In a case of current events meets the UCL, Twitter held not liable for suspending user accounts in Murphy v. Twitter, Inc.

I though I would call this one out just because UCL cases don’t usually arrive so contemporaneously with current events. In Murphy v. Twitter, Inc. (Jan. 22, 2021), the Court of Appeal (First Appellate District, Division One) examined claims, including a UCL claim, that Twitter violated users’ rights by permanently suspending accounts.

Without getting deep into the discussion provided by the Court, it should not be surprising that the Court found that Section 230 of the Communications Decency Act of 1996 provided broad immunity for Twitter’s editorial functions. Of course, this just highlights the incongruity of how Section 230 works, since its passage was predicated on the promise by large tech companies that they would not behave like traditional publishers in exchange for the grant of immunity for what users post on their platforms. Right now, Twitter (and Facebook, and others) get immunity that other publishers do not AND they are restricting content on a viewpoint basis.

Interestingly, and with an astounding bit of hubris, Twitter argued that the Plaintiff’s claims violated the First Amendment. The Court declined to address the constitutional question when Section 230 was sufficient to resolve the case in the Court’s view. I just think that’s pretty ballsy of Twitter to throw the First Amendment argument out there when it denies that users have any such rights (and there is a good argument that it is wrong about that, now that it has decided to act as a partisan favoring one political party over another).

The answer is "yes," Dynamex does apply retroactively on the interpretation of "suffer or permit to work"

As opinions go these days, the California Supreme Court’s opinion in Vasquez v. Jan-Pro Franchising International, Inc. (Jan. 14, 2021) is a short one, at about 16 pages of actual text. It is also a unanimous opinion. The Ninth Circuit asked the Supreme Court to answer whether the Court’s decision in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 (Dynamex) applies retroactively. The California Supreme Court concluded that it was retroactive in application:

In concluding that the standard set forth in Dynamex applies retroactively — that is, to all cases not yet final as of the date our decision in Dynamex became final — we rely primarily on the fact that Dynamex addressed an issue of first impression. It did not change a settled rule on which the parties below had relied. No decision of this court prior to Dynamex had determined how the “suffer or permit to work” definition in California’s wage orders should be applied in distinguishing employees from independent contractors. Particularly because we had not previously issued a definitive ruling on the issue addressed in Dynamex, we see no reason to depart from the general rule that judicial decisions are given retroactive effect.

Slip op., at 2. Read the decision if you want to know all about the general rule of retroactive effect and issues of first impression.

Is the decision in Dynamex retroactive?

Tomorrow, in VAZQUEZ (GERARDO) et al. v. JAN-PRO FRANCHISING INTERNATIONAL, INC., Supreme Court Case No. S258191 ((9th Cir. No. 17-16096; 939 F.3d 1045; N.D. of Cal. No. 3:16-cv-05961-WHA), the California Supreme Court will answer the following question for the Ninth Circuit: Does the decision in Dynamex Operations West Inc. v. Superior Court (2018) 4 Cal.5th 903, apply retroactively?