Plaintiffs Bettye Foster and Deborah Hunter and defendant Fitbit “are in active settlement discussions that may resolve this matter in its entirety and obviate the need for further proceedings,” said their joint case management statement Thursday (docket 3:23-cv-02753) in U.S. District Court for Northern California in San Francisco. The June 2 putative fraud class action alleges Fitbit fitness trackers are “incapable” of rendering accurate blood oxygen readings for people of color, yet Fitbit conceals that incapability from the buying public (see 2306030001). U.S. District Judge Trina Thompson had ordered the joint statement in preparation for an initial case management conference scheduled for Aug. 31. The parties dispensed with a full joint case management statement “to avoid burdening” the court in light of the ongoing settlement talks, they said, and asked that the conference be taken “off-calendar.” The parties by Aug. 31 will either submit an update on the settlement status or plaintiffs Foster and Hunter will file a dismissal, said the statement.

Pro se plaintiff Venton Smith, who sued more than 20 merchants, banks and credit reporting agencies June 7 (see 2306120045), alleging his personally identifiable information was exposed in the 2019 Capital One data breach, filed motions for default judgments against two defendants Tuesday in U.S. District Court for Northern California in San Francisco. Lending Club was served a copy of the summons and complaint June 8 but failed to respond, said one motion (docket 3:23-cv-02804); similarly, American Express failed to respond to the summons, complaint and motion for default judgment, said another motion. Smith asked the court to award from each defendant relief of $42,500 under the California Identity Theft Law and negligent and willful violation of the Fair Credit Reporting Act, including actual and statutory damages, plus costs. The court ordered American Express and Lending Club to reply to the motion for default by Aug. 22 (see 2308080046), but they failed to do so, Smith said.

U.S. District Judge Robert Hinkle for Northern Florida in Tallahassee granted Sony’s unopposed motion for leave to file a reply memorandum in support of its motion to compel arbitration in a fraud lawsuit over an allegedly defective camera shutter, said his signed order Wednesday (docket 4:23-cv-00177). The reply memorandum, due by Sept. 1, may address any subject and must explicitly state whether there's evidence that, at or near the time of plaintiff Hannah Lewis’ buy of her Alpha 7 III camera, she received a hard copy of a document with the alleged arbitration agreement or accessed a website with the alleged arbitration agreement, Hinkle said. Lewis alleges Sony denied coverage to customers who experienced shutter failure on the camera for claims submitted outside the limited one-year warranty period. In its motion to compel arbitration (see 2308080034), Sony cited its printed one-year limited warranty containing an arbitration agreement and class-action waiver “requiring arbitration on an individual basis for any disputes ‘related to the product.’”

Plaintiff Josh Mentzer has already amended his pleading once in response to defendant Energizer’s Rule 12(b)(6) arguments, but he waited until his Aug. 8 opposition to Energizer’s motion to dismiss to tell the court he intends to again amend his pleading (see 2308090034), said Energizer’s reply Tuesday (docket 2:23-cv-02028) in U.S. District Court for Central Illinois in Urbana in support of dismissal. Mentzer alleges Energizer overstates the advertised charging capacity of its power banks by 40% compared with the actual experiences of real consumers. Mentzer indicated in his opposition his second amended complaint will abandon his consumer fraud multistate class, including the second of his two proposed classes, said Energizer’s reply. He also intends to abandon claims for alleged breaches of the Magnuson-Moss Warranty Act, his claim for alleged negligent misrepresentation and his prayer for injunctive relief, it said. That would narrow his action to a single putative class of people in Illinois who bought the product, alleging four remaining causes of action, it said. Mentzer’s opposition “fails to salvage” his case, said Energizer.

The three plaintiffs in the first of several class actions that accuse SiriusXM of a false advertising scheme want the U.S. District Court for Northern California in San Francisco to deny SiriusXM’s July 24 motion to compel their claims to arbitration (see 2307250031), said their opposition Tuesday (docket 3:23-cv-02367). The plaintiffs allege SiriusXM falsely advertises its music plans at lower prices than it actually charges. They’re challenging the enforceability of SiriusXM’s arbitration agreement on the grounds that one of the agreement's provisions, called the “class action waiver,” contains two clauses that violate California public policy, said their opposition. Those clauses amount to “an unlawful waiver of the right to pursue class litigation in court and an unlawful waiver of the right to pursue public injunctive relief in arbitration,” it said. If the court concludes that one or both of these provisions are unenforceable as written, “then the agreement’s poison pill requires that the entire arbitration agreement be deemed null and void,” it said. That’s exactly what the plaintiffs are asking the court to do, it said.

Plaintiff Locust Group invested in defendant Michael Russell’s startup, JMBT Live, owner of the Tilt entertainment platform, “with an expectation that Russell would make progress with JMBT and that the information regarding the progress shared by Russell was accurate,” said Locust’s opposition Monday (docket 1:23-cv-04203) in U.S. District Court for Southern New York to JMBT’s Aug. 8 motion to dismiss (see 2308090041). “Unfortunately, that has not been the case,” said the opposition. “As a result, Locust had to file this lawsuit for fraud and breach of fiduciary duties,” it said. In asking the court to dismiss Locust’s claims, JMBT and Russell ignore Locust’s “well-pled allegations” involving JMBT’s and Russell’s “misrepresentations and scienter,” it said. They ask this court “to make factual determinations at the motion to dismiss stage,” it said. But Locust’s allegations “are more than sufficient to withstand” the defendants’ motion to dismiss, it said. Locust’s main assertion is that JMBT and Russell falsified the status of the company’s contracts and negotiations with prospective content partners (see 2305220037). The JMBT-Russell motion to dismiss contends the lawsuit should never have been filed, and Locust’s complaint can’t identify a single false statement JMBT or Russell made to investors.

AT&T’s Aug. 1 motion to dismiss (see 2308020058) should be denied because plaintiffs EDN Global and CEO Jerome Edmondson “alleged facts, which, if proven, state a claim for relief on each claim asserted,” said the plaintiffs’ opposition Monday (docket 3:23-cv-00355). The case stems from when Edmondson became AT&T’s first authorized minority dealer for the Commerce Department’s FirstNet public safety broadband network (see 2307130013). He alleges he lost more than $100 million in damages after AT&T pilfered his trade secrets, and inserted an all-white AT&T sales team to replace a qualified all-African American sales team and destroyed the sales organization he built. AT&T’s facts are inaccurate about the breach of contract, said the opposition. The contract claims against AT&T didn’t accrue until March 2021, it said. The plaintiffs also filed their action in June 2022, “well within the statute of limitations,” it said. The plaintiffs’ tort claims aren’t barred by the economic loss rule, it said. The tort claims are independent of the alleged contract with AT&T, and the plaintiffs’ losses aren’t “purely economic,” it said. If the economic loss rule is found to be applicable, “its application is barred by the misrepresentation exception,” it said.

Experian is enjoined from treating an email as a transactional or relationship message if the primary purpose is the advertisement or promotion of a good or service, whether paid or free, and whether the product or service is included as part of a membership, said a Monday order (docket 8:23-cv-01494) signed by U.S. District Judge Fred Slaughter for Central California in Santa Ana. The credit reporting agency agreed this month to pay $650,000 to settle charges it sent consumers unsolicited email without offering them a way to opt out (see 2308150053). Experian doesn’t give consumers “clear and conspicuous” notice of their ability to opt out of receiving marketing messages, and a mechanism for them to do so, in violation of the Controlling the Assault of Non-Solicited Pornography and Marketing Act, said the DOJ’s August complaint. Experian is also enjoined from sending an email that doesn’t have a functioning return email address, conspicuously displayed, that a consumer can reply to; it must also provide a clear and conspicuous way for consumers to opt out of emails, said the order.

Amazon and Audible “attempt to manufacture a pleading failure by ignoring huge swaths” of plaintiff Tracy McCarthy’s first amended complaint (FAC) and ignore the causal connection between their “misleading statements” and her purported injury, said McCarthy’s Monday memorandum of law (docket 2:23-cv-01019) opposing defendants’ motion to dismiss in U.S. District Court for Western Washington in Seattle. McCarthy’s July lawsuit alleges Amazon used a deceptive practice for the Audible audiobook service to target its Prime users for enrollment in Audible through a process “not clear" to members (see 2308010042). The defendants’ assertion that McCarthy’s New York General Business Law (GBL) claims are time-barred because she waited over three years to file her original complaint in April 2022 isn’t true, she said. The FAC “pleaded exactly how both Amazon and Audible actively concealed material information regarding the enrollment of Amazon Prime customers into an unwanted, unauthorized, and unused Audible membership such that the GBL’s statute of limitations was tolled,” McCarthy said. Defendants’ argument that her unjust enrichment claim is duplicative of her GBL claims is wrong because the claims have different elements and remedies, said the memorandum. On defendants’ argument that McCarthy lacks standing to seek injunctive relief “as she faces no risk of future harm,” the plaintiff said she and class members are “realistically threatened” by similar harms in the future. Defendants' motion to dismiss should be "denied in its entirety," said the plaintiff.

The FTC and Florida failed to adequately allege any required elements of their claims, said defendants Chargebacks911 and Gary Cardone and Monica Eaton, owners of parent company Global E-Trading, in a Thursday reply (docket 8:23-cv-00796) to the FTC’s opposition to their motion to dismiss in U.S. District Court for Middle Florida in Tampa. Also, defendants said, Florida Deceptive and Unfair Trade Practices Act (FDUTPA) claims are barred by the four-year statute of limitations and involve conduct that's “explicitly excluded from the FDUTPA under the Banking Activity Exception." Under both the FDUTPA and Section 5 of the FTC Act, an act is unfair when it causes or is likely to cause substantial injury to consumers, isn't reasonably avoidable by consumers, and isn't outweighed by countervailing benefits to consumers or competition, defendants said, citing FTC v. Roca Labs. Plaintiffs failed to meet their burden of plausibly alleging anyone was harmed by CB911’s representment packages or CB911’s value added promotions, said the reply. The FTC and Florida’s April complaint alleges (see 2304130013) Chargebacks911 allowed its clients to run “microtransactions” via prepaid debit cards that artificially lower a merchant’s overall chargeback rate by inflating the total number of transactions running through the merchant’s account, thus lowering the percentage of their charges that were disputed by consumers. Cardone and Eaton used “multiple unfair techniques” to prevent consumers from winning chargeback disputes over unwanted, fraudulent or incorrect credit card charges, said the complaint. The complaint “traces a straight line” from defendants’ misconduct to consumer injury, plaintiffs said in their opposition to a motion to dismiss. Consumers reported to their banks they had been charged without their knowledge and consent, said the response. Defendants submitted representments purporting to show consumers knew about and consented to the charges; as a result, “banks likely have been misled into denying the consumers’ valid chargebacks,” said the FTC.