Google Stopped Sending RNC’s Emails to Spam After It Got Sued, Says RNC

The Republican National Committee plausibly alleges that Google’s conduct of relegating the RNC’s emails to supporters’ Gmail spam folders violates California’s Unfair Competition Law (UCL), said the RNC’s opposition brief Wednesday (docket 2:22-cv-01904) in U.S. District Court for Eastern California in Sacramento to Google’s Nov. 16 motion to dismiss the group’s first amended complaint.

Political-affiliation discrimination “significantly harms the RNC,” said the brief. By Google’s own “concession,” it has “no legitimate justification for such discrimination,” it said.

Google independently violates the UCL because its conduct “is comparable to violations of other California laws,” said the brief. The company violates tortious-interference law “because it intentionally interfered with the RNC’s relationship with its supporters, relationships Google knew about,” it said. Section 230 of the Communications Decency Act doesn’t “countenance such unlawful discrimination,” it said.

In arguing otherwise, Google “improperly disputes the complaint’s factual allegations and repeatedly ignores that the RNC’s theory of liability need not be the most plausible one,” said the brief. Case law shows that if two alternative explanations are plausible, one advanced by the defendant and the other advanced by plaintiff, the plaintiff’s complaint survives a motion to dismiss under Rule 12(b)(6), it said. The court should reject Google’s attempt to transform 12(b)(6)’s plausibility standard into “a post-discovery, post-trial preponderance-of-the-evidence standard and deny Google’s motion,” it said.

After the RNC sued, Google “voluntarily ceased the mass relegation of RNC emails to subscribers’ spam folders,” said the brief. Since that time, the RNC “has experienced its usual high inboxing rates consistently throughout the year without any en masse diversion to subscribers’ spam folders,” it said. But the RNC “has done nothing materially different,” it said.

If Google’s explanations were legitimate, “then nearly all of the RNC’s emails should have continued to go to spam toward the end of the month,” said the brief. “Yet no en masse diversion occurred then or after,” it said. “The only relevant differences are that the RNC filed this lawsuit and the midterm elections are over,” it said.

The “post-lawsuit, post-election timing” of Google’s cessation of its “mistreatment” of the RNC’s emails promptly after the organization “shined a light” on Google’s conduct “at least plausibly indicates that Google had control over the RNC’s inboxing,” said the brief. It also plausibly shows that the company “was feigning misunderstanding the problem when it knew how to stop relegating the RNC’s email to spam the whole time,” it said: “Google suppressed those emails because it was the RNC sending them.”