On May 28, I wrote about the Ninth Circuit’s decision in Barnes v. Yahoo. In that case, the Ninth Circuit held (among other things) that the Communications Decency Act (47 USC § 230) (“CDA”) could not support a 12(b)(6) motion to dismiss for failure to state a claim, because the CDA is an affirmative defense. As an affirmative defense, CDA protections must be claimed by filing an answer to the complaint, which can allow for the opening of discovery. Given that the opening of discovery can be expensive and time-consuming, it is not surprising that Yahoo has asked the Ninth Circuit for a rehearing en banc, and has received support from various amici briefs.

On the other side of the country, a New York District Court has tackled the same issue, but came to a different outcome. The case – Gibson v. Craigslist, 1:08-cv-07735-RMB (S.D.N.Y. June 15, 2009) – was brought by a shooting victim who claims that the shooter bought the gun via Craigslist. News reports on the case can be found here and here.

The basis of the case was the allegation that Craigslist had a duty to police its system so that "inherently dangerous objects" could not be purchased for use in criminal activities. Gibson sought $10 million in compensatory damages, punitive damages, and the "appointment of a federal monitor" to keep guns from being advertised on the website.

In its defense, Craigslist submitted a 12(b)(6) motion to dismiss the case on the grounds that the CDA precluded this kind of liability. In granting the 12(b)(6) motion, the court stated that "discovery into defendant’s efforts to prevent the sale of illegal goods on its website would not establish a set of facts that would entitle the Plaintiff to relief." Therefore, raising CDA immunity was more appropriate in a 12(b)(6) than raising it as an affirmative defense.

Why this Matters: As of today, there is a split in interpretation as to how CDA immunity should be claimed. For the Southern District of New York, as well as other courts like the Northern District of Texas [MCW, Inc. v. badbusinessbureau.com, 02-Civ.-2727 (N.D. Tex. April 19, 2004)], the CDA is properly raised in a 12(b)(6) motion to dismiss. If the motion is granted, this would preclude the opening of discovery. However, in the Ninth Circuit, the CDA should be treated as an affirmative defense to be raised in an answer. Thus, a judge may open discovery prior to ruling on the application of the CDA.

This split in application – if not resolved by the Ninth Circuit in an en banc rehearing – is likely to increase "forum shopping" among plaintiffs because, in the Ninth Circuit at least, plaintiffs would stand a better chance at a settlement. After all, a defendant may be more willing to settle a case than to risk the cost incurred in proceeding with discovery.