Plaintiff doesn’t have to rebut 230 immunity in complaint against multiple parties

Moretti v. Hertz Corp., No. 14-469, 2017 WL 1032783 (D. Del.
Mar. 17, 2017)
Moretti sued for violation of California’s false
advertising, consumer protection, and unfair and deceptive trade practices
laws, and common law fraud.  Moretti
alleged that prices for car rentals in Mexico were advertised in U.S. dollars
but later converted into Mexican Pesos at an artificially inflated rate,
leading him and other consumers to pay more than the advertised price for their
rentals as a result. Defendants also allegedly failed to inform consumers that
the purchase of liability insurance was mandatory, disclosing terms and
conditions stating the contrary. Hertz and Dollar Thrifty allegedly supplied the
misleading information about car rental prices and terms to Hotwire, and
Hotwire incorporated the content into listings on its website. Hotwire allegedly
continued to do so despite consumer complaints and Hotwire’s knowledge of the
information’s fraudulent content.
Hotwire moved for judgment on the pleadings under §230.   The court found that a complaint need not
affirmatively negate any of the elements of Section 230 immunity. Immunity
under §230 requires Hotwire not have “contribute[d] materially” to the
offending nature of the content, and the complaint was silent on that. “Taking
the well-pleaded factual allegations as true, there is no basis in the
Complaint from which the Court could conclude that Hotwire did not function as
an ICP and did not contribute materially to the alleged misrepresentations.”  Some §230 cases can be decided on the
pleadings, but not this one; “the Court cannot treat the Complaint’s silence as
to whether Hotwire materially contributed to the false statement as an
affirmative allegation that Hotwire did not do so.”  The court was influenced by counsel’s
representations at oral argument that, “if needed, [Morelli] could plead
sufficient facts to show that Hotwire is not entitled to the protection of
Section 230 immunity.”  Given that
additional facts would help the parties and the court to understand the case,
the court ordered Morelli to amend the complaint “to include any specifics
which are in his possession that help to show why Plaintiff believes Hotwire is
not immune under Section 230.”

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