PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NEMET CHEVROLET, LTD; THOMAS
NEMET, d/b/a/ Nemet Motors,
Plaintiffs-Appellants,
v. No. 08-2097
CONSUMERAFFAIRS.COM, INCORP-
ORATED,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Gerald Bruce Lee, District Judge.
(1:08-cv-00254-GBL-TCB)
Argued: September 23, 2009
Decided: December 29, 2009
Before KING and AGEE, Circuit Judges,
and James P. JONES, Chief United States District Judge for
the Western District of Virginia, sitting by designation.
Affirmed by published opinion. Judge Agee wrote the major-
ity opinion, in which Judge King joined. Judge Jones wrote a
separate opinion concurring in part and dissenting in part.
COUNSEL
ARGUED: Andrew Friedman, PATTON BOGGS, LLP,
Washington, D.C., for Appellants. Jonathan David Frieden,
2 NEMET CHEVROLET v. CONSUMERAFFAIRS.COM
ODIN, FELDMAN & PITTLEMAN, PC, Fairfax, Virginia,
for Appellee. ON BRIEF: Benjamin G. Chew, John C. Hil-
ton, PATTON BOGGS, LLP, Washington, D.C., for Appel-
lants. Stephen A. Cobb, ODIN, FELDMAN & PITTLEMAN,
PC, Fairfax, Virginia, for Appellee.
OPINION
AGEE, Circuit Judge:
Consumeraffairs.com, Incorporated ("Consumeraffairs.
com") operates a website that allows consumers to comment
on the quality of businesses, goods, and services. The present
suit concerns various posts on this website relating to automo-
biles sold or serviced by Nemet Chevrolet, Ltd. ("Nemet").
Viewing certain of these postings as false and harmful to its
reputation, Nemet brought suit against Consumeraffairs.com
in the United States District Court for the Eastern District of
Virginia for defamation and tortious interference with a busi-
ness expectancy.1 Consumeraffairs.com moved to dismiss
these claims, under Rule 12(b)(6) of the Federal Rules of
Civil Procedure, as barred by § 230 of the Communications
Decency Act of 1996 ("CDA"), which precludes plaintiffs
from holding interactive computer service providers liable for
the publication of information created and developed by others.2
See 47 U.S.C. § 230(c)(1), (e)(3), & (f)(3); Zeran v. Am.
Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997).
1
The district court exercised jurisdiction over Nemet’s state-law claims
pursuant to 28 U.S.C. §§ 1332 & 1367(a). In the district court, Nemet also
pled several federal claims under the Lanham Act, which are not at issue
in this appeal. See 15 U.S.C. § 1125.
2
An "interactive computer service" is defined in the CDA as "any infor-
mation 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 insti-
tutions." 47 U.S.C. § 230(f)(2).
NEMET CHEVROLET v. CONSUMERAFFAIRS.COM 3
The district court granted the Rule 12(b)(6) motion, but
gave Nemet permission to file an amended complaint. Upon
filing of the amended complaint, Consumeraffairs.com again
filed a Rule 12(b)(6) motion to dismiss based on § 230 of the
CDA. The district court granted the motion to dismiss, stating
that "the allegations contained in the Amended Complaint
[d]o not sufficiently set forth a claim asserting that [Consum-
eraffairs.com] authored the content at issue. Furthermore, the
allegations are insufficient to take this matter outside of the
protection of the Communications Decency Act." Joint
Appendix ("J.A.") at 303.
Nemet timely appealed the judgment of the district court
and we have jurisdiction under 28 U.S.C. § 1291. For the rea-
sons that follow, we affirm the judgment of the district court.3
I.
Nemet’s claims, as pled in its amended complaint, are
based on twenty specific posts on the Consumeraffairs.com
website. As to these twenty posts, Nemet argues its pleading
was sufficient to withstand a Rule 12(b)(6) motion because
the facts pled, viewed under the proper standard at this stage
of the proceeding, show that Consumeraffairs.com was an
"information content provider" under § 230(f)(3) of the CDA
and, therefore, not entitled to CDA immunity. Further, Nemet
contends that because its factual allegations are sufficient to
negate the immunity bar claimed by Consumeraffairs.com, it
should be entitled to discovery before any ruling on immunity
would be appropriate as, for instance, under Rule 56 for sum-
mary judgment.
Before we discuss the specific language Nemet relies upon
from its amended complaint, it is appropriate to briefly set
forth the standard of review, the statutory and case-law
3
Nemet does not challenge the dismissal of its original complaint. Con-
sequently, we consider only Nemet’s amended complaint in this appeal.
4 NEMET CHEVROLET v. CONSUMERAFFAIRS.COM
parameters of immunity under the CDA, and the clarification
of pleading standards recently addressed by the Supreme
Court in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).
II.
Our review of the district court’s ruling on a motion to dis-
miss is de novo. See Novell, Inc. v. Microsoft Corp., 505 F.3d
302, 307 (4th Cir. 2007). "Because the district court granted
Defendants’ motion to dismiss, our review is de novo. Like
the district court, we must assume all [well-pled facts] to be
true." Trulock v. Freeh, 275 F.3d 391, 399 (4th Cir. 2001)
(quotations and emphasis omitted). We also, like the district
court, draw all reasonable inferences in favor of the plaintiff.
See Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th
Cir. 1999). "[B]ut we need not accept the legal conclusions
drawn from the facts, and we need not accept as true unwar-
ranted inferences, unreasonable conclusions or arguments."
Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008)
(quotations omitted).
III.
Recognizing that the Internet provided a valuable and
increasingly utilized source of information for citizens, Con-
gress carved out a sphere of immunity from state lawsuits for
providers of interactive computer services to preserve the "vi-
brant and competitive free market" of ideas on the Internet. 47
U.S.C.§ 230(b)(2); see also Zeran, 129 F.3d at 330. The CDA
bars the institution of a "cause of action" or imposition of "lia-
bility" under "any State or local law that is inconsistent" with
the terms of § 230. 47 U.S.C. § 230(e)(3). As relevant here,
§ 230 prohibits a "provider or user of an interactive computer
service" from being held responsible "as the publisher or
speaker of any information provided by another information
content provider." Id. § 230(c)(1). Assuming a person meets
the statutory definition of an "interactive computer service
provider," the scope of § 230 immunity turns on whether that
NEMET CHEVROLET v. CONSUMERAFFAIRS.COM 5
person’s actions also make it an "information content pro-
vider." The CDA defines an "information content provider" 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 ser-
vice." Id. § 230(f)(3).
Taken together, these provisions bar state-law plaintiffs
from holding interactive computer service providers legally
responsible for information created and developed by third
parties. See Fair Hous. Council v. Roommates.com, LLC, 521
F.3d 1157, 1162 (9th Cir. 2008) (en banc). Congress thus
established a general rule that providers of interactive com-
puter services are liable only for speech that is properly attrib-
utable to them. See Universal Commc’n Sys., Inc. v. Lycos,
Inc., 478 F.3d 413, 419 (1st Cir. 2007). State-law plaintiffs
may hold liable the person who creates or develops unlawful
content, but not the interactive computer service provider who
merely enables that content to be posted online. See Doe v.
MySpace, Inc., 528 F.3d 413, 419 (5th Cir. 2008; Chicago
Lawyers’ Comm. For Civil Rights Under Law, Inc. v. Craigs
list, Inc., 519 F.3d 666, 672 (7th Cir. 2008); Zeran, 129 F.3d
at 330-31.
To further the policies underlying the CDA, courts have
generally accorded § 230 immunity a broad scope.4 See Lycos,
478 F.3d at 418; Carafano v. Metrosplash.com, Inc., 339 F.3d
1119, 1123 (9th Cir. 2003); Zeran, 129 F.3d at 331. This Cir-
4
There is some disagreement as to whether the statutory bar under § 230
is an immunity or some less particular form of defense for an interactive
computer service provider. The Seventh Circuit, for example, prefers to
read "§ 230(c)(1) as a definitional clause rather than as an immunity from
liability." Doe v. GTE Corp., 347 F.3d 655, 660 (7th Cir. 2003); see also
Craigslist, Inc., 519 F.3d at 669. Of whatever academic interest that dis-
tinction may be, our Circuit clearly views the § 230 provision as an immu-
nity: "By its plain language, § 230 creates a federal immunity to any cause
of action that would make service providers liable for information origi-
nating with a third-party user of the service." Zeran, 129 F.3d at 330.
6 NEMET CHEVROLET v. CONSUMERAFFAIRS.COM
cuit has recognized the "obvious chilling effect" the "specter
of tort liability" would otherwise pose to interactive computer
service providers given the "prolific" nature of speech on the
Internet. Zeran, 129 F.3d at 331. Section 230 immunity, like
other forms of immunity, is generally accorded effect at the
first logical point in the litigation process. As we have often
explained in the qualified immunity context, "immunity is an
immunity from suit rather than a mere defense to liability" and
"it is effectively lost if a case is erroneously permitted to go
to trial." Brown v. Gilmore, 278 F.3d 362, 366 n.2 (4th Cir.
2002) (quotations omitted) (emphasis in original). We thus
aim to resolve the question of § 230 immunity at the earliest
possible stage of the case because that immunity protects
websites not only from "ultimate liability," but also from
"having to fight costly and protracted legal battles." Room-
mates.com, 521 F.3d at 1175.
Nemet does not dispute that Consumeraffairs.com is an
interactive computer service provider under the CDA. What
Nemet contends is that Consumeraffairs.com is also an infor-
mation content provider as to the twenty posts and, therefore,
cannot qualify for § 230 immunity. In other words, Nemet’s
argument is that its amended complaint pleads sufficient facts
to show Consumeraffairs.com is an information content pro-
vider for purposes of denying statutory immunity to Consum-
eraffairs.com at this stage in the proceedings.
Our analysis of the sufficiency of Nemet’s pleading is
informed by the Supreme Court’s recent decision in Ashcroft
v. Iqbal, 129 S.Ct. 1937 (2009).5 Iqbal, a former high-interest
detainee taken into custody after the attacks of September 11,
2001, brought a Bivens suit against several high-ranking exec-
utive branch officials, alleging infringements of his First and
5
Although the district court dismissed Nemet’s amended complaint
before the Supreme Court rendered its decision in Iqbal, we "apply the law
as it exists at the time of our decision." United States v. Carolina Trans-
former Co., 978 F.2d 832, 836 n.3 (4th Cir. 1992).
NEMET CHEVROLET v. CONSUMERAFFAIRS.COM 7
Fifth Amendment rights. See Iqbal, 129 S. Ct. at 1943-44. He
pled, among other things, that the defendant executive branch
officials adopted a policy of labeling Arab Muslim men as
high-interest detainees and subjecting them to "harsh condi-
tions of confinement" based solely on their "religion, race,
and/or national origin." Id. at 1951.
Because these allegations were "conclusory" restatements
of the "elements of a constitutional discrimination claim," the
Supreme Court refused to accord them an assumption of truth
for purposes of weighing a motion to dismiss under Rule
12(b)(6). Id. The Court also rejected the sufficiency of Iqbal’s
supporting factual allegations, including his claim that the
federal government "detained thousands of Arab Muslim
men." Id. Given the "more likely explanation[ ]" for these
arrests, i.e., the Government’s legitimate investigation into the
September 11th attacks, the Court concluded that Iqbal’s fac-
tual allegations did "not plausibly establish" the "purposeful,
invidious discrimination" he asked it to infer. Id. at 1951-52.
As noted above, in evaluating a Rule 12(b)(6) motion to
dismiss, a court accepts all well-pled facts as true and con-
strues these facts in the light most favorable to the plaintiff in
weighing the legal sufficiency of the complaint. See id. at
1950-51; Adcock v. Freightliner LLC, 550 F.3d 369, 374 (4th
Cir. 2008). But we also conclude from the analysis in Iqbal
that legal conclusions, elements of a cause of action, and bare
assertions devoid of further factual enhancement fail to con-
stitute well-pled facts for Rule 12(b)(6) purposes. See Iqbal,
129 S. Ct. at 1949. We also decline to consider "unwarranted
inferences, unreasonable conclusions, or arguments." Wahi v.
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n.26 (4th
Cir. 2009); see also Iqbal, 129 S. Ct. at 1951-52.
Ultimately, a complaint must contain "sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plau-
sible on its face.’" Iqbal, 129 S. Ct. at 1949 (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausi-
8 NEMET CHEVROLET v. CONSUMERAFFAIRS.COM
bility is established once the factual content of a complaint
"allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Id. In other
words, the complaint’s factual allegations must produce an
inference of liability strong enough to nudge the plaintiff’s
claims "‘across the line from conceivable to plausible.’" Id. at
1952 (quoting Twombly, 550 U.S. at 570).
Satisfying this "context-specific" test does not require "de-
tailed factual allegations." Id. at 1949-50 (quotations omitted).
The complaint must, however, plead sufficient facts to allow
a court, drawing on "judicial experience and common sense,"
to infer "more than the mere possibility of misconduct." Id. at
1950. Without such "heft," id. at 1947, the plaintiff’s claims
cannot establish a valid entitlement to relief, as facts that are
"merely consistent with a defendant’s liability," id. at 1949,
fail to nudge claims "across the line from conceivable to plau-
sible." Id. at 1951 (quotations omitted).
We must determine, in a post-Iqbal context, whether the
facts pled by Nemet, as to the application of CDA immunity,
make its claim that Consumeraffairs.com is an information
content provider merely possible or whether Nemet has
nudged that claim "across the line from conceivable to plausi-
ble." Id. at 1951 (quoting Twombly, 550 U.S. at 570).
IV.
Following the example set by the Supreme Court in Iqbal
we begin our analysis by "identifying the allegations" of the
amended complaint that are either extraneous or "not entitled
to the assumption of truth." 129 S. Ct. at 1951. We then pro-
ceed to determine the plausibility of the factual allegations of
Nemet’s amended complaint pertaining to Consumeraf-
fairs.com’s responsibility for the creation or development of
the comments at issue.
NEMET CHEVROLET v. CONSUMERAFFAIRS.COM 9
A. Facts Alleged Common to All Posts
In the amended complaint, Nemet recited the specific lan-
guage from each customer about his or her automobile com-
plaint for each of the twenty posts it claimed were
defamatory. Then, Nemet pled as to each of the posts as fol-
lows:
Upon information and belief, Defendant partici-
pated in the preparation of this complaint by solicit-
ing the complaint, steering the complaint into a
specific category designed to attract attention by
consumer class action lawyers, contacting the con-
sumer to ask questions about the complaint and to
help her draft or revise her complaint, and promising
the consumer that she could obtain some financial
recovery by joining a class action lawsuit. Defendant
is therefore responsible, in whole or in part, for
developing the substance and content of the false
complaint . . . about the Plaintiffs.
See, e.g., J.A. at 62. Nemet argues the foregoing (the "Devel-
opment Paragraph") pleads facts sufficient under § 230(f)(3)
to show Consumeraffairs.com is "responsible, in whole or in
part, for the creation or development" of the posts so as to be
a non-immune information content provider. 47 U.S.C.
§ 230(f)(3). In short, Nemet argues the language in the Devel-
opment Paragraph shows Consumeraffairs.com’s culpability
as an information content provider either through (1) the
"structure and design of its website," or (2) its participation in
"the preparation of" consumer complaints: i.e., that Consum-
eraffairs.com "solicit[ed]" its customers’ complaints,
"steered" them into "specific categor[ies] designed to attract
attention by consumer class action lawyers, contact[ed]" cus-
tomers to ask "questions about" their complaints and to "help"
them "draft or revise" their complaints, and "promis[ed]" cus-
tomers would "obtain some financial recovery by joining a
class action lawsuit." See, e.g., J.A. at 56, 62.
10 NEMET CHEVROLET v. CONSUMERAFFAIRS.COM
We first examine the structure and design of the website
argument, which encompasses all the facts pled in the Devel-
opment Paragraph except for the claim Consumeraffairs.com
asked questions and "help[ed] draft or revise her complaint."
J.A. at 62. Nemet cites to the Ninth Circuit Court of Appeals’
opinion in Fair Housing Council v. Roommates.com, LLC,
521 F.3d 1157, 1174 (9th Cir. 2008) to support its structure
and design of the website arguments. However, we do not
find Roommates.com persuasive because it is fundamentally
distinguishable and the facts pled here do not show Consum-
eraffairs.com developed the content of the posts by the struc-
ture and design of its website.
In Roommates.com, the Ninth Circuit considered whether
the operator of a website created to match individuals with
spare rooms with prospective renters was entitled to § 230
immunity. See 521 F.3d at 1161. The website operator, in that
case, required users to disclose their sex, family status, and
sexual orientation, as well as those of their desired roommate,
using a list of pre-determined responses. See id. at 1164-65.
Unless a prospective user furnished this information, he or she
would be unable to utilize the website. Because the website
operator had designed its website to develop unlawful content
as a condition precedent of use, the Ninth Circuit held that the
operator was an information content provider for the discrimi-
natory postings created by third parties. See id. at 1166. As a
result, the website operator was not entitled to § 230 immu-
nity. See id.
Consumeraffairs.com’s website differs materially from that
at issue in Roommates.com. Whereas the website in Room-
mates.com required users to input illegal content as a neces-
sary condition of use, Nemet has merely alleged that
Consumeraffairs.com structured its website and its business
operations to develop information related to class-action law-
suits. But there is nothing unlawful about developing this type
of content; it is a legal undertaking: Federal Rule of Civil Pro-
NEMET CHEVROLET v. CONSUMERAFFAIRS.COM 11
cedure 23, for instance, specifically provides for class-action
suits.
The Ninth Circuit did not hold that a website operator
becomes an information content provider because the infor-
mation posted on its website may be developed in a way unre-
lated to its initial posting, such as its potential to further a
class-action lawsuit. Roommates.com merely adopted a defini-
tion of "development," for purposes of § 230(f)(3), that
includes "materially contributing" to a given piece of informa-
tion’s "alleged unlawfulness." Id. at 1167-68; see also 47
U.S.C. § 230(f)(3).
The theory of liability adopted in Roommates.com, there-
fore, does not aid the sufficiency of Nemet’s amended com-
plaint. As the Ninth Circuit noted, a website operator who
does not "encourage illegal content" or "design" its "website
to require users to input illegal content" is "immune" under
§ 230 of the CDA. Roommates.com, 521 F.3d at 1175. Even
accepting as true all of the facts Nemet pled as to Consum-
eraffairs.com’s liability for the structure and design of its
website, the amended complaint "does not show, or even inti-
mate," that Consumeraffairs.com contributed to the allegedly
fraudulent nature of the comments at issue. Iqbal, 129 S. Ct.
at 1952. Thus, as to these claimed facts in the Development
Paragraph, Nemet’s pleading not only fails to show it is plau-
sible that Consumeraffairs.com is an information content pro-
vider, but not that it is even a likely possibility.
We now turn to the remaining factual allegations, common
to all twenty posts from the Development Paragraph, that
Consumeraffairs.com is an information content provider
because it contacted "the consumer to ask questions about the
complaint and to help her draft or revise her complaint." See,
e.g., J.A. at 62. Nemet fails to make any cognizable argument
as to how a website operator who contacts a potential user
with questions thus "develops" or "creates" the website con-
tent. Assuming it to be true that Consumeraffairs.com con-
12 NEMET CHEVROLET v. CONSUMERAFFAIRS.COM
tacted the consumers to ask some unknown question, this bare
allegation proves nothing as to Nemet’s claim Consumeraf-
fairs.com is an information content provider.
The remaining claim, of revising or redrafting the con-
sumer complaint, fares no better. Nemet has not pled what
Consumeraffairs.com ostensibly revised or redrafted or how
such affected the post. "Threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements,
do not suffice." Iqbal, 129 S. Ct. at 1949. Nemet’s claim of
revising or redrafting is both threadbare and conclusory.
Moreover, in view of our decision in Zeran, Nemet was
required to plead facts to show any alleged drafting or revi-
sion by Consumeraffairs.com was something more than a
website operator performs as part of its traditional editorial
function. See 129 F.3d at 330. It has failed to plead any such
facts. "Congress enacted § 230’s broad immunity ‘to remove
disincentives for the development and utilization of blocking
and filtering technologies that empower parents to restrict
their children’s access to objectionable or inappropriate online
material.’ 47 U.S.C. § 230(b)(4). In line with this purpose,
§ 230 forbids the imposition of publisher liability on a service
provider for the exercise of its editorial and self-regulatory
functions." Id. at 331.
We thus conclude that the Development Paragraph failed,
as a matter of law, to state facts upon which it could be con-
cluded that it was plausible that Consumeraffairs.com was an
information content provider. Accordingly as to the Develop-
ment Paragraph, the district court did not err in granting the
Rule 12(b)(6) motion to dismiss because Nemet failed to
plead facts sufficient to show Consumeraffairs.com was an
information content provider and not covered by CDA immu-
nity.
B. Fabrication of Eight Posts
Even if the facts pled in the Development Paragraph are
insufficient for Rule 12(b)(6) purposes, Nemet separately
NEMET CHEVROLET v. CONSUMERAFFAIRS.COM 13
argues that as to eight of the twenty posts, the amended com-
plaint pled other facts which show Consumeraffairs.com is an
information content provider. Thus, Nemet argues the motion
to dismiss should not have been granted as to these eight
posts.
In the other twelve posts, Nemet agreed that it could iden-
tify from its business records the customer making the posted
complaint and the vehicle at issue. However, as to the eight
posts, Nemet pled as to each that "[b]ased upon the informa-
tion provided in the post, [Nemet] could not determine which
customer, if any, this post pertained to." See, e.g., J.A. at 70.
Nemet then pled the following (the "Fabrication Paragraph")
as to each of the eight posts:
"Because Plaintiffs cannot confirm that the [cus-
tomer] complaint . . . was even created by a Nemet
Motors Customer based on the date, model of car,
and first name, Plaintiffs believe that the complaint
. . . was fabricated by the Defendant for the purpose
of attracting other consumer complaints. By author-
ing the complaint . . . the Defendant was therefore
responsible for the substance and content of the com-
plaint."6
See, e.g., J.A. at 68. Taking the Fabrication Paragraph as pled,
it is important to note exactly what facts Nemet claims show
Consumeraffairs.com was the actual author of the eight posts.
Nemet’s sole factual basis for the claim that Consumer
6
Although it appears odd, to say the least, that as to these eight posts
Nemet pled in the Development Paragraph that Consumeraffairs.com
steered the customer to make a false complaint by manipulation of the
website and then contacting the consumer to revise and redraft the com-
plaint, and at the same time also pleads in the Fabrication Paragraph that
Consumeraffairs.com simply fabricated the entire post, we will assume
Nemet is pleading in the alternative. Consumeraffairs.com raised no
objection to the seemingly contradictory factual allegations and the district
court considered none.
14 NEMET CHEVROLET v. CONSUMERAFFAIRS.COM
affairs.com is the author, and thus an information content pro-
vider not entitled to CDA immunity, is that Nemet cannot find
the customer in its records based on the information in the
post.
Because Nemet was unable to identify the authors of these
comments based on "the date, model of car, and first name"
recorded online, Nemet alleges that these comments were
"fabricated" by Consumeraffairs.com "for the purpose of
attracting other consumer complaints." Id. But this is pure
speculation and a conclusory allegation of an element of the
immunity claim ("creation . . . of information"). 47 U.S.C.
§ 230(f)(3). Nemet has not pled that Consumeraffairs.com
created the allegedly defamatory eight posts based on any tan-
gible fact, but solely because it (Nemet) can’t find a similar
name or vehicle of the time period in Nemet’s business
records. Of course, the post could be anonymous, falsified by
the consumer, or simply missed by Nemet. There is nothing
but Nemet’s speculation which pleads Consumeraffairs.com’s
role as an actual author in the Fabrication Paragraph.
On appeal, Nemet argues that its supporting allegations
nonetheless show the Fabrication Paragraph pleads adequate
facts that Consumeraffairs.com is the author of the eight
posts, but each is meritless. These allegations include (1) that
Nemet has an excellent professional reputation, (2) none of
the consumer complaints at issue have been reported to or
acted upon by the New York City Department of Consumer
Affairs, (3) Consumeraffairs.com’s sole source of income is
advertising and this advertising is tied to its webpage content,
and (4) some of the posts on Consumeraffairs.com’s website
appeared online after their listed creation date. Nemet’s alle-
gations in this regard do not allow us to draw any reasonable
inferences that would aid the sufficiency of its amended com-
plaint.
That Nemet may have an overall excellent professional rep-
utation, earned in part from a paucity of complaints reported
NEMET CHEVROLET v. CONSUMERAFFAIRS.COM 15
to New York City’s Department of Consumer Affairs, does
not allow us to reasonably infer that the particular instances
of consumer dissatisfaction alleged on Consumeraffairs.com’s
website are false. Furthermore, Nemet’s allegations in regard
to the source of Consumeraffairs.com’s revenue stream are
irrelevant, as we have already established that Consumer
affairs.com’s development of class-action lawsuits does not
render it an information content provider with respect to the
allegedly defamatory content of the posts at issue. Finally, the
fact that some of these comments appeared on Consumer
affairs.com’s website after their listed creation date does not
reasonably suggest that they were fabricated by Consumer
affairs.com. Any number of reasons could cause such a delay,
including Consumeraffairs.com’s review for inappropriate
content. See Iqbal, 129 S. Ct. at 1951.
We are thus left with bare assertions "devoid of further fac-
tual enhancement," which are not entitled to an assumption of
truth.7 Id. at 1949. Such conclusory statements are insufficient
as a matter of law to demonstrate Nemet’s entitlement to
relief. See id. As recently emphasized by the Supreme Court,
Rule 8 requires "more than conclusions" to "unlock the doors
of discovery for a plaintiff." Id. at 1950. Viewed in the correct
"factual context," id. at 1954, Nemet’s stark allegations are
7
Nemet’s amended complaint alleges that several comments Consum-
eraffairs.com overtly created and posted on its website also support its
claims for defamation and tortious interference with a business expec-
tancy. In these statements, Consumeraffairs.com provides commentary on
the complaints posted on its website, noting that "some of Nemet’s cus-
tomers aren’t so impressed" with Nemet’s services and opining that these
complaints "pretty well cover the territory" of things that "can go wrong
when buying a car." J.A. at 55. Consumeraffairs.com also questioned
whether Nemet knew that "if a dealer advertis[es] a car at a certain price,
it is obligated to honor that price unless it has clearly disclosed that the
price applies only under certain conditions." Id. at 56. Because Nemet
failed to argue in its opening brief that these comments contributed to the
sufficiency of its amended complaint, we will not consider them in this
appeal. See Cavallo v. Star Enter., 100 F.3d 1151, 1152 n.2 (4th Cir.
1996).
16 NEMET CHEVROLET v. CONSUMERAFFAIRS.COM
nothing more than a "formulaic recitation" of one of the ele-
ments of its claims. Id. at 1951. A plaintiff must offer more
than "[t]hreadbare recitals of the elements of a cause of
action" and "conclusory statements," however, to show its
entitlement to relief. Id. at 1949.
Viewed in their best light, Nemet’s well-pled allegations
allow us to infer no more than "the mere possibility" that
Consumeraffairs.com was responsible for the creation or
development of the allegedly defamatory content at issue. Id.
at 1950. Nemet has thus failed to nudge its claims that Con-
sumeraffairs.com is an information content provider for any
of the twenty posts across the line from the "conceivable to
plausible." Id. at 1952. As a result, Consumeraffairs.com is
entitled to § 230 immunity and the district court did not err by
granting the motion to dismiss.
V.
For the above-stated reasons, we affirm the judgment of the
district court.
AFFIRMED
JONES, Chief District Judge, concurring in part and dissent-
ing in part:
I agree with my colleagues that as to the twelve posts that
Nemet connected to real customers, the Amended Complaint
fails to sufficiently plead a cause of action. The facts alleged
do not show that as to these posts it is plausible that Consum-
eraffairs.com is an information content provider within the
meaning of the Communications Decency Act.
However, as to the remaining eight posts involving ficti-
tious customers, which Nemet claims the website itself fabri-
cated in order to attract other consumer complaints, I disagree
and must respectfully dissent.
NEMET CHEVROLET v. CONSUMERAFFAIRS.COM 17
The majority opinion correctly sets forth the relevant legal
framework. The Communications Decency Act offers website
providers a limited form of immunity from civil lawsuits.
Specifically, the act provides that an "interactive computer
service," or website host, may not be liable under state law for
website content posted by a third party. 47 U.S.C.A. § 230(c),
(e)(3) (West 2001); Zeran v. Am. Online, Inc., 129 F.3d 327,
330 (4th Cir. 1997). A website host loses its immunity under
§ 230, however, if it is responsible, "in whole or in part, for
the creation or development of information provided through
the Internet or any other interactive computer service." 47
U.S.C.A. § 230(f) (3) (West 2001).
In addition, as the majority opinion points out, the current
federal pleading standards mean that in order to pass muster
a claim must be "‘plausible on its face,’" which in turn
requires that a complaint’s facts create more than the "sheer
possibility" of a defendant’s liability. Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
This means in the context of § 230 that in order to survive
a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), Nemet’s complaint must contain sufficient factual
allegations to allow for the plausible conclusion that Consum-
eraffairs.com was responsible, in whole or in part, for the cre-
ation of the Internet posts in question.
In disagreement with the majority, I believe that the allega-
tions of the Amended Complaint adequately set forth a claim
that Consumeraffairs.com was responsible for the eight posts
from fictitious customers.
In the first place, we are required to accept as true, at least
at this stage of the case, Nemet’s allegation that these eight
posts did not represent real customers. Nemet alleged that it
documented each vehicle sale with forms that give the cus-
tomer’s full name, address, description of the vehicle sold,
18 NEMET CHEVROLET v. CONSUMERAFFAIRS.COM
and the date of sale, as well as other information. Each of the
eight posts described in the Amended Complaint gave the first
name and hometown of the putative customer as well as the
make and model of the vehicle sold by Nemet. All of the
posts were dated and all but one set forth the alleged date of
the sale. In spite of Nemet’s careful documentation of each
sale and comparison with the information provided in the
posts, Nemet was unable to connect any of these posted com-
plaints with a real transaction.
Moreover, these were not the sole pertinent factual allega-
tions. Nemet also alleged the following in its Amended Com-
plaint:
(1) The eight complaints at issue were never reported to the
New York City Department of Consumer Affairs, which,
according to Nemet, is responsible for policing consumer
issues where Nemet does business, and which has recently
pursued highly publicized consumer litigation against other
car dealers. (Am. Compl. ¶¶ 12-14, J.A. 49.);
(2) Consumeraffairs.com’s website encourages consumers
to complete complaint forms, but the website does not contain
a place for positive reviews. (Am. Compl. ¶ 28, J.A. 53.);
(3) The website "entices visitors with the possibility of par-
ticipating in a class-action lawsuit, with the potential for a
monetary recovery," by promising to have "class action attor-
neys" review all submitted complaints. (Am. Compl. ¶ 29,
J.A. 53.);
(4) Consumeraffairs.com earns revenue by selling ads tied
to its webpage content, including the content posted by con-
sumers. (Am. Compl. ¶¶ 21, 22, J.A. 51.);
(5) Consumeraffairs.com wrote derogatory statements
about Nemet on the website in connection with the alleged
consumer complaints, such as the following:
NEMET CHEVROLET v. CONSUMERAFFAIRS.COM 19
Here’s what Nemet says about itself on its Web site:
"The Nemet Auto Group is an automotive marketing
organization led by the Nemet family since 1916.
For 86 years, the Nemet family has represented
many of the world’s largest and most prestigious
automobile manufacturers selling well over half a
million cars internationally."
Sounds great, but some of Nemet’s customers aren’t
so impressed, as the complaints in this section indi-
cate. A selection of assorted recent complaints
appears below, while categorized beefs are listed to
the right.
....
...The Nemet complaints pretty well cover the terri-
tory –- everything from prices engraved in sand to
advertising that overlooks certain crucial elements.
It’s also interesting to see how Nemet responds when
consumers take the trouble to drag them into court.
....
...[I]f a dealer advertisers a car at a certain price, it
is obligated to honor that price unless it has clearly
disclosed that the price applies only under certain
conditions. Does Nemet know this?
(Am. Compl. ¶¶ 33-35, J.A. 54-56.).
While Twombly and Iqbal announced a new, stricter plead-
ing standard, they did not merge the pleading requirements of
Rule 8 with the burden of proof required for summary judg-
ment. In fact, the Court in Twombly stated that "[a]sking for
plausible grounds to infer" a claim’s existence "does not
impose a probability requirement at the pleading stage."
Twombly, 550 U.S. at 556. The plausibility standard "simply
20 NEMET CHEVROLET v. CONSUMERAFFAIRS.COM
calls for enough fact to raise a reasonable expectation that dis-
covery" will lead to information supporting the plaintiff’s
claim. Id. Nemet’s pleading accomplishes this. By stating suf-
ficient factual assertions, Nemet has created the reasonable
inference that Consumeraffairs.com wrote the eight posts to
attract additional complaints.
It is true that there may be alternative explanations for these
posts that show that they are not attributable to Consumer
affairs.com. Nemet may have simply overlooked eight actual
customers in its review of the company sales documents. The
fictitious posts may have come from mischief makers unre-
lated to Consumeraffairs.com, or from real consumers who
wished to remain anonymous by falsifying the details of their
transactions. But I don’t believe that any of these alternatives
are any more plausible than Nemet’s claim.
It cannot be the rule that the existence of any other plausi-
ble explanation that points away from liability bars the claim.
Otherwise, there would be few cases that could make it past
the pleading stage. Indeed, as Iqbal teaches, it is only where
there are "more likely explanations" for the result that the
plausibility of the claim is justifiably suspect. Iqbal, 129 S.
Ct. at 1951.
While the present federal pleading regime is a significant
change from the past, it remains true that a plaintiff in federal
court need not allege in its initial pleading all of the facts that
will allow it to obtain relief. Otherwise, the summary judg-
ment process under Rule 56 would have little meaning. Of
course, I don’t know whether Nemet could have ultimately
prevailed on its claim that Consumeraffairs.com made up the
eight posts in question, or even if it could have withstood a
motion for summary judgment, but under the circumstances it
ought to have been allowed to attempt to prove its case. For
that reason, I respectfully dissent.