WP Engine • Thoughts on the motion to dismiss hearing

As promised, I wanted to write up my thoughts about the hearing for Automattic’s motion to dismiss, which happened yesterday, August 28, 2025, at 2pm PDT. Because I’m not a lawyer, I’m “new” to listening to these hearings, so my thoughts are a bit scattered. If you haven’t already, check out the unofficial transcript of the hearing, which I published earlier today.

Recap of the hearing

There are a few topics I’d like to dive into, but first I wanted to provide an brief overview of the hearing itself.

As anticipated, the judge did not make a ruling on Automattic’s motion to dismiss “from the bench”, instead noting that it would follow at a later date. I expect this within a ~4 week timeline, but that’s purely a guess based on the court’s schedule.

To recap, the motion to dismiss is Automattic and Mullenweg’s attempt to avoid certain claims making their way to trial. In a case with multiple claims, it’s not only common for some to be dismissed before trial, but somewhat expected. As a general rule of thumb, plaintiffs should make as many claims as possible, hoping to get as many as possible to “stick” and make their way to trial. Quinn Emanuel, on behalf of WP Engine, did just that, making 20 claims in their first amended complaint.

The hearing, meanwhile, is a chance for both parties to be heard by the judge. It takes place after both parties have had a chance to put their thoughts in writing, a bit of back-and-forth called “motion practice.” With the motion to dismiss fully briefed, WP Engine and Automattic’s lawyers met before the court and made their final arguments.

The hearing lasted 45 minutes (more on this below), with the judge asking questions focused around the antitrust and UCL claims, which Automattic was pushing to dismiss (more on this below too).^[1] Because it was Automattic’s motion to dismiss, after the judge asked her questions, Automattic started arguing their points. This was our first opportunity to hear lawyers from Gibson Dunn argue on behalf of Automattic and Mullenweg (more on this below) after replacing Hogan Lovells in January.

WP Engine spent their time responding to Automattic and providing additional context to the judge’s questions. Automattic was given a final chance to respond, before the hearing ended. Let’s dig into a few topics.

Length of the hearing

At the start, the judge was clear that she wanted the hearing to last no more than 30 minutes. While she had a handful of questions, they were quite focused, and when her questions were answered, she gave each party 8 minutes to make their respective arguments.

That’s not quite how things went, however.

Automattic’s attorneys ended up taking ~14 minutes (by my count) to make their initial arguments. To illustrate this increased time, I’d point to the moment when Michael Dore, one of Automattic’s attorneys, stepped up to the lectern and noted he’d take “three minutes” to make this points. Seven minutes later, he finished, but only after the judge interrupted him to tell him he was over time.

In the end, the entirety of the hearing ended up taking 45 minutes.

Both parties have to play a bit of a game with the court, wherein they want to make as many arguments as possible, providing as much information to the court as possible. But, judges don’t enjoy time wasting, nor do they like it when lawyers ignore their rules. In the end, I have to imagine this is what Judge Araceli Martínez-Olguín expected, though I’m certain she hoped they would have kept to her instructions.

Automattic’s new attorneys

This leads to another point though—Automattic’s attorneys seemed competent and passionate about the case. That shouldn’t be surprising, but at the previous hearing in November, Automattic’s attorneys felt ill-prepared, at best, in-over-their-heads, at worst.

Back in January, Automattic changed their legal team, moving from the Hogan Lovells (and Neal Katyal) to Gibson Dunn. What I personally heard yesterday was a team with a deep understanding of the relevant case law, and a passion for arguing the case.

Michael Dore, in particular, felt like he had a chip on his shoulder. Near the end of the hearing, when Dore stepped back up to the lectern to respond to some of WP Engine’s arguments, he actually took over from Joseph Rose, who otherwise appeared to be the lead attorney. The two exchanged a few (unheard by me) words, and Dore seemed visibly annoyed by WP Engine’s arguments, adamant that he should be the one to respond.

Let’s talk about ”fudging”

While Automattic’s team from Gibson Dunn sounded more competent than their previously legal team, there’s one part that irked me a bit during the hearing.

At one point, Joseph Rose, seemingly aggrieved by comments from an opposing attorney, stated the following:

Your Honour, if I may, there’s a lot of fudging going on between WordPress.org and WordPress. I think that’s a really important point for this complaint and for this point that WPE is making. WordPress is software that the complaint acknowledges is open source and free under a general public license. That means that there is no price for WordPress software. Now counsel talked a few times about WordPress.org, which is a specific website in the WordPress community that is owned and controlled by Mr. Mullenweg. Now there are a lot of allegations in the complaint about access to WordPress.org, but it is not plausibly alleged in this complaint that controlling access to WordPress.org empowers anybody to control a price or distribution of WordPress software. It is a source of WordPress software, it is not the only source, and any person in the world could copy it off of WordPress.org or any other website where it is hosted and distribute it freely without anyone being able to stop them from doing that. And so it’s simply implausible to allege that every WordPress website in the world is controlled by defendants.

So, let’s talk about that ”fudging,” because it seems to me that Rose is the one fudging here.

At first glance, Rose seems right: WordPress is not WordPress.org. One is downloadable software, the other is a website that offers service. Thus, it can feel disingenuous to conflate WordPress.org and WordPress.

But, Rose misses the point. WordPress and WordPress.org are deeply integrated, in ways both obvious and unobvious. And, while WordPress.org is “a specific website in the WordPress community that is owned and controlled by Mr. Mullenweg”, it is also an integral part of the WordPress product. The open ecosystem of plugins and themes on WordPress.org, the ability to immediately receive security and feature updates—these features are fundamental to WordPress, and directly integrated into the GPL-licensed software, even as they live on a website which is “owned and controlled by Mr. Mullenweg”.^[2]

So, back to Rose’s statement. Is it plausible that “controlling access to WordPress.org empowers anybody to control a price or distribution of WordPress software?” If we fudge a bit and look skin deep, as Rose clearly wants, the quick conclusion is “no.”

But, WordPress-the-product is more than just the code: it’s the companion services provided by WordPress.org—which, again, are directly integrated into the WordPress software—that are key to the product. Put another way, WordPress.org is not merely, as Rose implies, “a source of WordPress software”. It is a key lever to WordPress’ desirability and ultimate success in the market. Without automatic security updates, without easy access to plugins and themes, WordPress would not be where it is today. Pulling those features back absolutely affects the ability to distribute WordPress broadly.

The antitrust claims

In their first amended complaint (FAC), WP Engine added antitrust claims, arguing that Automattic and Mullenweg had violated antitrust law with their actions. To me, this has felt like a bit of a stretch, but given that I am not a lawyer, I have to assume there is some reasonable basis for this claim.

The judge, in turn, seemed particularly focused on antitrust. Her questions solely focused on the antitrust aspect and the UCL (unfair competition law) claim.

During the hearing, the judge asked about the “Epic Games” factors. This refers to the Epic Games v Apple case, which gained quite a bit of notoriety.^[3] But, key to WP Engine is two aspects: first, Epic Games was a Ninth Circuit case, meaning it established precedent that must be directly applied to relevant cases in the Ninth Circuit, including WP Engine; second, because both cases alleged antitrust claims, the Ninth Circuit’s “factors” in Epic Games can be directly applied in WP Engine.

Before digging into the Epic Games factors, it’s worth noting that WP Engine is arguing Epic Games does not apply to this case. Specifically, they note in their opposition to the motion to dismiss that 1) the factors are not relevant to pre-trial pleadings, like this motion to dismiss, and 2) the factors apply when a defendant lacks power in a foremarket, but Automattic has power in the “foremarket” of web content management systems.^[4] Still, in their opposition filing, they outline why they do meet the Epic Games factors, even as they argue they should not apply.

In asking a specific question about the Epic Games factors, the judge seems to have sided with Automattic here, insofar as she agrees that they are relevant to this case. She asked, “if I find that WP Engine hasn’t adequately pleaded at least one of the Epic Games factors, do I need to reach any of the others?” This implies that she plans to apply the Epic Games factors and may have found one that does not directly apply to the WP Engine case.

We’ll see if her ruling aligns with her questioning, but I suspect it will, and the antitrust claims will be dismissed.

Closing thoughts, and next steps

A ruling from Judge Martínez-Olguín will likely come in the next month or so. She has previously mentioned that she has jury trials in both September and October, which take up much of her availability. I’d wager a ruling comes down within the next 30 days.

However, regardless of her ruling, the WP Engine case will continue. In its motion to dismiss, Automattic did not attempt to dismiss all of WP Engine’s claims. What we will know soon enough is which claims will continue on to trial.