Douglas Kimzey v. Yelp!

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DOUGLAS L. KIMZEY, pro se, Nos. 14-35487

Plaintiff-Appellant/ 14-35494

Cross-Appellee,

D.C. No.

v. 2:13-cv-01734-RAJ

YELP! INC.,

Defendant-Appellee/

Cross-Appellant.

Appeal from the United States District Court

for the Western District of Washington

Richard A. Jones, District Judge, Presiding

Submitted September 2, 2016*

Seattle, Washington

Filed September 12, 2016

Before: Michael Daly Hawkins, M. Margaret McKeown,

and Andre M. Davis,** Circuit Judges.

Opinion by Judge McKeown

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

**

The Honorable Andre M. Davis, Senior Circuit Judge for the U.S.

Court of Appeals for the Fourth Circuit, sitting by designation.

2 KIMZEY V. YELP!

SUMMARY***

Communications Decency Act

The panel affirmed the district court’s Fed. R. Civ. P.

12(b)(6) dismissal of Douglas Kimzey’s action alleging that

Yelp! Inc. was liable for two negative business reviews

posted on Yelp’s website.

Section 230 of the Communications Decency Act

“immunizes providers of interactive computer services

against liability arising from content created by third parties.”

Kimzey alleged that Yelp was responsible for creating and

developing content, and therefore did not enjoy immunity

under the Communications Decency Act which only grants

immunity if the computer service provider was also not an

“information content provider.”

The panel held that Yelp fell under the Communications

Decency Act’s grant of immunity, and rejected Kimzey’s

claims to the contrary. The panel held that there were no facts

plausibly suggesting that Yelp fabricated content under a

third party’s identity. The panel also rejected Kimzey’s

theory that Yelp transformed a third party review into its own

“advertisement” or “promotion.” The panel concluded that

the proliferation and dissemination of content did not equal

creation or development of content.

***

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

KIMZEY V. YELP! 3

COUNSEL

Douglas L. Kimzey, Bellevue, Washington, pro se Plaintiff-

Appellant/Cross-Appellee.

Venkat Balasubramani, Focal PLLC, Seattle, Washington;

Aaron Schur, Yelp Inc., San Francisco, California; for

Defendant-Appellee/Cross-Appellant.

OPINION

McKEOWN, Circuit Judge:

Section 230 of the Communications Decency Act

(“CDA”) “immunizes providers of interactive computer

services against liability arising from content created by third

parties.” Fair Hous. Council of San Fernando Valley v.

Roommates.Com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008)

(en banc) (footnote omitted) (citing 47 U.S.C. § 230(c)). This

case pushes the envelope of creative pleading in an effort to

work around § 230.

The complaint centers on two negative business reviews

posted on Yelp’s website1 about Douglas Kimzey’s locksmith

business. Instead of asserting that Yelp was liable in its well-

known capacity as the passive host of a forum for user

reviews—a claim without any hope under our precedents,

1

We have previously noted that Yelp “provides an online directory

that allows registered users to post reviews and rank businesses on a scale

of one to five stars” and, “[b]ased on these user rankings, . . . assigns

businesses an overall ‘star’ rating.” Levitt v. Yelp! Inc., 765 F.3d 1123,

1126 (9th Cir. 2014).

4 KIMZEY V. YELP!

such as Roommates.Com—Kimzey cryptically alleged that

Yelp in effect created and developed content. Kimzey claims

that Yelp is responsible for causing a review from another site

to appear on its page, providing a star-rating function that

transforms user reviews into Yelp’s own content, and

“caus[ing] [the statements] to appear” as a promotion on

Google’s search engine. This phrasing seeks to take

advantage of the fact that the CDA’s “grant of immunity

applies only if the interactive computer service provider is not

also an ‘information content provider,’ which is defined as

someone who is ‘responsible, in whole or in part, for the

creation or development of’ the offending content.” Id. at

1162 (quoting 47 U.S.C. § 230(f)(3)); see also FTC v.

Accusearch Inc., 570 F.3d 1187, 1195 (10th Cir. 2009) (“The

prototypical service qualifying for [CDA] immunity is an

online messaging board (or bulletin board) on which Internet

subscribers post comments and respond to comments posted

by others.”).

Kimzey apparently hoped to plead around the CDA to

advance the same basic argument that the statute plainly bars:

that Yelp published user-generated speech that was harmful

to Kimzey. See Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1105

(9th Cir. 2009) (holding that Yahoo! was immune from

liability for negligently declining to remove indecent third-

party content). We decline to open the door to such artful

skirting of the CDA’s safe harbor provision. This case is in

some sense a simple matter of a complaint that failed to

allege facts sufficient to state a claim that is plausible on its

face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). But it

is also more consequential than that, given congressional

recognition that the Internet serves as a “forum for a true

diversity of . . . myriad avenues for intellectual activity” and

“ha[s] flourished . . . with a minimum of government

KIMZEY V. YELP! 5

regulation.” 47 U.S.C. § 230(a)(3)–(4). Kimzey’s effort to

circumvent the CDA’s protections through “creative”

pleading fails, and the district court did not err in granting

Yelp’s motion to dismiss.

BACKGROUND

Yelp describes its websites and mobile applications as

“provid[ing] a forum for members of the public—free of

charge—to read and write reviews about local businesses,

government services, and other entities.” Kimzey owns a

locksmith business, Redmond Locksmith (aka “Redmond

Mobile Locksmith”), that operates in the greater Seattle

metropolitan area.

In September 2011, a Yelp user identified as “Sarah K”

posted a review of Kimzey’s business on the Yelp page for

Redmond Mobile Locksmith:

THIS WAS BY FAR THE WORST

EXPERIENCE I HAVE EVER

ENCOUNTERED WITH A LOCKSMITH.

DO NOT GO THROUGH THIS COMPANY.

I had just flew [sic] back from a long business

trip with absolutely no sleep, had to drive into

work right after getting off the plane. I was so

tired that I locked my keys in the car. So

when I realized what happened I called

Redmond Mobile. The gentlemen [sic] on the

phone told me that a technician would be out

ASAP and quoted me $50 for the service,

which seemed reasonable. $35 for the service

call and $15 for the lock. The technician

called and said he’d be at my office in 30 min,

6 KIMZEY V. YELP!

an hour goes by and nothing. Call the

company back to ask about the ETA and was

greeted rudely by the person I had spoken to

earlier. He took no responsibility. After the

technician finally showed up, he was trying to

charge me $35 for the service call and $175

for the lock. I got 20% off after trying to

argue with him about being late and the

incorrect quote. Supposedly, the lock is $15

and up. Bullshit. CALL THIS BUSINESS

AT YOUR OWN RISK. I didn’t even need

new keys. I just needed my car unlocked.

Sarah K gave Redmond Mobile Locksmith a rating of one out

of five stars. Approximately one year later, in early

September 2012, a person identified as “D K. Of Redmond

Mobile Locksmith” posted a comment under Sarah K’s

review, stating, “Yelp has Posted a Fraudulent review on our

Business.” The comment included a hyperlink to essentially

the same “review posted about a fraud operation known as

‘Redmond Mobile’ (425) 318-4257,” which was not

Kimzey’s business name. Then Sarah K returned. She

posted an update to her review:

I was just informed recently by a friend that

this business has been trying to contact others

on my friends list asking about my original

review. A year ago, I had also received

similar msgs from this business and also yelp

requesting authentication of the review and

the business directly asking me to take down

the review because I must have gotten the

company incorrect. So let me clarify, I do not

work for a competitor of this business nor do

KIMZEY V. YELP! 7

I appreciate this type of harassment. I’ve

already confirmed to Yelp that indeed this

review was meant for Redmond Mobile

Locksmith and I have the receipt to prove it.

I will be issuing an official complaint to Yelp

about this now.

Yelp’s administrative records showed that Sarah K was not

associated with any internet protocol address associated with

Yelp, nor was she ever employed by Yelp.

Kimzey filed a pro se complaint in the district court

alleging that Yelp is liable for the reviews by Sarah K under

the Racketeer Influenced and Corrupt Organizations Act

(“RICO”), 18 U.S.C. § 1964(c); the Washington Consumer

Protection Act, Wash. Rev. Code § 19.86.020; and

Washington’s libel law. Specifically, the complaint alleged

that Yelp “caused to appear a Libelous Per Se statement . . .

on . . . Google.” By “caused to appear,” Kimzey seems to

assert that Yelp found the review on another website and

posted it as a comment on its own website. Kimzey asserted

that Yelp went on to publish the statements by Sarah K as

“advertisements” or as a “promotion” on Google as part of a

“Traffic Acquisition” program. After clicking on the

“promotion,” a Google user would be “directed to Yelp.com

and then shown Yelp sponsored [sic] advertising.” At the

center of this allegedly creative process was a star rating,

which Kimzey alleged “Yelp has developed and created” by

“design[ing] the star image and creat[ing] the color.”

Kimzey also alleged that the content of at least the first

review posted by Sarah K bore the indicia of an “illegal

scheme . . . operated by the EL-AD Group, which uses

thousands of fictitious locksmith business names on the

8 KIMZEY V. YELP!

Internet in every major US city, to promote themselves.” The

connection between Yelp and this claimed scheme was not

clearly articulated in the complaint: Kimzey alleged that EL-

AD’s purported statement “transitioned to Yelp.com and was

linked to the Plaintiffs [sic] business name” where it then

“transitioned to Google.com as a Yelp promotion.”

Yelp moved to strike the complaint under Washington’s

anti-SLAPP statute, Wash. Rev. Code § 4.24.525, and to

dismiss the complaint for failure to state a claim under

Federal Rule of Civil Procedure 12(b)(6). The district court

granted the motion to dismiss, finding that § 230 of the CDA

“immunizes [Yelp] from the entirety of [Kimzey]’s lawsuit”

and that Kimzey “has not alleged non-conclusory factual

content that is plausibly suggestive of a claim entitling him to

relief.” The district court declined to rule on the anti-SLAPP

motion.2

ANALYSIS

Section 230(c)(1) of the CDA “only protects from liability

(1) a provider or user of an interactive computer service

(2) whom a plaintiff seeks to treat, under a state law cause of

action, as a publisher or speaker (3) of information provided

2

In the cross-appeal, Yelp argued that the district court erred by

failing to rule on Yelp’s motion to strike under the Washington anti-

SLAPP statute. Yelp argued that “[t]reating an anti-SLAPP motion as

moot based on a Rule 12(b)(6) dismissal frustrates [the] purpose [of the

anti-SLAPP statute], and treats the anti-SLAPP statute as a procedural

rule, rather than one creating substantive rights and defenses.” The issue

on cross-appeal is moot in light of the Washington Supreme Court’s

invalidation of the Washington anti-SLAPP statute, which occurred after

the district court’s dismissal and after the briefs on appeal were filed. See

Davis v. Cox, 351 P.3d 862 (Wash. 2015) (en banc).

KIMZEY V. YELP! 9

by another information content provider.” Barnes, 570 F.3d

at 1100–01 (footnotes omitted). Yelp is plainly a provider of

an “interactive computer service,” see 47 U.S.C. § 230(f)(2),

a term that we interpret “expansive[ly]” under the CDA,

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

Cir. 2003). As we observed in Roommates.Com, “[t]oday, the

most common interactive computer services are websites.”

521 F.3d at 1162 n.6. There is likewise no question that

Kimzey’s claims are premised on Yelp’s publication of Sarah

K’s statements and star rating.3 In other words, the claim is

directed against Yelp in its capacity as a publisher or speaker.

See Barnes, 570 F.3d at 1102. The remaining question is

therefore whether the information was “provided by another

information content provider.” Id. at 1101.

Although the complaint is far from lucid and the opening

brief cryptic to the point of opacity, we discern two discrete

theories of Yelp’s alleged authorship. The first, and the

simplest, theory is that Yelp created the review, possibly by

copying a review previously posted on another website. This

echoes the complaint in our recent opinion in Levitt.

765 F.3d 1123. There, a group of business owners alleged

that “Yelp created negative reviews of their businesses and

manipulated review and ratings content to induce them to

purchase advertising through Yelp.” Id. at 1127.

3

Kimzey’s claims under RICO and the Washington Consumer

Protection Act, which mirror his defamation/publication claim, fall

because he failed to allege key elements, such as “racketeering activity”

and a “pattern of racketeering activity” under RICO, see 18 U.S.C.

§§ 1961, 1962(a)–(c), or the capacity to “deceive a substantial portion of

the public” under the Consumer Protection Act, see Hangman Ridge

Training Stables, Inc. v. Safeco Title Ins. Co., 719 P.2d 531, 535 (Wash.

1986) (en banc).

10 KIMZEY V. YELP!

We did not reach the CDA issue in Levitt, but we

explained that for a plaintiff to “make a plausible claim that

Yelp authored [a review], it must plead facts tending to

demonstrate that the . . . review was not, as is usual, authored

by a user.” Id. at 1135. A careful reading of the complaint

reveals that Kimzey never specifically alleged that Yelp

authored or created the content of the statements posted under

the aegis of Sarah K, but rather that Yelp adopted them from

another website and transformed them into its own stylized

promotions on Yelp and Google. We have no trouble in this

case concluding that threadbare allegations of fabrication of

statements are implausible on their face and are insufficient

to avoid immunity under the CDA. See Iqbal, 556 U.S. at

678 (holding that a complaint must contain “sufficient factual

matter, accepted as true, to ‘state a claim to relief that is

plausible on its face’” (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007))). Were it otherwise, CDA

immunity could be avoided simply by reciting a common line

that user-generated statements are not what they say they are.

It cannot be the case that the CDA and its purpose of

promoting the “free exchange of information and ideas over

the Internet” could be so casually eviscerated. See Carafano,

339 F.3d at 1122. This is not to say that CDA immunity

extends to content created or developed by an interactive

computer service; it does not. See Roommates.Com, 521 F.3d

at 1162–63. But the immunity in the CDA is broad enough

to require plaintiffs alleging such a theory to state the facts

plausibly suggesting the defendant fabricated content under

a third party’s identity. See Carafano, 339 F.3d at 1123.

Here there are no such facts.

The second, and more convoluted, theory is that Yelp

transformed the review by Sarah K into its own

KIMZEY V. YELP! 11

“advertisement” or “promotion” on Google and featured a

unique star-rating system as the mantlepiece of its creation.

As this case illustrates, it is not difficult to allege in a

complaint that a publisher of information engaged in creation

by transformation. Here, for instance, Kimzey alleged that

Yelp designed and created its signature star-rating system,

and thereby served as “author” of the one-star rating given by

Sarah K. Kimzey also alleged that Yelp “republishe[d]” the

statements on Google as “newly developed advertisements,”

and in that fashion became the actual author of that iteration

of the content. These characterizations have superficial

appeal, but they extend the concept of an “information

content provider” too far and would render the CDA’s

immunity provisions meaningless.

The CDA defines “information content provider” 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.”

47 U.S.C. § 230(f)(3). The meanings of the words “creation”

and “development” are hardly self evident in the online

world, and our cases have struggled with determining their

scope. See, e.g., Roommates.Com, 521 F.3d at 1171

(clarifying the language used in Carafano because it was

“unduly broad” and recognizing that a website could be a

developer of content where it encouraged users to provide

illegal content); Carafano, 339 F.3d at 1124 (holding that a

dating site could not “be considered an ‘information content

provider’ under the [CDA] because no profile has any content

until a user actively creates it”); Batzel v. Smith, 333 F.3d

1018, 1031 (9th Cir. 2003) (concluding that “development of

information” requires “something more substantial than

merely editing portions of an e-mail and selecting material for

publication”). These cases establish that a website may lose

12 KIMZEY V. YELP!

immunity under the CDA by making a material contribution

to the creation or development of content.4

It is clear here, however, that neither of the allegedly

creative actions taken by Yelp falls within our interpretation

of the terms “creation” or “development” of information.

Even were we convinced that a one-star rating could be

understood as defamatory—a premise we do not embrace, see

Aviation Charter, Inc. v. Aviation Research Grp./US,

416 F.3d 864, 870–72 (8th Cir. 2005) (finding ratings

inactionable opinion statements), abrogated on other grounds

by Syngenta Seeds, Inc. v. Bunge N. Am., Inc., 773 F.3d 58

(8th Cir. 2014)—the rating system does “absolutely nothing

to enhance the defamatory sting of the message” beyond the

words offered by the user. Roommates.Com, 521 F.3d at

1172.

Our foundation is Carafano, where we held that the mere

fact that an interactive computer service “classifies user

characteristics . . . and collects responses to . . . questions . . .

does not transform [it] into a developer of the underlying

misinformation.” 339 F.3d at 1124 (internal quotation marks

4

Our sister circuits have generally adopted Roommates.Com’s

“material contribution” to activity test and have consistently drawn the

line at 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); see also

Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250,

257–58 (4th Cir. 2009) (distinguishing Roommates.Com on the basis that

the content that the website solicited from users was not itself unlawful);

Accusearch, 570 F.3d at 1197–201 (denying immunity where a website

intentionally made illegal purchases of confidential consumer

information).

KIMZEY V. YELP! 13

omitted). Carafano cited Gentry v. eBay, Inc., a case from

the California Court of Appeal, in which the court examined

the eBay rating system that displayed user feedback through

both a star symbol and a color code. See 339 F.3d at 1124

(citing 121 Cal. Rptr. 2d 703 (Cal. Ct. App. 2002)). Apropos

of Yelp’s star rating, the eBay rating system was “simply a

representation of the amount of such positive information

received by other users of eBay’s web site” and was thus

protected by § 230. Gentry, 121 Cal. Rptr. at 717; see also

Levitt v. Yelp! Inc., Nos. C-10-1321 EMC, C-10-2351 EMC,

2011 WL 5079526, *7 (N.D. Cal. Oct. 26, 2011) (applying

Gentry’s logic to Yelp and concluding that “[s]ince the

aggregate rating . . . is likewise based on user-generated data,

the Court finds that aspect of Gentry persuasive”), affirmed

on other grounds by Levitt, 765 F.3d 1123.

We fail to see how Yelp’s rating system, which is based

on rating inputs from third parties and which reduces this

information into a single, aggregate metric is anything other

than user-generated data. Indeed, the star-rating system is

best characterized as the kind of “neutral tool[]” operating on

“voluntary inputs” that we determined did not amount to

content development or creation in Roommates.Com.

521 F.3d at 1172; see also Klayman v. Zuckerberg, 753 F.3d

1354, 1358 (D.C. Cir. 2014) (holding that a “website does not

create or develop content when it merely provides a neutral

means by which third parties can post information of their

own independent choosing online”).

Nor do Kimzey’s arguments that Yelp can be held liable

for “republishing” the same content as advertisements or

14 KIMZEY V. YELP!

promotions on Google survive close scrutiny.5 To the extent

Kimzey’s complaint aims at alleged downstream distribution

of the starred review, § 230’s immunity defeats the claim.

Nothing in the text of the CDA indicates that immunity turns

on how many times an interactive computer service publishes

“information provided by another information content

provider.” 47 U.S.C. § 230(c)(1). Just as Yelp is immune

from liability under the CDA for posting user-generated

content on its own website, Yelp is not liable for

disseminating the same content in essentially the same format

to a search engine, as this action does not change the origin

of the third-party content. See Ascentive, LLC v. Op. Corp.,

842 F. Supp. 2d 450, 476 (E.D.N.Y. 2011) (“[Search engine

optimization and] use of plaintiffs’ marks to make

[defendant’s ] pages appear higher in search engine results

list . . . do not render [defendant] an information content

provider.”). Simply put, proliferation and dissemination of

content does not equal creation or development of content.

AFFIRMED.

5

It is unclear whether the republication on Google that Kimzey

alleges amounts to anything more than the passive indexing of Yelp

reviews by Google for the purpose of populating its search engine results.

If this is what Kimzey means, then the claims fail because he pled no

plausible theory of liability for Yelp stemming from Google’s actions.

Tipping to Kimzey’s favor in construing his claim, we assume that

Kimzey alleges Yelp proactively posted advertisements or promotional

links on Google.