307 F. Supp. 3d 952
D. Me.2018Background
- Plaintiff East Coast Test Prep LLC (Achieve Test Prep, "ATP") and its owner Mark Olynyk sued Allnurses.com, its estate administrator David Smits, and forum users (including moderator Lisa Dukes and user Uhura Russ) over forum posts criticizing ATP and related conduct.
- Disputed forum content: (1) a post by Dukes stating Excelsior College "warns" students about third‑party test prep (linked to Excelsior advisory), (2) users' posts calling test‑prep services "redundant/obsolete," and (3) users' incorrect statements that ATP was under federal investigation.
- ATP alleged users were paid/agents of Allnurses, Allnurses ratified or endorsed posts (e.g., Dukes "Liked" a post), and Allnurses published an "Open Letter" calling the suit "meritless" and stating ATP demanded "any" identifying information.
- Claims asserted include defamation, trade libel, contract (TOS), promissory estoppel, fraud/consumer‑fraud, trademark (Lanham Act and state), tortious interference, and secondary liability theories.
- Court: converted motions to summary judgment as needed; granted Dukes’ motion and Allnurses’ renewed judgment on the pleadings, dismissing all claims against Dukes and Allnurses (most with prejudice). Remaining claims limited to one user (Uhura Russ).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. CDA §230 immunity for Allnurses and Dukes (as moderator) | ATP: forum operator/agents created or developed content (users were paid/agents), so CDA does not apply. | Allnurses/Dukes: Allnurses is an interactive computer service and users were third‑party content creators; Dukes immune for moderator acts re third‑party content. | Court: CDA bars state‑law claims premised on third‑party posts; ATP failed to plausibly allege users were agents, so immunity applies to most claims. |
| 2. Defamation — Dukes’ statement that Excelsior "warns" students | ATP: statement in ATP thread was "of and concerning" ATP and false. | Dukes: statement truthful and linked to Excelsior advisory; not defamatory. | Court: Advisory page warned students; Dukes’ statement true — nondefamatory; summary judgment for Dukes. |
| 3. Defamation — Dukes’ "Like" of a post | ATP: a moderator "Like" amounts to endorsement/ republication transforming opinion into defamatory fact. | Dukes: a "Like" is opinion/ambiguous, not a factual assertion; underlying posts were nondefamatory opinion. | Court: "Like" is nonactionable opinion; no plausible republication liability for nondefamatory content. |
| 4. Defamation — Allnurses’ "Open Letter" calling suit "meritless" and saying ATP demanded "any" user PII | ATP: statements false and harmed reputation/privacy interests. | Allnurses: statements are nondefamatory opinion and accurately reflect ATP’s broad discovery requests. | Court: "meritless" is protected opinion; discovery requests support "any" PII statement; Open Letter nondefamatory. |
| 5. Fraud/consumer‑fraud and misrepresentation (paid posters/undisclosed sponsor favoritism) | ATP: Allnurses and moderators misled users by concealing paid/insider relationships, favoring advertisers. | Allnurses/Dukes: allegations are conclusory; discovery produced no evidence; insufficient specificity. | Court: ATP offered no specific facts or evidence despite discovery; fraud and consumer‑fraud claims dismissed (summary judgment). |
| 6. Contract (TOS) and promissory estoppel; Trademark (Lanham Act/state) | ATP: TOS created contractual obligations; Allnurses used ATP mark causing confusion and initial‑interest confusion. | Allnurses: ATP fails to allege formation/definite promises; mark not registered or plausibly distinctive/owned. | Court: ATP failed to plausibly allege contract formation or clear promises; trademark claims fail for lack of alleged enforceable mark — dismissed. |
Key Cases Cited
- Johnson v. Arden, 614 F.3d 785 (8th Cir. 2010) (CDA §230 preempts state‑law claims treating interactive services as publishers of third‑party content)
- Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) (distinguishing passive hosting from site‑created content for §230 analysis)
- Janklow v. Newsweek, Inc., 788 F.2d 1300 (8th Cir. 1986) (framework for distinguishing protected opinion from actionable fact)
- Scott v. Harris, 550 U.S. 372 (2007) (court need not accept version of facts blatantly contradicted by record on summary judgment)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment standard — nonmoving party must present evidence of material fact)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard — need factual content to state plausible claim)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for complaints)
- Clemons v. Crawford, 585 F.3d 1119 (8th Cir. 2009) (12(c) standard same as 12(b)(6))
- Jones v. Dirty World Entm't Recordings LLC, 755 F.3d 398 (6th Cir. 2014) (ratification/adoption alone does not make website creator/developer of third‑party content)