Yahoo and Amici Seek Rehearing in Barnes v. Yahoo

May 22, 2009 · by Eric Goldman · in Derivative Liability

By Eric Goldman

Last week I ruminated at length (3,200 words!) about the Ninth Circuit’s Barnes v. Yahoo opinion. As you may recall, I thought the court’s actual holding–230 preempted a negligence claim but did not preempt a promissory estoppel claim–was mostly correct, although I worry about the normative implications of a promissory estoppel bypass to the 230 immunity. However, I complained loudly about the sloppy drafting and loose reasoning used by the opinion to reach the right result, and I speculated this would be a good case for rehearing by the panel or en banc.

Fortunately, Yahoo has requested such a rehearing. Plus, a coalition of public interest groups led by Public Citizen (and including CDT, CMLP and EFF) have filed an amicus brief in support of Yahoo’s request (see Paul Levy’s post). Both briefs focus on the two most egregious mistakes by the court:

* the sloppy dicta that 230 does not support a 12(b)(6) motion to dismiss, and

* the even sloppier misstatement of the 230 prima facie defense to say that it only applied to state law claims, not federal claims.

Let’s hope the judges grant the rehearing and, at minimum, clean up those two points. Kudos to the Yahoo and amici teams for pushing these issues.

The case library:

* Public Citizen et al amicus brief in support of rehearing

* Yahoo petition for rehearing

* Ninth Circuit opinion and my blog post on it

* Ninth Circuit oral arguments

* District court opinion and my blog post on it

* Barnes’ response to Yahoo’s motion to dismiss

* Yahoo’s brief in support of its motion to dismiss

* Yahoo’s motion to dismiss