Rebecca Day

U.S. District Court Judge Dale Fischer for Central California granted plaintiff “John Doe’s” motion to remand a privacy case against the Cedars-Sinai health system to California Superior Court in Los Angeles, said her Monday order (docket 2:23-cv-00870). Cedars-Sinai removed the case to district court in February.

An Illinois plaintiff’s claims fail, said T-Mobile's response to a February complaint that a Metro by T-Mobile store violated the Federal Communications Act (FCA) and Stored Communications Act (SCA) in a SIM card swap. T-Mobile filed a motion to dismiss (docket 2:23-cv-00271) the lawsuit Tuesday in U.S. District Court for Western Washington in Seattle.

U.S. District Judge Terry Doughty for Western Louisiana in Monroe granted Children’s Health Defense's (CHD) unopposed motion Tuesday (docket 3:22-cv-01213) for leave to file an amicus brief in support of plaintiffs Missouri and Louisiana’s motion for a preliminary injunction in a freedom of speech lawsuit against President Joe Biden and some 60 individuals and government agencies.

U.S. District Court Judge Andrew Carter ordered the arbitration award in an Amazon seller dispute to be held in abeyance pending the court’s resolution of petitioner Cowin Technology’s forthcoming motion to remand the case to federal court, Cowin's motion to vacate, and any Amazon cross-motion to confirm, said the Tuesday order (1:23-cv-03054) in U.S. District Court for Southern New York in Manhattan.

After installing a software update for his Google Pixel 5 smartphone, plaintiff Steve Nichols, Fort Collins, Colorado, no longer had 5G service in locations where he previously did, alleged a Saturday fraud and breach of contract class action (docket 1:23-cv-01022) in U.S. District Court for Colorado in Denver.

Plaintiff Trisha Teperson “is without sufficient knowledge” to form a belief for her allegations about Nogin’s pricing actions on its e-commerce platform, said the defendant’s Thursday answer (docket 8:23-cv-00281) to Teperson’s February false advertising class action in U.S. District Court for Central California in Santa Ana. Nogin “deceptively” advertised products from a “false reference price,” the San Diego resident alleged.

Nothing in California’s Age-Appropriate Design Code Act, AB-2273, restricts the content that businesses can provide to minors, and “any incidental effect the Act may have on businesses’ speech is justified by the State’s compelling interest in children’s welfare,” said California Attorney General Rob Bonta (D), in a Friday opposition (docket 5:22-cv-08861) to NetChoice’s April motion for preliminary injunction (see 2304070041) in U.S.District Court for Northern California in San Jose.

AT&T’s March motion to compel arbitration (see 2303220048) and stay a case in a SIM card swap lawsuit should be denied, said plaintiff Al Weiss in a Thursday opposition response (docket 6:23-cv-001200) in U.S. District Court for Middle Florida in Orlando.

North Carolina car dealership John Hiester Chevrolet “sidesteps the clear regulatory text” of the Telephone Consumer Protection Act (TCPA) by asserting that a consumer clicking a “next step” button on a website is giving assent to receive prerecorded telemarketing calls, said plaintiff Tracie Beard, in her Monday reply brief (docket 22-2162) in the 4th U.S. Circuit Court of Appeals. The order on appeal marks the “first time ever” that a court has held a telemarketer can meet the requirements of a “clear and conspicuous” disclosure that is “separate and distinguishable” from other disclosures where it is contained within a hyperlinked separate webpage, said the brief. “The only evidence” the defendant presented was that Beard, by clicking the "next step" button on the car dealer's website, agreed to hyperlinked terms and conditions, plus privacy and policy notices, said the brief. It is not “clear and conspicuous,” as required under “clear, regulatory text,” which says any consent disclosure to receive prerecorded telemarketing phone calls needs to be “separate and distinguishable from “any other disclosures,” the reply said. The defense argued that plaintiff lacks standing because she didn’t read terms and conditions, so the formatting of those terms and conditions is not a TCPA Article III injury-in-fact. The formatting of the website is not what violated the TCPA, said the brief: “Placing the ringless voicemails is what violated the TCPA and confers Article III standing.” Placing consent within hyperlinked terms and conditions on a separate webpage and not disclosing that “agree” meant agreeing to telemarketing calls “cannot meet the ‘clear and conspicuous’” disclosure requirements, the reply said. Also, the purported consent language is not clearly and conspicuously disclosed within terms and conditions, which also failed to disclose that the car dealership would be placing prerecorded telemarketing voice calls that, absent consent, “would violate the law,” it said. Defendants suggest that the “realities of modern online practice” are to hide consent to receive prerecorded telemarketing calls within general terms and conditions policy located on a separate webpage from an onboarding process, said the reply. “If this were a typical practice, Plaintiff is quite confident -- and presumes the Court agrees -- there would be a wealth of case law addressing the permissibility of such practice,” and there is not, the reply said. Beard’s lawsuit against the car dealership was dismissed in November in U.S. District Court for Eastern North Carolina. U.S. District Court Judge James Dever ruled Beard provided prior express written consent concerning one of her phones. When she revoked consent on one phone number, she also revoked consent on another, and when she left a voicemail for the dealership asking not to be contacted on that number, the dealer didn’t leave any other voicemails on either line. He ruled the Chevrolet dealer “acted consistently” with her consent.

Plaintiffs fail to “meet their burden” of establishing that applying California law would thwart any fundamental policy of either New York or Minnesota, said Google Wednesday in a reply (docket 4:22-cv-05652) in support of its motion to dismiss a privacy lawsuit related to YouTube and Google Play video rental policies (see 2303300063).