general steel v. chumley - response brief

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No. 15-1293

IN THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

GENERAL STEEL DOMESTIC SALES, LLC, d/b/a GENERAL STEELCORPORATION, a Colorado limited liability company,

Plaintiff -Appellee,

v.

ETHAN DANIEL CHUMLEY, individually, et al.,

Defendants-Appellants.

On Appeal from the United States District Court for the District of Colorado inCase No. 14-cv-01932-REB-CBS

Judge Robert E. Blackburn

PLAINTIFF / APPELLEE’S RESPONSE BRIEF

David S. FeinPatrick D. FryeBuilding Services Group, LLC Legal Department

10639 Bradford RoadLittleton, CO 80127720-981-6092

Attorneys for Plaintiff-Appellee

Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 1



ii

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure P. 26.1, Plaintiff-Appellee

General Steel Domestic Sales, LLC states it has no parent corporation, and no

publicly-held corporation owns ten percent (10%) or more of its stock.




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TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ........................................................ ii

TABLE OF AUTHORTIES ..................................................................................... iv

STATEMENT OF PRIOR OR RELATED APPEALS ............................................. 1

STATEMENT OF JURISDICTION .......................................................................... 1

STATEMENT OF ISSUES PRESENTED FOR REVIEW ...................................... 2

STATEMENT OF THE CASE .................................................................................. 3

SUMMARY OF THE ARGUMENT......................................................................... 9

STANDARD OF REVIEW ..................................................................................... 11

ARGUMENT ........................................................................................................... 12

I. Appellate Jurisdiction (Defendants’ Argument Section III) ........................... 12

A. The Defendants have only partial immunity at best, and partial immunityis not immediately appealable; the issue is thus not effectively unreviewableabsent immediate appeal. ................................................................................... 12

B. This case does not fit within the collateral order doctrine’s historicallynarrow parameters. ............................................................................................ 14

C.

The putative immunity is not separate from the merits. ...........................17

D. Defendants waived any immunity from suit – i.e., the disputed questionwas not conclusively determined. ...................................................................... 19

E. The CDA provides a defense to liability, not immunity from suit. .......... 25

II.

Lanham Act vs. CDA ...................................................................................... 31

III. The CDA as applied (Defendants’ Argument Section I): Defendants createdand developed content on the IRLM page, and are thus “information content

providers.” ............................................................................................................ 33

CONCLUSION ........................................................................................................ 44

CERTIFICATE OF COMPLIANCE WITH RULE 32(a) ....................................... 46

CERTIFICATE OF DIGITAL SUBMISSION........................................................ 47

CERTIFICATE OF FILING AND SERVICE ......................................................... 48




iv

TABLE OF AUTHORTIES

Cases Acoustic Sys. v. Wenger Corp.,207 F.3d 287 (5th Cir. 2000) .................................................................................... 16

Auraria Student Hous. at the Regency, LLC v. Campus Vill. Apt., LLC ,703 F.3d 1147 (10th Cir. 2013) ................................................................................ 15

Batzel v. Smith,

333 F.3d 1018 (9th Cir. 2003) ................................................................................... 29

Ben Ezra, Weinstein & Co. v. America Online Inc., 206 F.3d 980 (10th Cir. 2000) ............................................................................passim

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n,447 U.S. 557, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980) ......................................... 24

Chicago & North Western Transp. Co. v. Ulery,787 F.2d 1239 (8th Cir. 1986) .................................................................................. 17

ClearCorrect Operating, LLC v. ITC ,

2015 U.S. App. LEXIS 19558 (Fed. Cir. Nov. 10, 2015) .................................. 27, 28Cohen v. Beneficial Ind. Loan Corp.,

337 U.S. 541 (1949) ................................................................................................. 17

Crippa v. Dukakis,905 F.2d 553 (1st Cir. 1990) .................................................................................... 16

Crystal Clear Communc’ns, Inc. v. Sw. Bell Tel. Co.,415 F.3d 1171 (10th Cir. 2005) ................................................................................ 19

DeVargas v. Mason & Hanger-Silas Mason Co.,844 F.2d 714 (10th Cir. 1988) .................................................................................. 15

Doe No. 14 v. Internet Brands, Inc.,767 F.3d 894 (9th Cir. 2014)”) ........................................................................... 27, 30




v

Energy Automation Sys., Inc. v. Xcentric Ventures LLC,

2007 U.S. Dist. LEXIS 38452 (M.D. Tenn. May 25, 2007) .............................. 26, 31

Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC ,521 F.3d 1157 (9th Cir. 2008) ............................................................................ 26, 39

Federal Trade Comm’n v. Accusearch Inc.,570 F.3d 1187 (10th Cir. 2009) .........................................................................passim

Ford Motor Co. v. Greatdomains.com, Inc.,2001 U.S. Dist. LEXIS 24780( E.D. Mich. Sept. 25, 2001) .................................... 33

General Steel Domestic Sales, LLC v. Chumley,2015 U.S. App. LEXIS 13356 (10th Cir. July 31, 2015) ........................................... 4

Green v. Brantley,895 F.2d 1387 (11th Cir. 1990). ............................................................................... 14

Gucci Am., Inc. v. Hall & Assocs.,135 F. Supp. 2d 409, 413-15 (S.D.N.Y. 2001) ........................................................ 33

J.S. v. Vill. Voice Media Holdings, LLC ,184 Wn.2d 96 (Wash. 2015) .................................................................................... 27

Jones v. Dirty World Entertainment Recordings, LLC, 755 F.3d 398 (6th Cir. 2014) ............................................................................... 29, 37

Kruska v. Perverted Justice Found., Inc.,2008 U.S. Dist. LEXIS 109347 (D. Ariz. July 8, 2008) .......................................... 31

Levitt v. Yelp! Inc.,

2011 U.S. Dist. LEXIS 99372 (N.D. Cal. Mar. 22, 2011) ................................. 30, 31

Lovell v. One Bancorp,878 F.2d 10 (1st Cir. 1989) ...................................................................................... 17

Martinez v. Hooker ,601 Fed. Appx. 644, 2015 U.S. App. LEXIS 1832 (10th Cir. 2015) ....................... 23




vi

Midland Asphalt Corp. v. United States,489 U.S. 794 (1989) ........................................................................................... 21, 29

Miller v. Basic Research, LLC ,750 F.3d 1173 (10th Cir. 2014) ................................................................................ 20

Morris v. Noe,672 F.3d 1185 (10th Cir. 2012) ................................................................................ 11

Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,591 F.3d 250 (4th Cir. 2009) ..................................................................................... 28

O’Kroley v. Fastcase, Inc., 2014 WL 2197029 (M.D. Tenn. May 27, 2014) ...................................................... 40

Obado v. Magedson,612 Fed. Appx. 90 (3d Cir. 2015) ............................................................................ 28

Parker v. Google, Inc.,422 F. Supp. 2d 492 (E.D. Pa. 2006) ....................................................................... 32

Perfect 10, Inc. v. CCBill, LLC ,340 F. Supp. 2d 1077 (C.D. Cal. 2004) .................................................................... 33

Perkins v. LinkedIn Corp.,53 F. Supp. 3d 1222 (N.D. Cal. 2014) ..................................................................... 26

Procter & Gamble Co. v. Haugen,222 F.3d 1262 (10th Cir. 2000) .......................................................................... 23, 24

Rambo v. Daley,68 F.3d 203 (7th Cir. 1995) ...................................................................................... 16

Schopler v. Bliss,903 F.2d 1373 (11th Cir. 1990). ............................................................................... 14

Segni v. Commercial Office of Spain,816 F.2d 344 (7th Cir. 1987) .................................................................................... 16




vii

Shrader v. Biddinger ,2012 U.S. Dist. LEXIS 38872 (D. Colo. Feb. 17, 2012) ......................................... 36

Smith v. Rogers Galvanizing Co.,128 F.3d 1380 (10th Cir. 1997) ................................................................................ 23

Suhail Najim Abdullah Al Shimari v. CACI Int'l, Inc.,679 F.3d 205 (4th Cir. 2012) .................................................................................... 29

Tele-Communications, Inc. v. Comm'r ,104 F.3d 1229 (10th Cir. 1997) ................................................................................ 23

United States v. Wampler ,624 F.3d 1330 (10th Cir. 2010) ................................................................................ 16

Wyatt v. Cole,504 U.S. 158, 118 L. Ed. 2d 504, 112 S. Ct. 1827 (1992) ....................................... 16

Youghiogheny & Ohio Coal Co. v. Baker ,815 F.2d 422 (6th Cir. 1987) .................................................................................... 17

Zeran v. America Online, Inc.,

129 F.3d 327 (4th Cir. 1997) ..................................................................................... 28

Statutes

28 U.S.C. § 1291 ...................................................................................................... 31

47 U.S.C. § 230 ................................................................................27, 28, 31, 32, 33

Cal Code Civ. Proc. § 425.16(j) ............................................................................... 30

Other Authorities

Phillip E. Areeda and Herbert Hovenkamp, A NTITRUST LAW P 222b (Revised ed.1997) ........................................................................................................................ 16




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STATEMENT OF PRIOR OR RELATED APPEALS

Plaintiff differs with Defendants’ Statement of Prior or Related Appeals.

The parties hereto were also parties to Appeals No. 14-1119 and 14-1121, resolved

by this Court’s Order and Judgment dated July 31, 2015. Many of the facts and

conclusions at issue in Appeals No. 14-1119 and 14-1121 are germane to the instant

appeal.

STATEMENT OF JURISDICTION

Plaintiff does not dispute Defendants’ articulation of the District Court’s

jurisdiction.

Plaintiff disputes this Court’s jurisdiction. According to Defendants,

jurisdiction is proper under the collateral order doctrine. Defendants argue that

interlocutory jurisdiction exists because they were “denied statutory immunity

provided by 47 U.S.C. § 230.” More specifically, Defendants say that they are

immune “from suit.”

Plaintiff respectfully submits that (a) no such “immunity from suit,” as

defined by Defendants, exists enabling interlocutory appellate jurisdiction, (b) to

the extent that any such immunity can exist in a vacuum, Defendants are not

entitled to it, and (c) contrary to Defendants’ incomplete recitation of events,




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Defendants are not appealing part of Judge Brimmer’s denial of CDA protection,

because part of this case does not intersect with the CDA at all. Defendants thus

only have a partial “immunity” at best, and will have to face trial someday.

Appellate jurisdiction thus does not exist at this time.

Plaintiff moved to dismiss this appeal for lack of jurisdiction immediately

upon its filing. This Court deferred ruling on the propriety of jurisdiction until

briefing on the issues is completed.

STATEMENT OF ISSUES PRESENTED FOR REVIEW

Plaintiff disputes Defendants’ articulation of the issues properly before this

Court. Further, because this Court must first have jurisdiction before reaching the

appeal’s merits, the following issues are sequenced so that jurisdiction is first

discussed.

1. Does the collateral order doctrine enable appellate jurisdiction over a

case that involves statements by Defendants that are indisputably not immune under

the CDA—i.e., where any immunity is partial at best, and trial of this case is

inevitable no matter how this appeal would be resolved?

2. Does the “collateral order doctrine” provide this Court with

jurisdiction where CDA “immunity” is described in the authority and by Defendants




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themselves as an immunity from liability— i.e., a defense—as opposed to immunity

from suit?

3. Where the Defendants did not assert immunity from suit until after

summary judgment had been ruled upon—and after they had withdrawn the Rule 12

motion they had filed, which in any event was silent on immunity from suit—does

the collateral order doctrine enable appellate jurisdiction?

4.

Does 47 U.S.C. § 230 apply to Lanham Act false advertising claims?

5. Where Defendants have an adjudged history of “targeting” Plaintiff

using willfully false advertising, to what extent are Defendants entitled to a defense

or “immunity” under 47 U.S.C. § 230 against claims related to advertising and

defamation appearing on a webpage designed for commercial advertising using

content copied from other locations on the Internet, and content copied but re-

structured in new Internet postings, and original content? Put another way, was the

District Court correct in finding that under the undisputed record on summary

judgment, Defendants were “content providers” within the meaning of the CDA?

STATEMENT OF THE CASE

This is the second appeal to come before this Court between these businesses,

which compete in the prefabricated steel building market. In the first appeal (case




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no. 14-1119), this Court considered whether the advertising that Defendants used to

start up their business and across their first few years constituted false advertising

under the Lanham Act. In affirming United States District Judge Philip Brimmer,

this Court described Defendants’ conduct as “underhanded deception with material

commercial consequences” and outright “lies.” Appellees’ App. at 76. More

specifically, Circuit Judge Gorsuch wrote that Plaintiff “General Steel was in the

crosshairs” of Defendants’ deception. Id. This Court’s prior opinion, and the

underlying opinion of Judge Brimmer, are found in Appellees’ App. at 75-90 /

General Steel Domestic Sales, LLC v. Chumley, 2015 U.S. App. LEXIS 13356

(10th Cir. July 31, 2015), and Appellants’ App. at 0067-0105 / General Steel

Domestic Sales v. Chumley, 2013 U.S. Dist. LEXIS 64932 (D. Colo. May 7, 2013).

Notably, Judge Brimmer wrote that

• “Armstrong’s intent is evidenced by its persistent use of deceptivemeans to undermine General Steel’s reputation” Appellants’ App. at0093,

• “Mr. Chumley was committed to damaging the reputation of GeneralSteel” Id. at 0076, and that

• “Armstrong’s pattern of willful deception indicates it is likely to causeGeneral Steel future harm” Id. at 0099.

Judge Brimmer also found that the parties’ history included the following:




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• Mr. Chumley created or directed the creation of a website of gay pornography that he falsely attributed to an employee at General Steel.

Although Mr. Chumley contends that a coworker at Olympia who hadno connection with General Steel created this site without anyinvolvement by Mr. Chumley, the Court finds Mr. Chumley’stestimony to be incredible on this point. Id. at 0069.

• Mr. Chumley contributed content to the website generalsteelscam.comand falsely attributed articles he published online to Jeffrey Knight and

Nathan Wright, indicating his commitment to damaging GeneralSteel’s reputation…Mr. Chumley’s activity on the site

[www.generalsteelscam.com] does indicate that Mr. Chumley wascommitted to damaging the reputation of General Steel. Id. at 0093,0076.

• In that case, the Court [] found both literal falsity and intent to deceive. Id. at 0093.

• While working at Olympia Steel after leaving General Steel, Mr.Chumley sent an obscene email to numerous employees at GeneralSteel under a pseudonym intended to mock certain General Steel

employees against whom Mr. Chumley had a grudge. Id. at 0069.

• In his efforts to get Armstrong off the ground, Mr. Chumley engagedin an online advertising campaign through Google AdWords thattargeted General Steel. For example, as of December 22, 2009,Armstrong had the following sponsored advertisement on Google:“General Steel buildings – Steel framed buildings | Armstrong Steel ...Checkout [sic] various Armstrong Steel buildings – Building framesfor your general steel buildings like commercial steel buildings,

industrial steel buildings. www.armstrongsteelbuildings.com/steel-metal-building-frames.php.” Id. at 0070.

• Over the course of 2009 and 2010, Mr. Chumley was involved in theissuance of a number of internet press releases and internet articles thatused false claims to publicize Armstrong’s capabilities. Some of those


http://www.armstrongsteelbuildings.com/steel-metal-building-frames.php








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articles contained quotes by a fictional individual named J.P.Remington, III, V.P. of International Affairs for Armstrong Steel. One

such article falsely claimed that Armstrong established an “enrichment program . . . benefit[ting] the less fortunate children of the MiddleEast” by helping to rebuild schools in Iraq. See id. Armstrong alsofalsely claimed that, as of May 2010, it was required to “postponeinternational deliveries by one month to meet rising demand here inthe U.S. for their steel buildings.” Id.

• Upon searching for “general steel” in Google on February 27, 2010, aninternet user would likely have seen Armstrong’s sponsoredadvertisement reading “General Steel Buildingswww.ArmstrongSteelBuildings.com Price Your Building Online OrLet Us Do It. Guaranteed Lowest Prices!” Id. at 0072.

• In June 2010, Armstrong had an advertisement that read “GeneralSteel Buildings Price an Armstrong Steel Building Online in MinutesOr Let Us Do It. www.ArmstrongSteelBuildings.com.” Id.

• As of June 11, 2010, when somebody entered the search term “Generalsteel buildings” into Google, Armstrong had advertisements that read

“Don’t Buy General Steel Without Pricing Armstrong First. Price aSteel Building in Minutes! www.ArmstrongSteelBuildings.com,”“Before You Buy General Price Armstrong Steel First GuaranteedLower Prices! www.ArmstrongSteelBuildings.com,” and “GeneralSteel v Armstrong www.ArmstrongSteelBuildings.com Don’t Buy aGeneral Steel Building without Pricing Armstrong First!” Id. at 0072-0073.

• General Steel commenced [that] lawsuit on June 16, 2010. On July 14,

2010, Mr. Chumley emailed his online marketing consultant that hewished to expand the “General Steel” advertising campaign to thesearch engines Bing and Yahoo because defendants were “in litigationover it” and “may as well maximize.” Id. at 0073.


http://www.armstrongsteelbuildings.com/






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• Mr. Chumley’s 2010 email instructing an online marketing consultantto “maximize” the use of General Steel’s name because Armstrong

was in litigation was indicative of Armstrong’s determination to targetGeneral Steel. Id. at 0093.

• Sometime later that same summer, the search engine companies toldArmstrong to stop using “General Steel” in its advertising copy. Id. at0073.

• In August 2010, Armstrong began directing visitors to its home pageto a webpage entitled “May the Best Building Win.” A visitor to the

page then saw General Steel’s corporate logo on the left withArmstrong’s corporate logo on the right. Id.

• Mr. Chumley was responsible for creating a website entitledgeneralsteelscam.com. The website was intended, and likely wasunderstood, to be directed at plaintiff. (“General Steel Scam is aworldwide online consumer reporting Web site and publication thatallows customers who have been ripped off by General Steel to fileand document complaints about General Steel Buildings, Anthem SteelBuildings, Discount Steel Buildings, Capital Steel Buildings and CEOs

Jeff Knight and Nathan Wright.”) Id. at 0081-0082.

• Mr. Chumley falsely attributed articles he published online to JeffreyKnight and Nathan Wright, indicating his commitment to damagingGeneral Steel’s reputation. Id. at 0093.

• Armstrong was not only asked by General Steel, but required by themajor search engines, to stop using General Steel’s name in itsadvertising. Nonetheless, Armstrong issued new advertisements

falsely comparing itself to General Steel and falsely stating that it provides “general steel” buildings. Id. at 0101-0102.

• It continued to disseminate these false advertisements even afterGeneral Steel brought an administrative claim before the World




8

Intellectual Property Organization and after the close of discovery inthis case, showing that enforcement proceedings are not sufficient to

deter Armstrong from disseminating false advertising. Armstrong’s pattern of willful deception betrays a conscious desire to benefit fromfalse statements. Id. at 0102.

Thus, the dispute between these parties is far more longstanding, and pernicious,

than Defendants’ Statement of the Case antiseptically portrays it.

Apart from its omission of context, Defendants’ Statement of the Case is

wrong when it says that “The material content on the IRLM page was all copied

from third-party internet sites – Defendants did not create any of it.” Defendants

thus misdirect this Court, because this case involves content that is indisputably

Defendants’ original creation. Defendants’ appeal considers only the case

“snippets” – but apart from those, all of the content at issue in the case is

Defendants’ original authorship. Defendants created an entire webpage, entitled

“Industry Related Legal Matters” – a wolf-in-sheep’s-clothing label portraying the

page as operated by official industry watchdogs. Appellants’ App. at 0286.

Despite its putatively objective label, the page focuses upon General Steel legal

matters. Beyond the page itself, there is a pop-up box on Defendants’ site. Id. at

0281-0284. Beyond Defendants’ website, there are Internet ads linking to the page

that were Defendants’ exclusive creations. Id. at 0266-0280. Those ads are alleged




9

to be some of the primary false advertising and defamation at issue. That material

is not even arguably within 47 U.S.C. § 230. Judge Blackburn found as much, and

Defendants do not appeal that part of his ruling.

Even as to the snippets that Defendants’ brief myopically focuses upon, the

legal “matters” are not extracted from source material fairly or completely. Instead,

Defendants have carved out parts to create text that denigrates General Steel. In

some places, the underlying text itself was even re-sequenced. To say it was

“copied” is the same as saying that a ransom note created by cutting words out of a

magazine and pasting them onto a blank sheet of paper is “copied” from the

magazine. It is not the same at all.

Defendants’ IRLM “advertising” is not like Yelp, Yahoo, or another neutral

conduit that the CDA may protect for the sake of enabling proliferation of the

Internet. Instead, it is the latest known attack on Plaintiff by its malicious

competitor in an illegal guerilla campaign terrorizing Plaintiff’s business and its

people.

SUMMARY OF THE ARGUMENT

In terms of jurisdiction, the collateral order doctrine is inapplicable. First,

Defendants only appeal part of Judge Blackburn’s CDA ruling, which in turn is




10

only part of the case below. There can be no “immunity from suit” because a suit to

and through trial is inevitable no matter how this Court rules. This appeal is thus a

gambit to make Plaintiff suffer “justice delayed [and thereby] justice denied.”

Even in a vacuum, the CDA provides immunity from liability, not from suit.

Hence the District Court’s order can be fully reviewed following final judgment

without compromising any interest Defendants might otherwise have. Next,

determination of Defendants’ CDA immunity is not collateral to the merits, but

rather is intimately bound up with the merits. Next, Defendants’ claims of

immunity from suit are belied by their own actions: Defendants never pressed

immunity from suit as a bar to further litigation until they lost on summary

judgment. Their Rule 12 practice advanced different arguments—and they

voluntarily withdrew their Rule 12 motion expressly to continue with District Court

litigation.

In terms of the merits, on whether CDA immunity to Lanham Act claims

exists at all, Defendants concede that the CDA cannot confer immunity to

intellectual property claims; they just dispute whether Plaintiff’s Lanham Act claim

is such a claim. But it is. And further, by its own terms, the CDA’s immunity

extends only to State law causes of action.




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Last, on the issue of CDA immunity as applied here, the parties agree that

FTC v. Accusearch, 570 F.3d 1187 (10th

Cir. 2009), is the central precedent in this

Circuit. The parties differ, however, about how Accusearch should be interpreted,

and how it interfaces with these facts. The parties even differ as to what the facts

are. Defendants would have this Court believe that Defendants simply linked to or

cut-and-pasted other Internet content. But in the District Court, no one disputed

that Defendants have done far more.

STANDARD OF REVIEW

Assuming, arguendo, that Defendants’ CDA defense to liability provided

jurisdiction under the collateral order doctrine, the standard of review in a matter

involving qualified immunity is set forth in Morris v. Noe, 672 F.3d 1185 (10th Cir.

2012):

Because our jurisdiction is limited, we take, as given, the facts that thedistrict court assumed when it denied summary judgment. We mayreview whether the set of facts identified by the district court issufficient to establish a violation of a clearly established constitutionalright, but we may not consider whether the district court correctlyidentified the set of facts that the summary judgment record is

sufficient to prove…. Within this limited jurisdiction, we review denovo the district court's denial of a summary judgment motionasserting qualified immunity.

Id. at 1188-1189.




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ARGUMENT

I. Appellate Jurisdiction (Defendants’ Argument Section III)

A. The Defendants have only partial immunity at best, and partial

immunity is not immediately appealable; the issue is thus not

effectively unreviewable absent immediate appeal.

Defendants’ assertion of wholesale suit immunity is not supported by the

facts: some of the statements about which Plaintiff sued are not covered by the

CDA. There is Internet banner advertising that Defendants admit they created, a

pop-up box on Defendants’ website that they admit they created, and the content on

the IRLM page such as its title that they admit they created. These are the other

subjects of Plaintiff’s case.

Defendants do not dispute that these are not embraced by the CDA.

Defendants have not, and cannot, take issue with the part of Judge Blackburn’s

ruling that “the [] immunity question is focused primarily on the posts created by

the defendants on the IRLM page which contain quotations from and summaries of

the information provided in the links to third party websites.” Appellants’ App. at

0760. By contrast, Judge Blackburn wrote of the ads that “the six Internet search

ads developed by the defendants do not fall within the ken of § 230 immunity. This

is true because the defendants created and developed the content of those ads.” Id;




13

compare Ben Ezra, Weinstein, & Co. v. America Online, Inc., 206 F.3d 980, 984

(10th Cir. 2000):

Plaintiff argues Defendant is not immune from suit under 47 U.S.C. §230 because Defendant acts as both an interactive computer serviceand an information content provider by participating in the creationand development of the stock quotation information. The district court,however, concluded that Defendant qualified for statutory immunity

pursuant to § 230. First, the district court noted that Plaintiff did notdispute that Defendant was an "interactive computer service" asdefined by § 230. Further, the district court found no evidence in therecord that Defendant provided any of the stock quote information atissue.

Defendants cannot clothe clearly non-immune conduct within a cloak of immunity

that reaches only so far at best.

Defendants’ own papers admit that not all of Plaintiff’s case is embraced by

their immunity claim. After noticing this appeal, they moved the District Court to

stay the case and vacate the trial date, writing that “A stay is warranted because the

notice of appeal has divested this Court of jurisdiction regarding those aspects of

the appeal, which are a majority of the case.” A majority of the case is not all of the

case. Whatever is not inside Defendants’ self-styled “majority” of the case will

have to be tried.

Consistent with that practical reality, authority holds that claims of partial

immunity are not immediately appealable. Schopler v. Bliss, 903 F.2d 1373, 1376-




14

1378 (11th Cir. 1990). Because not all of Plaintiff’s case is embraced by

Defendants’ immunity claim, no jurisdiction over this appeal exists. Put another

way, Defendants are wrong when they write that absent immediate review, Judge

Blackburn’s decision will be “effectively unreviewable.” Defendants will be going

to trial no matter what happens on this appeal. Their review can be had after that

trial. Green v. Brantley, 895 F.2d 1387, 1392-1394 (11th Cir. 1990).

This Court thus need go no further with its work. Because trial is inevitable,

Defendants have no immunity from suit. Their “effectively unreviewable []

privilege” not to stand trial does not exist. That crucial element of collateral order

jurisdiction thus also does not exist. Having this appeal take place now can give

Defendants a delay only—and is thus not a proper use of this Court’s time and

resources. This appeal should be dismissed.

B. This case does not fit within the collateral order doctrine’s

historically narrow parameters.

Perhaps fearing a fatal jurisdictional flaw, Defendants begin to argue the

existence of appellate jurisdiction only on their Brief’s 52nd page. There,

Defendants propose that in order to qualify for interlocutory appellate jurisdiction,

they must show that the federal Communications Decency Act provides them with

immunity from suit.




15

To construct their “immunity from suit” argument, Defendants equate CDA

immunity to that of absolute or qualified governmental immunity. But CDA

immunity is not akin to governmental immunity. Even in cases of qualified

immunity, only government officials—and not private parties—can invoke the

collateral order doctrine. Auraria Student Hous. at the Regency, LLC v. Campus

Vill. Apt., LLC, 703 F.3d 1147, 1151-1153 (10th Cir. Colo. 2013); DeVargas v.

Mason & Hanger-Silas Mason Co., 844 F.2d 714, 716-717 (10th Cir. 1988) (the

narrow collateral order doctrine allows an interlocutory appeal of the denial of a

defense of qualified immunity to a public official or to private parties acting under

contractual duties with the government).

This appeal does not fall in any of the very narrow collateral order doctrine

grounds for interlocutory jurisdiction. The Supreme Court has repeatedly

emphasized the "modest scope" of the collateral order doctrine, thus far

acknowledging only four types of orders falling within its purview: orders rejecting

absolute immunity, orders rejecting qualified governmental immunity, orders

rejecting Eleventh Amendment immunity, and orders rejecting double jeopardy

claims. Auraria Student Hous. at the Regency, LLC v. Campus Vill. Apt., LLC , 703

F.3d 1147, 1151-1153 (10th Cir. 2013) (“The Supreme Court has repeatedly




16

cautioned against expansion of the collateral order doctrine. See United States v.

Wampler , 624 F.3d 1330, 1334 (10th Cir. 2010) ("In case after case in year after

year, the Supreme Court has issued increasingly emphatic instructions that the class

of cases capable of satisfying this 'stringent' test should be understood as 'small,'

'modest,' and 'narrow.'")).

The private parties-Defendant here certainly do not have an interest sufficient

to warrant expansion of the collateral order doctrine.1

1See also Acoustic Sys. v. Wenger Corp., 207 F.3d 287, 293-294 (5th Cir. 2000)

(Wenger's status as a private defendant does not implicate these concerns. TheParker v. Brown state action doctrine, like the doctrine of qualified immunity, is"interpreted to create an immunity from suit and not just from judgment -- to sparestate officials the burdens and uncertainties of the litigation itself as well as the costof an adverse judgment." Segni v. Commercial Office of Spain, 816 F.2d 344, 346(7th Cir. 1987) (citing Commuter Transp. Systems, Inc., 801 F.2d at 1289-90); seealso 1 Phillip E. Areeda and Herbert Hovenkamp, A NTITRUST LAW P 222b (Reviseded. 1997) ("The importance of Parker's status as an immunity is particularly strongwhen the defendant is a government agency, subdivision, or government officialcarrying out duties. Such entities and officials cannot be intimidated from carryingout their regulatory obligations by threats of costly litigation, even if they mightultimately win."). These concerns are not raised by a suit against a private party.Cf. Wyatt v. Cole, 504 U.S. 158, 167-68, 118 L. Ed. 2d 504, 112 S. Ct. 1827 (1992)(private defendants may not invoke qualified immunity when charged with 42.

U.S.C. § 1983 liability for invoking state replevin, garnishment, or attachmentstatutes later determined to be unconstitutional); Rambo v. Daley, 68 F.3d 203,206 (7th Cir. 1995), ("Mitchell permits interlocutory appeals only where thedefendant is a public official asserting a defense of qualified immunity."); Crippa

v. Dukakis, 905 F.2d 553, 556 (1st Cir. 1990) (a qualified immunity claimant's rightto interlocutory appeal is available only to government officials and conceivably

Under Tenth Circuit




17

precedent, expansion of the collateral order doctrine has been very limited.

Defendants now seek to run against this grain, asking this Court to expand the

scope of the collateral order doctrine greatly by applying it to a malicious private

commercial advertising scheme designed to harm a competitor. They ask for no

less than a new category of appealable collateral order.

But there is no substantial public interest or vitally important issue at stake

here – just the interests of a malicious, albeit creative, individual and his wholly-

owned company. There is no public or private interest at stake warranting anything

other than dismissal of this appeal.

C. The putative immunity is not separate from the merits.

Defendants also argue that the facts around their putative immunity are

separate from, and thus collateral to, “the court’s immunity determination [which]

turned on the legal interpretation of the word ‘development.” In terms of the Cohen

their functional equivalent); Lovell v. One Bancorp, 878 F.2d 10, 13 (1st Cir.1989)(private defendant may not immediately appeal the denial of a motion to

dismiss asserting qualified immunity); Youghiogheny & Ohio Coal Co. v. Baker ,815 F.2d 422, 425 (6th Cir. 1987) (an entitlement not to be sued under Mitchell v.Forsyth is not available to private parties); Chicago & North Western Transp. Co. v.

Ulery, 787 F.2d 1239, 1240-41 (8th Cir. 1986) (the denial of a private defendant'smotion for summary judgment asserting qualified immunity in not an appealablecollateral order)).




18

v. Beneficial Ind. Loan Corp., 337 U.S. 541 (1949), factors, Defendants argue that a

CDA immunity analysis was separate from the merits. Relying upon inapt authority

concerning other types of immunity, including immunities afforded to state actors

and Indian tribes, Defendants propose without elaboration or analysis that the

elements of Plaintiff’s claims “do not require proof of the ‘development’ of

content.” Defendants’ papers do not elaborate upon this naked proposal – and

cannot, because the case’s proof will be entangled with the facts that Judge

Blackburn relied upon to find that Defendants “developed” content.

On page 16 of his Order (Appellants’ App. at 0762), Judge Blackburn’s

relevant language appears: “To the extent the defendants chose certain summaries

and quotations describing the referenced court proceedings, failed to accurately

describe the proceedings as a whole, and posted those quotations and summaries on

the IRLM Page, the defendants developed the information they posted on that

page.” This is a function of the case facts. The same case facts revealing the

process by which Defendants chose material, altered material, created material,

failed to describe events, and posted material on the Internet is central to Lanham

Act materiality and willfulness, the defamatory character of the statements, and the

malice with which Defendants made them. Indeed, this process goes even to the




19

very making of the statements in the first instance. As Plaintiff in this false

advertising and defamation case, General Steel would most certainly put on

evidence about what statements were made, and when, how, via what medium, and

why Armstrong and Mr. Chumley made them. In other words, Plaintiff would

show how Armstrong and Mr. Chumley “developed this information by

highlighting what is allegedly unlawful or legally actionable about the information”

– CDA or no CDA.

On the other hand, Appellants do not suggest how Plaintiff might try its case

without putting on the evidence about how Appellants-Defendants manipulated

Internet content to create something offensive, false, damaging, and defamatory

about Plaintiff. And to the extent this question is even close at all, there is no

interlocutory jurisdiction: where resolving jurisdiction in an interlocutory appeal

would require the court to “scrutinize the dispute between the parties,” the collateral

order doctrine does not apply. Crystal Clear Communc’ns, Inc. v. Sw. Bell Tel. Co.,

415 F.3d 1171, 1179 (10th Cir. 2005). For this reason also, this appeal should be

dismissed.

D. Defendants waived any immunity from suit – i.e., the disputed

question was not conclusively determined.

No assertion of immunity from suit was ever made ripe before Judge




20

Blackburn to determine. No request to stay the case to permit the District Court to

evaluate any immunity from suit was lodged. No motion to dismiss was ever kept

at issue. Because Defendants failed to ripen this issue before the District Court, the

summary judgment order in question does not discuss immunity from suit, taking

this appeal out of the first element of collateral order doctrine jurisdiction, which

permits this Court to review interlocutory district court orders only where they

“conclusively determine the disputed question on appeal ….” Miller v. Basic

Research, LLC , 750 F.3d 1173, 1176 (10th Cir. 2014). The “disputed question”

was not put before Judge Blackburn to rule upon.

It is also notable that Defendants’ belief that they are immune from suit is

newly-acquired, because it calls into question how compelling the interest they are

now appealing really is. As the Brief admits, Defendants filed a Rule 12 motion

early in the case, in which they wrote that “As a result, Defendants are immune

from liability for all claims in which General Steel seeks to treat Defendants as the

speaker of the Reports.” Appellants’ App. at 0167. Indeed, Defendants’ Rule 12

Motion to Dismiss is replete with such judicial admissions. The first sentence of

Defendants’ argument on p 4 of their Motion to Dismiss states: “Because

Defendants did not create or develop the excerpts on the Armstrong Webpage, the




21

CDA immunizes Defendants against liability arising from those excerpts.”

The Heading of their first argument for dismissal (p. 4) states:

A. The CDA immunizes Defendants against liability based on content

that Defendants did not create or develop.

Section 230 of the CDA immunizes interactive computer services against

liability arising from content created by third parties. See Federal Trade

Comm’n v. Accusearch Inc., 570 F.3d 1187, 1196 (10th Cir. 2009).

The Scheduling Order was entered in the District Court case on 10/6/14, in which

Defendants similarly stated:

These articles are available on third-party websites, which Armstronghad no role in the creation of. Regardless of whether content of thesethird-party articles is false or misleading, the CommunicationsDecency Act, 47 U.S.C. §230 (the “CDA”), immunizes ArmstrongSteel against liability based on this third party content. The CDAimmunizes website operators against liability arising from content

created by third parties, even when the website operator tookaffirmative steps to select and edit that content.

The Supreme Court has cautioned that “[o]ne must be careful, however, not to play

word games with the concept of a ‘right not to be tried.’” Midland Asphalt Corp. v.

U.S., 489 U.S. 794, 801 (1989). As more fully discussed below, “immunity from

suit” and “immunity from liability” are two distinct concepts. Defendants’ papers,

on the other hand, would have this Court treat them as synonyms. Defendants

attempt not merely word games, but word metamorphosis.




22

Ultimately, Defendants voluntarily withdrew their Motion on a “suggestion”

from the Magistrate Judge presiding over pre-trial proceedings. Brief at p. 14. The

gist of the Magistrate Judge’s suggestion was that such a withdrawal would “make

matters more efficient” by permitting the legal issues to be raised “as part of a

motion for summary judgment” after full-blown discovery had taken place. Id.

Why would a party armed with a wholesale immunity from suit have thought to

assent to waiver of Rule 12 practice, entry into discovery, and engagement in

summary judgment litigation? Pleasing the presiding Magistrate Judge’s notions of

efficiency is hardly a substitute for the benefits of comprehensive immunity from

suit.

Defendants’ belief that their immunity was one from liability, not suit,

continued on until the eve of trial, which was scheduled to begin in the District

Court on 8/24/2015. Shortly before trial, Defendants tendered their proposed jury

instructions and filed a brief in support of disputed jury instructions. There,

Defendants anticipated that the trial jury would consider the issue of CDA

immunity—by definition, a step that would not be reached if immunity had been an

immunity from suit. Defendants wrote as follows: “The Communications

Decency Act (“CDA”) immunizes from liability website users and operators who




23

republish content on the internet that is created by someone else. 47 U.S.C. §

230(c)(1).” Appellee’s App. at 53. Their full CDA jury instruction is found at

Appellee’s App. at 71-72.

Finally, Defendants try to shelter their advertising campaign within freedom

of speech. Defendants argue that denying CDA immunity from suit is a “vitally

important issue” (Def. Brief at 54: “nothing less than the chilling of First

Amendment freedom of speech on the internet is at issue.”) But the District Court

found that Defendants waived their First Amendment defense. Appellants’ App. at

0767.2

2 The District Court held that “The defendants contend the pure opinion doctrine

precludes General Steel from making a claim based on expressions of opinion in theinternet search ads of the defendants. In the view of the defendants, its statementswarning consumers to “look out” are non-actionable expressions of opinion. Anexpression of harsh judgment with a link to source material is, in the view of thedefendants, a statement of opinion and not fact. The defendants claim that such

statements of opinion are protected by the First Amendment. The plaintiff contendsthe defendants have waived or forfeited a defense based on the First Amendment.The defendants did not plead such a defense in their answer [#57]. No such defenseis included in the Final Pretrial Order [#173]. Given these circumstances, I concludethat the defendants have waived or forfeited a defense based on the FirstAmendment.”

See Martinez v. Hooker , 601 Fed. Appx. 644, 648, 2015 U.S. App. LEXIS

1832, *7-8 (10th Cir. 2015) (When an issue has not been properly raised below, 'to

preserve the integrity of the appellate structure, we should not be considered a




24

'second-shot' forum . . . where secondary, back-up theories may be mounted for the

first time.'" Procter & Gamble Co. v. Haugen, 222 F.3d 1262, 1270-71 (10th Cir.

2000) (quoting Tele-Communications, Inc. v. Comm'r , 104 F.3d 1229, 1233 (10th

Cir. 1997)); Smith v. Rogers Galvanizing Co., 128 F.3d 1380, 1386 (10th Cir. 1997)

("We will consider matters not raised or argued in the trial court only in the most

unusual circumstances which may include . . . instances where public interest is

implicated . . . or where manifest injustice would result.") (internal quotations

omitted) (citations omitted).

In any event, notwithstanding Defendants’ waiver of their First Amendment

defense, the First Amendment does not protect commercial speech such as

Defendants’ malicious ad campaign. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv.

Comm'n, 447 U.S. 557, 566, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980) (For

commercial speech to come within the First Amendment, it at least must concern

lawful activity and not be misleading.); Procter & Gamble Co. v. Haugen, 222

F.3d 1262, 1276 (10th Cir. 2000) (false and misleading commercial speech subject

to Lanham Act and not within the First Amendment). Defendants’ proclamation of

free speech and First Amendment is specious at best.

None of the elements of collateral order doctrine interlocutory jurisdiction




25

are present. This case should not be before this Court now.

E. The CDA provides a defense to liability, not immunity from suit.

According to Appellants, CDA immunity is afforded by the following

statutory language: “No cause of action may be brought … that is inconsistent with

this section.” Appellants’ Response to Motion to Dismiss at 3. Appellants’ ellipses

mask a crucial part of the sentence, which reads in full that “No cause of action may

be brought and no liability may be imposed under any State or local law that is

inconsistent with this section.” 47 U.S.C. § 230(e)(3). Thus, the CDA text

underlying Appellants’ putative “immunity from suit” does not confer immunity

from suit at all. Instead, it is a restriction on exposure arising specifically out of

State-law claims. The subsection says nothing about claims based in federal law,

such as Lanham Act claims, or a wholesale immunity from suit against any and all

claims.

Elsewhere, the plain language of the statute provides for a defense to

liability:

(c) Protection for "Good Samaritan" blocking and screening of offensivematerial

***

(1) Civil liability




26

No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to oravailability of material that the provider or user considers to be obscene,lewd, lascivious, filthy, excessively violent, harassing, or otherwiseobjectionable, whether or not such material is constitutionally protected; or(B) any action taken to enable or make available to information content

providers or others the technical means to restrict access to materialdescribed in paragraph (1).

47 U.S.C. § 230.

Consistently, this Court has referred to the CDA as immunity from liability. FTC v.

Accusearch, Inc., 570 F.3d 1187, 1198 (10th Cir. 2009) (The meaning of

responsible becomes an issue under the CDA when a court is considering whether

CDA immunity from liability is unavailable because one is “responsible, in whole

or in part, for the creation or development of information” that is the source of the

liability.) Other courts have also held that the CDA creates immunity from liability,

not suit. Energy Automation Sys., Inc. v. Xcentric Ventures LLC, No. 3:06-1079,

2007 U.S.Dist. LEXIS 38452 at * 40-41 (M.D. Tenn. May 25, 2007) (Although

courts speak in terms of “immunity” . . . this does not mean that the CDA has

created an “immunity from suit” ….Whether or not that defense applies in any

particular case is a question that goes to the merits of that case, and not to the

question of jurisdiction.); Perkins v. LinkedIn Corp., 53 F. Supp. 3d 1222, 1246-




27

1247 (N.D. Cal. 2014) (“As the Ninth Circuit has explained, "Section 230 of the

CDA immunizes providers of interactive computer services against liability arising

from content created by third parties." Fair Hous. Council of San Fernando Valley

v. Roommates.Com, LLC , 521 F.3d 1157, 1162 (9th Cir. 2008) (en banc). Section

230 was enacted to "protect[] websites from liability for material posted on the

website by someone else." Doe No. 14 v. Internet Brands, Inc., 767 F.3d 894, 897-

899 (9th Cir. 2014)”); ClearCorrect Operating, LLC v. ITC , 2015 U.S. App.

LEXIS 19558, *49 (Fed. Cir. Nov. 10, 2015) (Indeed, Congress has enacted laws

and debated bills whose intent is to balance an interest in open access to the Internet

and the need to regulate potential abusers. See, e.g., Communications Decency Act

of 1996, 47 U.S.C. § 230(b)(1), (c)(1) (2012) (statute enacting immunity from

liability for Internet service providers in order to "promote the continued

development of the Internet and other interactive computer services and other

interactive media")); J.S. v. Vill. Voice Media Holdings, LLC , 184 Wn.2d 96, 104,

2015 Wash. LEXIS 951, *10-11, 19 (Wash. 2015) (concurring opinion):

The dissent misreads this statute to provide “immunity” to “‘interactiveservice providers.’” This reading is irreconcilable with the actuallanguage of the statute, which does not include the term or anysynonym of “immunity.” Subsection 230(c)(1) instead provides anarrower protection from liability: the plain language of the statutecreates a defense when there is (1) a provider or user of an interactive




28

computer service (2) whom a plaintiff seeks to treat, under a state lawcause of action, as a publisher or speaker of information (3) that is

provided by another information content provider….It is the languageof the statute that defines and enacts the concerns and aims ofCongress; a particular concern does not rewrite the language.” Barnes,570 F.3d at 1105. I would hold that subsection 230(c)(1) creates adefense to, not an immunity from, liability arising from a cause ofaction that would treat the web host as a publisher or speaker.

Obado v. Magedson, 612 Fed. Appx. 90, 94 (3d Cir. 2015) (the CDA is meant to

shield interactive computer service providers from liability); ClearCorrect

Operating, LLC v. ITC , 2015 U.S. App. LEXIS 19558, *49 (Fed. Cir. Nov. 10,

2015) (“Indeed, Congress has enacted laws and debated bills whose intent is to

balance an interest in open access to the Internet and the need to regulate potential

abusers. See, e.g., Communications Decency Act of 1996, 47 U.S.C. § 230(b)(1),

(c)(1) (2012) (statute enacting immunity from liability for Internet service providers

in order to "promote the continued development of the Internet and other interactive

computer services and other interactive media”)”).

Defendants’ flagship authorities include Ben Ezra, Weinstein, & Co. v.

America Online, Inc., 206 F.3d 980, 984-985 (10th Cir. 2000), but that case holds

that 47 U.S.C. § 230 creates a federal immunity to a State law cause of action that

would hold computer service providers liable for information originating with a

third party. Id. They also cite Zeran v. America Online, Inc., 129 F.3d 327 (4th




29

Cir. 1997),3

As they must, Defendants concede that in Jones, the Sixth Circuit rejected

collateral order doctrine jurisdiction.

Jones v. Dirty World Entertainment Recordings, LLC, 755 F.3d 398

(6th

Cir. 2014), and Ninth Circuit cases including Batzel v. Smith, 333 F.3d 1018

(9th Cir. 2003). But these authorities do not support interlocutory jurisdiction in the

Tenth Circuit.

4

3 Appellants also cite Zeran’s intra-Circuit offspring, Nemet Chevrolet, Ltd. v.

Consumeraffairs.com, Inc., 591 F.3d 250 (4th Cir. 2009). But notably, the FourthCircuit has also recognized that “Immunity [from suit] … derives from‘an explicit statutory or constitutional guarantee that trial will not occur.’” Suhail

Najim Abdullah Al Shimari v. CACI Int'l, Inc., 679 F.3d 205, 217 (4th Cir.2012) (citing Midland Asphalt Corp. v. United States, 489 U.S. 794, 801 (1989)).

Appellate jurisdiction in Batzel was

premised not on the CDA, but instead on the California state anti-SLAPP statutory

scheme. The Batzel court relied on Cal Code Civ. Proc. § 425.16(j), under which

4 Appellants propose that the Sixth Circuit has eaten crow about that jurisdictionaldecision. Appellants specifically point to a phrase “an even earlier interlocutoryappeal,” as compared with “the interlocutory appeal sought by appellants” at somelater time. But here again, Appellants make clever use of omission. Beforereaching the Sixth Circuit, the case went all the way to and through closing

arguments. The “interlocutory appeal sought by appellants” followed a mistrial,declared only after submission of the case to the jury for deliberation. Jones, 755F.3d at 405.

Thus, while Appellants propose that “an even earlier interlocutory appeal”must mean an appeal jurisdictionally premised upon the collateral order doctrine,Appellees propose that “earlier” just means “earlier.”




30

denial of an anti-SLAPP motion is immediately appealable. Batzel, 333 F.3d at

1024. And in later authority, the Ninth Circuit has rejected the extrapolation from

Batzel Appellants now suggest:

But such a broad policy argument does not persuade us that the CDAshould bar [a] failure to warn claim. We have already held that theCDA does not declare a general immunity from liability deriving fromthird-party content." Congress has not provided an all purpose get-out-of-jail-free card for businesses that publish user content on theinternet, though any claims might have a marginal chilling effect oninternet publishing businesses.

Doe v. Internet Brands, Inc., 767 F.3d 894, 898-899 (9th Cir. 2014); accord Levitt

v. Yelp! Inc., 2011 U.S. Dist. LEXIS 99372, *22-23 (N.D. Cal. Mar. 22, 2011).

Last, Appellants cite Zeran not for the proposition that the CDA provides immunity

from suit, but instead for the proposition that it provides a protection against

ultimate liability.

The bulk of authority addressing CDA “immunity” has held that it is a shield

against liability, not an immunity from suit—including the Tenth Circuit. In this

Circuit,

The meaning of responsible becomes an issue under the CDA when acourt is considering whether CDA immunity from liability isunavailable because one is “responsible, in whole or in part, for thecreation or development of information” that is the source ofthe liability.




31

FTC v. Accusearch, Inc., 570 F.3d 1187, 1198 (10th Cir. 2009) (exercising

appellate jurisdiction under 28 U.S.C. § 1291); Ben Ezra, Weinstein, & Co. v.

America Online, Inc., 206 F.3d 980, 984-985 (10th Cir. 2000) (“47 U.S.C. §

230 creates a federal immunity to any state law cause of action ….”) (exercising

appellate jurisdiction under 28 U.S.C. § 1291). The Sixth Circuit’s district courts

have held likewise, despite Appellants’ extrapolations from Dirty World:

Although courts speak in terms of 'immunity' . . . this does not meanthat the CDA has created an 'immunity from suit' …. Whether or notthat defense applies in any particular case is a question that goes to themerits of that case, and not to the question of jurisdiction.

Energy Automation Sys., Inc. v. Xcentric Ventures LLC, No. 3:06-1079, 2007 U.S.

Dist. LEXIS 38452 at *40-41 (M.D. Tenn. May 25, 2007). The Ninth Circuit has

also followed this analysis. Doe, 767 F.3d at 898-899; Levitt v. Yelp! Inc., 2011

U.S. Dist. LEXIS 99372, *22-23 (N.D. Cal. Mar. 22, 2011).

II. Lanham Act vs. CDA

Defendants’ Lanham Act argument merits only brief discussion. Their

flagship case, Kruska v. Perverted Justice Found., Inc., 2008 U.S. Dist. LEXIS

109347 (D. Ariz. July 8, 2008), did not involve a plaintiff asserting a Lanham Act

claim. Instead, the District of Arizona was discussing a blanket challenge to the

CDA as applied to state-law claims, in which the Lanham Act was used as a lever to




32

argue against across-the-board immunity. That court did not consider a question of

whether any CDA immunity can apply to a Lanham Act claim. The Arizona court

noted explicitly that “The Lanham Act would only be applicable” under

circumstances not present in that case—not that the Lanham act could never trump

CDA immunity. Kruska is inapt.

By contrast, Judge Blackburn’s analysis was straightforward. In contrast to

Kruska, he addressed whether the Lanham Act claim that General Steel did lodge

was susceptible to defeat by CDA immunity. The District Court held that it was

not. This is wholly consistent with the CDA’s text, and with Ben Ezra, Weinstein,

& Co. v. America Online, Inc., 206 F.3d 980, 984-985 (10th Cir. 2000) (47 U.S.C.

§ 230 creates a federal immunity to a state law cause of action that would hold

computer service providers liable for information originating with a third party).

See also Parker v. Google, Inc., 422 F. Supp. 2d 492, 503, n. 8 (E.D. Pa. 2006)

(Google argues that it is immune from Lanham Act claims because of its §

230 immunity under the CDA. We agree with those courts that have rejected this

argument based on § 230(c)(2)'s exception for intellectual property laws.); Gucci

Am., Inc. v. Hall & Assocs., 135 F. Supp. 2d 409, 413-15 (S.D.N.Y. 2001) (Section

230 does not immunize ISPs from trademark infringement claims as they fall into §




33

230(c)(2)'s exception for laws pertaining to intellectual property); Perfect 10, Inc.

v. CCBill, LLC , 340 F. Supp. 2d 1077, 1108 (C.D. Cal. 2004) (same); Ford Motor

Co. v. Greatdomains.com, Inc., 2001 U.S. Dist. LEXIS 24780( E.D. Mich. Sept. 25,

2001)(CDA does not apply to Lanham Act claim under “intellectual property”

exception).

Elsewhere, Defendants also ignore the CDA’s explicit text: “No cause of

action may be brought and no liability may be imposed under any State or local law

that is inconsistent with this section.” 47 U.S.C. § 230(e)(3). This text is a

restriction on exposure to State-law claims. It says nothing about claims based in

federal law, such as Lanham Act claims.

III. The CDA as applied (Defendants’ Argument Section I): Defendants

created and developed content on the IRLM page, and are thus“information content providers.”

This argument presents the Court with not one, but two hurdles. First, the

Court is called upon to measure the limits of CDA immunity against the facts of this

case. But before it can do that, it will have to ferret out what the facts about these

publications actually are, and what Defendants did to create them.

Defendants immediately miscast the realm of relevant undisputed facts.

Specifically, “undisputed facts” 3 and 4 appearing at the top of their Brief’s page 21




34

are neither facts nor undisputed. (The source for these “undisputed” “facts” is the

“detailed” Affidavit of party-defendant Ethan Chumley.)

In “fact” 3, Defendants (through Mr. Chumley) propose that they “did not

create the disputed content.” But the “disputed content” encompasses far more

than what “third parties created and published on the Internet,” contrary to the Brief

and Mr. Chumley’s affidavit.5

“Undisputed fact” 4 depends on “undisputed fact” 3. Number 3 proposes that

If Defendants’ publications involved only links to,

or copies of, third-party-created text on the Internet, this case might be different

than it is. But Plaintiff’s claims are premised on more than that. Plaintiff’s claims

involve not only third-party Internet pages and third-party-authored text, but also

Internet banner advertising that was wholly Defendants’ creation and text on the

IRLM page that is indisputably Defendants’ creation (including, for example, the

page’s very title, which was not copied from anywhere). There is also a pop-up box

appearing on Defendants’ website that is indisputably originally-created content.

5 On page 18, the Brief proposes that “Here, the court recognized that all of the

challenged material on the IRLM page was in fact republished from third-partysources.” The District Court recognized no such thing.

In a similar vein, the Brief elaborates upon putatively-undisputed fact 3 beginning on its page 24. It also proposes that “Plaintiff offered no evidence torebut any of these points.” But to the contrary, Plaintiff offered much suchevidence, as this filing describes in detail.




35

Mr. Chumley only copied things, and number 4 proposes that Mr. Chumley didn’t

change anything he copied—at least, not “materially.” But Mr. Chumley cannot

establish beyond dispute that the changes he made to content found on the Internet

are “not material.” In point of fact, the IRLM page “snippets” are surgical

extractions from third-party sources. Those extractions always omit text and

context, and in some instances are rewritten outright. See Appellee’s App. at 31

(Where the color shading of the snippet text changes, the snippet text breaks from

of the source material and is rearranged and re-sequenced.) See also Defendants’

Brief at pp. 33-36 (admitting that as to “IRLM Post #1,” Mr. Chumley created the

publication by stitching together different pieces of text from two different

sources).

Elsewhere, Defendants’ Brief attempts linguistic legerdemain by proposing

that Mr. Chumley did not “create” content, but instead “compiled” it. Brief p. 9 n.

2. Even accepting Defendants’ terminology at face value, this Court can take

notice that to “compile” is to “to make or compose,” even if other sources were the

starting point. The Brief itself contains a poor effort at compressing this

inconsistency into a cohesive denial: “The excerpt in each post was selected by

Defendants and republished on the IRLM page without modification other than




36

trimming the material for length and, in a handful of posts, using non-sequential

portions of text.” Brief at p. 11. The idea that this is not “creation” of material is a

fallacy: an editor can write anything by starting with a document of sufficient depth

and “selecting,” “trimming,” and “using non-sequential portions of text.” In plainer

terms, Mr. Chumley picked individual parts from the source material and assembled

them in a manner akin to cutting words out of a magazine and pasting them onto a

blank sheet of paper.

Congress enacted § 230 to promote freedom of speech in the 'new and

burgeoning Internet medium' by eliminating the 'threat [of] tort-based lawsuits'

against interactive services for injury caused by the communications of others.

Shrader v. Biddinger , 2012 U.S. Dist. LEXIS 38872, 21-25 (D. Colo. Feb. 17,

2012). "Congress specifically found that '[t]he Internet and other interactive

computer services offer a forum for a true diversity of political discourse, unique

opportunities for cultural development, and myriad avenues for intellectual

activity.'" Id.

CDA immunity is not available unless the information at issue was

provided by another information content provider. FTC v. Accusearch, Inc., 570

F.3d 1187, 1195-1196 (10th Cir. 2009). This means that if the defendant wholly or


https://advance.lexis.com/api/document/collection/cases/id/4WNR-04Y0-TXFX-F1V1-00000-00?page=1195&reporter=1107&context=1000516







37

partially created or developed the content, there is no CDA immunity. Id. at 1197.

The court in Accusearch found no CDA immunity for the defendant on this basis.

Under Accusearch, the term “information content provider” is broadly defined. Id.

at 1198.

In Accusearch, the Tenth Circuit found that the defendant was responsible for

developing content where it had researchers locate confidential telephone records

and republish such third-party records. Accusearch, 570 F.3d at 1198-1200. In

regard to “developing” the content, the court found that the defendant made visible

material that was otherwise not readily visible. Id. at 1198. The court held in

relevant part that “to be "responsible" for the development of offensive content, one

must be more than a neutral conduit for that content. That is, one is not

"responsible" for the development of offensive content if one's conduct was neutral

with respect to the offensiveness of the content (as would be the case with the

typical Internet bulletin board).” Id. at 1199. The Tenth Circuit held further that:

This construction of the term responsible comports with the clear purpose of the CDA--to encourage Internet services that increase the

flow of information by protecting them from liability whenindependent persons negligently or intentionally use those

services to supply harmful content. See 47 U.S.C. § 230(a), (b).We therefore conclude that a service provider is "responsible" forthe development of offensive content only if it in some wayspecifically encourages development of what is offensive about the








38

content.

Accusearch, 570 F.3d at 1199-1200 (italics in original) (emphasis added).6

Defendants attempt to render Accusearch inapplicable to this case by calling

relevant parts of the opinion “dicta.” Specifically, they propose that the court’s

discussion of “responsible” is dicta, because there was “no question that

Accusearch was responsible for the development of” the publications at issue. That

is a rash attempt at side-stepping an essential part of the opinion. In connection

with finding that Accusearch was responsible for the offending content, this Court

squarely took on an argument by Accusearch that it was not responsible, citing Ben

Ezra, Weinstein & Co. v. America Online Inc., 206 F.3d 980 (10th Cir. 2000). It

squarely rejected Accusearch’s use of Ben Ezra as a comparator, holding that “In

Ben Ezra [] America Online had done nothing to encourage what made the content

6 Notwithstanding Defendants’ brief, the Sixth Circuit in Jones v. Dirty World

Entertainment Recordings, LLC, 755 F.3d 398, 413 (6th Cir. 2014), did adopt asubstantially identical test: “Consistent with our sister circuits, we adopt thematerial contribution test to determine whether a website operator is "responsible,in whole or in part, for the creation or development of [allegedly tortious]

information.” Id. The Sixth Circuit did not reject Accusearch; to the contrary, itcited Accusearch with approval. What was rejected was the following bluntstandard: “"[d]efendants, when they re-published the matters in evidence, had thesame duties and liabilities for re-publishing libelous material as the author of suchmaterials.” Id.







39

offensive – its alleged inaccuracy. America Online’s conduct was neutral with

respect to possible errors in the stock quotations. It was therefore not responsible

for the offensive content.” Id. at 1199-1200.

The court further wrote as follows:

The meaning of responsible becomes an issue under the CDA when acourt is considering whether CDA immunity from liability isunavailable because one is “responsible, in whole or part, for thecreation or development of information” that is the source of liability.In this context—responsibility for harm—the word responsible ordinarily has a normative connotation. See The Oxford Englishdictionary 742 (2d ed. 1998) (stating one definition of responsible as“Morally accountable for one’s actions.”). As one authority puts it:“[W]hen we say, ‘every man is responsible for his own actions,’ we donot think definitely of any authority, law or tribunal which he mustanswer, but rather of the general law of right, the moral constitution ofthe universe….

Id. at 1198. This dovetails completely with Judge Blackburn’s reliance upon Fair

Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157,

1170 (9th Cir. 2008), which he cited for the proposition that “editing of content

developed by third parties may or may not be development of information for the

purpose of [the CDA], as long as the changes do not contribute to the false,

misleading, or otherwise unlawful nature of the underlying information.”

Appellants’ App. at 0758. Defendants’ argument on appeal that Judge Blackburn’s

analysis was “contrary to the definition of “development” in Accusearch,” Brief at




40

pp. 32-33, is simply wrong.

After trying to deflate Accusearch, Defendants next cite a handful of cases

that are factually distinguishable. O’Kroley v. Fastcase, Inc., 2014 WL 2197029

(M.D. Tenn. May 27, 2014), did not involve a publication formed in Mr. Chumley’s

knowing, deliberate manner – in Judge Blackburn’s words, by “contributing to the

allegedly defamatory or otherwise actionable nature of the underlying information.”

Instead, O’Kroley involved the sterile, inhuman product of Google’s search

algorithms. Contrary to Defendants’ Brief, it is simply not at all true that “what

Google did in O’Kroley and other cases is the same sort of thing Defendants are

sued for here.” The Google algorithm cannot be morally “responsible” for content

development, as Accusearch defines that principle.

Other cases, such as Zeran, Joseph, and Ben Ezra, depart from the instant

case for the very same reason the Accusearch court noted that Ben Ezra did not

apply there: those cases did not involve any contribution to—or “responsibility

for”— what made the content offensive – its alleged inaccuracy. By contrast, there

is a host of reasons that Defendants’ creation of their IRLM page and associated

banner advertising linking to that page involved substantially more than what a




41

“neutral conduit” for Internet information7

(a) Chumley researched and made all of the IRLM postings himself. Appellee’sApp. Sealed at 08, 17 [99:18-21; 101:5-102:11; 206:9-14];

would do, and substantially more than

someone exercising the traditional functions of a publisher would do:

(b) Chumley took old complaints, pleadings, and orders that otherwise would nothave been readily visible by internet users searching for “General Steel.”Appellants’ App. at 0684;

(c) Third-parties cannot post content on the IRLM page. 30(b)(6) Deposition at

Appellee’s App. Sealed at 25 [283:10-13]. Therefore, no information was provided by “independent persons” or third-parties to the IRLM website.Chumley made all postings on the IRLM website himself. Id. at 16 [202:5-7];

(d)

No one has ever submitted content or hyperlinks to Chumley for the IRLMwebsite. Id. at 18 [211:6-16]. And Chumley does not know if anyone has everclicked on his “Click Here” link to seek to submit content. Id.;

(e) No one has ever contacted Defendants to provide additional informationabout any of the IRLM website matters. Id. at 18 [212:11-17].

(f)

Chumley created all of the excerpts or snippets that he pulled out of eachcomplaint, pleading, or order and posted on his IRLM website. Id. at 11 [172:4-8];

(g)

Chumley’s testimony is that he used his own “editorial judgment” to pull the“snippets” he published on the IRLM website and they don’t represent the truthof the litigation. Id. at 16 [202:8 to 203:22].

(h) Chumley testified he has no responsibility to investigate what actually

happened in the lawsuits on his IRLM website. Id. at 19 [214:4-10];

7 "The prototypical service qualifying for [CDA] immunity is an online messaging board (or bulletin board) on which Internet subscribers post comments and respondto comments posted by others." Accusearch, 570 F.3d at 1195.




42

(i) Chumley created the title for his website called “Industry Related LegalMatters.” Id. at 11 [171:19-172:3];

(j)

The title portrays the website in an official looking industry watchdog sitewhen it really doesn’t capture a cross-section of “Industry” Legal Matters, but

primarily General Steel legal matters. Appellants’ App. at 0684;

(k) Chumley’s excerpts/snippets highlight the inflammatory and disparaging parts of unproven Complaints and other pleadings. Id.;

(l) Chumley didn’t search for or post the 39 page federal court Findings andConclusions of Law dated May 7, 2013 issued by Judge Phillip Brimmer

pursuant to which he and Armstrong Steel were found liable for willful falseadvertising targeting General Steel. Appellee’s App. Sealed at 09-10 [102:25-108:11]. Chumley said he didn’t search for this Order to post because he “didn'tknow that [he] was obligated to post every document from every pleading fromevery single case.” Id.

(m) Defendants published the pleadings and snippets in the framework theycreated in order to specifically mislead General Steel’s customers about GeneralSteel’s litigation history. Appellants’ App. at 0685;

(n)

Chumley’s extensive advertising of the IRLM website also establishes thathis conduct was 180 degrees from being “neutral.” Id. at 0706;

(o) Chumley testified that the IRLM website’s purpose is to “educate all of thecustomers searching the internet for General Steel” about General Steel.Appellee’s App. Sealed at 19 [214:19-215:15];

(p) Chumley expanded his advertising campaign of the IRLM website so that allsteel building shoppers (not only customers searching the internet for “GeneralSteel”) would see his IRLM ads and website – he began paying for the IRLM ads

to appear to anyone who searched the internet for the terms “steel buildings” and“metal buildings” – the most commonly searched terms in the steel buildingindustry. Id. at 19 [215:15-218-2];

(q) Chumley uses the IRLM webpage for “remarketing” purposes (that is,through his IRLM ad campaign he seeks to have General Steel’s potential




43

customers click on his IRLM page, and then every time those people access theinternet in the future, they are remarketed –affirmative ads come up on their web

browser for Armstrong Steel). See, Id. at 04 [54:11-55:15 and 56:16-19]. Thisremarketing is certainly creating or developing content;

(r)

Chumley admits the CDA could not apply to the false ads themselves;

(s) Through February 19, 2015, the IRLM website had received at least 33,260views. Id. at 21-22 [225:20-226-5];

(t) Chumley’s IRLM ads have received at least 186,177 “impressions.” Id. at 24[244:2-16]. An impression in the context of online advertising is when an ad is

seen, and is countable. Each time an ad displays it is counted as one impression.See, http://en.wikipedia.org/wiki/Impression_%28online_media%29

(u) “Internet advertising is what we do” Chumley testified. Chumley created atleast 20 unique ads for the IRLM website. Id. at 22-23 [229:21-230:11];

(v)

Defendants get almost all of their business from internet marketing. Id. at 26[313:13-16];

(w)

Chumley admits that the IRLM page is not neutral reporting about all steel building companies. Id. at 27 [319:10-23];

(x)

Chumley admits that the IRLM page is not full and fair reporting about allsteel building companies. Id.

(y) Chumley admits that the IRLM page does not purport to be truthful andcomplete information about steel building industry lawsuits. Id.; and

(z) Chumley testified that he’s always searching the internet looking for newlawsuits to post on the IRLM site and since he created the IRLM site in February2014, he’s found “all sorts of legal matters related to the steel building industry”

and “like a hundred more lawsuits” but he’s been “too busy” for the past year plus to add any lawsuits to his IRLM website. Id. at 17 [206:11-208:19].

Even apart from all of this, there is a material issue of fact about what

actually appears in the snippets, because Mr. Chumley’s deposition testimony is at


http://en.wikipedia.org/wiki/Interactive_advertising

http://en.wikipedia.org/wiki/Impression_%28online_media%29




http://en.wikipedia.org/wiki/Interactive_advertising



44

odds with the selective use of the documents’ material. Compare Appellee’s App.

at 43-44 [141:14-142:12] (the first paragraph or paragraphs of each document were

posted) to Appellee’s App. at 31 (reflecting selective, non-consecutive postings

from varying points in the document).

Having pierced Defendants’ factual misdirection, the Court can focus on the

legal question truly presented, and which the Brief begins to frame on its page 26:

whether Judge Blackburn was correct in that Defendants “developed” information

in a way that eliminates any CDA immunity. For its part, the Brief cites authority

that actually involved true, antiseptic “republication” of material found elsewhere

on the Internet. But, as Judge Blackburn described, this case involves far more than

republication.

CONCLUSION

On page 49, Defendants propose that “if General Steel’s view of the law was

correct, every website that published any false, incomplete, inaccurate, or

misleading information would be denied CDA immunity unless the site operator

independently searched for and included” the truth. This is simply not so. Mr.

Chumley and his company have been, in the words of Judge Brimmer, “targeting”

General Steel for years. The IRLM page and its associated advertising are but the




45

latest skirmish in his war. As such, this Court is not faced with a “traditional

publisher,” but instead with someone who has created a finely-honed artifice used

for commercial defamation.

Because this matter is now before this Court as a consequence of Defendants’

maneuver for delay—as trial is inevitable—this Court should not take jurisdiction

over this appeal, but instead should dismiss it as soon as possible so that the parties

can complete their work before Judge Blackburn. An appeal can be taken after it is

tried and reduced to a final judgment. But if jurisdiction is valid, the District Court

should be affirmed.

Because this Court lacks jurisdiction no oral argument is necessary.

DATED: December 14, 2015. Respectfully Submitted,

/s/ Patrick D. FryeDavid S. FeinPatrick FryeBuilding Services Group, LLC LegalDepartment10639 Bradford RoadLittleton, CO 80127

Attorneys for Plaintiff-Appellee




46

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

Certificate of Compliance With Type-Volume Limitation, Typeface Requirements,and Type Style Requirements

1. This brief complies with the type-volume limitation of Fed. R. App.P. 32(a)(7)(B) because:

☒ this brief contains 9,593 words, excluding the parts of the brief exempted byFed. R. App. P. 32(a)(7)(B)(iii), or

☐ this brief uses a monospaced typeface and contains lines of text, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)and the type style requirements of Fed. R. App. P. 32(a)(6) because:

☒ this brief has been prepared in a proportionally spaced typeface using MicrosoftWord 2007 in 14-point Times New Roman, or

☐ this brief has been prepared in a monospaced typeface and does not contain morethan 10½ characters per inch.

s/ Patrick FryePatrick Frye

Attorney for Plaintiff-Appellee




47

CERTIFICATE OF DIGITAL SUBMISSION

I hereby certify that with respect to the foregoing:

1. All required privacy redactions have been made per Tenth Circuit Rule25.5.

2. If required to file additional hard copies, the ECF submission is anexact copy of those documents.

3.

The digital submissions have been scanned for viruses with the mostrecent version of a commercial virus scanning program, and according to the

program are free of viruses.

s/ Patrick FryePatrick Frye

Attorney for Plaintiff-Appellee




CERTIFICATE OF FILING AND SERVICE

I HEREBY CERTIFY that a true and correct copy of PLAINTIFF /APPELLEE’S RESPONSE BRIEF was served via CM/ECF this 14th day ofDecember, 2015, to the following:

Laura Adriana [email protected]

Adam Ross [email protected]

Mr. Kyle W. Brenton

[email protected], [email protected]

Mr. David S. [email protected], [email protected]

Mr. Patrick D Frye [email protected], [email protected]

Mr. David S. [email protected], [email protected]

Mr. Hugh Quan Gottschalk

[email protected], [email protected], [email protected]

Mr. Craig Ruvel [email protected], [email protected], [email protected]

Mr. Henry [email protected], [email protected]

Mr. Kenneth E. [email protected], [email protected]

Mrs. Shannon Wells [email protected], [email protected]

s/ Patrick Frye


mailto:[email protected]













































































general steel v. chumley - response brief

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