Ynfante v. Google LLC

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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ROBYN A. YNFANTE,

Plaintiff, 22-cv-6831 (JGK)

- against - MEMORANDUM OPINION AND

ORDER

GOOGLE LLC,

Defendant.

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JOHN G. KOELTL, District Judge:

The plaintiff, Robyn A. Ynfante, brought this action

against the defendant, Google LLC (“Google”), in the Supreme

Court of the State of New York, New York County, alleging false

advertising under N.Y. Gen. Bus. Law § 350 and negligence in

connection with a scam advertisement posted on Google’s online

platform. Google removed the action to this Court, invoking

diversity jurisdiction pursuant to 28 U.S.C. §§ 1332, 1441, and

1446. Google now moves to dismiss the complaint for failure to

state a claim pursuant to Federal Rule of Civil Procedure

12(b)(6). For the reasons explained below, the motion is

granted.

I.

The following facts are drawn from the plaintiff’s Amended

Complaint, ECF No. 19 (“Compl.”), and are accepted as true for

the purposes of this motion.

Mr. Ynfante is domiciled in New York State. Compl. ¶ 4.

Google is a multinational technology company that provides a

search engine known as Google Search, as well as an online

advertising service known as Google Ads, “where advertisers can

bid to display brief advertisements, including by placing [such]

advertisements at the top of Google Search results.” Id. ¶¶ 7-

10. In October 2021, Mr. Ynfante was the victim of a “phishing”

scam, into which he was lured by a supposed eBay customer

service advertisement placed on a Google search page via the

Google Ads service. Id. ¶¶ 37-44. Third-party advertisements

placed via Google Ads go through a review process, wherein

Google assesses whether the advertisements violate any of its

policies, including those against dishonest behavior and

scamming. Id. ¶¶ 13-14, 20. Mr. Ynfante alleges that Google

approved the advertisement in question without “properly

vet[ting] and verify[ing] [its] authenticity and legitimacy,”

despite Google’s assurance in its advertising policies that

users “should feel confident that ads are not fraudulent or

misleading.” Id. ¶¶ 22, 29. As a result, the scam advertisement

appeared on the top of Google’s search results for “ebay

customer service number,” leading Mr. Ynfante to believe he

would be calling the official eBay customer service helpline.

Id. ¶¶ 37-41. After Mr. Ynfante divulged his account information

to the scam helpline, the scammers made purchases on behalf of

Mr. Ynfante and gained access to sensitive personal information

such as his home address and Social Security number. Id. ¶¶ 42-

45, 61. Mr. Ynfante is seeking damages of $8,000,000 and

injunctive relief.

II.

In deciding a motion to dismiss pursuant to Rule 12(b)(6),

the allegations in the complaint are accepted as true, and all

reasonable inferences must be drawn in the plaintiff’s favor.

McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.

2007).1 The Court's function on a motion to dismiss is “not to

weigh the evidence that might be presented at a trial but merely

to determine whether the complaint itself is legally

sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.

1985). The Court should not dismiss the complaint if the

plaintiff has stated “enough facts to state a claim to relief

that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009).

1 Unless otherwise noted, this Memorandum Opinion and Order omits all

alterations, citations, footnotes, and internal quotation marks in quoted

text.

While the Court should construe the factual allegations in

the light most favorable to the plaintiff, “the tenet that a

court must accept as true all of the allegations contained in

the complaint is inapplicable to legal conclusions.” Id. When

presented with a motion to dismiss pursuant to Rule 12(b)(6),

the Court may consider documents that are referenced in the

complaint, documents that the plaintiff relied on in bringing

suit and that are either in the plaintiff's possession or that

the plaintiff knew of when bringing suit, or matters of which

judicial notice may be taken. See Chambers v. Time Warner, Inc.,

282 F.3d 147, 153 (2d Cir. 2002).

When faced with a pro se complaint, the Court must

“construe [the] complaint liberally and interpret it to raise

the strongest arguments that it suggests.” Chavis v. Chappius,

618 F.3d 162, 170 (2d Cir. 2010). “Even in a pro se case,

however, . . . threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not

suffice.” Id. Thus, although the Court is “obligated to draw the

most favorable inferences” that the complaint supports, it

“cannot invent factual allegations that [the plaintiff] has not

pled.” Id.; see also Yajaira Bezares C. v. Donna Karan Co. Store

LLC, No. 13-cv-8560, 2014 WL 2134600, at *1 (S.D.N.Y. May 22,

2014).

III.

The defendant Google moves to dismiss the complaint on two

grounds. First, Google argues that the claims are barred by

Section 230 of the Communications Decency Act (the “CDA”), 47

U.S.C. § 230. Second, Google argues that the complaint fails to

state a claim for both false advertising and negligence.

A.

The defendant argues that Mr. Ynfante’s claim is barred by

Section 230 of the CDA.

Section 230 of the CDA provides that “[n]o provider . . .

of an interactive computer service shall be treated as the

publisher or speaker of any information provided by another

information content provider.” 47 U.S.C. § 230(c)(1). Subject to

certain delineated exceptions, see id. § 230(e), Section 230

thus shields a defendant from civil liability when: (1) it is a

“provider or user of an interactive computer service,” as

defined by § 230(f)(2); (2) the plaintiff's claims treat the

defendant as the publisher or speaker of information, id.

§ 230(c)(1); and (3) that information is “provided by” an

“information content provider,” id. § 230(f)(3), other than the

defendant interactive computer service. Force v. Facebook, Inc.,

934 F.3d 53, 64 (2d Cir. 2019). Congress enacted Section 230 to

“preserve the vibrant and competitive free market that presently

exists for the Internet and other interactive computer services,

unfettered by Federal or State regulation.” FTC v. LeadClick

Media, LLC, 838 F.3d 158, 173 (2d Cir. 2016) (citing 47 U.S.C.

§ 230(b)(2)). “In light of Congress's objectives, the Circuits

are in general agreement that the text of Section 230(c)(1)

should be construed broadly in favor of immunity.” Force, 934

F.3d at 64.

In this case, it is plain that Section 230 protects Google

from liability in the negligence and false advertising action

brought by Mr. Ynfante. First, Google is the provider of an

interactive computer service. The Court of Appeals for the

Second Circuit has explained that “search engines fall within

this definition,” LeadClick Media, 838 F.3d at 174, and Google

is one such search engine. See, e.g., Marshall's Locksmith Serv.

Inc. v. Google, LLC, 925 F.3d 1263, 1268 (D.C. Cir. 2019) (holding

that the definition of “interactive computer service” applies to

Google specifically).

Second, there is no doubt that the complaint treats Google

as the publisher or speaker of information. See, e.g., Compl.

¶¶ 27, 34. Section 230 “specifically proscribes liability” for

“decisions relating to the monitoring, screening, and deletion

of content from [a platform] -- actions quintessentially related

to a publisher’s role.” Green v. Am. Online (AOL), 318 F.3d 465,

471 (3d Cir. 2003). In other words, Section 230 bars any claim

that “can be boiled down to the failure of an interactive

computer service to edit or block user-generated content that it

believes was tendered for posting online, as that is the very

activity Congress sought to immunize by passing the section.”

Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC,

521 F.3d 1157, 1172 n.32 (9th Cir. 2008). In this case, the

plaintiff’s causes of action against Google rest solely on the

theory that Google did not block a third-party advertisement for

publication on its search pages. But for Google’s publication of

the advertisement, the plaintiff would not have been harmed.

See, e.g., Compl. ¶¶ 38-39, 61. The plaintiff therefore seeks to

hold Google liable for its actions related to the screening,

monitoring, and posting of content, which fall squarely within

the exercise of a publisher’s role and are therefore subject to

Section 230’s broad immunity.

Third, the scam advertisement came from an information

content provider distinct from the defendant. As the complaint

acknowledges, the advertisement was produced by a third party

who then submitted the advertisement to Google for publication.

See id. ¶ 26. It is therefore plain that the complaint is

seeking to hold the defendant liable for information provided by

a party other than the defendant and published on Google’s

platform, which Section 230 forecloses.

The plaintiff attempts to escape Section 230’s broad scope

by arguing that the claims are based on Google’s own conduct

rather than that of the scammer. Specifically, the plaintiff

focuses on Google’s statement that users “should feel confident

that ads are not fraudulent or misleading.” Id. ¶ 53. However,

the plaintiff’s claims are fundamentally premised on Google’s

actions related to publishing the scam advertisement. In

attempting to hold Google liable for negligence, the plaintiff

asserts that Google had a duty to “vet and verify the

authenticity and legitimacy of potentially fraudulent

advertisements.” Id. ¶ 57. Vetting and verifying are analogous

to the “quintessential[]” duties of a publisher to “screen[]”

and “monitor[]” content. See Green, 318 F.3d at 470-71

(“[H]olding AOL liable for its alleged negligent failure to

properly police its network for content transmitted by its users

. . . would treat AOL as the publisher or speaker of that

content.”). Likewise, the only alleged harm at the center of the

plaintiff’s false advertising claim stems from the plaintiff’s

interaction with the scam advertisement published on Google’s

platform. See Compl. ¶ 53. Indeed, courts have recognized claims

similar to the plaintiff’s as unsuccessful attempts to avoid

Section 230 protections through artful pleading. See, e.g.,

Kimzey v. Yelp! Inc., 836 F.3d 1263, 1266 (9th Cir. 2016)

(rejecting the plaintiff’s attempt to hold Yelp liable for

“causing a [negative] review from another site to appear on its

page” and for “causing the statements to appear as a promotion

on [a] search engine” as “creative pleading” designed to

circumvent Section 230); Goddard v. Google, Inc., No. 08-cv-

2738, 2008 WL 5245490, at *4 (N.D. Cal. Dec. 17, 2008) (finding

that the plaintiff’s attempt to hold Google liable for its

“acceptance of tainted funds from fraudulent mobile content

providers” was an “impermissible recharacterization” of a claim

fundamentally based on Google’s publishing of third-party

content).

Mr. Ynfante also attempts to plead around Section 230 by

alleging that Google helped to develop the scam advertisement by

taking such actions as placing it at the top of the search page,

distinguishing it from other search results, and adding an

official “Ad” label in the top left corner of the advertisement.

Pl.’s Opp’n, ECF No. 24, at 9-10. These allegations seek to take

advantage of the fact that Section 230 protection does not apply

if the website operator goes beyond merely publishing the

content and is instead “responsible, in whole or in part, for

creating or developing” it. Roommates.com, 521 F.3d at 1162; see

47 U.S.C. § 230(f)(3).

However, this attempt fails. Under the “material

contribution test” adopted by the Court of Appeals for the

Second Circuit, “a defendant will not be considered to have

developed third-party content unless the defendant directly and

materially contributed to what made the content itself

unlawful.” Force, 934 F.3d at 68 (emphasis added). This test

“draws the line at the crucial distinction between, on the one

hand, taking actions to display actionable content and, on the

other hand, responsibility for what makes the displayed content

itself illegal or actionable.” Id. Google’s alleged actions did

not directly and materially contribute to the content of the

scam advertisement nor to its unlawfulness. Features such as the

official “Ad” label are instead “neutral tools for navigating

websites” that “merely provide a framework that could be utilized

[by others] for proper or improper purposes.” See Roommates.com,

521 F.3d at 1172, 1174 n.37. In other words, Google did nothing

to make the content of the advertisement itself more unlawful.

Rather, the defendant’s alleged actions merely served to

distinguish the advertisement as an advertisement.

Accordingly, the plaintiff’s claims are barred by Section

230 of the CDA. Because this Court has determined that the

plaintiff’s claims are barred by Section 230 of the CDA, it need

not address the merits of the defendant’s arguments that the

plaintiff’s complaint fails to state a claim for false

advertising and negligence.

B.

Google argues that this case should be dismissed with

prejudice. However, because this is the first dismissal, and

particularly because the plaintiff is proceeding pro se and has

requested an opportunity to amend, within 30 days of the date of

this decision the plaintiff may file a motion to file an amended

complaint. See Fed. R. Civ. P. 15(a)(2); Nielsen v. Rabin, 746

F.3d 58, 62 (2d Cir. 2014). In support of that motion, the

plaintiff should attach a copy of the proposed amended complaint

and explain how the amended complaint is consistent with Section

230. To overcome Section 230, any such amended complaint would

need to contain specific, concrete, plausible allegations,

beyond what has already been alleged, permitting an inference

that Google directly and materially contributed to the creation

or development of the scam advertisement. See, e.g.,

Roommates.com, 521 F.3d at 1174 (explaining that it must be

“very clear that the website directly participate[d] in

developing the alleged illegality” for Section 230 not to

apply).

CONCLUSION

The Court has considered all of the arguments raised by the

parties. To the extent not specifically addressed, the arguments

are either moot or without merit. For the foregoing reasons, the

motion to dismiss is granted without prejudice.

Within 30 days of the date of this decision, the plaintiff

may file a motion to file an amended complaint. If the plaintiff

fails to file such a motion by that date, this action will be

dismissed with prejudice. No pre-motion conference is necessary.

The Clerk is directed to close Docket No. 20. The Clerk is

directed to mail a copy of this Memorandum Opinion and Order to

the pro se plaintiff and to note such mailing on the docket.

SO ORDERED,

Dated: New York, New York Se oN >

June 1, 2023 a oN? of stp

Sonn G. Koeltl

United States District Judge

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