Defendants Meme. in Support of Motion To Dismiss

Case 1:17-cv-11069-LTS Document 32 Filed 08/23/17 Page 1 of 39
UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS
)
JANE DOE NO. 1, JANE DOE NO. 2, and )
JANE DOE NO. 3, )
)
Plaintiffs, )
)
v. ) Docket No. C.A. 17-cv-11069-LTS
)
BACKPAGE.COM, LLC, CARL )
FERRER, MICHAEL LACEY, and )
JAMES LARKIN, )
)
Defendants.
)
DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR

MOTION TO DISMISS PLAINTIFFS’ COMPLAINT
PURSUANT TO FED. R. CIV. P. 12(b)(6)
TABLE OF CONTENTS
Page
Table of Authorities ........................................................................................................................ ii
INTRODUCTION ...........................................................................................................................1
BACKGROUND .............................................................................................................................4
ARGUMENT.................................................................................................................................10
I. PLAINTIFFS’ CLAIMS ARE BARRED UNDER SECTION 230. ...........................11
A. Backpage Cannot Be Liable as the Publisher of Ads Its Users Post

Based on the Website’s Structure, Design, or Operation.................................13
B. Plaintiffs Cannot Evade Section 230 Through Artful Pleading.......................16
1. Plaintiffs Cannot Evade Section 230 By Alleging That a

Website Facilitates Unlawful Content. ............................................... 17
2. Plaintiffs’ Reliance on Backpage.com’s Moderation Practices

Cannot Overcome Section 230 Immunity........................................... 19
3. Plaintiffs Cannot Avoid Dismissal Through Reliance on the

PSI Report........................................................................................... 25
II. THE COMPLAINT ALSO FAILS TO STATE ANY CLAIM. .................................27
CONCLUSION..............................................................................................................................30
i
TABLE OF AUTHORITIES
Page(s)
Cases
A.G. ex rel. Maddox v. Elsevier, Inc.,

732 F.3d 77 (1st Cir. 2013)......................................................................................................30
Almeida v. Amazon.com, Inc.,

456 F.3d 1316 (11th Cir. 2006) ...............................................................................................12
Ascentive, LLC v. Opinion Corp.,

842 F. Supp. 2d 450 (E.D.N.Y. 2011) .....................................................................................18
Ashcroft v. Free Speech Coalition,

535 U.S. 234 (2002).................................................................................................................24
Ashcroft v. Iqbal,
556 U.S. 662 (2009)...........................................................................................................10, 27
Backpage.com, LLC v. Cooper,

939 F. Supp. 2d 805 (M.D. Tenn. 2013).......................................................................... passim
Backpage.com, LLC v. Dart,

807 F.3d 229 (7th Cir. 2015), cert. denied, 137 S. Ct. 46 (2016)..........................................2, 5
Backpage.com, LLC v. Hoffman,

2013 WL 4502097 (D.N.J. Aug. 20, 2013) .........................................................................2, 12
Backpage.com, LLC v. Lynch,

216 F. Supp. 3d 96 (D.D.C. 2016)...........................................................................................27
Backpage.com, LLC v. McKenna,

881 F. Supp. 2d 1262 (W.D. Wash. 2012)...................................................................2, 5, 6, 12
Baker v. Firestone Tire & Rubber Co.,

793 F.2d 1196 (11th Cir. 1986) ...............................................................................................26
Batzel v. Smith,
333 F.3d 1018 (9th Cir. 2003) ...........................................................................................11, 20
Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007).................................................................................................................10
Ben Ezra, Weinstein & Co. v. AOL, Inc.,

206 F.3d 980 (10th Cir. 2000) .................................................................................................20
ii
Blumenthal v. Drudge,
992 F. Supp. 44 (D.D.C. 1998) ................................................................................................20
Bright v. Firestone Tire & Rubber Co.,

756 F.2d 19 (6th Cir. 1984) .....................................................................................................26
Carafano v. Metrosplash.com, Inc.,

339 F.3d 1119 (9th Cir. 2003) .......................................................................................3, 20, 24
Cohen v. Facebook, Inc.,

2017 WL 2192621 (E.D.N.Y. May 18, 2017) ...................................................................16, 17
Com. v. McGhee,
35 N.E.2d 329 (Mass. 2015) ....................................................................................................28
Cornelius v. DeLuca,
2009 WL 2568044 (E.D. Mo. Aug. 18, 2009).........................................................................19
Dart v. Craigslist,
665 F. Supp. 2d 961 (N.D. Ill. 2009) .....................................................................10, 13, 16, 18
Davis v. Motiva Enters. L.L.C.,

2015 WL 1535694 (Tex. App. Apr. 2, 2015) ....................................................................20, 22
Doe II v. MySpace Inc.,

175 Cal. App. 4th 561 (2009) ..................................................................................................15
Doe v. AOL,
783 So. 2d 1010 (Fla. 2001).....................................................................................................19
Doe v. Backpage.com, LLC,

104 F. Supp. 3d 149 (D. Mass. 2015), aff’d, 817 F.3d 12 (1st Cir. 2016),
cert. denied, 137 S. Ct. 622 (2017) .................................................................................. passim
Doe v. Bates,
2006 WL 3813758 (E.D. Tex. Dec. 27, 2006)................................................................. passim
Doe v. MySpace, Inc.,

474 F. Supp. 2d 843 (W.D. Tex. 2007), aff’d, 528 F.3d 413 (5th Cir. 2008)........12, 15, 17, 18
e-ventures Worldwide, LLC v. Google, Inc.,

No. 2:14-cv-646-FtM-PAM-CM (M.D. Fla. Feb. 8, 2017) .....................................................11
Elonis v. United States,

135 S. Ct. 2001 (2015).............................................................................................................28
Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC,

521 F.3d 1157 (9th Cir. 2008) ......................................................................................... passim
iii
FTC v. Accusearch, Inc.,

570 F.3d 1187 (10th Cir. 2009) ...............................................................................................20
Gentry v. eBay, Inc.,

99 Cal. App. 4th 816 (2002) ....................................................................................................20
GoDaddy.com, LLC v. Toups,

429 S.W.3d 752 (Tex. App. 2014).....................................................................................17, 19
Goddard v. Google, Inc.,

640 F. Supp. 2d 1193 (N.D. Cal. 2009) ...................................................................................19
Google, Inc. v. Hood,

822 F.3d 212 (5th Cir. 2016) .........................................................................................4, 10, 12
Green v. AOL,
318 F.3d 465 (3d Cir. 2003).....................................................................................................16
GW Equity LLC v. Xcentric Ventures LLC,

2009 WL 62173 (N.D. Tex. Jan. 9, 2009) .............................................................12, 15, 23, 24
Herrick v. Grindr, LLC,

2017 WL 744605 (S.D.N.Y. Feb. 24, 2017)............................................................................17
Hershenow v. Enterprise Rent-A-Car Co. of Boston,

445 Mass. 790 (2006) ..............................................................................................................30
Hiam v. HomeAway.com, Inc.,

--- F. Supp. 3d ---, 2017 WL 3203386 (D. Mass. July 27, 2017) ........................................8, 29
Jones v. Dirty World Entm’t Recordings, LLC,

755 F.3d 398 (6th Cir. 2014) ........................................................................................... passim
Jones v. Dirty World Entm’t Recordings, LLC,

965 F. Supp. 2d 818 (E.D. Ky. 2013) ......................................................................................18
Kimzey v. Yelp! Inc.,

836 F.3d 1263 (9th Cir. 2016) .............................................................................................4, 17
Kyte v. Philip Morris Inc.,

556 N.E.2d 1025 (Mass. 1990) ..................................................................................................8
Lopes v. Riendeau,
177 F. Supp. 3d 634 (D. Mass. 2016) ........................................................................................4
M.A. v. Village Voice Media Holdings, LLC,

809 F. Supp. 2d 1041 (E.D. Mo. 2011)............................................................................ passim
iv
Martins v. 3PD, Inc.,

2013 WL 1320454 (D. Mass. Mar. 28, 2013)............................................................................4
Mulder v. Kohl’s Dep’t Stores, Inc.,

--- F.3d ---, 2017 WL 3167620 (1st Cir. July 26, 2017)..........................................................30
Murphy v. Cadillac Rubber & Plastics, Inc.,

946 F. Supp. 1108 (W.D.N.Y. 1996) .......................................................................................26
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,

591 F.3d 250 (4th Cir. 2009) .............................................................................................10, 30
Pearce v. E.F. Hutton Grp., Inc.,

653 F. Supp. 810 (D.D.C. 1987)..............................................................................................26
Peñalbert-Rosa v. Fortuño-Burset,
631 F.3d 592 (1st Cir. 2011)................................................................................................9, 10
People v. Ferrer,
2016 WL 7237305 (Sup. Ct. Sacramento Cty. Dec. 9, 2016).......................................... passim
Perkins v. Silverstein,
939 F.2d 463 (7th Cir. 1991) ...................................................................................................26
Prickett v. InfoUSA, Inc.,

561 F. Supp. 2d 646 (E.D. Tex. 2006).....................................................................................24
RSA Media, Inc. v. AK Media Grp., Inc.,

260 F.3d 10 (1st Cir. 2001)......................................................................................................30
S.C. v. Dirty World, LLC,

2012 WL 3335284 (W.D. Mo. Mar. 12, 2012)........................................................................23
Sarvis v. Polyvore, Inc.,

2013 WL 4056208 (D. Mass. Aug. 9, 2013) .............................................................................4
Schaefer v. Indymac Mortg. Servs.,

731 F.3d 98 (1st Cir. 2013)........................................................................................................4
Sell v. Zions First Nation Bank,

2006 WL 322469 (D. Ariz. Feb. 9, 2006)................................................................................26
Senate Permanent Subcomm. on Investigations v. Ferrer,

199 F. Supp. 3d 125 (D.D.C. 2016), vacated as moot,
856 F.3d 1080 (D.C. Cir. 2017) ...................................................................................20, 24, 26
Small Justice LLC v. Xcentric Ventures LLC,

2014 WL 1214828 (D. Mass. Mar. 24, 2014)....................................................................24, 29
v
Small Justice LLC v. Xcentric Ventures LLC,

99 F. Supp. 3d. 190, 200 n.4 (D. Mass. 2015),
amended 2015 WL 5737135 (D. Mass. Sept. 30, 2015)..........................................................30
Smith v. California,
361 U.S. 147 (1959).................................................................................................................28
U.S. v. Ackerman,
831 F.3d 1292 (10th Cir. 2016) .................................................................................................6
United States v. AVX Corp.,

962 F.2d 108 (1st Cir. 1992)....................................................................................................10
United States v. X-Citement Video, Inc.,

513 U.S. 64 (1994)...................................................................................................................28
Universal Commc’n Sys., Inc. v. Lycos, Inc.,

478 F.3d 413 (1st Cir. 2007)............................................................................................ passim
Whitney Info. Network, Inc. v. Xcentric Ventures, LLC,

2008 WL 450095 (M.D. Fla. Feb. 15, 2008) ...........................................................................18
Zeran v. Am. Online, Inc.,

129 F.3d 327 (4th Cir. 1997) .......................................................................................11, 16, 20
Constitutional Provisions
U.S. Const. amend. I ............................................................................................................2, 11, 28
Federal Statutes
15 U.S.C.
§ 1591(a) ..................................................................................................................................27
18 U.S.C. §§ 1591, et seq. (Trafficking Victims Protection

Reauthorization Act of 2008).........................................................................................9, 27, 28
47 U.S.C.
§ 230................................................................................................................................. passim
§ 230(c)(1) ...............................................................................................................1, 11, 16, 17
§ 230(e)(3) ...............................................................................................................................12
State Statutes
Mass. G.L. c.
265 §§ 49-56 ..............................................................................................................................9
265, § 50(a) ..........................................................................................................................9, 28
93A, § 2(s) ....................................................................................................................... passim
vi
Rules
Fed. R. Evid. 201..............................................................................................................................4
Federal Rules of Civil Procedure

9(b)...........................................................................................................................................30
10(c) ...................................................................................................................................25, 26
12(b)(6) ..............................................................................................................................10, 25
Other Authorities
Backpage.com Succumbing to Government Is Blow to Free Speech Online,

Jan. 10, 2017, Ctr. for Democracy & Tech., https://cdt.org/press/backpage-
com-succumbing-to-government-is-blow-to-free-speech-online ..............................................5
Claire McCaskill, Minority Ranking Member PSI, Our fight against sex
trafficking website Backpage, K.C. STAR, Feb. 14, 2017,
www.kansascity.com/opinion/readers-opinion/ guest-
commentary/article132727529.html ........................................................................................26
http://www.naag.org/assets/redesign/files/sign-on-
letter/CDA%20Final%20Letter.pdf .........................................................................................25
vii
INTRODUCTION
This case seeks a “do-over” of the issues involving liability for hosting online third-party
speech that this Court already decided in Doe v. Backpage.com, LLC, 104 F. Supp. 3d 149 (D.
Mass. 2015), aff’d, 817 F.3d 12 (1st Cir. 2016), cert. denied, 137 S. Ct. 622 (2017) (“Doe No. 1”).
As in Doe No. 1, which is controlling authority, the Court must apply the “broad protections”
Congress chose to afford to Internet publishers via 47 U.S.C. § 230 (“Section 230”), and dismiss
this case. Doe No. 1, 817 F.3d at 29. Although Plaintiffs try to dress up the allegations as
something new, they merely repackage the same allegations in new rhetoric that numerous courts
across the country have held cannot provide a basis for liability. This Court should reject Plaintiffs’
effort to plead around both Section 230 and Doe No. 1, and dismiss the case.1
Plaintiffs, three young women identified as Jane Does Nos. 1-3, allege they were
victimized first by relatives, family friends, and an ex-boyfriend, respectively, each of whom in-
volved them in sex trafficking by posting on the classified advertising website Backpage.com,
and thereafter by men responding to the ads. Plaintiffs have sued the website and its CEO and
former owners rather than the perpetrators of the assaults and sex trafficking, despite Section
230’s command that “[n]o provider … of an interactive computer service shall be treated as the
publisher or speaker of any information provided by another information content provider.” 47
U.S.C. § 230(c)(1). Plaintiffs allege, in conclusory fashion, that Backpage.com’s editorial policies
governing the moderation of content contributed to their victimization, yet in Doe No. 1, this Court
held Backpage.com’s editorial choices were protected, and rejected claims that its policies sought to
promote “illicit sex trade” and “trafficking of children.” 104 F. Supp. 3d at 152. This Court
1 Defendants here are Backpage.com, LLC, Carl Ferrer, Michael Lacey, and James Larkin.
Backpage.com, LLC and Defendants are collectedly referred to here as “Backpage” (or simply
“Defendants”), and the website is referred to as “Backpage.com.”
1
dismissed all claims, holding Backpage.com’s practices “[s]ingly or in the aggregate … amount to
neither affirmative participation in an illegal venture nor active web content creation.” Id. at 157.
In a similar case, M.A. v. Village Voice Media Holdings, LLC, 809 F. Supp. 2d 1041, 1053-
54 (E.D. Mo. 2011), the court dismissed all claims against Backpage despite allegations that the
site’s structure and operation, and the defendants’ alleged knowledge of illegal activity and exercise
of editorial functions, made the defendants culpable for sex trafficking. Later, when California
sought to prosecute Backpage’s C.E.O. and former owners (Defendants here) on a similar theory,
the court granted a demurrer, holding the charges barred by the free speech principles articulated
in Section 230. People v. Ferrer, 2016 WL 7237305, at *1, *4 (Sup. Ct. Sacramento Cty. Dec.
9, 2016).2 When the Sheriff of Cook County, Illinois, threatened to punish credit card issuers for
doing business with Backpage.com, the Seventh Circuit held that the site’s content is protected
by the First Amendment and enjoined the Sheriff’s censorious actions. Backpage.com, LLC v.
Dart, 807 F.3d 229 (7th Cir. 2015), cert. denied, 137 S. Ct. 46 (2016). And when Washington,
Tennessee, and New Jersey passed laws targeting Backpage on the assumption that ads in its
adult section were for prostitution, the courts rejected that premise and enjoined the statutes as
violating the First Amendment and Section 230.3
Plaintiffs try to avoid this body of law by peppering their Complaint with conclusory
assertions that Backpage “conspired ” or “partnered” with third parties who purchased ads on the
site, “facilitated” or “participated” in their efforts, or in some way “controlled” and “assisted” the
“drafting” of ads via editorial or moderation practices. Apart from containing almost no
2 The Complaint notes the California Attorney General’s press release touting the filing of
the criminal case, Compl. ¶ 13, but fails to mention the dismissal. See also infra 15, 24.
3 Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262 (W.D. Wash. 2012); Back-
page.com, LLC v. Hoffman, 2013 WL 4502097 (D.N.J. Aug. 20, 2013); Backpage.com, LLC v.
Cooper, 939 F. Supp. 2d 805 (M.D. Tenn. 2013).
2
substance concerning the Plaintiffs themselves, the allegations ignore clear authority that liability
cannot be predicated on a website’s “construct and operation,” Universal Commc’n Sys., Inc. v.
Lycos, Inc., 478 F.3d 413, 422 (1st Cir. 2007); Doe No. 1, 817 F.3d at 21, or on the theory that
the website “encourages” or “facilitates” illegal conduct. Jones v. Dirty World Entm’t
Recordings, LLC, 755 F.3d 398, 414-15 (6th Cir. 2014). The only facts offered about ads
involving Plaintiffs relate to conception, creation, and posting entirely by their abusers. Compl.
¶¶ 62, 64, 68, 69, 75, 76. Otherwise, allegations about Backpage’s role beyond hosting the ads
rest on speculation—and even then, the various practices that Plaintiffs assert make Backpage a
“conspirator” or “drafter” are all publishing prerogatives that courts uniformly hold to be
protected by Section 230.
Numerous courts have held that Section 230 “bar[s] claims unless [the website] created
or developed the particular information at issue” (here, the ads pertaining to Plaintiffs), Carafano
v. Metrosplash.com, Inc., 339 F.3d 1119, 1125 (9th Cir. 2003) (citation omitted); Doe No. 1, 817
F.3d at 28, and “any activity that can be boiled down to deciding whether to exclude material
that third parties seek to post online is perforce immune under section 230.” Fair Hous. Council
of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1170-71 (9th Cir. 2008) (en
banc). Plaintiffs try to avoid the plain language of Section 230 and these controlling precedents
through dozens of references to a January 2017 Report of the Senate Permanent Subcommittee
on Investigations (“PSI Report”) and by spinning a novel theory: that applying Terms of Service
to restrict what may be posted (the very activity Section 230 was created to encourage) somehow
converts editing into “content creation” and thereby forfeits Section 230 immunity. Compl. Ex.
A; see also id. ¶¶ 2, 19-24. Plaintiffs try to obscure the fact that the PSI Report did not identify
any content creation by Backpage, alleging instead that the website’s moderation practices
3
“sanitized” ads posted by others by deleting certain banned terms, but no court has ever accepted
this theory. To the contrary, courts have held uniformly that such “artful” pleading cannot be
used to “skirt[]” Section 230. Kimzey v. Yelp! Inc., 836 F.3d 1263, 1266 (9th Cir. 2016).
“Congress intended that [websites] would not be held responsible for the postings made by
others [and] [n]o amount of artful pleading can avoid that result.” Lycos, 478 F.3d at 418.
Defendants by no means minimize the grievous harms Plaintiffs allege they suffered. But
Congress made a considered policy judgment that the law should hold actual wrongdoers
responsible, rather than cripple the Internet by imposing liability on websites that host content
created by third parties. Cases like this illustrate “the importance of preserving free speech on
the internet, even [if it] serves as a conduit for much that is distasteful or unlawful.” Google, Inc.
v. Hood, 822 F.3d 212, 220 (5th Cir. 2016). “While the facts of a … case such as this [] may be
highly offensive, Congress [] decided that the parties to be punished and deterred are not the
internet service providers but rather those who created and posted [] illegal material[.]” Doe v.
Bates, 2006 WL 3813758, at *4 (E.D. Tex. Dec. 27, 2006).
BACKGROUND
Backpage operates an online classified advertising service through which users can post
ads in a variety of categories, including local places, buy/sell/trade, jobs, automotive, rentals, real
estate, dating, and services. See Doe No. 1, 817 F.3d at 16. The site is organized geographically,
by state and municipality.4 Until January 2017, it also included a category for “adult” services
4 See Doe No. 1, 817 F.3d at 16; Compl. ¶ 14; http://massachusetts.backpage.com. As

Plaintiffs reference the Backpage.com website throughout the Complaint, the Court may consider
it in deciding this motion. Sarvis v. Polyvore, Inc., 2013 WL 4056208, at *3 (D. Mass. Aug. 9,
2013); see also Martins v. 3PD, Inc., 2013 WL 1320454, at *16 (D. Mass. Mar. 28, 2013)
(judicial notice of historical versions of website); Schaefer v. Indymac Mortg. Servs., 731 F.3d 98,
100 n.1 (1st Cir. 2013) (documents central to complaint may be considered on motion to dismiss).
The Court also may take judicial notice of court decisions about the site and similar claims. Fed.
R. Evid. 201; see, e.g., Lopes v. Riendeau, 177 F. Supp. 3d 634, 666 (D. Mass. 2016).
4
(such as strippers, strip clubs, and escort services), which—following years of pressure from
government actors, including a campaign the Seventh Circuit described as an unconstitutional
effort to “crush Backpage,” Backpage.com v. Dart, 807 F.3d at 230—has now been eliminated.5
Users post millions of ads to Backpage.com every month, making it the second-largest
online classified ad service in the U.S., after Craigslist. See McKenna, 881 F. Supp. 2d at 1266.
Users provide the content for ads they post on the website, using an automated interface;
Backpage.com does not dictate or require any content. Cooper, 939 F. Supp. 2d at 813 (“The
website works by allowing users to post their own advertisements in a range of categories.”);
Compl. ¶ 27 (identifying fields that user completes); cf. id. ¶ 44. Until July 2015, the website
charged for ads in the adult and dating categories, while users could post ads for free in others.
Backpage imposes rules for ads posted on its site, and all users must affirmatively accept
those posting rules. Cooper, 939 F. Supp. 2d at 813-14. They are designed to prevent improper
ads or misuse of the site. Before Backpage.com will accept user-submitted ads, users must agree
to Backpage.com’s Terms of Use, and for ads in the dating section (and, while it was active, the
adult section) confirm they are 18 or older. Id.; Backpage.com Terms of Use ¶ 4(a)(2), available
at http://www.backpage.com/classifieds/termsofuse. These Terms prohibit illegal acts and nude
or lewd photos. See id. ¶¶ 4(b), 5; see also Compl. ¶ 4.21. They also specifically forbid posting:
“any solicitation directly or in ‘coded’ fashion for any illegal service

exchanging sexual favors for money or other valuable consideration,”
(Backpage.com Terms of Use ¶ 4(c)); “any material … that exploits minors in
any way” (id. ¶ 4(d)); “any material … that in any way constitutes or assists in
human trafficking” (id. ¶ 4(e)); and “any ad for products or services, use or
sale of which is prohibited by any law or regulation” (id. ¶ 5).
5 See Backpage.com Succumbing to Government Is Blow to Free Speech Online, Jan. 10,
2017, Ctr. for Democracy & Tech., https://cdt.org/press/backpage-com-succumbing-to-govern-
ment-is-blow-to-free-speech-online. See also Compl. ¶ 15 n.1. Cf. Doe No. 1, 817 F.3d at 16.
5
All Backpage.com users are directed to “report any violations of these Terms to: abuse@back-
page.com.” Id. ¶ 18; see also Cooper, 939 F. Supp. 2d at 814.
When a user attempts to post an ad in the Backpage.com dating section (or, while it was
active, the adult section), the following highlighted “Posting Rules” appear:
 I will not post obscene or lewd and lascivious graphics or photographs which depict
genitalia, actual or simulated sexual acts or naked images;
 I will not post any solicitation directly or in “coded” fashion for any illegal service,
including exchanging sexual favors for money or other valuable consideration;
 I will not post any material on the Site that exploits minors in any way;
 I will not post any material on the Site that in any way constitutes or assists in human
trafficking;
 I am at least 18 years of age or older and not considered to be a minor in my state of
residence.
Any post exploiting a minor in any way will be subject to criminal prosecution and
will be reported to the Cybertipline for law enforcement.
Postings violating these rules and Terms of Use are subject to removal without refund. 6
Backpage has taken further measures to police user posts. “In addition to user reports,
Backpage.com monitors … ads through automated and manual reviews.” Cooper, 939
F. Supp. 2d at 814. Through this screening, Backpage has blocked and removed posts and refers
ads that may involve child exploitation for investigation and potential referral to law
enforcement. See id.; McKenna, 881 F. Supp. 2d at 1266-67; Compl. ¶ 28. See also Compl.
¶¶ 2, 25, 26, 31, 32, 37 (mischaracterizing the moderation process). “Backpage.com also
regularly works with local, state, and federal law enforcement officials by responding to
6 E.g., http://posting.massachusetts.backpage.com/online/classifieds/PostAdPPI.html/mas/
massachusetts.backpage.com/?serverName=massachusetts.backpage.com&superRegion=Boston
&u=bos&section=4383&category=4454. The “Cybertipline”—provided as a hypertext link—is
operated by the National Center for Missing and Exploited Children (“NCMEC”), to assist law
enforcement. U.S. v. Ackerman, 831 F.3d 1292, 1294 (10th Cir. 2016). The site also has numer-
ous hyperlinks to a “User Safety” page with links to NCMEC and like resources. McKenna,
881 F. Supp. 2d at 1266. All ads also have a “Report” button and email (abuse@backpage.com)
for ads that users believe are improper/suspect. See Cooper, 939 F. Supp. 2d at 814.
6
subpoena requests, providing officials with Internet search tools, and removing posts and
blocking users at the request of officials.” Cooper, 939 F. Supp. 2d at 814.
Plaintiffs allege they were victimized by traffickers who allegedly created and posted ads
selling them for sex,7 and by persons who responded to the ads, but seek to hold Backpage and
its current and former principals liable, not the traffickers. Compl. ¶¶ 61-62, 64, 67-69, 73-77.8
As a result, the Complaint alleges, each Plaintiff was “trafficked and sold for sex by traffickers,”
and assaulted by men “who paid [the] traffickers to rape [them].” Id. ¶¶ 61, 61, 67, 69, 74, 76.9
Plaintiffs do not allege the Defendants created the content of the ads, which as the above
makes clear, were created and posted by the traffickers. The Complaint in fact admits not only
that “the content of ad[s was] originally written by sex traffickers,” but that it was those third-
parties’ efforts that made the proposed transactions illegal, see Compl. ¶ 39, and that this under-
lying illegality remained unchanged regardless of Backpage.com’s editorial functions. See id.
7 In their Complaint, Plaintiffs not only implicitly acknowledge that users post both the text
of ads on Backpage.com and also any photos in those ads, Compl. ¶ 43, but also expressly allege
that third parties posted both the ads involving Plaintiffs and also the photos therein. Id. ¶¶ 62,
64 (“a male relative … submitted ads of Jane Doe No. 1 to Backpage.com” that “obscured her
face”); id. ¶¶ 68, 73 (“a female relative” and “male family friends” “submitted ads of Jane Doe
No. 2 to Backpage.com” with photos that Backpage.com removed from the listing, and that the
poster resubmitted after cropping them or substituting other photos); ¶¶ 75, 77 (“Jane Doe No. 3
was [] trafficked on Backpage.com” and “sold by her ex-boyfriend” who “paid extra to have the
ad[s] … appear at the top of the [] page”).
8 Given the very limited information Plaintiffs have disclosed about the ads pertaining to
them, and Plaintiffs’ refusal to provide the information Backpage would use to identify those ads
from among the millions of ads posted on the site (in particular, the email address and telephone
number associated with each account), at present Backpage can do little more than search for
needles in haystacks as it attempts to identify any of the ads at issue.
9 Specifically, the Complaint alleges Doe No. 1 was “told she had to go make money for [a
male relative] and his associates by having sex with the men who responded to the ads,” id. ¶ 62,
and “was raped at the hotel she was placed in by her traffickers” or “at locations chosen by the
men buying her.” Id. ¶ 63. The same is alleged as to Doe No. 3. Id. ¶ 76. The Complaint also
alleges Doe No. 2 “was first … sold by a female relative” and “later transferred to and sold by
male family friends,” id. ¶ 68, who along with “several associates trafficked [her].” Id. ¶ 69.
7
¶ 34. As such, Backpage’s alleged liability is premised entirely on its general functions as an
online publisher: hosting and editing content created and posted by third parties.
The Complaint alleges Backpage’s general practice is to “filter” and “‘moderat[e]’” ads,
id. ¶¶ 28-32, 40—in other words to “remove” or alter” language or photos in ads posted on the
site that violate its Terms of Use. Id. ¶¶ 2, 25-26, 31, 33, 36. The Complaint alleges Backpage
“removes” or “alter[s] language” and images, id., or “strips” terms or photos (or metadata from
them), id. ¶¶ 29-30, 36, 51, or “sanitizes” ads, e.g., id. ¶¶ 2, 25, 33-34, using automated and/or
manual processes. It also asserts that these “moderation” efforts amount to “controlling and
assisting in the drafting of content” of ads, id. ¶ 42, and criticizes Backpage’s “posting rules” that
prohibit certain content. Id. ¶ 40. Plaintiffs fault the “design of the process,” id. ¶ 33, the
“structure of [the] website,” id. ¶ 24, its “overall availability,” id. ¶ 38, and how it is allegedly
“intentionally designed to attract advertisements for illegal commercial sex.” Id. ¶ 1. The
Complaint also contains conclusory allegations—similar to those of plaintiffs in other cases
dismissed under Section 230—that Defendants “facilitated the sale of Plaintiffs,” id. ¶ 3,
“participated in various ways with [] advertisers,” id. ¶ 24, and “knowingly benefited financially”
from the ads, id. ¶¶ 84-85, 88-89, in seeking “to exploit and profit” from them. Id. ¶ 58.10
The Complaint generally asserts that Backpage “moderated” ads involving Plaintiffs in
particular, but those allegations are conclusory, lacking factual support beyond mere speculation
10 Plaintiffs also allege that Defendants “knowingly conspire” with those who post on
Backpage.com, id. ¶ 49, without alleging any direct contact—let alone action in concert and in
furtherance of a common design or agreement, e.g., Hiam v. HomeAway.com, Inc., ---
F. Supp. 3d ---, 2017 WL 3203386, at *10 (D. Mass. July 27, 2017); Kyte v. Philip Morris Inc.,
556 N.E.2d 1025, 1027-28 (Mass. 1990)—other than that Backpage personnel “communicated
directly with certain customers by telephone and email, and provided instructions and advice
… about how to conform advertisements” to Backpage.com’s Terms of Use. Compl. ¶ 37.
(Moreover, allegations about direct communications with “certain customers,” even if true, relate
to persons who are strangers to this litigation.)
8
about Backpage.com’s editorial functions. See Peñalbert-Rosa v. Fortuño-Burset, 631 F.3d 592,
595-96 (1st Cir. 2011). For example, Doe No. 1 alleges that “through its automated filtering
system, Backpage deleted … words signaling the involvement of a child that were included in its
list of prohibited terms.” Compl. ¶ 64.11 The only allegations of editing of ads for Doe No. 2
and Doe No. 3 are similarly that Backpage removed or prevented posting photographs and/or
words/phrases (the latter alleged solely on “information and belief”) that violate the site’s Terms
of Use. Compl. ¶¶ 73, 78, 79. And though Plaintiffs allege Defendants “knew or had reason to
know that the subjects of the advertisements were children at the time they were advertised for
sale on Backpage.com,” id. ¶ 3, there are no details supporting that bare assertion. Nor do Plain-
tiffs explain how, from among the millions of ads Backpage.com hosts each month, Defendants
could have known ads featuring them were posted by sex traffickers.
Based on the above, Plaintiffs assert claims under the civil penalty provisions of the
federal Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”), 18 U.S.C.
§§ 1591, et seq. (Count I); the civil penalty provisions of Massachusetts’ Anti-Human Traffick-
ing and Victim Protection Act (“MATA”), Mass. G.L. c. 265 §§ 49-56 (Count II); and the
Massachusetts Unfair and Deceptive Trade Practices law, Mass. G.L. c. 93A, § 2(s) (Count III).
11 Doe No. 1 also alleges deletion of “shorty” in the ad’s purported “Latina shorty” heading,
for which “exotic” allegedly was substituted to read “Exotic Latina”—and even that is claimed
on only “information and belief,” without factual support it actually happened. Id. It is further
alleged there were “likely” some—unidentified—“other signals” Jane Doe No. 1 was a minor (an
allegation not even backed by “information and belief”). Id. Notably, the Complaint claims
“‘Shorty’ or ‘shortie’ is slang that can signify a young girl,” id. ¶ 63, but sources show it to
simply mean (in addition to those of less-than-average stature) a female, girlfriend or romantic
interest. E.g., https://en.oxforddictionaries.com/definition/shorty; www.urbandictionary.com/de-
fine.php?term=shorty.
9
ARGUMENT
The Complaint must be dismissed under Rule 12(b)(6) because it omits “sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While the
Court must accept fact allegations and reasonable inferences in favor of the plaintiff, this “does
not mean … [it] must (or should) accept every allegation made …, no matter how conclusory or
generalized.” United States v. AVX Corp., 962 F.2d 108, 115 (1st Cir. 1992). A complaint’s
“conclusory” allegations are “disentitle[d] … to the presumption of truth,” Peñalbert-Rosa, 631
F.3d at 595 (quoting Iqbal), and the plausibility standard requires pleading “more than a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. This is met only if the
facts pleaded allow the Court to “draw the reasonable inference that the defendant is liable for
the misconduct alleged,” Doe No. 1, 817 F.3d at 24, which the present Complaint fails to do.
Plaintiffs’ claims are barred by Section 230, which “shields website operations from being
‘treated as the publisher or speaker’ of material posted by users of the site.” Doe No. 1, 817 F.3d
at 18. Enforcement of Section 230 at the earliest phase of litigation is thus vital, because it affords
“immunity from suit rather than a mere defense to liability [which] is effectively lost if a case is
erroneously permitted to go to trial.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591
F.3d 250, 254 (4th Cir. 2009) (internal quotation marks omitted); see Doe No. 1, 104 F. Supp. 3d
at 155 & n.4; accord Jones, 755 F.3d at 417 (§ 230’s role “in an open and robust internet” favors
early ruling); see also Google v. Hood, 822 F.3d at 227 n.12. This Court and many others have
dismissed suits that, like this, seek to hold websites liable for content created by third parties.
E.g., Doe No. 1, 817 F.3d 12; Lycos, 478 F.3d 413; Dart v. Craigslist, 665 F. Supp. 2d 961 (N.D.
Ill. 2009). The Court should do the same here because Plaintiffs have not alleged sufficient facts
to plausibly state any claim and because Section 230 precludes liability.
10
I. PLAINTIFFS’ CLAIMS ARE BARRED UNDER SECTION 230.
Section 230, a statutory embodiment of First Amendment principles for online speech
enacted to promote free expression and the growth of the Internet, acts as a complete bar to all of
Plaintiffs’ claims. As the First Circuit has observed, Congress sought to eliminate the “obvious
chilling effect” that imposing liability on online providers would cause, “given the volume of
material communicated through [the Internet], the difficulty of separating lawful from unlawful
speech, and the relative lack of incentives to protect lawful speech.” Lycos, 478 F.3d at 418-19
(citation omitted). It thus enacted Section 230 to “encourage the unfettered and unregulated
development of free speech on the Internet,” to “promote the development of e-commerce,” and
to encourage online providers to “self-police” for potentially harmful or offensive material by
providing immunity for such efforts. Batzel v. Smith, 333 F.3d 1018, 1027-28 (9th Cir. 2003).
To safeguard these important values, Section 230(c)(1) mandates that “[n]o provider … of an
interactive computer service shall be treated as the publisher or speaker of any information pro-
vided by another information content provider.” 47 U.S.C. § 230(c)(1). Notably, “protections
afforded by the First Amendment were the motivating factors behind” Section 230. Ferrer, 2016
WL 7237305, at *3; Batzel, 333 F.3d at 1028; see Doe No. 1, 817 F.3d at 23.12
The plain language of Section 230 “creates a federal immunity to any cause of action that
would make service providers liable for information originating with a third-party user.” Zeran
12 As Section 230 implements First Amendment principles, efforts to impose liability on

editorial choices by online intermediaries may be barred even where the technical statutory
requirements are not met. E.g., Lycos, 478 F.3d at 423 (“because of the serious First Amend-
ment issues that would be raised by allowing [the] claim here, [it] would not survive, even in the
absence of Section 230”); e-ventures Worldwide, LLC v. Google, Inc., No. 2:14-cv-646-FtM-
PAM-CM (M.D. Fla. Feb. 8, 2017), ECF No. 153 at 9 (“[F]ormulating rankings for [a] search
engine and [] determining whether certain websites are contrary to [its] guidelines and thereby
subject to removal are the same as … a newspaper editor [decid]ing which content to publish,
which [] belongs on the front page, and which [] is unworthy of publication. The First Amend-
ment protects these decisions, whether … fair or unfair, or motivated by profit or altruism.”).
11
v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997). To this end, Section 230(e)(3) expressly
preempts all civil claims and all state-law claims, whether civil or criminal, barring any state-law
claim against online publishers such as Backpage.com (and the Backpage Defendants) based on
the third-party content it publishes. E.g., Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1321
(11th Cir. 2006); GW Equity LLC v. Xcentric Ventures LLC, 2009 WL 62173, at *3 (N.D. Tex.
Jan. 9, 2009). The consensus is that this immunity applies expansively,13 and that “close cases ...
must be resolved in favor of immunity.” Jones, 755 F.3d at 408 (quoting Roommates.com, LLC,
521 F.3d at 1174). As one court observed “[n]othing on the face of the statute supports [] narrow
interpretation [of] the CDA’s immunity[.]” Doe v. MySpace, Inc., 474 F. Supp. 2d 843, 849
(W.D. Tex. 2007), aff’d, 528 F.3d 413 (5th Cir. 2008).
Immunity must be granted where three conditions are met: “(1) [defendants are] pro-
vider[s] or user[s] of an interactive computer service; (2) the claim is based on information
provided by another information content provider; and (3) the claim would treat [defendants] as
the publisher or speaker of that information.” Lycos, 478 F.3d at 418 (internal quotation marks
omitted); see also Doe No. 1, 817 F.3d at 19. Applying this test, at least six courts have held
Backpage is immunized under Section 230.14 The Court should reach the same conclusion here.
First, “Backpage.com is the quintessential publisher contemplated by the CDA.” Cooper,
939 F. Supp. 2d at 823; see also Ferrer, 2016 WL 7237305, at *6. Second, Plaintiffs base their
claims on ads about them that they allege third-party traffickers created and posted on Back-
13 Lycos, 478 F.3d at 419; Doe No. 1, 817 F.3d at 18; Almeida, 456 F.3d at 1321 (§ 230 pro-
vides “broad ‘federal immunity to any cause of action that would make service providers liable
for information originating with a third-party user’”); see also Google v. Hood, 822 F.3d at 220.
14 Doe No. 1, 104 F. Supp. 3d at 157-58, aff’d, 817 F.3d at 20-22; Hoffman, 2013 WL
4502097, at *8; Cooper, 939 F. Supp. 2d at 823-25; McKenna, 881 F. Supp. 2d at 1271-75; M.A.,
809 F. Supp. 2d at 1050-54; Ferrer, 2016 WL 7237305.
12
page.com. See Compl. ¶¶ 62, 64, 68, 69, 75, 76; see also infra § I.B. Such postings are the
essence of “information provided by another content provider,” as contemplated in Section 230.
E.g., Doe No. 1, 817 F.3d at 17-21; M.A., 809 F. Supp. 2d at 1050-53. Third, Plaintiffs’ claims
treat Backpage.com “as the publisher or speaker” of the ads; at bottom, the factual allegations
take Backpage to task for, essentially, decisions on “whether to publish, withdraw, postpone or
alter content,” i.e., traditional editorial functions that Section 230 protects.15
A. Backpage Cannot Be Liable as the Publisher of Ads Its Users Post Based on
the Website’s Structure, Design, or Operation.
Case law is clear that Section 230 precludes liability in cases such as this. In Doe No. 1,
plaintiffs—as here, women alleging they were trafficked as minor teens—invoked strikingly
similar theories of liability alleging third parties advertised them for sex on Backpage.com. Like
Plaintiffs here, they alleged Backpage, “with an eye to maximizing its profits,” “deliberate[ly]
structur[ed] … its website to facilitate sex trafficking” by, e.g., editing ads to remove banned
terms such as “‘high school,’” “selectively remov[ing] postings [] in the ‘Escorts’ section,”
“tailor[ing] posting requirements to make sex trafficking easier,” “stripping [] metadata,” and
accepting payments by means that allowed posters of the ad to remain anonymous. 817 F.3d at
16-17 & n.2.16 This Court dismissed the action, holding these general website features “amount
15 Jones, 755 F.3d at 407 (citation omitted); Roommates.com, 521 F.3d at 1170-71; Craigs-
list, 665 F. Supp. 2d at 967-68 (“A claim against an online service provider for negligently
publishing harmful information created by its users treats the defendant as the ‘publisher’ of that
information.”). As noted, other courts have rejected the same allegations made in this case, that
Backpage.com’s editorial practices amount to participation in trafficking. See also infra 13-15.
16 Compare Compl. ¶¶ 58, 84-85, 88-89 (alleging Defendants “knowingly benefited finan-
cially from” and sought “to exploit and profit” from ads); id. ¶¶ 28-32, 40 (Backpage engages in
automated filtering and/or moderation); id. ¶¶ 2, 25-26, 31, 33, 36 (filtering and moderation
allegedly “remove” or “alter” language or photos in ads); id. ¶¶ 29-30, 36, 51 (Backpage
allegedly removes terms, photos or metadata from ads); id. ¶¶ 2, 25, 28, 33-34 (Backpage
moderators allegedly “sanitized” ads “to alter language proposing illegal sexual transactions and
to remove images” such as filtering “terms such as ‘young,’ ‘teen,’ ‘barely legal,’ ‘Lolita,’
13
to neither affirmative participation in an illegal venture nor active web content creation,” and that
“courts have repeatedly rejected this ‘entire website’ theory” under Section 230. Doe No. 1, 104
F. Supp. 3d at 157, 162. Compare Compl. ¶¶ 2, 24, 61, 67, 74, 84, 85, 89 & pp.6, 8, 24, 25, 27
(alleging Backpage’s “participation” in the illicit activity of posters/traffickers).
The First Circuit affirmed, holding plaintiffs’ claims uniformly “address the structure and
operation of the Backpage website”—in other words, “Backpage’s decisions about how to treat
[third-party] postings.” Doe No. 1, 817 F.3d at 21. As with the allegations here, the
claims challenge features that are part and parcel of the overall design and
operation of the website …. Features such as these, which reflect choices
about what content can appear on the website and in what form, are editorial
choices that fall within the purview of traditional publisher functions.
Id. (emphasis added).
Likewise, in M.A., the plaintiff alleged she was trafficked by a third party who posted ads
on Backpage.com. 809 F. Supp. 2d at 1043-44. As do Plaintiffs here, M.A. attacked the site’s
general features, alleging Backpage set out to create “a highly tuned marketing site” with a “veil
of legality,” but “had knowledge” postings “were advertisements for prostitution” and “illegal
sexual contact with minors.” Id. at 1044. And, like Plaintiffs here, she alleged Backpage sought
to profit from posters’ “illegal prostitution activities” and thus aided and abetted trafficking. Id.
at 1045, 1053.17 The court rejected challenges to general aspects of the site’s “construct and
‘school girl,’ and ‘fresh,’”); id. ¶¶ 43-45 (alleging efforts to aid anonymity of posters); compare
also Doe No. 1, 104 F. Supp. 3d at 152 (final bullet). See also Appendix A (comparing allega-
tions in this case to those in Doe No. 1). Cf. M.A., 809 F. Supp. 2d at 1044-45 (block-quoting
allegations in Am. Compl. ¶¶ 12-13).
17 Compare Compl. ¶ 38 (alleging “a critical business goal of Defendants [was] to attract a
high volume of activity to the website in order to grow and sustain the market perception of
Backpage.com”); id. ¶ 24 (“The structure of [Backpage.com] and the efforts of its employees are
devoted to attracting advertisements for illegal commercial sex and participating in various ways
with the advertisers to facilitate the successful completion of the illegal transactions”); id. ¶ 3
(alleging “Backpage knew or had reason to know the [Doe] subjects of the advertisements were
14
operation,” M.A., 809 F. Supp. 2d at 1050, holding that a website is “immune under § 230 unless
it created the offending ads.” Id. at 1051 (internal quotation marks and citation omitted).18
Another court dismissed an indictment that had strikingly similar allegations to those
here, against the same individual Backpage Defendants, based on Section 230 preemption.
Ferrer, 2016 WL 7237305, at *1-5. Prosecutors alleged defendants “actively ‘manipulated’ the
content provided by third parties so that they could profit from activity resulting from the ad
placement.” Id. at *5. But because “the substance of the ads came from the original ad placed
on Backpage, the only ‘manipulation’ would be in the act of extracting the content from the
original ad and/or from the act of physically posting the extracted content on a new site.” Id.
The court concluded “[t]his is not prohibited activity. Indeed, it generally falls within the scope
of protected editorial functions.” Id. (citing, inter alia, Doe No. 1, 817 F.3d at 20-21).
Many other decisions are to the same effect,19 with the common thread being that plain-
tiffs may not hold website operators liable for exercising traditional editorial functions, including
children at the time they were advertised”); id. ¶ 18 (alleging Backpage was “well aware that ads
for minors have appeared frequently”); id. ¶¶ 84-85, 88-89 (alleging Backpage “knowingly
benefited financially from” the ads); id. ¶ 24 (alleging Backpage “participated in various ways
with [] advertisers”); id. ¶ 3 (alleging Backpage “facilitated the sale of Plaintiffs”).
18 Similarly, the court rejected assertions that M.A. was not seeking to hold Backpage liable
as a publisher but rather “as an aider and abettor of minor sex trafficking.” 809 F. Supp. 2d at
1053-54. Compare Compl. ¶¶ 3, 22, 24, 37, 49. It was “immaterial” that Backpage allegedly
“elicit[ed] online content for profit”; what matters is whether a website or third parties create the
content at issue. Id. at 1050 (internal quotation marks omitted). Compare Compl. ¶¶ 2, 13, 15-
16, 58, 84-85, 88-89 (repeated recitations of Backpage charging for and/or “profiting” from its
operations).
19 See, e.g., Doe v. MySpace, 528 F.3d at 419-20 (§ 230 barred claims seeking to hold social
networking site liable for sexual assault of 14-year-old victim by man who met her on MySpace)
(cited in Doe No. 1, 817 F.3d at 21); GW Equity, 2009 WL 62173, at *6 (rejecting argument that
genuine issue of material fact arose as to whether website was an information content provider
based on testimony by website’s “content monitors” that they sometimes added content to titles
of postings, changed the categories posts appeared under, and/or reviewed reports and removed
offensive content); Doe II v. MySpace Inc., 175 Cal. App. 4th 561, 573 (2009) (plaintiffs “want
15
deciding what third-party-created content—including classified ads—to post, delete, or edit, or
what portions to remove for violating the site’s terms of use.20 “[A]ny activity that can be boiled
down to deciding whether to exclude material that third parties seek to post online is perforce
immune under section 230.” Roommates.com, 521 F.3d at 1170-71.
B. Plaintiffs Cannot Evade Section 230 Through Artful Pleading.
Plaintiffs cannot evade Section 230 by recasting editorial choices as “content creation” or
by otherwise trying to “artfully plead” around the fact that content was provided by third parties.
Where “third-party content … appears as an essential component of each and all” of Plaintiffs’
claims, Doe No. 1, 817 F.3d at 22, as is the case here, Plaintiffs attempt what Section 230
expressly prohibits: imposing liability on Backpage “as the publisher or speaker,” 47 U.S.C.
§ 230(c)(1), of ads created by third parties. The law is clear that, even if an online provider has
actual knowledge of illegal content posted on its site, failure to delete offending content does not
make it liable for that content. Zeran, 129 F.3d at 331-33. That is because “[l]iability upon
notice would defeat the dual purposes advanced by § 230.” Id. at 333.21 Faced with this
MySpace to ensure that sexual predators do not gain access to (i.e., communicate with) minors
on its Web site,” yet “[t]hat type of activity—to restrict or make available certain material—is
expressly covered by section 230.”); Green v. AOL, 318 F.3d 465, 471 (3d Cir. 2003) (plaintiff
was “attempt[ing] to hold AOL liable for decisions relating to the monitoring, screening, and
deletion of content from its network—actions quintessentially related to a publisher’s role”).
20 Cohen v. Facebook, Inc., 2017 WL 2192621, at *12 (E.D.N.Y. May 18, 2017) (§ 230
barred holding Facebook.com liable for “‘provision of services’ to Hamas … ‘coupled with []
refusal to use available resources … to identify and shut down [its] accounts’”); see also id. (“In
keeping with this expansive view of the publisher’s role, judicial decisions in this area
consistently stress that decisions … whether [] content should be removed from a website fall
within the editorial prerogative.”); Craigslist, 665 F. Supp. 2d at 967 (“‘Facilitating’ and ‘assist-
ing’ encompass a broad[] range of conduct” that does not make service providers “culpable for
‘aiding and abetting’ their customers who misuse their services ….”).
21 Thus, in M.A., the court rejected the same argument Plaintiffs make here—that Backpage
should be denied immunity because it allegedly knows or should know “of minors being sexually
trafficked on its website.” 809 F. Supp. 2d at 1050-51; see also Ferrer, 2016 WL 7237305, at *7
16
overwhelming body of law, Plaintiffs—like others before them—resort to creative pleading in
striving to evade Section 230’s protections, but to no avail.
Such efforts to plead around Section 230 are common but typically fail. Doe v. MySpace,
528 F.3d at 419-20 (“No matter how artfully Plaintiffs seek to plead their claims, the Court views
[them] as directed toward MySpace in its publishing, editorial, and/or screening capacities.”).
As one court recently observed, “past cases suggest strongly that Plaintiff’s attempt to artfully
plead his case in order to separate the Defendant from the protections of the CDA is a losing
proposition.” Herrick v. Grindr, LLC, 2017 WL 744605, at *3 (S.D.N.Y. Feb. 24, 2017). This
Court should “decline to open the door to such artful skirting of the CDA’s safe harbor pro-
vision,” Kimzey, 836 F.3d at 1266, as this kind of “artful pleading [is] disingenuous.” Doe v.
MySpace, 474 F. Supp. 2d at 849. See also Cohen, 2017 WL 2192621, at *11.
1. Plaintiffs Cannot Evade Section 230 By Alleging That a Website

Facilitates Unlawful Content.
Just as Plaintiffs cannot bypass Section 230 by alleging Backpage.com’s overall design
“facilitates” unlawful content, they cannot get around the law by recasting their claims using
“conspiring,” “participation and aid,” or “partnering” theories. See, e.g., Compl. ¶¶ 3, 22, 24, 49,
61, 67, 74 & p.8. To be clear, Defendants categorically deny these and other accusations in the
Complaint: Backpage works to prevent misuse of the site and to combat sex trafficking. But in
any case, the First Circuit has held such claims “necessarily treat [a] website as a publisher or
speaker of content provided by third parties and, thus, are precluded by section 230(c)(1).” Doe
(“online publishers are not subject to notice liability”). Ultimately, “contention[s] that [Back-
page] is not entitled to immunity from plaintiffs’ claims” based on “the alleged … unlawful
nature of the material posted on the website [are] without merit.” GoDaddy.com, LLC v. Toups,
429 S.W.3d 752, 760-61 (Tex. App. 2014).
17
No. 1, 817 F.3d at 22.22 “Congress envisioned an uninhibited, robust, and wide-open internet …
but … an encouragement rule would cloud that vision.” Jones, 755 F.3d at 415. See Whitney
Info. Network, Inc. v. Xcentric Ventures, LLC, 2008 WL 450095, at *10, *13 (M.D. Fla. Feb. 15,
2008); Ascentive, LLC v. Opinion Corp., 842 F. Supp. 2d 450, 476 (E.D.N.Y. 2011).
Section 230 immunity “would serve little if any purpose if companies like Craigslist [or
Backpage] were found liable … for ‘causing’ or ‘inducing’ users to post unlawful content in this
fashion.” Craigslist, 665 F. Supp. 2d at 969. Where “users routinely flout [] guidelines, it is not
because Craigslist has caused them to do so.” Id. In many cases, “a clever lawyer could argue
that something the website operator did encouraged the illegality,” but such claims “must be
resolved in favor of immunity, lest we cut the heart out of section 230 by forcing websites to face
death by ten thousand duck-bites, fighting off claims that they promoted or encouraged—or at
least tacitly assented to—the illegality of third parties.” Roommates.com, 521 F.3d at 1174.
Nor can Plaintiffs evade Section 230 by alleging Defendants know (or should know) that
third parties may misuse Backpage.com for sex trafficking, e.g., Compl. ¶¶ 2, 18, 22, as alluded
to above. See supra 14, 16 & n.21. As the First Circuit held, even before Doe, in Lycos: “It is
… well established that notice of the unlawful nature of the information provided is not enough
to make it the service provider’s own speech.” 478 F.3d at 420.23 The same is true for
22 The Sixth Circuit agreed in Jones, 755 F.3d 398, a suit against gossip site TheDirty.com
for disparaging user posts, where the district court refused to apply Section 230 because it found
the site “intentionally encourage[d] illegal or actionable third-party postings.” Jones v. Dirty
World Entm’t Recordings, LLC, 965 F. Supp. 2d 818, 821 (E.D. Ky. 2013). The Sixth Circuit
reversed, noting “[m]any websites not only allow but also actively invite and encourage users to
post particular types of content” that may be “unwelcome to others,” but an “encouragement”
theory would “eclips[e] the immunity … that Congress established.” Jones, 755 F.3d at 414.
23 Similarly, Bates held Section 230 immunity applied even where it was alleged Yahoo!
“knew or had reason to know about the illegal nature of Candyman’s [child pornography e-group
on Yahoo!’s service] because (1) the site was in an adult entertainment subcategory, (2) its intro-
ductory web page expressly stated that the group was for people who ‘love kids,’ and (3) any
18
conspiracy theories. Where “Plaintiffs make no specific allegations as to how [] defendants
‘conspired’ with other[s ] to post the[ offending ads] other than through operation” of the service,
Section 230 bars liability. E.g., Cornelius v. DeLuca, 2009 WL 2568044, at *3 (E.D. Mo. Aug.
18, 2009). All of these principles apply fully here, where Plaintiffs allege Backpage “conspired”
to bring about, “participated” in or “aided,” or “partnered” with third parties’ criminal conduct,
or “knowingly” allowed it. Just as other courts have reached similar conclusions for other
providers,24 the Complaint here should be dismissed.
2. Plaintiffs’ Reliance on Backpage.com’s Moderation Practices Cannot

Overcome Section 230 Immunity.
Plaintiffs fare no better relying on Backpage’s “moderation” of ads that third parties create
and post. See, e.g., Compl. ¶¶ 2, 25-26, 28-33, 36, 40, 51. As the Complaint makes clear, this is,
in every case but one, nothing more than removing language or images from third-party ads, or
“altering” them to replace content the Terms of Use ban (though when the Complaint says
“altering,” it almost exclusively means removal or blocking). See id.; see also id. ¶¶ 73, 78, 79; id.
¶ 94 (basing claim on “doctoring ads”). The Complaint’s allegations thus concern quintessential
publisher conduct, which—as explained above—courts uniformly hold is shielded by Section 230.
See supra § I.A. The same conclusion applies to allegations that Backpage “sanitizes” ads in an
asserted effort to avoid detection by law enforcement. See, e.g., ¶¶ 2, 25, 33-24. Those are pre-
cisely the sorts of allegations that Doe No. 1 held could not overcome Section 230 immunity, see
type of message, picture, or video could be posted on the site,” yet it “did nothing to prevent,
remove, or block the illegal … material[.]” 2006 WL 3813758, at *6.
24 Bates, 2006 WL 3813758, at *6, *18; GoDaddy.com, 429 S.W.3d at 759-60 (rejecting
allegations that “revenge porn” site published and promoted “obscenity and child pornography”);
Doe v. AOL, 783 So. 2d 1010, 1017 (Fla. 2001) (AOL immune from claims it knowingly hosted
chat rooms where users violated child pornography laws); Goddard v. Google, Inc., 640
F. Supp. 2d 1193, 1196 (N.D. Cal. 2009) (Google immune despite claims it “encourages[,]
collaborates in the development of … and effectively, requires [illegal content]” in ad program).
19
supra 13-14, and the same applies here.25 Any other result would have the perverse effect of dis-
couraging the self-policing that Section 230 was enacted to incentivize. See Davis v. Motiva
Enters. L.L.C., 2015 WL 1535694, at *4 (Tex. App. Apr. 2, 2015) (§ 230 “allows an interactive
computer service provider to establish standards of decency without risking liability”) (internal
quotation marks omitted); see also Doe No. 1, 817 F.3d at 19; Batzel, 333 F.3d at 1027-28.26
Even more fundamentally, Plaintiffs’ effort to plead facts connecting particular ads or
knowledge by Backpage to any unlawful conduct alleged cannot avoid Section 230’s preemptive
effect. This is fatal, as the “case law confirms that [] immunity [] turns on who was responsible
for the specific harmful material at issue, not on whether the service provider was responsible for
[] general features and mechanisms of the service or other content … that might have also
appeared.” Bates, 2006 WL 3813758, at *17 (emphasis added); see also Lycos, 478 F.3d at 418-
19.27 Courts uniformly hold a website can be held liable only to the extent it created or
developed the “specific content that was the source of the alleged liability.” FTC v. Accusearch,
Inc., 570 F.3d 1187, 1198-99 (10th Cir. 2009) (emphasis added). As such, Section 230’s broad
25 See also Doe No. 1, 817 F.3d at 18 (Section 230 “bars” suits based on “traditional
editorial functions … such as deciding whether to publish … or alter content”) (quoting Zeran,
129 F.3d at 330). Paradoxically, after faulting Backpage for removing content, Plaintiffs fault
Backpage for not being effective enough in doing so. See Compl. ¶¶ 79-80.
26 Plaintiffs allege that Backpage engaged in these editorial and moderation practices to help
users avoid detection by law enforcement, Compl. ¶¶ 30, 32-34, 42-45, but this is contradicted
both by admissions elsewhere that Backpage sought to ensure adherence to its Terms of Use, id.
¶¶ 28, 31, 36, 64, 73, 78, and by its well-documented work to assist law enforcement. Supra 5-6.
Plaintiffs also dredge up the so-called “Red Beauty” sting, Compl. ¶ 35, which Backpage has
already thoroughly debunked in prior cases. See Senate Permanent Subcomm. on Investigations
v. Ferrer, 199 F. Supp. 3d 125 (D.D.C. 2016), ECF Nos. 15 at 2-4 & 12-3 to 12-7 (Exs. A-E)
(attached as Appendix B). And, needless to say, the fictional “Red Beauty” ad does not, by defi-
nition, involve any of the Plaintiffs, and thus cannot be a basis of liability here. See infra 20-24.
27 Accord Carafano v. Metrosplash.com, 339 F.3d 1119 (9th Cir. 2003); Ben Ezra, Wein-
stein & Co. v. AOL, Inc., 206 F.3d 980, 985-86 (10th Cir. 2000); Blumenthal v. Drudge, 992 F.
Supp. 44, 51-52 (D.D.C. 1998); Gentry v. eBay, Inc., 99 Cal. App. 4th 816, 833 n.11 (2002)).
20
immunity does not permit liability for a website’s deletion of offensive content—which is not
“displayed content.” Jones, 755 F.3d at 410 (to overcome § 230 immunity, website must be
“responsible for what makes the displayed content allegedly unlawful”) (emphasis supplied).28
As M.A. held specifically with respect to Backpage, the relevant question is whether the website
operator is “responsible for the development of the specific content that was the source of the
alleged liability.” 809 F. Supp. 2d at 1051 (citation omitted). Thus, Backpage was not liable for
“content and consequences of the ads posted by [the pimp].” Id. The same is true here.29
Plaintiffs cannot allege their asserted harms resulted from any ads (or portions of them)
that Backpage created, because, as the Complaint expressly states, those ads were created by the
third-party criminals who abused and trafficked them. Compl. ¶¶ 62, 64 (a “relative … submit-
ted ads of [] Doe No. 1”); id. ¶¶ 68, 73 (“a [] relative” and “family friends” “submitted ads of []
Doe No. 2”); id. ¶¶ 75-77 (“her trafficker sold [] Doe No. 3” and “paid extra to have [ads]
reposted”). Given this, Plaintiffs cannot rely on vague and boilerplate recitations that Plaintiffs
“have suffered substantial physical and psychological injuries, and other damage, as a result of
Defendants’ conduct.” Id. ¶¶ 91, 95.30 See Doe No. 1, 817 F.3d at 19-20; Bates, 2006 WL
3813758, at *16 (§ 230 immunity where complaint “explicitly asserts … the Does’ neighbor []
took illegal child-pornographic photographs of [Doe] and uploaded them onto the [] E-Group”)
28 See also Bates, 2006 WL 3813758, at *16 (“Section 230 dictates an analysis that focuses
on whether the particular injurious ‘information’ giving rise to the claims was provided by the
service provider or by ‘another information content provider.’ And that in turn depends on
whether the service provider was ‘responsible, in whole or in part, for the creation or
development of that particular information.”) (original emphasis deleted, emphasis added).
29 Compare Compl. ¶ 25 (citing “intentional and purposeful removal or obscuring” content
in ads); id. ¶ 28 (averring filtering targeted “terms Backpage wished to ban from the website”).
30 Significantly, in Count I, Plaintiffs do not even allege they suffered “as a result of Defen-
dants’ conduct,” but rather “as a result of being trafficked through Backpage.com.” Compl. ¶ 86.
21
(internal quotation marks omitted). Again, the Complaint makes clear that nothing Defendants
did contributed to any unlawfulness proposed in any ads pertaining to Plaintiffs. See supra 7-8
(citing Compl. ¶¶ 34, 39).
Plaintiffs cannot salvage their claims through general allegations of Backpage’s know-
ledge or slim “information and belief” averments unsupported by facts regarding specific edits to
their ads, and unsupported by facts showing how Plaintiffs were harmed by any purported edits.
Apart from the fact that these general claims of “knowledge,” “editing,” “doctoring” and
“moderation,” invoke traditional editorial functions that Section 230 immunizes as shown supra
13-16, efforts to tie these alleged acts directly to Plaintiffs’ harm are wholly inadequate. Despite
allegations of what the Defendants “knew” or “know,” e.g., Compl. ¶¶ 3, 22, nowhere does the
Complaint allege specific facts explaining how this knowledge about Plaintiffs, from among
Backpage.com’s millions of users and ads, was gained. All but one claim of “knowledge” are
about Backpage’s alleged practices as a general matter, e.g., id. 22, 51, 84, 89 & p.6, and the one
time it is alleged Defendants “knew or had reason to know” Plaintiffs “were children at the time
they were advertised for sale on Backpage.com,” id. ¶ 3, no facts are alleged. The Complaint
thus, to paraphrase one court, “does not contain facts alleging how [Backpage] received notice of
[the specific traffickers’] conduct.” Motiva, 2015 WL 1535694, at *4.
The same is true of claims that Backpage “moderated” specific ads involving Plaintiffs. In
all but one particular, the Plaintiff-specific allegations, ¶¶ 61-81, dance around Defendants’
purported roles—or lack thereof—as to the ads involving each of the Plaintiffs.31 The effect is that
Plaintiffs wholly rely (again, in all but one instance) on claims that Backpage removed or blocked
31 Notably, the principal allegations of Defendants’ impact on the specific ads of Plaintiffs
are made on “information and belief,” Compl. ¶¶ 64, 73, 78, without stating a basis therefor (be-
sides implicit reference back to general allegations of Backpage.com’s editorial functions).
22
content, e.g., id. ¶¶ 64-65, 73, 78, that was created and posted by the traffickers themselves, e.g., id.
¶¶ 73, 79, or on general allegations about Backpage.com’s purported editorial practices,
unanchored to the ads pertaining to Plaintiffs. Id. ¶¶ 2, 25-26, 28-34, 36, 40, 42. As the Ninth
Circuit held in Roommates.com, “[a] website operator who edits user-created content … by …
removing [content,]” such as “obscenity” or similar content that violates its terms of use (or the
law), “retains his immunity for any illegality” remaining in the user-created material. 521 F.3d at
1169. The First Circuit likewise held “the choice of what words or phrases can be [] on the
site … are traditional publisher functions,” and the same is true equally for visual images. Doe
No. 1, 817 F.3d at 20.
The lone instance where Plaintiffs allege moderation other than by deletion—editing
“Latina Shorty” into “Exotic Latina”—had no material effect on the ad’s substance or any trans-
action that may have been proposed in it. See supra 9 n.11. Such revisions to the “introduction”
in third-party content “does not alter the CDA analysis,” as it does not “materially contribute to
the development of the … [p]ost.” S.C. v. Dirty World, LLC, 2012 WL 3335284, at *1 n.2, *3
(W.D. Mo. Mar. 12, 2012). This is consistent with the general rule that even if a website adds
content, if the added content itself did not constitute the unlawful portion of the posting, no fact
question is created that is material to whether the service provider retains Section 230 immunity.
GW Equity, 2009 WL 62173, at *7. See also Doe No. 1, 104 F. Supp. 3d at 156-57 (distinguish-
ing Roommates.com). That rule was applied specifically to Backpage in Ferrer, 2016 WL
7237305, at *6, where the addition of “Interested in …” headlines to third-party posts “was not a
material contribution to the offensive nature of the material.” That remained the case even where
it was alleged “the ad went from expressing intent to advertise prostitution to express a desire to
23
‘date,’” where the allegation was that “Backpage staff scrubbed the original ad, removing any
hint of illegality.” Id. at *7. And that is exactly what Plaintiffs allege as to Doe No. 1.
For the same reasons, it is irrelevant if Backpage may create other content that Plaintiffs
do not plausibly allege caused them harm. See generally Prickett v. InfoUSA, Inc., 561 F. Supp.
2d 646, 651-52 (E.D. Tex. 2006). Generalized claims to the effect that “Defendants are known
to draft and post fake advertisements,” Compl. ¶ 47, are of no import. 32 Whatever else Backpage
may do on the site generally—and, again, Defendants expressly deny Plaintiffs’ allegations—
“under the CDA, an interactive computer service qualifies for immunity so long as it does not
also function as an information content provider for the portion of the content at issue.” GW
Equity, 2009 WL 62173, at *3 (emphasis added) (citing Carafano, 339 F.3d at 1123).33
The same is true of allegations that Defendants “systematically cross-post advertisements
on Backpage, BigCity, and EvilEmpire.” Compl. ¶¶ 48-51. As in Ferrer, where “third parties
provided the content for the original ad[s] on Backpage.com,” and Backpage was alleged to have
“developed the content on BigCity.com and EvilEmpire.com by deliberately manipulating that
original content,” it constituted only “republication, not content creation,” and “is entitled to
immunity” under Section 230. 2016 WL 7237305, at *4, *6; see also Small Justice LLC v.
Xcentric Ventures LLC, 2014 WL 1214828, at *7-8 (D. Mass. Mar. 24, 2014); Doe No. 1, 104
32 Similarly irrelevant are allegations that Backpage contacts users of other sites to “encour-
age them to switch [to] Backpage.com’s services,” Compl. ¶ 47, which are not alleged to have
anything to do with Plaintiffs. Even if legally pertinent, the allegation invokes conduct involving
Backpage sites “outside the U.S.” See www.nbcnews.com/feature/long-story-short/video/nbc-
news-exclusive-inside-backpage-com-s-global-adult-ad-sales-operation-981487683699.
33 Plaintiffs aver the alleged “fake ads” are for—presumably fictional—“illegal commercial
sex,” Compl. ¶ 47, but this is at odds with the rest of the Complaint’s allegations that Back-
page.com ads are filtered to remove material that may indicate illegality. Further, fictional
“commercial sex” cannot be “illegal,” cf. Ashcroft v. Free Speech Coalition, 535 U.S. 234, 245-
46 (2002), and if the alleged ads were meant to mirror other “sanitized” content on the site, as
asserted, how could it be that it was intended that they convey offers for illegal sex?
24
F. Supp. 3d at 157 (discussing sponsored ads, and also holding “excerpts taken from [] original
posts reflect[] the illegality (or legality) of the original posts and nothing more”).
3. Plaintiffs Cannot Avoid Dismissal Through Reliance on the PSI Report.
Plaintiffs’ heavy reliance on the generalized allegations of the PSI Report cannot stave
off dismissal, because even if all of the PSI Report’s one-sided assertions were incorporated into
the pleadings and accepted as fact (which they cannot be), it does not affect the legal analysis.
First, and most obviously, the Report says nothing about Plaintiffs specifically, or ads involving
them at Backpage.com, which as explained above, is all that matters for Section 230 analysis.
See supra 20-21. Further, the Report did not find any content creation by Backpage, but rather
targeted the same structure, terms of use, filtering and moderation, and alleged knowledge
previously considered by courts that found Backpage immunized by Section 230.34 This is only
reinforced by Plaintiffs’ characterization of the PSI Report as accusing Backpage of “systemati-
cally editing its ‘adult ads.’” Compl. ¶ 22; see also id. ¶ 2 (same). In fact, just recently the
National Association of Attorneys General wrote Congress seeking amendments to the CDA,
implicitly acknowledging that, even after PSI’s report, Section 230 continues to immunize
Backpage for claims like these.35 Plaintiffs’ heavy reliance on the PSI Report as a proxy to
suggest there are plausibly pled claims misses the mark.
In any event, Plaintiffs cannot rely on the PSI Report as factual support for a plausible
claim to relief, as it is a polemic colored by argument, inadmissible hearsay and conjecture.
Such allegations cannot be properly incorporated into the Complaint. Under F.R.C.P. 10(c),
34 It is irrelevant that earlier cases finding that Backpage is entitled to Section 230 immunity
predated the PSI Report, because the truth of the allegations in those cases has always been
assumed for purposes of Rule 12(b)(6) motions in federal courts. As explained above and
illustrated in Appendix A, those allegations are the same as the ones Plaintiffs advance here.
35 http://www.naag.org/assets/redesign/files/sign-on-letter/CDA%20Final%20Letter.pdf.
25
pleadings may incorporate only “written instruments” i.e., “a document evidencing legal rights
or duties or giving formal expression to a legal act or agreement, such as a deed, will, bond,
lease, insurance policy or security agreement.” Murphy v. Cadillac Rubber & Plastics, Inc., 946
F. Supp. 1108, 1115 (W.D.N.Y. 1996) (“supporting statements” in affidavit, affirmations and
letter were not “written instruments”). The Report—which does not give rise to any legal rights
or duties among the parties—is exactly the sort of extrinsic document courts refuse to incor-
porate into a complaint.36
Such reports are commonly excluded as they reflect “heated conclusions of a politically
motivated” nature. Baker v. Firestone Tire & Rubber Co., 793 F.2d 1196, 1199 (11th Cir. 1986).
In this case, for example, PSI expressly rejected Backpage’s offer of millions of pages of docu-
ments evidencing its cooperation with law enforcement. PSI v. Ferrer, 199 F. Supp. 3d 125,
131-32 (D.D.C. 2016), vacated as moot, 856 F.3d 1080 (D.C. Cir. 2017). The report thus created
a false but preordained narrative.37 In such cases, courts generally do not consider whether such
a congressional document can be incorporated into the pleadings—they examine whether it
should be admitted into evidence at all.38 As such, allegations and conclusions drawn from the
36 E.g., Sell v. Zions First Nation Bank, 2006 WL 322469, at *5 (D. Ariz. Feb. 9, 2006)
(court-appointed receiver’s report “expanding” on pleadings is not a “written instrument” as it
“does not evidence any legal rights or duties, nor … give formal expression to a legal act or
agreement”); Perkins v. Silverstein, 939 F.2d 463, 467 n.2 (7th Cir. 1991) (articles and
commentary “are not the type of documentary evidence or ‘written instrument[s]’ which Fed. R.
Civ. P. 10(c) intended to be incorporated”).
37 See Claire McCaskill, Minority Ranking Member PSI, Our fight against sex trafficking
website Backpage, K.C. STAR, Feb. 14, 2017, www.kansascity.com/opinion/readers-opinion/
guest-commentary/article132727529.html (expressing “hopeful[ness] that the results of our
investigation will give future cases against Backpage [] legal ammunition”).
38 E.g., Pearce v. E.F. Hutton Grp., Inc., 653 F. Supp. 810, 813-16 (D.D.C. 1987) (“Given
the obviously political nature …, it is questionable whether any report by a committee or
subcommittee of [Congress] could be admitted … against a private party.”); Bright v. Firestone
26
PSI Report and its attachments appended to the Complaint do not allow Plaintiffs to make up for
their pleading shortcomings.
II. THE COMPLAINT ALSO FAILS TO STATE ANY CLAIM.
Even were there no Section 230 immunity, the Complaint still should be dismissed
because each count fails to state a claim. Initially, Plaintiffs’ claims under the federal TVPRA
and the Massachusetts MATA are identical to those the First Circuit held barred by Section 230
in Doe No. 1. See 817 F.3d at 20-21, 23 & n.7. Application of Section 230 to Chapter 93A is to
like effect. See Doe No. 1, 104 F. Supp. 3d at 162-63.
Beyond this, the TVPRA requires, in relevant part here, that one “knowingly benefits”
from recruitment, enticement, harboring, transport, advertisement, maintenance, or solicitation of
a person, for a commercial sex act, involving a person under 18 years old, or the use of threats,
force, fraud, or coercion. 15 U.S.C. § 1591(a). Not one year ago, a federal court held, in a suit
by Backpage, that “where the act constituting a[n alleged § 1591] violation … is advertising,” it
“requires a ‘knowing’ mens rea” of each element—that is (at a minimum), that a commercial sex
act will occur, and that the person to perform it is a minor and/or is subject to threats, force,
fraud, or coercion. Backpage.com, LLC v. Lynch, 216 F. Supp. 3d 96, 109 (D.D.C. 2016).39 As
shown, the Complaint’s allegations regarding Defendants’ supposed knowledge of these specific
Plaintiffs, of what the ads involving them sought to promote, and of their ages at the time, are
limited to “naked assertion[s] devoid of further factual enhancement.” Doe No. 1, 104 F. Supp.
3d at 154 (quoting Iqbal, 556 U.S. at 678). And no facts are pled that Backpage materially
Tire & Rubber Co., 756 F.2d 19, 22-23 (6th Cir. 1984) (per curiam) (excluding House subcom-
mittee report as inadmissible).
39The court also held Backpage.com’s operations in hosting third-party ads did not present
a sufficiently “credible” likelihood of falling within the Act to pose a risk of enforcement against
Backpage. Backpage v. Lynch, 216 F. Supp. 3d at 104, 108-09.
27
altered Plaintiffs’ ads, or became specifically aware of them among the millions posted by users
of the site’s automated interface. See supra 8-9, 19-24. The TVPRA claim therefore fails.
And as recognized in Doe No. 1, as goes the TVPRA claim, so goes the MATA claim.
See 817 F.3d at 22 n.7; 104 F. Supp. 3d at 161 n.10. To begin with, the MATA does not include
“advertising” among its predicate acts, so it arguably does not apply on its own terms. See Mass.
G.L. c. 265 § 50(a). That not-insignificant point aside, Section 50(a) otherwise “parallels” the
TVPRA, Doe No. 1, 104 F. Supp. 3d at 161 n.10, criminalizes the same activity,40 and imposes
the same actual knowledge requirement. See, e.g., Com. v. McGhee, 35 N.E.2d 329, 339-40, 341-
42 (Mass. 2015). This coincides with fundamental First Amendment law that requires actual
knowledge of each element of any MATA violation. Id. Such restrictions criminalizing
expressive activity require a heightened “knowing” mens rea, Smith v. California, 361 U.S. 147,
151-53 (1959); United States v. X-Citement Video, Inc., 513 U.S. 64 (1994), and in particular,
knowing conduct, i.e., that any “wrongdoing must be conscious to be criminal.” Elonis v. United
States, 135 S. Ct. 2001, 2009 (2015).41 Again, Plaintiffs’ allegations of Defendants’ knowledge
regarding these specific Plaintiffs are not plausibly pled, and Counts I and II under the TVPRA
and MATA accordingly must be dismissed for failure to state a claim.
As to Count III, in addition to being preempted by Section 230, Plaintiffs’ Chapter 93A
claim fails under Doe No. 1. In that case, plaintiffs “attempt[ed] to forge [a] causal chain [that]
Backpage made … disingenuous representations to law enforcement [and] NCMEC regarding
40 Though not material here, the MATA omits the TVPRA requirements for force, coercion,
etc., and adds sexual performances and pornography alongside commercial sexual activity.
41 For distributors of others’ speech, there must be knowledge of the nature and content of
the material disseminated that makes it unlawful, Smith, 361 U.S. at 153-54, and if criminality
turns on the age of the person(s) depicted, knowledge of their ages. X-Citement Video, 513 U.S.
at 68-73, 78. Accord McGhee, 35 N.E.3d at 340 (“[A]bsence of any element, notably mens rea,
will negate criminality.”).
28
[a] supposed commitment to combating sex trafficking,” but “neither kept these commitments
nor made … changes that [were] discussed,” in favor of “pretextual actions” that “increase[ed
plaintiffs’] risk of being trafficked.” 817 F.3d at 24-25; compare Compl. ¶¶ 52-58. The First
Circuit rejected this theory as “shot through with conjecture [that] pyramids speculative
inference upon speculative inference” as to “the effect of the alleged misrepresentations on an
indeterminate number of third parties, the real impact of Backpage’s behavior …, and the odds
that [plaintiffs] would not have been victimized had Backpage been more forthright.” Id. at 25.
The Complaint here swaps out (while repeating) allegations about representations to
NCMEC and law enforcement, for a lone paragraph asserting the “doctoring [of] ad[s],” Compl.
¶ 94, but the same causal failings of Doe No. 1 remain. The only facts Plaintiffs allege about
changes to ads in which they appeared (taking all allegations as true, as required at this phase)
are editing “Latina Shorty” to “Exotic Latina,” and blocking or deletion of language and/or
photos that violate Backpage.com’s Terms of Use—none of which, as the Complaint concedes,
changed the ads’ underlying nature.42 Thus, even though Chapter 93A requires, among other
things, that Plaintiffs “must prove causation,” Doe No. 1, 817 F.3d at 24, the Complaint offers
only “speculation” and “surmise” in support of its assertions that Backpage’s actions caused their
harm. As before, the claim relies on the same “effect … on an indeterminate number of third
parties … and the odds that [Plaintiffs] would not have been victimized” but for Backpage’s
actions. Id. at 25; but cf. Doe No. 1, 104 F. Supp. 3d at 162 (finding Ch. 93A claim fell within
42 See supra 7-9 & n.11, 19-24. Perhaps even more significantly, by pivoting from alleged
misrepresentations to NCMEC and law enforcement to hosting of ads and the exercise of
editorial prerogatives, Plaintiffs bring their Chapter 93A claim squarely within Section 230. See
supra § I.B. Further, deeming Backpage a “seller” of goods or services listed in ads posted on
the site, as a Chapter 93A claim suggests, would treat it as “publisher” of those ads, which
Section 230 bars. Hiam, 2017 WL 3203386, at *6. Cf. Small Justice, 2014 WL 1214828, at *8-
9 (“Plaintiffs cannot attempt an end run around the CDA through the use of c. 93A.”).
29
§ 230 preemption). This is particularly problematic in that this claim, resting on “deception” and
“false impression,” requires heightened pleading, see F.R.C.P. 9(b); Mulder v. Kohl’s Dep’t
Stores, Inc., --- F.3d ---, 2017 WL 3167620, at *3 (1st Cir. July 26, 2017), and the causational
gap is fatal. See, e.g., Hershenow v. Enterprise Rent-A-Car Co. of Boston, 445 Mass. 790, 791
(2006) (“a causal connection between a deceptive act and a loss to the consumer is an essential
predicate for [Ch. 93A] recovery”); RSA Media, Inc. v. AK Media Grp., Inc., 260 F.3d 10, 16 (1st
Cir. 2001); A.G. ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 81 (1st Cir. 2013).
CONCLUSION
Although the Complaint may present “plaintiffs whose circumstances evoke outrage,” the
result this Court “must reach” is “rooted in positive law.” Doe No. 1, 817 F.3d at 15. “Plaintiffs
cannot invoke public policy to make an end-run around th[e] statutory determination” found in
Section 230. Small Justice LLC v. Xcentric Ventures LLC, 99 F. Supp. 3d. 190, 200 n.4 (D.
Mass. 2015), amended 2015 WL 5737135 (D. Mass. Sept. 30, 2015). Consistent with Congress’
binding policy judgment in Section 230 that “plaintiffs may hold liable the person who creates or
develops [the] unlawful content, but not the interactive computer service provider who merely
enables that content to be posted online,” Nemet Chevrolet, 591 F.3d at 254, this Court must
dismiss the Complaint in its entirety.
Respectfully submitted,
BACKPAGE.COM, LLC, CARL FERRER,

MICHAEL LACEY, and JAMES LARKIN
By their attorneys,
/s/ Robert A. Bertsche

Robert A. Bertsche (BBO #554333)
rbertsche@princelobel.com
Jeffrey J. Pyle (BBO #647438)
jpyle@princelobel.com
30
PRINCE LOBEL TYE LLP

One International Place, Suite 3700
Boston, Massachusetts 02110
Tel: (617) 456-8018
Robert Corn-Revere (pro hac vice)

bobcornrevere@dwt.com
Ronald G. London (pro hac vice)
ronnielondon@dwt.com
DAVIS WRIGHT TREMAINE LLP
1919 Pennsylvania Avenue NW, Suite 800
Washington, D.C. 20006
Tel: (202) 973-4225
James C. Grant (pro hac vice)

jimgrant@dwt.com
1201 Third Avenue, Suite 2200
Seattle, WA 98101
Telephone: (206) 622-3150
Dated: August 23, 2017

CERTIFICATE OF SERVICE
I hereby certify that the within document filed through the CM/ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing and by
first-class mail to any non-registered participants.
/s/ Robert A. Bertsche

Robert A. Bertsche
31
Case 1:17-cv-11069-LTS Document 32-1 Filed 08/23/17 Page 1 of 3
Appendix A
Allegations in Doe No. 1 et al. v. Backpage.com, LLC, 17-cv-11069-LTS (“2017 Doe Action”)
Compared with Doe No. 1 et al. v. Backpage.com, LLC, CV 14-cv-13870-RGS,
cert. denied, 137 S. Ct. 622 (2017) (“2014 Doe Action”)
2014 Doe Action 2017 Doe Action
(14-cv-13870-RGS) (17-cv-11069-LTS)
“The Backpage Defendants have purposefully designed “The purpose of Defendants’ efforts to facilitate the
Backpage.com to facilitate and broker illegal success of illegal sex trafficking advertisements was
commercial sex transactions. Through their website, the understood by Backpage employees.” (Compl. ¶ 34.)
Backpage Defendants knowingly transmit the vast
majority of Internet advertisements for illegal
commercial sex in the United States, including
advertisements involving child sex trafficking victims.”
(Compl. ¶ 1.)
“‘Defendants undertook to forge seemingly cooperative “Defendants undertook to forge seemingly cooperative
relationships with many law enforcement agencies and relationships with many law enforcement agencies and to
to convey the impression that they are (i) actively and convey the impression that they were (i) actively and
successfully engaged in efforts to identify and report successfully engaged in efforts to identify and report
child sex trafficking victims and (ii) otherwise child sex trafficking victims and (ii) otherwise ‘partnering’
‘partnering’ with law enforcement to minimize the risk with law enforcement to minimize the risk of exploitation
of exploitation of children on the website. As part of of children on the website. As part of this façade, the
this façade, the Backpage Defendants regularly assert to Backpage Defendants regularly asserted that they were
the media that they are actively engaged in efforts to engaged in efforts to stop child sex trafficking through
stop human trafficking through Backpage.com. Indeed, Backpage.com. Indeed, Defendants regularly
the Backpage Defendants regularly characterize characterized themselves as the ‘sheriff’ of the Internet
themselves as the ‘sheriff’ of the Internet and helping helping to defeat the ‘scourge’ of online child sex
to defeat the ‘scourge’ of online child sex trafficking.” trafficking.” (Compl. ¶ 53.)
(Compl. ¶ 31.)
“In furtherance of this scheme to achieve and sustain a “To further this scheme, Defendants initiated numerous
dominant market share in the commercial sex market, interactions with state and federal law enforcement
the Backpage Defendants initiated numerous agencies beginning in or about 2010. Defendants
interactions with state and federal law enforcement provided assurances to these agencies that they would
agencies beginning in or about 2010. In the course of be vigilant in attempting to detect unlawful trafficking of
these various communications, the Backpage minors through various means, would improve and
Defendants provided assurances to these agencies that increase the volume of reporting of suspicious
they would be vigilant in attempting to detect unlawful advertisements, and would be a model for cooperation
trafficking of minors through various means, improve with law enforcement efforts.” (Compl. ¶ 54.)
and increase the volume of reporting of suspicious
advertisements, and would be a model for cooperation
with law enforcement efforts.” (Compl. ¶ 32.)
“Contrary to these representations, the Backpage “Despite these representations, Defendants intended
Defendants intended only to engage in the most only to engage in the most superficial efforts to work
superficial efforts to work with these agencies, and only with these agencies, and only to the extent necessary to
to the extent necessary to divert the attention of these divert the attention of these agencies from the growing
agencies from the growing market share and business market share and business success of Backpage.com.”
success of Backpage.com.” (Compl. ¶ 33.) (Compl. ¶ 55.)

(14-cv-13870-RGS) (17-cv-11069-LTS)
“[I]f a third party provides the Backpage Defendants “[I]if Backpage is notified that an advertisement in a
with evidence that an advertisement in a particular city particular market involves a child, Backpage will only
involves a child, the Backpage Defendants will consider consider removing the advertisement in that market, and
removing the advertisement in that city and reporting it will report the advertisement to NCMEC only if the
the advertisement to NCMEC. However, the Backpage information is communicated by an immediate family
Defendants take no steps to remove or report other member of the child in the advertisement. Id. at 318 (Ex.
advertisements for the same child, including even CC). In fact, Backpage takes no steps to remove or report
identical advertisements that are posted in other other advertisements for the same child, including even
geographical regions; they do not identify or report identical advertisements that are posted in other
other advertisements that are linked to the reported geographical regions; they do not identify or report other
advertisement; and they do not identify or report advertisements that are linked to the reported
advertisements involving the same phone number, web advertisement; and they do not identify or report
address, or other identifying information indicative of advertisements involving the same phone number, web
trafficking of that child or other children.” (Compl. ¶ address, or other identifying information indicative of
35(iv).) trafficking of that child or other children. (Compl. ¶57.)
“Defendants deliberately adjusted their server “Defendants adjusted their server software, at additional
software, at additional expense, to delete the metadata expense, to erase the metadata from each uploaded
on each uploaded photo so that law enforcement photo, so as to impede efforts by law enforcement to use
cannot track the photo, or otherwise determine the photo to identify the trafficked child or to track the
whether photos bearing the same metadata are posted traffickers Backpage has partnered with to sexually
elsewhere on Backpage.com.” (Compl. ¶ 51.) exploit children.” (Compl. ¶ 43.)
“Backpage.com does not require phone number “The Defendants also helped traffickers evade prosecu-
verification and allows posters to include phone tion by allowing them to post their phone numbers by
numbers in obscured forms that include letters and spelling out the digits of their numbers rather than using
numbers rather than strictly numeric characters (e.g., numerals. For example, the numerals ‘617’ can
‘twoO13fourFive678niNe’ rather than ‘201-345-6789’).” be written instead as ‘six-1-seven.’” (Compl. ¶ 44.)
(Compl. ¶ 49.)
“In contrast, they do require a numerical phone number “In addition, Defendants did not require traffickers to
from posters placing advertisements in the Pets verify the phone numbers they post in connection with
section.” (Compl. ¶ 49.) an advertisement in the ‘Adult Entertainment’ section,
despite requiring this verification for other sections of its
website. In effect, Backpage makes it harder for someone
to sell a dog or cat in its ‘Pets’ section than it does for
someone to sell a child for sex in its ‘Adult Entertainment’
section. Anyone trying to sell a dog or cat through ‘Pets’
must verify his or her telephone number, while anyone
trying to sell a child for sex through ‘Adult Entertainment’
need not.” (Compl. ¶ 45.)
2

(14-cv-13870-RGS) (17-cv-11069-LTS)
Backpage “assist[ed] in the crafting, placement, and Backpage’s “posting process intentionally operated to
promotion of illegal advertisements offering the provide guidance to those traffickers whom the Defen-
plaintiffs for sale that would attract potential customers dants could not coach directly by email or telephone to
yet escape detection by law enforcement.” (Compl. ¶ improve the prospect that their advertisements would
4.) reap maximum financial returns while eluding law
enforcement scrutiny.” (Compl. ¶ 40.)
3
APPENDIX B
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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
SENATEPERMANENTSUBCOMlliflTTEE )
ON INVESTIGATIONS, )
)
Applicant, Misc. No. 1:16-mc-00621-RMC
)
)
v. )
)
CARL FERRER,
)
Respondent. )
)
)
RESPONDENT'S CORRECTED SURREPLY
Respondent submits and asks t~e Court to accept this surreply on two limited issues:
first, the Subcommittee's reference to and reliance on certain allegations of Cook County
Sheriff Dart that are belied by the documentary record in that case, and second, regarding
recent congressional efforts to pursue and investigate other online publishers, underscoring
the threats to First Amendment interests presented in this case.
A. The Subcommittee's Latest Attempt to Justify Its Investigation Based on

Allegations of Sheriff Dart.
Backpage.com showed before that the Subcommittee has been coordinating with
Sheriff Dart and his attempts to shut down Backpage.com, notwithstanding the
Subcommittee's denials that it had been in contact or working with the Sheriff's office. See,
e.g., Mem. of P. & A. in Opp 'n to Appl. of Senate Permanent Subcomm. on Investigations to
Enforce Subpoena Duces Tecum at 19, 38. Yet, in its reply, the Subcommittee again adopts
and advances accusations made by Sheriff Dart, urging the Court to accept them to show that
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Backpage.com's moderation policies and practices are intended "to conceal illegal activity"
and therefore are not "editorial decisions" subject to First Amendment protection. Reply
Mem. ofP. & A.' in Support of Appl. (hereinafter "Reply Mem.") at 13-15.
The Subcommittee asks this Court to give considerable weight to certain allegations
in a motion recently filed in another case by Sheriff Dart in support of this argument.
However, the Subcommittee's allusions to Sheriff Dart's recent brief are incomplete and
deceptive, because they rely solely on Sheriff Dart's accusations but not the record in that
case. Thus, Respondent is providing its response to Sheriff's Dart's recent motion, including
the documents from Sheriff Dart's files that contradict his accusations. Backpage.com's
Opposition to Sheriff Dart's Motion for Leave to Amend Affirmative Defenses, filed May
17, 2016, ECF No. 160, Backpage.com v. Dart, No. 1:15-cv-06340 (N.D. Ill.), attached
hereto as Ex. A (hereinafter, "Backpage.com's Opp'n to Mot. for Leave to Am.").
In fact, the record reflects that four years ago an investigator from Sheriff Dart's
office posted a fake ad on Backpage.com and then edited it to include underage references in
an effort to evade Backpage.com's screening. 1 His effort failed; the ad was flagged and
1
See Backpage.com's Opp'n to Mot. for Leave to Am. at 3-6. The investigator's
report states that the ad "was posted by the website with changes that R/I [apparently, the
investigator] did not make." See Cook Cty. Sheriffs Police Dep't Supp. Report dated May 9,
2012 at 3, attached hereto as Ex. B. However, the screenshots he printed out and attached to the
report reflect that the earliest version of the ad posted on the website was titled "Red beauty -
18" and contained no underage references. See Backpage.com Advert. Red beauty- 18, attached
hereto as Ex. C. The investigator's report also reflects that, shortly after the original
advertisement appeared on the site, he edited the ad to put in the offending terms, see Ex. B, so
that the ad that ran was not some version "scrubbed" by Backpage.com. See Backpage.com
Advert. Red beauty 14 - 18, attached hereto as Ex. D. The screen shots printed out by the
investigator and appended to his report do not reflect that Backpage.com made any changes to
the ad.
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Backpage.com voluntarily reported it to the National Center for Missing and Exploited Children
("NCMEC"). See Backpage.com's Opp'n to Mot. for Leave to Am. at 3-6. Far from proving
that Backpage.com took steps "to conceal illegal activity," as the Subcommittee asserts
(parroting Sheriff Dart's unsupported accusations), Reply Mem. at 15, the record shows
Backpage.com reported the ad for referral to law enforcement to prevent illegal conduct. Indeed,
after NCMEC expended time and resources investigating the ad believing it was real and
presented a possible incident of exploitation (making referrals to the Chicago FBI and the Cook
County State's Attorney's Office), Sheriff Dart's office admitted that the ad was "bogus" and
just "[s]omeone goofing around." See E-mails from William Leen, Cook Cty. Sheriff's Office to
Louis Longhitano, Assistant State Attorney, Cook Cty. State's Attorney (May 11, 2012, 1:27 and
1:31 PM EST), attached hereto as Ex. E.
The Subcommittee now presents Sheriff Dart's accusations and mischaracterizations to
this Court as supposedly showing Backpage.com's screening and moderation are not valid
"editorial decisions," and, instead, Mr. Ferrer must show "why they are constitutionally
protected." See Reply Mem. at 14, 15. But the law is clear that choices made by online
intermediaries about third-party content are editorial decisions protected by the First
Amendment? The Subcommittee's argument based on Sheriff Dart's "bogus" ad posted by
"[s]omeone fooling around" misstates both the facts and the law, and this Court should not
2
See, e.g., Jian Zhang v. Baidu.com, Inc., 10 F. Supp. 3d 433,438 (S.D.N.Y. 2014)
(" [A] 'search engine's editorial judgment is much like many familiar editorial judgments,'
such as the newspaper editor's judgment of which wire-service stories to run and where to
place them in the newspaper, the guidebook writer's judgments about which attractions to
mention and how to display them, and Matt Drudge's judgments about which stories to link
and how prominently to feature them") (citation omitted); Langdon v. Google, Inc., 474 F.
Supp. 2d 622,629-30 (D. Del. 2007) (citingMiamiHeraldPubl'g Co. v. Tornillo, 418 U.S.
241, 258 (1974) and finding the First Amendment applies to editorial selections of search
engines).
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accept the accusations of Sheriff Dart-now repeated by the Subcommittee-as though they are
facts and without regard to the actual record.
B. The First Amendment Threat Posed by Overreaching Congressional

Investigations of Online Providers.
The threats to First Amendment interests posed by the Subcommittee's subpoena in
this case are underscored by another recent congressional effort seeking to investigate an
online publisher for editorial decisions that some members of Congress do not like.
On May 10, 2016, the Senate Committee on Commerce, Science, and Transportation
launched an investigation about Facebook's "Trending Topics" section, based on press
accounts that Facebook had selectively chosen not to feature content concerning conservative
views. See Letter from Sen. John Thune, Chairman of Comm. on Commerce, Science, and
Transportation to Mark Zuckerberg, Chairman & CEO, Facebook (May 10, 20 16), attached
hereto as Exhibit F. Legal scholars and the press noted that the Senate's purported
investigation is an improper infringement on Facebook's First Amendment rights. See, e.g.,
Nick Corosaniti and Mike Isaac, Senator Demands Answers From Facebook on Claims of
(Trending' List Bias, N.Y. TIMES, May 10, 2016 (citing First Amendment scholar Floyd
Abrams that "[t]he notion of Congress looking into or investigating how a medium of
communication decides what to say threatens on its face First Amendment rights"), attached
hereto as Ex. G; Peter Scheer, Facebook, under attack for choosing ((trending" stories,
should embrace the 1st Amendment, First Amendment Coalition (May 11, 20 16), available
at https ://firstamendmentcoalition.org/20 16/0 5/facebook-attack-choosing-trending-stories-
embrace-1st-amendment/ ("Congress has no more power to inquire into Facebook's
decision-making in this area than to second-guess the editorial judgments of the New York
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Times or Medium.com. Congress can kick and scream all it wants (free speech being a two-
way street), but it cannot interrogate Facebook, much less dictate its own editorial
preferences. The First Amendment vests all editorial authority in Facebook."), attached
hereto as Ex. H; Charles C.W. Cooke, The Senate Should Leave Facebook Alone, NAT'L
REv., May 10, 2016, ("By demanding that Facebook account for itself, Senator Thune is
ultimately claiming the power to investigate any online service that is even tangentially
involved with the dissemination of news. In addition to representing a clear violation of the
First Amendment, this sets a dangerous and undesirable precedent- one that conservatives
would usually avoid at all costs. Mistake."), attached hereto as Ex. I.
The Court can and should take judicial notice of this most recent congressional
attempt to infringe speech through exercise of investigatory powers.
Steven R. Ross, Bar #244863

Stanley M. Brand, Bar #213082
AKIN GU:MP STRAUSS HAUER & FELD LLP
1333 NewHampshireAvenueNW
Telephone: (202) 887-4343
Robert Corn-Revere, Bar #375415

1919 Pennsylvania Avenue NW, Suite 800
Telephone: (202) 973-4200
Counsel for Carl Ferrer
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EXHIBITS LIST
Exhibit A Backpage.com's Opposition to Sheriff Dart's Motion for Leave to Amend

Affirmative Defenses, filed May 17,2016, ECF No. 160, Backpage.com v. Dart,
No. 1:15-cv-06340 (N.D. Ill.)
Exhibit B Cook County Sheriffs Police Department Supplemental Report dated May 9,
2012
Exhibit C Backpage.com Advertisement Red beauty- 18
Exhibit D Backpage.com Advertisement Red beauty 14 - 18
Exhibit E E-mails from William Leen, Cook County Sheriffs Office to Louis Longhitano,
Supervisor, Assistant State Attorney, Cook County State's Attorney (May 11,
2012, 1:27 and 1:31 PM EST)
Exhibit F Letter from Sen. John Thune, Chairman ofComm. on Commerce, Science, and
Transportation to Mark Zuckerberg, Chairman & CEO, Facebook, May 10, 2016
Exhibit G Senator Demands Answers From Facebook on Claims of 'Trending' List Bias,
N.Y. TIMES, May 10,2016
Exhibit H Peter Scheer, Facebook, under attack for choosing "trending" stories, should
embrace the 1st Amendment, First Amendment Coalition, May 11, 2016
Exhibit I The Senate Should Leave FacebookAlone, NAT'L. REv., May 10,2016
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RESPONDENT’S SURREPLY
Exhibit A
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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BACKPAGE.COM, LLC,
Plaintiff, No. 1:15-cv-06340
v. Judge John J. Tharp, Jr.
THOMAS J. DART, Sheriff of Cook County, Magistrate Judge Young B. Kim

Illinois
Defendant.
BACKPAGE.COM’S OPPOSITION TO SHERIFF DART’S MOTION

FOR LEAVE TO AMEND AFFIRMATIVE DEFENSES
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I. INTRODUCTION
Sheriff Dart moved for leave to amend his affirmative defenses in this case almost four
months after the Court-imposed deadline for adding new defenses (“Motion,” Dkt. 155). Dart
contends his “new affirmative defenses are compelling and meritorious.” Id. at 5. In fact, they
lack all merit and would be futile from the outset. As before, the Sheriff fundamentally
misunderstands the First Amendment and the immunity protections of Section 230 of the
Communications Decency Act, 47 U.S.C. § 230 (“Section 230”). The present motion is yet
another attempt by Sheriff Dart to continue his vendetta against Backpage.com in this litigation,
when the issue here is Dart’s actions imposing an unconstitutional prior restraint. The Sheriff
has not established and cannot establish good cause for his belated attempt to add defenses that
are plainly precluded under the law.
II. ARGUMENT
A. Sheriff Dart Must Show Good Cause for His Proposed Amendments.
Sheriff Dart invokes Fed. R. Civ. P. 15(a) to suggest he has a near absolute right to
amend, citing cases stating that under Rule 15 leave to amend should be freely allowed. See
Mot. at 3-4. Dart cites the wrong rule. Rule 16(b) applies here because the Case Management
Plan entered by the Court set January 30, 2016 as the “deadline to amend the pleadings to add
any new claims or defenses.” (Dkt. 101 at 2 (Case Management Plan); see Dkt. 102 (Order
entering plan)). “To amend a pleading after the expiration of the trial court’s Scheduling Order
deadline to amend pleadings, the moving party must show ‘good cause.’” Trustmark Ins. Co. v.
Gen. & Cologne Life Re of Am., 424 F.3d 542, 553 (7th Cir. 2005) (quoting Rule 16(b)). This is
a heightened standard that “primarily considers the diligence of the party seeking amendment,”
id., see also Alioto v. Town of Lisbon, 651 F.3d 715, 719 (7th Cir. 2011); but the Court must also
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consider the factors under Rule 15(a)(2), id., and, particularly apropos here, whether proposed
amendments would be futile.
B. Dart’s Proposed Amendments Are Futile.

1. Dart’s “Preventing Illegal Conduct Exception” Defense Contravenes the
First Amendment and Section 230.
The first of Sheriff Dart’s proposed new affirmative defenses is merely a rehash of the
same argument he has made three times before – that he should be allowed to argue and attempt
to show the “unlawfulness” of ads on Backpage.com. See Supp. Memo re Motion to Compel at
5-11 (Dkt. 145); Bench Memo at 1-11 (Dkt. 143); Motion to Strike at 3-6 (Dkt. 126) ; see also
Motion for Leave to File Reply or Strike (Dkt. 157), and Order (Dkt. 159) (denying Dart’s
motion to file another brief on the same issue). The Sheriff’s arguments do not improve by dint
of repetition.
As Backpage.com has shown, Dart’s efforts to attack the website and all adult ads on the
site contravene fundamental First Amendment principles that (1) all speech is presumed lawful;
(2) the burden to prove otherwise always falls to the government; (3) government officials
cannot impose a prior restraint – even on unprotected speech – absent a judicial determination
that the speech is unlawful; and (4) officials can never justify a prior restraint by arguing, after
the fact, that speech was unlawful. See Backpage.com Response to Dart’s Memo re Motion to
Compel Discovery at 3-7 (“Backpage.com Response,” Dkt. 153).
Dart’s latest motion argues that, if his letters to Visa and MasterCard constituted
“government action” imposing a prior restraint, he “[was] permitted to take action to prevent
adult prostitution and juvenile prostitution, even if such action stops speech that normally would
be protected under the first amendment.” Proposed Amendments ¶ 9 (Dkt. 155-1). Again he
relies upon and misreads Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986). See Motion at 8-10.
That case “ha[d] nothing to do with any expressive conduct at all,” but rather concerned a state
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court order closing a bookstore because of sexual activities that occurred on the premises. Id. at
699, 705 & n.2. See Backpage.com Response at 7. In this case, Dart took actions to shut down
Backpage.com because it provides a forum for speech he does not like, which certainly does
concern expressive conduct protected by the First Amendment, as the Seventh Circuit has held.
Backpage.com, LLC v. Dart, 807 F.3d 229 (7th Cir. 2015).
Moreover, Dart’s proposed “illegal conduct” defense directly violates Section 230. He
posits that he can hold Backpage.com responsible for ads – and thereby excuse his prior restraint
– because the website “took information” from users (all of whom the Sheriff characterizes as
“pimps and prostitutes”), who paid to post ads, and, he contends, this constitutes aiding and
abetting or promoting prostitution under state law. See Proposed Amendments ¶¶ 1-10. This is
the very same argument Dart made and lost seven years ago in Dart v. Craigslist, Inc., 665 F.
Supp. 2d 961 (N.D. Ill. 2009). There, the court held that Section 230 precluded the Sheriff from
pursuing state-law claims based on online publication of escort ads. See Backpage.com
Response at 8-12 (explaining that Dart’s current arguments are barred by Section 230).
Backpage.com will not repeat all the explanation of the law rejecting Dart’s arguments
that he should be allowed post hac to take discovery and try to prove “unlawfulness.”1 The
Sheriff’s latest motion on this theme offers nothing new – except to provide one example, which
actually underscores that the Sheriff’s attacks are groundless.
The Sheriff’s motion points to one fake ad submitted by a member of his staff as
supposedly showing that Backpage.com “sanitize[ed] known advertisements for prostitution”
before posting them. Motion at 5.2 When the Sheriff filed his motion with this assertion,
1
Backpage.com incorporates its prior Response (Dkt. 153) by reference here.
2
To the extent Dart again cites the report of the Senate Permanent Subcommittee on
Investigations (“PSI”), Motion at 6-7, now for the fourth time, see Bench Memo at 2-3 (Dkt.
143); Supp. Memo re Motion to Compel at 6-8 (Dkt. 145); Motion to Strike at 3-5 (Dkt. 126) &
Ex. A (Dkt. 126-1), Backpage.com has fully addressed this too, showing that Dart misreads the
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Backpage.com wrote his counsel objecting that this was a mischaracterization belied by
documents produced by the Sheriff’s Office, which show that, in fact, Dart’s investigator
manipulated the posting process to evade Backpage.com’s screening protections and
Backpage.com voluntarily reported the ad to the National Center for Missing and Exploited
Children (“NCMEC”). See Declaration of James C. Grant ¶ 2 & Ex. A (“Grant Decl.”). The
Sheriff’s counsel refused to change or correct their statements to the Court. Id. ¶ 3 & Ex. B.
Documents produced by the Sheriff’s office reflect that the earliest version of the ad
posted by Dart’s investigator was titled: “Red beauty – 18” and the text of the ad read: “Hello
gentlemen, I’m Tracy I just graduated & I’m a lil lonely and bored. I like to play and I’m very
talented & you won’t be disappointed. E-mail me today.” Id. ¶ 4 & Ex. C at CCSO 015236.
Users can edit ads they submit (either before or after an ad posts on the website), and Dart’s
investigator admits he did this shortly after submitting the ad, so that it appeared on the website
with the title “Red beauty 14 – 18” and text that read: “Hello gentlemen, I’m Tracy I just
graduated grade school & I’m a lil lonely and bored.” Id. ¶¶ 5-6 & Ex. D at CCSO 015235 (text
added by Dart’s investigator underscored), id. Ex. E at CCSO 015243 (investigator’s report
stating that he changed the ad to include underage references). Dart’s counsel assert that this
was “the original advertisement that the officer attempted to post (CCSO 015235),” see id.
Ex. B at 3, but that is nonsensical, because this document was generated the day after the original
posting of the “Red beauty – 18” ad. Compare dates at the bottom of Ex. C at CCSO 015236
(dated “5/9/2012”) with Ex. D at CCSO 015235 (“5/10/2012”).
PSI report, disregards that monitoring and editing user content is standard for websites and
encouraged by Section 230, and fails to note that the PSI’s investigation is currently being
addressed in a separate case concerning whether the PSI’s actions also infringe speech rights.
See Backpage.com Response at 10-12; Senate Permanent Subcommittee on Investigations v.
Ferrer, No. 1:16-mc-00621 (D.D.C.).
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Thus, the documentary evidence from Dart’s files reflects that his investigator tried
multiple ways to evade screening and post improper fake ads, see also id. ¶ 7 & Ex. F at CCSO
015237 (reflecting a different ad the investigator submitted entitled “Red head beauty-14”), and
he finally succeeded by editing an ad after his original submission. At the same time, none of the
screen shots show that Backpage.com omitted terms and posted a “scrubbed” version of the ad
on the website to “hide the illegal activity from law enforcement.” Motion at 6. Quite the
contrary – although Sheriff Dart fails to mention it in his motion – Backpage.com voluntarily
reported the ad to NCMEC for referral to appropriate law enforcement agencies, along with
information about the email address and IP address of the poster. Id. ¶ 8 & Ex. G (NCMEC
report and investigation, CCSO 015239-47). NCMEC then expended time and resources
investigating the ad and referred it to the Chicago FBI office and the Cook County State’s
Attorney’s Office. Id. at CCSO 015241, 015246-47. It appears Dart’s Office was embarrassed
about the fake ad and wasted investigative work it caused, because, when the State’s Attorney’s
Office raised concerns about the ad, a sergeant from the Sheriff’s Vice Unit responded that it was
“bogus” and just “[s]omeone goofing around.” Id. ¶ 9 & Ex. H (emails among Dart’s staff and
State’s Attorney’s Office, CCSO 11809-11).
Thus, the evidence concerning Dart’s fake “Red beauty” ad demonstrates that
Backpage.com’s protections worked, despite the investigator’s machinations to evade them. The
evidence also illustrates Backpage.com’s commitment to work with law enforcement. It is
disingenuous, at the least, for Dart to contend now that the circumstances of this ad somehow
show Backpage.com acted to promote illegal activity. Moreover, the Sheriff’s
mischaracterizations about this one ad underscore the absurdity of his contention that he should
be entitled to advance his “illegal conduct exception” defense to try to show that all adult ads on
Backpage.com are unlawful. Setting aside that the First Amendment and Section 230 expressly
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bar this, the Sheriff’s approach would require the Court to conduct mini-trials about ads one-by-
one to address the Sheriff’s accusations and assess whether Dart has misstated the record, as he
has done here. See Backpage.com Response at 12-14.
Dart’s “illegal conduct” affirmative defense is plainly barred under the law, as the
Seventh Circuit has held. 807 F.3d at 231, 234, 238 (rejecting Dart’s claim that “everything in
the adult section of Backpage’s website is criminal,” and holding that Dart’s threats violated the
First Amendment from the time that he made them, regardless of whether they “turn[ed] out to
be empty” (emphasis in original)). The Court should not allow Dart to add a defense that has
already been rejected.
2. Dart’s “Judicial Estoppel” Defense Misunderstands Section 230 and

Protections for Online Publishers.
The Sheriff’s second proposed defense asserts Backpage.com should be estopped from
asserting the obvious fact that it is an online publisher, because it has invoked and successfully
urged courts to apply the immunity protections of Section 230. See Motion at 10-13. Here
again, Dart misstates the law.
Section 230 protects websites such as Backpage.com because they are publishers of
speech.3 Section 230 states that online providers cannot “be treated as the publisher or speaker”
of content provided by users and held liable or responsible for such content. 47 U.S.C.
§ 30(c)(1) (emphasis added). Congress passed the law to override traditional principles of
publisher liability for the Internet, recognizing that “[t]he amount of information communicated
via interactive computer services is … staggering,” “[i]t would be impossible for service
3
Of course, the First Amendment protects parties that publish and distribute speech as well as
those who speak. First Amendment protections would be hollow if the government could censor
bookstores, publishers, and websites on the theory that they are not speakers. See, e.g., Bantam
Books, Inc. v. Sullivan, 372 U.S. 58, 70-71 (1963); Smith v. California, 361 U.S. 147, 153
(1959).
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providers to screen each of their millions of postings for possible problems,” and, if faced with
“[t]he specter of tort liability” for third-party information, that “would have an obvious chilling
effect” and could “severely restrict” Internet content. Zeran v. Am. Online, Inc., 129 F.3d 327,
331 (4th Cir. 1997); see also Batzel v. Smith, 333 F.3d 1018, 1028 (9th Cir. 2003) (by enacting
Section 230, Congress intended to expressly overrule Stratton Oakmont, Inc. v. Prodigy Servs.
Co., 1995 WL 323710, at *4 (N.Y. Sup. Ct. May 24, 1995), which imposed traditional
defamation principles to hold liable an online provider that deleted some but not all offensive
messages).
Dart’s proposed affirmative defense asserting that Backpage.com should be judicially
estopped from asserting it is a publisher because it has invoked Section 230’s protections for
online publishers is absurd.
3. Dart’s Proposed Defense Seeking to Invoke Section 230(c)(2) to Justify

His Prior Restraint Also Contravenes the Law.
Finally, in his third proposed new defense, the Sheriff contends that he is entitled to
invoke Section 230 because he sought to restrict content on Backpage.com that he found
objectionable. See Motion at 14. But the statute’s provisions that encourage and protect
websites for taking voluntary measures to screen content do not grant government officials
immunity to impose a prior restraint to shut down a website altogether. See id.
The Sheriff purports to rely on subsection (c)(2) of Section 230, which provides:
(2) Civil liability. No provider or user of an interactive computer service shall be

held liable on account of—
(A) any action voluntarily taken in good faith to restrict access to or

availability of material that the provider or user considers to be obscene,
lewd, lascivious, filthy, excessively violent, harassing, or otherwise
objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content

providers or others the technical means to restrict access to material
described in paragraph (1).
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47 U.S.C. § 230(c)(2). While subsection 230(c)(1) immunizes websites for publishing third-
party content (and for all actions to monitor, screen or edit such content), subsection (c)(2)
provides that websites cannot be held liable for blocking content. See Batzel, 333 F.3d at 1030
n.14 (subsection 230(c)(2) “insulates service providers from claims premised on the taking down
of a customer’s posting”); e360Insight, LLC v. Comcast Corp., 546 F. Supp. 2d 605, 607 (N.D.
Ill. 2008) (Congress enacted subsection 230(c)(2) to preclude holding service providers liable
“for blocking too much,” as doing so would create a disincentive for them to develop and utilize
blocking and filtering technologies).4
The actions of Sheriff Dart at issue in this case have nothing to do with the protections
for website filtering in subsection 230(c)(2). Dart is obviously not an “interactive computer
service” provider nor did he use any such services to seek to block content online. Dart’s actions
had nothing to do with implementing, providing or using filtering technologies on a website.
Instead, the Sheriff threatened credit card companies to financially cripple and shut down
Backpage.com. It is therefore a non sequitur for Dart to assert “there can be no liability for any
action [he] took in good faith to restrict access to or availability of material that he considers
obscene.” Motion at 14 (emphasis added). According to the Sheriff’s apparent logic, he would
be shielded from liability if he conducted a warrantless search and seizure of Backpage.com’s
offices or, for that matter, if he destroyed all the computers used to run the website, so long as he
contends he was acting in good faith to eliminate speech he found objectionable. Subsection
230(c)(2) provides no such defense.
4
Thus, for example, courts have held websites and other service providers immune under (c)(2)
for claims by parties whose content was blocked by spam filters, see, e.g., Holomaxx Techs. v.
Microsoft Corp., 783 F. Supp. 2d 1097 (N.D. Cal. 2011); e360Insight, 546 F. Supp. 2d at
608-09; and software that identifies and blocks malware, see, e.g., Zango, Inc. v. Kaspersky Lab,
Inc., 568 F.3d 1169 (9th Cir. 2009).
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Such a claim for government immunity under subsection 230(c)(2) was expressly
rejected in Mainstream Loudoun v. Bd. of Trustees of the Loudoun Cnty. Library, 2 F. Supp. 2d
783 (E.D. Va. 1998). In that case, the plaintiffs challenged a library board’s policy of installing
software on library computers ostensibly to block access to materials that could be obscene or
harmful to minors but which also blocked protected speech. Id. at 787. The board claimed its
actions were protected by subsection 230(c)(2). The court disagreed and held that the board’s
argument would contradict the statute and congressional intent:
[A]s its name implies, § 230 was enacted to minimize state regulation of Internet
speech by encouraging private content providers to self-regulate against offensive
material; § 230 was not enacted to insulate government regulation of Internet
speech from judicial review.
Id. at 790 (emphasis in original). Indeed, in a later opinion, the court held the library board’s
policy violated the First Amendment and was an unconstitutional prior restraint. Mainstream
Loudoun v. Bd. of Trustees of the Loudoun Cnty. Library, 24 F. Supp. 2d 552 (E.D. Va. 1998).
Dart misreads subsection 230(c)(2) to suggest a statutory provision can excuse his
constitutional violations. Of course, that is not possible; a federal statute cannot trump the
Constitution. Nothing in subsection 230(c)(2) applies to permit government actions to restrict
speech on websites. And, in any event, the First Amendment would bar any legislative attempt
to immunize official censorship. Dart’s proposed (c)(2) defense is baseless and futile as well.
C. Dart Has Failed to Show Any Good Cause for His Proposed Amendments.
The Sheriff offers no valid justification for his belated effort to add affirmative defenses
now – four months late. He says that he has again hired new counsel, see Motion at 4-5, but that
does not constitute good cause. See, e.g., Joseph T. Ryerson & Son, Inc. v. Plastech Engineered
Prods. Inc., 2003 WL 21145630, at *1 (N.D. Ill. May 13, 2003) (refusing to allow amendment to
assert defense that “has been in play from the very beginning of this lawsuit,” noting “new
counsel are always expected to take a case ‘warts and all’”). He asserts that “[t]he circumstances
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in this case changed after the Seventh Circuit” ruling, and now “the focus” has become whether
Dart “took unlawful government action.” Motion at 4. But, of course, that has been the central
issue in this case from the outset. Dart contends amendment should be allowed now because he
has uncovered new evidence, see id.at 5-6, but that is equally nonsensical, as the “new” evidence
consists of documents from his own files dating back to 2012. See also id. at 11-12 (basing
“judicial estoppel” arguments on Backpage.com briefs in prior cases dating back to 2011, 2012,
and 2013).
Consistent with rulings of the Seventh Circuit and in this court, Dart’s dilatory motion
does not establish good cause under Rule 16(b). See, e.g., Trustmark, 424 F.3d at 553 (affirming
denial of plaintiff’s belated motion for leave to amend because it should have been aware of the
facts underlying the new claim prior to the deadline); Dagens v. Village of Wonder Lake, 2014
WL 4829269, at *1-2 (N.D. Ill. Sept. 29, 2014) (defendants failed to show good cause to add
affirmative defenses nearly three months after deadline for amendment); Mintel Int’l Grp., Ltd. v.
Neergheen, 636 F. Supp. 2d 677, 689-90 (N.D. Ill. April 17, 2009) (no good cause for seeking
amendment two months days after deadline, where spoliation issue that was the basis for the
claim had been contested since outset of case).
III. CONCLUSION
Sheriff Dart’s motion and proposed new defenses are clearly a tactical maneuver to find
some basis to continue his vendetta of attacking Backpage.com in this action so as to avoid focus
on his actions imposing an unconstitutional prior restraint. Dart’s flurry of motions repeating
this theme in different guises has sidetracked this case. Backpage.com urges the focus should
not be on meritless, futile attempts to expand this case but rather on how best to define and
narrow the issues and claims in the case. As an important first step, the Court should deny Dart’s
motion to amend.
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Dated: May 17, 2016.

By: s/ James C. Grant
James C. Grant (admitted pro hac vice)
Ambika K. Doran (admitted pro hac vice)
1201 Third Avenue, Suite 2200
Seattle, WA 98101
Telephone: (206) 622-3150
Robert Corn-Revere (admitted pro hac vice)

Ronald G. London (admitted pro hac vice)
Lisa B. Zycherman (admitted pro hac vice)
1919 Pennsylvania Ave., N.W., Suite 800
Telephone: (202) 973-4200
Charles H.R. Peters

SCHIFF HARDIN
233 South Wacker Drive, Suite 6600
Chicago, IL 60606
Telephone: (312) 258-5500
Attorneys for Plaintiff Backpage.com, LLC
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CERTIFICATE OF SERVICE
I, James C. Grant, Attorney for Plaintiff Backpage.com, LLC, certify that on April 20,
2016 a copy of the foregoing was electronically filed with the Clerk of the Court using the ECF
system which will send notification of such filing to the attorneys of record.
s/ James C. Grant
James C. Grant
12
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Defendants Meme. in Support of Motion To Dismiss

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Case 1:17-cv-11069-LTS Document 32 Filed 08/23/17 Page 1 of 39

UNITED STATES DISTRICT COURT

DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR

Table of Authorities ........................................................................................................................ ii

I. PLAINTIFFS’ CLAIMS ARE BARRED UNDER SECTION 230. ...........................11

A. Backpage Cannot Be Liable as the Publisher of Ads Its Users Post

B. Plaintiffs Cannot Evade Section 230 Through Artful Pleading.......................16

1. Plaintiffs Cannot Evade Section 230 By Alleging That a

2. Plaintiffs’ Reliance on Backpage.com’s Moderation Practices

3. Plaintiffs Cannot Avoid Dismissal Through Reliance on the

II. THE COMPLAINT ALSO FAILS TO STATE ANY CLAIM. .................................27

A.G. ex rel. Maddox v. Elsevier, Inc.,

Almeida v. Amazon.com, Inc.,

Ascentive, LLC v. Opinion Corp.,

Ashcroft v. Free Speech Coalition,

Backpage.com, LLC v. Cooper,

Backpage.com, LLC v. Dart,

Backpage.com, LLC v. Hoffman,

Backpage.com, LLC v. Lynch,

Backpage.com, LLC v. McKenna,

Baker v. Firestone Tire & Rubber Co.,

Bell Atl. Corp. v. Twombly,

Ben Ezra, Weinstein & Co. v. AOL, Inc.,

Bright v. Firestone Tire & Rubber Co.,

Carafano v. Metrosplash.com, Inc.,

Cohen v. Facebook, Inc.,

Davis v. Motiva Enters. L.L.C.,

Doe II v. MySpace Inc.,

Doe v. Backpage.com, LLC,

Doe v. MySpace, Inc.,

e-ventures Worldwide, LLC v. Google, Inc.,

Elonis v. United States,

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

FTC v. Accusearch, Inc.,

Gentry v. eBay, Inc.,

GoDaddy.com, LLC v. Toups,

Goddard v. Google, Inc.,

Google, Inc. v. Hood,

GW Equity LLC v. Xcentric Ventures LLC,

Herrick v. Grindr, LLC,

Hershenow v. Enterprise Rent-A-Car Co. of Boston,

Hiam v. HomeAway.com, Inc.,

Jones v. Dirty World Entm’t Recordings, LLC,

Jones v. Dirty World Entm’t Recordings, LLC,

Kimzey v. Yelp! Inc.,

Kyte v. Philip Morris Inc.,

M.A. v. Village Voice Media Holdings, LLC,

Martins v. 3PD, Inc.,

Mulder v. Kohl’s Dep’t Stores, Inc.,

Murphy v. Cadillac Rubber & Plastics, Inc.,

Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,

Pearce v. E.F. Hutton Grp., Inc.,

Prickett v. InfoUSA, Inc.,

RSA Media, Inc. v. AK Media Grp., Inc.,

S.C. v. Dirty World, LLC,

Sarvis v. Polyvore, Inc.,

Schaefer v. Indymac Mortg. Servs.,

Sell v. Zions First Nation Bank,

Senate Permanent Subcomm. on Investigations v. Ferrer,

Small Justice LLC v. Xcentric Ventures LLC,

Small Justice LLC v. Xcentric Ventures LLC,

United States v. AVX Corp.,