Paul Gluckman

The district court “improperly” granted the Recording Industry Association of America its motion to dismiss Yout’s Digital Millennium Copyright Act complaint, “erroneously concluding that Yout’s software platform was a circumvention tool,” said Yout’s opening brief Thursday (docket 22-2760) at the 2nd U.S. Circuit Court of Appeals. The lower court’s dismissal came “despite the preponderance of disputed issue of fact -- and the clear need for discovery and expert testimony,” it said.

The second known privacy class action in four days seeking to hold Apple accountable for its allegedly deceptive use of personal data from iPhones and other devices (see 2302010017) was filed Thursday in U.S. District Court for Southern New York in Manhattan.

The 17 Samsung data breach class actions pending in various jurisdictions were transferred Wednesday to the U.S. District Court for New Jersey in Camden and consolidated under U.S. District Judge Christine O’Hearn, said a transfer order signed by Karen Caldwell, chair of the U.S. Judicial Panel on Multidistrict Litigation. Chief Judge Renee Bumb in Camden signed an order consenting to the transfer and consolidation of the cases under the judge who, though praised by the panel as “a skilled jurist,” has no previous MDL experience.

"In respect of the Court’s orders," said an FTC spokesperson Wednesday, the agency "is not in a position to comment at this time" about the apparent denial Tuesday by U.S. District Judge Edward Davila for Northern California of the commission's injunction to block Meta's Within Unlimited buy. Meta didn't respond to requests for comment. CCIA President Matt Schruers hailed the order, which remained under seal Wednesday afternoon. The court's ruling "is consistent with decades of legal precedent," said Schruers in a statement. "This decision will encourage innovation and investment by increasing legal certainty around technology transactions.” The court’s decision is sealed, so its reasoning is not being made public, "but the outcome is no surprise," blogged the Competitive Enterprise Institute Wednesday. "In opposing the purchase, the nation’s top consumer advocate is playing fortune teller and breaking with 40 years of antitrust precedent," said CEI. "While the agency should focus on consumer welfare, it has instead tried to meddle in a market that does not yet exist." A virtual status conference is set for Feb. 7 at 10 a.m. PST, apparently to discuss next steps after the injunction's denial, said a text-only clerk’s notice entry Tuesday (docket 5:22-CV-04325). Davila did sign an order late Tuesday granting the FTC’s emergency motion to extend the agency’s jointly stipulated temporary restraining order with Meta barring consummation of the Within transaction until the end of the first business day after Davila rules on the injunction (see 2301310042). The TRO was due to expire at 11:59 p.m. PST Tuesday. The FTC alternatively asked for a seven-day extension of the TRO to eliminate the need for another emergency motion should Davila deny the preliminary injunction. Davila’s order was also sealed, so it’s unknown which TRO option he chose.

State Farm seeks a stay in discovery or phased discovery until U.S. District Judge John Kness for Northern Illinois in Chicago rules on its motion to dismiss plaintiff Thomas Gebka’s Telephone Consumer Protection Act class action (see 2301090024), said its memorandum Tuesday (docket 1:22-cv-05546).

The automatic stay under the bankruptcy code “does not apply” to the seven-state robocalling lawsuit against several defendants, including Michael Smith, who filed a voluntary Chapter 11 petition Jan. 18, Assistant Texas Attorney General Abigail Ryan told U.S. District Judge George Hanks for Southern Texas in Houston in a virtual status hearing Tuesday. Ryan wrote the memorandum of law filed Monday with the court, arguing the bankruptcy code contains an “explicit exception to the automatic stay” permitting the plaintiff states “to proceed with police power proceedings, such as this suit” (see 2301310033).

The 9th U.S. Circuit Court of Appeals, in a Tuesday decision (docket 21-15969), reversed and remanded the district court’s injunction that enjoined the California Public Utility Commission from enforcing its zero co-pay rule on two tiers of affordable wireless service for service providers participating in the California LifeLine program. The CPUC’s zero co-pay requirement for certain affordable plans isn't rate regulation as preempted by the Communications Act because participation in California LifeLine “is voluntary and service providers remain free to opt out and charge whatever rates they deem appropriate,” said the court.

The automatic stay “triggered” by robocalling defendant Michael Smith’s voluntary bankruptcy filing (see 2301200027) doesn't prevent the U.S. District Court for Southern Texas in Houston “from hearing the instant police and regulatory suit before it,” said the seven plaintiff states in a memorandum of law Monday (docket 4:20-cv-02021) contesting the applicability of the automatic stay to the case. The court “has the power to determine whether the stay applies to this suit,” said Arkansas, Indiana, Michigan, North Carolina, North Dakota, Ohio and Texas.

BMW of North America answered plaintiff Peter Grayson’s class-action allegations it did nothing to preserve its vehicles’ roadside safety features during AT&T’s 3G shutdown with notice of its motion to compel his dispute to arbitration. BMW’s answer Monday (docket 2:22-cv-06103) in U.S. District Court for New Jersey in Newark was the first automaker response filed in similarly structured 3G telematics complaints against Ford, Nissan, Porsche and Volkswagen. It appears to foretell the defenses that will be asserted when their briefing deadlines approach in February and March.

Epic Games “unceremoniously copied” for its Fortnite franchise the most recognizable part of one of Kyle Hanagami’s most well-known registered choreographic works, and was rewarded with the district court’s dismissal of Hanagami’s complaint, said the choreographer’s opening brief in his 9th U.S. Circuit Appeals Court petition to reverse and remand the district court’s ruling.