Macmillan’s forthcoming motion to dismiss a data breach class action for lack of standing (see 2305190027) “will fail” because the breach harmed the plaintiffs and their second amended complaint established their claims, counsel for plaintiffs Victoria Batchelor, Diana Griffin and Jaime Ariza wrote U.S. District Judge Analisa Torres for Southern New York in a letter Monday (docket 1:23-cv-01217). Batchelor suffered multiple fraudulent withdrawals from her bank account, and someone stole her identity and attempted to buy an $800 iPad, said the letter. Griffin was locked out of her checking account for weeks after multiple fraudulent transactions, while Ariza had a fraudulent bank account opened in his name and had his contact information changed with his credit card, it said. The plaintiffs “have standing to sue Macmillan because its misconduct harmed them,” it said. The plaintiffs ask the court to schedule Macmillan’s motion for briefing, it said. In light of the parties’ June 14 mediation, setting the briefing schedule to start after that date would preserve the resources of the parties and the court and allow the parties to focus their efforts on resolution, it said.

The plaintiffs bring their newly consolidated class action on behalf of a nationwide class and statewide subclasses in 50 states and the District of Columbia against Samsung for its failure to “properly secure and safeguard the sensitive and confidential personally identifiable information” (PII) exposed during last summer’s data breach, said their 362-page filing Monday (docket 1:23-md-03055) in U.S. District Court for New Jersey in Camden. Seventeen Samsung data breach class actions pending in various jurisdictions were transferred to Camden Feb. 1 for pretrial consolidation under U.S. District Judge Christine O’Hearn (see 2302020002). Because Samsung “has exclusive knowledge of the precise information that was compromised” for each individual class member, the plaintiffs “reserve the right to supplement their allegations with additional facts and injuries as they are discovered,” said the consolidated class action. The data breach “was the product of an intentional, but avoidable, criminal act to gain access to the data,” it said. “It was the result of a sophisticated and malicious attack by professional cybercriminal hackers and was not the result of an accidental disclosure by a Samsung employee,” it said. There’s an increased and substantial risk that the victims “will experience identity theft or fraud that is sufficiently imminent,” it said. The plaintiffs seek injunctive relief requiring Samsung to employ proper security protocols “consistent with law and industry standards” to protect consumers’ PII. If an injunction isn’t issued, the plaintiffs “will suffer irreparable injury, and lack an adequate legal remedy, in the event of another data breach at Samsung,” it said. The risk of another such breach “is real, immediate, and substantial,” it said. If another breach at Samsung occurs, the plaintiffs won’t have “an adequate remedy at law because many of the resulting injuries are not readily quantified and they will be forced to bring multiple lawsuits to rectify the same conduct,” it said. Samsung already is on record as planning to compel each of the various claims to binding arbitration (see 2211030006).

Ryan Corbin, one of 28 named plaintiffs in a fraud class action against Verizon, voluntarily dismisses his claims against the carrier without prejudice and without costs, said his notice Thursday (docket 3:23-cv-01138) in U.S. District Court for New Jersey in Newark. All the other plaintiffs’ claims will continue, it said. The plaintiffs all are Verizon customers who allege the company engages in a “bait-and-switch” scheme by prominently advertising flat monthly rates for Verizon post-paid wireless service plans, then pads customers’ monthly bills with a $3.30 per line administrative charge after they sign up.

Macmillan seeks leave to file a motion to dismiss the second amended data breach class action filed May 5 by plaintiffs Victoria Batchelor, Diana Griffin and Jaime Ariza (see 2305080002), the publisher told U.S. District Judge Analisa Torres for Southern New York in Manhattan in a letter motion Thursday (docket 1:23-cv-01217). Macmillan plans to argue the court should dismiss the complaint for lack of standing under Rule 12(b)(1), it told the judge. Macmillan concedes the plaintiffs allege they were victims of “attempted fraud,” it said. But no facts in the second amended complaint suggest the plaintiffs “suffered any actual resulting injury, and the allegations of increased risk of identity theft are insufficient,” it said. To the extent that the plaintiffs allege their damages include time spent reviewing account statements and credit reports for indications of identity theft, “such mitigation efforts are insufficient to establish an injury for standing,” it said.

Chief U.S. District Judge Susan Hickey for Western Arkansas in El Dorado granted the unopposed motion from TikTok and ByteDance to stay their Tuesday deadline to respond to Arkansas Attorney General Tim Griffin’s (R) fraud allegations, pending Griffin’s anticipated motion to remand the case to Union County Circuit Court where it originated, said Hickey’s signed order Monday (docket 1:23-cv-01038). Good cause exists for granting the motion, said the order, setting June 8 as the deadline for Griffin to file his motion to remand. If the court denies the motion to remand, Griffin will get 30 days to amend his complaint, and TikTok and ByteDance will have 30 days after the filing of the amended complaint “to file their responsive pleadings,” said the order. If the court denies the motion for remand and Griffin doesn’t want to amend his complaint, TikTok and ByteDance will then have 30 days after the denial to file their responsive pleadings to Griffin’s “original, unamended complaint,” it said. Griffin alleges TikTok’s U.S. privacy policy is misleading because it doesn’t alert the public to TikTok’s ability to share personal data with individuals or entities in China (see 2305100036). The complaint asserts seven claims under the Arkansas Deceptive Trade Practices Act, and seeks a permanent injunction to compel TikTok to cease its allegedly false and deceptive statements and omissions about the risk of access to and exploitation of consumers’ content and data by Beijing and the Chinese Communist Party.

Plaintiff Elizabeth Steines’ April 28 opposition to Apple’s motion to dismiss her consumer fraud complaint “now admits” Apple “made no affirmative misrepresentation” when it stopped packaging power adapters with its series 12 through 14 iPhones (see 2305010046), said Apple’s reply Friday (docket 3:22-cv-03099) in U.S. District Court for Southern Illinois in East St. Louis. Her complaint “fails to state any plausible claim that Apple deceived consumers about power adapters not being included with each new iPhone,” it said. No omission-based theory is viable because Apple didn’t “conceal anything,” it said. The complaint “strains credulity” when it asserts its “affirmative-misrepresentation theory,” said Apple. Notwithstanding what’s “on the box,” at least 19 paragraphs in the complaint “reference unspecified promises or representations by Apple that a power adapter was included with the iPhone,” it said. Apple’s motion to dismiss “demonstrates that these allegations are inadequate to satisfy the pleading burden under Rule 8, much less Rule 9(b),” it said. Now, after forcing Apple to respond to these “meritless claims,” Steines conceded that Apple didn’t affirmatively misrepresent that the iPhone was sold with a charger, it said. Her acknowledgment confirms “that the allegations of deception did not have evidentiary support when they were made,” it said.

The parties in the multidistrict litigation arising from last summer’s Samsung data breach agreed to propose Freda Wolfson, former chief U.S. district judge for New Jersey, as the special master in the MDL, they wrote U.S. District Judge Christine O’Hearn for New Jersey in Camden in a letter Friday (docket 1:23-md-03055). Wolfson retired from the federal bench Feb. 1 and rejoined her previous law firm, Lowenstein Sandler, as a partner and as chair of its alternative dispute resolution group. The parties continue to meet and confer on the issues discussed at the last status conference and agree no issues or disputes currently require the court’s attention, they told the judge. They agree the status conference scheduled for Thursday should be adjourned, they said. They will follow up with another update before the next scheduled status conference June 1, they said.

Lenovo’s marketing of a smart clock with a "big & bold display" that let’s one read the time and outdoor temperature from across the room is misleading because the LED lights “consistently burn out prematurely and fail to adjust to changing levels of ambient light,” alleged Carrier Mills, Illinois, resident Sue Harmon’s fraud class action Monday (docket 3:23-cv-01643) in U.S. District Court for Southern Illinois in East St. Louis. “Many owners have described how this defect is prone to manifest when the screen dims when the amount of ambient light decreases,” said the complaint. “Frustrated yet creative users” attempted numerous fixes without success, it said. “The causes of this issue are likely attributable to manufacturing defects and quality-control failures,” it said. The product uses “low-grade materials” that wear out more quickly than expected, it said. It’s “probable” the display will become “non-functioning within a short period of time after first use,” it said. “The high number of occurrences reported on social media and the internet, where the clock had been used for less than a year, point to a combination of the above factors as the cause,” it said. Numerous reports indicate Lenovo consistently denies claims for warranty coverage “even during the relevant time period it purports to allow such claims,” it said. In denying coverage, Lenovo attributes the display failures to “consumer misuse,” which voids any warranty coverage, it said.

Defendant Timothy Mulholland facilitated a predatory mail and wire fraud scheme directed at seniors, said a May 3 DOJ complaint (docket 3:23-cv-02448) in U.S. District Court for New Jersey in Trenton. Starting in 2016, Mulholland assisted the fraud scheme in which participants contact potential victims, falsely claim they won the lottery and induce them to send money to him to account for taxes, fees and other costs associated with the fictitious lottery winnings, the complaint said. Mulholland receives victims' payments in the form of checks, money orders and cash by mail and direct deposits in his bank accounts and then sends the payments to scheme participants in Jamaica and elsewhere, the complaint said. U.S. Postal Inspection Service (USPIS) databases show at least 29 mailings in support of the scam between August 2016 and January. The USPIS sent Mulholland letters in April and September 2022 warning him that continued participation in the wire scheme could lead to criminal or civil enforcement methods, but he continued to facilitate the scam, the complaint said. In December, a 69-year-old victim from Hawaii mailed Mulholland a cell phone for $800 and a check for about $6,500 for “lottery fees,” the complaint said. The suit seeks injunctive relief for fraud and mail fraud, plus further relief deemed proper by the court.

Plaintiff Tiffany McDougall’s May 2 opposition to Samsung’s motion to compel her fraud claims to arbitration (see 2305030031) “concedes the relevant facts and law applicable to contract formation,” said Samsung’s reply memorandum Wednesday (docket 1:23-cv-00168) in U.S. District Court for Southern New York in Manhattan in further support of its motion to compel. Yet McDougall’s opposition “ignores precedents applying the same facts and law” to enforce “virtually identical” arbitration agreements, said the memorandum. McDougall alleges Samsung misrepresented the storage capacity of her Galaxy S21 Ultra 5G smartphone, and Samsung asserts her claims “must be resolved through arbitration” under the terms and conditions she agreed to when she bought and kept the device. It’s “undisputed” that contract formation “requires no more than inquiry notice of the contract terms and a mutual manifestation of assent,” said Samsung’s reply. McDougall doesn’t contest that she “affirmatively acknowledged” the arbitration agreement when activating her device, “and then declined to opt out thereafter,” it said. Her opposition “resorts to unsworn statements” that she didn’t actually view the arbitration agreement. She also offers “vague suggestions” that some, but not all, of the arbitration notices she received “were insufficient to place her on inquiry,” it said. Even if her unsworn statements “carried evidentiary weight,” and they don’t, her opposition concedes that actual notice isn’t required, said Samsung. As for inquiry notice, McDougall received “clear and conspicuous notice” of the arbitration agreement “everywhere a reasonable consumer could be expected to look,” it said. Those notices said “in plain language” that setting up, using and keeping the device, without opting out of the arbitration agreement, “constituted acceptance,” it said. McDougall doesn’t dispute “she engaged in all such conduct,” it said. “She must therefore arbitrate her claims.” McDougall can’t “avoid the outcome by ignoring “on-point precedents, attacking strawmen” or labeling the arbitration agreement “unconscionable” without factual or legal support, it said. The court should compel arbitration and dismiss the matter, it said.