Comcast Spectacor’s brief in opposition to Factory Mutual’s Sept. 14 motion to dismiss Spectacor’s complaint is due Dec. 1, and Factory Mutual’s reply brief in support of the motion to dismiss is due Dec. 22, said an order signed Monday (docket 2:23-cv-02476) by U.S. District Judge Harvey Bartle. Philadelphia Flyers owner Spectacor alleges Factory Mutual refuses to honor the terms of the property insurance policy the Flyers bought to protect against the type of “catastrophic loss” the team incurred when its games were canceled or curtailed at the Wells Fargo Center in 2020 and 2021 due to the COVID-19 pandemic (see 2306290001). The judge granted Spectacor’s motion to stay the case until the final resolution of two similar sports-insurance cases pending before the Pennsylvania Supreme Court (see 2310200011). Factory Mutual opposed the stay.

U.S. District Judge Edward Chen for Northern California in San Francisco ordered plaintiff Joel Fink to show cause by Thursday why his case against One Technologies shouldn’t be dismissed for failure to respond to the defendant’s motion to dismiss by the Oct. 25 deadline, said Chen’s signed order Friday (docket 3:23-cv-05086). Failure to respond to the show cause order will result in the immediate dismissal of Fink’s case with prejudice, said the judge. Fink alleges One Technologies, a consumer credit company, sent him at least 73 unsolicited and unlawful spam emails in violation of Section 17529.5 of the California Business and Professional Code (see 2310050001)

An arbitrator’s award in Amazon’s favor against former third-party Amazon seller Cowin Technology “must be vacated on the grounds that the decision is completely irrational” and that it “manifestly disregards the law,” said Cowin’s reply memorandum of law Tuesday (docket 1:23-cv-03054) in U.S. District Court for Southern New York in further support of its petition to vacate the arbitration award and in opposition to Amazon’s motion to confirm that award. Cowin is seeking to recover $1.09 million in sales proceeds that Amazon seized -- and the arbitrator let Amazon keep -- when Amazon deactivated Cowin’s account and accused the seller of violating its business solutions agreement (BSA) by manipulating product reviews (see 2305100001). The award also violates “strong public policy” by errantly ruling that Section 2 of the BSA “is a valid liquidated damage clause” and that it’s “enforceable,” said the reply memorandum. Liquidated damages clauses “often explicitly disclaim that the amount payable is a penalty or forfeiture,” it said. It’s “noteworthy” that what Amazon trumpets as a liquidated damages clause “fails to include those words,” it said. Nor does the clause “in any way take pains to distinguish the amount to be paid thereunder from a penalty or forfeiture,” it said. It also doesn’t allude “to the test for the validity of a liquidated damages clause, or explain how the parties’ relationship satisfies that test,” it said: “Indeed, the language does not even suggest, much less express, that the amount withheld and appropriated thereunder serves as compensation to Amazon.” Those “drafting deficiencies” raise the question of whether Amazon intended Section 2 of the BSA to serve as a liquidated damages clause, “or whether it now retrospectively and expediently characterizes the clause as such,” it said.

The 2nd U.S. Circuit Court of Appeals will dismiss the appeal of British filmmaker Joshua Newton against NBCUniversal Media and its former Vice Chairman Ronald Meyer, effective Nov. 14, if Newton doesn’t file his appellant brief and any required appendix by then, said a signed clerk’s order Tuesday (docket 23-994). Newton missed his Monday deadline for filing those submissions, after being granted a one-month extension on Sept. 28, and so the case now “is deemed in default,” said the order. No additional extension of time to file will be granted, it said. Newton is seeking to reverse the district court’s March 17 dismissal of his complaint against Meyer and NBCUniversal for breach of fiduciary duty, fraudulent inducement and negligent misrepresentation. The complaint alleges Meyer used his Hollywood connections to help Newton raise funding for the feature film he wrote, directed and co-produced, Nicole & O.J., about the O.J. Simpson murder case. All the while, said the complaint, Meyer was allegedly hiding inappropriate relationships that he and other Hollywood executives had with an actress who was the film's anticipated star. After details of those relationships became public, it said, all investor interest in Nicole & O.J. vanished, and the film remains unfinished and unreleased to this day.

Intelsat and SES agree that the 4th U.S. Circuit Appeals Court's Sept. 14 decision in Kiviti v. Bhatt doesn't come into play with SES' ongoing litigation against Intelsat regarding proceeds from their clearing of the C band, and the U.S. Bankruptcy Court's decision in Intelsat's favor in litigation brought by SES was final and thus could be appealed. That per a pair of docket 3:22-cv-668 position statements Monday filed with the U.S. District Court for the Eastern District of Virginia. The district court ordered Intelsat and SES last month to file briefs on whether the Kiviti decision affects whether the U.S. Bankruptcy Court decision in SES/Intelsat was appealable and whether the District Court's subsequent reversal and remand of that decision was within Article III jurisdictional constraints. It also asked for statements of position on attorneys fees. SES said that in Kiviti, the bankruptcy court's decision was not final, unlike the U.S. Bankruptcy Court decision in the Intelsat suit. SES said that while Intelsat's overall bankruptcy case was not closed until SES and Intelsat stipulated that it was, the SES appeal of the Bankruptcy Court decision could have gone forward regardless of the state of Intelsat's bankruptcy case. The Bankruptcy Court had the option of certifying its order disallowing SES’ relocation payment claims for immediate appeal if the order were considered interlocutory, SES said. It said the District Court's power over the appeal ended when it remanded the case back to U.S. Bankruptcy Court and the time to seek further review expired. Intelsat said the procedural closing of certain underlying bankruptcy cases was for administrative purposes and not related to the finality of the Bankruptcy Court’s order. It said the parties’ agreement to administratively reopen those underlying bankruptcy cases in the event of a remand also was procedural. Those procedural acts are different from what happened in Kiviti, where the parties agreed to conditional dismissal of unresolved substantive counts to create finality for appellate purposes, it said. Both satellite operators said there were no attorneys' fees issues for the District Court of Bankruptcy Court to decide.

Amazon has “benefitted greatly from Nokia’s innovations,” including being able to stream and capture high-quality video more efficiently and effectively, but it “has refused to take a license to any of Nokia’s essential patent claims,” alleges a Friday patent infringement lawsuit (docket 1:23-cv-01232) in U.S. District Court for Delaware in Wilmington. “Dozens” of companies have licensed Nokia’s essential patent claims “at rates that are reasonable and non-discriminatory [RAND],” but “despite multiple offers from Nokia, Amazon has refused to take a license to any of Nokia’s essential patent claims,” including the H.264 Advanced Video Coding Standard (H.264) and the H.265 High Efficiency Video Coding Standard (H.265), “some of the most widely used video decoding standards in the world," Nokia said. The Finland-based company contributed “numerous innovations” to the development of the H.264 and H.265 standards, which enable efficient and reliable video decoding in millions of devices, including smartphones, computers and tablets, it said. The video coding technologies enabled people to view broadcast programming and subscription video services, video conferencing and livestreaming on demand, it said. Nokia has a “large number of patent claims essential” to H.264 and H.265, and in accordance with ITU common patent policy, the company notified standard development participants that it “may obtain patents on its contributions” by submitting patent statement and licensing declarations to ITU in which it said it's prepared to grant licenses to the essential claims of the relevant patents on RAND terms and conditions. Nokia has been negotiating with Amazon to license various standard essential patent claims since 2009, originally focusing on cellular and Wi-Fi technologies and then shifting to Nokia’s patents relating to H.264 and H.265, the complaint said. In April 2015, Nokia informed Amazon it was infringing Nokia’s patents essential to H.264, but “Amazon would not agree to a license,” it said. In August 2020, Nokia sent Amazon a list of its video patents with a lump sum structure, including a past release and license; its offer was never accepted, said the complaint. In March 2021, Nokia presented a new offer, and discussions proceeded on an agreement covering only Amazon end-user products. After “many more negotiations,” Nokia counteroffered with a five-year license for video patents and cellular standard essential patents; the offer didn’t include a license for Prime Video, Amazon Web Services or other services. Though the parties appeared close to a deal, a license was never executed, Nokia said. Nokia made additional offers, including separate running royalty offers for Amazon’s video-related products and services, but “to this day, Amazon has not paid a single royalty for its infringement despite Nokia’s good faith efforts to negotiate,” it said. Nokia seeks a declaratory judgment that it has negotiated in good faith toward a license with Amazon and complied with its standards development obligations. Nokia also seeks legal costs and other equitable relief to which it is entitled. An Amazon spokesperson emailed Tuesday the company doesn't have "anything to share at this time."

Michigan First Credit Union is appealing to the 6th U.S. Court of Appeals the district court’s Sept. 29 order dismissing its Electronic Fund Transfer Act complaint against T-Mobile for failure to state a claim (see 2310020040), said the credit union’s notice of appeal Thursday (docket 2:22-cv-13159) in U.S. District Court for Southern Michigan in Detroit. Michigan First alleged T-Mobile left it holding the bag for $7.6 million in EFTA damages due to unauthorized SIM swaps committed under T-Mobile's watch, and it sued T-Mobile for reimbursement of those damages (see 2304030039). But U.S. District Judge Jonathan Grey held that because Michigan First isn’t one of the intended beneficiaries of the EFTA, and because the text and structure of the statute don’t support it, there’s “no express or implied cause of action for indemnification or contribution under EFTA.”

AT&T admits it previously operated two telecommunications cables, “portions of which remain in the waters of Lake Tahoe,” said its answer Wednesday (docket 2:21-cv-00073) in U.S. District Court for Eastern California in Sacramento to the California Sportfishing Protection Alliance’s Aug. 20 second amended complaint. The alliance alleges violations of the federal Resource Conservation and Recovery Act and of California’s Proposition 65. It seeks an order requiring AT&T to pay civil penalties of $2,500 a day retroactively to one year before the filing of the complaint, and continuing until AT&T "no longer causes lead to be released" from the cables into the waters of Lake Tahoe. AT&T admits that each cable “contains multiple layers of material, some of which serve a protective purpose,” said its answer, steering well clear of any acknowledgment that the cables have toxic-lead components, as the alliance alleges. AT&T admits the cables haven’t been “in operation for years, and that at least one end of one cable has been cut,” it said. The cables were installed and maintained “in conformity with applicable law” at the time, it said. Though denying the existence of “any discharge,” AT&T alleges any discharge of lead from the cables wouldn’t cause “any significant amount of lead to be released into any source of drinking water within the meaning of Proposition 65,” it said.

U.S. District Judge Michael Brown for Northern Georgia in Atlanta remanded plaintiff Mark Walters’ defamation complaint against OpenAI to Gwinnett County Superior Court where the case originated before OpenAI removed it July 14, said Brown’s signed order Wednesday (docket 1:23-cv-03122). Brown’s order denied as moot OpenAI’s motion to dismiss Walters' complaint and Walters’ motion for the recovery of court costs and attorneys’ fees. The remand stems from the judge's Sept. 22 order directing OpenAI to affirmatively identify by name each member of its LLC and then allege whatever specific facts were necessary to establish the citizenship of that member for the purpose of establishing subject-matter jurisdiction. OpenAI’s failure to do so by Oct. 6 would result in remand, said the judge’s order (see 2309250005). OpenAI responded that it was withdrawing its notice of removal because it wasn’t in a position “to provide further information beyond its prior filings.” Walters, a nationally syndicated talk show host, alleges OpenAI’s ChatGPT service defamed him to a reporter (see 2307240031).

Robert F. Kennedy Jr.’s attempts to “resuscitate” his First Amendment case against Google by “deflecting" O’Handley v. Weber, and "relying heavily on an out-of-circuit decision” in Missouri v. Biden, “fall well short" of establishing that Kennedy's is "one of the exceptional cases in which a private entity will be treated as a state actor for constitutional purposes,’” said Google’s reply (docket 3:23-cv-03880) Tuesday in support of its motion to dismiss Kennedy’s first amended complaint (FAC) in U.S. District Court for Northern California in San Francisco. Kennedy, an independent 2024 presidential candidate, sued Google in July (see 2308030049), alleging it censored his viewpoints on vaccines and other subjects under pressure from the Biden administration. Kennedy’s state action allegations in the FAC are based on the same essential allegations and documents submitted with the temporary restraining order (TRO), “which fail to state a plausible state action claim” under the U.S. 9th Circuit Court of Appeals’ binding case law in O’Handley v. Weber, Google said. Kennedy’s plea for discovery “is an admission that his allegations are deficient,” said Google. It cited Rutman Wine v. E. & J. Gallo Winery, in which the court said the purpose of Rule 12(b)(6) is to “enable defendants to challenge the legal sufficiency of complaints without subjecting themselves to discovery.” The court should not judge Kennedy’s “defective allegations by a relaxed standard simply because, in Kennedy’s view, the state action doctrine is a ‘fact intensive inquiry,’” said the reply. Courts “regularly and consistently dismiss similar claims asserting ‘state action’ on the pleadings and as a matter of law without permitting any discovery,” it said. Also, the reply said, the “significant amount of company correspondence and deposition transcripts Kennedy already has obtained from discovery in Missouri v. Biden—far exceeding what plaintiffs typically obtain prior to a motion to dismiss—belies Kennedy’s claim that further discovery in this case is likely to prove fruitful for him,” said the reply. The court reviewed those materials in ruling on Kennedy’s TRO application and “concluded they reflected little more than ‘consultation and information sharing’ between federal officials and Google and could not establish state action,” it said. Kennedy’s suggestion that there might be “yet additional documents beyond the many innocuous communications produced in Missouri is wishful thinking,” it said. Kennedy has given “no credible argument for avoiding section 230 immunity,” said the reply, saying, “well-established law makes it clear that Section 230 applies to claims like this one seeking to hold Google liable for its decision to remove certain content from its platform.” The court should grant Google’s motion to dismiss with prejudice, it said.