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Delaware Law Weekly
Feb 28, 2017

Putative Class Action Immunity Interactive Computer Service Provider Moretti v. The Hertz Corp., DEFAX Case No. D67675 (D.Del. Mar. 17, 2017), Stark, J. (12 pages).

Counsel: Brian E. Farnan, Michael J. Farnan, Adam J. Gutride, Seth A. Safier and Marie A. McCrary for plaintiff; Kevin G. Abrams, John M. Seaman, Sarah E. Hickie, Brendan T. Mangan and Zana Z. Bugaighis for defendant Hotwire.

Defendant in this putative class action was not entitled to judgment on the pleadings where it did not show it was entitled to immunity as an interactive computer services provider under 47 U.S.C. 230. Defendant's motion for judgment on the pleadings denied.

Plaintiff filed a putative class action complaint, which included claims for false advertising, consumer protection violations, unfair trade practices violations and common law fraud. The complaint stated that the Hertz defendants provided misleading information about rental car prices and terms to Hotwire, and that Hotwire directly profited from the scheme.

Hotwire filed a motion for judgment on the pleadings, arguing that it was immune from suit under 47 U.S.C. 230, which protects websites and other interactive company service providers under certain circumstances.

Plaintiff did not contest Hotwire's contention that it qualified as an "interactive computer service provider" within the meaning of the statute. Rather, plaintiff argued that the defense Hotwire raised in its motion was not apparent on the face of the pleadings. The court agreed that plaintiff was not required to anticipate defenses or to affirmatively negate any of the elements of Section 230 immunity in its complaint.

The court found no basis in the pleadings to draw conclusions as to whether Hotwire actively participated in the misrepresentations. The complaint did not contain any representations about whether Hotwire materially contributed to the allegedly misleading statements. Because plaintiff was not required to anticipate and plead around an affirmative defense, and there was nothing else in the pleadings to establish entitlement to immunity, the court concluded Hotwire failed to show that the court should grant its motion.

Hotwire failed to clearly establish that no material issue of fact remained to be resolved, so the court denied Hotwire's motion for judgment on the pleadings. The court ordered plaintiff to amend its complaint to include any specifics which were in his possession that would help to show why plaintiff believed Hotwire was not immune under Section 230.

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