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 N