WCM Successfully Opposes Defendant’s Motions to Dismiss and Remand (PA)
In Harleysville Worcester Insurance Company v. Pediatric Associates of Westmoreland Ltd, WCM Partners Robert Cosgrove and Colleen Hayes successfully defeated defendant Pediatric Assoc. of Westmoreland, Ltd.’s (“PAW”) Motion to Dismiss or, in the Alternative, Remand to State Court. By way of brief background, plaintiff Harleysville Worcester Ins. Co. filed a declaratory judgment action asserting it does not owe PAW defense or indemnity with respect to an underlying state court action as the pertinent policies do not provide coverage.
In evaluating PAW’s Motion, the United States District Court for the Western District of Pennsylvania first considered whether the case should be dismissed as to PAW. In doing so, the Court determined Harleysville Worcester Ins. Co. (“Harleysville”) and PAW fundamentally disagree about Harleysville’s obligations under the relevant insurance policies. The Court held the parties’ fundamental disagreement constituted a controversy under the Declaratory Judgment Act, which warranted denial of PAW’s Motion to Dismiss.
Next, the Court analyzed PAW’s Motion to Remand in accordance with the standards established by the Court of Appeals for the Third Circuit’s holding in Reifer v. Westport Ins. Corp., 751 F.3d 129 (3d Cir. 2014). As set forth in Reifer, the Court considered the following factors to assess its jurisdiction over the lawsuit:(1) the likelihood that a federal court declaration will resolve the uncertainty of obligation which gave rise to the controversy; (2) the convenience of the parties; (3) the public interest in settlement of the uncertainty of obligation; (4) the availability and relative convenience of other remedies; (5) a general policy of restraint when the same issues are pending in a state court; (6) avoidance of duplicative litigation; (7) prevention of the use of the declaratory action as a method of procedural fencing or as a means to provide another forum in a race for res judicata; and (8) (in the insurance context), an inherent conflict of interest between an insurer’s duty to defend in a state court and its attempt to characterize that suit in federal court as falling within the scope of a policy exclusion.
See Harleysville Worcester Ins. Co., 2020 WL at *2.
Weighing the foregoing 8 factors – with the understanding that the Court may look to other case law or considerations – the Court concluded that judicial economy is best served by retaining jurisdiction over the action. In support of this conclusion, the Court reasoned, inter alia, no underlying state court action related to the heart of the lawsuit existed, a ruling on the action would resolve the issue of whether Harleysville is required to defend or indemnify PAW and the parties already appeared before the Court.
In sum, this ruling serves as a reminder of the emphasis the District Courts in the Third Circuit place on the Reifer factors when determining whether to retain jurisdiction or remand to state court.Congratulations to Bob and Colleen on Harleysville Worcester Insurance Company v. Pediatric Associates of Westmoreland Ltd, No. CV 19-1251, 2020 WL 5544413, at *1 (W.D. Pa. Sept. 16, 2020), and thanks to Lauren J. Berenbaum for her contribution to this post. Please contact Vincent F. Terrasi with any questions. Read More
Default is not a Total Loss (NY)
In a personal injury action, plaintiff Castaldini claims personal injury when a propane tank exploded at the home of defendant Walsh. Upon defendant’s failure to answer, plaintiff’s motion to enter default judgment was granted by the trial court, and the case was sent to inquest for a trial on damages. At the inquest trial, plaintiff testified as to his injury and submitted a written sworn statement by one of his treating physicians. Defendant objected to the admission of the sworn statement arguing that he should be allowed to cross-examine the physician testifying as to plaintiff’s injuries. The trial court admitted the sworn statement into evidence and handed down a judgment totaling $275,000 for plaintiff’s past and future suffering.
Defendant appealed to the Second Department arguing plaintiff failed to establish the accident caused his injuries and argued he had a right to cross-examine the physician. The Second Department held in Castaldini v. Walsh, that a defaulting defendant admits all allegations in the Complaint as true, but does not admit the plaintiff’s conclusory statements as to its damages. Once defendant defaulted by failing to answer the Complaint, plaintiff did not need to prove the accident caused his injuries. The purpose of an inquest court is to ascertain the amount of damages. (Gonzalez v Wu, 131 AD3d 1205, 1206; see Rokina Opt. Co., Inc. v Camera King, Inc., 63 NY2d at 730; Arluck v Brezinska, 180 AD3d 634; Jihun Kim v S & M Caterers, Inc.,136 AD3d 755, 756).
The Second Department agreed with defendant that he had a right to cross-examine the plaintiff’s physician. Since the inquest is to ascertain damages, and defendant is present at the inquest, then plaintiff must make any treating physicians available for cross-examination. See Reynolds Sec. v Underwriters Bank &Trust Co., 44 NY2d 568, 572. Thus, the trial court should not have admitted the physician’s sworn statement into evidence and the case was remitted back to the trial court for a new inquest on the amount of damages.
The key takeaway in this case is that even though a defendant failed in timely answering the complaint, and thus cannot argue causation, a defendant can still, and should, object as to plaintiff’s evidence for damages. Moreover, at that inquest trial for damages, a defendant has the right to cross-examine plaintiff’s treating physicians to contest damages even when in default.Thanks to Raymond Gonzalez for his contribution to this post. Please contact Vincent F. Terrasi with and questions.Read More
Statute of Limitations and Pollution Exclusion at Play for Toxic Tort Coverage Analysis (PA)
The Western District of Pennsylvania recently determined that a number of insurers did not owe coverage for hundreds of bodily injury claims brought forth in a toxic-tort action. In Allegheny Ludlum, LLC. v. Liberty Mutual Insurance Company, et al., the District Court granted the defendants’ motions for summary judgment after determining that the plaintiff’s claims were brought too late and that a pollution exclusion barred coverage.
The underlying lawsuit involved four employees of Arvin-Meritor, Inc. (“Arvin-Meritor”) claiming bodily injuries as a result of toxic chemical exposure against Allegheny Ludlum, LLC (“Allegheny”) . Included in the plaintiffs’ complaint, was a claim for wantonness. During the relevant time period, Allegheny was insured by Liberty Mutual Insurance Company (“Liberty”), Hartford Casualty Insurance Company (“Hartford”), Continental Casualty Company (“Continental”), and U.S. Fidelity and Guaranty Company (“U.S. Fidelity”). Ultimately, Allegheny settled the litigation in 2017 but later changed its position as to whether its insurers owed it coverage.
In 2010, Allegheny told Liberty and Hartford that they did not owe it coverage for the lawsuit. In 2013, Liberty and Hartford set a cost-share limit for Allegheny’s defense costs prior to 2009. However, three years later, Allegheny claimed it wrongly interpreted the underlying action and consequently erred in negotiating the cost-share. As a result of all four of its insurers denying coverage, Allegheny filed a declaratory judgment action alleging failure to defend and bad faith.
First, the District Court determined that Allegheny’s claims against Liberty and Hartford were time-barred. Liberty and Hartford argued that Allegheny’s declaratory judgment action was untimely under Pennsylvania’s statute of limitations of four years. Specifically, Liberty and Hartford argued that the statute of limitations began to run once coverage was disclaimed whereas Allegheny argued that the statute of limitations does not begin to run until after the termination of the underlying action.
The District Court determined that Allegheny had a sufficient factual basis to conclude that Hartford and Liberty did not intend to provide coverage when they denied coverage back in 2010. Additionally, the District Court emphasized that all parties agreed on this issue at that same time. The District Court opined that “[t]here can be no greater guarantee against the potential of a claim failing within an insurance policy than when an insured itself takes the position that coverage is not obliged.”
Additionally, the District Court determined that Allegheny’s bad faith claims were also barred under the two year statute of limitations for statutory bad faith and the four year statute of limitations for common law bad faith. The District Court determined that because the statute of limitations began to run when the insurer denied coverage, Allegheny’s bad faith counts were clearly time-barred as a matter of law.
Second, the District Court determined that Allegheny’s claims against Continental did not apply as there was no “occurrence” that took place and that claims against U.S. Fidelity were also barred due to a pollution exclusion. The U.S. Fidelity policy specifically excluded bodily injury expected or intended by the insured that would not have occurred but for exposure to pollutants. Further, the District Court stated that the toxic tort in the underlying case was the exposure of employees to welding fumes containing toxic substances. Determining that “fumes” was listed in the policy’s definition of “pollutants,” the District Court determined that the exposure to the fumes clearly fell into the pollutants exclusion. As such, the District Court determined that the language of the policy related to this exclusion was clear and unambiguous and dismissed Allegheny’s claims against U.S. Fidelity.
Overall, the main takeaway from this lawsuit is the significant barriers to coverage once an insured has conceded that no coverage is owed to it and later attempts to change its mind. Additionally, this case once against emphasizes the importance of clear and unambiguous language within an insurance policy, this time through the pollution exclusion.
Thanks to Zhanna Dubinsky for her post. Please contact Vincent F. Terrasi with any questions of comments.Read More
Incidental Business Connections Are Insufficient to Establish Venue (PA)
The Pennsylvania Superior Court recently tackled a civil procedure issue that frequently crosses the minds of defense counsel: improper venue. According to Pa. R.C.P 1006(e), improper venue must be raised in the defendants’ preliminary objections to plaintiff’s complaint or the objection will be waived.
In Kanevsky v. Revolution Ice Rink LLC, the plaintiff slipped and fell while playing ice hockey at an ice-skating rink located in Warminster, Pennsylvania and brought a negligence suit in the Philadelphia County Court of Common Pleas. Defendant Black Bear (“Black Bear”) owns and operates ice skating rinks in Pennsylvania and in other states. However, Black Bear’s principal place of business is in Chevy Chase, Maryland. Revolution Ice Rink, LLC (“Revolution”) only owns one ice rink, where it also owns and hosts a youth ice hockey team (“Philadelphia Revolution”) and is based in Warminster, Pennsylvania.
Defendants filed joint preliminary objections against plaintiff claiming they were neither domiciled in Philadelphia nor did they operate their businesses in Philadelphia. At the evidentiary hearing, plaintiff argued that Black Bear’s CEO was quoted calling the ice rink “the hockey hub of North Philadelphia” in a press release. He argued this publication demonstrates the defendants generate revenue in Philadelphia, which was grounds for venue. The defendants argued the statements were for advertising purposes only, they did not conduct business in Philadelphia, and they did not generate revenue in Philadelphia or pay taxes in Philadelphia. The Court transferred venue to Bucks County. The plaintiff timely appealed the decision, arguing the trial court abused its discretion by transferring venue. He argued he satisfied the quality and quantity test pursuant to Pa.R.C.P 2179(a)(2) and Black Bear’s CEO admitted to substantial business activities in Philadelphia.
The quantity and quality test is discussed in the case Purcell v. Bryn Mawr Hospital. Purcell v. Bryn Mawr Hospital, 579 A.2d 1282 (Pa. 1990). The Court stated quality of business contacts is determined by “those directly, furthering, or essential to, corporate [objectives]; they do not include incidental acts”. Id. Regarding quantity, the acts must be “so continuous and sufficient to be general or habitual”. Id. Acts that aid the business’ primary objective are different from those that are necessary for the primary objective of the business. Ultimately, here, the Court rejected plaintiff’s arguments. First, the ice hockey rink is located in Warminster, Pennsylvania. Second, the fact that the youth hockey team is named Philadelphia Revolution is not indicative that business is conducted in Philadelphia. Other teams and businesses have Philadelphia in their name but conduct business outside of the city. Third, defendants did not own, purchase, or sell any property; pay taxes; or generate revenue in Philadelphia. Last, the press release was not central to the defendants’ business objectives, but was incidental. Thus, the trial court’s order was affirmed.
Venue is a procedural issue to monitor because plaintiffs may choose a forum based on where they foresee a favorable outcome as opposed to where it is proper for the matter to be heard. Defense counsel must object to improper venue in preliminary objections to avoid the issue being waivedThanks to Gabrielle Outlaw for her post. Please contact Vincent F. Terrasi with any questions or comments.Read More
Importance of “Backing Up” Claims in MVA Case (PA)
In Ruffin v. Desh United Corporation et al. plaintiff learned a lesson fit for an evidence course lecture after he appealed the trial court’s decision in his personal injury case. According to plaintiff, he was injured while crossing the street when defendant driver backed into Ruffin with his car. The other defendants in the matter are defendant’s employers.
After defendants appealed an arbitration decision in favor of plaintiff, the trial jury found the driver was negligent, but plaintiff had not established that the driver was the factual cause of his damages. The jury also found that the driver was not acting as an agent for his employers at this time. Plaintiff appealed this decision arguing the trial court abused its discretion by allowing defendants’ counsel to reference and question witnesses about a police report during the trial, to incorrectly question plaintiff’s brother on an inconsistent statement from the arbitration and to admit a photograph into evidence that had not been previously disclosed. Ultimately, the Superior Court rejected these arguments.
In regard to the police report, the Court decided the information should have been excluded but its inclusion did not negatively affect plaintiff’s case. Thus, it stated the police report was cumulative of evidence already discussed by defendant and its inclusion was a harmless error that did not warrant reversal. Plaintiff’s second argument was defendants’ counsel should not have been permitted to cross-examine his brother on testimony given at the arbitration hearing because the arbitration was not transcribed. In response, the Court plainly stated it was permissible for counsel to cross-examine and impeach the witness with statements he made at a prior proceeding while under oath. These statements would have also been admissible substantive evidence. Lastly, plaintiff argued a photograph was erroneously admitted by the trial court because defendants had not previously produced it. Once again, the Court rejected plaintiff’s arguments by stating the photographs were not objected to at the trial court level and thus, his objection was waived. The plaintiff ultimately argued the Superior Court’s decision was against the weight of the evidence. However, the Court determined this argument lacked merit because plaintiff only presented underdeveloped claims.
Defendants tenacity coupled with plaintiff’s slackness resulted in a favorable outcome. Defendants are retained to fight even when the case appears hard to win and sometimes victory comes at the appellate level, but that tenacity paid off.
Thanks to Gabrielle Outlaw for her post. Please contact Vincent F. Terrasi with any questions or comments.Read More
CY Pres – Enforcing an Unsigned Settlement Release (PA)
The Western District of Pennsylvania recently determined that the absence of a signature did not void the underlying settlement agreement in a class action lawsuit. In Abramson, et al. v. Agentra LLC, et al., the District Court granted the plaintiffs’ motion to enforce class action settlement after the parties reached an oral agreement and a Joint Status Report Regarding Class Action Settlement was filed with the District Court.
The lawsuit involved a class action alleging that Agentra LLC (“Agentra”) participated in making pre-recorded telemarketing calls to cellular telephone numbers in order to advertise Agentra’s goods and services. The plaintiffs argued that this was a clear violation of the Telephone Consumer Protection Act (“TCPA”). The plaintiffs and Agentra participated in a private mediation and reached an oral settlement agreement shortly thereafter. Specifically, the oral settlement agreement required Agentra to establish a fund of $275,000.00 from which payments would be made to class members and which would be used to fund other matters including administrative costs, service awards, and attorneys’ fees.
Following the oral negotiation, plaintiffs provided a first draft of a written settlement agreement, as well as documents related to the settlement, to Agentra. The parties exchanged numerous e-mail correspondence thereafter, including an e-mail from Agentra with minor redlines to the written agreement. Agentra also brought up the issue of cy pres and later provided an agent list to plaintiffs. After receiving the agent list, plaintiffs sent the final version of the settlement agreement to Agentra which was never formally executed. Additionally, at this time, the parties filed a Joint Status Report Regarding Class Action Settlement which indicated that “a class action settlement is agreed upon and with their respective clients for signature.”
Ultimately, Agentra failed to sign the settlement agreement and disputed that the parties reached a binding agreement. However, no evidence was presented that Agentra communicated any dispute about the final settlement agreement draft or that any other material matter remained in dispute. Additionally, the issue of Cy Pres appeared to be resolved after the parties exchanged the agent list and Agentra made no further communications surrounding the Cy Pres issue.
The District Court looked to contract law in order to determine whether the settlement agreement was enforceable. Essentially, the District Court determined that the record revealed that there were no material facts in dispute regarding the existence of terms of an agreement to settle. The District Court noted that “the uncontroverted evidence confirms that after reaching an oral agreement, the parties reduced their oral agreement to writing and addressed any remaining material issues.” The District Court also stated that the best evidence that a final agreement was reached was the filing of the Joint Status Report Regarding Class Action Settlement. As such, the Court held that the absence of the signature, alone, did not make the settlement agreement unenforceable and granted plaintiffs’ motion to enforce settlement.
Thanks to Zhanna Dubinsky for this post. Please feel free to contact Vincent Terrasi with any questions or comments.Read More
NYPD’s Hot Pursuit Immunity Has Limitations (NY)
In Fuchs v. City of New York (2020 NY Slip Op 04382), the NYPD was involved in a high-speed pursuit of a suspect. The plaintiff was driving down a one-way street when the suspect turned the wrong way and collided with plaintiff’s vehicle. Plaintiff sued the police department for her injuries and the City of New York claimed a qualified exemption under VTL § 1104 which provides an exemption for drivers of authorized emergency vehicles from certain traffic laws when involved in an emergency situation. However, under VTL §1104(e), there is a provision that waves that exemption if the emergency services driver operates his vehicle in a reckless disregard for the safety of others. Here, the recklessness standard requires a showing that the officer intentionally performed an act disregarding a known or obvious risk that would be highly probable to harm others, and the officer did so with disregard for the outcome.
The Second Department found that the police officer’s actions did not rise to that reckless standard because he was involved in a pursuit of the suspect’s vehicle which was traveling beyond the speed limit and disobeying traffic laws. Moreover, the accident was caused primarily by the “independent recklessness of the driver”. All insurers should know that the reckless standard for emergency vehicles requires a showing that the driver is involved in an emergency situation. It also requires that the act itself was not performed with an intentional disregard for a known or obvious risk of harm to others. These requirements should be clearly stated in policy agreements with all clients who are involved in providing emergency services.Thanks to Raymond Gonzalez for his post. Please contact Vincent Terrasi with any questions or comments.Read More
In Trademark Dispute over Engagement Rings, the Second Circuit Court of Appeals asks the Southern District of New York to Reconsider (NY)
In Tiffany and Company v. Costco Wholesale Corporation, the United Second Circuit Court of Appeals found a triable issue of fact as to whether Costco’s otherwise unbranded engagement rings identified as “Tiffany” rings by signs placed at the point-of-sale infringed upon Tiffany’s trademark.
As part of its lawsuit, Tiffany alleged, that these point-of-sale signs constituted trademark infringement under the Lanham Act. Specifically, Tiffany alleged that Costco by displaying of these signs throughout its stores deliberately misled consumers as to the actual source of the rings. On summary judgment, the trial court agreed, entering judgment in favor of Tiffany and awarding Tiffany approximately $21 million in trebled profits, prejudgment interest, and punitive damages. Costco appealed the trial court’s decision arguing that there was a genuine issue of material fact as to whether there was a likelihood of confusion to consumers based upon Costco’s conduct.
Courts in the Second Circuit follow an eight-part factor test in assessing whether there was a likelihood of confusion. In its appeal, Costco cited three of those factors as being in dispute: (1) actual confusion; (2) good faith; and (3) consumer sophistication. The Second Circuit agreed with Costco.
In assessing actual confusion, the lower court found that evidence presented by Tiffany established that no reasonably jury could find in favor of Costco. The lower court pointed to testimony from six Costco customers who stated they were confused by the signs, as well as results from a survey of self-identified Costco customers in which two of five respondents reported they would have been confused. The Second Circuit disagreed with this reasoning, noting that Costco’s expert successfully raised the specter of “trained” responses and thus brought this factor into dispute.
As to good faith, the District Court found this factor in Tiffany’s favor on the basis that Costco sought to have its suppliers provide rings that looked like Tiffany’s. The Second Circuit disagreed observing that under the law of the Second Circuit, the question of good faith is not whether Costco sought to sell jewelry that looked like Tiffany, but whether it sought to have its consumers believe they were purchasing Tiffany. On that basis, the Second Circuit found a genuine dispute on this factor, as Costco did not use the Tiffany trademark or its packaging and that it’s return policy allowed for fully refundable returns at any time. Rather, Costco used the Tiffany name to describe the setting style employed by Tiffany in its rings.
Finally, as to the sophistication of the consumers, the Second Circuit found that it has been the recognized in that circuit that ring buyers, particularly the purchaser of a wedding or engagement ring, are among the most “discriminating in his [or her] purchase.” In assessing these factors together, the Second Circuit found that it was possible for a reasonable jury to conclude that Costco used “Tiffany” as a descriptor rather than a mark.
This case demonstrates that claims of trademark infringement should not be taken at face value, and instead require a careful assessment by the court and the parties.Thanks to Benjamin G. Ferrell for the post. Please contact Vincent Terrasi with any questions or comments.Read More
General Contractor Overhead and Profit Deducted in Actual Cash Value Settlements (PA)
Earlier this week, on August 24, 2020, the Supreme Court of Pennsylvania issued its decision in the consolidated appeals of Kurach v. Truck Insurance Exchange and Wintersteen v. Truck Insurance Exchange. By way of brief background, in both cases, after the plaintiffs experienced water damage to their homes, they filed claims with Truck Insurance Exchange (“Truck”). Both plaintiffs opted for actual cash value (“ACV”) settlements rather than repairing their properties. Truck deducted the general contractor overhead and profit (“GCOP”) from the settlement checks, which the plaintiffs argued was contrary to Pennsylvania law. On appeal, the Superior Court held Truck properly deducted the GCOP from the actual cash value settlements since the plaintiffs did not make the repairs and therefore, did not incur GCOP costs.
On appeal, the Supreme Court of Pennsylvania analyzed “whether, under the terms of the “replacement cost coverage” policies at issue, [Truck] was permitted to withhold the [ACV] payment [GCOP] expenses unless and until the insureds undertook repairs of the damaged property, even though the services of a general contractor were reasonably likely to be needed to complete the repairs. Ultimately, the Supreme Court affirmed the Superior Court’s holding, thereby concluding Truck was permitted to withhold these costs.
Applying long-standing Pennsylvania case law on insurance policy interpretation, the Supreme Court focused on the policies’ definition of ACV and specific policy language establishing the timing of payment of depreciation costs and GCOP. Based on the plain language of the policies, the Court concluded that the policies guarantee the insureds will be paid the ACV of the damaged property at the time of the loss. Yet, the Court noted that the GCOP payments are conditional payments as GCOP payments will not be made unless and until the insured actually incurs such costs by commencing the repair process, “unless the law of [Pennsylvania] requires” GCOP to be included in the ACV payment. In doing so, the Court determined “Pennsylvania law does not mandate that GCOP be included in ACV for every claim made under a replacement cost policy.” Overall, this ruling serves as another reminder of the emphasis placed on the plain language of the policy.Thanks to Lauren Berenbaum for this post. If you have any questions or comments, please contact Vincent Terrasi.Read More
Amazon Can Be Liable for Third-party Sellers’ Defective Products in California-Will Other States Follow? (NY)
Amazon has traditionally been exempt from various states’ product liability laws by successfully arguing that Amazon is not a “seller” when it comes to products sold by third-parties through Amazon’s website. A California Appellate Court has overturned a lower court and ruled that Amazon.com played a pivotal role in every step of a plaintiff’s purchase of a replacement laptop computer battery on the online shopping website, making it potentially liable for the personal injuries caused when the battery malfunctioned. Angela Bolger sued Amazon and the Chinese-based company, Lenoge Technology, that listed itself on the website as the seller, alleging strict/negligent products liability, breach of warranty and negligent undertaking. Although Lenoge was served, it did not appear and the court entered default judgment.
Bolger alleged the battery exploded several months later, and she suffered severe burns as a result. Amazon then moved for summary judgment, arguing primarily that the doctrine of strict products liability, as well as any similar tort theory, did not apply to it because it did not distribute, manufacture, or sell the product in question. It claimed its website was an “online marketplace”, and that Lenoge was the product seller, not Amazon. The trial court agreed, granted Amazon’s motion, and entered judgment accordingly. Bolger appealed, resulting in the higher court’s determination that Amazon’s role was more than that of just marketplace. The facts relied upon by the court may apply to other products sold on Amazon by third-party sellers because the Court found it was important that Amazon charged Bolger for the purchase, retrieved the laptop battery from its location in an Amazon warehouse, prepared the battery for shipment in Amazon-branded packaging, and sent it to Bolger.
In a very fact-specific inquiry, the Court of Appeal for the Fourth Appellate District in Bolger v. Amazon.com LLC determined that Amazon could be found strictly liable for defective products offered on its website by third-party sellers like Lenoge. In the circumstances of this case, the Court of Appeal agreed with Bolger and reversed a San Diego trial court stating that: “Amazon placed itself between Lenoge and Bolger in the chain of distribution of the product at issue here. … Under established principles of strict liability, Amazon should be held liable if a product sold through its website turns out to be defective. Strict liability here ‘affords maximum protection to the injured plaintiff and works no injustice to the defendants, for they can adjust the costs of such protection between them in the course of their continuing business relationship.'” The Court declined to extend the protections of the Communications Decency Act to Amazon under these facts because Amazon’s actions were at issue.