Motogolf.com, LLC v. Top Shelf Golf, LLC, 2:20-cv-00674

Background

Motogolf ran pay-per-click (PPC) ads that stop showing after a threshold of clicks; it alleges Top Shelf Golf, Top Shelf IT, and the Sokoloviches repeatedly clicked Motogolf’s ads to exhaust them and increase Motogolf’s costs.
Motogolf also alleges defendants told Motogolf’s vendors that Motogolf had disrupted Top Shelf’s ads, interfering with vendor relationships.
Original complaint asserted CFAA, Nevada computer-crimes, Lanham Act (false advertising), NDTPA, Nevada RICO, intentional-interference, conspiracy, and aiding/abetting claims; the court previously dismissed several claims with leave to amend.
Amended complaint made only minor changes and added an allegation that Motogolf’s website crashed on October 29, 2019 (two days down; PPC ads off for four days) and that defendants intentionally caused the crash.
The court dismissed the Lanham Act claim with prejudice, dismissed CFAA claims based on clicking ads with prejudice, dismissed CFAA claims based on the alleged website crash without prejudice (granting leave to amend only that CFAA theory), denied reconsideration, and deferred resolution of state-law claims pending the federal-jurisdiction question.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Lanham Act (§ 1125(a)(1)(B)) false advertising	Clicks are a false statement posing as legitimate consumers; §1125(a)(1)(B) lacks a "likely to deceive" element	Clicking is not a commercial advertisement or a statement, not disseminated to the public, and cannot deceive consumers	Dismissed with prejudice; clicks are not commercial advertising or disseminated misrepresentations; plaintiff had chance to amend
CFAA — unauthorized access via clicking ads	Repeated clicking accessed Motogolf’s protected computer without authorization	Accessing publicly available website and ads is authorized (HiQ principle); clicks are not CFAA access	Dismissed with prejudice as to CFAA claims based on clicks; Ninth Circuit precedent forecloses “without authorization” for public website access
CFAA — alleged website crash (Oct 29, 2019)	Defendants intentionally caused the site crash and ad outage	Allegation is conclusory and speculative; no factual nexus shown	Dismissed without prejudice as to crash-based CFAA claim; plaintiff granted leave to amend only if it has plausible factual support
Supplemental jurisdiction over state-law claims	Even if federal claims fail, court should retain jurisdiction over state claims	If no viable federal claim, court should decline supplemental jurisdiction and dismiss state claims	Court declined to decide now; stated it will likely decline supplemental jurisdiction if federal claims are dismissed and thus dismissed state claims without prejudice if no timely amendment
Motion for reconsideration	Motogolf argued the court misread which Lanham subsection applied	Defendants argued motion untimely and unnecessary	Denied as untimely and unnecessary

Key Cases Cited

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading plausibility standard)
Ashcroft v. Iqbal, 556 U.S. 662 (applying Twombly’s plausibility framework)
Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (Rule 9(b) particularity for fraud-based claims)
Skydive Ariz., Inc. v. Quattrocchi, 673 F.3d 1105 (elements of Lanham Act false advertising claim)
Newcal Indus., Inc. v. Ikon Office Solutions, 513 F.3d 1038 (definition of commercial advertisement for Lanham Act)
Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (standing and injury under §1125(a))
HiQ Labs, Inc. v. LinkedIn Corp., 938 F.3d 985 (publicly accessible websites not accessed "without authorization" under CFAA)
LVRC Holdings LLC v. Brekka, 581 F.3d 1127 (elements for §1030(a)(4) CFAA claim)
United States v. Nosal, 676 F.3d 854 (CFAA interpretive context)
Keates v. Koile, 883 F.3d 1228 (conclusory and speculative allegations fail plausibility)
Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981 (dismissal with prejudice after failed amendment is permissible)