Samsung plans to file a motion by July 31 to dismiss plaintiff Tiffany McDougall’s fraud complaint because her claims fail for a “litany” of reasons, counsel Hannah Chanoine of O’Melveny wrote U.S. District Judge Lorna Schofield for Southern New York in Manhattan in a letter Wednesday (docket 1:23-cv-00168). Schofield approved Chanoine’s proposed briefing schedule in a memo endorsement Thursday. Chanoine submitted the proposed schedule with the consent of McDougall’s attorney, said her letter. Chanoine proposed Aug. 31 as the deadline for McDougall’s opposition to the motion to dismiss, but the judge’s memo endorsement stayed her deadline to respond pending resolution of Samsung’s motion to compel arbitration McDougall's claims to arbitration (see 2304120020). McDougall alleges Samsung misrepresented the storage capacity of her Galaxy S21 Ultra 5G smartphone, but “no reasonable consumer” would interpret Samsung’s “truthful” 128-GB representations “as a promise that the device’s hard drive would not contain any OS or pre-installed software,” said Chanoine’s letter to the judge.

U.S. District Judge Stephen McGlynn for Southern Illinois in East St. Louis granted plaintiff Elizabeth Steines leave to file an amended consumer fraud class action against Apple by July 26, said his signed memorandum and order Wednesday (docket 3:22-cv-03099). Apple’s decision not to package a power adapter with series 12 through 14 iPhones is a breach of contract and a breach of implied warranty, and a violation of Illinois consumer fraud laws, alleged Steines’ Dec. 27 class action (see 2212300037). Apple’s March 29 motion to dismiss said her complaint fails to state any plausible claim that Apple deceived consumers about power adapters not being included with each new iPhone, and that no omission-based theory is viable because Apple didn’t conceal anything (see 2305150018). “Without expressing any view as to the merits,” said McGlynn’s memorandum and order, the court gives Steines “an opportunity to cure the purported pleading defects” as asserted in Apple’s motion to dismiss. If Steines “timely files an amended complaint,” the court will terminate as moot the motion to dismiss, said the judge.

The fraud class action that plaintiffs Justin Davis and Gary Davis filed in May alleging defective trackpads in their HP Omen laptops rendered their computers completely unusable without an external mouse (see 2306220056) should be dismissed for its failure to allege facts sufficient to support their individual claims for relief, said HP’s motion Friday (docket 4:23-cv-02114) in U.S. District Court for Northern California in Oakland. The plaintiffs also fail to allege facts showing they have Article III and statutory standing “to challenge HP’s advertising of HP Omen laptops,” it said. Each plaintiff “fails to allege that he relied on any HP advertising in connection with his purchase, or any other connection between his alleged harm and HP’s conduct,” it said. It follows that the plaintiffs “lack standing to seek damages under Article III and the California and Illinois statutes that they purport to invoke,” it said. Their state statutory claims also fail because their complaint “fails to identify any actionable misrepresentation by HP, or other facts sufficient to support such claims,” it said. The plaintiffs’ equitable claims also fail because they haven’t alleged facts “demonstrating that they are at imminent risk of substantial harm, or that their legal remedies are inadequate,” it said.Their unjust enrichment claims “are duplicative of the remedy sought under their statutory claims, and premised on the same alleged facts,” it said.

The FTC and Florida attorney general’s claims don't adequately allege any required element of their claims that Chargebacks911 (Cb911) engaged in unfair or deceptive acts, said the defendant’s Thursday amended motion to dismiss (docket 8:23-cv-00796) and memorandum of law in U.S. District Court for Middle Florida in Tampa. The April complaint alleges Cb911 used “multiple unfair techniques” to dispute credit card charges in violation of the FTC Act and the Florida Unfair and Deceptive Trade Practices Act (see 2304130013). Defendants’ June motion to dismiss said plaintiffs don’t allege required elements of their claims but “merely recite elements and allege conclusory allegations.” In their amended motion, defendants disputed plaintiffs’ claim that Cb911 submitted “representment” screenshots to show the consumer filing the chargeback “saw or should have seen disclosures about key offer terms, such as the free trial and subscription terms,” on the merchant’s website, and agreed to those terms when making a purchase. The Thursday motion referred to the complaint’s exhibit A as proof that Cb911 “identified inconsistencies” in the AH Media package when onboarding client AH Media “and took proactive steps to correct those issues and inconsistencies.”

It’s plaintiff Dennis Gromov’s position that Belkin is “stalling the progress” of his false advertising lawsuit against the company by delaying written discovery, said their joint status report Thursday (docket 1:22-cv-06918) in U.S. District Court for Northern Illinois in Chicago. Gromov’s written-discovery requests to Belkin were served April 21, making Belkin’s responses due May 21, said the report. Gromov granted Belkin an extension to June 5, and Belkin served its response at 11 p.m. that night, “but produced zero documents then and still has not,” it said. The parties also had a June 9 meet-and-confer session on Belkin’s extensive discovery objections, it said. Gromov’s position is that the session was “completely unsuccessful” because it didn’t resolve any of Belkin’s objections, said the report. Gromov intends to move to compel Belkin’s responses, it said. Belkin believes Gromov’s characterization of Belkin as stalling the lawsuit and delaying discovery is “unfounded,” said the report. “Belkin has been actively working to collect responsive documents for production,” it said. Belkin also disputes the accuracy of Gromov’s characterization of the meet-and-confer session as completely unsuccessful, said the report: “The parties spent over an hour discussing the perceived deficiencies in each side’s discovery responses. The call ended cordially with both sides agreeing to look into certain issues before reverting back.” Gromov’s class action alleges Belkin advertised power banks for mobile devices in a deceptive manner, and the chargers don’t deliver the amount of power promised (see 2301300008).

Google’s arbitration agreement isn't enforceable, said plaintiff Steve Nichols’ Wednesday memorandum of law (docket 1:23-cv-01022) in opposition to defendant’s motion to compel arbitration in U.S. District Court for Colorado in Denver. Nichols sued Google in April (see 2304240055) in a fraud complaint over 5G service on his Pixel 5 and 5a phones. Google asserts Nichols agreed to arbitrate when he accepted “all applicable agreements” when registering the phones. The court should decline to compel arbitration because Google’s arbitration agreement “fraudulently induced” Nichols’ acceptance, said the memorandum. One misrepresentation was that arbitration is the “quickest and most cost-effective way” to resolve disputes, even though it's a “myth” that arbitration is cheaper and faster than litigation, the memorandum said, citing CellInfo v. American Tower. The agreement is also misleading in saying arbitration uses a “neutral arbitrator” instead of a judge or jury and that arbitrators can award “the same damages and remedies that a court can award,” it said. “This mischaracterizes the role of a judge and jury, which are by definition 'neutral,' enshrined by the Constitution to render equal justice under the law.” That the agreement precludes class actions also makes it “false to assert” arbitration is equivalent to litigation, it said. The 10th U.S. Circuit Court of Appeals has declined to compel arbitration in similar circumstances where the agreements were “ambiguous” and “fundamentally incompatible,” said the memorandum, noting Google’s “additional legal terms” that simultaneously “bind” users to arbitration yet subsequently allow them to “opt out.” To accept that Nichols consented to the additional legal terms by clicking “’I accept’ ignores that it's unclear whether he accepted to opt out or to agree to arbitrate, the memorandum said. He was agreeing to either arbitration or to opt out of arbitration, “rendering the action of pressing the ‘I accept’ button ambiguous and confusing,” he said. Because the parties dispute the existence of a valid arbitration agreement, said the memorandum, “the presumption in favor of arbitration ‘in interpreting the scope of an arbitration agreement … disappears,’” it said, citing Parrish v. Valero Retail Holdings.

Former U.S. District Chief Judge Freda Wolfson for New Jersey, who was proposed as the special master for the Samsung data breach multidistrict litigation (see 2305150026), wasn’t involved in any case that would place her “in a conflict position” since retiring from the bench Feb. 1 and joining the Lowenstein Sandler law firm, said her signed affidavit Wednesday (docket 1:23-md-03055) in U.S. District Court for New Jersey in Camden. “I am confident that neither I nor the Lowenstein Firm are involved in any matter with a party to this case or represent any party in this case, which would preclude me from accepting the appointment,” said Wolfson. The firm’s “sophisticated conflict system” revealed it represents no party to the MDL, “nor have I ever been associated with any of the parties to the case,” she said.

U.S. District Judge Brian Wimes for Western Missouri in Kansas City denied the motion of plaintiff James Achermann to remand his data breach claims against T-Mobile to state court, said the judge’s signed order Wednesday (docket 4:21-md-03019). Wimes has been presiding over the 47-case multidistrict litigation involving T-Mobile’s previous data breach since he was assigned the cases in December 2021 (see 2306050001). The Judicial Panel on Multidistrict Litigation, in a June 6 order, transferred the 11 class actions arising from T-Mobile’s latest date breach, plus five cases treated as potential tagalongs, for pretrial consolidation under Wimes. In seeking a remand, Achermann argued he lacks Article III standing to pursue his action in federal court, said Wimes’ order. But Achermann alleged facts sufficient to establish Article III standing, said the order. The consolidated complaint in the MDL also “sets forth sufficient facts to establish standing on behalf of the class,” which includes Achermann, “per his allegations” he was a part of the T-Mobile data breach, such that the motion to remand on the basis of lack of standing “must be denied,” it said. The harms alleged adequately show the plaintiffs and the proposed class, including Achermann, have Article III standing, “as numerous courts have held in the data breach context,” it said.

U.S. District Judge Colleen McMahon for Southern New York in Manhattan granted a 60-day stay in the case brought by the FTC and six states to thwart Roomster's alleged proliferation of fake positive online reviews (see 2302030034), said her signed memo endorsement Wednesday (docket 1:22-cv-07389). The parties said they needed the stay to conserve resources while the plaintiffs seek the necessary approvals from the FTC and the states’ attorneys general of a proposed settlement that would resolve all pending claims. The settlement will include injunctive relief and a monetary judgment that will go toward restitution payments to consumers, they said. The stay includes a “limited” discovery exception that will enable the states to seek restitution data from third parties, they said.

Goodwill Industries of Greater New York and Northern New Jersey stores a “litany” of highly sensitive personal identifiable information (PII) about its current and former employees and applicants, but it lost control over that data when cybercriminals “infiltrated its insufficiently protected computer systems in a data breach,” alleged plaintiffs Wendy Booker and Francis Mascaro in a class action Monday (docket 1:23-cv-04764) in U.S. District Court for Eastern New York in Brooklyn. Cybercriminals were able to breach Goodwill’s systems because it failed “to adequately train its employees on cybersecurity and failed to maintain reasonable security safeguards or protocols,” alleged the complaint. New York City resident Booker and Finley, Ohio, resident Mascaro were notified of the breach May 27, it said. The actual breach occurred Oct. 12 and lasted 17 days or more, “giving criminals plenty of time to seize” the exposed PII, it said. By keeping Booker and Mascaro and their potential class members “in the dark” for more than seven months, Goodwill deprived them “of the opportunity to try and mitigate their injuries in a timely manner,” it said.