Meta Secures Ninth Circuit Win: Breach of Contract Is No "Section 230 Loophole"

2 minute read | November.04.2026

Meta Platforms, Inc. has won a complete victory before the U.S. Court of Appeals for the Ninth Circuit in Shared Partnership v. Meta Platforms, Inc., No. 25-2612. In a unanimous, precedential opinion, the court held that Section 230 of the Communications Decency Act bars a former advertiser's claim over the cancellation of its account, despite being framed as a breach of Meta's Terms of Service.

THE CASE

Shared Partnership, an online content publisher, used several Facebook pages and Meta's self-serve advertising service for more than a decade.
In October 2020, Meta canceled Shared's Facebook pages for repeatedly violating its terms and policies. Shared sued Meta in 2022 for conversion and fraudulent inducement, among other claims. The U.S. District Court for the Northern District of California dismissed the conversion claim under Section 230 and later granted summary judgment to Meta on the misrepresentation claims.
On appeal, Shared recast its conversion theory as a contract-based claim. It argued that Meta had broken a promise in its Terms of Service not to remove Shared's account unless Shared "clearly, seriously, or repeatedly" breached Facebook's terms or policies.

THE DECISION

In an opinion by Judge Kenneth K. Lee, joined by Judges Salvador Mendoza, Jr. and Ana de Alba, the Ninth Circuit affirmed. The court held that the "mere existence of a contractual duty is not a talismanic Section 230 loophole".
The court found that the Terms of Service "just restate Meta's ability to exercise editorial discretion". It explained that "a contractual promise that reiterates the company's inherent publishing authority still amounts to publishing activity protected by Section 230". When Meta invoked its Terms of Service to terminate Shared's account, it "still acted like a prototypical publisher".
The court distinguished its earlier decisions in Barnes v. Yahoo! and Calise v. Meta, which involved promises that went beyond typical publishing activity.

THE IMPACT

The decision confirms that the label on a cause of action does not decide whether Section 230 applies. As the court put it, "a claim does not automatically fall outside the ambit of Section 230's liability protection just because it is framed as a breach of contract". Instead, courts must ask whether the claim seeks to treat the platform as a publisher or speaker of third-party content. The precedential ruling reaffirms the importance of Section 230 for online services and squarely forecloses efforts to recast claims in contractual terms just to avoid it.

THE TEAM

The Orrick team representing Meta was led by Eric Shumsky, who argued the case, and Cesar Lopez-Morales, and also included Samantha Leff, Nathan Shaffer, Catherine Lui, Jake Heath, Kristopher Wood, Andrew Silverman and Naomi Scotten.

Related Lawyers

Eric Shumsky Partner, Supreme Court & Appellate, Intellectual Property

Washington, D.C.; San Francisco

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D:+1 202 339 8464
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Supreme Court & Appellate
Intellectual Property
Complex Litigation & Dispute Resolution

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Eric Shumsky Partner

Washington, D.C.; San Francisco

Chambers USA reports that Eric is “hailed as ‘highly intelligent, an effective communicator and a great writer,’“ and he “‘prepares meticulously, anticipates every question, and is a gifted orator.’” Legal 500 touts his “exceptional courtroom demeanor and presentation skills” as one of “the finest appellate litigators in the nation.” And Reuters, in a report reviewing some 17,000 practitioners, identified Eric as part of an “elite cadre” of 75 lawyers who are “the most influential members of one of the most powerful specialties in America: the business of practicing before the Supreme Court.”

Eric has served as appellate counsel to a who’s who of leading companies, including American Express, AT&T, DISH Network, Facebook, Genentech, Gilead, KPMG, LG Electronics, LinkedIn, Lyft, Microsoft, Morgan Stanley, Netflix, Norfolk Southern, Synopsys, Twitter, and Union Carbide. Across an array of industries, Eric has briefed and argued issues as diverse as patent and copyright, labor and employment, preemption, punitive damages, products liability, national security, and foreign sovereign immunity. Among his scores of arguments in courts around the country, he has argued in the U.S. Supreme Court, where he also has been a primary author of more than 100 briefs.

Eric has particular proficiency in matters of technology and intellectual property. He regularly litigates novel issues concerning the regulation of the internet, including CDA Section 230, computer fraud, takedown notices, and internet domain names. He has been counsel in dozens of patent appeals in the Federal Circuit – litigating patents ranging from semiconductor construction, computer architecture, and genetic sequencing to tobacco curing, keyboard trays, and electrical junction boxes.

In addition to traditional appellate work, Eric has years of experience developing legal strategy in high-profile and complex cases in trial courts. Eric has performed this role in high-stakes multi-district litigation, criminal trials, and civil litigation involving critical dispositive motions.

Prior to joining Orrick, Eric was a partner in the appellate group at Sidley Austin. A former law clerk on the Ninth Circuit and the Central District of California, Eric has extensive experience in California state and federal appellate courts.

Cesar Lopez-Morales Partner, Supreme Court & Appellate

Washington, D.C.

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D:+1 202 339 8400
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Supreme Court & Appellate

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Cesar Lopez-Morales Partner

Washington, D.C.

Cesar serves as appellate counsel in high-stakes cases across an array of subjects, with a particular focus on the firm's technology and life sciences sectors. He is a skilled advocate who focuses on simplifying complex concepts and crafting a compelling story that frames factual and legal issues in a way that is more likely to produce favorable results for clients. Cesar routinely drafts briefs in federal and state courts of appeals and in the U.S. Supreme Court, and presents oral argument in federal and state appellate courts. He is also embedded at the trial level to brief dispositive motions and ensure that issues are preserved with an eye towards appeal.

Cesar's versatility allows him to tackle the most sophisticated and complex legal issues across a wide range of substantive areas, including constitutional and administrative law, statutory interpretation, complex commercial litigation, trade secrets, and federal preemption.

Before joining Orrick, Cesar was an attorney at the U.S. Department of Justice's Civil Division, Federal Programs Branch, where he represented the United States and its agencies in dozens of cases involving challenges to the legality of federal laws, actions, and programs. He argued and won dispositive motions in federal district courts nationwide. His experience included litigating cutting-edge matters involving the Appointments Clause; the Spending Clause; the Territory Clause; the First, Fifth, and Fourteenth Amendments; the separation of powers; the Administrative Procedure Act; the Federal Vacancies Reform Act; the Freedom of Information Act; and the Puerto Rico Oversight, Management, and Economic Stability Act.

He also maintains an active pro bono practice, representing immigrants and veterans in their appeals to the federal courts of appeals and filing amicus briefs in precedent-setting cases of public interest. He is especially passionate about advancing the rights of the residents in the U.S. territories.

Cesar served as a law clerk to Justice Sonia Sotomayor in the October 2023 Term, who he recently interviewed for the annual Shapiro Lecture at Boston University School of Law. He also clerked for Judge José A. Cabranes of the U.S. Court of Appeals for the Second Circuit and then-Presiding Judge of the U.S. Foreign Intelligence Surveillance Court of Review, Judge Rosemary M. Collyer of the U.S. District Court for the District of Columbia, and Judge Jay A. Garcia-Gregory of the U.S. District Court for the District of Puerto Rico.