Goodard v. Google, Inc.

Filing 62

Brief re 45 Memorandum in Opposition to Defendant's Motion to Dismiss filed byJenna Goodard. (Attachments: # 1 Notice of Filing)(Related document(s) 45 ) (Himmelfarb, Alan) (Filed on 5/29/2009)

Goodard v. Google, Inc.

Doc. 62

Alan Himmelfarb (SBN 90480) 1 KAMBEREDELSON, LLC 2 2757 Leonis Boulevard Vernon, CA 90058 3 T: 323.585.8696 [e-mail] 4 Attorneys For Plaintiff 5 JENNA GODDARD 6 7 8 9 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

JENNA GODDARD, on her own behalf and on 10 behalf of all others similarly situated, 11 12 v. Plaintiff,

Case No. C 08-2738 JF (PVT)
PLAINTIFF'S SUPPLEMENTAL BRIEF IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS THE AMENDED COMPLAINT Date: May 29, 2009 Judge: Honorable Jeremy Fogel

13 GOOGLE, INC., a Delaware corporation, 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff's Supplemental Brief in Opposition to Defendant's Motion to Dismiss Defendant.

Case No. C 08-2738 JF (PVT)
Dockets.Justia.com

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Currently pending before this Court is Google, Inc.'s ("Google" or "Defendant") 12(b)(6)

2 Motion to Dismiss. (Dkt. No. 50.) Pursuant to this Court's order granting plaintiff Jenna Goddard 3 ("Plaintiff") leave to file supplemental briefing in opposition to Google's motion to dismiss, 4 Plaintiff addresses the recent Ninth Circuit decision Barnes v. Yahoo!, Inc., __F.3d__, 2009 WL 5 1232367 (9th Cir. May 7, 2009), and its impact on the present litigation as follows: 6 I. 7 Google Cannot Use 47 U.S.C. § 230 As a Basis For Dismissal Under Rule 12(b)(6). The primary argument proffered in support of Google's Motion to Dismiss the Amended

8 Complaint is that Google enjoys immunity under Section 230 of the Communications Decency 9 Act, 47 U.S.C. § 230(c) ("Section 230"). (See Dkt. No. 50.) In Barnes, however, the Ninth 10 Circuit clarified that 47 U.S.C. § 230 "is an affirmative defense and district courts are to treat it as 11 such." Barnes, 2009 WL 1232367, at *2. As an affirmative defense, Section 230 cannot be used 12 as a basis for dismissal under Rule 12(b)(6); the "assertion of an affirmative defense does not 13 mean that the plaintiff has failed to state a claim, and therefore does not by itself justify dismissal 14 under Rule 12(b)(6)." Id. Google must therefore follow the "normal method of presenting 15 defenses" and assert Section 230 as an affirmative defense in its responsive pleading, if it so 16 chooses. Id. As with any affirmative defense, Google bears the burden of both pleading and 17 proving its Section 230 defense. See id. 18 As argued by Plaintiff in her opposition to the Motion to Dismiss the Amended Complaint,

19 Google's Section 230 argument relies on a factual presumption--contrary to the allegations of the 20 Amended Complaint--that its KeyWord Tool is in fact "neutral." (See Oppo. to Motion to 21 Dismiss, Dkt. No. 53, at 3.) The Barnes Court recognized the impropriety of allowing defendants 22 like Google to sidestep fact development and ask the Court presume the facts on which Section 23 230 relies--e.g., that Google does no more than provide "neutral tools." Barnes simply requires 24 such disputed issues of fact to be pleaded and proved as affirmative defenses before Section 230 25 immunity can be afforded. 26 Therefore, to conform to the procedural requirements set out in Barnes, this Court should

27 deny that portion of Google's Motion to Dismiss predicated upon Section 230 and require Google 28 Plaintiff's Supplemental Brief in Opposition to Defendant's Motion to Dismiss 2 Case No. C 08-2738 JF (PVT)

1 to file an answer to Plaintiff's Amended Complaint whereby it can assert any affirmative defenses 2 it so chooses. 3 II. 4 5 Google May Not Use 47 U.S.C. § 230 As a Defense Against a Breach of Contract Claim. Barnes provides additional justification as to why Google's Section 230 defense must fail

6 with regard to Count II of the Amended Complaint, the breach of contract claim. In Barnes, the 7 plaintiff brought suit against Yahoo! for, inter alia, its promise to remove indecent personal 8 profiles created as an act of revenge by an unscrupulous ex-boyfriend, plaintiff's reliance to her 9 detriment on Yahoo's promise, and Yahoo's breach of that promise to remove those profiles. 10 Barnes, 2009 WL 1232367, at *1-2. The district court granted Yahoo!'s motion to dismiss, 11 accepting that Section 230(c) afforded Yahoo! immunity. Id. at *2. In reversing this decision, the 12 Barnes Court indicated that a Section 230 defense does not preclude a breach of contract claim 13 where the plaintiff seeks to hold the Defendant liable as a promisor or counter-party to the 14 contract, not as a publisher or speaker. Id. at *9, 11. This is because Section 230 does not provide 15 a "general immunity from liability from third-party content" but instead has a limited scope, 16 protecting only those providers or users of interactive computer services "whom a plaintiff seeks 17 to treat . . . as a publisher1 or speaker" of information provided by another information content 18 provider. Id. at *3- 4 (emphasis added). 19 To determine whether defendants fall within the narrow scope of protection provided by

20 Section 230(c), courts should look to "whether the cause of action inherently requires the court to 21 treat the defendant as the `publisher or speaker' of content provided by another." Id. at 4. Section 22 230(c) affords immunity where the duty defendant violated derives from the defendant's status or 23 conduct performed as "publisher or speaker." Id. However, in the context of a claim for breach of 24 contract,2 "the duty the defendant allegedly violated springs from a contract--an enforceable 25 26 The Barnes Court finds publishers are those that review, edit, and decide "whether to publish or to withdraw from publication third-party content." Barnes, 2009 WL 1232367, at *5. 27 2 The Ninth Circuit makes clear that this principle applies to all contract claims by stating, "[i]n a promissory estoppel case, as in any other contract case, the duty of the defendant allegedly 28 Case No. C 08-2738 JF (PVT) Plaintiff's Supplemental Brief in Opposition 3 to Defendant's Motion to Dismiss
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1 promise--not from any non-contractual conduct or capacity of the defendant." Id. at *9. As such, 2 in a breach of contract claim, a plaintiff does "not seek to hold [the defendant] liable as a publisher 3 or speaker of third-party content, but rather as the counter-party to a contract, as a promisor who 4 has breached." Id. In this sense, Section 230 immunity operates differently as to contractual 5 claims because such a claim "treats the outwardly manifested intention to create an expectation on 6 the part of another as a legally significant event." Id. at 10. 7 In this matter, Plaintiff's Breach of Contract claim alleges that the Content Policy

8 incorporated in Google's Advertising Terms is a contract between Google, Fraudulent Mobile 9 Subscription Services, and intended third-party beneficiaries that include Goddard and the 10 proposed Class. (Amend. Compl., Dkt. No. 49 ¶¶ 72-73.) Plaintiff further alleges that Google 11 breached this contract by failing to comply with its promise under the contract to allow only 12 advertising that complied with the Content Policy, and by driving third-party beneficiary 13 consumers to webpages operated by Fraudulent Mobile Subscription Services. (Amend. Compl. ¶ 14 74.) Like the plaintiff in Barnes, the Plaintiff here seeks to hold Google liable as a promisor and 15 counter-party to a contract, for failing to uphold its promise under the contract, not as a publisher 16 or speaker of the information provided by the Fraudulent Mobile Subscription Services. 17 Accordingly, to the extent that Google's Motion to Dismiss Count II for breach of contract is 18 predicated on Section 230, the motion should be denied. 19 20 21 22 23 24 25 26 27 violated springs from a contract--an enforceable promise--not from any non-contractual conduct 28 or capacity of the defendant." Barnes, 2009 WL 1232367, at *9 (emphasis added). Case No. C 08-2738 JF (PVT) Plaintiff's Supplemental Brief in Opposition 4 to Defendant's Motion to Dismiss

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CONCLUSION WHEREFORE, Plaintiff requests that the Court deny Defendant's Motion to Dismiss for

3 the reasons stated above and for the reasons stated in Plaintiff's Memorandum in Opposition to 4 Defendant's Motion to Dismiss. (Dkt. No. 53.) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff's Supplemental Brief in Opposition to Defendant's Motion to Dismiss 5 Case No. C 08-2738 JF (PVT) Dated: May 29, 2009 By: /s/ Alan Himmelfarb KAMBEREDELSON, LLC 2757 Leonis Boulevard Los Angeles, California 90058 [phone] [e-mail] Jay Edelson Myles McGuire Michael McMorrow KAMBEREDELSON, LLC 350 North LaSalle, Ste 1300 Chicago, Illinois 60654 [phone] [e-mail] [e-mail] [e-mail] Attorneys for Plaintiff JENNA GODDARD