The district court properly dismissed with prejudice five counts of Hadona Diep and Ryumei Nagao's complaint against Apple for injuries caused by a malicious app called Toast Plus that they downloaded from the App Store, said a 9th U.S. Circuit Appeals Court panel memorandum Wednesday (docket 22-16514). That's because those counts were barred by Section 230 of the Communications Decency Act, said the memorandum. But the U.S. District Court for Northern California erred by dismissing the plaintiffs’ three consumer protection claims with prejudice and without leave to amend, said the memorandum. Because the plaintiffs could conceivably cure the “pleading deficiencies” in the consumer protection claims, they “should have been afforded the opportunity to amend their complaint,” it said. And because the district court’s denial of leave to amend those claims “was premised on legal error,” the panel vacated the district court's judgment as to those claims, and remanded with instructions to grant the plaintiffs “leave to amend their complaint as to those claims,” it said. Circuit Judges Sidney Thomas and Morgan Christen and 7th Circuit Judge David Hamilton, by designation, sat on the panel.

Amazon is responsible for the decimation of legitimate companies like Planet Green that supply genuinely remanufactured and recycled printer ink cartridges, said Planet Green’s opening brief Friday (docket 23-4434) in the 9th U.S. Circuit Court of Appeals. It's seeking to reverse the district court’s dismissal of its fraud complaint against Amazon on grounds that Section 230 of the Communications Decency Act shields Amazon from liability (see 2312290030). Amazon is the dominant source of foreign-made “clone” printer ink cartridges -- newly manufactured products that are misrepresented to consumers as remanufactured and recycled, when they aren’t, said Planet Green. Amazon imports the falsely labeled clone cartridges from overseas, stores them in its warehouses and distributes them to consumers throughout the U.S., said the brief. It takes "title" to them and “itself sells them directly to consumers in packaging and bearing labels that falsely identifies the clone cartridges as remanufactured or recycled,” it said. Amazon also promotes them through its own statements over the Amazon website, via email and on third-party internet platforms, it said. It also “participates extensively” in the promotion and sale of the clone cartridges by third-party sellers on its website, and “profits handsomely from those sales,” it said. On Section 230, the district court wrongly found that Amazon was entitled to “complete immunity” from Planet Green’s action, “even though its claims arise in significant part from statements, sales, and conduct by Amazon itself that do not constitute the publication of third-party statements over Amazon’s website,” it said. The court also held that Amazon couldn’t be held liable for false and misleading product listings, it said. The district court ultimately gave Amazon a “get-out-of-jail-free card” that would allow it to disregard “any legal obligation to avoid deceiving consumers about printer ink cartridges,” it said. That result “twists” Section 230, which is a statute “focused on limiting liability for the publication of third party statements on the internet, beyond recognition,” it said: “It must be reversed.”

The X platform thinks the district court “improperly applied” the U.S. Supreme Court’s 1985 decision in Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio when it denied X’s motion for a preliminary injunction to block California from enforcing the state’s social media transparency law (AB-587) that took effect Jan. 1 (see 2401020002), said X’s mediation questionnaire Friday (docket 24-271) at the 9th U.S. Circuit Court of Appeals. Zauderer widened protection for commercial speech by striking down most of Ohio’s restrictions on advertising by attorneys. But Zauderer doesn’t “apply here” because the compelled speech at issue “is content-based, not commercial, not purely factual, and not uncontroversial,” said the questionnaire. X thinks AB-587 violates the First Amendment because it compels X “to engage in speech against its will,” it said. AB-587 also interferes with X’s “constitutionally protected editorial judgments,” it said. The statute also “has both the purpose and likely effect” of pressuring X to “remove, demonetize, or deprioritize” constitutionally protected speech that the state “deems undesirable or harmful,” it said. Because the California legislature passed AB-587, and because the parties disagree about its constitutional and legal validity, X doesn’t believe “this action is appropriate for mediation,” said the questionnaire. In denying the preliminary injunction motion, the district court held that X “failed to establish a likelihood of success on the merits” of its First Amendment and Section 230 preemption challenges, it said.

U.S. District Judge David Barlow for Utah in Salt Lake City granted in part the parties’ stipulated motion for an amended briefing schedule in NetChoice’s Dec. 20 motion for a preliminary injunction to block Utah Attorney General Sean Reyes (R) from enforcing the Social Media Regulation Act when it takes effect March 1 (see 2312230004), said the judge’s text-only docket order Tuesday (docket 2:23-cv-00911). Reyes’ deadline for filing an opposition to the injunction motion is Jan. 23, and NetChoice’s reply brief is due Feb. 6, said Barlow’s order. The parties were seeking deadlines of Jan. 31 and Feb. 12, respectively. Reyes’ response to the NetChoice complaint is due 21 days after Barlow rules on the motion for an injunction, as the parties requested, said the order. Due to the “issues being litigated," more extended deadlines "are unlikely to be workable" in light of the statute's fast-approaching March 1 effective date, said the order. NetChoice contends that the Utah statute is unconstitutional because it uses content-, viewpoint- and speaker-based definitions to restrict minors’ and adults’ ability to access and engage in protected speech. NetChoice also contends that the statute uses those definitions to restrict how certain websites organize, display and disseminate protected speech. NetChoice argues that the entire statute violates the First Amendment and the due process clause, and that Section 230 of the Communications Decency Act preempts parts of it.

U.S. District Judge Otis Wright for Central California in Los Angeles granted Grindr's motion to dismiss with prejudice and without leave to amend plaintiff John Doe’s child sex trafficking complaint against the operator of the dating app for LGBTQ+ people, said the judge's signed Dec. 28 order (docket 2:23-cv-02093). “The facts of this case are indisputably alarming and tragic,” it said. “No one should endure” what plaintiff Doe has. But “after careful review and consideration of the facts and applicable law,” the court "ultimately determines" that Doe’s claims are "precluded" by Section 230 of the Communications Decency Act, it said. In spring 2019, Doe was 15 and lived in a small town in Nova Scotia, where he “knew he was gay but was too ashamed to tell his parents,” said the order. “Seeking queer community,” Doe installed the Grindr app, misrepresented that he was older than 18 and created a user profile, it said. Grindr didn’t verify Doe’s age, it said. Over a four-day period, the app matched Doe with four “geographically proximate adult men,” it said. Doe and the men exchanged direct messages, personal information and sexually explicit photos, it added. Doe met each man and was sexually assaulted and raped, it said. After Doe’s mother confronted him, Doe told her he was on Grindr, that the app matched him with adult men and that they had raped him, it said. Three of the men are in prison for sex crimes, while the fourth remains at large, it said.

Plaintiff-appellant Planet Green Cartridges faces a Tuesday deadline for filing its mediation questionnaire in the 9th U.S. Circuit Appeals Court appeal that seeks to reverse the district court’s Oct. 5 dismissal of its false advertising claims against Amazon, according to a time schedule order Thursday (docket 23-4434). Planet Green’s opening brief is due Feb. 6, and Amazon’s answering brief is due March 6, said the order. Planet Green alleges Amazon failed to deactivate accounts of third-party sellers that falsely advertised multiple brands of cheap Chinese-made “clone” ink cartridges to consumers as legitimate recycled OEM cartridges, with none of the quality or green benefits of the authentic recycled product. Planet Green describes itself as one of the last U.S.-based recycled cartridge manufacturers. It says Amazon's permissiveness of the falsely advertised product is hurting its business. The district court’s dismissal in Amazon's favor found that Section 230 of the Communications Decency Act provided Amazon immunity for all of Planet Green’s claims. The court also held that Planet Green failed to identify any false statement of fact Amazon had made, and that the negligence claim failed to allege a legal duty that Amazon owed to Planet Green.