- Ren can see that it was already made before she walked in, before she opened the folder, possibly before she crossed the street three weeks ago to take the elevator to the nineteenth floor. What is new is that it has been said out loud in this room, recorded into the work ahead.
The drive to Astoria takes forty minutes. Ren parks on Ditmars and walks the three blocks to his mother's building, and when he presses the buzzer, the intercom crackles and his mother says his name. Ren. Not a question. Not hesitant. His name in his mother's voice on a Wednesday afternoon in November, certain and immediate. He stands with his finger still on the button and lets himself take it in: a good day.
He has become a student of the difference between good days and the other kind -- the recognition in her voice when she knows him, real and unworked, versus the careful warmth she produces when she is using context, being kind to someone she isn't sure of. Today she knows him. The intercom buzzes and he goes up.
The apartment is arranged around its new necessities: Post-its on the cabinet doors in her handwriting, the pill organizer on the counter with the days marked, familiar objects moved to where they catch the eye easily. She had a home aide for three months and then didn't want one, and Ren has spent time being worried about this and has arrived at an understanding that her preference for managing her own space on her terms is its own form of dignity, one he does not have the right to decide is misplaced. The kitchen smells of the rice cooker running, of whatever she started before he arrived, and she comes toward him and her hand finds his face.
"Meu filho." My son.
They sit across from each other at the kitchen table. She pours tea she will not finish and he tells her about the case in the simplified version -- not the mechanism, not Section 12.1, not the expert witness question he just left behind on Lexington Avenue. Just that he is in the middle of something, that it matters, that it is moving the way things move when they are being worked on seriously. She listens with the attention she can still give on good days: eyes on him, present, not drifting. The window over the sink shows the brick wall. The backsplash his father installed is still crooked in the second row from the bottom, the grout line that never quite lined up.
After a while she starts to hum. Not "Corcovado" -- something else, something that has no name Ren can place. It is low, unhurried, the sound a person makes when they are not thinking about what they sound like. Her hands are around her tea cup. She is looking at the window.
He reaches for the feeling of sitting in this kitchen with her and finds the fact of her hand on his face, warm and certain. He finds the outline of what it used to mean in his body -- what it felt like to be known by her, the safety that came from her recognition of him. He knows that it was there. The shape of where it was is still legible. But the experience itself, the full sensory weight of being in this room with his mother on a good day, is present the way a lamp is present when the power is out. The form is correct. The light is not in it.
She turns from the window and smiles at him. He smiles back. He does not explain what is happening to him.
After midnight at his desk, the apartment quiet except for the building settling, the Motion to Dismiss runs to twenty-three pages. The argument is precise and, by its own terms, correct: the plaintiffs allege a subjective psychological state, do not allege loss of tangible property or cognizable economic harm, and voluntarily consented to the practices described in the ToS by clicking Accept. The phrase that stops him: not cognizable. He reads it again. The words don't say the injury isn't real -- they say the law cannot see it. His loss exists in a category the law hasn't been asked to address. The motion argues that this failure of categorization belongs to the plaintiffs, who should have alleged a harm that legal language can hold. His loss is not the right shape for a courtroom.
He sets the motion down on his desk. Beside it, his notebook. Fourteen entries. Not losses -- what they were before they went. The yellow of the tile. The crooked grout in the second row. The steam from the rice cooker moving in the morning light. His mother's voice carrying a melody through the kitchen without knowing she was doing it. The way she always came in a beat late on the second verse. He knows the title of the song. He can play the recording. The recording does not have the kitchen in it.
The motion says this is not cognizable. He picks up his pen and turns to a blank page, and he begins to write.
IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
PROMETHEUS DIGITAL LLC, Defendant-Movant,
v.
REN ALMEIDA et al., Plaintiffs-Respondents.
No. 1:24-cv-07391 (S.D.N.Y.)
MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6)
MEMORANDUM OF LAW IN SUPPORT
Defendant Prometheus Digital LLC ("Prometheus" or "Defendant") respectfully moves this Court to dismiss the complaint filed by Plaintiffs Ren Almeida et al. pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.
I. PRELIMINARY STATEMENT
Plaintiffs allege that use of the Hearthstone platform resulted in the "extraction" of personal memories, characterized as "experiential data." This claim fails as a matter of law. Plaintiffs have not alleged -- and cannot allege -- cognizable injury under federal law or applicable common law. The alleged "experiential dissociation syndrome" described in the complaint represents subjective psychological states with no cognizable legal analogue.
II. ARGUMENT
Plaintiffs' factual allegations, accepted as true for purposes of this motion, describe at most a subjective diminishment of personal memory quality. No court has recognized diminishment of experiential memory as cognizable injury. The clinical documentation Plaintiffs rely upon -- comprising neuroimaging data and clinical interview records -- establishes a pattern of subjective memory complaint but does not establish causation or cognizable harm.
Moreover, Plaintiffs voluntarily consented to the data licensing practices at issue. Section 4.2 of the Hearthstone Terms of Service expressly discloses the scope of licensed data, including "all experiential data generated during User interaction with the Platform." Plaintiffs clicked "Accept." The consent was documented, voluntary, and legally effective.
III. CONCLUSION
For the foregoing reasons, the complaint should be dismissed with prejudice. Plaintiffs have failed to plead facts sufficient to state a claim upon which relief can be granted.
Respectfully submitted,
MERCER & ALDGATE LLP Attorneys for Defendant Prometheus Digital LLC