644 F.Supp.3d 907
D. Colo.2022Background
- Letgo/OfferUp operate a local online marketplace that displays a “VERIFIED WITH [phone/email]” tag on user profiles after a platform confirmation step.
- In August 2020, a user (Kyree Brown) posted a stolen car for sale under a false name, communicated with Joseph and Jossline Roland via Letgo, lured them to a meeting, and murdered them during a robbery; Brown was later convicted.
- The Rolands’ heirs sued Letgo and OfferUp for negligence, gross negligence, fraud, negligent misrepresentation, CCPA violations, wrongful death, and loss of consortium, alleging the “verified” designation misled them about the seller’s trustworthiness.
- Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(6), asserting CDA §230 immunity and failure to state claims under Colorado law.
- The court held Plaintiffs adequately pleaded that the platform contributed to the “verified” representation (precluding dismissal on §230 grounds at the pleading stage) but concluded Plaintiffs failed to state viable Colorado-law claims and dismissed the case with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §230 bars Plaintiffs' claims | The “verified” badge is platform-created/misleading, so claims target Letgo’s content, not third-party speech | Verification is based on user-provided data (phone/email); §230 immunizes Letgo for third-party content | At pleading stage, Plaintiffs plausibly alleged Letgo materially contributed to the “verified” representation, so §230 dismissal premature |
| Negligence / Gross negligence (duty) | Letgo owed a duty to users to verify sellers and prevent foreseeable harms from bad actors | No special relationship; platform nonfeasance imposes no duty; Brown was intervening actor | No special relationship or duty; negligence/gross negligence claims fail (predominant cause was Brown) |
| Fraud / Negligent misrepresentation | The verified tag was a misrepresentation inducing reliance | No objectively false representation pleaded; Plaintiffs fail to identify specific false statements | Dismissed for failure to plead elements, and fraud claims fail Rule 9(b) particularity requirement |
| CCPA / Wrongful death / Loss of consortium | The verification practice was deceptive and intentionally misleading | No knowledge, recklessness, or intent to induce transactions; elements not pleaded | CCPA dismissed for insufficient factual allegations; wrongful death and loss of consortium derivative and fail without viable torts |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading must contain sufficient factual matter to state a plausible claim)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (established plausibility pleading standard)
- Fair Hous. Council v. Roommates.Com, 521 F.3d 1157 (9th Cir. 2008) (distinguishes passive hosting from content development by a platform)
- F.T.C. v. Accusearch Inc., 570 F.3d 1187 (10th Cir. 2009) (platform may be an information content provider when it materially develops content)
- Doe v. MySpace, 528 F.3d 413 (5th Cir. 2008) (claims treating platform as publisher for user communications are barred by §230)
- Ben Ezra, Weinstein & Co. v. Am. Online, 206 F.3d 980 (10th Cir. 2000) (§230 protects websites’ editorial/self-regulatory functions)
- Doe v. Internet Brands, 824 F.3d 846 (9th Cir. 2016) (§230 shields interactive services from liability for third-party content)
- Barnes v. Yahoo!, 570 F.3d 1096 (9th Cir. 2009) (substance of claim controls whether defendant is treated as publisher)
- Carafano v. Metrosplash.com, 339 F.3d 1119 (9th Cir. 2003) (collecting/classifying user inputs does not necessarily make the site a content developer)
- Kimzey v. Yelp!, 836 F.3d 1263 (9th Cir. 2016) (neutral aggregation tools and user inputs typically do not create platform liability)