Jane Doe v. Mindgeek U.S. Inc.

558 F.Supp.3d 828

Jane DOE, on behalf of herself and all others similarly situated, Plaintiff,

v.MINDGEEK USA INCORPORATED, Mindgeek S.A.R.L., MG Freesites, Ltd., d/b/a Pornhub, MG Freesites II, Ltd., MG Content RT Limited, and 9219-1568 Quebec, Inc. d/b/a Mindgeek, Defendants.

Case No.: SACV 21-00338-CJC(ADSx)

United States District Court, C.D. California, Southern Division.

Signed September 3, 2021

Krysta Kauble Pachman, Davida P. Brook, Emily Kathleen Cronin, Halley Wilder Josephs, Susman Godfrey LLP, Los Angeles, CA, Arun Subramanian, Pro Hac Vice, Tamar E. Lusztig, Pro Hac Vice, Susman Godfrey LLP, Steve M. Cohen, Pro Hac Vice, Pollock Cohen LLP, New York, NY, for Plaintiff.

Benjamin Maxwell Sadun, Dechert LLP, Los Angeles, CA, Kathleen N. Massey, Pro Hac Vice, Dechert LLP, New York, NY, for Defendants.

ORDER DENYING IN SUBSTANTIAL PART DEFENDANTS’ MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT [Dkt. 45]

CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Plaintiff brings this putative class action against Defendants Mindgeek USA Incorporated, Mindgeek S.A.R.L., MG Freesites, LTD, d/b/a Pornhub, MG Freesites II, LTD, MG Content RT Limited, and 9219-1568 Quebec, Inc. d/b/a Mindgeek, alleging that Defendants violated federal sex ¶ 93.) Plaintiff also alleges that public comments on videos openly indicate that some usetrafficking and child pornography laws by knowingly posting, enabling the posting of, and profiting from pornographic videos featuring persons under the age of 18. (Dkt. 42 [First Amended Complaint, hereinafter "FAC"].) Plaintiff also alleges violations of California state laws, including the state's Trafficking Victims Protection Act, "Revenge Pornography" Law, and Unfair Competition Law. (FAC ¶¶ 184–97). Plaintiff also alleges claims for unjust enrichment and intentional infliction of emotional distress. (Id. ¶¶ 198–206.) Now before the Court is Defendants’ motion to dismiss Plaintiff's First Amended Complaint. (Dkt. 45 [hereinafter "Mot."].) For the following reasons, Defendants’ motion is DENIED IN SUBSTANTIAL PART .

II. BACKGROUND

Defendants operate popular pornographic websites, such as Pornhub, RedTube, and YouPorn. (FAC ¶ 38.) In 2019, Defendants’ "flagship" video sharing platform, Pornhub, had roughly 42 billion visits, making Pornhub the eighth most visited website in the United States. (Id. ¶¶ 39–40.) Plaintiff alleges that victims, activist organizations, law enforcement, press reports, and government agencies have all made Defendants aware that child pornography or Child Sexual Exploitation Material ("CSEM"), such as children being raped and assaulted, appear on their platforms. (Id. ¶¶ 106–35.) For example, a recent New York Times piece explained that many videos on Pornhub feature the rape of unconscious girls, with rapists opening the eyelids of the victims and touching their eyeballs to demonstrate that they were unconscious. (Id. ¶¶ 131–34.)

In her FAC, Plaintiff alleges that Defendants encourage this practice. Specifically, Plaintiff alleges that Defendants offer video playlists on their platforms with titles such as "less than 18," "the best collection of young boys," and "under-age." (Id. ¶ 81.) Defendants feature videos tagged with the terms "cp," "no18," "young," and "youngster." (Id. ¶ 87.) In at least one instance, visitors to Defendants’ platforms have publicly commented that a girl depicted in a video on Defendants’ website was "only in ninth grade," but Plaintiff alleges that Defendants chose to advertise the video to receive additional views. (Id. ) Moreover, Plaintiff alleges that when individuals post videos to Pornhub, Defendants direct them on a "How to Succeed" page to use up to 16 tags to describe videos and to select up to eight relevant categories, including ones such as "teen," "school," "babysitter," and "old/young," to make sure the video is visible to the "right" fans. (Id. ¶ 96.) Defendants also instruct users that indicating that a student is a participant in the video "will entice users to click." (Id. ¶ 97.) Defendants suggest and promote search terms to their users, such as "young girls," "middle school girls," "middle school sex," "middle schools," and "middle student." (Id. ¶ 103.) Plaintiff also alleges that searches for terms such as "14yo," "13yo," "girlunder18," and "girl with braces" generate thousands of results on Defendants’ platforms. (Id. ¶¶ 101–02.) Defendants also encourage users to fill out surveys where they may indicate a preference for video categories such as "babysitter," "college," and "school." (Id. ¶ 82.)

While Defendants employ moderators who review each video for approval, Plaintiff alleges that former moderators have admitted that videos depicting "very underage" individuals are approved. (Id. ¶¶ 84, 86.) For example, Defendants gave the "seal of approval" to 58 videos of someone assaulting a 15-year-old. (Id. ¶ 56.) Defendants have also approved videos that use language such as "I'm 14," "middle schooler," "young teen," and "boy." (Id. ¶ 93.) Plaintiff also alleges that public comments on videos openly indicate that some use Defendants’ platforms to seek child pornography, with terms like "cp"—a well-known abbreviation for child pornography—"no18," "young," and "youngster." (Id. ¶ 87, 95.) Comments on Defendants’ platforms also indicate that some use their platforms to trade child pornography with others. (Id. ¶ 95.)

Plaintiff also alleges that Defendants have made efforts to evade revealing the full extent of child pornography on their platforms. Defendants use a virtual private network, accept cryptocurrency, use a Tor site, and allow site visitors to use a private messaging system to discuss or send child pornography so that they may evade law enforcement. (Id. ¶¶ 58–60.) Moreover, Defendants do not employ tools to verify the age of those depicted in videos posted to their platforms. (Id. ¶ 53.) Moreover, Plaintiff alleges that Defendants have publicly acknowledged that implementing age verification tools would be a "disaster" for Defendants’ industry, resulting in a 50% reduction in traffic to their websites. (Id. ¶¶ 2–3, 53, 73, 140.) In her FAC, Plaintiff alleges that the only time Defendants have addressed child pornography on their platforms was after financial partners, such as Mastercard, stopped accepting payments from Pornhub after independently verifying that Defendants had CSEM on their platforms. (Id. ¶¶ 136–38). As a result, Defendants removed millions of videos from their platforms. (Id. ¶¶ 72, 139.)

Plaintiff's FAC also contains allegations that Defendants and child pornographers profit off child pornography. For example, Defendants use their "Modelhub" program to enter into agreements with sex traffickers, featuring videos of trafficked minors in exchange for a part of the proceeds. (Id. ¶ 71.) The Modelhub program requires Pornhub to "verify" users seeking to earn a portion of the advertising revenue that Defendants will earn from the verified users’ videos. (Id. ¶ 48.) Verified users are paid up to 80% of the advertising revenue, depending upon the number of views their video receives. (Id. ¶ 48.) Moreover, Plaintiff alleges that Defendants also earn revenue from child pornography through their fee-based subscription services and by monetizing user data. (Id. ¶¶ 66–70.)

Plaintiff also alleges that Defendants capitalize on the ability of child pornography to drive traffic to their websites. (Id. ¶ 77.) Even when Pornhub has taken down videos depicting child pornography, Defendants have left "the link, title, and tags" to the video on the site to continue to drive users to its platform. (Id. ¶ 78.) In one such instance, a prepubescent victim was anally raped (in a video Defendants featured on their platforms), and the video was only removed after the National Center for Missing and Exploited Children reported it to Defendants. (Id. ) Plaintiff alleges that, although Defendants removed the video, they left the link, title, and tags to the video on their website, so those seeking child pornography would continue to visit Defendants’ platforms. (Id. ¶¶ 77–79.)

Additionally, Plaintiff alleges that Defendants have profited off child pornography depicting her. When Plaintiff Jane Doe was 16 years old, her ex-boyfriend filmed the two of them engaged in sexual intercourse without her knowledge or consent. (Id. ¶ 141.) In December 2019, Plaintiff's ex-boyfriend posted multiple videos of these acts to Defendants’ websites, including Pornhub and RedTube. (Id. ¶ 143.) Plaintiff is visible and identifiable in the videos. (Id. ) Defendants reviewed these videos and approved them for posting, making no efforts to verify Plaintiff's age. (Id. ¶¶ 84, 143.) Defendants uploaded at least one of the videos to RedTube and featured the video on the front page of the website, where it was viewed 30,000 times. (Id. ¶¶ 146–47.) Defendants financially benefitted from advertisements that appeared next to the video and from increased traffic to their platforms. (Id. ¶ 146.) The videos remained on Defendants’ websites for nearly a month before Defendants removed them upon Plaintiff's request. (Id. ¶ 149.) Additionally, Plaintiff alleges that her ex-boyfriend posted more than 500 images and videos on Defendants’ websites and others, victimizing other young women. (Id. ¶ 151.)

III. LEGAL STANDARD

A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of a plaintiff's claims. The issue on a motion to dismiss for failure to state a claim is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to offer evidence to support the claims asserted. Gilligan v. Jamco Dev. Corp. , 108 F.3d 246, 249 (9th Cir. 1997). Rule 12(b)(6) is read in conjunction with Rule 8(a), which requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2).

For a plaintiff to survive a motion...