Amazon owed Homesite Insurance's customer Adam Long “no duty of care” for a battery that allegedly caused a fire that damaged Long's New York home, said Amazon’s answer (docket 6:23-cv-00981) to Homesite’s Aug. 11 complaint in U.S. District Court for Northern New York in Syracuse. The insurer, as Long's subrogee, seeks recovery of damages of at least $356,644, said the complaint, which Amazon removed from New York Supreme Court to federal court (see 2308150068). No act or omission on Amazon’s part caused the alleged damages, it said. Plaintiff’s alleged damages were “proximately caused by the acts and omissions of others over whom Amazon had no control or right of control," said the answer. The complaint’s causes of action are barred by Long’s assumption, either express or implied, “of the risks and dangers, if any, associated with the alleged products, circumstances, conduct, or injuries,” said Amazon, saying it's an “improper party” to the lawsuit because it had no involvement in the underlying event. To the extent that any alleged representations or warranties were made to Long, they were made by entities other than Amazon “and over whom Amazon has or had no control or right of control.” Homesite’s claims are barred because Amazon had no knowledge of any purported defects in the replacement battery before the incident. Plaintiff’s alleged losses, damages, injuries, harm, expenses, diminution, or deprivation “may have been caused in whole or in part” by Long’s failure to exercise reasonable care and to mitigate damages," said the answer. Some or all of Homesite’s claims and available damages “may be barred by or subject to reduction for prior settlements,” it said. Amazon requests dismissal of all claims, plus attorneys’ fees and legal costs.

Defendant SiriusXM will move the court on Sept. 18, or soon thereafter, to compel arbitration and stay a fraud class action involving its pricing policies, it said in a Friday notice (docket 3:23-cv-02680) of motion to compel arbitration in U.S. District Court for New Jersey in Trenton. In the May class action, plaintiffs Robyn Posternock, Muriel Salters and Philip Munning alleged SiriusXM falsely advertises its music plans at lower prices than it actually charges. The music service fails to include in its advertised and promised prices the amount of its “invented ‘U.S. Music Royalty Fee,'" which "increases the true plan price" by 21.4% above the advertised and promised price for each plan, said the complaint. SiriusXM “intentionally does not disclose the royalty fee in any of its advertising or fine print," it said. SiriusXM’s advertising says “fees and taxes apply,” but doesn’t state that the music royalty fee and state taxes are the only components of fees and taxes, it said. SiriusXM prevents consumers from learning about the “scheme” by “never thereafter sending its customers periodic bills or payment receipts,” it said. As the price of music plans increases – when a promotional rate expires – the U.S. music royalty fee, a flat 21.4% charge, “also increases,” alleges the complaint. None of SiriusXM’s competitors charges a separate royalty fee over and above their advertised music plan prices, it said. In its Friday motion, SiriusXM said plaintiffs “should be held to their promises” they agreed to in their customer agreements. The defendant cited a 2022 case, Parrella v. Sirius XM, in which a New Jersey court found that mutual assent to the customer agreement can be implied from plaintiffs’ payment, usage of the service and “extended relationship history,” with the music service. Plaintiffs' counsel, DeNittis Osefchen, represents plaintiffs Christopher Carovillano and Steven Brandt in a similar case in U.S. District Court for Southern New York (see 2306060004).

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.

Plaintiff Eman Bayani and defendant T-Mobile agreed to proceed with an initial phase of discovery in Bayani SIM-swap fraud class action “to determine the number of members of the proposed class and thus whether this action will be maintainable as a class action,” said their joint status report and discovery plan Friday (docket 2:23-cv-00271) in U.S. District Court for Western Washington in Seattle. The parties also agreed to defer additional discovery until the numerosity issue is resolved and the court enters a case schedule following its ruling on T-Mobile’s currently pending motion to dismiss, said the report. Bayani alleges scammers convinced T-Mobile to transfer access to his cellphone number from his registered SIM card to the scammers’ SIM card (see 2303010030). The scammers accessed Bayani’s Coinbase account and lifted more than $24,000 in cash reserves and bitcoin from that account. T-Mobile’s defense is that it cautioned Metro by T-Mobile customers like Bayani not to use their Metro service for authenticating other accounts, warning Metro couldn’t guarantee security, but Bayani did so anyway.

Belkin, trying to fend off allegations it falsely advertised the charging capacity of its power banks for mobile devices (see 2301300008), seeks the entry of a confidentiality order, now that the parties are deep into discovery, said its motion Thursday (docket 1:22-cv-06918) in U.S. District Court for Northern Illinois in Chicago. Plaintiff Dennis Gromov served Belkin with discovery requests that call for the production of documents “containing Belkin’s commercially sensitive, proprietary, and trade secret business information,” said the motion. Some of the documents requested also contain the personally identifiable information of Belkin’s customers, it said. The parties met and conferred about Belkin’s proposed draft confidentiality order, but Gromov’s counsel indicated Gromov won’t consent to the entry of a confidentiality order, it said. Belkin accordingly filed the motion “and submits that good cause exists” for the entry of its proposed order, it said.

Plaintiff X Corp., formerly Twitter, voluntarily agreed to have a U.S. magistrate judge conduct further proceedings in a fraud case against the Center for Countering Digital Hate (CCDH), said a Monday filing (docket 3:23-cv-03836) in U.S. District Court for Northern California in San Francisco. X alleges CCDH US, as a registered user of Twitter, “scraped data” from its platform, “in violation of the express terms of its agreement" with the company. (see 2308010034).

U.S. District Judge Nicholas Garaufis for Eastern New York in Brooklyn granted the parties’ joint proposed briefing schedule in plaintiff Tiffany Troy’s amended data breach fraud class action against the American Bar Association, said the judge’s signed order Monday (docket 1:23-cv-03053). Troy’s amended complaint is due Sept. 1, and ABA’s answer or motion to dismiss is due Oct. 3, said the order. Troy, a registered ABA member, alleges the association’s failure to secure and safeguard its networks enabled a hacker to gain access to the personally identifiable information of up to 1.4 million members in a March 17 data breach (see 2304240050).

The U.S. District Court for New Jersey in Newark should dismiss all the plaintiffs’ 3G telematics class-action claims against Volkswagen Group of America under the New Jersey Consumer Fraud Act (NJCFA), said VWGoA’s reply memorandum Monday (docket 2:22-cv-06230) in support of dismissal (see 2306200001). The plaintiffs are VW and Audi owners in two consolidated class actions who allege VWGoA shortchanged them when it failed to upgrade the telematics equipment in their vehicles after the wireless carriers discontinued their 3G services, rendering roadside assistance and other internet services inoperable. The NJCFA claim can’t be asserted by anyone who didn’t buy a vehicle in New Jersey, and thus can’t be applied “to a proposed nationwide class,” said VWGoA’s memorandum. The plaintiffs “confusingly -- and mistakenly -- contend” VWGoA didn’t identify any conflict between New Jersey’s NJCFA and other states’ laws and “chose to cite New Jersey cases, showing that New Jersey law should apply to a putative nationwide class,” it said. But VWGoA “did identify a conflict between the NJCFA and the consumer fraud statutes of other states, as demonstrated by the supporting case law,” including cases the plaintiffs cite, it said. Courts have “routinely found” that being headquartered in New Jersey isn’t sufficient “to apply the NJCFA to out-of-state consumers,” it said.

Xfinity Mobile’s amended complaint against mobile phone reseller GlobalguruTech (GGT) doesn’t contain any more factual allegations than the original complaint: “It just makes conclusory statements prefaced by ‘upon information and belief’ to try to fill the holes” in the complaint previously identified by the court,” said defendant’s reply brief (docket 2:22-cv-01950) in support of its motion to dismiss four counts of a fraud case in U.S. District Court for Arizona in Phoenix. The court said in June most of the claims in Xfinity’s motion to dismiss were properly pled, but four were lacking. The court previously dismissed a civil conspiracy claim, saying only GGT and Guru Holdings were named. The amended complaint still alleges Jakob Zahara is the sole member that owns and manages the other two named defendants; Xfinity “still has not named any other defendants” but instead alleged a “conspiracy” between defendants and nonparties SNU Unlockers, referred to as an “overseas bulk unlocker,” Juanita S. and Morgan G, whom GGT called “placeholders for co-conspirators to be named later.” Xfinity’s patent infringement claims -- counts 10, 11 and 12 -- should be dismissed because GGT’s use of the Xfinity logo for sellers to use on its website is “permissible under the doctrine of nominative fair use,” it said. Xfinity cited in its response three prongs to determine nominative fair use: that a product is “readily identifiable” without use of the mark; if the defendant used more of the mark than necessary; and if the defendant falsely suggested he was sponsored or endorsed by the trademark holder, said the reply. GGT argued it met all three factors; the court agreed and dismissed counts 10-12, it said. Plaintiffs argued mere usage of the Xfinity logo suggested an affiliation with it, citing cases where defendants used the market in connection with resale of products to consumers. But GGT used the logo only "so the seller of the phone can identify the type of phone they want to sell,” the defendant said. “Plaintiffs must allege more than simply the seller’s use of the Xfinity mark to identify the type of phone to show that GGT was falsely suggesting an affiliation with or an endorsement from Xfinity,” it said. Because the court already gave Xfinity the chance to amend its four claims, “the dismissal should be with prejudice,” said the reply. XM’s Nov. 16 complaint (see 2211300025) alleges the defendants use XM’s financial incentives to buy phones via “unlawful methods” to circumvent policies intended to protect the company and its customers, and then resell the phones “for a substantial profit.”

Verizon’s sign-up policies and practices deceive customers by prominently advertising flat monthly rates for its postpaid wireless service plans, alleged an amended class action (docket 3:23-cv-01138) brought by 50 consumers Friday in U.S. District Court for New Jersey in Trenton. After consumers sign up, Verizon charges them higher monthly rates than it advertised and pads their bills with an “administrative charge” that’s currently $3.30 per line on top of the advertised price, said the complaint. The ‘fictitious’ administrative charge allows Verizon to “unlawfully charge its customers more per month for Verizon wireless services without having to advertise the higher monthly rates,” it said. The carrier first began “sneaking” the charge into postpaid customers’ bills in 2005, initially at 40 cents per month for each line and has repeatedly bumped the amount on a regular basis, said the complaint. The most recent increase was on June 23, 2022, when Verizon raised the administrative charge 70% from $1.95, it said. Verizon has used the charge as a “revenue lever to covertly jack up its monthly service prices and to squeeze its existing subscribers for more cash" whenever it desires, it said. To date, the carrier has “improperly collected billions of dollars in additional, unlawful charges” from the proposed class members through the scheme, it said. Only after customers sign up for wireless service -- and are “financially committed to their purchase and cannot cancel without penalty" -- do customers learn of the charge, the complaint said. Verizon then “deliberately and affirmatively omits or misrepresents” the charge on billing statements. Its paper bills fail to mention the charge at all, telling customers to “check your online bill for all surcharges, taxes and gov fees,” it said. On online bills, Verizon omits the charge from the monthly charge section, “where it actually belongs,” and puts it under surcharges, “where it is lumped together with various government charges, taxes, and fees,” the complaint said. For years, the company “explicitly and falsely stated” on the bill that the charge is imposed on subscribers to “cover the costs that are billed to us by federal, state or local governments.” By its own design, Verizon’s monthly billing statements served to further its “deceptive scheme and keep customers from realizing they are being overcharged,” it said. On a support page, Verizon gives a different definition of the charge, claiming it’s tied to operating costs, including telephone company interconnect charges and network facility and service fees -- "all of which are basic costs of providing wireless service, and which a reasonable consumer would expect to be included in the advertised price for any wireless service plan,” the complaint said. Verizon doesn’t adjust the amount of the charge based on changes to its costs, but it “unilaterally sets and increases” the amount of the charge “based on its internal revenue targets,” it said. Verizon’s “misrepresentations on bills that the charge is imposed on subscribers to recover the costs" billed to Verizon by the government "were false statements of material fact intended to discourage customers who discovered the Administrative Charge from questioning or objecting to the Charge,” it said.