Tuesday, January 20, 2026
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Ninth Circuit:
No Error in Axing of RNC’s Suit Alleging Gmail Hid Emails
Opinion Says Dismissal With Prejudice Was Proper Due to Standing Issues, Failure to Allege Future Harm as to Republican Group’s Claims That Google Unfairly Targeted Their Messages by Sending Them to Spam
By Kimber Cooley, associate editor
A District Court judge properly dismissed, with prejudice, a lawsuit filed by the Republican National Committee asserting that Silicon Valley-based Google Inc. targeted its end-of-the-month messaging to Gmail users between February and September 2022 in the lead-up to the November midterm elections, diverting the communications to spam folders, the Ninth U.S. Circuit Court of Appeals held Friday.
Friday’s decision comes by way of a memorandum opinion, signed by Circuit Judges Jennifer Sung, Michelle T. Friedland, and Senior Circuit Judge M. Margaret McKeown, affirming a defense judgment entered after District Court Judge Daniel Calabretta of the Eastern District of California ordered all claims dismissed with prejudice. All of the judicial officers are Democrat-appointees.
Declaring that the state-law discrimination claims were doomed by a lack of a “special relationship” in light of the plaintiff not being a Gmail account holder and the fact that imposing “a duty of care would risk deterring beneficial spam filtering activity,” the court held that Calabretta did not err in dismissing under Federal Rule of Civil Procedure 12(b)(6).
Sung, Friedland, and McKeown also found that the group had failed to establish the requisite likelihood of future misconduct needed to underpin its unfair competition-related causes of action,
The RNC filed its complaint on Oct. 21, 2022, asserting six state law causes of action—including violations of California’s Unfair Competition Law, found at Business & Professions Code §17200 et seq., the Unruh Civil Rights Act, as well as negligent and intentional interference with prospective economic relations—and a single federal claim for unlawful discrimination by a “common carrier” under 47 U.S.C. §202.
Allegations in Complaint
In the pleading, filed by the group’s then-attorney Harmeet K. Dhillon, who is now serving as assistant attorney general for the Civil Rights Division of the U.S. Department of Justice under President Donald Trump, the plaintiff asserted:
“Google has relegated millions of RNC emails en masse to potential donors’ and supporters’ spam folders during pivotal points in election fundraising….The timing of Google’s most egregious filtering is particularly damning. For most of each month, nearly all of the RNC’s emails make it into users’ inboxes. At…the end of each month, Google sends to spam nearly all of the RNC’s emails. Critically, and suspiciously, this…period is historically when the RNC’s fundraising is most successful. It doesn’t matter whether the email is about donating, voting, or community outreach. And it doesn’t matter whether the emails are sent to people who requested them. This discrimination has been ongoing for about ten months—despite the RNC’s best efforts to work with Google.”
As to its single claim under U.S. law, which it asserted as the basis for federal jurisdiction, the committee acknowledged that the cause of action “is foreclosed by binding precedent” but said it was “alleging it to preserve the issue for further review or intervening Supreme Court precedent.”
The plaintiff sought declaratory and injunctive relief as well as “actual, statutory, and exemplary damages.”
Motion to Dismiss
In August 2023, Calabretta granted a defense motion to dismiss under Rule 12(b)(6), saying:
“Defendant has moved to dismiss…on the basis that Plaintiff has failed to plausibly allege its claims, and that section 230 of the Communications Decency Act, 47 U.S.C. § 230, compels the case be dismissed….While it is a close case, the Court concludes that…the RNC has not sufficiently pled that Google acted in bad faith in filtering the RNC’s messages into Gmail users’ spam folders, and that doing so was [not] protected by section 230.”
He granted leave to amend only as to the unfair competition and intentional interference with prospective economic relations claims.
In July 2024, he disposed of those claims, asserted in a first amended pleading, as well, saying that, “[d]espite being given leave to amend to establish ‘a plausible theory of unfairness or unlawfulness’ for its UCL claim, and to allege an independently wrongful act to support its intentional interference claim,” the committee has “failed.” He explained:
“Here, the alleged conduct does not rise to the level of being ‘immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.’ While political discrimination may fall under the umbrella of these terms, the Court must…focus on the business practice and the harms to the consumer….Having a small number of wanted emails diverted to spam on occasion is not ‘substantially injurious’ to Gmail users….While the practice did allegedly cause substantial monetary injury to the RNC, the Gmail users were not harmed in a similar way.”
Ninth Circuit’s View
Reviewing the case de novo, Sung, Friedland, and McKeown concluded that the RNC failed to allege a qualifying “special relationship” as required for its claim for negligent interference, saying:
“Several factors weigh against a special relationship. The RNC does not allege that it was a ‘specifically intended beneficiar[y]’ of Google’s transactions with its users….The RNC provides little certainty about the extent of any economic harm or the harm’s connection to Google’s conduct. And imposing a duty of care would risk deterring beneficial spam filtering activity—something that ‘outweigh[s]’ prevention of the limited harms asserted here.”
As to its unlawful discrimination claim under the Unruh Civil Rights Act, they wrote:
“To establish statutory standing in cases involving ‘an online business’ with which ‘the plaintiff did not actually transact,’ the plaintiff ‘must allege’ that it ‘visited the business’s website, encountered discriminatory terms, and intended to make use of the business’s services.’…RNC did not transact with Gmail, does not allege that it intended to sign up for Gmail services or that it encountered discriminatory terms, and does not allege that it was a user or prospective user of Gmail. Accordingly, the RNC cannot establish…standing.”
Continuing Misconduct
Noting that the group requested injunctive relief under California’s Unfair Competition Law, they remarked that “the RNC must plausibly allege ‘a threat of continuing misconduct.’ ” Saying that the committee had not done so, they reasoned:
“[T]he RNC alleges that any email diversion issue ‘stopped’ in October 2022, and it pleads no facts regarding a threat of future misconduct. ‘[U]nder California law,’ the RNC therefore ‘cannot receive an injunction.’ ”
The jurists added:
“Because its other claims fail, the RNC cannot sustain its remaining claim for intentional interference with prospective economic relations. It can point to no ‘independently wrongful act[s]’ proscribed by a ‘determinable legal standard,’ as required for liability to attach.”
Sec. 230 immunity was not addressed in the five-page opinion.
The case is Republican National Committee v. Google Inc., 24-5358.
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