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Case 5:20-cv-04687-VKD Document 21 Filed 09/10/20 Page 1 of 21

1 DAVID H. KRAMER, SBN 168452


LAUREN GALLO WHITE, SBN 309075
2 KELLY M. KNOLL, SBN 305579
WILSON SONSINI GOODRICH & ROSATI
3 Professional Corporation
650 Page Mill Road
4 Palo Alto, CA 94304-1050
Telephone: (650) 493-9300
5 Facsimile: (650) 565-5100
Email: dkramer@wsgr.com
6 Email: lwhite@wsgr.com
Email: kknoll@wsgr.com
7
Attorneys for Defendants
8 GOOGLE LLC, YOUTUBE, LLC, and
ALPHABET INC.
9

10 UNITED STATES DISTRICT COURT

11 NORTHERN DISTRICT OF CALIFORNIA

12 SAN JOSE DIVISION

13 MARSHALL DANIELS, also known as Young ) CASE NO.: 5:20-CV-04687-VKD


Pharaoh, an individual, )
14 ) DEFENDANTS’ REPLY IN
Plaintiff, ) SUPPORT OF THEIR MOTION TO
15 ) DISMISS THE COMPLAINT
v. )
16 ) Before: Hon. Virginia K. DeMarchi
ALPHABET INC., a Delaware corporation; ) Courtroom: 2
17 GOOGLE LLC, a Delaware limited liability ) Hearing Date: October 6, 2020
) Time: 10:00 a.m.
18 company; YOUTUBE, LLC, a Delaware limited )
liability company; DOES 1 through 10, inclusive, )
19 )
Defendants. )
20 )
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1 TABLE OF CONTENTS

2 Page(s)

3 PLAINTIFF FAILS TO STATE A CLAIM UNDER THE FIRST AMENDMENT ......... 2

4 PLAINTIFF FAILS TO STATE A CONTRACT-BASED CLAIM .................................. 6

5 PLAINTIFF’S QUASI-CONTRACT CLAIMS FAIL AS A MATTER OF LAW.......... 10

6 PLAINTIFF FAILS TO STATE A CLAIM UNDER THE UCL ..................................... 12

7 PLAINTIFF CANNOT EVADE SECTION 230 OR THE FIRST AMENDMENT........ 13

8 CONCLUSION ............................................................................................................................. 15

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1 TABLE OF AUTHORITIES

2 Page(s)

3 CASES
4 Abu-Jamal v. Nat’l Pub. Radio,
1997 U.S. Dist. LEXIS 13604 (D.D.C. Aug. 21, 1997) ...................................................... 3
5
Ashcroft v. Iqbal,
6
556 U.S. 662 (2009) ............................................................................................................ 3
7
Astiana v. Hain Celestial Grp., Inc.,
8 783 F.3d 753 (9th Cir. 2015) ............................................................................................. 11

9 Barnes v. Yahoo!, Inc.,


570 F.3d 1096 (9th Cir. 2009) ........................................................................................... 13
10
Blum v. Yaretsky,
11 457 U.S. 991 (1982) ............................................................................................................ 5
12
Brodsky v. Apple Inc.,
13 2020 U.S. Dist. LEXIS 61137 (N.D. Cal. Apr. 7, 2020)................................................... 11

14 Brunette v. Humane Soc’y,


294 F.3d 1205 (9th Cir. 2002) ............................................................................................. 5
15
Bruton v. Gerber Prod. Co.,
16 703 F. App’x 468 (9th Cir. 2017)...................................................................................... 11
17 Cal. Med. Ass’n, Inc. v. Aetna U.S. Healthcare of Cal., Inc.,
18 94 Cal. App. 4th 151 (2001) .............................................................................................. 11

19 Carlson Produce LLC v. Clapper,


2020 U.S. Dist. LEXIS 17936 (N.D. Cal. Feb. 3, 2020) ................................................... 11
20
City of Oakland v. Oakland Raiders,
21 2019 U.S. Dist. LEXIS 124465 (N.D. Cal. July 25, 2019) ............................................... 10
22 Collins v. Womancare,
23 878 F.2d 1145 (9th Cir. 1989) ......................................................................................... 4, 5

24 Diamond S.J. Enter. v. City of San Jose,


395 F. Supp. 3d 1202 (N.D. Cal. 2019) ........................................................................ 2, 12
25
Ellis v. JPMorgan Chase & Co.,
26 752 F. App’x 380 (9th Cir. 2018)...................................................................................... 11
27 Enhanced Athlete Inc. v. Google LLC,
2020 U.S. Dist. LEXIS 147100 (N.D. Cal. Aug. 14, 2020) .......................................... 9, 14
28

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1 Enigma Software Grp. USA, LLC v. Malwarebytes, Inc.,


946 F.3d 1040 (9th Cir. 2019) ........................................................................................... 14
2
ESG Capital Partners, LP v. Stratos,
3 828 F.3d 1023 (9th Cir. 2016) ........................................................................................... 11
4
Gearsource Holdings, LLC v. Google LLC,
5 2020 U.S. Dist. LEXIS 119892 (N.D. Cal. July 8, 2020) ................................................. 11

6 George v. Pacific-CSC Work Furlough,


91 F.3d 1227 (9th Cir. 1996) ........................................................................................... 4, 5
7
Gerlinger v. Amazon.com, Inc.,
8 311 F. Supp. 2d 838 (N.D. Cal. 2004) .............................................................................. 10
9 Hartford Cas. Ins. Co. v. J.R. Mktg.,
10 61 Cal. 4th 988 (2015)....................................................................................................... 11

11 Haskins v. Symantec Corp.,


2013 U.S. Dist. LEXIS 169865 (N.D. Cal. Dec. 1, 2013) ................................................ 10
12
Hedging Concepts, Inc. v. First Alliance Mortg. Co.,
13 41 Cal. App. 4th 1410 (1996) ...................................................................................... 10, 11
14 Heineke v. Santa Clara Univ.,
15 965 F.3d 1009 (9th Cir. 2020) ..................................................................................... 4, 5, 6

16 In re Anthem, Inc. Data Breach Litig.,


162 F. Supp. 3d 953 (N.D. Cal. 2016) ................................................................................ 7
17
Kearns v. Ford Motor Co.,
18 567 F.3d 1120 (9th Cir. 2009) ........................................................................................... 13
19 Lance Camper Mfg. Corp. v. Republic Indem. Co.,
44 Cal. App. 4th 194 (1996) .............................................................................................. 11
20
21 Levitt v. Yelp! Inc.,
2011 U.S. Dist. LEXIS 124082 (N.D. Cal. Oct. 26, 2011) ............................................... 13
22
Lewis v. Google LLC,
23 2020 U.S. Dist. LEXIS 150603 (N.D. Cal. May 20, 2020) .......................................... 2, 10
24 Manhattan Cmty. Access Corp. v. Halleck,
139 S. Ct. 1921 (2019) .............................................................................................. 3, 6, 15
25
McGary v. City of Portland,
26
386 F.3d 1259 (9th Cir. 2004) ............................................................................................. 3
27
Reichle v. Howards,
28 566 U.S. 658 (2012) ............................................................................................................ 2

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1 Schulken v. Wash. Mut. Bank,


2011 U.S. Dist. LEXIS 117280 (N.D. Cal. Oct. 11, 2011) ................................................. 8
2
Software Design & Application, Ltd. v. Hoefer & Arnett, Inc.,
3 49 Cal. App. 4th 472 (1996) .............................................................................................. 11
4
Sutton v. Providence St. Joseph Med. Ctr.,
5 192 F.3d 826 (9th Cir. 1999) ............................................................................................... 4

6 Tulsi Now, Inc. v. Google, LLC,


2020 U.S. Dist. LEXIS 41673 (C.D. Cal. Mar. 3, 2020) ................................................ 2, 6
7
United States v. Price,
8 383 U.S. 787 (1966) ............................................................................................................ 5
9 Voris v. Lampert,
10 7 Cal. 5th 1141 (2019)....................................................................................................... 12

11 Ziglar v. Abbasi,
137 S. Ct. 1843 (2017) ........................................................................................................ 2
12
STATUTES
13
42 U.S.C. § 1983 ..................................................................................................................... 1, 2, 4
14
47 U.S.C. § 230(c) ................................................................................................... 1, 12, 13, 14, 15
15
California’s Unfair Competition Law ................................................................................. 1, 12, 13
16
RULES
17

18 Federal Rule of Civil Procedure 9(b) ............................................................................................ 13

19 Federal Rule of Civil Procedure 11 ............................................................................................... 14

20 Federal Rule of Civil Procedure 12(b)(6) ....................................................................................... 3

21 Federal Rule of Civil Procedure 15(a)(1)(B) ................................................................................ 12

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DEFENDANTS’ MOTION TO DISMISS
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1 Plaintiff’s opposition brief abandons his fraud claims and, in trying to defend his

2 remaining claims, relies on assertions that are unpleaded in the Complaint, irrelevant to

3 Defendants’ arguments, or both. The opposition, in short, only confirms that dismissal is

4 warranted.

5 The centerpiece of Plaintiff’s case is a claim under the First Amendment. Here, Plaintiff

6 jettisons the statutory premise for his claim (Section 1983) and instead tries to advance an

7 unpleaded Bivens claim that treats novelty as equivalent to plausibility and has no basis in the

8 legal principles governing state action. Established law makes clear that public statements made

9 by individual members of Congress that directed no action in regard to Plaintiff’s videos do not

10 and cannot transform YouTube’s private content moderation decisions into a violation of the First

11 Amendment (or a derivative violation of the UCL).

12 As for Plaintiff’s contract-based claims, while his Complaint is expressly premised on

13 YouTube’s Terms of Service (see ¶ 85), Plaintiff is still unable to identify any provision of that

14 agreement (or any other) that YouTube actually breached. The Terms of Service do not require

15 YouTube to continue to host Plaintiff’s content, and they expressly authorize YouTube to remove

16 content under the circumstances alleged here. Beyond that, the agreement makes no promises

17 about appeals, monetization, or payments. In short, what Plaintiff has pleaded is neither a breach

18 of contract nor of any implied covenant.

19 Finally, in defending his claims for conversion, money had and received, and unjust
20 enrichment, Plaintiff cannot avoid the bedrock rule that these kinds of quasi-contract theories are
21 not available to recover monies governed by an actual contract. That is precisely what Plaintiff

22 pleaded (¶ 13), and having done so he cannot save his claims merely because he failed to identify

23 the specific contract that governs the “Super Chat” revenues that YouTube supposedly withheld.

24 Beyond all that, Plaintiff fails to offer any meaningful response to YouTube’s rights under

25 Section 230 and the First Amendment to remove, demote, or demonetize content on its service.

26 For all these reasons, Plaintiff’s claims must be dismissed.

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1 PLAINTIFF FAILS TO STATE A CLAIM UNDER THE FIRST AMENDMENT

2 As pleaded in the Complaint, Plaintiff’s First Amendment claim is based on Section 1983.

3 ¶¶ 2, 48. In response to being informed that Section 1983 applies only to state officials, not claims

4 based on the purported actions of the federal government (Mot. 11 n.7), Plaintiff tries to convert

5 his claim to one under Bivens. Opp. 1 n.1. This is improper. See Diamond S.J. Enter. v. City of San

6 Jose, 395 F. Supp. 3d 1202, 1231 (N.D. Cal. 2019) (“[T]he complaint may not be amended by

7 briefs in opposition to a motion to dismiss.”). It is also irrelevant. While a Bivens claim likely is

8 not even available here,1 Plaintiff cannot evade the even more fundamental problem that bars any

9 effort to invoke his First Amendment rights: Google and YouTube are not the government.2

10 Plaintiff argues that the long line of cases rejecting First Amendment claims against private

11 online platforms (Mot. 7-8 & n.4) does not compel dismissal of his claim, because those cases did

12 not consider the “novel” theories Plaintiff advances under the government-coercion or joint-action

13 tests. Opp. 1-3, 9. As an initial matter, the premise of Plaintiff’s argument is wrong. In the past

14 year alone, two separate courts have dismissed First Amendment claims against Google and

15 YouTube based on allegations, like Plaintiff’s, that their content moderation decisions were

16 influenced by government actors. See Lewis v. Google LLC, 2020 U.S. Dist. LEXIS 150603, at

17 *25-27 (N.D. Cal. May 20, 2020) (state action premised on Google and YouTube’s alleged

18 relationships with U.S. and foreign governments); Tulsi Now, Inc. v. Google, LLC, 2020 U.S. Dist.

19 LEXIS 41673, at *3-6 (C.D. Cal. Mar. 3, 2020) (state action premised on Google’s efforts to
20 prevent foreign cybercrimes in connection with election advertising).
21

22
1
23 In light of the Supreme Court’s recent opinion in Ziglar v. Abbasi, it is highly doubtful that
a Bivens claim can even be asserted in the First Amendment speech context, especially against a
24 private company. See 137 S. Ct. 1843, 1857-60 (2017) (“[T]he Court has made clear that
expanding the Bivens remedy is now a ‘disfavored’ judicial activity.”); accord Reichle v.
25 Howards, 566 U.S. 658, 663 n.4 (2012) (“We have never held that Bivens extends to First
26 Amendment claims.”).
2
27 Plaintiff offers no response to the fact that Alphabet Inc., which is a parent company of
Google, is not a proper defendant in this case. See Mot. 3 n.2.
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1 But even putting that aside, Plaintiff cannot seriously suggest that novelty bypasses the

2 requirements of Rule 12(b)(6). A plaintiff does not get to survive a motion to dismiss because he

3 advances a theory that few before have attempted to make.3 That is especially so here, where

4 Plaintiff’s state-action argument would radically extend a body of law that the Supreme Court has

5 expressly warned should not be expanded “beyond its traditional boundaries.” Manhattan Cmty.

6 Access Corp. v. Halleck, 139 S. Ct. 1921, 1934 (2019). And under those traditional boundaries,

7 Plaintiff has not come close to stating a viable claim. Mot. 8-10. Plaintiff’s central argument,

8 repeated throughout his opposition, is that by removing and demonetizing Plaintiff’s videos,

9 Defendants were allegedly succumbing to pressure from Adam Schiff and Nancy Pelosi, who

10 communicated to Defendants or the public about online misinformation in their official capacities

11 as members of Congress. Opp. 5-7, 9-10. But Plaintiff does not cite a single authority that actually

12 supports this theory, and he does not even try to distinguish the case that most squarely rejected it.

13 Mot. 9-10 (citing Abu-Jamal v. Nat’l Pub. Radio, 1997 U.S. Dist. LEXIS 13604 (D.D.C. Aug. 21,

14 1997)). Simply put, there has never been a case that applied the coercion or joint-action tests that

15 Plaintiff invokes (Opp. 4) to find that the public statements of individual legislators convert

16 otherwise private decisions into state action. Nor does Plaintiff respond—except through hand-

17 waving rhetoric—to the serious practical problems that would be created from adopting that

18 unprecedented approach. Compare Mot. 10-11, with Opp. 9.

19 Instead, Plaintiff cites a series of irrelevant decisions that have nothing to do with state
20 action, in which courts have recognized the influence of members of Congress, held that certain
21 acts by members of Congress warrant prosecution for corruption or bribery, or upheld Congress’s

22
3
23 McGary v. City of Portland, 386 F.3d 1259 (9th Cir. 2004), which has nothing to do with
the First Amendment or state action, does not suggest otherwise. Not only does that case precede
24 the Supreme Court’s decisions in Twombly and Iqbal, which significantly changed the standard
that applies to Rule 12(b)(6) motions, it reversed dismissal of the plaintiff’s ADA claim after
25 finding that the “merits of McGary’s novel legal arguments can only be assessed after the parties
have had an opportunity to develop the facts in this case.” Id. at 1270. That is not the case here.
26 Even taking all the facts as pleaded in the Complaint as true, as a matter of law Google and
27 YouTube still would not be state actors. McGary does not—and could not—excuse Plaintiff
from his obligation to allege “sufficient factual matter, accepted as true, to ‘state a claim to relief
28 that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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1 power to issue subpoenas. Opp. 6-7, 10. Of course, members of Congress can wield influence in

2 our society and are capable of taking “official acts” that can subject them to criminal charges, but

3 that provides no support for Plaintiff’s effort to transform private conduct into state action. Indeed,

4 as Defendants explained, it is well settled that even the far-more direct and significant influence of

5 actual laws and regulations on private parties does not make them into state actors. Mot. 10; e.g.,

6 Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 838-39 (9th Cir. 1999) (“the mere fact

7 that the government compelled a result does not suggest that the government’s action is ‘fairly

8 attributable’ to the private defendant”). Plaintiff has nothing to say about that authority.

9 Those principles are only confirmed by the handful of actual state-action cases discussed in

10 Plaintiff’s brief. Opp. 4-5. In Heineke v. Santa Clara University, the plaintiff argued that a private

11 university, which had terminated him for sexual harassment, was a state actor because its receipt

12 of federal and state funds was “conditioned on compliance with federal and state anti-

13 discrimination laws and regulations, . . . such that [the university] may lose government funds

14 should it fail to comply with the law.” 965 F.3d 1009, 1013 (9th Cir. 2020). The Ninth Circuit

15 rejected this argument: “That a private actor’s conduct is subject to penalties, such as loss of

16 funding, is . . . insufficient to convert private action into that of the state.” Id. at 1014. Moreover,

17 the court explained, the plaintiff “does not allege that the state government commanded a

18 particular result in, or otherwise participated in, his specific case.” Id. (emphasis added).

19 Similarly, in George v. Pacific-CSC Work Furlough, the plaintiff claimed that a government
20 contractor had engaged in state action when it terminated his employment. 91 F.3d 1227, 1229-30
21 (9th Cir. 1996). Once again, this was not enough both because “the County has neither legally

22 regulated nor contractually specified the manner in which [defendant] disciplines or terminates its

23 own employees” and because the plaintiff “made no allegations which would involve the

24 government in the decision to terminate him.” Id. at 1230-31.4

25
4
Collins v. Womancare, 878 F.2d 1145 (9th Cir. 1989), similarly makes clear that Plaintiff
26 has no viable claim under a joint action theory. That Section 1983 case arose from a citizen’s
27 arrest of individuals protesting on the defendant’s private property, which the plaintiffs sought to
characterize as joint action with state law enforcement officers who were on the scene and who
28 later prosecuted the protesters. Id. at 1148-49. The Ninth Circuit found no state action as a matter

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1 This case is even easier. YouTube does not receive federal funds conditioned on its acting

2 in ways that allegedly harmed Plaintiff. Nor are there any other laws, regulations, or government

3 contracts that even arguably mandated or encouraged the removal of Plaintiff’s videos. And, as in

4 Heineke and George, there is no allegation that any government actor instructed or urged

5 YouTube to remove, restrict, or take any other action in regard to Daniels’ videos. To the contrary,

6 the statements from Adam Schiff and Nancy Pelosi on which Plaintiff relies include no demands

7 (or even requests) related to the removal or demonetization of videos, no threats if YouTube failed

8 to remove content, and certainly nothing whatsoever about Daniels or his videos. See Compl., Exs.

9 A & B; Mot. 9 n.6. The problem is not only that Mr. Schiff and Ms. Pelosi “did not identify

10 Daniels by name” (Opp. 7), but rather that nothing in their statements made any reference to his

11 content, much less compelled Defendants to remove his videos or made the federal government a

12 joint participant in Defendants’ decision to do so. Accord Blum v. Yaretsky, 457 U.S. 991, 1010

13 (1982) (no state action where government regulations did “not dictate the decision to discharge or

14 transfer in a particular case”). The facts that Plaintiff emphasizes only highlight the implausibility

15 of his story. That YouTube’s CEO tweeted in response to Mr. Schiff that YouTube would “consult

16 with Members of Congress” regarding “issues around #COVID19” (Opp. 1, 5-7; Compl., Ex. C)

17 in no way suggests coercion or impermissible joint action. Nor does Mr. Schiff’s choice of

18 stationary (Opp. 1, 9-10) suggest that he “commanded a particular result in or otherwise

19
20
21 of law. Id. at 1154-56. The court explained that the “inquiry focuses on whether the state has ‘so
far insinuated itself into a position of interdependence with [the private entity] that it must be
22
recognized as a joint participant in the challenged activity.” Id. at 1154. “Joint action therefore
23 requires a substantial degree of cooperative action.” Id. (emphasis added). Suffice it to say here
that—just as in Collins—Plaintiff alleges no such interdependent or cooperative action in regard
24 to YouTube’s removal of Daniels’ videos. Accord Brunette v. Humane Soc’y, 294 F.3d 1205,
1211 (9th Cir. 2002) (private party can be liable under a “joint action” theory “only if its
25 particular actions are inextricably intertwined with those of the government”). As such, this case
is nothing like United States v. Price, which involved assaults by a group of state law
26
enforcement officers and private parties, where the “[s]tate officers participated in every phase of
27 the alleged venture: the release from jail, the interception, assault and murder” and “[i]t was a
joint activity, from start to finish.” 383 U.S. 787, 794-95 (1966).
28

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1 participated in” Mr. Daniels’ case or otherwise turn YouTube into a government actor. Heineke,

2 965 F.3d at 1014.5

3 “Google’s self-regulation, even of topics that may be of public concern, does not implicate

4 the First Amendment.” Tulsi Now, Inc., 2020 U.S. Dist. LEXIS 41673, at *6. The sentiments of

5 individual legislators do not change that reality.6 Were it otherwise, Google, YouTube, and many

6 other online platforms would be constitutionally prohibited from moderating even highly

7 objectionable, offensive, or dangerous user-content in any manner consistent with the expressed

8 views of certain members of Congress. That is not the law, and accepting Plaintiff’s

9 unprecedented theory would eviscerate Defendants’ own First Amendment rights and the “robust

10 sphere of individual Liberty” that the state-action doctrine is designed to protect. Halleck, 139 S.

11 Ct. at 1921.

12 PLAINTIFF FAILS TO STATE A CONTRACT-BASED CLAIM

13 In attempting to defend his contract-based claims, Plaintiff manufactures a sideshow about

14 supposed ambiguities in the agreements and policies that accompanied YouTube’s motion. Opp.

15 10-12, 15. But while Plaintiff does not actually identify any such ambiguities, none of this is

16 responsive to the arguments actually made in Defendants’ motion (or to the issues now before the

17 Court). The Complaint alleges that Plaintiff’s contract claims are based on the current version of

18
5
19 Unable to offer any actual connection to Mr. Schiff and Ms. Pelosi’s statements, Plaintiff
makes a convoluted argument that the “time sequence” alleged in the Complaint is evidence that
20 YouTube must have taken action against Daniels’ videos because of those statements. Opp. 6.
While such baseless speculation would not in any event establish state action, the timing actually
21 cuts further against Plaintiff’s theory. With respect to Plaintiff’s video accusing Dr. Fauci of
22 “murdering motherfuckers and causing medical illnesses since the 1980s,” for example, the
Complaint alleges only that Mr. Schiff sent a letter concerning vaccine misinformation on
23 February 14, 2019 (Compl., Ex. A)—more than 14 months before Plaintiff’s video was live
streamed on April 21, 2010 (id. ¶ 9). As for Mr. Schiff’s April 29, 2020 letter concerning
24 COVID-19 misinformation (id., Ex. B), the Complaint does not even allege that that statement
preceded the video’s removal—nor could it. And Ms. Pelosi’s public statement to “social media
25 executives” that “you will be held accountable” allegedly came even later, at a Georgetown
26 forum in June 2020. ¶ 24.
6
27 Since Defendants are not state actors, Plaintiff’s discussion of substantive First Amendment
principles—such as the limits on viewpoint-discrimination (Opp. 7-8)—is wholly irrelevant.
28

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1 YouTube’s Terms of Service. ¶ 85 (“A valid contract, to wit, YouTube’s Terms of Service for

2 content creators, exists between the parties; that contract can be found at

3 https://www.youtube.com/static?template=terms.”). Accepting the allegation that this is the

4 relevant contract,7 Plaintiff has failed to state a claim for breach.

5 Plaintiff focuses primarily on YouTube’s decision to remove his two videos from its

6 service. Opp. 12-15. But as Defendants explained (Mot. 13), the Terms of Service give YouTube

7 the right to do precisely that. Plaintiff homes in on the provision stating that YouTube may remove

8 content if it “reasonably believe[s]” that the content “is in breach of this Agreement or may cause

9 harm to YouTube, our users, or third parties.” Opp. 12-15 (quoting White Decl., Ex. 1). Plaintiff

10 argues that this provision creates a factual question that cannot be resolved on a motion to dismiss.

11 Id. at 14-15. That simply is not so. As an initial matter, while the reasonable-belief provision

12 expressly confers authority on YouTube to remove content in its “discretion,” it does not impose

13 an obligation on YouTube to host or display content in all other circumstances. White Decl., Ex. 1.

14 To the contrary, Plaintiff races past the separate (but equally relevant) provision that makes clear

15 that “YouTube is under no obligation to host or serve Content.” Id. (emphasis added). YouTube

16

17

18
7
19 In an effort to provide additional context to Plaintiff’s imprecise allegations, Defendants’
motion provided both the current Terms of Service and the version that preceded them, in
20 addition to related agreements and policies referenced in the Complaint. See Mot. 3 n.3. Plaintiff
apparently objects to the Court’s consideration of these documents generally (Opp. 2, 11-12),
21 although it is not clear which ones he wants the Court to disregard. This too is an irrelevant
22 distraction: the Court need only consider YouTube’s current Terms of Service—which are
expressly incorporated in the Complaint (¶ 85)—in order to resolve Defendants’ motion.
23
Taking a different tack, Plaintiff also complains that Defendants did not provide the version
24 of the Terms of Service in effect at the time he first joined YouTube in 2015. Opp. 11-12 & n.5.
But the Complaint identifies no conduct by Defendants in 2015 that would put those terms at
25 issue. And, of course, it is Plaintiff’s burden to identify the contract that was allegedly breached.
See In re Anthem, Inc. Data Breach Litig., 162 F. Supp. 3d 953, 978 (N.D. Cal. 2016). In any
26
event, the terms submitted with Plaintiff’s opposition are materially identical to the 2018 terms.
27 Compare, e.g., Declaration of M. Cris Armenta (“Armenta Decl.”), Ex. 1 ¶ 7.B, with Declaration
of Lauren Gallo White (“White Decl.”), Ex. 2 ¶ 7.2.
28

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1 would not breach the contract by removing content it is under no obligation to host in the first

2 place.8

3 But even putting that aside, and focusing on the reasonable-belief provision in isolation,

4 there is no factual issue. Plaintiff simply has not alleged anything to plausibly suggest that

5 YouTube lacked a reasonable belief that the two removed videos were in violation of the Terms of

6 Service or might have caused harm to YouTube or others. Plaintiff’s videos speak for themselves

7 (see White Decl., Exs. 8, 9; Mot. 5-6), and the Complaint itself acknowledges YouTube’s

8 determination that those videos violated its Community Guidelines, including its policies against

9 harassment and bullying. ¶¶ 9-10. Plaintiff’s apparent disagreement with YouTube’s policy

10 decisions does not create a fact issue or deprive YouTube of its contractual right to remove

11 content. That is especially true here, given that Plaintiff’s whole theory is that YouTube acted in

12 response to threats from legislators and out of fear that Congress would, among other things, “pass

13 legislation injurious to their business.” Opp. 6-7. While this does not create state action, it does

14 make clear that—under Plaintiff’s version of the facts—YouTube’s removal of Daniels’ videos

15 fell squarely within the discretion expressly conferred by the Terms of Service. On Plaintiff’s own

16 story, that is, YouTube acted under a reasonable belief that Daniels’ videos “may cause harm to

17 YouTube” (White Decl., Ex. 1).9

18

19 8
Plaintiff correctly notes that several of the cases cited in Defendants’ opening brief
20 considered a prior version of YouTube’s Terms of Service. See Mot. 13. But insofar as the
removal of content is concerned, any differences between the terms are immaterial. Compare
21 White Decl., Ex. 1, with id., Ex. 2, and Armenta Decl., Ex. 1. They each allow YouTube to
remove content from its service at its discretion, and based on a decision that content violates its
22
terms. See White Decl., Exs. 1-2; Armenta Decl., Ex. 1.
23 9
Schulken v. Washington Mutual Bank, 2011 U.S. Dist. LEXIS 117280 (N.D. Cal. Oct. 11,
24 2011), is readily distinguishable. There, the relevant contract incorporated by reference an
affirmative, statutory obligation prohibiting creditors from reducing credit limits absent certain
25 circumstances, including whether the creditor had “a reason to believe” that the consumer would
be unable to comply with repayment terms, due to a (specifically defined) “material change in
26 financial circumstances.” Id. at *21-22. The plaintiffs alleged not only that the defendants could
27 not have had a reason to believe in such a change, but also that there was in fact no material
change in the plaintiffs’ financial circumstances. Id. at *23-26. Here, in contrast, YouTube is
28 under no obligation to host Plaintiff’s videos, and the Complaint offers no factual allegation that

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Case 5:20-cv-04687-VKD Document 21 Filed 09/10/20 Page 14 of 21

1 Beyond the question of removals, as Defendants explained, the Terms of Service make no

2 promises about monetization, payments, or appeals. Mot. 12-15. The Terms of Service say nothing

3 about advertising or other revenue. See White Decl., Ex. 1. As for appeals, while the Terms of

4 Service direct users to YouTube’s Help Center to learn “how to appeal,” they make no promises

5 about that process, such as a certain outcome or time within which an appeal will be resolved. Id.

6 Nor do they promise to inform users of removals (or the reasons for them) within any specified

7 time period or through any specific channel. See id. Plaintiff’s arguments cannot change this

8 reality. According to the Complaint, YouTube communicated that Plaintiff’s videos were removed

9 for violating YouTube’s Community Guidelines and policies, and Plaintiff appealed those

10 decisions. ¶¶ 9-10. Insofar as Plaintiff expected a more immediate or specific explanation for

11 YouTube’s removal decisions (Opp. 10-11), or a more rapid appeals process resolving in his favor

12 (id. 11), these wishes have no support in the agreement. Moreover, Plaintiff does not (and could

13 not) allege to have suffered any harm as a result of YouTube’s supposed failure to provide a more

14 prompt or specific reason for its removals. Such allegations cannot give rise to a claim for breach

15 of contract.

16 Nor can an implied covenant help Plaintiff here. This theory too is based on the current

17 Terms of Service (Opp. 15), but Plaintiff does not explain how such a claim is not duplicative of

18 its breach of contract claim or equally invalid. Mot. 14-15. As explained above, that agreement

19 makes no promises (express or implied) about appeals, monetization, or payments. And on the
20 question of removal, the same problems that doom Plaintiff’s express breach claim rule out any
21 implied covenant claim. Plaintiff offers no meaningful response to YouTube’s arguments on this

22 point or to the long line of cases that have rejected similar implied covenant claims against Google

23 and YouTube. Plaintiff invokes Judge Gilliam’s recent decision in Enhanced Athlete Inc. v.

24 Google LLC, 2020 U.S. Dist. LEXIS 147100 (N.D. Cal. Aug. 14, 2020), but that case only further

25 supports Defendants’ position: as numerous courts had done before, Judge Gilliam dismissed a

26

27
YouTube’s actions exceeded the broad discretion to remove content expressly conferred by the
28 parties’ agreement.

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DEFENDANTS’ MOTION TO DISMISS
Case 5:20-cv-04687-VKD Document 21 Filed 09/10/20 Page 15 of 21

1 materially identical implied covenant claim against YouTube because “the parties’ agreements

2 authorized Defendants, in their discretion, to remove Plaintiff’s videos.” 2020 U.S. Dist. LEXIS

3 147100, at *17-18; see also Lewis, 2020 U.S. Dist. LEXIS 150603, at *40-44.

4 PLAINTIFF’S QUASI-CONTRACT CLAIMS FAIL AS A MATTER OF LAW

5 Plaintiff’s quasi-contract claims—for conversion, money had and received, and unjust

6 enrichment—are based on YouTube’s alleged withholding of Super Chat revenue. As Defendants

7 explained, these claims fail because, as the Complaint clearly alleges, the payment of Super Chat

8 revenue is subject to a written contract between the parties. Mot. 15-16.

9 In response, Plaintiff argues that these claims should survive because “YouTube failed to

10 identify any contract that governs the revenue-share for the SuperChat function.” Opp. 16. That

11 misses the point. It is Plaintiff who alleged—correctly—that this issue is governed by contract.

12 ¶ 13. Having made that allegation, Plaintiff pleaded himself out of any claim for quasi-contract.

13 Accord Gerlinger v. Amazon.com, Inc., 311 F. Supp. 2d 838, 856-57 (N.D. Cal. 2004) (dismissing

14 quasi-contract claim “[b]ecause plaintiff cannot allege in good faith, while maintaining his other

15 claims, that no contract exists between himself and either Amazon or Borders”); City of Oakland

16 v. Oakland Raiders, 2019 U.S. Dist. LEXIS 124465, at *52-53 (N.D. Cal. July 25, 2019), appeal

17 docketed, No. 20-16075 (9th Cir. June 1, 2020) (dismissing quasi-contract claim when plaintiff

18 alleged defendant’s actions were governed by lease agreement). Plaintiff cannot change that

19 reality because he failed to identify the specific contract that governs, and it is not YouTube’s
20 burden to supply the terms of the relevant agreement to support its motion, which is based on the
21 allegations of Plaintiff’s Complaint.

22 Likewise, while it is true that quasi-contractual claims can be viable to recover for harm

23 “which occurred distinct from the parties’ agreement” (Opp. 16 (emphasis added) (quoting

24 Haskins v. Symantec Corp., 2013 U.S. Dist. LEXIS 169865, at *35 (N.D. Cal. Dec. 1, 2013)),

25 Plaintiff has not alleged any such harm—nor could he. To the contrary, his expressly alleged

26 theory is that “YouTube has retained those monies despite its contractual agreement that it would

27 share them with Mr. Daniels.” ¶ 13. That ends the matter: “an action based on an implied-in-fact

28 or quasi-contract cannot lie where there exists between the parties a valid express contract

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DEFENDANTS’ MOTION TO DISMISS
Case 5:20-cv-04687-VKD Document 21 Filed 09/10/20 Page 16 of 21

1 covering the same subject matter.” Lance Camper Mfg. Corp. v. Republic Indem. Co., 44 Cal.

2 App. 4th 194, 203 (1996); accord Hedging Concepts, Inc. v. First Alliance Mortg. Co., 41 Cal.

3 App. 4th 1410, 1419-20 (1996).

4 On top of that, as discussed in Defendants’ opening brief, many courts have found that

5 unjust enrichment is not a cause of action under California law. Opp. 16. Plaintiff responds by

6 citing a non-precedential Ninth Circuit disposition, Bruton v. Gerber Prod. Co., 703 F. App’x 468

7 (9th Cir. 2017), which recognized that the California Supreme Court “allow[ed] an independent

8 claim for unjust enrichment to proceed in an insurance dispute.” Id. at 470 (citing Hartford Cas.

9 Ins. Co. v. J.R. Mktg., 61 Cal. 4th 988, 1000 (2015)). While there is indeed some uncertainty

10 around this issue, accord ESG Capital Partners, LP v. Stratos, 828 F.3d 1023, 1038 (9th Cir.

11 2016), that is no help to Plaintiff. The cases that have allowed unjust enrichment claims under

12 California law have done so by construing such a claim “as a quasi-contract claim seeking

13 restitution.” Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 762 (9th Cir. 2015); accord

14 Gearsource Holdings, LLC v. Google LLC, 2020 U.S. Dist. LEXIS 119892, at *36-37 (N.D. Cal.

15 July 8, 2020). But even if Plaintiff’s unjust enrichment claim were so construed, it still would fail.

16 “As a matter of law, a quasi-contract action for unjust enrichment does not lie where, as here,

17 express binding agreements exist and define the parties’ rights.” Cal. Med. Ass’n, Inc. v. Aetna

18 U.S. Healthcare of Cal., Inc., 94 Cal. App. 4th 151, 172 (2001); accord Ellis v. JPMorgan Chase

19 & Co., 752 F. App’x 380, 383 (9th Cir. 2018) (unjust enrichment “is not available” where “a
20 contract defines the rights of the parties”); Brodsky v. Apple Inc., 2020 U.S. Dist. LEXIS 61137, at
21 *44-46 (N.D. Cal. Apr. 7, 2020) (dismissing unjust enrichment claim where plaintiff sought to

22 enforce rights under contract); Carlson Produce LLC v. Clapper, 2020 U.S. Dist. LEXIS 17936, at

23 *10 (N.D. Cal. Feb. 3, 2020) (DeMarchi, J.) (dismissing claim for quantum meruit/unjust

24 enrichment in light of written contract).

25 Finally, Plaintiff fails to overcome the additional hurdle to his conversion claim. As

26 Defendants explained (Mot. 16), to state a claim, Plaintiff must specify a sum capable of

27 identification. See Software Design & Application, Ltd. v. Hoefer & Arnett, Inc., 49 Cal. App. 4th

28 472, 485 (1996). He has not done so. The opposition brief refers vaguely to “funds that

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DEFENDANTS’ MOTION TO DISMISS
Case 5:20-cv-04687-VKD Document 21 Filed 09/10/20 Page 17 of 21

1 [Plaintiff’s] supporters donated through the YouTube SuperChat platform but that he never

2 received because YouTube removed his videos and pocketed the money.” Opp. 17. But that only

3 underscores the problem: “where the money or fund is not identified as a specific thing the action

4 is to be considered as one upon contract or for debt”—but “not for conversion.” Voris v. Lampert,

5 7 Cal. 5th 1141, 1151-52 (2019). Plaintiff does not identify any information about the sum

6 supposedly at issue. He does not identify the “supporters” whose donations were withheld, the

7 videos that those donations were paid in connection with, or even an approximate date on which

8 the money was supposedly donated. Indeed, he does not even provide a ballpark figure of the

9 amount Defendants have allegedly withheld. And while Plaintiff argues that he lost access to

10 “analytics” and needs discovery to ascertain the amount he is allegedly owed (Opp. 16-17), none

11 of this is supported in the Complaint, or even by his attorney’s declaration.10 And none of it

12 provides a justification for ignoring the established standards for conversion claims.

13 PLAINTIFF FAILS TO STATE A CLAIM UNDER THE UCL

14 In the face of Defendants’ motion, Plaintiff abandons his claims for fraud in the

15 inducement and wire fraud. Opp. 18. Plaintiff persists in defending his claim under the UCL, but

16 he now says the claim is based on the statute’s unlawful and unfair prongs. Yet again, Plaintiff’s

17 attempt to amend his pleadings—which plainly allege that YouTube acted “unlawfully” (¶ 97) and

18 engaged in “fraudulent” conduct (¶ 98)—is improper. See Diamond, 395 F. Supp. 3d at 1231.

19 Regardless, under any prong, the claim fails. Plaintiff concedes that, under the unlawfulness prong
20 (¶ 97), the UCL claim “will necessarily rise or fall with Daniels’ claims that Defendants violated
21 his First Amendment rights.” Opp. 18. That claim falls with its predicate First Amendment claim

22 (see supra pp. 2-6)—and, further, is barred by Section 230 and the First Amendment (see infra pp.

23 13-15). As for a claim predicated on the theory that YouTube fraudulently withheld money due to

24

25 10
Plaintiff seemingly seeks to blame the deficiencies of his Complaint on the timing of the
parties’ pre-motion meet and confer. Opp. 6 n.3, 16. This Court’s rules do not require a meet and
26
confer before a motion to dismiss is filed. Regardless, if Plaintiff wanted to amend his
27 Complaint, he was free to do so in lieu of opposing Defendants’ motion. See Fed. R. Civ. P.
15(a)(1)(B).
28

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DEFENDANTS’ MOTION TO DISMISS
Case 5:20-cv-04687-VKD Document 21 Filed 09/10/20 Page 18 of 21

1 Daniels,11 whether Plaintiff predicates the claim as one under the unfairness prong or the fraud

2 prong, it remains predicated on a misrepresentation (¶ 98) and therefore is governed by Rule

3 9(b)’s particularity standard. See Kearns v. Ford Motor Co., 567 F.3d 1120, 1125-27 (9th Cir.

4 2009) (where UCL unfairness claim is “‘grounded in fraud’ . . . the pleading of that claim as a

5 whole must satisfy the particularity requirement of Rule 9(b)”). As Defendants explained (Mot.

6 16-18), and as Plaintiff’s abandonment of his fraud claims concedes, the Complaint comes

7 nowhere close to meeting this standard.

8 PLAINTIFF CANNOT EVADE SECTION 230 OR THE FIRST AMENDMENT

9 In their opening brief (at 20-22), Defendants explained why Section 230(c)(1), Section

10 230(c)(2)(A), and the First Amendment all bar the primary theory underlying Plaintiff’s claims:

11 that Defendants removed or demonetized Plaintiff’s videos as part of a scheme to censor his

12 speech. Plaintiff’s opposition brief cannot overcome any of these three independent protections.

13 First, Plaintiff almost entirely ignores Section 230(c)(1). He does not even acknowledge,

14 much less try to distinguish, the extensive body of cases applying Section 230(c)(1) to bar claims

15 just like Plaintiff’s. See Mot. 20-21 & n.11. Insofar as Plaintiff is trying to suggest that the

16 limitations on Section 230(c)(2) immunity—such as a “good faith” standard—apply to (c)(1),

17 Opp. 19-20, that is simply wrong: “the text of the two subsections of § 230(c) indicates that

18 (c)(1)’s immunity applies regardless of whether the publisher acts in good faith.” Levitt v. Yelp!

19 Inc., 2011 U.S. Dist. LEXIS 124082, at *24 (N.D. Cal. Oct. 26, 2011); see also Barnes v. Yahoo!,
20 Inc., 570 F.3d 1096, 1105 (9th Cir. 2009) (explaining that Section 230(c)(1) and (c)(2) are
21 overlapping but distinct immunities with different standards). In short, as case after case has

22 recognized, Section 230(c)(1) by itself requires dismissal of any claims that seek to hold YouTube

23 liable for its decision to remove or demonetize Plaintiff’s videos.

24

25

26 11
Plaintiff says he “did not allege ‘fraudulent’ business practices in his UCL claim.” Opp. 18
27 n.12. This is demonstrably untrue. See ¶ 98 (“the conduct of Defendant YouTube constitutes
unfair competition under section 17200 because it engaged in fraudulent business acts or
28 practices” (emphasis added)).

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Case 5:20-cv-04687-VKD Document 21 Filed 09/10/20 Page 19 of 21

1 Second, even as to Section 230(c)(2), Plaintiff’s arguments miss the mark. The Ninth

2 Circuit’s recent decision in Enigma Software Group USA, LLC v. Malwarebytes, Inc., 946 F.3d

3 1040 (9th Cir. 2019), which did not address Section 230(c)(1) at all, has no bearing on this case.

4 The issue addressed in Enigma was whether the phrase “otherwise objectionable” in Section

5 230(c)(2) applied to anti-malware software that the defendant allegedly blocked with its

6 competing software solely because of “anticompetitive animus.” 946 F.3d at 1050-52. There is

7 nothing remotely like that here. Plaintiff makes no claim that Defendants acted for any anti-

8 competitive reason. Nor did Enigma otherwise limit the meaning of “otherwise objectionable.” To

9 the contrary, the Ninth Circuit confirmed that the category of “otherwise objectionable” content

10 should be construed broadly to allow service providers to take action against “forms of unwanted

11 online content that Congress could not identify in the 1990s.” Enigma, 946 F.3d at 1052.

12 Likewise, Plaintiff is simply wrong to suggest that Section 230 does not apply where content is

13 otherwise constitutionally protected. Opp. 21-22. By its express terms, the statute immunizes

14 service providers based on any action to restrict material “whether or not such material is

15 constitutionally protected.” 47 U.S.C. § 230(c)(2)(a) (emphasis added).

16 Nor has Plaintiff plausibly alleged that YouTube’s actions were in bad faith and thus

17 outside the protections of Section 230(c)(2)(A). Plaintiff relies primarily on Enhanced Athlete, but

18 there (unlike here), the court did not have the benefit of descriptions of the specific contents of the

19 plaintiff’s videos. 2020 U.S. Dist. LEXIS 147100, at *2; see also Compl. ¶¶ 9-10; White Decl.,
20 Exs. 8-9. Instead, the court relied on allegations that its videos “were in full compliance with
21 YouTube’s Terms of Use and Community Guidelines” and “had appeared on Plaintiff’s accounts

22 for months or even years without Defendants raising any concerns about their content.” Enhanced

23 Athlete, 2020 U.S. Dist. LEXIS 147100, at *2, *10-12. Here, in contrast, while Plaintiff argues

24 that his videos cannot be classified as “obscenity, harassment, and the like” (Opp. 21), he does not

25 actually allege that his removed videos complied with YouTube’s Community Guidelines or that

26 YouTube permitted those videos to appear for months or years—nor could he, consistent with

27 Rule 11. Again, the videos speak for themselves (see White Decl., Exs. 8-9); and it is undisputed

28 that YouTube removed the videos within a matter of weeks (or days) for violating its Community

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DEFENDANTS’ MOTION TO DISMISS
Case 5:20-cv-04687-VKD Document 21 Filed 09/10/20 Page 20 of 21

1 Guidelines, including its policies against harassment and bullying. ¶¶ 9-10. Further, other than

2 boilerplate, Plaintiff does not allege any facts to suggest that Defendants had some improper

3 motive for removing or demonetizing his content. To the contrary, as discussed, Plaintiff’s theory

4 is that Defendants took down Plaintiff’s videos based on supposed pressure from influential

5 members of Congress to combat misinformation on its platform. See, e.g., Opp. 5-6, 9-10; ¶¶ 2,

6 20-29. Implausible though this theory is, it does not amount to bad faith under Section 230(c)(2).

7 Finally, Plaintiff’s response to Defendants’ First Amendment argument (Mot. 22-23) is

8 entirely circular. He argues that “the government cannot defend on the ground that it was merely

9 exercising its own First Amendment rights.” Opp. 24. This may be so, but Defendants are not the

10 government, and Google and YouTube’s First Amendment right to exercise “editorial discretion

11 over speech and speakers on their property” is further reason not to treat them as such. Halleck,

12 139 S. Ct. at 1931. Equally flawed is Plaintiff’s passing suggestion (Opp. 23) that Section 230—a

13 federal statute—somehow limits Defendants’ constitutional protections. Section 230 complements

14 and reinforces online services’ First Amendment right of editorial judgment, but it does not (and

15 could not) narrow that right.

16 As for Plaintiff’s contention that “First Amendment rights are irrelevant to Daniels’ claims

17 for conversion, breach of contract, breach of the implied covenant, or violation of Section 17200,”

18 as Defendants explained (Mot. 20, 22), the First Amendment applies against any claims that seek

19 to hold Defendants liable for their decisions to remove, demote, or demonetize Plaintiff’s content.
20 It may be that the conversion claim falls outside that protection (though that claim fails of its own
21 accord), but as Plaintiff articulates his contract claims and his claim under Section 17200, they

22 seek to do precisely what the First Amendment forbids.

23 CONCLUSION

24 For these reasons and those in Defendants’ opening brief, Plaintiff’s Complaint should be

25 dismissed.

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DEFENDANTS’ MOTION TO DISMISS
Case 5:20-cv-04687-VKD Document 21 Filed 09/10/20 Page 21 of 21

1 Respectfully submitted,

2
Dated: September 10, 2020 WILSON SONSINI GOODRICH & ROSATI
3 Professional Corporation
4
By: /s/ Lauren Gallo White
5 Lauren Gallo White
6
Attorneys for Defendants
7 GOOGLE LLC, YOUTUBE, LLC, and
ALPHABET INC.
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DEFENDANTS’ MOTION TO DISMISS