8/20/2019 General Steel v. Chumley - Response Brief http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 1/55 i No. 15-1293 IN THE UNITED STATES COURT OF APPEALS 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, et al., Defendants-Appellants. On Appeal from the United States District Court for the District of Colorado in Case No. 14-cv-01932-REB-CBS Judge Robert E. Blackburn PLAINTIFF / APPELLEE’S RESPONSE BRIEFDavid S. Fein Patrick D. Frye Building Services Group, LLC Legal Department 10639 Bradford Road Littleton, CO 80127 720-981-6092 Attorneys for Plaintiff-Appellee Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 1
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8/20/2019 General Steel v. Chumley - Response Brief
I. Appellate Jurisdiction (Defendants’ Argument Section III) ........................... 12
A. The Defendants have only partial immunity at best, and partial immunityis not immediately appealable; the issue is thus not effectively unreviewableabsent immediate appeal. ................................................................................... 12
B. This case does not fit within the collateral order doctrine’s historicallynarrow parameters. ............................................................................................ 14
C.
The putative immunity is not separate from the merits. ...........................17
D. Defendants waived any immunity from suit – i.e., the disputed questionwas not conclusively determined. ...................................................................... 19
E. The CDA provides a defense to liability, not immunity from suit. .......... 25
II.
Lanham Act vs. CDA ...................................................................................... 31
III. The CDA as applied (Defendants’ Argument Section I): Defendants createdand developed content on the IRLM page, and are thus “information content
Ben Ezra, Weinstein & Co. v. America Online Inc., 206 F.3d 980 (10th Cir. 2000) ............................................................................passim
Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n,447 U.S. 557, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980) ......................................... 24
Chicago & North Western Transp. Co. v. Ulery,787 F.2d 1239 (8th Cir. 1986) .................................................................................. 17
ClearCorrect Operating, LLC v. ITC ,
2015 U.S. App. LEXIS 19558 (Fed. Cir. Nov. 10, 2015) .................................. 27, 28Cohen v. Beneficial Ind. Loan Corp.,
337 U.S. 541 (1949) ................................................................................................. 17
Crippa v. Dukakis,905 F.2d 553 (1st Cir. 1990) .................................................................................... 16
Crystal Clear Communc’ns, Inc. v. Sw. Bell Tel. Co.,415 F.3d 1171 (10th Cir. 2005) ................................................................................ 19
Energy Automation Sys., Inc. v. Xcentric Ventures LLC,
2007 U.S. Dist. LEXIS 38452 (M.D. Tenn. May 25, 2007) .............................. 26, 31
Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC ,521 F.3d 1157 (9th Cir. 2008) ............................................................................ 26, 39
Federal Trade Comm’n v. Accusearch Inc.,570 F.3d 1187 (10th Cir. 2009) .........................................................................passim
Ford Motor Co. v. Greatdomains.com, Inc.,2001 U.S. Dist. LEXIS 24780( E.D. Mich. Sept. 25, 2001) .................................... 33
General Steel Domestic Sales, LLC v. Chumley,2015 U.S. App. LEXIS 13356 (10th Cir. July 31, 2015) ........................................... 4
Green v. Brantley,895 F.2d 1387 (11th Cir. 1990). ............................................................................... 14
Gucci Am., Inc. v. Hall & Assocs.,135 F. Supp. 2d 409, 413-15 (S.D.N.Y. 2001) ........................................................ 33
J.S. v. Vill. Voice Media Holdings, LLC ,184 Wn.2d 96 (Wash. 2015) .................................................................................... 27
Jones v. Dirty World Entertainment Recordings, LLC, 755 F.3d 398 (6th Cir. 2014) ............................................................................... 29, 37
Kruska v. Perverted Justice Found., Inc.,2008 U.S. Dist. LEXIS 109347 (D. Ariz. July 8, 2008) .......................................... 31
Levitt v. Yelp! Inc.,
2011 U.S. Dist. LEXIS 99372 (N.D. Cal. Mar. 22, 2011) ................................. 30, 31
Lovell v. One Bancorp,878 F.2d 10 (1st Cir. 1989) ...................................................................................... 17
Martinez v. Hooker ,601 Fed. Appx. 644, 2015 U.S. App. LEXIS 1832 (10th Cir. 2015) ....................... 23
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Midland Asphalt Corp. v. United States,489 U.S. 794 (1989) ........................................................................................... 21, 29
Miller v. Basic Research, LLC ,750 F.3d 1173 (10th Cir. 2014) ................................................................................ 20
Morris v. Noe,672 F.3d 1185 (10th Cir. 2012) ................................................................................ 11
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,591 F.3d 250 (4th Cir. 2009) ..................................................................................... 28
O’Kroley v. Fastcase, Inc., 2014 WL 2197029 (M.D. Tenn. May 27, 2014) ...................................................... 40
Cal Code Civ. Proc. § 425.16(j) ............................................................................... 30
Other Authorities
Phillip E. Areeda and Herbert Hovenkamp, A NTITRUST LAW P 222b (Revised ed.1997) ........................................................................................................................ 16
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• Mr. Chumley created or directed the creation of a website of gay pornography that he falsely attributed to an employee at General Steel.
Although Mr. Chumley contends that a coworker at Olympia who hadno connection with General Steel created this site without anyinvolvement by Mr. Chumley, the Court finds Mr. Chumley’stestimony to be incredible on this point. Id. at 0069.
• Mr. Chumley contributed content to the website generalsteelscam.comand falsely attributed articles he published online to Jeffrey Knight and
Nathan Wright, indicating his commitment to damaging GeneralSteel’s reputation…Mr. Chumley’s activity on the site
[www.generalsteelscam.com] does indicate that Mr. Chumley wascommitted to damaging the reputation of General Steel. Id. at 0093,0076.
• In that case, the Court [] found both literal falsity and intent to deceive. Id. at 0093.
• While working at Olympia Steel after leaving General Steel, Mr.Chumley sent an obscene email to numerous employees at GeneralSteel under a pseudonym intended to mock certain General Steel
employees against whom Mr. Chumley had a grudge. Id. at 0069.
• In his efforts to get Armstrong off the ground, Mr. Chumley engagedin an online advertising campaign through Google AdWords thattargeted General Steel. For example, as of December 22, 2009,Armstrong had the following sponsored advertisement on Google:“General Steel buildings – Steel framed buildings | Armstrong Steel ...Checkout [sic] various Armstrong Steel buildings – Building framesfor your general steel buildings like commercial steel buildings,
industrial steel buildings. www.armstrongsteelbuildings.com/steel-metal-building-frames.php.” Id. at 0070.
• Over the course of 2009 and 2010, Mr. Chumley was involved in theissuance of a number of internet press releases and internet articles thatused false claims to publicize Armstrong’s capabilities. Some of those
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 12
articles contained quotes by a fictional individual named J.P.Remington, III, V.P. of International Affairs for Armstrong Steel. One
such article falsely claimed that Armstrong established an “enrichment program . . . benefit[ting] the less fortunate children of the MiddleEast” by helping to rebuild schools in Iraq. See id. Armstrong alsofalsely claimed that, as of May 2010, it was required to “postponeinternational deliveries by one month to meet rising demand here inthe U.S. for their steel buildings.” Id.
• Upon searching for “general steel” in Google on February 27, 2010, aninternet user would likely have seen Armstrong’s sponsoredadvertisement reading “General Steel Buildingswww.ArmstrongSteelBuildings.com Price Your Building Online OrLet Us Do It. Guaranteed Lowest Prices!” Id. at 0072.
• In June 2010, Armstrong had an advertisement that read “GeneralSteel Buildings Price an Armstrong Steel Building Online in MinutesOr Let Us Do It. www.ArmstrongSteelBuildings.com.” Id.
• As of June 11, 2010, when somebody entered the search term “Generalsteel buildings” into Google, Armstrong had advertisements that read
“Don’t Buy General Steel Without Pricing Armstrong First. Price aSteel Building in Minutes! www.ArmstrongSteelBuildings.com,”“Before You Buy General Price Armstrong Steel First GuaranteedLower Prices! www.ArmstrongSteelBuildings.com,” and “GeneralSteel v Armstrong www.ArmstrongSteelBuildings.com Don’t Buy aGeneral Steel Building without Pricing Armstrong First!” Id. at 0072-0073.
• General Steel commenced [that] lawsuit on June 16, 2010. On July 14,
2010, Mr. Chumley emailed his online marketing consultant that hewished to expand the “General Steel” advertising campaign to thesearch engines Bing and Yahoo because defendants were “in litigationover it” and “may as well maximize.” Id. at 0073.
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• Mr. Chumley’s 2010 email instructing an online marketing consultantto “maximize” the use of General Steel’s name because Armstrong
was in litigation was indicative of Armstrong’s determination to targetGeneral Steel. Id. at 0093.
• Sometime later that same summer, the search engine companies toldArmstrong to stop using “General Steel” in its advertising copy. Id. at0073.
• In August 2010, Armstrong began directing visitors to its home pageto a webpage entitled “May the Best Building Win.” A visitor to the
page then saw General Steel’s corporate logo on the left withArmstrong’s corporate logo on the right. Id.
• Mr. Chumley was responsible for creating a website entitledgeneralsteelscam.com. The website was intended, and likely wasunderstood, to be directed at plaintiff. (“General Steel Scam is aworldwide online consumer reporting Web site and publication thatallows customers who have been ripped off by General Steel to fileand document complaints about General Steel Buildings, Anthem SteelBuildings, Discount Steel Buildings, Capital Steel Buildings and CEOs
Jeff Knight and Nathan Wright.”) Id. at 0081-0082.
• Mr. Chumley falsely attributed articles he published online to JeffreyKnight and Nathan Wright, indicating his commitment to damagingGeneral Steel’s reputation. Id. at 0093.
• Armstrong was not only asked by General Steel, but required by themajor search engines, to stop using General Steel’s name in itsadvertising. Nonetheless, Armstrong issued new advertisements
falsely comparing itself to General Steel and falsely stating that it provides “general steel” buildings. Id. at 0101-0102.
• It continued to disseminate these false advertisements even afterGeneral Steel brought an administrative claim before the World
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Intellectual Property Organization and after the close of discovery inthis case, showing that enforcement proceedings are not sufficient to
deter Armstrong from disseminating false advertising. Armstrong’s pattern of willful deception betrays a conscious desire to benefit fromfalse statements. Id. at 0102.
Thus, the dispute between these parties is far more longstanding, and pernicious,
than Defendants’ Statement of the Case antiseptically portrays it.
Apart from its omission of context, Defendants’ Statement of the Case is
wrong when it says that “The material content on the IRLM page was all copied
from third-party internet sites – Defendants did not create any of it.” Defendants
thus misdirect this Court, because this case involves content that is indisputably
Defendants’ original creation. Defendants’ appeal considers only the case
“snippets” – but apart from those, all of the content at issue in the case is
Defendants’ original authorship. Defendants created an entire webpage, entitled
“Industry Related Legal Matters” – a wolf-in-sheep’s-clothing label portraying the
page as operated by official industry watchdogs. Appellants’ App. at 0286.
Despite its putatively objective label, the page focuses upon General Steel legal
matters. Beyond the page itself, there is a pop-up box on Defendants’ site. Id. at
0281-0284. Beyond Defendants’ website, there are Internet ads linking to the page
that were Defendants’ exclusive creations. Id. at 0266-0280. Those ads are alleged
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Last, on the issue of CDA immunity as applied here, the parties agree that
FTC v. Accusearch, 570 F.3d 1187 (10th
Cir. 2009), is the central precedent in this
Circuit. The parties differ, however, about how Accusearch should be interpreted,
and how it interfaces with these facts. The parties even differ as to what the facts
are. Defendants would have this Court believe that Defendants simply linked to or
cut-and-pasted other Internet content. But in the District Court, no one disputed
that Defendants have done far more.
STANDARD OF REVIEW
Assuming, arguendo, that Defendants’ CDA defense to liability provided
jurisdiction under the collateral order doctrine, the standard of review in a matter
involving qualified immunity is set forth in Morris v. Noe, 672 F.3d 1185 (10th Cir.
2012):
Because our jurisdiction is limited, we take, as given, the facts that thedistrict court assumed when it denied summary judgment. We mayreview whether the set of facts identified by the district court issufficient to establish a violation of a clearly established constitutionalright, but we may not consider whether the district court correctlyidentified the set of facts that the summary judgment record is
sufficient to prove…. Within this limited jurisdiction, we review denovo the district court's denial of a summary judgment motionasserting qualified immunity.
Id. at 1188-1189.
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compare Ben Ezra, Weinstein, & Co. v. America Online, Inc., 206 F.3d 980, 984
(10th Cir. 2000):
Plaintiff argues Defendant is not immune from suit under 47 U.S.C. §230 because Defendant acts as both an interactive computer serviceand an information content provider by participating in the creationand development of the stock quotation information. The district court,however, concluded that Defendant qualified for statutory immunity
pursuant to § 230. First, the district court noted that Plaintiff did notdispute that Defendant was an "interactive computer service" asdefined by § 230. Further, the district court found no evidence in therecord that Defendant provided any of the stock quote information atissue.
Defendants cannot clothe clearly non-immune conduct within a cloak of immunity
that reaches only so far at best.
Defendants’ own papers admit that not all of Plaintiff’s case is embraced by
their immunity claim. After noticing this appeal, they moved the District Court to
stay the case and vacate the trial date, writing that “A stay is warranted because the
notice of appeal has divested this Court of jurisdiction regarding those aspects of
the appeal, which are a majority of the case.” A majority of the case is not all of the
case. Whatever is not inside Defendants’ self-styled “majority” of the case will
have to be tried.
Consistent with that practical reality, authority holds that claims of partial
immunity are not immediately appealable. Schopler v. Bliss, 903 F.2d 1373, 1376-
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cautioned against expansion of the collateral order doctrine. See United States v.
Wampler , 624 F.3d 1330, 1334 (10th Cir. 2010) ("In case after case in year after
year, the Supreme Court has issued increasingly emphatic instructions that the class
of cases capable of satisfying this 'stringent' test should be understood as 'small,'
'modest,' and 'narrow.'")).
The private parties-Defendant here certainly do not have an interest sufficient
to warrant expansion of the collateral order doctrine.1
1See also Acoustic Sys. v. Wenger Corp., 207 F.3d 287, 293-294 (5th Cir. 2000)
(Wenger's status as a private defendant does not implicate these concerns. TheParker v. Brown state action doctrine, like the doctrine of qualified immunity, is"interpreted to create an immunity from suit and not just from judgment -- to sparestate officials the burdens and uncertainties of the litigation itself as well as the costof an adverse judgment." Segni v. Commercial Office of Spain, 816 F.2d 344, 346(7th Cir. 1987) (citing Commuter Transp. Systems, Inc., 801 F.2d at 1289-90); seealso 1 Phillip E. Areeda and Herbert Hovenkamp, A NTITRUST LAW P 222b (Reviseded. 1997) ("The importance of Parker's status as an immunity is particularly strongwhen the defendant is a government agency, subdivision, or government officialcarrying out duties. Such entities and officials cannot be intimidated from carryingout their regulatory obligations by threats of costly litigation, even if they mightultimately win."). These concerns are not raised by a suit against a private party.Cf. Wyatt v. Cole, 504 U.S. 158, 167-68, 118 L. Ed. 2d 504, 112 S. Ct. 1827 (1992)(private defendants may not invoke qualified immunity when charged with 42.
U.S.C. § 1983 liability for invoking state replevin, garnishment, or attachmentstatutes later determined to be unconstitutional); Rambo v. Daley, 68 F.3d 203,206 (7th Cir. 1995), ("Mitchell permits interlocutory appeals only where thedefendant is a public official asserting a defense of qualified immunity."); Crippa
v. Dukakis, 905 F.2d 553, 556 (1st Cir. 1990) (a qualified immunity claimant's rightto interlocutory appeal is available only to government officials and conceivably
Under Tenth Circuit
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precedent, expansion of the collateral order doctrine has been very limited.
Defendants now seek to run against this grain, asking this Court to expand the
scope of the collateral order doctrine greatly by applying it to a malicious private
commercial advertising scheme designed to harm a competitor. They ask for no
less than a new category of appealable collateral order.
But there is no substantial public interest or vitally important issue at stake
here – just the interests of a malicious, albeit creative, individual and his wholly-
owned company. There is no public or private interest at stake warranting anything
other than dismissal of this appeal.
C. The putative immunity is not separate from the merits.
Defendants also argue that the facts around their putative immunity are
separate from, and thus collateral to, “the court’s immunity determination [which]
turned on the legal interpretation of the word ‘development.” In terms of the Cohen
their functional equivalent); Lovell v. One Bancorp, 878 F.2d 10, 13 (1st Cir.1989)(private defendant may not immediately appeal the denial of a motion to
dismiss asserting qualified immunity); Youghiogheny & Ohio Coal Co. v. Baker ,815 F.2d 422, 425 (6th Cir. 1987) (an entitlement not to be sued under Mitchell v.Forsyth is not available to private parties); Chicago & North Western Transp. Co. v.
Ulery, 787 F.2d 1239, 1240-41 (8th Cir. 1986) (the denial of a private defendant'smotion for summary judgment asserting qualified immunity in not an appealablecollateral order)).
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The Scheduling Order was entered in the District Court case on 10/6/14, in which
Defendants similarly stated:
These articles are available on third-party websites, which Armstronghad no role in the creation of. Regardless of whether content of thesethird-party articles is false or misleading, the CommunicationsDecency Act, 47 U.S.C. §230 (the “CDA”), immunizes ArmstrongSteel against liability based on this third party content. The CDAimmunizes website operators against liability arising from content
created by third parties, even when the website operator tookaffirmative steps to select and edit that content.
The Supreme Court has cautioned that “[o]ne must be careful, however, not to play
word games with the concept of a ‘right not to be tried.’” Midland Asphalt Corp. v.
U.S., 489 U.S. 794, 801 (1989). As more fully discussed below, “immunity from
suit” and “immunity from liability” are two distinct concepts. Defendants’ papers,
on the other hand, would have this Court treat them as synonyms. Defendants
attempt not merely word games, but word metamorphosis.
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republish content on the internet that is created by someone else. 47 U.S.C. §
230(c)(1).” Appellee’s App. at 53. Their full CDA jury instruction is found at
Appellee’s App. at 71-72.
Finally, Defendants try to shelter their advertising campaign within freedom
of speech. Defendants argue that denying CDA immunity from suit is a “vitally
important issue” (Def. Brief at 54: “nothing less than the chilling of First
Amendment freedom of speech on the internet is at issue.”) But the District Court
found that Defendants waived their First Amendment defense. Appellants’ App. at
0767.2
2 The District Court held that “The defendants contend the pure opinion doctrine
precludes General Steel from making a claim based on expressions of opinion in theinternet search ads of the defendants. In the view of the defendants, its statementswarning consumers to “look out” are non-actionable expressions of opinion. Anexpression of harsh judgment with a link to source material is, in the view of thedefendants, a statement of opinion and not fact. The defendants claim that such
statements of opinion are protected by the First Amendment. The plaintiff contendsthe defendants have waived or forfeited a defense based on the First Amendment.The defendants did not plead such a defense in their answer [#57]. No such defenseis included in the Final Pretrial Order [#173]. Given these circumstances, I concludethat the defendants have waived or forfeited a defense based on the FirstAmendment.”
See Martinez v. Hooker , 601 Fed. Appx. 644, 648, 2015 U.S. App. LEXIS
1832, *7-8 (10th Cir. 2015) (When an issue has not been properly raised below, 'to
preserve the integrity of the appellate structure, we should not be considered a
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No provider or user of an interactive computer service shall be held liable on account of—
(A) any action voluntarily taken in good faith to restrict access to oravailability of material that the provider or user considers to be obscene,lewd, lascivious, filthy, excessively violent, harassing, or otherwiseobjectionable, whether or not such material is constitutionally protected; or(B) any action taken to enable or make available to information content
providers or others the technical means to restrict access to materialdescribed in paragraph (1).
47 U.S.C. § 230.
Consistently, this Court has referred to the CDA as immunity from liability. FTC v.
Accusearch, Inc., 570 F.3d 1187, 1198 (10th Cir. 2009) (The meaning of
responsible becomes an issue under the CDA when a court is considering whether
CDA immunity from liability is unavailable because one is “responsible, in whole
or in part, for the creation or development of information” that is the source of the
liability.) Other courts have also held that the CDA creates immunity from liability,
not suit. Energy Automation Sys., Inc. v. Xcentric Ventures LLC, No. 3:06-1079,
2007 U.S.Dist. LEXIS 38452 at * 40-41 (M.D. Tenn. May 25, 2007) (Although
courts speak in terms of “immunity” . . . this does not mean that the CDA has
created an “immunity from suit” ….Whether or not that defense applies in any
particular case is a question that goes to the merits of that case, and not to the
question of jurisdiction.); Perkins v. LinkedIn Corp., 53 F. Supp. 3d 1222, 1246-
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The dissent misreads this statute to provide “immunity” to “‘interactiveservice providers.’” This reading is irreconcilable with the actuallanguage of the statute, which does not include the term or anysynonym of “immunity.” Subsection 230(c)(1) instead provides anarrower protection from liability: the plain language of the statutecreates a defense when there is (1) a provider or user of an interactive
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computer service (2) whom a plaintiff seeks to treat, under a state lawcause of action, as a publisher or speaker of information (3) that is
provided by another information content provider….It is the languageof the statute that defines and enacts the concerns and aims ofCongress; a particular concern does not rewrite the language.” Barnes,570 F.3d at 1105. I would hold that subsection 230(c)(1) creates adefense to, not an immunity from, liability arising from a cause ofaction that would treat the web host as a publisher or speaker.
Obado v. Magedson, 612 Fed. Appx. 90, 94 (3d Cir. 2015) (the CDA is meant to
shield interactive computer service providers from liability); ClearCorrect
Operating, LLC v. ITC , 2015 U.S. App. LEXIS 19558, *49 (Fed. Cir. Nov. 10,
2015) (“Indeed, Congress has enacted laws and debated bills whose intent is to
balance an interest in open access to the Internet and the need to regulate potential
abusers. See, e.g., Communications Decency Act of 1996, 47 U.S.C. § 230(b)(1),
(c)(1) (2012) (statute enacting immunity from liability for Internet service providers
in order to "promote the continued development of the Internet and other interactive
computer services and other interactive media”)”).
Defendants’ flagship authorities include Ben Ezra, Weinstein, & Co. v.
America Online, Inc., 206 F.3d 980, 984-985 (10th Cir. 2000), but that case holds
that 47 U.S.C. § 230 creates a federal immunity to a State law cause of action that
would hold computer service providers liable for information originating with a
third party. Id. They also cite Zeran v. America Online, Inc., 129 F.3d 327 (4th
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As they must, Defendants concede that in Jones, the Sixth Circuit rejected
collateral order doctrine jurisdiction.
Jones v. Dirty World Entertainment Recordings, LLC, 755 F.3d 398
(6th
Cir. 2014), and Ninth Circuit cases including Batzel v. Smith, 333 F.3d 1018
(9th Cir. 2003). But these authorities do not support interlocutory jurisdiction in the
Tenth Circuit.
4
3 Appellants also cite Zeran’s intra-Circuit offspring, Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250 (4th Cir. 2009). But notably, the FourthCircuit has also recognized that “Immunity [from suit] … derives from‘an explicit statutory or constitutional guarantee that trial will not occur.’” Suhail
Najim Abdullah Al Shimari v. CACI Int'l, Inc., 679 F.3d 205, 217 (4th Cir.2012) (citing Midland Asphalt Corp. v. United States, 489 U.S. 794, 801 (1989)).
Appellate jurisdiction in Batzel was
premised not on the CDA, but instead on the California state anti-SLAPP statutory
scheme. The Batzel court relied on Cal Code Civ. Proc. § 425.16(j), under which
4 Appellants propose that the Sixth Circuit has eaten crow about that jurisdictionaldecision. Appellants specifically point to a phrase “an even earlier interlocutoryappeal,” as compared with “the interlocutory appeal sought by appellants” at somelater time. But here again, Appellants make clever use of omission. Beforereaching the Sixth Circuit, the case went all the way to and through closing
arguments. The “interlocutory appeal sought by appellants” followed a mistrial,declared only after submission of the case to the jury for deliberation. Jones, 755F.3d at 405.
Thus, while Appellants propose that “an even earlier interlocutory appeal”must mean an appeal jurisdictionally premised upon the collateral order doctrine,Appellees propose that “earlier” just means “earlier.”
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denial of an anti-SLAPP motion is immediately appealable. Batzel, 333 F.3d at
1024. And in later authority, the Ninth Circuit has rejected the extrapolation from
Batzel Appellants now suggest:
But such a broad policy argument does not persuade us that the CDAshould bar [a] failure to warn claim. We have already held that theCDA does not declare a general immunity from liability deriving fromthird-party content." Congress has not provided an all purpose get-out-of-jail-free card for businesses that publish user content on theinternet, though any claims might have a marginal chilling effect oninternet publishing businesses.
Doe v. Internet Brands, Inc., 767 F.3d 894, 898-899 (9th Cir. 2014); accord Levitt
v. Yelp! Inc., 2011 U.S. Dist. LEXIS 99372, *22-23 (N.D. Cal. Mar. 22, 2011).
Last, Appellants cite Zeran not for the proposition that the CDA provides immunity
from suit, but instead for the proposition that it provides a protection against
ultimate liability.
The bulk of authority addressing CDA “immunity” has held that it is a shield
against liability, not an immunity from suit—including the Tenth Circuit. In this
Circuit,
The meaning of responsible becomes an issue under the CDA when acourt is considering whether CDA immunity from liability isunavailable because one is “responsible, in whole or in part, for thecreation or development of information” that is the source ofthe liability.
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230 creates a federal immunity to any state law cause of action ….”) (exercising
appellate jurisdiction under 28 U.S.C. § 1291). The Sixth Circuit’s district courts
have held likewise, despite Appellants’ extrapolations from Dirty World:
Although courts speak in terms of 'immunity' . . . this does not meanthat the CDA has created an 'immunity from suit' …. Whether or notthat defense applies in any particular case is a question that goes to themerits of that case, and not to the question of jurisdiction.
Energy Automation Sys., Inc. v. Xcentric Ventures LLC, No. 3:06-1079, 2007 U.S.
Dist. LEXIS 38452 at *40-41 (M.D. Tenn. May 25, 2007). The Ninth Circuit has
also followed this analysis. Doe, 767 F.3d at 898-899; Levitt v. Yelp! Inc., 2011
U.S. Dist. LEXIS 99372, *22-23 (N.D. Cal. Mar. 22, 2011).
II. Lanham Act vs. CDA
Defendants’ Lanham Act argument merits only brief discussion. Their
flagship case, Kruska v. Perverted Justice Found., Inc., 2008 U.S. Dist. LEXIS
109347 (D. Ariz. July 8, 2008), did not involve a plaintiff asserting a Lanham Act
claim. Instead, the District of Arizona was discussing a blanket challenge to the
CDA as applied to state-law claims, in which the Lanham Act was used as a lever to
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are neither facts nor undisputed. (The source for these “undisputed” “facts” is the
“detailed” Affidavit of party-defendant Ethan Chumley.)
In “fact” 3, Defendants (through Mr. Chumley) propose that they “did not
create the disputed content.” But the “disputed content” encompasses far more
than what “third parties created and published on the Internet,” contrary to the Brief
and Mr. Chumley’s affidavit.5
“Undisputed fact” 4 depends on “undisputed fact” 3. Number 3 proposes that
If Defendants’ publications involved only links to,
or copies of, third-party-created text on the Internet, this case might be different
than it is. But Plaintiff’s claims are premised on more than that. Plaintiff’s claims
involve not only third-party Internet pages and third-party-authored text, but also
Internet banner advertising that was wholly Defendants’ creation and text on the
IRLM page that is indisputably Defendants’ creation (including, for example, the
page’s very title, which was not copied from anywhere). There is also a pop-up box
appearing on Defendants’ website that is indisputably originally-created content.
5 On page 18, the Brief proposes that “Here, the court recognized that all of the
challenged material on the IRLM page was in fact republished from third-partysources.” The District Court recognized no such thing.
In a similar vein, the Brief elaborates upon putatively-undisputed fact 3 beginning on its page 24. It also proposes that “Plaintiff offered no evidence torebut any of these points.” But to the contrary, Plaintiff offered much suchevidence, as this filing describes in detail.
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partially created or developed the content, there is no CDA immunity. Id. at 1197.
The court in Accusearch found no CDA immunity for the defendant on this basis.
Under Accusearch, the term “information content provider” is broadly defined. Id.
at 1198.
In Accusearch, the Tenth Circuit found that the defendant was responsible for
developing content where it had researchers locate confidential telephone records
and republish such third-party records. Accusearch, 570 F.3d at 1198-1200. In
regard to “developing” the content, the court found that the defendant made visible
material that was otherwise not readily visible. Id. at 1198. The court held in
relevant part that “to be "responsible" for the development of offensive content, one
must be more than a neutral conduit for that content. That is, one is not
"responsible" for the development of offensive content if one's conduct was neutral
with respect to the offensiveness of the content (as would be the case with the
typical Internet bulletin board).” Id. at 1199. The Tenth Circuit held further that:
This construction of the term responsible comports with the clear purpose of the CDA--to encourage Internet services that increase the
flow of information by protecting them from liability whenindependent persons negligently or intentionally use those
services to supply harmful content. See 47 U.S.C. § 230(a), (b).We therefore conclude that a service provider is "responsible" forthe development of offensive content only if it in some wayspecifically encourages development of what is offensive about the
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Accusearch, 570 F.3d at 1199-1200 (italics in original) (emphasis added).6
Defendants attempt to render Accusearch inapplicable to this case by calling
relevant parts of the opinion “dicta.” Specifically, they propose that the court’s
discussion of “responsible” is dicta, because there was “no question that
Accusearch was responsible for the development of” the publications at issue. That
is a rash attempt at side-stepping an essential part of the opinion. In connection
with finding that Accusearch was responsible for the offending content, this Court
squarely took on an argument by Accusearch that it was not responsible, citing Ben
Ezra, Weinstein & Co. v. America Online Inc., 206 F.3d 980 (10th Cir. 2000). It
squarely rejected Accusearch’s use of Ben Ezra as a comparator, holding that “In
Ben Ezra [] America Online had done nothing to encourage what made the content
6 Notwithstanding Defendants’ brief, the Sixth Circuit in Jones v. Dirty World
Entertainment Recordings, LLC, 755 F.3d 398, 413 (6th Cir. 2014), did adopt asubstantially identical test: “Consistent with our sister circuits, we adopt thematerial contribution test to determine whether a website operator is "responsible,in whole or in part, for the creation or development of [allegedly tortious]
information.” Id. The Sixth Circuit did not reject Accusearch; to the contrary, itcited Accusearch with approval. What was rejected was the following bluntstandard: “"[d]efendants, when they re-published the matters in evidence, had thesame duties and liabilities for re-publishing libelous material as the author of suchmaterials.” Id.
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offensive – its alleged inaccuracy. America Online’s conduct was neutral with
respect to possible errors in the stock quotations. It was therefore not responsible
for the offensive content.” Id. at 1199-1200.
The court further wrote as follows:
The meaning of responsible becomes an issue under the CDA when acourt is considering whether CDA immunity from liability isunavailable because one is “responsible, in whole or part, for thecreation or development of information” that is the source of liability.In this context—responsibility for harm—the word responsible ordinarily has a normative connotation. See The Oxford Englishdictionary 742 (2d ed. 1998) (stating one definition of responsible as“Morally accountable for one’s actions.”). As one authority puts it:“[W]hen we say, ‘every man is responsible for his own actions,’ we donot think definitely of any authority, law or tribunal which he mustanswer, but rather of the general law of right, the moral constitution ofthe universe….
Id. at 1198. This dovetails completely with Judge Blackburn’s reliance upon Fair
Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157,
1170 (9th Cir. 2008), which he cited for the proposition that “editing of content
developed by third parties may or may not be development of information for the
purpose of [the CDA], as long as the changes do not contribute to the false,
misleading, or otherwise unlawful nature of the underlying information.”
Appellants’ App. at 0758. Defendants’ argument on appeal that Judge Blackburn’s
analysis was “contrary to the definition of “development” in Accusearch,” Brief at
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(a) Chumley researched and made all of the IRLM postings himself. Appellee’sApp. Sealed at 08, 17 [99:18-21; 101:5-102:11; 206:9-14];
would do, and substantially more than
someone exercising the traditional functions of a publisher would do:
(b) Chumley took old complaints, pleadings, and orders that otherwise would nothave been readily visible by internet users searching for “General Steel.”Appellants’ App. at 0684;
(c) Third-parties cannot post content on the IRLM page. 30(b)(6) Deposition at
Appellee’s App. Sealed at 25 [283:10-13]. Therefore, no information was provided by “independent persons” or third-parties to the IRLM website.Chumley made all postings on the IRLM website himself. Id. at 16 [202:5-7];
(d)
No one has ever submitted content or hyperlinks to Chumley for the IRLMwebsite. Id. at 18 [211:6-16]. And Chumley does not know if anyone has everclicked on his “Click Here” link to seek to submit content. Id.;
(e) No one has ever contacted Defendants to provide additional informationabout any of the IRLM website matters. Id. at 18 [212:11-17].
(f)
Chumley created all of the excerpts or snippets that he pulled out of eachcomplaint, pleading, or order and posted on his IRLM website. Id. at 11 [172:4-8];
(g)
Chumley’s testimony is that he used his own “editorial judgment” to pull the“snippets” he published on the IRLM website and they don’t represent the truthof the litigation. Id. at 16 [202:8 to 203:22].
(h) Chumley testified he has no responsibility to investigate what actually
happened in the lawsuits on his IRLM website. Id. at 19 [214:4-10];
7 "The prototypical service qualifying for [CDA] immunity is an online messaging board (or bulletin board) on which Internet subscribers post comments and respondto comments posted by others." Accusearch, 570 F.3d at 1195.
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(i) Chumley created the title for his website called “Industry Related LegalMatters.” Id. at 11 [171:19-172:3];
(j)
The title portrays the website in an official looking industry watchdog sitewhen it really doesn’t capture a cross-section of “Industry” Legal Matters, but
primarily General Steel legal matters. Appellants’ App. at 0684;
(k) Chumley’s excerpts/snippets highlight the inflammatory and disparaging parts of unproven Complaints and other pleadings. Id.;
(l) Chumley didn’t search for or post the 39 page federal court Findings andConclusions of Law dated May 7, 2013 issued by Judge Phillip Brimmer
pursuant to which he and Armstrong Steel were found liable for willful falseadvertising targeting General Steel. Appellee’s App. Sealed at 09-10 [102:25-108:11]. Chumley said he didn’t search for this Order to post because he “didn'tknow that [he] was obligated to post every document from every pleading fromevery single case.” Id.
(m) Defendants published the pleadings and snippets in the framework theycreated in order to specifically mislead General Steel’s customers about GeneralSteel’s litigation history. Appellants’ App. at 0685;
(n)
Chumley’s extensive advertising of the IRLM website also establishes thathis conduct was 180 degrees from being “neutral.” Id. at 0706;
(o) Chumley testified that the IRLM website’s purpose is to “educate all of thecustomers searching the internet for General Steel” about General Steel.Appellee’s App. Sealed at 19 [214:19-215:15];
(p) Chumley expanded his advertising campaign of the IRLM website so that allsteel building shoppers (not only customers searching the internet for “GeneralSteel”) would see his IRLM ads and website – he began paying for the IRLM ads
to appear to anyone who searched the internet for the terms “steel buildings” and“metal buildings” – the most commonly searched terms in the steel buildingindustry. Id. at 19 [215:15-218-2];
(q) Chumley uses the IRLM webpage for “remarketing” purposes (that is,through his IRLM ad campaign he seeks to have General Steel’s potential
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customers click on his IRLM page, and then every time those people access theinternet in the future, they are remarketed –affirmative ads come up on their web
browser for Armstrong Steel). See, Id. at 04 [54:11-55:15 and 56:16-19]. Thisremarketing is certainly creating or developing content;
(r)
Chumley admits the CDA could not apply to the false ads themselves;
(s) Through February 19, 2015, the IRLM website had received at least 33,260views. Id. at 21-22 [225:20-226-5];
(t) Chumley’s IRLM ads have received at least 186,177 “impressions.” Id. at 24[244:2-16]. An impression in the context of online advertising is when an ad is
seen, and is countable. Each time an ad displays it is counted as one impression.See, http://en.wikipedia.org/wiki/Impression_%28online_media%29
(u) “Internet advertising is what we do” Chumley testified. Chumley created atleast 20 unique ads for the IRLM website. Id. at 22-23 [229:21-230:11];
(v)
Defendants get almost all of their business from internet marketing. Id. at 26[313:13-16];
(w)
Chumley admits that the IRLM page is not neutral reporting about all steel building companies. Id. at 27 [319:10-23];
(x)
Chumley admits that the IRLM page is not full and fair reporting about allsteel building companies. Id.
(y) Chumley admits that the IRLM page does not purport to be truthful andcomplete information about steel building industry lawsuits. Id.; and
(z) Chumley testified that he’s always searching the internet looking for newlawsuits to post on the IRLM site and since he created the IRLM site in February2014, he’s found “all sorts of legal matters related to the steel building industry”
and “like a hundred more lawsuits” but he’s been “too busy” for the past year plus to add any lawsuits to his IRLM website. Id. at 17 [206:11-208:19].
Even apart from all of this, there is a material issue of fact about what
actually appears in the snippets, because Mr. Chumley’s deposition testimony is at
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I HEREBY CERTIFY that a true and correct copy of PLAINTIFF /APPELLEE’S RESPONSE BRIEF was served via CM/ECF this 14th day ofDecember, 2015, to the following: