Citation[]
Anthony v. Yahoo! Inc., 421 F.Supp.2d 1257 (N.D. Cal. 2006) (full-text).
Factual Background[]
Robert Anthony sued Yahoo! for breach of contract, fraud, negligent misrepresentation, deceptive and unfair practices under Florida law, unjust enrichment, and restitution. He claimed that Yahoo! “deliberately and intentionally [] originates, creates, and perpetuates false and/or non-existent profiles on its [dating services] sites” to trick people . . . into joining the service and renewing their memberships.”
Trial Court Proceedings[]
Yahoo! moved to dismiss all these claims. Judge Ronald M. Whyte dismissed the claims for breach of contract, unjust enrichment, and restitution, but denied Yahoo!’s request to dismiss the claims for fraud, negligent misrepresentation, and deceptive and unfair practices under Florida law.
Yahoo! argued that the Section 230 of the Communications Decency Act (CDA) barred plaintiff’s claims for fraud and negligent misrepresentation. But the statute protects interactive providers only against information supplied by another content provider. Citing Ben Ezra, Weinstein & Co. v. America Online, Inc.,[1] Yahoo! argued that it was not liable “based on profile content.” Judge Whyte disagreed:
| “ | Yahoo’s assertion sweeps too broadly. Anthony alleges that Yahoo! creates false profiles, not merely fails to delete them. . . . In addition, Anthony claims that Yahoo! sends users false profiles for the purpose of luring them into renewing their subscriptions. . . . No case of which this court is aware has immunized a defendant from allegations that it created tortious content. . . . If, as Anthony claims, Yahoo! manufactured false profiles, then it is an 'information content provider' itself and the CDA does not shield it from liability.
In addition, the CDA does not defeat Anthony’s allegations that Yahoo! sent ‘profiles of actual, legitimate former subscribers whose subscriptions had expired and who were no longer members of the service, to current members of the service.’ Admittedly, third parties created these profiles. . . . Because Anthony posits that Yahoo’s manner of presenting the profiles — not the underlying profiles themselves — constitute fraud, the CDA does not apply. |
” |
Yahoo! argued that Anthony did not plead the Florida version of the FTC Act (known as FDUTPA) “with specificity”; Yahoo!’s motion to dismiss this claim was also denied. Judge Whyte gave Anthony 20 days to amend his pleadings alleging fraud, negligent misrepresentation, and FDUTPA violations.