The plaintiffs’ opposition to Weee’s motion to dismiss their May 11 consolidated class action arising from a February data breach (see 2308300034) provides no reason for the court to deny the motion and allow the complaint to proceed, said the Asian American online grocery chain’s reply memorandum Monday (docket 4:23-cv-02314) in U.S. District Court for Northern California in San Francisco. Despite admitting that the complaint lists the information that was potentially affected in the data breach, the plaintiffs “continue in their quest to blatantly misstate the facts” about the breach and the harms they allege as a result in order to allow the complaint to survive, it said. Their arguments should be rejected, and the complaint “should be dismissed in its entirety,” said Weee. In the “unlikely event” that any portion of the complaint survives the instant motion to dismiss, “at the very least, the class action allegations should be stricken,” it said. Though relief of that sort “may be rare at the pleading stage,” the plaintiffs’ opposition “simply points to other data breach class actions which have been certified for settlement purposes only,” it said. Yet their opposition “advances no logical argument” why the court should allow this matter to proceed “in the face of patently insufficient allegations,” it said. Their complaint demonstrates that the plaintiffs “will never be able to meet the requirements of Rule 23" and certify the putative classes that they seek to represent,” it said. Striking of the class-action allegations “is appropriate,” it said.

Walmart takes fraud against its customers seriously, “and for years has implemented a robust anti-fraud program designed to defeat the various scams the FTC identifies in its complaint,” said Walmart’s reply Monday (docket 1:22-cv-03372) in U.S. District Court for Northern Illinois in Chicago in support of its Aug. 11 motion to dismiss the commission’s June 30 first amended complaint for failure to state a claim (see 2308140007). The FTC alleges Walmart continued to process fraud-induced money transfers at its stores and failed to do enough to warn consumers of the risks and help them make informed choices. But the results of Walmart’s anti-fraud initiatives “are impressive,” said the retailer’s reply. The FTC doesn’t dispute that the vast majority of money transfers -- more than 99.9% overall -- “are legitimate,” it said. “This case involves the tiny fraction of transfers in which third-party criminals trick customers into using Walmart’s service to send them money,” it said. When those “isolated instances” of criminal activity “unfortunately occur,” Walmart “routinely partners with law enforcement to protect its customers and bring fraudsters to justice,” it said. The FTC nevertheless “is set on blaming Walmart for the criminal misconduct of others,” it said. But the agency’s Telemarketing Sales Rule isn’t “an all-purpose tool that can be wielded against companies offering legitimate services to the public, just because a small number of bad actors sometimes use those services to commit crimes,” it said. TSR liability is “carefully limited” to entities that knowingly provide substantial assistance to sellers or telemarketers that defy the law, it said. The court “rightly said the FTC’s initial complaint failed to satisfy any of these essential requirements,” it said. The FTC’s Sept. 15 opposition brief to Walmart’s motion to dismiss (see 2309180033) “confirms that nothing has changed” since the agency’s original complaint, said Walmart’s reply. Its new complaint “still fails to allege that Walmart’s provision of everyday money-transfer services amounts to substantial assistance” of fraudsters, it said. The FTC also doesn’t allege that Walmart “knew the transactions at issue were illegal,” it said. The commission doesn’t even “properly allege” the alleged scams qualify as telemarketing under the “governing regulatory definitions,” it said. For all these reasons, the FTC’s TSR claims “should again be dismissed, this time with prejudice,” it said.

Plaintiff Emilio Pousa added plaintiff Gerald Gott of Lake County, Indiana, to his fraud claim against Western Digital for malfunctioning SanDisk Extreme solid-state portable hard drives (SSD), said a Monday amended complaint (docket 3:23-cv-04281) in U.S. District Court for Northern California in San Jose. The SanDisk Extreme Pro SSD 2TB portable SSD Gott bought from authorized retailer Best Buy for $213.99 in March is “essentially worthless to him,” it said. The original and a replacement SSD failed and Gott can “no longer trust using the drives,” said the complaint. Gott can’t return the drive for a full refund and has expended resources to retrieve lost data or to use a replacement hard drive, plus other damages, the complaint said. Gott contacted Western Digital multiple times about providing compensation for his losses, plus a “functional replacement SSD,” but defendants “failed to do so,” it said. Pousa’s August (see 2308240026) class action alleges his SanDisk SSD failed shortly after first use in December. Despite repeated requests over the past eight months for a full refund or working replacement, Western Digital didn’t send a replacement until September. By then, Pousa had bought a drive from Samsung for $1,400, said the filing. The amended complaint adds claims of violation of the Consumers Legal Remedies Act and Magnuson-Moss Warranty Act.

T-Mobile and Sprint Solutions voluntarily dismissed their petition seeking to vacate an arbitration award issued to respondent Wireless World, said their Monday notice of voluntary dismissal without prejudice (docket 2:23-cv-01337) in U.S. District Court for Western Washington in Seattle. The petitioners asserted the arbitrator in the case, retired Washington Supreme Court Justice Faith Ireland, “exceeded her powers” by voiding integral provisions of an arbitration agreement (see Ref:2308290041]). Wireless World, a former Sprint dealer that “voluntarily” sold its stores after the T-Mobile-Sprint merger, exited the business in September 2021. A few days later, the retailer initiated an arbitration against T-Mobile and Sprint with the JAMS Seattle office, demanding 10 claims for relief, including fraud, contract and statutory claims. All were based on Wireless World’s assertion that T-Mobile’s decision to “close redundant stores” was improper in light of the parties’ contracts and “alleged representations” made by T-Mobile, it said. On April 7, in advance of the final merits hearing, T-Mobile sent Wireless World a qualifying offer of settlement under their retail service agreement (RSA), but Wireless World didn’t submit its own offer of settlement, “rendering it unable to collect attorneys’ fees and costs under the arbitration agreement,” the petition said. Following a five-day final hearing in May, Judge Ireland issued an interim award June 13, ruling “affirmatively for T-Mobile as to Wireless World’s franchise law claims.” Wireless World prevailed under its claim pursuant to the Washington Consumer Protection Act (WCPA), and Ireland awarded Wireless World compensatory damages. T-Mobile filed a motion to correct the interim award, saying Wireless World wasn't a “prevailing party” under terms of the RSA because it didn’t extend an offer of settlement, the petition said. The carrier argued Ireland “exceeded her authority by ‘award[ing] fees and costs in contravention of a contractual prohibition otherwise.’” At a June 29 hearing, T-Mobile said Ireland exceeded her authority by awarding attorneys’ fees barred by the RSA’s arbitration agreement. On July 13, she issued an addendum denying T-Mobile’s request to correct the interim award, and she issued her final award Aug. 23.

Plaintiffs Saul and Shirley Lassoff dismissed Caesars Entertainment without prejudice from a negligence class action against MGM Resorts and Caesars stemming from a data breach defendants disclosed to the Lassoffs in September (see 2309190037), said a notice of voluntary dismissal (docket 1:23-cv-20419) Monday in U.S. District Court for New Jersey in Camden. Each side will bear its own costs and fees, the notice said. The Lassoffs were MGM Resorts and Caesars Entertainment loyalty customers when their names, address, Social Security and driver’s license numbers, bank account and credit card information were mishandled during the September data breach, said the complaint.

Plaintiff Rebecca Kineman reached a settlement with Experian, and the parties are finalizing the settlement agreement, said her counsel’s notice of settlement (docket 6:23-cv-01437) Thursday in U.S. District Court for Middle Florida in Orlando. Kineman filed a motion for default against the credit reporting agency Monday (see 2310040060). Kineman reached a settlement with TransUnion last month (see 2308010051), and U.S. District Judge Anne Conway dismissed defendant Verizon without prejudice from the action last month (see 2309130043). Kineman's July complaint against the three credit reporting agencies, Verizon Wireless and Fair Collections & Outsourcing (FCO) alleges negligence and violation of the Fair Credit Reporting and Fair Debt Collection Practices acts. The complaint says Kineman is alleged to owe a debt to Verizon for an account she never applied for and that Verizon furnished inaccurate information about her to the agencies. FCO also furnished inaccurate information about her to the CRAs about an apartment lease she never applied for, the complaint said. Due to the false reports, Kineman was denied a loan early this year, the complaint said. When she obtained copies of her credit reports in April with fraudulent information, she found the Verizon account in her name had a “closed” and "in collection" status with all the CRAs with a balance of $1,656; the “inaccurate and fraudulent” FCO account was reported by Experian and TransUnion with a status of “collection” and a balance of $59,195, it said.

Venton Smith and Lending Club reached a settlement in Smith’s June fraud case (see 2306120045) against Capital One and 13 other financial services companies and retailers, said the pro se plaintiff in a Wednesday notice (docket 3:23-cv-02804) in U.S. District Court for Northern California in San Francisco. Smith sued Lending Club and other defendants over the 2019 Capital One data breach in which an Amazon Web Services employee stole data affecting about 106 million customers. Upon finalization of the settlement, Smith will move for dismissal of the negligence case with prejudice, the parties said. Smith has dismissed claims against American Express, TD Bank and Equifax and notified the court of a settlement with JPMorgan Chase in August. Defendant Verizon filed a motion to compel arbitration in the case in July (see 2306120045). Smith alleged the breach led to at least 12 of his accounts being fraudulently accessed to secure loans, merchandise and products totaling $92,300.

One Technologies removed to U.S. District Court for Northern California in San Francisco Wednesday a complaint filed Sept. 1 in Marin County Superior Court in which plaintiff Joel Fink alleges the consumer credit company sent him at least 73 unsolicited and unlawful spam emails in violation of Section 17529.5 of the California Business and Professional Code. The company intends to contest that California courts have personal jurisdiction over it, “including through a motion to dismiss for lack of personal jurisdiction,” said the notice of removal (docket 3:23-cv-05086). One Technologies bills itself as the purveyor of the ScoreSense credit information subscription service, but Fink’s complaint calls the company a “professional spammer.” Each spam email Fink received from the company was “materially false and deceptive,” said the complaint. “They either contained misrepresented or falsified information in the email headers,” or contained information in the subject lines “that were misleading relative to the content of the emails,” it said. The emails didn’t contain information or notifications about Fink’s credit scores, as advertised, but instead enticed him to click on a link that redirected him to buy the company’s products and services, it said. The California resident alleges One Technologies “intended to deceive recipients via spam emails through the use of false or misrepresented information in the subject lines,” said his complaint. The company “went to great lengths to draft its subject lines with the objective of deceiving recipients,” it said.

Pro se plaintiff Venton Smith voluntarily dismissed all claims against American Express, said his stipulated dismissal (docket 3:23-cv-02804) and proposed order to stipulation of dismissal with prejudice Monday in U.S. District Court for Northern California in San Francisco. The parties reached a settlement in principle last month (see 2309080017) in a case arising out of a 2019 Capital One data breach, in which an Amazon Web Services employee stole data affecting about 106 million customers. Smith, whose fraud complaint listed 14 defendants, alleged the breach led to at least 12 of his accounts being fraudulently accessed to secure loans, merchandise and products totaling $92,300. Also Monday, Smith filed a notice dismissing with prejudice TD Bank from the action. The notice was filed before the bank filed an answer or motion for summary judgment, Smith said. Each party will bear its own legal costs.

Plaintiff Rebecca Kineman reached a settlement with Equifax in a negligence case involving fraudulent credit reports, said her counsel in a notice of settlement (docket 6:23-cv-01437) Monday in U.S. District Court for Middle Florida in Orlando. The parties are drafting and finalizing the settlement agreement, it said. Also Monday, Kineman filed a motion for default against defendant Experian, which hasn't filed a response to her July 28 complaint. Kineman reached a settlement with TransUnion, said a Monday notice (see 2308010051), and U.S. District Judge Anne Conway dismissed defendant Verizon without prejudice from the action last month (see 2309130043). The lawsuit against the three credit reporting agencies, Verizon Wireless and Fair Collections & Outsourcing (FCO) alleges negligence and violation of the Fair Credit Reporting and Fair Debt Collection Practices acts. The complaint says Kineman is alleged to owe a debt to Verizon for an account she never applied for and that Verizon furnished inaccurate information about her to the agencies. FCO also furnished inaccurate information about her to the CRAs about an apartment lease she never applied for, it said. Due to the false reports, Kineman was denied a loan she applied for early this year, the complaint said. When she obtained copies of her credit reports in April with fraudulent information, she found the Verizon account in her name had a “closed” and "in collection" status with all the CRAs with a balance of $1,656; the “inaccurate and fraudulent” FCO account was reported by Experian and TransUnion with a status of “collection” and a balance of $59,195, it said.