The U.S. District Court for Western Washington in Seattle erred when it dismissed plaintiff-appellant Tracy McCarthy’s fraud claims against Amazon and Audible as time-barred, said McCarthy’s mediation questionnaire Monday (docket 23-35605) at the 9th U.S. Circuit Court of Appeals. McCarthy alleges Amazon engaged in deceptive business practices when it provided “credits” as a “benefit” of being a Prime member, said the questionnaire. When Prime members redeemed those credits for the audio versions of books they wanted to buy on Amazon, they were unknowingly enrolled in Audible for a continuous monthly fee “without any clear and conspicuous notice of such enrollment,” it said. In seeking to reverse the district court’s ruling that her claims under New York’s General Business Law were time-barred, McCarthy argues she was improperly charged a monthly fee for Audible within the three-year statute of limitations for GBL claims, said her questionnaire. For the monthly charges that occurred beyond the three-year statute of limitations, it said, McCarthy properly alleged tolling under New York’s “continuing violations doctrine” and by alleging defendants Amazon and Audible “fraudulently concealed the facts giving rise to her claims,” it said. McCarthy also asserts the district court erred by concluding that she failed to allege “a misleading statement of practice,” said the questionnaire. McCarthy presented the court with “particularized factual allegations,” including specifically “what was misleading,” plus the “causal connection between the misleading statements and her purported injury,” it said.

Plaintiff Jose Alarcon and T-Mobile request dismissal of their entire case with prejudice, and agree to bear their own fees and costs, said their joint stipulation Thursday (docket 2:22-cv-07831) in U.S. District Court for Central California in Los Angeles. The parties notified the court July 26 they reached a settlement in Alarcon’s debt-collection complaint (see 2307270031). Alarcon alleged under the Fair Debt Collection Practices Act that T-Mobile made no attempt to investigate his identity theft claims but instead kept trying to collect from him the debt on the fraudulent account and reported his delinquency to the major credit agencies.

The failure of plaintiff Helen Jia to file her opposition to Weee’s motion to dismiss her data breach complaint by the Sept. 11 deadline “was an error, albeit one counsel does not take lightly,” said her attorney, Blake Lindemann, in a declaration Thursday (docket 4:23-cv-02314) in U.S. District Court for Northern California in Oakland. His declaration was in response to the court’s Sept. 13 show cause order to explain why Jia’s opposition was never filed. Lindemann has now prepared a draft opposition brief to the motion to dismiss, and believes Jia “can oppose the motion to dismiss in good faith,” he said. He requested the opportunity to finalize the brief, and seeks leave to file it, with a reasonable reply brief deadline afforded to the defendant Weee.

Amazon won't put a stop to customer complaints about Ultcover products on its website, alleged plaintiff Doctor Cover, an outdoor furniture cover business that has never sold its products on Amazon’s e-commerce site, said a Tuesday complaint (2023CUBT014189) in California Superior Court in Ventura County. Doctor Cover sells furniture covers from retail storefronts and on its own website. Though it never sold its products on Amazon, Doctor Cover's competitor, China-based Xiamen Supurui Trading, sells low-cost furniture covers on Amazon’s marketplace, including under the names Ultcover and Superella, said the complaint. In December 2020, Doctor Cover began receiving customer complaints about Ultcover products bought on Amazon.com; many requested returns and refunds, the complaint said. The unsatisfied customers of Ultcover products purchased on Amazon.com “were improperly and erroneously directed by” Amazon to Doctor Cover instead of Xiamen, it said. “Promptly” and on numerous occasions, the plaintiff contacted Amazon via email, phone calls and written correspondence, requesting that the e-tailer “cease all referrals to Plaintiff of customer complaints and enquiries resulting from the purchase of Xiamen products or any other unaffiliated third-party seller.” The plaintiff urged Amazon to implement measures to ensure “accurate and appropriate referrals, avoiding any additional confusion.” Despite the ongoing requests to Amazon, Doctor Cover continues to receive an average of two to three Xiamen customer complaints per week, it said. The continued referral of unsatisfied customers resulted in “unfair and undue strain” on Doctor Cover; it also disrupted its normal operations and led to a loss of productivity and other financial implications, the complaint said. Doctor Cover asserts claims against Amazon of Unfair Competition under California’s Business and Professions Code and negligent interference with prospective economic relations. It seeks compensatory damages, legal fees and a preliminary and permanent injunction enjoining Amazon from referring Xiamen customers, or any other third-party seller, to Doctor Cover.

The FTC began notifying some 37 million people by email who may be entitled to compensation stemming from a March settlement with Epic Games over allegations it used “dark patterns” and other deceptive practices to trick Fortnite players into making unwanted purchases, said the agency Tuesday. The December complaint alleged Epic made it easy for children to rack up charges without parental consent and locked the accounts of consumers who disputed unauthorized charges with their credit card companies. The money provided as part of the $245 million settlement will go for consumer refunds. Consumers have until Jan. 17 to submit a claim.

Plaintiff-appellant Tracy McCarthy’s mediation questionnaire is due Sept. 26 in her appeal that seeks to reverse the district court’s Sept. 7 dismissal of her fraud claims against Amazon and Audible, said a time schedule order Tuesday (docket 23-35605) in the 9th U.S. Circuit Court of Appeals. McCarthy’s opening brief is due Nov. 14, and Amazon’s answering brief is due Dec. 14, said the order. McCarthy, a Prime member, asserted claims of deceptive practices, false advertising and unjust enrichment, alleging Amazon duped her into enrolling in a monthly Audible subscription plan that left her on the hook for nearly $600 in charges that she didn’t authorize. But the district court said McCarthy’s claims were time-barred and she failed to allege a misleading statement or practice, defeating most of those claims. McCarthy alleged Amazon touted free titles and an invitation to start an Audible trial membership, and that she received a free title and a trial membership, exactly as Amazon had touted. She therefore failed to allege deception in Amazon’s promotional language. She also complained she wasn’t adequately informed about the details of the membership, but she admitted she didn’t read the conditions, said the district court. Her arguments were unpersuasive, and her allegations were insufficient to establish deception in Amazon’s promotional material or during the purchase transaction, the court said.

Pennsylvania personal injury attorney Saul Lassoff filed a fraud complaint Monday (docket 1:23-cv-20419) in U.S. District Court for New Jersey in Camden on behalf of himself, his wife Shirley and a proposed class of MGM Resorts International and Caesars Entertainment customers whose personal data was “negligently mishandled” since March 1. Lassoff investigated news articles, public filings, press releases and "other matters of public record” in preparation for his class action, it said. The Lassoffs, Pennsylvania residents, were MGM Resorts and Caesars Entertainment loyalty customers during the class period when their names, address, Social Security and driver’s license numbers, bank account and credit card information were mishandled, said the complaint. Defendants notified plaintiffs Sept. 7 that their personal information had been compromised, and instructed them to file fraud alerts with the Pennsylvania Dept. of Motor Vehicles, their credit card company and national credit bureaus; order a credit report; register for credit monitoring; contact the FTC; file a local police report; and close affected bank accounts, the complaint said. The required tasks were “extremely burdensome and time consuming for Plaintiffs to complete" and required over six hours over several days, it said. Plaintiffs didn’t specify the nature of the breach, but a Sept. 7 Caesars Entertainment SEC filing referenced “recently identified suspicious activity in its information technology network resulting from a social engineering attack on an outsourced IT support vendor.” Reuters reported Thursday that the Scattered Spider hacking group claimed responsibility, saying it stole 6 terabytes of data from the defendants. The company’s “customer-facing operations, including our physical properties and our online and mobile gaming applications, have not been impacted by this incident and continue without disruption,” said Caesars' filing. But news reports showed frozen slot machines at the MGM casino in Las Vegas over the weekend and reports circulated about malfunctioning electronic key cards. The New York Post reported Monday that MGM had entered its eighth day of “cybersecurity issues” that “silenced slot machines and shut down internal computer systems,” costing the company up to $8.4 million per day in revenue. A Sept. 12 MGM Resorts news release said the company "recently identified a cybersecurity issue” affecting certain company systems. “Promptly after detecting the issue, we began an investigation with assistance from leading external cybersecurity experts,” said the company, which notified law enforcement and is “taking steps to protect our systems and data, including shutting down certain systems.” The company's investigation is “ongoing,” it's working “diligently to resolve the matter” and it will continue to implement measures to secure its business operations “and take additional steps as appropriate." The Lassoffs assert claims of breach of fiduciary duty and negligence. They seek an award for themselves and the class of compensatory damages for all damages sustained as a result of defendants’ wrongdoing, pre- and post-judgment interest “from the date of entry until the date of satisfaction,” plus legal fees and costs.

Tennessee Assistant Attorney General Jonathan Stein moved the court to order TikTok to comply with the AG’s office request for information entered April 17, said his motion to compel Friday (docket 23-0298-1) in Chancery Court of Davidson County for the 20th district at Nashville. The office of Tennessee AG Jonathan Skrmetti (R) asks the court to order TikTok to provide a corporate designee with knowledge of the relevant issues for a deposition and to produce the legal hold notices it circulated to employees in connection with the state’s investigation, said the motion. The state is investigating TikTok under the Tennessee Consumer Protection Act of 1977 for alleged unfair and deceptive business acts and practices in connection with its social media platform used by consumers in Tennessee and elsewhere, said the motion. The state filed the motion to compel to learn the scope of relevant data that TikTok “may have destroyed” during its investigation, and it asked that the court compel TikTok to produce a witness who could provide insight on the matter. The parties resolved the motion to compel through an agreed order requiring TikTok to produce a witness for examination on topics related to its “destruction of evidence,” said Stein. TikTok has not provided a witness “sufficiently knowledgeable about this topic,” Stein said, saying the witness it did provide was “either unwilling or unable to answer questions on topics clearly identified” in the agreed-on order. The order also requires TikTok to produce documents about the examination, but the defendant refused to produce the complete litigation hold notices it circulated to employees in connection with the investigation “and has instead asserted privilege,” it said. TikTok's privilege claim is “baseless because there is sufficient evidence to support a preliminary finding of spoliation,” said the motion. The state also seeks an order requiring TikTok to pay its legal costs in the matter.

Pro se plaintiff Venton Smith voluntarily dismissed with prejudice claims against Equifax, said his stipulation Monday (docket 3:23-cv-02804) in U.S. District Court for Northern California in San Francisco. Equifax was one of 14 defendants named in Smith’s June fraud complaint involving the 2019 Capital One data breach, in which an Amazon Web Services employee stole data affecting some 106 million customers. Smith alleged the breach led to at least 12 of his accounts being fraudulently accessed to secure loans, merchandise and products totaling $92,300. Smith and Equifax will bear their own legal fees, said the filing.

T-Mobile anticipates moving to compel arbitration of each of the dozens of named plaintiffs’ claims in the multidistrict litigation arising from its 2022 data breach, said the parties’ joint proposed agenda Monday (docket 4:23-md-03073) in U.S. District Court for Western Missouri in Kansas City in anticipation of their Sept. 29 initial pretrail conference. T-Mobile submits that, consistent with the Federal Arbitration Act, discovery should be stayed pending resolution of T-Mobile’s anticipated motions to compel arbitration, said the proposed agenda. Without such a stay, the parties’ arbitration agreements “will be undermined and T-Mobile will be deprived of the benefits of the agreements,” it said. Those benefits include avoiding the costs associated with the “full-blown” discovery in court “in favor of the more efficient and streamlined discovery afforded in arbitral proceedings.” The plaintiffs propose the parties meet and confer within 14 days of a motion to compel arbitration “with respect to any necessary arbitration discovery, including any information bearing on the enforceability of arbitration,” said their portion of the joint proposed agenda. The plaintiffs’ statement is silent on T-Mobile’s preference to stay discovery pending resolution of the motion to compel.