Cullen v. Netflix, Inc.

Filing 50

ORDER GRANTING 31 MOTION to Dismiss Second Amended Complaint; Statement of Issues; Memorandum of Points and Authorities in Support Thereof WITH LEAVE TO AMEND. Signed by Judge Edward J. Davila on 7/13/12. Any amended complaint shall be filed no later than 30 days from the date this Order is filed. (ejdlc3, COURT STAFF) (Filed on 7/13/2012)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 SAN JOSE DIVISION 10 CASE NO. 5:11-cv-01199-EJD DONALD CULLEN, 11 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND Plaintiff, 12 13 v. NETFLIX, INC., 14 Defendant. / [Docket No. 31] 15 16 Presently before the court is Defendant Netflix, Inc.’s (“Netflix”) Motion to Dismiss the 17 Second Amended Complaint (“SAC”) filed by Plaintiff Donald Cullen (“Cullen”), on behalf of 18 himself and all others similarly situated. See Docket No. 31. Having fully reviewed the moving and 19 responding papers, and the oral arguments of counsel presented at the hearing on January 6, 2012, 20 Netflix’s motion is GRANTED with leave to amend for the reasons described below. 21 22 I. FACTUAL AND PROCEDURAL BACKGROUND The allegations contained in this section are taken largely from the SAC. Being a deaf 23 individual, Cullen, like millions of hearing-impaired Americans, relies on closed captioning (or 24 subtitles) to view video programs.1 SAC, Docket No. 26, ¶¶ 4-5, 9. To ensure access to closed 25 captioning programs, Congress enacted laws requiring video programming distributors and 26 27 28 1 Closed captioning is a system which displays text on a television or video screen, typically a transcription of the audio portion of the program as it occurs sometimes including non-speech elements, to provide interpretive information to viewers who need it. Id. ¶ 4. 1 Case No. 5:11-CV-01199-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1 2 providers to caption their video programming. Id. ¶ 5. Netflix is a provider of both on-demand streaming video programming over the internet and 3 flat-rate online DVD-Video and Blu-ray Disc rental-by-mail. Id. ¶ 6. Customers of Netflix pay a 4 monthly subscription fee, which differs based on options selected. Id. Netflix began providing 5 streaming video programming in or about January 2008. Id. ¶ 16. Although Netflix has offered 6 streaming video programing since 2008, currently, only a small portion of its library is subtitled. Id. 7 ¶ 7. Cullen became a Netflix member in May 2009, initially subscribing to an “unlimited 3 DVD” 8 plan because of the streaming library’s lack of captioned content. Id. ¶¶ 33, 51. 9 In a June 12, 2009 blog entry posted on Netflix’s website, Neil Hunt (“Hunt”), Netflix’s 10 Chief Product Officer, announced that “[c]aptioning is in our development plans,” and that Netflix 11 would “expect to deliver subtitles or captions . . . and roll the same technology out to each CE 12 device as we are able to migrate the technology . . . .” Id. ¶ 17, Ex. A. Four months later, on October 13 5, 2009, Netflix’s Director of Communications, Catherine Fisher, reiterated Hunt’s statement in a 14 public communication with the advocacy group, the National Association of the Deaf, stating that 15 Netflix “developers continue to work on closed captioning.” Id. ¶ 20, Ex. B. Over the next year, 16 Netflix made similar statements, announcing in an April 15, 2010 blog entry that 100 titles had been 17 captioned, that there was “much more to come,” (id. ¶ 22, Ex. C), and in a November 22, 2010 18 “tweet” that Netflix “offers [closed captioning] on a growing [number] of titles,” that could be 19 accessed from a number of devices. Id. ¶ 25, Ex. D. On February 24, 2011, Hunt represented that 20 there were “more than 3,500 TV episodes and movies” with subtitles in Netflix’s streaming library 21 “representing about 30% of viewing.” Id. ¶ 27. Hunt also stated that “[m]ore subtitles are being 22 added every week, and [Netflix] expect[s] to get to 80% viewing coverage by the end of 2011.” Id. ¶ 23 28, Ex. E. 24 Cullen alleges Netflix’s statements “were designed to and did have the effect of conveying to 25 Netflix’s deaf and hard of hearing members that Netflix would meaningfully subtitle its streaming 26 library within a reasonable period of time.” Id. ¶ 31. Cullen and the class members relied on these 27 statements in purchasing or maintaining monthly Netflix subscriptions. Id. ¶ 32. In addition, the 28 2 Case No. 5:11-CV-01199-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1 SAC further alleges that Netflix’s failure to caption imposed on Cullen and putative class members a 2 veritable “deaf tax” because the DVD-by-mail plans that gave them sufficient access to video 3 programming were sold at a significant premium (up to $11.99) to Netflix’s streaming subscription. 4 Id. ¶¶ 41-49. 5 On March 11, 2011, Cullen filed a class action lawsuit in this court. See Docket No. 1.2 6 Cullen filed his SAC on September 9, 2011. Plaintiff brings discrimination based claims on behalf of 7 himself and similarly situated consumers under California’s Unruh Civil Rights Act, Cal. Civ. Code 8 §§ 51, et seq., (“Unruh Act”) and California’s Disabled Persons Act, Cal. Civ. Code §§ 54, et seq., 9 (“DPA”) for Netflix’s failure to provide full and equal access to its services. SAC ¶¶ 103-112. In 10 addition, Plaintiff brings consumer protection based claims under California’s Unfair Competition 11 Law, Cal. Bus. & Prof. Code §§ 17200, et seq., (“UCL”), False Advertising Law, Cal. Bus. & Prof. 12 Code §§ 17500, et seq., (“FAL”), and Consumer Legal Remedies Act, Cal. Civ. Code §§ 1750, et 13 seq., (“CLRA”) for Netflix’s false promises, misrepresentations, and material omissions concerning 14 the amount of subtitled content, the rate at which Netflix was adding subtitled content, and the date 15 by which a substantial portion of its streaming library would be subtitled. Id. ¶¶ 72-102. 16 On October 5, 2011, Netflix filed this motion to dismiss. See Docket No. 31. On November 17 4, 2011, Cullen filed written opposition to the motion. See Docket No. 32. On November 18, 2011, 18 Netflix filed its reply brief. See Docket No. 33. On January 5, 2012, with leave of court, Cullen filed 19 his sur-reply brief. See Docket No. 40. On January 6, 2012, oral argument on the motion to dismiss 20 was heard. On March 23, 2012, Cullen and Netflix filed a joint status report regarding the impact of 21 the FCC regulations governing closed captioning of streaming video programming. See Docket No. 22 47. On June 19, 2012, Cullen filed a statement of recent decision. See Docket No. 48. On July 9, 23 2012, Netflix filed a statement of recent decision as well. See Docket No. 49. 24 25 26 27 28 2 Cullen’s initial Complaint asserted a claim under the Americans with Disabilities Act. After being assured by the National Association of the Deaf and the Civil Rights Division of the Department of Justice that another plaintiff would pursue that claim in a separate proceeding, see generally Nat’l Ass’n of the Deaf v. Netflix, Inc., No. 11-30168-MAP (D. Mass. filed June 16, 2011), Cullen amended his complaint to drop that claim. See Opp’n Mot. To Dismiss SAC (“Opp’n”), Docket No. 32, at 4 n.1. 3 Case No. 5:11-CV-01199-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1 II. LEGAL STANDARD 2 A complaint may be dismissed for failure to state a claim upon which relief may be granted 3 if a plaintiff fails to proffer “enough facts to state a claim to relief that is plausible on its face.” Bell 4 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Allegations of material fact must be taken as true 5 and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 6 F.3d 336, 337–38 (9th Cir. 1997). However, the court need not accept as true allegations that are 7 conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden 8 State Warriors, 266 F. 3d 979, 988 (9th Cir. 2001); see also Twombly, 550 U.S. at 561 (“a wholly 9 conclusory statement of [a] claim” will not survive a motion to dismiss). 10 On a motion to dismiss, the court's review is limited to the face of the complaint and matters 11 judicially noticeable. MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986); N. Star 12 Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). However, under the “incorporation 13 by reference” doctrine, the court also may consider documents which are referenced extensively in 14 the complaint and which are accepted by all parties as authentic. In re Silicon Graphics, Inc. Sec. 15 Litig., 183 F.3d 970, 986 (9th Cir. 1999). 16 Finally, although their claims arise under state law, Plaintiffs’ allegations are subject to the 17 Federal Rules of Civil Procedure. Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009) 18 (quoting Vess v. Ciba–Geigy Corp. USA, 317 F.3d 1097, 1102 (9th Cir.2003)) (“[T]he Federal 19 Rules of Civil Procedure apply in federal court, ‘irrespective of the source of the subject matter 20 jurisdiction, and irrespective of whether the substantive law at issue is state or federal.’ ”). 21 Specifically, allegations sounding in fraud are subject to the heightened pleading requirements of 22 Fed. R. Civ. P. 9(b). See Vess, 317 F.3d at 1103–04 (if “the claim is said to be ‘grounded in fraud’ 23 or to ‘sound in fraud,’ [then] the pleading of that claim as a whole must satisfy the particularity 24 requirement of Rule 9(b).”); Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 1994) (claims based in 25 fraud “must state precisely the time, place, and nature of the misleading statements, 26 misrepresentations, and specific acts of fraud.”). 27 28 4 Case No. 5:11-CV-01199-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1 2 III. A. DISCUSSION Discrimination Based Claims 3 Netflix argues that Cullen’s discrimination based claims must be dismissed because (1) the 4 FCC has primary jurisdiction over the critical issues; (2) the Unruh Act and DPA are preempted by 5 the 21st Century Act; and (3) Cullen fails to plead facts sufficient to state a claim under the Unruh 6 Act and the DPA. Because the court finds that Cullen’s failure to state a claim is sufficient to 7 dismiss these claims, it need not address Netflix’s primary jurisdiction and preemption arguments at 8 this time. 9 1. 10 Violation of the Unruh Act and the DPA Based on the ADA Netflix argues that Cullen’s DPA claim and Unruh Act claim both fail because they rely on a 11 violation of the Americans with Disabilities Act of 1990 (“ADA”), and Cullen cannot state a 12 violation of the ADA because Netflix’s streaming library is not a place of public accommodation. 13 See Def. Netflix, Inc.’s Reply Supp. Mot. To Dismiss SAC at 9:3-4. Cullen argues that because 14 Netflix’s conduct of denying hearing-impaired individuals “full and equal access” to its streaming 15 video library is a violation of the ADA, it is also a violation of the Unruh Act and the DPA. See 16 Opp’n at 5:18-19. 17 A violation of the ADA is, by statutory definition, a violation of both the Unruh Act and the 18 DPA. Cal. Civ.Code §§ 51(f), 54.l(d). Title III of the ADA prohibits discrimination in public 19 accommodations. In order to prevail on a discrimination claim under Title III, a plaintiff must show 20 that: “(1) he is disabled within the meaning of the ADA; (2) the defendant is a private entity that 21 owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied a public 22 accommodation by the defendant because of his disability.” Ariz. ex rel. Goddard v. Harkins 23 Amusement Enters., 603 F.3d 666, 670 (9th Cir. 2010). The Ninth Circuit has held that a “place of 24 public accommodation” under the ADA, is limited to “an actual physical place.” Weyer v. Twentieth 25 Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000). 26 27 Other circuits which have suggested that a “place of public accommodation” has a more expansive meaning. See, e.g., Carparts Distribution Ctr., Inc. v. Automotive Wholesalers Assoc. of 28 5 Case No. 5:11-CV-01199-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1 New England, Inc., 37 F.3d 12, 19–20 (1st Cir.1994) (holding that “public accommodations” are not 2 limited to actual physical structures); Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 3 1999) (noting, in dicta, that a “place of public accommodation” encompasses facilities open to the 4 public in both physical and electronic space). Applying First Circuit law, a court in the District of 5 Massachusetts recently held that the ADA applies to Netflix’s streaming video library, which “falls 6 within at least one, if not more, of the enumerated ADA categories.” Nat’l Ass’n of the Deaf v. 7 Netflix, Inc., No. 11-CV-30168-MAP, 2012 WL 2343666, at *3 (D. Mass. June 19, 2012). 8 This court, however, must adhere to Ninth Circuit precedent. See Ky Minh Pham v. 9 Hickman, 262 Fed. Appx. 35, 39 (9th Cir. 2007) (“[I]n the absence of Supreme Court law, [a district 10 court] is bound to follow Ninth Circuit precedent.”). Applying Weyer, courts in this District have 11 held that websites are not places of public accommodations under the ADA because they are not 12 actual physical places. See, e.g. Nat'l Fed'n of the Blind v. Target Corp., 452 F. Supp. 2d 946, 952 13 (N.D. Cal. 2006) (holding that the ADA can only apply to a website when “there is a ‘nexus’” 14 alleged between the challenged conduct and defendant’s “physical space.”);3 Young v. Facebook, 15 Inc., 790 F. Supp. 2d 1110, 1115 (N.D. Cal. 2011) (dismissing ADA claim against Facebook in part 16 because “Facebook operates only in cyberspace, and is thus is not a ‘place of public 17 accommodation’ as construed by the Ninth Circuit.”); Earll v. eBay, Inc., No. 5:11-CV-00262-JF 18 HRL, 2011 WL 3955485, at *2 (N.D. Cal. Sept. 7, 2011) (holding that eBay’s website is not a place 19 of public accommodation under the ADA) . 20 Here, Netflix’s streaming video library is a website where consumers can access videos with 21 an internet connection. SAC ¶ 16. The Netflix website is not “an actual physical place” and 22 therefore, under Ninth Circuit law, is not a place of public accommodation. See Weyer, 198 F.3d at 23 1114. Because the website is not a place of public accommodation, the ADA does not apply to 24 access to Netflix’s streaming library. Thus, Cullen’s claim that Netflix failed to provide full and 25 equal access under the DPA and the Unruh Act cannot rest on Netflix’s alleged failure to comply 26 27 28 3 Cullen has not alleged a “nexus” between Netflix’s streaming video website and an actual physical space. 6 Case No. 5:11-CV-01199-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1 2 with the ADA. This conclusion, however, does not necessarily render Cullen’s DPA and Unruh Act claims 3 meritless. Cullen may be able to pursue his discrimination claims if they are asserted as independent 4 claims separate from an ADA violation because both the Unruh Act and the DPA apply to websites 5 “as a kind of business establishment and an accommodation, advantage, facility, and privilege of a 6 place of public accommodation, respectively. No nexus to [a] physical [place] need be shown.” Nat'l 7 Fed'n of the Blind, 582 F. Supp. 2d at 1196. 8 2. 9 The Unruh Act provides that “[a]ll persons within the jurisdiction of this state are free and Independent Violation of the Unruh Act 10 equal, and no matter what their . . . disability . . . are entitled to the full and equal accommodations, 11 advantages, facilities, privileges, or services in all business establishments of every kind 12 whatsoever.” Cal. Civ. Code § 51(b). 13 A violation of the Unruh Act may be maintained independent of an ADA claim only where a 14 plaintiff pleads “intentional discrimination in public accommodations in violation of the terms of the 15 Act.” Munson v. Del Taco, Inc., 46 Cal. 4th 661, 668 (2009) (quoting Harris v. Capital Growth 16 Investors XIV, 52 Cal. 3d 1142, 1175 (1991)). To prove intentional discrimination there must be 17 allegations of “willful, affirmative misconduct,” and the plaintiff must allege more than the 18 disparate impact of a facially neutral policy on a particular group. Koebke v. Bernardo Heights 19 Country Club, 36 Cal. 4th 824, 854 (2005); Young, 790 F. Supp. 2d at 1116. 20 Thus, to sufficiently state a cause of action under the Unruh Act, Cullen’s claim cannot be 21 based solely on the disparate impact of Netflix’s policies on hearing-impaired individuals but must 22 be grounded in allegations of intentional discrimination. See id. Here, Cullen alleges that Netflix did 23 not caption a meaningful amount of its streaming library at the rate consumers expected (SAC ¶ 53), 24 and its streaming library is not accessible to hearing-impaired individuals because only a small 25 portion of it is subtitled (id. ¶¶ 7, 105). These allegations describe a policy with a disparate impact 26 on hearing-impaired individuals, but do not describe willful, affirmative misconduct. Furthermore, 27 the SAC also includes allegations demonstrating Netflix’s efforts to improve access for hearing- 28 7 Case No. 5:11-CV-01199-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1 impaired customers that offset an inference of intentional discrimination. For example, the rate at 2 which Netflix is captioning content has continued to increase since 2008. See id. ¶¶ 36-39 (listing 3 average number of captioned titles added per day since 2008 (0.64), since 2009 (1.16), since 2010 4 (2), and the current rate (2.33)). Thus, Cullen has not pleaded intentional discrimination. See 5 Koebke, 36 Cal. 4th at 854. Because the SAC does not adequately plead an intentional 6 discrimination claim under the Unruh Act, Netflix’s motion to dismiss Cullen’s Unruh Act claim is 7 GRANTED with leave to amend. 8 3. Independent Violation of the Disabled Persons Act 9 The DPA provides that “[i]ndividuals with disabilities shall be entitled to full and equal 10 access, as other members of the general public, to accommodations, advantages, facilities, . . . places 11 of public accommodation, amusement, or resort, and other places to which the general public is 12 invited . . . .” Cal. Civ. Code § 54.1(a)(1). “‘Full and equal access’ is defined by section 54.1 to 13 mean access that complies with the regulations developed under the federal ADA or under state 14 statutes, if the latter imposes a higher standard.” Cal. Civ. Code § 54.1(a)(3); Urhausen v. Longs 15 Drug Stores Cal., Inc., 155 Cal. App. 4th 254, 263 (Cal. App. 2007). Thus, “[a]n independent DPA 16 claim requires a showing that accessibility regulations promulgated under California law exceed 17 those set by the ADA.” Earll, 2011 WL 3955485, at *3 (citing Cal. Civ. Code § 54.1(a)(3) and 18 Urhausen, 155 Cal. App. 4th at 263). 19 Cullen, however, has not pointed to any relevant standards established by California law that 20 exceed those set by the ADA. Thus, Cullen has failed to plead facts sufficient to allege that Netflix 21 has failed to provide full and equal access as defined by the DPA. Netflix’s motion to dismiss 22 Cullen’s DPA claim therefore is GRANTED with leave to amend. 23 B. Consumer Protection Based Claims 24 1. UCL, FAL, and CLRA Claims Based on Misrepresentation 25 Cullen also alleges Netflix violated the UCL, FAL, and CLRA through its omissions and 26 misrepresentations about the streaming video library’s closed captioning, which had the “effect of 27 conveying to Netflix’s deaf and hard of hearing members that Netflix would meaningfully subtitle 28 8 Case No. 5:11-CV-01199-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1 its streaming library within a reasonable period of time.” SAC ¶ 31; see also ¶¶ 79, 89, 93, 98 2 (alleging misrepresentations and omissions violated the “fraudulent” prong of the UCL, the FAL, 3 and the CLRA). Netflix argues that Cullen has failed to allege facts showing Netflix’s 4 representations were false or misleading according to the reasonable consumer standard. 5 The UCL prohibits any “unlawful, unfair or fraudulent business act or practice.” Cal. Bus. & 6 Prof. Code § 17200. The FAL makes it unlawful for a business to disseminate any statement “which 7 is untrue or misleading, and which is known, or which by the exercise of reasonable care should be 8 known, to be untrue or misleading.” Id. at § 17500. Any violation of the FAL constitutes a violation 9 of the UCL. Williams v. Gerber Products Co., 552 F.3d 934, 938 (9th Cir. 2008). The CLRA 10 prohibits “unfair methods of competition and unfair or deceptive acts or practices.” Cal. Civ. Code § 11 1770. Rule 9(b)’s heightened pleading standards apply to all UCL, FAL, or CLRA claims that are 12 grounded in fraud. See Vess, 317 F.3d at 1103-06. Under Rule 9(b), “[a]verments of fraud must be 13 accompanied by the ‘who, what, when, where and how’ of the misconduct charged.” Kearns v. Ford 14 Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009) (quoting Vess, 317 F.3d at 1106). 15 These laws prohibit not only advertising which is false, but also advertising which, although 16 true, is either misleading or which has a capacity, likelihood or tendency to deceive or confuse the 17 public. Williams, 552 F.3d at 938. UCL, FAL, and CLRA claims grounded in fraud are governed by 18 the “reasonable consumer” test. Id. Under the reasonable consumer standard, the plaintiff must 19 “show that members of the public are likely to be deceived.” Id. (internal citations omitted). 20 California courts “have recognized that whether a business practice is deceptive will usually 21 be a question of fact not appropriate for decision on [a motion to dismiss].” Id. However, courts have 22 occasionally dismissed complaints as a matter of law because they did not meet the “reasonable 23 consumer” standard. See Freeman, 68 F.3d at 289 (affirming dismissal of UCL, FAL, and CLRA 24 claims because statements promising sweepstakes payout in exchange for purchasing magazine 25 subscription unlikely to deceive “person of ordinary intelligence.”). 26 27 a. Representation that Netflix Had Meaningfully Captioned Content Cullen alleges that Netflix’s statements made between June 12, 2009 and February 24, 2011, 28 9 Case No. 5:11-CV-01199-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1 which are discussed individually below, combined together had the effect of conveying to Netflix’s 2 deaf and hard of hearing members that Netflix would “meaningfully” subtitle its streaming library 3 within a “reasonable” period of time, and that it would provide related technology in a variety of 4 hardware platforms. SAC ¶ 32. Cullen further alleges that Netflix’s streaming video library is 5 effectively useless due to the small amount of captioned content, lack of support tools, and slow 6 captioning rate. Id. ¶ 33. Netflix argues that Cullen never alleges Netflix represented it had 7 “meaningfully” captioned its content and that, even if Netflix had made that representation, a vague 8 statement to provide meaningful captioning does not express an objectively verifiable fact actionable 9 under the UCL, FAL, or CLRA. 10 “Generalized, vague, and unspecified assertions constitute ‘mere puffery’ upon which a 11 reasonable consumer could not rely, and hence are not actionable.” Oestreicher v. Alienware Corp., 12 544 F. Supp. 2d 964, 973 (N.D. Cal. 2008) (internal quotation marks and citations omitted), aff'd by 13 322 Fed. Appx. 489 (9th Cir. 2009). Vague or highly subjective claims about product superiority 14 amount to non-actionable puffery; only “misdescriptions of specific or absolute characteristics of a 15 product are actionable.” Id. (quoting Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1145 16 (9th Cir. 1997)). 17 Here, Cullen rests his claims on Netflix’s representations that implied Netflix had 18 “meaningfully” captioned its content. A representation that the captioned content is at meaningful 19 level is a vague and subjective claim and therefore is not actionable under the UCL, FAL, or CLRA. 20 See, e.g., id.; Edmunson v. Proctor & Gamble Co., No. 10-CV-2256-IEG (NLS), 2011 U.S. Dist. 21 LEXIS 53221, at *10–12 (S.D. Cal. May 17, 2011) (dismissing UCL and CLRA claims; statement 22 that product is “superior” is “subjective representation,” not an objectively verifiable fact); Baltazar 23 v. Apple, Inc., No. CV-10-3231-JF, 2011 WL 3795013, at *4-6 (N.D. Cal. Aug. 26, 2011) 24 (dismissing UCL, FAL, and CLRA claims; statement that the iPad can be used “just like a book” is 25 mere puffery). Thus, the court proceeds by individually evaluating the allegedly deceptive 26 statements upon which Cullen bases his UCL, FAL, and CLRA claims. 27 28 10 Case No. 5:11-CV-01199-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1 2 b. Allegations Regarding Deceptive Statements Cullen first argues that Hunt’s June 12, 2009 blog entry that Netflix would “expect to deliver 3 subtitles or captions to Silverlight clients sometime in 2010, and roll the same technology out to 4 each CE device as [Netflix is] able to migrate the technology” is deceptive because it falsely 5 attributed Netflix’s failure to caption content sooner on technical difficulties. SAC ¶¶ 17-18. The 6 SAC, however, does not plead facts in support of the conclusory allegation that this attribution is 7 false. The SAC alleges that other streaming video content providers were captioning content with 8 existing technology, which Netflix also could have used. Id. ¶ 18. But the fact that another, better 9 technology existed does not contradict the representation that Netflix’s captioning rate was limited 10 by technical difficulties, much less state a plausible claim that Netflix’s statement was false or 11 misleading. Therefore, the SAC fails to allege any facts showing that Hunt’s June 12, 2009 blog 12 entry is likely to deceive members of the public. 13 Cullen also argues that Netflix’s statements between October 5, 2009 and November 22, 14 2010 were misrepresentations. Specifically, Netflix said it would “continue to work on closed 15 captioning,” that there was “much more to come,” similar technology would soon be released for 16 Netflix’s other platforms, and closed captioning was offered on a growing number of titles. Id. ¶¶ 17 20- 25. Cullen fails to allege facts in support of his allegation that these statements were false and 18 misleading. Rather, the SAC pleads facts indicating that these statements were true. According to the 19 SAC, the rate at which Netflix has added captioned titles to its streaming library has continued to 20 increase since 2008. See id. ¶¶ 36-39. These alleged facts are consistent with Netflix’s 21 representations that it is working on closed captioning and more titles with closed captioning would 22 be added to the library. Thus, the SAC fails to allege facts sufficient to state a plausible claim that 23 Netflix’s statements between October 5, 2009 and November 22, 2010 are likely to deceive 24 members of the public. 25 Additionally, Cullen bases his UCL, FAL, and CLRA claims on statements Hunt made in a 26 February 24, 2011 blog entry. In this blog entry, Hunt stated that there are “more than 3,500 TV 27 episodes and movies” with subtitles in Netflix’s streaming library “representing about 30% of 28 11 Case No. 5:11-CV-01199-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1 viewing. More subtitles are being added every week and we expect4 to get to 80% viewing coverage 2 by the end of 2011.” Id. ¶ 27-28; Ex. E (emphasis added). The SAC alleges that “only about 6% of 3 Netflix’s streaming video programming was captioned” and “Netflix’s promise to caption 80% of its 4 library by the end of 2011 is not reflected in its behavior.” Id. ¶ 35, 40. These allegations about the 5 percentage of captioned programming, a number based on the total number of titles in the library, do 6 not contradict Netflix’s claim that the captioned titles represent 30% of viewing, a usage-based 7 number, or that Netflix expected to reach 80% viewing coverage by the end of 2011. 8 In opposition to the motion to dismiss, Cullen argued that regardless of what Hunt meant 9 when he made the statement, a reasonable consumer would understand Hunt’s representation that 10 30% of viewing is captioned to mean that 30% of titles are captioned and would understand 80% 11 veiwing coverage to mean 80% of the titles in Netflix’s library. See Tr. at 25-26, 29, Docket No. 42; 12 Opp’n at 24: 12-19. The SAC, however, does not contain these allegations or any other allegations 13 about the misleading nature of this usage-based measurement and therefore fails to allege facts 14 sufficient to state a plausible claim that Hunt’s February 24, 2011 blog entry is likely to deceive 15 members of the public. 16 17 For the reasons above, Netflix’s motion to dismiss Cullen’s claims under the fraudulent prong of the UCL, the FAL, and the CRLA is GRANTED with leave to amend. 18 2. UCL Claims Based on Unlawful Prong 19 Cullen’s “unlawful” claims under the UCL rely on his other causes of actions. Because 20 Cullen’s other claims fail, his UCL claims premised on “unlawful” acts has no basis and must also 21 fail. See Ingels v. Westwood One Broad. Servs., Inc., 28 Cal. Rptr. 3d 933, 938 (Cal. App. 2005) 22 (“If the [underlying] claim is dismissed, then there is no ‘unlawful’ act upon which to base the 23 24 25 26 27 28 4 Netflix argues that the statement about Hunt’s expectation of reaching 80% viewing coverage is an opinion about future events and not an actionable representation on which a consumer would reasonably rely. In support of this argument, Netflix cites to Neu-Visions Sports v. Soren/McAdam/Bartells, 86 Cal. App. 4th 303, 309-310 (2000), in which the court held that, under a theory of negligent misrepresentation, an “actionable misrepresentation must be made about past or existing facts; statements regarding future events are merely deemed opinions.” Netflix has not cited, and this court has not found, any cases holding that statements about future facts are not actionable under the UCL, FAL, or the CLRA. 12 Case No. 5:11-CV-01199-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1 derivative [UCL] claim.”); Pantoja v. Countrywide Home Loans, Inc., 640 F. Supp. 2d 1177, 2 1190–1191 (N.D. Cal. 2009) (dismissing UCL claim because court dismissed “all . . . predicate 3 violations”). Thus, Netflix’s motion to dismiss Cullen’s claims under the unlawful prong of the UCL 4 is GRANTED with leave to amend. 5 3. 6 An unfair business practice under the UCL is “one that either offends an established public 7 policy or is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.” 8 McDonald v. Coldwell Banker, 543 F.3d 498, 506 (9th Cir. 2008) (omitting internal citations). To 9 test whether a business practice is unfair, the court must weigh the utility of the defendant’s conduct 10 against the gravity of the harm to the alleged victim. Bardin v. Daimlerchrysler Corp., 136 Cal. App. 11 4th 1255, 1268 (2006)(omitting internal citations). 12 UCL Claims Based on the Unfair Prong Cullen’s claims under the unfair prong of the UCL rely partly on allegations about Netflix’s 13 deceptive statements and statutory violations. As discussed above, the SAC does not allege facts 14 sufficient to state a plausible claim that Netflix’s conduct was misleading or otherwise unlawful, 15 thus Netflix’s unfair prong claims are insufficient in that respect. 16 Additionally, Cullen claims Netflix’s failure to caption imposed on hearing-impaired 17 individuals a veritable “deaf tax” because the DVD-by-mail plans that provide sufficient access to 18 video programming were sold at a significant premium to Netflix’s streaming subscription. See SAC 19 ¶¶ 41-49. Cullen alleges this practice is “immoral, unscrupulous, and offends public policy . . . [and] 20 the gravity of Netflix’[s] conduct outweighs any conceivable benefit of such conduct.” Id. ¶ 74. 21 According to the SAC, Cullen must purchase Netflix’s “unlimited 2 DVD” plan to meet his viewing 22 needs. Id. ¶ 46. On November 22, 2010, the difference between the “unlimited 2 DVD” plan and the 23 streaming-only plan was $7 per month. Id. ¶ 41. On July 12, 2011, Netflix changed its plans and 24 provided customers the option of plans with (1) streaming only; (2) DVDs only; (3) or DVDs and 25 streaming. Id. ¶ 47. At the time the SAC was filed, Cullen subscribed to Netflix’s “unlimited 2 26 DVD” and unlimited streaming plan; the difference between this plan and the streaming-only plan 27 was $11.99. Id. ¶¶ 47, 49. Cullen has not alleged facts about any potential utility of charging a 28 13 Case No. 5:11-CV-01199-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS SECOND AMENDED COMPLAINT

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