In the past two weeks, I’ve twice blogged about the Ninth Circuit’s opinion in Barnes v. Yahoo. This case split the Ninth Circuit from other circuits as to how the CDA should be applied – should it support a 12(b)(6) motion to dismiss, or should it be treated as an affirmative defense? In deciding that the CDA was an affirmative defense, the Ninth Circuit created for itself a few problems. If the CDA is treated as an affirmative defense, then a court could open discovery prior to ruling on whether a defendant’s actions were immunized or not. By putting discovery into play, the cost of defending a case on CDA grounds could skyrocket. Thus, the CDA-as-an-affirmative-defense theory would create an incentive for defendants to settle cases for which they ought to receive protection, and create an incentive for plaintiffs to bring cases in the Ninth Circuit strictly for this reason. 

On June 22 (roughly six weeks after the release of the initial Barnes opinion), the Ninth Circuit issued an amended opinion in which it deleted the entire discussion of the CDA as an affirmative defense. This marks the second time in two years that the Ninth Circuit has had to go back and correct a decision about the CDA. But by making this correction, the Ninth Circuit resolves the split among the circuits as to whether the CDA can be used to support a 12(b)(6) motion. Thus, in the Ninth Circuit, the CDA can support a 12(b)(6) motion – for the moment, anyway.

If you want to read the full opinion, it can be found here

Why This Matters: Notwithstanding a future departure from the norm, the CDA can form the basis for a 12(b)(6) motion in the Ninth Circuit. This means that it is still possible to resolve a case on CDA grounds prior to the opening of discovery.