# Nicholas Services, LLC v. Glassdoor, Inc.

> District Court, N.D. California · August 21, 2024

URL: https://www.frixlaw.com/law-library/cases/10639264

## Case

- **Court:** District Court, N.D. California
- **Decided:** August 21, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10639264

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION

NICHOLAS SERVICES, LLC
D/B/A NICHOLAS AIR and
CORR FLIGHT S., INC. PLAINTIFFS

v. No. 3:23-cv-00448-MPM-RP

GLASSDOOR, LLC and
JOHN AND JANE DOE(S) 1-30 DEFENDANTS

MEMORANDUM OPINION
This matter is before the Court on Defendant Glassdoor LLC’s (Glassdoor) Motion to
Dismiss or, in the Alternative, to Transfer This Action to the Northern District of California. [22].
Plaintiffs, Nicholas Services, LLC (Nicholas Air) and Corr Flight S., Inc. (Corr Flight), filed a
response in opposition to the Motion [32], and Defendant Glassdoor filed a Reply. [34]. The Court,
having reviewed the record and carefully considered the applicable law, is now prepared to rule.
BACKGROUND
Glassdoor is an internet website where third parties can post reviews of their employers.
[13]. Nicholas Air and Corr Flight (together, “Nico”) are a closely related pair of companies in the
private jet transportation industry. Id. Nicholas Air acts as the brand, and Corr Flight employs “all
employees who perform duties for the Nicholas Air brand.” Id. John and Jane Does 1-30 (Doe
Defendants) are unknown individuals who have posted content on Glassdoor regarding Nicholas
Air. Id.
When Nicholas Air discovered its review page on Glassdoor, it was not happy. It learned
one or more anonymous individuals had posted defamatory reviews about it in violation of their
employment contract which indefinitely prohibits “disclosure of any and all information related to
or in any way connected to [Nico].” Id. Wishing to correct these reviews, but unable to do so
without claiming a Glassdoor employer account, Nicholas Air was forced to agree to Glassdoor’s
terms of use contract without the opportunity to negotiate. Id. Nicholas Air then contacted
Glassdoor numerous times to have the reviews removed, before sending a detailed demand letter.
Id. Glassdoor, upon receipt of the demand letter, assured Nicholas Air that the demand had been

promptly “escalated to a senior member of [our] team,” who was “working diligently to respond.”
Id. Nicholas Air received no response. Id.
Nico then filed suit for defamation, tortious interference with business relations, tortious
interference with contracts, and (for Doe Defendants) breach of contract. Id. Glassdoor has moved
to dismiss on the grounds of lack of personal jurisdiction, failure to state a claim under Mississippi
law, and immunity under § 230 of the Communication Decency Act. [22]. In the alternative, it has
moved to transfer. Id.
ANALYSIS
A. Standard of Review

In reviewing a motion to dismiss, the Court must take a plaintiff's allegations as true, view
them in a light most favorable to the plaintiff, and draw all inferences in favor of the plaintiff.
F.D.I.C. v. Nathan, 804 F. Supp. 888, 891 (S.D. Texas 1992) (citing Scheuer v. Rhodes, 416 U.S.
232, 236 (1974)). To survive a motion to dismiss, Nico must allege enough facts “to state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (citation omitted). “[W]here the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has
not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. Rule
8(a)(2)).

B. Personal Jurisdiction
Glassdoor first argues that this Court lacks personal jurisdiction. The Court disagrees. The
only contested issue here is whether the exercise of specific personal jurisdiction over Glassdoor
comports with the Due Process Clause of the Fourteenth Amendment; Glassdoor does not contest
Nico’s assertion that Mississippi’s long arm statute is satisfied, and Nico does not contend that
general personal jurisdiction exists. [23, 33, 34].

The Due Process Clause of the Fourteenth Amendment is satisfied when a defendant has
“such ‘contacts’ with the forum State that ‘the maintenance of the suit’ is ‘reasonable’ and ‘does
not offend traditional notions of fair play and substantial justice.’” Ford Motor Co. v. Mont. Eighth
Judicial Dist. Ct., 592 U.S. 351, 358 (2021) (citing Int’l Shoe Co. v. Washington, 326 U.S. 310,
316–17 (1945)). “To comport with due process, the defendant’s conduct in connection with the
forum state must be such that he ‘should reasonably anticipate being haled into court’ in the forum
state.” Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir. 1999) (quoting World-Wide Volkswagen

Corp. v. Woodson, 444 U.S. 286, 297 (1980)).
Specific jurisdiction “encompasses cases in which the suit arises out of or relates to the
defendant's contacts with the forum.” Daimler AG v. Bauman, 571 U.S. 117, 137 (2014). The Fifth
Circuit applies a three-prong specific jurisdiction analysis: “(1) whether the defendant has
minimum contacts with the forum state…; (2) whether the plaintiff's cause of action arises out of
or results from the defendant's forum-related contacts; and (3) whether the exercise of personal

jurisdiction is fair and reasonable.” E. Concrete Materials, Inc. v. ACE Am. Ins. Co., 948 F.3d 289,
296 (5th Cir. 2020) (quoting Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 271 (5th Cir.
2006)).

Additionally, a threshold rule applies when determining, as here, whether specific
jurisdiction is proper over a website for an intentional tort. Johnson v. TheHuffingtonPost.com,
Inc., 21 F.4th 314, 318 (5th Cir. 2021). If the website is passive and only posts content for users to
see, “jurisdiction is unavailable, full stop.” Id. (citing Revell v. Lidov, 317 F.3d 467, 470 (5th Cir.
2002)). If the website is interactive, however, sending and receiving information from its users,
then the Court must apply its “usual tests.” Id. In this case, Glassdoor qualifies as an interactive
website. Users both send and receive information from it by posting and viewing business reviews.
See, e.g., Id. (finding news website interactive when users could both view news stories and post
content); see also Revell, 317 F.3d (finding a university’s online bulletin where users could post

and view information interactive).
Because Glassdoor is an interactive website, the Court must apply its “usual tests.”
Johnson, 21 F.4th at 318. The Fifth Circuit applies the Calder Test for online libel claims. See
Johnson, 21 F.4th at 318; and see Revell, 317 F.3d at 472 (applying Calder v. Jones, 465 U.S. 783
(1984)). “The key question under Calder is whether the forum state was ‘the focal point both of
the [alleged libel] and of the harm suffered.’” Johnson, 21 F.4th at 318 (citing Calder, 465 U.S. at
789). While the Calder Test is satisfied here, this case, unlike Johnson and Revell, does not fit

neatly into the standard internet-libel category where a defendant posts something defamatory
online and a plaintiff sues on that basis. In this case, there are multiple relevant contacts beyond
the defamatory posts, and some are offline. As a result, this case lends itself more appropriately to
the traditional three-prong specific jurisdiction analysis. Cf. Admar Int’l, Inc. v. Eastrock,
L.L.C.¸18 F.4th 783, 786 (5th Cir. 2021) (“The analysis applicable to a case involving jurisdiction
based on the Internet should not be different at its most basic level from any other personal
jurisdiction case.”) (citing Pervasive Software, Inc. v. Lexware GmbH & Co. KG, 688 F.3d 214,
226-27 (5th Cir. 2012).

Under the first prong of the traditional three-prong specific jurisdiction analysis, Glassdoor
has sufficient contacts with Mississippi. Glassdoor created a business review page for Nicholas
Air—a Mississippi company. Glassdoor then allowed purported employees to go to this review
page and leave harmful ratings and reviews about this company and its employees. Some of these
reviews stated that the company was located in Mississippi. Glassdoor then required a company it
knew was from Mississippi to create an employer account before it could see, respond to, or
complain about these negative reviews. Before allowing the company to create this employer
account, Glassdoor required the company to enter a terms of use contract. After the employer

account was created and the company complained to Glassdoor about the reviews, Glassdoor
assured the company that it had escalated the complaint to a senior employee who was working
diligently to respond. Then, Glassdoor never responded. All the while, Glassdoor showcased these
negative reviews to potential Mississippi employees who were interested in working for the
company, harming the company in the process. These contacts show that the maintenance of this
suit is reasonable. Both Glassdoor and its users purposefully directed activity to the forum state,
and Glassdoor should have anticipated being haled into court here.

Under the second prong, Nico’s claims all arise from and relate to Glassdoor’s contacts
with Mississippi. Nico’s claims are all closely related to Glassdoor’s creation of the business
review page, the resulting negative reviews, and Glassdoor’s failure to follow through with Nico’s
business complaint.
After a plaintiff establishes the first two prongs, the burden shifts to the defendant to
establish that the exercise of personal jurisdiction would be unfair or unreasonable, and to do so,
the defendant must make a “compelling case.” E. Concrete Materials, 948 F.3d at 296 (citing
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985). “It is rare to say the assertion of
jurisdiction is unfair after minimum contacts have been shown.” McFadin v. Gerber, 587 F.3d 753,

760 (5th Cir. 2009) (quoting Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 215 (5th Cir. 1999)).
The Fifth Circuit looks at five factors when determining whether the exercise of personal
jurisdiction is fair and reasonable. Nuovo Pignone, SpA v. Storman Asia M/V, 310 F.3d 374, 382
(5th Cir. 2002) (“(1) the burden on the nonresident defendant; (2) the interests of the forum state;
(3) the plaintiff's interest in obtaining relief; (4) the interstate judicial system's interest in the most
efficient resolution of controversies; and (5) the shared interests of the several states in furthering
fundamental social policies.”). Glassdoor raises none of these issues in its memorandum or reply,
instead focusing on its contacts with the forum state. [23, 34]. Because it has not met this burden,
the final prong is satisfied, and personal jurisdiction is proper.

C. Transfer
In the alternative, Glassdoor argues this action should be transferred to the Northern
District of California pursuant to the forum selection clause in the terms of use agreement Nicholas
Air executed when creating its employer account. Although Corr Flight never executed the terms

of use agreement, Glassdoor argues they too should be bound under the theories of agency and
direct-benefit estoppel.
“Decisions to effect a [28 U.S.C. § 1404] transfer are committed to the sound discretion of
the transferring judge, and review of a transfer is limited to abuse of that discretion.” Jarvis
Christian College v. Exxon Corp., 845 F.2d 523, 528 (5th Cir. 1988) (citing Weber v. Coney, 642
F.2d 91 (5th Cir. 1981); Garner v. Wolfinbarger, 433 F.2d 117 (5th Cir. 1970); In re Ralston Purina
Co., 726 F.2d 1002 (4th Cir. 1984); Arkla Exploration v. Texas Oil & Gas Corp., 734 F.2d 347 (8th
Cir. 1984); Roofing and Sheet Metal Serv. v. La Quinta Motor Inns, 689 F.2d 982 (11th Cir. 1982)).
Under Atlantic Marine, the Fifth Circuit analyzes transfer motions brought by a party seeking to
enforce a forum selection clause pursuant to 28 U.S.C. § 1404. In re Rolls Royce Corp., 775 F.3d

671, 677 (5th Cir. 2014) (citing Atlantic Marine Constr. Co. v. U.S. Dist. Ct., 571 U.S. 49, 60
(2013)). “[A] proper application of § 1404(a) requires that a forum-selection clause be ‘given
controlling weight in all but the most exceptional cases.’” Atlantic Marine, 571 U.S. 49, 60 (2013)
(quoting Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 33 (1988)). When a valid forum
selection clause exists, rather than weigh the usual §1404(a) factors including plaintiff’s choice of
forum and the parties’ private interests, “a district court may consider arguments about public-
interest factors only. Id. at 64.

A valid forum selection clause with respect to Nicholas Air appears to exist here. Although
Nico argues that the forum selection clause is procedurally unconscionable, the authority it cites
in support of this is not persuasive. The Fifth Circuit has shown a reluctance towards finding forum
selection clauses unconscionable, see, e.g., Begole v. N. Miss. Med. Ctr., Inc., 761 F. App’x 248
(5th Cir. 2019), and the circumstances here are unlikely to warrant such a finding. See Davis v.
Avvo, Inc., No. 8:10-cv-2352-T-27TBM, 2011 WL 4063282 (M.D. Fla. Sept. 13, 2011) (court
rejected attorney’s argument that online terms of service agreement entered into with attorney-
review website was unconscionable even though he only agreed to the terms to respond to false
information and negative reviews).

With respect to Corr Flight, however, the forum selection clause is not binding. Corr Flight
never executed Glassdoor’s terms of use agreement. Although Glassdoor argues that Corr Flight
should also be bound under a direct-benefit estoppel and agency theory, its supporting authority is
unpersuasive. Nicholas Air and Cor Flight are separate entities. Contrary to Glassdoor’s assertion,
Corr Flight did not “[gain] the ability” to respond on the website when Nicholas Air entered into
a contract with Glassdoor. The employer account was under Nicholas Air’s name, so even if it
could respond, it would do so as Nicholas Air and not Corr Flight. Because Corr Flight received

no benefit from the contract entered into by Nicholas Air, they are not bound by its terms under
the direct-benefit estoppel theory. See Noble Drilling Servs., Inc. v. Certex USA, Inc., 620 F.3d 469
(5th Cir. 2010). Additionally, taking the allegations of the complaint as true and drawing all
reasonable inferences in favor of Plaintiffs, Nicholas Air is not an agent of Corr Flight.
Having only one Plaintiff bound by the forum selection clause complicates the transfer
determination. In re Rolls Royce Corp., 775 F.3d 671, 679 (5th Cir. 2014) (“For cases where all

parties signed a forum selection contract, the analysis is easy: except in a truly exceptional case,
the contract controls. But not so where, as here, not all parties to the lawsuit have entered into a
forum selection agreement.”). One possibility would be to sever the claims and transfer Nicholas
Air’s case to the Northern District of California. The Fifth Circuit has held, “A district court has
wide discretion to sever a claim against a party into separate case.” Id. at 680. “Though we have
not squarely addressed the issue, our jurisprudence suggests that the severance inquiry is
different—and more focused on judicial efficiency—when it is combined with a section 1404
motion to transfer than when the severed case would remain in the original judicial district.” Id.
When “some but not all parties have entered into a forum selection clause,” a severance-and-
transfer inquiry involves three steps:

First, pursuant to Atlantic Marine, the private factors of the parties who have signed
a forum agreement must, as matter of law, cut in favor of severance and transfer to
the contracted for forum. Second, the district court must consider the private factors
of the parties who have not signed a forum selection agreement as it would under a
Rule 21 severance and section 1404 transfer analysis. Finally, it must ask whether
this preliminary weighing is outweighed by the judicial economy considerations of
having all claims determined in a single lawsuit.
Id. at 681. “While judicial economy is not the sole consideration for a district court facing
a severance-and-transfer motion, it retains a cardinal role.” Id.
In Rolls Royce, the Court found that severance and transfer was appropriate. Id. at 683. In
that case, a helicopter owner sued an engine manufacturer, a float manufacturer, and a float
maintenance company after the owner’s helicopter crash landed in the Gulf of Mexico and sank.
Id. at 674. The helicopter owner and the engine manufacturer had agreed to a valid forum selection
clause, and the engine manufacturer moved to sever and transfer its case to the selected forum. Id.
After the district court denied the motion, the engine manufacturer petitioned the Fifth Circuit for
mandamus relief. Id. The Fifth Circuit reversed the district court and found there was no evidence
that the transfer would cause potential administrative difficulties or harm to the non-privy parties.
Id. at 683.
In light of Rolls Royce, severance and transfer is appropriate here. Both the potential
administrative difficulty and the impact on judicial economy are less in this case than in Rolls

Royce. Additionally, there is no evidence that Corr Flight would be harmed by the transfer. This is
not one of the “most exceptional cases” where the public interest factors outweigh the strong
presumption of validity afforded forum selection clauses. Atlantic Marine, 571 U.S. 49, 60 (2013).
D. Failure to State a Claim

Next Glassdoor argues that Nico has failed to state a claim under Mississippi law. In its
First Amended Complaint, Nico claims defamation, tortious interference with business relations,
and tortious interference with contracts. To survive a Rule 12(b)(6) motion, a complaint must
contain sufficient factual matter, accepted as true, to “state a claim for relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)).

Nico’s First Amended Complaint sufficiently states a claim for defamation against
Glassdoor. Defamation requires four elements under Mississippi law: “[1] a false and defamatory
statement concerning another; [2] an unprivileged publication to a third party; [3] fault amounting
to at least negligence on the part of the publisher; and [4] either actionability of the statement
irrespective of special harm or the existence of special harm caused by the publication. Hegwood
v. Comm. First Holdings, Inc., 546 F. Supp. 2d 363, 366 (S.D. Miss. 2008). Nico alleges each of
these elements. Nico did not just make the conclusory statement that Glassdoor defamed it; Nico
attached the posts it alleged were defamatory. As to Glassdoor’s contention that Nico did not clarify

“which statements are allegedly false,” it is readily apparent that Nico asserts all of the reviews are
false by [1] Nico attaching the reviews and [2] stating in its First Amended Complaint, “All of the
Reviews are false.” [13]. Additionally, Glassdoor’s assertion that “the mere suggestion that the
Does are current or former employees of Nicholas is not defamatory,” is not entirely correct. While
a false assertion that someone is an employee of a company is unlikely to be defamatory on its
own, a false assertion that someone who has said something negative about a company is an
employee of that company could be. A negative statement concerning the working conditions or
environment of a company carries more weight when coming from an employee than from a third
party.

Nico’s First Amended Complaint does not sufficiently state a claim for tortious interference
with business relations against Glassdoor. To prove its claim for tortious interference with business
relations, Nico must show that “(1) The acts [by Glassdoor] were intentional and willful; (2) The
acts were calculated to cause damage to the plaintiff in its lawful business; (3) The acts were done
with the unlawful purpose of causing damage and loss, without right or justifiable cause on the
part of the defendant (which constitutes malice); and (4) Actual damage and loss resulted.” Seven
Seas Techs., Inc. v. Infinite Computer Solutions, Inc., 353 F. Supp. 3d 545, 549 (S.D. Miss. 2018).
Nico did not plausibly allege elements (1), (2), and (3). It strains credulity to believe that Glassdoor

acted with the calculated intention of causing damage to Nico, and no facts were presented to
support this.
Likewise, Nico’s First Amended Complaint does not sufficiently state a claim for tortious
interference with contracts against Glassdoor. The elements for tortious interference with contract
are: “(1) that the acts were intentional and willful; (2) that they were calculated to cause damage
to the plaintiffs in their lawful business; (3) that they were done with the unlawful purpose of

causing damage and loss, without right or justifiable cause on the part of the defendant (which
constitutes malice); and (4) that actual damage and loss resulted.” Cenac v. Murry, 609 So. 2d
1257, 1268-69 (Miss. 1992). “[A] cause of action exists by a party to a contract against some third,
outside person who causes the party not to perform.” Id. Similar to above, no facts were presented
suggesting Glassdoor intended to make anyone breach their contract with Nico, and there is no
plausible reason for Glassdoor to do this.
Therefore, the claims of tortious interference with business relations and tortious

interference with contract are dismissed as to Glassdoor.
E. Communications Decency Act § 230
Lastly, Glassdoor argues that Plaintiffs' claims are barred by § 230 of the CDA. Section

230 immunizes websites from liability for content posted online by third parties. 47 U.S.C. §
230(c)(1). Section 230 was enacted “to promote the continued development of the Internet and
other interactive computer services and other interactive media” and “to preserve the vibrant and
competitive free market that presently exists for the Internet and other interactive computer
services, unfettered by Federal or State regulation.” 47 U.S.C. §§ 230(b)(1)-(2). “At its core, § 230
bars ‘lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional

editorial functions—such as deciding whether to publish, withdraw, postpone or alter content.’”
Jones v. Dirty World Entertainment Recordings LLC, 755 F.3d 398, 407 (6th Cir. 2014) (quoting
Zeran v. AOL, 129 F.3d 327, 330 (4th Cir. 1997)).
Specifically, section 230 states: “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 provider.” 47 U.S.C. § 230(c)(1). Both “interactive computer service” and “information

content provider” are statutorily defined terms. The term “interactive computer service” is defined
as “any information service, system, or access software provider that provides or enables computer
access by multiple users to a computer server, including specifically a service or system that
provides access to the Internet and such systems operated or services offered by libraries or
educational institutions.” Id. § 230(f)(2). The term “information content provider” is defined as
“any person or entity that is responsible, in whole or in part, for the creation or development of
information provided through the Internet or any other interactive computer service.” Id. §
230(f)(3). Thus, § 230 distinguishes between content creators and those who provide access to that
content, providing immunity to the latter group.

Glassdoor, operating as a website, qualifies as an interactive computer service and is
therefore afforded protection under § 230. See, e.g., Kimzey v Yelp! Inc., 836 F.3d 1263 (9th Cir.
2016). While every circuit agrees that § 230 protects websites for merely publishing or moderating
third-party content, they diverge in how far the protection extends beyond this. For example, some
circuits consider the negligent design of a website beyond the protective scope of § 230, while
others do not. Compare Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008) (barring negligent
design claim) with Lemmon v. Snap, Inc., 995 F.3d 1085 (9th Cir. 2021) (allowing negligent design
claim).

The protection offered by § 230 in this Circuit is “rather broad” and extends beyond the
traditional publisher’s role of publishing, editing, and removing content. Diez v. Google, 831 Fed.
App’x. 723, 725 (5th Cir. 2020) (unpublished) (per curiam). In Doe v. MySpace, a mother whose
daughter was sexually assaulted by a man the daughter met on the website sued MySpace claiming
it failed to implement basic safety measures to prevent sexual predators from communicating with
minors on its website. 528 F.3d 413, 416 (5th Cir. 2008). On appeal, the mother argued that the

protections of § 230 do not apply because her claim is based on MySpace’s negligent design rather
than any action it took as a publisher. Id. at 417. If MySpace, she argued, had implemented age
verification software, her daughter would never have been able to access the website where she
met the predator. Id. The Court rejected this argument holding, “Their allegations are merely
another way of claiming that MySpace was liable for publishing the communications and they
speak to MySpace's role as a publisher of online third-party-generated content.” Id. at 420.
In the similar case Doe Through Roe v. Snap, Inc., a Texas boy sued Snap for negligent

design, negligent undertaking, and gross negligence. No. 22-20543, 2023 WL 4174061 (5th Cir.
June 26, 2023) (unpublished) (per curium). The boy had been sexually assaulted by his high school
science teacher who used Snapchat to “groom” him and send him sexually explicit messages. Id.
The Fifth Circuit upheld the district court’s dismissal under § 230 and stated that the boy’s
arguments against its application based on public policy and the statute’s text were “contrary to
the law of our circuit.” Id. Relying on its previous opinion in Doe v. MySpace, the Court held, “§
230 of the CDA provides ‘immunity ... to Web-based service providers for all claims stemming
from their publication of information created by third parties.’” Id. (citing Doe v. MySpace, Inc.,
528 F.3d 413, 418 (5th Cir. 2008)).

Although the Fifth Circuit has foreclosed on the liability of websites for their negligent
design when the liability stems from content created by third parties, it has left open the possibility
of liability if websites themselves create the content being published. Diez v. Google, 831
Fed.Appx. 723, 725 (5th Cir. 2020) (unpublished) (per curiam) (“[Plaintiff]’s complaint is without
adequately supported allegations that [Defendant] created the disputed content. [Defendant] is
therefore immune…”); Doe v. MySpace, Inc., 528 F.3d 413, 422 (5th Cir. 2008) (“We therefore
hold, without considering [Plaintiffs]’ content-creation argument…”).

The question thus remains: When does the conduct of a website rise to such a level, or
when is it of such a type as to transform the website from a passive conduit of content into a content
creator and pull them from beneath the protection of § 230? While no Fifth Circuit ruling has
addressed this issue, cases from other courts have.

Although most cases deciding whether a website is also an information content provider
and therefore not protected by §230 have found that the website is not one, some cases have held
otherwise. In Fraley v Facebook, Inc., Facebook was sued by a user for misappropriation of
likeness when, each time the user “liked” a businesses’ profile, Facebook advertised that action to
that user’s friends through a “story” on the friends’ news feeds. 830 F. Supp. 2d 785, 790-93 (N.D.
Cal. 2011). The court held that Facebook was not protected by §230 because “Facebook's actions
in creating Sponsored Stories go beyond ‘a publisher's traditional editorial functions[,] such as
deciding whether to publish, withdraw, postpone or alter content.’” Id. at 802 (quoting Batzel v.
Smith, 333 F.3d 1018, 1031 (9th Cir. 2003) (internal quotation marks omitted)). So, by taking a
user action that was not intended to be communicative and combining that with other information
and broadcasting it to the user’s friends, Facebook rendered itself an information content provider
not protected by § 230. Id.

In Perkins v LinkedIn, Corp., LinkedIn was sued by users for sending nonconsensual
reminder emails that said the users wanted their contacts to join them on LinkedIn. 53 F. Supp. 3d
1222, 1225-26 (N.D. Cal. 2014). While the users saw and consented to the first email that LinkedIn
sent on their behalf, they did not consent to the subsequent follow-up emails LinkedIn sent on their
behalf without their knowledge. Id. Although LinkedIn argued that it was protected by § 230
because the user’s consent to the original email made the users responsible for the substantive
content of the reminder emails, the court found that LinkedIn was not protected by §230 “because

LinkedIn [was] an ‘information content provider’ responsible ‘in whole or in part’ for the creation
or development of the reminder emails.” Id. at 1247 (quoting 47 U.S.C. § 230(f)(3)).
In MCW, Inc. v. Badbusinessbureau.com, L.L.C., a website functioning as a consumer
complaint forum was sued by a business for allegedly defamatory content posted on the website.
2004 WL 833595, at *1-3 (N.D. Tex. Apr. 19, 2004). Although Badbusinessbureau.com argued
that it was protected by § 230 because third parties wrote a majority of the content at issue and it
only authored the titles and organized the content, the court found that because

Badbusinessbureau.com “personally [wrote] and create[d] numerous disparaging and defamatory
messages about [the business] in the form of report titles and various headings,” such as “Con
Artists,” “Scam,” “Ripoff,” and “Corrupt Companies,” that it was considered an information
content provider with respect to that content and was not protected by § 230. Id. at *9-10.
Finally, in Fair Housing Council v. Roommates.com, LLC, the roommate matching website
Roommates.com was claimed to have violated a federal housing law prohibiting age
discrimination because the user profiles on the website listed the ages of users for other users to
consider when choosing a roommate. 521 F.3d 1157, 1161-62 (9th Cir. 2008). Although
Roommates.com argued that it was protected by § 230 because the users input their ages

themselves, the court found that, because the users were required to input their age for other users
to consider when choosing a roommate, and because discrimination based on age is prohibited
under federal housing law, Roommates.com was an “information content provider by helping
‘develop’ at least ‘in part’ the information in the profiles.” Id. at 1165 (quoting 47 U.S.C. §
230(f)(3)).
Conversely, many cases deciding this issue have found the interactive computer service in

question not to be an information content provider. Courtney v. Vereb, No. 12-655, 2012 WL
2405313, *5 (E.D. La. Jun. 25, 2012) (Website operating as a third-party review repository of
service professionals was not rendered an information content provider and removed from § 230
protection by prompting users to provide “additional content about the professional against whom
they are reporting.”); Prickett v. InfoUSA, Inc., 561 F. Supp. 2d 646, 651-52 (E.D. Tex. 2006)
(Website that served as a database for third parties to add business listings was not rendered a
creator of a false business listing by prompting user to choose a neutral, pre-authored business
category to add to the listing.); Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1124 (9th Cir.
2003) (Dating profile website where a false profile was posted by a third party was not rendered
an information content provider by “facilitate[ing] the expression of information” with an initial

questionnaire because “the selection of the content was left exclusively to the user.”).
In Jones v. Dirty World Entertainment Recordings LLC, Defendant Dirty World operated
an online forum that published private, negative information about local individuals. 755 F.3d 398,
401-03 (6th Cir. 2014). Though the posts were primarily created by third-party users, out of the
thousands of user submissions each day, Dirty World only selected around two hundred posts to
publish. Id. at 403. After selecting which posts to publish, Dirty World would personally add to

users’ posts satirical quips that encouraged users to continue posting the negative content. Id.
Plaintiff was the target of a series of these posts and brought an action for defamation, libel per se,
false light, and intentional infliction of emotional distress. Id. The Sixth Circuit rejected the district
court’s finding that, because Dirty World “intentionally encourage[ed] illegal or actionable third-
party postings,” it was a creator or developer of the content at issue. Id. at 413. The court stated,
“an encouragement test would inflate the meaning of ‘development’ to the point of eclipsing the
immunity from publisher-liability that Congress established,” and held that “because [Defendant]
did not materially contribute to the illegality of [the third-party posts], [§ 230] bars [Plaintiff’s]
claims.” Id. at 414-15. Importantly, when deciding the case, the court noted that Dirty World’s

satirical quips were not alleged to be defamatory; only the third-party posts were. Id.
The final case on this issue is Kimzey v Yelp! Inc., 836 F.3d 1263 (9th Cir. 2016). In Yelp,
a locksmith sued the popular business review website because two negative reviews were posted
on the website by a third party. Id. at 1265-66. The locksmith argued that Yelp effectively created
and developed the user-generated content by implementing a star-rating system that materially
contributed to the third-party user inputs to such a degree as to make the final rating Yelp’s own
content. Id. at 1266. The court, analyzing the case under its “material contribution test,” rejected

this argument and found that Yelp’s use of a user input aggregation tool did not render the website
an information content provider removed from the protection of § 230. Id. at 1270, 1271 n.4
(mentioning the “‘crucial distinction between, on the one hand, taking actions (traditional to
publishers) that are necessary to the display of unwelcome and actionable content and, on the other
hand, responsibility for what makes the displayed content illegal or actionable.’ Jones v. Dirty
World Entm't Recordings LLC, 755 F.3d 398, 413–14 (6th Cir. 2014)”).

It therefore appears that for a website’s actions to render them an information content
provider thereby removing them from the protection of §230, the website must either take a
creational step that, when viewed alone without third party input, is actionable, or it must force its
users to take such a step—encouragement alone is not enough.1

Assuming the allegations in the complaint as true and making all reasonable inferences in
favor of Plaintiffs, Glassdoor—much like the defendant in Roommates.com—effectively forced
the subset of users who wished to review Nicholas Air to take an actionable step. In
Roommates.com, the defendant forced its users to input their age when creating a profile, 521 F.3d
at 1161; Glassdoor forces its users to select between “current employee” or “former employee”
before leaving a review for Nicholas Air on its website even though Nicholas Air has no
employees. [13, Ex. D]. Glassdoor then compiles and publishes this content under the Nicholas
Air profile page that Glassdoor created with the statement, “What are Nicholas Air employees
talking about?” Id. A negative review from an employee carries more weight than a negative
review from a third party or a contractor, and, by forcing users to state they are (or were) employees

1 The Court can imagine a situation where, through a combination of encouragement and selective publication, a
website plays such a significant creational role that it renders itself an information content provider of the selected
third-party content. If a website encourages users to submit false and harmful information, and then selectively
publishes as true the submissions calculated to do the most harm, they should not be protected by § 230. The near
infinite third-party generated content some websites have access to today means they can effectively speak for
themselves by cherry-picking and amplifying whatever message they choose. Good sense and a desire to not only
encourage truth, but preserve the republic, should inspire courts and policy makers to read § 230 in light of the goals
for which it was originally intended (i.e. promoting free speech, a free market, and unfettered political discourse)
rather than use it to shield reckless and destructive spiel posing as user-conversation on the internet.
and giving them no other options, Glassdoor is effectively making the employee-statement
themselves. And although a significant majority of the harm undoubtedly stems from other
material in the reviews such as the star ratings and user comments, some of this harm could
plausibly come from the forced employee misrepresentation. Therefore, solely to the extent the
employee misrepresentation is defamatory, Glassdoor is not shielded from liability by § 230.

CONCLUSION
ACCORDINGLY, Defendant Glassdoor LLC’s Motion to Dismiss or in the Alternative to
Transfer [22] is GRANTED IN PART and DENIED IN PART. Its Motion to Dismiss for lack

of personal jurisdiction is DENIED. Its Motion in the Alternative to Transfer is GRANTED IN
PART, and the case is severed with respect to all claims by Plaintiff Nicholas Services, LLC and
transferred to the Northern District of California as a separate case. The claims by Corr Flight S.,
Inc. are to remain in this case here. Its Motion to Dismiss for failure to state a claim is DENIED
as to the defamation claim and GRANTED as to the claims against Glassdoor LLC for tortious
interference with business relations and tortious interference with contract. Its Motion to Dismiss
pursuant to § 230 is DENIED to the extent set forth herein.
SO ORDERED this the 21st day of August, 2024.

/s/Michael P. Mills
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF MISSISSIPPI

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10639264. Public record. Not legal advice.