“The ultimate question, though, does not depend on the form of the asserted cause of action; rather, it depends on whether the cause of action necessarily requires that the defendant be treated as the publisher or speaker of content provided by another.”
How later courts described this case
- “The ultimate question, though, does not depend on the form of the asserted cause of action; rather, it depends on whether the cause of action necessarily requires that the defendant be treated as the publisher or speaker of content provided by another.”
- “Courts have routinely held that an arms- length commercial transaction, without more, does not give rise to a special duty to speak with care.”
- “As courts uniformly recognize, § 230 immunizes internet services for third-party content that they publish, including false statements, against causes of action of all kinds.”’
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT FI L. ED
EASTERN DISTRICT OF NEW YORK US, BISfWeT COURT □□□□
penne nee eee nnnnen
* SEP
ALISA BETH WIENER and LEWIS STEVEN
WIENER, individually and AS CO-PERSONAL LONG ISLAND OFFICE
REPRESENTATIVES OF THE ESTATE OF JILLIAN
ROSE WIENER and THE ESTATE OF LINDSAY
ELIZA WIENER, ZACHARY WIENER,
Plaintiffs, MEMORANDUM &
ORDER
22-cv-7081 (GRB)(ARL)
-against-
PAMELA A. MILLER, PETER C. MILLER, |
3 SPRING LANE I LLC, 3 SPRING LANE II
LLC, HOMEAWAY.COM, INC., VRBO HOLDINGS,
INC.,
Defendants.
ne nena meneame nnnnnenemennecen nena X
Appearances:
Andres F. Alonso
David Bruce Krangle
Alonso Krangle LLP
Attorneys for Plaintiffs
425 Broadhollow Road
Suite 408
Melville, NY 11747
Angela A. Lainhart
Nicoletti, Gonson Spinner LLP
Attorneys for the Miller Defendants
555 Fifth Avenue
8" Floor
New York, NY 10017
Daniel Z. Rivlin
Harvey J. Wolkoff
Alexander Sixto Del Nido
Luke William Nikas
Quinn Emanuel Urquhart & Sullivan
Attorneys for the Vrbo Defendants
111 Huntington Avenue
Suite 520
Boston, MA 02199
GARY R. BROWN, United States District Judge:
BACKGROUND
Plaintiffs, a family of five from Maryland, rented a house through the online platform
Vrbo.com (“Vrbo,” together with Homeaway.com Inc., “Vrbo defendants”)! seeking to spend a
week in Sag Harbor, New York in August 2022. See Amended Complaint, DE 32 {J 1-5, 22.
Defendants Peter and Pamela Miller owned and operated the property through the two LLC
defendants, 3 Spring Lane I LLC and 3 Spring Lane I] LLC. /d. 59-78. Plaintiffs filed
instant suit after a fire at the home tragically caused the deaths of Lindsay and Eliza Wiener. Jd.
{7 53-54. On March 29, 2023, the Court held a pre-motion conference addressing the Vrbo
defendants’ anticipated motion to dismiss, DE 24. At the conference the Court dismissed all claims
asserted against the Vibo defendants, “find[ing], without even reaching the CDA issues, this
complaint simply does not articulate a plausible claim under any of the theories specified herein
as against Vrbo. The allegations are threadbare. It defines that term.” Mar. 29, 2023 Tr., DE 31
at 22:12-15. The Court, upon plaintiffs’ request, directed that an amended complaint be filed
within forty-five days. Jd. at 23:6-19. Upon plaintiffs’ filing of their amended complaint, DE 32,
the Vrbo defendants filed a letter containing additional argument and authority in support of their
motion. DE 35. Plaintiffs then responded by letter. DE 42. This opinion follows.
DISCUSSION
Legal Standard
1“Vrbo” is an acronym for “vacation rentals by owner.”
The allegations of the amended complaint are analyzed under the well-know and oft-recited
standard for motions to dismiss as stated in Kaemmlein v. Abbott Lab'ys, 564 F. Supp. 3d 58, 64
(E.D.N.Y. 2021), which discussion is incorporated by reference herein.
Analysis
Even assuming the allegations in the complaint are true, Section 230(c)(1) of the
Communications Decency Act (“CDA”), 47 U.S.C. § 230, and the Vrbo defendants’ lack of
physical control over the property prove an insurmountable barrier to plaintiff's claims for the
same reasons identified at the March 29, 2023, pre-motion conference. Further, plaintiffs have
again failed to allege the existence of any “special relationship” between them and the Vrbo
defendants, foreclosing any claim for negligent misrepresentation.
Section 230 of the CDA
The new allegations, principally that the Vrbo defendants “list and market” the property,
DE 32 { 26, and that “[t]he property in question was placed into the stream of commerce and made
available for rental only by the Homeaway/Vrbo defendants,” id. § 37, fail to establish liability.
Nor does the additional allegation that “[a]ll representations made with respect to the condition of
the property were communicated to the Wiener family by the Homeaway/Vrbo defendants.” Id. J
86. As determined previously, the defendants merely transmit information provided by third-party
property owners and in no way “develop” the content of the messages.” Section § 230 thus remains
a complete bar to the claims for violation of §§ 349 and 350 of the New York General Business
Law. 47 U.S.C. § 230(c)(1) (“No provider or user of an interactive computer service shall be
treated as the publisher or speaker of any information provided by another information content
2 To the extent plaintiffs seek to rely on a 2018 statement from a Vrbo spokesman that Vrbo “require(s] that owners
and managers around the world agree to comply with local safety codes and regulations when listing their properties
with us,” DE 32 at { 40, such reliance is rendered unreasonable by the explicit representation from Vrbo that all
safety information was provided by the hosts. /d. at 16.
provider.”). This protection extends to the transmission of false statements like those alleged to
have been made by the Miller defendants. See, e.g., Marshall's Locksmith Serv. Inc. v. Google,
LLC, 925 F.3d 1263, 1267 (D.C. Cir. 2019) (“As courts uniformly recognize, § 230 immunizes
internet services for third-party content that they publish, including false statements, against causes
of action of all kinds.”’).
The Second Circuit’s holding in Force is dispositive on this point. As The Circuit noted
under circumstances similar to those herein:
Plaintiffs seek to hold Facebook liable for “giving Hamas a forum with which to
communicate and for actively bringing Hamas' message to interested parties.” Appellants’
Reply Br. 37; see also, e.g., Appellants' Br. 50-51 (arguing that the federal anti-terrorism
statutes “prohibit[ ] Facebook from supplying Hamas a platform and communications
services”). But that alleged conduct by Facebook falls within the heartland of what it
means to be the “publisher” of information under Section 230(c)(1). So, too, does
Facebook's alleged failure to delete content from Hamas members’ Facebook pages. See
LeadClick, 838 F.3d at 174 (stating that acting as the “publisher” under Section 230(c)(1)
includes the decision whether to “withdraw” content).
Force v. Facebook, Inc., 934 F.3d 53, 65 (2d Cir. 2019). That Vrbo provided the Millers a platform
to list their home for rental and published information the Millers provided nestles them squarely
within the protections of Section 230. Nothing in the amended complaint overcomes that hurdle.
The allegations that the Vrbo defendants failed to properly vet the information also fail, as Vrbo
has done nothing more than provide “neutral assistance,” i.e. providing users a platform to input
their own content. Herrick v. Grindr, LLC, 306 F. Supp. 3d 579, 589 (S.D.N.Y. 2018), aff'd, 765
F. App’x 586 (2d Cir. 2019) (“An ICS may not be held liable for so-called ‘neutral assistance’ or
tools and functionality that are available equally to bad actors and the app's intended users...To
the extent Grindr contributes to the impersonating profiles, it is through such ‘neutral assistance.””)
(purgandum);, Ynfante v. Google LLC, No. 22-CV-6831 (JGK), 2023 WL 3791652, at *3
(S.D.N.Y. 2023) (“Vetting and verifying are analogous to the quintessential duties of a publisher
to screen and monitor content.”). □
Plaintiffs’ allegation that Vrbo failed to disclose “that the information they are providing
may be false,” DE 32 4 115, is of no moment. As stated above, Section 230’s protections extend
to the publication of false information. See Marshail's Locksmith Serv., 925 F.3d at 1270. That
the Millers may have submitted false information that Vrbo then published has no bearing on
Vrbo’s liability, a conclusion buttressed by the fact that the communication from Vrbo that
plaintiffs seek to rely on to establish liability explicitly states: “The host has provided the following
information about safety features at the property. For the most up-to-date information, contact the
_ property manager directly.” DE 32 at 16 (emphases added). As such, claims three, four, and five
are DISMISSED.
Negligent Misrepresentation
As discussed above, liability for the allegedly false safety information upon which
plaintiffs premise their claim cannot be imposed on Vrbo as a publisher. Claim three is, however,
subject to dismissal for an additional, legally distinct reason. To establish a claim for negligent
misrepresentation, the plaintiff must show, inter alia, that “the defendant had a duty, as a result of
a special relationship, to give correct information.” Herrick, 306 F. Supp. 3d at 598 (quoting
Eidelman v. Sun Prods. Corp., No. 16-CV-3914 (NSR), 2017 WL 4277187, at *4 (S.D.N.Y.
2017)). Plaintiffs have failed to demonstrate that they were in any relationship with the Vrbo
defendants, let alone a “special relationship.” It is well-settled that mere arms-length commercial
relationships do not rise to the level of a special relationship. See, e.g., Henneberry v. Sumitomo
Corp. of Am., 532 F. Supp. 2d 523, 539 (S.D.N.Y. 2007) (“Courts have routinely held that an arms-
length commercial transaction, without more, does not give rise to a special duty to speak with
care.”). To the extent plaintiffs had any relationship with the Vrbo defendants, this relationship
bears no markers of a “special relationship.”
Plaintiffs’ new assertion that “[tJhe relationship between Homeaway/Vrbo and Plaintiffs
was such that Plaintiffs had to rely upon the claims made by the Homeaway/Vrbo defendants in
order to rent the property,” DE 32 4 135, is rendered implausible by the balance of the complaint.
The allegations reveal that the plaintiffs could have contacted the Millers upon receiving the email
incorporated within their complaint instructing them do so if they wanted more information.’
Further, the plaintiffs allege that they spoke to defendant Pamela Miller in person when they
arrived at the property, id. 9 45, affording them an additional opportunity to inquire as to the
condition of the property.
Plaintiff’ s attempted reliance on Vrbo’s “Book with Confidence Guarantee” is misplaced.
The Guarantee explicitly covers only losses due to “Protected Incident{s],” which are defined as:
(1) internet fraud involving theft of booking funds; (2) wrongful denial of entry; (3) material
misrepresentations as to the state of the property; and (4) wrongful deposit loss. See Book with
Confidence Guarantee, DE 35-4 at 3-8. Tellingly, Vrbo limits the types of losses it will reimburse
and explicitly excludes “ANY DAMAGES OTHER THAN AMOUNTS ACTUALLY PAID TO
OR DEPOSITED WITH THE ADVERTISER, INCLUDING ANY INDIRECT LOSSES, LOSS
OF OPPORTUNITY, LOSS OF CUSTOM FEES, OTHER CONTRACTUAL PENALTIES,
AIRFARE, TRANSPORTATION COSTS AND/OR ANY OTHER COST OR EXPENSE.” Jd.
at 4-5 (emphasis in original). Additionally, Vrbo plainly states that users are not protected for
“Tajny loss of funds that is caused by or results from events of force majeure that are considered
outside the control of the Advertiser, such as weather events, natural disasters or construction. □□□□
3 “When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are
referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiffs
possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken.”
Ynfante v. Google LLC, No. 22-CV-6831 (JGK), 2023 WL 3791652, at *2 (S.D.N.Y. June 1, 2023) (citing
Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)).
any loss of funds not involving a Protected Incident.” Jd. at 4. Further, the section defining
“Protections Provided” lists only: (1) arrangement of alternative lodging; (2) rebooking at another
Vrbo property; or (3) monetary reimbursement. Jd. at 3. The clear thrust of this guarantee is the
provision of alternative housing or refund of rental/deposit fees should a property be unavailable
to a guest. Nothing in this guarantee can be said to have misled the Wieners as to the protections
provided by Vrbo. As such, the claim for negligent misrepresentation is DISMISSED.
Newly Asserted Claims: Breach of Contract‘ and Breach of Implied Warranty’
The newly asserted claims for breach of contract and breach of implied warranty appear to
be an attempt to disguise the failed informational claims. This approach has been roundly rejected
as running afoul of Section 230. As Judge Caproni stated:
Courts have interpreted “publication” capaciously to reach claims that, although pleaded
to avoid the CDA, “implicitly require recourse to that content [posted by a third party] to
establish liability or implicate a defendant's role, broadly defined, in publishing or
excluding third party [content].” Cohen, 252 F.Supp.3d at 156. “To put it another way,
courts must ask whether the duty that the plaintiff alleges the defendant violated derives
from the defendant's status or conduct as a ‘publisher or speaker.’ ” /d. (quoting LeadClick
Media, LLC, 838 F.3d at 175) (additional citations omitted); see also Roommates.com,
LLC, 521 F.3d at 1170-71 (explaining that “publishing” includes “any activity that can be
boiled down to deciding whether to exclude material that third parties seek to post online”);
see also Backpage.com, LLC, 817 F.3d at 19-20 (explaining that plaintiffs' claims were
unlikely to succeed because “there would be no harm to [the plaintiffs] but for the content
of the postings”). .
* Though plaintiffs allege in conclusory fashion the existence of a contract between them and the Vrbo defendants,
DE 32 { 172, this allegation is belied by the balance of the complaint. Plaintiffs concurrently allege that Vrbo rented
the property to them, id { 173, but also that the Millers “operated, controlled, rented and or marketed the aforesaid □
premises...and therefore had an interest in attracting and consummating rental agreements with consumers.” Id.
207 (emphasis added). Further, plaintiffs allege the Millers received $8,000 for the week’s rental, id. 1 218, directly
contradicting their assertion that they entered into a contract with Vrbo by nominally paying a‘sum to Vrbo to secure
the rental. Jd 7 172. Vrbo is nothing more than an intermediary providing a forum for transactions between third
parties in the same way that Craigslist is not a party to every transaction that facilitated by its platform.
5 There is no claim for breach of implied warranty for services in New York. See Mill-Run Tours, Inc. v.
Windstream Servs. LLC, No. 16 CIV. 7052 (ER), 2017 WL 2930932, at *4 (S.D.N.Y. July 7, 2017) (“In New York,
express and implied warranties apply only to the sale of goods; there is no cause of action for breach of warranty in
the performance of a service.”). Even if there was, however, the claim would nonetheless fail as Vrbo made no
warranty by merely relaying information from the Millers to the plaintiffs. Finding a warranty herein and imposing
liability on Vrbo would, again, run afoul of Section 230.
Herrick, 306 F. Supp. 3d at 590. Couching this claim as one for breach of contract or implied
warranty does not change the outcome. See Jane Doe No. I v. Backpage.com, LLC, 817 F.3d 12,
19 (1st Cir. 2016) (“The ultimate question, though, does not depend on the form of the asserted
cause of action; rather, it depends on whether the cause of action necessarily requires that the
defendant be treated as the publisher or speaker of content provided by another.”). Liability could
not be established here without treating Vrbo as a publisher, the exact outcome Section 230 was
enacted to avoid. Cohen v. Facebook, Inc., 252 F. Supp. 3d 140, 156 (E.D.N.Y. 2017), affd in
part, dismissed in part sub nom. Force v. Facebook, Inc., 934 F.3d 53 (2d Cir. 2019) (“Section
230(c)(1) is implicated not only by claims that explicitly point to third party content but also by
claims which, though artfully pleaded to avoid direct reference, implicitly require recourse to that
content to establish liability or implicate a defendant's role, broadly defined, in publishing or
excluding third party communications.”). Simply put, but for the publication of the Miller’s
listing, the plaintiffs would not have suffered the harm they allege.® In that regard, the label affixed
to these claims is immaterial. As such, the claims for breach of contract and implied warranty are
DISMISSED.
Lack of Duty
The claims for negligence and gross negligence, counts one and two, fail as against the
Vrbo defendants for the same reasons identified during the March 29, 2023 pre-motion conference.
Principally, defendants exercised no physical control over the property and thus owed no duty of
§ In a factually analogous case, Judge Koelti recently held:
In this case, the plaintiff's causes of action against Google rest solely on the theory that Google did not
block a third-party advertisement for publication on its search pages. But for Google's publication of the
advertisement, the plaintiff would not have been harmed. See, e.g., Compl. 4 38-39, 61. The plaintiff
therefore seeks to hold Google liable for its actions related to the screening, monitoring, and posting of
content, which fall squarely within the exercise of a publisher's role and are therefore subject to Section
230’s broad immunity.
Ynfante, 2023 WL 3791652, at *2,
care to plaintiffs. See Mar. 29, 203 Tr., DE 31 at 23:1-7 (“[The complaint] doesn’t say they control
the premises. And of course, it can’t say because this just simply a situation of an advertisement
mechanism.”); see also Stevenson v. Saratoga Performing Arts Ctr., Inc., 981 N.Y.S.2d 877, 879
(2d Dep't 2014) (“In the context of premises liability, a party owes a duty to take reasonable
measures to protect others from dangerous conditions on the property only where that party owns,
occupies or controls the property or makes a special use of it.”). As such, the claims predicated
upon wrongful death and conscious pain and suffering, counts eight through eleven, fail as well.
See, e.g., Phillips v. City of Middletown, 2018 WL 4572971, at *11 (S.D.N.Y. Sept. 24, 2018)
("Under New York law, to recover damages for wrongful death, a plaintiff must prove...a
wrongful act, neglect or default of the defendant that caused the decedent’s death.”) (citing N.Y.
Est. Powers & Trusts Law § 5-4.1)). Thus, the claims for negligence, gross negligence, wrongful
death, and conscious and pain suffering are DISMISSED.
CONCLUSION
Based on the foregoing, plaintiff's complaint is DISMISSED with prejudice as to
defendants Homeaway.com, Inc. and Vrbo Holdings, Inc.
SO ORDERED.
Dated: Central Islip, New York
September 29, 2023
/s/ Gary R. Brown
GARY R. BROWN
United States District Judge