Maryland lost any basis to defend a federal district court’s ruling against businesses challenging the state’s digital ad tax, appellants at the 4th U.S. Circuit Appeals Court said Wednesday. The U.S. District Court of Maryland had said a Maryland court’s ruling that the tax is unlawful moots the federal case. But the Maryland Supreme Court has now overturned that decision (see 2307120062), said U.S. Chamber of Commerce and other appellants (case 22-2275). “Because the state court’s declaration has been vacated for want of jurisdiction, there is no longer any basis to assert that any aspect of the case is moot. And the present absence of any declaratory relief highlights the need for expeditious resolution of the First Amendment issue.” The 4th Circuit “should reverse with instructions to the district court to enter judgment for appellants on their First Amendment claim and to resolve the merits of their challenges to the [digital ad tax law’s] levy.” The appeals court earlier this week set Sept. 20 oral argument in the case (see 2307180021).

Oral argument is scheduled for Sept. 20 at 9:30 a.m. in Richmond in the U.S. Chamber of Commerce’s appeal of Maryland’s digital ad tax, said the 4th U.S. Circuit Court of Appeals in a notification Monday (docket 22-2275). The Chamber is appealing the district court’s March decision dismissing businesses’ challenge of the tax and its Dec. 2 dismissal of their challenge to the tax’s pass-through ban (see 2212160050).

The Washington Supreme Court agreed to hear Assurance Wireless' petition for review of a lower court ruling that rejected its argument that the carrier's Lifeline services don't involve a retail sale. The case (101873-8) is to be heard during the court's fall term. Assurance said in an April petition the state's retail sales tax for telecom services isn't possible for its Lifeline service because it offers free service to eligible consumers, saying the carrier "cannot be held secondarily liable for failing to collect sales tax from an unidentified buyer." Washington's Department of Revenue (DOR) disagreed, saying Assurance "seeks discretionary review to rehash the same arguments it offered." The FCC "does not incur the legal obligation to pay Assurance and is not the 'buyer' of Lifeline service under this court’s precedent," said Attorney General Robert Ferguson (D) in a May response on behalf of DOR: "Assurance throughout this appeal has pushed factual and legal arguments that are unsupported by the record or relevant law."

U.S. District Judge Donald Molloy for Montana in Missoula signed an order Wednesday consolidating two complaints that seek, on First Amendment and other constitutional grounds, to prevent Montana and its Attorney General Austin Knudsen (R) from banning TikTok in the state. “There being common issues of law and fact,” consolidation of the cases is “appropriate,” said the order. It designates the May 17 complaint (docket 9:23-cv-00056) filed by six Montana TikTok influencers and users (see 2305190035) as the lead case, and the May 22 complaint filed by TikTok (docket 9:23-cv-00061) as the “member” case. The complaints are consolidated for all further proceedings under the docket of the lead case, said the order. The defendants in the member case should file their answer to the complaint in the member case docket, it said. All other documents should be filed in the lead case docket, “and spread to the member case,” it said.

The District of Columbia sought 30 more days to answer a whistleblower complaint by Cleo Subido, the former interim director of the Office of Unified Communications. Subido alleged at the D.C. Superior Court that Mayor Muriel Bowser (D) and the District retaliated against her after she disclosed problems at the 911 center (see 2303080048). “Subido's complaint contains 36 pages with 150 paragraphs of allegations about workplace occurrences allegedly giving rise to this lawsuit,” D.C. said in case 2023-CAB-001335. “The defendants need additional time to respond.” An extension won’t unduly prejudice either party or burden the court’s calendar since no hearings are scheduled, it said. The court set a remote scheduling conference for Sept. 15 at 9:30 a.m.

Audible removed to U.S. District Court for Western Washington in Seattle a May 26 class action filed in Washington Superior Court for King County in which California plaintiffs Renee Viveros of Palm Dale and Christine Bias of La Habra allege Audible violated California’s Consumer’s Legal Remedies Act and Unfair Competition Law, said its notice of removal Tuesday (docket 2:23-cv-00925). They allege Audible unlawfully charged them on a recurring basis for monthly subscriptions to Audible’s online services, it said. They also assert common law claims of conversion and unjust enrichment, it said. Audible denies Viveros and Bias are entitled to any relief, it said. When consumers sign up for an Audible subscription, Audible enrolls them in an automatically renewing subscription on a monthly or yearly basis, resulting in automatic charges to a credit or debit card, said the complaint. Under California’s Automatic Renewal Law (ARL), Audible “is obligated to provide clear and conspicuous disclosures about its auto-renewal practices and subscription terms,” and must also obtain “affirmative consent” to the auto-renewal scheme before enrolling Californians, it said. The ARL also requires it be easy to cancel, it said. If a business fails to obtain the necessary authorizations at the time of enrollment, “all services provided are deemed to be unconditional free gifts under the ARL,” it said. Audible’s enrollment and cancellation practices fail to comply with the ARL, the complaint said.

The Texas Court of Appeals for the 6th Appellate District in Texarkana denied Meta’s mandamus petition to vacate a lower court’s denial of its motion to disqualify lead outside counsel for the state of Texas, Zina Bash of Keller Postman, in a lawsuit alleging Meta violated the Texas Capture or Use of Biometric Identifier Act, said its memorandum opinion Wednesday (docket 06-23-00045-CV). The trial court was “well within” its discretion to deny Meta’s disqualification motion, it said. Meta filed the motion April 10, based on Bash’s work at Meta as a summer intern in 2012. Meta claimed Bash, though just an intern, had a law degree and was working in Meta’s legal department, making her a lawyer for Meta at a time when the legal department was especially focused on tag suggestions and the privacy policies surrounding them. Meta claimed Bash is “adverse” to Meta and her 2012 work was “substantially related” to the instant privacy case she was trying for the state. Texas responded by arguing Meta waived the issue by waiting so late in the case to raise it, and that it had knowledge all along of what Bash had done for Meta and possession of documents about that work.

Attorney General Todd Rokita (R) amended Indiana’s privacy complaint against TikTok to “reflect the recent revelations that TikTok users’ data is subject to Chinese law and may be intercepted by the Chinese government,” the AG office said Tuesday. “TikTok vacuums up reems [sic] of highly sensitive and personal information about Indiana consumers” and “deceives and misleads consumers about the risks the app poses to their data,” said the amended complaint at Indiana Superior Court of Allen County. The case was previously removed to federal court, but on May 23 the U.S. District Court for Northern Indiana agreed with Rokita that the case should proceed in state court, the AG office said. Arkansas Attorney General Tim Griffin (R) referred to the Indiana case in a brief in his state’s separate lawsuit earlier this month (see 2306090047).

The complaint from Arkansas Attorney General Tim Griffin (R) alleging TikTok is violating the Arkansas Deceptive Trade Practices Act by duping Arkansas citizens about the risks of using TikTok is “a run-of-the-mill state-court case,” said Griffin’s brief Thursday (docket 1:23-cv-01038) in U.S. District Court for Western Arkansas in El Dorado in support of his motion to remand. Griffin wants the case returned to Union County Circuit Court where it originated March 28 before TikTok removed it to federal court May 9 (see 2305100036). TikTok argues the case belongs in federal court “because TikTok’s conduct also implicates foreign policy and national-security issues that the federal government might address,” said the brief. “In other words, TikTok argues that the sheer scope of the problems it has created enables it to choose its preferred forum,” it said. The argument is “meritless," as another federal court “recently recognized in the exact same posture,” it said. Indiana also sued TikTok for violating that state’s consumer-protection law, it said. “As in this case, Indiana alleges that TikTok collects users’ personal information without telling them that this information might be shared with China,” it said. “As in this case, TikTok removed to federal court on the theory that the state’s state-law claim arose under federal law,” creating federal-question jurisdiction under Title 28's Section 1331, it said. The court rejected that theory and remanded to state court, noting TikTok failed to point to any question of federal law that would need to be decided, it said. “That analysis necessarily applies here, where TikTok filed functionally the same Notice of Removal as it filed there,” said the brief. Federal-question jurisdiction “requires a question of federal law, “and no such question can be found” in the Arkansas complaint, it said. Whether TikTok is liable under Arkansas law for deceiving Arkansas consumers doesn’t depend “on the construction of any federal statute or other source of federal law,” it said. “Nor is it one of the limited subjects that arise under federal common law,” which the complaint doesn’t invoke, it said: “This case is a pure matter of state law and should be remanded to the state court where it was filed.”

Section 230 protection is broad and bars a Californian user’s lawsuit against Twitter, the 1st District California Court of Appeals ruled Friday. The court affirmed a lower court dismissing Maria Rutenburg’s complaint about Twitter deleting former President Donald Trump’s account. Rutenberg claimed Twitter violated her state constitutional right to free speech when the platform moderated and deleted Trump’s account because it prevented her from accessing an “interactive space” for replying to the Republican’s tweets. Twitter demurred, arguing the lawsuit was barred by Section 230; the social platform isn’t a state actor; Rutenberg lacks standing because Twitter moderated Trump’s account, not hers; and Trump is no longer president. The trial court agreed, so the Twitter user appealed. Although Rutenberg denies it, she's “seeking to hold Twitter liable for ‘typical publisher conduct protected by section 230,’” wrote Judge Kathleen Banke. “It makes no difference that Rutenberg has styled her claim as one for violation of free speech rights under our state constitution.” The allegedly injurious conduct included “Twitter’s decisions regarding whether to edit content posted by an account holder or to ban it altogether,” she said. “Rutenberg’s allegations demonstrate that her state free speech claim is grounded on Twitter’s editorial actions with respect to Trump’s account, and not on Twitter’s origination and posting of independent ‘news’ content. That these editorial actions resulted in an alteration of the ‘physical interactive space,’ and specifically the elimination of this space, does not change the fact that her claims are rooted in” Twitter editorial decisions. “The label a plaintiff ascribes to a social media platform’s conduct is not determinative of whether section 230 bars the lawsuit.” Banke added, “There undoubtedly is tension between the dual purposes of section 230 -- to limit federal regulation and thereby encourage free speech … and to encourage the monitoring and control of content that a private social media platform deems offensive.” But she said that’s a matter for Congress.