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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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`
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`KIMBERLY CARLESTE NEWMAN, et
`al.,
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`Plaintiffs,
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`v.
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`GOOGLE LLC, et al.,
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`Defendants.
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`Case No. 20-CV-04011-LHK
`
`ORDER GRANTING WITH LEAVE TO
`AMEND DEFENDANTS’ MOTION TO
`DISMISS; DENYING PLAINTIFFS’
`MOTION TO STRIKE
`
`
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`
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`Plaintiffs Kimberly Carleste Newman, Lisa Cabrera, Catherine Jones, Denotra Nicole
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`Lewis, Andrew Hepkins, Harvey Stubbs, Khalif Muhammad, Keu Reyes, and Osiris Ley
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`(collectively, “Plaintiffs”) bring the instant case against Defendants Google LLC and YouTube,
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`LLC (collectively, “Defendants”),1 alleging claims for equitable conversion, replevin, equitable
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`accounting of revenue, breach of contract, implied breach of covenant of good faith and fair
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`dealing, promissory estoppel, violation of the Unruh Civil Rights Act; violation of 42 U.S.C. §
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`1981, unlawful, deceptive, and unfair business practices in violation of Business & Professions
`
`Code § 17200 (“UCL”), false advertising in violation of the Lanham Act, 15 U.S.C. § 1125,
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`1 On November 2, 2020, the parties voluntarily dismissed Defendant Alphabet Inc. ECF No. 28.
`1
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`Case No. 20-CV-04011-LHK
`ORDER GRANTING WITH LEAVE TO AMEND DEFENDANTS’ MOTION TO DISMISS; DENYING
`PLAINTIFFS’ MOTION TO STRIKE
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`Case 5:20-cv-04011-LHK Document 68 Filed 06/25/21 Page 2 of 28
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`
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`violation of Article I, Section 2 of the California Constitution, and violation of the First
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`Amendment of the United States Constitution. See Revised Second Amended Class Action
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`Complaint, ECF No. 27 (“SAC”). Plaintiffs also seek a declaratory judgment that Section 230 of
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`the Communications Decency Act (“CDA”) either does not immunize Defendants’ alleged
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`misconduct or is unconstitutional. Id. Before the Court is Defendants’ motion to dismiss
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`Plaintiffs’ SAC in its entirety, ECF No. 29 (“Mot.”), and Plaintiffs’ motion to strike, or in the
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`alternative to convert Defendants’ motion to dismiss into a Rule 56 motion. ECF No. 39
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`(“MTS”). Having considered the parties’ submissions, the relevant law, and the record in this
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`case, the Court GRANTS with leave to amend Defendants’ motion to dismiss and DENIES
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`Plaintiffs’ motion to strike.
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`I.
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`BACKGROUND
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`A. Factual Background
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`1. The Parties
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`YouTube, LLC (“YouTube”), a subsidiary of Google LLC (“Google”), is the largest and
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`most popular online video hosting platform with approximately 2.3 billion users worldwide. SAC
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`at ¶ 27, 75. YouTube’s principle place of business is in Mountain View, California. Id.
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`Plaintiffs are each YouTube creators and operators of various YouTube channels. Id. at ¶¶
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`18–26. Each Plaintiff is African American or of Mexican or Puerto Rican descent. Id. Each
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`Plaintiff operates at least one channel on YouTube. Id. A YouTube channel allows content
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`creators, such as Plaintiffs, to upload videos into a centralized location that other users can follow
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`and be alerted when new videos are posted. Some Plaintiffs have “monetized” their videos by
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`participating in YouTube’s advertising program, whereby content creators are compensated for
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`advertisements that run on their videos. Id.
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`2. YouTube’s Terms of Service
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`Content creators, including Plaintiffs, upload videos to YouTube free of charge. YouTube
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`users may then view, share, and comment on those videos. Id. at ¶ 519. Uploading a video to
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`Case No. 20-CV-04011-LHK
`ORDER GRANTING WITH LEAVE TO AMEND DEFENDANTS’ MOTION TO DISMISS; DENYING
`PLAINTIFFS’ MOTION TO STRIKE
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`Case 5:20-cv-04011-LHK Document 68 Filed 06/25/21 Page 3 of 28
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`YouTube or creating a YouTube channel requires that a user agree to YouTube’s Terms of Service
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`(“TOS”), which in turn incorporate YouTube’s Community Guidelines. Id. at ¶ 7 n.2. Among
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`other provisions, YouTube’s TOS state that YouTube has the right to remove content from its site
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`“including, but not limited to, pornography, obscenity, or [content that is] excessive length.” Id. at
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`¶ 105. Videos may also violate YouTube’s TOS and be removed if those videos contain “hate
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`speech, obscene, misogynistic, violent, threatening, or disparaging content.” Id. at ¶ 164.
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`3. YouTube’s Restricted Mode
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`YouTube offers a setting called Restricted Mode. Restricted Mode is an opt-in setting on
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`the service that allows users or institutions to screen out content that has been flagged as age-
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`restricted or “potentially adult.” SAC at ¶¶ 135–137. This setting allows system administrators at
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`schools and other institutions to restrict potentially adult content from being accessed by users,
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`including children. Id. Although Restricted Mode primarily affects users who turn on Restricted
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`Mode themselves, Plaintiffs allege that users without YouTube accounts are occasionally blocked
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`by Restricted Mode from viewing potentially adult content when those users visit YouTube. Id.
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`Videos can be tagged for exclusion in Restricted Mode in one of two ways. First,
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`YouTube algorithms look for particular “signals,” such as “the video’s metadata, title, and tag
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`words associated with the video.” Id. at ¶ 139. Based on those signals, YouTube’s algorithms
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`will automatically tag a video to be excluded in Restricted Mode. Id. Second, videos can be
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`flagged by YouTube users as potentially inappropriate. Flagged videos are then reviewed by a
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`team of human reviewers and excluded in Restricted Mode if a video includes content that is age-
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`restricted or potentially adult. Id.
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`Plaintiffs allege that there are multiple criteria that can lead to YouTube deeming a video
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`to be inappropriate, including videos that contain the following content:
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`(1) talking about drug use or abuse, or drinking alcohol in videos; (2)
`overly detailed conversations about or depictions of sex or sexual
`activity; (3) graphic descriptions of violence, violent acts, natural
`disasters and tragedies, or even violence in the news; (4) videos that
`cover specific details about events related to terrorism, war, crime,
`and political conflicts that resulted in death or serious injury, even if
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`Case No. 20-CV-04011-LHK
`ORDER GRANTING WITH LEAVE TO AMEND DEFENDANTS’ MOTION TO DISMISS; DENYING
`PLAINTIFFS’ MOTION TO STRIKE
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`Northern District of California
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`Case 5:20-cv-04011-LHK Document 68 Filed 06/25/21 Page 4 of 28
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`Id. at ¶ 139.
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`no graphic imagery is shown; (5) inappropriate language, including
`profanity; and (6) video content that is gratuitously incendiary,
`inflammatory, or demeaning towards an individual or group.
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`Videos that are blocked in Restricted Mode remain viewable to users who do not have
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`Restricted Mode activated, as long as those videos otherwise meet YouTube’s TOS. A user whose
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`video has been blocked in Restricted Mode may appeal to YouTube if that user believes that the
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`video was incorrectly flagged for exclusion in Restricted Mode. Id. at ¶ 146.
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`4. Advertising Policies on YouTube
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`YouTube content creators whose channels meet certain criteria are allowed to “monetize”
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`their videos by allowing YouTube to run advertisements before and during videos. This allows
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`content creators to earn revenue from their qualifying videos. See, e.g., id. at ¶ 18–26, 65.
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`YouTube calls this the YouTube Partner Program. Id. at ¶ 7 n.2. Before content creators can run
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`advertisements on their videos, content creators must agree to supplemental terms of service,
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`including the Partner Program Terms of Service and the Google AdSense Terms of Service. Id.
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`These terms are intended to ensure that YouTube advertisements do not appear on videos with
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`objectionable content, and YouTube uses automated software to identify content that is
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`inappropriate for advertising. Id. at ¶ 65. If a content creator believes that their video has been
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`incorrectly flagged as inappropriate, the content creator may appeal that decision for manual
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`review. Id. at ¶ 176.
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`5. Plaintiffs’ Allegations of YouTube’s Misconduct
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`Plaintiffs allege that despite Defendants’ statements that YouTube’s moderation policies
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`are race-neutral, Defendants have targeted Plaintiffs because of Plaintiffs’ race and viewpoints.
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`Id. at ¶ 36. Specifically, Defendants “profile, use, and consider Plaintiffs’ race, personal identity,
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`or viewpoints, in order to interfere with, restrict, or block video uploading, viewing, promotion,
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`advertising, engagement, and/or monetization services because Plaintiffs are African American
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`and/or possess personal characteristics or viewpoints that Defendants dislike.” Id.
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`Defendants allegedly discriminate against Plaintiffs in several ways. First, Defendants’
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`Case No. 20-CV-04011-LHK
`ORDER GRANTING WITH LEAVE TO AMEND DEFENDANTS’ MOTION TO DISMISS; DENYING
`PLAINTIFFS’ MOTION TO STRIKE
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`Case 5:20-cv-04011-LHK Document 68 Filed 06/25/21 Page 5 of 28
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`filtering and reviewing tools profile the racial identity of Plaintiffs and impose restrictions on
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`Plaintiffs’ videos by blocking access to those videos in Restricted Mode. Id. at ¶ 47–48.
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`Plaintiffs’ videos allegedly do not contain content that meets YouTube’s qualification for
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`inappropriate or potentially adult content. Id. at ¶¶ 65, 143. Rather, Plaintiffs’ videos are
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`allegedly included in Restricted Mode because of Plaintiffs’ racial identity or viewpoint. Id.
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`Second, Defendants “demonetize” Plaintiffs’ videos by preventing advertisements from
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`running on those videos. Id. at ¶ 65. Defendants contractually reserve the right to remove
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`advertising from users’ videos, but Plaintiffs allege that Defendants remove advertising from
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`Plaintiffs’ videos on account of Plaintiffs’ race or viewpoint, rather than inappropriate content. Id.
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`By demonetizing Plaintiffs’ videos, Defendants allegedly deprive Plaintiffs of advertising revenue
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`that Plaintiffs would otherwise receive. Id. at ¶ 64.
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`Third, Defendants allegedly engage in several other practices that discriminate against
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`Plaintiffs on the basis of their race and viewpoints. These practices include “shadow banning”
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`videos and channels (i.e. removing videos or channels from search results); excluding Plaintiffs’
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`videos from the “Up Next” or “Trending” feature on YouTube; interfering with Plaintiffs’
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`livestream broadcasts by throttling, pixelating, or otherwise disrupting the broadcast; “ad
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`bombing” Plaintiffs’ videos by interrupting Plaintiffs’ videos with constant streaming or banner
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`ads; recommending hostile, irrelevant, or extraneous videos in the “Up Next” feature on Plaintiffs’
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`videos; permitting hate speech on Plaintiffs’ videos; and ignoring and obstructing Plaintiffs’
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`internal appeals of YouTube’s decisions to suspend or restrict Plaintiffs’ channels and videos. Id.
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`at ¶ 65. Plaintiffs allege that Defendants’ conduct “creates censorship, restraint of speech, and
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`discrimination based on the race, identity, and/or viewpoint of Plaintiffs and all other persons
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`similarly situated.” Id. at ¶ 121.
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`Furthermore, Plaintiffs allege that Defendants are motivated to act in an anticompetitive
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`manner towards Plaintiffs because Defendants produce their own content and distribute it on
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`YouTube. Id. at ¶ 40. Thus, Plaintiffs allege, Defendants act in ways that harm Plaintiffs’ videos
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`Case No. 20-CV-04011-LHK
`ORDER GRANTING WITH LEAVE TO AMEND DEFENDANTS’ MOTION TO DISMISS; DENYING
`PLAINTIFFS’ MOTION TO STRIKE
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`Case 5:20-cv-04011-LHK Document 68 Filed 06/25/21 Page 6 of 28
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`and favor Defendants’ own content. Id. at ¶ 42. These actions include the conduct described
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`above, such as tagging videos for Restricted Mode, restricting monetization, shadow banning
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`videos and channels, throttling livestream videos, and excluding Plaintiffs’ videos from the “Up
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`Next” feature on YouTube. Id. at ¶ 65. These actions were taken, Plaintiffs allege, in order to
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`favor Defendants’ own content and push users to view Defendants’ content. Id. at ¶ 42–43.
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`B. Procedural History
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`On June 16, 2020, Plaintiffs filed a complaint in the instant case. ECF No. 1. On August
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`17, 2020, Plaintiffs filed an amended complaint. ECF No. 21.
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`On August 26, 2020, the Court granted the parties’ stipulation to allow Plaintiffs to file a
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`Second Amended Complaint. ECF No. 25.
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`On September 21, 2020, Plaintiffs filed a Second Amended Complaint. ECF No. 26. The
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`same day, Plaintiffs filed a Revised Second Amended Complaint (“SAC”). ECF No. 27.
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`Plaintiffs’ SAC alleges the following causes of action: (1) request for a declaratory judgment
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`regarding the scope and constitutionality of Section 230 of the CDA; (2) equitable claim for an
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`accounting of debts; (3) conversion; (4) replevin; (5) breach of contract; (6) breach of implied
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`covenant of good faith and fair dealing; (7) promissory estoppel; (8) discrimination in contract in
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`violation of 42 U.S.C. § 1981; (9) discrimination in violation of the Unruh Civil Rights Act; (10)
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`false advertising in violation of the Lanham Act, 15 U.S.C. § 1125; (11) unlawful, deceptive, and
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`unfair business practices in violation of California Business & Professions Code § 17200, et seq.
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`(“UCL”); (12) violation of Article I, Section 2 of the California Constitution; and (13) violation of
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`the First Amendment of the United States Constitution. Id. at ¶¶ 366–583.
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`Plaintiffs also seek to certify a “a putative class of similarly situated persons who use or
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`have used YouTube or any of the services that Defendants offer in connection with YouTube and
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`who come within the definition or classification of a protected class of persons under 42 U.S.C.
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`1981.” Id. at ¶ 346.
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`On November 2, 2020, Defendants filed a motion to dismiss. ECF No. 29 (“Mot.”). On
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`Case No. 20-CV-04011-LHK
`ORDER GRANTING WITH LEAVE TO AMEND DEFENDANTS’ MOTION TO DISMISS; DENYING
`PLAINTIFFS’ MOTION TO STRIKE
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`Case 5:20-cv-04011-LHK Document 68 Filed 06/25/21 Page 7 of 28
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`January 19, 2021, Plaintiffs filed an opposition to Defendants’ motion to dismiss. ECF No. 38.
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`On January 20, 2021, Plaintiffs filed a motion to strike. ECF No. 39 (“MTS”).
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`On January 25, 2021, Plaintiffs filed a corrected opposition to Defendants’ motion to
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`dismiss. ECF No. 42. The same day, Plaintiffs filed a further revised and corrected opposition to
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`Defendants’ motion to dismiss. ECF No. 43 (“Opp.”).
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`On February 3, 2021, the United States filed a motion to set a time for intervention. ECF
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`No. 45. On February 9, 2021, the Court granted the United States’ motion. ECF No. 49.
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`On February 10, 2021, Defendants filed an opposition to Plaintiffs’ motion to strike. ECF
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`No. 50. On February 24, 2021, Plaintiffs filed a reply to the motion to strike. ECF No. 51.
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`On February 24, 2021, Defendants’ filed a reply to the motion to dismiss. ECF No. 52
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`(“reply”).
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`On March 22, 2021, the United States filed a notice of intervention and a brief regarding
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`the constitutionality of Section 230 of the CDA. ECF Nos. 53, 54. On March 29, 2021, Plaintiffs
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`filed a response to the United States’ brief. ECF No. 55.
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`On April 7, 2021, Defendants filed an administrative motion for leave to file a response to
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`Plaintiffs’ March 29, 2021 response. ECF No. 56. Specifically, Defendants seek to address
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`several issues raised by Plaintiffs regarding the scope and constitutionality of Section 230 of the
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`CDA. Id. at 2. On April 11, 2021, Plaintiffs filed an opposition to Defendants’ administrative
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`motion. ECF No. 57. The Court does not reach the scope or constitutionality of Section 230, and
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`therefore DENIES Defendants’ administrative motion as moot.
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`On May 19, 2021, the United States filed a notice regarding a recent executive order. ECF
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`No. 62.
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`II.
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`LEGAL STANDARD
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`A. Motion to Dismiss Pursuant to 12(b)(6)
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`Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss an
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`action for failure to allege “enough facts to state a claim to relief that is plausible on its face.” Bell
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`Case No. 20-CV-04011-LHK
`ORDER GRANTING WITH LEAVE TO AMEND DEFENDANTS’ MOTION TO DISMISS; DENYING
`PLAINTIFFS’ MOTION TO STRIKE
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`Case 5:20-cv-04011-LHK Document 68 Filed 06/25/21 Page 8 of 28
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`Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the
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`plaintiff pleads factual content that allows the court to draw the reasonable inference that the
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`defendant is liable for the misconduct alleged. The plausibility standard is not akin to a
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`‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
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`unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citation omitted).
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`For purposes of ruling on a Rule 12(b)(6) motion, the Court “accept[s] factual allegations
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`in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving
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`party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
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`However, a court need not accept as true allegations contradicted by judicially noticeable
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`facts. Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000). Mere “conclusory allegations
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`of law and unwarranted inferences are insufficient to defeat a motion to dismiss.” Adams v.
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`Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004).
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`B. Leave to Amend
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`Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend “shall be freely
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`granted when justice so requires,” bearing in mind “the underlying purpose of Rule 15 to facilitate
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`decision on the merits, rather than on the pleadings or technicalities.” Lopez v. Smith, 203 F.3d
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`1122, 1127 (9th Cir. 2000) (en banc) (internal quotation marks and alterations omitted).
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`Generally, leave to amend shall be denied only if allowing amendment would unduly prejudice the
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`opposing party, cause undue delay, or be futile, or if the moving party has acted in bad
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`faith. Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008). Whether to
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`grant leave to amend a pleading under Rule 15(a) is a procedural matter governed by the law of
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`the regional circuit. See Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312, 1318 (Fed. Cir.
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`2009).
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`III. DISCUSSION
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`In their motion to dismiss, Defendants argue that Plaintiffs’ SAC should be dismissed for
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`the following reasons: (1) Plaintiffs’ SAC fails to adequately plead any cause of action; (2)
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`Case No. 20-CV-04011-LHK
`ORDER GRANTING WITH LEAVE TO AMEND DEFENDANTS’ MOTION TO DISMISS; DENYING
`PLAINTIFFS’ MOTION TO STRIKE
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`Case 5:20-cv-04011-LHK Document 68 Filed 06/25/21 Page 9 of 28
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`Plaintiffs’ SAC fails to include a short and plain statement of claims in violation of Federal Rule
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`of Civil Procedure 8; and (3) Section 230 of the CDA bars Plaintiffs’ causes of action because
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`Plaintiffs seek to hold Defendants liable for editorial decisions. The Court finds that Plaintiffs’
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`SAC should be dismissed for failure to state any federal claim, and therefore the Court does not
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`reach Defendants’ further arguments for dismissal. The Court first addresses Plaintiffs’ federal
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`causes of action, and then turns to Plaintiffs’ state law causes of action.
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`A. Claim for Racial Discrimination in Contract in Violation of Section 1981
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`First, Plaintiffs allege that Defendants have engaged in racial discrimination in the making
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`and enforcement of contracts in violation of 42 U.S.C. § 1981. SAC at ¶¶ 467–476. Defendants
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`argue that Plaintiffs have failed to state a claim under Section 1981 and therefore Plaintiffs’ claim
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`should be dismissed.
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`Section 1981 states that all persons within the United States “shall have the same right . . .
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`to make and enforce contracts . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). This
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`right includes “the right to the enjoyment of all benefits, privileges, terms, and conditions of the
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`contractual relationship . . .” Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1122 (9th Cir.
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`2008). To state a claim under Section 1981, a plaintiff must establish three elements: “(1) the
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`plaintiff is a member of a racial minority; (2) an intent to discriminate on the basis of race by the
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`defendant; and (3) the discrimination concerns one or more of the activities enumerated in the
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`statute.” Keum v. Virgin America Inc., 781 F. Supp. 2d 944, 954 (N.D. Cal. 2011); see also Lenk
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`v. Sacks, Ricketts, & Case LLP, 2020 WL 2793480, at *4 (N.D. Cal. May 29, 2020) (same). The
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`Ninth Circuit has made clear that Plaintiffs must “allege facts that would support an inference that
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`defendants intentionally and purposefully discriminated against them.” Imagineering, Inc. v.
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`Kiewit Pac. Co., 976 F.2d 1303, 1313 (9th Cir. 1992), abrogated on other grounds by Newcal
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`Indus., Inc. v. Ikon Office Sol., 513 F.3d 1038, 1055 (9th Cir. 2008). Importantly, a plaintiff must
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`“plead and then prove that its injury would not have occurred ‘but for’ the defendant’s unlawful
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`conduct.” Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, 140 S. Ct. 1009, 1013
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`Case No. 20-CV-04011-LHK
`ORDER GRANTING WITH LEAVE TO AMEND DEFENDANTS’ MOTION TO DISMISS; DENYING
`PLAINTIFFS’ MOTION TO STRIKE
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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 5:20-cv-04011-LHK Document 68 Filed 06/25/21 Page 10 of 28
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`(2020).
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`In the instant case, Plaintiffs allege that Defendants have restricted and demonetized
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`Plaintiffs’ videos on YouTube on account of Plaintiffs’ race, and that “Plaintiffs are denied the
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`same ‘benefits, privileges, terms, and conditions’ as White YouTube users.” Opp. at 10 (quoting
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`42 U.S.C. § 1981(b)); see also SAC at ¶¶ 467–476. Thus, Plaintiffs allege that “[w]hile
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`Defendants have impaired and denied, and continue to impair and deny, Plaintiffs’ contractual
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`benefits under the TOS and related agreement(s), similarly situated persons who are not protected
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`under the section 1981 protected class were not similarly treated.” Id. at ¶ 475.
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`Defendants argue that these allegations are insufficient to state a claim for racial
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`discrimination in the making or enforcement of contracts under Section 1981 because Plaintiffs
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`have failed to adequately allege intentional racial discrimination. Mot. at 8. Specifically,
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`Defendants argue that Plaintiffs have failed to (1) identify any YouTube policy that discriminates
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`on its face against Plaintiffs on the basis of race; or (2) allege facts that establish that defendants
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`intentionally discriminated against Plaintiffs on the basis of race. Id. at 8–9. Furthermore,
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`Defendants point out that Plaintiffs admit that only a portion of Plaintiffs’ videos have been
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`restricted or demonetized, and “YouTube often re-monetized or removed restrictions from
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`[Plaintiffs’] videos (when appropriate under YouTube’s policies) in response to their appeals.” Id.
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`at 10 (citing SAC at ¶¶ 233–235, 265, 320).
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`For the reasons stated below, the Court agrees with Defendants that Plaintiffs have failed
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`to state a claim under Section 1981 because Plaintiffs’ SAC does not “allege facts that would
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`support an inference that defendants intentionally and purposefully discriminated against them.”
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`Imagineering, 976 F.2d at 1313; see also Brignac v. Yelp Inc., 2019 WL 2372251, at *5 (N.D. Cal.
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`June 5, 2019) (same).
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`Plaintiffs argue that they have provided sufficient factual allegations to state a claim under
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`Section 1981 for two reasons: (1) Plaintiffs allege that Defendants have restricted and
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`demonetized Plaintiffs’ videos on the basis of race, and Defendants do not restrict and demonetize
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`Case No. 20-CV-04011-LHK
`ORDER GRANTING WITH LEAVE TO AMEND DEFENDANTS’ MOTION TO DISMISS; DENYING
`PLAINTIFFS’ MOTION TO STRIKE
`
`10
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`Case 5:20-cv-04011-LHK Document 68 Filed 06/25/21 Page 11 of 28
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`white content creators’ videos; (2) Defendants have admitted that they discriminate against
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`Plaintiffs and other content creators on the basis of race. Opp. at 10. The Court addresses each
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`argument in turn.
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`First, Plaintiffs allege that YouTube has restricted and demonetized Plaintiffs’ videos
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`despite the fact that these videos comply with YouTube’s TOS and other regulations. See SAC at
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`¶¶ 134–144. Plaintiffs further allege that Defendants do not restrict and demonetize the videos of
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`white content creators that violate YouTube’s TOS and guidelines. Id. at ¶ 475. Thus, Plaintiffs
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`allege that Defendants discriminate against Plaintiffs because of Plaintiffs’ race. Id. at ¶ 474.
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`However, in order to state a Section 1981 claim under Ninth Circuit law, Plaintiffs must
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`allege sufficient facts to support an inference that “defendants intentionally and purposefully
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`discriminated against them.” Imagineering, 976 F.2d at 1313. Plaintiffs have failed to meet that
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`standard here based on Plaintiffs’ allegations regarding Defendants’ moderation decisions.
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`Specifically, Plaintiffs’ only factual allegation in support of an inference that Defendants
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`intentionally and purposefully discrimination against Plaintiffs is Plaintiffs’ belief that
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`Defendants’ moderation decisions were made because of Plaintiffs’ race.
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`Plaintiffs’ “personal belief of discrimination, without any factual support, is insufficient to
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`satisfy federal pleading standards.” Moralez v. Whole Foods Mkt. California, Inc., 2016 WL
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`845291, at * 2 (N.D. Cal. Mar. 4, 2016). “Rather, plaintiff must allege some facts that
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`demonstrate that race was the reason for defendant’s actions.” Williams v. Tobener, 2016 WL
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`5235039, at *2 (N.D. Cal. Sept. 22, 2016) (internal quotation marks and citation omitted). As
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`such, Plaintiffs must provide further factual allegations that support an inference that Defendants
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`“intentionally and purposefully discriminated against them” on the basis of race. Imagineering,
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`976 F.2d at 1313.
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`The Court notes that Plaintiffs do not allege that they have been removed from YouTube or
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`prevented from posting their videos on YouTube. Furthermore, Plaintiffs’ own allegations
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`suggest that a large percentage of Plaintiffs’ videos remain available in Restricted Mode and
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`Case No. 20-CV-04011-LHK
`ORDER GRANTING WITH LEAVE TO AMEND DEFENDANTS’ MOTION TO DISMISS; DENYING
`PLAINTIFFS’ MOTION TO STRIKE
`
`11
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`Northern District of California
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`United States District Court
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`Case 5:20-cv-04011-LHK Document 68 Filed 06/25/21 Page 12 of 28
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`eligible for monetization on YouTube. For example, Plaintiffs allege that their videos have
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`received tens of millions of views and some Plaintiffs have received thousands of dollars in
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`advertising revenue. SAC at ¶¶ 18–26 (providing allegations regarding Plaintiffs’ success on
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`YouTube). The fact that so many of Plaintiffs’ videos remain freely available on YouTube and
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`capable of receiving advertising revenue weighs against an inference that Defendants have
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`intentionally and purposefully discriminated against Plaintiffs on the basis of race. Were race the
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`motivating factor behind Defendants’ moderation decisions, the Court would expect that
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`Plaintiffs’ videos would be largely unavailable and demonetized. For many Plaintiffs, the
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`opposite appears to be true. See, e.g., id. at 248 (169 out of 178 of Plaintiff Lewis’ videos are
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`viewable in Restricted More). Thus, Plaintiffs must provide further factual allegations in order to
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`support their claim for intentional racial discrimination under Section 1981.
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`Plaintiffs argue that they have provided further allegations in support of an inference of
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`intentional and purposeful discrimination through allegations that Defendants have admitted to
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`discriminating against Plaintiffs and other content creators on the basis of race. Opp. at 10. For
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`the reasons below, Plaintiffs further allegations are insufficient to support an inference that
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`Defendants “intentionally and purposefully discriminated” against Plaintiffs because of race.
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`First, Plaintiffs allege that on March 19, 2017, Defendants admitted that they improperly
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`censored videos made by LGBTQ+ users through Restricted Mode because of the identity of the
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`speaker. SAC at ¶ 49. Second, Plaintiffs allege that during a call between a YouTube user and
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`Google employee in Bangalore, India in January of 2018, the Google employee told the YouTube
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`user that the user’s video was not eligible for advertising services because filtering tools had
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`identified the user as being involved with the “gay thing.” Id. at ¶ 54. However, neither of these
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`allegations regarding Defendants’ treatment of LGBTQ+ YouTube users provide any support to
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`Plaintiffs’ allegation that Defendants intentionally and purposefully discriminated against
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`Plaintiffs because of Plaintiffs’ race. Indeed, neither allegation involves Plaintiffs or racial
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`discrimination of any kind.
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`Case No. 20-CV-04011-LHK
`ORDER GRANTING WITH LEAVE TO AMEND DEFENDANTS’ MOTION TO DISMISS; DENYING
`PLAINTIFFS’ MOTION TO STRIKE
`
`12
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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 5:20-cv-04011-LHK Document 68 Filed 06/25/21 Page 13 of 28
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`Plaintiffs further allege that on September 14, 2017, Defendants invited YouTube content
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`creators to a meeting and admitted that the content filtering algorithm used by YouTube targeted
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`African American, LGBTQ+, and other minority users. SAC at ¶ 51. Plaintiffs allege that
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`Defendants “admitted that this resulted in the application of erroneous or unwarranted blocking
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`restrictions and access denials for users that were based, at least in part, on the user’s racial or
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`sexual identity or viewpoints.” Id. Defendants dispute that any such admission was made at this
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`meeting. Reply at 3.
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`However, even accepting Plaintiffs’ allegations as true, these allegations do not support
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`Plaintiffs’ argument that Defendants intentionally and purposefully discriminated against Plaintiffs
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`on the basis of race by intentionally restricting and demonetizing Plaintiffs’ videos. First,
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`Plaintiffs’ own description of the meeting indicates that Defendants stated that any restrictions
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`placed on users’ content w