Federal Trade Commission v. LeanSpa, LLC
Filing
OPINION, affirming in part, reversing in part, and remanding to the district court by PWH, GEL, DC, C.JJ., FILED.[1869384] [15-1009, 15-1014]
Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page1 of 50
15‐1009‐cv
FTC v. LeadClick Media, LLC
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2015
(Argued: June 3, 2016
Decided: September 23, 2016)
Docket Nos. 15‐1009‐cv, 15‐1014‐cv
FEDERAL TRADE COMMISSION, STATE OF CONNECTICUT,
Plaintiffs‐Appellees,
v.
LEADCLICK MEDIA, LLC , successor to LeadClick Media, Inc., CORELOGIC, INC.,
Defendants‐Appellants,
LEANSPA, LLC, a Connecticut limited liability company, NUTRASLIM, LLC, a
Connecticut limited liability company, NUTRASLIM U.K. LIMITED, a United
Kingdom limited liability company, DBA LeanSpa U.K. LTD, BORIS MIZHEN,
individually and as an officer of LeanSpa, LLC, NutraSlim, LLC, and NutraSlim
U.K. LTD, RICHARD CHIANG, individually and as an officer of LeadClick Media,
Inc., ANGELINA STRANO, Relief Defendant,
Defendants.
The Clerk of Court is respectfully directed to amend the official caption to
conform to the above.
Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page2 of 50
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
Before:
HALL, LYNCH, AND CHIN, Circuit Judges.
Consolidated appeals from a judgment of the United States District
Court for the District of Connecticut (Hall, C.J.), granting summary judgment in
favor of plaintiffs‐appellees the Federal Trade Commission and the State of
Connecticut. Defendant‐appellant LeadClick, LLC challenges the district courtʹs
rulings that (1) it is liable for deceptive practices under the Federal Trade
Commission Act and the Connecticut Unfair Trade Practices Act and (2) it is not
entitled to immunity under Section 230 of the Communications Decency Act.
Defendant‐appellant CoreLogic, Inc., LeadClick LLCʹs parent company,
challenges the district courtʹs ruling that it is liable as a relief defendant for the
obligations of LeadClick, LLC.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
WALTER P. LOUGHLIN (David R. Fine, Elisa J.
DʹAmico, Paul F. Hancock, David A.
Bateman, on the brief), K&L Gates LLP, New
‐ 2 ‐
Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page3 of 50
York, NY, Harrisburg, PA, Miami, FL, and
Seattle, WA, for Defendant‐Appellant
LeadClick Media, LLC.
JONATHAN D. HACKER (Anton Metlitsky, Burden
H. Walker, on the brief), OʹMelveny & Myers
LLP, Washington, D.C. and New York, NY,
for Defendant‐Appellant CoreLogic, Inc.
MICHELE ARINGTON, Assistant General Counsel
(Jonathan E. Nuechterlein, General
Counsel, Joel Marcus, Director of
Litigation, on the brief), Office of the General
Counsel, Federal Trade Commission,
Washington, D.C., for Plaintiff‐Appellee
Federal Trade Commission.
George Jepsen, Attorney General, Jonathan J.
Blake, Matthew F. Fitzsimmons, Assistant
Attorney Generals, Office of the Attorney
General, Hartford, CT, for Plaintiff‐Appellee
State of Connecticut.
Thomas M. Hefferon, William M. Jay, Goodwin
Procter LLP, Washington, D.C., for Amici
Curiae United States Chamber of Commerce,
Consumer Mortgage Coalition, Consumer Data
Industry Association, Independent Community
Bankers of America, Mortgage Bankers
Association, National Consumer Reporting
Association, and Real Estate Providers Council.
CHIN, Circuit Judge:
In this case, plaintiffs‐appellees the Federal Trade Commission (the
ʺFTCʺ) and the State of Connecticut (the ʺStateʺ) seek to hold defendant‐appellant
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LeadClick Media, LLC (ʺLeadClickʺ) liable for its role in the use of deceptive
websites to market weight loss products. LeadClick managed a network of
affiliates ‐‐ known as ʺpublishersʺ ‐‐ to advertise on the internet products of its
merchant client, LeanSpa, LLC and related entities (collectively, ʺLeanSpaʺ).
Some of these affiliates created deceptive websites, falsely claiming that
independent testing confirmed the efficacy of the products. The FTC and the
State brought this action below, asserting claims against LeadClick under
Section 5 of the Federal Trade Commission Act (the ʺFTC Actʺ), 15 U.S.C.
§ 45(a)(1), and the Connecticut Unfair Trade Practices Act (ʺCUTPAʺ), C.G.S.A.
§ 42‐110b(a). The FTC also filed a claim against defendant‐appellant CoreLogic,
Inc. (ʺCoreLogicʺ), LeadClickʹs parent company, as a relief defendant.
The district court (Hall, C.J.) granted summary judgment in favor of
the FTC and the State, holding that (1) LeadClick violated the FTC Act and
CUTPA as a matter of law, and (2) LeadClick was not entitled to immunity under
Section 230 of the Communications Decency Act (the ʺCDAʺ). It also ordered
CoreLogic to disgorge money that it had received from LeadClick.
We affirm the district courtʹs grant of summary judgment for the
FTC and the State with respect to the claims against LeadClick, reverse as to the
‐ 4 ‐
Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page5 of 50
claim ag
gainst Cor
reLogic, an
nd remand
d with instr
ructions to
o the distri
ict court to
o
enter ju
udgment in
n favor of C
CoreLogic.
BACK
KGROUN
ND
I.
The Facts
T
The f
facts are la
argely undisputed an
nd may be summariz
zed as follo
ows.
A.
A
Lead
dClick
1.
ckʹs
ess
LeadClic Busine Model
Until
l ceasing o
operations in 2011, Le
eadClick o
operated an
n affiliate‐
‐
ing networ
rk to provi
ide advert
tising in in
nternet com
mmerce. L
LeadClick
marketi
arrange
ed for adve
ertising for
r its merch
hant clients
s by conne
ecting them
m to third‐
party pu
ublishers ‐
‐‐ affiliates
s ‐‐ who ad
dvertised th
he mercha
antʹs produ
ucts. The
affiliate
es advertise
ed produc
cts in a variety of way
ys, includi
ing email m
marketing
g,
banner ads, search
h‐engine p
placement,
, and creat
ting advert
tising web
bsites.
ick manag
ged the affi
iliate netw
work throug
gh trackin
ng software
e, referred to
LeadCli
as ʺHitP
Path,ʺ that would ʺtr
rack the flo
ow of traffi
ic from eac
ch individual affiliat
teʹs
marketi
ing websit
te to the m
merchantʹs w
website wh
hile remain
ning invisible to the
consum
mer.ʺ J. App. at 986 ¶
¶¶ 120‐21.
‐ 5 ‐
Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page6 of 50
In 2011, LeadClick employed a staff of eight to ten people in its
ʺeAdvertisingʺ division. Some of those employees worked as affiliate managers,
managing relationships with affiliate marketers, while others worked as account
managers, managing relationships with merchants. Affiliate managers were
responsible for scouting and recruiting new affiliates, researching affiliates, and
matching affiliates with particular merchant offers. LeadClick would review and
control which affiliates were selected to provide online advertising for each
merchantʹs offer.
Independent from its eAdvertising affiliate network business,
LeadClick engaged in ʺmedia buyingʺ by purchasing advertisement space for
banner advertisements from well‐known websites. After LeadClick purchased
media space, it would resell the space, sometimes to affiliate marketers, at a
markup.
2.
LeadClickʹs Relationship with LeanSpa
In August 2010, an eAdvertising account manager contacted
LeanSpa to solicit business, suggesting that ʺLeanSpa could be a great fit in the
eAds network.ʺ J. App. at 714‐15a. LeanSpa, an internet retail business, sold
purported weight‐loss and colon‐cleanse products under various brand names.
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Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page7 of 50
LeanSpa hired LeadClick to provide online advertising through its affiliate
network in September 2010.
Pursuant to their contractual arrangement, LeanSpa was to pay
LeadClick a set amount ‐‐ typically $35 to $45 ‐‐ each time a publisherʹs
advertisement directed an online consumer to LeanSpaʹs landing page and that
consumer enrolled in LeanSpaʹs free‐trial program (referred to herein as an
ʺactionʺ).1 This arrangement was commonly referred to in the affiliate marketing
industry as a cost per action (ʺCPAʺ) agreement. LeadClick was responsible for
paying 80 to 90 percent of the amount it charged LeanSpa per action to the
publisher under separate CPA agreements with its affiliate marketers. LeadClick
would retain the difference as compensation for its role connecting merchants
with its affiliate network and managing those affiliates.
To keep track of individual actions, LeadClick provided a unique
link to its affiliate marketers for use in LeanSpa advertisements. When
customers clicked on that link, they would unknowingly be routed through the
Once customers enrolled in the ʺfree trialʺ offer, LeanSpa would
deceptively enroll them in automatic credit card billing following the trial period. This
practice drew the attention of the FTC, which investigated and filed an action against
LeanSpa prior to discovering LeadClickʹs involvement.
1
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Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page8 of 50
HitPath server to the LeanSpa website. The HitPath server would record
information on the customer, including the specific affiliate that directed the
consumer to LeanSpa. The data was then used by LeadClick to determine the
total number of actions for which it could charge LeanSpa and its corresponding
contractual liability to the individual affiliates responsible for those actions.
Because both LeadClick and its affiliate marketers profited per action generated,
they were incentivized to maximize consumer traffic to LeanSpaʹs websites.
As the business relationship progressed, LeadClick became
LeanSpaʹs primary marketing network, and LeanSpa became LeadClickʹs ʺtop
customer.ʺ J. App. at 343a; 908a; 1016a. By 2011, LeanSpa offers represented
approximately 85 percent of all eAdvertising division sales.
In total, LeadClick billed LeanSpa $22 million over the course of
their contractual agreement. LeanSpa was chronically behind on its payments to
LeadClick: LeanSpa owed LeadClick $6.4 million by March 2011 and
approximately $10 million by June 2011. LeanSpa ultimately paid LeadClick
$11.9 million, approximately half of its outstanding bill.
In accordance with industry practice, LeadClick paid its publishers
before it received payment from LeanSpa. Despite LeanSpaʹs steep outstanding
‐ 8 ‐
Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page9 of 50
balance, LeadClick continued to pay its affiliate marketers for advertising
LeanSpa products online. In September of 2011, LeadClick terminated its
business arrangement with LeanSpa.
3.
LeadClickʹs Involvement in the Use of Fake News Sites
to Market LeanSpa Products
Certain affiliates hired by LeadClick used fake news sites to market
LeanSpa products. These fake news sites, which were common in the industry at
the time, looked like genuine news sites: they had logos styled to look like news
sites and included pictures of supposed reporters next to their articles. The
articles generally represented that a reporter had performed independent tests
that demonstrated the efficacy of the weight loss products. The websites also
frequently included a ʺconsumer commentʺ section, where purported
ʺconsumersʺ praised the products. But there were no consumers commenting ‐‐
this content was invented.
The vast majority of internet traffic to LeanSpaʹs websites from
LeadClickʹs affiliate network came from fake news sites. The FTC investigator
who reviewed spreadsheets produced by LeadClick, which documented traffic to
LeanSpaʹs website from LeadClick affiliates, found that all of the 24 identifiable
‐ 9 ‐
Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page10 of 50
affiliate websites that sent 1,000 or more consumers through LeadClickʹs affiliate
network were fake news sites.
While LeadClick did not itself create fake news sites to advertise
products, as discussed below, it (1) knew that fake news sites were common in
the affiliate marketing industry and that some of its affiliates were using fake
news sites, (2) approved of the use of these sites, and, (3) on occasion, provided
affiliates with content to use on their fake news pages.
i.
LeadClickʹs Knowledge of Fake News Sites
First, LeadClick knew that fake news sites were commonplace in the
industry. For example, one eAdvertising division employee noted that in the
summer of 2010, fake news sites were ʺfairly common,ʺ J. App. at 158‐59a, while
another testified in his deposition that during his time at LeadClick, ʺeveryone
was using ʹem,ʺ id. at 235a. In conversations amongst themselves and with
affiliates and merchants, LeadClick employees occasionally discussed fake article
pages, fake news pages, and news style pages.
Second, LeadClick knew of its own affiliatesʹ use of fake news sites
to promote LeanSpaʹs products. For the LeanSpa account, a LeadClick employee
created an affiliate ʺscouting reportʺ which consisted exclusively of fake news
site names like Health8News.net, News‐Health6.com, ConsumerNews24.com,
‐ 10 ‐
Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page11 of 50
BreakingNewsat6.com, and News6Access.com. One account manager testified
that he saw fake news sites from LeadClick affiliates that contained information
that was ʺnot truthful or accurate,ʺ including websites advertising LeanSpa
products. J. App. at 387a, 389a. LeadClick employees also discussed the content
of their affiliatesʹ fake news sites, such as ʺstep 1 and step 2,ʺ a typical fake news
site product pairing system, demonstrating that their awareness extended
beyond general knowledge. See J. App. at 800a.
ii.
LeadClickʹs Approval of Affiliatesʹ Fake News Sites
LeadClick employees also affirmatively approved of the use of fake
news sites: One LeadClick employee told an affiliate interested in marketing
LeanSpa offers that ʺNews Style landers are totally fineʺ followed by two
punctuation marks commonly united to represent a smiley face. J. App. at 761a.
Another employee told a potential new client that ʺ[a]ll of our traffic would be
through display on fake article pages.ʺ Id. at 750a (emphasis added). LeadClickʹs
standard contract with affiliate marketers required affiliate marketers to submit
their proposed marketing pages to LeadClick for approval before they were
used.
‐ 11 ‐
Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page12 of 50
iii.
LeadClick Requested Edits to the Content of Fake News
Sites
Finally, on occasion, LeadClick employees requested content edits to
some of its affiliates using fake news sites. When LeanSpa informed LeadClick
of certain requirements for its advertisements, LeadClick provided these
requirements to affiliates and would review proposed advertisements for
compliance with LeanSpaʹs requirements. For example, when LeanSpa noticed
that some of the affiliate marketers were pairing a LeanSpa ʺstep 1ʺ product with
another merchantʹs ʺstep 2ʺ on fake news sites, it informed LeadClick of a new
LeanSpa product that should be used for ʺstep 2ʺ and LeadClick ordered its
affiliates to implement that change in their fake news websites. J. App. at 800‐
801a.
In one instance, after hearing of a state action against another
network for false advertising, a LeadClick employee reached out to an affiliate to
ʺmake sure all [his] pages [were] set up good[,] like no crazy [misleading] info.ʺ
J. App. at 231a. The affiliate responded that he was removing references to his
page being a ʺnews siteʺ and thinking of ʺremoving the reporter picsʺ from the
site to be safe. Id. at 230‐31a. The LeadClick employee advised him not to stop
using the fake reporterʹs picture, but to ʺjust add [the term] advertorial.ʺ J. App.
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Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page13 of 50
at 231‐32a. In a later online conversation, the LeadClick employee advised the
affiliate to delete references to acai berry on his fake news site and instead use
words like ʺspecial [ingredient], formula, secret, bla, bla, blaʺ because ʺwe
noticed a huge increase in [actions] with stuff that doesnʹt [s]ay acai.ʺ J. App. at
1015a.
Another employee sent an affiliate a list of ingredient information
about a LeanSpa product, referring to it as ʺgood content that we can use for the
pageʺ and stating ʺif we get this inserted correctly and make the page look good
we can blow this up.ʺ J. App. at 778a. Providing feedback on another affiliateʹs
page, that same employee stated that the site ʺlooks good except you CANT say
anything about a free trial.. [sic] I need that removed,ʺ id. 787a, and noted that
ʺ[i]t is much more realistic if you say that someone lost 10‐12 lbs in 4 weeks
rather than saying anything more than that,ʺ id. at 788a.
4.
LeadClickʹs Media Buying on Behalf of Affiliates With Fake
News Sites
In addition to providing LeanSpa access to its affiliate network,
LeadClick occasionally purchased advertising space on genuine news sites for
banner advertisements that would link to the fake news sites promoting
LeanSpaʹs products as part of its ʺmedia buyingʺ business. When soliciting
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Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page14 of 50
LeanSp
paʹs busines
ss, a LeadC
Click accou
unt manag
ger referred to the m
media buyin
ng
as a way to ʺgenerat[e] qual
lity traffic in very luc
crative pla
acements.ʺ J. App. at
t
714a. L
LeadClick o
occasionally identifie
ed fake ne
ews sites as
s destination pages f
for
the ban
nner advert
tisements w
when nego
otiating wi
ith media sellers by emailing t
the
media s
seller a com
mpressed v
version of an affiliate
eʹs page or
r providing the web
address
s for the de
estination page.
B.
B
CoreL
Logic
In 20
005, CoreLo
ogicʹs pred
decessor, F
First American Corpo
oration,
er with ano
other publi
ic company, First Ad
dvantage C
Corporatio
on (ʺFirst
togethe
Advant
tageʺ), acqu
uired a ma
ajority inte
erest in Lea
adClick.2 I
In 2009, Co
oreLogic a
and
First Ad
dvantage a
acquired th
he remaini
ing interes
st in LeadC
Click. Late
er that year
r,
CoreLo
ogic purcha
ased First A
Advantage
e, and chan
nged its na
ame to Co
oreLogic U.S.,
Inc. (ʺCLUSIʺ). A
After the ac
cquisition, CoreLogic
c wholly o
owned CLU
USI directl
ly,
directly ow
wned LeadC
Click throu
ugh CLUS
SI.
and ind
In 20
010, CoreLo
ogic reorga
anized its corporate structure, and
LeadCli
ick became
e a direct s
subsidiary
y of CoreLo
ogic, and a
a sister com
mpany to
First A
American C
Corporation
n reincorpo
orated and changed its
s name to
gic in 2010.
CoreLog
2
‐ 14 ‐
Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page15 of 50
CLUSI. During the restructuring, CoreLogic transitioned LeadClick and six of its
sister subsidiaries into a ʺshared services systemʺ to streamline and enhance back
office functions across the subsidiaries. Pl. FTCʹs Local Rule 56(a)(2) Statement in
Response to CoreLogic, Inc.ʹs Local Rule 56(a)(1) Statement (ʺFTC 56(a)(2)
Statementʺ) at ¶ 4, Federal Trade Commission v. LeanSpa, LLC, No. 3:11‐cv‐01715‐
JCH, ECF No. 309.
Shared services programs allow related entities to consolidate some
or all of their back‐office functions, such as accounting, legal and compliance,
human resources, and information technology, into a single office.
Concentrating these functions allows the companies to operate more efficiently
and reduce their administrative expenses. These programs are common in
business today ‐‐ Amici Curiae estimate that ʺmore than eighty percent of Fortune
500 companies have implemented some form of shared services in their domestic
operations.ʺ Amici Br. at 5.
As part of CoreLogicʹs shared services system, CoreLogicʹs back
office began to handle accounts payable for LeadClick and its sister subsidiaries
in January 2011. The accounts receivable process was transitioned several
months later, beginning in July 2011. After January of 2011, when LeadClick
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Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page16 of 50
accrued a payable expense, CoreLogic would make the payment directly on its
behalf, and track the payment as an advance to LeadClick. Both LeadClick and
CoreLogic intended that LeadClick would later reimburse CoreLogic for those
advances from its incoming revenue once CoreLogic transitioned LeadClickʹs
accounts receivables process to the shared services program. Pursuant to this
agreement, CoreLogic advanced approximately $13 million to pay LeadClickʹs
expenses from January through August of 2011, and recorded these expenses as
an intercompany liability. ʺ[T]here was no agreed upon repayment schedule or
repayment deadline, no security for those advances, no written loan agreement,
and no interest due in connection with the funds CoreLogic provided LeadClick
in 2011.ʺ J. App. at 38a.
Once LeadClickʹs accounts receivable system transitioned to
CoreLogic as part of the shared services agreement, CoreLogic began to recoup
its prior advances by executing daily sweeps of the revenues received by
LeadClick: Incoming funds deposited into LeadClickʹs account were
automatically swept first into an account held by CLUSI, and then directed into
an account held by CoreLogic. Through these sweeps, LeadClick repaid a total
of $8.2 million of its advance balance to CoreLogic. Half of this amount was
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Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page17 of 50
repaid in a single cash transfer on August 30, 2011 (the ʺAugust 30 Transferʺ),
when LeadClick, in transitioning its accounts receivable, withdrew $4.1 million
in customer receipts from a bank account, and deposited them into a shared
service account, which was then automatically swept to CLUSI and then
CoreLogic. This was LeadClickʹs final repayment: When it ceased operations in
September of 2011, it still owed CoreLogic approximately $8 million, and owed
its sister subsidiary CLUSI approximately $8 million under an old promissory
note.3
II.
The Proceedings Below
On November 7, 2011, the FTC and the State filed a complaint in this
action against LeanSpa, NutraSlim, LLC, NutraSlim U.K., Ltd., and Boris
Mizhen, LeanSpaʹs owner, for unfair trade practices. The FTC and the State
learned of LeadClickʹs involvement in LeanSpaʹs business during discovery, and
amended their complaint on July 26, 2012 to include LeadClick and its former
officer, Richard Chiang, as defendants and Angelina Strano, Mizhenʹs wife, as a
relief defendant. The complaint was subsequently amended on August 28, 2013
CLUSIʹs predecessor entered into a loan agreement and promissory note
with LeadClick in 2008, before LeadClick became its wholly‐owned subsidiary. That
note remained partially outstanding at the time LeadClick ceased operations.
3
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Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page18 of 50
by the FTC to add CoreLogic as a relief defendant. The State did not join the FTC
in asserting a claim against CoreLogic. All claims except for those against
LeadClick and CoreLogic were resolved in stipulated orders before the district
court.
LeadClick and Chiang moved to dismiss, claiming immunity under
Section 230 of the CDA. The district court denied the motion on January 29,
2013, concluding that LeadClick had not established immunity. On May 5, 2014,
plaintiffs moved for summary judgment against LeadClick and CoreLogic. On
the same day, LeadClick and CoreLogic separately moved for summary
judgment.
On March 5, 2015, the district court granted plaintiffsʹ motion and
denied defendantsʹ motions. As part of that decision, the district court required
LeadClick to disgorge all proceeds that it received from LeanSpa as payment for
affiliate marketing and required CoreLogic to disgorge $4.1 million, which was
the amount that LeadClick transferred to CoreLogic in August 2011. The district
court entered final judgment in favor of plaintiffs on March 6, 2015. LeadClick
and CoreLogic filed timely notices of appeal.
‐ 18 ‐
Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page19 of 50
SCUSSION
N
DIS
Defen
ndants raise three issues on ap
ppeal: (1) L
LeadClickʹs liability
under S
Section 5 of the FTC A
Act and CU
UTPA, (2) LeadClick
kʹs purport
ted immun
nity
under S
Section 230
0 of the CD
DA, and (3)
) CoreLogi
icʹs liabilit
ty as a relie
ef defenda
ant.
We re
eview de n
novo a distr
rict courtʹs
s grant of s
summary ju
udgment, ʺto
determi
ine whethe
er the distr
rict court p
properly co
oncluded that there was no
genuine
e dispute a
as to any m
material fac
ct, such tha
ving party was entitl
led
at the mov
to judgm
ment as a m
matter of l
law.ʺ Myer
rs v. Patters
son, 819 F.3d 625, 632 (2d Cir.
2016). W
We addres
ss the claim
ms against LeadClick
k and Core
eLogic separately bel
low.
I.
LeadClickʹs Liability
L
s
y
A.
A
FTC Act Liabil
A
lity
1.
Applicab Law
ble
Sectio
on 5 of the
e FTC Act ʺempower
r[s] and dir
rect[s]ʺ the
e FTC to
nt persons,
, partnersh
hips, or cor
rporations
s . . . from u
using . . . u
unfair or
ʺpreven
deceptiv
ve acts or practices i
in or affect
ting comm
merce,ʺ and
d declares u
unlawful
ʺunfair or decepti
ive acts or practices i
in or affect
ting comm
merce.ʺ 15 U.S.C. §
‐ 19 ‐
Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page20 of 50
45(a)(1) and (a)(2).4 The FTC Act is drafted broadly to include not only
traditional anti‐trust violations but also ʺpractices that the Commission
determines are against public policy for other reasons.ʺ FTC v. Indiana Fedʹn of
Dentists, 476 U.S. 447, 454 (1986). ʺIt is important to note the generality of [this]
standard[] of illegality; the proscriptions in [Section] 5 are flexible, ʹto be defined
with particularity by the myriad of cases from the field of business.ʹʺ FTC v.
Colgate‐Palmolive Co., 380 U.S. 374, 384‐85 (1965) (quoting FTC v. Motion Picture
Advert. Serv. Co., 344 U.S. 392, 394 (1953)).
The FTC and the State allege that LeadClick is liable under Section 5
because it engaged in a deceptive act or practice.5 ʺTo prove a deceptive act or
practice under § 5(a)(1), the FTC must show three elements: ʹ[1] a representation,
CUTPA provides that ʺ[n]o person shall engage in unfair methods of
competition and unfair or deceptive acts or practice in the conduct of any trade or
commerce.ʺ C.G.S.A. § 42‐110b(a). The statute is interpreted consistently with the
federal statute. Id. 42‐110b(b) (ʺIt is the intent of the legislature that in construing
subsection (a) of this section, the commissioner and the courts of this state shall be
guided by interpretations given by the Federal Trade Commission and the federal
courts to Section 5(a)(1) of the [FTC] Act.ʺ); 42‐110(c) (noting that regulations may be
established provided ʺ[s]uch regulations shall not be inconsistent with the rules,
regulations and decisions of the federal trade commission [sic] and the federal courts in
interpreting the provisions of the [FTC] Act.ʺ). Accordingly, although we discuss only
the alleged violation of the FTC Act below, the analysis applies with equal force to the
alleged CUTPA violation.
4
The FTC and State of Connecticut do not assert that that LeadClick engaged in
an unfair trade practice.
5
‐ 20 ‐
Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page21 of 50
omission, or practice, that [2] is likely to mislead consumers acting reasonably
under the circumstances, and [3], the representation, omission, or practice is
material.ʺ FTC v. Verity Intʹl, Ltd., 443 F.3d 48, 63 (2d Cir. 2006) (quoting In re
Cliffdale Assocs., Inc., 103 F.T.C. 110, 165 (1984)). ʺThe deception need not be
made with intent to deceive; it is enough that the representations or practices
were likely to mislead consumers acting reasonably.ʺ Id. The deceptive acts or
practices must be ʺlikely to cause substantial injury to consumers which is not
reasonably avoidable by consumers themselves and not outweighed by
countervailing benefits to consumers or to competition.ʺ 15 U.S.C. § 45(n).
LeadClick argues that a defendant may be held liable under Section
5(a) for deceptive acts or practices only when a defendant creates the deceptive
content or when that content is attributable to the defendant. According to
LeadClick, because it did not create the deceptive content appearing on the false
news sites, nor was that content attributable to it, it cannot be held liable under
the FTC Act. As discussed below, we disagree that the FTC Act requires that a
defendant create deceptive content to be liable. Instead, we hold that under the
FTC Act, a defendant may be held liable for engaging in deceptive practices or
‐ 21 ‐
Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page22 of 50
acts if, with knowledge of the deception, it either directly participates in a
deceptive scheme or has the authority to control the deceptive content at issue.
Both the Ninth and Eleventh Circuits have recognized that a
defendant may be liable for deceptive content even if it was not solely
responsible for a deceptive scheme. In FTC v. Neovi, Inc., the Ninth Circuit held a
check processing company liable under the FTC Act for creating and delivering
fraudulent checks drawn by its customers without proper verification, where the
company had ʺreason to believe that a vast number of checks were being drawn
on unauthorized accounts.ʺ 604 F.3d 1150, 1157 (9th Cir. 2010). The defendant
argued that it could not be held liable, because its users, and not the defendant
itself, created the deceptive checks. Id. at 1155. The Ninth Circuit rejected this
argument, noting that ʺa single violation of the [FTC] Act may have more than
one perpetrator,ʺ id., and ʺbusinesses can cause direct consumer harm as
contemplated by the FTC Act in a variety of ways,ʺ id. at 1156. The check
processing company, through its own actions, ʺengaged in a practice that
facilitated and provided substantial assistance to a multitude of deceptive
schemes.ʺ Id. at 1157. The Court recognized that ʺthe creation and distribution of
most any good is subject to a host of sequential stepsʺ and that while ʺ[s]ome of
‐ 22 ‐
Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page23 of 50
those steps involve the contribution of independent causal agents, . . . those
contributions do not magically erase the role of the aggregator and distributer of
the goods.ʺ Id. at 1155. Rather, because the check processing company ʺengaged
in behavior that was, itself, injurious to consumers,ʺ it was liable under the FTC
Act. Id. at 1157
Similarly, in FTC v. IAB Marketing Associates, LP, the Eleventh Circuit
considered the likelihood that the FTC would succeed in an action against a
company selling trade association memberships. 746 F.3d 1228 (11th Cir. 2014).
The company hired third‐party telemarketers who misrepresented that the
memberships were ʺfunctionally equivalent to major medical insurance.ʺ Id. at
1231. The Court found ʺno meritʺ in the argument that the company could not be
held liable for misrepresentations ʺmade by various independent contractors it
engaged to sell its products.ʺ Id. at 1232‐33.
The defendants argued that they could not be held liable for the
misrepresentations made by the third‐party telemarketers without ʺdirect
participation in, knowledge of, and the ability to control the telemarketersʹ
behavior.ʺ Id. at 1233. This test had previously been applied by the Eleventh and
Seventh Circuits to determine when an individual employee may be held liable
‐ 23 ‐
Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page24 of 50
for the conduct of a corporation. See FTC v. Gem Merch. Corp., 87 F.3d 466, 467‐68,
470 (11th Cir. 1996) (holding an individual liable under the FTC Act where ʺhe
was aware that salespeople made material representations to consumers to
induce sales, and he was in a position to control the salespeopleʹs behaviorʺ); FTC
v. Amy Travel Serv., Inc., 875 F.2d 564, 573 (7th Cir. 1989) (holding individuals
liable under the FTC Act for deceptive practices of a corporation where those
individuals had knowledge of the deceptive practices and participated directly in
those practices or had authority to control them).
Without deciding whether the standard for imposing liability was as
ʺdemandingʺ as to require both direct participation and authority to control, the
IAB Marketing Associates court determined that the company would be liable even
under the knowledge, participation, and control test, because it directly
participated in the scheme with knowledge and had the ability to control the
telemarketers it employed to sell its trade association memberships. IAB Mktg.
Associates, 746 F.3d at 1233. While there was no evidence in the record that the
defendants instructed the telemarketers to make material misrepresentations, the
defendants hired the third party telemarketers to sell its products with
knowledge that the telemarketers were making the misrepresentation. Id. The
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Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page25 of 50
defendants also had authority over those telemarketers, and could have, but did
not, require them to cease making the misrepresentations. Id.
We agree that a deceptive scheme violating the FTC Act may have
more than one perpetrator. We adopt the test applied by the Eleventh Circuit in
the context of an individualʹs liability for corporate deception to determine
LeadClickʹs Section 5 liability under the FTC Act: A defendant may be held
liable for deceptive practices that cause consumer harm if, with knowledge of the
deceptive nature of the scheme, he either ʺparticipate[s] directly in the practices
or acts or ha[s] authority to control them.ʺ Amy Travel Serv., 875 F.2d at 573. A
defendant directly participates in deception when it engages in deceptive acts or
practices that are injurious to customers with at least some knowledge of the
deception. 15 U.S.C. § 45(a) and (n). Similarly, a defendant who knows of
anotherʹs deceptive practices and has the authority to control those deceptive
acts or practices, but allows the deception to proceed, may be held liable for
engaging in a deceptive practice injurious to consumers. This is consistent with
the FTCʹs longstanding policy that an omission in certain circumstances may
constitute a deceptive or unfair practice. See Letter from Federal Trade
Commission to Hon. John D. Dingell, Chairman of the Committee on Energy and
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Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page26 of 50
Commerce (October 14, 1983), appended to Cliffdale Assocs., 103 F.T.C. at 182
(ʺThe Commission will find an act or practice deceptive if there is a
misrepresentation, omission, or other practice, that misleads the consumer acting
reasonably in the circumstances, to the consumerʹs detriment.ʺ); In the Matter of
Intʹl Harvester Co., 104 F.T.C. 949 (1984) (finding defendantʹs failure to warn
consumers of a material risk of harm created by its product would be an unfair
trade practice under Section 5).
LeadClick argues that applying a test that imposes liability based on
direct participation in or authority to control deceptive practices conflates
principal liability with aiding and abetting liability, which is foreclosed under
the FTC Act. We reject this argument.
We have not previously considered whether a defendant may be
held liable under the FTC Act for aiding and abetting anotherʹs deceptive acts or
practices. As LeadClick notes, the FTC Act does not expressly provide for aiding
and abetting liability. Cf. Central Bank of Denver, N.A. v. First Interstate Bank of
Denver, N.A., 511 U.S. 164, 177 (1994) (noting that in securities fraud context that
if ʺCongress intended to impose aiding and abetting liability . . . it would have
used the words ʹaidʹ and ʹabetʹ in the statutory textʺ); Wright v. Ernst & Young
‐ 26 ‐
Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page27 of 50
LLP, 152 F.3d 169, 175 (2d Cir. 1998) (noting where Section 10(b) liability is based
on making material false representations, ʺ[a]nything short of such conduct is
merely aiding and abetting, and no matter how substantial that aid may be, it is
not enough to trigger liabilityʺ). We need not decide this issue, however, because
we conclude that a defendant acting with knowledge of deception who either
directly participates in that deception or has the authority to control the
deceptive practice of another, but allows the deception to proceed, engages,
through its own actions, in a deceptive act or practice that causes harm to
consumers. As the Ninth Circuit noted in Neovi, Inc.:
To be clear, none of this is to say that [defendant] is liable under a
theory of aiding and abetting. [Defendant] engaged in behavior that
was, itself, injurious to consumers. [Defendantʹs] business practices
might have served to assist others in illicit or deceptive schemes, but
the liability under the FTC Act that attached to [defendant] is not
mediated by the actions of those third parties. [Defendant] caused
harm through its own deeds ‐‐ in this case creating and delivering
unverified checks ‐‐ and thus § 5 of the FTC Act easily extends to its
conduct.
Neovi, Inc., 604 F.3d at 1157. A defendant may be held liable for its own acts of
deception under the FTC Act, whether by directly participating in deception or
by allowing deceptive acts or practices to occur that are within its control. This
direct liability is distinguishable from liability for merely aiding and abetting the
deceptive conduct of another.
‐ 27 ‐
Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page28 of 50
2.
Application
LeadClick does not dispute on appeal that its affiliates engaged in
false and deceptive advertising practices. Instead, it argues that even assuming
these statements were deceptive, such deception ʺsupport[s] only imposition of
liability against the publishers who created and made the deceptive statements ‐‐
not against a wholly separate entity[, LeadClick,] that the FTC concedes did not
make the challenged statements.ʺ LeadClick Br. at 33. As discussed below, we
reject this argument and hold that LeadClick is directly liable for its own
deceptive conduct in the eAdvertising scheme. LeadClick knew that deceptive
false news sites were prevalent in its affiliate marketing network, directly
participated in the deception, and had the authority to control the deceptive
content of these fake news sites, but allowed the deceptive content to be used in
LeanSpa advertisements on its network. Accordingly, LeadClick is liable under
Section 5 of the FTC Act for engaging in deceptive acts or practices.
i.
LeadClick Knew of the Deception
LeadClick knew that (1) the use of false news pages was prevalent in
affiliate marketing, and (2) its own affiliate marketers were using fake news sites
to market LeanSpaʹs products:
‐ 28 ‐
Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page29 of 50
An eAdvertising division employee noted that in the summer of 2010, fake
news sites were ʺfairly common,ʺ J. App. at 158a‐59a;
Another employee testified in his deposition that during his time at
LeadClick, ʺeveryone was using ʹem,ʺ id. at 235;
LeadClick employees occasionally discussed fake article pages, fake news
pages, and news style pages among themselves and with affiliates and
merchant clients;
A LeadClick employee testified that he saw ʺmanyʺ false news sites from
LeadClick affiliates that contained false information, J. App. at 387a, 389a;
and
LeadClick was even familiar with the specific content of these sites, and
employees occasionally referred to ʺstep 1 and step 2ʺ pairing typical of
fake news sites, see J. App. at 157a, 746a, 800a.
ii.
Direct Participation in the Deceptive Practices
In addition to this knowledge, LeadClick participated in the
deceptive scheme through the following acts:
A LeadClick employee ʺscoutedʺ fake news websites to recruit potential
affiliates for the LeanSpa account;
‐ 29 ‐
Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page30 of 50
LeadClick employees required alterations to the content of its affiliatesʹ
fake news pages by instructing them to revise their pages to comply with
explicit directives from LeanSpa;
A LeadClick employee instructed an affiliate to check that his fake news
site was not ʺcrazy [misleading]ʺ and advising him not to remove the
reporter photograph, but to ʺjust add advertorial,ʺ J. App. at 230a‐31a;
LeadClick employees advised affiliates on the content to include in their
pages to increase consumer traffic, see J. App. at 788a (telling an affiliate
ʺ[i]t is much more realistic if you say that someone lost 10‐12 lbs[.] in 4
weeks rather than saying anything more than thatʺ); and
LeadClick purchased banner advertisement space on genuine news sites to
resell that space to affiliates running fake news pages to ʺgenerat[e] quality
traffic in very lucrative placements.ʺ J. App. at 714a.
Considered together, this conduct clearly demonstrates LeadClickʹs
direct participation in the deceptive advertising scheme. LeadClickʹs own
actions ‐‐ recruiting and paying affiliates who used fake news sites for generating
traffic, managing those affiliates, suggesting substantive edits to fake news
‐ 30 ‐
Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page31 of 50
pages, and purchasing banner space for fake news sites on legitimate news
sources ‐‐ caused significant harm to consumers.
iii.
LeadClickʹs Authority to Control the Deceptive
Practices or Acts
LeadClick was paid by LeanSpa to recruit and manage a network of
affiliates who would advertise LeanSpaʹs products. As established above,
LeadClick knew that some of its affiliates were using fake news sites to advertise
LeanSpa products. As the manager and orchestrator of the affiliate marketing
scheme, LeadClick had the authority to control the deceptive practices of
affiliates that joined its network:
LeadClick had the ultimate authority to review and approve or disapprove
of an affiliate using a fake news site;
LeadClick permitted affiliates using fake news sites to join its network and
refer customers to LeanSpa, and it paid its affiliates with fake news sites
for generating actions; and
LeadClick employees affirmatively approved the use of fake news sites by
telling a potential affiliate that ʺNews Style landers are totally fine,ʺ
J. App. at 761a, and explaining to a potential merchant client that ʺ[a]ll of
‐ 31 ‐
Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page32 of 50
[its] traffic would be through display on fake article pages,ʺ Id. at 750a
(emphasis added);
As the manager of the affiliate network, LeadClick had a responsibility to ensure
that the advertisements produced by its affiliate network were not deceptive or
misleading. By failing to do so and allowing the use of fake news sites on its
network, despite its knowledge of the deception, LeadClick engaged in a
deceptive practice for which it may be held directly liable under the FTC Act.
As discussed above, LeadClick is not liable here merely because it
aided and abetted its affiliatesʹ deception. Rather, its liability arises from its own
deceptive practices: directly participating in the deceptive scheme by recruiting,
managing, and paying a network of affiliates to generate consumer traffic
through the use of deceptive advertising and allowing the use of deceptive
advertising where it had the authority to control the affiliates participating in its
network. See Neovi, 604 F.3d at 1157 n.5 (rejecting similar argument and noting
that defendantʹs ʺactions caused consumer harm; it did not merely aid or abet
others who caused consumer harmʺ).
Moreover, LeadClick is directly liable regardless of whether it
intended to deceive consumers ‐‐ it is enough that it orchestrated a scheme that
‐ 32 ‐
Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page33 of 50
was like
ely to misl
lead reason
nable cons
sumers. Se
ee Verity In
ntʹl, Ltd., 44
43 F.3d at 6
63.
And the
e scheme d
did just tha
at: the ma
ajority of tr
raffic from
m LeadClick
kʹs affiliate
e
network
k came fro
om fake ne
ews sites, g
generating enough tr
raffic to bil
ll LeanSpa
a for
approxi
imately $2
22 million a
and earn L
LeanSpa re
ecognition as LeadCl
lickʹs ʺtop
customer.ʺ J. App
p. at 343a, 908a, 1016
6a.
Acco
ordingly, th
he district court did n
concluding that
not err in c
ick is direc
ctly liable u
under Sect
tion 5 of th
he FTC Act and CUT
TPA.
LeadCli
B.
B
Immu
unity unde the CDA
er
A
Lead
dClick argu
ues that, ev
ven if it wo
ould other
rwise be lia
able under
r
TC Act and
d CUTPA for its par
rticipation in the deceptive
Section 5 of the FT
ing scheme, it is imm
mune unde
er Section 2
230 of the CDA. We
e conclude,
marketi
howeve
er, that the
e district co
ourt correc
ctly held th
hat LeadCl
lick was no
ot entitled
d to
Section 230 immu
unity.
1.
Applicab Law
ble
n it was in
ntroduced, the prima
ary purpos
se of the CD
DA was to
o
When
protect children fr
rom sexua
ally explici
it internet c
content.6 S
Section 230, enacted
In his
s statement introducin
ng the propo
osed legisla
ation, Senat
tor Exon
proclaim
med ʺ[T]he i
information
n superhigh
hway shoul
ld not beco
ome a red li
ight district
t.
This legi
islation wil
ll keep that from happ
pening and extend the standards of decency
y
6
‐ 33 ‐
Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page34 of 50
through an amendment to the CDA, had a different objective: ʺ[T]o preserve the
vibrant and competitive free market that presently exists for the Internet and
other interactive computer services, unfettered by Federal or State regulation.ʺ
47 U.S.C. § 230(b)(2); see also Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th
Cir. 1997) (ʺCongress recognized the threat that tort‐based lawsuits pose to
freedom of speech in the new and burgeoning Internet medium.ʺ).
The amendment assuaged Congressional concern regarding the
outcome of two inconsistent judicial decisions applying traditional defamation
law to internet providers. 141 Cong. Rec. H8469‐70 (daily ed. Aug. 4, 1995
(statement of Rep. Cox). The first held that an interactive computer service
provider could not be liable for a third partyʹs defamatory statement, Cubby, Inc.
v. CompuServe, Inc., 776 F. Supp. 135, 141 (S.D.N.Y. 1991), but the second imposed
liability where a service provider filtered its content in an effort to block obscene
material, Stratton Oakmont, Inc. v. Prodigy Servs. Co., No. 31063/94, 1995 WL
323710, at *4 (N.Y. Sup. Ct. May 24, 1995). The amendment was intended to
overrule Stratton and provide immunity for ʺinteractive computer service[s]ʺ that
which have protected telephone users to new telecommunications devices.ʺ 141 Cong.
Rec. S1953 (daily ed. Feb. 1, 1995) (statement of Sen. Exon).
‐ 34 ‐
Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page35 of 50
make ʺgood faithʺ efforts to block and screen offensive content. 47 U.S.C.
§ 230(c).
To accomplish that goal, Section 230 provides that ʺ[n]o provider or
user of an interactive computer service shall be treated as the publisher or
speaker of any information provided by another information content provider.ʺ
47 U.S.C. § 230(c)(1).
We have had limited opportunity to interpret Section 230. Other
circuits, however, have recognized that Section 230 immunity is broad. See, e.g.,
Jones v. Dirty World Entmʹt Recordings LLC, 755 F.3d 398, 406‐07 (6th Cir. 2014)
(ʺclose cases . . . must be resolved in favor of immunityʺ (quoting Fair Hous.
Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1174 (9th Cir.
2008) (en banc))); Almeida v. Amazon.com, 456 F.3d 1316, 1321 (11th Cir. 2006)
(ʺThe majority of federal circuits have interpreted the CDA to establish broad
federal immunity to any cause of action that would make service providers liable
for information originating with a third‐party user of the service.ʺ (internal
quotation marks omitted)); id. at n.3 (collecting cases). In applying the statute,
courts have ʺbroken [it] down into three component parts,ʺ finding that ʺ[i]t
shields conduct if the defendant (1) ʹis a provider or user of an interactive
‐ 35 ‐
Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page36 of 50
computer service, (2) the claim is based on information provided by another
information content provider and (3) the claim would treat [the defendant] as the
publisher or speaker of that information.ʹʺ Jane Doe No. 1 v. Backpage.com, LLC,
817 F.3d 12, 19 (1st Cir. 2016) (quoting Universal Commcʹn Sys., Inc. v. Lycos, Inc.,
478 F.3d 413, 418 (1st Cir. 2007)); see also Jones, 755 F.3d at 409; Zeran, 129 F.3d at
330.
On appeal, LeadClick argues that it is immune under Section 230
because it meets these elements. We discuss each, in turn.
i.
Provider of an Interactive Computer Service
ʺThe term ʹinteractive computer serviceʹ means any information
service, system, or access software provider that provides or enables computer
access by multiple users to a computer server, including specifically a service or
system that provides access to the Internet and such systems operated or services
offered by libraries or educational institutions.ʺ 47 U.S.C. § 230(f)(2).
Courts typically have held that internet service providers, website
exchange systems, online message boards, and search engines fall within this
definition. See, e.g., Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, 1175 (9th Cir.
2009) (concluding that malware provider who blocked plaintiffʹs software as
ʺpotentially maliciousʺ was interactive computer service provider because it
‐ 36 ‐
Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page37 of 50
provided service to consumers by screening for malicious content); Chicago
Lawyersʹ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 671
(7th Cir. 2008), as amended (May 2, 2008) (applying definition to Craigslist, a
classified advertisements website); Universal Commcʹns Sys. v. Lycos, Inc., 478 F.3d
413, 419 (1st Cir. 2007) (applying definition to internet message board operator);
Zeran, 129 F.3d at 329 (ʺAOL is just such an interactive computer service.ʺ);
Murawski v. Pataki, 514 F. Supp. 2d 577, 591 (S.D.N.Y. 2007) (concluding Ask.com
is an interactive service provider because it is a search engine).
ii.
Information Content Provider
As noted above, the statute requires that the claim be based on
content provided by another information content provider. This grant of
immunity applies only if the interactive service provider is not also an
ʺinformation content providerʺ of the content which gives rise to the underlying
claim. ʺInformation content providerʺ is defined to include ʺany 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.ʺ 47 U.S.C. § 230(f)(3). This definition ʺcover[s] even those who are
responsible for the development of content only in part.ʺ FTC v. Accusearch Inc.,
570 F.3d 1187, 1197 (10th Cir. 2009) (quoting Universal Commcʹn Sys., Inc. v. Lycos,
‐ 37 ‐
Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page38 of 50
Inc., 478 F.3d 413, 419 (1st Cir. 2007)). A defendant, however, will not be held
responsible unless it assisted in the development of what made the content
unlawful. Id. at 1201. For example, a defendant who paid researchers to uncover
confidential phone records protected by law, and then provided that information
to paying customers, fell within the definition because he did not merely act as a
neutral intermediary, but instead ʺspecifically encourage[d] development of
what [was] offensive about the content.ʺ Id. at 1199; see also Roommates.com, 521
F.3d at 1167‐68 (holding defendant liable for developing content by ʺnot merely
. . . augmenting the content generally, but . . . materially contributing to its
alleged unlawfulnessʺ when it required subscribers to provide information
which enabled users of site to unlawfully discriminate in selecting a roommate).
iii.
Whether the Claim Treats the Defendant as the
Publisher or Speaker of Content Provided by Another
ʺAt its core, § 230 bars ʹlawsuits seeking to hold a service provider
liable for its exercise of a publisherʹs traditional editorial functions ‐‐ such as
deciding whether to publish, withdraw, postpone or alter content.ʹʺ Dirty World
Entmʹt Recordings LLC, 755 F.3d at 407 (quoting Zeran, 129 F.3d at 330). Section
230(c)(1) provides that ʺno provider of an interactive computer service shall be
treated as the publisher or speaker of any information provided by another
‐ 38 ‐
Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page39 of 50
information content providerʺ but it does not define the terms ʺpublisher or
speaker.ʺ 47 U.S.C. § 230(c)(1).
In Barnes v. Yahoo!, Inc., the Ninth Circuit addressed ʺhow to
determine when, for purposes of this statute, a plaintiffʹs theory of liability
would treat a defendant as a publisher or speaker of third‐party content.ʺ 570
F.3d 1096, 1101 (9th Cir. 2009), as amended (Sept. 28, 2009). The Ninth Circuit
considered traditional dictionary definitions of publisher, including ʺthe
reproducer of a work intended for public consumptionʺ and ʺone whose business
is publication.ʺ Id. at 1102 (quoting Websterʹs Third New International
Dictionary 1837 (Philip Babcock Gove ed., 1986)). In deciding whether the claim
at issue sought to hold the defendant liable as a publisher or speaker, the Court
noted that ʺwhat matters is whether the cause of action inherently requires the
court to treat the defendant as the ʹpublisher or speakerʹ of content provided by
another. To put it another way, courts must ask whether the duty that the
plaintiff alleges the defendant violated derives from the defendantʹs status or
conduct as a ʹpublisher or speaker.ʹʺ Id. at 1102.
In Accusearch, Inc., the only other case considering the application of
Section 230 immunity to liability arising under Section 5 of the FTC Act, the
‐ 39 ‐
Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page40 of 50
Tenth Circuit concluded that the defendant could not be immune for its payment
to researchers to uncover confidential phone records and subsequent publishing
of that information because it was an information content provider of the
offensive conduct. 570 F.3d at 1197. The majority concluded that the defendant
was not immune because liability was based on the defendantʹs own content
rather than the content of another, while the concurrence was of the view that the
defendant was not immune because liability was premised not on content but on
its conduct. Id. at 1197, 1205.
2.
Application
LeadClick argues that it should be immune from liability under the
FTC Act and CUTPA because it was an interactive computer service provider, it
did not publish deceptive content, and the plaintiffs seek to hold it liable for the
deceptive statements of its affiliates. We disagree and conclude that LeadClick is
not entitled to Section 230 immunity because it is an information content
provider with respect to the deception at issue and because LeadClick is liable
under the FTC Act for its own deceptive acts or practices, rather than for
publishing content created by another.
‐ 40 ‐
Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page41 of 50
i.
Provider of an Interactive Computer Service
As an initial matter, we are doubtful that LeadClick is an ʺinteractive
service provider.ʺ The definition is indeed broad, but we are not convinced that
LeadClick provides computer access in the sense of an internet service provider,
website exchange system, online message board, or search engine. LeadClick
contends that it is covered because it ʺenabled computer access by multiple users
to a computer serverʺ by routing consumers from its affiliatesʹ webpages to
LeanSpaʹs websites via the HitPath server. LeadClick Reply Br. at 4.
But LeadClick cites no case law applying the definition of
ʺinteractive service providerʺ in a similar context, where the defendantʹs
provision of services (in this case, consumer access to LeadClickʹs HitPath
computer server) was wholly unrelated to its potential liability under the statute.
Moreover, the ʺserviceʺ LeadClick purportedly provided ‐‐ access to the HitPath
server ‐‐ is not the type of service that Congress intended to protect in granting
immunity. The statute aims to promote the continued development of the
internet, through ʺthe availability of educational and informational resources to
our citizensʺ and to ʺoffer a forum for a true diversity of political discourse,
unique opportunities for cultural development, and myriad avenues for
intellectual activity.ʺ 47 U.S.C. § 230(a)(1), (a)(3); see also id. at (b)(1), (b)(3)
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Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page42 of 50
(noting that it is the policy of the United States ʺto promote the continued
development of the Internet and other interactive computer servicesʺ and to
ʺmaximize user control over what information is received by individuals,
families, and schools who use the Internet and other interactive computer
servicesʺ). The computer access service LeadClick actually provided, routing
customers through the HitPath server before reaching LeanSpaʹs website, was
invisible to consumers and did not benefit them in any way. Its purpose was not
to encourage discourse but to keep track of the business referred from its affiliate
network.
In any event, we need not reach this issue because we conclude, as
described below, that LeadClick is an information content provider with respect
to the content at issue and that LeadClick is liable for its own content and not
merely because it was the ʺpublisher or speakerʺ of deceptive content provided
by its affiliates.
ii.
Information Content Provider
LeadClick is not entitled to immunity because it participated in the
development of the deceptive content posted on fake news pages. As discussed
in greater detail above, LeadClick recruited affiliates for the LeanSpa account
that used false news sites. LeadClick paid those affiliates to advertise LeanSpa
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Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page43 of 50
products online, knowing that false news sites were common in the industry.
LeadClick employees occasionally advised affiliates to edit content on affiliate
pages to avoid being ʺcrazy [misleading],ʺ J. App. at 231a, and to make a report
of alleged weight loss appear more ʺrealisticʺ by reducing the number of pounds
claimed to have been lost, id. at 788a. LeadClick also purchased advertising
banner space from legitimate news sites with the intent to resell it to affiliates for
use on their fake news sites, thereby increasing the likelihood that a consumer
would be deceived by that content.
LeadClickʹs role in managing the affiliate network far exceeded that
of neutral assistance. Instead, it participated in the development of its affiliatesʹ
deceptive websites, ʺmaterially contributing to [the contentʹs] alleged
unlawfulness.ʺ Roommates.com, LLC, 521 F.3d at 1168. Accordingly, LeadClick is
an information content provider with respect to the deceptive content at issue
and is not entitled to immunity under Section 230.
iii.
The Claim does not treat LeadClick as a Publisher or
Speaker of Anotherʹs Content
LeadClick cannot establish the third element necessary for immunity
because it is not being held liable as a publisher or speaker of anotherʹs content.
Rather, as discussed above, LeadClick is being held accountable for its own
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Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page44 of 50
deceptive acts or practices ‐‐ for directly participating in the deceptive scheme by
providing edits to affiliate webpages, for purchasing media space on real news
sites with the intent to resell that space to its affiliates using fake news sites, and
because it had the authority to control those affiliates and allowed them to
publish deceptive statements. Accordingly, because LeadClickʹs Section 5
liability is not derived from its status as a publisher or speaker, imposing liability
under Section 5 does not ʺinherently require[] the court to treat the [LeadClick] as
the ʹpublisher or speakerʹʺ of its affiliatesʹ deceptive content, and Section 230
immunity should not apply. See Barnes, 570 F.3d at 1101‐02; see also Accusearch,
570 F.3d at 1204‐05 (Tymkovitch, J., concurring) (noting that ʺthe FTC sought and
ultimately held [defendant] liable for its conduct rather than for the content of the
information is was offering on [its] websiteʺ and arguing that there should be no
immunity because ʺSection 230 only immunizes publishers or speakers for the
content of the information from other providers that they make publicʺ).
II.
CoreLogicʹs Liability as Relief Defendant
CoreLogic appeals from the district courtʹs finding that it must
disgorge money it received from LeadClick in the August 30 Transfer. As
described below, the district court erred in holding CoreLogic liable for
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Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page45 of 50
LeadCli
ickʹs fines as a relief defendant
t, because CoreLogic
c had a leg
gitimate cla
aim
to repay
yment of it
ts prior ad
dvances to LeadClick
k.
A.
A
Appl
licable Law
w
ʺA re
elief defend
dant is a p
person who
o ʹholds the subject m
matter of th
he
litigatio
on in a subordinate o
or possesso
ory capacit
ty as to wh
hich there is no
dispute
e.ʹʺ Commo
odity Future
es Trading Commʹn v
v. Walsh, 61
18 F.3d 218
8, 225 (2d C
Cir.
2010) (q
quoting SE
EC v. Colello
o, 139 F.3d
d 674, 676 (
(9th Cir. 19
998)). The typical relief
defenda
ant ʺis a ba
ank or trus
stee, which
h has only a custodia
al claimʺ to
o the subje
ect
matter o
of the litig
gation. Colello, 139 F.3d at 677. A relief d
defendant h
has no
ownership interes
st in the pr
roperty, bu
ut ʺmay be
e joined to aid the rec
covery of
relief.ʺ SEC v. Cav
vanagh (Ca
avanagh II),
, 445 F.3d 105, 109 n.
.7 (2d Cir. 2006).
ʺFede
eral courts
s may orde
er equitabl
le relief against a [rel
lief
defenda
ant] not ac
ccused of w
wrongdoin
ng . . . wher
re that per
rson: (1) h
has received
ill‐gotte
en funds; a
and (2) doe
es not have
e a legitim
mate claim t
to those fu
unds.ʺ S.E.C.
v. Cavan
nagh (Cava
anagh I), 15
55 F.3d 129
9, 136 (2d C
Cir. 1998). ʺDistrict c
courts may
y
only req
quire disgo
orgement of the asse
ets of a reli
ief defenda
ant upon a
a finding th
hat
she lack
ks a legitim
mate claim.ʺ Walsh, 6
618 F.3d at
t 226 (inter
rnal quotat
tion marks
s
omitted
d).
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Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page46 of 50
While we have not ʺdeveloped explicit guidelines for what qualifies
as a legitimate claim sufficient to immunize . . . property from disgorgement,ʺ we
have recognized that ʺrelief defendants who have provided some form of
valuable consideration in good faith . . . are beyond the reach of the district
courtʹs disgorgement remedy.ʺ Id. at 226 (internal quotation marks omitted). An
outstanding loan from a relief defendant constitutes valuable consideration,
giving rise to a ʺlegitimate claimʺ to repayment of the outstanding amount of
principal and accrued interest. See Janvey v. Adams, 588 F.3d 831, 835 (5th Cir.
2009) (debtor‐creditor relationship ʺconstitutes a sufficient legitimate ownership
interest to preclude treating [defendants] as relief defendantsʺ). A gratuitous
transfer, however, without the payment of consideration, does not give rise to a
legitimate claim. See Cavanagh I, 155 F.3d at 137 (concluding that neither relief
defendant had a legitimate claim to property received as a gift, because to hold
otherwise, ʺwould allow almost any defendant to circumvent the SECʹs power to
recapture fraud proceeds, by the simple procedure of giving [property] to friends
and relatives, without even their knowledgeʺ).
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Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page47 of 50
B.
B
Appl
lication
The f
facts here a
are undisp
puted. Inst
tead, the p
parties disp
pute wheth
her
on these
e facts, Co
oreLogic ha
ad a legitim
mate claim
m to the Au
ugust 30 Tr
ransfer of
$4.1 mil
llion. The FTC argue
es that this
s transfer s
should be characteri
ized as a
gratuito
ous distrib
bution beca
ause it lack
ked a form
mal loan agr
reement an
nd,
accordin
ngly, was not in exch
hange for valuable c
considerati
ion. CoreL
Logic
disagrees, contend
ding that t
this transaction was the repaym
ment of an
n outstanding
intercom
mpany loa
an, implem
mented as p
part of its s
shared serv
vices agreement. Th
he
district court conc
cluded tha
at CoreLog
gic had no legitimate
e claim to t
the funds
because
e there was
s no forma
al loan agreement be
etween the
e parties an
nd ordered
d
disgorg
gement. W
We disagree
e with the district courtʹs concl
lusion that
t a formal loan
agreem
ment was re
equired in this contex
xt and hold
d that Cor
reLogic wa
as not a pro
oper
relief de
efendant b
because it h
had a legit
timate inte
erest in the
e transferre
ed funds. We
conclud
de that und
der these u
undisputed
d facts, CoreLogicʹs a
advances t
to LeadClick
constitu
uted ʺvalua
able consid
derationʺ e
entitling it
to repaym
ment from LeadClick
k.
Both parties ag
gree that af
fter CoreLo
ogic imple
emented th
he shared
s system, C
CoreLogic paid Lead
dClickʹs acc
counts pay
yable. For accountin
ng
services
purpose
es, CoreLo
ogic and Le
eadClick d
documente
ed the advances as in
ntercompa
any
‐ 47 ‐
Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page48 of 50
balances. The parties intended these advances to be repaid automatically from
LeadClickʹs revenue once the accounts receivable function was transitioned to
CoreLogic, six months after the transition of accounts payable. Once Core Logic
transitioned LeadClickʹs accounts receivable system to the shared services
program, LeadClick did in fact begin to repay these amounts through an
automatic diversion of cash receipts deposited in the shared services account to
CoreLogic.7 LeadClick repaid a total of $8.2 million of its advance balance to
CoreLogic through the automated transfers. CoreLogic held a right to
repayment under these circumstances. It did not merely hold the transferred
funds in a custodial capacity. See Cavanagh II, 445 F.3d at 109 n.7; Colello, 139 F.3d
at 677.
The district court reasoned that the advances constituted gratuitous
transfers that could not give rise to a legitimate claim to repayment because there
was no formal debtor‐creditor relationship in place between LeadClick and
CoreLogic. But, as Amici Curiae point out, the lack of a formal agreement is not
surprising in the shared services context. The FTCʹs own expert acknowledged
The funds were first swept automatically into an account held by CLUSI,
LeadClickʹs sister subsidiary, which subsequently transferred the funds into
CoreLogicʹs central treasury, pursuant to the shared services agreement
7
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Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page49 of 50
that it is not customary to use promissory notes or charge interest on
intercompany advances made pursuant to a shared services program. Requiring
such documentation ʺis incompatible with the very purpose of shared services:
streamlining operations and increasing efficiency by reducing excess
paperwork.ʺ Amici Br. at 6. An interest charge would also be artificial, because
the companies were consolidated under general accounting principles for public
companies. Under these circumstances, the lack of a formal loan agreement does
not create suspicion that the transactions were a sham.
Even without the formalities of an armʹs‐length loan agreement, it is
undisputed that CoreLogic advanced funds to LeadClick, both parties intended
these advances to be repaid, and the August 30 Transfer reduced the outstanding
intercompany balance. Under these facts, CoreLogicʹs claim to the August 30
Transfer was therefore legitimate.8 Accordingly, CoreLogic was not a proper
relief defendant, and the district court erred in ordering it to disgorge the funds
it received from LeadClick.
Similarly, CoreLogicʹs claim is not undermined by the fact that
LeadClickʹs ability to repay depended upon its future business performance.
Repayment of an uncollateralized loan based on a borrowerʹs income generally depends
upon the borrowerʹs ability to generate revenue.
8
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Case 15-1009, Document 201-1, 09/23/2016, 1869384, Page50 of 50
CONCLUSION
For the reasons set forth above, the judgment of the district court
imposing liability on the defendants is AFFIRMED with respect to LeadClick
and REVERSED with respect to CoreLogic, and we REMAND with instructions
to the district court to enter judgment in favor of CoreLogic.
‐ 50 ‐
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