Infostream Group, Inc. et al v. Paypal, Inc.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS 29 (Illston, Susan) (Filed on 8/28/2012)
1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 9 United States District Court For the Northern District of California 10 INFOSTREAM GROUP, INC., d/b/a SeekingArrangement.com and WhatsYourPrice.com, and LEAD WAY, 13 14 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTâS MOTION TO DISMISS Plaintiffs, 11 12 No. C 12-748 SI v. PAYPAL, INC., Defendant. / 15 On May 24, 2012, defendant PayPal, Inc. (âPayPalâ) filed a motion to dismiss plaintiffsâ First 16 Amended Complaint (âFACâ). Plaintiffs filed an opposition on June 27, 2012, and PayPal replied on 17 July 13, 2012. A hearing is scheduled for the motion on August 31, 2012. Pursuant to Civil Local Rule 18 7-1(b), the Court finds this matter appropriate for resolution without oral argument. Having reviewed 19 the partiesâ papers, and for good cause shown, the Court GRANTS IN PART and DENIES IN PART 20 defendantâs motion to dismiss. 21 BACKGROUND 22 Plaintiffs Lead Wey and InfoStream Group, Inc. (âInfoStreamâ) filed this action against PayPal 23 on January 13, 2012. Plaintiff Wey is the CEO and founder of InfoStream, which owns and operates 24 the websites âSeekingArrangement.comâ and âWhatsYourPrice.comâ (the âWebsitesâ). FAC Â¶ 6. The 25 Websites provide dating services for adult members who pay a fee to use the sites and connect with 26 other members. The Websites âcater to adults looking for a nontraditional dating experience.â Id. Â¶ 22. 27 SeekingArrangement.com facilitates âmutually beneficial relationshipsâ between members who refer 28 1 to themselves as either âsugar daddy, sugary mommy or sugar baby users.â1 2 WhatsYourPrice.com is a dating website and âmarketplaceâ which âallows members to buy and sell the 3 opportunity of going out on a first date.â Id. Â¶ 21. Both of these sites charge a membership fee. 4 Plaintiffs assert that the Websites strictly prohibit use of the website for âany commercial or illegal use,â 5 as well as maintain a strict no-nudity, no-obscenity policy. Id. Â¶ 22. The Websitesâ âprohibition of 6 illegal conduct extends to prostitution.â Id. Â¶ 23. The websites promote relationships âamong adults 7 of differing economic and experiential backgrounds â they are not escort services.â Id. The accounts 8 of users who violate this policy are deleted. Id. Id. Â¶ 20. Defendant PayPal is a business that processes payments and facilitates monetary transfers 10 United States District Court For the Northern District of California 9 through the Internet. Id. Â¶ 11. PayPal provides this service to individuals and businesses in return for 11 a fee. Id. Information about usersâ bank accounts and credit cards is not shared with the recipients of 12 the funds, thus protecting usersâ data. Id. Â¶ 12. Plaintiffs term this âConfidential Payment Services,â 13 and allege that PayPal has a monopoly on the Confidential Payment Services market. Id. Â¶ 25. 14 In order to establish a PayPal account, a user must agree to PayPalâs User Agreement, which 15 provides that PayPal may âclose, suspend or limit your access to your Account or the PayPal Servicesâ 16 for, among other things, breach of the PayPal Acceptable Use Policy (âAUPâ). Id. Â¶ 15, RJN, Dkt. 30, 17 Exs. A and B, Â§Â§ 9.1, 10.4.2 The AUP, in turn, contains a prohibition against using PayPal for activities 18 19 20 21 22 23 24 25 26 27 28 1 The parties do not define these terms in their papers. However, according to Wikipedia, ââSugar daddyâ is a slang term for a man who offers money or gifts to a younger person in return for companionship or sexual favors.â See Wikipedia, available at http://en.wikipedia.org/wiki/Sugar_daddy, last visited August 23, 2012. The Court deduces that âSugar Mommyâ refers to a woman who offers money or gifts to a younger person for same; and âSugar Babyâ refers to the younger person. 2 PayPal requests judicial notice of 1) the User Agreement between the parties (RJN, Ex. A); 2) the Acceptable Use Policy (âAUPâ) (RJN, Ex. B); 3) Screenshots of WhatsYourPrice.Com (RJN, Ex. C); 4) Screenshots of SeekingArrangement.com (RJN, Ex. D); and 5) various online articles and editorials about plaintiffsâ websites. On a motion to dismiss, a Court may consider documents not physically attached to the complaint if the documentsâ authenticity is not contested and the plaintiffâs complaint necessarily relies on them. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). The Court finds that this applies to Exs. A and B â the contracts that the complaint and both partiesâ motions rely on â and GRANTS PayPalâs request with respect to them. Plaintiffs do contest the authenticity of Exs. C and D â the screenshots of plaintiffsâ websites â as having been taken long after the termination date relevant to plaintiffsâ complaint. Pl.âs Objs. to Evidence at 1-3. Plaintiffs also argue that the factual assertions and opinions in the news articles of Ex. E are not judicially noticeable. Pl.âs Obj. to RJN at 3-4. The Court does not rely on the screenshots or news articles in Exs. C-E because, as discussed below, the issues raised by defendants with respect to 2 1 that ârelate to sales of . . . certain sexually oriented content or services.â RJN, Ex. B (AUP), Â¶ 2. 2 âCertain sexually oriented content or servicesâ is not further defined. 3 In 2007, plaintiffs established a PayPal account in order to accept payments for membership 4 subscriptions and upgrades for SeekingArrangement.com. FAC Â¶ 41. PayPal subsequently suspended 5 this account for violation of the AUP, citing the âsexualâ nature of the website. Id. Plaintiffs agreed 6 to stop using the account to process payments for SeekingArrangement.com, and the account was 7 reactivated for use by plaintiffs for other online business ventures. Id. On March 29, 2011, plaintiffs launched WhatsYourPrice.com, and set up another account with 9 PayPal to process payments through this new site. Shortly thereafter, on April 14, 2011, PayPal 10 United States District Court For the Northern District of California 8 âpermanently suspendedâ the new account, as well as two other accounts associated with InfoStream, 11 claiming that the account was in violation of the AUP. Id. Â¶Â¶ 45-46. PayPal claimed that it terminated 12 the accounts because of the âsexual nature of the dating service provided by [plaintiffsâ] Websites.â Id. 13 Â¶ 46. In an April 29, 2011 email to Wey, a PayPal employee stated that the accounts were terminated 14 because â[t]wo of the options for daters to choose from are âDating - Casual/Intimate Encounterâ & 15 Married Dating/Discreet Affair (meeting for purposes of having sex). This would fall under the adult 16 category.â Id. Â¶ 46. Plaintiffs thereafter âengaged in extensive efforts to resolve the issue with PayPal,â 17 but were eventually told that there was no way to bring the Websites into compliance with the AUP 18 because both sites âpromote monetary exchange between members and modifying the websites or 19 changing their language would not change the customer base.â Id. Â¶ 51. Plaintiffs allege that after 20 weeks of âstringing plaintiffs along and providing numerous contradictory explanations for the 21 termination, PayPal ultimately refused to reconsider the termination of the accounts.â Id. Â¶ 52. 22 Plaintiffs allege that PayPal did not, in fact, terminate plaintiffsâ accounts because of any 23 violation of the AUP. Id. Â¶ 53. Plaintiffs allege that âit could not be the case that PayPal terminated 24 Plaintiffsâ accounts because of the nature of the services providedâ because PayPal continues to provide 25 its services to competing websites that provide âidentical servicesâ and have âidentical financial 26 possibilities available to their patrons.â Id. Â¶Â¶ 53-54. Instead, PayPal allegedly terminated plaintiffsâ 27 28 the content of the actual websites are properly addressed in a motion for summary judgment. The Court therefore does not rule on the RJN with respect to those exhibits. 3 1 accounts in order to âbestow an unfair competitive advantage on certain dating websites and not others.â 2 Id. Â¶ 65. According to plaintiffs, âPayPal manipulates the downstream markets for its own benefitâ by 3 âchoosing market winners in downstream markets with the intent to benefit itself by increasing revenue 4 and in maintenance of its market power in the Confidential Payment Services market.â Id. Â¶ 38. 5 Plaintiffs claim that not only has PayPal passively accepted a continued relationship with identical, 6 competing websites â such as Ashley Madison.com and ArrangementFinders.com â but PayPal has 7 actively âpre-approvedâ these competing sites and found them to be in compliance with the AUP. Id. 8 Â¶ 64. PayPalâs citation to the AUP as a reason to terminate plaintiffsâ accounts was merely a âpretext 9 to disguise its real reason for terminating SeekingArrangement.comâs account â to economically benefit United States District Court For the Northern District of California 10 competitor sites.â Id. Â¶ 41. 11 On January 13, 2012, plaintiffs filed this lawsuit in Santa Clara Superior Court. PayPal removed 12 based on diversity jurisdiction pursuant to 28 U.S.C. Â§Â§ 1332, 1441. The case was subsequently 13 assigned to this Court. Plaintiff filed an amended complaint on April 24, 2012, asserting various causes 14 of action arising out of PayPalâs termination of plaintiffsâ accounts. Based on the aforesaid activity, 15 plaintiffs bring claims for violation of the Sherman Act, 15 U.S.C. Â§ 2; breach of contract; breach of the 16 implied covenant of good faith and fair dealing; fraud; and unfair business practices. See FAC Â¶Â¶ 68-94. 17 On May 24, 2012, defendant moved to dismiss each of these claims pursuant to Fed. R. Civ. P. 18 12(b)(6). Plaintiffs filed an opposition to this motion on June 27, 2012; PayPal filed a reply on July 13, 19 2012. 20 21 LEGAL STANDARD 22 Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it 23 fails to state a claim upon which relief can be granted. The question presented by a motion to dismiss 24 is not whether the plaintiff will prevail in the action, but whether the plaintiff is entitled to offer 25 evidence in support of the claim. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In answering this 26 question, the Court must assume that the plaintiff's allegations are true and must draw all reasonable 27 inferences in the plaintiff's favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). 28 However, a district court should grant a motion to dismiss when plaintiffs have not pleaded âenough 4 1 facts to state a claim to relief that is plausible on its face.â Bell Atlantic Corp. v. Twombly, 550 U.S. 2 544, 570 (2007). A court need not accept as true conclusory allegations, unreasonable inferences, legal 3 characterizations, or unwarranted deductions of fact contained in the complaint. Clegg v. Cult 4 Awareness Network, 18 F.3d 752, 754-755 (9th Cir. 1994). â[W]here the well pleaded facts do not 5 permit the court to infer more than the mere possibility of misconduct, the complaint has alleged â but 6 it has not âshow[n]â â âthat the pleader is entitled to relief.ââ Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 7 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). If the Court dismisses the complaint, it must then decide whether to grant leave to amend. The 9 Ninth Circuit has ârepeatedly held that a district court should grant leave to amend even if no request 10 United States District Court For the Northern District of California 8 to amend the pleading was made, unless it determines that the pleading could not possibly be cured by 11 the allegation of other facts.â Lopez v. Smith, 203 F. 3d 1122, 1130 (9th Cir. 2000) (citations and 12 internal quotation marks omitted). 13 14 I. SHERMAN ACT CLAIM 15 Plaintiffs allege that PayPal has a monopoly in the âConfidential Payment Servicesâ market, and 16 exercises its monopoly power in that market to injure competition in downstream markets, including 17 the âSpecialty Online Dating Servicesâ market in which plaintiffs compete. FAC Â¶ 69. According to 18 plaintiffs, PayPal manipulates the downstream market by âchoos[ing] market winners in downstream 19 markets with the intent to benefit itself by increasing revenue and in maintenance of its market power 20 in the Confidential Payment Services market.â Id. Â¶ 70. The result of PayPalâs activities is that 21 competitors in the downstream market have been driven out, leaving the Specialty Online Dating 22 Services market with fewer choices, diminished pricing competition and inferior products. Id. Â¶ 73. 23 Plaintiffs also allege that PayPalâs âarrangementsâ with its competitors, AshleyMadison.com and 24 ArrangementSeekers.com, are âconcerted refusals to dealâ with plaintiffs. Id. Â¶ 71. 25 Based on these allegations, plaintiffs bring a cause of action for violation of Section 2 of the 26 Sherman Act (âSection 2â), which penalizes â[e]very person who shall monopolize, or attempt to 27 monopolize, or combine or conspire with any other person or persons, to monopolize any part of the 28 trade or commerce among the several States.â 15 U.S.C. Â§ 2. To state a monopolization claim under 5 Â§ 2 of the Sherman Act, a plaintiff must allege that: (1) the defendant possessed monopoly power in the 2 relevant market; (2) the defendant willfully acquired or maintained that power through exclusionary 3 conduct; and (3) the defendantâs conduct caused antitrust injury. See MetroNet Servs. Corp. v. Qwest 4 Corp., 383 F.3d 1124, 1130 (9th Cir. 2004). 5 monopolization, a plaintiff must demonstrate: (1) specific intent to control prices or destroy competition; 6 (2) predatory or anti-competitive conduct directed toward accomplishing that purpose; (3) a dangerous 7 probability of success; and (4) causal antitrust injury. Forsyth v. Humana, Inc., 114 F.3d 1467, 1475 8 (9th Cir. 1997). Antitrust injury is injury âof the type the antitrust laws were intended to prevent.â Glen 9 Holly Entmât, Inc. v. Tektronix, Inc., 352 F.3d 367, 371 (9th Cir. 2003). In other words, âa plaintiff must 10 United States District Court For the Northern District of California 1 prove that his loss flows from an anticompetitive aspect or effect of the defendantâs behavior . . . If the 11 injury flows from aspects of the defendantâs conduct that are beneficial or neutral to competition, there 12 is no antitrust injury, even if the defendantâs conduct is illegal per se.â Pool Water Prods. v. Olin Corp., 13 258 F.3d 1024, 1034 (9th Cir. 2001). Similarly, to prevail on a claim of attempted 14 Plaintiffs do not allege that PayPal has a monopoly or is attempting to attain a monopoly in the 15 downstream Specialty Dating Online Services market. Rather, plaintiffs describe their claim as âvery 16 simple[:] It is a violation of Section 2 of the Sherman Act for Paypal, a monopolist in one market, to 17 exercise its market power to injure downstream markets.â Pl.âs Opp. to PayPalâs Mot. to Dismiss (âPl.âs 18 Opp.â), Dkt. 34 at 11. In support of this theory, plaintiffs rely extensively on the Second Circuitâs 19 opinion in Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 268 (2d Cir. 1979).3 Plaintiffs 20 argue: 21 Berkey Photo stated the rule of law [regarding Section 2]: âWe must determine whether a firm violates Â§ 2 by using its monopoly power in one market to gain a competitive advantage in another, albeit without an attempt to monopolize the second market. We hold, as did the lower court, that it does.â This is what InfoStream has alleged here . . . This is the exact type of âleveragingâ that Berkey Photo prohibits under Section 2. 22 23 24 25 26 27 28 Id. at 12 (emphasis added). However, the Ninth Circuit expressly rejected Berkey Photo in Alaska Airlines, Inc. v. United 3 Berkey is a 1979 opinion of the Second Circuit. Although plaintiffs attribute the opinion to the âC.D.N.Y.â in their Table of Authorities and brief, and to âthe Second Districtâ elsewhere in the brief, this Court references only the Second Circuit opinion found at 603 F.2d 263. 6 1 Airlines, Inc., 948 F.2d 536 (9th Cir. 1991) (âWe now reject Berkey's monopoly leveraging doctrine as 2 an independent theory of liability under Section 2.â). In the Ninth Circuit, âa plaintiff cannot establish 3 a violation of Section 2 without proving that the defendant used its monopoly power in one market to 4 obtain, or attempt to attain, a monopoly in the downstream, or leveraged, market.â Id. at 546-47. The 5 court held that leveraging an upstream monopoly to gain power in a downstream market does not violate 6 Section 2 absent achieving, or attempting to achieve, a monopoly downstream: 7 10 The anticompetitive dangers that implicate the Sherman Act are not present when a monopolist has a lawful monopoly in one market and uses its power to gain a competitive advantage in the second market. By definition, the monopolist has failed to gain, or attempt to gain, a monopoly in the second market. Thus, such activity fails to meet the second element necessary to establish a violation of Section 2. Unless the monopolist uses its power in the first market to acquire and maintain a monopoly in the second market, or to attempt to do so, there is no Section 2 violation. 11 Id. at 548; see also Garon v. eBay, 2011 WL 6329089, *4 (N.D.Cal. 2011) (Ware, J.) (â[P]laintiffs 12 cannot state a monopolization claim against defendant based on their exclusion from a market in which 13 defendant is neither alleged to be a monopolist nor a competitor.â); Universal Grading Service v. eBay, 14 Inc., 2012 WL 70644, *9 (N.D. Cal. Jan. 9, 2012) (Whyte, J.) (dismissing plaintiffâs Section 2 claim that 15 eBay conspired with plaintiffâs larger competitors to increase prices of plaintiffâs product; âSimply put, 16 in order to be liable for inflicting antitrust injury under Section 2, a defendant must compete in the 17 affected market.â). 8 United States District Court For the Northern District of California 9 18 Plaintiffs do not allege that PayPal has a monopoly in the Specialty Online Dating Services 19 market, nor do they expressly allege that PayPal is attempting to obtain such a monopoly. Plaintiffs do 20 state in their opposition papers that âInfoStream believes that discovery will show that PayPal has not 21 only a pecuniary interest or benefit in the powerful market participants downstream but also potentially 22 an ownership interest in such competitors or an arrangement that, for antitrust purposes, is akin to an 23 ownership interest (i.e., that PayPal was directly, vertically integrated into the downstream market or 24 has exclusive long term contracts with them) that give PayPal a direct stake in InfoStreamâs downstream 25 market.â Pl.âs Opp. at 13. In the interest of reviewing the allegations in a light most favorable to 26 plaintiffs, the Court construes this as an âattempt to monopolizeâ claim, which remains viable after 27 Alaska Airlines. See Cost Mgmt. Services, Inc. v. Washington Natural Gas Co., 99 F.3d 937, 951 (9th 28 Cir. 1996) (â[T]o the extent that âmonopoly leveragingâ is defined as an attempt to use monopoly power 7 1 in one market to monopolize another market, this theory remains a viable theory under Section 2 . . . We 2 emphasize, however, that under this theory, [plaintiff] must establish each of the elements normally 3 required to prove an attempted monopolization claim under section 2 of the Sherman Act.â). With respect to this theory, as an initial matter, plaintiffsâ âbeliefâ that PayPal has an ownership 5 interest in competitors such as AshleyMadison.com and ArrangementSeekers.com raises plausibility 6 concerns under Iqbal and Twombly. The Rule 8 pleading requirements âprevent parties from filing 7 complaints in order to conduct aimless fishing expeditions in the hope that some helpful evidence might 8 possibly be uncovered.â Dichter-Mad Family Partners, LLP v. U.S., 707 F. Supp. 2d 1016 1052 (C.D. 9 Cal. 2010) (citing Iqbal and Twombly). The Court finds that the complaint does not set forth sufficient 10 United States District Court For the Northern District of California 4 facts to raise the specter of PayPalâs ownership interest in plaintiffsâ competitors âabove the speculative 11 level.â Twombly, 550 U.S. at 555. 12 Moreover, in order to establish an attempt to monopolize claim, a plaintiff must adequately 13 allege the elements required for attempt to monopolize, including a dangerous probability of success. 14 See Cost Mgmt Serivices, Inc., 99 F.3d at 951; see also Verizon Communications Inc. v. Trinko, 540 U.S. 15 398, 415 n.4 (2004) (in considering whether respondent stated a valid claim under a âmonopoly 16 leveragingâ theory, the Court held that a âdangerous probability of successâ in monopolizing a second 17 market was required.). Plaintiffs have not alleged that PayPal has a dangerous probability of success 18 in establishing a monopoly in the Specialty Online Dating Services market. Nor have plaintiffs alleged 19 that their Specialty Online Dating Services competitors â in which PayPal allegedly has an ownership 20 interest â have a dangerous probability of success in monopolizing that market. Plaintiffs have wholly 21 failed to allege any specific facts with respect to the market power of their competitors, despite the fact 22 that âdemonstrating the dangerous probability of monopolization in an attempt case  requires inquiry 23 into the relevant product and geographic market and the defendantâs economic power in that market.â 24 Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 459 (1993). Likely because plaintiffs relied on the 25 rejected Berkey Photo theory, the complaint does not provide any allegations, plausible or otherwise, 26 that PayPal has a dangerous probability of monopolizing the Specialty Online Dating Services market. 27 The Court therefore GRANTS PayPalâs motion to dismiss the Sherman Act claim. The Court 28 grants leave to amend only insofar as plaintiffs can plausibly allege, consistent with Rule 11, that 8 1 PayPal has an ownership interest in plaintiffsâ competitors, and that because of that ownership interest, 2 PayPal has a dangerous probability of success of achieving a monopoly in the Specialty Online Dating 3 Services market. 4 5 II. BREACH OF CONTRACT To state a claim for breach of contract, a plaintiff must allege (1) existence of the contract; (2) 7 plaintiffâs performance or excuse for nonperformance; (3) defendantâs breach; and (4) damages to the 8 plaintiff as a result of the breach. CDF Firefighters v. Malonado, 158 Cal. App. 4th 1226, 1239 (2008). 9 Here, plaintiffs allege that by terminating plaintiffsâ accounts, PayPal was in breach of its contractual 10 United States District Court For the Northern District of California 6 duty to provide payment processing services for the Websites in exchange for various fees. FAC Â¶ 76. 11 PayPal counters that it terminated the accounts because, pursuant to the terms of the User Agreement 12 and AUP, it had âreason to believeâ that plaintiffs were in violation of the AUPâs prohibition on 13 engaging in the sale of âcertain sexually oriented materials or services.â Def.âs MTD at 13. In support 14 of its argument, PayPal points to language on plaintiffsâ Websites insinuating sexual themes, a photo 15 showing a man holding hundred dollar bills next to a younger woman, and news articles and editorials 16 describing plaintiffsâ Websites as sexual in nature and supportive of prostitution. Id.; Def.âs Reply at 17 1, n.2. For their part, plaintiffs allege that competitor websites providing identical services were âpre- 18 approvedâ by PayPal, and argue that PayPalâs continued provision of payment processing services to 19 these competitors demonstrates that PayPal did not have âreason to believeâ plaintiffsâ Websites were 20 violative of the AUP. Plaintiffs argue that PayPalâs stated reliance on the User Agreement as the reason 21 it terminated plaintiffsâ accounts is mere pretext; the real reason it terminated plaintiffsâ accounts was 22 to benefit the competitor websites and, by extension, itself. 23 The Court finds that whether PayPal breached the partiesâ contract by terminating plaintiffsâ 24 accounts is a question best resolved on summary judgment or by a jury. PayPal essentially asks the 25 Court to judicially notice that plaintiffsâ websites are promoting transactions involving sexually oriented 26 services. While that may prove to be the case, it is outside the scope of judicial notice. See Fed. R. Civ. 27 P. 201; Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). Instead, on a motion to 28 dismiss, a Court must take all of plaintiffsâ allegations as true and draw all inferences in their favor. 9 Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). PayPalâs argument is further 2 complicated by the fact that the AUP prohibits use of PayPal for âactivities that relate to sales of . . . 3 certain sexually oriented materials or services.â RJN, Ex. B Â¶ 2 (emphasis added). The AUP does not 4 prohibit activities related to the sale of all sexually oriented services. If a contract is capable of more 5 than one reasonable interpretation, it is ambiguous. Badie v. Bank of Am., 67 Cal. App. 4th 779, 798 6 (1998). Plaintiffs argue that the use of the word âcertainâ in the phrase âcertain sexually oriented 7 materials or servicesâ renders the term ambiguous. Both parties rely on extrinsic evidence to apply the 8 contract term in their favor. Plaintiffs point to allegedly âpre-approved,â identical competitor websites 9 to support their argument that their own websites did not engage in sales related to âcertain sexually 10 United States District Court For the Northern District of California 1 oriented services.â PayPal argues that plaintiffsâ websites are âuniqueâ and points to online articles 11 suggesting plaintiffsâ websites traffic in prostitution. Def.âs Reply at 1, n.22. âUnder California law, 12 courts may not dismiss on the pleadings when one party claims that extrinsic evidence renders the 13 contract ambiguous.â A Kemp Fisheries, Inc. v. Castle & Cooke, Inc., 852 F.2d 493, 496 n.2 (9th Cir. 14 1988). âThe case must proceed beyond the pleadings so that the court may consider the evidence.â Id. 15 Here, it is clear that extrinsic evidence will be required to determine whether the contractâs terms are 16 ambiguous, and, if so, whether those terms apply to plaintiffsâ Websites. 17 PayPalâs motion to dismiss the breach of contract claim is DENIED. 18 19 III. BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING 20 In every contract âthere is an implied covenant that neither party shall do anything which will 21 have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.â 22 Locke v. Warner Bros., Inc., 57 Cal.App.4th 354, 66 Cal.Rptr.2d 921, 925 (1997). â[T]he covenant is 23 implied as a supplement to the express contractual covenants, to prevent a contracting party from 24 engaging in conduct that frustrates the other party's rights to the benefits of the agreement.â Waller v. 25 Truck Ins. Exch., Inc., 11 Cal.4th 1 (1995). A claim for breach of the covenant has five elements under 26 California law: â(1) the parties entered into a contract; (2) the plaintiff fulfilled his obligations under 27 the contract; (3) any conditions precedent to the defendant's performance occurred; (4) the defendant 28 unfairly interfered with the plaintiff's rights to receive the benefits of the contract; and (5) the plaintiff 10 1 was harmed by the defendant's conduct.â Rosenfeld v. JPMorgan Chase Bank, N.A., 732 F.Supp.2d 952, 2 968 (N.D.Cal.2010). 3 Plaintiffs allege that PayPal breached the implied covenant by terminating plaintiffsâ accounts, 4 without reason to believe they were engaged in activities prohibited by the AUP, in order to provide an 5 economic advantage to plaintiffsâ competitors. FAC Â¶Â¶ 82 and 83. PayPal argues that 1) this claim is 6 superfluous because it is based on the same allegations as the breach of contract claim, and 2) that the 7 contract had no âreasonanability requirementâ because PayPal could, âat its sole discretion,â terminate 8 an account âfor any reason and at any time.â Def.âs MTD at 16 (citing User Agreement Â§ 10.4). With respect to the first argument, PayPal cites the proposition that âif the allegations in a breach 10 United States District Court For the Northern District of California 9 of implied covenant claim do not go beyond the statement of a mere contract breach and, relying on the 11 same alleged acts, simply seek the same damages or other relief already claimed in a companion contract 12 cause of action, they may be disregarded as superfluous as no additional claim is actually stated.â 13 Malcolm v. JP Morgan Chase Bank, J.A., 2010 WL 934252, *6 (N.D. Cal. Mar. 15, 2010) (Fogel, J.) 14 (citing Careau & Co. v. Sec. Pac. Bus. Credit, Inc., 222 Cal.App.3d 1371, 1395 (Cal.Ct.App.1990)). 15 However, the Court disagrees that plaintiffsâ implied covenant claim is superfluous. While the breach 16 of contract claim is focused on PayPalâs termination of plaintiffsâ account without reason to believe it 17 violated the AUP, the implied covenant claim is focused on PayPalâs alleged acts to âprovide an 18 economic advantage to Plaintiffsâ competitors.â FAC Â¶ 83. Throughout the FAC, plaintiffs allege that 19 PayPal has a âdirect or indirect financial arrangement or ownership interestâ in their competitors and 20 terminated the contract to provide the competitors with marketplace advantage. Id. Â¶Â¶ 50, 63-64. This 21 claim is sufficiently distinct from the breach of contract claim to concurrently maintain the cause of 22 action of breach of the implied covenant. 23 PayPalâs second argument is essentially that there was no implied covenant of good faith and 24 fair dealing in the partiesâ agreement, because the contract allowed PayPal âin its sole discretion . . . to 25 terminate this Agreement, access to its website, or access to the PayPal services for any reason and at 26 any time . . .â RJN Ex. A (User Agreement) Â§ 10.4. Notably, PayPal does not rely on this âcatchallâ 27 provision as the grounds on which it terminated plaintiffsâ accounts, perhaps out of concern that courts 28 â outside of the at-will employment context â disfavor such provisions as rendering the partiesâ 11 obligations illusory. See Mattei v. Hopper, 51 Cal. 2d 119, 120 (1958) (â[I]f one of the promises leaves 2 a party free to perform or to withdraw from the agreement at his own unrestricted pleasure, the promise 3 is deemed illusory and it provides no consideration.â); Third Story Music, Inc. v. Waits, 41 Cal. App. 4 4th 798, 808 (1995) (contractâs term that it could market Tom Waits records âat its electionâ is a 5 âtextbook example of illusory promise.â). In order to save such contract terms, courts will read in the 6 implied covenant of good faith and fair dealing. See Reyes v. Wells Fargo Bank, N.A., 2011 WL 30759 7 (N.D. Cal. Jan. 3, 2011) (Spero, M.J.) (contractâs term that Wells Fargo could terminate a forbearance 8 agreement at its sole discretion at any time would be illusory unless the Court âimplies a covenant of 9 good faith and fair dealing into it.â) (citing Storek & Storek v. Citicorp Real Estate, Inc., 100 Cal. App. 10 United States District Court For the Northern District of California 1 4th 44 (2002)); see also Locke v. Warner Bros, Inc., 57 Cal. App. 4th 354, at 376 (1997) (where contract 11 allowed film studio discretion to develop the plaintiffâs projects, the âimplied covenant of good faith 12 and fair dealing obligated Warner Brothers to exercise that discretion honestly and in good faith.â). 13 Here, while the contract allowed PayPal to act at its sole discretion, that discretion must be exercised 14 in good faith. Id.; see also Carma Developers, Inc. v. Marathon Development of California, Inc., 2 Cal. 15 4th 342, 372 (1992) (âThe covenant of good faith finds particular application in situations where one 16 party is invested with a discretionary power affecting the rights of another. Such power must be 17 exercised in good faith.â). Plaintiffs allege that PayPal acted in bad faith by terminating the agreement 18 for the sole purpose of benefitting plaintiffsâ competitors. FAC Â¶Â¶ 82 and 83. Whether or not that turns 19 out to be the case, it is sufficiently alleged to survive a motion to dismiss. 20 21 PayPalâs motion to dismiss the claim for breach of the implied covenant of good faith and fair dealing is DENIED. 22 23 IV. FRAUD 24 The elements which must be pleaded to sufficiently allege a fraud claim are â(a) 25 misrepresentation (false representation, concealment or nondisclosure); (b) knowledge of falsity (or 26 âscienterâ); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting 27 damage.â Philipson & Simon v. Gulsvig, 64 Cal. Rptr. 3d 504, 516 (2007) (quoting Agricultural Ins. 28 Co. v. Superior Court, 82 Cal. Rptr. 2d 594, 603 (1999)). âIn a fraud claim against a corporation,â as 12 here, âa plaintiff must allege the names of the persons who made the misrepresentations, their authority 2 to speak for the corporation, to whom they spoke, what they said or wrote, and when it was said or 3 written.â Perlas v. GMAC Mortg., LLC, 113 Cal. Rptr. 3d 790, 794-95 (2010) (citing Lazar v. Superior 4 Court 12 Cal.4th 631, 645 (1996)). Additionally, fraud actions are subject to a stricter pleading 5 standard in California. Allegations of âfraud must be specifically pleaded,â and âthe policy of liberal 6 construction of pleading will not usually be invoked to sustain a pleading that is defective.â Wilhelm 7 v. Pray, Price, Williams & Russell, 231 Cal. Rptr. 355, 358 (Ct. App. 1986) (âevery element of the cause 8 of action for fraud must be alleged in full, factually and specificallyâ). âThis particularity requirement 9 necessitates pleading facts which show how, when, where, to whom, and by what means the 10 United States District Court For the Northern District of California 1 representations were tendered.â Lazar v. Superior Court, 909 P.2d 981, 989 (1996) (quoting Stansfield 11 v. Starkey, 269 Cal. Rptr. 337, 345 (Ct. App. 1990)). 12 Plaintiffs base their fraud claim on allegations that PayPal âmade a number of misrepresentations 13 to plaintiff concerning both the reasons for the termination of Plaintiffsâ PayPal accounts and 14 Defendantâs willingness to work with Plaintiff to resolve the supposed violations of PayPalâs Acceptable 15 Use policy so that Plaintiff could maintain a PayPal account.â FAC Â¶ 85. Plaintiffs claim that âa 16 number of different PayPal employees and representatives [falsely] indicated that the alleged violations 17 of its policies could be resolved such that Plaintiff could continue to hold a PayPal account . . . Despite 18 the statements of its representatives, PayPal had no intention of resolving its issues or allowing Plaintiffs 19 to maintain PayPal accounts under any circumstances.â Id. These statements allegedly caused plaintiffs 20 to âa) continue to use PayPal during the period when PayPal representatives pretended to attempt to 21 âresolveâ the suspension of Plaintiffsâ accounts; b) prevent and discourage Plaintiff[s] from contesting 22 or initiating litigation or other adjudicative process regarding the termination of Plaintiffsâ accounts; and 23 c) conceal the real reasons for Defendantâs termination of Plaintiffâs account and Defendantâs true 24 economic relationship with the Competitor websites.â Id. Â¶ 86. Plaintiffs allege that this caused them 25 damages in the amount of âno less than $20,000.â Id. Â¶ 87. 26 These allegations reference the period described in the complaint beginning on April 14, 2011, 27 when PayPal âpermanently suspendedâ all of InfoStreamsâ PayPal accounts. Id. Â¶ 45. Over the 28 following four weeks â until May 10, 2011 â plaintiffs engaged in a number of communications with 13 PayPal representatives. FAC Â¶Â¶ 46-52. On May 3, 2011, PayPal representative Jule Bainbridge stated 2 that Plaintiffsâ websites violated the AUP, noting the websitesâ options of âAdult Dating - 3 Casual/Intimate Encounterâ and âMarried Dating/Discreet Affair (meeting for the purpose of having 4 sex).â Id. Â¶ 49.4 She also explained that other dating sites accepting PayPal had been pre-approved by 5 PayPal. FAC Â¶ 64. On May 9, 2011, Program Manager Ashley Bates spoke on the telephone with 6 plaintiff Wey and stated âthat she would have a PayPal sales person contact Wey to approve him for a 7 merchant account and would work on un-suspending his other actions.â Id. Â¶ 48. One day later, â[o]n 8 May 10, 2011, Bates emailed Wey to inform him that PayPal would not be able to continue processing 9 payments for the Dating Websites.â Id. Â¶ 49. On a telephone call that same day, Bates explained that 10 United States District Court For the Northern District of California 1 âthere was no possible way that Wey could modify the Dating Websites to bring them into compliance 11 with the [AUP], because both sites promote monetary exchange between members and modifying the 12 website or changing its language would not change the customer base.â Id. Â¶ 51. Plaintiffs refer to these 13 communications as âweeks of stringing plaintiffs along.â Id. Â¶ 52. 14 The Court finds that these allegations fail to state a claim for fraud. Plaintiffs claim that they 15 relied on these communications to their detriment by âcontinu[ing] to use PayPal during the period when 16 PayPal representatives pretended to attempt to âresolveâ the suspension of Plaintiffsâ accounts.â Id. Â¶ 17 86. This statement is directly contradicted by plaintiffsâ allegation that on April 14, 2011, prior to the 18 alleged communications with PayPal, PayPal âpermanently suspendedâ plaintiffsâ accounts. Id. Â¶ 45. 19 It is therefore unclear how plaintiffs could have continued to use PayPal during the period they were in 20 communication with PayPal representatives. Moreover, even if plaintiffs did continue to use PayPal, 21 it is unclear how that would be to their detriment, as plaintiffsâ principal complaint in this case is that 22 they are no longer allowed to use PayPal. FAC Â¶ 5 (âPayPalâs refusal to provide services for certain 23 dating websites drives an extremely large number of consumers away from [plaintiffsâ] Dating Websites 24 25 26 27 28 4 Only the statements from named employees meet the California pleading requirements for fraud claims against corporations. See Perlas, 113 Cal. Rptr. 3d at 794-95 (âIn a fraud claim against a corporation, a plaintiff must allege the names of the persons who made the misrepresentations, their authority to speak for the corporation, to whom they spoke, what they said or wrote, and when it was said or written.â). The general allegation that âa number of different PayPal employees and representatives indicated that the alleged violations of its policies could be resolved such that Plaintiff could continue to hold a PayPal accountâ does not meet this standard. Id. 14 1 . . .â). Plaintiffsâ claim therefore fails to show either reliance or resulting damage. Plaintiffsâ second alleged basis for harm â that PayPalâs representations âprevent[ed] and 3 discourage[d]â them from âcontesting or initiating litigation or other adjudicative process regarding the 4 termination of Plaintiffsâ accountsâ â is likewise unactionable.5 There are no allegations that PayPal 5 made any mention of adjudicative processes or stood in the way of plaintiffsâ filing this or any other 6 lawsuit. See Serv. by Medallion, Inc. v. Clorox Co., 52 Cal. Rptr. 2d 650, 656 (Cal. Ct. App. 1996) 7 (âWhatever form it takes, the injury or damage must not only be distinctly alleged but its causal 8 connection with the reliance on the representations must be shown.â). If the claim is based on a delay 9 caused by the statements, the delay was a maximum of one month. Plaintiffs allege that their accounts 10 United States District Court For the Northern District of California 2 were suspended April 14th, they were told on May 9th that they would be contacted about a merchant 11 account, but were told on May 10th that they could not modify their account to be in compliance with 12 the AUP. FAC Â¶Â¶ 48, 51. The delay caused by this statement appears to be a single day, but even 13 assuming it was four weeks, this fails to state a claim for harm without additional allegations as to why 14 a four week delay in bringing suit negatively affected plaintiffs. See Medallion, 52 Cal. Rptr. 2d at 656 15 (âA false representation which cannot possibly affect the intrinsic merits of a business transaction must 16 necessarily be immaterial because reliance upon it could not produce injury in a legal sense.â). Indeed, 17 plaintiffs did not file the instant action until January 13, 2012, a full eight months after the alleged 18 misrepresentations. Plaintiffs have therefore failed to state an actionable claim of reliance or harm. 19 PayPalâs motion to dismiss plaintiffsâ cause of action for fraud is GRANTED. Plaintiffs are 20 given LEAVE TO AMEND a plausible claim for fraud that sets forth justifiable reliance and actual 21 damage. 22 23 24 25 V. UCL In order to bring a claim for violation of California unfair competition law, California Business 26 27 28 5 Plaintiffsâ third basis for harm, that defendant âconceal[ed] the real reasons for [d]efendantâs termination of [p]laintiffâs account and [d]efendantâs true economic relationship with the Competitor websites,â FAC Â¶ 86, is not a statement of reliance or harm. 15 1 and Professions Code Â§ 17200, et seq., âa plaintiff must show either an (1) âunlawful, unfair, or 2 fraudulent business act or practice,â or (2) âunfair, deceptive, untrue or misleading advertising.ââ See 3 Lippitt v. Raymond James Fin. Servs., 340 F.3d 1033, 1043 (9th Cir.2004) (quoting Cal. Bus. & Prof. 4 Code Â§ 17200). In order to establish standing under the UCL, a person must have âsuffered injury in 5 fact and has lost money or property as a result of such unfair competition.â Cal. Bus. & Prof. Code 6 Â§Â§ 17204 & 17535. The UCL provides only for equitable remedies: prevailing plaintiffs are generally 7 limited to injunctive relief and restitution. People ex rel. City of Santa Monica v. Gabriel, 186 Cal. App. 8 4th 882, 889 (2010) (citing Hedge v. Superior Court, 145 Cal. App. 4th 278, 284 (2006)). PayPal argues that plaintiffs have failed to sufficiently allege an injury in fact sufficient to 10 United States District Court For the Northern District of California 9 confer standing under the UCL, and that plaintiffs have failed to state a claim under any of the three 11 prongs of the UCL. The Court disagrees on both counts. With respect to standing, plaintiffs allege that 12 âPayPalâs refusal to provide services for certain dating websites drives an extremely large number of 13 consumers away from [plaintiffsâ] Dating Websites to use PayPal to purchase accounts with its 14 competitors that are PayPalâs preferred specialty online dating vendors . . .â FAC Â¶ 5. In other words, 15 PAYPALâ alleged breach of contract has led to a loss of business. This is sufficient to establish 16 standing at this stage. See Â§ 17204; Klein v. Chevron U.S.A., Inc., 202 Cal. App. 4th 1342, 1375 (2012) 17 (â[At the pleading stage, a plaintiff asserting a UCL  claim satisfies its burden of demonstrating 18 standing by alleging an economic injury.â). 19 With respect to the merits of plaintiffsâ UCL claim, the term âfraudulentâ as used in Section 20 17200 âdoes not refer to the common law tort of fraud but only requires a showing members of the 21 public are likely to be deceived.â Saunders v. Superior Court, 27 Cal. App. 4th 832, 839 (1994). Here, 22 plaintiffs allege that âPayPal has concealed from the public the fact that certain unpublished standards 23 and anticompetitive standards exist that determine whether PayPal will provide services to the public. 24 In reality, however, PayPal uses the policy to pick winners and losers in the market, which it has not 25 disclosed.â Def.âs Opp. at 21 (citing FAC Â¶Â¶ 5, 91-92). While the Court found that plaintiffs failed to 26 sufficiently allege a claim for common law fraud, the Court finds that this sufficiently states a claim 27 under the fraudulent prong of the UCL. See Boschma v. Home Loan Center, Inc., 198 Cal. App. 4th 28 230, 252-53 (2011) (âA common law fraudulent deception must be actually false, known to be false by 16 1 the perpetrator and reasonably relied upon by a victim who incurs damages. None of these elements are 2 required to state a claim for relief under the UCL.â). 3 Because the Court finds that plaintiffs have stated a claim under the fraudulent prong of the 4 UCL, it need not discuss the merits of plaintiffsâ âunlawfulâ or âunfairâ conduct allegations against 5 PayPal at this stage. See Somerville v. Stryker Orthopaedics, 2009 WL 2901591, *3 (N.D. Cal. 2009) 6 (noting that because the prongs of the UCL are âconjunctive,â it need not address the rest of plaintiffsâ 7 UCL claims once it found the âunlawfulâ conduct sufficiently alleged). 8 The Court therefore DENIES PayPalâs motion to dismiss the UCL claim. 9 United States District Court For the Northern District of California 10 VI. STATUTE OF LIMITATIONS 11 PayPal argues that all claims based on termination of service to SeekingArrangement.com are 12 barred by the applicable statute of limitations. As described above, plaintiffs established a PayPal 13 account in order to accept payments for membership and upgrades for SeekingArrangement.com in 14 2007. FAC Â¶ 41. Later in 2007, PayPal suspended the account for violation of the AUP, citing the 15 âsexualâ nature of the website. Id. Plaintiffs filed the instant lawsuit in January 2012. PayPal argues 16 that any claims arising from the suspension of the account related to SeekingArrangement.com are 17 barred by Californiaâs four year statute of limitations for breach of contract and UCL claims, and three 18 year statute of limitations for fraud claims, respectively. Def.âs MTD at 24-25. 19 Plaintiffs argue that their claims related to SeekingArrangement.com are not barred because they 20 did not discover PayPalâs âreal motivation for its termination of InfoStreamâs accountsâ â to benefit 21 plaintiffsâ competitors â until 2011. Def.âs Opp. at 22. Under California law, âa cause of action under 22 the discovery rule accrues when the plaintiff discovers or should have discovered all facts essential to 23 his cause of action.â William L. Lyon & Associates, Inc. v. Superior Court, 204 Cal. App. 4th 1294, 24 1308 (2012). Plaintiffs focus on the date they were told that PayPal âpre-approvedâ their competitorsâ 25 websites as the date they discovered that PayPal was âselectively and pretextually applying the AUP 26 to manipulated the market for specialty dating services.â Id. 27 The Court agrees that pursuant to Californiaâs discovery rule, the statute of limitations related 28 to the termination of plaintiffsâ first PayPal account in 2007 did not accrue until the conversations 17 1 plaintiffs had with PayPal respect to the second termination in 2011. The conduct plaintiffs complain 2 of is the hidden motivation behind PayPalâs application of the AUP; due to the inherently secretive 3 nature of PayPalâs conduct underlying plaintiffsâ theory, it is reasonable that plaintiffs could not have 4 discovered PayPalâs âmotivationsâ until plaintiffs were explicitly informed of PayPalâs âpre-approvalâ 5 of identical competitor websites. 6 7 PayPalâs motion to dismiss claims related to SeekingArrangement.com as barred by the applicable statute of limitations is DENIED. 8 9 CONCLUSION United States District Court For the Northern District of California 10 PayPalâs motion to dismiss plaintiffsâ Sherman Act and Fraud claims is GRANTED. Plaintiffs 11 are granted LEAVE TO AMEND both claims pursuant to the Courtâs instructions above. Any amended 12 complaint must be filed by September 7, 2012. PayPalâs motion to dismiss plaintiffsâ breach of 13 contract, breach of the implied covenant of good faith and fair dealing, and UCL claim is DENIED. 14 PayPalâs motion to dismiss plaintiffsâ claims related to SeekingArrangement.com as barred by the 15 applicable statute of limitations is DENIED. 16 17 IT IS SO ORDERED. 18 19 Dated: August 28, 2012 SUSAN ILLSTON United States District Judge 20 21 22 23 24 25 26 27 28 18