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IN THE SUPREME COURT OF THE STATE OF GEORGIA

MATTHEW CHAN,
Appellant,

DOCKET NO.: S14A1652

-against -

LOWER COURT NO.:


SU13DM409

LINDA ELLIS,
Appellee

COURT OF APPEALS
DOCKET NO.: A14A0014

SUPPLEMENTAL BRIEF OF APPELLANT MATTHEW CHAN

Respectfully Submitted,
Oscar Michelen
Georgia Bar No.: H10048
Cuomo LLC
Attorneys for Appellant
9 East 38th Street
Third Floor
New York, NY 10016
William J. McKenney
Georgia Bar No.: 494725
McKenney & Froehlich
Attorneys for Appellant
50 Polk Street NW
Marietta, GA 30064

TABLE OF CONTENTS
1. Table of Authorities ii
2. Preliminary Statement . 1
3. Statement of Facts 1
4. Argument 1
POINT I
A RECENT DECISION FROM A FLORIDA APPELLATE COURT
RECOGNIZED THAT AN INJUNCTION AGAINST AN INTERACTIVE SERVICE
PROVIDER BASED ON DEFAMATORY CONDUCT POSTED BY A THIRD PARTY
WAS PREEMPTED BY THE COMMUNICATIONS DECENCY ACT OF 1996

5. Conclusion 3
6. Certificate of Service 4

TABLE OF AUTHORITIES
Cases
Giordano v. Romeo, 76 So.3d 1100 (Fla. 3d DCA 2011) ............................. 2
Medytox Solutions, Inc. v. Investorshub.com, Inc., _____So.3d ______,
2014 WL 6775236 (2014).............................................................................. 1
Statutes
The Communications Decency Act of 1996, 47 U.S.C. 230 ...................... 2

ii

PRELIMINARY STATEMENT
This supplemental brief is submitted by Appellant Matthew Chan
(Appellant) to discuss a recent relevant case from a neighboring
jurisdiction that has been decided since the submission of the original briefs
and the oral argument in this appeal.
STATEMENT OF FACTS
The Appellant incorporates by reference the Statement of Facts set
forth in Appellants Brief.
ARGUMENT
POINT I
A RECENT DECISION FROM A FLORIDA APPELLATE COURT
RECOGNIZED THAT AN INJUNCTION AGAINST AN
INTERACTIVE SERVICE PROVIDER BASED ON DEFAMATORY
CONDUCT POSTED BY A THIRD PARTY WAS PREEMPTED BY
THE COMMUNICATIONS DECENCY ACT OF 1996
On December 3, 2014, the Fourth District, Florida District Court of
Appeals decided the case of Medytox Solutions, Inc. v. Investorshub.com,
Inc., _____So.3d ______, 2014 WL 6775236 (2014) (a copy is attached).
In Medytox, the plaintiffs sued to force an interactive computer
service provider to remove statements from its website made by a third
party; plaintiffs alleged the remarks defamed the plaintiffs. The appellate
court affirmed the trial court's dismissal of the complaint and denied

plaintiffs request for an injunction holding that the website operator enjoyed
immunity from such relief under Section 230 of the Communications
Decency Act, 47 U.S.C. 230 (CDA).
The Medytox plaintiffs had argued that the CDA did not preempt an
equitable action under Florida law for the removal of libelous postings. They
contended that any preemption by the CDA was limited to tort-based claims
seeking monetary liability, and that nothing in the CDA suggested that
Congress intended to preempt equitable claims for injunctive relief.
Medytox, at page 1. In rejecting this argument, the court relied on Giordano
v. Romeo, 76 So.3d 1100 (Fla. 3d DCA 2011) which held that Section 230 of
the CDA creates a federal immunity to any cause of action that would make
service providers liable for information originating with a third-party user of
the service. Giordano at page 1102.
The Medytox court held that the broad terms of the CDA apply not
only as shield from liability for third-party conduct but also as a shield from
any form of cause of action based on third party conduct stating:
An action to force a website to remove content on the sole basis that the
content is defamatory is necessarily treating the website as a publisher, and
is therefore inconsistent with Section 230. Thus, by the plain language of the
statute, the immunity afforded by Section 230 encompasses the claims for
declaratory and injunctive relief sought in this case.
Medytox, supra, at pages 3-4.

In this present action, the court below issued a permanent


injunction against Appellant based in large part on content posted by third
parties. Medytox establishes that Appellant is immune from those claims and
that Appellant was protected by the Communications Decency Act of 1996.

CONCLUSION
For the foregoing reasons, the order below must be reversed.

Respectfully Submitted,

/s/ Oscar Michelen


Oscar Michelen
Georgia Bar No.: H10048
Cuomo LLC
Attorneys for Appellant
9 East 38th Street
Third Floor
New York, NY 10016
(212) 448-9933
omichelen@cuomollc.com

/s/ William J. McKenney


William J. McKenney
Georgia Bar No.: 494725
McKenney & Froehlich
Attorneys for Appellant
50 Polk Street NW
Marietta, GA 30064
(678) 354-4700
wjm@wjmlaw.org

CERTIFICATE OF SERVICE
This is to certify that in accordance with Georgia Supreme Court Rule
14, I have on this day served this Supplemental Brief and Exhibit before
filing with the Court by mailing a copy of same to the opposing counsel
listed below in a properly addressed envelope with adequate postage to the
address below and by electronically filing the Brief with the Court:

Page, Scrantom, Sprouse, Tucker, Ford


Attorneys for Appellee
1111 Bay Avenue
Third Floor
Columbus, GA 31901
Mr. Timothy B. McCormack
Amicus Filer on Behalf of Appellee
167 Lee Street
Seattle, WA 98109
This 18th day of December 2014
/s/ Oscar Michelen
Oscar Michelen
Georgia Bar No.: H10048
Cuomo LLC
Attorneys for Appellant
9 East 38th Street
Third Floor
New York, NY 10016
(212) 448-9933