# Jane Doe AS v. Salesforce Inc

> District Court, N.D. Texas · September 3, 2024

URL: https://www.frixlaw.com/law-library/cases/10672399

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** September 3, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

A.S., an individual,1 §
§
Plaintiff, §
§
v. § CIVIL ACTION NO. 3:23-CV-1039-B
§
SALESFORCE, INC., §
BACKPAGE.COM, LLC, and CARL §
FERRER, §
§
Defendants. §

MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Salesforce, Inc. (“Salesforce”)’s Motion to Dismiss Under
Rules 12(b)(2) and 12(b)(6) (Doc. 23). For the reasons stated below, the Court GRANTS IN
PART and DENIES IN PART the Motion. The Court DISMISSES Plaintiffs’ Chapter 98A
claims against Salesforce WITH PREJUDICE.
I.
BACKGROUND
Plaintiffs are sex-trafficking victims. Doc. 25, Resp., 1. Plaintiffs claim that their individual
traffickers advertised and sold them for sex on Defendant Backpage.com, LLC (“Backpage”)’s
online platform. Id. They further claim that Salesforce provided Backpage with the technology and

1 On June 20, 2023, the Court consolidated the following cases with the above entitled cause: 3:23-
CV-1040-B; 3:23-CV-1042-B; 3:23-CV-1044-B; 3:23-CV-1045-B; 3:23-CV-1046-B; 3:23-CV-1047-B;
3:23-CV-1048-B; 3:23-CV-1049-B; 3:23-CV-1050-B; 3:23-CV-1051-B; 3:23-CV-1052-B; 3:23-CV-1056-
B; 3:23-CV-1057-B; 3:23-CV-1058-B; 3:23-CV-1059-B; 3:23-CV-1071-B; 3:23-CV-1110-B; 3:23-CV-
1122-B; 3:23-CV-1352-B; 3:23-CV-1353-B. See Doc. 11, Mem. Op. & Order, 5–7. This case was designated
as the lead case. Id. at 6.
services needed to expand Backpage’s illicit business and evade detection from law enforcement.
Id. Plaintiffs bring causes of action under Chapters 98 and 98A of the Texas Civil Practices and
Remedies Code against Backpage and its former CEO, Carl Ferrer, as well as Salesforce

(collectively “Defendants”) for their role in Plaintiffs’ trafficking. Id.
Backpage was an online marketplace used by sex traffickers to advertise and sell individuals,
including Plaintiffs, for sex acts. Doc. 1-5, Pet., ¶¶ 6, 61-62, 115. From 2013 to 2015, “Backpage
earned over 99% of its revenue from adult ads, a substantial percentage of which came directly
from on-line prostitution and sex trafficking.” Id. ¶ 9. Specifically, sex traffickers used Backpage
to “post” particular victims for sale, which enabled traffickers to “reach entirely new audiences,
evade law enforcement, and maintain control of victims by transporting them quickly between

locations thus maximizing profits far beyond traditional trafficking methods.” Id. ¶¶ 60, 115. Since
2008, “Backpage . . . had been publicly identified by law enforcement, United States Attorneys
General, and every United States Governor as the biggest and most notorious sex trafficking and
prostitution promoting website in the United States.” Id. ¶ 61.
In 2013, Backpage had difficulty scaling its operations “without operational support,
marketing innovation, and guidance.” Id. ¶ 64. Backpage thus sought out a partner that could

“assist the vision of its growth as the leader in online sex sales as well as concealing such activity.”
Id. Backpage allegedly found such a partner in Salesforce. See id. ¶ 65. Salesforce is a Delaware
technology company that maintains its principal place of business in California. Id. ¶ 28. Salesforce
sells cloud-based customer relationship management (“CRM”) software subscriptions to businesses
throughout the United States. See id. ¶¶ 74, 79.
From 2013 to 2018, Salesforce and Backpage entered into a series of contracts in Texas,
which allegedly “made possible the exponential growth of Backpage’s business, sex trafficking[,]
and the selling of sex.” Id. ¶ 65. Pursuant to those contracts, Salesforce assigned employees from
its Texas-based office to meet with and provide technical support to Backpage in Texas. Id. ¶ 40.
Specifically, Salesforce’s Texas-based representatives allegedly worked with Backpage to build out

Backpage’s CRM software in order “to promote, develop, and grow its internet based online selling
of sex, sex trafficking, and compelled prostitution.” Id. ¶ 83. Plaintiffs further allege that “Salesforce
personally assisted Backpage with the integration and migration of its data onto the Salesforce
CRM technology platform.” Id. ¶ 79.
Plaintiffs claim that they were trafficked through Backpage with the help of Salesforce’s
technology and services. See id. ¶¶ 113–17. According to Plaintiffs, Salesforce’s software enabled
“Backpage [to] collect[] detailed and in-depth customer data about the sex traffickers using

Backpage, monitor[] data about sex traffickers, streamlin[e] communications with those sex
traffickers, and market[] . . . to sex traffickers.” Id. ¶ 131. Salesforce also allegedly “facilitated and
supported Backpage’s analysis of customer and user activity, surveillance of customers, and
collection of information about its users, including platform and social media interactions and
customer preferences, enabling Backpage to more effectively target traffickers and sex buyers.” Id.
Plaintiffs claim that “[b]y assisting Backpage in marketing itself to sex traffickers, Salesforce directly

connected many sex traffickers to Backpage, encouraged them to use Backpage to traffic their
Victims, and expanded the venture engaged in the trafficking of persons.” Id.
Lead Plaintiff A.S. initiated the present litigation against Defendants in Texas state court
on May 1, 2023. See generally id. Salesforce removed the case to federal court on May 10, 2023.
Doc. 1, Notice of Removal. The basis for removal was diversity jurisdiction under 28 U.S.C. § 1332.
Id. ¶¶ 12–13. On June 20, 2023, the Court consolidated Lead Plaintiff’s case with several other
substantially similar cases. Doc. 11, Order. Plaintiffs asserts claims under Chapters 98 and 98A of
the Texas Civil Practices and Remedies Code against each Defendant. Doc. 1-5, Pet., ¶¶ 118–167.
As pertinent to the present Order, Plaintiffs claim that Salesforce is liable under Chapter 98
because it knowingly benefited from its participation in a venture that trafficked Plaintiffs. Id.

¶¶ 122–33. Plaintiffs further allege that Salesforce is liable under Chapter 98A because its conduct
was violative of several provisions of Chapter 43 of the Texas Penal Code and resulted in the
compelled prostitution of Plaintiffs. Id. ¶¶ 134–148.
On September 25, 2023, Salesforce filed the Motion to Dismiss (Doc. 23) presently before
the Court. Salesforce’s Motion is fully briefed and ripe for review. The Court considers it below.
II.
LEGAL STANDARDS

Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Rule 12(b)(6) authorizes
dismissal of a plaintiff’s complaint for “failure to state a claim upon which relief can be granted.”
FED. R. CIV. P. 12(b)(6). In considering a Rule 12(b)(6) motion to dismiss, “[t]he court accepts all
well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” In re Katrina
Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (citation omitted). But the court will “not

look beyond the face of the pleadings to determine whether relief should be granted based on the
alleged facts.” Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999).
To survive a motion to dismiss, a plaintiff must plead “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). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “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.” Id. “The plausibility standard is not akin to a
‘probability requirement’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). When well-pleaded facts fail to meet this

standard, “the complaint has alleged—but it has not shown—that the pleader is entitled to relief.”
Id. at 679 (internal quotations and alterations omitted).
III.
ANALYSIS
Plaintiffs assert two state-law claims against Salesforce under Chapters 98 and 98A of the
Texas Civil Practices Code. See Doc. 1-5, Pet., ¶¶ 122–148. Their Chapter 98 claim is brought
under § 98.002(a), and their Chapter 98A claim is brought under § 98A.002(a)(2). Id. Salesforce

argues that those claims should be dismissed for four reasons. See Doc. 24, Mot. Br., 2–4. First,
Salesforce maintains that this Court lacks personal jurisdiction over it. Id. at 2. Second, it argues
that Plaintiffs’ claims are barred by § 230 of the Communications Decency Act (“CDA”). Id. at 2–
3. Third, it contends that neither Chapter 98 nor Chapter 98A can be applied to redress
extraterritorial injuries. Id. at 3. Fourth, and finally, Salesforce argues that Plaintiffs failed to plead
facts giving rise to the plausible inference that Salesforce engaged in actionable conduct under

either § 98.002(a) or § 98A.002(a)(2). Id. at 3–4.
At the outset, the Court notes that it previously rejected Salesforce’s first two arguments—
personal jurisdiction and CDA immunity—in another matter pending before this Court, S.M.A. v.
Salesforce, No. 3:23-cv-0915-B (N.D. Tex. filed May 1, 2023). For purposes of these arguments,
there is virtually no factual distinction between S.M.A. v. Salesforce and the present case. Compare
Complaint, S.M.A. v. Salesforce, No. 3:23-cv-0915-B (N.D. Tex. May 1, 2023), ECF No. 1, with
Doc. 1-5, Pet. Further, Salesforce is represented by the same counsel in this case as it is in S.M.A.
v. Salesforce, and Salesforce’s briefing on the personal jurisdiction and CDA issues in that case is
substantially similar to its briefing here. Compare Mot. Dismiss Br., S.M.A. v. Salesforce, No. 3:23-
cv-0915-B (N.D. Tex. June 30, 2023), ECF No. 26, 8–25, with Doc. 24, Mot. Br., 6–20.

In S.M.A., this Court found that Salesforce was subject to personal jurisdiction in Texas
and that Salesforce was not entitled to immunity under the CDA. Mem. Op. & Order, S.M.A. v.
Salesforce, 3:23-cv-0915-B (N.D. Tex. March 28, 2024), ECF No. 48. The Court stands by its ruling
in S.M.A. and thus reaches the same conclusion here. Therefore, the Court DENIES Salesforce’s
Motion to Dismiss under Rule 12(b)(2) and on CDA immunity grounds for the reasons articulated
in its March 28, 2024 Order in S.M.A. v. Salesforce. See Mem. Op. & Order, 3:23-cv-0915-B (N.D.
Tex. March 28, 2024), ECF No. 48.

The Court considers Salesforce’s remaining arguments in support of dismissal below. The
Court ultimately concludes that, while their Chapter 98 claim survives, Plaintiffs’ claim under
Chapter 98A should be dismissed.
A. Chapter 98 Claim
Plaintiffs first bring a claim against Salesforce under Chapter 98 of the Texas Civil Practices
and Remedies Code. Doc. 1-5, Pet., ¶¶ 122–133. Section 98.002(a) of that Code provides that “[a]

defendant who engages in the trafficking of persons or who intentionally or knowingly benefits
from participating in a venture that traffics another person is liable to the person trafficked . . . for
damages arising from the trafficking of that person by the defendant or venture.” TEX. CIV. PRAC.
& REM. CODE § 98.002(a). Plaintiffs contend that Salesforce participated in a venture that
trafficked them and thus is liable under § 98.002(a). Doc. 25, Resp., 1.
Salesforce argues that Plaintiffs’ Chapter 98 claim should be dismissed under Rule 12(b)(6)
for two reasons. See Doc. 24, Mot. Br., 20–29. First, Salesforce argues that § 98.002(a) does not,
as a matter of statutory construction, apply to redress out-of-state injuries. Id. at 20–26. Thus,
Salesforce contends, because Plaintiffs here were allegedly trafficked—and thus injured—outside
of Texas, § 98.002(a) affords them no relief. See Doc. 26, Reply, 10–11. Second, Salesforce argues

that Plaintiffs failed to plead sufficient facts which render plausible the inference that Salesforce
“participated in a venture” within the meaning of the statute. See Doc. 24, Mot. Br., 26–29. The
Court addresses each argument in turn but ultimately concludes that neither justifies dismissal of
Plaintiffs’ § 98.002(a) claims at this stage.
1. Extraterritoriality
Salesforce first argues that Plaintiffs seek to apply § 98.002(a) beyond its permissible scope.

See Doc. 24, Mot. Br., 20–26. Specifically, Salesforce takes issue with Plaintiffs’ attempt to enforce
a Texas statute against Salesforce’s Texas activity because Plaintiffs were injured in another state.
Doc. 26, Reply, 10–11. Such an application of Chapter 98, says Salesforce, is violative of the
presumption against extraterritoriality, which generally precludes enforcement of a state law
beyond the jurisdiction of the enacting state absent a clear indication of legislative intent to the
contrary. See Doc. 24, Mot. Br., 20–26.
To the extent the facts alleged in Plaintiffs’ pleadings implicate an extraterritorial

application of Chapter 98, the Court concludes that the presumption against extraterritoriality is
overcome in this case.
Whenever Texas passes a law, it is presumed to only apply in Texas. See Willis v. Missouri
Pac. Ry. Co., 61 Tex. 432, 434 (1884). This presumption, however, is rebuttable. See, e.g.,
Kubbernus v. ECAL Partners, Ltd., 574 S.W.3d 444, 476 (Tex. App.—Houston [14th Dist.] 2018,
pet. denied); see also Coca-Cola Co. v. Harmar Bottling Co., 218 S.W.3d 671, 682 (Tex. 2006). That
said, a statute will only be given extraterritorial effect if it was enacted pursuant to the
constitutional exercise of legislative authority and the enacting body acted pursuant to that
authority. See Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182, 186 (Tex. 1968) (“Admittedly,

there are two questions involved, namely, the Extent of the legislative power, and the Intention of
the legislative authority.”); see also BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 571 (1996).
Here, Salesforce does not dispute that the Texas legislature could constitutionally extend
the reach of § 98.002(a) to cover some extraterritorial conduct. Cf. Doc. 24, Mot. Br., 20–26. It
instead argues that the Texas legislature did not intend for § 98.002(a) to be given extraterritorial
effect. See id.
Whether § 98.002(a) applies to the extraterritorial facts of this case must be discerned from

traditional tools of statutory interpretation. See Coca-Cola Co., 218 S.W.3d at 682; Marmon, 430
S.W.2d at 187. However, it has long been the rule in Texas that the legislature will not be presumed
to have intended an extraterritorial application: “Unless the intention to have a statute operate
beyond the limits of the state or country is clearly expressed or indicated by its language, purpose,
subject matter, or history, no legislation is presumed to be intended to operate outside the territorial
jurisdiction of the state or country enacting it.” Marmon, 430 S.W.2d at 187 (citations omitted).

Applying this interpretative rule in Marmon v. Mustang Aviation, Inc., the Supreme Court
of Texas held that Texas’s wrongful death statute was inapplicable in a case brought by the family
members of victims who perished in a plane crash in Colorado en route to Texas. 430 S.W.2d at
187. Not only did the wrongful death statute lack express language indicating an intent that it be
applied extraterritorially, the Court explained, but “it ha[d] been repeatedly held by the Texas
courts that it does not.” Id. And while the Texas legislature had made several revisions to the
wrongful death statute after it had been held to have no extraterritorial effect, the legislature never
amended the statute to overrule these holdings. Id. Given the presumption against
extraterritoriality and the legislature’s repeated refusal to overrule prior precedent, the Court
concluded that the Texas wrongful death statute did not apply to the family members’ action. Id.

However, the absence of express language permitting a statute’s extraterritorial application
is not determinative if there is other evidence that the legislature intended to give a statute
extraterritorial reach. Thus, in Citizens Ins. Co. of America v. Daccach, 217 S.W.3d 430, 444 (Tex.
2007), the Supreme Court of Texas held that the Texas Securities Act (“TSA”)’s registration
provision applied to the sale of securities to out-of-state residents notwithstanding the lack of
express language in the TSA permitting such an application. Regulations interpreting the
registration provision, the purpose of the TSA, and the history leading to its enactment, the Court

explained, all demonstrated an intent to apply the registration requirement to the in-state sales of
securities to out-of-state residents sufficient to overcome the presumption against
extraterritoriality. See id. at 444–46.
Chapter 98 is more similar to the registration provision at issue in Daccach than it is to the
wrongful death statute at issue in Marmon. As in Daccach, while Chapter 98 does not expressly
state that it applies extraterritorially, other indicators—namely, the statute’s history and purpose—

clearly demonstrate the legislature’s intent that § 98.002(a) extend to at least some out-of-state
activities. See 217 S.W.3d at 444–46. And unlike Marmom, there is no persuasive evidence
suggesting that the legislature affirmatively intended to limit the application of Chapter 98 to
redress only in-state injuries. See 430 S.W.2d at 187.
Before § 98.002(a) expressly created a civil cause of action for victims of human trafficking,
Texas had proscribed trafficking as a criminal offense under Chapter 20A of the Texas Penal Code.
See Act of May 30, 2007, 80th Leg., R.S., ch. 258, § 16.02, sec. 20A.02, 2007 Tex. Gen. Laws 367,
392 (amended 2009) (current version at TEX. PENAL CODE § 20A.02). Prior to Chapter 98’s
enactment, it was a crime under Chapter 20A to “(1) knowingly traffic[] another person with the
intent or knowledge that the trafficked person will engage in forced labor or services; or (2)

intentionally or knowingly benefit[] from participating in a venture that involves an activity
described by Subdivision (1).” Id. And a person who participated in a venture in Texas could be
criminally prosecuted even if the venture trafficked a victim outside of the state. See TEX. PENAL
CODE § 1.04(a)(1); Rodriguez v. State, 146 S.W.3d 674, 677 (Tex. Crim. App. 2004); Lee v. State,
537 S.W.3d 924, 926 (Tex. Crim. App. 2017) (“Texas has jurisdiction over an offense if either a
conduct element or a result element occurs inside the state.”). When Chapter 98 was enacted in
2009, it specifically incorporated Chapter 20A into its civil liability provisions. See Act of June 19,

2009, 81st Leg., R.S., ch. 309, § 1, 2009 Tex. Gen. Laws 830 (current version at TEX. CIV. PRAC. &
REM. CODE § 98.001, et seq.). Section 98.002(a) imposed liability on, among others, those who
“engage[] in the trafficking of persons,” TEX. CIV. PRAC. & REM. CODE § 98.002(a), and the
legislature defined “trafficking of persons” as “conduct that constitutes an offense under Chapter
20A, Penal Code,” id. § 98.001.
In enacting Chapter 98, the legislature was presumably aware that a person can commit an

offense under Chapter 20A—and be convicted of the same—where he participates in Texas even
through the victim is physically trafficked in a different state. See TEX. PENAL CODE §§ 1.04(a)(1),
20A.02(a); see also Rodriguez, 146 S.W.3d at 677. And with this awareness, the legislature passed a
law—Chapter 98—which imposes civil liability to the full extent that one’s conduct is criminally
punishable under Chapter 20A.2 See TEX. CIV. PRAC. & REM. CODE § 98.002(a). What’s more, the

2 It appears that Chapter 98 actually goes a step further than Chapter 20A. A person is subject to
civil liability under § 98.002(a) if he (1) “engages in the [conduct that constitutes an offense under Chapter
legislature specifically instructed that Chapter 98 “be liberally construed and applied to promote
its underlying purpose to protect persons from human trafficking and provide adequate remedies
to victims of human trafficking.” Id. § 98.006. The necessary implication from this history and

purpose is that the legislature intended § 98.002(a) to have at least some extraterritorial
application: if participating in a venture in Texas that traffics a victim elsewhere is conduct that
constitutes an offense under Chapter 20A, and if conduct that constitutes an offense under
Chapter 20A gives rise to civil liability under Chapter 98, it follows that participating in a venture
in Texas that traffics a person elsewhere could also give rise to civil liability under Chapter 98.
Indeed, any other construction would lead to absurd results. See Carreras v. Marroquin, 339
S.W.3d 68, 73 (Tex. 2011) (“We . . . interpret statutes to avoid an absurd result.”). A person could

participate in a venture in Texas which traffics one person in Oklahoma; that person could then
be criminally convicted for violating Chapter 20A as a participant in a venture that traffics another;
however, the sole trafficking victim would be afforded no redress against our hypothetical
participant under Chapter 98, even though the participant was found guilty of engaging “conduct
that constitutes an offense under Chapter 20A” and thus squarely falls within the class of persons
whom the Texas legislature sought to hold liable with § 98.002(a). See TEX. CIV. PRAC. & REM.

CODE § 98.001. The Court is skeptical that the legislature intended such an absurd result,
especially considering this result would be manifestly antithetical to statute’s express purpose,
which is “to protect persons from human trafficking and provide adequate remedies to victims of
human trafficking.” Id. § 98.006.

20]”; or (2) “knowingly benefits from participation in a venture which traffics another.” TEX. CIV. PRAC. &
REM. CODE §§ 98.001, 98.002(a). To avoid rendering portions of § 98.002(a), “knowingly benefits from
participation in a venture” must mean something different than conduct which is violative of Chapter 20A.
In this regard, § 98.002(a) seems to extend liability beyond that contemplated in Chapter 20A.
While Salesforce argues that Coca-Cola Co. v. Harmar Bottling Co., 218 S.W.3d 671 (Tex.
2006) forecloses the application of § 98.002(a) to extraterritorial injuries, the Court is not
convinced. See Doc. 24, Mot. Br., 21–23. In Coca-Cola Co., plaintiffs, distributors of the carbonated

soft drink Royal Crown Cola in the “Ark–La–Tex region,” brought claims against The Coca-Cola
Company and its distributors for, inter alia, violations of the Texas Free Enterprise and Antitrust
Act (“TFEAA”). Id. at 675–76. Plaintiffs’ suit alleged that marketing agreements between Coca-
Cola and various soft drink retailers (e.g., convenience stores or grocery markets) that operated in
Louisiana, Arkansas, and Oklahoma were unlawful under of the TFEAA. Id. Plaintiffs argued “that
the injuries they incurred outside Texas were actionable under the TFEAA because those injuries
resulted from Coca-Cola’s conduct within Texas, specifically, its business and policy decisions

made at its offices in Texas and contract negotiations often handled in Texas.” Id. at 680. The
Supreme Court of Texas disagreed, primarily because plaintiffs’ purported application of the
TFEAA would not further the statute’s purpose, which was “to maintain and promote economic
competition in trade and commerce occurring wholly or partly within the State of Texas and to
provide the benefits of that competition to consumers in the state.” Id. at 683 (quoting TEX. BUS.
& COM. CODE § 15.04)). The Court emphasized that plaintiffs had not shown how “compensating

them for injur[ies] [they] suffered in Arkansas, Louisiana, and Oklahoma will promote competition
in Texas or benefit Texas consumers.” Id. Nor did the fact that some of the conduct giving rise to
the injury occurred in Texas bring Plaintiffs’ proposed application of the statute within its express
purpose: “The fact that Coke made decisions in Texas regarding the [contracts] used in other
states, negotiated some of those [contracts] in Texas, and used the same [contracts] in Texas does
not bring redress of the resulting injury in the other states within the TFEAA’s purpose.” Id.
While there are facial similarities between this case and Coca-Cola Co., that case is
distinguishable in a key respect—the TFEAA’s express purpose was the protection of Texas
businesses and Texas consumers specifically. See TEX. BUS. & COM. CODE § 15.04 (“The purpose

of this Act is to maintain and promote economic competition in trade and commerce occurring
wholly or partly within the State of Texas and to provide the benefits of that competition to
consumers in the state.” (emphasis added)). Redressing antitrust injuries sustained outside of Texas,
the Court reasoned, did not further this purpose—and thus the statute did not apply to such
injuries—because anticompetitive conduct in Louisiana or Arkansas, for example, had little effect
on competition in Texas. See Coca-Cola Co., 218 S.W.3d at 683. Chapter 98’s express purpose, on
the other hand, extends to the protection of persons and victims generally, not Texans specifically:

“This chapter shall be liberally construed and applied to promote its underlying purpose to protect
persons from human trafficking and provide adequate remedies to victims of human trafficking.”
TEX. CIV. PRAC. & REM. CODE § 98.006 (emphasis added). The application of § 98.002(a) to out-
of-state injuries caused by in-state conduct would further the purpose of “protect[ing] persons from
human trafficking” and “provid[ing] adequate remedies to victims of human trafficking.” Id.; see
Coca-Cola Co., 218 S.W.3d at 683. For this reason, Coca-Cola Co. is inapposite.

In sum, the history and purpose of § 98.002(a) persuade the Court that it may be applied
to the facts alleged this case, where the alleged acts of participation in a venture occurred in this
state resulted in the trafficking of victims in other states. The cases that Salesforce cites do not
dictate a different result.
2. 12(b)(6)
Even if Chapter 98 applies extraterritorially, Salesforce argues, dismissal is nevertheless
warranted because Plaintiffs failed to plead a plausible claim under TEX. CIV. PRAC. & REM. CODE

§ 98.002(a). As relevant here, § 98.002(a) imposes civil liability on those “who intentionally or
knowingly benefit[] from participating in a venture that traffics another person.” Salesforce
contends that Plaintiffs failed to plead facts sufficient to permit the inference that Salesforce
participated in a trafficking venture. See Doc. 24, Mot. Br., 26–29. The Court disagrees.
To establish that Salesforce “participat[ed] in a venture” under § 98.002(a), Plaintiffs must
allege facts plausibly showing that Salesforce committed “an overt act beyond mere negative
acquiescence . . . [that is] designed to aid in the success of the venture.” In re Facebook, Inc., 625

S.W.3d 80, 97 (Tex. 2021) (citations omitted).
In In re Facebook, the Supreme Court of Texas distinguished between the kinds of
allegations which demonstrate mere “negative acquiescence” and those which constitute “overt
acts.” 625 S.W.3d at 97–98. In that case, plaintiffs were allegedly trafficked by individuals they met
on social media platforms owned by Facebook; they claimed that Facebook facilitated their
trafficking and thus was liable as a participant under § 98.002(a). Id. at 85. On the one hand, the

Court found plaintiffs’ allegations regarding Facebook’s failure to protect its users through the use
of “warnings, restrictions on eligibility for accounts, removal of postings, etc.” amounted to nothing
more than the provision of “neutral tools” and thus were insufficient to support a claim under
§ 98.002(a). See id. at 93, 97. However, plaintiffs had also alleged that Facebook engaged in certain
“overt acts,” such as “us[ing] the detailed information it collects and buys on its users to direct
users to persons they likely want to meet and, in doing so, facilitate[d] human trafficking by
identifying potential targets, like [p]laintiffs, and connecting traffickers with those individuals.” Id.
at 97–98 (quotations and alterations omitted). Allegations of this sort, the Court held, suggested
that Facebook took “affirmative acts . . . to encourage unlawful conduct on its platforms” and thus
participated in a venture for purposes of § 98.002(a). Id. at 98.

The allegations in this case are more than sufficient to show that Salesforce participated in
a venture with Backpage under the In re Facebook standard, as Plaintiffs pleaded that Salesforce
took affirmative acts that encouraged Backpage’s wrongdoing. For example, Plaintiffs allege that in
2015, Backpage “was in fear of imminent law enforcement seizure[,] necessitating the need for
duplicate copy of the Backpage system for use overseas.” Doc. 1-5, Pet., ¶ 106. Aware of this fear,
and the reason therefor, Plaintiffs claim that “Salesforce affirmatively assisted, supported, and
facilitated Backpage in moving a duplicate copy of its system overseas for the purpose of evading

law enforcement scrutiny.” Id. ¶ 105. And when credit card companies began refusing to process
transactions on Backpage’s website due to the illicit nature of its business, “Salesforce agreed to
alter Backpage’s payment structure in an attempt to help them stay afloat as they searched for
solutions.” Id. ¶ 108. Plaintiffs also claim that Salesforce “assisted . . . Backpage’s creation of direct
marketing campaigns, coupled with information gathering such as tracking mouse clicks and
tracking the internet activity of sex traffickers and customer analytics to help Backpage, automate,

manage, and track the effectiveness of its marketing efforts.” Id. ¶ 131. And Plaintiffs further aver
that “Salesforce assisted Backpage in creating connections with more sex traffickers, generating
continuous pipeline of sex traffickers directed towards Backpage, closing sales with more sex
traffickers, and encouraging sex traffickers to use Backpage to sell their victims.” Id.
To be sure, these are not the only allegations in Plaintiffs’ Petition which establish that
Salesforce took certain overt acts to facilitate the success of the venture. But for present purposes,
they are more than sufficient to show that Salesforce crossed the line from merely providing
“neutral tools” to engaging in “affirmative acts” designed to encourage wrongdoing by Backpage.
See In re Facebook, 625 S.W.3d at 97–98.
Salesforce, however, argues that it is not enough for purposes of § 98.002(a) that Plaintiffs

alleged that Salesforce participated in a venture with Backpage. In Salesforce’s view, Plaintiffs must
allege that it participated in the sex trafficking aspect of the venture, rather than some other,
unrelated (and perhaps benign) aspect of the same venture. Doc. 26, Reply, 12–13. And here,
Salesforce argues, “[a]ll the wrongful conduct that directly injured Plaintiffs was committed by
their traffickers, as facilitated through classified ads posted by the traffickers on Backpage’s
website.” Doc. 24, Mot. Br., 27. Assuming without deciding that Salesforce is correct that Plaintiffs
are required to show that Salesforce participated in the sex trafficking aspect of the venture, the

Court concludes that Plaintiffs have made such a showing here.
In addition to Plaintiffs’ individual, street-level traffickers, the allegations plausibly
establish that Backpage’s conduct constituted trafficking under Chapter 20A of the Texas Penal
Code. As relevant here, a person commits the offense of trafficking of persons under § 20A.02(a)
if he, inter alia, knowingly:
(3) traffics another person and, through force, fraud, or coercion, causes the
trafficked person to engage in conduct prohibited by:
(A) Section 43.02 (Prostitution);
(B) Section 43.03 (Promotion of Prostitution);
(B-1) Section 43.031 (Online Promotion of Prostitution);
(C) Section 43.04 (Aggravated Promotion of Prostitution);
(C-1) Section 43.041 (Aggravated Online Promotion of Prostitution); or
(D) Section 43.05 (Compelling Prostitution); [or]
(4) receives a benefit from participating in a venture that involves an activity
described by Subdivision (3)

TEX. PENAL CODE § 20A.02(a)(3)–(4). Here, the allegations, taken as true, demonstrate that
Backpage violated Subsection (4) by benefitting from its participation in a venture with individual
traffickers who violated Subsection (3). See generally Doc. 1-5, Pet., ¶¶ 150–167. Plaintiffs first
allege that their individual traffickers violated Subsection (3) when they “sold [Plaintiffs] for sex
acts by force, fraud, or coercion.” Doc. 1-5, Pet., ¶ 113. They then allege that Backpage violated

Subsection (4) by entering into agreements with Plaintiffs’ individual traffickers to help promote
the forced prostitution of Plaintiffs. See Doc. 1-5, Pet., ¶¶ 150–67.
Given that Backpage itself is alleged to have engaged in the trafficking of Plaintiffs, see TEX.
PENAL CODE § 20A.02(a)(4), Salesforce, through its alleged provision of technology and services
to Backpage, was directly involved with one of Plaintiffs’ traffickers—Backpage. And Salesforce is
alleged to have directly facilitated the sex trafficking aspect of Backpage’s business—i.e.,
participating in a venture with Plaintiffs’ individual street-level traffickers—by enabling Backpage

to grow its relationships with the individual traffickers. See, e.g., Doc. 1-5 Pet., ¶ 131 (“Salesforce
facilitated and supported Backpage’s analysis of customer and user activity, surveillance of
customers, and collection of information about its users, including platform and social media
interactions and customer preferences, enabling Backpage to more effectively target traffickers and sex
buyers.” (emphasis added)). As such, Salesforce’s acts of participation directly furthered the sex
trafficking aspect of the venture between Backpage and Salesforce. See TEX. PENAL CODE §

20A.02(a)(4).
In sum, Plaintiffs have plausibly alleged that Salesforce engaged in affirmative acts designed
to further the success of its venture with Backpage. This is sufficient to show that Salesforce
participated in a venture which trafficked Plaintiffs.
***
Salesforce argued that Plaintiffs’ § 98.002(a) claims should be dismissed under Rule
12(b)(6) for two reasons—that Chapter 98 did not apply to redress out-of-state injuries which are
caused by in-state conduct and that Plaintiffs failed to plausibly plead their claim. The Court
disagrees with Salesforce on both counts. Accordingly, Salesforce’s Motion is DENIED with
respect to Plaintiffs’ Chapter 98 claims.

B. Chapter 98A Claim
Plaintiffs also bring a claim against Salesforce under Chapter 98A of the Texas Civil
Practices and Remedies Code. See Doc. 1-5, Pet., ¶¶ 134–48. Section 98A.002(a)(2) creates a right
of action for victims of “compelled prostitution” against anyone who “knowingly or intentionally
engages in promotion of prostitution, online promotion of prostitution, aggravated promotion of
prostitution, or aggravated online promotion of prostitution that results in compelling prostitution

with respect to the victim.” TEX. CIV. PRAC. & REM. CODE § 98A.002(a)(2). Plaintiffs claim that
Salesforce is liable under Chapter 98A because it engaged in each of the four acts listed, and as a
result, Plaintiffs were compelled into prostitution. See Doc. 1-5, Pet., ¶¶ 134–148.
Salesforce moves to dismiss Plaintiffs Chapter 98A claims for the same reasons it sought
dismissal of their Chapter 98 claims, namely that Chapter 98A does not apply extraterritorially and
that, even if it does, Plaintiffs have failed to plead a claim for relief. See Doc. 24, Mot. Br., 20–26,
29–30. The Court does not address Salesforce’s extraterritoriality argument because it agrees that

Plaintiffs have not stated a claim.
At a high level, § 98A.002(a)(2) claims consist of two elements. First, a plaintiff must show
that a defendant intentionally or knowingly engaged in one of four acts: (1) “promotion of
prostitution,” (2) “online promotion of prostitution,” (3) “aggravated promotion of prostitution,”
or (4) “online aggravated promotion of prostitution.” TEX. CIV. PRAC. & REM. CODE
§ 98A.002(a)(2). Second, a plaintiff must show that the defendant’s commission of one of these
four acts “result[ed] in compelling prostitution with respect to the [plaintiff].” Id.
Here, the Court concludes that Plaintiffs have failed to plead the first element of their

§ 98A.002(a)(2) claim. That is, the Petition does not contain allegations of fact which give rise to
the plausible inference that Salesforce engaged in “promotion of prostitution, online promotion of
prostitution, aggravated promotion of prostitution, or aggravated online promotion of
prostitution.” Id. As such, dismissal under Rule 12(b)(6) is warranted.
1. Promotion of Prostitution
Plaintiffs failed to allege that Salesforce engaged in the “promotion of prostitution.” The
term “promotion of prostitution” in § 98A.002(a)(2) means “conduct that constitutes an offense

under Section 43.03, Penal Code.” TEX. CIV. PRAC. & REM. CODE § 98A.001(5). Section 43.03 of
the Texas Penal Code, in turn, provides that a person commits the offense of promotion of
prostitution if he, among other things, knowingly “receives money or other property pursuant to
an agreement to participate in the proceeds of prostitution.” TEX. PENAL CODE § 43.03(a)(1).
Here, there is no real dispute that Salesforce received money pursuant to an agreement with
Backpage. Cf. Doc. 24, Mot. Br., 30. Thus, the only issue is whether the agreement between

Backpage and Salesforce constituted “an agreement to participate in the proceeds of prostitution.”
TEX. PENAL CODE § 43.03(a)(1).
Plaintiffs contend that Salesforce violated § 43.03(a)(1) because it knew it was being paid
with money that Backpage had earned from sex traffickers. See Doc. 25, Resp., 30. As Plaintiffs
allege in their Petition, “[b]y promoting the selling of sex and sex trafficking, Backpage made its
money from traffickers and the sellers of sex. Backpage used that money to continue its purchases
and subscriptions with Salesforce.” Doc. 1-5, Pet., ¶ 100. Therefore, Plaintiffs argue, “by accepting
money through its contract with Backpage, Salesforce agreed to participate in the proceeds of
prostitution.” Doc. 25, Resp., 30. The Court disagrees.
At the outset, the Court notes that the Texas judiciary has not had ample occasion to

interpret the precise contours of § 43.03(a)(1). This Court’s research yielded a mere 48 cases in
which this statute has been cited, a majority of which were decided prior to 2000. Fewer still are
the number of cases interpreting what constitutes “an agreement to participate in the proceeds of
prostitution.” TEX. PENAL CODE § 43.03(a)(1). And of the limited number of cases that do address
what it means to agree to “participate in the proceeds of prostitution,” none appear to be on point
with the factual allegations here. See Garrett v. State, 566 S.W.2d 605, 607 (Tex. Crim. App. [Panel
Op.] 1978); Duffield v. State, 643 S.W.2d 139, 140 (Tex. Crim. App. [Panel Op.] 1982); Benton v.

City of Houston, 605 S.W.2d 679, 682 (Tex. Civ. App.—Houston [1st Dist.] 1980, no writ.);
Rollerson v. State, No. 05-95-01678-CR, 1997 WL 457472, at *3 (Tex. App.—Dallas Aug. 11,
1997, pet. denied); Lowry v. State, No. 11-08-00095-CR, 2009 WL 4696900, at *2 (Tex. App.—
Eastland Dec. 3, 2009, pet. ref’d); Jimenez v. State, No. 14-18-00364-CR, 2019 WL 7372846, at *4
(Tex. App.—Houston [14th Dist.] Dec. 31, 2019, pet. denied).
In light of the relative dearth of caselaw pertaining to the relevant portion of § 43.03(a)(1),

the Court largely writes on a blank slate in interpreting “an agreement to participate in the proceeds
of prostitution.” In Texas, statutory construction beings with the statute’s language. State v.
Shumake, 199 S.W.3d 279, 284 (Tex. 2006). Texas courts look “to the plain meaning of the text
as the sole expression of legislative intent, unless the Legislature has supplied a different meaning
by definition, a different meaning is apparent from the context, or applying the plain meaning
would lead to absurd results.” Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 46 (Tex. 2015)
(citations omitted); see also Jaster v. Comet II Const., Inc., 438 S.W.3d 556, 563 (Tex. 2014). (“To
determine its common, ordinary meaning, [courts] look to a wide variety of sources, including
dictionary definitions, treatises and commentaries, . . . prior constructions of the word in other
contexts, the use and definitions of the word in other statutes and ordinances, and the use of the

words in our rules of evidence and procedure.”).
As used in § 43.03(a)(1), the plain meaning of the term “participate” is “to have a part or
share with a person, in . . . a thing.” Participate, OXFORD ENGLISH DICTIONARY (Rev. 2005 ed.); see
also Participate, MERRIAM-WEBSTER DICTIONARY (online ed.) (defining “Participate” as “to have a
part or share in something”); Participate, AMERICAN HERITAGE DICTIONARY (online ed.) (defining
“Participate” as “[t]o share in something”). And the term “proceeds” is commonly understood to
mean “that which is obtained or gained by any transaction or process; an outcome; esp. the money

obtained from an event, activity, or enterprise.” Proceeds, OXFORD ENGLISH DICTIONARY (Rev.
2005 ed.); Proceeds, BLACK’S LAW DICTIONARY (12th ed. 2024) (defining “Proceeds” as “the
amount of money received from a sale.”). Finally, the term “prostitution” is defined in the Texas
Penal Code as “knowingly offer[ing] or agree[ing] to receive a fee from another to engage in sexual
conduct.” TEX. PENAL CODE § 43.02(a); see id. § 43.01(2). Based on the foregoing, the Court
understands “an agreement to participate in the proceeds of prostitution” in § 43.03(a)(1) to mean

an agreement to share in the money derived from the offer to sell or purchase sex.
Here, the allegations fail to establish that Salesforce was a party to an agreement to
participate in the proceeds of prostitution. According to Plaintiffs, Backpage first sold
advertisements to street-level traffickers; the street-level traffickers then placed advertisements on
Backpage’s platform selling their victims for sex. See Doc. 1-5, Pet., ¶¶ 9, 62, 115. However, it is
insufficient for purposes of § 43.03(a)(1) that Salesforce agreed to share in the money derived from
this first step—i.e., Backpage’s sale of advertisements to street-level traffickers. This is because
Backpage’s sale of advertisements does not constitute “prostitution” within the meaning of the
statute as this did not involve the offer or agreement to exchange money for sex. See TEX. PENAL
CODE § 43.02(a). As such, any money derived from the sale of advertisements cannot constitute

“the proceeds of prostitution.” Id. § 43.031(a)(1). Plaintiffs must instead show that Salesforce
agreed to share in the money derived from the second step—i.e., the street-level traffickers’ placing
the advertisements on Backpage. See id.
Plaintiffs have not shown that Salesforce agreed to share in the money derived the street-
level traffickers’ business. There are three relevant agreements in play here. The first is between
the individual buyers of sex and the street-level traffickers; the second is between the street-level
traffickers and Backpage; and the third is between Backpage and Salesforce. See Doc. 1-5, Pet.,

¶ 100. Plaintiffs essentially claim that because the money exchanged pursuant to the first
agreement—which undeniably constitutes “proceeds of prostitution”—was ultimately paid to
Salesforce pursuant to the third agreement, Salesforce agreed to participate in the proceeds of the
first agreement. See Doc. 25, Resp., 30. This is a step too far. Only the first transaction described
above—i.e., between the individual buyers of sex and the street-level traffickers—constitutes
“prostitution” within the meaning of the statute.3 See TEX. PENAL CODE § 43.02(a). But there is

nothing in the pleadings to suggest the street-level traffickers entered into any agreement—formal
or otherwise—with Salesforce, let alone one in which they agreed to share with Salesforce the
money derived from their prostitution transactions. Instead, it appears that after the street-level
traffickers sold their victims for sex, the street-level traffickers alone had the right to the proceeds

3 Advertising another for sex on Backpage is plainly “offer[ing] . . to receive a fee from another to
engage in sexual conduct” and thus constitutes “prostitution.” TEX. PENAL CODE § 43.02(a). As such, the
money the street-level trafficker derived from placing those advertisements are “the proceeds of
prostitution.” Id. § 43.031(a)(1).
from those sales. To be sure, Plaintiffs allege that the street-level traffickers elected to use these
proceeds to purchase advertisements from Backpage, who in turn used that money to purchase
technology from Salesforce. See Doc. 1-5, Pet., ¶ 100. But on the facts alleged here, the connection

between Salesforce and the underlying prostitution transactions is simply too attenuated to permit
the plausible inference that Salesforce was a party to an agreement with the street-level traffickers
to share in the proceeds of the street-level trafficker’s prostitution.
Accordingly, the Court concludes that Plaintiffs failed to plead that Salesforce engaged in
promotion of prostitution through its contract with Backpage.
2. Online Promotion of Promotion
Plaintiffs also failed to allege that Salesforce engaged in the “online promotion of

prostitution.” The term “online promotion of prostitution” in § 98A.002(a)(2) means “conduct
that constitutes an offense under Section 43.031, Penal Code.” TEX. CIV. PRAC. & REM. CODE
§ 98A.001(4-a). Section 43.031 of the Texas Penal Code, in turn, provides that a person commits
the offense of online promotion of prostitution if he “owns, manages, or operates an interactive
computer service or information content provider, or operates as an information content provider,
with the intent to promote the prostitution of another person or facilitate another person to engage

in prostitution or solicitation of prostitution.” TEX. PENAL CODE § 43.031(a). Plaintiffs do not aver
that Salesforce acted with the intent to “facilitate another person to engage in prostitution or
solicitation of prostitution.” Id.; see Doc. 1-5, Pet., ¶ 140. Instead, they claim that Salesforce
violated § 43.031(a) by “knowingly manag[ing], support[ing], and service[ing] the Backpage
account with the intent to promote prostitution, which was widely publicized and known to
Salesforce.” Doc. 1-5, Pet., ¶ 140. The Court is not persuaded.
Plaintiffs run into an immediate problem in that it is unclear that “the Backpage account”
constitutes an “interactive computer service” or “information content provider.” Section 43.01
defines “interactive computer service” as “any information service, system, or access software

provider that provides or enables computer access to a computer server by multiple users, including
a service or system that provides access to the Internet or a system operated or service offered by a
library or educational institution.” TEX. PENAL CODE § 43.01(1-c). Section 43.01’s definition of
“interactive computer service” is almost identical to the definition of the same term in § 230 of the
Communications Decency Act. 47 U.S.C. § 230(f)(2) (“The term ‘interactive computer service’
means any information service, system, or access software provider that provides or enables
computer access by multiple users to a computer server, including specifically a service or system

that provides access to the Internet and such systems operated or services offered by libraries or
educational institutions.”). While not addressed at length in this Order, Plaintiffs argued in their
papers that Salesforce was not entitled to § 230 immunity, in part because “Plaintiffs’ allegations
do not establish that Salesforce is an interactive computer service.” Doc. 25, Resp., 13. Similarly,
§ 43.01 defines “information content provider” as “any person or entity that is wholly or partly
responsible for the creation or development of information provided through the Internet or any

other interactive computer service.” TEX. PENAL CODE § 43.01 (1-d); see also 47 U.S.C. § 230(f)(3).
But Plaintiffs argued in connection with their § 230 arguments that “Salesforce’s software took no
action with respect to any ‘content.’” Doc. 25, Resp., 13. The Court is weary to find that “the
Backpage account” is either an “interactive computer service” or an “information content
provider” in light of Plaintiffs’ arguments to the contrary.
But even if the Court were to assume that Salesforce managed an interactive computer
service or an information content provider, there are no allegations suggesting that it did so “with
the intent to promote the prostitution of another.” TEX. PENAL CODE § 43.031(a). “A person acts
intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct
when it is his conscious objective or desire to engage in the conduct or cause the result.” Id.

§ 6.03(a). As previously explained, the offense of promotion of prostitution includes the knowing
receipt of money pursuant to an agreement to participate in the proceeds of prostitution. Id.
§ 43.03(a)(1). In addition, promotion of prostitution prohibits the knowing “solicit[ation] [of]
another to engage in sexual conduct with another person for compensation.” Id. § 43.03(a)(2).
Based on the foregoing, it appears that, to establish that Salesforce acted “with the intent
to promote the prostitution of another,” Plaintiffs must allege facts which plausibly demonstrate
that it was Salesforce’s “conscious objective” to either (a) receive money pursuant to an agreement

to share in the proceeds of another’s prostitution; or (b) solicit a person to have sex with another
for money. Id. §§ 6.03, 43.03(a)(1)–(2). They have not done so.
First, as explained, the pleadings do not plausibly demonstrate that Salesforce ever entered
into an agreement to participate in the proceeds of the prostitution for purposes of § 43.03.4 If the
allegations are not sufficient to show that Salesforce entered into “an agreement to participate in
the proceeds of prostitution” in the first place, it is not plausible that Salesforce’s conscious

objective was to “receive[] money . . . pursuant to an agreement to participate in the proceeds of
prostitution.” Id. § 43.03(a)(2). Second, there is nothing in the pleadings suggesting that Salesforce
intended to engage in the promotion of prostitution by “solicit[ing] another person to engage in
sexual conduct for compensation.” Id. § 43.03(a)(2). To be sure, Plaintiffs allege that the sex
traffickers that used Backpage—and perhaps Backpage itself—used Backpage’s website with the

4 See supra III.B.1
intent to solicit consumers to pay money in exchange for sex. However, while the pleadings might
support the inference that Salesforce intended to facilitate Backpage’s promotion of prostitution,
there has been no showing that Salesforce intended to do so itself. See, e.g., Doc. 1-5, Pet., ¶ 112

(“Salesforce affirmatively, actively, and continuously aided, encouraged, and contributed to the
success of the Backpage.com trafficking venture, knowing that its software and support facilitated
trafficking on Backpage.” (emphasis added)). The plain language of § 43.031(a) indicates that acting
with the intent to facilitate another’s promotion of prostitution is insufficient. See TEX. PENAL
CODE § 43.031(a). Accordingly, the Court concludes that Plaintiffs failed to plausibly plead that
Salesforce acted with the intent to promote prostitution.
For these reasons, Plaintiffs have failed to plausible plead that Salesforce engaged in the

online promotion of prostitution.
3. Aggravated Promotion of Prostitution
Plaintiffs also failed to allege that Salesforce engaged in aggravated promotion of
prostitution. The term “aggravated promotion of prostitution” in § 98A.002(a)(2) means “conduct
that constitutes an offense under Section 43.04, Penal Code.” TEX. CIV. PRAC. & REM. CODE §
98A.001(2). Section 43.04 of the Texas Penal Code, in turn, provides that a person commits the

offense of aggravated promotion of prostitution if he “knowingly owns, invests in, finances,
controls, supervises, or manages a prostitution enterprise that uses two or more prostitutes.” TEX.
PENAL CODE § 43.04(a). Plaintiffs here allege that Salesforce engaged in aggravated promotion of
prostitution because it “owned Backpage’s [CRM] platform, retained ultimate control of and
managed the platform used to promote the prostitution of two or more.” Doc. 1-5, Pet. ¶ 142.
The problem is that Backpage’s CRM platform does not constitute a “prostitution
enterprise.” TEX. PENAL CODE § 43.04(a). A “prostitution enterprise” means “a plan or design for
a venture or undertaking in which two or more persons offer to, agree to, or engage in sexual
conduct in return for a fee payable to them.” Taylor v. State, 548 S.W.2d 723, 723 (Tex. Crim.
App. 1977). Even if the CRM platform could be characterized as a separate venture or undertaking,

it did not involve two or more persons offering, agreeing, or engaging in sexual conduct for money.
See id. It instead collected customer data to help Backpage to sell advertisements more effectively.
See, e.g., Doc. 1-5, Pet., ¶¶ 79, 131. Accordingly, Plaintiffs have not shown that Salesforce owned,
managed, or was otherwise involved with a “prostitution enterprise.” TEX. PENAL CODE § 43.04(a);
See Taylor, 548 S.W.2d at 723. As such, there are no allegations demonstrating that Salesforce
committed aggravate promotion of prostitution.

4. Aggravated Online Promotion of Prostitution
Finally, Plaintiffs failed to allege that Salesforce engaged in the “aggravated online
promotion of prostitution.” The term “aggravated online promotion of prostitution” in
§ 98A.002(a)(2) means “conduct that constitutes an offense under Section 43.041, Penal Code.”
TEX. CIV. PRAC. & REM. CODE § 98A.001(1-a). The offense of aggravated online promotion of
prostitution, as defined in Section 43.041 of the Texas Penal Code, is identical to the offense of
online promotion of prostitution, see id. § 43.031(a), except the former requires that the defendant

act with the requisite intent with respect to “five or more persons.” Id. § 43.041(a). That is, to be
convicted of aggravated online promotion of prostitution, a defendant must act “with the intent to
promote the prostitution of five or more persons or facilitate five or more persons to engage in
prostitution or solicitation of prostitution.” Id. It thus appears that a person cannot have committed
aggravated online promotion of prostitution unless he also commits online promotion of
prostitution. Compare id. § 43.031(a), with id. § 43.041(a). Given that the Court has already
concluded that the pleadings are insufficient to establish online promotion of prostitution,5 it
necessarily follows that they are also insufficient to establish aggravated promotion of prostitution.
***

In sum, the Court concludes that Plaintiffs failed to state a claim under Chapter 98A. To
survive a Rule 12(b)(6) motion on their § 98A.002(a)(2) claims, Plaintiffs needed to plead facts
demonstrating that Salesforce engaged in either promotion of prostitution, online promotion of
prostitution, aggravated promotion of prostitution, or online aggravated promotion of prostitution.
The pleadings contain no factual allegations which suggest that Salesforce engaged in any of these
acts. Accordingly, the Court GRANTS Salesforce’s Motion with respect to Plaintiffs’ Chapter 98A

claim. And given the nature of Plaintiffs’ allegations in support of their § 98A.002(a)(2) claims,
the Court is of the opinion that any amendment to the Petition would be futile. See Stripling v.
Jordan Prod. Co., LLC, 234 F.3d 863, 872–73 (5th Cir. 2000) (“It is within the district court's
discretion to deny a motion to amend if it is futile.”). The sole theory advanced by Plaintiffs to
show Salesforce committed promotion of prostitution—that sex traffickers used the proceeds of
prostitution to pay Backpage who in turn used that money to pay Salesforce—is insufficient as a
matter of law. And precisely because Plaintiffs cannot show that Salesforce committed promotion

of prostitution by agreeing to participate in the proceeds of prostitution, they similarly cannot show
that Salesforce acted with the intent needed to sustain a finding that Salesforce committed online
promotion of prostitution or aggravated online promotion of prostitution. Finally, Plaintiffs have
not alleged any facts suggesting that they could possibly establish that Salesforce owned, invested
in, financed, controlled, supervised, or managed any prostitution enterprise—as such, Plaintiffs

5 See supra III.B.2.
also cannot show Salesforce committed aggravated promotion of prostitution. For these reasons,
the Court DISMISSES WITH PREJUDICE Plaintiffs’ § 98A.002(a) claims against Salesforce.
IV.
CONCLUSION
For these reasons, the Court GRANTS IN PART and DENIES IN PART Salesforce’s
Motion. The Court GRANTS Salesforce’s Motion with respect to Plaintiffs’ Chapter 98A claims.
Plaintiffs’ § 98A.002(a) claims against Salesforce are DISMISSED WITH PREJUDICE. The
Court DENIES Salesforce’s Motion with respect to Plaintiffs’ Chapter 98 claims. Should Plaintiffs
elect to file an amended complaint, they must do so within twenty-one (21) days of this Order.

SO ORDERED.
SIGNED: September 3, 2024.

NITED STATES DISTRICT JUDGE

29.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10672399. Public record. Not legal advice.