U.S. Magistrate Judge Thomas Hixson for Northern California in Oakland scheduled a remote discovery hearing for Wednesday at 10 a.m. PDT in the multidistrict litigation that seeks to hold the major social media companies accountable for adolescents’ mental health problems, said a text-only clerk’s notice Monday (docket 4:22-md-3047). Rule 502(d) discovery disputes abound between the sides, which is why they asked for a virtual hearing for the court to help resolve them, said the parties’ joint statement Friday. Rule 502(d) in federal courts preserves attorney-client privilege or work product doctrine protections for documents produced in discovery. The plaintiffs’ position is that their proposed discovery order “hews closely” to Rule 502(d) and the Northern District of California’s “model language,” said the statement. The plaintiffs think the defendants’ proposal “overreaches and unnecessarily creates opportunities for strategic, selective waivers,” it said. The defendants stand by their proposed discovery order as one that “seeks to establish a single, efficient procedure for resolving claw backs of any privileged or otherwise protected material disclosed in this case, while minimizing future disputes” over the scope or terms of discovery, said the statement. The defendants think their proposal doesn’t promote gamesmanship, but “reflects the practicalities of litigation,” it said.

Two private Facebook groups, called Wise Guys I and Wise Guys II, oppose Meta’s March 20 motion to dismiss their “viewpoint discrimination” complaint (see 2303210041), said their opposition Monday (docket 3:23-cv-00217) in U.S. District Court for Northern Texas in Dallas. The plaintiffs allege Meta “impermissibly censored” their content, in violation of their First Amendment rights and HB 20, the Texas social media law (see 2301300023). Their complaint is “facially plausible” because its claims against Meta allow the court “to draw the reasonable inference that Meta is liable for the misconduct alleged under HB 20,” said their opposition. The “gravamen” of the plaintiffs’ complaint for viewpoint discrimination “sets forth detailed allegations about Meta’s censorship” of the Wise Guys’ posts addressing COVID-19, it said. The allegations are far more than “threadbare,” as they reference statements made by Meta CEO Mark Zuckerberg, “which demonstrate Meta’s censorship of speech on Facebook,” it said.

The FTC and Walmart propose a May 8 deadline for the FTC to respond to Walmart’s motion to certify the court’s March 27 order denying in part Walmart’s motion to dismiss an FTC enforcement action for interlocutory appeal to the 7th Circuit U.S. Court of Appeals (see 2304130002), said their joint status report Monday (docket 1:22-cv-03372) in U.S. District Court for Northern Illinois in Chicago. Walmart’s reply brief would be due May 22, said the report. The case involves telemarketers who conned consumers into sending money using Walmart’s services. The FTC alleges Walmart knew it was processing fraudulent money transfers and failed to do enough to protect consumers. The FTC plans to file an amended complaint and proposes to do so by June 30, said the report. Walmart believes all case deadlines should remain stayed until after the court rules on Walmart’s motion seeking interlocutory appeal, it said. If the court and 7th Circuit grant Walmart’s request for interlocutory appeal, all case deadlines should remain stayed until after a ruling from the 7th Circuit, it said. In its motion, Walmart seeks interlocutory appeal of three questions, including whether the FTC has the constitutional authority “to bring this case,” said the status report. Resolution of the constitutional question in Walmart’s favor would be “case-dispositive, obviating the need for the FTC to file an amended complaint,” it said. Resolution of the other two questions in Walmart’s favor also would be case-dispositive, said the status report. The motion for interlocutory review asks whether Section 13(b) of the FTC Act requires the FTC to show “ongoing or imminent illegal conduct,” and whether Section 5 of the statute requires the FTC to show Walmart “violated established public policy or engaged in morally blameworthy conduct,” it said. Even if a ruling in Walmart’s favor on those two issues didn’t fully dispose of the case, “at minimum it would clarify the legal standard the FTC would have to satisfy in any amended complaint and narrow the scope of discovery if the case moves forward,” it said.

Michigan First Credit Union “has no claim for indemnification or contribution for liabilities that federal law specifically allocates to Michigan First, not T-Mobile,” said T-Mobile’s reply brief Friday (docket 2:22-cv-13159) in support of its motion to dismiss Michigan First’s first amended complaint. The credit union alleges the SIM-swaps that T-Mobile enabled among third-party bad actors left it holding the bag for $7.6 million in squandered funds it was required to replace in 2022 under the Electronic Fund Transfer Act (EFTA) (see 2304030039). But T-Motion urges the court to “reject Michigan First’s attempt to create first-of-its-kind indemnity and contribution rights in derogation of Congress’s statutory scheme,” said its reply brief. The court should also reject Michigan First’s attempt “to sidestep controlling federal law because it fails to allege any viable state claim,” it said. Michigan First “fails to meet its heavy burden to show a federal right to indemnity or contribution for its EFTA liabilities,” said T-Mobile. Michigan First doesn’t argue the EFTA “provides an express or common law right to indemnification or contribution and instead argues that the statutory framework of EFTA suggests Congress intended an implied right to bring such claims,” it said. There’s no basis for “grafting” a new implied right onto a 50-year-old statute, it said.

Apple seeks the dismissal of the class action that names 11 defendants and alleges the Biden administration colluded with social media to suppress right-leaning speech and content, said its motion Tuesday (docket 2:22-cv-09438) in U.S. District Court for Central California in Los Angeles. Nowhere in the plaintiffs’ 405-paragraph “airing of grievances is there even a kernel of a claim” against Apple, said the motion. The complaint “reveals a complete misunderstanding (or outright contortion) of the First Amendment and this nation’s bedrock anti-discrimination laws,” it said. There are no factual allegations that Apple “censored so much as a single word” of anyone’s speech, it said. Nor does the complaint “allege any instance of Apple unlawfully discriminating against anyone, let alone a protected class of speakers, voters, or consumers,” it said. There also are no allegations “causally connecting any alleged wrongful conduct by Apple to any cognizable injury” suffered by any plaintiff, it said. Because the plaintiffs fail to demonstrate Article III standing, “every cause of action against Apple should be dismissed with prejudice,” it said. The complaint comes nowhere close “to alleging facts sufficient to transform Apple from a private company into a federal government actor,” which forecloses the plaintiffs’ First Amendment claim, it said. Section 230 of the Communications Decency Act bars each of the plaintiffs’ claims because the complaint “admittedly seeks to hold Apple liable for its supposed publication decisions concerning third-party content,” it said.

The clerk of the Judicial Panel on Multidistrict Litigation signed a conditional order Wednesday transferring nine more social media addiction class actions for pretrial consolidation under U.S. District Judge Yvonne Gonzalez Rogers for Northern California in Oakland. The JPML transferred 20 class actions to Rogers Oct. 6, and 51 more up until Wednesday’s order, it said. The order is stayed for seven days once it’s filed with the clerk in the Northern District of California.

The FCC Media Bureau’s analysis of the retransmission consent issues of the Standard/Tegna deal “was entirely consistent with its delegated authority” and agency past practice, said the American Television Alliance in an amicus brief filed in U.S. Court of Appeals for the D.C. Circuit docket 23-1084 Wednesday. ATVA sought permission to file the brief late Tuesday. “The record in this proceeding strongly supports the challenged Hearing Order,” ATVA said. The broadcasters “have the law backward,” ATVA said. “It is not arbitrary and capricious to consider such potential consumer price increases under the ‘public interest’ standard, but, at least in some circumstances, it might be arbitrary and capricious to decline to do so.” A response from the broadcasters defending their request for a writ of mandamus is expected Friday.

Voyager Labs plans to file a motion soon to dismiss Meta’s complaint alleging the U.K. company’s data-scraping activities violate Meta’s terms of service (see 2301130044), said a joint case management statement Tuesday (docket 4:23-cv-00154) in U.S. District Court for Northern California in Oakland. Voyager denies having scraped data from Facebook or Instagram, and believes Meta’s complaint “was not borne out of genuine concern about the alleged data scraping” but rather “as part of a public relations campaign,” said the statement. Meta has been aware of the Voyager software at issue for more than seven years, “at least through direct, in-person meetings involving the highest echelons of Meta’s predecessor-in-interest, Facebook,” including with CEO Mark Zuckerberg, it said. Meta asserts it “devotes substantial resources to combating unauthorized scraping” by entities like Voyager, and that its legal counsel has put Voyager “on notice” since at least October 2017 to cease its unauthorized activity, said the statement.

The plaintiffs in the case against Jacob Wohl and Jack Burkman for their roles in the threatening and intimidating robocall to suppress Black citizens' mail-in votes in the 2020 election want U.S. District Judge Victor Marrero for Southern New York to schedule a trial to begin no earlier than July 5, “but as soon thereafter as is convenient” to the court, their counsel wrote Marrero in a letter Tuesday (docket 1:20-cv-08668). The letter didn’t say whether the plaintiffs would prefer a jury or a bench trial, though the attorney for Wohl and Burkman recently told the judge his clients would “insist” on a jury trial (see 2304070020). The plaintiffs want Marrero to defer briefing on injunctive relief until after trial, said their letter.

Plaintiff Robert Graham’s claims are subject to binding arbitration, said defendant American Express in its answer to Graham’s complaint Friday (docket 1:22-cv-05155) in U.S. District Court for Northern Georgia in Atlanta. Graham alleges AT&T’s handset upgrade exchange program was a “bait-and-switch scheme” and that American Express was AT&T’s billing agent in the allegedly unlawful conduct (see 2303310046).