Kristanalea Dyroff v. the Ultimate Software Group
934 F.3d 1093
| 9th Cir. | 2019Background
- Experience Project was an anonymous online social site (2007–2016) where users posted first‑person experiences and joined topic groups; the operator was Ultimate Software.
- Wesley Greer posted asking where to buy heroin; another user (a dealer) replied, they connected off‑site, Greer purchased heroin on August 18, 2015, and died of fentanyl toxicity the next day.
- Plaintiff Kristanalea Dyroff sued Ultimate Software alleging the site facilitated anonymous illegal drug trafficking by allowing drug‑related groups, recommending groups, and sending notifications that connected users and dealers.
- Ultimate Software removed the case to federal court and moved to dismiss under Fed. R. Civ. P. 12(b)(6); the district court granted dismissal; Dyroff appealed.
- The Ninth Circuit treated the complaint’s allegations as true but held Ultimate Software is immune under Section 230 of the Communications Decency Act because its recommendation and notification features were content‑neutral tools and it did not create or develop the illicit content.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ultimate Software is protected by CDA §230 immunity | Ultimate says recommendations/notifications made it an information content provider (lost immunity) | Ultimate is an interactive computer service that did not create third‑party posts; its tools are content‑neutral | Court: §230 immunity applies; site did not materially contribute to illicit content |
| Whether recommendations/algorithms transform the site into a content developer | Dyroff: recommending groups and sending alerts are editorial decisions that developed content | Ultimate: those features are neutral tools to facilitate third‑party speech | Court: features are publisher functions, not content development; immunity stands |
| Whether allegations plausibly show collusion/inducement of dealers | Dyroff: anonymity policy, statements, and operation amount to collusion/inducement | Ultimate: anonymity and privacy statements are legitimate policy choices, not facilitation of crime | Court: allegations insufficient and not plausibly analogous to Backpage; dismissal proper |
| Whether Ultimate owed a duty of care to Greer (failure to warn) | Dyroff: site’s operation/misfeasance created a duty to warn/protect users | Ultimate: site’s content‑neutral functions do not create a special relationship or duty | Court: no duty; communications‑facilitating features are nonfeasance/mere publisher acts |
Key Cases Cited
- Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir.) (establishes three‑part §230 test)
- Fair Hous. Council of San Fernando Valley v. Roommates.com, 521 F.3d 1157 (9th Cir.) (distinguishes content‑neutral tools from affirmative content development)
- Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir.) (publisher vs. content‑developer analysis)
- Kimzey v. Yelp! Inc., 836 F.3d 1263 (9th Cir.) (interactive computer services and §230 scope)
- HomeAway.com, Inc. v. City of Santa Monica, 918 F.3d 676 (9th Cir.) (distinguishing content liability from non‑content regulatory obligations)
- Doe v. Internet Brands, Inc., 824 F.3d 846 (9th Cir.) (§230 protects websites from liability for third‑party content)
- Fields v. Twitter, Inc., 881 F.3d 739 (9th Cir.) (standard of review for §230 and dismissal)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S.) (plausibility standard for pleadings)