No. 19-
`
`In the
`Supreme Court of the United States
`
`MATTHEW HERRICK,
`
`Petitioner,
`
`v.
`
`GRINDR LLC, KL GRINDR HOLDINGS INC.,
`GRINDR HOLDING COMPANY,
`
`Respondents.
`
`On PetitiOn fOr a Writ Of CertiOrari tO the United
`StateS COUrt Of aPPealS fOr the SeCOnd CirCUit
`
`PETITION FOR A WRIT OF CERTIORARI
`
`tor ekeland
`tor ekeland law, PllC
`195 Montague Street,
`14th Floor
`Brooklyn, New York 11201
`(718) 737-7264
`
`CarrIe a. GoldberG
`Counsel of Record
`C. a. GoldberG, PllC
`16 Court Street, 33rd Floor
`Brooklyn, New York 11241
`(646) 666-8908
`carrie@cagoldberglaw.com
`
`Counsel for Petitioner
`
`289286
`
`A
`
`(800) 274-3321 • (800) 359-6859
`
`
`
`In the
`Supreme Court of the United States
`
`MATTHEW HERRICK,
`
`Petitioner,
`
`v.
`
`GRINDR LLC, KL GRINDR HOLDINGS INC.,
`GRINDR HOLDING COMPANY,
`
`Respondents.
`
`On PetitiOn fOr a Writ Of CertiOrari tO the United
`StateS COUrt Of aPPealS fOr the SeCOnd CirCUit
`
`PETITION FOR A WRIT OF CERTIORARI
`
`tor ekeland
`tor ekeland law, PllC
`195 Montague Street,
`14th Floor
`Brooklyn, New York 11201
`(718) 737-7264
`
`CarrIe a. GoldberG
`Counsel of Record
`C. a. GoldberG, PllC
`16 Court Street, 33rd Floor
`Brooklyn, New York 11241
`(646) 666-8908
`carrie@cagoldberglaw.com
`
`Counsel for Petitioner
`
`289286
`
`A
`
`(800) 274-3321 • (800) 359-6859
`
`
`
`i
`
`QUESTIONS PRESENTED
`
`(1) Does the Communications Decency Act § 230(c)(1),
`which protects interactive computer services from
`liability for traditional publication torts when they
`publish third party content, prevent well pleaded
`causes of action for non-publication torts – such as
`product liability, negligence, fraud, and failure to
`warn – as a matter of law?
`
`(2) Whether, as the majority of the Federal Appellate
`Circuit Courts holds, invocation of the Communications
`Decency Act § 230(c)(1) is an affirmative defense and
`therefore inappropriate for resolution at the motion
`to dismiss stage?
`
`
`
`ii
`
`PARTIES TO PROCEEDING
`
`Petitioner is Matthew Herrick. Respondents are
`Grindr, LLC, KL Grindr Holdings, Inc., and Grindr
`Holding Company.
`
`
`
`iii
`
`RELATED CASES
`
`• Matthew Herrick v. Grindr, LLC, et. al., No. 1:17-cv-
`00932, U.S. District Court for the Southern District
`of New York. Order entered on January 25, 2018.
`
`• Matthew Herrick v. Grindr, LLC, et. al., No. 18-
`396, U.S. Court of Appeals for the Second Circuit.
`Judgment entered May 9, 2019.
`
`
`
`iv
`
`QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . i
`
`PARTIES TO PROCEEDING . . . . . . . . . . . . . . . . . . . . ii
`
`RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
`
`TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . iv
`
`TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . vi
`
`TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . vii
`
`OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
`
`JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
`
`RELEVANT STATUTORY PROVISIONS . . . . . . . . . .1
`
`STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . .3
`
` Grindr & Herrick. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
`
` The Proceedings in the Southern District
`
`of New York. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
`
` The Proceedings in the Second Circuit Court
`
`of Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
`
`REASONS FOR GRANTING THE PETITION. . . . .17
`
`TABLE OF CONTENTS
`
`Page
`
`
`
`v
`
`I. The Court Should Grant Certiorari to Fix
`the Inconsistent Standards Among the
`Federal Circuit Courts of Appeals as to
`the Scope of CDA § 230(c)(1) . . . . . . . . . . . . . . . .19
`
`
`
`II. The Court Should Grant Certiorari
`to Clarify that CDA § 230(c)(1) is an
`Affirmative Defense . . . . . . . . . . . . . . . . . . . . . . .22
`
`
`
`CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
`
`Table of Contents
`
`Page
`
`
`
`vi
`
`APPENDIX A — SUMMARY ORDER OF
`T HE U NI T ED STAT ES COU RT OF
`APPEALS FOR THE SECOND CIRCUIT,
` FILED MARCH 27, 2019 . . . . . . . . . . . . . . . . . . . . . .1a
`
`APPENDIX B — OPINION AND ORDER OF
`THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF
` NEW YORK, FILED JANUARY 25, 2018. . . . . . .14a
`
`APPENDIX C — DENIAL OF REHEARING
`OF THE UNITED STATES COURT OF
`APPEALS FOR THE SECOND CIRCUIT,
` DATED MAY 9, 2019 . . . . . . . . . . . . . . . . . . . . . . . . .53a
`
`TABLE OF APPENDICES
`
`Page
`
`
`
`vii
`
`CASES
`
`Chicago Lawyers’ Comm. for Civil Rights Under
`Law, Inc. v. Craigslist, Inc.,
`519 F.3d 666 (7th Cir. 2008). . . . . . . . . . . . . . . . . . . . .19
`
`
`
`City of Chicago v. StubHub!, Inc.,
`
`624 F.3d 363 (7th Cir. 2010). . . . . . . . . . . . . . . . . . . . .19
`
`Comm’r v. McCoy,
`
`484 U.S. 3 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
`
`CYBERsitter, LLC v. Google, Inc.,
`
`905 F. Supp. 2d 1080 (C.D. Cal. 2012) . . . . . . . . . . . .23
`
`Daniel, et. al. v. Armslist, LLC ,et al.,
` No. 2017AP344, 2018 WL 1889123
`(Wis. Ct. App., Apr. 19, 2018), review granted,
`
`
`2018 WI 93, 383 Wis. 2d 627, 918 N.W.2d 642,
` and rev’d, 2019 WI 47, 386 Wis. 2d 449,
`
`926 N.W.2d 710 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
`
`Doe v. GTE Corp.,
`
`347 F.3d 655 (7th Cir. 2003) . . . . . . . . . . . . . . . . . . . .22
`
`Doe v. Internet Brands, Inc.,
`
`824 F.3d 846 (9th Cir. 2016). . . . . . . . . . . . . . .19, 20, 21
`
`Doe v. MySpace, Inc.,
`
`528 F.3d 413 (5th Cir. 2008) . . . . . . . . . . . . . . . . . . . .20
`
`TABLE OF CITED AUTHORITIES
`
`Page
`
`
`
`viii
`
`Fair Hous. Council of San Fernando Valley v.
`Roommates.Com, LLC,
`521 F.3d 1157 (9th Cir. 2008). . . . . . . . . . . . . . . . . 19-20
`
`
`
`Fed. Trade Comm’n v Accusearch Inc.,
`
`570 F.3d 1187 (10th Cir. 2009). . . . . . . . . . . . . . . . . . .21
`
`Green v. Am. Online (AOL),
`
`318 F.3d 465 (3d Cir. 2003) . . . . . . . . . . . . . . . . . . . . .20
`
`Maynard v. Snapchat, Inc.,
`
`346 Ga. App. 131, 816 S.E.2d 77 (2018) . . . . . . . . . . .22
`
`McDonald v. LG Elecs. USA, Inc.,
`
`219 F. Supp. 3d 533 (D. Md. 2016) . . . . . . . . . . . . . . .22
`
`Obersdorf v. Amazon,
` No. 18-1041, 2019 WL 2849153
`
`(3d Cir. July 3, 2019). . . . . . . . . . . . . . . . . . . . . . . . . . .21
`
`Wang v. OCZ Tech. Group Inc.,
`
`276 F.R.D. 618 (N.D. Cal. 2011) . . . . . . . . . . . . . . . . .23
`
`STATUTES AND OThER AUThORITIES
`
`28 U.S.C. § 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
`
`28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
`
`28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
`
`Cited Authorities
`
`Page
`
`
`
`ix
`
`28 U.S.C. § 1332. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
`
`28 U.S.C. § 1441 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
`
`42 U.S.C. § 230(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . passim
`
`42 U.S.C. § 230(f)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
`
`42 U.S.C. § 230(f)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
`
`Fed. R. App. P. 28(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
`
`Fed. R. Civ. P. 12(b)(6). . . . . . . . . . . . . . . . . . . . . . . passim
`
`N.Y. Gen. Bus. Law § 349 . . . . . . . . . . . . . . . . . . . . . . . . .14
`
`N.Y. Gen. Bus. Law § 350 . . . . . . . . . . . . . . . . . . . . . . . . .14
`
`N.Y. Gen. Bus. Law § 350-a . . . . . . . . . . . . . . . . . . . . . . .14
`
`1 William Blackstone, “Commentaries on
`
`the Laws of England” (Oxford ed. 2016) . . . . . . . . . . .7
`
`Danielle Keats Citron and Benjamin Wittes, “The
`Problem Isn’t Just Backpage: Revising Section 230
`Immunity” 2 GEO. L. TECH. REV. 453 (2018) . . . .18
`
`
`
`“China’s Kunlun Tech agrees to U.S. Demand to
`sell Grindr gay dating app”, by Echo Wang,
` Reuters, published May 13, 2019 . . . . . . . . . . . . . . . . .5
`
`Cited Authorities
`
`Page
`
`
`
`x
`
`Nicole Nguyen, “There’s A Simple Fix, But
`Grindr Is Still Exposing The Location
` Of Its Users,” BuzzFeed (Sept. 14, 2018). . . . . . . . . . .4
`
`“U.S. Orders Chinese Firm to Sell Dating App
`Grindr Over Blackmail Risk”, by Georgia Wells
`and Kate O’Keeffe, published March 27, 2019 . . . . . .5
`
`
`
`Cited Authorities
`
`Page
`
`
`
`1
`
`OPINIONS BELOW
`
`On January 25, 2018 the Honorable Judge Valerie E.
`Caproni of the Southern District of New York issued an
`Opinion and Order dismissing Matthew Herrick’s claims
`against Grindr, LLC, KL Grindr Holdings, Inc., and
`Grindr Holding Company (collectively “Grindr”) under
`Federal Rule of Civil Procedure 12(b)(6).1
`
` On March 27, 2019, the Second Circuit issued a
`Summary Order affirming Judge Caproni’s decision.2 On
`May 9, 2019, the Second Circuit denied Herrick’s motion
`for reconsideration en banc.3
`
`JURISDICTION
`
`The Southern District of New York had jurisdiction
`under 28 U.S.C. §§ 1331 and 1332. The Second Circuit
`had jurisdiction under 28 U.S.C. § 1291. This Court has
`jurisdiction under 28 U.S.C. § 1254(1) following the Second
`Circuit’s denial of a motion for reconsideration en banc on
`May 9, 2019.
`
`RELEVANT STATUTORY PROVISIONS
`
`The relevant portions of the Communications Decency
`Act (“CDA”), 42 U.S.C. § 230(c)(1), provides in relevant
`part:
`
`1. Matthew Herrick v. Grindr, LLC, et. al. 306 F. Supp.3d 579
`(S.D.N.Y. 2018), Appendix B, 1a -13a.
`
`2. Matthew Herrick v. Grindr, LLC, et. al, 765 Fed. App. 586
`(2d Cir. 2019), App. A, 14a – 52a.
`
`3. Dkt. 166, App. C, 53a-54a.
`
`
`
`2
`
`No 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.
`
`CDA § 230(f)(2) defines “interactive computer service”
`
`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.
`
`CDA § 230(f)(3) defines “information content provider”
`
`as
`
`as
`
`any 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.
`
`
`
`3
`
`STATEMENT OF ThE CASE
`
`Starting in October 2016, Petitioner Matthew Herrick
`began receiving uninvited visitors to his home and job.
`They said they were there for sex dates arranged through
`the gay dating app, Grindr. The unsolicited visitors
`showed Herrick a Grindr user profile with Herrick’s
`own picture that he hadn’t created. Over the next five
`months, the Grindr App directed over 1100 men to Herrick
`with pinpoint GPS precision facilitated by its patented
`Geolocation targeting system.4 At one point six different
`men came to Herrick’s work within a six-minute span.
`As many as 16 arrived in a single day. Grindr not only
`directed the men to Herrick’s exact location, it displayed
`the distance in feet between the unwelcome visitors and
`Herrick.5 This happened without Herrick’s consent, and
`despite the fact that he was not an active Grindr user.
`
`Many of the visitors were under the false impression
`that Herrick had rape and sado-masochistic fantasies
`and were made to believe his protests would be part of
`the act. Others thought he had free drugs. Some arrived
`ready to assault him after being provoked with racist and
`homophobic comments they believed were sent by him.
`Others became violent when Herrick told them he hadn’t
`solicited sex from them.
`
`4. “Grindr” is used interchangeably in this Petition to refer to
`both the Respondents and the Grindr App. The context makes clear
`which meaning is being referenced. Where it isn’t clear, we use the
`phrase “Grindr App” to distinguish the App from the Respondents.
`
`5. Because this case was dismissed under Federal Rule of
`Civil Procedure 12(b)(6), there’s been no fact discovery revealing
`how this was possible.
`
`
`
`4
`
`The onslaught of visitors was relentless. They would
`ring his buzzer at all hours, wait for him when he walked
`his dog, follow him into the bathroom during his brunch
`shifts, accost him at the gym, and lurk in the stairwell in
`his apartment building.
`
`How Grindr could geo-target Herrick’s location
`without Herrick’s consent or knowledge is an unresolved
`factual question because the District Court dismissed
`the case before fact discovery. It’s possible that Grindr
`was leaking Herrick’s GPS coordinates because it was
`still tracking him even though he wasn’t actively using
`the App. Grindr has known for years that its App leaks
`geolocation data.6 Or Herrick’s stalker may have exploited
`a defect in Grindr’s code, or used widely available and
`known Geo-Spoofing software to interact with the App
`to target Herrick. The answers to these questions lie
`with Grindr, but the lower courts’ rulings denied Herrick
`access to this information.
`
`One thing is certain. Grindr was on repeated notice
`of the dangers, but took no steps to mitigate the harms
`with readily available software or industry standard
`safety measures.
`
`6. Fed. R. App. P. 28(j) Letter to Second Circuit Court of
`Appeals, Herrick v. Grindr, et al., No. 18-396-CV, Dkt. No. 140, (Sept.
`17, 2018) (citing Nicole Nguyen, “There’s A Simple Fix, But Grindr Is
`Still Exposing The Location Of Its Users,” BuzzFeed (Sept. 14, 2018),
`available at https://www.buzzfeednews.com/article/nicolenguyen/
`grindr-location-data-exposed (“The gay dating app Grindr is still
`exposing the precise location of its more than 3.6 million active users
`although it has long been aware of the issue.”.))
`
`
`
`5
`
`Indeed, the United States government recognizes
`the dangers of Grindr. Recently the government ordered
`Grindr to be sold back to a United States company,
`because of national security concerns, after it was sold
`to a Chinese entity.7
`
`Suing Grindr was Herrick’s last resort. Herrick had
`already made fourteen police reports and obtained a
`family court order of protection against his stalker. But
`neither the police nor the courts could stop his stalker. It
`would take months before Herrick’s stalker was arrested,
`well after Herrick sued Grindr.
`
`Herrick and his friends filed roughly fifty reports with
`Grindr asking for help. It would have been simple to do.
`When Herrick’s stalker targeted Herrick using Grindr’s
`competitors, Grindr’s competitors, Jack’d and Scruff,
`stopped the stalking as soon as they were put on notice.
`The only response Herrick received to his pleas for help
`from Grindr were auto-replies and silence.
`
`7. See “China’s Kunlun Tech Agrees to U.S. Demand to sell
`Grindr Gay Dating App”, by Echo Wang, Reuters, published May
`13, 2019, accessible at “https://www.reuters.com/article/us-grindr-
`m-a-beijingkunlun/chinas-kunlun-tech-agrees-to-u-s-demand-to-
`sell-grindr-gay-dating-app-idUSKCN1SJ28N”; and “U.S. Orders
`Chinese Firm to Sell Dating App Grindr Over Blackmail Risk”, by
`Georgia Wells and Kate O’Keeffe, published March 27, 2019, The
`Wall Street Journal, accessible at https://www.wsj.com/articles/u-
`s-orders-chinese-company-to-sell-grindr-app-11553717942, (“U.S.
`national-security experts said Chinese government knowledge of
`an individual’s usage of Grindr could be used in certain cases to
`blackmail U.S. officials and others with security clearances, such as
`defense contractors, and force them to provide information or other
`support to China.”)
`
`
`
`6
`
`It took filing an emergency order to show cause in
`New York State Supreme Court to finally get Grindr’s
`attention. And even then, Grindr removed the case to
`the Southern District of New York and argued it had no
`responsibility to help Herrick because it enjoyed near
`absolute immunity under the 1996 Communications
`Decency Act (“CDA”) § 230(c)(1). Grindr’s refusal to help
`Herrick is a direct byproduct of an overbroad reading of
`a statute that incentivizes inaction.
`
`Passed in the antediluvian era of the internet,
`before GPS tracking smartphones, Google, or Facebook,
`CDA § 230(c)(1) was meant to protect the fledgling
`internet economy from crippling damage awards from
`traditional publication torts such as defamation. The
`law was never intended to provide blanket immunity for
`internet companies, yet many courts across the country
`using outdated, 20th century paradigms, have judicially
`legislated the CDA into providing just such blanket
`immunity.
`
`They do so primarily three ways: 1) by classifying
`every internet company defendant as an “interactive
`computer service;” 2) by regarding the subject matter
`of all suits as involving a third-party “information
`content provider;” and 3) by dismissing the cases on
`Federal Rule of Civil Procedure 12(b)(6) motions thereby
`inhibiting plaintiffs from gathering basic evidence. This is
`problematic because cases involving internet companies
`usually involve information asymmetry and complex
`questions of computer functionality.
`
`William Blackstone famously commented it’s not
`the common law that usually goes wrong, but statutes
`
`
`
`7
`
`that act in derogation of the common law.8 Whereas
`the “common law [is] nothing but custom, arising from
`the universal agreement of the whole community” and
`thus embodies the whole experience of that community,
`statutes generally aren’t informed by the experience of
`that whole community.9 And thus statutes in derogation of
`the common law often lead to unintended consequences the
`drafters never foresaw. And when, as has happened with
`CDA § 230(c)(1), the courts interpret a statute far beyond
`its text and intent, harmful unintended consequences
`abound.
`
`Courts are slowly beginning to recognize the harms
`arising from their boundless interpretations of CDA
`§ 230(c)(1). And as the facts of this case demonstrate, the
`time has come for this Court to provide guidance to the
`courts below by holding that CDA § 230(c)(1) is limited to
`publication torts, isn’t a grant of blanket immunity, and
`that the invocation of CDA § 230(c)(1) is an affirmative
`defense inappropriate for dismissal under Federal Rule
`of Civil Procedure 12(b)(6).
`
`Grindr & herrick
`
`Around May 2011, Herrick downloaded Grindr and
`used it to date local men in New York City for several
`years.10 In June 2015, Herrick, then a thirty-year-old New
`
`8. 1 William Blackstone, “Commentaries on the Laws of
`England” 13 (Oxford ed. 2016.)
`
`9. Id. at 306.
`
`10. (Am. Compl. at ¶ 46 (S.D.N.Y. Dkt. No. 34); Second Circuit
`Joint Appendix (“JA”), at 64 (Second Circuit Dkt. No. 43.)
`
`
`
`8
`
`Yorker, began dating JC, a man he met through Grindr.11
`Around November 2015, Herrick stopped actively using
`Grindr.12
`
`In October 2016, Herrick ended the relationship. JC
`then commenced a campaign of non-stop vengeance against
`Herrick, including relentlessly impersonating Herrick
`on Grindr.13 Exploiting Grindr’s design deficiencies and
`apparent inability to exclude abusive users, JC weaponized
`Grindr. Grindr then directed over 1,100 strangers to
`Herrick’s home and workplace with the algorithmic GPS
`precision modern smartphones permit.14 These men
`were seeking sex, including sadomasochistic sex and sex
`involving violent rape fantasies.15 Grindr algorithmically
`selected and directed all these individuals to Herrick via
`its patented geolocation and sorting functions.16 Despite
`these known dangers, and Grindr’s public declarations
`of its commitment to users’ safety, Grindr lacked easily
`implemented design features to screen and block known
`abusive and dangerous users violating the company’s
`terms of service.17
`
`11. (Am. Compl. ¶ 14, 48, JA-56, 65.)
`
`12. (Am. Compl. ¶ 48, JA-65.)
`
`13. (Am. Compl. ¶ 49, JA-65.)
`
`14. (Id.)
`
`15. (Am. Compl. ¶¶ 49-51, 67, JA-65, 70.)
`
`16. (Am. Compl. ¶¶ 52-53, JA-67.)
`
`17. (Am. Compl. ¶¶ 43-44, 49, 52-53, 67, 83-89, JA-64, 65, 70,
`73-74.)
`
`
`
`9
`
`The impersonating profiles contained images of
`Herrick. The profiles contained accurate descriptions
`of Herrick, gave his location as Harlem, and falsely
`portrayed him as an HIV-positive individual seeking
`violent unprotected sex.18 As many as sixteen individuals
`per day showed up to Herrick’s home and restaurant
`workplace expecting sex.19
`
`Between November 2016 and January 2017, Herrick
`reported Grindr’s targeting of him and his stalking
`approximately fifty times to Grindr.20 From January 27,
`2017 through March 2017, he and/or his representatives
`made fifty more reports, including in the form of cease
`and desist legal letters and, as discussed below, in a court
`order.21
`
`Herrick was not safe at home or at work.22 In the span
`of one week in January 2017, two men refused to leave
`Herrick’s home and loitered outside for thirty minutes.23
`One day, six different men came to Herrick’s work in
`the span of six minutes.24 The next day, a man followed
`Herrick into the bathroom at work.25 The police were
`
`18. (Am. Compl. ¶¶ 32, 50, JA-59, 65.)
`
`19. (Am. Compl. ¶ 54, JA-67.)
`
`20. (Am. Compl. ¶ 68, JA-70.)
`
`21. (Am. Compl. ¶ 69, JA-70.)
`
`22. (Am. Compl. ¶ 63, JA-69.)
`
`23. (Am. Compl. ¶ 55, JA-67.)
`
`24. (Am. Compl. ¶ 56, JA-67.)
`
`25. (Am. Compl. ¶ 57, JA-68.)
`
`
`
`10
`
`called a few days later when a man became so angry about
`being turned away that he attacked Herrick’s roommate.26
`One visitor returned after Herrick sent him away, saying
`Herrick had direct messaged asking him to come back.27
`
`Herrick tried everything to stop the unwelcome
`visitors.28 Herrick filed fourteen police reports against
`his stalker.29 When that did not stop the stalker, Herrick
`successfully petitioned New York State Family Court
`for an Order of Protection against his stalker.30 But
`his stalker, like many in the face of a court order, was
`undeterred. Instead, he sent even more strangers to
`Herrick for sex.31 Grindr was the only one that could help,
`was on repeated notice, and was uniquely and exclusively
`qualified to do so. Yet, Grindr did nothing.32
`
`With no other options, Herrick sued Grindr in New
`York State Supreme Court with the goal of injunctive relief
`ordering Grindr to stop its targeting of him.
`
`The Proceedings in the Southern
`District of New York
`
`On January 27, 2017, Herrick filed a Summons and
`Complaint in New York State Supreme Court, New York
`
`26. (Am. Compl. ¶ 59, JA-68.)
`
`27. (Am. Compl. ¶ 62, JA-68-69.)
`
`28. (Am. Compl. ¶¶ 68-70, 73, 81, JA-70, 71, 72.)
`
`29. (Am. Compl. ¶ 73, JA-71.)
`
`30. (Id.)
`
`31. (Am. Compl. ¶¶ 55-60, JA-67-68.)
`
`32. (Am. Compl. ¶¶ 71, 82, JA-71, 73.)
`
`
`
`11
`
`County, in the matter of Matthew Herrick v. Grindr, LLC,
`Index No. 150903/17 by Order to Show Cause, seeking a
`preliminary injunction and temporary restraining order
`(“TRO”). Justice Kathryn Freed granted the ex parte TRO,
`ordering Grindr to “immediately disable all impersonating
`profiles created under [Herrick]’s name or with identifying
`information relating to [Herrick], [Herrick]’s photograph,
`address, phone number, email account or place of work,
`including but not limited to all impersonating accounts
`under the control of [his stalker].”33
`
`On February 8, 2017, Grindr filed a Notice of Removal
`under 28 U.S.C. § 1441, et seq. removing the matter to the
`Southern District of New York.34
`
`On February 15, 2017, Herrick applied for an extension
`on the TRO which expired as a matter of law because of
`the removal.35 On February 17, 2017, Grindr opposed that
`application.36 On February 22, 2017, the District Court
`held a hearing on the TRO extension.37
`
`At the hearing, Grindr’s counsel argued there was
`nothing they could do – or were obligated to do. Grindr
`admitted their knowledge of Herrick’s targeting but said it
`didn’t matter.38 They said their client had no responsibility
`to Herrick – or anyone else – because the CDA immunized
`
`33. (JA-41-42.)
`
`34. (Dist. Dkt. 1.)
`
`35. (Dist. Dkt. 11.)
`
`36. (Dist. Dkt. 13.)
`
`37. (Dist. Dkt. 20.)
`
`38. See Transcript of Oral Argument before Judge Caproni,
`(JA 150) (February 22, 2017):
`
`
`
`12
`
`them from all liability associated with the use of their
`product.
`
`Grindr made this argument despite readily available,
`widely used software and methods such as VPN blocking,
`photo-hashing, and industry standard user verification
`that could have protected Herrick and stopped the stream
`of strangers. Although Grindr’s business model depends
`on sophisticated techniques to scan, sort, and analyze user
`data to sell to advertisers (including HIV status), and its
`patented geolocation technology to match and direct users
`to one another, Grindr claimed it lacked the rudimentary
`technical capability to identify and block accounts.
`
`On February 24, 2017, the District Court denied
`Herrick’s application to extend the TRO.39
`
`On April 12, 2017, Herrick filed his Amended
`Complaint adding new claims, including product liability
`claims and adding Grindr’s holding companies – KL
`Grindr Holdings, Inc. and Grindr Holding Company –
`as defendants.40 The Amended Complaint pleaded the
`following causes of action:
`
`“The Court: You are saying that [Grindr] only [has] the ability
`to [comply with the TRO] based on the email address associated with
`that account so you can just jump to a different e-mail account and
`continue bad behavior?
`
`Mr. Waxman: That’s right, your Honor.”
`
`39. (Dist. Dkt. 21, JA-43-52.)
`
`40. (JA-53-95.)
`
`
`
`13
`
`(1) Product Liability for Defective Design of Grindr41
`
`(2) Product Liability for Defect in Manufacture of
`Grindr by failing to incorporate widely used, proven, and
`common safety software42
`
`(3) Product Liability for Defect in Warning because
`Grindr knew, but failed to warn, that Grindr has been and
`can be used as a stalking weapon43
`
`(4) Negligent Design because Grindr knew, or should
`have known, that Grindr created an unreasonable risk of
`injury to Herrick and its users44
`
`(5) Negligent Failure to Warn or to Provide Adequate
`Instruction because Grindr placed Grindr into the stream
`of commerce without warning that it facilitated stalking45
`
`(6) Negligence for Grindr’s failure to meet its duty
`and the industry’s standard of care in relation to product
`safety and incident response46
`
`(7) Copyright Infringement47
`
`41. (Am. Compl. at ¶¶ 100-07, JA-77.)
`
`42. (Am. Compl. at ¶¶ 108-15, JA-78.)
`
`43. (Am. Compl. at ¶¶ 116-20, JA-79.)
`
`44. (Am. Compl. at ¶¶ 121-26, JA-80-81.)
`
`45. (Am. Compl. at ¶¶ 127-30, JA-81-82.)
`
`46. (Am. Compl. at ¶¶ 131-45, JA-82-83.)
`
`47. Petitioner has dropped his copyright claim.
`
`
`
`14
`
`(8) Promissory Estoppel because Herrick relied on
`Grindr’s Terms of Service (“ToS”), privacy representations,
`and Grindr’s assurances that it could and would respond
`to reports of abuse48
`
`(9) Fraud because Grindr knew the misrepresentations
`about its commitment to safety in the ToS, which Herrick
`reasonably relied upon, were false49
`
`(10) Deceptive Business Practices under N.Y. Gen.
`Bus. Law § 349 because Grindr made false and misleading
`statements about its commitment to privacy and safety to
`attract customers50
`
`(11) False Advertising in violation of N.Y. Gen. Bus.
`Law. §§ 350 & 350-a because Grindr falsely advertised
`the nature, efficacy, and safety of Grindr51
`
`(12) Intentional Infliction of Emotional Distress
`because Grindr repeatedly ignored Herrick’s desperate
`pleas for help in the face of the weaponization of Grindr
`against him by a dangerous and criminal stalker52
`
`(13) Negligent Infliction of Emotional Distress
`because Grindr breached its duty of care by ignoring
`
`
`48. (Am. Compl. at ¶¶ 156-60, JA-86.)
`
`49. (Am. Compl. at ¶¶ 161-66, JA-86-87.)
`
`50. (Am. Compl. at ¶¶ 167-75, JA-87-88.)
`
`51. (Am. Compl. at ¶¶ 176-87, JA-88-90.)
`
`52. (Am. Compl. at ¶¶ 188-91, JA-90-91.)
`
`
`
`15
`
`Herrick’s repeated requests for help after a dangerous
`and criminal stalker weaponized Grindr against him53 and
`
`(14) Negligent Misrepresentation because Herrick
`relied on Grindr’s safety representations that Grindr did
`not intend to enforce.54
`
`On April 21, 2017, Grindr, LLC filed a motion to
`dismiss the Amended Complaint.55
`
`On May 24, 2017, KL Grindr Holdings, Inc. and Grindr
`Holding Company filed motions to dismiss the Amended
`Complaint.56
`
`On June 14, 2017, Herrick filed a memorandum of
`law opposing the motions.57 The parties’ requests for oral
`argument were denied.
`
`On January 25, 2018, the District Court issued an
`order granting Defendants’ motions to dismiss with
`prejudice on all claims except Herrick’s copyright
`infringement claim, under Rule 12(b)(6).58 On February
`14, 2018, the court issued a subsequent order dismissing
`the copyright claim with prejudice.59
`
`53. (Am. Compl. at ¶¶ 191-205, JA-91-92.)
`
`54. (Am. Compl. at ¶¶ 206-13, JA-92-94.)
`
`55. (Dist. Dkt. 41, JA-96-97.)
`
`56. (Dist. Dkt. 47 & 50, JA-181-82, 185-86.)
`
`57. (Dist. Dkt. 54.)
`
`58. (Dist. Dkt. 63, JA-190-218.)
`
`59. (Dist. Dkt. 66.)
`
`
`
`16
`
`The Proceedings in the Second
`Circuit Court of Appeals
`
`On February 9, 2018 Herrick filed a Notice of Appeal.
`On January 7, 2019 oral arguments were held. Given the
`importance of the case, seven Amici Curiae briefs were
`filed by the following organizations and individuals around
`the country
`
`For Herrick:
`
`1) Sanctuary for Families, Cyber Sexual
`Abuse Task Force, Day One, Domestic
`Violence Legal Empowerment and Appeals
`Project, Her Justice, Legal Momentum, My
`Sister’s Place, New York Legal Assistance
`Group, and Safe Horizon
`
`2) Electronic Privacy Information Center
`(EPIC)
`
`3) Break the Cycle, National Association of
`Women Lawyers, National Network to End
`Domestic Violence, Laura’s House, Legal
`Aid Society of Orange County, and Public
`Law Center
`
`4) Consumer Watchdog
`
`For Grindr:
`
`1) Computer and Communications Industry
`Association, Match Group, Inc., and Indeed,
`Inc.
`
`
`
`17
`
`2) Paul Alan Levy
`
`3) Electronic Frontier Foundation and Center
`for Democracy and Technology
`
` On March 27, 2019, the United States Court of
`Appeals for the Second Circuit issued a “Summary
`Order” affirming the district court’s decision to dismiss
`the complaint.60
`
`On April 11, 2019, Herrick filed a petition for panel
`rehearing, or, in the alternative, for rehearing en banc.61
`On May 9, 2019, that petition was denied.62
`
`REASONS FOR GRANTING ThE PETITION
`
`This Court has never ruled on the proper scope of
`the Communications Decency Act § 230(c)(1). As this case
`demonstrates, in 2019 this is a matter of life and death
`for victims of stalking targeted by computer technologies
`with functionalities unimagined when Congress passed
`CDA § 230(c)(1) in 1996. Congress passed CDA § 230(c)(1)
`to protect interactive computer services from liability for
`traditional publication torts arising from passive third-
`party content posted on bulletin boards and websites.
`GPS-tracking Smartphones, Google, and Facebook did
`not exist when Congress passed CDA § 230(c)(1). Yet since
`its passage, the lower courts have judicially legislated the
`
`60. Matthew Herrick v. Grindr, LLC, et. al, 765 Fed. Appx.
`586 (2d Cir. 2019), Appendix A, 13a.
`
`61. Dkt. 161.
`
`62. Dkt. 166, Appendix C, 53a-54a.
`
`
`
`18
`
`scope of CDA § 230(c)(1) far beyond its text and intent into
`a near absolute immunity for internet companies.63 This is
`part of the reason the question of CDA § 230(c)(1)’s scope
`is a crucial component of our society’s current debate
`about the responsibility that internet companies have to
`our society for the harm their technologies propagate.
`
`Unfortunately, this debate is muddied by the fact that
`the federal and state court decisions in this country lack
`clarity and are often contradictory as to CDA § 230(c)
`(1)’s proper scope. This lack of conceptual clarity has led
`many courts to create an almost absolute immunity for
`internet companies for their tortious conduct even though
`CDA § 230(c)(1) is limited by its text and congressional
`intent to publication torts. Courts do this, as the lower
`courts did in this case, by making everything an internet
`company does simply a question of the publication of third-
`party content while simultaneously failing to state a clear
`and coherent standard for differentiating between the
`publication of third-party content and tortious conduct by
`the internet company. Because there is no clear standard
`both the Federal Circuits and the state courts have taken
`divergent positions on the CDA’s scope.
`
`The particular fact intensive nature of the CDA
`§ 230(c)(1) eligibility inquiry, due to the complexity of
`modern computer functionality, is another reason this
`Court should grant certiorari in order to make clear that
`the invocation of CDA § 230(c)(1) is an affirmative defense.
`
`63. Danielle Keats Citron and Benjamin Wittes, “The Problem
`Isn’t Just Backpage: Revising Section 230 Immunity” 2 GEO. L.
`TECH. REV. 453, 460 (2018) (“[T]he broad construction of CDA’s
`immunity provision adopted by the courts has produced an immunity
`from liability far more sweeping than anything the law’s words,
`context, and history support.”)
`
`
`
`19
`
`I. The Court Should Grant Certiorari to Fix the
`Inconsistent Standards Among the Federal
`Circuit Courts of Appeals as to the Scope of CDA
`§ 230(c)(1)
`
`Courts apply conflicting ad hoc approaches to the
`scope of the CDA § 230(c)(1). For instance, the Ninth
`Circuit Court of Appeals has allowed a failure to warn
`claim similar to Herrick’s to
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