NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MERCOLA.COM, LLC; Dr. JOSEPH 

MERCOLA,

 Plaintiffs - Appellants,

 v.

GOOGLE LLC; YOUTUBE, 

LLC; ALPHABET INC.,

 Defendants - Appellees.

No. 23-2608

D.C. No. 

3:22-cv-05567-LB

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Laurel Beeler, Magistrate Judge, Presiding

Argued and Submitted May 14, 2024 

San Francisco, California

Before: CALLAHAN, and SANCHEZ, Circuit Judges., and KRONSTADT**

Dr. Joseph Mercola and his corporation Mercola.com, LLC (collectively,

“Mercola”) brought this action alleging that YouTube had violated their contract 

(the “Agreement”) by terminating Mercola’s account without prior notice and 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** Honorable John A. Kronstadt, Senior District Judge for the Central 

District of California, sitting by designation.

FILED

MAY 29 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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refusing to allow Mercola access to its videos. The district court granted 

YouTube’s Rule 12(b)(6) motion to dismiss. We affirm.

A complaint must contain factual allegations, which if accepted as true, state 

a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

Determining whether a complaint states a plausible claim is a “context-specific 

task,” id. at 679, and the court is not “bound to accept as true a legal conclusion 

couched as a factual allegation,” id. at 678 (citation omitted). A dismissal for 

failure to state a claim is reviewed de novo. McGinity v. Procter & Gamble Co., 69 

F.4th 1093, 1096 (9th Cir. 2023).

Mercola alleges that the Agreement’s Modification Clause required that 

YouTube provide it “reasonable advance notice” before YouTube terminated its 

account for allegedly violating YouTube’s Community Guidelines. The district 

court held that the Modification Clause did not override other provisions in the 

Agreement that allow YouTube to immediately take down content considered 

harmful to its users and that the Agreement did not give Mercola any right of 

access to the contents of a terminated account. It also found that the Agreement’s 

Limitations on Liability provision foreclosed relief.

Mercola’s interpretation of the Modification Clause is not plausible because 

it (1) is not necessary for the clause to be meaningful, (2) eviscerates other 

provisions of the Agreement that specifically give YouTube the discretion to 
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immediately terminate an account that in YouTube’s opinion violates its 

Community Guidelines, and (3) is inconsistent with the public policy of allowing 

the immediate removal of content that poses serious harm. 

The Modification Clause states that YouTube “may modify this Agreement, 

for example, to reflect changes to our Service or for legal, regulatory or security 

reasons,” and that:

YouTube will provide reasonable advance notice of any material 

modifications to this Agreement and the opportunity to review them, 

except that modifications addressing newly available features of the 

Service or modifications made for legal reasons may be effective 

immediately without notice.

However, the Agreement’s “Removal of Content” section states that if 

YouTube “reasonably believe[s]” that any content “may cause harm to YouTube, 

our users, or third parties,” it “may remove or take down that Content in our 

discretion,” and “will notify you with the reason for our action” unless doing so 

would breach the law, compromise an investigation, or cause harm. Also, the 

Agreement’s “Termination and Suspensions by YouTube for Cause” section states 

that YouTube may “suspend or terminate” an account if “you materially or 

repeatedly breach this Agreement” or if “we believe there has been conduct that 

creates (or could create) liability or harm to any user, other third party, YouTube or 

our Affiliates.” The Agreement further states that YouTube then “will notify you 

with the reason for termination or suspension” unless doing so would violate the 
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law, compromise an investigation, or cause harm.

There is no conflict if the Modification Clause is read to apply to changes in 

services provided by YouTube and the other sections are read to apply to 

suspending or terminating an account because YouTube has determined that its 

content could create a liability or harm others. However, Mercola’s reading of the 

Modification Clause is not reasonable as it would eviscerate the provisions of the 

“Removal of Content” and “Termination and Suspensions by YouTube for Cause” 

sections of the Agreement.

Moreover, to construe the Modification Clause to prohibit the immediate 

termination of an account that causes harm to others would be contrary to 

protecting the public. In September 2021, when YouTube terminated Mercola’s 

account, it was reasonable (even if incorrect) to consider “anti-vaccine” postings to 

be harmful to the public.

On appeal, Mercola limits its request to recovering its video content. While 

the Agreement states that YouTube has no obligation to host or maintain Mercola’s 

account, or to return any data, Mercola asserts that it is entitled to a return of its 

video content as a remedy for YouTube’s failure to provide it with advance notice. 

But as there was no breach of the contract, Mercola is not entitled to any remedy. 

At oral argument Mercola’s counsel conceded, consistent with our reading 

of Mercola’s filings, that all of Mercola’s claims are dependent on Mercola’s 
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interpretation of the Modification Clause. Accordingly, as we reject that 

interpretation, we affirm the district court’s dismissal of Mercola’s claims (a) for 

breach of the implied covenant of good faith and fair dealing, (b) specific 

performance, (c) unjust enrichment, and (d) conversion.

Finally, Mercola has not shown that it is entitled to an opportunity to amend 

to allege unconscionability. It appears that Mercola never asserted 

unconscionability in the district court and thus may have waived the argument. 

See Hillis v. Heineman, 626 F.3d 1014, 1019 (9th Cir. 2010). Moreover, on this 

record the assertion lacks merit. Mercola, an incorporated entity, contracted with 

YouTube for a non-essential service, the language in the contract is not overly 

technical, and it appears that for the most part Mercola received the benefit of its 

bargain.

The district court’s dismissal of Mercola’s First Amended Complaint is 

AFFIRMED.