https://encyclopediadramatica.rs/ModelMayhem

after reading Eric’s Nov 24th 2p17 article:

I found this in Google when looking for Model Mayhem details, I am sure MM would not approve this wiki type page used as advertisement.

List this under fake news, it has some…. interesting links… this was my first visit to EA.

It sounds like you didn’t understand what I was saying. My view is NOT that Roommates (or any other defendant) should “spend more money to litigate a case simply to avoid bad appellate precedent”. My suggestion is that they could have saved a huge amount of time and money simply by changing the order in which their arguments were made.

As I said, it’s a mistake to present a defense like the CDA BEFORE you’ve defined the scope of the legal claims you’re defending. So again, using Roommates as an example, rather than using the CDA as the first/main argument, the better strategy would have been to challenge the scope of the legal claims FIRST, and then once that was done, assert the CDA only if needed.

Nothing about this would raise the cost of the case. On the contrary, it would have saved Roommates 6+ years of litigation simply by presenting the same arguments in a different order. If Roommates had begun by attacking the substantive claims (i.e., the Fair Housing Act does not apply at all in this context) first, they would have won on that point without even having to raise any defenses such as the CDA. Far from extending their hospital stay, they would have avoided the hospital completely.

Same thing with Model Mayhem — why rush to assert the CDA as a defense when they could have simply said: “Sorry, no duty to warn exists in this context.” If that is correct, then they win without any need to raise the CDA at all. If you attack the plaintiff’s legal claims first, this allows the court to define and possibly narrow the scope of those claims BEFORE it considers whether the CDA applies. If you raise a defense like the CDA before attacking the legal merit of the plaintiff’s claims, you open the door for Roommate-type decisions where the court must speculate about the scope of the plaintiff’s claims and how the CDA might hypothetically apply (or not apply).

In closing I’ll just repeat my mantra — if a plaintiff sues a defendant and the claims fail for some technical legal reason, a careful lawyer should present that argument FIRST, and then use the CDA only as a fallback position.

But trial counsel and any individual defendant is almost always interested ONLY in resolving a case quickly and cheaply. Why would any rational actor spend more money to litigate a case simply to avoid bad appellate precedent?

The antibiotics example is a good one, but you’re recommending that someone spend a month in the hospital for the good of the herd.

The only problem with this case is that the defense fell into the same cart-before-horse trap that we saw in Roommates; i.e., the defense attempted to use Section 230 as a quick and easy way of exiting the case BEFORE they challenged the merits of the underlying claims. In my view, that is almost always a tactical mistake.

We are all now familiar with the procedural background from Roommates:

1.) Plaintiff sues website defendant claiming it violated the Fair Housing Act;

2.) Defendant says: “Sorry, your claims are barred by the CDA.” Trial court agrees and dismisses case based solely on CDA 230 immunity.

3.) On appeal, 9th Circuit reverses (in part) saying that at least some aspects of the case are not barred by the CDA because, among other things, “it is very clear that the website directly participates in developing the alleged illegality … .”

4.) On remand, the trial court found that Roommates did, in fact, violate the Fair Housing Act, but on appeal the 9th Circuit reversed, concluding that the FHA simply did not apply at all to this situation; “Because we find that the FHA doesn’t apply to the sharing of living units, it follows that it’s not unlawful to discriminate in selecting a roommate.” 666 F.3d 1216, 1222 (9th Cir. 2012).

The net effect of all this is very clear — if Roommates had initially defended the case by arguing that the FHA didn’t apply at all, it would have prevailed REGARDLESS OF THE CDA. Unfortunately, Roommates took a different approach — it sought to invoke the CDA as a shield BEFORE challenging the legal merit of the underlying claims. While I have the absolute highest respect and regard for Roommates’s counsel, in hindsight this was a big mistake.

This tactical choice allowed the 9th Circuit to explore and (re)define the limits of Section 230 (as a defense) BEFORE the court fully understood the exact parameters of the underlying FHA claims. In effect, the 9th Circuit had to solve the CDA dispute blindfolded (because it had to draw legal assumptions about the scope of the underlying FHA claims, and it turns out those assumptions were entirely incorrect).
This produced an awkward and ill-fitting CDA opinion which has caused a real mess in an area which was supposed to be clear.

I see the Model Mayhem case as following a similar path — rather than starting with a challenge the to the existence of a duty to warn, the defendant apparently assumed that such a duty existed and then tried to use the CDA as a shield even though it doesn’t really fit the facts. Net result = another bad ruling.

I am sorry to preach, but the CDA is sort of like antibiotics — when people use it too frequently, and in situations where it’s not really necessary, this helps to create mutant cases that ultimately weaken Section 230. So, moral of the story — use Section 230 as a defense, but ONLY if you really need it. If your client is sued and the claims fail on their own merit for other reasons, then you shouldn’t need to raise Section 230 at all.

So in the end I share Eric’s frustration because whatever the virtues or vices of the court’s reasoning this case was a poor vehicle to address those issues. Because as bad as this case is right now, imagine the disaster if the lower court finds the modelmayhem does in fact have a special relationship under CA law….

This is also a case of really horrible alleged facts leading to a legal outcome that would be unlikely on a set of facts less extreme.