Case 4:21-cv-02856 Document 9 Filed on 10/22/21 in TXSD Page 1 of 21
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`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
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`Jane Doe (D.R.),
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`Plaintiff,
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`v.
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`SALESFORCE.COM, INC. and
`BACKPAGE.COM, LLC,
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`Defendants.
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`Case No. 4:21-CV-2856
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`MOTION OF DEFENDANT SALESFORCE.COM, INC. TO DISMISS COMPLAINT
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`This case improperly seeks to hold salesforce.com, inc. (“Salesforce”) liable for the criminal
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`acts of third parties with whom it had no relationship, based on entirely innocuous commercial
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`activities—Salesforce’s sale of its online customer relationship management (“CRM”) business
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`software. The Court should dismiss the claims against Salesforce with prejudice because they are
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`barred by section 230 of the Communications Decency Act, or insufficiently pled, or both.
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` The underlying facts here are tragic, but they are not sufficiently connected to Salesforce,
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`which sells subscriptions to cloud-based CRM software to tens of thousands of customers. Plaintiff
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`alleges that she met a man on a dating website and became enamored of him. Compl. ¶ 74, Dkt No.
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`1. She alleges that he coerced her into commercial sex, and posted advertisements for sex with her
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`on the classified ad website backpage.com, operated by defendant Backpage.com, LLC
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`(“Backpage”). Id. Although backpage.com held itself out as an online ad website similar to
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`Craigslist, the Complaint alleges that it was widely used by sex traffickers. Id. ¶¶ 22–23.
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`Although Plaintiff seeks to hold Salesforce liable under federal sex-trafficking laws based on
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`these ads, the Complaint relies on the sale of Salesforce’s CRM software to an affiliate of Backpage
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`as the only real connection between the companies. Id. ¶¶ 2, 39. Beyond that, the Complaint is most
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`notable for what it does not allege against Salesforce. Unlike with Backpage, there is no allegation
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`that Salesforce had anything to do with the trafficker who forced D.R., or anyone else, into sex
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`trafficking. There are no allegations that Salesforce had anything to do with the backpage.com
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`website, through which D.R. alleges she was trafficked. Nor does the Complaint allege any facts
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`linking Salesforce’s software with the backpage.com website, or the ads thereon.
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`This fundamental flaw in Plaintiff’s legal theory requires dismissal of her claims under the
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`Trafficking Victims Protection Act (“TVPA”), 18 U.S.C. § 1589 et seq., and Chapter 98 of the Texas
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`Civil Practice and Remedies Code. The suggestion that Salesforce somehow knowingly facilitated
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`Plaintiff’s trafficking simply by selling CRM software to a Backpage affiliate—software that
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`Backpage allegedly used to expand its customer base—is unfounded and unsupported. But beyond
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`these merits issues, Plaintiff’s claims are barred by section 230, which precludes liability where, as
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`here, a plaintiff seeks to hold an “interactive computer service” liable based on third-party content
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`posted online. See 47 U.S.C. § 230(c)(1); see also Doe v. MySpace, 528 F.3d 413, 418 (5th Cir.
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`2008); Compl. ¶¶ 74, 76, 123(a)–(c), 124.
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`To be clear, sex trafficking is a legitimate and serious concern. But Plaintiff’s attempt to
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`impose liability on Salesforce for the acts of third-party criminals, and the harmful effects of
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`classified ads placed by those criminals on another company’s website, is without any legal basis
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`and would create a dangerous precedent for a host of companies that sell legitimate business software
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`to a wide variety of customers. The claims against Salesforce should be dismissed with prejudice.
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`BACKGROUND
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`As Plaintiff admits, Salesforce offers an internet-based CRM platform, on a subscription
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`basis, that allows subscribers to manage their own customer data. Compl. ¶¶ 29–33, 39, 45 n.20.
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`Salesforce’s own website—cited in the Complaint to describe the software functionality (e.g., id.
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`¶ 45 n.20)—states that CRM “is a technology for managing [a] company’s relationships and
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`interactions with customers and potential customers.” Linsley Decl., Ex. B (“What is CRM?”); see
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`also Salesforce RJN. Plaintiff alleges that, in 2013, Backpage bought a subscription to Salesforce’s
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`CRM tool. Compl. ¶ 37. Backpage allegedly used this software to “collect detailed, in-depth
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`customer data … to streamline communications and overall business practices.” Id. ¶ 39.
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`The Complaint alleges that, when D.R. was a minor, she was “trafficked continuously on
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`Backpage.” Compl. ¶ 74; see also id. ¶ 123(a)–(c). As noted above, she met her trafficker on a
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`dating website, after which he forced her into commercial sex through ads on backpage.com. Id.
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`¶ 74. D.R. eventually escaped her trafficker, who was arrested and sent to jail. Id.
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`The Complaint specifically alleges that it was Backpage’s internal website content policies
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`and practices that allowed the trafficker to post ads for her on backpage.com. Compl. ¶¶ 123(a)–(i),
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`124. Indeed, each of Plaintiff’s specific allegations of harm is directly linked to allegations against
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`the trafficker and Backpage—but not Salesforce. Plaintiff alleges she was trafficked by ads posted
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`on backpage.com by the trafficker. Id. ¶ 74. The Complaint further alleges that Backpage facilitated
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`the posting of such illegal ads by “designing and implementing” policies that “sanitize[d]
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`advertisements intended to promote” trafficking, and “maximize[d] revenue” “instead of removing
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`th[em]” or reporting them to the police. Id. ¶ 123 (d)–(f). Backpage employed an internal policy for
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`the adult section of its website that discouraged moderators and employees from contacting the
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`police about apparent sex trafficking, and refused to remove such ads even after receiving specific
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`complaints. Id. ¶ 123 (g)–(i). Plaintiff alleges that these actions by Backpage constituted a “venture”
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`and “were intended to support, facilitate, harbor, and otherwise further” her trafficking. Id. ¶ 124.
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`Critically, none of these detailed allegations about how D.R. was harmed by Backpage or the
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`trafficker involves the use of Salesforce’s software, much less actions by Salesforce itself. See id.
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`¶ 123(a)–(c). Although the Complaint uses vague allegations to try to conflate Salesforce with its
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`software—or to conflate Backpage’s use of that software with Salesforce, e.g., Compl. ¶¶ 31, 33, 40,
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`88, 931—the specific allegations in paragraph 123 make crystal clear that neither Salesforce, nor its
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`CRM software, had anything to do with D.R.’s trafficking. Rather, the harms to D.R. are all linked
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`to classified ads posted on backpage.com by the trafficker, and Backpage’s website content policies
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`that allowed or encouraged those ads, including its refusal to remove them—and Plaintiff does not
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`allege Salesforce or its software had anything to do with any of these actions.
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`LEGAL STANDARD
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`Dismissal under Rule 12(b)(6) is proper “on the basis of a dispositive issue of law.” Walker
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`v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 734 (5th Cir. 2019). To survive a Rule 12(b)(6) motion,
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`a complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
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`plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
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`Twombly, 550 U.S. 544, 570 (2007)). “[N]aked legal conclusions” are not facts. Id. at 696. After
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`stripping away “conclusory statement[s],” the Court must decide whether the remaining factual
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`allegations “raise a right to relief above the speculative level,” Twombly, 550 U.S. at 555, so as to
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`justify the costs and burdens of discovery. Factual allegations that “do not permit a court to infer
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`more than the mere possibility of misconduct” are insufficient. Walker, 938 F.3d at 734.
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`I.
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`Section 230 Bars Plaintiff’s Claims Against Salesforce
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`ARGUMENT
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`Section 230 provides that “[n]o provider or user of an interactive computer service shall be
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`treated as the publisher or speaker of any information provided by another information content
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`1 Salesforce’s counsel sent a Rule 11 letter to Plaintiff’s counsel regarding these blatantly
`false allegations.
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`provider.” 47 U.S.C. § 230(c)(1); see also MySpace, 528 F.3d at 418 (recognizing “broad immunity”
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`under section 230 “for all claims” that seek to treat web-based service providers as the publisher of
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`third-party content); Marshall’s Locksmith Serv. Inc. v. Google LLC, 925 F.3d 1263, 1267 (D.C. Cir.
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`2019) (section 230 covers “causes of action of all kinds”). Section 230 bars Plaintiff’s claims
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`because, as the Complaint shows, Salesforce is an interactive computer service provider and it seeks
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`to hold Salesforce liable for the effects of ads posted online by third parties.2 Although the 2018
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`FOSTA amendments created an exemption to section 230 for certain civil claims, that exemption
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`does not apply here.3 The exemption is expressly limited to civil claims where the defendant’s
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`conduct violates the federal criminal trafficking statute, 18 U.S.C. § 1591, and Plaintiff comes
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`nowhere near plausibly alleging such a violation.
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`A.
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`Salesforce Is a Provider of an “Interactive Computer Service”
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`Under section 230, an “interactive computer service” is “any information service, system, or
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`access software provider that provides or enables computer access by multiple users to a computer
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`server.” 47 U.S.C. § 230(f)(2). “[A]ccess software provider” means “a provider of software
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`(including client or server software) or enabling tools” that perform functions such as filtering,
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`2 That was precisely the holding of the San Francisco Superior Court in a 2019 ruling that is the
`most comprehensive analysis of these issues to date. See Linsley Decl., Ex. A, Does # 1 through
`# 90 v. Salesforce.com, inc., No. CGC-19-574770, at 5 (S.F. Super. Ct. Oct. 3, 2019) (“Cal. Order”),
`appeal pending, Cal. Ct. App. No. A159566. In a separate action in this District, Judge Hanen
`held that he was unable to determine on the pleadings whether the claims against Salesforce were
`covered by section 230, A.B. v. Salesforce, 2021 WL 3616097, at *4 (S.D. Tex. 2021), and he has
`now initiated proceedings to determine that limited immunity issue on summary judgment.
`3 The Texas Supreme Court recently construed Chapter 98 claims as exempt from section
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`230’s immunity if a defendant engages in an “affirmative act” of participation in a trafficking
`venture. In re Facebook, 625 S.W.3d 80, 96–97 (Tex. 2021). This case wrongly interprets federal
`law, but even if correct, it is inapposite here because, unlike in Facebook, where Facebook’s
`software directed traffickers towards potential victims and facilitated communications,
`Salesforce’s software is not alleged to have been connected to the backpage.com website at all.
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`analyzing, and displaying content. Id. § 230(f)(4). “Interactive computer service” is defined
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`“broadly,” Marshall’s Locksmith, 925 F.3d at 1268, and covers business products, such as antivirus
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`software, used by websites that host third-party content. See, e.g., Zango v. Kaspersky Lab, Inc., 568
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`F.3d 1169, 1175–76 (9th Cir. 2009).4
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`The Complaint establishes that Salesforce is an “access software provider” because it alleges
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`that Salesforce provided Backpage “access to a coordinated set of applications” that allowed
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`Backpage, via a cloud-based system, to store, filter, analyze, and organize data. Compl. ¶¶ 31, 88;
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`Linsley Decl., Ex. B (“What is CRM?”); Cal. Order at 4–5. Salesforce also “enables computer access
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`by multiple users” (i.e., customers and their employees) “to a computer server” (i.e., servers on which
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`Salesforce’s software is hosted). 47 U.S.C. § 230(f)(2); Bennett v. Google, LLC, 882 F.3d 1163,
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`1167 (D.C. Cir. 2018) (“Google qualifies as an ‘interactive computer service’ provider because it
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`‘provides or enables computer access by multiple users to a computer server.’”); Compl. ¶¶ 31, 49,
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`88–89. It is immaterial that the Salesforce software was for its customers’ “internal” use only. Id.
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`¶¶ 43, 89. The Complaint alleges that this “internal use” involved accessing tools via the internet
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`for filtering, analyzing, and displaying data (e.g., id. ¶ 88(c), (g), (j)), bringing it squarely within the
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`statutory definition. Further, the Complaint alleges that the software assisted in “the creation of a
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`secure SMS (text messaging) platform.” Id. ¶ 88(d), (k). As another district court recently held,
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`assisting in the “transmission of [private] messages” is protected under section 230. Fields v. Twitter,
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`Inc., 217 F. Supp. 3d 1116, 1127 (N.D. Cal. 2016) (citing authorities), aff’d on other grounds, 881
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`4 See also Klayman v. Zuckerberg, 753 F.3d 1354, 1357–58 (D.C. Cir. 2014) (CEO of social-
`media company); PatentWizard, Inc. v. Kinko’s, Inc., 163 F. Supp. 2d 1069, 1070–71 (D.S.D.
`2001) (providing computer/internet access to customer); GoDaddy.com, LLC v. Toups, 429
`S.W.3d 752, 758–59 (Tex. App—Beaumont Apr. 10 2014, pet. denied) (web-hosting service);
`Davis v. Motiva Enters., LLC, 2015 WL 1535694, at *2, *4 (Tex. App.—Beaumont Apr. 2, 2015,
`pet. denied) (providing computer/internet access to employee).
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`F.3d 739 (9th Cir. 2018).
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`B.
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`Plaintiff Seeks to Hold Salesforce Liable for Third-Party Online Content
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`Section 230 bars any claim that seeks to hold an interactive computer service liable based on
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`content posted online “by third parties.” MySpace, 528 F.3d at 418. This protection “is implicated
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`not only by claims that explicitly point to third party content but also by claims which, though artfully
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`pleaded to avoid direct reference, implicitly require recourse to that content to establish liability.”
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`Cohen v. Facebook, Inc., 252 F. Supp. 3d 140, 156 (E.D.N.Y. 2017), aff’d in relevant part, Force v.
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`Facebook, 934 F.3d 53 (2d Cir. 2019).
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`Here, Plaintiff’s claims are barred by section 230 because the only possible link between
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`D.R.’s injuries and Salesforce is the classified ads posted on backpage.com by a criminal trafficker.
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`See, e.g., Compl. ¶¶ 74, 123(a). These claims “treat [Salesforce] as the publisher of the information”
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`because Salesforce “can only be liable if it is linked to these advertisements.” Cal. Order at 5; see
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`also MySpace, 528 F.3d at 420; LaTierjira v. Facebook, Inc., 272 F. Supp. 3d 981, 993–94 (S.D.
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`Tex. 2017). As the Fifth Circuit explained, “so long as a third party willingly provides the essential
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`published content, the interactive service provider receives full immunity.” MySpace, 528 F.3d at
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`419; Cohen, 252 F. Supp. 3d at 157–59 (section 230 applies where third-party content allegedly
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`linked Facebook to terrorist attacks). And to the extent Plaintiff alleges that affirmative acts by
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`Backpage in administering the backpage.com website led to D.R.’s injuries, see Compl. ¶ 123(d)–
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`(i), there is no allegation that Salesforce or even its software had anything to do with that website.
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`Nor is section 230 defeated by Plaintiff’s allegation that Salesforce’s software somehow
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`assisted Backpage with marketing activities—allegations that have no apparent link to D.R., Compl.
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`¶¶ 31, 88(c), (g), (h)—because section 230 bars liability attributed to providers of messaging or email
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`services for third-party content. See, e.g., Fields, 217 F. Supp. 3d at 1127–29.
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`C.
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`The FOSTA Amendments to Section 230 Do Not Apply Here
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`That section 230 bars Plaintiff’s claims against Salesforce is confirmed by the 2018 FOSTA
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`amendments. Pub. L. 115-164, 132 Stat. 1253 (2018). FOSTA created exemptions from section
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`230 for: (1) any “claim in a civil action” brought under 18 U.S.C. § 1595, the civil remedies provision,
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`but only if “the conduct underlying the claim constitutes a violation” of 18 U.S.C. § 1591, the
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`criminal trafficking statute; (2) any state criminal charge where the “conduct underlying the charge
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`would constitute a violation” of section 1591 or 18 U.S.C. § 2421A; and (3) certain state Attorney
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`General enforcement actions under section 1591. Pub. L. 115-164 §§ 4(a) & 6(a).
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`At issue here is the proper interpretation of FOSTA’s exemption for civil trafficking claims.
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`It says that section 230 shall not apply to “any claim in a civil action brought under section 1595 of
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`title 18, if the conduct underlying the claim constitutes a violation of section 1591 of that title.” 47
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`U.S.C. § 230(e)(5)(A) Multiple courts have confirmed that this exempts a “claim in a civil action
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`brought under” section 1595 only if “the conduct underlying the claim”—i.e., the conduct of the
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`civil-action defendant—itself violates the criminal statute. J.B. v. G6 Hosp., LLC, 2021 WL
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`4079207, at *12 (N.D. Cal. Sept. 8, 2021) (“J.B. II”); Linsley Decl. Ex. C, Doe v. Reddit, Ord.
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`Granting Motion to Dismiss, No. 8:21-CV-00768, Dkt. 58, at 12 (C.D. Cal. Oct. 7, 2021) (“Reddit
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`Order”). Exempting claims under the lower “should have known” standard would “disregard the
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`plain language and structure of FOSTA.” Doe v. Kik Interactive, Inc., 482 F. Supp. 3d 1242, 1250
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`(S.D. Fla. 2020).
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`Congress’s explicit requirement that the “conduct underlying” the civil claim violate section
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`1591 has specific significance for what facts must be pled to meet the exemption. Section 1591(a)(1)
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`creates primary liability for someone who “recruits, entices, harbors, transports, provides, obtains,
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`advertises, maintains, patronizes, or solicits” any person, knowing that person will engage in
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`commercial sex while under 18, or subject to force, coercion, or threats—actions that Plaintiff alleges
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`the trafficker, not Salesforce, engaged in. See Compl. ¶¶ 74–76.
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`Section 1591(a)(2) creates a secondary liability offense for a person who—knowing that the
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`specific victim will engage in commercial sex while under 18, or subject to force, coercion, or
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`threats—“benefits, financially or by receiving anything of value, from participation in a venture
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`which has engaged in an act described in violation of paragraph [(a)](1).” Notably, Congress re-
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`defined the term “participation in a venture” to mean “knowingly assisting, supporting, or facilitating
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`a violation of subsection (a)(1),” id. § 1591(e)(4). Here, the Complaint alleges no facts supporting
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`secondary offense liability against Salesforce. Plaintiff does not even try to allege that Salesforce in
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`any way assisted, supported, or facilitated the trafficker’s primary violation, much less with
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`knowledge of D.R.’s specific circumstances, nor that Salesforce was involved in any other way in
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`any specific instances of trafficking. To the extent she alleges Backpage committed a primary
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`trafficking violation, that could only be through the “advertising” hook in section (a)(1) via ads on
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`backpage.com (see Compl. ¶¶ 74, 76, 123(a)–(c)); as noted above, however, it is undisputed that
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`Salesforce had nothing to do with that website or its advertising and content policies.
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`In sum, to “satisfy FOSTA’s requirement that the conduct underlying the claim violate[s] 18
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`U.S.C. § 1591,” a civil plaintiff must allege facts sufficient to establish that the defendant itself
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`committed, or assisted, supported, or facilitated, a primary trafficking violation injuring a specific
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`victim, knowing of that victim’s circumstances. Kik, 482 F. Supp. 3d at 1251. Because Plaintiff
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`does not and cannot show that Salesforce itself violated section 1591, her reliance on section 1595
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`cannot bring her claim within the FOSTA exemption. See J.B. II, 2021 WL 4079207, at *12.
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`This reading of the statute is confirmed by the plain language, the statutory structure, and the
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`legislative history of FOSTA.
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`Plain Text. The plain language of the FOSTA exemption applies to “any claim in a civil
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`action brought under section 1595 of Title 18, if the conduct underlying the claim constitutes a
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`violation of section 1591 of that title.” 47 U.S.C. § 230(e)(5)(A) (emphases added). This makes
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`clear that the conduct of the party against whom “the claim in a civil action” is asserted must violate
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`section 1591. See J.B. II, 2021 WL 4079207, at *6; Reddit Order at 12. Linguistically and logically,
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`the “conduct underlying the claim” (against the civil defendant) must be the same “claim in a civil
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`action” under section 1595. Under the “normal rule of statutory construction,” “identical words used
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`in different parts of the same act are intended to have the same meaning.” C.I.R. v. Lundy, 516 U.S.
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`235, 250 (1996); Consol. Cos., Inc. v. Union P. R. Co., 499 F.3d 382, 387 (5th Cir. 2007).
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`Statutory Structure. This conclusion is confirmed by the other exemptions in section
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`230(e)(5). Those provisions state that section 230 shall not apply to “any charge in a criminal
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`prosecution” under state law “if the conduct underlying the charge would constitute a violation of”
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`either section 1591 or section 2421A. 47 U.S.C. § 230(e)(5)(B) & (C) (emphases added). As Judge
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`Gilliam recently explained in J.B. II, just as with section 230(e)(5)(A), the referenced “charge”
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`“necessarily refers to the conduct of the criminal defendant,” and the fact that “Congress included
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`nearly identical language in the same subsection, at the same time, strongly suggests that it intended
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`to give the ‘conduct underlying’ phrases the same meaning.” 2021 WL 4079207, at *6. And where,
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`as here, Congress enacts limited and defined sets of exemptions, that means it intends to enact only
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`those exemptions, and courts cannot create additional exemptions not in the text. See, e.g., Jennings
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`v. Rodriguez, 138 S. Ct. 830, 844 (2018) (express exemption “implies that there are no other[s]”);
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`Law v. Siegel, 571 U.S. 415, 424 (2014) (a “meticulous … enumeration of exemptions … confirms
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`that courts are not authorized to create additional” exemptions).
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`Legislative History. This reading of FOSTA is confirmed by its legislative history. The
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`original version of the bill that became FOSTA would have provided that section 230 “shall not be
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`construed to impair the enforcement or limit the application of (A) section 1595 …; or (B) any other
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`federal or state law providing causes of action, restitution, or other civil remedies” to sex trafficking
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`victims. Linsley Decl., Ex. D, H.R. 1865, 115th Cong. § 3(a)(5) (as introduced in the House, Apr.
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`3, 2017). In other words, a bare violation of section 1595 would have triggered the exemption. But
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`after concerns were raised about the broad reach of the “knew or should have known” standard as
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`applied to internet-based companies whose activities normally are covered by section 230, Congress
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`added the current language requiring that the company’s conduct itself violate section 1591. J.B. II,
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`2021 WL 4079207, at *8–9; see 47 U.S.C. § 230(e)(5)(A). Linsley Decl., Ex. E, H.R. 1865, 115th
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`Cong § 4 (as reported to the House, Feb. 20, 2018).
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`This limitation was codified in the final text, which created a limited exemption for a “claim
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`in a civil action brought under” section 1595 only if “the conduct underlying the claim constitutes a
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`violation of [18 U.S.C. §] 1591.” Pub. L. 115-164 § 4(a). “Few principles of statutory construction
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`are more compelling than the proposition that Congress does not intend sub silentio to enact statutory
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`language that it has earlier discarded.” INS v. Cardozo-Fonseca, 480 U.S. 421, 442–43 (1987)
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`(quotation marks and citation omitted). As Judge Gilliam recently explained in his thorough
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`examination of FOSTA’s legislative history, the bill reflected a “compromise by including a
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`narrowed federal civil sex trafficking carve-out that requires plaintiffs to show the civil defendant’s
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`knowing assistance, support, or facilitation” of sex trafficking. J.B. II, 2021 WL 4079207, at *11–
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`12. And Judge Selna agreed with Judge Gilliam’s analysis in Reddit. Reddit Order at 12.
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`II.
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`Plaintiff Has Failed to Allege Any Viable Federal Claims Against Salesforce
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`As shown above, section 230 bars Plaintiff’s claims against Salesforce because they would
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`hold Salesforce liable for the injuries caused by third-party content posted on the internet. And
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`Plaintiff’s unsupported allegation that Salesforce engaged in federal criminal sex trafficking under
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`section 1591—the only claim potentially exempted from section 230—does not establish anything
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`close to such a violation. But even if section 230 did not apply, Plaintiff does not come close to
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`pleading a cognizable federal civil sex-trafficking claim against Salesforce under section 1595.
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`Section 1595 requires that the defendant “knowingly benefit[ed], financially or by receiving
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`anything of value from participation in a venture which that person knew or should have known ha[d]
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`engaged in an act in violation of [the TVPA—e.g., section 1591(a)].” 18 U.S.C. § 1595(a). It further
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`requires knowledge by the defendant that the specific victim would be forced to engage in
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`commercial sex through force, or was a minor—i.e., knowledge about the underlying victim and his
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`or her circumstances. As “[t]he statutory text speaks in singular terms,” alleging “knowledge or
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`willful blindness of a general sex traffic problem” is not sufficient. S.J. v. Choice Hotels Int’l, 473
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`F. Supp. 3d 147, 154 (E.D.N.Y. July 20, 2020); Doe 3 v. Red Roof Inns, Inc., 2020 WL 1872333, at
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`*3 (N.D. Ga. Apr. 13, 2020) (general complaints about prostitution insufficient absent connection
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`with individual victim); A.D. v. Wyndham Hotels and Resorts, Inc., 2020 WL 8674205, at *6 (E.D.
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`Va. July 22, 2020) (“General awareness is insufficient to establish that [defendant] knew or should
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`have known that it was participating in a sex trafficking venture.”); Kik, 482 F. Supp. 3d at 1251.
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`Specifically, a plaintiff seeking to establish a federal civil sex-trafficking claim under section
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`1595 thus must establish “three separate types of knowledge with respect to th[e] venture:
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`(1) knowledge as to a benefit received from trafficking; (2) knowledge as to ‘assisting, supporting
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`or facilitating’ trafficking; and (3) knowledge that Plaintiff was either a minor or subject to force.”
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`Red Roof Inns, 2020 WL 1872333, at *3 (citing 18 U.S.C. §§ 1595(a); 1591(a)(2); 1591(e)(4)).
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`“Association alone cannot establish liability; instead, knowledge and ‘some participation in the sex
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`trafficking act itself must be shown.’” Id. (citing Noble v. Weinstein, 335 F. Supp. 3d 504, 524
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`(S.D.N.Y. 2018)). Plaintiff has not and cannot satisfy these standards.
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`Case 4:21-cv-02856 Document 9 Filed on 10/22/21 in TXSD Page 13 of 21
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`A.
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`Plaintiff Has Failed to Allege Salesforce’s Knowledge That D.R. Was a Minor
`or Subjected to Sex Trafficking
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`As discussed above, Plaintiff alleges no facts establishing that Salesforce (as opposed to
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`Backpage or the trafficker) knew or should have known that D.R. existed, much less that she was
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`a minor or would be forced into commercial sex acts—i.e., that a section 1591(a)(2) violation with
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`respect to her would occur. Plaintiff similarly fails to allege any facts showing that Salesforce
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`participated in a venture it knew or should have known assisted, supported, or facilitated a primary
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`violation of section 1591 with respect to D.R. (or anyone else). See 18 U.S.C. § 1591(e)(4); see
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`also United States v. Afyare, 632 F. App’x 272, 285 (6th Cir. 2016) (requiring “‘personal
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`knowledge’” that venture “used force, fraud, or coercion to cause an adult to engage in a
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`commercial sex act”).
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`Nor does the Complaint allege facts showing that Salesforce knew or should have known
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`of the specific content of ads posted on backpage.com relating to D.R.—and certainly not in
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`connection with Salesforce facilitating or supporting a primary section 1591 violation. The
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`Complaint vaguely alleges that “Salesforce was in a position to learn, and in fact did learn, about
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`the illegal business practices of Backpage,” Compl. ¶ 65, and that “Salesforce at least should have
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`known of the nature of Backpage’s business,” which allegedly “would have [been] revealed” by
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`“a simple Google search.” Id. ¶ 66. These conclusory allegations are unsupported by actual facts,
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`but in any event, such general allegations of knowledge or constructive knowledge about
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`generalized illegal activity cannot substitute for the required actual or constructive knowledge of
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`unlawful conduct directed at D.R. specifically. Because Plaintiff’s allegations do not “give rise to
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`a plausible inference that” Salesforce knowingly participated in D.R.’s trafficking, her claim fails
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`as a matter of law. Singh v. RadioShack Corp., 882 F.3d 137, 150 (5th Cir. 2018).
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`Case 4:21-cv-02856 Document 9 Filed on 10/22/21 in TXSD Page 14 of 21
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`The same is true of Plaintiff’s effort to allege that Salesforce somehow “participated” in a
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`sex-trafficking venture. This assertion, again, is defeated by Plaintiff’s own allegations that D.R.’s
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`harm was caused by ads posted on backpage.com, as well as by Backpage’s content policies and
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`practices that facilitated the illegal content. Compl. ¶¶ 74, 76, 123(a)–(i), 124. In fact, Plaintiff
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`specifically alleges that these activities constituted the “venture” by which D.R. was trafficked. Id.
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`¶¶ 122–24. But there is no plausible allegation that Salesforce, or even its software, had anything
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`to do with these activities. See id. Plaintiff’s only attempt—a conclusory and wholly implausible
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`allegation that D.R.’s trafficking “was made possible by Backpage’s platform and the technological
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`tools, operational support, and continuous affirmative assistance, support and facilitation provided
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`by Salesforce,” id. ¶ 80—fails to connect the dots between any actions by Salesforce, or its software,
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`and the specific trafficking of D.R., or any ads relating to her, or Backpage’s alleged policies and
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`practices regarding those ads. Id. ¶¶ 80, 123(d).
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`B.
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`Plaintiff Fails to Allege That Salesforce Knowingly Assisted, Supported, or
`Facilitated Any Sex Trafficking Venture
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`The Complaint also fails to allege that Salesforce knew or should have known it was
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`participating in a venture that “assisted, supported or facilitated” the primary criminal trafficking
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`violations through which Plaintiff alleges she was injured. 18 U.S.C. § 1591(e)(4). But “[t]he
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`participation giving rise to the benefit must be participation in a sex-trafficking venture, not
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`participation in other activities.” Geiss v. Weinstein Co. Holdings LLC, 383 F. Supp. 3d 156, 169
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`(S.D.N.Y. 2019) (emphasis in original). Nothing in the Complaint supports any such conclusion as
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`to Salesforce. Plaintiff does not allege that Salesforce knew or should have known that it was
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`participating in a venture that facilitated or supported a direct violation by D.R.’s traffickers, nor,
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`again, is there any allegation that Salesforce had any involvement in Backpage’s website-related
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`activities that Plaintiff alleges were the instrumentality of D.R.’s trafficking and formed the “venture”
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`Case 4:21-cv-02856 Document 9 Filed on 10/22/21 in TXSD Page 15 of 21
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`that injured her. Compl. ¶¶ 74, 76, 123–124. Thus, even if the Court views Backpage (as opposed
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`to D.R.’s trafficker) as the primary violator, Plaintiff does not plausibly allege that Salesforce had
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`anything to do w