Amendment was futile


Judge Fogel published his ruling in the two Holomaxx cases today.

Defendant’s motion to dismiss having been granted,
IT IS ORDERED AND ADJUDGED that Plaintiff’s complaint be dismissed without leave to amend and that the action be dismissed with prejudice.

The full text of the rulings are available (Yahoo order, Microsoft order).
There’s nothing very surprising here. The ISPs have immunity under the CDA and Holomaxx presented nothing that suggested the immunity should be lifted. In fact, during the hearing the judge specifically addressed this issue with Holomaxx.

The judge asked the plaintiff’s attorney for his “absolute best argument” as to the bad faith exhibited by the defendants.
The plaintiff responded that they are a competitor who is being stonewalled by the defendants. That their email is not spam (as it is CAN SPAM compliant) and it is wanted email. The defendants are not following the “objective industry standard” as defined by MAAWG.
The judge responded clarifying that the plaintiff really claimed he didn’t need to present any evidence. “Yes.” Judge Fogel mentioned the Towmbly standard which says that a plaintiff must have enough facts to make their allegations plausible, not just possible. the hearing

In his ruling, the Judge addresses the 230 Immunity question.

Section 230(c)(2)(A) of the CDA grants immunity to interactive computer service providers that act in good faith to “restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” 47 U.S.C. § 230(c)(2). This Court and others consistently have held that “§ 230 provides a ‘robust’ immunity, Carafano v., Inc., 339 F.3d 1119, 1123 (9th Cir. 2003), and that all doubts ‘must be resolved in favor of immunity.’” Goddard v. Google, Inc., 2008 WL 5245490 at *2 (N.D. Cal 2008) (quoting Fair Housing Council v., LLC, 521 F.3d 1157, 1174 (9th Cir. 28 2008)).
[…] While Yahoo! delivered at least some emails prior to June 2010, that fact alone is not sufficient to support a reasonable inference that Yahoo! acted in bad faith when it decided to block Holomaxx’s emails. Holomaxx fails to identify an industry standard that Yahoo! allegedly failed to follow. While the Messaging Anti-Abuse Working Group (“MAAWG”) promulgates certain guidelines, the FAC contains no facts supporting Holomaxx’s claim that the guidelines  amount to an industry standard. To permit Holomaxx to proceed solely on the basis of a conclusory allegation that Yahoo! acted in bad faith essentially would rewrite the CDA.  Accordingly, the Court concludes that Yahoo! is entitled to immunity from Holomaxx’s claims for computer fraud, intentional interference with contract, intentional interference with prospective business advantage, and wiretapping/eavesdropping.

And with that, another attempt to use the court to force ISPs to deliver unsolicited and unwanted email fails.

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