Paul Gluckman

When the Supreme Court takes up two related Communications Decency Act Section 230 cases this term, “the questions will be difficult and the stakes enormous,” said Miller Nash partner Robert Cumbow in an analysis Monday. Many over the past quarter century have credited Section 230 “with enabling the internet to grow and flourish,” said Cumbow. But others say that “reconsideration of the reach of Section 230 is long overdue,” he said. Legal experts told us earlier this month that SCOTUS will almost undoubtedly recast or cut back the broad immunity that interactive online platforms enjoy via the Section 230 liability shield (see 2210110030). Cumbow said that waiting in the wings is the pending 4th U.S. Circuit Court of Appeals case of Hepp v. Facebook, in which a misappropriated photograph of Philadelphia news anchor Karen Hepp found its way into numerous ads that appeared on Facebook and other online platforms, promoting such products as dating services and sexual performance enhancement. Plaintiff Hepp claims Facebook “is liable for violating her publicity rights because Section 230 expressly excludes intellectual property claims,” he said. Many states, including Hepp’s home state of Pennsylvania, “regard publicity rights as intellectual property, leading the Fourth Circuit to hold that Facebook is not shielded from Hepp’s claims” via Section 230, he said. Hepp and the two related social media cases all maintain that under the current interpretation of Section 230 they “will have no redress for wrongs committed against them and perpetuated by the companies that control web platforms,” said Cumbow.

Saturday’s 9th U.S. Circuit Court of Appeals denial of Kelli Ward’s motion for an injunction to quash the House Jan. 6 Select Committee’s subpoena ordering T-Mobile to produce her phone records was the third such setback for the Arizona GOP chair in a month. U.S. District Judge Diane Humetewa in Phoenix previously denied Ward’s motions to quash on Sept. 22 and again on Oct. 7 (see 2210070026).

Lead plaintiff Walleye Group in the April 2020 securities class action alleging insider trading of Intelsat stock is seeking a 30-day deadline extension to file its second amended complaint in the action, if it opts to file one at all, said its motion Monday (docket 4:20-cv-02341) in U.S. District Court for Northern California in Oakland.

Amazon “does not dispute” that Sailed Technology’s application for a subpoena to compel discovery by Amazon for patent infringement litigation in the Chinese courts “falls squarely within” the scope of Section 1782, said Sail’s reply Friday in U.S. District Court for Western Washington in Seattle (docket 2:22-cv-01396).

Issues central to the case involving defendant Peerless Network in its legal fight with plaintiffs Qwest, Level 3 and Global Crossing should be referred to the FCC “under the doctrine of primary jurisdiction,” said the plaintiffs in a legal brief Thursday (docket 1:21-cv-03004) in U.S. District Court for Colorado. The case was moved last week into a proceeding under a magistrate judge for alternative dispute resolution (see 2210130069).

Indiana Attorney General Todd Rokita (R) reached a settlement agreement Thursday in his October 2021 complaint alleging that Startel Communications and its CEO Wanda Hall assisted actors in India, the Philippines and Singapore to inundate Indiana residents with scam robocalls in violation of the Telephone Consumer Protection Act and the FTC’s Telemarketing Sales Rule. Startel and Hall “knew or consciously avoided knowing these calls were illegal,” alleged his complaint.

Plaintiffs in the antitrust class action to overturn T-Mobile's buy of Sprint “hammered out an agreement in principle” with T-Mobile to begin “some limited foundational discovery” in the case, plaintiffs’ attorney Brendan Glackin of Lieff Cabraser told U.S. District Judge Thomas Durkin in Northern Illinois in a telephonic status hearing Friday. Seven AT&T and Verizon customers brought the class action, saying the transaction caused their rates to skyrocket through reduced competition in the wireless space. Durkin on Oct. 7 denied T-Mobile’s motion to transfer the case to the Southern District of New York, where U.S. District Judge Victor Marrero wrote the early-2020 opinion that enabled the deal to go forward (see 2210110003). The case has been somewhat in limbo as the plaintiffs work to serve court papers on a foreign defendant, Deutsche Telekom, through “diplomatic channels,” said Glackin. He still anticipates the process will be complete by January, he said. Durkin asked the parties to file a joint motion summarizing their agreement to proceed with limited discovery. T-Mobile attorney Rachel Brass of Gibson Dunn said her client will withdraw as “moot” its pending motion to stay the case, pending service on overseas defendants, as soon as Durkin accepts the joint motion. The judge set the next telephonic status hearing for Jan. 27.

Both sides in AT&T’s infrastructure lawsuit against the village of Muttontown, New York, face an Oct. 31 deadline for filing a two-page joint status report that describes whether they oppose a motion to intervene in the case filed by village resident Russell McRory (see 2210180029), said a text order Wednesday (docket 2:22-cv-05524) from U.S. Magistrate Judge Lee Dunst for Eastern New York in Central Islip.

The “statutory damages” provisions of the Telephone Consumer Protection Act “violate the safeguards guaranteed” by the Fifth, Sixth, Eighth and 14th amendments “because they constitute excessive fines and are grossly disproportionate to any actual harm that may be suffered” by TCPA plaintiffs, said Comcast's answer Wednesday (docket 0:22-cv-02377) to the Sept. 28 TCPA complaint of consumer Chester Graham in U.S. District Court for Minnesota.

Tech companies “are largely free to create and operate online platforms without legal consequences for the negative outcomes of their products” because of Communications Decency Act Section 230, said an investigative report Tuesday from the Office of the New York Attorney General on the role of online platforms in the May 14 mass shooting in Buffalo that killed 10 and wounded three. Section 230 allows “too much legal immunity” for platforms, even “when a platform allows users to post and share unlawful content,” it said.