United States District Court, D. Utah, Northern Division
ICON HEALTH & FITNESS, INC., a Delaware corporation, Plaintiff,
CONSUMER AFFAIRS.COM, a Nevada corporation, CONSUMERS UNIFIED, LLC, a Nevada limited liability company; and DAVID ZACHARY CARMAN, and individual, Defendants.
B. Pead United Stages Magistrate Judge.
Complaint alleges Consumer Affairs.com
(“ConsumerAffairs”), Consumers Unified, LLC, and
David Zachary Carman (collectively “Defendants”)
violated the Racketeering Influenced Corrupt Organizations
Act (“RICO”), violated Utah statutes, interfered
with prospective economic relations, and defamed Plaintiff.
(ECF No. 2, Ex. 1.) Defendants, through ConsumerAffairs,
maintain an internet database of product reviews, which
includes reviews of products Plaintiff produces. Plaintiff
alleges Defendants' internet site improperly favors
paying member companies while unfairly disparaging nonmember
companies. (See id.) The matter is presently before
the court on Defendants' Motion to Dismiss. (ECF No. 10.)
Defendants argue they are entitled to statutory immunity
under the Communications Decency Act and that Plaintiff fails
to properly allege any viable claim. For the reasons set
forth below the court will grant Defendants motion, in part.
survive, a complaint must contain “enough facts to
state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). The court accepts factual allegations “as true
and construe[s] those allegations, and any reasonable
inferences that might be drawn from them” in a
plaintiff's favor. Gaines v. Stenseng, 292 F.3d
1222, 1224 (10th Cir. 2002). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Nonetheless, conclusory allegations without supporting
factual allegations are insufficient to state a claim for
relief. See Id. (“Nor does a complaint suffice
if it tenders ‘naked assertion[s]' devoid of
‘further factual enhancement.'”).
alleges the following facts. ConsumerAffairs hosts a website
containing product reviews and complaints for a wide variety
of consumer products, including certain exercise equipment
Plaintiff manufactures. (ECF No. 2, Ex. 1 at 3-4.) Defendant
Carman is the sole manager of Consumers Unified, LLC, and the
President, sole Director, Secretary, and Treasurer of
ConsumerAffairs. (Id. at 3.) Together, Defendants
maintain a database of product reviews on the ConsumerAffairs
website. Defendants, through that database, favor product
manufacturers who agree to pay a one-time setup fee and an
ongoing monthly fee to ConsumerAffairs or Consumers Unified,
(Id. at 4-7, 11.)
publishes an “Overall Satisfaction Rating” for
each product reviewed on its website. (Id. at 4.)
The Overall Satisfaction Rating is expressed as a star rating
out of five possible stars. ConsumerAffairs calculates the
rating based on an unspecified subset of user reviews hosted
on ConsumerAffairs' website. (Id. at 4.)
ConsumerAffairs' chooses which consumer reviews to
include in given company's Overall Satisfaction Rating
based solely on whether that company pays a monthly fee to
ConsumerAffairs. (Id. at 5.) ConsumerAffairs alters
a company's Overall Satisfaction Rating by intentionally
omitting or removing legitimate positive consumer-submitted
reviews from pages discussing non-paying companies.
(Id. at 6.)
contacted Plaintiff in early 2016 offering to
“help” Plaintiff with their business.
(Id.) At that time, ConsumerAffairs rated two of
Plaintiff's products at approximately one star out of
five. (Id. at 7.) ConsumerAffairs initially refused
to share pricing information unless Plaintiff signed a
non-disclosure agreement. ConsumerAffairs relented when
Plaintiff pointed out that pricing should not constitute a
trade secret. (Id. at 6-7.) ConsumerAffairs sent
Plaintiff a Member Accreditation Agreement
(“Agreement”). ConsumerAffairs offered to waive a
customary $9, 000 setup fee and charge Plaintiff an ongoing
$3, 000 monthly fee in return for certain benefits and
services. (Id. at 7.)
Agreement provides that ConsumerAffairs will remove all
negative feedback Plaintiff disputes if: the underlying facts
are uncertain, the problem is “resolved, ” a
consumer does not respond within five days, or the
customer's response is “insufficient.”
(Id.) If Plaintiff refused to pay, Plaintiff could
not challenge any negative feedback related to its products.
(Id.) Also, ConsumerAffairs allows paying companies
to request or compel individual reviewers to change a prior
rating, but a nonpaying company cannot do this. (Id.
company begins paying ConsumerAffairs, the company's
product pages on ConsumerAffairs' website change.
(Id. at 4-5.) Prior to paying, ConsumerAffairs
superimposes on a given company's page a prompt stating
“Not Impressed With [non-paying brand]? Find a company
you can trust” or other language recommending
competitors. (Id. at 5.) Also, ConsumerAffairs
subtly switches the order of wording on a company's page
from the non-paying version that states “Top [number]
Complaints and Reviews” to the paying version,
“Top [number] Reviews and Complaints.”
(Id. at 4.)
Communications Decency Act immunity
argue the court should dismiss the Complaint because the
Communications Decency Act (“CDA”) provides
immunity to Defendants for all conduct alleged in the
Complaint. Plaintiff contends that Defendants are not
entitled to CDA immunity because ConsumerAffairs is a content
provider as defined by the CDA, not simply a publisher of
third-party submissions. Plaintiff also contends that CDA
immunity does not extend to RICO claims.
The CDA applies to ConsumerAffairs' publication of
provides immunity to ConsumerAffairs for some, but not all,
conduct alleged in the Complaint. The CDA provides, in
pertinent part: “No provider or user of an interactive
computer service shall be treated as the publisher or speaker
of any information provided by another information content
provider.” 47 U.S.C. § 230(c)(1). Further,
“[n]o cause of action may be brought and no liability
may be imposed under any State or local law that is
inconsistent with this section.” Id. §
230(e)(3). Thus, the CDA provides immunity for civil causes
of action based on information originating with a third
party. Ben Ezra, Weinstein, & Co., Inc. v. Am. Online
Inc., 206 F.3d 980, 984-85 (10th Cir. 2000). Yet
“the CDA provides immunity only from liability, not
suit.” Gen. Steel Domestic Sales, L.L.C. v.
Chumley, 840 F.3d 1178, 1181 (10th Cir. 2016).
Defendants must satisfy three requirements to take advantage
of CDA immunity: Defendants (1) were providers or users of
“an interactive computer service, ” (2)
Defendants undertook the actions alleged in the Complaint as
a publisher or speaker and, (3) another “information
content provider” provided the information at issue.
See F.T.C. v. Accusearch Inc., 570 F.3d 1187, 1196
(10th Cir. 2009).
Interactive computer service
term ‘interactive computer service' means any
information service, system, or access software provider that
provides or enables computer access by multiple users to a
computer server, including specifically a service or system
that provides access to the Internet and such systems
operated or services offered by libraries or educational
institutions.” 47 U.S.C.A. § 230(f)(2). Generally,
a website constitutes an interactive computer service.
See Universal Commc'n Sys., Inc. v. Lycos, Inc.,
478 F.3d 413, 419 (1st Cir. 2007), cited with approval in
Accusearch. Plaintiff alleges that Defendants operate
the ConsumerAffairs website. (E.g., ECF No. 2, Ex. 1
at 4.) Plaintiff offers no authority to suggest
ConsumerAffairs is not an interactive computer
service. Thus, the court finds Defendants are
providers or users of an interactive computer service to the
extent they operate the ConsumerAffairs website.
Speaker or publisher
Tenth Circuit held that CDA immunity protects an interactive
computer service in the “exercise of its editorial and
self-regulatory functions.” Ben Ezra, Weinstein,
& Co., Inc. v. Am. Online Inc., 206 F.3d 980, 986
(10th Cir. 2000) (finding that an interactive computer
service engaged in editorial functions when it deleted
allegedly inaccurate information from a website). The
editorial role also includes “deciding whether to
publish, withdraw, postpone or alter content” Zeran
v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997),
cited with approval in Ben Ezra, Accusearch, and Gen.
Steel. The Zeran court noted that an
“important purpose of § 230 was to encourage
service providers to self-regulate the dissemination of
offensive material over their services.” Id.
at 331. Accordingly, the court does not question the motives
of the editor. See Fair Hous. Council of San Fernando
Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1170-71
(9th Cir. 2008) (“any activity that can be boiled down
to deciding whether to exclude material that third parties
seek to post online is perforce immune under section
230”). Defendants argue Plaintiff's allegations
describe only actions of a publisher. The court partially
agrees with Defendants. The Complaint refers to a number of
activities Defendants undertake as a publisher of third-party
information. For example, the Complaint alleges
“ConsumerAffairs hosts web-based product or brand
reviews.” (ECF No. 2, Ex. 1 at 4.) In doing so,
ConsumerAffairs has deliberately not posted, or even removed,
positive reviews. (Id. at 6.) ConsumerAffairs also
posts certain reviews “out of chronological
order.” (Id. at 9.) These activities fall
within the traditional publisher's role. Plaintiff
suggests these actions are taken with malicious intent.
(E.g. Id. at 6.) Yet the provision of the CDA on
which Defendants rely contains no good-faith requirement.
See 47 U.S.C. § 230(c)(1). This omission
appears intentional because the following subsection contains
a good-faith requirement. See Id. § 230(c)(2)
(prohibiting liability for “any action voluntarily
taken in good faith”). Additionally, other courts have
rejected similar attempts to find a bad-faith exception to
CDA immunity. See Levitt v. Yelp! Inc., No. 10-1321,
2011 WL 5079526, at *7-8 (N.D. Cal. Oct. 26, 2011),
aff'd, 765 F.3d 1123 (9th Cir. 2014). The court
finds the Levitt court's reasoning persuasive:
[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 [of] motive could result
in the “death by ten thousand duck-bites” against
which the Ninth Circuit cautioned in interpreting §
Id. (citations omitted).
other hand, Plaintiff also alleges that Defendants engage in
conduct beyond editorial and self-regulatory functions
related to speech and publication of third-party information.
Plaintiff alleges that Defendants began soliciting Plaintiff
via email about purchasing advertising from ConsumerAffairs.
(Id. at 6.) At least one court determined similar
conduct fell outside CDA immunity. The District of
Massachusetts held that an online “consumer advocacy
forum” called RipoffReport.com did not qualify for CDA
immunity for advertising mediation services to the subjects
of consumer complaints. See Small Justice LLC v. Xcentric
Ventures LLC, 99 F.Supp.3d 190, 200 (D. Mass. 2015),
amended, No. 13-CV-11701, 2015 WL 5737135 (D. Mass.
Sept. 30, 2015). The court agrees. While a website provider
enjoys CDA immunity for certain information posted on its
website, it may engage in other related conduct for which the
CDA offers no immunity. Thus, while much of Defendants'
conducted alleged in the complaint constitutes third-party
speech or publication, other conduct does not. Consistent
with the CDA, Defendants will not be treated as publisher or
speaker of any third-party information on the website.
Nonetheless, the court will examine whether Defendants must
defend any portion of the Complaint related to conduct not
immunized by the CDA.
Information originating with another information content
alleges facts that show Defendants develop at least some of
the offensive content at issue in the Complaint. An
interactive service provider “is
‘responsible' for the development of offensive
content only if it in some way specifically encourages
development of what is offensive about the content.”
Accusearch at 1187. The Ninth Circuit, sitting en
banc, discussed the thin line between content development and
exercise of editorial and self-regulatory functions:
A website operator who edits user-created content-such as by
correcting spelling, removing obscenity or trimming for
length-retains his immunity for any illegality in the
user-created content, provided that the edits are unrelated
to the illegality. However, a website operator who edits in a
manner that contributes to the alleged illegality-such as by
removing the word “not” from a user's message
reading “[Name] did not steal the
artwork” in order to transform an innocent message into
a libelous one-is directly involved in the alleged illegality
and thus not immune.
Fair Hous. Council of San Fernando Valley v.
Roommates.Com, LLC, 521 F.3d 1157, 1169 (9th Cir. 2008)
This element overlaps to a great degree with the question of
whether ConsumerAffairs exercised its editorial and
self-regulatory function, but the focus is on whether
ConsumerAffairs created any of the purportedly-harmful
court easily concludes that ConsumerAffairs developed or
created the content that originates with ConsumerAffairs
rather than any user. For example, Plaintiff alleges that
ConsumerAffairs superimposes on product pages: “Not
Impressed With [non-paying brand]? Find a company you can
trust.” (ECF No. 2, Ex. 1 at 5.) Similarly, the
Complaint alleges ConsumerAffairs modifies review pages and
search engine results for paying members by changing the
order of certain words depending on whether a company has
paid ConsumerAffairs. (Id. at 4.) ...