Case 4:21-cv-07250-HSG Document 68 Filed 05/13/22 Page 1 of 17
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`DIAMOND McCARTHY LLP
`Allan B. Diamond (admitted pro hac vice)
`adiamond@diamondmccarthy.com
`909 Fannin Street, 37th Floor
`Houston, Texas 77010
`Tel: 713.333.5100 | Fax: 713.333.5199
`
`Christopher D. Sullivan (SBN 148083)
`csullivan@diamondmccarthy.com
`Quentin A. Roberts (SBN 306687)
`quentin.roberts@diamondmccarthy.com
`150 California Street, Suite 2200
`San Francisco, California 94111
`Tel: 415.692.5200 | Fax: 415.263.9200
`
`CADWALADER, WICKERSHAM & TAFT LLP
`Nicholas A. Gravante, Jr. (admitted pro hac vice)
`nicholas.gravante@cwt.com
`Philip J. Iovieno (admitted pro hac vice)
`philip.lovieno@cwt.com
`Jack G. Stern (admitted pro hac vice)
`jack.stern@cwt.com
`200 Liberty Street
`New York, NY 10281
`Tel: 212.504.6000 | Fax: 212.504.6666
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`Attorneys for Plaintiff Unlockd Media, Inc. Liquidation Trust
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`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA – OAKLAND DIVISION
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`UNLOCKD MEDIA, INC.
`LIQUIDATION TRUST, by and
`through its duly appointed trustee,
`Peter S. Kaufman,
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`Plaintiff,
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`v.
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`GOOGLE LLC; GOOGLE IRELAND
`LIMITED; GOOGLE COMMERCE
`LIMITED; and GOOGLE ASIA PACIFIC
`PTE. LIMITED.,
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`Defendants.
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`Case No. 4:21-cv-07250-HSG
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`PLAINTIFF’S OPPOSITION TO
`DEFENDANTS’ REQUEST FOR
`CONSIDERATION OF DOCUMENTS
`INCORPORATED BY REFERENCE
`AND REQUEST FOR JUDICIAL NOTICE
`IN SUPPORT OF NOTICE
`OF MOTION AND MOTION TO
`DISMISS FIRST AMENDED
`COMPLAINT
`
`Hon. Haywood S. Gilliam, Jr.
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`PLAINTIFF’S OPP. TO REQ. FOR
`CONSIDERATION AND REQ. FOR JUDICIAL NOTICE
`(CASE NO. 4:21-CV-07250-HSG)
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`

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`Case 4:21-cv-07250-HSG Document 68 Filed 05/13/22 Page 2 of 17
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`TABLE OF CONTENTS
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`INTRODUCTION .................................................................................................................... 1
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`I.
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`II. ARGUMENT ............................................................................................................................ 2
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`A.
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`In The Ninth Circuit, Incorporation By Reference And Judicial Notice May Not Be Used
`To Introduce Disputed Factual Assertions On A Motion To Dismiss .................................. 2
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`B. Google Improperly Invokes Incorporation By Reference To Present Disputed Factual
`Assertions Concerning Its Lack Of A Legitimate Business Justification For Terminating
`Unlockd ................................................................................................................................. 4
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`1. The Unlockd Service and Business Model ..................................................................... 7
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`2. Google’s Exclusion of Unlockd from the Digital Advertising Market .......................... 7
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`3. Interpretation of The Google Policies and Their Application to Unlockd ..................... 8
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`C. Google Improperly Seeks Judicial Notice Of Foreign Exchange Rates In Order To
`Generate A Factual Dispute Concerning The Dangerous Probability Of Google
`Achieving Monopoly Power In The Digital Advertising Market ....................................... 12
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`III. CONCLUSION .................................................................................................................... 14
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`PLAINTIFF’S OPP. TO REQ. FOR
`CONSIDERATION AND REQ. FOR JUDICIAL NOTICE
`(CASE NO. 4:21-CV-07250-HSG)
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`Case 4:21-cv-07250-HSG Document 68 Filed 05/13/22 Page 3 of 17
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`Cases
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`TABLE OF AUTHORITIES
`
`Blix Inc. v. Apple, Inc.,
`2020 WL 7027494 (D. Del. Nov. 30, 2020) ............................................................................... 14
`
`In re ECOtality, Inc. Sec. Litig.,
`No. 13-03791, 2014 WL 4634280 (N.D. Cal. Sept. 16, 2014) ..................................................... 3
`
`In re Google Assistant Priv. Litig.,
`457 F. Supp. 3d 797 (N.D. Cal. 2020) .......................................................................................... 4
`
`In re Juul Labs,
`No. 20-CV-02345-WHO, 2021 WL 3675208 (N.D. Cal. Aug. 19, 2021) ................................... 4
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`Khoja v. Orexigen Therapeutics, Inc.,
`899 F.3d 988 (9th Cir. 2018) ................................................................................................ 2, 3, 4
`
`McCoy v. Alphabet,
`2021 WL 405816 (N.D. Cal. Feb. 2, 2021) .................................................................................. 4
`
`Pacific Steel Grp. v. Com. Metals Co.,
`No. 20-CV-07683-HSG, 2021 WL 2037961 (N.D. Cal. May 21, 2021)...................................... 3
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`PLS.Com, LLC v. Nat’l Ass’n of Realtors, -- F.4th --,
`2022 WL 1218792 (9th Cir. Apr. 26, 2022) ................................................................................. 2
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`Sgro v. Danone Waters of N. Am., Inc.,
`532 F.3d 940 (9th Cir. 2008) ........................................................................................................ 2
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`PLAINTIFF’S OPP. TO REQ. FOR
`CONSIDERATION AND REQ. FOR JUDICIAL NOTICE
`(CASE NO. 4:21-CV-07250-HSG)
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`Case 4:21-cv-07250-HSG Document 68 Filed 05/13/22 Page 4 of 17
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`I.
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`INTRODUCTION
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`Plaintiff Unlockd opposes Google’s attempt to use a request for incorporation by reference
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`and judicial notice as a basis for advancing disputable factual assertions in support of its motion to
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`dismiss. Google’s request is an improper attempt to make purely factual assertions in response to
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`allegations that (1) Google had no legitimate pro-competitive justification for its termination of
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`Unlockd, and (2) there has been a dangerous probability of Google achieving monopoly power in the
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`Digital Advertising Market. The Court should deny Google’s request to the extent that Google
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`employs it as a basis to advance disputable factual assertions in support of its motion to dismiss.
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`The First Amended Complaint (“Complaint”) alleges that there was no legitimate business
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`justification for Google’s termination of Unlockd. Complaint ¶¶ 77-81, 96-135, 140-143, 175
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`(summarized below). The Complaint also alleges that Google’s exclusionary acts toward Unlockd and
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`other anti-competitive conduct created a dangerous probability that Google will monopolize the
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`Digital Advertising Market. Complaint ¶¶ 159-170, 42-44, 47, 49 (summarized below). Rather than
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`address the adequacy of those detailed allegations as a matter of law, Google seeks to challenge the
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`truth of those allegations based on its own factual assertions.
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`Plaintiff has a number of concerns that it believes the Court should consider in evaluating
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`Google’s request. First, the material referenced in the Complaint concerning communications between
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`Google and Unlockd is not intended as a complete factual record of Google’s unwarranted termination
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`of Unlockd. The matters alleged in the Complaint ultimately should be decided on a full factual record,
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`including evidence of all of the parties’ communications and dealings and Google’s own internal
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`documents concerning its conduct. Second, Google’s motion or request appears to be part of an
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`improper attempt to present disputed factual assertions as a basis for contesting the allegations that
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`there was no legitimate business justification for Google’s termination of Unlockd. Third, Google’s
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`request for judicial notice of foreign exchange rates essentially seeks permission to make disputed
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`PLAINTIFF’S OPP. TO REQ. FOR
`CONSIDERATION AND REQ. FOR JUDICIAL NOTICE
`(CASE NO. 4:21-CV-07250-HSG)
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`factual assertions concerning the dangerous probability of Google monopolizing the Digital
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`Advertising Market. Unlockd opposes those efforts by Google because they violate the principles
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`established by the Ninth Circuit bearing on the proper scope and use of incorporation by reference and
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`judicial notice on a motion to dismiss. Google’s approach also disregards the basic principle that, in
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`assessing the adequacy of a pleading, the Court should assume the truth of the allegations and draw
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`all reasonable inferences in favor of the plaintiff. PLS.Com, LLC v. Nat’l Ass’n of Realtors, -- F.4th -
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`-, 2022 WL 1218792, at *2 n.1 (9th Cir. Apr. 26, 2022).
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`II.
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`ARGUMENT
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`A.
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`In The Ninth Circuit, Incorporation By Reference And Judicial Notice May Not
`Be Used To Introduce Disputed Factual Assertions On A Motion To Dismiss
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`Under established Ninth Circuit precedent, it is improper for a defendant to invoke
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`incorporation by reference and judicial notice in order to advance disputed factual assertions. In Khoja
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`v. Orexigen Therapeutics, Inc., 899 F.3d 988 (9th Cir. 2018), the Ninth Circuit stressed that “it is
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`improper to assume the truth of an incorporated document if such assumptions only serve to dispute
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`facts stated in a well-pleaded complaint. This admonition is, of course, consistent with the prohibition
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`against resolving factual disputes at the pleading stage.” Id. at 1003. The Ninth Circuit noted, for
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`example, that “It is improper to judicially notice a transcript when the substance of the transcript ‘is
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`subject to varying interpretations, and there is a reasonable dispute as to what the [transcript]
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`establishes.’” Id. at 1000. As another example, the Ninth Circuit has held that, while it is proper to
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`consider a disability benefits plan referenced in a complaint, it would not be proper “to accept truth of
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`the plan’s contents where the parties disputed whether defendant actually implemented the plan
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`according to its terms.” Id. at 1003 (citing Sgro v. Danone Waters of N. Am., Inc., 532 F.3d 940, 942,
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`n.1 (9th Cir. 2008). In Khoja, the Ninth Circuit held that the defendant, in seeking incorporation by
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`PLAINTIFF’S OPP. TO REQ. FOR
`CONSIDERATION AND REQ. FOR JUDICIAL NOTICE
`(CASE NO. 4:21-CV-07250-HSG)
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`Case 4:21-cv-07250-HSG Document 68 Filed 05/13/22 Page 6 of 17
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`reference, “improperly asked the district court to engage in fact-finding in the course of deciding the
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`sufficiency of the Complaint.” Id. at 1006. That same concern applies here.
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`As this Court has noted, quoting Khoja, even if a document is incorporated by reference or
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`is subject to judicial notice, that “does not mean that every assertion of fact within that document is
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`judicially noticeable for truth.” Pacific Steel Grp. v. Com. Metals Co., No. 20-CV-07683-HSG, 2021
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`WL 2037961, at *3 (N.D. Cal. May 21, 2021) (quoting Khoja, 899 F.3d at 999). That is especially so
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`where, as here, the substance of the documents may be subject to varying interpretations, and there is
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`a reasonable dispute as to what truth the documents establish. As the Ninth Circuit emphasized in
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`Khoja, the danger of incorporation by reference is that “Once documents are incorporated into a
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`complaint, a district court faces competing, often inconsistent versions of the facts. Although plaintiffs
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`are ordinarily afforded the benefit of every favorable inference, the incorporation-by-reference
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`doctrine can allow defendants to exploit that benefit for themselves.” Khoja, 899 F.3d at 1014. The
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`Ninth Circuit further explained:
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`“Although incorporation by reference generally permits courts to accept the truth of
`matters asserted in incorporated documents, we reiterate that it is improper to do so
`only to resolve factual disputes against the plaintiff’s well-pled allegations in the
`complaint.
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`incorporation-by-reference doctrine does not override
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`fundamental rule that the court must interpret the allegations and factual disputes in
`favor of the plaintiff at the pleading stage.”
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`Google essentially asks this court to assume the truth of its own assertions and own
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`interpretations of documents referenced in the Complaint, including communications in which Google
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`made assertions that Unlockd contests. To assume the truth of Google’s assertions and interpretations
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`would mean assuming the truth of Google’s disputed factual positions. That is not proper at the
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`pleading stage. Khoja, 899 F.3d at 1015 (citing In re ECOtality, Inc. Sec. Litig., No. 13-03791, 2014
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`WL 4634280, at *3 (N.D. Cal. Sept. 16, 2014).
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`PLAINTIFF’S OPP. TO REQ. FOR
`CONSIDERATION AND REQ. FOR JUDICIAL NOTICE
`(CASE NO. 4:21-CV-07250-HSG)
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`Case 4:21-cv-07250-HSG Document 68 Filed 05/13/22 Page 7 of 17
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`Other decisions by courts in this district confirm these principles. In In re Juul Labs, No.
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`20-CV-02345-WHO, 2021 WL 3675208, at *15 (N.D. Cal. Aug. 19, 2021), the defendant argued that
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`a Wells Fargo report referenced in the complaint undermined the plaintiff’s antitrust claim by showing
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`price and market share declines. The plaintiffs argued that the elements of the report relied upon by
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`defendants required context and explanation and that fact discovery and expert testimony would be
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`needed to address the pricing and market share issues adequately. Id. at *16. The court held that the
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`pricing and market share issues were subject to dispute and that “Defendant’s challenges are better
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`determined on a full record.” Id. As to certain regulatory publications, the court took judicial notice
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`of “the fact that they were issued and the topics they covered” but did “not take judicial notice of the
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`disputed facts regarding the impact those pronouncements had on any party.” Id. at *24.
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`Similarly, in In re Google Assistant Priv. Litig., 457 F. Supp. 3d 797 (N.D. Cal. 2020), the
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`court declined to draw factual conclusions concerning the interpretation and application of Google’s
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`Terms of Service and Privacy Policy, which the complaint referenced. Quoting Khoja, the court
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`concluded: “Because all inferences must still be drawn in the nonmoving party’s favor, however, ‘it
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`is improper to assume the truth of an incorporated document if such assumptions only serve to dispute
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`facts stated in a well-pleaded complaint.’”
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`And in McCoy v. Alphabet, 2021 WL 405816 (N.D. Cal. Feb. 2, 2021), the court took judicial
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`notice of a various Google publications, policies and statements but not for the truth of statements
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`within the judicially noticed documents. Id. at *3.
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`B.
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`Google Improperly Invokes Incorporation By Reference To Present Disputed
`Factual Assertions Concerning Its Lack Of A Legitimate Business Justification
`For Terminating Unlockd
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`As a threshold matter, while the Complaint alleges communications and disagreements
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`concerning the application of Google policies to Unlockd, it does not expressly incorporate that
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`material by reference. The Unlockd Complaint does not incorporate by reference documents in the
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`PLAINTIFF’S OPP. TO REQ. FOR
`CONSIDERATION AND REQ. FOR JUDICIAL NOTICE
`(CASE NO. 4:21-CV-07250-HSG)
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`Case 4:21-cv-07250-HSG Document 68 Filed 05/13/22 Page 8 of 17
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`way one would see, for example, in a landlord’s action against a tenant that clearly incorporates by
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`reference the lease. As the Complaint makes clear, references to communications from Google, for
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`example, are not in any way a concession that Google’s statements were true or undisputed.
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`The factual assertions that Google seeks to introduce bear on the interpretation of Google’s
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`policies and the application of those policies to the Unlockd App. The Complaint plausibly and in
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`great detail alleges that Google extinguished Unlockd on pretextual grounds (for no legitimate
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`business or pro-competitive reason) and that Google’s actions forced Unlockd into bankruptcy:
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`¶¶ 77-80, 131: describing how Google confirmed Unlockd’s compliance with
`Google’s policies in June 2017 and more specifically describing a June 2017 meeting
`between Google and Unlockd during which Unlockd explained how its apps worked,
`emphasized that users would receive ads only if they opted in, and that users
`understand the value exchange that occurs on the platform, and that Google’s
`representatives were satisfied with Unlockd’s explanations and said they did not see
`any problems with Unlockd’s business model, representing to Unlockd that its apps
`did not violate Google policies and classifying Unlockd as a permissible app.
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`¶¶ 79-80: describing specifically how Google’s initial enthusiasm about Unlockd’s
`product offerings led Google to ask Unlockd to consider using Google’s ad exchange,
`then called AdX, now called Google Ad Manager, which is a selective, invitation-only
`intermediation service, and how, in July 2017, Google not only confirmed Unlockd’s
`compliance with Google policies, but also further actively sought to persuade Unlockd
`to use Google’s premium intermediation service, AdX, which (unlike AdMob) is not
`widely available to all app developers, and how, the following month, Unlockd then
`signed a deal with Google for the use of AdX, before later asserting pretextual grounds
`for eliminating Unlockd from the market.
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`¶ 81: explaining that Unlockd began using the Play Store platform in October 2015
`and the AdMob platform in November 2016.
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`¶¶ 96-112: describing how, in September and October 2017, Google flip-flopped on
`the same policy violations that Google relies upon in support of its motion to dismiss,
`ultimately notifying Unlockd that it was in compliance.
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`¶¶ 113-118: explaining how Unlockd grew its business throughout 2017, including in
`increasing the key metric of its average revenue per user or ARPU, and the public
`accolades and attention Unlockd earned in the press, including attention to its past and
`anticipated future capital raising efforts.
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`¶¶ 119-131: describing how, in 2018, after Unlockd’s prospects had gained further
`attention, Google reversed course and terminated Unlockd.
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`PLAINTIFF’S OPP. TO REQ. FOR
`CONSIDERATION AND REQ. FOR JUDICIAL NOTICE
`(CASE NO. 4:21-CV-07250-HSG)
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`Case 4:21-cv-07250-HSG Document 68 Filed 05/13/22 Page 9 of 17
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`¶¶ 126-131: explaining that the Unlockd apps in fact always complied with both the
`letter and spirit of Google’s policies.
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`¶¶ 132-134, 175: describing Google’s hypocrisy in allowing on its platforms certain
`apps with similar features that were less innovative and threatening than Unlockd.
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`¶ 135: explaining that Google’s CEO, Sundar Pichai, was adamant in his
`determination to shut down Unlockd.
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`¶¶ 136-143: explaining that Google’s conduct extinguished Unlockd as a nascent
`competitor, forcing Unlockd into bankruptcy.
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`¶¶ 140-141: explaining that Unlockd pursued litigation only as a last resort in order to
`survive—far from the “pressure strategy” Google claims—and that, while Unlockd
`was successful in obtaining preliminary injunctions in Australia and the United
`Kingdom, the injunctions did not extend to the United States and Unlockd did not have
`the capacity at that time to fund further litigation in the United States.
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`Unlockd believes that Google’s motion to dismiss should be resolved based on the detailed
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`allegations of the Complaint. Google’s motion seeking to introduce material beyond the allegations
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`is an attempt to avoid discovery and scrutiny concerning the application of the Google policies to the
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`Unlockd App. Because Google seeks to introduce selected documents in order to contest well pled
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`and plausible allegations concerning how Google improperly invoked its policies as a pretext to
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`extinguish Unlockd, Unlockd believes it is important to explain to the Court the scope of those factual
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`disputes.
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`Unlockd does not seek a resolution or adjudication of those factual disputes in the context of
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`Google’s motion to dismiss, but rather believes these matters should be the subject of a full factual
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`record developed after discovery before they are resolved by a jury. Google’s factual assertions
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`concerning its conduct raise questions of fact not appropriate for resolution at the motion to dismiss
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`stage.
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`Accordingly, we note the following points purely for purposes of explanation and to provide
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`the Court with context and to underscore how improper it is for Google to seek a resolution of these
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`issues in the context of a motion to dismiss. As the Court will see, the application of Google’s policies
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`to the Unlockd App involves understanding a variety of technical terms and understanding how the
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`PLAINTIFF’S OPP. TO REQ. FOR
`CONSIDERATION AND REQ. FOR JUDICIAL NOTICE
`(CASE NO. 4:21-CV-07250-HSG)
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`Case 4:21-cv-07250-HSG Document 68 Filed 05/13/22 Page 10 of 17
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`Unlockd App actually worked. Those matters cannot be resolved based on reading a selection of
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`documents relating to the technical issues or reading Google’s policies in isolation. Rather, these are
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`matters that should be resolved on a complete factual record, including Google’s internal documents,
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`and with the benefit of testimony explaining certain technical matters.
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`1.
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`The Unlockd Service and Business Model
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`As alleged in detail in the Complaint, Unlockd offered an innovative service that
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`compensated users for their time and attention. Complaint ¶¶ 4-5, 7-8, 51-76, 82-95 and 113-118.
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`Unlockd’s users signed up for the service and identified categories of interest to them, and then
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`Unlockd’s App presented them with relevant ads, content or offers when they unlocked their phones
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`or use partnered services. Id. Unlockd compensated users by allowing them to collect points to redeem
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`rewards such as mobile credit, mobile data, premium entertainment content or loyalty points. Id. As
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`further alleged, advertisers and Unlockd’s partners also benefitted from Unlockd’s service. Id. (The
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`“Unlockd App” refers to both the basic Unlockd App and similar apps developed for Unlockd’s
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`partners.)
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`2.
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`Google’s Exclusion of Unlockd from the Digital Advertising Market
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`On March 2, 2018, Emmanuel Monnoyeur of Google sent a letter informing Unlockd that
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`Google would no longer allow Unlockd to use Google AdMob services after March 31, 2018. He
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`asserted that Unlockd’s App violated Google’s AdMob & AdSense policies (“Policies”). He also
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`stated that Google Play’s policy team had found that the Unlockd App violated the “Google Play
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`Developer Policy regarding Interfering with Apps, Third-party Ads, or Device Functionality.” Mr.
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`Monnoyeur asserted that these violations disqualified Unlockd despite his acknowledgement that
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`Google had previously evaluated the Unlockd App and approved Unlockd’s access to both AdMob
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`and Play Store. Most notably, Mr. Monnoyeur ends his letter by stating defensively that, “Neither the
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`account creation process nor Unlockd’s successful appeal of its suspension in October 2017 amounted
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`7
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`PLAINTIFF’S OPP. TO REQ. FOR
`CONSIDERATION AND REQ. FOR JUDICIAL NOTICE
`(CASE NO. 4:21-CV-07250-HSG)
`
`
`

`

`Case 4:21-cv-07250-HSG Document 68 Filed 05/13/22 Page 11 of 17
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`to a representation that the Apps comply with Google’s Policies.” Plainly, Google was very much
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`aware of its prior approvals when Mr. Monnoyeur was instructed to shut down this nascent competitor.
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`Significantly, beyond the prior AdMob approvals, Google actively sought Unlockd’s
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`participation in Google’s ad exchange, then called AdX, now called Google Ad Manager, which is a
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`selective, invitation-only intermediation service. Google signed an agreement with Unlockd for the
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`use of AdX, before later asserting pretextual grounds for eliminating Unlockd from the market.
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`3.
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`Interpretation of the Google Policies and their Application to Unlockd
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`
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`Google asserted that the Unlockd App violated three Google AdMob policies intended to
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`protect users and advertisers: Encouraging Clicks, Valuable Inventory, and Disallowed Interstitial
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`Implementation. Google further claimed that the Unlockd App violated the Google Play Developer
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`Policy on ads being served only within the app environment: Interfering with Apps, Third-party Ads,
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`a. AdMob Policy on Encouraging Clicks
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`Google’s Policy. Under this Policy, publishers may not ask others to click their ads or to
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`use deceptive implementation methods to obtain clicks. That includes offering compensation to users
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`for viewing ads or performing searches. Google asserted that Unlockd violated this Policy because
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`Unlockd compensated users for viewing ads each time they unlock their phones and presented Google
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`ads in a way that may result in invalid impressions or clicks (invalid traffic). Invalid traffic includes
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`invalid clicks (the user selecting the ad) and invalid impressions (when an ad has downloaded to the
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`user’s device). Google defines invalid traffic as including clicks or impressions generated by
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`publishers clicking their own live ads, repeated ad clicks or impressions generated by one or more
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`users, publishers encouraging clicks on their ads (for example, by language encouraging users to click
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`on ads and ad implementations that may cause a high volume of accidental clicks), automated clicking
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`tools or traffic sources, robots, or other deceptive software (malware). Clicks on Google ads must
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`8
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`PLAINTIFF’S OPP. TO REQ. FOR
`CONSIDERATION AND REQ. FOR JUDICIAL NOTICE
`(CASE NO. 4:21-CV-07250-HSG)
`
`
`

`

`Case 4:21-cv-07250-HSG Document 68 Filed 05/13/22 Page 12 of 17
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`result from genuine user interest, and any method that artificially generates clicks or impressions is
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`prohibited.
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`Unlockd’s Compliance. To start, the Google AdMob monetization and ads policy
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`specifically allows apps that have the exclusive purpose of commercializing the lock screen.
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`Google’s own Monetization and Ads policies allow for an exception for apps that have the exclusive
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`purpose of commercializing the lock screen: “Unless the exclusive purpose of the app is that of a
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`lockscreen, apps may not introduce ads or features that monetize the locked display of a device.”
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`There is no basis to treat commercializing the lock screen and commercializing the unlock event
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`differently. Even if there was no such exception, Unlockd does not create a risk of invalid traffic as
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`Google asserts. The Unlockd business model is based on a consumer deciding to register with
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`Unlockd to obtain consideration for receipt of agreed categories of advertisements when unlocking
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`an Android phone. A consumer is not paid by advertisers for viewing their individual ads. When a
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`consumer opts in to the Unlockd App, the consumer remains free to choose whether to click through
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`to the ad or immediately exit the ad and enter their device. Users are rewarded for agreeing to receive
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`ads, not for engagement with the ads. Because a user is not paid for viewing individual ads, use of
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`the Unlockd App does not result in invalid traffic. To avoid accidental clicks, Unlockd gives users
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`multiple ways to dismiss ads without engaging: they can either exit by pressing a prevalent “X” button
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`on the right side of the screen or simply push their home screen button at the bottom of device. The
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`way Unlockd functions is similar to how a standard publisher allows access to content after the user
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`views an interstitial ad (a full screen ad that covers the interface of the publisher’s host app). It is
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`also similar to how YouTube (a Google product) and other apps present ads that the user can dismiss
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`without generating invalid clicks.
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`9
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`PLAINTIFF’S OPP. TO REQ. FOR
`CONSIDERATION AND REQ. FOR JUDICIAL NOTICE
`(CASE NO. 4:21-CV-07250-HSG)
`
`
`

`

`Case 4:21-cv-07250-HSG Document 68 Filed 05/13/22 Page 13 of 17
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`b. AdMob Policy on Valuable Inventory
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`Google’s Policy. Advertising and other paid promotional material added to pages should
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`not exceed the content. The content provided should add value and be the focal point for users visiting
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`the page. Google may limit or disable ad serving on pages that it deems to have little to no value or
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`that present excessive advertising.
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`Unlockd’s Compliance. Once again, the Google AdMob monetization and ads policy
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`specifically allows apps that have the exclusive purpose of commercializing the lock screen, and there
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`is no basis to treat commercializing the lock screen and commercializing the unlock event differently.
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`Even if there were no such exception, application of the valuable inventory policy to Unlockd does
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`not make sense given how Unlockd operates. Users opt in to view ads, offers, deals, and advertising
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`content on unlocking their device and receive a reward for doing so. Users select those categories of
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`ads that are of interest to them and that is made very clear to users during the registration process and
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`through the Unlockd Terms of Use. Users may view or reject the ads that appear when they unlock
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`their device. Users may also stop using the Unlockd App altogether at any time if they wish. Unlike
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`most apps, in which users do not expressly consent to receive ads with the app content, users of the
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`Unlockd App download the app and opt in to receive advertising as the “focal point” of the app. Users
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`do not expect other content on the unlock event. The presentation of ads in accordance with a user’s
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`decision to register with Unlockd is precisely the service that they have chosen, and they can decide
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`to view or reject the ad that appears when they unlock their device as they wish. This means that the
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`user experience is not in any way negatively impacted by Unlockd displaying more ads than content
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`to users who have opted into that specific service. That is precisely the service that they have chosen
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`to receive. It makes no sense for Google to apply the valuable inventory policy to the Unlockd
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`business model, especially because Google’s own Monetization and Ads policies provide an exception
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`for apps that have the exclusive purpose of commercializing the lock screen.
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`10
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`PLAINTIFF’S OPP. TO REQ. FOR
`CONSIDERATION AND REQ. FOR JUDICIAL NOTICE
`(CASE NO. 4:21-CV-07250-HSG)
`
`
`

`

`Case 4:21-cv-07250-HSG Document 68 Filed 05/13/22 Page 14 of 17
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`c. AdMob Policy on Disallowed Interstitial Implementation
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`Google’s Policy. Interstitial ads (full-screen ads that cover the interface of their host app)
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`cannot be placed either on app load or when exiting apps. Interstitials should only be placed in
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`between pages of app content. Ads should not be placed in applications that are running in the
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`background of the device or outside of the app environment. Google asserted that the Unlockd App
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`operates in such a way that each time the user unlocks their telephone screen it triggers an ad outside
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`of the app.
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`Unlockd’s Compliance. For users who have opted to receive the Unlockd service, the “app
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`environment” for Unlockd is the unlock event. Users are clearly advised of that in the Unlockd Terms
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`of Use and agree to receiving ads at that specific point. The Unlockd App runs as a service on the
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`device and users know that they will see displayed events when they unlock their d