LUCY H. KOH, United States District Judge.
Paul Perkins ("Perkins"), Pennie Sempell ("Sempell"), Ann Brandwein ("Brandwein"), Erin Eggers ("Eggers"), Clare Connaughton ("Connaughton"), Nicole Crosby ("Crosby"), Jake Kushner ("Kushner"), Natalie Richstone ("Richstone"), and Leslie Wall ("Wall"), on behalf of themselves and a putative class (collectively, "Plaintiffs"), bring the instant action against LinkedIn Corporation ("Defendant" or "LinkedIn"). See ECF No. 55, Second Amended Class Action Complaint ("SAC"). Plaintiffs allege that Defendant, the operator of a popular social networking website, harvested email addresses from Plaintiffs' contact lists and email history, including the email addresses of every person that has ever emailed Plaintiffs, been emailed by Plaintiffs, or been carbon copied on emails to or from Plaintiffs. Id. ¶ 1. According to Plaintiffs, Defendant violated several California laws by sending, without Plaintiffs' knowledge or consent, up to two messages to those harvested email addresses reminding the recipients to join LinkedIn. Id. ¶¶ 6, 9-11, 92-93. These reminder emails, Plaintiffs allege, used Plaintiffs' names and likenesses to personally endorse LinkedIn's services for the commercial benefit of LinkedIn and to the detriment of Plaintiffs. Id. ¶¶ 83-86, 92-93, 104-05.
Before the Court is Defendant's Motion to Dismiss the SAC. ECF No. 60 ("Mot."). Plaintiffs opposed the motion, ECF No. 65 ("Opp."), and Defendant replied, ECF No. 66 ("Reply"). Having considered the submissions of the parties, the applicable law, and the record in this case, the Court GRANTS in part and DENIES in part Defendant's Motion to Dismiss.
LinkedIn is a social networking website geared toward professional networking
At this stage, the instant case centers on LinkedIn's practice of sending reminder messages to email addresses that have been harvested from LinkedIn members. SAC ¶¶ 1, 9. LinkedIn collects these email addresses in two ways: during the sign up process for new users and through the "Add Connections" feature for existing users. Id. ¶¶ 44-59, 68-70. Plaintiffs are nine professionals who seek to represent a nationwide class of LinkedIn users. Id. ¶ 22. Plaintiffs allege that during the sign up process LinkedIn harvested the email addresses of Plaintiffs' contacts as well as the email addresses of every person who has either emailed Plaintiffs, been emailed by Plaintiffs, or who has been carbon copied on an email to or from Plaintiffs. Id. ¶¶ 1, 63. LinkedIn then sent an initial message (the "initial invitation email") to those harvested email addresses, purportedly on behalf of the LinkedIn user, inviting the recipient to join LinkedIn. Id. ¶ 71. If after one week the invitee had not joined, LinkedIn would send a second email (the "first reminder email") reminding the invitee of the outstanding invitation. Id. ¶ 72. If after another week the invitee still had not joined, LinkedIn would send a third and final email (the "second reminder email") encouraging the invitee to do so. Id.
When a new user signs up for LinkedIn, the website prompts her to provide her first name, last name, email address, and a password. SAC ¶ 45 fig. 1 (pictured below). Underneath the prompts for this information is a button titled "Join LinkedIn," adjacent to which is a small asterisk. Id. The asterisk directs the user to a line at the bottom of a page that states: "By joining LinkedIn, you agree to LinkedIn's User Agreement, Privacy Policy, and Cookie Policy." Id. ¶ 45. A new user can only view the terms of service by scrolling down the page and clicking on a link beneath the "Join LinkedIn" button, which then takes the user to a separate screen. Id.
Once a new user enters the prompted information and clicks the "Join LinkedIn" button, she is directed to a second page, which states "let's start creating your professional profile." SAC¶ 48 fig.2 (pictured below). This page asks the user to provide LinkedIn with her country of residence, ZIP code, employment status, job title, and industry. Id. Below these fields is a button titled "Create my profile." Id.
A new user who clicks the "Create my profile" button is next directed to a page that states "Grow your network on LinkedIn." SAC ¶ 50 fig.3 (pictured below). On this page, the user is told to "Get started by adding your email address," under which the field for "Your email" is pre-populated with the user's email address, id., which the user already provided to LinkedIn on the first screen, see supra Figure 1. The "Grow your network on LinkedIn" page contains a button titled "Continue" under the pre-populated email field. SAC ¶ 50 fig.3. Importantly, under the "Continue" button is a statement that reads: "We will not store your password or email anyone without your permission." Id. According to the SAC, each of the nine
A new user who clicks "Continue" and who signed up with LinkedIn using an email address from Google's Gmail system is led to a screen from Google Accounts.
A new user who clicks "Continue" on the "Grow your network on LinkedIn" page
A new user who clicks "Continue" on the "Grow your network on LinkedIn" page and who signed up with LinkedIn using a Microsoft email address is led to a Microsoft accounts screen.
A new user who clicks "Continue" on the "Grow your network on LinkedIn" page and who signed up with LinkedIn using an AOL email address is led to an AOL Sign In screen.
Once LinkedIn has obtained access to a new user's email address and contacts, the user is led to a screen titled "Connect with people you know on LinkedIn." ECF No. 18-2, Ex. F (pictured below as Figure 8).
Next, the new user is directed to a page titled "Why not invite some people?"
If a user chooses the "Add to Network" option, LinkedIn sends the initial invitation email to all of the email addresses affiliated with the checked boxes. SAC ¶ 71. These emails, which Plaintiffs label "endorsement emails,"
If one week after receiving the initial invitation email, the recipient has not joined LinkedIn, LinkedIn sends the first reminder email encouraging the recipient to join. SAC ¶ 72. At the top, the first reminder email is titled "Reminder about your invitation from [LinkedIn user]." See ECF No. 63-2, Ex. A (pictured below as Figure 11).
If after a second week, the recipient of the prior endorsement emails still has not joined LinkedIn, LinkedIn sends the second reminder email encouraging the recipient to do so. SAC ¶ 72. At the top, the second reminder email is titled "[LinkedIn user's] invitation is awaiting your response." See ECF No. 63-2, Ex. A (pictured below as Figure 12).
Plaintiffs allege that "[e]ach of the reminder emails contain the LinkedIn member's name and likeness so as to give the recipient the impression that the LinkedIn member is endorsing LinkedIn and asking the recipient to join LinkedIn's social network." SAC ¶ 67. As indicated above, however, the judicially noticed screenshots reveal that only a user's name—not her likeness—appears in the first reminder email. See supra Figure 11. By contrast, in the second reminder email, a user's name appears along with her likeness, so long as the user has previously uploaded a profile picture to her LinkedIn account. See supra Figure 12.
Plaintiffs allege further that once the invitation process has been set into motion, it is virtually impossible for users to stop Defendant from sending the reminder emails. SAC ¶¶ 61, 75-77. Specifically, Plaintiffs claim: "The only way LinkedIn users could stop the two follow-up endorsement emails (assuming the user found out about the initial emails in the first place) from going out would be to individually open up each invitation from within his or her LinkedIn account (which LinkedIn has intentionally made difficult to find within the user's account) and click a button that allows the user to withdraw that single invitation." Id. ¶ 76. LinkedIn offers no mechanism, Plaintiffs allege, by which users can withdraw all reminder emails at once. Id. ¶ 77. Plaintiffs claim that it would take hours to prevent LinkedIn from sending the reminder emails to the hundreds or thousands of contacts a user may have. Id. ¶ 76. Plaintiffs allege further that LinkedIn does not take prompt remedial action when users have contacted LinkedIn to try and stop the reminder emails from being sent. Id. ¶ 77.
In addition, plaintiffs allege that Defendant's sending of reminder emails to addresses harvested from LinkedIn users is contrary to several of Defendant's own policies. SAC ¶¶ 46, 73-74. In particular, Plaintiffs highlight the following:
Plaintiffs also point to a number of user postings on LinkedIn's Help Center pages complaining about Defendant sending reminder emails. SAC ¶¶ 50, 57, 62, 67, 75, 77, 90. These postings, Plaintiffs contend, prove that LinkedIn knew about the harm caused by its practice of sending reminder emails to prospective users but nevertheless took no action. Id. ¶¶ 57-58. For example, on one message board thread an upset user wrote: "at this point I'm finding LinkedIn more of a problem in terms of hurting my reputation rather than helping it. What's more the invitations are NOT people in my address book. They are people I don't know. I find this entire issue extremely unprofessional on LI's part. You would think with all these members with the same problem LI would respond with a fix." Id. ¶ 77. Another angry user wrote: "There is a specific group of people whom I absolutely must avoid for ethical reasons. This feature has sent out invitations on its own initiative twice, and my first notice each time was that one of these people `accepted' my invitations. Terrible." Id. ¶ 62.
Finally, Plaintiffs advance a number of theories regarding how LinkedIn's sending of reminder emails injured Plaintiffs. First, Plaintiffs allege that the reminder emails are valuable to LinkedIn. SAC ¶ 85. Specifically, Plaintiffs note that attracting new members is integral to the business model of LinkedIn, which actively advertises its size, and that reminder emails containing personalized endorsements of LinkedIn are a critical component of attracting these new members. Id. ¶¶ 83-85. Plaintiffs quote Josh Elman
On September 17, 2013, Plaintiffs filed a class action complaint, see ECF No. 1, which Plaintiffs amended on October 2, 2013, see ECF No. 7, First Amended Complaint ("FAC"). The FAC contained five causes of action: (1) violation of California's common law right of publicity; (2) violation of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof.Code § 17200; (3) violation of the federal Stored Communications Act ("SCA"), 18 U.S.C. § 2701; (4) violation of the federal Wiretap Act, 18 U.S.C. § 2511; and (5) violation of California's Comprehensive Data Access and Fraud Act ("section 502"), Cal.Penal Code § 502. FAC ¶¶ 88-138.
On December 6, 2013, Defendant moved to dismiss the FAC. ECF No. 17. Plaintiffs opposed the motion on January 13, 2014, ECF No. 24, and Defendant replied on January 31, 2014, ECF No. 30. The Court held a motion hearing on April 10, 2014. See ECF No. 39.
On June 12, 2014, the Court granted in part and denied in part Defendant's motion to dismiss with leave to amend. First MTD Order at 39. The Court began by denying Defendant's motion to dismiss for want of Article III standing, finding that Plaintiffs had "adequately alleged" injury-in-fact, causation, and redressability "with respect to all of their causes of action." Id. at 23. As to Plaintiffs' federal claims, the Court granted Defendant's motion, dismissing Plaintiffs' claims under the SCA and the Wiretap Act. Id. at 23-27. The Court granted in part and denied in part Defendant's motion as to Plaintiffs' state law claims. Concerning the common law right of publicity cause of action, the Court held that Plaintiffs had consented to Defendant's sending of the initial invitation email, but that Plaintiffs plausibly alleged that they had not consented to the first and second reminder emails. Id. at 28-32. Accordingly, the Court granted Defendant's motion as to the initial invitation email but denied the motion as to the subsequent reminder emails. Id. at 32. Next, the Court granted Defendant's motion on the section 502 claim, concluding that "Plaintiffs have not adequately alleged that Defendant breaches a technical or code-based barrier." Id. at 35. Concerning Plaintiffs' UCL claims, the Court granted Defendant's motion as to Plaintiffs' "misrepresentation-based UCL claims" because "Plaintiffs have not alleged that they read any of LinkedIn's purported misrepresentations." Id. at 36-37.
Plaintiffs filed another amended complaint on August 28, 2014. See SAC. In the SAC, Plaintiffs now allege just three state law causes of action: (1) violation of California's common law right of publicity; (2) violation of California's statutory right of publicity ("section 3344"), Cal. Civ.Code § 3344; and (3) violation of California's UCL. As required by the Court, see First MTD Order at 39, Plaintiffs obtained Defendant's consent to add the section 3344 cause of action, ECF No. 56 at 2-3. With Plaintiffs electing not to renew any of their federal claims, the Court's basis for jurisdiction is the Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1332(d). SAC ¶ 20.
In response to the SAC, Defendant filed the instant Motion to Dismiss on September 18, 2014. Mot. at 26. In its motion, Defendant asks the Court to dismiss the entire SAC with prejudice or, in the alternative, to dismiss Plaintiffs' request for minimum statutory damages under section 3344. Id. at 1. At the same time, Defendant also filed a request for judicial notice. ECF No. 61. Plaintiffs opposed the Motion to Dismiss on October 9, 2014. ECF No. 63. That same day, Plaintiffs filed their own request for judicial notice, ECF No. 64, and an objection to Defendant's judicial notice request, ECF No. 62. On October 13, 2014, Plaintiffs filed a corrected Opposition. Opp. at 26.
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include "a short and plain statement of the claim showing that the pleader is entitled to relief." A complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). The Supreme Court has held that Rule 8(a) requires a plaintiff to 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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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."
The Court, however, need not accept as true allegations contradicted by judicially noticeable facts, see Shwarz v. United States, 234 F.3d 428, 435 (9th Cir.2000), and it "may look beyond the plaintiff's complaint to matters of public record" without converting the Rule 12(b)(6) motion into a motion for summary judgment, Shaw v. Hahn, 56 F.3d 1128, 1129 n. 1 (9th Cir.1995). Nor must the Court "assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir.2011) (per curiam) (internal quotation marks omitted). Mere "conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss." Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir.2004).
The Court generally may not look beyond the four corners of a complaint in ruling on a Rule 12(b)(6) motion, with the exception of documents incorporated into the complaint by reference, and any relevant matters subject to judicial notice. See Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir.2007); Lee v. City of L.A., 250 F.3d 668, 688-89 (9th Cir.2001). Under the doctrine of incorporation by reference, the Court may consider on a Rule 12(b)(6) motion not only documents attached to the complaint, but also documents whose contents are alleged therein, provided the complaint "necessarily relies" on the documents or contents thereof, the document's authenticity is uncontested, and the document's relevance is uncontested. Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir.2010); accord Lee, 250 F.3d at 688-89. The purpose of this rule is to "prevent plaintiffs from surviving a Rule 12(b)(6) motion by deliberately omitting documents upon which their claims are based." Swartz, 476 F.3d at 763 (alterations and internal quotation marks omitted).
The Court also may take judicial notice of matters that are either (1) generally known within the trial court's territorial jurisdiction or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed.R.Evid. 201(b). Proper subjects of judicial notice when ruling on a motion to dismiss include legislative history reports, see Anderson v. Holder, 673 F.3d 1089, 1094 n. 1 (9th Cir.2012); court documents already in the public record and documents filed in other courts, see Holder v. Holder, 305 F.3d 854, 866 (9th Cir.2002); and publicly accessible websites, see Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998-99 (9th Cir.2010).
If the Court determines that the complaint should be dismissed, it must then decide whether to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend "shall be freely given when justice so requires," bearing in mind "the underlying purpose of Rule 15 to facilitate decisions on the merits, rather than on the pleadings or technicalities." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.2000) (en banc)
In connection with the instant Motion to Dismiss, Defendant requests that the Court take judicial notice of a screenshot of a first reminder email sent by LinkedIn. ECF No. 61 at 1. Plaintiffs opposed Defendant's request, arguing that the screenshot Defendant provided was "inauthentic." ECF No. 62 at 2. Plaintiffs also filed their own request for the Court to take judicial notice of the following: (1) a California Assembly Committee on Judiciary document analyzing Assembly Bill 826 ("AB 826"), enacted later as section 3344; (2) a California Senate Committee on Judiciary document describing AB 826; (3) an official press release from Assemblyman John Vasconcellos ("Vasconcellos") regarding AB 826; (4) a letter from Vasconcellos to Governor Ronald Reagan regarding AB 826; and (5) screenshots of an initial invitation email, first reminder email, and second reminder email. ECF No. 64 at 1. Defendant filed a supplemental request asking the Court to take judicial notice of the legislative drafting history of AB 826. ECF No. 67 at 1.
The Court DENIES Defendant's request for judicial notice of the screenshot of the first reminder email. Plaintiffs dispute the screenshot's authenticity, ECF No. 62 at 1-2, so the Court cannot conclude that the screenshot is a document "whose accuracy cannot reasonably be questioned," Fed.R.Evid. 201(b). The Court GRANTS Plaintiffs' unopposed request for judicial notice of the screenshots of an initial invitation email, first reminder email, and second reminder email. Defendant does not dispute the accuracy or relevancy of these screenshots, see Reply at 8 n.8, and the SAC "necessarily relies" on them, Coto, 593 F.3d at 1038. The Court GRANTS Defendant's supplemental request for judicial notice of AB 826's drafting history and GRANTS Plaintiffs' request for judicial notice of the California Assembly and Senate Judiciary Committees' documents analyzing AB 826, as well as Vasconcellos' official press release and letter to Governor Reagan. See Anderson, 673 F.3d at 1094 n. 1 ("Legislative history is properly a subject of judicial notice."); Montantes v. Inventure Foods, No. CV-14-1128-MWF RZX, 2014 WL 3305578, at *1 (C.D.Cal. July 2, 2014) (taking judicial notice of California assemblyman's press release and letter to Governor Reagan).
Defendant moves to dismiss the SAC on several bases. First, Defendant argues that the Court should dismiss Plaintiffs' request for minimum statutory damages under section 3344, California's right of publicity statute, because Plaintiffs have failed to allege any "mental harm" arising out of Defendant's alleged conduct. Mot. at 6-10. Second, Defendant contends that all of Plaintiffs' claims are barred by the Communications Decency Act ("CDA"), 47 U.S.C. § 230, which provides immunity to "interactive computer services" from tort liability arising out of their publishing
California's statutory right of publicity "complement[s]" the common law right of publicity but "neither replaces nor codifies the common law cause of action." Newcombe v. Adolf Coors Co., 157 F.3d 686, 691-92 (9th Cir.1998). The statute provides, in relevant part: "Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner . . . for purposes of advertising or selling . . ., without such person's prior consent, . . . shall be liable for any damages sustained by the person." Cal. Civ. Code § 3344(a). To state a claim under section 3344, a plaintiff must first allege the elements of the common law right: "(1) the defendant's use of the plaintiff's identity; (2) the appropriation of plaintiff s name or likeness to defendant's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury." Downing v. Abercrombie & Fitch, 265 F.3d 994, 1001 (9th Cir.2001). In addition, section 3344 requires a plaintiff to allege (5) "a knowing use by the defendant"; and (6) "a direct connection between the alleged use and the commercial purpose." Id. When section 3344 has been violated, a plaintiff may recover "in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use." Cal. Civ.Code § 3344(a).
Plaintiffs here do not claim "actual damages" under section 3344; Plaintiffs assert only that they are entitled to minimum statutory damages "in the amount of $750 per LinkedIn member." SAC ¶ 143. Defendant argues that Plaintiffs seek this remedy solely on the basis of economic injury. Mot. at 9-10. As a result, Defendant contends, "Plaintiffs' claim for minimum statutory damages should be dismissed because Section 3344's statutory damages provision applies only to claims for mental harm, which Plaintiffs do not allege." Id. at 6.
The Court agrees. The text of section 3344, it is true, contains no express requirement that a plaintiff plead mental harm in order to claim the minimum statutory damages figure. A California Court of Appeal, however, has inferred such a requirement from section 3344's legislative history. See Miller v. Collectors Universe, Inc., 159 Cal.App.4th 988, 72 Cal.Rptr.3d 194 (2008). This Court should follow Miller's interpretation of a California statute absent convincing evidence "that the California Supreme Court would reject it." Muniz v. United Parcel Serv., Inc., 738 F.3d 214, 219 (9th Cir.2013); see also In re Watts, 298 F.3d 1077, 1082 (9th Cir.2002) (explaining that federal courts "are bound to follow [California intermediate appellate courts] absent convincing evidence that the California Supreme Court would reject the[ir] interpretation of [a state statute]").
In Miller, an authenticator of memorabilia sued his former employer for knowingly issuing, without his consent, certificates of authenticity bearing his name. See 159 Cal.App.4th at 991, 72 Cal.Rptr.3d 194. As a result, Miller sought minimum statutory
In holding that minimum statutory damages under section 3344 were meant to compensate for mental anguish, the court in Miller distinguished "injury to the character or reputation" from "injury to the feelings" resulting from harm to one's reputation. 159 Cal.App.4th at 1002, 72 Cal.Rptr.3d 194. Quoting from the statute's legislative history, the Miller court explained that section 3344's minimum statutory damages remedy only compensates the latter injury:
Id. (ellipses omitted) (quoting ECF No. 64-1, Assemb. Comm. on Judiciary Analysis of A.B. 826 ("Assemb.Comm.Analysis"), Reg. Sess., at 1 (Cal. May 3, 1971)). Minimum statutory damages, thus, do not recompense mere reputational harm; rather, this remedy compensates for the effect any such reputational harm might have on one's feelings or peace of mind. See id. at 1008, 72 Cal.Rptr.3d 194 (concluding that the real injury to Miller was not to his reputation per se, but "the worry and uncertainty regarding his reputation" (emphasis added)).
Plaintiffs have not provided convincing evidence that the California Supreme Court would reject Miller's interpretation of section 3344's minimum statutory damages provision. See Muniz, 738 F.3d at 219. Plaintiffs argue first that, as a textual matter, "[r]eading a mental harm requirement into Section 3344 would impermissibly
Plaintiffs assert next that section 3344's legislative history "directly contradicts LinkedIn's argument that damages must be tied to mental anguish." Opp. at 9. The Court disagrees for two reasons. First, Plaintiffs appear to have confused the availability of minimum statutory damages under section 3344 with the availability of damages more generally under the statute. Defendant does not argue, and Miller did not hold, that "damages must be tied to mental anguish." Id. Instead, Miller concluded that the minimum statutory damages award of $750 must be tied to mental anguish. See 159 Cal.App.4th at 1006, 72 Cal.Rptr.3d 194. A plaintiff alleging economic injury has every right to seek "actual damages" under section 3344. Id.; see Cal. Civ.Code § 3344(a) (allowing recovery for "actual damages").
Second, the legislative history of section 3344, on which Miller relied heavily, supports the conclusion that minimum statutory damages were meant to compensate only for mental anguish. See Assemb. Comm. Analysis at 1 (explaining that section 3344's minimum statutory damages provision was intended to remedy "injury to the feelings" and to one's "peace of mind and comfort" (quoting Fairfield v. Am. Photocopy Equip. Co., 138 Cal.App.2d 82, 86-87, 291 P.2d 194 (1955))). Plaintiffs, in contrast, identify no piece of legislative history suggesting that section 3344's minimum statutory damages remedy was aimed at compensating anything other than mental harm. The documents Plaintiffs cite indicate only that section 3344 contemplates class action lawsuits, see Opp. at 8 n.8, a proposition that Defendant does not dispute. The other authorities Plaintiffs cite suggest that section 3344's minimum statutory damages remedy was in fact meant to solve the "proof problems" associated with non-celebrity claims of "mental suffering." Id. at 8 n. 9 (quoting John R. Braatz, Note, White v. Samsung Electronics America: The Ninth Circuit Turns A New Letter in California Right of Publicity Law, 15 Pace L.Rev. 161, 180 n.134 (1994)); see Stilson v. Reader's Digest Assn., Inc., 28 Cal.App.3d 270, 274, 104 Cal.Rptr. 581 (1972).
Plaintiffs argue next that this Court in Fraley v. Facebook already "rejected LinkedIn's argument that pleading economic injury is insufficient to sustain a claim for statutory damages under Section 3344" Opp. at 9 (citing Fraley v. Facebook, Inc., 830 F.Supp.2d 785 (N.D.Cal.2011)). Plaintiffs are mistaken. In Fraley, the plaintiffs, as here, "allege[d] not that they suffered mental anguish as a result of Defendant's actions, but rather that they suffered economic injury because they were
Plaintiffs argue further that courts generally presume the injury requirement has been met so long as the other elements of a section 3344 cause of action have been satisfied. Opp. at 10. In Del Amo v. Baccash, No. CV 07-663-PSG, 2008 WL 4414514, at *6 (C.D.Cal. Sept. 16, 2008), for instance, the court concluded that a plaintiff seeking minimum statutory damages "need not demonstrate injury" so long as she has shown that the defendant, without her consent, knowingly used her identity to the direct commercial benefit of the defendant. Id. The Court does not read Del Amo to suggest that just because mental anguish may be difficult to prove, it need not even be alleged by plaintiffs seeking to recover minimum statutory damages under section 3344. See Cohen v. Facebook, Inc. (Cohen I), 798 F.Supp.2d 1090, 1097 (N.D.Cal.2011) (concluding that to state a claim for minimum statutory damages under section 3344, "plaintiffs must, at a minimum, plead that they suffered mental anguish as a result of the alleged misappropriation, and a plausible supporting factual basis for any such assertion"). Nor could the Court read Del Amo to suggest in any way that a plaintiff alleging solely economic injury may avail herself of section 3344's minimum statutory damages remedy. That issue was simply not before the Del Amo court. To the extent Del Amo might be read to the contrary, the Court finds such a reading inconsistent with Miller and declines to adopt it. See, e.g., Starbucks, 168 Cal.App.4th at 1450 (citing with approval Miller's conclusion that section 3344's "minimum statutory damages intended to remedy the alleged injury to [a plaintiff's] mental feelings and peace of mind"); McCarthy, supra, § 6:46.
For the reasons stated above, the Court GRANTS Defendant's Motion to Dismiss Plaintiffs' claim for minimum statutory damages under section 3344. Because Plaintiffs raise the section 3344 claim for the first time in their SAC, and amendment would not necessarily be futile, the Court grants leave to amend. See AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 637-38 (9th Cir.2012) ("[A] court abuses its discretion when leave to amend is denied and amendment would not be futile.").
As the Ninth Circuit has explained, "Section 230 of the CDA immunizes providers of interactive computer services against liability arising from content created by third parties." Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1162 (9th Cir.2008) (en banc). Section 230 was enacted to "protect[] websites from liability for material posted on the website by someone else." Doe No. 14 v. Internet Brands, Inc., 767 F.3d 894, 897 (9th Cir. 2014). Specifically, section 230 states: "No provider or user 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). Importantly, section 230's "grant of immunity applies only if the interactive computer service provider is not also an `information content provider,' which is defined as someone who is `responsible, in whole or in part, for the creation or development of the offending content." Roommates.Com, 521 F.3d at 1162 (quoting 47 U.S.C. § 230(f)(3)). CDA immunity, thus, does not apply to "the creation of content" by a website. Id. at 1163. Because a "website
LinkedIn claims immunity under the CDA, arguing that it is an "interactive computer service" but not an "information content provider" because Plaintiffs, not LinkedIn, are responsible for the "substantive content" of the reminder emails. Mot. at 12-19. Plaintiffs do not dispute that LinkedIn is an "interactive computer service" under the meaning of the CDA. See Reply at 7 n.6. Instead, Plaintiffs argue that LinkedIn is not entitled to CDA immunity because LinkedIn is an "information content provider" responsible "in whole or in part" for the creation or development of the reminder emails. Opp. at 12 (quoting Roommates.Com, 521 F.3d at 1162).
The Court agrees with Plaintiffs. To start, Plaintiffs allege that LinkedIn, without Plaintiffs' consent and for the commercial benefit of LinkedIn, sent reminder emails to thousands of recipients making use of Plaintiffs' names and likenesses as personalized endorsements for LinkedIn. SAC ¶¶ 92-93, 122-28. Plaintiffs allege further that LinkedIn was "solely responsible for the creation and development of each [reminder] email," and that each reminder email "was new, original, and unique content created and developed in whole or in part by LinkedIn." Id. ¶¶ 99-100. LinkedIn, Plaintiffs say, generated the text, layout, and design of the reminder emails and sent them to hundreds if not thousands of recipients. Id. ¶¶ 64, 99-100. Because, as Plaintiffs allege, LinkedIn sent the reminder emails without Plaintiffs' knowledge or consent, id. ¶¶ 92-93, the text and layout of these emails were created by LinkedIn without any input from the user. Significantly, Plaintiffs claim that LinkedIn provided no means by which a user could edit or otherwise select the language included in the reminder emails. True authorship of the reminder emails, Plaintiffs allege, lay with LinkedIn. See SAC ¶¶ 99-100.
Furthermore, Plaintiffs claim that LinkedIn alone chose to include a user's photograph in the second reminder email, but not in the first reminder email or in the initial invitation email. Compare supra Figure 12 (second reminder email with space for photograph if one has been uploaded), with supra Figure 10 (initial invitation email with no space for photograph), and Figure 11 (first reminder email with no space for photograph). Likewise, only LinkedIn decided how many reminder emails it would send and how frequently it would do so. Plaintiffs, who allegedly relied on LinkedIn's statement that it would never "email anyone without [Plaintiffs'] permission," SAC ¶ 50 fig.3, had no idea the reminder emails LinkedIn claims Plaintiffs authored even existed. Taking all these allegations as true, Plaintiffs have plausibly alleged that LinkedIn was responsible at least "in part" for "the creation or development of the reminder emails. Roommates.Com, 521 F.3d at 1162 (quoting 47 U.S.C. § 230(f)(3)); see also Fraley, 830 F.Supp.2d at 801-02 (holding that Facebook "is not at this stage entitled to CDA immunity" because "Plaintiffs allege that Facebook contributes, at least in part, to the creation or development of the Sponsored Story that ultimately appears on other members' Facebook pages in the form of a product or service endorsement").
LinkedIn argues nevertheless that because Plaintiffs provided the substantive content of the initial invitation emails, and consented to those emails being sent, Plaintiffs had already provided the essential content that LinkedIn only republished
Second, the Court is not convinced that the reminder emails are, as Defendant argues, substantively identical to the initial invitation email. Mot. at 16-17, 19. The initial invitation email, written in the first person, reads: "I'd like to add you to my professional network." Figure 10, supra. The first reminder email, written in the third person, states: "This is a reminder that on [date of initial email], [LinkedIn user] sent you an invitation to become part of their professional network at LinkedIn." Figure 11, supra. The second reminder email, also written in the third person, reads: "[LinkedIn user] would like to connect on LinkedIn. How would you like to respond?" Figure 12, supra. Contrary to Defendant's assertions, then, the first reminder email appears to transform the substance of the initial invitation email from "Do you want to connect with me?" to "You never responded to the user's first invitation so let us ask you again, do you want to connect with her?" The second reminder email is arguably more transformative still, as the substance changes from "Do you want to connect with me?" to "You never responded to the user's first invitation or to our reminder concerning that invitation, so let us ask you for a third time, do you want to connect with her?"
Nor is the Court convinced that LinkedIn, in sending the reminder emails, was performing only a "traditional editorial function." Mot. at 15-16; Reply at 9-11. As in Fraley, Plaintiffs here "do not allege merely that [LinkedIn] `edit[ed] user-created content—such as by correcting spelling, removing obscenity or trimming for length.'" 830 F.Supp.2d at 802 (second
Additionally, Defendant's citations do not persuade the Court. LinkedIn's alleged conduct goes well beyond merely adding HTML meta tags to make user-provided text more visible, see Asia Econ. Inst. v. Xcentric Ventures LLC, No. CV 10-01360 SVW PJWX, 2011 WL 2469822, at *6-7 (C.D.Cal. May 4, 2011); placing a watermark on photographs and printing the website's address on advertisements created by third parties but published on the website, see Ramey v. Darkside Prods., Inc., No. CIV.A. 02-730(GK), 2004 WL 5550485, at *6-7 (D.D.C. May 17, 2004); or instructing a search engine to make copies of user-generated reports and authorizing their display so as to maximize the number of page views, see Small Justice LLC v. Xcentric Ventures LLC, No. 13-CV-11701, 2014 WL 1214828, at *7-8 (D.Mass. Mar. 24, 2014). Plaintiffs' allegations suffice at this stage to defeat Defendant's claim of CDA immunity. See Fraley, 830 F.Supp.2d at 802 (rejecting CDA immunity at the motion to dismiss stage because "Plaintiffs allege not only that Facebook rearranged text and images provided by members, but moreover that by grouping such content in a particular way with third-party logos, Facebook transformed the character of Plaintiffs' words, photographs, and actions into a commercial endorsement to which they did not consent").
The Ninth Circuit's ruling in Carafano, which predates the Court of Appeals' en banc decision in Roommates.Com, does not counsel otherwise. In that case, a third party created a fake dating profile of a popular Hollywood actress, which included sexually suggestive comments and the actress's home address and contact information. Carafano, 339 F.3d at 1120-22. Affirming the district court's grant of summary judgment to Matchmaker.com, the court found CDA immunity because the "critical information about Carafano's home address, movie credits, and the e-mail address that revealed her phone number were transmitted unaltered to profile viewers." Id. at 1125. "Thus," the court concluded, "Matchmaker did not play a significant role in creating, developing or `transforming' the relevant information." Id. Here, by contrast, Plaintiffs have sufficiently alleged that LinkedIn was responsible "at least in part" for creating or developing the reminder emails endorsing LinkedIn. Roommates.Com, 521 F.3d at 1165. As discussed above, Plaintiffs allege that LinkedIn generated the text, layout, and design of the reminder emails and deprived Plaintiffs any opportunity to edit those emails, which Plaintiffs had no knowledge were being circulated on their behalf. Id. ¶¶ 92-93, 99-100. Carafano, therefore, is distinguishable.
For all these reasons, the Court DENIES Defendant's Motion to Dismiss on grounds of CDA immunity.
No right of publicity cause of action "`will lie for the publication of matters in the public interest, which rests on the right of the public to know and the freedom of the press to tell it.'" Downing, 265 F.3d at 1001 (quoting Montana v. San Jose Mercury News, Inc., 34 Cal.App.4th 790, 793, 40 Cal.Rptr.2d 639 (1995)); accord Hilton v. Hallmark Cards, 599 F.3d 894, 912 (9th Cir.2010). "This
Defendant advances three defenses rooted in the First Amendment. The Court addresses them one by one. First, Defendant argues that the reminder emails at issue here "facilitate associations among people and therefore concern matters of public interest." Mot. at 20. As the reminder emails "convey[ ] information that directly relates to . . . matters of public interest," Defendant claims that these emails "constitute[ ] noncommercial speech subject to the full protection of the First Amendment." Id. In contrast to the reminder emails, Defendant says, commercial speech "`does no more than propose a commercial transaction.'" Id. (quoting Hoffman, 255 F.3d at 1184). Because the reminder emails were not sent "solely for advertising purposes," Defendant argues that they cannot be commercial speech under the meaning of the First Amendment. Id. at 22.
The Court is not persuaded. Although the "core notion of commercial speech" involves "speech which does no more than propose a commercial transaction," speech that "cannot be characterized merely as [a] proposal[ ] to engage in commercial transactions" may still be deemed commercial for First Amendment purposes. Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983) (internal quotation marks omitted). The mere fact that the reminder emails may implicate the public interest does not, as Defendant suggests, end the inquiry. In Bolger, for instance, the U.S. Supreme Court held that "informational pamphlets" containing "discussions of important public issues such as venereal disease and family planning" were nevertheless commercial speech. Id. at 67-68, 103 S.Ct. 2875. The Bolger Court so held because the pamphlets (1) were conceded to be advertisements; (2) referred to specific contraceptive products manufactured by Youngs; and (3) were mailed to members of the public with an "economic motivation." Id. at 66-67, 103 S.Ct. 2875'. The presence of all three characteristics, the Court concluded, provided "strong support" for a finding that the pamphlets were "properly characterized as commercial speech." Id. at 67, 103 S.Ct. 2875; see also Downing, 265 F.3d at 1002 (rejecting First Amendment defense to a catalog's use of well-known surfers' photographs even though "the theme of Abercrombie's catalog was surfing and surf culture, a matter of public interest"); Yeager v. Cingular Wireless LLC, 673 F.Spp.2d 1089, 1098 (E.D.Cal.2009) (holding that a wireless provider's emergency preparedness publication was commercial speech even though it "did not directly propose any commercial transactions or offer any products or services").
So too here. Plaintiffs have plausibly alleged that the reminder emails, just like the initial invitation email, function as advertisements for LinkedIn. See SAC
Furthermore, Plaintiffs have sufficiently alleged that LinkedIn's motivation for sending the reminder emails is primarily economic. SAC ¶¶ 12, 15-17, 83-86, 90. Specifically, Plaintiffs claim that attracting new members is integral to the business model of LinkedIn, which actively advertises its size, and that reminder emails containing personalized endorsements of LinkedIn are a critical component of drawing in these new members. See id. ¶¶ 83-85. According to the SAC, LinkedIn's 2012 Form 10-K states that "our member base has grown virally based on members inviting other members to join our network" and that because "our member base has grown virally . . . we have been able to build our brand with relatively low marketing costs." Id. ¶¶ 83, 86 (ellipsis in original). As Elman, LinkedIn's former head of growth, has said: "[I]t took several emails to a person before they would actually sign up for LinkedIn. It would average about 3.2 in the early days." Id. ¶ 16. According to Elman, "That number 3.2 was actually really really important that's how many emails you need to get before you sign up and so we kept the email importer and it still works." Id. ¶ 17.
These acknowledgements come as little surprise to the Court, especially in light of the similar comments uttered by Facebook executives in Fraley. In that case, this Court found particularly persuasive the complaint's quotation of Facebook CEO Mark Zuckerberg, who had stated, "A trusted referral influences people more than the best broadcast message. A trusted referral is the Holy Grail of advertising." Fraley, 830 F.Supp.2d at 808. The Fraley complaint's quotation from Facebook COO Sheryl Sandberg was equally convincing: "[m]arketers have always known that the best recommendation comes from a friend. . . . This, in many ways, is the Holy Grail of advertising." Id. (alterations in original). As the Court observed in its prior order in this case, "an advertisement bearing the imprimatur of a trusted or familiar source, such as a friend or acquaintance, has concrete value in the marketplace." First MTD Order at 22-23. Accordingly, Plaintiffs have sufficiently alleged each of the three characteristics the U.S. Supreme Court in Bolger identified as lending "strong support" to a finding of commercial speech. 463 U.S. at 67, 103 S.Ct. 2875. Thus, Plaintiffs have sufficiently alleged that LinkedIn's reminder emails constitute commercial speech.
In addition, Plaintiffs have plausibly alleged that LinkedIn's reminder emails are misleading commercial speech, for which the First Amendment provides no protection. See Hoffman, 255 F.3d at 1184; see also Bolger, 463 U.S. at 68, 103 S.Ct. 2875 ("Advertisers should not be permitted to immunize false or misleading product information from government regulation simply by including references to public issues."). In particular, Plaintiffs object to LinkedIn's alleged "unique and misleading
None of Defendant's citations compels a contrary conclusion. In Hoffman, L.A. Magazine used a computer-altered picture of Dustin Hoffman, as he appeared in the film Tootsie, in a contemporary designer dress and heels to illustrate one of its articles. Hoffman, 255 F.3d at 1183. The Ninth Circuit held that the photograph's use was not commercial speech because "the article as a whole is a combination of fashion photography, humor, and visual and verbal editorial comment on classic films and famous actors." Id. at 1185. Nothing comparable can be said of the reminder emails here, and, unlike the magazine in Hoffman, LinkedIn stands to gain financially as a direct result of the personalized endorsements that use Plaintiffs' names and likenesses. See Downing, 265 F.3d at 1003 (distinguishing Hoffman and explaining that "L.A. Magazine was unconnected to and received no consideration from the designer for the gown depicted in the article"). Further, in Dora v. Frontline Video, Inc., 15 Cal.App.4th 536, 546, 18 Cal.Rptr.2d 790 (1993), the California Court of Appeal held that the use of a well-known surfer's likeness in a "surfing documentary" was exempt from liability under section 3344(d)'s "public affairs" exception. As the Ninth Circuit explained in Downing, however, the Dora documentary's chief purpose in using the surfer's likeness was noneconomic: to explain his "contribution to the development of the surf life-style and his influence on the sport." Downing, 265 F.3d at 1002. Here, by contrast, Plaintiffs plausibly allege that LinkedIn's use of Plaintiffs' names and likenesses in reminder emails is primarily economically motivated. See SAC ¶¶ 83-85.
The second argument Defendant advances is that even if the reminder emails amount to commercial speech, Defendant's use of Plaintiffs' names and likenesses "is only actionable `when the plaintiff's identity is used, without consent, to promote an unrelated product.'" Mot. at 22 (quoting Gionfriddo v. Major League Baseball, 94 Cal.App.4th 400, 413, 114 Cal.Rptr.2d 307 (2001)). Defendant, though, provides no authority stating that commercial uses are only actionable when a plaintiff's name or likeness is used to promote an unrelated product. Neither the common law right of publicity cause of action nor its statutory counterpart contains any such requirement.
Defendant's argument is premised on an overly broad reading of Gionfriddo, which held that the First Amendment protected Major League Baseball's use of "factual data concerning [Major League Baseball] players, their performance statistics, and verbal descriptions and video depictions of their play." 94 Cal.App.4th at 410-15, 114 Cal.Rptr.2d 307. To be sure, the court there stated: "A celebrity's likeness may be used, however, to advertise a related product." Id. at 414, 114 Cal.Rptr.2d 307. What the court in Gionfriddo said next, however, is far more instructive:
Id. (emphasis added) (citations omitted). Confronted with this language, Defendant maintains that its use of Plaintiffs' names and likenesses is not actionable because "such use promotes an invitation the member requested." Reply at 15. This argument fails. Plaintiffs' whole case is premised on their allegation that LinkedIn sent the reminder emails without Plaintiffs' knowledge or consent. SAC ¶¶ 92-93. In other words, Plaintiffs say they never requested that LinkedIn send these reminder emails. The Court, moreover, has already held that Plaintiffs' alleged lack of consent as to the reminder emails supported a plausible claim that Plaintiffs' common law right of publicity was violated. First MTD Order at 31-32.
The third and final argument Defendant advances is that even if the reminder emails are commercial speech, "they are protected by the First Amendment because reminders merely refer to and publicize connection invitations which are themselves protected activity under the First Amendment." Mot. at 23 (citing Page v. Something Weird Video, 960 F.Supp. 1438, 1443-44 (C.D.Cal.1996); Guglielmi v. Spelling-Goldberg Prods., 603 P.2d 454, 462 (Cal.1979) (Bird, C.J., concurring); Rezec v. Sony Pictures Entm't, Inc., 116 Cal.App.4th 135, 140-44, 10 Cal.Rptr.3d 333 (2004)). These cases, Defendant argues, establish that the First Amendment protects advertisements of protected works because the commercial promotion is "adjunct" or "incidental" to the underlying protected expression. Id. Because the reminder emails "promote the rights of free speech and association," Defendant claims that the First Amendment shields LinkedIn from liability. Id. at 23-24.
Accordingly, the Court DENIES Defendant's Motion to Dismiss on First Amendment grounds.
Under California law, the "incidental use of a plaintiff s name or likeness does not give rise to liability under a common law claim of commercial misappropriation or an action under Section 3344." Yeager, 673 F.Supp.2d at 1100. Although "[t]he contours of the incidental use doctrine are not well-defined in California," Aligo v. Time-Life Books, Inc., No. C 94-20707 JW, 1994 WL 715605, at *2 (N.D.Cal. Dec. 19, 1994), the Second Restatement of Torts offers the Court some guidance:
Restatement (Second) of Torts § 652C cmt. d (emphasis added).
Defendant contends that "the `subject' of reminder emails is connection invitations sent by LinkedIn members themselves, and their `purpose' is to `remind' recipients that those invitations . . . are pending." Mot. at 24-25. Citing an Eleventh Circuit case interpreting Florida law, Defendant argues that the reminder emails are merely "`incidental to, and customary for' the business of online networking." Mot. at 25 (quoting Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1326 (11th Cir.2006)).
The Court cannot agree. In Almeida, the Eleventh Circuit held that Amazon.com
As a result, the Court DENIES Defendant's Motion to Dismiss on grounds of incidental use.
For the foregoing reasons, the Court rules on Defendant's Motion to Dismiss as follows:
The Court also GRANTS in part and DENIES in part the parties' requests for judicial notice. The Court sua sponte STRIKES reference to 28 U.S.C. § 1331 in the SAC.
The Court grants Plaintiffs leave to amend the SAC for the limited purpose of correcting the deficiencies to the section 3344 claim because the Court does not find undue delay, bad faith or dilatory motive by Plaintiffs, repeated failure to cure deficiencies, or undue prejudice to LinkedIn. Further, additional allegations may cure the deficiencies identified in this Order, and therefore amendment would not necessarily be futile. Should Plaintiffs elect to file a Third Amended Complaint curing the deficiencies identified herein, they shall do so within thirty (30) days of the date of this Order. Failure to meet the 30-day deadline to file an amended complaint or failure to cure the deficiencies identified in this Order will result in a dismissal of Plaintiffs' section 3344 claim with prejudice. Plaintiffs may not add new causes of action or parties without leave of the Court or stipulation of the parties pursuant to Federal Rule of Civil Procedure 15.
Section 3344 authorizes "profits from unauthorized use" of a plaintiff s name or likeness in addition to either minimum statutory damages or actual damages. Cal. Civ.Code § 3344. Plaintiffs' citation to Orthopedic Systems, Inc. v. Schlein, 202 Cal.App.4th 529, 135 Cal.Rptr.3d 200 (2011), is inapposite. Orthopedic Systems, which cites Miller approvingly, merely holds that a plaintiff eligible for minimum statutory damages under section 3344 may also be awarded profits from the unauthorized use of the plaintiff's name or likeness. See id. at 546-47, 135 Cal.Rptr.3d 200.
