Case 3:20-cv-04011-VC Document 138 Filed 11/28/22 Page 1 of 5
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`KIMBERLY CARLESTE NEWMAN, et
`al.,
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`Plaintiffs,
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`v.
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`GOOGLE LLC, et al.,
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`Defendants.
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`Case No. 20-cv-04011-VC
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`ORDER GRANTING MOTION TO
`DISMISS
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`Re: Dkt. No. 123
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`The motion to dismiss is granted. The complaint does not adequately allege that
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`YouTube’s algorithm treats the plaintiffs differently based on their personal characteristics.
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`Thus, even assuming the existence of an enforceable promise to treat all users equally, the
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`plaintiffs fail to state a breach-of-contract claim.
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`As far as the Court can tell, the plaintiffs identify three allegedly actionable promises.
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`The first, based on statements made by YouTube at congressional hearings, is a nonstarter. The
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`second consists of YouTube’s Mission Statement. The Ninth Circuit considered that Mission
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`Statement in the context of a Lanham Act claim and concluded that it is “classic, non-actionable
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`opinion[] or puffery.” Prager University v. Google LLC, 951 F.3d 991, 999–1000 (9th Cir.
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`2020).
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`That leaves one sentence in the “Overview” section of YouTube’s Community
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`Guidelines, which reads: “We enforce these Community Guidelines using a combination of
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`human reviewers and machine learning, and apply them to everyone equally—regardless of the
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`subject or the creator’s background, political viewpoint, position, or affiliation.” At the motion
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`Case 3:20-cv-04011-VC Document 138 Filed 11/28/22 Page 2 of 5
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`hearing, YouTube seemed to abandon any argument that this assertion is not an enforceable
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`promise, at least for purposes of the motion to dismiss.
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`The plaintiffs allege that YouTube’s algorithm violates the promise in the Community
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`Guidelines because it considers the plaintiffs’ individual characteristics when deciding whether
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`to remove, restrict, or monetize content. But the complaint does not identify the characteristics
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`that the algorithm has allegedly (and wrongfully) considered when making those decisions. More
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`importantly, the complaint does not adequately allege that the plaintiffs have been treated
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`differently based on those characteristics. It may well be that the algorithm removes or restricts
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`content in ways that are inconsistent with the Terms of Service or other rules. But if swaths of
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`users with varied characteristics experience similarly erroneous decisions with similar regularity,
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`then the plaintiffs are not being treated differently.
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`At the hearing, plaintiffs’ counsel pointed to the portions of the complaint that he
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`believes adequately allege differential treatment.1 Counsel first pointed to a chart with video
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`links that purportedly demonstrates how similar content is treated differently depending on the
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`characteristics of the user who posts it. But none of the hyperlinks in the chart are functional, so
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`this portion of the complaint is useless.
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`Counsel next highlighted the allegations in paragraphs 99, 111–15, and 136–52. These
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`allegations only exemplify the complaint’s deficiencies. Paragraphs 111–15 detail how “more
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`than half” or “nearly all” of various plaintiffs’ videos have been wrongfully restricted under the
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`Terms of Service. These paragraphs may well allege that some of the plaintiffs’ content has been
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`removed or restricted when it should not have been according to YouTube’s terms and rules. But
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`1 At times, counsel seemed to suggest that the plaintiffs do not need to plead differential
`treatment. On his view, merely pleading that the algorithm considers the plaintiffs’ personal
`characteristics in making certain decisions, even if such consideration does not result in
`differential treatment, should suffice. But the alleged contractual promise is to treat all users
`“equally—regardless of the subject or the creator’s background, political viewpoint, position, or
`affiliation.” (Emphasis added.) It is not a promise never to consider users’ personal
`characteristics for any reason. And one can imagine legitimate reasons to do so that would not
`violate the alleged promise in the Community Guidelines. Indeed, the algorithm could
`conceivably take users’ individual characteristics into account to ensure and promote equal and
`non-discriminatory treatment.
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`Case 3:20-cv-04011-VC Document 138 Filed 11/28/22 Page 3 of 5
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`they say nothing of whether similar videos posted by users with different characteristics have
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`been treated any better.
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`Paragraphs 99 and 136–52 fill this gap to a degree. There, the plaintiffs allege that certain
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`“Preferred Creators” have been allowed to post “full copies” of videos that were restricted when
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`posted by one of the plaintiffs, and that they are allowed to post videos that would seem to
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`violate the Terms of Service. But these paragraphs do not allege the characteristics of the
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`preferred creators. Are the preferred creators white and treated better than users of color who
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`post similar content? Are they straight and treated better than gay users who post similar
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`content? Specificity of this sort is important: If the preferred creators share the plaintiffs’
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`characteristics, then the fact that their content is treated more favorably does not suggest
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`differential treatment based on those characteristics.
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`Counsel then pointed the Court to paragraphs 101–04, which come closest to the mark.
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`There, the plaintiffs allege that during a 2017 conference, YouTube admitted that its “algorithms
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`and computerized filtering tools discriminate or ‘target’ users like Plaintiffs . . . who identify
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`with marginalized groups when making decisions regarding which videos to monetize . . . [or
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`restrict].” The plaintiffs also recount a phone call in which YouTube allegedly explained to a
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`user, who identifies as gay, that the algorithm deemed the user’s video ineligible for advertising
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`because it concluded that content created by a gay user involved the “gay thing” and thus
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`constituted “shocking” and “sexually explicit” content, even though the video was a “holiday
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`special” that contained no such content.
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`These are by far the strongest allegations in the complaint. The latter, in particular,
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`provides the sort of specific factual content that is largely absent from the rest of the complaint:
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`It identifies a specific characteristic of the user and plausibly alleges differential treatment based
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`on that characteristic. But this one allegation—limited to a single advertising decision as to one
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`unnamed user’s video—cannot singlehandedly make plausible the broad sweep of allegations of
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`differential treatment as to removal, restrictions, and monetization that the 70-page complaint
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`raises against YouTube. The breach-of-contract claim is therefore dismissed with leave to
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`Case 3:20-cv-04011-VC Document 138 Filed 11/28/22 Page 4 of 5
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`amend.
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`The claims for conversion, rescission, and breach of the implied covenant of good faith
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`and fair dealing all rise and fall with the breach-of-contract claim. The replevin claim, in turn,
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`rises and falls with the conversion claim. Thus, those four claims are also dismissed with leave to
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`amend. With respect to the accounting claim, the plaintiffs have failed to address the concerns
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`addressed in the prior ruling, but in an abundance of caution, dismissal of this claim is also with
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`leave to amend.
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`Lastly, the UCL claim is dismissed with leave to amend. The unlawful practice
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`allegations, which were previously predicated on the section 1981 and Unruh Act claims, now
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`appear to be predicated on the breach-of-contract claim, which has been dismissed. As to the
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`fraudulent practices claim, the new allegation that “Plaintiffs relied on more than a decade of
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`Defendants’ promises of access to YouTube as a public forum, where the same content based
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`TOS Rules apply to everyone and all content” does not come close to pleading reliance with the
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`particularity required by Rule 9(b). Moreover, that claim is based in part on YouTube’s Mission
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`Statement, which the Ninth Circuit has already concluded is “classic, non-actionable opinion[] or
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`puffery.” Prager, 951 F.3d at 1000. As to the unfair practices claim based on anti-competitive
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`conduct, the new complaint adds only a few references to YouTube’s market share, which do not
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`suffice to plausibly plead a competition-based unfairness claim.
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`This will be the plaintiffs’ final opportunity to amend. The plaintiffs are advised that their
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`Fourth Amended Class Action Complaint—while an improvement—remained far too long,
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`repetitive, and difficult to comprehend. The plaintiffs will again have up to 70 pages, but they
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`should endeavor to shorten and streamline the complaint as much as possible, eliminating the
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`many superfluous paragraphs that serve only to distract and confuse.
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`The amended complaint is due 21 days from the date of this order, and YouTube’s
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`response will be due 21 days after the filing of the amended complaint.
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`IT IS SO ORDERED.
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`Case 3:20-cv-04011-VC Document 138 Filed 11/28/22 Page 5 of 5
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`Dated: November 28, 2022
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`______________________________________
`VINCE CHHABRIA
`United States District Judge
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