Tuesday, April 19, 2016

Minimal pleading of responsibility suffices to evade 230 dismissal

Congoo, LLC v. Revcontent LLC, 2016 WL 1547171, No. 16-401 (D.N.J. Apr. 15, 2016)
The parties compete in the market for native advertising.  Congoo alleged that Revcontent caused false/misleading native advertising to be published.  Revcontent asserted §230 immunity.  The court found the following allegations sufficient to avoid dismissal based on the idea that Revcontent is an “information content provider” for purposes of the false advertising claims:
• Defendants have published or caused to be published many impressions of native advertising unit ads (“Defendants Ads”) with various Published Websites, including Publisher Websites that were previous clients of Plaintiff.
• Many, if not most of Defendants’ Ads and the Advertisement Websites to which the Ads redirect unsuspecting consumers, employ false and misleading advertising intended to deceive innocent consumers out of the significant monies by charging their debit cards or credit cards.
• Defendants have employed the above stated false and misleading representative in advertising to generate greater income from their Ads and those of Defendants’ Advertisers, (emphasis added).)
This sufficiently pled that Revcontent was responsible in part for the development of the subject advertisements.   Eric Goldman will not be pleased.  Nothing about contribution to the content in any way?
Revcontent also challenged whether Congoo adequately pled falsity or standing under §43(a)(1)(B).  However, the complaint alleged “false and misleading representations in advertising” in which Revcontent participated, which was enough for falsity.  As for standing, Congoo alleged that Revcontent’s false and misleading statements in advertising allowed it to generate greater income from ads and therefore to offer more attractive rates to publishers than Congoo could. This was “an injury to a commercial interest in sales or business reputation proximately caused by [Revcontent’s] misrepresentations.”

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