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Ninth Circuit Cleans Up Confusing Opinion in Barnes v. Yahoo!

By Kevin Fayle on June 23, 2009 | Last updated on March 21, 2019
Eric Goldman, author of the Technology & Marketing Law Blog, has written a nice post detailing the Ninth Circuit's changes to the opinion it released last month in Barnes v. Yahoo.

As many of you may recall, the Ninth Circuit declared that Yahoo! was not responsible for the publication of fake profiles on its site (thanks to section 230 of the Communications Decency Act), but also kept the suit alive to determine whether Yahoo! was liable to the plaintiff under a theory of promissory estoppel after a Yahoo representative allegedly promised to remove the profiles but never did.
When the opinion first came out, Goldman pounced on the decision for setting yet another example of poorly reasoned, shoddy section 230 jurisdprudence from the Ninth Circuit.  Almost two years before, a panel of the Ninth Circuit released the widely-derided opinion in Fair Housing Council v., a decision that the Ninth Circuit later had to clean up in en banc proceedings.

Both sides of the Barnes decision requested a rehearing, and the court ended up siding with Yahoo's arguments and granting most of the requests made by the company and the amici filers. 

The court's amended opinion first eliminates a section stating that section 230 was an affirmative defense that couldn't carry a 12b6 motion to dismiss.  Next, the new opinion adds a footnote explaining its absurd statement in the original decision that section 230 only applies to state law claims.  The footnote clarifies that the original opinion only limited section 230 to state law claims because only state law claims were presented in the case. 

This sounds more like an attempt to cover up an embarrassing mistake in the original opinion than a legitimate explanation to me, but it's an important legal distinction to make, so I'm glad the court slipped it in.

Goldman thinks that the changes will probably satisfy the litigants and the case will return to the district court for resolution of the promissory estoppel claim:

I would be surprised if there are further appeals to the Supreme Court at this point. As a result, I believe this case is now effectively ready for further proceedings on remand on the promissory estoppel claim.
He also thinks that Yahoo might want to avoid having a court peer to closely into its internal decisionmaking, and thinks that Yahoo should go ahead and settle the case quietly.

Personally, from the limited material I've seen, Yahoo might find it prudent to cut short further proceedings and settle up rather than have its choices scrutinized too carefully.
That's probably good advice.  No company wants details of its inept refusal to remove false and sexually explicit profiles from its site aired in open court.

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