General Steel v. Chumley - Response Brief
-
Upload
david-s-gingras -
Category
Documents
-
view
219 -
download
0
Transcript of General Steel v. Chumley - Response Brief
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 1/55
i
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
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 2/55
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.
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 2
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 3/55
iii
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 3
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 4/55
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 4
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 5/55
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 5
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 6/55
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 6
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 7/55
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 7
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 8/55
1
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,
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 8
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 9/55
2
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 9
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 10/55
3
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 10
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 11/55
4
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:
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 11
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 12/55
5
• 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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 12
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 13/55
6
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.
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 13
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 14/55
7
• 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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 14
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 15/55
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 15
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 16/55
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 16
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 17/55
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.
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 17
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 18/55
11
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.
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 18
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 19/55
12
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;
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 19
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 20/55
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-
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 20
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 21/55
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.
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 21
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 22/55
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 22
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 23/55
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 23
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 24/55
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)).
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 24
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 25/55
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 25
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 26/55
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 26
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 27/55
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 27
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 28/55
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.
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 28
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 29/55
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 29
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 30/55
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 30
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 31/55
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 31
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 32/55
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 32
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 33/55
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-
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 33
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 34/55
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 34
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 35/55
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 35
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 36/55
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.”
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 36
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 37/55
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.
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 37
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 38/55
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 38
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 39/55
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 §
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 39
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 40/55
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 40
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 41/55
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.
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 41
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 42/55
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 42
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 43/55
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 43
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 44/55
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 44
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 45/55
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.
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 45
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 46/55
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 46
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 47/55
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 47
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 48/55
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.
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 48
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 49/55
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 49
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 50/55
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 50
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 51/55
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 51
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 52/55
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 52
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 53/55
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 53
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 54/55
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 54
8/20/2019 General Steel v. Chumley - Response Brief
http://slidepdf.com/reader/full/general-steel-v-chumley-response-brief 55/55
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
Appellate Case: 15-1293 Document: 01019539045 Date Filed: 12/14/2015 Page: 55