Minimal pleading of responsibility suffices to evade 230 dismissal

Congoo, LLC v. Revcontent LLC, 2016 WL 1547171, No. 16-401
(D.N.J. Apr. 15, 2016)


The parties compete in the market for native
advertising.  Congoo alleged that
Revcontent caused false/misleading native advertising to be published.  Revcontent asserted §230 immunity.  The court found the following allegations
sufficient to avoid dismissal based on the idea that Revcontent is an “information
content provider” for purposes of the false advertising claims:

• Defendants have published or
caused to be published many impressions of native advertising unit ads
(“Defendants Ads”) with various Published Websites, including Publisher
Websites that were previous clients of Plaintiff.

• Many, if not most of Defendants’
Ads and the Advertisement Websites to which the Ads redirect unsuspecting
consumers, employ false and misleading advertising intended to deceive innocent
consumers out of the significant monies by charging their debit cards or credit

• Defendants have employed the
above stated false and misleading representative in advertising to generate
greater income from their Ads and those of Defendants’ Advertisers, (emphasis

This sufficiently pled that Revcontent was responsible in
part for the development of the subject advertisements.   Eric Goldman will not be pleased.  Nothing about contribution to the content in any way?


Revcontent also challenged whether Congoo adequately pled
falsity or standing under §43(a)(1)(B). 
However, the complaint alleged “false and misleading representations in
advertising” in which Revcontent participated, which was enough for
falsity.  As for standing, Congoo alleged
that Revcontent’s false and misleading statements in advertising allowed it to
generate greater income from ads and therefore to offer more attractive rates
to publishers than Congoo could. This was “an injury to a commercial interest
in sales or business reputation proximately caused by [Revcontent’s]

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