Case 5:20-cv-03901-BLF Document 82 Filed 01/10/22 Page 1 of 24
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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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`JOHN COFFEE, MEI-LING MONTANEZ,
`AND S.M., a minor by MEI-LING
`MONTANEZ, S.M.’S parent and guardian,
`on behalf of themselves and all others
`similarly situated,
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`Plaintiffs,
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`v.
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`GOOGLE, LLC,
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`Case No. 20-cv-03901-BLF
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`ORDER GRANTING MOTION TO
`DISMISS FIRST AMENDED
`COMPLAINT WITHOUT LEAVE TO
`AMEND; AND DISMISSING ACTION
`WITH PREJUDICE
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`[Re: ECF 66]
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`Defendant.
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`In this putative class action, Plaintiffs allege that Defendant Google, LLC violates state
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`consumer protection laws by distributing game applications (“apps”) containing “Loot Boxes”
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`through its Play Store. A Loot Box, which may be purchased in-app during play of some games,
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`offers the player a randomized chance to receive an item designed to enhance the gaming
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`experience, such as a better weapon, faster car, or more desirable player appearance. The player
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`does not know what specific item any given Loot Box contains at the time of purchase, so the
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`player runs the risk of being dissatisfied. Plaintiffs allege that Loot Boxes are illegal slot
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`machines1 under California law, and that Google is civilly liable to all persons in the United States
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`who purchased a Loot Box in an app downloaded from the Google Play Store.
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`1 The parties use the terms “slot machine,” “gambling device,” and “gambling machine”
`interchangeably. For ease of reference, the Court uses the term “slot machine.”
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`Case 5:20-cv-03901-BLF Document 82 Filed 01/10/22 Page 2 of 24
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`Google moves to dismiss the first amended complaint (“FAC”) under Federal Rule of Civil
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`Procedure 12(b)(6). The Court has considered the parties’ written submissions as well as the oral
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`arguments of counsel presented at the hearing on October 19, 2021. For the reasons discussed
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`below, Google’s motion to dismiss is GRANTED WITHOUT LEAVE TO AMEND and the
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`action is DISMISSED WITH PREJUDICE.
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` I.
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`BACKGROUND
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`Google’s Play Store features more than 2.9 million apps, most of which are free to
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`download. FAC ¶ 20. Plaintiffs claim that Google works “in concert with game developers” to
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`monetize free games through in-app purchases, specifically, Loot Boxes. Id. Google allegedly
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`prohibits apps containing other forms of gambling, but encourages developers to place Loot Boxes
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`in game apps. Id. ¶¶ 4-6. According to Plaintiffs, Loot Boxes foster compulsive and addictive
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`gambling behavior and constitute illegal slot machines under California law. Id. ¶¶ 3-5. In 2018,
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`Loot Boxes generated revenue in excess of $30 billion. Id. ¶ 45. Although Google itself does not
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`create the game apps available in the Play Store, or the Loot Boxes featured in some games,
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`Google allegedly has taken steps to ensure that it receives a cut of the profits generated by Loot
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`Boxes. Id. ¶ 9.
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`Plaintiffs allege that such steps include Google’s requirement that developers who wish to
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`distribute apps through the Play Store must enter into a “Developer Distribution Agreement” that
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`creates an agency relationship whereby Google acts as each developer’s “Merchant of Record” for
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`products sold or made available through the Play Store. FAC ¶¶ 22-27. Plaintiffs also point to
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`Google’s requirement that developers use Google’s Software Development Kit, containing code
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`written and developed by Google. Id. ¶ 33. The Software Development Kit is the means by which
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`developers access the Google Play payment processor. Id. Google processes all in-app purchases,
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`taking a 30% cut of every purchase before transferring the remainder of the funds to the developer.
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`Id. ¶ 9.
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`Plaintiffs also claim that “Google and its game developers have a revenue sharing
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`arrangement where Google receives 30% of all revenue from the sale of loot boxes.” FAC ¶ 29.
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`Plaintiffs offer two theories as to how this alleged revenue sharing arrangement works. The first
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`Case 5:20-cv-03901-BLF Document 82 Filed 01/10/22 Page 3 of 24
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`theory is set forth in the FAC, which alleges that a player uses money in the form of a credit card
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`or gift card to purchase virtual currency such as gems or coins through the Play Store, and then
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`uses the virtual gems or coins to make an in-game purchase of a Loot Box. Id. ¶ 44. The FAC
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`contains no facts suggesting that Google has any involvement in the second part of this two-step
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`transaction, the purchase of the Loot Box with virtual currency. Plaintiffs do not allege that
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`Google tracks how players spend their virtual currency or that Google derives greater profit if the
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`virtual currency is used to buy Loot Boxes rather than other in-game items. Plaintiffs gloss over
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`the difference between real dollars virtual currency, alleging that “[w]ether the purchase is viewed
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`as being made with fiat currency or with property in the form of virtual currency purchased with
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`money, a loot box play costs real money.” Id. Based on the FAC’s explanation of how Loot
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`Boxes are purchased, the Court understands the assertion that Google “receives 30% of all revenue
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`from the sale of loot boxes,” FAC ¶ 29, to mean that Google receives 30% of all revenue from the
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`sale of virtual currency, which players in turn use to purchase Loot Boxes.
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`A second theory regarding revenue sharing is offered in Plaintiffs’ opposition and post-
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`hearing submissions. In those filings, Plaintiffs assert that Loot Boxes may be purchased directly
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`from the Play Store with money. To the extent Google processes Loot Box sales made directly
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`through the Play Store and paid for with money, Google presumably retains 30% of the revenue
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`from Loot Box sales. See FAC ¶ 9 (alleging that Google handles “all of the transactions with
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`gamers, including taking a 30% cut of all money spent by players before transferring the
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`remainder to the developer”).
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`Plaintiffs assert that Google’s conduct in promoting and selling Loot Boxes renders
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`Google civilly liable to a nationwide class consisting of “[a]ll persons who paid to receive
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`randomized virtual items from a purchase (also known as “loot boxes”) within an app downloaded
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`from the Google Play Store.” FAC ¶ 170. The named Plaintiffs allege that they bought Loot
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`Boxes within apps downloaded from the Play Store in transactions described as follows.
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`Plaintiff John Coffee (“Coffee”) is a citizen and resident of California. FAC ¶ 11. Coffee
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`downloaded the game app Final Fantasy Brave Exvius (“Final Fantasy”) from the Play Store onto
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`his Android mobile device for free. Id. ¶ 11, 70. Final Fantasy is a role-playing game in which
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`Case 5:20-cv-03901-BLF Document 82 Filed 01/10/22 Page 4 of 24
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`players move their characters through a series of stages with the ultimate goal of confronting and
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`defeating the “boss.” Id. ¶ 70. Players of Final Fantasy may purchase a Loot Box called a
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`“Summons” using in-game virtual currency called “Lapis Crystals.” Id. ¶ 71. Lapis Crystals may
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`be earned through game play or may be purchased through the Play Store for money. Id. ¶¶ 71-72.
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`Plaintiffs allege that Coffee “purchased virtual coins with money to buy chances on loot boxes and
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`lost property in the form of the virtual coins he used to buy chances on loot boxes.” Id. ¶ 11.
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`Coffee allegedly spent more than $500 in the Play Store on virtual currency to purchase Loot
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`Boxes in a dozen game apps, including Final Fantasy. Id. Plaintiffs do not specify what portion
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`of Coffee’s virtual currency was spent on Loot Boxes in Final Fantasy. Id.
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`Plaintiffs Mei-Ling Montanez (“Montanez”), and Montanez’s minor son, S.M., are citizens
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`and residents of New York. FAC ¶¶ 12-13. S.M. downloaded the game app Dragon Ball Z
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`Dokkan Battle (“Dragon Ball Z”) from the Play Store onto a Samsung smartphone for free. Id. ¶¶
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`12-13, 75. Dragon Ball Z “is made up of levels that play like a board game, with spots dedicated
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`to items, power-ups, traps, and fights.” Id. ¶ 77. Players may purchase a Loot Box called a
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`“Summons” using in-game currency called “dragon stones.” Id. ¶ 76. Plaintiffs allege that “S.M.
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`purchased virtual coins to buy chances on loot boxes and lost property in the form of the virtual
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`coins when he used them to buy chances on loot boxes.” Id. ¶ 12. S.M. allegedly has spent more
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`than $100 in the Play Store, at least some of which was his parents’ money, on items that included
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`virtual currency to buy Loot Boxes. Id. ¶ 13. Plaintiffs do not specify how much virtual currency
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`S.M. spent on Loot Boxes in Dragon Ball Z.
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`Plaintiffs filed this suit against Google in June 2020, claiming that Google is civilly liable
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`to all persons who have purchased Loot Boxes in game apps downloaded from the Play Store.
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`Compl., ECF 1. Plaintiffs asserted claims for violation of California’s Unfair Competition Law
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`(“UCL”), Cal. Bus. & Prof. Code § 17200, et seq., violation of California’s Consumers Legal
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`Remedies Act (“CLRA”), Cal. Civ. Code § 1750, et seq., and unjust enrichment. See Compl.,
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`ECF 1. In a written order issued on February 10, 2021 (“Prior Dismissal Order”), the Court
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`granted Google’s motion to dismiss the complaint with leave to amend. See Prior Dismissal
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`Order, ECF 56. The Court observed that the complaint described numerous games, but only two
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`Case 5:20-cv-03901-BLF Document 82 Filed 01/10/22 Page 5 of 24
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`that were downloaded from the Play Store by Plaintiffs. See id. at 2. Focusing on those two
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`games, the Court found meritorious Google’s arguments that it is immune from suit under Section
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`230 of the Communications Decency Act of 1996 (“CDA”), 47 U.S.C. § 230, and that Plaintiffs
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`had failed to state a claim. See id. at 7-21. The Court did not reach Google’s argument
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`challenging Plaintiffs’ characterization of Loot Boxes as illegal slot machines under California
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`law. See id. at 5.
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`Plaintiffs thereafter filed the operative FAC, reasserting their UCL, CLRA, and unjust
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`enrichment claims. See FAC, ECF 59. Plaintiffs again make allegations about numerous game
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`apps, but they allege that they themselves downloaded only two: Final Fantasy and Dragon Ball
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`Z. See id. ¶¶ 11-13. The FAC contains four claims against Google under California law: (1)
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`violation of the unlawful prong of California’s UCL; (2) violation of the unfair prong of
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`California’s UCL; (3) violation of California’s CLRA; and (4) unjust enrichment under California
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`law. See FAC, ECF 59. Plaintiffs seek to represent a nationwide class of “[a]ll persons who paid
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`to receive randomized virtual items from a purchase (also known as ‘loot boxes’) within an app
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`downloaded from the Google Play Store.” FAC ¶ 170. Plaintiffs seek restitution and
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`disgorgement of the revenues obtained from Google’s allegedly wrongful conduct, as well as
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`declaratory and injunctive relief. See FAC Prayer.
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` II. 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 Force
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`v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quotation marks and citation omitted). While
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`a 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 “allows the court to draw the reasonable inference that the defendant is
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`liable for the misconduct alleged.” Id. When evaluating a Rule 12(b)(6) motion, the district court
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`is limited to the allegations of the complaint, documents incorporated into the complaint by
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`reference, and matters which are subject to judicial notice. See Louisiana Mun. Police Employees’
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`Case 5:20-cv-03901-BLF Document 82 Filed 01/10/22 Page 6 of 24
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`Ret. Sys. v. Wynn, 829 F.3d 1048, 1063 (9th Cir. 2016) (citing Tellabs, Inc. v. Makor Issues &
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`Rights, Ltd., 551 U.S. 308, 322 (2007)).
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` III. DISCUSSION
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`Google seeks dismissal of the FAC without leave to amend, arguing that Plaintiffs still
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`have not alleged a viable claim despite the Court’s guidance in the Prior Dismissal Order. First,
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`Google asserts that Plaintiffs have not alleged any facts that would cause the Court to reconsider
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`its conclusion that Google is immune from suit under Section 230 of the CDA. Second, Google
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`contends that Plaintiffs once again have failed to state a claim. Third, Google argues that as a
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`matter of law, Loot Boxes are not illegal slot machines under California law.
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`In opposition, Plaintiffs argue that Section 230 immunity does not apply, their claims are
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`adequately alleged, and Loot Boxes are illegal slot machines. Plaintiffs also argue that some
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`claims do not depend on the illegality of Loot Boxes, and may proceed even if Loot Boxes are not
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`illegal slot machines. Google responds to the latter argument in its reply.
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`The Court begins by addressing Google’s assertion of Section 230 immunity. Next, the
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`Court addresses whether Plaintiffs have stated a claim for relief. The Court then takes up the
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`question of whether Loot Boxes are illegal slot machines under California law. Finally, the Court
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`addresses Plaintiffs’ argument that some claims do not depend on the illegality of Loot Boxes.
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`A.
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`Section 230 Immunity
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`Section 230 of the CDA “protects certain internet-based actors from certain kinds of
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`lawsuits.” Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1099 (9th Cir. 2009). As relevant here, Section
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`230(c)(1) provides that “[n]o provider or user of an interactive computer service shall be treated as
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`the publisher or speaker of any information provided by another information content provider.”
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`47 U.S.C. § 230(c)(1). “No cause of action may be brought and no liability may be imposed under
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`any State or local law that is inconsistent with this section.” 47 U.S.C. § 203(e)(3). “The majority
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`of federal circuits have interpreted the CDA to establish broad federal immunity to any cause of
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`action that would make service providers liable for information originating with a third-party user
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`of the service.” Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1118 (9th Cir. 2007) (quotation
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`marks and citation omitted).
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`Case 5:20-cv-03901-BLF Document 82 Filed 01/10/22 Page 7 of 24
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`“This grant of immunity applies only if the interactive computer service provider is not
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`also an ‘information content provider,’ which is defined as someone who is ‘responsible, in whole
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`or in part, for the creation or development of’ the offending content. Fair Hous. Council of San
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`Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008) (quoting §
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`230(f)(3)). A website does not become responsible for development of the offending content
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`merely providing “neutral tools” that a third party utilizes to create illegal content. Id. at 1169. A
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`website falls within the exception to Section 230 immunity only “if it contributes materially to the
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`alleged illegality of the conduct.” Id. at 1168.
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`In Barnes, the Ninth Circuit created a three-prong test for Section 230 immunity. See
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`Dyroff v. Ultimate Software Grp., Inc., 934 F.3d 1093, 1097 (9th Cir. 2019) (discussing Barnes
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`test). “Immunity from liability exists for ‘(1) a provider or user of an interactive computer service
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`(2) whom a plaintiff seeks to treat, under a state law cause of action, as a publisher or speaker (3)
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`of information provided by another information content provider.’” Id. (quoting Barnes, 570 F.3d
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`at 1100-01). “When a plaintiff cannot allege enough facts to overcome Section 230 immunity, a
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`plaintiff’s claims should be dismissed.” Id.
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`1.
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`Interactive Computer Service Provider
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`Under the first prong of the Barnes test, the Court must determine whether Plaintiffs’
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`allegations establish that Google is an interactive computer service provider. “The term
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`‘interactive computer service’ means any information service, system, or access software provider
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`that provides or enables computer access by multiple users to a computer server, including
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`specifically a service or system that provides access to the Internet and such systems operated or
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`services offered by libraries or educational institutions.” 47 U.S.C. § 230(f)(2). “Websites are the
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`most common interactive computer services.” Dyroff, 934 F.3d at 1097; see also Roommates, 521
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`F.3d at 1162 n.6 (“[t]oday, the most common interactive computer services are websites”).
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`Plaintiffs allege that Google maintains the Play Store, which contains more than 2.9
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`million third-party apps on its virtual shelves. FAC ¶¶ 19-23. The Court previously found that
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`similar allegations in the original complaint were sufficient to satisfy the first prong of the Barnes
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`test. See Prior Dismissal Order at 9. Plaintiffs did not dispute Google’s status as an interactive
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`computer service provider in the first round of motion practice, and they do not dispute it here.
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`The Court once again finds that the first prong of the Barnes test is satisfied.
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`2.
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`Seek to Treat as a Publisher or Speaker
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`Under the second prong of the test, the Court must determine whether Plaintiffs’
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`allegations show that Plaintiffs seek to treat Google as a publisher or speaker with respect to
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`content on the Google Play store. A website acts as a publisher when it decides whether or not to
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`post online material submitted for that purpose by a third party. See Roommates, 521 F.3d at
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`1170. “[A]ny activity that can be boiled down to deciding whether to exclude material that third
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`parties seek to post online is perforce immune under section 230.” See id. at 1170-71.
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`In its Prior Dismissal Order, the Court determined that “all of Plaintiffs’ claims are
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`grounded in video game apps intended for public consumption that Google chooses to place ‘on
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`the virtual shelves of its Google Play store.’” Prior Dismissal Order at 10. The Court found that
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`Plaintiffs were seeking to treat Google as publisher, as Plaintiffs wanted Google to screen all apps
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`submitted for inclusion in the Play Store and exclude those containing Loot Boxes. See id. The
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`Court rejected Plaintiffs’ argument that Section 230 does not apply to publication of apps rather
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`than traditional speech, relying on Evans v. Hewlett-Packard Co., No. C 13-02477 WHA, 2013
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`WL 4426359, at *2 (N.D. Cal. Aug. 15, 2013), in which the district court applied Section 230
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`where the published content was an app. See Prior Dismissal Order at 10-11. The Court also
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`found unpersuasive Plaintiffs’ argument that they did not seek to treat Google as a publisher of
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`another’s content, but rather sought to hold Google accountable for its own conduct in “permitting
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`and facilitating illegal gambling.” Id. at 12. The Court stated that it was unclear from the
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`complaint what conduct Plaintiffs meant, as neither the word “permitting” nor the word
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`“facilitating” appeared in the complaint. Id.
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`Plaintiffs tacitly seek reconsideration of the Court’s ruling, pointing out that another court
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`in this district declined to apply Section 230 in a similar Loot Box case, Rebecca Taylor, et al. v.
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`Apple, Inc., No. 20-cv-03906-RS. In an unpublished order, the Taylor court reasoned as follows:
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`Plaintiffs’ theory is that Apple is distributing games that are effectively slot
`machines – illegal under the California Penal Code. While the viability of that
`claim is discussed further below, for purposes of evaluating the applicability of
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`section 230, it is irrelevant whether or not the games actually violate the law.
`Plaintiffs are seeking to hold Apple liable for selling allegedly illegal gaming
`devices, not for publishing or speaking information.
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`Taylor Order at 6, ECF 46 in No. 20-cv-03906-RS. Plaintiffs in the present case argue that, as in
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`Taylor, they are seeking to hold an app store liable for its own conduct in promoting and selling
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`Loot Boxes, not for publishing or speaking information.
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`Plaintiffs also cite the Ninth Circuit’s recent decision in Gonzalez v. Google LLC, 2 F.4th
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`871 (9th Cir. 2021), for the proposition that Plaintiffs’ allegation of revenue sharing between
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`Google and app developers is sufficient to take this case outside of Section 230. In Gonzalez, the
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`families of victims killed by the terrorist group ISIS sued Google, Twitter, and Facebook under the
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`Anti-Terrorism Act (“ATA”), 18 U.S.C. § 2333, alleging that the “defendants’ social media
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`platforms allowed ISIS to post videos and other content to communicate the terrorist group’s
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`message, to radicalize new recruits, and to generally further its mission.” Gonzalez, 2 F.4th at
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`880. The plaintiffs also claimed “that Google placed paid advertisements in proximity to ISIS-
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`created content and shared the resulting ad revenue with ISIS.” Id. The Ninth Circuit found that
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`“[t]he Gonzalez Plaintiffs’ revenue-sharing theory is distinct from the other theories of liability
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`raised in the TAC.” Id. at 897. Specifically, the revenue sharing allegations were “not directed to
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`the publication of third-party information” but were “premised on Google providing ISIS with
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`material support by giving ISIS money.” Id. at 898. The Ninth Circuit explained that, “unlike the
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`Gonzalez Plaintiffs’ other allegations, the revenue-sharing theory does not depend on the
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`particular content ISIS places on YouTube; this theory is solely directed to Google’s unlawful
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`payments of money to ISIS.” Id. The Gonzalez court concluded that Section 230 did “not bar the
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`Gonzalez Plaintiffs’ claims premised on sharing revenue with ISIS,” but did bar the plaintiffs’
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`non-revenue sharing claims. Id. at 898-99.
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`To the extent Plaintiffs’ theory of liability is based on Google’s 30% cut of revenue from
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`the sale of virtual currency, this case is distinguishable from Taylor and Gonzalez. In Taylor, the
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`district court noted that Apple was alleged to be selling illegal gaming devices, and in Gonzalez,
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`Google was alleged to have provided resources to a terrorist organization in violation of an anti-
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`terrorism statute. In the present case, Google’s conduct in processing sales of virtual currency is
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`Case 5:20-cv-03901-BLF Document 82 Filed 01/10/22 Page 10 of 24
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`not alleged to be illegal. To the contrary, the FAC states that “[v]irtual currency is a type of
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`unregulated digital currency that is only available in electronic form.” FAC ¶ 11 & n.2 (emphasis
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`added). If indeed the sale of Loot Boxes is illegal, the facts alleged in the FAC indicate that such
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`illegality is committed by the developer who sells the Loot Box for virtual currency, not by
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`Google.
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`All of Google’s conduct identified by Plaintiffs in the FAC is lawful. Google’s 30% cut of
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`virtual currency sales is the same 30% cut that Google receives with respect to all transactions
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`processed through the Play Store. The Developer Distribution Agreement and Software
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`Development Kit are used across the Play Store with respect to all developers and contain no
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`provisions specific to Loot Boxes. Plaintiffs assert that because virtual currency is the only means
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`by which a player may purchase Loot Boxes, Google’s processing of virtual currency sales
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`facilitates Loot Box sales. FAC ¶¶ 7, 186. However, virtual currency may be used for multiple
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`types of in-app purchases, of which only Loot Boxes are alleged to be illegal. A website does not
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`become responsible for offending content merely by providing “neutral means by which third
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`parties can post information of their own independent choosing online,” or by providing “neutral
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`tools” to third party developers. Gonzalez, 2 F.4th at 893 (quotation marks and citation omitted);
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`see also Roommates, 521 F.3d at 1169.
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`The present case also is distinguishable from HomeAway.com, Inc. v. City of Santa
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`Monica, 918 F.3d 676, 681 (9th Cir. 2019), cited by Plaintiffs. In HomeAway, the City of Santa
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`Monica required short-term vacation rentals to be licensed and imposed liability on vacation rental
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`hosting platforms that facilitated unlicensed short-term vacation rentals. Id. at 680. The rental
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`hosting platforms filed suit against the city, arguing that they were entitled to immunity under
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`Section 230. Id. The plaintiffs argued that the ordinance implicitly required them to monitor the
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`contents of third-party listings and compare them against the City’s short-term rental registry. See
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`id. at 682. The Ninth Circuit rejected that argument, finding that the ordinance did not impose
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`liability for the content of listings on the plaintiffs’ websites, but rather imposed liability only if
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`the plaintiffs processed unlawful transactions for unregistered properties. See id. The Ninth
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`Circuit stated that “the Ordinance does not proscribe, mandate, or even discuss the content of the
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`Case 5:20-cv-03901-BLF Document 82 Filed 01/10/22 Page 11 of 24
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`listings that the Platforms display on their websites.” Id. at 683. In contrast, Plaintiffs in the
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`present case seek to impose liability if Google processes lawful transactions for virtual currency
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`where such currency could be used to buy Loot Boxes in third-party apps downloaded from the
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`Play Store. The requested injunctive relief is grounded entirely in the content of the listings
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`Google displays on its website.
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`In short, when stripped of Plaintiffs’ speculation as to Google’s motives, the conduct
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`alleged in the FAC amounts to Google’s publication of third-party apps in the Play Store and
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`provision of neutral tools and services to all developers across the Google Play platform. This
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`alleged conduct falls squarely within the protection of § 230 and therefore Plaintiffs’ claims are
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`barred to the extent based on Google’s revenue sharing with respect to sales of virtual currency.
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`To the extent Plaintiffs’ theory of liability is based on direct sales of Loot Boxes through
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`the Play Store for money, however, Taylor and Gonzalez may apply to remove this case from the
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`scope of immunity provided by Section 230. Claims based on Google’s processing of Loot Box
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`sales, and retaining a 30% cut of those sales, would not be based solely on publication of third-
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`party apps and provision of neutral tools. Google objects to the Court’s consideration of this
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`theory, however, arguing correctly that the FAC itself does not allege direct sales of Loot Boxes
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`through the Play Store. Facts regarding such direct sales appear only in documents submitted with
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`Plaintiffs’ opposition and post-hearing filings. Those documents show that Loot Boxes may be
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`purchased directly through the Play Store, with money, for the games Brawl Stars, FIFA Soccer,
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`Puzzles and Dragons, and Clash Royale. See Brown Decl. ¶¶ 3-7, ECF 71-1; Proffer, ECF 77.
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`The Court cannot consider those facts in evaluating Google’s motion to dismiss, because the Court
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`is limited to allegations in the complaint documents incorporated by reference, and matters subject
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`to judicial notice. See Wynn, 829 F.3d at 1063.
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`The Court nonetheless denies Google’s motion to strike Plaintiffs’ evidence regarding
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`sales of Loot Boxes through the Play Store. The Court will treat that evidence as a proffer of
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`additional facts Plaintiffs could allege if granted leave to amend their pleading. Addition of those
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`factual allegations would not necessarily bring Plaintiffs’ claims within the rationales of Taylor
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`and Gonzalez, however, because Plaintiffs’ evidence of Loot Box sales directly through the Play
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`Case 5:20-cv-03901-BLF Document 82 Filed 01/10/22 Page 12 of 24
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`Store does not relate to Final Fantasy or Dragon Ball Z, the only games downloaded by Plaintiffs
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`in this suit. In order to take this case outside the protection of Section 230, Plaintiffs would have
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`to add additional allegations that they purchased Loot Boxes directly through the Play Store in
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`Final Fantasy or Dragon Ball Z, or that they downloaded other games from the Play Store and
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`purchased Loot Boxes in those games directly from the Play Store. It is unclear whether Plaintiffs
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`could add those necessary addition allegations. Even if Plaintiffs could do so, such amendment
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`would be futile because Plaintiffs’ claims are subject to dismissal without leave to amend on other
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`grounds, including the Court’s determination that Loot Boxes are not illegal slot machines.
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`Accordingly, as discussed more fully in section III.D., below, the Court will not grant leave to
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`amend to plead around the immunity afforded by Section 230.
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`Based on Google’s conduct as currently alleged in the operative FAC, the Court finds that
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`Plaintiffs seek to treat Google as a publisher of content on the Google Play store, and thus that the
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`second prong of the Barnes test is satisfied.
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`3.
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`Information Provided by Another Content Provider
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`Under the third prong of the Barnes test, the Court must determine whether Plaintiffs’
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`allegations show that the published material – content on the Play Store – was provided by another
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`content provider. In its Prior Dismissal Order, the Court found that this prong was satisfied based
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`on Plaintiffs’ allegations that the two apps downloaded by Plaintiffs, Final Fantasy and Dragon
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`Ball Z, were created by third party developers and were downloaded by Plaintiffs for free. See
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`Prior Dismissal Order at 12. The Court determined that Plaintiffs had not alleged facts showing
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`that Google is a co-developer of the game apps. See Roommates, 521 F.3d at 1162 (a website
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`operator is immune only with respect to content created entirely by third parties).
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`Plaintiffs argue that