U.S. District Judge Harvey Bartle for Eastern Pennsylvania in Philadelphia granted Comcast Spectacor’s unopposed Nov. 16 motion to stay briefing on defendant Factory Mutual’s motion to dismiss until the final resolution of two insurance cases in the Pennsylvania Supreme Court and a third in the 3rd U.S. Circuit Court of Appeals (see 2311170002), said the judge’s signed order Monday (docket 2:23-cv-02476). Spectacor, owner of the Philadelphia Flyers and the Wells Fargo Center, is suing Factory Mutual to recover losses it incurred when the COVID-19 pandemic forced the cancellation or curtailment of Flyers' games in 2020 and 2021 (see 2306290001). Spectacor alleges that Factory Mutual refuses to honor the terms of the property insurance policy the team bought to protect it against catastrophic losses. Spectacor sought the briefing stay because it believes many of the issues raised in Factory Mutual’s motion to dismiss “may be impacted” by the forthcoming decisions in the three appellate cases.

The American Civil Liberties Union seeks leave to file an amicus brief in support of defendant Center for Countering Digital Hate (CCDH) in its fight to defeat the X platform’s complaint alleging that the nonprofit is running a "scare campaign" to drive away X advertisers (see 2308010034). The ACLU filed a motion Friday (docket 3:23-cv-03836]) in U.S. District Court for Northern California in San Francisco. The Electronic Frontier Foundation and the Knight First Amendment Institute at Columbia University joined the motion. CCDH has consented to the filing of the proposed amicus brief, said the motion. X is expected to oppose the filing, it said. Its response is due Dec. 6. X attempts to disguise a “nonviable” defamation claim against CCDH as a breach of contract claim “to retaliate against a nonprofit that provided the public with information critical of X,” said the proposed amicus brief. The groups write to urge the court to grant CCDH’s Nov. 16 motion to dismiss (see 2311200040) and its motion to strike X’s first cause of action for breach of contract, it said. The dispute has implications “beyond the parties to this case,” it said. Allowing X to succeed will hurt CCDH’s ability “to continue research in the public interest,” it said. It will also create “significant dangers” for others seeking to use basic digital tools, like scraping, “to provide the public with insight into the powerful platforms that we all now rely upon for news and information.”

The 3rd U.S. Circuit Court of Appeals docketed, as case number 23-3022, Core Communications’ appeal of an Oct. 13 order granting AT&T summary judgment in its access service charges dispute with Core (see 2311140049), said a docket notice Tuesday. U.S. District Judge Joshua Wolson for Eastern Pennsylvania in Philadelphia had held that Core can’t collect millions in unpaid switched access service charges it seeks from AT&T, because Core’s tariffs didn’t authorize it to bill for those services in the first place (see 2212280001), making AT&T entitled to summary judgment on all of Core’s claims.

Defendant-appellees Amazon and its Audible subsidiary seek the "automatic dismissal," under Federal Rule of Appellate Procedure 31(c) and 9th Circuit Rule 31-2.3, of plaintiff-appellant Tracy McCarthy’s appeal for failure to prosecute, said their motion Monday (docket 23-35605) in the 9th U.S. Circuit Court of Appeals. McCarthy’s opening brief in her appeal was due Nov. 14 under a Sept. 19 time schedule order, said the motion. The docket shows that McCarthy didn’t move for any extension of the time to file her opening brief, nor did she file the brief itself by the Nov. 14 deadline, it said: “This appeal is therefore subject to automatic dismissal and should be closed.” Monday's Amazon/Audible motion to dismiss apparently sparked McCarthy Tuesday to hastily file a "steamlined request" for extension of time to file her opening brief by Dec. 14, according to a text-only entry in the docket. McCarthy followed that up later Tuesday with a formal opposition to the motion to dismiss, saying she had intended to move for an automatic extension of the filing date for her opening brief to Dec. 14, "but inadvertently failed to do so." McCarthy is appealing the district court’s dismissal of her first amended complaint in which she alleged that Amazon engaged in deceptive business practices when it offered her credits as a benefit of being a Prime member. When she redeemed those credits for an audio version of a book she wanted to buy, she was unknowingly enrolled in an Audible monthly subscription service and charged a recurring fee without any clear and conspicuous notice of that enrollment. Her 9th Circuit appeal asserts that the district court erred when it dismissed her claims as time-barred and when it held that she failed to plausibly plead her claims against Amazon and Audible for unjust enrichment.

Former Amazon third-party seller Zongheng Domain Network Co. seeks the reconsideration of U.S. District Judge Jennifer Rochon’s Nov. 7 denial of its petition to vacate an arbitrator’s award in Amazon’s favor (see 2311090003), said its memorandum of law Monday (docket 1:23-cv-03334) in U.S. District Court for Southern New York in Manhattan in support of its motion to reconsider. Zongheng sought recovery of $508,000 in sales proceeds that Amazon seized, and the arbitrator let Amazon keep, when it deactivated the seller’s online store for allegedly manipulating customer product reviews (see 2305080023). The judge previously denied Zongheng’s motion to remand the petition to New York Supreme Court where it originated before Amazon removed it to federal court April 20 (see 2307210035). New evidence that came to Zongheng's attention in early November showing the “evident partiality and misconduct” of the arbitrator, Carol Heckman, warrants vacatur of the arbitration award and the remand of this case to the American Arbitration Association “for arbitration proceedings before an impartial decision maker,” said the memorandum. Zongheng alleges that Heckman failed to disclose that she previously ruled in Amazon’s favor in a 2020 arbitration involving another third-party seller, it said. The new evidence “exposes” her misconduct, which has prejudiced Zongheng’s rights “to a fair hearing and due process under the law,” it said. The AAA’s code of ethics requires an arbitrator to disclose “any interest or relationship likely to affect impartiality or which might create an appearance of partiality,” it said. “Once an arbitrator discloses that she or he ruled in favor of the sellers or Amazon, another party would not select him or her in the ranking list in the first place since parties already know their position or opinion concerning the same legal issues,” it said.

Plaintiff Mark Walters is appealing to the 11th U.S. Circuit Court of Appeals the Oct. 25 denial by U.S. District Judge Michael Brown for Northern Georgia in Atlanta of Walters’ Oct. 6 motion for an award of $8,400 in attorney’s fees, according to Walters’ notice of appeal Thursday (docket 1:23-cv-03122). The denial of the motion for attorney’s fees came in the same order where the judge remanded Walters’ defamation complaint against OpenAI to state court for OpenAI’s failure to establish subject-matter jurisdiction by showing diversity of citizenship of its limited liability company members (see 2310260025). OpenAI removed Walters’ complaint to federal court July 14. Walters argued in his motion for attorney’s fees that it’s now “impossible to know for certain” whether OpenAI had “an objectively reasonable basis for seeking removal” in the first place. Walters incurred “significantly increased costs” as a result of the removal, it said. His counsel spent 21 hours on the case after removal, “with such time being necessitated by the removal,” it said. A nationally syndicated talk show host, Walters alleges OpenAI’s ChatGPT service defamed him to a reporter (see 2307240031).

Plaintiff Comcast Spectacor, owner of the Philadelphia Flyers, seeks to stay briefing on defendant Factory Mutual’s motion to dismiss, pending the resolution of two insurance cases in the Pennsylvania Supreme Court and a third in the 3rd U.S. Circuit Court of Appeals, said Spectacor’s unopposed motion Thursday (docket 2:23-cv-02476) in U.S. District Court for Eastern Pennsylvania in Philadelphia. Spectacor, which also owns Wells Fargo arena, is suing Factory Mutual to recover losses it incurred when COVID-19 forced the cancellation or curtailment of Flyers' games in 2020 and 2021 (see 2306290001). Spectacor alleges that Factory Mutual refuses to honor the terms of the property insurance policy the team bought to protect it against catastrophic losses. Spectacor seeks the briefing stay because it believes many of the issues raised in Factory Mutual’s motion to dismiss “may be impacted” by the forthcoming decisions in the Pennsylvania Supreme Court and the 3rd Circuit, said its motion.

The 38 plaintiffs seeking to hold Spectrum and Hawaiian Telcom, among dozens of named landowner, state, municipality and utility defendants, liable for negligence that caused the Aug. 8 Lahaina wildfire (see 2311150004) filed a Local Rule 40.2 notice Wednesday (docket 1:23-cv-00459) with the U.S. District Court for Hawaii of two related federal class actions pending in the District of Hawaii. Neither of the two related cases names the telecommunications companies as co-defendants. One of the two related cases, Naki v. State of Hawaii et al (docket 1:23-cv-00435), was removed Oct. 25 to federal court by a group of six landowner defendants. It doesn’t name Spectrum, Hawaiian Telcom, nor any of the electric utilities that were named co-defendants in the case, Eder et al v. Maui Electric Co. et al, that Spectrum removed to federal court Tuesday. The 38 named plaintiffs in Eder allege that the utilities were negligent in not replacing their dilapidated wooden poles. They also seek to hold Spectrum and Hawaiian Telcom liable for overloading the poles with telecommunications equipment that further destabilized the poles amid the National Weather Service’s high-wind warning. They allege the Lahaina wildfire was sparked when one of the poles snapped under the heavy weight of the telecommunications equipment. The second related class action, Burnes et al v. Hawaiian Electric (docket 1:23-cv-00452), does name four electric utilities as co-defendants as does Eder, but not the telecommunications companies. The same six landowner defendants that removed Naki to federal court Oct. 25 also removed Burnes on Nov. 6. The three class actions are related because they all bring class claims arising from the Lahaina wildfire on Aug. 8, said the plaintiffs' notice: “The allegations of each case all stem from the same incident and involve common facts.” All three cases are brought on behalf of putative classes “who have suffered property and economic loss and bring claims for negligence and nuisance against common defendants,” said the plaintiffs’ notice. Each case “presents allegations as to the defendants’ failures to act in the best interest of public safety and common issues as to causation, liability, and damages” arising from the “deadly” Lahaina wildfire, it said. The wildfire killed more than 100 and destroyed hundreds of homes and businesses.

Plaintiff Digital Will has voluntarily dismissed its complaint against Apple after being wrongly accused, it said, of violating the Apple Developer Program (ADP) license agreement, said its notice Wednesday (docket 5:23-cv-04266) in U.S. District Court for Northern California in San Jose. Each party will bear its own court costs and attorneys’ fees, said the notice. Digital Will, a Japanese games and apps developer, alleged in an Aug. 21 complaint that Apple, in a March 2022 “boilerplate message,” abruptly deactivated its ADP membership for fraudulent conduct without identifying “any specific issues” that prompted the deactivation. Digital Will’s ADP membership “has never been used for dishonest or fraudulent activity,” said its complaint. Apple never answered the complaint after being granted two deadline extensions in September and October. Nov. 29 was Apple's last deadline to answer or otherwise respond to the complaint.

Robert F. Kennedy Jr. is appealing the denial of his motion for preliminary injunction heard Tuesday in a First Amendment lawsuit vs. Google, said his notice of appeal (docket 3:23-cv-03880) Wednesday in the 9th Circuit U.S. Court of Appeals. U.S. District Judge for Northern California Trina Thompson found that Kennedy, a 2024 independent presidential candidate, “does not allege any deprivation of rights caused by state action, and the First Amendment claim fails as to Google as Google has not been established as a state actor,” said her text-only entry Tuesday. Kennedy sued Google in July (see 2308030049), alleging it censored his viewpoints on vaccines and other subjects under pressure from the Biden administration. He sought a preliminary injunction enjoining Google from removing his anti-vaccine videos on YouTube that violated its medical misinformation policy. In September, the 9th Circuit said it lacked jurisdiction over Kennedy’s emergency motion for injunction pending appeal following the district court’s denial of his application for a temporary restraining order vs. Google (see 2309210031).