Waitts respond to Internet Brands counterclaim regarding Lavont Flanders rape case in Waitt v. Internet Brands

In a recent filing (pdf), attorneys for Donald Waitt and Tyler Waitt responded to the counterclaim by Internet Brands that the Waitts were in breach of contract and committed fraud (concealment) when the Waitts failed to inform Internet Brands of a criminal case involving Lavont Flanders.

In a recent filing (pdf), attorneys for Donald Waitt and Tyler Waitt responded to the counterclaim by Internet Brands that the Waitts were in breach of contract and committed fraud (concealment) when the Waitts failed to inform Internet Brands of a criminal case involving Lavont Flanders. Lavont Flanders is a former Miami Beach, Florida cop accused of raping five women he allegedly contacted using various websites including Model Mayhem. Internet Brands claims the Waitts had an obligation to inform them of the case as there is potential for one or more of the victims to file a lawsuit against Model Mayhem.

Section 230 immunity

In their response, the Waitts contend

All of Internet Brands’ Counterclaims, except for the Breach of Confidentiality, all hinge on allegations regarding Counter-Defendants’ purported failure to report “outstanding liabilities” based on a certain “Lavont Flanders” being charged with raping women he met through modelmayhem.com, the website purchased by Internet Brands from Counter-Defendants. However, there can be no liability against Model Mayhem LLC and the website based on the facts as alleged by Internet Brands, and thus there are not now and never were any “outstanding liabilities” to report to Internet Brands pursuant to the agreement. See Doe II v. MySpace Inc., 175 Cal. App. 4th 561 (2009) (section 230 immunizes Internet social networking sites such as modelmayhem.com from any such liability)

Internet Brands’ First Counterclaim for Breach of Contract [Breach of Representations and Warranties], Third Counterclaim for Fraud, Fourth Counterclaim for Negligent Misrepresentation, and Fifth Counterclaim for Indemnity, all hinge on allegations regarding “threatened claims or litigation” based on a certain “Lavont Flanders” being charged with raping women he met through modelmayhem.com. See Counterclaims, 1111 12-16, 22, 34, 44, and 50. However, as a matter of law, there can be no liability against Model Mayhem LLC or Internet Brands based on the facts as alleged by Internet Brands. Specifically, Internet Brands is immune from liability as a matter of law for any harm that befalls the visitors to the modelmayhem.com site. Under well-established law, Section 230 of the Communications Decency Act] immunizes Internet social networking sites such as modelmayhem.com2 from any purported liability as alleged by Internet Brands in its Counterclaims.

In Doe II v. MySpace Inc., 175 Cal. App. 4th 561 (2009), Plaintiffs, girls ages 13 to 15, were sexually assaulted by adults they met through MySpace, an Internet social networking site. They brought four separate cases, through parents or guardians, against the site, asserting claims for negligence, gross negligence, and strict product liability. The Court of Appeal affirmed the trial court’s sustaining of the demurrer without leave to amend. According to the Court:
“The question posed by this appeal is: Can an Internet Web server such as MySpace Incorporated, be held liable when a minor is sexually assaulted by an adult she met on its Web site? The answer hinges on our interpretation of section 230 of the Communications Decency Act. We hold section 230 immunizes MySpace from liability.”

Myspace, 175 Cal. App. 4th at 563.

Similarly, in Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1099 (9th Cir. 2009), Yahoo moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). Yahoo contended that section 230(c)(l) of the Communications Decency Act renders it immune from liability in this case. See 47 U.S.C. § 230(c)(1). The Ninth Circuit affirmed the district court’s granting of the motion to dismiss, finding that the Act did in fact protect Yahoo from liability as a matter of law.

In Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997), the trial court granted America Online’s motion for judgment on the pleadings and the Fourth Circuit affirmed, holding that immunity is extended even when a provider is notified of objectionable content on its site. The court reasoned:

“Congress‘ purpose in providing the § 230 immunity was thus evident. Interactive computer services have millions of users. [Citation.] The amount of information communicated via interactive computer services is therefore staggering. The specter of tort liability in an area of such prolific speech would have an obvious chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems. Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted. Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect.”