Republican Nat'l Comm. v. Google Inc.
| Docket Number | 2:22-cv-01904-DJC-JBP |
| Decision Date | 24 August 2023 |
| Parties | REPUBLICAN NATIONAL COMMITTEE, Plaintiffs, v. GOOGLE, INC., Defendants. |
| Court | U.S. District Court — Eastern District of California |
Plaintiff the Republican National Committee (“RNC”) brings this suit alleging that Defendant Google, LLC (“Google”)[1] has been intentionally misdirecting the RNC's emails to Gmail users' spam folders at the end of each month “to secretly suppress[] the political speech and income of one major political party.” (Compl. (ECF No. 1) ¶ 98.) According to the RNC “[w]hether Google is characterized as a common carrier public accommodation, or a business providing a service California law prohibits Google's spam filtration of RNC emails based on political affiliation and views.” (Id. ¶ 10.) Plaintiff seeks recovery for donations it allegedly lost as a result of its emails not being delivered to its supporters' inboxes.
Defendant has moved to dismiss Plaintiff's Complaint on the basis that Plaintiff has failed to plausibly allege its claims, and that section 230 of the Communications Decency Act, 47 U.S.C. § 230, compels the case be dismissed regardless. While it is a close case, the Court concludes that under the pleading standards set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the RNC has not sufficiently pled that Google acted in bad faith in filtering the RNC's messages into Gmail users' spam folders, and that doing so was protected by section 230. On the merits, the Court concludes that each of the RNC's claims fail as a matter of law for the reasons described below. Accordingly, the Court will GRANT Defendant's Motion to Dismiss, with partial leave to amend.
A. Factual Background
Plaintiff is the national committee of the Republican Party and manages the party's political operations. (Compl. ¶ 13.) In furtherance of its political fundraising efforts, the RNC regularly sends bulk emails to its supporters who have signed up to receive these emails. (Id. ¶¶ 1, 13, 19, 22.) The RNC has historically received funding from its supporters through this email outreach, and the fundraising efforts are most successful at the end of every month. (Id. ¶¶ 1-2.)
Defendant Google, LLC is an internet service provider which maintains a free email service called Gmail, in addition to other web-based products and services. (Id. ¶¶ 14-16.) Any person can sign up for and utilize Google's Gmail service. Plaintiff alleges that, in return for the service, Google collects data from its users which it sells to third parties, and also profits from selling advertising space in users' accounts. (Id.) Plaintiff is not a Gmail user and instead utilizes a different email service provider to send emails to its mailing list, which includes Gmail users.
While messages received by users are ordinarily placed in an inbox folder, as part of its service Google intercepts messages that are unwanted or potentially harmful to users and places them in a spam folder. (Id. ¶ 27.) The RNC alleges that towards the end of every month, Google has been diverting nearly all of its end-of-month emails to users' spam folders without warrant. (Id. ¶¶ 2, 27-29.) Google does not provide data about whether messages reach a user's inbox, but the RNC engages a third-party email marketing firm to independently track its messages' “inboxing” rate (the rate at which emails are placed in recipients' inbox folders). (Id. ¶ 24.) Beginning in December 2021, the RNC observed a drop off of its messages' inboxing rate at the end of the month, a pattern that repeated in every subsequent month in 2022. (Id. ¶ 28-29, 31.) Compared to other large email providers, Google allegedly diverts a larger percentage of the RNC's emails to spam at the end of every month, and with more consistency. (Id. ¶ 53.)
The RNC alerted Google to this trend in December 2021, and Google agreed to stay in communication to address the issue. (Id. ¶ 31.) Google told the RNC that the drop in the inboxing rate was likely due to a high number of user complaints and provided a list of best practices to avoid having its emails sent to spam. (Id. ¶ 36.) The RNC's email service provider confirmed that there were “no irregulates” which would be causing the issue, and the RNC's email marketing firm reported no increase in user complaints at the time the inboxing rate fell. (Id.)
On March 29, 2022 the RNC met with Google to discuss the inboxing issue. (Id. ¶ 38-40.) Google did not provide any additional suggestions for troubleshooting the issue, but agreed to have additional follow up calls with the RNC. (Id. ¶ 40.) On June 28 and 29, 2023 Google provided additional potential explanations for the drop in inboxing: (1) the frequency of emails due to the RNC's press releases, (2) a fault in the RNC's domain authentication, and (3) Google's spam filtering algorithm which collects user spam reports over the course of the month and causes emails to be diverted to spam folders. (Id. ¶¶ 42, 44.) The RNC's email service provider and email marketing firm refuted these explanations, confirming that the authenticator was functioning, and that there had been no increase in user spam reports detected. (Id. ¶ 44.) In addition, the press releases were from a different email account and comprised only 0.3% of the RNC's total email volume so ostensibly should not have impacted the inboxing rate of their marketing emails. (Id. ¶ 42.)
On August 11, 2022, Google held a training for the RNC on “Email Best Practices.” (Id. ¶ 46.) The RNC followed these best practices, which did improve the overall performance of the RNC's emails, but did not impact the monthly drop in inboxing rating. (Id. ¶¶ 47-48.) The RNC alerted Google to the ineffectiveness of the suggested practices on September 29, 2022 and did not receive a response. (Id. ¶¶ 48-50.)
The RNC alleges that Google is either purposefully or negligently diverting its emails to spam. (Id. ¶ 57; see also ¶¶ 3, 11.) The RNC internally tested its theory that Google was intentionally discriminating against it wherein it sent two sets of emails - identical in content and sender, with the only difference being that they contained different links to variants of the RNC's donation page - to two sets of user groups. (Id. ¶ 33.) One version of the email inboxed at a “normal” rate, while the other was diverted almost entirely to spam. (Id.) The RNC concedes that this test suggests emails are not being filtered by Defendant based on their communicative content. (Id.) The RNC also cites to a study[2] that found Google's Gmail labels emails from Republican candidates and Republican organizations as spam at a higher rate than their democratic counterparts, though the study does not involve the RNC. (Id. ¶¶ 54-56.)
Plaintiff brought this suit alleging violations of California's common carrier law, the Unruh Civil Rights Act, the California Unfair Competition Law, and the Federal Telecommunications Act, as well as claims alleging intentional and negligent interference with prospective economic relations, and negligence under California Civil Code § 2162. (See Id. at 17-25.) The RNC alleges that Defendant's mislabeling of its emails has caused it to lose hundreds of thousands of dollars in potential donations and has harmed its relationships with its supporters. (Id. ¶¶ 57-58.)
Defendant filed the instant Motion to Dismiss on January 23, 2023, which Plaintiff opposes. Separately, Defendant filed a Request for Judicial Notice of documents submitted in support of its Motion to Dismiss on January 23, 2023 (ECF No. 31), and Plaintiff filed a Motion to Strike Plaintiff's request for Judicial Notice (ECF No. 34), which Defendant opposes (ECF No. 39).
The Court held oral argument on both motions on July 17, 2023 with Michael A. Columbo and Thomas S. McCarthy appearing for Plaintiff, and Michael R. Huston and Sunita Bali appearing for Defendant.
A party may move to dismiss for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). The motion may be granted if the complaint lacks a “cognizable legal theory” or if its factual allegations do not support a cognizable legal theory. Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th Cir. 2019) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988)). The court assumes all factual allegations are true and construes them “in the light most favorable to the nonmoving party.” Steinle v. City & County of San Francisco, 919 F.3d 1154, 1160 (9th Cir. 2019) (quoting Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995)). If the complaint's allegations do not “plausibly give rise to an entitlement to relief,” the motion must be granted. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
A complaint need contain only a “short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), not “detailed factual allegations,” BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). But this rule demands more than unadorned accusations; “sufficient factual matter” must make the claim at least plausible. Iqbal, 556 U.S. at 678. In the same vein, conclusory or formulaic recitations of elements do not alone suffice. Id. (citing Twombly, 550 U.S. at 555). This evaluation of plausibility is a context-specific task drawing on “judicial experience and common sense.” Id. at 679.
At the outset, Plaintiff's suit is barred because Google is entitled to immunity from suit under section 230 of the Communications Decency Act, 47...
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