Carly Lemmon v. Snap, Inc. ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLY LEMMON; MICHAEL MORBY, No. 20-55295
as surviving parents of Hunter
Morby (deceased); SAMANTHA D.C. No.
BROWN; MARLO BROWN, as 2:19-cv-04504-
surviving parents of Landen Brown MWF-KS
(deceased),
Plaintiffs-Appellants,
OPINION
v.
SNAP, INC., doing business in
California as Snapchat, Inc.,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted February 11, 2021
San Francisco, California
Filed May 4, 2021
Before: Kim McLane Wardlaw and Carlos T. Bea, Circuit
Judges, and James David Cain, Jr., * District Judge.
Opinion by Judge Wardlaw
*
The Honorable James David Cain, Jr., United States District Judge
for the Western District of Louisiana, sitting by designation.
2 LEMMON V. SNAP
SUMMARY **
Communications Decency Act
The panel reversed the district court’s judgment
dismissing on the ground of immunity under the
Communications Decency Act (“CDA”), 47 U.S.C.
§ 230(c)(1), an amended complaint brought against Snap,
Inc., a social media provider.
Plaintiffs are the surviving parents of two boys who died
in a high-speed accident, and they alleged that Snap, Inc.
encouraged their sons to drive at dangerous speeds and
caused the boys’ deaths through its negligent design of its
smartphone application Snapchat. The district court held
that the CDA barred the plaintiffs’ claim because it sought
to treat Snap, Inc. “as the publisher or speaker of any
information provided by another information content
provider.” 47 U.S.C. § 230(c)(1).
To determine whether § 230(c)(1) applied to immunize
Snap, Inc. from the plaintiffs’ claims, the panel applied the
three-prong test set forth in Barnes v. Yahoo!, Inc., 570 F.3d
1096 (9th Cir. 2009). As to the first prong, the parties did
not dispute that Snap, Inc. was a provider of an “interactive
computer service.” As to the second prong, the panel held
that the plaintiffs’ claim did not treat Snap, Inc. as a
“publisher or speaker” because the plaintiffs’ claims turned
on Snap, Inc.’s design of Snapchat. Plaintiffs’ negligent
design lawsuit treated Snap, Inc. as a products manufacturer,
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
LEMMON V. SNAP 3
accusing it of negligently designing a product (Snapchat)
with a defect (the interplay between Snapchat’s reward
system and its Speed Filter); thus, the duty that Snap, Inc.
allegedly violated sprung from its distinct capacity as a
product designer. The duty to design a reasonably safe
product was fully independent of Snap, Inc.’s role in
monitoring or publishing third-party content. As to the third
prong, the panel held that plaintiffs had not relied on
“information provided by another information content
provider.” In short, Snap, Inc. was sued for the predictable
consequences of designing Snapchat in such a way that it
allegedly encouraged dangerous behavior. Accordingly, the
panel concluded that Snap, Inc. did not enjoy immunity from
this suit under § 230(c)(1) of the CDA.
The panel declined to affirm the district court’s decision
on the alternative ground that the plaintiffs failed to plead
adequately in their amended complaint the causation
element of their negligent design claim.
The panel reversed the district court’s Fed. R. Civ. P.
12(b)(6) dismissal, and remanded for further proceedings.
COUNSEL
Naveen Ramachandrappa (argued), Bondurant Mixson &
Elmore LLP, Atlanta, Georgia, for Plaintiffs-Appellants.
Jonathan H. Blavin (argued) and Rosemarie T. Ring,
Munger Tolles & Olson LLP, San Francisco, California;
John B. Major and Anne K. Conley, Munger Tolles & Olson
LLP, Los Angeles, California; for Defendant-Appellee.
4 LEMMON V. SNAP
OPINION
WARDLAW, Circuit Judge:
Carly Lemmon, Michael Morby, Samantha Brown, and
Marlo Brown (“the Parents”) are the surviving parents of
two boys who died in a tragic, high-speed car accident. They
sued Snap, Inc. (“Snap”), a social media provider, alleging
that it encouraged their sons to drive at dangerous speeds and
thus caused the boys’ deaths through its negligent design of
its smartphone application Snapchat. We must decide
whether the district court correctly dismissed that action
when it concluded that the Communications Decency Act
(“CDA”) barred the Parents’ claim because it sought to treat
Snap “as the publisher or speaker of any information
provided by another information content provider.”
47 U.S.C. § 230(c)(1).
We conclude that, because the Parents’ claim neither
treats Snap as a “publisher or speaker” nor relies on
“information provided by another information content
provider,” Snap does not enjoy immunity from this suit
under § 230(c)(1). We therefore reverse the district court’s
Rule 12(b)(6) dismissal of the Parents’ lawsuit and remand
for further proceedings.
I.
Because the district court dismissed this action pursuant
to Federal Rule of Civil Procedure 12(b)(6), we accept as
true the allegations contained in the Parents’ amended
complaint and view them in the light most favorable to the
Parents. Dyroff v. Ultimate Software Grp., Inc., 934 F.3d
1093, 1096 (9th Cir. 2019).
LEMMON V. SNAP 5
A.
According to the Parents’ amended complaint, Jason
Davis (age 17), Hunter Morby (age 17), and Landen Brown
(age 20) were driving down Cranberry Road in Walworth
County, Wisconsin at around 7:00 p.m. on May 28, 2017.
Jason sat behind the wheel, Landen occupied the front
passenger seat, and Hunter rode in the back seat. At some
point during their drive, the boys’ car began to speed as fast
as 123 MPH. They sped along at these high speeds for
several minutes, before they eventually ran off the road at
approximately 113 MPH and crashed into a tree. Tragically,
their car burst into flames, and all three boys died.
Shortly before the crash, Landen opened Snapchat, a
smartphone application, to document how fast the boys were
going. Snapchat is a social media platform that allows its
users to take photos or videos (colloquially known as
“snaps”) and share them with other Snapchat users. To keep
its users engaged, Snapchat rewards them with “trophies,
streaks, and social recognitions” based on the snaps they
send. Snapchat, however, does not tell its users how to earn
these various achievements.
The app also permits its users to superimpose a “filter”
over the photos or videos that they capture through Snapchat
at the moment they take that photo or video. Landen used
one of these filters—the “Speed Filter”—minutes before the
fatal accident on May 28, 2017. The Speed Filter enables
Snapchat users to “record their real-life speed.” An example
6 LEMMON V. SNAP
of the digital content that a Snapchat user might create with
this filter is portrayed below.
A Snapchat user could also “overlay” the above information
onto a mobile photo or video that they previously captured.
LEMMON V. SNAP 7
Many of Snapchat’s users suspect, if not actually
“believe,” that Snapchat will reward them for “recording a
100-MPH or faster [s]nap” using the Speed Filter.
According to plaintiffs, “[t]his is a game for Snap and many
of its users” with the goal being to reach 100 MPH, take a
photo or video with the Speed Filter, “and then share the
100-MPH-Snap on Snapchat.”
Snapchat allegedly knew or should have known, before
May 28, 2017, that its users believed that such a reward
system existed and that the Speed Filter was therefore
incentivizing young drivers to drive at dangerous speeds.
Indeed, the Parents allege that there had been: a series of
news articles about this phenomenon; an online petition that
“called on Snapchat to address its role in encouraging
dangerous speeding”; at least three accidents linked to
Snapchat users’ pursuit of high-speed snaps; and at least one
other lawsuit against Snap based on these practices. While
Snapchat warned its users against using the Speed Filter
while driving, these warnings allegedly proved ineffective.
And, despite all this, “Snap did not remove or restrict access
to Snapchat while traveling at dangerous speeds or otherwise
properly address the danger it created.”
B.
On May 23, 2019, Hunter’s and Landen’s parents filed
this negligent design lawsuit against Snap. Snap moved to
dismiss the Parents’ initial complaint for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6),
contending that the Parents had failed to allege a plausible
negligence claim and that the Communications Decency Act
immunized it from liability. The district court agreed and
dismissed the Parents’ first complaint for failure to allege “a
causal connection between Defendant’s Speed Filter and the
car accident” and because it was “not clear whether their
8 LEMMON V. SNAP
claim is barred under the [CDA].” However, it granted leave
to amend so that the Parents could cure these deficiencies.
On November 18, 2019, the Parents filed an amended
complaint, which Snap moved to dismiss on the same
grounds as before. This time, the district court granted the
motion to dismiss solely on the basis of immunity under
47 U.S.C. § 230(c)(1). Because it concluded that the CDA
rendered Snap immune from the Parents’ claim, it did not
address Snap’s argument that the Parents had again failed to
plead causation adequately. The district court denied further
leave to amend, and entered a final judgment on
February 25, 2020. The Parents then filed this timely appeal.
II.
We review de novo both the district court’s order
dismissing the Parents’ claim pursuant to Federal Rule of
Civil Procedure 12(b)(6) and any questions of statutory
interpretation that informed that decision. Dyroff, 934 F.3d
at 1096. The Parents’ amended complaint will survive at this
stage if it states “a plausible claim for relief,” i.e., if it
permits “the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citation omitted). This
standard requires determining whether the CDA bars the
Parents’ claim as pleaded in the amended complaint. See id.
III.
In 1996, when the internet was young and few of us
understood how it would transform American society,
Congress passed the CDA. See 47 U.S.C. § 230. That act
“provide[d] internet companies with immunity from certain
claims” in order “‘to promote the continued development of
the Internet and other interactive computer services.’”
HomeAway.com, Inc. v. City of Santa Monica, 918 F.3d 676,
LEMMON V. SNAP 9
681 (9th Cir. 2019) (quoting 47 U.S.C. § 230(b)(1)).
Specifically, Congress commanded that “[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.” 1 47 U.S.C. § 230(c)(1); see
also id. § 230(e)(3) (explicitly preempting any state or local
law inconsistent with this section). Though somewhat
jargony, this provision shields from liability those
individuals or entities that operate internet platforms, to the
extent their platforms publish third-party content.
To determine whether § 230(c)(1) applies here—and
thus immunizes Snap from the Parents’ claim—we apply the
three-prong test set forth in Barnes v. Yahoo!, Inc., 570 F.3d
1096 (9th Cir. 2009). Snap thus enjoys CDA immunity only
if it is “(1) a provider or user of an interactive computer
service (2) whom a plaintiff seeks to treat, under a state law
cause of action, as a publisher or speaker (3) of information
provided by another information content provider.” Dyroff,
934 F.3d at 1097 (quoting Barnes, 570 F.3d at 1100–01).
We examine each of these questions in turn.
A.
The parties do not dispute that Snap is a provider of an
“interactive computer service,” and we agree that Snap
qualifies as one given the CDA’s “expansive” definition of
1
The statute defines an “interactive computer service” as “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 . . . .” 47 U.S.C. § 230(f)(2). Meanwhile, an “information
content provider” is “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.” Id. § 230(f)(3).
10 LEMMON V. SNAP
that term. Kimzey v. Yelp! Inc., 836 F.3d 1263, 1268 (9th
Cir. 2016) (citation omitted); see also Barnes, 570 F.3d
at 1101. According to the amended complaint, the Snapchat
application permits its users to share photos and videos
through Snap’s servers and the internet. Snapchat thus
necessarily “enables computer access by multiple users to a
computer server,” 47 U.S.C. § 230(f)(2), and Snap, as the
creator, owner, and operator of Snapchat, is therefore a
“provider” of an interactive computer service. Id.§ 230(f)(3).
B.
The second Barnes question asks whether a cause of
action seeks to treat a defendant as a “publisher or speaker”
of third-party content. 2 Dyroff, 934 F.3d at 1097; Barnes,
570 F.3d at 1100. We conclude that here the answer is no,
because the Parents’ claim turns on Snap’s design of
Snapchat.
In this particular context, “publication” generally
“involve[s] reviewing, editing, and deciding whether to
publish or to withdraw from publication third-party
content.” HomeAway, 918 F.3d at 681 (citation omitted). A
2
The district court and the parties have, at various times, suggested
that this aspect of the Barnes test is undisputed. Having parsed the
Parents’ arguments and citations before both our court and the district
court, we do not agree. Though those arguments could have benefited
from greater analytic exposition, the Parents have sufficiently preserved
this issue for our review. In any event, it is within our discretion to reach
this issue. See In re Mercury Interactive Corp. Secs. Litig., 618 F.3d
988, 992 (9th Cir. 2010) (noting we may exercise our discretion in this
regard when “the issue presented is purely one of law and . . . does not
depend on the factual record developed below” (citation omitted)). We
exercise that discretion here, given that Snap addressed this issue both in
its answering brief and before the district court.
LEMMON V. SNAP 11
defamation claim is perhaps the most obvious example of a
claim that seeks to treat a website or smartphone application
provider as a publisher or speaker, but it is by no means the
only type of claim that does so. Barnes, 570 F.3d at 1101–
02; see also Doe v. Internet Brands, Inc., 824 F.3d 846, 851
(9th Cir. 2016). Thus, regardless of the type of claim
brought, we focus on whether “the duty the plaintiff alleges”
stems “from the defendant’s status or conduct as a publisher
or speaker.” Barnes, 570 F.3d at 1107.
Here, the Parents seek to hold Snap liable for its
allegedly “unreasonable and negligent” design decisions
regarding Snapchat. They allege that Snap created:
(1) Snapchat; (2) Snapchat’s Speed Filter; and (3) an
incentive system within Snapchat that encouraged its users
to pursue certain unknown achievements and rewards. The
Speed Filter and the incentive system then supposedly
worked in tandem to entice young Snapchat users to drive at
speeds exceeding 100 MPH.
The Parents thus allege a cause of action for negligent
design—a common products liability tort. This type of claim
rests on the premise that manufacturers have a “duty to
exercise due care in supplying products that do not present
an unreasonable risk of injury or harm to the public.” Lewis
Bass, Prods. Liab.: Design & Mfg. Defects § 2.5 (2d ed.,
Sept. 2020 Update). Thus, a negligent design action asks
whether a reasonable person would conclude that “the
reasonably foreseeable harm” of a product, manufactured in
accordance with its design, “outweigh[s] the utility of the
product.” Merrill v. Navegar, Inc., 28 P.3d 116, 125 (Cal.
2001) (citation omitted); see also Morden v. Cont’l AG,
611 N.W.2d 659, 674 (Wis. 2000) (explaining that the
relevant “duty of care requires manufacturers to foresee all
reasonable uses and misuses and the consequent foreseeable
12 LEMMON V. SNAP
dangers” of their products “and to act accordingly” (citation
omitted)). 3
The duty underlying such a claim differs markedly from
the duties of publishers as defined in the CDA.
Manufacturers have a specific duty to refrain from designing
a product that poses an unreasonable risk of injury or harm
to consumers. See Dan B. Dobbs et al., Dobbs’ Law of Torts
§ 478 (2d ed., June 2020 Update). Meanwhile, entities
acting solely as publishers—i.e., those that “review[]
material submitted for publication, perhaps edit[] it for style
or technical fluency, and then decide[] whether to publish
it,” Barnes, 570 F.3d at 1102—generally have no similar
duty. See Dobbs’ Law of Torts § 478.
It is thus apparent that the Parents’ amended complaint
does not seek to hold Snap liable for its conduct as a
publisher or speaker. Their negligent design lawsuit treats
Snap as a products manufacturer, accusing it of negligently
designing a product (Snapchat) with a defect (the interplay
between Snapchat’s reward system and the Speed Filter).
Thus, the duty that Snap allegedly violated “springs from”
its distinct capacity as a product designer. Barnes, 570 F.3d
at 1107. This is further evidenced by the fact that Snap could
have satisfied its “alleged obligation”—to take reasonable
measures to design a product more useful than it was
foreseeably dangerous—without altering the content that
3
The parties have agreed that the tort law of either California or
Wisconsin governs in this case. See generally Restatement (Second) of
Torts § 398 (1965) (“A manufacturer of a chattel made under a plan or
design which makes it dangerous for the uses for which it is
manufactured is subject to liability to others whom he should expect to
use the chattel or to be endangered by its probable use for physical harm
caused by his failure to exercise reasonable care in the adoption of a safe
plan or design.”).
LEMMON V. SNAP 13
Snapchat’s users generate. Internet Brands, 824 F.3d at 851.
Snap’s alleged duty in this case thus “has nothing to do with”
its editing, monitoring, or removing of the content that its
users generate through Snapchat. Id. at 852.
To the extent Snap maintains that CDA immunity is
appropriate because the Parents’ claim depends on the ability
of Snapchat’s users to use Snapchat to communicate their
speed to others, it disregards our decision in Internet Brands.
That Snap allows its users to transmit user-generated content
to one another does not detract from the fact that the Parents
seek to hold Snap liable for its role in violating its distinct
duty to design a reasonably safe product. As in Internet
Brands, Snap “acted as the ‘publisher or speaker’ of user
content by” transmitting Landen’s snap, “and that action
could be described as a ‘but-for’ cause of [the boys’]
injuries.” 824 F.3d at 853. This is unsurprising: Snap “is
an internet publishing business. Without publishing user
content, it would not exist.” Id. But though publishing
content is “a but-for cause of just about everything” Snap is
involved in, that does not mean that the Parents’ claim,
specifically, seeks to hold Snap responsible in its capacity as
a “publisher or speaker.” Id. The duty to design a
reasonably safe product is fully independent of Snap’s role
in monitoring or publishing third-party content. 4
4
Nor would proving causation through the snap that Landen sent
shortly before his death implicate § 230(c)(1) immunity, because the
Parents do not fault Snap for publishing that photo message. Instead,
that snap merely suggests, as circumstantial evidence, that the alleged
negligent design of Snapchat had the very causal effect that the Parents’
otherwise allege. By contrast, we note that the Parents would not be
permitted under § 230(c)(1) to fault Snap for publishing other Snapchat-
user content (e.g., snaps of friends speeding dangerously) that may have
incentivized the boys to engage in dangerous behavior. For attempting
14 LEMMON V. SNAP
Because the Parents’ claim does not seek to hold Snap
responsible as a publisher or speaker, but merely “seek[s] to
hold Snapchat liable for its own conduct, principally for the
creation of the Speed Filter,” § 230(c)(1) immunity is
unavailable. Maynard v. Snapchat, Inc., 816 S.E.2d 77,
81 (Ga. Ct. App. 2018) (emphasis added).
C.
CDA immunity is also unavailable in this case because
the Parents’ negligent design claim does not turn on
“information provided by another information content
provider.” Barnes, 570 F.3d at 1101.
By its plain terms, and as the last part of the Barnes test
recognizes, § 230(c)(1) cuts off liability only when a
plaintiff’s claim faults the defendant for information
provided by third parties. 47 U.S.C. § 230(c)(1). Thus,
internet companies remain on the hook when they create or
develop their own internet content. See Fair Hous. Council
of San Fernando Valley v. Roommates.com, LLC, 521 F.3d
1157, 1162 (9th Cir. 2008) (en banc). And they also may
face liability to the extent they are “‘responsible . . . in part,
for the creation or the development of’ the offending
content” on the internet. Id. at 1162 (quoting 47 U.S.C.
§ 230(f)(3)); see also Kimzey, 836 F.3d at 1269 (asking
whether a defendant “ma[de] a material contribution to the
creation or development of [the] content” underlying a given
claim).
to hold Snap liable using such evidence would treat Snap as a publisher
of third-party content, contrary to our holding here. See Section III.C.
infra.
LEMMON V. SNAP 15
This case presents a clear example of a claim that simply
does not rest on third-party content. Snap indisputably
designed Snapchat’s reward system and Speed Filter and
made those aspects of Snapchat available to users through
the internet. See Roommates, 521 F.3d at 1168 (noting that
the word “develop” in the CDA connotes “making usable or
available”). And the Parents’ negligent design claim faults
Snap solely for Snapchat’s architecture, contending that the
app’s Speed Filter and reward system worked together to
encourage users to drive at dangerous speeds.
Notably, the Parents do not fault Snap in the least for
publishing Landen’s snap. Indeed, their amended complaint
fully disclaims such a reading of their claim: “The danger is
not the Snap [message using the Speed Filter] itself.
Obviously, no one is harmed by the post. Rather, the danger
is the speeding.” AC ¶ 14. While we need not accept
conclusory allegations contained in a complaint, we must
nonetheless read the complaint in the light most favorable to
the Parents. See Dyroff, 934 F.3d at 1096. And this
statement reinforces our own reading of the Parents’
negligent design claim as standing independently of the
content that Snapchat’s users create with the Speed Filter.
To sum up, even if Snap is acting as a publisher in
releasing Snapchat and its various features to the public, the
Parents’ claim still rests on nothing more than Snap’s “own
acts.” Roommates, 521 F.3d 1165. The Parents’ claim thus
is not predicated on “information provided by another
information content provider.” Barnes, 570 F.3d at 1101.
Each of Snap’s novel attempts to expand CDA immunity
beyond these straightforward principles is to no avail. To
start, while providing content-neutral tools does not render
an internet company a “creator or developer” of the
downstream content that its users produce with those tools,
16 LEMMON V. SNAP
our case law has never suggested that internet companies
enjoy absolute immunity from all claims related to their
content-neutral tools. See Dyroff, 934 F.3d at 1099; Kimzey,
836 F.3d at 1269–70; Roommates, 521 F.3d at 1175. To the
contrary, “[t]he [CDA] was not meant to create a lawless no-
man’s-land on the Internet.” Roommates, 521 F.3d at 1164.
Those who use the internet thus continue to face the prospect
of liability, even for their “neutral tools,” so long as
plaintiffs’ claims do not blame them for the content that third
parties generate with those tools.
Next, the Parents’ allegations concerning the Speed
Filter and Snapchat’s reward system are not a creative
attempt to plead around the CDA. In the cases where such
creative pleading has posed a concern, the plaintiff’s claims,
at bottom, depended on a third party’s content, without
which no liability could have existed. See Dyroff, 934 F.3d
at 1096 (alleging defendant developed content because its
website’s “recommendation and notification functions were
‘specifically designed to make subjective, editorial decisions
about users based on their posts’”); Kimzey, 836 F.3d at 1269
(alleging defendant developed content when it integrated a
third party’s defamatory review “into its own
‘advertisement’ or ‘promotion’ on Google” using its “unique
star-rating system”). However, as already explained, the
Parents’ claim does not depend on what messages, if any, a
Snapchat user employing the Speed Filter actually sends.
This is thus not a case of creative pleading designed to
circumvent CDA immunity.
Last, Snap misunderstands the import of our statement in
Dyroff that a website’s “tools meant to facilitate the
communication and content of others” were “not content in
and of themselves.” 934 F.3d at 1098. For even accepting
that statement at face value, it does nothing to advance
LEMMON V. SNAP 17
Snap’s argument. It is by now clear that the Parents’
negligent design claim does not turn on the content of
Landen’s particular snap. Thus, if Snapchat’s Speed Filter
and award system were not content for purposes of the CDA,
then the Parents’ negligence or negligent design claim would
rest on no CDA “content” whatsoever, and Snap would still
receive no immunity. After all, CDA immunity is available
only to the extent a plaintiff’s claim implicates third-party
content. See 47 U.S.C. § 230(c)(1).
***
In short, Snap “is being sued for the predictable
consequences of” designing Snapchat in such a way that it
allegedly encourages dangerous behavior. Roommates,
521 F.3d at 1170. The CDA does not shield Snap from
liability for such claims. See Internet Brands, 824 F.3d
at 853 (“Congress has not provided an all purpose get-out-
of-jail-free card for businesses that publish user content on
the internet, though any claims might have a marginal
chilling effect on internet publishing businesses.”).
IV.
Snap has also urged us to affirm the district court’s
decision on the alternative ground that the Parents have
failed to plead adequately in their amended complaint the
causation element of their negligent design claim. Though
we may affirm on any ground supported by law, we decline
to exercise that discretion here for three reasons. Upper
Skagit Indian Tribe v. Lundgren, 138 S. Ct. 1649, 1654
(2018).
First, the district court dismissed the Parents’ amended
complaint based “entirely on the CDA[,] and we refrain from
deciding an issue that the district court has not had the
18 LEMMON V. SNAP
opportunity to evaluate.” Roommates, 521 F.3d at 1175
n.40. Second, the district court stated when it dismissed the
Parents’ amended complaint that it would ordinarily have
granted leave to amend, but it declined to do so based on its
belief that the Parents could not surmount the issue of CDA
immunity. It thus appears the district court would have
granted further leave to amend if the sole defect in the
Parents’ amended complaint was a mere failure to plead
legal causation. Third, the district court has yet to decide
whether there exists a conflict between Wisconsin and
California law on the issue of legal causation. Nor has it
decided, in the event there is such a conflict, which state’s
law governs that claim. See generally Cooper v. Tokyo Elec.
Power Co. Holdings, Inc., 960 F.3d 549, 559 (9th Cir. 2020)
(laying out the relevant analytic framework), cert. denied
sub nom. Cooper v. TEPCO, No. 20-730, 2021 WL 1163742(U.S. Mar. 29, 2021).
V.
For these reasons, we REVERSE the district court’s
dismissal of the Parents’ amended complaint on the ground
of immunity under 47 U.S.C. § 230(c)(1) and REMAND
this matter for further proceedings consistent with this
opinion.