L.W. v. Snap Inc.

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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L.W., minor child through her legal Case No.: 22cv619-LAB-MDD

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guardian Jane Doe, on behalf of

12 herself and all others similarly ORDER:

situated; et al.,

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(1) GRANTING MOTIONS TO

Plaintiffs,

14 DISMISS FIRST AMENDED

v. COMPLAINT [Dkt. 51, 53, 54];

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SNAP INC.; et al.

16 (2) DENYING AS MOOT

Defendants. MOTION TO STRIKE

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ALLEGATIONS [Dkt. 52];

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(3) GRANTING MOTION TO

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SEAL [Dkt. 64]; AND

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(4) DENYING MOTION FOR

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RULE 11 SANCTIONS [Dkt. 67]

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23 Minor Plaintiffs L.W., C.A., and C.O. (collectively, “Plaintiffs”) commenced

24 this suit against Defendants Snap Inc. (“Snap”), Apple Inc. (“Apple”), and

25 Google LLC (“Google”) (collectively, “Defendants”) for claims stemming from

26 allegations that Snap’s Snapchat application, available for download through the

27 Apple Store and Google Play, is an inherently dangerous software product that

28 Defendants deceptively advertise and promote in a way that facilitates sex crimes

1 against children. Plaintiffs’ First Amended Complaint (“FAC”) asserts ten causes

2 of action against Defendants, including for product liability, fraudulent and

3 negligent misrepresentation, and violation of various state consumer protection

4 laws.

5 Defendants separately filed motions to dismiss the FAC, (Dkt. 51, 53, 54),

6 and Defendant Apple also filed a Motion to Strike Class Allegations, (Dkt. 52). On

7 November 15, 2022, the Court held a hearing on the respective motions to

8 dismiss. Defendant Snap filed a Motion for Rule 11 Sanctions against Plaintiffs,

9 citing certain offending allegations made in the FAC, (Dkt. 67), and requesting

10 further that the Motion for Sanctions be sealed, (Dkt. 64). The Court determined

11 the latter motions would be decided on the papers. (Dkt. 77).

12 The Court has read all materials submitted in support of and in opposition

13 to the respective motions, and rules as follows.

14 I. BACKGROUND

15 Snapchat is a “a widely popular photo sharing application” that allows users

16 to exchange photos and messages and engage in video chats with one another.

17 (FAC ¶ 83). A distinguishing feature of Snapchat is its ephemeral

18 nature—meaning communications automatically disappear after being opened.

19 (Id. ¶ 86). Users can connect with one another by either searching for another

20 user and requesting to add them as a “friend,” or by using the “Quick Add”

21 function, which “suggests that a user add another user as a friend . . . based on

22 who you’re already friends with, who you subscribe to, and other factors.” (Id.

23 ¶ 76). Snapchat can be downloaded on users’ mobile phones through the Apple

24 Store or Google Play, which are “digital distribution platform[s] where individuals

25 can buy and download digital software and applications,” like Snapchat. (Id.

26 ¶¶ 135, 151).

27 When Plaintiff L.W. was 12 years old, “on or about” September 5, 2018,

28 adult Perpetrator B.P. first approached her on Instagram. (Id. ¶¶ 2–3). B.P. asked

1 L.W. to connect with him on Snapchat, and began conversing with her regularly.

2 (Id. ¶¶ 3–4). On September 11, 2018, B.P. “demanded” a nude photograph from

3 L.W. and sent her a picture of his erect penis. (Id. ¶ 6). Over the next two-and-a-

4 half years, and through April 15, 2021, B.P. sexually groomed L.W. by

5 “manipulat[ing] and coerc[ing] her” to send him pornographic images and videos

6 of herself over Snapchat. In turn, he sent her hundreds of pornographic photos

7 and videos of himself. (Id. ¶¶ 7,11). Although L.W. tried to block B.P. on numerous

8 occasions, he was able to resume contact through Instagram or a fake account

9 and ask L.W. to reconnect with him on Snapchat until she yielded to his request.

10 (Id. ¶ 13). Further, B.P. used the app Chitter to distribute the Child Sexual Abuse

11 Material (“CSAM”) of L.W. to others. (Id. ¶¶ 21–23). “B.P. admitted that he solely

12 used Snapchat with L.W.—and not any other social media platform—to gain new

13 CSAM and transmit his pornographic images and videos to her because he

14 ‘kn[e]w the chats [would] go away’ on Snapchat.” (Id. ¶ 14).

15 Plaintiff C.A. was also 12 years old when, in 2021, an adult “perpetrator,”

16 connected with her on Twitter. (Id. ¶¶ 43–44, 47). “The perpetrator

17 [then] . . . connected with her on [S]napchat.” (Id. ¶ 45). The perpetrator had been

18 “charged with serious sexual crimes against minor victims,” but “Snapchat

19 enabled him to make a new account without any issues,” and “[u]pon information

20 and belief . . . knew that this sex offender was using its platform but failed to stop

21 him.” (Id. ¶¶ 49–50). The perpetrator proceeded to request CSAM from C.A. and

22 sent her CSAM depicting other minors, and through manipulation and coercion,

23 obtained 20 to 30 sexually explicit pictures and 10 or 15 sexually explicit videos

24 from her. (Id. ¶¶ 51–54). In March 2021, the perpetrator travelled to C.A.’s state

25 and pressured her to engage in sexual acts with him, which he filmed and later

26 distributed online. (Id. ¶¶ 54–55). “In April 2021, another perpetrator connected

27 with C.A. on Kik, a social media app,” and asked to move their conversations to

28 Snapchat. (Id. ¶¶ 59–60). “On Snapchat, the second perpetrator sent C.A. explicit

1 photos and videos” of himself for the next several weeks. (Id. ¶¶ 61–62).

2 Plaintiff C.O. was 11 years old when, in 2018, a “perpetrator” connected with

3 her on Omegle, “an online video chat room,” and asked for her username. He later

4 connected with her on Snapchat. (Id. ¶¶ 69–70). On Snapchat, the perpetrator

5 pretended to be a minor girl, requested CSAM from C.O., and sent her CSAM

6 from other minors. C.O. eventually sent him nude photographs of herself. (Id.

7 ¶¶ 72–73). “Since 2018 four or five additional perpetrators sought to connect with

8 C.O.[] on Snapchat”—some through Quick Add—“and similarly coerced her to

9 send nude photos and CSAM,” as well as sent her sexually explicit photos and

10 videos of themselves. (Id. ¶¶ 74–75, 77). Upon information and belief,” these

11 perpetrators “downloaded Snapchat using Apple’s and Google’s App Stores.”

12 (Id. ¶¶ 38, 67, 79).

13 Plaintiffs allege ten claims against all three Defendants: (1) strict liability

14 product design and defect; (2) strict product liability (failure to warn);

15 (3) negligence and negligence per se product design and defect; (4) fraudulent

16 misrepresentation and negligent misrepresentation; (5) unjust enrichment;

17 (6) violation of California’s Unfair Competition Law and False Advertising Law;

18 (7) violation of the Colorado Consumer Protection Act; (8) violation of the

19 Kentucky Consumer Protection Act; (9) injunctive relief; and (10) violation of the

20 Trafficking Victims Protection Act (“TVPRA”), 18 U.S.C. §§ 1591, 1595.

21 II. MOTION TO DISMISS

22 A. Legal Standard

23 A motion brought under Federal Rule of Civil Procedure 12(b)(6) tests the

24 sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “To

25 survive a motion to dismiss, a complaint must contain sufficient factual matter,

26 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

27 v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

28 544, 547 (2007)). A claim is facially plausible when the factual allegations permit

1 “the court to draw the reasonable inference that the defendant is liable for the

2 misconduct alleged.” Id. While a plaintiff need not give “detailed factual

3 allegations,” a plaintiff must plead sufficient facts that, if true, “raise a right to relief

4 above the speculative level.” Twombly, 550 U.S. at 545. “The plausibility standard

5 is not akin to a ‘probability requirement,’ but it asks for more than a sheer

6 possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting

7 Twombly, 550 U.S. at 556). The Court need not accept legal conclusions couched

8 as factual allegations. See Twombly, 550 U.S. at 555.

9 B. Section 230 of the Communications Decency Act

10 Defendants first argue that they are immune from suit under

11 Section 230(c)(1) of the Communications Decency Act of 1996 (“CDA”), 47 U.S.C.

12 § 230(c)(1), which “protects certain internet-based actors from certain kinds of

13 lawsuits.” Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1099 (9th Cir. 2009). The statute

14 provides, in relevant part, that “[n]o provider or user of an interactive computer

15 service shall be treated as the publisher or speaker of any information provided

16 by another information content provider.” 47 U.S.C. § 230(c)(1). The statute also

17 provides that “[n]o cause of action may be brought and no liability may be imposed

18 under any State or local law that is inconsistent with this section.” 47 U.S.C.

19 § 230(e)(3). “The majority of federal circuits have interpreted the CDA to establish

20 broad federal immunity to any cause of action that would make service providers

21 liable for information originating with a third-party user of the service.” Perfect 10,

22 Inc. v. CCBill LLC, 488 F.3d 1102, 1118 (9th Cir. 2007) (citations and internal

23 quotation marks omitted).

24 CDA immunity under Section 230(c)(1) “applies only if the interactive

25 computer service provider is not also an ‘information content provider,’ which is

26 defined as someone who is ‘responsible, in whole or in part, for the creation or

27 development of’ the offending content.” Fair Hous. Council of San Fernando

28 Valley v. Roommates.com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008) (en banc)

1 (quoting 47 U.S.C. § 230(f)(3)). The “prototypical service qualifying for [CDA]

2 immunity is an online messaging board (or bulletin board) on which Internet

3 subscribers post comments and respond to comments posted by others.” Kimzey

4 v. Yelp! Inc., 836 F.3d 1263, 1266 (9th Cir. 2016) (quoting FTC v. Accusearch

5 Inc., 570 F.3d 1187, 1195 (10th Cir. 2009)). Under the Ninth Circuit’s three-prong

6 test, immunity from liability exists for “(1) a provider or user of an interactive

7 computer service (2) whom a plaintiff seeks to treat, under a state law cause of

8 action, as a publisher or speaker (3) of information provided by another

9 information content provider.” Barnes, 570 F.3d at 1101. “When a plaintiff cannot

10 allege enough facts to overcome Section 230 immunity, a plaintiff’s claims should

11 be dismissed.” Dyroff v. Ultimate Software Grp., Inc., 934 F.3d 1093, 1097

12 (9th Cir. 2019) (citation omitted).

13 1. Interactive Computer Services

14 Plaintiffs don’t contest Defendants’ status as providers of interactive

15 computer services within the meaning of Section 230. (Dkt. 63 at 3). Under the

16 statute, “[t]he term ‘interactive computer service’ means any information service,

17 system, or access software provider that provides or enables computer access by

18 multiple users to a computer server, including specifically a service or system that

19 provides access to the Internet and such systems operated or services offered by

20 libraries or educational institutions.” 47 U.S.C. § 230(f)(2). Courts have noted that

21 providers of interactive computer services include entities that create, own, and

22 operate applications that enable users to share messages over its internet-based

23 servers, like Defendants. See, e.g., Coffee v. Google, LLC, No. 20-CV-03901-

24 BLF, 2022 WL 94986, at *5 (N.D. Cal. Jan. 10, 2022) (acknowledging that Google,

25 whose Play Store “contains more than 2.9 million third-party apps on its virtual

26 shelves” for user purchase and download, qualifies as an interactive computer

27 service provider); Lemmon v. Snap, Inc., 995 F.3d 1085, 1091 (9th Cir. 2021)

28 (holding Snap, the creator, owner, and operator of an application that “permits its

1 users to share photos and videos through [its] servers and the internet,” qualifies

2 as a “provider of an interactive computer service”) (citations and internal quotation

3 marks omitted). The Court agrees that Snap, Google, and Apple each qualify as

4 interactive computer service providers.

5 2. Defendants are Information Content Providers

6 The next consideration is “whether the claims ‘inherently require[] the court

7 to treat the defendant as the ‘publisher or speaker’ of content provided by

8 another.’” Dyroff, 934 F.3d at 1098 (alteration in original) (quoting Barnes, 570

9 F.3d at 1102). Plaintiffs argue their claims do not treat Defendants as publishers

10 or speakers, but rather “focus[] on the inherently dangerous design of Defendants’

11 products that can be made safer without altering third-party content.” (Dkt. 63

12 at 4). They maintain that by enabling the transmission of ephemeral content on

13 the application, Defendants facilitate the exchange of CSAM, and that Snap’s

14 design of the application assists users in “evad[ing] supervision by legal guardians

15 or law enforcement.” (Id.). Defendants respond that, regardless of how Plaintiffs’

16 claims are styled, Plaintiffs are seeking to hold them liable for content published

17 by third parties.

18 A website acts as a publisher when it decides whether to post online

19 material submitted by a third party. See Roommates.com, 521 F.3d at 1170.

20 Publication “involves reviewing, editing, and deciding whether to publish or to

21 withdraw from publication third-party content.” Barnes, 570 F.3d at 1102 (citation

22 omitted) (“[A] publisher reviews material submitted for publication, perhaps edits

23 it for style or technical fluency, and then decides whether to publish it.”). “[A]ny

24 activity that can be boiled down to deciding whether to exclude material that third

25 parties seek to post online is perforce immune under section 230.” Id. at 1170–

26 71. “[W]hat matters is not the name of the cause of action—defamation versus

27 negligence versus intentional infliction of emotional distress—what matters is

28 whether the cause of action inherently requires the court to treat the defendant as

1 the ‘publisher or speaker’ of content provided by another.” Id. at 1101–02.

2 Applying these definitions, the Court must treat Defendants as publishers or

3 speakers, regardless of how their claims are framed, because their theories of

4 liability plainly turn on Defendants’ alleged failure to monitor and remove

5 third-party content. By definition, Snap’s failure to remove CSAM distributed on

6 Snapchat by third parties, and Apple’s and Google’s choice to allow Snapchat to

7 remain available for download in their online stores, involve “reviewing . . . and

8 deciding whether to publish or to withdraw from publication third-party content.”

9 Barnes, 570 F.3d at 1102–03 (holding the “removal of the indecent profiles that

10 [plaintiff’s] former boyfriend posted on Yahoo’s website . . . is something

11 publishers do, and to impose liability on the basis of such conduct necessarily

12 involves treating the liable party as a publisher of the content it failed to remove”);

13 Ginsberg v. Google Inc., 586 F. Supp. 3d 998, 1004–05 (N.D. Cal. 2022) (holding

14 the alleged conduct—failure to remove an application from Google’s Play Store—

15 “boils down to deciding whether to exclude material . . . that a third party seeks to

16 place in the online Play Store”). Whether they style their allegations as claims for

17 product liability, fraud, or negligence, Plaintiffs can’t sue Defendants “for third-

18 party content simply by changing the name of the theory.” Barnes, 570 F.3d at

19 1102; see also Bride v. Snap Inc., No. 221CV06680FWSMRW, 2023

20 WL 2016927, at *5 (C.D. Cal. Jan. 10, 2023) (“Ultimately, although Plaintiffs frame

21 user anonymity as a defective design feature of Defendants’ applications,

22 Plaintiffs fundamentally seek to hold Defendants liable based on content

23 published by anonymous third parties on their applications.”); Ginsberg,

24 586 F. Supp. 3d at 1006 (finding the second prong satisfied where “the

25 undertaking that Google allegedly failed to perform with due care was removing

26 offending content from the Play Store”).

27 Attempting to end run these definitional barriers, Plaintiffs argue that

28 Defendants aren’t entitled to Section 230 immunity because they materially

1 contributed to the wrongful behavior that caused harm to Plaintiffs. (Dkt. 63 at 7).

2 They urge the Court to view this case as falling within the ambit of Lemmon, which

3 rejected arguments that section 230 immunity protected Snap against claims

4 arising from use of its Snapchat app. Lemmon involved Snapchat’s “Speed Filter,”

5 an “interactive system” that “encouraged [Snapchat’s] users to pursue certain

6 unknown achievements and rewards” and “entice[d] young Snapchat users to

7 drive at speeds exceeding 100 MPH.” 995 F.3d at 1091–92. Plaintiffs alleged that

8 these functions didn’t involve Snap’s “editing, monitoring, or removing of the

9 content that its users generate through Snapchat.” Id. at 1092. The Ninth Circuit

10 agreed, concluding that because the plaintiffs’ claims turned on Snap’s own

11 design feature, it didn’t enjoy publisher status and wasn’t entitled to Section 230

12 immunity. Id. at 1093. The Ninth Circuit reached a similar conclusion in

13 Roommates.com, holding that an online platform for matching roommates to one

14 another was not entitled to Section 230 immunity because the platform was

15 specifically designed to match potential roommates based on criteria such as sex,

16 family status, and sexual orientation, thereby encouraging users to post content

17 that violated fair housing laws. 521 F.3d at 1167–68. The court held that “[b]y

18 requiring subscribers to provide the [discriminatory] information as a condition of

19 accessing its service,” including the requirement to choose between “a limited set

20 of pre-populated answers,” the website became “much more than a passive

21 transmitter,” and instead became “the developer, at least in part, of that

22 information.” Id. at 1166. According to the court, “Roommate’s own acts—posting

23 the questionnaire and requiring answers to it—are entirely its doing and thus

24 section 230 of the CDA does not apply to them.” Id. at 1165.

25 Plaintiffs make a similar argument here—that Snapchat’s ephemeral design

26 features, specifically the disappearing messages and the Quick Add function,

27 combined with users’ ability to create multiple accounts—is inherently dangerous

28 and doesn’t involve any material contribution by either of the three Defendants.

1 These design features, in Plaintiffs’ view, make Snapchat the platform of choice

2 for those seeking to engage in “exploitation and predatory behavior” “without the

3 fear of getting caught.” (FAC ¶¶ 86–90). And despite Snap’s policy against child

4 exploitation and the distribution of CSAM, the platform’s existing “CSAM detection

5 technology like PhotoDNA and CSAI Match is . . . a poor fit to prevent sexual

6 grooming on Snapchat.” (Id. ¶¶ 102, 110).

7 After thoughtfully considering Plaintiffs’ arguments, the Court disagrees.

8 Unlike in Lemmon and Roommates.com, the harm Plaintiffs allege here doesn’t

9 flow from a design defect. Rather, the harm animating Plaintiffs’ claims “is directly

10 related to the posting of third-party content on [Snapchat].” Doe v. Twitter, Inc.,

11 555 F. Supp. 3d 889, 930 (N.D. Cal. 2021), aff’d in part, rev’d in part and

12 remanded sub nom. Doe #1 v. Twitter, Inc., No. 22-15103, 2023 WL 3220912

13 (9th Cir. May 3, 2023), abrogated by Does 1-6 v. Reddit, Inc., 51 F.4th 1137 (9th

14 Cir. 2022). As other courts have observed, the alleged flaws in Snapchat’s design,

15 “in essence, seek to impose liability on [Snap] based on how well [Snap] has

16 designed its platform to prevent the posting of third-party content containing child

17 pornography and to remove that content after it is posted.” Twitter, Inc.,

18 555 F. Supp. 3d at 930. “[T]o meet the obligation Plaintiffs seek to impose on

19 [Defendant] on this claim, [Defendant] would have to alter the content posted by

20 its users, in contrast to the design defect alleged in Lemmon.” Id. Here, similarly,

21 Plaintiffs’ arguments more closely implicate a publication function than a design

22 or development function.

23 Plaintiffs’ product liability claims against Google and Apple fare no better.

24 As with Snapchat, their claims against Google and Apple don’t turn on the

25 publication of dangerous applications, but rather “on the Defendants’ facilitation

26 of sale and recommendation of inherently dangerous app[lication]s (namely

27 Snapchat and Chitter), for which they receive a commission from those

28 app[lication]s and users.” (Dkt. 63 at 3). Citing to HomeAway v. City of Santa

1 Monica, 918 F.3d 676, 684–85 (9th Cir. 2018), Plaintiffs argue that Apple and

2 Google can be held liable for their “facilitation of downloading the app[lications],

3 recommendation of the app[lications], and pocketing a commission” when those

4 applications are downloaded from their respective platforms. (Dkt. 63 at 3–4, 6).

5 But as Defendants point out, the Ninth Circuit has consistently held that an online

6 platform’s use of neutral algorithms to recommend content to users does not

7 forfeit the platform’s entitlement to Section 230 immunity. See Gonzalez v. Google

8 LLC, 2 F.4th 871, 894 (9th Cir. 2021), reversed rev’d on other grounds by Twitter,

9 Inc., v. Taamneh, No. 21-1496, 2023 WL 3511531, at *14 (U.S. May 18, 2023)

10 (“Though we accept as true the [complaint]’s allegation that Google’s algorithms

11 recommend ISIS content to users, the algorithms do not treat ISIS-created content

12 differently than any other third-party created content, and thus are entitled to § 230

13 immunity.”); Dyroff, 934 F.3d at 1098 (distinguishing HomeAway.com and holding

14 that “[b]y recommending user groups and sending email notifications,

15 [Defendant] . . . was acting as a publisher of others’ content. These functions—

16 recommendations and notifications—are tools meant to facilitate the

17 communication and content of others. They are not content in and of

18 themselves.”). But see Dangaard v. Instagram, LLC, No. C 22-01101 WHA, 2022

19 WL 17342198, at *4 (N.D. Cal. Nov. 30, 2022) (“While providing neutral tools to

20 carry out what may be unlawful or illicit [conduct] does not amount to development,

21 Meta defendants are not alleged to have filtered pornographic content in a neutral

22 manner. . . . [W]hen automated content-moderation tools are allegedly designed

23 to facilitate unlawful conduct; the claims survive CDA defenses.”) (emphasis in

24 original) (internal quotation marks omitted). Because Plaintiffs’ complaint doesn’t

25 allege that either Google or Apple did anything more than create neutral tools by

26 which users could download and access Snapchat, the argument fails.

27 Plaintiffs’ claims, premised on Defendants’ publishing activity, satisfy the

28 second prong of the Barnes analysis.

1 3. Third-Party Content

2 The last prong of the Barnes analysis requires the Court to determine

3 whether Plaintiffs’ allegations demonstrate that the published material was

4 provided by a third-party content provider. An exception to Section 230 immunity

5 applies only if the defendants are “responsible in part, for the creation or the

6 development of the offending content on the internet.” Lemmon, 995 F.3d at 1093

7 (cleaned up). In other words, the third Barnes prong focuses solely on who created

8 the content at issue.

9 Here, because the offending CSAM material was unquestionably created

10 and distributed by third-party individuals, this prong is satisfied. The FAC makes

11 no suggestion that the harmful content was created or developed by Snap, or that

12 either Google or Apple was involved in the development of the Snapchat

13 application, let alone the sexually explicit content distributed on the application.

14 “Defendants did not create or develop the [sexually] explicit messages that led to

15 the harm suffered by Plaintiffs; the sending users did.” Bride, 2023 WL 2016927,

16 at *6. And although Plaintiffs don’t appear to dispute whether Defendants meet

17 the last prong of the Barnes test, the Court nevertheless finds that Plaintiffs’

18 claims, whether based in product liability or false advertising, are predicated on

19 content developed by third parties—not by Defendants.

20 4. Application to Plaintiffs’ Claims

21 On behalf of a national class, as well as Kentucky and Colorado subclasses,

22 Plaintiffs assert ten claims for product design and defect, failure to warn,

23 misrepresentation, unjust enrichment, violation of state consumer protection laws,

24 and violation of the TVPRA. Each of these claims is predicated on the theory that

25 Defendants violated various state laws by failing to adequately monitor and

26 regulate end-users’ harmful messages, and each is therefore barred by

27 Section 230. See e.g., Kimzey, 836 F.3d at 1270 (affirming dismissal of state law

28 consumer protection claims premised on the defendant’s role as a publisher of

1 third-party content); Beckman v. Match.com, LLC, 668 F. Apex 759, 759–60

2 (9th Cir. 2016) (affirming dismissal of negligence and misrepresentation claims

3 where the “basis for each of those claims is [Defendant]’s role as a publisher of

4 third-party information”); Barnes, 570 F.3d at 1102–03 (holding negligence claim

5 under state law that “derive[d] from [the defendant’s] role as a publisher” was

6 subject to CDA immunity); Bride, 2023 WL 2016927, at *6 (dismissing claims for

7 product liability, state consumer protection law violations, negligence, and unjust

8 enrichment where the “Plaintiffs fundamentally seek to hold Defendants liable

9 based on content published by anonymous third parties on their applications”).

10 Plaintiffs argue that even if the Court finds that Section 230 applies to the

11 present suit, the immunity the statute affords doesn’t bar Plaintiffs’ TVPRA claim.

12 In 2018, Congress passed the Allow States and Victims to Fight Online Sex

13 Trafficking Act (“FOSTA”), which amended Section 230 and ensured that

14 “[n]othing in [Section 230] . . . shall be construed to impair or limit . . . any claim in

15 a civil action brought under section 1595 of title 18, if the conduct underlying the

16 claim constitutes a violation of section 1591 of that title.” 47 U.S.C. § 230(e)(5)(A).

17 Section 1595 of the TVPRA, in turn, provides a civil cause of action for violations

18 of federal trafficking laws, while Section 1591 of the TVPRA creates a direct

19 liability claim for “[w]hoever knowingly (1) . . . recruits, entices, harbors,

20 transports, provides, obtains, advertises, maintains, patronizes, or solicits by any

21 means a person,” or “(2) benefits, financially or by receiving anything of value,

22 from participation in a venture which has engaged in an act described in violation

23 of paragraph (1).” 18 U.S.C. § 1591(a). The statute defines “participation in a

24 venture” as “knowingly assisting, supporting, or facilitating” sex trafficking

25 activities. Id. § 1591(e)(4). Both Sections 1591 and 1595 cover perpetrators and

26 “beneficiaries” of trafficking. Does 1-6 v. Reddit, Inc., 51 F.4th 1137, 1141 (9th Cir.

27 2022). However, while Section 1595 incorporates a constructive knowledge

28 standard (i.e., the “person knew or should have known” of the trafficking conduct),

1 “the standard for beneficiary liability pursuant to section 1591 is higher: to be held

2 criminally liable as a beneficiary, a defendant must have actual knowledge of the

3 trafficking and must ‘assist[], support[], or facilitat[e]’ the trafficking venture.” Id.

4 (quoting § 1591(e)(4)) (alterations in original).

5 Plaintiffs dispute whether the “actual knowledge” standard of Section 1595

6 applies here. (Dkt. 63 at 14). They maintain that “the majority of courts in this

7 district have refused to import Section 1591’s actual knowledge requirement,” and

8 instead rely on Section 1595 for its application to online platforms. (Id.). Recent

9 case law suggests the exact opposite. In Reddit, the Ninth Circuit analyzed the

10 statutory language and context of Section 230(e)(5)(A) and concluded that

11 FOSTA creates an immunity exception “only when a website violates

12 18 U.S.C. § 1591.” 51 F.4th at 1143 (emphasis added). The court held that

13 “FOSTA requires that a defendant-website violate the criminal statute by

14 [1] directly sex trafficking or, [2] with actual knowledge, ‘assisting, supporting, or

15 facilitating’ trafficking, for the immunity exception to apply.” Id. at 1145. Since

16 Reddit, the Ninth Circuit has consistently upheld this interpretation of Section

17 230(e)(5)(A). See Doe #1 v. Twitter, Inc., No. 22-15103, 2023 WL 3220912, at *2

18 (9th Cir. May 3, 2023) (affirming Reddit’s holding that FOSTA’s immunity

19 exception applies only where a plaintiff “plausibly allege[s] that the website’s own

20 conduct violated section 1591”) (citation omitted); J.B. v. Craigslist, Inc., No. 22-

21 15290, 2023 WL 3220913, at *1 (9th Cir. May 3, 2023) (same).

22 Applying Section 1591’s heightened standard here, Plaintiffs’ TVPRA claim

23 is plainly deficient. The FAC alleges that Apple and Google derived financial

24 benefit by recommending Snapchat to users for download, and that user reviews

25 on the Apple Store and Google Play generally discussing underage sexual

26 misconduct occurring on Snapchat were sufficient to confer actual knowledge on

27 Defendants. But Reddit is explicit that attenuated allegations like these are

28 insufficient to plausibly suggest that Defendants knowingly participated in or

1 benefited from a sex trafficking venture:

2

Mere association with sex traffickers is insufficient absent

3 some knowing participation in the form of assistance,

support, or facilitation. The statute does not target those

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that merely turn a blind eye to the source of their revenue.

5 And knowingly benefitting from participation in such a

venture requires actual knowledge and a causal

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relationship between affirmative conduct furthering the

7 sex-trafficking venture and receipt of a benefit.

8 Reddit, 51 F.4th at 1145 (citations and internal quotation marks omitted).

9 Plaintiffs’ allegation that Snap knew of the trafficking conduct because it

10 regularly collects “troves of [user] data and information” is equally unpersuasive.

11 (FAC ¶ 107). Even accepting this allegation as true, the Court can’t conclude that

12 Snap’s knowledge of illicit activity is tantamount to participation in the activity. The

13 most that can be gleaned from Plaintiffs’ allegations is that Snap should have

14 done a better job monitoring and policing content distributed by its users. But

15 failing to efficiently monitor or police user-generated content is not punishable

16 under Section 1591. See Reddit, 51 F.4th at 1145 (“Plaintiffs who have

17 successfully alleged beneficiary liability for sex trafficking have charged

18 defendants with far more active forms of participation than the plaintiffs allege

19 here.”).

20 This case is likewise different from Doe v. Internet Brands, Inc., 824 F.3d

21 846 (9th Cir. 2016), cited by Plaintiffs. In Internet Brands, the defendant model

22 networking website was informed by an outside source that its website was being

23 targeted by third parties who were using fake identities to lure models to supposed

24 modeling auditions and then sexually assault them. Id. at 848. The perpetrators

25 identified the potential targets of their assaults by browsing models’ user profiles

26 on the website. Id. Among those misusing the website were two rapists who

27 sexually assaulted the plaintiff. Id. Plaintiffs argue that, as in Internet Brands,

28 Defendants failed to warn users “about the crimes of sexual grooming on their

1 respective platforms.” (Dkt. 63 at 10). Their argument ignores the distinction

2 drawn by the Internet Brands court between monitoring and policing website

3 content and the duty imposed by California to warn website users of a known harm

4 or danger. Internet Brands pointed out that “[t]he duty to warn allegedly imposed

5 by California law would not require [Defendant] to remove any user content or

6 otherwise affect how it publishes or monitors such content.” Id. at 851. To the

7 contrary, “[a]ny alleged obligation to warn could have been satisfied without

8 changes to the content posted by the website’s users and without conducting a

9 detailed investigation,” such as by posting a warning to users on the website or

10 informing the users by email. Id.

11 In contrast to Internet Brands, all of Plaintiffs’ theories of liability here are

12 intertwined with Defendants’ publishing activities and related allegations that they

13 failed to monitor and edit third-party content. Whereas the duty to warn requires

14 only a “self-produced warning,” Doe, 824 F.3d at 851, Plaintiffs argue for an

15 expansion of the duty to include editing and/or removal of user-generated content.

16 Internet Brands rejected that proposal: lawsuits brought against interactive

17 computer service providers based solely on failure to adequately monitor and

18 regulate end-users’ harmful messages fall squarely within protections of

19 Section 230.

20 Defendants are entitled to Section 230 immunity on each of Plaintiffs’

21 claims, and the FAC is DISMISSED in its entirety. Because the FAC has now

22 been dismissed, the Court need not consider Defendant Apple’s Motion to Strike

23 Class Allegations, which the Court DENIES AS MOOT. (Dkt. 52).

24 C. Leave to Amend

25 Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend

26 “shall be freely given when justice so requires,” because “the court must remain

27 guided by the underlying purpose of Rule 15 . . . to facilitate decisions on the

28 merits, rather than on the pleadings or technicalities.” Lopez v. Smith, 203 F.3d

1 1122, 1127 (9th Cir. 2000) (en banc) (citation and internal quotation marks

2 omitted). “The decision of whether to grant leave to amend nevertheless remains

3 within the discretion of the district court,” which may deny leave to amend if

4 allowing amendment would unduly prejudice the opposing party, cause undue

5 delay, be futile, or if the party seeking amendment has acted in bad faith.

6 Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008) (citing

7 Foman v. Davis, 371 U.S. 178, 182 (1962)).

8 Neither undue delay nor bad faith is implicated here. Nor has the Court

9 issued a previous order addressing Plaintiffs’ claims. And given that this litigation

10 is at an early stage, granting Plaintiffs a further opportunity to amend the complaint

11 wouldn’t unduly prejudice Defendants. However, although Rule 15 provides that

12 leave to amend should be “freely” given, “that liberality does not apply when

13 amendment would be futile.” Ebner v. Fresh, Inc., 838 F.3d 958, 968 (9th Cir.

14 2016).

15 It is clear from the FAC that all of Plaintiffs’ claims are premised on treating

16 Defendants as publishers or speakers of third-party content sent on Snapchat,

17 and that all such claims are barred by Section 230. Bride, 2023 WL 2016927, at

18 *8 (citing Sikhs for Just., Inc. v. Facebook, Inc., 697 F. App’x 526, 526 (9th Cir.

19 2017)) (“Because the court finds the core theory underlying Plaintiffs’ claims seeks

20 to treat Defendants as a ‘publisher or speaker’ of the posts of third parties utilizing

21 their applications, the court finds amendment to be futile.”). Additionally, Plaintiffs

22 have given no indication, either in their opposition brief or during oral argument,

23 that they can allege additional facts to cure these deficiencies. To the contrary,

24 Plaintiffs have exhaustively set forth all of the facts upon which their claims are

25 based.

26 Having thoroughly reviewed the record and the applicable law, the Court

27 concludes that Defendants enjoy immunity from liability under Section 230,

28 rendering any attempt to further amend futile. The FAC is therefore DISMISSED

1 WITH PREJUDICE.

2 III. MOTION TO SEAL

3 In support of its motion for sanctions, Snap seeks to file limited portions of

4 its motion and accompanying papers under seal—namely specific usernames and

5 display names captured in various screenshots included in the motion and the

6 Declaration of David Boyle. (Dkt. 64 at 1). Snap explains that the “information was

7 included because demonstrating how Snapchat works . . . required taking

8 screenshots of a real person’s Snapchat account”—that of Boyle—and the

9 screenshots “consequently display his friends’ usernames and display names.”

10 (Id.). As a matter of policy, Snap doesn’t publicly disclose its users’ friend lists,

11 nor would this information otherwise be available to the public.

12 There is a presumption of public access to judicial records and documents.

13 Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). Courts generally

14 apply a “compelling reasons” standard when considering motions to seal,

15 recognizing that “a strong presumption in favor of access is the starting point.”

16 Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006)

17 (citation and internal quotation marks omitted). But “[s]imply mentioning a general

18 category of privilege, without any further elaboration or any specific linkage with

19 the documents, does not satisfy the burden.” Id. at 1184.

20 Here, Snap’s request is narrowly tailored. It asks that only the text in the

21 moving papers displaying specific usernames and display names be sealed.

22 None of the associated users whose screen identities Snap seeks to protect are

23 connected to the present action. Nor do the usernames bear any real importance

24 to the lawsuit, except to demonstrate generally how an individual’s username and

25 display name would appear on another user’s Quick Add list. Considering all of

26 these circumstances, the Court finds that the “public has a minimal interest” (if

27 any at all) in knowing the specific names displayed in these exemplar screen

28 shots. There are, on the other hand, respectable concerns relating to user privacy

1 and safety that the Court finds are compelling and that tip the balance in favor of

2 sealing the specific portions of the moving papers Snap has identified. See Icon–

3 IP Ltd. v. Specialized Bicycle Components, Inc., No. 12-cv-03844-JST, 2015 WL

4 984121, at *3 (N.D. Cal. Mar. 4, 2015) (noting that “invasion of [a] third party’s

5 privacy” constitutes a compelling reason to file an exhibit under seal). These

6 minimal redactions protect the individuals’ privacy and outweigh the public’s

7 interest in disclosure and knowing this particular information.

8 Snap’s motion to seal is GRANTED.

9 IV. MOTION FOR RULE 11 SANCTIONS

10 Defendant Snap also filed a Motion for Rule 11 Sanctions against Plaintiffs

11 for making various allegedly false allegations in the FAC. (Dkt. 67). Snap

12 maintains that the sanctionable statements include those related to how

13 Snapchat’s Quick Add feature works, whether Snap was aware of the specific

14 instances of misconduct alleged in the FAC, what procedures Snap has in place

15 to guard against users creating multiple accounts, and whether one of the

16 perpetrators mentioned in the FAC indeed had multiple user accounts. Snap

17 requests that the Court dismiss the FAC and order Plaintiffs to file an amended

18 complaint omitting the offending allegations, as well as award attorney fees

19 incurred by Snap in connection with filing its Rule 11 motion.

20 A. Legal Standard

21 Federal Rule of Civil Procedure 11 outlines procedural and substantive

22 requirements to guide whether a court should sanction an attorney. “[T]he central

23 purpose of Rule 11 is to deter baseless filings in district court and . . . streamline

24 the administration and procedure of the federal courts.” Cooter & Gell v. Hartmarx

25 Corp., 496 U.S. 384, 393 (1990). Rule 11(c) permits a court to sanction a party

26 and/or its attorney, “[i]f, after notice and a reasonable opportunity to respond, the

27 court determines that Rule 11(b) has been violated.” Fed. R. Civ. P. 11(c)(1).

28 When sanctions are sought on the basis of a complaint, the court must determine:

1 “(1) whether the complaint is legally or factually ‘baseless’ from an objective

2 perspective, and (2) if the attorney has conducted a ‘reasonable and competent

3 inquiry’ before signing and filing it.” Christian v. Mattel, Inc., 286 F.3d 1118, 1127

4 (9th Cir. 2002) (citing Buster v. Greisen, 104 F.3d 1186, 1190 (9th Cir. 1997)).

5 “A sanction imposed under this rule must be limited to what suffices to deter

6 repetition of the conduct or comparable conduct by others similarly situated.”

7 Fed. R. Civ. P. 11(c)(4). If sanctions are imposed based on a motion and are

8 “warranted for effective deterrence,” a court may order the payment to the moving

9 party of “part or all of the reasonable attorney’s fees and other expenses directly

10 resulting from the violation,” in addition to other monetary or nonmonetary

11 remedies. Id. “Rule 11 is an extraordinary remedy, one to be exercised with

12 extreme caution.” Operating Eng’rs Pension Tr. v. A-C Co., 859 F.2d 1336, 1345

13 (9th Cir. 1988).

14 B. Frivolous

15 The Court may sanction an attorney or party under Rule 11 for filing a

16 pleading or other paper that is “frivolous.” Est. of Blue v. County of Los Angeles,

17 120 F.3d 982, 985 (9th Cir. 1997). “Frivolous” filings are those that are “both

18 baseless and made without a reasonable and competent inquiry.” Townsend v.

19 Holman Consulting Corp., 929 F.2d 1358, 1362 (9th Cir. 1990) (en banc); see

20 Holgate v. Baldwin, 425 F.3d 671, 676 (9th Cir. 2005). After reviewing the factual

21 allegations in the FAC, the parties’ moving papers, and the applicable law, the

22 Court concludes that the contested allegations are not entirely baseless, nor are

23 they attributable to Plaintiff’s not conducting a reasonable and competent inquiry.

24 Regarding Snap’s complaint that Plaintiffs mischaracterized how

25 Snapchat’s Quick Add feature works—namely that it can be used by perpetrators

26 to “find minor aged children” by geographic location or similar topics of interest,

27 (Dkt. 67 at 7 (citing FAC ¶ 90))—Snap explains that for two users to be

28 recommended to one other through Quick Add, either (1) they must have mutual

1 friends on Snapchat, or (2) one must have the other’s phone number or email

2 address in their phone’s contact list, (id. at 10–11). Snap has attached the

3 declaration of David Boyle, Director of Product Management at Snapchat, who

4 attests to that: “Quick Add does not, and never has, enabled users to find and add

5 other users based on geographic location proximity or shared topic interests.”

6 (Dkt. 67-2 ¶ 15). Plaintiffs respond by pointing out that Snapchat’s privacy policy

7 openly states that it collects user data to determine whether two users are likely

8 to know each other. (Dkt. 72 at 5). But that policy statement doesn’t speak to how

9 users of the platform are recommended to one another based on location and

10 shared interests. Plaintiffs also assert that they relied on a “reputable, well-read

11 blog” in making the allegation, but they curiously fail to provide the blog cite or

12 attach the specific blog post that supposedly led them to their belief. (Id.). Instead,

13 they posit a hypothetical scenario in which a sexual predator may be

14 recommended to the friends of a child who is already “friends” with the predator.

15 (Id. at 4). But again, this doesn’t explain how Plaintiffs concluded that users may

16 be recommended to one another based on location and shared interests.

17 Plaintiffs’ explanation for making this allegation is tenuous and confounding.

18 Snap also disputes Plaintiff’s allegation that at least one of the adult

19 perpetrators first connected with Plaintiff C.O. using the Quick Add function. The

20 FAC explains that although one of the perpetrators connected with C.O. outside

21 the Snapchat application (on Omegle), at least one other perpetrator first reached

22 out to her using the Quick Add function. (See FAC ¶¶ 74–75). The Court can’t

23 assess the veracity of this allegation because it’s unclear at this stage of the

24 litigation how or why the perpetrator was recommended to C.O. through Quick

25 Add. And as for the allegations that Snap knew of the specific crimes committed

26 against Plaintiffs and whether one of the perpetrators employed multiple Snapchat

27 accounts to target victims, the Court lacks sufficient facts—one way or the other—

28 to determine the veracity of the allegations.

1 Finally, Snap contests Plaintiffs’ allegation that Snapchat has no procedures

2 in place to identify and expel known and repeat wrongdoers from the platform.

3 (Dkt. 67 at 15 (quoting FAC at 3)). Snap points to various measures it is taking to

4 combat known and potential abuse on its platform, including using CSAM

5 detection tools, removing offending content, banning accounts, blocking users

6 from setting up new accounts, and working with law enforcement by diligently

7 responding to subpoenas and search warrants. (Dkt. 67-3 ¶¶ 9–10, 14–15).

8 Plaintiffs acknowledge some of these measures in their complaint. (See FAC

9 ¶¶ 97–104, 107). And yet despite Plaintiffs’ acknowledgement that at least some

10 measures are in place—whether effective or not—the preliminary statement in

11 their FAC states in absolute terms that “Snapchat has no procedures in place to

12 keep known offenders and repeat-abusers away from its platform.” (Id. at 3

13 (emphasis added)). Curiously, in a different section of the FAC, Plaintiffs

14 simultaneously admit and acknowledge that Snap has attempted to implement

15 safety measures in response to concerns regarding sexual grooming, but “those

16 safety measures are not effective to prevent the foreseeable and known harms of

17 sexual grooming.” (Id. ¶¶ 205–06). Plaintiffs’ explanation for this apparent gaffe is

18 that their preliminary statement was made in connection with the allegation that

19 users can create multiple accounts—an allegation not totally disputed by Snap.

20 (See Dkt. 67 at 16). The Court regards Plaintiffs’ proffered explanation for the

21 discrepancy as a stretch, suggestive of sloppy drafting and demonstrating the

22 perils of inattentive editing (or perhaps no editing at all). Regardless, though some

23 of Plaintiffs’ allegations lack apparent basis in fact, the Court finds that they don’t

24 rise to the level of frivolousness sufficient to warrant imposing sanctions at the

25 pleading stage.

26 Given the Court’s ruling on Defendants’ respective motions to dismiss and

27 the dismissal of Plaintiffs’ claims in their entirety, conducting a further hearing to

28 determine whether any of Plaintiffs’ allegations were made with knowing falsity

1 likely to result in a net benefit to any party nor promote future deterrence.

2 ||While the Court has expressed its concerns with some of the sources of

3 ||information in the FAC and with the questionable wording of some of the claims,

4 Plaintiffs’ allegations aren’t so baseless as to qualify as “frivolous” within the

5 || meaning of Rule 11.

6 Snap’s motion for sanctions is DENIED.

7 V. CONCLUSION

8 Defendants’ motions to dismiss the FAC are GRANTED and the FAC is

9 || DISMISSED WITH PREJUDICE. (Dkt. 51, 53, 54). Defendant Apple’s Motion to

10 Strike Class Allegations is DENIED AS MOOT. (Dkt. 52). The Court GRANTS

11 ||Defendant Snap’s motion to file documents under seal, (Dkt. 64), and DENIES its

12 ||Rule 11 motion for sanctions, (Dkt. 67).

13 IT IS SO ORDERED.

14 ||Dated: June 5, 2023 lau A (Buywy

15 Honorable Larry Alan Burns

16 United States District Judge

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