Case 5:19-cv-04749-VKD Document 107 Filed 09/30/22 Page 1 of 35
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`DIVINO GROUP LLC, 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. 19-cv-04749-VKD
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`ORDER GRANTING DEFENDANTS’
`MOTION TO DISMISS THIRD
`AMENDED COMPLAINT WITH
`LIMITED LEAVE TO AMEND
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`Re: Dkt. Nos. 77, 102
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`Defendants Google LLC (“Google”) and YouTube LLC (“YouTube”) move to dismiss
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`plaintiffs’ third amended class action complaint. Plaintiffs oppose the motion. Upon
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`consideration of the moving and responding papers, including the notices and memoranda
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`submitted by the United States and the parties’ responses thereto, as well as the oral arguments of
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`counsel, the Court grants defendants’ motion to dismiss, with leave to amend only as to plaintiffs’
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`claim for breach of the implied covenant of good faith and fair dealing.1
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`I.
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`BACKGROUND
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`Plaintiffs Divino Group LLC, Chris Knight, Celso Dulay, Cameron Stiehl, BriaAndChrissy
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`LLC d/b/a “BriaAndChrissy,” Bria Kam, Chrissy Chambers, Chase Ross, Brett Somers, Lindsay
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`Amer, Stephanie Frosch, Sal Cinquemani (also known as “SalBardo”), Tamara (Sheri) Johnson,
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`and Greg Scarnici are Lesbian, Gay, Bisexual, Transgender, Transsexual or Queer (“LGBTQ+”)
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`content creators, viewers, users, and consumers who filed this putative class action against Google and
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`1 All parties have expressly consented that all proceedings in this matter may be heard and finally
`adjudicated by a magistrate judge. 28 U.S.C. § 636(c); Fed. R. Civ. P. 73; Dkt. Nos. 5, 16, 17.
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`Case 5:19-cv-04749-VKD Document 107 Filed 09/30/22 Page 2 of 35
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`YouTube. Plaintiffs claim that despite YouTube’s purported viewpoint neutrality, defendants have
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`discriminated against them based on their sexual or gender orientation, identity, and/or viewpoints
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`by censoring, demonetizing, or otherwise interfering with certain videos that plaintiffs uploaded to
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`YouTube. Dkt. No. 67 ¶ 1; see also id. ¶¶ 35-44.2
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`Plaintiffs filed their original complaint on August 13, 2019 (Dkt. No. 1) and an amended
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`complaint on November 12, 2019 (Dkt. No. 7).
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`On January 6, 2020, the Court granted plaintiffs’ unopposed motion for leave to file a second
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`amended complaint (“SAC”). Dkt. No. 23. The SAC asserted claims for (1) violation of plaintiffs’
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`First Amendment rights under 42 U.S.C. § 1983; (2) violation of Article I, section 2 of the California
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`Constitution; (3) violation of the Unruh Act, California Civil Code §§ 51, et seq.; (4) unfair
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`competition under California Business and Professions Code §§ 17200, et seq.; (5) breach of the
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`implied covenant of good faith and fair dealing; and (6) false advertising and false association in
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`violation of the Lanham Act, 15 U.S.C. § 1125, et seq. In addition, plaintiffs sought a declaration that
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`Section 230 of the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c), on which plaintiffs
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`expected defendants to rely as an affirmative defense, is unconstitutional. Plaintiffs also separately
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`sought a declaration that defendants violated the rights and obligations pled as the bases for all of
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`plaintiffs’ other claims. Dkt. No. 20.
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`Defendants moved to dismiss all of the claims in the SAC pursuant to Rule 12(b)(6) for failure
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`to state a claim and as barred by Section 230 of the CDA. Dkt. No. 25. On January 6, 2021, the Court
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`granted defendants’ motion to dismiss, with limited leave to amend. Dkt. No. 65. The Court
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`dismissed plaintiffs’ First Amendment claim without leave to amend, concluding that defendants are
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`not state actors, YouTube is not a public forum, and that the availability of protections under CDA
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`Section 230 does not amount to government endorsement of defendants’ alleged discrimination. Id. at
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`7-12. Plaintiffs’ Lanham Act claim for alleged false advertising3 was dismissed with leave to amend.
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`2 The Court assumes the parties’ familiarity with the general background facts as described in its
`prior order on defendants’ motion to dismiss plaintiffs’ second amended complaint (Dkt. No. 65 at
`2-6) and does not repeat those facts in this order.
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` Plaintiffs withdrew their Lanham Act claim to the extent it was based on false association. They
`also appeared to abandon allegations that defendants violate the Lanham Act by describing
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`Case 5:19-cv-04749-VKD Document 107 Filed 09/30/22 Page 3 of 35
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`The Court concluded that plaintiffs’ theory—i.e., that by making plaintiffs’ videos inaccessible
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`through application of Restricted Mode, defendants falsely implied that the videos contain shocking or
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`inappropriate content—is squarely foreclosed by Prager Univ. v. Google LLC (“Prager III”), 951 F.3d
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`991 (9th Cir. 2020). Id. at 12-14. Having dismissed the only claims giving rise to federal jurisdiction,
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`and noting that the SAC did not expressly invoke federal jurisdiction under the Class Action Fairness
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`Act (“CAFA”), 28 U.S.C. § 1332(d), the Court declined to exercise jurisdiction over plaintiffs’ state
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`law claims and dismissed those state claims without prejudice. Id. at 16. The Court dismissed
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`plaintiffs’ claim for declaratory relief regarding CDA Section 230 because declaratory relief is a
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`remedy, not an independent cause of action; the claim was based on plaintiffs’ First Amendment
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`claim, which was dismissed; and because the Declaratory Judgment Act cannot be used to anticipate
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`an affirmative defense. Id. at 17-18. Plaintiffs’ omnibus claim for declaratory relief was dismissed as
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`improper, and because plaintiffs failed to state any federal claim over which the Court could exercise
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`jurisdiction, and because the Court declined to exercise supplemental jurisdiction over plaintiffs’ state
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`law claims. Id. at 18-19.
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`Plaintiffs were given leave to amend their Lanham Act false advertising claim, and to reassert
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`their state law claims for relief. They were also given leave to attempt to plead CAFA jurisdiction. Id.
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`at 16, 19.
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`Plaintiffs’ operative third amended class action complaint (“TAC”) asserts a Lanham Act
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`claim (claim 6), as well as several state law claims for violation of Article I, section 2 of the California
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`Constitution (claim 2); violation of the Unruh Act (claim 3); unfair competition under California
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`Business and Professions Code § 17200, et seq. (claim 4); and breach of the implied covenant of good
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`faith and fair dealing (claim 5). Additionally, plaintiffs again seek a declaration that CDA Section
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`230, which defendants have raised as a defense, is unconstitutional (claim 1). Plaintiffs assert that
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`federal question jurisdiction exists by virtue of the Lanham Act claim. They also contend that their
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`declaratory relief claim provides an additional independent basis for federal question jurisdiction under
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`28 U.S.C. § 1331. The TAC further asserts that federal jurisdiction also exists under CAFA, 28 U.S.C.
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`YouTube as a viewpoint-neutral community that values freedom of expression. See Dkt. No. 65 at
`12-13; see also Dkt. No. 25 at 17-18; Dkt. No. 36 at 24-27; Dkt. No. 62 at 29:9-13.
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`Case 5:19-cv-04749-VKD Document 107 Filed 09/30/22 Page 4 of 35
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`§ 1332(d). Plaintiffs assert that the Court has supplemental jurisdiction over their state law claims, 28
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`U.S.C. § 1367. Dkt. No. 67 ¶¶ 61-62.
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`Defendants move pursuant to Rule 12(b)(6) to dismiss all claims in the TAC without
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`further leave to amend, arguing that plaintiffs still fail to assert facts supporting a cognizable claim
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`for false advertising under the Lanham Act. Defendants further contend that the TAC fails to state
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`sufficient facts to support any of plaintiffs’ state law claims for relief, and that all such claims are
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`barred by CDA Section 230.
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`II.
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`LEGAL STANDARD
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`“A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a
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`claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” Conservation
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`Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d
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`729, 732 (9th Cir. 2001)). When determining whether a claim has been stated, the Court accepts
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`as true all well-pled factual allegations and construes them in the light most favorable to the
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`plaintiff. Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). While a
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`complaint need not contain detailed factual allegations, it “must contain sufficient factual matter,
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`accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
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`U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
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`facially plausible when it “pleads factual content that allows the court to draw the reasonable
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`inference that the defendant is liable for the misconduct alleged.” Id.
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`The Court is not required to “‘assume the truth of legal conclusions merely because they
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`are cast in the form of factual allegations.’” Prager Univ. v. Google LLC (“Prager I”), No. 17-
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`CV-06064-LHK, 2018 WL 1471939, at *3 (N.D. Cal. Mar. 26, 2018) (quoting Fayer v. Vaughn,
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`649 F.3d 1061, 1064 (9th Cir. 2011) (per curiam)). Nor does the Court accept allegations that
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`contradict documents attached to the complaint or incorporated by reference, Gonzalez v. Planned
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`Parenthood of L.A., 759 F.3d 1112, 1115 (9th Cir. 2014), or that rest on “allegations that are
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`merely conclusory, unwarranted deductions of fact, or unreasonable inferences,” In re Gilead Scis.
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`Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).
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`A court generally may not consider any material beyond the pleadings when ruling on a
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`Case 5:19-cv-04749-VKD Document 107 Filed 09/30/22 Page 5 of 35
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`Rule 12(b)(6) motion. If matters outside the pleadings are considered, “the motion must be treated
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`as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d). However, documents
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`appended to the complaint, incorporated by reference in the complaint, or which properly are the
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`subject of judicial notice may be considered along with the complaint when deciding a Rule
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`12(b)(6) motion. Khoja v. Orexigen Therapeutics, 899 F.3d 988, 998 (9th Cir. 2018); see also Hal
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`Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990).
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`Likewise, a court may consider matters that are “capable of accurate and ready determination by
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`resort to sources whose accuracy cannot reasonably be questioned.” Roca v. Wells Fargo Bank,
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`N.A., No. 15-cv-02147-KAW, 2016 WL 368153, at *3 (N.D. Cal. Feb. 1, 2016) (quoting Fed. R.
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`Evid. 201(b)).
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`III. DISCUSSION
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`A.
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`Federal Jurisdiction
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`The Court first examines the claims plaintiffs assert in support of federal jurisdiction. As
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`discussed above, the TAC alleges federal question jurisdiction, 28 U.S.C. § 1331, based on
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`plaintiffs’ Lanham Act claim and on their claim for declaratory judgment. The TAC also alleges
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`CAFA jurisdiction under 28 U.S.C. § 1332(d).
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`1.
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`Lanham Act Claim
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`The Court previously dismissed plaintiffs’ Lanham Act false advertising claim4 as
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`foreclosed by Prager III, in which the Ninth Circuit held that statements about videos being
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`unavailable in Restricted Mode are simply accurate explanations of the application of defendants’
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`content review and monitoring procedures, and are not actionable as commercial advertising or
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`promotion. See Prager III, 951 F.3d at 999-1000; see also Dkt. No. 65 at 12-14. This Court
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`further noted that plaintiffs “do not explain how the purported competition between plaintiffs and
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`defendants transforms defendants’ explanatory statements into commercial advertising and
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`4 Although the TAC appears to reassert allegations that defendants violate the Lanham Act
`through false association and defendants’ alleged “promotion of their service as a neutral public
`forum” (see, e.g., Dkt. No. 67 ¶¶ 344, 350, 351, 355), as discussed above, plaintiffs were given
`leave to amend their Lanham Act claim only to the extent it was based on false advertising. See
`Dkt. No. 65 at 19.
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`promotion or into specific representations of fact about particular videos.” Dkt. No. 65 at 14.
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`In the TAC, plaintiffs’ false advertising claim (asserted by plaintiffs only on their own behalf)
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`continues to rest on the theory that by making their videos inaccessible through the application of
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`Restricted Mode, YouTube falsely implies that the videos contain shocking or inappropriate content,
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`such as “nudity, vulgarity, violence, hate, shocking or sexually explicit material.” See Dkt. No. 67
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`¶¶ 91-106; 341-357. Plaintiffs further allege that defendants “compete directly” with plaintiffs “in
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`the marketing of online video streaming” and misapply Restricted Mode to plaintiffs’ videos in
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`order to “falsely degrade and stigmatize” plaintiffs’ videos “while simultaneously enhancing the
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`image and goodwill of [defendants’] own content, and that of their partners and/or sponsored
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`creators.” Id. ¶¶ 343, 354. Plaintiffs claim that they have been injured in the form of fewer
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`subscribers and viewers, diverted viewership, fewer notifications to subscribers regarding new
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`video content, fewer or no recommendations of their videos by defendants to viewers, decreased
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`ad revenue, a reduction in advertisers willing to purchase advertisements shown on plaintiffs’
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`videos, and “damage to [plaintiffs’] respective brands, reputations and goodwill[.]” Id. ¶ 356.
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`Plaintiffs emphasize that the alleged false implications of Restricted Mode are communicated
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`not only to viewers, but also to advertisers, and are intended to sway viewers and advertisers to watch
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`defendants’ videos, rather than plaintiff’s videos. See Dkt. No. 85 at 5. However, nothing in the TAC,
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`including in the particular paragraphs cited by plaintiffs (see Dkt. No. 67 ¶¶ 3-4, 7, 13, 17, 22-24,
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`26.b., 80, 82-89, 95.b., 96-112, 133, 138.c., 192-93, 197, 201, 211, 232, 234, 238-39, 243-44, 246,
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`257, 259, 262, 268, 341-357) changes the character of the challenged statements that videos are
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`“unavailable” or “restricted” in Restricted Mode, which the Ninth Circuit has held are not actionable
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`under the Lanham Act. Prager III, 951 F.3d at 1000 (“The statements about Restricted Mode were
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`made to explain a user tool, not for a promotional purpose to ‘penetrate the relevant market’ of the
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`viewing public. . . . Furthermore, the fact that certain PragerU videos were tagged to be unavailable
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`under Restricted Mode does not imply any specific representation about those videos.”); see also
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`Newman v. Google, No. 20-CV-04011-VC, 2022 WL 2556862, at *1 (N.D. Cal. July 8, 2022) (“The
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`plaintiffs have failed to add any allegations of consequence to the latest iteration of their complaint,
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`leaving the Court with no choice but to conclude that further amendment would be futile. The First
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`Amendment and Lanham Act claims fail for the same legal reasons articulated in Judge Koh’s prior
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`ruling.”); Newman v. Google, No. 20-CV-04011-LHK, 2021 WL 2633423, at *10-12 (N.D. Cal. June
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`25, 2021) (“Specifically, Plaintiffs challenge the statement that appears when a Restricted Mode user
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`attempts to access a video that is unavailable. That statement provides only that ‘This video is
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`unavailable with Restricted Mode enabled. To view this video, you will need to disable Restricted
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`Mode.’ . . . This is the exact statement that the Ninth Circuit found not actionable under the Lanham
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`Act in Prager III.”).
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`As plaintiffs have had several opportunities to plead their Lanham Act false advertising claim,
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`the Court concludes that further amendment would be futile. Plaintiffs’ Lanham Act false advertising
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`claim is dismissed without leave to amend.
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`2.
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`Claim for Declaratory Judgment
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`Plaintiffs argue that their claim for a declaratory judgment provides an independent basis
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`for federal jurisdiction under 28 U.S.C. § 1331.5 Citing Gunn v. Minton, 568 U.S. 251 (2013) and
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`Atlantic Richfield Co. v. Christian, 140 S. Ct. 1335 (2020), plaintiffs contend that their
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`constitutional challenge to CDA Section 230, which has been raised by defendants as a defense in
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`their prior and present motions to dismiss, brings plaintiffs’ claim for declaratory judgment within
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`a “‘special and exceptional’ circumstance from which federal jurisdiction under § 1331 arises.”
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`Dkt. No. 67 ¶ 54; see also id. ¶¶ 283, 284.
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`Federal courts have original, or federal question, jurisdiction over civil actions “arising
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`under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “‘[A] case can
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`‘arise under’ federal law in two ways.’” Negrete v. City of Oakland, 46 F.4th 811, 816 (9th Cir.
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`2022) (quoting Gunn, 568 U.S. at 257). “First and ‘[m]ost directly, a case arises under federal law
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`when federal law creates the cause of action asserted.’” Id. at 816-17 (quoting Gunn, 568 U.S. at
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`257). “Second, under the substantial federal question branch, ‘even where a claim finds its origins
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`in state rather than federal law,’ the Supreme Court has ‘identified a ‘special and small category’
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`5 Defendants move to strike the declaratory judgment claim on the ground that plaintiffs were not
`clearly given leave to reassert or amend that claim. See Dkt. No. 77 at 1, 9 n.9. To the extent that
`the Court’s order on defendants’ prior motion to dismiss may be ambiguous as to whether
`plaintiffs were permitted to reassert or amend this claim, defendants’ motion to strike is denied.
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`of cases in which arising under jurisdiction still lies.’” Id. at 817 (quoting Gunn, 568 U.S. at 258).
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`“Specifically, ‘federal jurisdiction over a state law claim will lie if a federal issue is:
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`(1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal
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`court without disrupting the federal-state balance approved by Congress.’” Id. (quoting Gunn, 568
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`U.S. at 258).
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`Plaintiffs do not contend that federal law creates their claim for declaratory relief. Indeed,
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`although the TAC correctly anticipates defendants’ CDA Section 230 defense, “[f]ederal
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`jurisdiction cannot be predicated on an actual or anticipated defense,” and “[i]t is not enough that
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`the plaintiff alleges some anticipated defense to his cause of action and asserts that the defense is
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`invalidated by some provision of [federal law].” Vaden v. Discover Bank, 556 U.S. 49, 60 (2009)
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`(internal quotations and citation omitted); see Atl. Richfield Co., 140 S. Ct. at 1350 n.4 (reiterating
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`that “‘[f]ederal jurisdiction cannot be predicated on an actual or anticipated defense.’”) (quoting
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`Vaden, 556 U.S. at 60); Negrete, 46 F.4th at 817 (stating that federal question jurisdiction cannot
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`be based on “a federal defense, including the defense of pre-emption, even if the defense is
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`anticipated in the plaintiff’s complaint, and even if both parties concede that the federal defense is
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`the only question truly at issue. And that remains true even if, as here, the state-law complaint
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`explicitly seeks declaratory relief with respect to the anticipated federal defense.”) (internal
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`quotations and citations omitted).
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`Nor have plaintiffs demonstrated that their declaratory judgment claim satisfies the four
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`requirements for jurisdiction based on a substantial federal question. Specifically, plaintiffs have
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`not shown that defendants’ invocation of CDA Section 230 as a defense is “necessarily raised” in
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`the sense contemplated by Gunn. In Gunn, an element of the plaintiff’s state law claim for
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`malpractice necessarily required resolution of a federal patent law issue. See Gunn, 568 U.S. at
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`259. In the present case, defendants opted to assert CDA Section 230 as a defense, which cannot
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`be the basis for federal jurisdiction for the reasons discussed above. Even assuming that the CDA
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`230 defense implicates issues of federal law, “a federal issue raised in anticipation of a defense is
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`not sufficient to establish federal question jurisdiction.” Negrete, 46 F.4th at 819. Moreover,
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`“[f]or federal question jurisdiction to extend to a declaratory judgment action, the ‘claim itself
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`must present a federal question unaided by anything alleged in anticipation of avoidance of
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`defenses which it is thought the defendant may interpose.’” Id. at 820 (quoting Skelly Oil Co., 339
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`U.S. at 671)). Plaintiffs have not, and cannot, make such a showing here.
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`Plaintiffs misplace their reliance on United States v. Texas, 566 F. Supp. 3d 605 (W.D.
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`Tex. 2021), which concerned the federal government’s authority under In re Debs, 158 U.S. 564
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`(1895) to pursue a lawsuit to enjoin a state law as unconstitutional. Texas does not inform the
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`Court’s analysis of “arising under” jurisdiction in this action, which concerns the propriety of a
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`claim for declaratory judgment by private citizens against private entities based on a federal
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`defense. As previously noted by the Court, “using the Declaratory Judgment Act to anticipate an
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`affirmative defense is not ordinarily proper, and numerous courts have refused to grant declaratory
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`relief to a party who has come to court only to assert an anticipatory defense.” Veoh Networks,
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`Inc. v. UMG Recordings, Inc., 522 F. Supp. 2d 1265, 1271 (S.D. Cal. 2007); see also Dkt. No. 65
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`at 18.
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`Plaintiffs have not established that their declaratory judgment claim regarding the
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`constitutionality of CDA Section 230 provides an independent basis for the Court’s federal
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`question jurisdiction. This claim is dismissed without leave to amend.
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`3.
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`CAFA Jurisdiction
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`The TAC’s third and final asserted basis for federal jurisdiction is CAFA, 28 U.S.C.
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`§ 1332(d). CAFA was designed to permit a defendant to remove certain class or mass actions to
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`federal court. It gives federal courts original jurisdiction over class actions where there are at least
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`100 class members, at least one plaintiff is diverse in citizenship from any defendant, and the
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`amount in controversy exceeds $5,000,000, exclusive of interest and costs. Dart Cherokee Basin
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`Operating Co., LLC v. Owens, 574 U.S. 81, 84-85 (2014); Yocupicio v. PAE Grp., LLC, 795 F.3d
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`1057, 1059 (9th Cir. 2015); Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1195 (9th Cir. 2015).
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`Plaintiffs’ CAFA allegations appear in paragraphs 55-60 of the TAC. Defendants do not contest
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`the allegations regarding CAFA’s jurisdictional requirements of minimum diversity and class
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`numerosity. They argue only that allegations regarding the amount in controversy are conclusory.
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`See Dkt. No. 77 at 4 n.3; Dkt. No. 88 at 3 n.2. With respect to the amount-in-controversy
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`9
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`Northern District of California
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`United States District Court
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`Case 5:19-cv-04749-VKD Document 107 Filed 09/30/22 Page 10 of 35
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`requirement, the TAC alleges: “The matter in controversy exceeds the sum or value of Five
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`Million Dollars ($5,000,000), exclusive of interest and costs; moreover, the claims for relief seek,
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`among other things statutory damages, compensatory damages, restitution, and other equitable
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`relief that substantially exceed One Billion Dollars ($1,000,000,000).” Dkt. No. 67 ¶ 56.
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`“In determining the amount in controversy, courts first look to the complaint.” Ibarra, 775
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`F.3d at 1197. Speculation and conjecture based on unreasonable assumptions are insufficient to
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`demonstrate that CAFA’s jurisdictional threshold is satisfied. Id. While “a damages assessment
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`may require a chain of reasoning that includes assumptions,” “those assumptions cannot be pulled
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`from thin air but need some reasonable ground underlying them.” Id. at 1199. Nonetheless,
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`“Congress intended CAFA to be interpreted expansively.” Id. at 1197; see also Jauregui v.
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`Roadrunner Transp. Servs., Inc., 28 F.4th 989, 993 (9th Cir. 2022) (“The [Supreme] Court has
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`explained that ‘CAFA’s provisions should be read broadly, with a strong preference that interstate
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`class actions should be heard in a federal court if properly removed by any defendant.’”) (quoting
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`Dart Cherokee, 574 U.S. at 89). The amount in controversy is “simply ‘the amount at stake in the
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`underlying litigation . . . .’” Jauregui, 28 F.4th at 994 (quoting Theis Rsch., Inc. v. Brown & Bain,
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`400 F.3d 659, 662 (9th Cir. 2005)). “Importantly, that ‘[a]mount at stake’ does not mean likely or
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`probable liability; rather, it refers to possible liability.’” Id. (quoting Greene v. Harley-Davidson,
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`Inc., 965 F.3d 767, 772 (9th Cir. 2020)).
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`Plaintiffs’ allegations in paragraph 56 of the TAC regarding the amount-in-controversy are
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`conclusory. Although the TAC generally asserts that plaintiffs have collectively lost “millions of
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`dollars” (Dkt. No. 67 ¶ 356), the named plaintiffs’ estimated damages do not appear to meet, much
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`less exceed, the $5 million CAFA threshold. See, e.g., Dkt. No. 67 ¶¶ 178, 194, 195, 196, 211,
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`232, 233, 238, 255, 259, 262, 263. Moreover, the TAC’s allegations indicate that not all of
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`plaintiffs’ videos were excluded from Restricted Mode or demonetized (see id. ¶¶ 191, 201, 203,
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`214, 232, 234; see also Dkt. No. 101 at 26:1-6, 28:12-16), and it is unclear precisely how often the
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`alleged improper restriction of video content occurs.
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`Nevertheless, plaintiffs maintain that defendants improperly censored or otherwise
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`interfered with many of their videos. See Dkt. No. 67 ¶¶ 191, 201, 203, 214, 234; see also Dkt.
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`10
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`Northern District of California
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`United States District Court
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`

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`Case 5:19-cv-04749-VKD Document 107 Filed 09/30/22 Page 11 of 35
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`No. 101 at 26:1-6, 28:12-16. And their allegations regarding the amount in controversy rest, in
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`large part, on the sheer scale of defendants’ alleged billion-dollar business, the potential millions
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`of class members,6 and the artificial intelligence algorithms and manual review policies that
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`reportedly are used to filter video content based on unlawful criteria. See Dkt. No. 67 ¶¶ 15, 57-
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`58, 65, 70, 113-114, 119, 269-70. Notably, defendants have not presented a factual challenge to
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`the TAC’s allegations regarding CAFA jurisdiction; they simply assert, without elaboration, that
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`6 The YouTube Community Class is defined as:
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`All persons or entities in the United States who are or were members,
`users and or consumers of YouTube who uploaded, posted, or viewed
`video content on YouTube subject to the choice-of-law and venue
`provisions set forth in Defendants’ Terms of Service, Mission
`Statement, Community Guidelines, and/or any other content-based
`filtering, monetization, distribution, personal data use policies,
`advertising or regulation and practices any other regulations or
`practices that are related to the YouTube Platform on or after January
`1, 2015 and continuing through to December 31, 2019 (the “Class
`Period”).
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`Dkt. No. 67 ¶¶ 269. The class excludes defendants, “their employees, affiliates, parents,
`subsidiaries, and co-conspirators, whether or not named in this Complaint, and the United States
`government.” Id. ¶ 269. Plaintiffs believe that there are over 200 million class members. Id.
`¶ 270.
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`The LGBTQ+ subclass is defined as:
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`All persons or entities in the United States who (a) are or were
`members, users and or consumers of YouTube who uploaded, posted,
`or viewed video content on YouTube subject to the choice-of-law and
`venue provisions set forth in Defendants’ Terms of Service, Mission
`Statement, Community Guidelines, and/or any other content-based
`filtering, monetization, distribution, personal data use policies,
`advertising or regulation and practices any other regulations or
`practices that are related to the YouTube Platform and (b) are part of
`a protected class of persons under the California or Federal law
`because of sexual orientation, gender identity, or gender or (c) create,
`post, distribute, monetize, or advertise video content on the YouTube
`Platform that discusses or relates to topics, issues or viewpoints that
`advocate for, are of interest to, or are intended for audiences, on or
`after January 1, 2015 and continuing through to December 31, 2019
`(the “ Subclass Period”).
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`Id. The class excludes defendants, “their employees, affiliates, parents, subsidiaries, and co-
`conspirators, and any YouTube users who create, post, distribute, promote or engage in video or
`communications on the YouTube Platform that is directed against Plaintiffs or Community and is
`objectively violent, obscene, threatening, or homophobic as alleged in the Complaint.” Id.
`Plaintiffs believe that there are at least 9.33 million members of the subclass. Id. ¶ 270.
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`11
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`Northern District of California
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`United States District Court
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`

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`Case 5:19-cv-04749-VKD Document 107 Filed 09/30/22 Page 12 of 35
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`
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`the TAC’s allegations are conclusory. See Dkt. No. 77 at 4 n.3; Dkt. No. 88 at 3 n.2.
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`Moreover, as discussed below, the Court finds that plaintiffs have sufficiently alleged
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`claims for violation of the Unruh Act and California’s unfair competition law. Even assuming that
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`the alleged improper restriction of users’ videos occurred only once with respect to fewer than half
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`of the members of the putative YouTube Community Class, and further assuming minimal
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`damages of $1 per class member, the collective damages alleged in the TAC would exceed the $5
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`million CAFA threshold. Accordingly, viewing the TAC’s allegations as a whole, and in a light
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`most favorable to plaintiffs, the Court finds that plaintiffs have pled sufficient facts demonstrating
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`a plausible possibility that CAFA’s amount-in-controversy requirement is satisfied. However, as
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`discussed below, the Court also finds that even those claims that are sufficiently pled in the TAC
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`nonetheless are barred by CDA Section 230.
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`B.
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`State Law Claims
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`1.
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`California Constitution, Article I, Section 2
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`Plaintiffs assert a claim, for themselves and on behalf of the YouTube Community Class,
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`for violation of their rights to liberty of speech and association under the California Constitution.
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`Dkt. No. 67 ¶¶ 305-317. Contending that defendants operate and maintain YouTube as “a public
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`forum, or its functional equivalent,” plaintiffs allege that defendants “expressly