Plaintiff doesn't have to rebut 230 immunity in complaint against multiple parties

Moretti v. Hertz Corp., No. 14-469, 2017 WL 1032783 (D. Del. Mar. 17, 2017)

Moretti sued for violation of California’s false advertising, consumer protection, and unfair and deceptive trade practices laws, and common law fraud.  Moretti alleged that prices for car rentals in Mexico were advertised in U.S. dollars but later converted into Mexican Pesos at an artificially inflated rate, leading him and other consumers to pay more than the advertised price for their rentals as a result. Defendants also allegedly failed to inform consumers that the purchase of liability insurance was mandatory, disclosing terms and conditions stating the contrary. Hertz and Dollar Thrifty allegedly supplied the misleading information about car rental prices and terms to Hotwire, and Hotwire incorporated the content into listings on its website. Hotwire allegedly continued to do so despite consumer complaints and Hotwire’s knowledge of the information’s fraudulent content.

Hotwire moved for judgment on the pleadings under §230.   The court found that a complaint need not affirmatively negate any of the elements of Section 230 immunity. Immunity under §230 requires Hotwire not have “contribute[d] materially” to the offending nature of the content, and the complaint was silent on that. “Taking the well-pleaded factual allegations as true, there is no basis in the Complaint from which the Court could conclude that Hotwire did not function as an ICP and did not contribute materially to the alleged misrepresentations.”  Some §230 cases can be decided on the pleadings, but not this one; “the Court cannot treat the Complaint’s silence as to whether Hotwire materially contributed to the false statement as an affirmative allegation that Hotwire did not do so.”  The court was influenced by counsel’s representations at oral argument that, “if needed, [Morelli] could plead sufficient facts to show that Hotwire is not entitled to the protection of Section 230 immunity.”  Given that additional facts would help the parties and the court to understand the case, the court ordered Morelli to amend the complaint “to include any specifics which are in his possession that help to show why Plaintiff believes Hotwire is not immune under Section 230.”