MGM Resorts International’s complaint against the FTC for pre-enforcement declaratory relief fails “for lack of subject matter jurisdiction and for failure to state a claim for relief,” said the commission’s memorandum Monday (docket 1:24-cv-01066) in U.S. District Court for the District of Columbia in support of its motion to dismiss. The FTC’s April 1 order denying MGM's petition to quash a civil investigative demand (CID) “unlawfully deprives MGM of its rights under the Fifth Amendment,” alleges MGM’s April 15 complaint (see 2404160035).The CID requested information as part of a nonpublic investigation involving MGM's September data breach. The suit also seeks to disqualify FTC Chair Lina Khan's participation in the investigation. But the court lacks subject-matter jurisdiction over MGM’s claims because Congress set forth in the FTC Act “a comprehensive and exclusive scheme for judicial review of agency actions,” said the commission’s memorandum. Under that scheme, MGM may raise its claims in a court of appeals only following a final commission cease and desist order, or in the commission’s enforcement petition currently before the U.S. District Court for the District of Nevada, it said. MGM also fails “to invoke a cognizable cause of action or state a plausible claim for relief,” said the memorandum. The Declaratory Judgment Act doesn’t supply an independent cause of action, and the Administrative Procedure Act provides a cause to challenge only final agency actions, it said. “MGM challenges no such actions,” it said. “Nor does the Constitution provide a cause of action here,” it said. “Where Congress has provided adequate statutory means for a person’s claims and remedies concerning agency action, a duplicate constitutional cause of action that evades statutory limits and requirements may not be judicially implied,” it said. MGM’s complaint also fails to allege a plausible claim for relief, said the memorandum. Its claim that the FTC Chair Khan should be disqualified from this matter “ignores applicable legal standards and is grounded in an impermissibly tenuous allegation of potential bias,” it said. Khan happened to stay at an MGM hotel shortly after MGM’s most recent data breach “and needed to provide her credit card information on paper,” it said. But that “threadbare” allegation doesn’t support “a plausible claim for bias that would warrant disqualification,” it said. MGM similarly fails to state a claim with its attacks on the deadline and scope of the CID, said the memorandum. The claim of an unfairly short deadline ignores the CID’s original 30-day return date and the additional 47 days MGM gained while its petition to quash was pending before the commission, it said. It also fails to allege the FTC’s refusal to grant an extension, it said. In fact, when commission staff contacted MGM to discuss compliance issues such as timing, “MGM refused to engage in any such discussions,” it said. Likewise, MGM’s claim that the FTC has grounded the CID in “facially inapplicable” regulations “overlooks settled and binding authorities” holding that the commission “is entitled to investigate whether its regulations apply to particular entities or practices,” it said.
U.S. District Judge Fernando Aenlle-Rocha for Central California in Los Angeles has reviewed defendant T-Mobile’s notice of removal of plaintiff Esperanza Rendon’s fraud complaint and “is presently unable to conclude” that his court has subject-matter jurisdiction under the Class Action Fairness Act, said the judge’s signed order Monday (docket 2:24-cv-01666). In particular, “and without limitation,” the court finds that the allegations in the notice of removal don’t demonstrate “by a preponderance of the evidence that the amount in controversy exceeds $5 million,” said the order. The judge ordered the parties, by Aug. 8, to show cause why the case shouldn’t be remanded to state court where it originated “for lack of subject matter jurisdiction because the amount in controversy does not exceed the jurisdictional threshold,” it said. Failure to timely respond to the order will result in the remand of the case “without further warning,” it said. Rendon is suing T-Mobile to challenge the “regulatory programs & telco recovery fee” it charges on its monthly invoices (see 2406170035). She also alleges that when she purchased additional phones from T-Mobile, she was charged for “add-on” device protection plans without her knowledge or consent.
Brian Pilon and Russell Stephen seek an order compelling Discovery Communications to arbitration, according to their petition Friday (docket 1:24-cv-04760) in U.S. District Court for Southern New York in Manhattan. Pilon and Stephen streamed video content on Discovery+ and are pursuing federal data privacy claims against Discovery under a mandatory arbitration clause in the company’s “visitor agreement,” the petition said. The defendant without consent disclosed the petitioners’ identities and the videos they watched on Discovery+ to third-party advertising and analytics companies, including Meta and Google, it said. Discovery’s conduct violated the Video Privacy Protection Act, which was enacted “specifically for the purpose of protecting consumers’ privacy interests in the videos they watched,” it said. Pilon and Stephen delivered letters on Jan. 9, 2023, informing Discovery of their intention to pursue federal VPPA claims, it said. The same day the letters were delivered, the company posted a version of its visitor agreement to the Discovery+ website, containing a different arbitration agreement than the one Pilon and Stephen were party to, the petition alleges. That new arbitration agreement “contains procedural requirements designed to be onerous to consumers,” it said. It includes a “pre-dispute notice” that requires claimants “to attest to facts already in Discovery’s possession,” like customers’ subscription histories and current subscription status, it said. And it purports to give Discovery “the right to force each consumer to personally attend one-on-one settlement conferences,” at the company’s election, before even filing an arbitration demand, the petition said. It also specifies National Arbitration and Mediation instead of the arbitration provider JAMS specified in the previous arbitration agreement, it said. The parties participated in discussions toward a possible resolution, but those talks broke down May 2, the petition said. That’s when Pilon and Stephen initiated the dispute-resolution process in the original visitor agreement by each filing arbitration demands in JAMS, it said. Discovery wrote JAMS later in May urging rejection of those demands on grounds that they filed them in the wrong forum, it said. Discovery’s position is that the November 2022 visitor agreement that Pilon and Stephen agreed to was now “outdated and superseded” by the newer January 2023 agreement, the petition said. Pilon and Stephen argue that any arbitration clause in the newer agreement doesn’t apply to their disputes, as the visitor agreement they invoked explicitly states that any new arbitration agreement will not apply retroactively, it said. They further argue that the parties had twice agreed to arbitrate disputes about arbitrability, such as the present one, it said. JAMS wrote the petitioners May 29, declining to administer their arbitrations, citing the newer arbitration agreement mandating a different forum, it said. Pilon and Stephen now ask the court to compel Discovery to arbitrate their claims in JAMS under the “plain language” of the visitor agreement, the petition said.
IGN Entertainment integrates at least one application programming interface (API) that lets companies open their application data and functionality to external third-party developers and business partners, alleged a Video Privacy Protection Act class action Tuesday (docket 1:24-cv-11579) in U.S. District Court for Massachusetts in Boston.
Verizon made a “profit-driven decision” to expose thousands of utility workers to a “lethal toxin” due to its refusal to clean up its “obsolete lead cable network,” said plaintiffs Greg Bostard and Tony Rockhill in their opposition Monday (docket 1:23-cv-08564) in U.S. District Court for New Jersey to Verizon’s April 18 motion to dismiss their second amended complaint (see 2404190011). Bostard’s original Aug. 23 class action alleged that his “direct and regular exposure” to Verizon’s toxic lead cables during his long career as a Comcast utility worker caused him “a present injury” that increases the risk he will develop more “catastrophic health effects” (see 2308240005). He amended his complaint Jan. 12 to assert that he’s not seeking personal injury damages, only relief for the “present economic injury” he suffers by having to pay for his own lead-poisoning tests (see 2401160001). Bostard’s second amended complaint was filed March 18, “solely for the purpose” of adding 16-year Altice veteran Rockhill as an additional plaintiff (see 2403190036). Unless their suit is successful, Verizon’s lead cables “will continue to put thousands of utility workers’ health at risk,” said the Bostard-Rockhill opposition. Utility workers “face a choice between paying out of pocket for medical testing to understand the extent to which they have been poisoned or taking a risk on their health,” it said: “Not only that, but unless this suit is successful, utility workers face a choice between continuing to be poisoned or quitting their jobs.” New Jersey law doesn’t force the “victims of corporate misconduct” into that choice, said the opposition. New Jersey instead holds polluters accountable when their pollution forces people to seek medical monitoring by allowing post-injury, pre-symptom recovery in toxic tort litigation for reasonable medical surveillance costs, it said. Both New Jersey and federal law require polluters “to abate dangerous environmental conditions they create,” it said. To avoid paying for the dangers it created, Verizon asks this court “to rewrite New Jersey and federal law to disallow medical monitoring and abatement suits,” it said. Verizon argues for an array of rules -- “some untested, some discredited, but none meritorious” -- that would preclude “virtually all medical monitoring class action cases,” it said. But neither the 3rd Circuit nor the New Jersey Supreme Court “has ever adopted Verizon’s extreme positions,” it said. This court “should not do so here,” it said.
U.S. District Judge John Chun for Western Washington in Seattle ordered that a 10-day bench trial will begin June 9 on the FTC’s allegations that Amazon for years has knowingly duped millions of consumers into unknowingly enrolling in its Amazon Prime service, said a clerk’s minute order Friday (docket 2:23-cv-00932). The FTC alleges that Amazon used manipulative, coercive or deceptive user-interface “dark patterns” to trick consumers into enrolling in automatically renewing Prime subscriptions. Jan. 10 is the deadline for completing discovery in the case, said the order. The FTC’s original complaint, which the agency amended Sept. 20 to add new defendants and details (see 2309200069), was filed a year ago.
Communications Litigation Today is tracking the below lawsuits involving appeals of FCC actions. Cases marked with an * were terminated since the last update. Cases in bold are new since the last update.
A telemarketing fraud suit filed May 23, 2023, by 48 states and the District of Columbia against VoIP service provider Avid Telecom for allegedly facilitating illegal robocall traffic on its network (see 2305230065), “does not contain a scintilla of evidence” that Avid ever initiated "even a single illegal robocall,” said the defendant's answer (docket 4:23-cv-00233) to the complaint Friday in U.S. District Court for Arizona in Tucson. Nor does the complaint have evidence that Avid knew “that any of the calls that it received from an originating aggregator or carrier was an illegal robocall," it said.
Yauheni Dauzhanok and Aesmart deliberately facilitated the sale and distribution of counterfeit and fraudulent products on Amazon, Amazon's fraud complaint alleged Tuesday (docket 2:24-cv-00825) in U.S. District Court for Western Washington in Seattle.
Communications Litigation Today is tracking the below lawsuits involving appeals of FCC actions. Cases marked with an * were terminated since the last update. Cases in bold are new since the last update.