Goodard v. Google, Inc.

Filing 50

MOTION to Dismiss AMENDED COMPLAINT filed by Google, Inc.. Motion Hearing set for 4/3/2009 09:00 AM in Courtroom 3, 5th Floor, San Jose. (Johnson-McKewan, Karen) (Filed on 2/5/2009)

Goodard v. Google, Inc.

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KAREN G. JOHNSON-MCKEWAN (SBN 121570) [e-mail] NANCY E. HARRIS (SBN 197042) [e-mail] m NIKKA N. RAPKIN (SBN 244207) [e-mail] m ORRICK, HERRINGTON & SUTCLIFFE LLP The Orrick Building 405 Howard Street San Francisco, CA 94105-2669 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant GOOGLE INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

JENNA GODDARD, on her own behalf and on behalf of all others similarly situated, Plaint iff, v. GOOGLE, INC., a Delaware corporation, Defendant.

Case No. C 08-02738 (JF) GOOGLE INC.'S NOTICE OF MOTION AND MOTION TO DISMISS AMENDED COMPLAINT AND MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF Date: Time: Judge: April 3, 2009 9:00 a.m. The Honorable Jeremy Fogel

Date Action Filed: May 30, 2008 No Trial Date Set

G O O G L E I N C . ' S M O T I O N T O DISMISS A M E N D E D COMPLAINT C 08-02738 (JF)

Dockets.Justia.com

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TABLE OF CONTENTS Page INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 PROCEDURAL HISTORY.............................................................................................3 A. Original Co mplaint and Motion to Dismiss .......................................................... 3 B. Order Dismissing Complaint ................................................................................ 3 C. Amended Complaint ............................................................................................ 4 RULE 12(B)(6) STANDARD..........................................................................................5 LEGAL ARGUMENT.....................................................................................................6 A. Plaint iff Has Not Alleged Any Facts Establishing That Google Directly Participated in Developing the Alleged Illegality..................................................6 B. Two Ninth Circuit Cases Establish That A Website Does Not Lose Its Section 230 Immunity By Providing Neutral Tools That Do Not Materially Contribute To the Alleged Illegality ..................................................................... 8 1. Google's Alleged Provision of Neutral Tools Cannot Render Google An Information Content Provider ................................................. 8 2. Google Is Not An Information Content Provider.....................................10 C. Even If the CDA Did Not Apply Here, Plaintiff Has Not Pleaded Any Viable Claim......................................................................................................12 1. Plaint iff Fails To Plead A Violation Of California Business & Professions Code Section 17200 ............................................................. 12 a. The MSSPs Did Not Violate the Computer Fraud and Abuse Act..............................................................................................12 b. Google Did Not Knowingly Engage in a Monetary Transaction Involving Criminally Derived Property .................... 14 2. Plaint iff Fails To State A Claim For Breach Of Contract ........................ 15 a. Google Made No Promise to Enforce its Advertising Terms ....... 16 b. Plaint iff is Not an Intended Third Party Beneficiary of the Advertising Terms ...................................................................... 17 3. Plaint iff's Negligence Claim Is Barred As A Matter Of Law .................. 17 4. Plaint iff's Claim For Aiding And Abetting Various Violations Also Fails ....................................................................................................... 19 CONCLUSION ............................................................................................................. 19

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TABLE OF AUTHORITIES Page

Am. Family Mut. Ins. Co. v. Rickman, 554 F. Supp. 2d 766 (N. D. Ohio 2008) ......................................................................... 13 Balistreri v. Pacifica Police Dep't., 901 F.2d 696 (9th Cir. 1988)............................................................................................6 Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003)..........................................................................................7 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ........................................................................................................ 6 Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336 (9th Cir. 1996)..............................................................................................6 Carafano v. Metrosplash.com, 339 F.3d 1119 (9th Cir. 2003)................................................................................. passim Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008)................................................................................. passim Gentry v. eBay, Inc., 99 Cal. App. 4th 816 (2002) ............................................................................................ 7 Green v. America Online, 318 F.3d 465 (3d Cir. 2003)...........................................................................................16 Grosz v. Lassen Cmty. College Dist., 572 F. Supp. 2d 1199 (E.D. Cal. 2008) ............................................................................ 6 Hall v. Time, Inc., 158 Cal. App. 4th 847 (2008).........................................................................................15 Highfields Capital Mgmt., L.P. v. Doe, 385 F. Supp. 2d 969 (N.D. Cal. 2005)............................................................................17 In re DoubleClick Privacy Litig., 154 F. Supp. 2d 497 (S.D.N.Y. 2001) ............................................................................ 13 Laster v. T-Mobile United States, Inc., 407 F. Supp. 2d 1181 (S.D. Cal. 2005)...........................................................................15 Madrid v. Perot Sys. Corp., 130 Cal. App. 4th 440 (2005).........................................................................................15 Martinez v. Socoma Cos., 11 Cal. 3d 394 (1974) .................................................................................................... 17

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TABLE OF AUTHORITIES (Continued)

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McCulloch v. Ford Dealers Adver. Ass'n, 234 Cal. App. 3d 1385 (1991)........................................................................................18 McIntosh v. U.S., Civ. No. 05-373 (BTM), 2008 WL. 4492592 (S.D. Cal. Sept. 29, 2008) ........................ 18 Optinrealbig.com, LLC v. Ironport Sys., 323 F. Supp. 2d 1037 (N.D. Cal. 2004)............................................................................7 Orser v. George, 252 Cal. App. 2d 660 (1967)..........................................................................................19 Paz v. State of California, 22 Cal. 4th 550 (2000) ................................................................................................... 18 Shamrock Foods Co. v. Gast, 535 F. Supp. 2d 962 (D. Ariz. 2008) .............................................................................. 13 Souza v. Westlands Water Dist., 135 Cal. App. 4th 879 (2006)................................................................................... 16, 17 United States v. Czubinski, 106 F.3d 1069 (1st Cir. 1997) ........................................................................................ 13 United States v. Rutgard, 116 F.3d 1270 (9th Cir. 1997)........................................................................................14 United States v. Stein, 37 F.3d 1407 (9th Cir. 1994)..........................................................................................15 United States v. Yagman, 502 F. Supp. 2d 1084 (C.D. Cal. 2007) .......................................................................... 14 Walters v. Seventeen Magazine, 195 Cal. App. 3d 1119 (1987)........................................................................................18 STATUTES 18 U.S.C. § 1030(a)(4) ........................................................................................................ 12, 13 18 U.S.C. § 1030(a)(5)(B)................................................................................................... 12, 13 18 U.S.C. § 1030(e)(8) .............................................................................................................. 13 18 U.S.C. § 1957.......................................................................................................................14 18 U.S.C. § 1957(a) ........................................................................................................ 1, 12, 14 47 U.S.C. § 230.................................................................................................................. passim Cal. Bus. & Prof. Code § 17200 ......................................................................................... passim iii
GOOGLE INC.'S NOTICE OF MOTION AND MOTION TO DISMISS AND MEMORANDUM O F POIN C 08-02738 (JF)

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TABLE OF AUTHORITIES (Continued)

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Cal. Bus. & Prof. Code § 17203 ................................................................................................ 15 Cal. Bus. & Prof. Code § 17204 ................................................................................................ 15 Fed. R. Civ. P. 12(b)(6)...........................................................................................................1, 5

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GOOGLE INC.'S NOTICE OF MOTION AND MOTION TO DISMISS AND MEMORANDUM O F POIN C 08-02738 (JF)

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NOTICE OF MOTION AND MOTION TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on April 3, 2009 at 9:00 a.m. or as soon thereafter as the matter may be heard, in the courtroom of the Honorable Jeremy Fogel, United States District Court, 280 S. First Street, San Jose, CA 95113, Google Inc. will move the Court for an order dismissing Plaintiff's Amended Complaint pursuant to the Communications Decency Act, 47 U.S.C. § 230, and Federal Rule of Civil Procedure 12(b)(6). This motion is based on the Notice of Motion and Motion, the supporting Memorandum of Points and Authorities, the [Proposed] Order, all pleadings on file in this action, oral argument of counsel, and any other matter that may be submitted at the hearing. STATEMENT OF ISSUES Are Plaintiff's state law claims barred as a matter of law by Section 230 of the

Communications Decency Act of 1996, 47 U.S.C. § 230, which establishes immunity for interactive computer service providers against state law claims arising from statements made by users? 2. Has Plaintiff stated a claim under California Business & Professions Code Section

17200, et seq. (the "UCL" or "Section 17200"), when she fails to plead facts that would support a claim of the predicate violation of law, 18 U.S.C. § 1957(a)? 3. Has Plaintiff alleged a claim for breach of contract when she has not pled ­ and

cannot plead ­ that she was an intended beneficiary of the alleged contract or that any promise was made to enforce the alleged terms in her favor? 4. 5. Is Plaintiff's claim for negligence barred as a matter of law? Has Plaintiff pled any facts that would support any claim for aiding and abetting?

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MEMORANDUM OF POINTS & AUTHORITIES INTRODUCTION The Court dismissed Plaintiff's original complaint on the ground that Section 230 of the Communications Decency Act of 1996 (the "CDA" or "Section 230") barred each of her claims. Docket No. 48. In its Order, the Court held that Google is an interactive computer service provider for purposes of Section 230, and that each of Plaintiff's claims sought to hold Google liable for the publication of third-party content, precisely the liability Section 230 proscribes. Id. at 4 n.2, 13. In granting Plaintiff leave to amend, the Court cautioned Plaint iff that any new complaint must allege facts that "make it very clear that [Google] directly participates in developing the illegality' at issue." Id. at 6 (quoting Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1174 (9th Cir. 2008) (en banc) ("Roommates")).1 Plaint iff has ignored the Court's admonition. Instead, her Amended Complaint is rife with conclusory, unsupported (and outlandish) allegations that Google "controlled much of the underlying commercial activity" of its advertisers, "substantially participates in the creation of AdWords ads," "encourages illegal content" and "effectively requires advertisers to engage in illegal conduct." Docket No. 49, ¶¶ 19, 21.2 Plaint iff alleges no facts that would, if proven, establish that Google is the "information content provider" of the offending statements and, as a consequence, Section 230 continues to bar her claims, and the amended complaint should be dismissed. Plaintiff alleges that the "Keyword Tool" features of Google's AdWords product result in "collaboration" by Google in the development of illegal content. This argument is not only without foundation, the Ninth Circuit has already rejected it twice, holding expressly that the provision of neutral tools, such as keyword generation tools from which advertisers may choose their keywords, does not deprive a website of Section 230 immunity. See Roommates, 521 F.3d at 1168-69; Carafano v. Metrosplash.com, 339 F.3d 1119, 1125 (9th Cir. 2003).
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All emphasis herein is added unless otherwise indicated.

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All paragraph references ("¶") herein are to the Amended Complaint (Docket No. 49) unless otherwise indicated. 2
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Plaint iff also contends that Google provides in-person advice to some AdWords customers "in order to provide tailored advice on how to best optimize AdWords, including proposing ad budgets, selecting keywords and designing ad copy." ¶ 20. Yet, nowhere does Plaintiff allege that Google engaged in such in-person meetings to develop any misleading Mobile Subscription Service Provider ("MSSP") advertisements or to create any of the MSSP websites that allegedly caused her injury. Plaintiff has not and cannot establish that Google acted as an information content provider of any statements that provide the basis for her claims ­ claims that are legally insufficient even if the CDA did not apply here ­ and her claims are barred by Section 230. Accordingly, the Amended Complaint should be dismissed with prejudice. II. PROCEDURAL HISTORY A. ORIGINAL COMPLAINT AND MOTION TO DISMISS

Plaint iff filed her original complaint on April 30, 2008, alleging she was injured when she provided her cell phone number to "one or more" MSSPs who had advertised free ring tones, and that those MSSPs thereafter placed charges on her cell phone bill for services she had expected would be free. She sought to hold Google liable for her claimed injuries because (a) she had found the MSSPs through a Google search; and (b) Google's advertising policies should have prevented the appearance of the MSSPs' mis leading ads on its search pages. See Docket No. 1 at 9-26. Google moved to dismiss the Complaint on grounds, among others, that Section 230 immunizes internet service providers, including Google, from claims arising from content provided by others. See Docket No. 43. B. ORDER DISMISSING COMPLAINT

On December 17, 2008, this Court granted Google's motion to dismiss. Docket No. 48. The Court found Plaintiff's claims are "premised fundamentally on Google's publication of the AdWords advertisements," but that Plaintiff had failed to allege facts to support the proposition that Google was acting as an "internet content provider" or an "information content provider." Docket No. 48 at 13. The Court found that Plaintiff's "bare allegation" that "Google assists its customers in drafting AdWords and selecting keywords through both live support from its 3
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AdWords Specialists and its advertising campaign optimization services" was "insufficient to overcome the `robust' protections of the CDA." Id. In allowing Plaintiff another opportunity to plead, the Court held Plaintiff must make "it `very clear that [Google] directly participates in developing the alleged illegality.'" Id. at 6-7 n.3 (quoting Roommates, 521 F.3d at 1174) (insertion in original). C. AMENDED COMPLAINT

In response to the Order, Plaintiff filed an Amended Complaint on January 16, 2009. Docket No. 49. As before, Plaintiff alleges that she received unauthorized charges on her cell phone bill after she provided her cell phone number on "one or more" unident ified MSSP websites.3 ¶ 47. Plaint iff claims she accessed these MSSP websites by clicking on Google AdWords advertisements that appeared on the Google website after she entered terms like "ringtone" into the Google search engine. ¶¶ 45-6. Although she does not identify the MSSPs or the address of their websites, Plaintiff alleges that the websites did not display information required by Google's Advertising Program Terms and Content Policy. ¶ 47. Plaintiff also continues to allege that MSSPs, billing aggregators, and cellular carriers have engaged in a scheme by which they cause consumers "to be billed for services and products irrespective of whether the consumer actually agreed to purchase them." ¶ 10. According to Plaintiff, these MSSPs collect consumer cell phone numbers, which they then provide to billing aggregators. ¶ 11. These billing aggregators act as middlemen who instruct "the relevant cellular carrier to add the charge to the bill associated with that cell phone number." Id. Plaint iff further alleges (as she did before) that "Google will participate in in-person meetings . . . in order to provide tailored advice on how best to optimize their use of AdWords." ¶ 20. She acknowledges that "keyword suggestions" are "utilized only at the discretion of the advertiser" and that keyword ideas "will trigger the appearance of the relevant advertisement" only "if selected by the advertiser." ¶¶ 23, 25. Google's Keyword Tool itself informs advertisers: "You are responsible for the keywords you select and for ensuring that your use of
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MSSPs provide products such as "customized ring tones for use with cell phones, sports score reports, weather alerts, stock tips, horoscope services, and the like." Id. ¶ 8. 4
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the keywords does not violate any applicable laws." Id. Ex A. In response to the Order Dismissing the Complaint, however, plaintiff now alleges for the first time that Google assists its customers in choosing keywords through its Keyword Tool, which Plaintiff describes as a "suggestion tool" that uses an "algorithm" to "`suggest' specific keywords to advertisers." ¶ 22. From nothing more than these alleged facts, Plaintiff draws the startling conclusion that "Google's involvement [in the development of MSSPs' advertisements] was so pervasive that the company controlled much of the underlying commercial activity engaged in by the third-party advertisers." ¶ 21. Plaintiff continues: Google creates algorithms, known as "suggestion tools," for use by advertisers and consumers alike. These algorithms control and determine the results given to its advertisers and to consumers for any search constructed through the use of Google's search engine. Through the use (and manipulation) of these algorithms, Google not only encourages illegal conduct, it collaborates in the development of the illegal content and, effectively, requires its advertiser customers to engage in it. Id. Though Plaintiff includes allegations that Google (a) controls the commercial activities o f its advertisers, and (b) requires its advertisers to engage in illegal conduct, none of the "facts" alleged co me close to supporting such claims. Plaintiff alleges that Google's mathematical algorithm "suggests" the use of the word "free" in relation to "ringtone," as a means of attracting more visitors to their sites, and that MSSPs whose offerings are not actually free are literally powerless to resist the suggestion. ¶¶ 24-25. Plaintiff does not allege, however, that Google assisted in creating either the AdWords advertisements Plaint iff allegedly clicked on or the MSSP websites she visited, or that Google required its advertisers either to adopt its suggestions or to include certain text in their advertisements. And while Plaintiff alleges the "manipulation" of the algorithms (¶ 21), nowhere does Plaintiff allege facts supporting that conclusion. Nor does Plaintiff allege that Google compelled MSSPs to offer their services for free when those advertisers had no intention of honoring such offers. III. RULE 12(B)(6) STANDARD Dismissal under Rule 12(b)(6) for failure to state a claim "can be based on the lack of a 5
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cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1988). To avoid dismissal, "plaintiffs must plead facts showing they are entitled to relief." Grosz v. Lassen Cmty. College Dist., 572 F. Supp. 2d 1199, 1207 n.11 (E.D. Cal. 2008). "[L]abels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In deciding a motion to dismiss, "all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party," Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996); however, "[f]actual allegat ions must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true." Bell Atl., 550 U.S. at 555. IV. LEGAL ARGUMENT Under Section 230, an interactive computer service is not liable for information a third party posts to its website if: (1) it qualifies as a provider or user of an interactive computer service under Section 230; (2) the plaintiff's claims would hold the defendant liable as a publisher or distributor of information created by another information content provider; and (3) the website is not itself an information content provider of the content at issue. Carafano, 339 F.3d at 1123. The primary issue before the Court is whether Plaintiff has now alleged facts sufficient to establish that Google is an information content provider under Section 230. Plaintiff's Amended Complaint demo nstrates conclusively that she has not pled, and cannot plead, such facts; it should be dismissed for failure to state a claim. A. PLAINTIFF HAS NOT ALLEGED ANY FACTS ESTABLISHING THAT GOOGLE DIRECTLY PARTICIPATED IN DEVELOPING THE ALLEGED ILLEGALITY

Plaint iff's Amended Complaint ­ essentially a lengthy rehashing of the allegations in her original co mplaint ­ does not allege facts that could establish that Google acted as an "information content provider" under the Ninth Circuit's narrow definition.4 Rather, Plaintiff's claims ­ that Google provides a "keyword tool" and "advice on how best to optimize their use of
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Section 230 defines an "informat ion content provider" as "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service." § 230(f)(3). 6
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AdWords, including proposing ad budgets, selecting keywords and designing ad copy" ­ seek to hold Google liable for the neutral tools Google provides its AdWords customers. ¶ 20. As this Court already held in dismissing Plaintiff's original co mplaint, the law is clear: "providing third parties with neutral tools to create web content is considered to be squarely within the protections of § 230," regardless of whether "a service provider knows that third parties are using such tools to create illegal content." Docket No. 48 at 5 (noting that "[t]he broad scope of § 230 extends to multiple forms of putative `involvement' by an interactive service provider in generating online content"). As the Ninth Circuit held en banc in Roommates, an internet service does not become an "information content provider" merely by "augmenting the content generally." 521 F.3d at 116768. Rather the service must "materially" contribute "to its alleged unlawfulness." Id.; see also Carafano, 339 F.3d at 1123 (noting that courts treat "§ 230(c) immunity as quite robust, adopting a . . . relatively restrictive definition of `information content provider'"). Consequently, websites are not liable under Section 230 for basic editing functions, "[m]inor wording changes," and "neutral tools," even if such actions facilitate the dissemination of unlawful content. Batzel v. Smith, 333 F.3d 1018, 1022, 1031 (9th Cir. 2003) (listserv did not become an information content provider of a defamatory posting by changing some wording, and adding a message stating that "the FBI has been informed of the contents" of the post); see also Optinrealbig.com, LLC v. Ironport Sys., 323 F. Supp. 2d 1037, 1046-47 (N.D. Cal. 2004) (defendant did not become an informat ion content provider of allegedly libelous emails it forwarded, even though it added a line of text and a link to its website); see also Gentry v. eBay, Inc., 99 Cal. App. 4th 816, 831 (2002) (eBay could not be liable for "dissemination of representations made by the individual defendants"). Recognizing that "[w]ebsites are complicated enterprises, and there will always be close cases where a clever lawyer could argue that something the website operator did encouraged the illegality," courts reject rationalizations by plaintiffs seeking artfully to plead around the CDA by alleging that the defendant was an information content provider. Roommates, 521 F.3d at 1174. Because Congress intended the CDA "to protect websites not merely from ultimate liability, but 7
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fro m having to fight costly and protracted legal battles," the Ninth Circuit held that "close cases . . . must be resolved in favor of immunity, lest we cut the heart out of Section 230 by forcing websites to face death by ten thousand duck-bites, fighting off claims that they promoted or encouraged ­ or at least tacitly assented to ­ the illegality of third parties." Id. at 1174-75. Only "[w]here it is very clear that the website directly participates in developing the alleged illegality" will the website lose its Section 230 immunity. Id. at 1174. Plaint iff alleges no facts supporting her broad conclusion that Google's keyword and optimization tools somehow require (or make irresistible) illegal content or force Google's advertisers into illegal conduct as a condition of access, or that Google otherwise "directly participates in developing the alleged illegality." Roommates, 521 F.3d at 1174. B. TWO NINTH CIRCUIT CASES ESTABLISH THAT A WEBSITE DOES NOT LOSE ITS SECTION 230 IMMUNITY BY PROVIDING NEUTRAL TOOLS THAT DO NOT MATERIALLY CONTRIBUTE TO THE ALLEGED ILLEGALITY

The Ninth Circuit's rulings in Carafano v. Metrosplash.com and Fair Housing Council v. Roommates.com establish conclusively that Google cannot be liable for the neutral tools it allegedly provides to its advertiser customers. 1. GOOGLE'S ALLEGED PROVISION OF NEUTRAL TOOLS CANNOT RENDER GOOGLE AN INFORMATION CONTENT PROVIDER

An interactive computer service becomes an information content provider only by "materially contribut ing to [the content's] alleged unlawfulness." Roommates, 521 F.3d at 1168. Websites do not lose Section 230 immunity by offering neutral tools that merely facilitate the development of content without contributing to the content's underlying illegality. Carafano, 339 F.3d at 1125. Rather, a website's involvement must be "direct and palpable," for example, by "removing the word `not' from a user's message reading `[Name] did not steal the artwork' in order to transform an innocent message into a libelous one." Roommates, 521 F.3d at 1169. Carafano concerned a false dating profile that an anonymous user posted to the defendant's matchmaking website by impersonating a famous television actress. Carafano, 339 F.3d at 1121. The profile appeared to have been posted by the actress and indicated that she sought a sexual encounter and made allegedly offensive statements about her sexual preferences. 8
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Id. To prepare the profile, the anonymous user employed tools the defendant website provided to assist its users in creating online profiles. In particular, the website provided its users with "a detailed questionnaire containing both multiple-choice and essay quest ions," including "more than fifty questions from menus providing between four and nineteen options. Some of the potential mult iple choice answers are innocuous; some are sexually suggestive." Carafano, 339 F.3d at 1121. From this "menu of `pre-prepared responses,'" the anonymous user had selected responses such as "`Playboy/Playgirl' for `main source of current events' and `looking for a onenight stand' for `why did you call." Id. at 1125. The website used these responses to create the online profile. Id. While acknowledging that these tools facilitated the development of the libelous profile, sometimes providing even the actual language itself, the Ninth Circuit found the questionnaires were merely "neutral tools" that were not sufficient to render the website an information content provider under the CDA. Carafano, 339 F.3d at 1125; see also Roommates, 521 F.3d at 1171 (interpreting Carafano). The Ninth Circuit held that the website lacked responsibility for the "underlying misinformation'" and therefore was not an information content provider under Section 230. Id. The Ninth Circuit's en banc decisio n in Roommates further illuminates the scope of Carafano's "neutral tools" analysis, ho lding that a website loses its Section 230 immunity only where it is "very clear that the website directly participates in developing the illegality" at issue. Roommates, 521 F.3d at 1174. Although the Court warned that "there will always be close cases where a clever lawyer could argue that something the website operator did encouraged the illegality," id. (emphasis in original), it found that "Roommate does much more than provide options" or "encourage or solicit." Id. at 1166 n.19. Instead, the website "makes answering the discriminatory questions a condition of doing business." Id. at 1166.5 In contrast, Google's
5

Roommates addressed a website service that matched available housing with potential tenants. Before users could post or review listings, the website required users to answer a series of questions that allegedly violated the Fair Housing Act, including inquiries into "sex, sexual orientation and whether he would bring children to a household." Id. at 1161. In other words, the Ninth Circuit held, "the part of the profile that is alleged to offend the Fair Housing Act and state housing discrimination laws ­ the information about sex, family status and sexual orientation ­ is provided by subscribers in response to Roommate's questions, which they cannot refuse to 9
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Keyword Tool does nothing but provide options that the customer may accept or reject at the customer's discretion; Google does not solicit ­ much less require ­ its customers to provide illegal content as a condition of doing business or otherwise. Plaintiff's Amended Complaint does not allege any facts indicating that Google bears any responsibility for any "underlying misinformation" or other unlawful content. The content at issue in this lawsuit is the creation of users; Google compels the selection of no particular content. Google's algorithm-based "suggestion tool" and live advice to its advertising customers are indistinguishable as a legal matter from the multiple-choice and essay questionnaire in Carafano. Compare Carafano, 339 F.3d at 1125 (CDA applies where user volitionally selected false content) with Roommates, 521 F.3d at 1168-69 (CDA does not apply where user was compelled to answer allegedly unlawful questions). 2. GOOGLE IS NOT AN INFORMATION CONTENT PROVIDER

Just as it was the anonymous user who selected responses to the matchmaking website's questionnaire in Carafano, it is Google's advertising customers who decide which, if any, of the keywords generated by the Keyword Tool they should adopt; the "selection of content" fro m these tools is "left exclusively to the user." Carafano, 339 F.3d at 1124. Plaintiff admits that keywords "are typically ut ilized only at the discretion of the advertiser" and will only be included "if selected by the advertiser." ¶¶ 21-22, 25. In fact, Google's Keyword Tool clearly informs advertisers, "You are responsible for the keywords you select and for ensuring that your use of the keywords does not violate any applicable laws." Id. Ex. A. In the same vein, Plaintiff does not allege that live Google representatives so much as suggested misleading or unlawful content to its customers or encouraged any customer to adopt any such content. Plaint iff nevertheless claims that Google was an information content provider because Google's algorithms "encourage" its MSSP advertisers to use the word "free" when drafting AdWords advertisements, even if the services the MSSPs offer are not free. In particular, Plaintiff alleges that when a potential advertiser or a Google user enters "ringtone" into Google's answer if they want to use defendant's services." Id. at 1166. The website then displayed this information on the user's profile page and used the information to actively match users with compatible responses. Id. 10
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Keyword Tool, the tool suggests alternative search terms, including "free ringtone." ¶ 22. Plaintiff does not allege that this tool is anything more than a neutral algorithm, and Plaintiff admits that such tools are typically "innocuous." ¶ 22. Plaintiff nevertheless claims that Google "effectively requires" its MSSP advertisers to use the keyword "free," regardless of its veracity, because their advertisements allegedly would not appear if Google users did not search for the keywords "free ringtone." ¶¶ 19, 25-6. At its core, Plaintiff's allegations amount to a claim that because Google provides data to its advertisers showing alternate keyword options, Google "effectively requires advertisers to engage in illegal conduct." ¶ 19. This is not only ludicrous, but even as alleged, the conduct is not comparable with the website's conduct in Roommates. Nowhere does Plaintiff allege that Google requires its customers to adopt its keyword suggestions as a "condition of doing business" or that the use of any part icular keyword (such as "free") resulted in illegal ad content. Roommates, 521 F.3d at 1166. Plaintiff admits that the ultimate selection of keywords is "only at the discretion of the advertiser," ¶¶ 25; Google, at most, provides "a framework that could be utilized for proper or improper purposes," Roommates, 521 F.3d at 1172. Google is no more responsible for the selection of false content by advertisers than the matchmaking website was responsible for the selection of false multiple-choice answers in Carafano. As this Court held in dismissing Plaintiff's original Complaint, the Ninth Circuit "emphasized repeatedly that the Roommates website lost immunity only by forcing its users to provide the allegedly discriminatory informat ion as a condition of access." Docket No. 48 at 5 (emphasis in original). Plaintiff's Amended Complaint again fails to allege any facts establishing that Google "forced" its users to adopt any keywords, much less contributed in a "direct and palpable" way to the alleged illegality. 6 Id. at 1169.

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If anything, Google is even less an information content provider than the website in Carafano; while the website in Carafano offered menus of "pre-prepared responses," with language such as "Playboy/Playgirl" and "looking for a one night stand" that the website surely must have known would allow impersonat ions and pranks, Google's customers were merely presented with a neutral list of algorithm-generated keywords. 11
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C.

EVEN IF THE CDA DID NOT APPLY HERE, PLAINTIFF HAS NOT PLEADED ANY VIABLE CLAIM7 1. PLAINTIFF FAILS TO PLEAD A VIOLATION OF CALIFORNIA BUSINESS & PROFESSIONS CODE SECTION 17200

Plaint iff's Section 17200 claim alleges, improbably, that Google engaged in "money laundering" as prohibited by 18 U.S.C. § 1957(a) by knowingly accepting funds derived from a "specified unlawful act." Plaint iff claims the funds the MSSPs paid to Google for its advertising services were derived from violations o f the Computer Fraud and Abuse Act ("CFAA"), allegedly a "specified unlawful act" for purposes of 18 U.S.C. § 1957(a). Because Plaintiff's allegations do not, and cannot, state a claim that the MSSPs violated the CFAA as an initial matter and because, in any event, Google could not have had the requisite knowledge under 18 U.S.C. § 1957(a) that such funds were derived from an allegedly unlawful activity, Plaint iff has failed to state a claim for violation of Section 17200. a. THE MSSPS DID NOT VIOLATE THE COMPUTER FRAUD AND ABUSE ACT

To establish that the MSSP revenue paid to Google for advertising services was derived from a "specified unlawful act" for purposes of Section 1957, Plaintiff alleges the MSSPs violated 18 U.S.C. § 1030(a)(4) or 18 U.S.C. § 1030(a)(5)(B) of the CFAA by charging her for mobile content to which she did not subscribe.8 ¶ 64. The MSSPs' charges, no matter how fraudulent they are alleged to be, are not within the scope of the CFAA, and Plaintiff's allegations are insufficient to state a claim that the MSSPs violated the CFAA as a matter of law.
7

While Plaintiff has added new allegations to her Amended Complaint in a misguided attempt to plead around Section 230, she made no material changes to her substantive claims or to the theories underlying those claims. Accordingly, Google respectfully repeats here the arguments set forth in its original motion to dismiss as to why those claims should be dismissed independent of whether Section 230 immunity applies. Google does not believe it is necessary for the Court to reach these arguments, if, as discussed above, Section 230 immunizes Google from Plaintiff's claims.
8

The fraud Plaintiff alleges is the "intent to defraud [subscribers] out of the services' unauthorized charges." ¶ 61. Similarly, the alleged "damage" is based on the allegation that "[i]f the Fraudulent Mobile Subscription Services' unauthorized charges are not paid eventually, the cellular carriers will discontinue all services (including cellular service)" and therefore "impair the availability of Class members' access to and communication with their cellular service." ¶ 62. 12
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Congress enacted the CFAA to punish destructive computer hacking and theft of information stored on computers. See Shamrock Foods Co. v. Gast, 535 F. Supp. 2d 962, 96566 (D. Ariz. 2008) ("The general purpose of the CFAA `was to create a cause of action against computer hackers (e.g., electronic trespassers).'"); In re DoubleClick Privacy Litig., 154 F. Supp. 2d 497, 526 (S.D.N.Y. 2001). Courts have recognized that "the legislative history supports a narrow view of the CFAA." Shamrock Foods Co., 535 F. Supp. 2d at 966. Because the goal of the CFAA is to punish hackers and trespassers who cause injury to others by infiltrating their computers, the CFAA requires both a trespass of a computer and loss, damage, or fraud resulting from the unauthorized access. Am. Family Mut. Ins. Co. v. Rickman, 554 F. Supp. 2d 766, 770 (N. D. Ohio 2008). The two provisions of the CFAA upon which Plaintiff relies, Section 1030(a)(4) and Section 1030(a)(5)(B), both expressly apply only where the defendant has (1) accessed a protected computer without authorization, and (2) perpetrated a fraud or caused damage by means of that access.9 The scheme of the CFAA is clear: it is not enough to merely access computers; the defendant must actively cause harm and obtain something of value by way of the access. United States v. Czubinski, 106 F.3d 1069, 1078 (1st Cir. 1997) (reversing conviction under CFAA because, although defendant's use of IRS computer to browse confidential taxpayer information "unquestionably exceeded authorized access to a Federal interest computer," "he did not obtain `anything of value'"). The damage must be actually related to "the context of computer hacking." Am. Family Mut. Ins. Co., 554 F. Supp. 2d at 770-71 (holding that damage caused by accessing employer's information and sharing it with employer's competitor was not damage for purposes of the CFAA because damage related to misuse of information rather than misuse of the
9

Section 1030(a)(4) applies only where an individual "knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value." 18 U.S.C. § 1030(a)(4) (emphasis added). Similarly, Section 1030(a)(5)(B) only applies if a person "intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damage." 18 U.S.C. § 1030(a)(5)(B) (emphasis added). "Damage" is defined as "any impairment to the integrity or availability of data, a program, a system, or information, that (A) causes loss aggregating at least $5,000 in value during any 1-year period to one or more individuals." 18 U.S.C. § 1030(e)(8). These claims are not satisfied in the absence of loss or damage resulting directly from the unlawful access. 13
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computer). Plaintiff does not claim that she was damaged, harmed, or defrauded by the MSSPs' alleged access to her cell phone. Rather, she alleges she was injured because the MSSPs charged for that access. ¶¶ 62-63. Accordingly, there is no nexus between the alleged fraud and damage, on the one hand, and the alleged access to Plaintiff's cell phone, on the other. Although these charges are a result of a service that includes sending text messages to a cell phone, it cannot be said that the fraud arises from the allegedly unauthorized access to Plaintiff's cell phone. b. GOOGLE DID NOT KNOWINGLY ENGAGE IN A MONETARY TRANSACTION INVOLVING CRIMINALLY DERIVED PROPERTY

Even assuming arguendo that the MSSPs did violate the CFAA, Plaintiff's Section 17200 claim cannot succeed unless Google itself performed an unlawful act. Although Plaintiff claims Google engaged in "money laundering" as prohibited by 18 U.S.C. § 1957(a), there is no set of facts by which Google could have violated § 1957(a). Violation of 18 U.S.C. § 1957(a) requires actual knowledge "that a transaction involved criminal property" and that "the property was derived from a specified unlawful activity." United States v. Yagman, 502 F. Supp. 2d 1084 (C.D. Cal. 2007). Recognizing the possibility for abuse of Section 1957, the Ninth Circuit construes the statute narrowly, holding that "Section 1957 was enacted as a tool in the war against drugs" and "[s]uch a powerful instrument of criminal justice should not be expanded by judicial invention or ingenuity." United States v. Rutgard, 116 F.3d 1270, 1292 (9th Cir. 1997). To violate Section 1957, the transferred funds must be traceable directly to the underlying crime. Rutgard, 116 F.3d at 1292-93 (overturning Section 1957 conviction on grounds that defendant's bank account contained some lawfully obtained money as well as criminally derived money and the government failed to trace the withdrawal to the unlawful funds); Yagman, 502 F. Supp. 2d at 1087-1093 (overturning convictions for failure to adequately trace funds in commingled account). There is no Section 1957 violation where, for example, both lawful and unlawfully obtained funds are commingled in an account and payment could have been with either the lawful or unlawfully obtained monies. Rutgard, 116 F.3d at 1292-93. Moreover, the 14
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defendant must actually know that the property represents criminally derived property. See United States v. Stein, 37 F.3d 1407, 1410 (9th Cir. 1994) (reversing conviction for insufficient knowledge instruction to jury). Plaintiff has not pled any facts by which Google could reasonably have possessed the requisite knowledge that the payments from the MSSPs constituted property derived from a statutorily proscribed act as alleged by Plaintiff. Plaintiff's unfounded and overblown claim that "all or substantially all" of the revenue of the MSSPs who failed to abide by Google's Content Policy was criminally derived is insufficient to establish that Google could have known that the particular funds it received in payment for advertising space were criminally derived.10 2. PLAINTIFF FAILS TO STATE A CLAIM FOR BREACH OF CONTRACT

Plaint iff claims that Google requires its AdWords customers to sign a set of Advertising Terms before they are permitted to advertise through Google. Plaintiff alleges that, among other provisions, these Advertising Terms require customers to abide by Google's policies (including its AdWords Content Policy), which allegedly obligate MSSP advertisers to include certain information (such as mobile subscription pricing and cancellation procedures) on their websites. ¶¶ 31-32 and Ex. F. Plaintiff claims that by failing to disallow advertisements that did not include the required information, Google somehow breached a promise to which Plaintiff was the intended beneficiary. ¶ 73. Under California law, however, Plaintiff cannot recover against Google for breach of contract unless (1) Google actually made a promise to disallow advertisements that were not in compliance with its Content Policy, and (2) Plaintiff is an
10

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Plaint iff's Section 17200 claim suffers from additional fatal flaws. Plaintiff cannot establish that she is entitled to any restitution from Google under Section 17203. Restitution is the exclusive monetary remedy available to private plaintiffs under Section 17200 and "is limited to the return of property or funds in which the plaintiff has an ownership interest (or is claiming through someone with an ownership interest)." Madrid v. Perot Sys. Corp., 130 Cal. App. 4th 440, 453 (2005). Because Plaintiff alleges that she paid the MSSPs, not Google, and because she does not contend that she had any ownership interest in funds paid to Google, she cannot establish any entitlement to restitution from Google. See id. Plaintiff's inability to assert restitution as a remedy against Google and her failure to allege that Google caused any injury deprives her of standing to assert a Section 17200 claim against Google is an independent basis upon which to dismiss this action. Cal. Bus. & Prof. Code § 17204 (a private person has standing to assert a Section 17200 claim only if he or she (1) "has suffered injury in fact," and (2) "has lost money or property as a result of such unfair competition"); see Laster v. T-Mobile United States, Inc., 407 F. Supp. 2d 1181, 1994 (S.D. Cal. 2005); Hall v. Time, Inc., 158 Cal. App. 4th 847, 855-8 (2008). 15
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intended third party beneficiary o f that promise ­ i.e., that the promisee of Google's alleged promise (the MSSP Advertisers) intended to benefit Plaintiff.11 Souza v. Westlands Water Dist., 135 Cal. App. 4th 879 (2006). Plaintiff has not, and cannot, allege the requisite facts for either prong, and her breach of contract claim should be dismissed. See id. a. GOOGLE MADE NO PROMISE TO ENFORCE ITS ADVERTISING TERMS

As an initial matter, Google cannot be liable for a promise it did not make. See Souza, 135 Cal. App. 4th at 892 ("If a contract is to be a basis of liability for the [defendant's] vio lat ion of [its Terms and Conditions] . . . it must be a contract in which the [defendant] promises to abide by [these terms]."). Google's Advertising Terms were a promise by Google's advertising customers to Google in exchange for participation in Google's advertising service. Plaintiff has not alleged and cannot point to any provision in Google's Advertising Terms by which Google promised to enforce the Advertising Terms or otherwise remove noncompliant advertisements. In dismissing allegations virtually indistinguishable from Plaintiff's, the California Court of Appeal recognized the absurdity of holding a service provider liable to an unrelated third party for failure to enforce its own terms and conditions. See Souza, 135 Cal. App. 4th at 893-94. There is no basis for inferring (and Plaintiff does not allege) that Google made a promise to its advertising customers that it would enforce the Advertising Terms against them; any such promise would have been made to Google's advertisers and would have been to their detriment. See id. at 892. Google's Advertising Terms commit only its AdWords customers to comply with those terms; they do not confer any rights upon Plaintiff. See also Green v. America Online, 318 F.3d 465, 472 (3d Cir. 2003) (holding "that Green failed to state a claim for breach of contract because . . . by their terms, the Member Agreement and Community Guidelines were not intended to confer any rights on Green and AOL did not promise to protect Green from the acts of other subscribers"). Because Google made no promise to enforce its Advertising Terms, Plaintiff's claims against Google for its failure to enforce its those terms must be dismissed.

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Plaint iff does not allege that she was a party to the Advertising Terms and therefore cannot enforce the terms unless she is an intended third party beneficiary. Id. 16
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b.

PLAINTIFF IS NOT AN INTENDED THIRD PARTY BENEFICIARY OF THE ADVERTISING TERMS

In any event, as a non-party to the Advertising Terms, Plaintiff may assert a claim for breach of contract only if she is an intended third party beneficiary of the agreement. Souza, 135 Cal. App. 4th 879; Martinez v. Socoma Cos., 11 Cal. 3d 394, 406 (1974). Whether a party is a third party beneficiary may be determined as a matter of law. Souza, 135 Cal. App. 4th at 891. For Plaintiff to qualify as an intended third party beneficiary of the Advertising Terms, those terms would have to reflect, on their face, an intent to benefit Plaintiff. Martinez, 11 Cal. 3d at 406. "To attain standing as a third party beneficiary of a contract, a person must show clearly that when the parties executed their agreement they intended its execution to confer real benefits on that person." Highfields Capital Mgmt., L.P. v. Doe, 385 F. Supp. 2d 969, 980 (N.D. Cal. 2005) (internet users are not third party beneficiaries of Yahoo! Service agreement because there "is nothing in the language of the contract that even remotely suggests such intention") (emphasis original). Plaintiff has not alleged the Advertising Terms reflect any intent to benefit her and, in fact, expressly alleges the terms were intended to benefit Google. ¶ 40-42. More significantly, a third party is not an intended beneficiary of an agreement unless the promisee intends the agreement to benefit the third party. Id. at 893. ("The point of the thirdparty beneficiary doctrine is to allow a third party to enforce, against a promisor, rights running to the third party for which the promisee bargained."). The intent of the promisor "is not at issue." Id. Assuming arguendo that Google did in fact promise to enforce its Advertising Terms, Google would be the promisor of the agreement and the allegedly fraudulent MSSP would be the promisee. Consequently, for Plaintiff to be an intended third party beneficiary, the Advertising Terms would have to reflect an intent by the allegedly fraudulent MSSP to benefit Plaintiff. The Souza court found such a result to be absurd, and held as a matter of law that the plaintiff in that case was not an intended beneficiary. Id. at 893. There is no basis for a different conclusion here; accordingly, Plaintiff's breach of contract claim must be dismissed. 3. PLAINTIFF'S NEGLIGENCE CLAIM IS BARRED AS A MATTER OF LAW

A long line of California cases establishes that publishers, including publishers of 17
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advert isements, have no independent duty to police content for accuracy. See, e.g., Walters v. Seventeen Magazine, 195 Cal. App. 3d 1119, 1122 (1987) (magazine could not be held liable for teen's injury fro m a product advertised in the magazine); see also McCulloch v. Ford Dealers Adver. Ass'n, 234 Cal. App. 3d 1385 (1991) (corporation had no duty to participants in fraudulent contest despite having affixed its logo to the materials promoting the contest). Accordingly, absent a showing of some special duty, Plaint iff may not assert a claim of negligence against Google. Plaintiff alleges that Google's Advertising Terms represent a voluntary assumption of a duty of care to Google's users. ¶ 78. Plaintiff claims Google's Content Policy required its MSSP advertisers to "prominently display" certain information on their websites, including identification of the service as a subscription, price of the service, billing interval, and cancellation information. ¶ 32. Plaintiff alleges "these statements in its Content Policy amount to public representations by Google of the accuracy and clarity of pricing, subscription, and cancellation information that Google users can expect to find on third-party websites linked to AdWords advertisements . . . ." ¶ 33. Under California law, however, Google cannot be found to have assumed a duty to Plaintiff unless (1) the Advertising Terms themselves increased the risk of harm or (2) Plaintiff actually relied upon the Advertising Terms. Paz v. State of California, 22 Cal. 4th 550, 560 (2000). "A defendant's undertaking of protective services increases the risk of harm if, as a result of his actions, the risk of harm is greater than if he had done nothing at all." McIntosh v. U.S., Civ. No. 05-373 (BTM), 2008 WL 4492592, *8 (S.D. Cal. Sept. 29, 2008). Plaintiff has not alleged that she relied on--or even read--Google's Advertising Terms and Content Policy. In any event, it would be absurd to suggest that she relied on the Content Policy to her detriment: had Plaintiff read Google's Content Policy, the conspicuous absence of the required informat ion about pricing, subscription, and cancellation on the MSSP website would have alerted her to the fact that the website was out of compliance with the Content Policy. Plaintiff also fails to allege that the Advertising Terms increased her risk of injury. Had Google "done nothing at all," the allegedly misleading MSSP websites would have been equally, 18
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if not more, misleading. Plaintiff's risk of harm from the MSSP advertisements was therefore the same, if not less, than it would have been in the absence of Google's Advertising Terms and Content Policy. 4. PLAINTIFF'S CLAIM FOR AIDING AND ABETTING VARIOUS VIOLATIONS ALSO FAILS

To state a claim for aiding and abetting, Plaintiff must allege that the aider and abetter (1) "knows that the other's conduct constitutes a breach of duty," and (2) "gives substantial assistance or encouragement to the other so to conduct himself." Orser v. George, 252 Cal. App. 2d 660, 666 (1967). Courts emphasize that the substantial assistance requirement is necessary to protect defendants with only a "slight" or tenuous relationship to the alleged wrongdoing. Id. at 669. To ascertain whether a defendant has provided substantial assistance, courts look at "the nature of the act encouraged, the amount of assistance given by the defendant, his presence or absence at the time of the tort, his relation to the other and his state of mind." Id. Plaint iff alleges that, by simply allowing MSSPs to advertise on its website, Google aided and abetted the MSSP violation of Section 17200, violation of the CFAA, and trespass to chattels. ¶¶ 84-87. Plaintiff has failed, as an initial matter, to allege that Google provided "substantial assistance," as required to state a claim for aiding and abetting. Moreover, Plaintiff's sole allegation against Google is that Google provided the MSSPs the opportunity to advertise. Such a tenuous relationship with the alleged wrongdoing cannot amount to the substantial assistance required to hold Google liable for the MSSP's activities. Id. at 669 ("The assistance of or participation by the defendant may be so slight that he is not liable for the act of the other.").12 V. CONCLUSION This Court granted Plaintiff leave to amend to allege facts sufficient to establish that Google was an information content provider under Section 230, but Plaintiff's Amended
12

In any event, as discussed previously, the MSSPs have not violated the CFAA as a matter of law. See Section IV.C.1.a. Even if the transmission of content to the Plaintiff's cell phone could constitute trespass of a chattel, the harm Plaintiff alleges--charges for mobile content services she did not subscribe to--are unrelated to any "trespass" of her cell phone, and the relationship between the MSSP advertisements and the MSSP's "trespass" is so tenuous as to be unforeseeable. See Orser, 252 Cal. App. 2d at 669. 19
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Complaint has failed to allege facts that "make it very clear that the website [Google] directly participates in developing the illegality' at issue." Docket 48 at 6 (citations omitted). Instead, Plaintiff's Amended Complaint sets forth a series of factually unsupported conclusions alleging that Google controlled its AdWords customers' fraudulent advertisements and rendered them powerless to resist the temptation to list mobile content as "free" when it was not. Because the facts alleged do not support these facially outlandish conclusions, the Amended Complaint does not accomplish the objective Plaintiff was assigned. Plaintiff has not alleged what the Ninth Circuit says it must to avoid application of the CDA, Google is not an information content provider; it is merely the publisher, and the CDA immunizes it from liability for the purportedly false statements of MSSPs. Google respectfully asks this Court to dismiss the Amended Complaint without leave to amend on this basis. In the alternative, Google respectfully asks this Court to dismiss the Amended Complaint without leave to amend on the grounds that, even absent Section 230 immunity, she has failed to state a claim. Dated: February 5, 2009 KAREN G. JOHNSON-MCKEWAN NANCY E. HARRIS NIKKA N. RAPKIN Orrick, Herrington & Sutcliffe LLP

/s/ Karen G. Johnson-McKewan KAREN G. JOHNSON-MCKEWAN Attorneys for Defendant GOOGLE INC.

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