IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

CONSUMER CELLULAR, INCORPORATED, 

Plaintiff, 

v. 

CONSUMERAFFAIRS.COM, CONSUMERS 

UNIFIED, LLC, and DAVID ZACHARY CARMAN, 

Defendants. 

PAP AK, Magistrate Judge: 

3: 15-CV-1908-PK 

OPINION AND 

ORDER 

Plaintiff Consumer Cellular, Inc. ("CCI"), filed this action against defendants 

ConsumerAffairs.com. Inc. ("ConsumerAffairs"), Consumers Unified, LLC ("Consumers 

Unified"), and David Zachary Carman in the Multnomah County Circuit Court on August 19, 

2015. Defendants removed CCI's action to this court effective October 9, 2015, on the basis of 

both diversity and federal question jurisdiction. 

Plaintiff CCI is a mobile virtual network operator providing cellphone service to its 

customers. Defendant ConsumerAffairs operates a consumer review website hosting consumer 

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reviews regarding a large number of products and brands. Defendant Consumers Unified is a 

closely related affiliate of ConsumerAffairs, and defendant Carman is the principal of· both 

corporate defendants. By and through its complaint as filed in the Multnomah County comi, CCI 

alleges that defendants improperly manipulated both the content and the presentation of 

consumer reviews on the ConsumerAffairs website in order to provide a significant competitive 

advantage to product manufacturers and service providers who pay a large monthly fee to 

defendants, relative to manufacturers and providers who decline to pay such fees. Arising out of 

the foregoing, CCI alleges defendants' liability (i) for violation of Oregon's Unlawful Trade 

Practices Act (the "UTP A"), (ii) for intentional interference with prospective economic relations 

under Oregon common law, (iii) for conduct of or paiiicipation in an enterprise engaged in wire 

fraud and extortion in violation of the federal Racketeer Influenced and Conupt Organizations 

Act ("RICO"), and (iv) for defamation under Oregon common law. CCI seeks monetary 

damages in the approximate amount of $5 million, equitable relief under the UTP A, treble 

damages under RICO, and award of its fees and costs. This court has federal-question 

jurisdiction over CCI's RICO claim pursuant to 28 U.S.C. § 1331 and may properly exercise 

supplemental jurisdiction over CCI's state-law claims pursuant to 28 U.S.C. § 1367; in addition, 

it appears likely' that the comi may properly exercise diversity jurisdiction over CCI's action 

pursuant to 28 U.S.C. § 1332(a) based on the apparently complete diversity of the parties and the 

amount in controversy. 

1 Defendants have filed a Corporate Disclosure Statement on behalf of Consumers 

Unified (a limited liability corporation), by and through which they assert that Consumers 

Unified is a citizen of "Delaware, Virginia, Florida, New Mexico, Massachusetts, Colorado, 

California, Nevada, and Oklahoma." Defendants do not otherwise disclose the identities or 

citizenship of the members of Consumers United. 

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On February 29, 2016, I recommended denial ofa special motion to strike and 

constructive alternative motion to disiniss filed by defendants as to all of CCI's claims. On June 

2, 2016, Judge Brown adopted my recommendations without modification. On June 22, 2016, 

defendants appealed this court's denial of their motion to the extent the court declined to strike 

CCI's Unlawful Trade Practices, intentional interference, and defamation claims, without 

appealing the court's disposition of the motion to the extent it addressed CCI's federal RICO 

claim. 

Now before the court is defendants' motion (#52) for stay of further proceedings in 

connection with CCI's RICO claim pending disposition of defendants' pending appeal. I have 

considered the motion, oral argument on behalf of the parties, and all of the pleadings and papers 

on file. For the reasons set fotih below, defendants' motion is denied. A scheduling conference 

will be set for the purpose of setting a schedule for further proceedings in connection with CCI's 

RICO claim. 

LEGAL STANDARD 

"A district co mi has inherent power to control the disposition of the causes on its docket 

in a manner which will promote economy of time and effort for itself, for counsel, and for 

litigants." Civ!AX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962); see also Clinton v. Jones, 520 

U.S. 681, 706 (1997) ("The District Cami has broad discretion to stay proceedings as an incident 

to its power to control its own docket."). The district courts are specifically authorized by statute 

to exercise their discretion to stay proceedings in connection with claims over which they have 

continuing jurisdiction during the pendency of an interlocutory appeal from disposition of other 

claims brought as pmi of the same action. See 28 U.S.C. § 1292(b). When considering whether 

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to exercise their discretion to stay proceedings, the district courts should consider "the possible 

damage which may result from the granting of a stay, the hardship or inequity which a party may 

suffer in being required to go forward, and the orderly course of justice measured in terms of the 

simplifying or complicating of issues, proof, and questions of law which could be expected to 

result from a stay." Clv!AX, 300 F.2d at 268, citing Landis v. N Am. Co., 299 U.S. 248, 254-255 

(1936). 

IVIATERIAL FACTS 

I. The Parties 

Plaintiff CCI is a mobile virtual network operator providing cellphone service to its 

customers. CCI is headqumiered in Oregon and organized under Oregon law. 

Defendant ConsumerAffairs operates a website hosting consumer reviews of a variety of 

products, brands, and services. ConsumerAffairs is organized under Nevada law and appears to 

be headquartered in Oklahoma. Defendant Consumers Unified is a closely related affiliate of 

ConsumerAffairs, is organized under Nevada law, and apparently has members who are citizens 

of California, Colorado, Delaware, Florida, Massachusetts, Nevada, New Mexico, Oklahoma, 

and Virginia. Defendant Cmman is the principal of both corporate defendants, and is a citizen of 

Oklahoma. 

II. Relevant Procedural History 

As noted above, on June 22, 2016, defendants appealed this court's denial of their motion 

to strike CCI's state-law claims, without appealing this court's denial of their motion to strike or 

constructive alternative motion to dismiss CCI's federal RICO claim. On July 1, 2016, the Ninth 

Circuit directed the pmiies to attend a mediation assessment conference on August 3, 2016. 

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Case 3:15-cv-01908-PK Document 65 Filed 09/26/16 Page 4 of 17
On July 29, 2016, CCI served a request for production of documents on the defendants in 

connection with the proceedings before this comi, seeking discovery relevant to its RICO claim. 

The deadline for defendants' response to CCI's discovery requests was September 1, 2016. 

On August 3, 2016, the pmiies pmiicipated in the mediation assessment conference 

ordered by the Ninth Circuit, and thereafter began mediation negotiations which continued 

through August 25, 2016. 

On August 9, 2016, defendants filed their motion (now before the court) to stay further 

proceedings in connection with CCI's RICO claim pending disposition of their appeal regarding 

the denial of their motion to strike CCI's state-law claims. 

On August 24, 2016, the parties confened regarding the possibility of extension of 

defendants' deadline for responding to CCI's discove1y requests, and CCI advised defendants, as 

it had done on several previous occasions (beginning in late June), that it would not agree to an 

extension of greater than a few days absent defendants' agreement to a stipulation that the pmiies 

have declined to describe to the court. 

On August 26, 2016, defendants moved for extension of time for their response to CCI's 

discovery request to a date to be determined at the time this court decides the motion to stay now 

before the comi. These chambers granted defendants' motion for extension of time effective 

August 31, 2016. 

ANALYSIS 

The parties are in agreement that, pending defendants' interlocutory appeal (and/or the 

Ninth Circuit's detennination whether it has jurisdiction to consider defendants' interlocutmy 

appeal), further proceedings in connection with CCI's state-law claims either have been stayed 

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automatically or should be stayed in this court's discretion. In addition, CCI is willing to 

stipulate to stay of trial of its federal RICO claim pending disposition of defendants' appeal. 

Thus, the only matter currently in contention is whether, in light of defendants' pending appeal, 

this court should stay fmiher pretrial proceedings in connection with CCI's federal RICO claim, 

and defendants' motion (#52) is granted in pmi, to the limited extent it addresses trial of CCI's 

RICO claim. 

The pmiies are fmiher in agreement that defendants' motion for stay of these proceedings 

is governed by the four-factor test traditionally applied to stay of enforcement of judgments or 

orders during the pendency of an appeal, articulated by the Supreme Court in such cases as 

Hilton v. Braunskill, 481 U.S. 770 (1987), and Nken v. Holder, 556 U.S. 418 (2009). I am not 

persuaded that the pmiies have identified the appropriate test. First, the Hilton/Nken test has 

traditionally been applied, not to stay of further proceedings in connection with claims remaining 

within the jurisdiction of a district court during the pendency of an interlocuto1y appeal from 

disposition of other, separate claims, but rather to stay of enforcement of the particular judgment 

or order under pending appeal. See Hilton, 481 U.S. at 776 (applying test to stay of enforcement 

of an order pending appeal therefrom); Nken, 556 U.S. at 434 (same); see also, e.g., Lair v. 

Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) (applying test to stay of enforcement of an 

injunction pending appeal therefrom); Leiva-Perez v. Holder, 640 F.3d 962, 963 (9th Cir. 2011) 

(applying test to stay of enforcement of an order for removal of an immigrant pending appeal 

therefrom). I am unaware of any decision of the Supreme Court or of the Ninth Circuit applying 

the Hilton/Nken test to the question whether an entire action should be stayed pending 

interlocuto1y appeal from disposition of a discrete issue, resolution of which did not have the 

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potential either to resolve the action in its entirety or to deprive the district court of jurisdiction 

over the action in its entirety. 

Second, the Hilton/Nken test appears on its face to be plainly inapposite in the context of 

interlocutory appeals from orders resolving fewer than all claims asserted in an action. The test 

requires the comis to weigh four factors as follows: "(1) whether the stay applicant has made a 

strong showing that [it] is likely to succeed on the merits; (2) whether the applicant will be 

irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the 

other pmiies interested in the proceeding; and (4) where the public interest lies." Nken, 556 U.S. 

at 434, quoting Hilton, 481 U.S. at 776. Plainly, in the context of interlocutory appeals 

resolution of which will not resolve claims that remain before the district comi, the question 

whether the appeal is or is not likely to succeed on its merits is simply immaterial to the question 

whether it could be proper to stay proceedings in connection with the remaining claims. Here, 

CCI asse1is that the first factor should be construed as relevant only to the extent that resolution 

of the interlocutory appeal could resolve all or part of the remaining claim; while I agree with 

CCI that, as a matter of logic, such a construction could be reasonable, I find no cases applying 

any such construction to the first Hilton/Nken factor. 

At least one cou1i has found, as I do, that the Hilton/Nken test is properly interpreted as 

inapplicable in the context of an interlocutory appeal taken from a "discrete" ruling lacking 

potential to resolve all claims at issue in an action. See Am. Hotel & Lodging Ass'n v. City of 

L.A., Case No. CV 14-09603-AB, 2015 U.S. Dist. LEXIS 177943, *5-8 (D. Cal. Nov. 5, 2015). 

The Am. Hotel comi declined to apply the Hilton/Nken test under such circumstances, and 

elected instead to apply the "same test used in determining whether to stay actions pending 

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interlocutmy appeals ce1iified under 28 U.S.C. § 1292(b)-namely, ... whether (1) resolution by 

the Ninth Circuit of the issue addressed in the appealed order could materially affect this case and 

advance the ultimate termination of litigation and (2) whether a stay will promote economy of 

time and effmi for the Court and the pmiies." Id. at *7 (citations, internal quotation marks, and 

internal modifications omitted). I agree with the Am. Hotel court that the Section 1292(b) test 

appears both applicable and appropriate in the context of interlocutory appeals such as 

defendants'. In addition to the Section 1292(b) test identified by the Am. Hotel court, the courts 

of the Ninth Circuit traditionally consider the factors discussed by the Landis comi, supra, as 

applicable generally to motions for stay of proceedings, namely "the possible damage which may 

result from the granting of a stay, the hardship or inequity which a party may suffer in being 

required to go forward, and the orderly course of justice measured in tenns of the simplifying or 

complicating of issues, proof, and questions of law which could be expected to result from a 

stay." C]vJAX, 300 F.2d at 268, citing Landis, 299 U.S. at 254-255. 

Although I find, for the reasons discussed above, that the appropriate factors to be 

considered in the exercise of the court's discretion whether or not to grant the stay requested here 

are those of the Am. Hotel/Section 1292 test considered together with those of the Landis/C2vJA)( 

test, in fact the same conclusion obtains whether the cou1i applies the Am. Hotel/Section 1292 

test, the Landis/C1\1AX test, the Hilton/Nken test, or any combination thereof. 

Considering first the Landis!C1VJA)( factors, I agree with CCI that in the event the 

requested stay were granted, CCI would suffer prejudicial harm in that it would continue to be 

subjected to ongoing injmy to its business interests in consequence of defendants' complained-of 

business model while being deprived of any recourse or oppo1iunity to mitigate that injmy at any 

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Case 3:15-cv-01908-PK Document 65 Filed 09/26/16 Page 8 of 17
time during the pendency of the defendants' interlocuto1y appeal, whereas if the stay were not 

granted CCI would have the opportunity both to make progress in litigating its RICO claim 

during the pendency of the appeal and to seek summary adjudication of its RICO claim, 

potentially thereby obtaining relief from defendants' complained-of business practices. 

I fmther agree with CCI that the hmm defendants asse11 that they would suffer if the stay 

were not granted - namely being required to participate in discove1y and other litigation 

notwithstanding the immunity to suit to which they argue they are entitled under Oregon's 

anti-SLAPP statute, and notwithstanding the possibility they assert exists that resolution of the 

pending appeal could foreclose any finding of defendants' liability on CCI's RICO claim - does 

not under the circumstances constitute inequity or undue hardship. I flatly reject the argument 

that there exists any public policy to immunize defendants from the need to litigate a federal 

claim alleged against them; as defendants are fully aware, Oregon's anti-SLAPP statute is simply 

inapplicable to federal claims, see Hilton v. Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010), 

and defendants are not entitled to circumvent the inapplicability of the statute itself to federal law 

by applying its underlying public policy rationale to achieve the same impermissible result. 

Moreover (as will be discussed in greater detail below), because there is little practical chance 

that even if defendants prevail in connection with their pending appeal the Ninth Circuit's ruling 

would entirely foreclose the possibility of defendants' liability in connection with CCI's RICO 

claim, and because defendants have not shown and cannot show that they are highly likely to 

prevail in connection with their pending appeal, the possibility that fi.uther pretrial proceedings in 

connection with CCI's RICO claim could ultimately prove to have been entirely superfluous in 

light of the Ninth Circuit's decision on appeal is simply too attenuated to constitute significant 

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support for defendants' argument in favor of the requested stay. 

Finally, I further agree with CCI that delay of discovery pending the outcome of 

defendants' interlocuto1y appeal would tend to frustrate the orderly course of justice, in that 

witness mem01y could be expected to fade during the period of such delay, the likelihood that 

evidence could be lost would necessarily increase at least marginally in consequence of such 

delay, and final resolution of the claim would inevitably be delayed. The Landis/Ck/AX factors 

thus collectively weigh against granting the requested stay. 

Considering next the Am. Hotel/Section 1292 factors, I agree with the defendants that 

there exists a possibility that the Ninth Circuit's resolution of the pending interlocut01y appeal 

could materially impact CCI's RICO claim and could advance the tennination of proceedings in 

connection with that claim. That is, it is logically possible that the Ninth Circuit could hold (for 

example) that defendants' alleged conduct in misrepresenting to the public that its posted "overall 

satisfaction rating" for CCI's services was an average of all consumer ratings of CCI's services in 

defendants' webpages, when in fact defendants removed or suppressed positive reviews before 

averaging the consumer-submitted ratings, was protected free speech under Section 230 of the 

Communications Decency Act (the "CDA") and not independently wrongful. In that event, 

because it would (presumably) be the law of the case that defendants' alleged systematic 

suppression of positive reviews was a proper exercise of their editorial function as curators of 

consumer product and service ratings and reviews, CCI's RICO claim would be subject to 

dismissal under Federal Civil Procedure Rule 12(b)(6) for failure to state a claim, in that 

defendants' alleged predicate acts of wire fraud would not have involved any false or fraudulent 

pretenses, representations, or promises, and would therefore not supp01i the RICO claim, see 18 

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Case 3:15-cv-01908-PK Document 65 Filed 09/26/16 Page 10 of 17
U.S.C. §§ 1343, 1962, and defendants' alleged predicate acts of ext01iion would not have 

involved any improper threat to hmm CCI or its prope1iy, and likewise would not support the 

RICO claim, see Or. Rev. Stat.§ 164.075, 18 U.S.C. §§ 196l(l)(A), 1962. 

However, I agree with CCI that the likelihood of such an outcome is remote. As the 

Ninth Circuit recently affirmed, "Section 230(c)(l) of the CDA 'only protects from liability (1) a 

provider or user of an interactive computer service (2) whom a plaintiff seeks to treat, under a 

state law cause of action, as a publisher or speaker (3) of info1mation provided by another 

information content provider."' Kimzey v. Yelp! Inc., Case Nos. 14-35487, 14-35494, 2016 U.S. 

App. LEXIS 16665, *9 (9th Cir. Sep. 2, 2016), quoting Barnes v. Yahoo!, Inc., 570 F.3d 1096, 

1100-110 I (9th Cir. 2009). The Kimzey court noted that the plaintiff before it had failed 

affomatively to allege that the defendant had authored its own purpo1ied consumer reviews, had 

made a material contribution to authoring purp01ied consumer reviews, or had modified thirdparty-generated reviews so as to render them misleading, and instead had alleged only facts 

tending to indicate that the defendant either located consumer-authored reviews elsewhere and 

elected of its own initiative to host such reviews on its own pages or in some sense adopted thirdpaiiy reviews as its own by creating a "star" rating system, encouraging consumers to generate 

"star" ratings, and calculating and displaying the average of all such ratings. See id. at * 10-17. 

Indeed, the Kimzey court expressly acknowledged that the "case [wa]s in some sense a simple 

matter of a complaint that failed to allege facts sufficient to state a claim that is plausible on its 

face." Id. at *4. Here, by contrast, CCI expressly alleges that defendants affirmatively 

suppressed positive consumer ratings of its services before averaging the ratings provided by 

other consumers, while hiding this fact from the public, such that their posted "overall 

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satisfaction rating" of CCI's services was a knowing misrepresentation calculated to denigrate the 

quality of CCI's services in the eyes of the public, and such that the posted reviews created a 

misleading impression of consumer opinion. This is precisely the sort of conduct the Kimzey 

court identified as sufficient to survive a motion to dismiss premised on application of Section 

230. See id. at *9-17. Because the Ninth Circuit has expressly indicated that conduct of the kind 

alleged herein is not protected speech under the CDA, it appears vanishingly unlikely that the 

Ninth Circuit will resolve defendants' pending appeal with a ruling that forecloses the possibility 

that defendants could be liable in connection with CCI's RICO claim. 

Because it is logically possible but highly unlikely that resolution of the appeal could 

materially impact disposition of the remaining RICO claim, I find that the first of the Am. 

Hotel/Section 1292 factors weighs in favor of granting the requested stay, but only marginally. 

For much the same reasons discussed above in connection with the Landis!ClvlAX factors, 

however, the second of the Am. Hotel/Section 1292 factors weighs significantly more strongly 

against granting the requested stay. Necessarily, to grant the stay would have a tendency to slow 

resolution of the RICO claim, would create a risk of fading witness memmy, and would increase 

the difficulty of retaining all material physical evidence. Moreover, the risk of duplicative 

pretrial efforts is minimal, in that discovery exchanged in connection with the RICO claim is 

discove1y that need not be exchanged in connection with CCI's state-law claims should those 

claims continue viable following resolution of the pending appeal, such that separate pretrial 

litigation of the federal claim and the state-law claims is not expected to require duplication of 

effort. 

For all the foregoing reasons, the Am. Hotel/Section 1292 factors weigh against granting 

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the requested stay, whether considered in isolation or together with the Landis/C1\IA){ factors. 

On that basis, I find that it would be inappropriate to exercise the court's discretion to stay further 

pretrial proceedings in connection with the RJCO claim pending disposition of defendants' 

pending appeal. Defendants' motion (#52) for stay is therefore denied to the extent it addresses 

pretrial proceedings in connection with CCI's RJCO claim. 

As stated above, I reach the same conclusion on the arguendo assumption that the 

Hilton/Nken factors govern this cou1i's discretion in connection with defendants' motion. In 

connection with the Hi/ton!Nken test, the Ninth Circuit has found as follows: 

A stay is not a matter of right. It is instead 'an exercise of judicial discretion' that 

'is dependent upon the circumstances of the particular case."' Nken [v. Holder], 

556 U.S. [418,] 433 [(2009)](internal citations omitted) (quoting Virginian Ry. 

Co. v. United States, 272 U.S. 658, 672-73, 47 S. Ct. 222, 71 L. Ed. 463 (1926)). 

Judicial discretion in exercising a stay is to be guided by the following legal 

principles, as distilled into a four factor analysis in Nken: "(1) whether the stay 

applicant has made a strong showing that he is likely to succeed on the 

merits; (2) whether the applicant will be irreparably injured absent a stay; 

(3) whether issuance of the stay will substantially injure the other parties 

interested in the proceeding; and (4) where the public interest lies." Id. at 434 

(citing Hilton v. Braunskill, 481 U.S. 770, 776, 107 S. Ct. 2113, 95 L. Ed. 2d 724 

(1987)). "The paiiy requesting a stay bears the burden of showing that the 

circumstances justify an exercise of [the court's] discretion." Id. at 43 3-34. 

Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) (footnote, internal modifications omitted; 

emphasis supplied). In connection with the Hilton/Nken test, the stay inquiry is "flexible" and 

requires the courts to balance the four factors. Leiva-Perez v. Holder, 640 F.3d 962, 964-966 

(9th Cir. 2011) (per curiam); see also Hilton v. Braunskill, 481 U.S. 770, 777-779 (1987); 

Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011 ); Abbassi v. INS, 

143 F.3d 513, 514 (9th Cir. 1998). 

The first two factors of the traditional standard are the most critical. It is 

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not enough that the chance of success on the merits be "better than 

negligible." Sojinet v. INS, 188 F.3d 703, 707 (CA7 1999) (internal quotation 

marks omitted) .... By the same token, simply showing some "possibility of 

irreparable injury," Abbassi v. INS, 143 F.3d 513, 514 (CA9 1998), fails to 

satisfy the second factor. As the Court pointed out earlier this Term, the 

'"possibility' standard is too lenient." Winier, supra, at_, 129 S. Ct. 365, 172 L. 

Ed. 2d 249. 

Nken, 556 U.S. at 434 (emphasis supplied). The Lair court discussed the first of the Hilton/Nken 

factors as follows: 

Regarding the first factor, Nken held that it is not enough that the likelihood of 

success on the merits is "better than negligible" or that there is a "mere possibility 

of relief." Id. (internal quotation marks omitted). Since Nken did not specify "the 

exact degree of likely success that stay petitioners must show, ... courts routinely 

use different formulations to describe this [factor]." Leiva-Perez v. Holder, 640 

F.3d 962, 966 (9th Cir. 2011) (per curiam). We have concluded that many of 

these formulations, including "reasonable probability," "fair prospect," 

"substantial case on the merits," and "serious legal questions ... raised," are 

largely interchangeable. Id at 967-68. All of these foimulations indicate that, "at 

a minimum," a petitioner must show that there is a "substantial case for relief on 

the merits." Id. at 968. The standard does not require the petitioners to show that 

"it is more likely than not that they will win on the merits." Id. at 966. 

Lair, 697 F.3d at 1204 (modifications original). 

In connection with the first of the Hilton/Nken factors, defendants argue that their 

pending appeal raises serious legal questions giving rise to a substantial case for relief, noting in 

support that this court's disposition of defendants' special motion to strike rested in part on a 

constrnction of the tort of intentional interference with prospective economic relations as to 

which the Oregon cases to not provide significant helpful guidance, and in part on a construction 

of the UTP A in which the cases likewise do not provide definitive guidance. I agree with the 

defendants that its appeal raises serious legal questions as to these issues, superficially satisfying 

the first factor, but to the extent defendants rely on these matters to satisfy the first factor I give 

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that factor the absolute minimum of weight due to the fact that resolution of defendants' appeal 

on the basis of either of these legal issues would have no impact whatsoever on disposition of 

CCI's RICO claim. 

Defendants additionally argue that their pending appeal raises serious legal issues in 

connection with Section 230 of the CDA. As discussed above in connection with the first of the 

Am. Hotel/Section 1292 factors, I agree that if defendants were to prevail on appeal on the basis 

of their Section 230 argument, disposition of the RICO claim could be significantly impacted. 

However, also as discussed above, I find that the possibility that defendants could prevail in 

connection with that argument is remote at best. On the basis of the foregoing findings, i 

conclude that the first of the Hilton/Nken factors weighs in favor of granting the requested 

appeal, but only marginally. 

The Lair court discussed the second of the Hilton/Nken factors as follows: 

Nken held that the second stay factor, "whether the applicant will be i11'eparably 

injured absent a stay," requires more than "some possibility of irreparable injury." 

Nken, 556 U.S. at 434-35 (internal quotation marks omitted). But, in contrast to . 

the first factor, we have interpreted Nken as requiring the applicant to show under 

the second factor that there is a probability of i11'eparable injury if the stay is not 

granted. Leiva-Perez, 640 F.3d at 968 (explaining that while the first factor asks 

"whether the stay petitioner has made a strong argument on which he could win," 

the second factor asks us to "anticipate what would happen as a practical matter 

following the denial of a stay"). In analyzing whether there is a probability of 

irreparable injury, we also focus on the individualized nature of irreparable haim 

and not whether it is "categorically irreparable." Id. at 969 (quoting Nken, 556 

U.S. at 435). 

Id. at 1214. As noted above, defendants argue in connection with the second factor that litigation 

of the RICO claim in parallel with their appeal from this court's disposition of their special 

motion to strike would i11'eparably injure them by subjecting them to suit notwithstanding the 

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immunity to suit to which they argue they are entitled under Oregon's anti-SLAPP statute. As 

discussed above, I flatly reject that argument on Erie grounds: defendants have no entitlement to 

immunity in connection with a federal claim brought in federal court. Also as noted above, 

defendants argue that engagement in the discove1y process during the pendency of their appeal 

would constitute irreparable inju1y, but because the possibility that exchange of discovery might 

ultimately prove to have been unnecessary is remote, that possibility is insufficient to satisfy the 

second factor, which requires a "probability" of injury that is "categorically irreparable. Id The 

second factor therefore weighs strongly against granting the requested stay. 

The Lair court discussed the third and fourth of the Nken!Hilton factors as follows: 

Finally, Nken explained that the last two factors of the test require us to weigh the 

public interest against the harm to the opposing pmiy. Nken, 556 U.S. at 435; see 

also Leiva-Perez, 640 F.3d at 964-66 (holding that the stay inquity is "flexible" 

and involves an equitable balancing of the stay factors). In doing so, we again 

consider "the pmiiculars of each individual case." Leiva-Perez, 640 F.3d at 970 

(citing Nken, 556 U.S. at 436). 

Id at 1215. As discussed above, I have found that ifthe stay were granted the result would be 

substantial injury to CCI, which would continue to be subjected to ongoing injury from 

defendants' complained-of business model, and which would face the risk of impaired witness 

mem01y and an increased risk of lost evidence. The third factor therefore weighs against 

granting the requested stay. 

As to the fomih factor, I find that the public has a valid interest in the speedy resolution 

of claims on the basis of reliable evidence, and that the public has a further valid interest in 

having trustworthy reviews on consumer ratings websites. Each of these interests weighs against 

granting the requested stay. 

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Weighing the four Nken/Hilton factors as directed by the Ninth Circuit, I find that they 

collectively mitigate against granting the requested stay. I would therefore deny defendants' 

motion (#52) for imposition of a stay to the extent it addresses pretrial proceedings in connection 

with CCI's RlCO claim, even on the arguendo assumption that the court's judgment in 

connection with defendants' motion is properly guided by the Nken/Hilton factors. 

CONCLUSION 

For the reasons set forth above, defendants' motion (#52) to stay these proceedings is 

granted as to trial of CCI's RICO claim and denied as to pretrial proceedings in connection with 

CCI's RlCO claim. No trial date will be set for CCI's RICO claim at any time prior to disposition 

of defendants' pending interlocut01y appeal. 

Dated this 26th day of September, 20 

~-Honorable ~~~­ Paul Papak 

United States Magistrate Judge 

Page 17 - OPINION AND ORDER 

Case 3:15-cv-01908-PK Document 65 Filed 09/26/16 Page 17 of 17