Full Ninth Circuit to rehear Roommate.com case

Remember the Ninth Circuit’s ruling in Fair Housing Council of San Fernando Valley v. Roommate.com LLC? How could you forget.

Plaintiff fair-housing groups had charged Roommate.com with Fair Housing Act violations in connection with its online questionnaires and member profiles. This past May a three-judge Ninth Circuit panel ruled that Section 230 does not immunize Roommate.com for all of the content on its website and in its email newsletters. Specifically, the panel concluded that Roommate was “responsible” for its questionnaires because it created or developed the forms and answer choices (rendering the website a content provider of the questionnaires). Explaining that it did not read Carafano “as granting CDA immunity to those who actively encourage, solicit and profit from the tortious and unlawful communications of others,” the panel also ruled that

[b]y categorizing, channeling and limiting the distribution of users’ profiles, Roommate provides an additional layer of information that it is “responsible” at least “in part” for creating or developing.

The decision thus left Roommate.com exposed to potential FHA liability for its questionnaires and user profiles. But that may change.

Eric Goldman and Howard Bashman report on their respective blogs today that the Ninth Circuit has granted Roommate.com’s petition for rehearing en banc. Stay tuned.

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Update on Chicago Lawyers’ Committee v. Craigslist

For those of you unfamiliar with this case, check out my guest post that appeared on May It Please The Court just after Judge St. Eve ruled last year on Craigslist’s motion for judgment on the pleadings. After the court denied plaintiff’s subsequent motion to reconsider, plaintiff appealed, and for the last six months the Seventh Circuit has suspended briefing, presumably to allow for a negotiated resolution.

Apparently a quick settlement isn’t in the cards. Late last week the Court of Appeals jump-started the case by issuing a briefing schedule. Appellant Chicago Lawyers’ Committee for Civil Rights Under Law, Inc.’s (“CLC”) brief is due October 9, Appellee Craigslist’s brief is due November 20, and CLC’s reply brief is due December 7, 2007.

It will be interesting to see how the the Ninth Circuit’s Roommate.com decision figures in to the parties’ briefs.