The U.S. District Court for the District of Columbia dismissed additional False Claims Act actions brought by lawyers Mark O’Connor and Sara Leibman, who allege defendants fraudulently said Frequency Advantage was a “very small business” qualifying for “designated entity” status and a bidding discount in FCC auctions. The case was brought against UScellular and other defendants including King Street, Carroll Wireless and Barat Wireless. The court earlier dismissed other complaints (see 2303100068). The latest complaints dismissed, ECF Nos. 148 and 149, involve three FCC spectrum auctions in 2004, 2006 and 2007. The court said a 2008 FCA complaint precludes the later complaint. “Because the Amended Complaint is premised on ‘substantially the same allegations or transactions’ that have already been publicly disclosed, Plaintiffs-Relators' suit must be dismissed unless they qualify as an ‘original source’ by obtaining and sharing ‘knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions,’ in which case the public disclosure bar would not apply,” the court said. Plaintiffs repeatedly cite a U.S. Cellular-King Street network sharing agreement from 2011, the court said: “They rely chiefly on one nonpublic document, but it cannot bear the weight they place on it. … That alleged relationship between the entities at most supports the claim that Defendants continued the substantially similar, and already disclosed, original fraud. It therefore cannot be a material addition to the publicly disclosed information.”
Defendant Southern Power plans to file “an early motion” for summary judgment against pro se plaintiff Lee Cunningham’s Telephone Consumer Protection Act complaint, said a joint status report Tuesday in U.S. District Court for Middle Alabama in Montgomery. Cunningham alleges Southern Power inundated him with debt-collection calls using an automatic telephone dialing system (ATDS), and the calls persisted even after he asked the company to stop, said the report. Southern Power “had no involvement in the alleged conduct and is not a proper defendant to this action,” it said. Southern Power is a wholesale power company, “not a regulated utility that services residential consumers,” has never called his cellphone for any purpose, “much less” with an ATDS, it said. Cunningham acknowledges the calls originated with Alabama Power, with which he has an account, but Southern Power and Alabama Power are separate legal entities, it said. Despite Southern Power having no role in the alleged conduct, Cunningham “presumably intends to proceed against Southern Power” because it and Alabama Power are sister subsidiaries of Southern Co., it said: “Southern Power would not oppose a motion to substitute parties.”
Conspiring with a private company to “hijack” residents’ smartphones by installing a contact-tracing app on their devices without the owners’ knowledge or consent isn’t a tool the Massachusetts Department of Public Health “may lawfully employ in its efforts to combat COVID-19,” alleged six Android users. The users, including Robert Wright, a senior faculty fellow at the American Institute of Economic Research, filed an amended complaint Monday against the department and Massachusetts Gov. Maura Healey (D) in U.S. District Court for Massachusetts in Springfield. The defendants’ “brazen disregard” for civil liberties violates the Constitution, “and it must stop now,” it said. A month earlier, the state moved to dismiss the original Nov. 14 lawsuit for failure to state a claim (see 2211250008). To increase the app’s adoption, the state started working with Google in June 2021 to secretly install it on more than a million Android smartphones, it said. When owners discovered and deleted the app, the state would reinstall it on their phones, it said. Even if a user doesn’t opt into the department’s COVID-19 notification system, the app “still causes the mobile device to broadcast and receive Bluetooth signals,” it said. “In sum,” the department installed “spyware” that deliberately tracks and records movement and personal contacts for more than a million smartphones “without their owners’ permission and awareness,” it said. The spyware still resides “on the overwhelming majority of the devices on which it was installed,” it said. At least two dozen other states developed COVID-19 contact-tracing apps using Google’s application programming interface, said the complaint. Most engaged in community outreach, “encouraging their residents to download the apps and voluntarily opt in for contact tracing,” it said. Massachusetts appears to be the only state to “surreptitiously embed” the app on mobile devices, it said.
T-Mobile moved to strike “improper arguments made for the first time” in the March 13 reply brief of plaintiffs Craigville Telephone and Consolidated Telephone in support of a special master to oversee discovery in their fake ringtones case against the carrier (see 2303140034), in a motion Monday (docket 1:19-cv-07190) in U.S. District Court for Northern Illinois in Chicago. T-Mobile, in the alternative, seeks leave to file a sur reply to address the new arguments, it said. The plaintiffs, in their reply brief, “specifically advocate for a special master” to oversee call data record discovery, said T-Mobile’s motion. The reply brief contains pages of “substantive arguments and false and misleading characterizations of matters supposedly related to the production of CDRs” not included in their original motion for a special master, it said. The new arguments are “irrelevant,” and don’t support the appointment of a special master, especially considering the agreement of former co-defendant to produce CDRs under subpoenas served by both parties, it said. If the court finds the new arguments relevant, T-Mobile “was improperly denied the opportunity to respond to them because they were made for the first time” in the reply brief, it said. The new arguments are “improper and should be stricken,” it said. In the alternative, leave should be granted to permit T-Mobile to respond to them, it said.
The 9th U.S. Circuit Court of Appeals should deny Google’s motion for limited remand to allow the district court to clarify its order of dismissal “for the simple reason that there is no fundamental dispute here,” said the plaintiff-appellants’ opposition Friday (docket 22-16993). They are six Chrome users who seek to reverse the dismissal of their claims that Google unlawfully collected their personal data despite their having declined to sync their browsers to their Google accounts. “The parties agree that the district court granted Google’s motion for summary judgment and closed the case,” said their opposition. Google’s “real objective” in seeking limited remand “is not clarification but something else,” it said. If the 9th Circuit were to grant limited remand, “Google will ask the district court to substantially alter its original opinion by appending two full pages of Google’s preferred legal analysis and discussion to its order granting summary judgment,” it said. But the district court already ruled it would deny Google’s proposed relief as improper, it said. It would therefore be “pointless” to grant the motion, it said.
Verizon’s appeal of the July 1 district court decision denying its motion to compel the dispute of 27 California consumers to arbitration “is about an arbitration agreement that goes too far,” said the consumers’ answering brief Friday (docket 22-16020) in the 9th U.S. Circuit Appeals Court. The case originated from a November 2021 class action challenging Verizon’s “bait-and-switch scheme” in which it allegedly padded consumers’ monthly wireless bills with a secretive “administrative charge” that kept climbing higher and higher above the flat monthly rates it was advertising.
U.S. District Judge Chad Bryan for Middle Alabama in Montgomery denied the Feb. 23 motion of pro se Telephone Consumer Protection Act plaintiff Lee Cunningham for permission to file documents electronically in his case against Southern Power, said his order Wednesday (docket 2:22-cv-00621). Middle District of Alabama civil administrative procedures require pro se plaintiffs to file signed paper originals, said his order. Cunningham’s motion said he was being “unfairly prejudiced” by not having electronic filing privileges. Cunningham’s complaint alleges he was “intentionally, knowingly and/or willfully harassed and abused” by Southern Power’s incessant debt-collection calls. (see 2210200064). Southern Power denies the allegations.
Plaintiff Cynthia Redd’s motion to remand her Illinois Biometric Information Privacy Act case against Amazon Web Services is "moot” and should be denied, said AWS' opposition Wednesday (docket 1:22-cv-06779) in U.S. District Court for Northern California.
Closed-circuit events distributor G&G filed consecutively numbered Communications Act complaints Tuesday in U.S. District Court for Northern Texas, alleging two Dallas-area restaurants stole the broadcast feeds of two boxing events in 2020 and 2021 and showed them to customers for commercial profit. G&G alleges the Dallas establishment J. Whiskey’s Sports Bar Grill showed the December 2020 Saul Alvarez vs. Callum Smith championship fight program without a license (docket 3:23-cv-00556), and the Arlington, Texas, Tex-Mex eatery El Tenampa did the same with the May 2021 Saul Alvarez vs. Billy Joe Saunders event (docket 3:23-cv-00557). The closed-circuit broadcasts weren’t intended “for the use of the general public,” said both complaints. In Texas, they could be exhibited in a commercial establishment only if that establishment were “contractually authorized to do so” by G&G, they said. The transmission of the events originated via satellite and was scrambled, they said. The establishments that contracted with G&G were provided “with the electronic decoding capability and/or satellite coordinates necessary to receive the signal,” the complaints said. Both complaints seek statutory damages up to $100,000 for each willful violation of the Communications Act. Neither establishment commented Wednesday.
Epic Games will pay $245 million to settle allegations the company used "dark patterns" to trick players into making "unwanted purchases and let children rack up unauthorized charges" without parental consent, the FTC announced Tuesday in a finalized settlement (see 2212190064). The commission voted 4-0 to approve the complaint and order against Epic. In a separate settlement, also originally announced in December, Epic agreed to pay $275 million to settle allegations it violated the FTC's Children’s Online Privacy Protection Act Rule, bringing the total volume of penalties to $520 million. Tuesday, Epic referenced its previous statement from December, saying, "There are no new details here, and nothing in the settlement has changed."