Herman v Xcentric Defendant SJ Motion

8/7/2019 Herman v Xcentric Defendant SJ Motion

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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

HERMAN & RUSSO, P.C.;MELISSA A. HERMAN;DAVID A. RUSSO,

Plaintiffs,

v.

XCENTRIC VENTURES, LLC, andEDWARD MAGEDSON, and JOHN

OR JANE DOE,

Defendants.

Case No: 10-CV-0398-CAP

DEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF THEIR

MOTION FOR SUMMARY JUDGMENT

Pursuant to Fed. R. Civ. P. 56 and Local Rule 56.1, Defendants Xcentric

Ventures, LLC and Ed Magedson (Defendants) move the court for an order

granting summary judgment as to all claims in this matter. This motion is based on

one basic pointin light of the undisputed material facts, Defendants are entitled

to judgment as a matter of law as to the issue of immunity pursuant to the

Communications Decency Act, 47 U.S.C. 230(c)(1) (the CDA).

I. INTRODUCTIONSince the CDA was enacted in 1996, every state and federal court that has

considered the merits of a claim against the Ripoff Report haswithout

exceptionagreed that Xcentric and Magedson are entitled to immunity under the

Case 1:10-cv-00398-CAP Document 30-1 Filed 08/17/10 Page 1 of 27


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CDA for statements posted by third party users. See, e.g., GW Equity, LLC v.

Xcentric Ventures, LLC, 2009 WL 62173 (N.D.Tex. 2009) (holding Xcentric and

Magedson entitled to immunity under the CDA); Intellect Art Multimedia, Inc. v.

Milewski, 2009 WL 2915273 (N.Y.Sup. 2009) (same); Whitney Info. Network Inc.

v. Xcentric Ventures, LLC, 2008 WL 450095 (M.D.Fla. 2008) (same); Global

Royalties, Ltd. v. Xcentric Ventures, LLC, 544 F.Supp.2d 929 (D.Ariz. 2008)

(same).

Like every prior case in which the CDA was found to protect Defendants,

the current action attempts to use creative lawyering and fancy-sounding

allegations to accomplish exactly what the law does not permitimposing liability

on Defendants for material they did not create or alter in any material respect.

Courts have unanimously determined the CDA expressly prohibits this result and

nothing about this case warrants a different result. As such, Defendants are

entitled to summary judgment.

II. BACKGROUND FACTSDefendants Xcentric and Ed Magedson operate the website

www.RipoffReport.com which allows consumers to post complaints and to review

complaints written by other users. Defendants Statement of Facts (DSOF) 1.

Plaintiffs Melissa A. Herman and David A. Russo are bankruptcy lawyers and



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partners in a firm, Herman & Russo, P.C., with offices in Woodstock, Georgia.

First Amended Complaint (FAC; Doc. #12) 13.

This case arises from a single report posted on www.RipoffReport.com on

February 11, 2009 by an anonymous author identified as John or Jane Doe. The

text of this report is set forth in 39 of Plaintiffs First Amended Complaint.

DSOF 2. The report is written from the perspective of an unhappy former client

who stated that Plaintiffs accepted $30,000 to handle the authors case but then

failed to return phone calls and otherwise neglected the case. DSOF 3. The

report contains a title with a similar message. DSOF 4.

The Complaint does not allege that the substance of the report was created

by Defendants. Rather, the Complaint alleges that the report was created solely by

John/Jane Doe without any input from Defendants. DSOF 5. Defendants agree

that this allegation is entirely correctthe report was created solely by a third

party without any input or encouragement from Defendants. DSOF 6.

Likewise, the Complaint does not allege that the title of the report was

created by Defendants. Rather, Paragraph 40 of the FAC alleges the author

John/Jane Doe created the reports title without any input or co-development by

Defendants. DSOF 7. Again, Defendants agree that this is correct; every word

in the title as quoted in the FAC was created solely by a third party. DSOF 8.



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Thus far, it is undisputed that every word which forms the basis for

Plaintiffs claims was created solely by John/Jane Doe without any input or

encouragement from Defendants. The next question is obvious: if Defendants did

not create the report or the title, what defamatory information did they create? The

answer is found in Paragraph 42 of the FAC which alleges that Defendants

added the words Rip-off Report: to the beginning of the title of John Does

report. DSOF 9. Plaintiffs also allege that the website address

(www.RipoffReport.com) defames them, as well as the slogans by consumers, for

consumers and Dont let them get away with it. DSOF 10. The exact

location of this added content is shown in the screenshot below:

Text

Added

By

Defendants



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Based on these facts, Plaintiffs seek to hold Defendants responsible for every

word of the entire posting, even the portions which Plaintiffs admit were not

created or altered by Defendants. This argument is directly contrary to well-settled

law. Summary judgment should therefore be entered in favor of Defendants as to

all claims in this case.

III. ARGUMENTBefore tackling specific points, the court should note that this motion relies

on a crucial distinctionthe distinction between text created by Defendants and

text created by a third party user of the Ripoff Report website. As a matter of

course and with one general exception,1 Defendants agree that the CDA does not

apply to text which they themselves created. This point is beyond dispute;

1 The exception is as follows: users of the Ripoff Report website may choose toplace their report into a category such as lawyers. Although the actual words foreach category choice were created by Defendants, the decision to select thosewords for a particular report is a choice made by the author, not by Defendants. Asa matter of law, Defendants are still entitled to CDA protection as to user-selectedcategory choices even if the words were initially created by Defendants; Thisminor and passive participation in the development of content will not defeat CDAimmunity, which can even withstand more active participation. Global Royalties,2007 WL 2949002 at *3 (citingBatzel v. Smith, 333 F.3d 1018, 1031 note 19 (9

thCir. 2003)); see also Whitney Information Network, Inc. v. Xcentric Ventures, LLC,2008 WL 450095, *10 (M.D.Fla. 2008) (noting, the mere fact that Xcentricprovides categories from which a poster must make a selection in order to submit areport on the ROR website is not sufficient to treat Defendants as informationcontent providers of the reports .); see also GW Equity, LLC v. XcentricVentures, LLC, 2009 WL 62173, *5 (N.D.Tex. 2009) (same).



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Essentially, the CDA protects website operators from liability as publishers, but

not from liability as authors. Global Royalties, Ltd. v. Xcentric Ventures, LLC,

2007 WL 2949002, *3 (D.Ariz. 2007) (emphasis added). Of course, if the text

created by Defendants is not actionable, either because the text is not of and

concerning the plaintiff or because the text is non-actionable opinion, then claims

based on such content would fail even assuming the CDA does not apply.

On the other hand, if defamatory text was created by a third party without

material alteration from Defendants, the CDA prohibits imputing liability to

Defendants for another persons statements; This is precisely the kind of situation

for which section 230 was designed to provide immunity. Fair Housing Council

of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1174 (9th Cir.

2008). This distinction is pivotal because, Under the CDA, website operators are

only considered information content providers, for the information at issue that

the operators are responsible for creating or developing. GW Equity, 2009 WL

62173, * 7 (emphasis added) (citing Carafano v. Metrosplash.com, Inc., 339 F.3d

1119, 1123 (9th Cir. 2003)).

Put another way, if a website creates 1% of a posting, the site is liable only

as to that1%. If the other 99% was created solely by a third party, the website is

not responsible for that part of the text. See Gentry v. eBay, Inc., 99 Cal.App.4th



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816, 833 note 11, 121 Cal.Rptr.2d 703, 717 note 11 (Cal.App.4 th 2002)

(explaining, the fact appellants allege eBay is an information content provider is

irrelevant if eBay did not itself create or develop the content for which appellants

seek to hold it liable. It is not inconsistent for eBay to be an interactive service

provider and also an information content provider; the categories are not mutually

exclusive. The critical issue is whether eBay acted as an information content

provider with respect to the information that appellants claim is false or

misleading.) (emphasis added).

As explained further herein, the standard for CDA immunity is clear and

simplein order to overcome the CDA, Plaintiffs must show that Defendants are

responsible for creating defamatory statements about them and that those

statements are the ones for which Plaintiffs seek to hold Defendants liable. This

showing cannot be made here for three simple reasons:

1.) The undisputed facts show that Defendants did not create either thereport or the title at issue; this information was provided solely by a

third party. As such, the author may be liable to Plaintiffs for his/her

statements, but the CDA fully protects Defendants from liability as to

these statements;



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2.) To the extent Defendants created any content such as the wordsRip-off Report: these words are non-defamatory as a matter of law

and did not materially change the meaning of the original authors

statements. As such, liability cannot be based on these statements;

3.) The remaining content created by Defendants (such as the websiteaddress www.RipoffReport.com and general slogans on the site) is not

of and concerning Plaintiffs and is therefore not actionable by

Plaintiffs.

These three dispositive points are based on facts which are entirely

undisputed. As such, summary judgment should be entered in favor of Defendants.

A.Defendants Did Not Create Any Of The Allegedly DefamatoryText

As described in Paragraph 39 of the FAC, on February 11, 2009 a third party

author identified as John or Jane Doe logged into the Ripoff Report website and

posted a report about Plaintiffs. The full text of this report is quoted verbatim in

Paragraph 39 of the FAC.

Not surprisingly, the web page containing the report includes some content

from the author and some generic content created by Defendants. SOF 11.

When the user submitted this posting to the site, the authors content was



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combined with the existing generic material to create the final standardized page

common to every report on the website. SOF 12.

Generic Website Content OriginalContent from Author

Final Combined Web Page



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The FAC clearly recognizes this distinction by carefully and, for the most

part, correctly separating the allegedly defamatory text created by the author John

Doe, see FAC 39, from the other generic text which Plaintiffs claim was

added after-the-fact by Defendants. See FAC 4146. However, as a factual

matter, Plaintiffs have described the creation of the report in reverse order,

claiming that the author John Doe firstcreated the text of his/her report, and that

after this was done, Defendants then added their own original content to the

report. FAC 39 (emphasis added). This presents the facts in backwards order

and in a deliberately misleading manner.

In reality, the original content created by Xcentric and Magedson referred

to in 4146 of the FAC is nothing more than generic text contained in the

websites code which was created first, long before John Doe wrote the report at

issue here. DSOF 13. This code is part of the preexisting layout and format of

the Ripoff Report website and it is common to all 600,000+ user-generated reports

on the site. DSOF 14. Every page on the entire website includes the same

generic meta tags rip-off, ripoff and rip off which are used to identify the Ripoff

Report website, not to disparage Plaintiffs. DSOF 15.

In fact, although the code/tags can be viewed by anyone with average

technical skills who actively chooses to view the source coding for the website,



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meta tags such as rip-off, ripoff and rip off are not visible when viewing the

report page about Plaintiffs. DSOF 16. Moreover, the tags are not statements

about Plaintiffs; these are merely indexing tools used to accurately describe the

contents and location of the Ripoff Report site. DSOF 17. If these tags were

removed from the report about Plaintiffs, the report itself would appear completely

unchanged to anyone viewing it. DSOF 18.

As such, Defendants did not add their own original content to material

from the third-party author. On the contrary, the reverse is truethe author added

his/her text to the pre-existing generic templates on the Ripoff Report website.

DSOF 19. By doing so, the author caused the creation of the report about the

Plaintiffs (including the meta tags and related contents) and caused Plaintiffs

name to be associated with the domain name www.RipoffReport.com without any

involvement or input from Defendants. DSOF 20.

In fact, prior to the commencement of this lawsuit, Mr. Magedson had never

heard of the Plaintiffs, never saw the report about Plaintiffs, and he added nothing

whatsoever to that report. DSOF 21. In addition, every report submitted to the

site is reviewed by a staff member (known as a content monitor) who is

authorized to remove certain types of offensive or confidential personal material.

DSOF 22. The content monitor who reviewed the report about Plaintiffs states



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that she did not create, alter, or add to the report in any way whatsoever. DSOF

23. These facts are entirely undisputed and they are dispositive of all claims here.

To the extent Plaintiffs seek to dispute the facts by claiming that Defendants

somehow altered or added to the text created by John Doe after it was submitted

to the site, there is simply no evidence to support that allegation because it simply

is not true. Nevertheless, the question of whether Defendants created content such

as the name Ripoff Report is ultimately immaterial to the disposition of this

motion because the fact that the posting at issue contains a combination of some

text from the third party author and some text from Defendants does not make

Defendants jointly liable for every word in the posting. This is not how the CDA

works. Rather, Under the CDA, website operators are only considered

information content providers, for the information at issue that the operators are

responsible for creating or developing. GW Equity, 2009 WL 62173, * 7

(emphasis added). Because the undisputed fact is that Defendants only created the

generic portions of the Ripoff Report website and did not create or alter any part of

the report about Plaintiffs, the CDA applies to bar Plaintiffs claims against

Defendants. On identical facts and as explained above, Defendants have prevailed

on summary judgment in every previous case where the merits of the issue was

addressed. See GW Equity, LLC v. Xcentric Ventures, LLC, 2009 WL 62173



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(N.D.Tex. 2009) (holding Xcentric and Magedson entitled to immunity under the

CDA); Intellect Art Multimedia, Inc. v. Milewski, 2009 WL 2915273 (N.Y.Sup.

2009) (same); Whitney Info. Network Inc. v. Xcentric Ventures, LLC, 2008 WL

450095 (M.D.Fla. 2008) (same); Global Royalties, Ltd. v. Xcentric Ventures, LLC,

544 F.Supp.2d 929 (D.Ariz. 2008) (same).

Because Defendants are so clearly protected by the CDA, frustrated litigants

who dislike or disagree with the law (such as Plaintiffs) have attempted to

creatively plead their way around the CDA by falsely asserting that Defendants

materially contributed to the creation of the user-generated report in some manner.

In recent years, courts have strongly condemned such efforts and have explained

that the CDA must be broadly construed and interpreted to protect websites absent

clear evidence that the site directly contributed to the creation of illegal content:

We must keep firmly in mind that this is an immunity statute we areexpounding, a provision enacted to protect websites against the evilof liability for failure to remove offensive content. Websites arecomplicated enterprises, and there will always be close cases wherea clever lawyer could argue that something the website operator didencouraged the illegality. Such close cases, we believe, must beresolved in favor of immunity, lest we cut the heart out of section

230 by forcing websites to face death by ten thousand duck-bites,fighting off claims that they promoted or encouragedor at leasttacitly assented tothe illegality of third parties. Where it is veryclear that the website directly participates in developing the allegedillegality immunity will be lost. But in cases of enhancement byimplication or development by inference section 230 must be



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interpreted to protect websites not merely from ultimate liability,but from having to fight costly and protracted legal battles.

Roommates.com, 521 F.3d at 117475 (emphasis added). In keeping with the

spirit of protecting websites from claims based on little more than creative

lawyering, courts have frequently held that the CDA applies even when a

defendant adds his own original content to defamatory statements from another

person. See Hung Tan Phan v. Lang Van Pham, 182 Cal.App.4th 323, 105

Cal.Reptr.3d 791 (4th Dist. Ct. App. 2010). In Hung Tan Phan, the defendant

received an email which allegedly defamed the plaintiff in various ways. See

Hung Tan Phan, 182 Cal.App.4th at 32526. The defendant forwarded the email

(which he did not write) to a third party along with an introductory comment

(which he did write). With these facts, the court framed the question as follows:

What happens when you receive a defamatory e-mail and you forward it along,

but, in a message preceding the actual forwarded document, introduce it with some

language of your own? Id. at 325 (emphasis added). This scenario is analogous

to the theory presented by Plaintiffs here.

In arguing that the CDA should not apply, the plaintiff in Hung Tan Phan

suggested that because the defendant added his own comments to the defamatory

email before passing it along, he became responsible for the entire message



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including the text he did not create. See id. The trial court rejected this argument

and the California Court of Appeals affirmed, finding the defendant was entitled to

CDA immunity even though he added his own original content to the third partys

email. This conclusion was based on the rule that a defendants own acts must

materially contribute to the illegality of the internet message for immunity to be

lost. Id. at 326 (emphasis in original). Because the defendants own words were

not defamatory, the Court of Appeals found the CDA applied because, the only

possible defamatory content found in the e-mail was the original content

received by defendant Pham from [the original author]. Nothing created by

defendant Pham was itself defamatory. Id. at 328. For that reason, the appellate

court affirmed the application of CDA immunity. See id.

As discussed in Hung Tan Phan, many other courts have agreed with this

result. See generally Barrett v. Rosenthal, 40 Cal.4th 33, 51 Cal.Rptr.3d 55, 146

P.3d 510 (2006) (CDA provided immunity to defendant who posted an article

authored by a third party to an online newsgroup); Batzel v. Smith, 333 F.3d 1018

(9th Cir. 2003) (defendant who posted message from third party to an online

message board entitled to immunity under the CDA). Consistent with these

standards, courts have routinely held that Xcentric and Magedson are entitled to

CDA immunity even if they add content to reports posted on



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www.RipoffReport.com by third parties. For example, this exact issue was

addressed in GW Equity, LLC v. Xcentric Ventures, LLC, 2009 WL 62173

(N.D.Tex. 2009) where the court was asked to consider, among other things,

whether CDA immunity would be lost based on allegations that Defendants added

geographical information to the titles of existing reports.

Adhering to the traditional rules that CDA immunity will not be lost unless a

defendant is shown to have been directly involved in the creation of the material

which is defamatory, the District Court in GW Equity found that even if

Defendants added information to the title of a report, this was not sufficient to

cause a loss of immunity as to the entire report:

The Court notes that courts have construed immunity under the CDA

broadly in all cases arising from the publication of user-generatedcontent. In addition, even were Defendants to lose CDA immunitywith respect to geographical information in titles, the Court findssummary judgment would still be appropriate. Under the CDA,website operators are only considered information contentproviders, for the information at issue that the operators areresponsible for creating or developing. Thus, even if Plaintiff couldprove by a preponderance of the evidence that Defendants addedgeographical information to the allegedly disparaging titles of thedisparaging reports at issue in this case, the Court finds the addition

of geographical information alone would not be sufficient forDefendants to be liable for defamation/libel, interference withbusiness relationship, business disparagement under Texas law,disclosure of trade secrets and confidential information, and civilconspiracy as a matter of law.



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GW Equity, 2009 WL 62173, *7 (emphasis added) (internal citations omitted)

(quoting Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9

th

Cir. 2003))

(citingDoe v. Myspace, Inc., 528 F.3d 413, 418 (5th Cir. 2008)).

Applying the GW Equity courts logic to the present case, Defendants are

entitled to summary judgment under the CDA because to the extent Plaintiffs are

attempting to impose liability on Defendants for material created by a third party

(such as the body-text of the report as described in FAC 39 or the title as

described in FAC 40), this theory is expressly prohibited by the CDA. It is an

undisputed fact that Defendants did not create and did not alter either the body or

the title of the report. As such, Defendants are entitled to CDA immunity as to

any/all claims arising from that material.

Of course, as the creators of the words Ripoff Report: and the website

address www.RipoffReport.com, the CDA is not implicated because Defendants

agree they created that material. However, this does not mean that summary

judgment should be denied. On the contrary, and bearing in mind that these same

facts were present in every past case in which summary judgment was granted in

favor of Defendants, summary judgment is still appropriate because taken in

context the term Ripoff Report is simply not defamatory as to Plaintiffs or to

anyone else.



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First, as a matter of law, except in cases where the term implies the existence

ofundisclosedfacts which could be defamatory, the phrase rip-off is generally

an expression of opinion, not fact, and for that reason the term cannot support a

claim for defamation under Georgia law. SeeJaillett v. Georgia Television Co.,

238 Ga.App. 885, 891 (Ga.App. 1999) (holding the term rip off was an opinion

incapable of supporting a defamation claim); Fuhrman v. EDS Nanston, Inc., 225

Ga.App. 190, 192, 483 S.E.2d 648 (Ga.App. 1997) (explaining, The expression of

opinion on matters with respect to which reasonable men might entertain differing

opinions is not slanderous.); see also Phantom Touring, Inc. v. Affiliated Pub.,

953 F.2d 724 (1st Cir. 1992) (article referring to an obscure production ofPhantom

of the Opera as a fake, rip-off and a fraud was non-actionable opinion);

Beilenson v. Superior Court, 44 Cal.App.4th 944, 52 Cal.Rptr.2d 357 (2nd Dist.

1996) (finding statement in mailer accusing state official of rip[ping] off

constituents was colorful epithet, [which] when taken in context with the other

information contained in the mailer, was rhetorical hyperbole .); Horowitz v.

Baker, 168 Ill.App.3d 603, 608, 523 N.E.2d 179, 182-183, 119 Ill.Dec. 711, 714 -

715 (Ill.App. 3 Dist. 1988) (finding use of the terms sleazy, cheap, pull a fast

one, secret and rip-off was non-actionable as rhetorical hyperbole.);

Friedman v. Boston Broadcasters, Inc., 402 Mass. 376, 379-380, 522 N.E.2d 959,



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962 (Mass. 1988) (statements accusing plaintiffs of being insurance crooks,

engaged in insurance fraud and blatant and dramatic schemes ... to rip-off

Massachusetts policyholders, was non-actionable expression of opinion); Rizzuto

v. Nexxus Products Co., 641 F.Supp. 473, 477 (S.D.N.Y. 1986) (statements

accusing plaintiff of being just another company trying to RIP YOU OFF! and

warning DONT LET THEM RIP YOU OFF! were non-actionable opinions

because even the most careless reader must have perceived that the word[s were]

no more than rhetorical hyperbole, a vigorous epithet used by those who

considered themselves unfairly treated and sought to bring what they alleged were

the true facts to the readers.) (quoting Greenbelt Cooperative Publishing Ass'n v.

Bresler, 398 U.S. 6, 14, 90 S. Ct. 1537, 1541, 26 L.Ed.2d 6 (1970)); Telephone

Systems Intl, Inc. v. Cecil, 2003 WL 22232908 (S.D.N.Y. 2003) (The defamatory

statements, as alleged, are that Bayat said that Bentham and/or Cecil were ripping

him off. These statements are figurative and hyperbolic, and are not capable of

being disproved.)

Second, as a factual matter, the term Ripoff Report, the website address

www.RipoffReport.com and the general slogans appearing on the site (i.e., Dont

let them get away with it!) are not defamatory as to Plaintiffs because these

statements are not about Plaintiffs; they are merely the name of the website



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operated by Defendants, not expressions of fact aboutPlaintiffs. Indeed, Rip-off

Report is Defendants trademark registered with the United States Patent &

Trademark Office. DSOF 24. In order to establish a claim for defamation, the

plaintiff has the burden of showing, inter alia, that the publication was about the

plaintiff, that is, whether it was of and concerning her as a matter of identity.

Smith v. Stewart, 291 Ga.App. 86, 660 S.E.2d 882 (Ga.App. 2008) (quoting Pring

v. Penthouse Intl., 695 F.2d 438, 439 (10th Cir. 1982)).

Even if the phrase Ripoff Report referred specifically to Plaintiffs (which

it does not), the term ripoff is a common epithet conveying the speakers

subjective opinion which cannot be conclusively proven true or false. Viewed in

context, no reasonable reader could conclude that the use of the term Ripoff

Report implies the existence of other undisclosed facts beyond the true fact that a

report has been posted on the website www.RipoffReport.com. This is particularly

so given that the front page of the website clearly explains that the term ripoff

refers to a consumers opinion which should NOT be relied upon as fact:

Consumers, just because a company or individual is reported on Rip-

off Report does not necessarily mean you should not do business withthem. In many cases, its just the opposite. Just because a companyis posted on Rip-off Report does not mean they are bad. At somepoint in time, everyone has felt like theyve been ripped off, whenthat may not have been the case. Not everything published on theInternet, or local newspapers, or local TV news is always true. Many



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stories, no matter where you see them, may have a bias slant. Beingshort on space or only having less than 2 minutes to do a story where

important facts are left out can change the entire story. Rip-off Reportfeels consumers reading the unedited experiences of other consumers,without editorial involvement, are getting the best consumeropinion/news available.

SOF 24 (emphasis added). Under these circumstances, no reasonable reader

would believe that the application of the term Ripoff Report implies the

existence of any facts beyond those contained in the specific report(s) appearing on

the site. Ripoff Report clearly discloses to readers that reports on the site are the

opinions of the author, are notverified for accuracy, and should notdiscourage the

reader from patronizing the reported business. Whether or not it may have a

negative connotation, taken in context the undisputed facts show the term ripoff

is simply an expression of opinion which is not actionable as a matter of law.

Although the exact issue presented has not been addressed before in

previous cases involving Defendants, an analogous concept was considered and

rejected by the District Courts decision in Global Royalties, Ltd. v. Xcentric

Ventures, LLC, 544 F.Supp.2d 929 (D.Ariz. 2008). There, the plaintiff argued that

Xcentric and Magedson encourage defamatory postings from others for their own

financial gain and, therefore, are partly responsible for the creation or

development of the messages [posted by users of the site]. Global Royalties, 544



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F.Supp.2d at 93233. In an opinion rejecting this argument, the District Court

explained, It is obvious that a website entitled Ripoff Report encourages the

publication of defamatory content. However, there is no authority for the

proposition that this makes the website operator responsible, in whole or in part,

for the creation or development of every post on the site. Id. at 933 (emphasis

added). For this reason, the Global Royalties court agreed that Defendants were

entitled to immunity under the CDA.

As the court held in Global Royalties, generic aspects of the Ripoff Report

site (such as its name and web address) may be negative and/or derogatory, but

ultimately the decision to post a complaint about someone on the site originates

entirely with the author who creates the complaint, not Defendants. Here, there is

no evidence and no allegation that Defendants specifically solicited John Doe to

create the report about Plaintiffs because they simply did not do so. The decision

to create the report about Plaintiffs originated entirely within the mind of the

author, and to the extent anything in the report is inaccurate, Plaintiffs remedy is

against the author, not against Xcentric or Magedson; under 230, plaintiff may

not seek recourse against [the website operator] as publisher of the offending

statements; instead, plaintiff must pursue his rights, if any, against the offending

[website] members themselves. Noah v. AOL Time Warner, Inc., 261 F.Supp.2d



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532, 540 (E.D.Va. 2003) (citing Ben Ezra, Weinstein, & Co. v. America Online,

Inc., 206 F.3d 980, 986 (10

th

Cir. 2000)).

Plaintiffs cannot overcome this result merely by pointing to minute aspects

of website code or Defendants creation of indexing tags used to make the Ripoff

Report site easier to find in search engines such as Google. Such efforts to

generally augment content from a third party is insufficient to defeat the CDAs

robust immunity; a website operator does not become liable as an information

content provider merely by augmenting the content [of online material]

generally. Goddard v. Google, Inc., 640 F.Supp.2d 1193, 1198 (N.D.Cal. 2009)

(brackets in original) (quoting Roommates, 521 F.3d at 116768)). The same is

true here.

IV. CONCLUSIONThe material facts of this case are not disputed. A third party posted a

derogatory complaint about Plaintiffs on the Ripoff Report website. This is

undisputed. The complaint was not created by Defendants nor was it altered in

any material way. This is undisputed. Defendants created the website name

www.RipoffReport.com, generic code such as meta tags rip-off, ripoff, and rip

off, and the general slogans which appear on the site. This is undisputed.



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Based on these undisputed facts, Defendants are entitled to summary

judgment in their favor as to any/all statements contained in the body of the report

as described in Paragraph 39 of the First Amended Complaint and the title of the

report as described in Paragraph 40 of the FAC. There is no dispute that

Defendants did not create any of this information, and as such, the CDA precludes

Plaintiffs from imposing liability upon Defendants for the accuracy of these

statements. To the extent Defendants did create content such as the website name

Ripoff Report and the website address www.RipoffReport.com, these statements

are not actionable because they are not statements of and concerning Plaintiffs

and the term ripoff is simply an opinion, not a statement of fact.

For the above reasons, Defendants move the Court for an order granting

them summary judgment as to all claims in this case pursuant to Fed. R. Civ. P. 56.

Respectfully submitted this 17th day of August, 2010.

/s Megan K. OuztsCameron Hill, Esq.GA Bar No. 353447Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.1800 Republic Centre

633 Chestnut StreetChattanooga, Tennessee 37450-1800Phone: (423) 209-4160Fax: (423) [email protected]



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Megan Kreitner Ouzts, Esq.GA Bar No. 142654

Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.Monarch Plaza, Suite 16003414 Peachtree Road, N.E.Atlanta, Georgia 30326-1164Phone: (678) 406-8736Fax: (678) [email protected]

Maria Crimi Speth, Esq.Arizona Bar No. 012574

Jaburg & Wilk, P.C.3200 North Central Ave., Suite 2000Phoenix, AZ 85012Tel: (602) 248-1000Fax: (602) 248-0522Email: [email protected]

Admitted Pro Hac Vice

David Gingras, Esq.

Arizona Bar No. 021097Xcentric Ventures, LLCPO BOX 310Tempe, AZ 85280Tel.: (480) 668-3623Fax: (480) 639-4996Email: [email protected]

Admitted Pro Hac Vice

Attorneys for Defendants



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CERTIFICATE OF COMPLIANCE

Undersigned counsel certifies the foregoing document has been preparedwith one of the font and point selections (Times New Roman, 14 point) approvedby the Court in Local Rule 5.1(c) and 7.1(D).

August 17, 2010 /s Megan K. OuztsDate Attorney for Defendants



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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

HERMAN & RUSSO, P.C.;MELISSA A. HERMAN;DAVID A. RUSSO,

Plaintiffs,

v.

XCENTRIC VENTURES, LLC, andEDWARD MAGEDSON, and JOHN

OR JANE DOE,

Defendants.

Case No: 10-CV-0398-CAP

CERTIFICATE OF SERVICE

I hereby certify that I have this day caused to be served the foregoingDEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF THEIRMOTION FOR SUMMARY JUDGMENT by filing a copy of same via theCourt's CM/ECF system, which will automatically send notification to the

following attorney(s) of record for Plaintiffs:

Melissa A. Herman, Esq.David A. Russo, Esq.225 Creekstone RidgeWoodstock, GA 30188

[email protected]

8/17/2010 /s Megan K. Ouzts

Date Attorney for Defendants


Herman v Xcentric Defendant SJ Motion

Documents

Transcript of Herman v Xcentric Defendant SJ Motion