In his objection to Capital One and Amazon’s July motion to dismiss a fraud case (see 2307100050), pro se plaintiff Venton Smith didn’t dispute that the multidistrict litigation court approved a class action settlement in Capital One Customer Data Security Breach Litigation and he's a member of the settlement class who didn't opt out, said defendants Capital One, Amazon and Amazon Web Services in their Thursday reply memorandum of law (docket 3:23-cv-02804) in U.S. District Court for Northern California in San Francisco. Smith also didn’t dispute that the settlement agreement releases claims against Capital One and Amazon arising out of the data breach, nor that his claims against Capital One and Amazon all arise out of the breach, it said; Smith also doesn’t dispute that those facts are subject to judicial notice. “That is the end of the matter; no further inquiry is necessary,” said the filing. In his lawsuit, Smith, who claims his personally identifiable information was exposed in the 2019 Capital One data breach in which an Amazon Web Services employee stole data affecting about 106 million customers, is suing more than 20 merchants, banks and credit reporting agencies, alleging negligence, unjust enrichment, breach of confidence and contract and violation of California’s Unfair Competition Law. Smith alleges at least 12 existing accounts were fraudulently accessed to buy unknown merchandise using his existing accounts for American Express, Best Buy, Capital One, Chase, Citibank, Macy’s and Nordstrom for a total $92,300 in loans, merchandise and products.

Video game developer FunPlus faces a Sept. 8 deadline to file its motion to dismiss the fraud class action filed May 30 by plaintiffs Yovanni Yanez and Emelyn Matos (see 2306010020, said a text-only order Tuesday (docket 3:23-cv-02667) in U.S. District Court for Northern California in Oakland. The complaint alleges FunPlus advertises false prices to induce players to act quickly to take advantage of limited-time sales. The plaintiffs allege they bought various play packs on the FunPlus Frost & Flame: King of Avalon mobile game app game purporting to save them money but wouldn’t have bought them if they had known about the deceptive advertising, it said.

Plaintiff Jean-Remi Massery of France filed a class action Wednesday (docket 3:23-cv-04026) in U.S. District Court for Northern California in San Francisco on behalf of all EU-resident Coinbase wallet and account holders who had their wallets or accounts hacked by third parties or frozen by Coinbase. As EU residents, the plaintiff and class members aren’t subject to any arbitration provision in Coinbase’s terms of service because such provisions in consumer agreements “are not enforceable throughout the European Union,” said the complaint. Though Coinbase is the largest cryptocurrency exchange in the U.S., its wallet and account services weren’t secure, alleged the class action. “As demonstrated by the widespread successful hacking and fraud perpetrated against Coinbase users, Coinbase lacked adequate security to prevent its users’ funds from being drained by scammers and hackers,” it said. It also lacked “adequate warning and notification systems” and processes to warn its customers of specific risks of theft and fraud associated with certain third-party websites that Coinbase allowed its customers to “unwittingly connect to,” it said. Coinbase also lacked “adequate staffing to carry out its policies, practices, and procedures to the extent they were designed to protect its customers' wallets and accounts,” it said. Coinbase didn’t comment.

Defendant Zuffa, d/b/a Ultimate Fighting Championship, filed notice Wednesday (docket 2:23-cv-01211) in U.S. District Court for Nevada in Las Vegas that plaintiff Saul Garcia’s fraud class action is related to one case pending in the Nevada District, plus another in the Central District of California that was just transferred to Las Vegas. Zuffa submits that all three cases are related under Local Rule 42-1, said its notice. The plaintiffs and putative class members in all three cases are California consumers who signed up for Zuffa’s UFC Fight Pass streaming service, said the notice. They allege they're improperly charged monthly or yearly fees for a subscription service without proper disclosures that the service would automatically renew or how to cancel it, in violation of the California Automatic Renewal Law and other consumer protection statutes and common law, it said (see 2308030039). Because the three cases name the same defendants, are based on similar claims and events and involve similar questions of fact and law, “Zuffa submits assignment to a single district and magistrate judge will promote judicial efficiency and economy,” said its notice. It plans to file a motion soon to consolidate the three actions in Las Vegas, it said.

Defendant Energizer Brands wrongly argues that plaintiff Josh Mentzer’s July 11 amended fraud complaint should be dismissed because he hasn’t alleged any facts in support of the allegations, said Mentzer’s memorandum of law Tuesday (docket 2:23-cv-02028) in U.S. District Court for Central Illinois in Urbana in support of his opposition to the July 25 dismissal motion. Mentzer alleges Energizer overstates the advertised charging capacity of its power banks by 40% compared with the experiences of actual consumers. None of Energizer’s arguments is “a basis for dismissal,” and its motion should be denied, said the memorandum. Mentzer “proved the falsity” of Energizer’s advertised statements through “scientific evidence,” using elementary physics “with basic algebraic formulation,” it said. Energizer’s attempt to “discredit” Mentzer’s research is “futile,” it said.

Pro se plaintiff Venton Smith moved the court for default judgments against American Express and Lending Tree in his negligence lawsuit (see 2306120045), said his Monday motions (docket (3:23-cv-02804)) in U.S. District Court for Northern California in San Francisco. Smith sued the financial company and over 20 banks and credit reporting agencies in June (see 2306120045), alleging his personally identifiable information was exposed in a 2019 Capital One data breach in which an Amazon Web Services employee stole data affecting about 106 million customers. Due to the breach, Smith alleges fraudulent purchases using his accounts for American Express, Best Buy, Capital One, Chase, Citibank, Macy’s and Nordstrom totaled $92,300 in loans, merchandise and products. American Express and Lending Tree failed to respond to the complaint; Smith requests that the court enter default judgments against the companies and award him relief he's entitled to in each claim: $42,500, including $30,000 under the California Identity Theft Law, $5,000 for negligent and willful violation of the California Fair Credit Reporting Act and $7,500 for actual and statutory damages and costs. In July, Capital One and Amazon said Smith’s claims should be barred because he didn’t opt out of the settlement in Capital One Consumer Data Security Breach Litigation (see 2307100050). TransUnion said last month (see 2307130055) Smith’s claims are preempted by the Fair Credit Reporting Act, Smith failed to take reasonable steps to mitigate damages, and any damages he suffered are the result of acts or omissions he committed. Smith’s claim of exemplary and punitive damages violates TransUnion’s rights under due process and excessive fines clauses of the Fifth, Sixth, Eighth and 14th amendments, plus those of state constitutions, it said. Best Buy, Citibank and Macy’s moved the court to compel Smith to arbitration (see Ref:2307140038). Smith reached a settlement with Equifax in July (see 2307140038), and he filed an instant motion of dismissal against DSRM National Bank last week after the parties reached a settlement (see 2308040026). Also Monday, U.S. District Judge Charles Breyer granted Smith’s motion to extend time to respond to defendant Citibank’s motion to compel arbitration and to vacate hearings slated for Sept. 29, said his Monday order; Smith’s response is due Aug. 18, with Citibank’s reply due Aug. 25.

A “quintessentially broad arbitration provision and the clear and unambiguous class action waiver are enforceable and mandates dismissal,” said Sony in a Monday motion to compel arbitration (docket 4:23-cv-00177) in U.S. District Court for Northern Florida in Tallahassee. In her May fraud lawsuit (see 2305090018), plaintiff Hannah Lewis sued Sony under the Florida Deceptive and Unfair Trade Practices Act and for the class under various state consumer fraud acts over shutter failures on the Alpha 7 III mirrorless camera that manifest in a “consistent way.” Lewis alleges Sony denied coverage to customers who experienced shutter failure on the camera for claims submitted outside the limited one-year warranty period. The a7 III has a shutter life expectancy of 200,000 actuations, but numerous users report failures at levels between 10,000 and 50,000, said the complaint. In its motion, 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.’” Despite being put on notice that Sony intended to compel arbitration of her claims, Lewis “refused to conserve judicial resources and voluntarily dismiss this action,” the company said, asking the court to compel arbitration and dismiss her claims.

Consolidation of a fraud complaint against Brightspring Health Services and PharMerica by plaintiffs Ryan Collins and Hannan Slaughter with PharMerica Data Breach Litigation is appropriate because the cases involve common questions of law and fact. So said U.S. District Judge Rebecca Grady Jennings for Western Kentucky, Louisville, in a Monday order (docket 3:23-cv-00297), saying plaintiffs had a “non-opposition to consolidation.” Jennings ordered three other cases to be consolidated with the multidistrict litigation Friday: Baca v. PharMerica, Raney v. PharMerica and Young v. PharMerica. The lawsuits allege defendants failed to safeguard plaintiffs’ personally identifiable information during a March data breach.

If GlobalguruTech (GGT) and owner Jakob Zahara had filed their motion to quash in Georgia, “the court there would have dismissed it,” said defendants’ reply in support of their motion to quash Xfinity Mobile’s subpoenas to UPS and payment services PayPal and Zelle, said their Monday filing (docket 2:22-cv-01950) in U.S. District Court for Arizona in Phoenix. Xfinity alleges the phone reseller is involved in the unlawful business practices of buying and selling handsets under the Xfinity Mobile brand. GGT moved the court last month to quash Xfinity’s subpoenas to the three companies. In its response to the motion, Xfinity said the motion was improper because defendants don’t have standing to object to the carrier’s subpoenas since they’re directed to third parties, not to the defendants (see 2307310037), and a motion to quash must be filed in the place where compliance is required, which is the Northern District of Georgia, not the district of Arizona. In its Monday reply, GGT cited Malibu Media v. Doe, saying the Georgia court would have dismissed the motion to quash, but plaintiffs cited Venus Medical v. Skin Cancer & Cosmetic Dermatology Center, a case that favors GGT, it said. In Venus, the U.S. District Court for Northern Georgia issued two subpoenas to nonparties in Arizona; when those parties failed to comply, Venus filed a motion to hold them in contempt in Arizona, said GGT. The Arizona court transferred the motion back to the Georgia court, which issued the subpoena, saying that court was more familiar with the issues, history of discovery, the relevance of documents sought by Venus and whether permitting an additional forensic search of computers was necessary, GGT said. “The same rationale would apply in this case,” said the defendant, saying the Arizona court is more familiar with the issues in this case, the history of discovery and the relevance of the documents sought by the plaintiffs. The Arizona court can, and should, decide the motion to quash subpoenas, it said.

Defendants Chargebacks911 and Gary Cardone and Monica Eaton, owners of parent company Global E-Trading, moved (docket 8:23-cv-00796) to stay discovery pending resolution of their amended motion to dismiss a fraud lawsuit brought by the FTC and the Florida attorney general in U.S. District Court for Middle Florida in Tampa (see 2306300046). The April complaint alleges 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. The court should enter a stay because defendants’ motion “is case dispositive and requiring discovery to proceed during the pendency of the motion would impose substantial and potentially unnecessary costs" on them, it said.