General Steel v. Chumley - Appellants' Reply Brief

8/20/2019 General Steel v. Chumley - Appellants' Reply Brief

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No. 15-1293

United States Court Of ppeals For The Tenth Circuit

_________________

GENERAL STEEL DOMESTIC SALES, LLC, d/b/a GENERAL STEEL

CORPORATION, a Colorado limited liability company,

Plaintiff-Appellee,

v.

ETHAN DANIEL CHUMLEY, individually; and ATLANTIC BUILDING

SYSTEMS, LLC, a Delaware corporation, d/b/a ARMSTRONG STEEL

CORPORATION,

Defendants-Appellants.

_________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO,CASE NO. 14-cv-01932-REB-CBS

THE HONORABLE JUDGE ROBERT E. BLACKBURN

_________________

APPELLANTS’ REPLY BRIEF

(ORAL ARGUMENT IS REQUESTED)

_________________

David S. Gingras

Gingras Law Office, PLLC4802 E. Ray Road, #23-271

Phoenix, AZ 85044Telephone: 480.264.1400

Facsimile: 480.248.3196Email: [email protected]

Craig R. May

Kenneth E. StalzerWheeler Trigg O’Donnell LLP

370 Seventeenth Street, Suite 4500Denver, CO 80202-5647

Telephone: 303.244.1800Facsimile: 303.244.1879

Email: [email protected]

[email protected] Attorneys for Defendants-Appellants,

Ethan Daniel Chumley and Atlantic Building Systems, LLC

Appellate Case: 15-1293 Document: 01019550590 Date Filed: 01/07/2016 Page: 1



i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................... iii

ARGUMENT .............................................................................................................2

I. THE COURT HAS JURISDICTION ..............................................................2

A. The Order Denying CDA Immunity Is EffectivelyUnreviewable After Final Judgment .....................................................2

1. Denial of Immunity Is Immediately Appealable, Even If

Claims Remain For Trial ............................................................2

2.

The CDA Provides Immunity From Suit ....................................3

3.

The Public Interest In CDA Immunity Is Of The HighestImportance ..................................................................................7

4. The CDA Also Provides Immunity From Liability .................... 8

B. The Denial Of CDA Immunity Resolved An Important IssueSeparate From The Merits Of Plaintiff’s Claims ................................10

C.

The Court’s Order Conclusively Determined The Question Of

CDA Immunity; Defendants Did Not Waive This Immunity .............12

II. PLAINTIFF’S CLAIMS ARE BARRED BY THE CDA ............................13

A.

The CDA Applies To Both State And Federal Claims, Unless

Specifically Exempted .........................................................................14

B. Plaintiff’s Specific Anti-CDA Arguments Are Without Merit ...........15

1. That Defendants Created Some Content On TheirWebpage Does Not Affect CDA Immunity For Other

Content They Did Not Create ...................................................15

2.

General Steel Cannot Defeat CDA Immunity By

Claiming An “Entire Webpage” Is Unlawful ...........................18

3. 47 U.S.C. § 230(c)(1) Does Not Contain A Good FaithRequirement ..............................................................................20




ii

C. Highlighting, Promoting Or Increasing The Visibility Of Negative Content Is Not Development ...............................................23

D.

Defendants Made No Material Changes To Any Of The Twenty

Challenged IRLM Posts ......................................................................25

E. Section 230(c)(1) Applies To False Advertising Claims ....................29

CONCLUSION ........................................................................................................30

CERTIFICATE OF COMPLIANCE .......................................................................32

CERTIFICATE OF DIGITAL SUBMISSION .......................................................33




iii

TABLE OF AUTHORITIES

CASES

Arbogast v. Kan. Dep’t of Labor ,

789 F.3d 1174 (10th Cir. 2015) ..............................................................................2

Argonaut Great Cent. Ins. Co. v. Audrain Cnty. Joint Commc’ns,

781 F.3d 925 (8th Cir. 2015) ..................................................................................3

Ashcroft v. Iqbal,556 U.S. 662 (2009) ...............................................................................................9

Asia Econ. Inst. v. Xcentric Ventures, LLC ,2011 WL 2469822 (C.D. Cal. May 4, 2011) ........................................................25

Aspen Orthopaedics & Sports Med., LLC v. Aspen Valley Hosp. Dist.,

353 F.3d 832 (10th Cir. 2003) ................................................................................5

Backpage.com, LLC v. Cooper ,939 F. Supp. 2d 805 (M.D. Tenn. 2013) ............................................................4, 5

Backpage.com, LLC v. McKenna,

881 F. Supp. 2d 1262 (W.D. Wash. 2012) ...........................................................14

Baldino’s Lock & Key Serv., Inc. v. Google, Inc.,

88 F. Supp. 3d 543 (E.D. Va. 2015),aff’d , 2015 WL 7888322 (4th Cir. Dec. 4, 2015) .................................................15

Barnes v. Yahoo!, Inc.,

570 F.3d 1096 (9th Cir. 2009) ..............................................................................23

Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) ..................................................... 6, 7, 8, 26, 29, 30

Behrens v. Pelletier ,

516 U.S. 299 (1996) .........................................................................................2, 12

Ben Ezra, Weinstein, & Co., Inc. v. Am. Online Inc.,

206 F.3d 980 (10th Cir. 2000) ............................................................... 4, 7, 19, 25

Black v. Google, Inc.,2010 WL 3222147 (N.D. Cal. Aug. 13, 2010) .....................................................15




iv

Blumenthal v. Drudge,992 F. Supp. 44 (D.D.C. 1998) ............................................................................22

Brown v. Gilmore,

278 F.3d 362 (4th Cir. 2002) ..................................................................................4

Carafano v. Metrosplash.com, Inc.,339 F.3d 1119 (9th Cir. 2003) ................................................................................4

Crystal Clear Commc’ns, Inc. v. Sw. Bell Tel. Co.,

415 F.3d 1171 (10th Cir. 2005) ............................................................................11

DC Comics v. Pac. Pictures Corp.,706 F.3d 1009 (9th Cir. 2013) ................................................................................6

de Abadia v. Izquierdo Mora,792 F.2d 1187 (1st Cir. 1986) ................................................................................3

DeVargas v. Mason & Hanger-Silas Mason Co.,

844 F.2d 714 (10th Cir. 1988) ............................................................................2, 3

DiMartini v. Ferrin,889 F.2d 922 (9th Cir. 1989) ..................................................................................3

Dixon v. Richer ,

922 F.2d 1456 (10th Cir. 1991) ..............................................................................9

Doe ex rel. Roe v. Backpage.com, LLC ,

104 F. Supp. 3d 149 (D. Mass. 2015).......................................................... 1, 4, 19

Doe No. 14 v. Internet Brands, Inc.,767 F.3d 894 (9th Cir. 2014) ..............................................................................4, 5

Doe v. Friendfinder Network, Inc.,

540 F. Supp. 2d 288 (D.N.H. 2008) .....................................................................13

Doe v. MySpace, Inc.,528 F.3d 413 (5th Cir. 2008) ................................................................................19

Donato v. Moldow,374 N.J. Super. 475, 865 A.2d 711 (N.J. Sup. Ct. 2005) .....................................22

Dowbenko v. Google Inc.,

582 F. App’x. 801 (11th Cir. 2014) ......................................................................24




v

Energy Automation Sys., Inc. v. Xcentric Ventures, LLC ,2007 WL 1557202 (M.D. Tenn. May 25, 2007) ....................................................5

Estate of Arrington v. Michael,

738 F.3d 599 (3d Cir. 2013) ...................................................................................6

Estate of Kennedy v. Bell Helicopter Textron, Inc.,283 F.3d 1107 (9th Cir. 2002) ................................................................................6

Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC ,

521 F.3d 1157 (9th Cir. 2008) ....................................................... 3, 15, 18, 27, 28

Farmer v. Perrill,275 F.3d 958 (10th Cir. 2001) ................................................................................5

Ford Motor Co. v. GreatDomains.com, Inc.,2001 WL 1176319 (E.D. Mich. Sept. 25, 2001) ..................................................29

Gentry v. eBay, Inc.,

99 Cal. App. 4th 816, 121 Cal. Rptr. 2d 703 (Cal. App. 4th Dist. 2002) .............18

Global Royalties, Ltd. v. Xcentric Ventures, LLC ,544 F. Supp. 2d 929 (D. Ariz. 2008) ....................................................................21

Goddard v. Google,

2008 WL 5245490 (N.D. Cal. Dec. 17, 2008) .....................................................23

Google, Inc. v. Hood ,

96 F. Supp. 3d 584 (S.D. Miss. 2015) ................................................................5, 8

Green v. Brantley,941 F.2d 1146 (11th Cir. 1991) ..............................................................................3

Gucci Am., Inc. v. Hall & Assocs.,

135 F. Supp. 2d 409 (S.D.N.Y. 2001) ..................................................................29

Guffey v. Wyatt ,18 F.3d 869 (10th Cir. 1994) ..................................................................................9

Hain v. Mullin,436 F.3d 1168 (10th Cir. 2006) ..............................................................................7

Heideman v. S. Salt Lake City,

348 F.3d 1182 (10th Cir. 2003) ..............................................................................8




vi

Hill v. StubHub, Inc.,219 N.C. App. 227, 727 S.E.2d 550 (N.C. App. 2012) ........................................19

Hulen v. Yates,

322 F.3d 1229 (10th Cir. 2003) ............................................................................10

Huon v. Breaking Media, LLC ,75 F. Supp. 3d 747 (N.D. Ill. 2014) ............................................................... 24, 26

In re World Trade Ctr. Disaster Site Litig.,

521 F.3d 169 (2d Cir. 2008) .................................................................................11

Johnson v. Fankell,520 U.S. 911 (1997) .............................................................................................10

Jones v. Dirty World Entm’t Recordings, LLC ,755 F.3d 398 (6th Cir. 2014) ............................................................................7, 30

Klayman v. Zuckerberg,

753 F.3d 1354 (D.C. Cir. 2014) .............................................................................4

Levitt v. Yelp!, Inc.,2011 WL 5079526 (N.D. Cal. 2011),

aff’d 765 F.3d 1123 (9th Cir. 2014) .............................................................. 21, 22

M.A. ex rel. P.K. v. Village Voice Holdings, LLC ,

809 F. Supp. 2d 1041 (E.D. Mo. 2011) ................................................................23

McCarthy v. Fuller ,714 F.3d 971 (7th Cir. 2013) ......................................................................... 10, 11

McLaurin v. Morton,

48 F.3d 944 (6th Cir. 1995) ....................................................................................3

Metabolic Research, Inc. v. Ferrell,693 F.3d 795 (9th Cir. 2012) ..................................................................................8

Mitchell v. Forsyth, 472 U.S. 511 (1985) .........................................................................................9, 10

Musso v. Hourigan,

836 F.2d 736 (2d Cir. 1988) ...................................................................................3

Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,591 F.3d 250 (4th Cir. 2009) ..................................................................... 4, 19, 30




vii

Noah v. AOL Time Warner, Inc., 261 F. Supp. 2d 532 (E.D. Va. 2003),

aff’d sub nom., 2004 WL 602711 (4th Cir. Mar. 24, 2004) .............................7, 15

Obado v. Magedson,

612 F. App’x. 90 (3rd Cir. 2015) .........................................................................24

Parker v. Google, Inc.,

422 F. Supp. 2d 492 (E.D. Pa. 2006)....................................................................29

Perfect 10, Inc. v. CCBill, LLC ,340 F. Supp. 2d 1077 (C.D. Cal. 2004) ......................................................... 29, 30

Perfect 10, Inc. v. CCBill, LLC ,

340 F. Supp. 2d 1077 (C.D. Cal. 2004),

affd., 488 F.3d 1102, 1121 (9th

Cir. 2007) ............................................................30

Pullman Constr. Indus., Inc. v. U.S.,23 F.3d 1166 (7th Cir. 1994),

as amended on denial of reh’g (May 19, 1994) .....................................................9

Ricci v. Teamsters Union Local 456 ,781 F.3d 25 (2d Cir. 2015) .....................................................................................4

Roca Labs, Inc. v. Consumer Op. Corp.,

2015 WL 6437786 (M.D. Fla. Oct. 21, 2015) ......................................................13

Schopler v. Bliss,903 F.2d 1373 (11th Cir. 1990) ..............................................................................3

Scott v. Lacy,811 F.2d 1153 (7th Cir. 1987) ................................................................................3

Shiamili v. The Real Estate Grp. of N.Y., Inc.,

952 N.E.2d 1011, 929 N.Y.S.2d 19 (N.Y. 2011) .................................................19

Shrader v. Biddinger ,2012 WL 976032 (D. Colo. 2012),aff’d, 633 F.3d 1235 (10th Cir. 2011) ..................................................................24

Sikhs for Justice “SFJ”, Inc. v. Facebook, Inc.,

2015 WL 7075696 (N.D. Cal. Nov. 13, 2015) .............................................. 15, 27




viii

State Farm Mut. Auto. Ins. Co. v. Duval Imaging, LCC ,411 F. App’x 268 (11th Cir. 2011) .........................................................................6

Woodruff v. Covington,

389 F.3d 1117 (10th Cir. 2004) ............................................................................12

Young v. Lynch,846 F.2d 960 (4th Cir. 1988) ..................................................................................3

Zeran v. Am. Online,

129 F.3d 327 (4th Cir. 1997) .............................................................................7, 26

STATUTES

15 U.S.C. § 1125 ............................................................................................... 15, 29

42 U.S.C. § 2000 ......................................................................................................15

47 U.S.C. § 230 ................................................................................................ passim

RULES

Federal Rule of Civil Procedure 1 ...........................................................................13

OTHER AUTHORITIES

141 Cong. Rec. H8460-01, 1995 WL 460967, August 4, 1995 ................................6

142 Cong. Rec. H1078-03, 1996 WL 37267, January 31, 1996 ...............................6

15A Fed. Prac. & Proc. Juris. § 3911 (2d ed.) ...........................................................6




1

This appeal involves two basic questions. First, does this Court have

jurisdiction to review the denial of CDA immunity under the collateral order

doctrine? Second, does the CDA bar Plaintiff’s claims?

Plaintiff argues the collateral order doctrine only applies to orders denying

immunity from suit. Plaintiff further suggests the CDA provides limited immunity,

not immunity from suit, so the erroneous denial of CDA immunity is not

sufficiently important to justify immediate review.

This position is fundamentally wrong because “immunity under section 230

is not only an affirmative defense, but also the right to be immune from being

sued.” Doe ex rel. Roe v. Backpage.com, LLC , 104 F. Supp. 3d 149, 154 n.4 (D.

Mass. 2015) (emphasis added). The district court’s order denying immunity from

suit fits squarely within the collateral order doctrine.

Plaintiff also suggests CDA immunity is narrow, applying only to “true,

antiseptic ‘republication’ of material found elsewhere on the Internet” (Resp. at

44), and covering only “State law causes of action” (id . at 10). These arguments

are directly contrary to both the plain language of § 230 and the hundreds of cases

interpreting it. Under a correct application of the law, § 230 broadly bars all claims

arising from the republication of third-party content, antiseptic or otherwise. The

district court’s contrary order must be reversed.




2

ARGUMENT

I. THE COURT HAS JURISDICTION

For the collateral order doctrine to apply, “an appellant must establish that

the district court’s order (1) conclusively determined the disputed question,

(2) resolved an important issue completely separate from the merits of the case,

and (3) is effectively unreviewable on appeal from a final judgment.” Arbogast v.

Kan. Dep’t of Labor , 789 F.3d 1174, 1179–80 (10th Cir. 2015) (internal quotation

marks and citation omitted). Because the district court’s order denying CDA

immunity meets these three criteria, this Court has jurisdiction.

A. The Order Denying CDA Immunity Is Effectively Unreviewable

After Final Judgment

1. Denial of Immunity Is Immediately Appealable, Even If Claims

Remain For Trial

Addressing the last point of the test first, Plaintiff argues the collateral order

doctrine cannot apply here because claims would remain to be tried, even if CDA

immunity applies. The Supreme Court has rejected this argument. See Behrens v.

Pelletier , 516 U.S. 299, 311-12 (1996) “[W]hen immunity with respect to those

claims [to which immunity applies] has been finally denied, appeal must be

available, and cannot be foreclosed by the mere addition of other claims to the

suit.” Id . at 312.

A majority of circuits, including the Tenth Circuit, agree with this rule. See

DeVargas v. Mason & Hanger-Silas Mason Co., 844 F.2d 714, 717-18 (10th Cir.




3

1988); Argonaut Great Cent. Ins. Co. v. Audrain Cnty. Joint Commc’ns, 781 F.3d

925, 930 n.6 (8th Cir. 2015); McLaurin v. Morton, 48 F.3d 944, 949-50 (6th Cir.

1995); Green v. Brantley, 941 F.2d 1146, 1147 (11th Cir. 1991)1; DiMartini v.

Ferrin, 889 F.2d 922, 924 (9th Cir. 1989); Musso v. Hourigan, 836 F.2d 736, 742

n.1 (2d Cir. 1988); Young v. Lynch, 846 F.2d 960, 961 (4th Cir. 1988); Scott v.

Lacy, 811 F.2d 1153, 1153 (7th Cir. 1987); de Abadia v. Izquierdo Mora, 792 F.2d

1187, 1189 (1st Cir. 1986).

Jurisdiction under the collateral order doctrine does not depend on whether a

successful immunity claim would dispose of the entire case. Plaintiff’s argument to

the contrary is wrong.

2. The CDA Provides Immunity From Suit

The CDA shields its beneficiaries not only from liability, but also from

litigation itself; “section 230 must be interpreted to protect websites not merely

from ultimate liability, but from having to fight costly and protracted legal battles.”

Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC , 521 F.3d

1157 (9th Cir. 2008). Accordingly, “[I]mmunity under section 230 is not only an

1

General Steel’s only authority on this point is Schopler v. Bliss, 903 F.2d1373, 1376-1378 (11th Cir. 1990). (Resp. at 13-14.) But in that case, the Eleventh

Circuit specifically held that it did have jurisdiction to hear an appeal from thedenial of qualified immunity, even if a claim for injunctive relief would proceed to

trial. Id. at 1378. In any event, the Eleventh Circuit addressed this issue explicitly ayear after Schopler in Green, which held the denial of immunity is appealable,

even if other legal or equitable claims remain for trial.




4

affirmative defense, but also the right to be immune from being sued.” Doe, 104 F.

Supp. 3d at 154 n.4 (citing Carafano v. Metrosplash.com, Inc., 339 F.3d 1119,

1125 (9th Cir. 2003), Klayman v. Zuckerberg, 753 F.3d 1354, 1357 (D.C. Cir.

2014), and Ricci v. Teamsters Union Local 456 , 781 F.3d 25, 28 (2d Cir. 2015));

see also Backpage.com, LLC v. Cooper , 939 F. Supp. 2d 805, 822 (M.D. Tenn.

2013) (rejecting argument that CDA is only affirmative defense and does not

provide immunity from suit). Again, this Court agrees. See Ben Ezra, Weinstein, &

Co., Inc. v. Am. Online Inc., 206 F.3d 980, 983 & n.3 (10th Cir. 2000) (holding

defendant “is immune from suit under § 230” and noting that the law is designed to

remove even the “threat” of lawsuits).

The right to avoid suit is irreparably lost when CDA immunity is denied:

Section 230 immunity, like other forms of immunity, is generally

accorded effect at the first logical point in the litigation process. As

we have often explained in the qualified immunity context, ‘immunityis an immunity from suit rather than a mere defense to liability’ and ‘it

is effectively lost if a case is erroneously permitted to go to trial.’

Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250 (4th Cir. 2009)

(quoting Brown v. Gilmore, 278 F.3d 362, 366 n.2 (4th Cir. 2002)); see also Doe,

104 F. Supp. 3d. at 154 n.4 (same).

Plaintiff argues that CDA immunity is more limited (Resp. at 25-31), citing

Doe No. 14 v. Internet Brands, Inc., 767 F.3d 894 (9th Cir. 2014). Internet Brands

provides no support for Plaintiff’s position; but even if it did, the opinion has been




5

withdrawn and is no longer valid authority. See Internet Brands, 778 F.3d 1095

(9th Cir. 2015) (withdrawing opinion). Plaintiff’s remaining cases are equally

inapposite. None hold that CDA immunity bars liability only or is just a defense.

Plaintiff cites dicta from Energy Automation Sys., Inc. v. Xcentric Ventures,

LLC , 2007 WL 1557202, at *11 (M.D. Tenn. May 25, 2007) for that proposition.

However, that decision concerned only personal jurisdiction, not the question

presented here. More importantly, the same Tennessee district court recently

rejected Plaintiff’s argument. See Backpage, 939 F. Supp. 2d at 826 (rejecting

argument that Energy Automation means “the CDA cannot be asserted in a facial

challenge as immunity from suit because it can be used only as a defense to

liability.”) (internal quotation marks omitted).

Contrary to Plaintiff’s contention, the clear weight of authority shows the

CDA is not merely a defense to liability but provides immunity from suit. See

Google, Inc. v. Hood , 96 F. Supp. 3d 584, 597 (S.D. Miss. 2015) (finding “§ 230

bars the . . . threatened litigation”). Because it offers immunity from suit, the CDA

fits comfortably within the class of other statutory immunities to which the

collateral order doctrine has traditionally been applied. See Farmer v. Perrill, 275

F.3d 958, 961 (10th Cir. 2001) (Federal Tort Claims Act); Aspen Orthopaedics &

Sports Med., LLC v. Aspen Valley Hosp. Dist., 353 F.3d 832, 837 (10th Cir. 2003)

(Colorado Governmental Immunity Act); Estate of Arrington v. Michael, 738 F.3d




6

599, 604 (3d Cir. 2013) (immunity under the Child Safety Lock Act); State Farm

Mut. Auto. Ins. Co. v. Duval Imaging, LCC , 411 F. App’x 268, 269 (11th Cir.

2011) (immunity to receiver); Estate of Kennedy v. Bell Helicopter Textron, Inc.,

283 F.3d 1107, 1110 (9th Cir. 2002) (immunity under General Aviation

Revitalization Act).2

Finally, the language of Section 230 demonstrates Congress’ intent to

provide immunity from both suit and liability. Section 230(e)(2) provides: “No

cause of action may be brought and no liability may be imposed under any State or

local law that is inconsistent with this section” (emphasis added). The language –

“No cause of action may be brought” – was not included when the House first

considered the legislation. See 141 Cong. Rec. H8460-01, 1995 WL 460967,

August 4, 1995. That provision was added later, see 142 Cong. Rec. H1078-03,

1996 WL 37267, January 31, 1996, and it remains in the current language of §

230(e)(2).

This addition shows Congress intended to provide immunity from suit – the

highest form of protection. If Congress intended to provide only immunity from

liability, the phrase “No cause of action may be brought” would be unnecessary.

2 Plaintiff suggests that only governmental immunity is immediately

appealable. However, it is common for the collateral order doctrine to apply to

private persons and corporations. See DC Comics v. Pac. Pictures Corp., 706 F.3d1009, 1015-16 (9th Cir. 2013); Batzel v. Smith, 333 F.3d 1018, 1025 (9th Cir.

2003); see generally 15A Fed. Prac. & Proc. Juris. § 3911 (2d ed.).




7

Plaintiff asks this Court to ignore these seven words in § 230(e)(2). But

statutes may not be construed to render words or phrases meaningless. See, e.g.,

Hain v. Mullin, 436 F.3d 1168, 1171 (10th Cir. 2006). Further, “it is not the role of

the federal courts to second-guess a clearly stated Congressional policy decision.”

Noah v. AOL Time Warner, Inc., 261 F. Supp. 2d 532, 539 n.5 (E.D. Va. 2003)

aff’d sub nom., 2004 WL 602711 (4th Cir. Mar. 24, 2004). Armstrong’s

interpretation of § 230 is consistent with the plain language of the statute and case

law interpreting it. Plaintiff’s position requires this Court to rewrite § 230 and to

disregard clear Congressional intent.

3. The Public Interest In CDA Immunity Is Of The HighestImportance

Plaintiff next argues CDA immunity does not fit within the collateral order

doctrine because there is “no substantial public interest or vitally important issue at

stake.” (Resp. at 17.) Again, Plaintiff is wrong.

“Congress enacted § 230 to promote freedom of speech in the ‘new and

burgeoning Internet medium’ by eliminating the ‘threat [of] tort-based lawsuits’

against interactive services for injury caused by ‘the communications of others.’”

Ben Ezra, 206 F.3d at 985 n.3 (quoting Zeran v. Am. Online, 129 F.3d 327, 330 (4th

Cir. 1997)); accord Jones v. Dirty World Entm’t Recordings, LLC , 755 F.3d 398,

407 (6th Cir. 2014); Batzel, 333 F.3d at 1028 (noting that § 230 “sought to further

First Amendment and e-commerce interests on the Internet”). Courts consistently




8

agree the First Amendment interests protected by the CDA are of such vital

importance that their denial unquestionably qualifies as irreparable harm. See, e.g.,

Google, 96 F. Supp. 3d at 600 (finding CDA protects First Amendment right to

free speech, and “[t]he loss of First Amendment freedoms for even minimal

periods of time constitutes irreparable injury”) (internal quotation marks and

citation omitted); Heideman v. S. Salt Lake City, 348 F.3d 1182, 1190 (10th Cir.

2003) (agreeing the loss of First Amendment freedom constitutes irreparable

injury); see also Batzel, 333 F.3d at 1025.3

Congress provided protections and pronounced the importance of the values

and public interest that CDA immunity seeks to protect. That importance cannot be

denied. See Metabolic Research, Inc. v. Ferrell, 693 F.3d 795, 800 (9th Cir. 2012)

(“A legislatively approved immunity from trial . . . is imbued with a significant

public interest.”)

4. The CDA Also Provides Immunity From Liability

The CDA provides both immunity from suit and liability. Thus, Plaintiff’s

arguments that the CDA provides only immunity from liability (Resp. at 25-31) are

not in tension with the fact that the CDA also provides immunity from suit. Section

230(e)(3) makes clear that no suit may be brought and “no liability may be

3 Plaintiff argues that Armstrong “waived” its First Amendment defense.

(Resp. at 23–24.) But Plaintiff confuses the waiver of a defense with the important public policies behind CDA immunity. Armstrong is simply elaborating on the

latter and is not, in this appeal, asserting the First Amendment as a defense.




9

imposed.” Analogous forms of governmental immunities also provide for both

types of immunity. E.g., Ashcroft v. Iqbal, 556 U.S. 662, 671-72 (2009) (stating

that qualified immunity is both a defense to liability and provides immunity from

suit); Guffey v. Wyatt , 18 F.3d 869, 873 (10th Cir. 1994); Dixon v. Richer , 922 F.2d

1456, 1463 (10th Cir. 1991) (noting that even if a governmental official is not

immune from suit, he can “reassert [his] qualified immunity claims at and after

trial when the factual disputes have been resolved”).4

Immunity from suit is the right not to be tried; immunity from liability is a

defense to liability. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); see also

Pullman Constr. Indus., Inc. v. U.S., 23 F.3d 1166, 1169 (7th Cir. 1994), as

amended on denial of reh’g (May 19, 1994). Yet, immunities often overlap and the

distinction makes no difference. CDA immunity from suit and from liability are

one and the same when CDA immunity is granted on a motion to dismiss or for

summary judgment. These immunities may diverge, however, when there is a

dispute about the facts supporting immunity. Such a dispute does not exist in this

case. The fact that a litigant or a court was imprecise with its description of the

4 It was for this reason that Defendants submitted a proposed CDA jury

instruction. The court had not yet ruled on the summary judgment motion when

Defendants submitted the instruction, and Defendants did not know if the courtwould find an issue of fact as to the application of CDA immunity. That hardly

constitutes a waiver, as Plaintiff contends.




10

immunity in situations where it does not matter does not change that CDA provides

for both kinds of immunity.

B. The Denial Of CDA Immunity Resolved An Important Issue

Separate From The Merits Of Plaintiff’s Claims

Plaintiff argues the determination of CDA immunity is not separate from the

merits of its claims because that determination involved an analysis of the facts as

to whether Armstrong developed the content on the IRLM page, which are relevant

to its substantive claims. (Resp. at 17-19.) This argument is without merit.

The collateral order doctrine requires only “that a claim of immunity is

conceptually distinct from the merits of the plaintiff’s claim,” Mitchell, 472 U.S. at

527, and not “literally ‘completely separate’ from them,” McCarthy v. Fuller , 714

F.3d 971, 976 (7th Cir. 2013). The Supreme Court rejected precisely the argument

that Plaintiff raises here, explaining “that a question of immunity is separate from

the merits of the underlying action for purposes of the [collateral order] test even

though a reviewing court must consider the plaintiff’s factual allegations in

resolving the immunity issue.” Mitchell, 472 U.S. at 528-29. Courts have

repeatedly reaffirmed this. See, e.g., Johnson v. Fankell, 520 U.S. 911, 917 n.5

(1997) (explaining “a question of immunity is separate from the merits of the

underlying action for purposes of the [collateral order] test even though a

reviewing court must consider the plaintiff’s factual allegations in resolving the

immunity issue”); Hulen v. Yates, 322 F.3d 1229, 1235 (10th Cir. 2003);




11

McCarthy, 714 F.3d at 976; In re World Trade Ctr. Disaster Site Litig., 521 F.3d

169, 180 (2d Cir. 2008). Here, while the district court had to consider the facts

regarding what Defendants did in posting content to the IRLM page, that

consideration was based wholly on undisputed facts and was distinct from the

merits of Plaintiff’s substantive claims.

Plaintiff’s authority, Crystal Clear Commc’ns, Inc. v. Sw. Bell Tel. Co., 415

F.3d 1171 (10th Cir. 2005), is not to the contrary. There, the district court, in

deciding whether the primary jurisdiction doctrine required a stay in the action

pending resolution of the claims by the FCC, had to consider the underlying facts

and allegations supporting the claims to determine whether that doctrine applied.

Id. at 1179. The district court had to consider “whether the issues of fact in the

case: (1) are not within the conventional experience of judges; (2) require the

exercise of administrative discretion; or (3) require uniformity and consistency in

the regulation of the business entrusted to a particular agency” to determine

whether the doctrine applied. Id. (emphasis added). This required the district court

“to examine factual and legal issues underlying the dispute.” In this unique

posture, the court found the appellate issues were “not sufficiently separable from

the cause of action to qualify for interlocutory review.” Id. at 1179.

That is nothing like the case here. This Court need not make any factual

determinations, as in Crystal Clear , or to make any determination about the merits




12

of Plaintiff’s underlying claims. This appeal presents purely legal questions based

on undisputed facts (and no facts at all for the Lanham Act claim). Interpreting

CDA immunity as a matter of law is separate from the merits of Plaintiff’s claims

and is appealable under the collateral order doctrine. See Behrens, 516 U.S. at 313.

C. The Court’s Order Conclusively Determined The Question Of

CDA Immunity; Defendants Did Not Waive This Immunity

Plaintiff disingenuously disputes that the district court conclusively

determined the immunity question, but this element is met. See, e.g., Woodruff v.

Covington, 389 F.3d 1117, 1125 & n.8 (10th Cir. 2004).

Plaintiff next argues, citing no authority, that Armstrong waived its CDA

immunity. (Resp. at 19-20.) This is wrong. Armstrong asserted CDA immunity

throughout this entire case and never waived it. As discussed in the opening brief

at 14 & 55 n.9, Armstrong timely filed a motion to dismiss based on CDA

immunity, which was referred to the magistrate judge. After the motion had been

pending for nearly six months, and shortly before the close of discovery and the

dispositive-motion deadline, Armstrong heeded the magistrate judge’s advice to

raise the immunity issue in its summary judgment brief for efficiency’s sake.

Armstrong never waived its CDA immunity, but rather worked cooperatively with




13

the court and within the dictates of Federal Rule of Civil Procedure 1 to raise it in

the most efficient way possible.5

II. PLAINTIFF’S CLAIMS ARE BARRED BY THE CDA

For the 20 challenged statements on the IRLM page, Plaintiff is seeking

millions of dollars in damages. Yet, as the district court already found, all of the

challenged IRLM posts contain “information obtained from the internet and

published by defendants on their website.” Appx. at 759. Although Plaintiff’s brief

falsely states otherwise (see Resp. at 34 n.5), the district court specifically found

that the information contained in each IRLM post originated with a third party, not

Defendants; “[T[he links to third party websites on the IRLM Page are within the

purview of § 230 immunity because the information behind those links was created

or developed by third party information content providers.” Appx. at 759–60.

This holding supports (indeed, requires) a finding of immunity as to the

IRLM posts because, “Section 230 ‘immunity depends on the source of the

information in the allegedly tortious statement, not on the source of the statement

itself.’” Roca Labs, Inc. v. Consumer Op. Corp., 2015 WL 6437786, at *6 (M.D.

Fla. Oct. 21, 2015) (emphasis added) (quoting Doe v. Friendfinder Network, Inc.,

540 F. Supp. 2d 288, 295–96 (D.N.H. 2008)).

5 Plaintiff also criticizes Defendants for using language in filings stating that

the CDA provided immunity from liability. (Resp. at 20-23.) But as noted above,

the CDA provides both kinds of immunities.




14

The question here is not whether the CDA applies to material Defendants

created. Clearly it does not. Instead, the question is whether the CDA applies to

information that the district court has already found Defendants did not create; viz.

the 20 IRLM posts challenged by Plaintiff. As explained below, it does.

A. The CDA Applies To Both State And Federal Claims, Unless

Specifically Exempted

Citing § 230(e)(3), Plaintiff erroneously argues that the CDA applies only to

state-law claims, not federal claims. (Resp. at 25.) This argument fundamentally

misreads the statute because it ignores § 230(c)(1). Plaintiff incorrectly focuses on

§ 230(e)(3) which states:

Nothing in this section shall be construed to prevent any State from

enforcing any State law that is consistent with this section. No causeof action may be brought and no liability may be imposed under any

State or local law that is inconsistent with this section.

This subsection preempts state laws that conflict with the CDA’s broad immunities

set forth in § 230(c); it does not, as Plaintiff suggests, limit the scope of § 230(c).

See, e.g., Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262, 1274–75 (W.D.

Wash. 2012) (rejecting argument “that the CDA was intended only to apply to civil

actions brought under state law ....” and noting § 230(e)(3) means simply that

“Congress has expressly preempted state laws that are ‘inconsistent with’

Section 230.”).




15

The broad language of § 230(c)(1) applies to all claims, state or federal. For

example, in Roommates.com, LLC , the Ninth Circuit held that the CDA applied to

a federal claim brought under the Fair Housing Act. Other courts have applied the

CDA to bar other federal claims. See Sikhs for Justice “SFJ”, Inc. v. Facebook,

Inc., 2015 WL 7075696 (N.D. Cal. Nov. 13, 2015) (CDA applied to claim under

Title II of the Civil Rights Act, 42 U.S.C. § 2000a); Baldino’s Lock & Key Serv.,

Inc. v. Google, Inc., 88 F. Supp. 3d 543, 546 (E.D. Va. 2015) (CDA barred federal

civil racketeering/RICO claims), aff’d , 2015 WL 7888322 (4th Cir. Dec. 4, 2015);

Black v. Google, Inc., 2010 WL 3222147 (N.D. Cal. Aug. 13, 2010) (CDA bars

Lanham Act false advertising claims); Noah, 261 F. Supp. 2d at 539 (“Nor can it

be plausibly argued that § 230 is limited to immunity from state law claims for

negligence or defamation. Such a limitation is flatly contradicted by § 230’s

exclusion of some specific federal claims. Those exclusions would be superfluous

were § 230 immunity applicable only to certain state claims.”). As unanimous

authority has recognized, § 230(c)(1) is not limited only to state law claims.

B.

Plaintiff’s Specific Anti-CDA Arguments Are Without Merit

1. That Defendants Created Some Content On Their Webpage

Does Not Affect CDA Immunity For Other Content They Did Not Create

Plaintiff begins its specific CDA discussion by pointing to an undisputed yet

irrelevant fact—that this case involves some content not on the IRLM page and not




16

created by third parties. For instance, Plaintiff notes that a different page on

Armstrong’s website (not part of the IRLM page) contains a “pop-up box” which is

allegedly disparaging.6

This box was created by Armstrong, and Defendants have never claimed the

CDA applies to it. Plaintiff’s argument regarding the box is a classic red herring.

This appeal focuses on the IRLM page, which is the heart of Plaintiff’s case

below. The fact that a website contains a mixture of content—some material

authored by a third party and some by the website owner itself—does not affect the

CDA’s application to the third-party material.

This point is easily illustrated. Like many websites, the IRLM page contains

a mix of two types of content: 1.) material created by Defendants, and 2.)

information contained in posts copied from third-party sources.

6 The “pop-up” box (which does not mention Plaintiff) is identified in ¶ 35

of the Complaint, Appx. at 31–32 and is included in Ex. 5 thereto at Appx. 117.




17

Content Created By DefendantsInformation Created By Third Parties

(20 IRLM posts)

Armstrong Content & Third Party Content =

Complete IRLM Page






19

challenged IRLM posts), Armstrong is nevertheless responsible for creating the

“entire IRLM page” in a more general sense. (Resp. at 8.)

This argument is irrelevant to the question of whether the CDA applies to

specific content published on the page; “[C]ourts have repeatedly rejected this

‘entire website’ theory as inconsistent with the substance and policy of section

230.” Doe, 104 F. Supp. 3d at 162 (rejecting “entire website” argument because,

“Without the offending [third party content] ... no nexus would exist between

Backpage and the harms suffered by the Doe plaintiffs.”); see also Hill v. StubHub,

Inc., 219 N.C. App. 227, 245, 727 S.E.2d 550 (N.C. App. 2012) (rejecting “entire

website” approach); Nemet Chevrolet , 591 F.3d at 257 (rejecting argument that

“structure and design” of defendant’s website caused loss of CDA immunity).

No matter how creatively Plaintiff seeks to spin the issue, it is still hoping to

hold Armstrong liable for republishing information created by third parties. This

theory is precisely what the CDA prohibits. See, e.g., Shiamili v. The Real Estate

Grp. of N.Y., Inc., 952 N.E.2d 1011, 929 N.Y.S.2d 19 (N.Y. 2011) (finding CDA

applied to negative information selected and republished by competitor, and noting

“Reposting content created and initially posted by a third party is well within ‘a

publisher’s traditional editorial functions’” and is therefore shielded by Section

230(c)(1).”) (citing Ben Ezra, 206 F.3d 980)); see also Doe v. MySpace, Inc., 528

F.3d 413, 419 (5th Cir. 2008).




20

3. 47 U.S.C. § 230(c)(1) Does Not Contain A Good FaithRequirement

In their opening brief, Defendants noted that Plaintiff’s claims arise from

conduct virtually identical to that of search engines such as Google. Specifically, in

creating the IRLM Page, like Google does, Defendants searched for and located

material on third party websites. Like Google, rather than displaying every word of

each source page, Defendants selected and displayed only snippets of text from

each source page. Like Google, Defendants included a link within each IRLM post

directing viewers to the full original source page. Defendants noted that virtually

all courts, including this one, have found such conduct falls squarely within the

CDA’s protection. (See Appellants’ opening brief at 37-39 (citing cases).)

Although this key point is largely dispositive of this appeal, Plaintiff barely

discusses it. To the extent it is mentioned at all, Plaintiff simply notes that unlike

Defendants, who clearly employed some level of intentional editorial discretion,

Google’s process is allegedly based on “the sterile, inhuman product of Google’s

search algorithms” and therefore the “Google algorithm cannot be morally

‘responsible’ for content development.” (Resp. at 40.)

Putting aside the fact that Plaintiff offers no evidence to show how Google

selects which content to display and in what order, Plaintiff’s argument misses the

mark for two other reasons. First, it incorrectly assumes Section 230(c)(1) contains




21

a “good faith” intent requirement wherein the robust protection of the CDA is only

available to those who republish harmful content unintentionally.

This is wrong because unlike the CDA’s other provision, § 230(c)(2) –

which provides a narrower form of immunity for blocking access to offensive

content and which does contain a good faith limitation – “§ 230(c)(1) contains no

explicit exception for impermissible editorial motive .... Nor have cases

interpreting § 230(c)(1) established or suggested an intent-based exception to its

immunity. Indeed, courts have found the immunity applies to conduct that arguably

constitute bad faith.” Levitt v. Yelp!, Inc., 2011 WL 5079526, at *7 (N.D. Cal.

2011), aff’d 765 F.3d 1123 (9th Cir. 2014); see also Global Royalties, Ltd. v.

Xcentric Ventures, LLC , 544 F. Supp. 2d 929, 933 (D. Ariz. 2008) (noting, “Unless

Congress amends the statute, it is legally ... beside the point whether defendants

refuse to remove the material, or how they might use it to their advantage.”).

Second, the application of CDA immunity has always focused on the

defendant’s objective conduct, not his subjective motives. So long as the

defendant’s conduct falls within the scope of traditional editorial functions,

immunity applies regardless of the defendant’s subjective intent:

[T]raditional editorial functions often include subjective judgments

informed by political and financial considerations. Determining what

motives are permissible and what are not could prove problematic.

Indeed, from a policy perspective, permitting litigation and scrutiny[over the defendant’s] motive could result in the ‘death by ten




22

thousand duck-bites’ against which the Ninth Circuit cautioned ininterpreting § 230(c)(1).

Levitt , 2011 WL 5079526, at *8 (internal citation omitted); see also Blumenthal v.

Drudge, 992 F. Supp. 44, 49–52 (D.D.C. 1998) (“Congress has made a different

policy choice by providing immunity even where the interactive service provider

has an active, even aggressive role in making available content prepared by

others.”).

Section 230(c)(1) applies regardless of alleged malice. See Levitt , 2011 WL

5079526, at *7 (rejecting plaintiff’s attempt “to import an intent-based exception

into Section 230, whereby the same conduct that would otherwise be immune

under the statute (editorial decisions such as whether to publish or de-publish a

particular review) would no longer be immune when motivated by an improper

reason ....”); Donato v. Moldow, 374 N.J. Super. 475, 501, 865 A.2d 711, 727 (N.J.

Sup. Ct. 2005) (rejecting intent-based exception to CDA, and holding, “Whether

[defendant] knew and disliked appellants is not relevant to the immunity terms of

§ 230. Selective editing and commenting are activities within the scope of the

traditional publisher’s function. The conclusory allegation that [defendant]

published the defamatory statements with actual malice is not sufficient ....”)

Section 230(c)(1) immunity therefore cannot be denied simply because the

defendant arguably selected content with questionable or even malicious intent.




23

C. Highlighting, Promoting Or Increasing The Visibility Of Negative

Content Is Not Development

Plaintiff provides a literal A-to-Z list of things it claims Mr. Chumley did to

“develop” the IRLM posts, thereby resulting in a loss of immunity. (Resp. at 41-

43.) This list is helpful and the Court should scrutinize it closely because it

underscores the fatal flaws in Plaintiff’s position.

This is so because most of the points identified by Plaintiff – such as the fact

that Defendants use the IRLM page for “remarketing purposes” and that

Armstrong generates business from online advertising – are simply irrelevant to the

application of § 230. See M.A. ex rel. P.K. v. Village Voice Holdings, LLC , 809 F.

Supp. 2d 1041, 1050 (E.D. Mo. 2011) (“[T]he fact that a website elicits online

content for profit is immaterial; the only relevant inquiry is whether the interactive

service provider ‘creates’ or ‘develops’ that content.”) (quoting Goddard v.

Google, 2008 WL 5245490, at *3 (N.D. Cal. Dec. 17, 2008)).

Each remaining point cited by Plaintiff falls within the well-settled

definition of editorial conduct which courts unanimously agree is shielded by

Section 230(c)(1) such as the fact that Mr. Chumley selected which content to

include on the page, and which content to exclude; “Subsection (c)(1), by itself,

shields from liability all publication decisions, whether to edit, to remove, or to

post, with respect to content generated entirely by third parties.” Barnes v. Yahoo!,

Inc., 570 F.3d 1096, 1105 (9th Cir. 2009) (emphasis added).




24

For instance, Plaintiff complains that Defendants chose to look for “old

complaints, pleadings, and orders that otherwise would not have been readily

visible7 by internet users searching for ‘Plaintiff’” and that Defendants thereafter

increased the visibility of this pre-existing content by compiling it into a single

web page and purchasing paid Google ads inviting people to view the IRLM page.

(Resp. at 41.) But, “numerous courts have determined that the CDA applies even

where a website edits third-party content or manipulates such content to make it

more prominent.” Huon v. Breaking Media, LLC , 75 F. Supp. 3d 747, 760 (N.D.

Ill. 2014) (citing Dowbenko v. Google Inc., 582 F. App’x. 801, 805 (11th Cir.

2014) (finding CDA applied despite allegation that Google “manipulated its search

results to prominently feature the article at issue.”)); see also Obado v. Magedson,

612 F. App’x. 90, 93 (3rd Cir. 2015) (CDA immunity applied despite allegation

that “defendants manipulated search engines to maximize search results relating to

the alleged defamatory content ....”); Shrader v. Biddinger , 2012 WL 976032, at *9

(D. Colo. 2012) (holding CDA applied to website owner who “contacted third

parties, directing them to the [defamatory] posting ....”), aff’d, 633 F.3d 1235 (10th

Cir. 2011)); Asia Econ. Inst. v. Xcentric Ventures, LLC , 2011 WL 2469822, at *6

7 As noted above, the district court already found that all of the content

Mr. Chumley used to create the 20 IRLM posts was taken from existing online

sources. See Appx. at 759. Based on this finding, General Steel cannot deny thatall of the derogatory information quoted on the IRLM page was already published

online by third parties.




25

(C.D. Cal. May 4, 2011) (“Increasing the visibility of a statement is not tantamount

to altering its message.”).

Put simply, the list of conduct identified in Plaintiff’s response fails to refute

Defendants’ immunity claim because nothing in this list shows Defendants either

created or materially changed the meaning of any of the third-party information

used on the IRLM page. Absent this, Defendants are entitled to immunity. See Ben

Ezra, 206 F.3d at 987 n.5 (affirming CDA immunity for website operator because

“Plaintiff could not identify any evidence indicating Defendant developed or

created the stock quotation information.”); Asia Econ., 2011 WL 2469822, at *6

(“Absent a changing of the disputed reports’ substantive content that is visible to

consumers, liability cannot be found.”).

D.

Defendants Made No Material Changes To Any Of The Twenty

Challenged IRLM Posts

Plaintiff makes several other bold assertions claiming, “Mr. Chumley cannot

establish beyond dispute that the changes he made to content found on the internet

are not material. In point of fact, the IRLM page ‘snippets’ are surgical extractions

from third party sources. Those extractions always omit text and context, and in

some cases are rewritten outright.” (Resp. at 35.) These arguments are baseless.

First, Plaintiff cites no authority to support its position that immunity may be

denied simply because a defendant selects, edits, reorders, or omits content from a

third-party source without changing the original content’s meaning. This is not




26

surprising given that every court to have considered this same argument has

rejected it; “the exclusion of ‘publisher’ liability necessarily precludes liability for

exercising the usual prerogative of publishers to choose among proffered material

and to edit the material published while retaining its basic form and message.”

Batzel, 333 F.3d at 1301; see also Huon, 75 F. Supp. 3d at 760–61 (explaining,

“the fact that the defendants allegedly engaged in editorial functions such as

determining the order of comments or making edits to them does not transform the

defendants into ‘providers’ of the comments for CDA purposes.”); Zeran, 129 F.3d

at 330.

Second, as noted in Appellants’ opening brief at pages 24–25, Mr. Chumley

has provided a detailed and unrefuted affidavit identifying the location and full text

of the original source material for each challenged IRLM post. Because the

original source pages are all still available in their original form and location, there

is no genuine dispute regarding what information the source pages actually

contain.

Despite this, Plaintiff has failed to identify even a single instance or example

in which the excerpt of text used on the IRLM page was materially different (i.e.,

more damaging) than the source from which it was taken. Again, using IRLM Post

#1 as an example, the district court found “The first paragraph of post 1 is within

§ 230 immunity because that paragraph is, with one inconsequential exception, a




27

complete quotation of information on a third party website, couthousenews.com

[sic].” Appx. at 760.

Nevertheless, the district court found the second paragraph of IRLM Post #1

was not subject to CDA protection because rather than copying the whole source

(the source being a 12-page class action Complaint filed against Plaintiff which

remains publicly accessible here: http://www.courthousenews.com

/2007/12/11/GenSteel.pdf ), Defendants published only an excerpt from the

Complaint accompanied by a link back to the original, complete article.

To be clear—Defendants’ position is that this type of editorial choice

(selecting which content to publish and which to exclude) is always per se

protected by the CDA because it is precisely the type of “publisher conduct” that

Congress intended to shield with § 230(c)(1). See Sikhs for Justice, 2015 WL

7075696, at *6 (CDA immunizes all editorial acts). However, even if CDA

immunity could be lost if a defendant edits third-party content in a way that

materially changes its meaning from innocuous to defamatory (such as by

removing the word “not” from a sentence, as suggested by the Ninth Circuit in

Roommates, see 521 F.3d at 1169), there is no basis for concluding that any such

changes occurred here. If anything, the portion of text used by Mr. Chumley in

Post #1 was clearly less harmful than the full 12-page Complaint.




28

For instance, paragraph 2 of IRLM Post #1 quotes from the underlying

Complaint which accused Plaintiff of being “focused on two overriding goals –

obtain a ‘non-refundable’ deposit from customers and never actually deliver a steel

building to any customer for the price set forth in the contract.” Appx. at 403. This

short allegation was copied verbatim directly from the first page of the Complaint.

See Appx. at 405. The remaining allegations of the Complaint (i.e., the parts not

selected for publication by Mr. Chumley) are not favorable or laudatory towards

Plaintiff. Rather, the omitted portions of the Complaint include additional

allegations of serious wrongdoing, painting Plaintiff in a much worse light than the

limited material selected for IRLM Post #1. By choosing to publish only a small

part of the underlying source, all of which was negative, Defendants did not

“materially contribut[e] to its alleged unlawfulness.” Roommates, 521 F.3d at

1168.

The same is true of all 20 posts at issue here. Plaintiff’s failure to address

any of the posts or cite to any part of the record showing a material change is

telling. Rather than showing Defendants made material alterations to the

underlying content, the undisputed facts show that Defendants simply selected

small excerpts of text which were accurately quoted from each source. This

conduct is per se immunized by Section 230(c)(1); “the exclusion of ‘publisher’

liability necessarily precludes liability for exercising the usual prerogative of




29

publishers to choose among proffered material and to edit the material published

while retaining its basic form and message.” Batzel, 333 F.3d at 1031.

E. Section 230(c)(1) Applies To False Advertising Claims

Plaintiff argues CDA immunity does not apply to federal Lanham Act false

advertising claims. (Resp. at 32-33.) However, with one exception, all of the cases

Plaintiff cites are inapposite because they involved trademark infringement claims,

not false advertising. See, e.g., Parker v. Google, Inc., 422 F. Supp. 2d 492, 503

n.8 (E.D. Pa. 2006) (noting in dicta that trademark infringement claim would fit in

Section 230(e)(2) exception for IP claims); Gucci Am., Inc. v. Hall & Assocs., 135

F. Supp. 2d 409 (S.D.N.Y. 2001) (trademark infringement); Ford Motor Co. v.

GreatDomains.com, Inc., 2001 WL 1176319 (E.D. Mich. Sept. 25, 2001) (same).

The lone remaining case cited by Plaintiff is Perfect 10, Inc. v. CCBill, LLC ,

340 F. Supp. 2d 1077 (C.D. Cal. 2004). Unlike the others, Perfect 10 did, in fact,

involve both a false advertising claim as well as a federal intellectual property

claim (copyright infringement). However, contrary to Plaintiff’s position, the

district court in Perfect 10 held the false advertising claim was barred by the CDA:

“Since false advertising ... does not pertain to intellectual property rights, the Court

finds that the immunity provided under the CDA for Perfect 10’s false advertising

claim is not excluded under § 230(e)(2).” Id. at 1110 (emphasis added). Perfect 10

thus stands for exactly the opposite conclusion asserted by Plaintiff. On appeal, the




30

Ninth Circuit expressly affirmed this part of the district court’s decision. See 488

F.3d 1102, 1121 (9th Cir. 2007) (affirming district court’s finding that CDA bars

false advertising claims).

Beyond its material misrepresentation of Perfect 10, Plaintiff cites no

authority whatsoever to support its position. Accordingly, this Court should find

that false advertising claims are not within the narrow IP-claim carve-out of

§ 230(e)(2) and that CDA immunity bars a federal false advertising claim.

CONCLUSION

Two other federal circuits—the Fourth Circuit in Nemet Chevrolet and the

Sixth Circuit in Jones have indicated that the CDA’s immunity provisions are so

important that an order denying immunity must be immediately appealable. The

Ninth Circuit also reached the same conclusion under closely analogous

circumstances. See Batzel, 333 F.3d at 1025–26 (jurisdiction existed to review

order denying CDA immunity in context of a special motion to strike). This Court

should likewise find the district court’s order denying CDA immunity falls within

the existing boundaries of collateral order jurisdiction.

As to the merits of the CDA, there is no question but that Plaintiff is seeking

to hold Defendants liable for republishing content originally created by third

parties. This is precisely the scenario the CDA was intended to preclude.

Accordingly, the district court’s order denying immunity must be reversed.




31

Dated: January 7, 2016 Respectfully submitted,

s/ Craig R. May

Craig R. May

Kenneth E. StalzerWheeler Trigg O’Donnell LLP

370 Seventeenth Street, Suite 4500Denver, CO 80202-5647

Telephone: 303.244.1800Facsimile: 303.244.1879

Email: [email protected]@wtotrial.com

David S. GingrasGingras Law Office, PLLC4802 E. Ray Road, #23-271

Phoenix, AZ 85044Telephone: 480.264.1400

Facsimile: 480.248.3196Email: [email protected]

Attorneys for Defendants-Appellants,

Ethan Daniel Chumley and Atlantic

Building Systems, LLC




32

CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because:

This brief contains 6999 words, excluding the parts of the briefexempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the typestyle requirements of Fed. R. App. P. 32(a)(6) because:

This brief has been prepared in a proportionally spaced typeface using

Microsoft Word Version 2010 in Times New Roman 14.

By: s/ Craig R. May Craig R. May




33

CERTIFICATE OF DIGITAL SUBMISSION

I hereby certify that with respect to the foregoing:

(1) all required privacy redactions have been made per 10th Cir. R. 25.5;

(2) the hard copies submitted to the Tenth Circuit Court of Appeals are

exact copies of the version being submitted electronically; and

(3) the digital submission has been scanned for viruses with the most

recent version of a commercial virus scanning program, Microsoft

Forefront Version 4.6.305.0, last updated on January 7, 2016, and

according to the program is free of viruses.

s/ Craig R. May

Craig R. May




CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of APPELLANTS’

REPLY BRIEF was served on those listed below via the Tenth Circuit Court of

Appeals’ electronic email system this 7th day of January, 2016, to the following:

Shannon Wells [email protected], [email protected]

Kyle W. Brenton [email protected], [email protected]

Laura Adriana [email protected]

Adam Ross [email protected]

David Samuel Fein

[email protected], [email protected]

Patrick Donald Frye [email protected], [email protected]

David Scott Gingras


Craig Ruvel [email protected], [email protected], [email protected]

Henry L. Solano


Kenneth Edward [email protected], [email protected]

s/ Craig R. May

Craig R. May


Documents

General Steel v. Chumley - Appellants' Reply Brief