Plaintiff Timothy Trimble and defendant AT&T certify they discussed in good faith whether their dispute “can be resolved without the need for further court proceedings” but weren't able “to resolve this case through a voluntary settlement,” said their joint certificate Wednesday (docket 5:23-cv-00038) in U.S. District Court for Western North Carolina in Statesville. Trimble’s March 16 class action alleges AT&T “completely and utterly failed” to protect sensitive consumer data when it suffered a “massive data breach” in January, compromising the personal information of about 9 million U.S. customers (see 2303200042).

AT&T’s motion to stay discovery in plaintiff Robert Graham’s fraud case until a decision is made on AT&T’s motion to compel Graham’s claims to arbitration is “inappropriate and unjustified,” said Graham’s reply in opposition Tuesday (docket 1:22-cv-05155) in U.S. District Court for Northern Georgia in Atlanta. Graham alleges AT&T ran its smartphone upgrade exchange program like a “bait-and-switch” scheme (see 2303130002). Rule 26(d) of the Federal Rules of Civil Procedure “explicitly states that the parties may begin discovery as soon as the action is commenced,” said Graham’s reply. “Any request for a stay of discovery must be supported by a strong showing of good cause,” it said. AT&T’s pending motion to transfer the case to arbitration doesn’t provide “sufficient grounds for a stay of discovery,” it said. AT&T hasn’t shown discovery “would be burdensome or costly,” nor has it demonstrated the information sought “is irrelevant to the issues at hand,” it said. Allowing a discovery stay at this stage of the proceedings “would unfairly prejudice” plaintiff Graham, it said. Graham “has a right to conduct discovery in order to build a case and prepare for trial,” it said. Delaying or denying this right “would only serve to hinder the plaintiff's ability to obtain a fair and just resolution” of his claims, it said.

Amazon deactivated seller accounts and their associated advertising campaigns “without any adequate warning and without good cause,” hasn't resolved technical and account access issues necessary for basic business functions and denied access to funds owed to plaintiffs, said a Tuesday complaint (docket 3:23-cv-00603) in U.S. District Court for Connecticut in New Haven. Plaintiff Benjamin Ligeri, a Connecticut resident who owns co-plaintiff companies Central Concepts, Trademark Holdings, Global Specialty Products and Medcare, said he can’t access his My Medical Warehouse account, renamed to Twin Horses upon acquisition, which he has “rights of access to,” said the complaint. Amazon’s “defective system" denied access to funds owed to plaintiff Medcare for up to nine months, and it continued to “fraudulently take funds” owed to plaintiffs under the “pretense of bogus fees such as ancient removal orders,” the complaint said. Medcare “never got its pay cycle where it had accrued thousands of dollars,” it said. In its terms of service (TOS), Amazon told plaintiffs they would receive protection for their intellectual property from counterfeits; timely disbursements of their profits by Amazon; reliable and useful technology to operate on the platform; a fair market; fixed and knowable fees in advance; and “protection against the placement of dangerous products” on Amazon’s platform that could be confused with plaintiffs’, the complaint said, but "none of these representations were true.” Plaintiffs claims include trademark infringement; negligence; a declaratory judgment that TOS are a voidable adhesion contract; violation of Connecticut’s Unfair Trade Practices Act; negligent misrepresentation; fraud and civil theft; tortious interference with business; conversion; anti-trust violation; breach of fiduciary duty; unjust enrichment; and theft of trade secrets. Plaintiffs seek damages, an injunction commanding either reactivation of their accounts or permanent destruction of their data, plus an accounting of the data’s usage, unauthorized sharing and profits derived.

The late timing of Verizon’s anticipated motion to compel plaintiff Israel Mertz’s Fair Credit Reporting Act claims to arbitration prejudices Mertz because discovery in the case has already begun, his counsel wrote U.S. District Judge Kenneth Karas for Southern New York in White Plains in a letter Monday (docket 7:22-cv-10938). Mertz alleges Verizon violated the FCRA by improperly sending his wireless service account to collections and inaccurately reporting his account to credit reporting agencies (see 2302240023). Mertz filed his complaint Dec. 28 and his counsel wasn’t told of a relevant arbitration clause that would have any bearing on the case until Verizon’s counsel first mentioned arbitration at the April 24 initial conference, said the letter. Mertz remains unaware of any binding Verizon arbitration clause and hasn’t had the opportunity to inspect any “allegedly relevant contract” under which he would have agreed to arbitrate this dispute, it said. Mertz’s counsel already served discovery demands on Verizon, and Mertz is entitled to discovery responses before making a decision on the application of an arbitration clause that’s not yet available to Mertz’s counsel, said the letter. Mertz asks that discovery be allowed to continue, “pending any decision on Verizon’s anticipated motion to compel,” it said. The judge later Monday ordered Verizon to give Mertz and his counsel the contract that purportedly contains the arbitration clause and reply to their letter by Monday.

U.S. District Judge Christine O’Hearn for New Jersey in Camden signed a scheduling order Monday (docket 1:23-md-03055) setting a May 22 deadline for the plaintiffs in the 17 class actions stemming from last summer’s Samsung data breach to file their consolidated amended complaint. Samsung’s response is due July 21, said the order. The Judicial Panel on Multidistrict Litigation transferred the cases for pretrial consolidation under O’Hearn in early February (see 2302020002).

The three named plaintiffs in the data breach class action against Macmillan (see 2304040003) filed an unopposed motion for leave Friday (docket 1:23-cv-01217) in U.S. District Court for Southern New York in Manhattan to file a second amended complaint against the publisher. Plaintiffs Victoria Batchelor, Diana Griffin and Jaime Ariza allege Macmillan stores a “litany” of highly sensitive personal identifiable information (PII) about its current and former employees, but it “lost control over that data when cybercriminals infiltrated its insufficiently protected computer systems in a data breach.” The second amended complaint removes the negligence per se and the breach of fiduciary duty claims against Macmillan, and adds certain allegations from the negligence per se claim to their claim for negligence. The negligence claim now alleges Macmillan violated its duty under Section 5 of the FTC Act “by failing to use reasonable measures to protect PII and not complying with applicable industry standards.” Macmillan’s conduct “was particularly unreasonable” in light of the nature and volume of the PII it collected and stored, says the new complaint. Macmillan failed to prepare for “the foreseeable consequences of a data breach, including, specifically, the immense damages that would result to individuals in the event of a breach, which ultimately came to pass,” it says.

After Meta alleged in its Jan. 12 complaint that surveillance software company Voyager Labs created and used more than 38,000 fake Facebook user accounts to scrape more than 600,000 Facebook users’ “viewable profile information” (see 2301130044), Voyager created more than 11,000 additional fake accounts on Facebook and scraped additional Facebook users’ profiles, alleged Meta’s first amended complaint Friday (docket 4:23-cv-00154) in U.S. District Court for Northern California in Oakland. Meta sent Voyager another cease and desist letter Feb. 23, notifying Voyager of its “ongoing violations” and repeating that Meta had revoked Voyager’s access to Facebook and Instagram, it said. But subsequent to the latest cease and desist letter, Voyager created yet another 6,000-plus new fake accounts, and scraped additional Facebook users’ profiles, it said.

U.S. Magistrate Judge John Love for Eastern Texas in Tyler signed an order Thursday (docket 6:22-cv-00423) granting in part and denying in part DirecTV’s Feb. 20 motion to strike the six affirmative defenses of the defendants it alleges ran a scheme to defraud consumers by impersonating DirecTV telemarketers. DirecTV contended the six affirmative defenses are improper because they're conclusory or they fail to allege all the elements necessary for supporting the defense. It also asserted several of the six defenses allege only defects in DirecTV’s prima facie case, and many fail to address the specific claim to which the defense applies. Love denied DirecTV’s motion to strike three of the six defenses and granted its motion to strike the rest. Any party may file a written objection within 14 days to Love’s finding, said his order. A party’s failure to file written objections to the findings “shall bar that party from de novo review by the district judge of those findings,” and “from appellate review of unobjected-to factual findings and legal conclusions accepted and adopted by the district court,” it said.

The U.S. District Court for Western Michigan should dismiss plaintiff Josh Dinwiddie’s first amended fraud complaint against Lenovo “because he already has amended his complaint once as a matter of course,” and the “substance” of his claims “remains insufficient,” said Lenovo’s memorandum of law Thursday (docket 2:22-cv-00218) in support of that motion to dismiss. Dinwiddle claims to have bought a Lenovo Legion T5 desktop PC that became prone to freezing and crashing when he was gaming. But neither Lenovo nor the court “will be able to test that allegation or determine the cause of any purported issues” because Dinwiddie “unequivocally admits he disassembled his Legion T5 and sold its parts, thus spoliating the most important evidence in the case,” it said. Dinwiddie’s case “is just the latest vexatious litigation” filed by Sheehan & Associates, a small firm based in Great Neck, New York, it said. Though the identity of a plaintiff’s counsel “normally would not be relevant to a motion to dismiss,” the firm has filed more than 400 putative class action cases in federal courts since 2020, predominantly in New York and Illinois, it said. The firm “largely has worn out its welcome in those states,” with judges regularly dismissing its lawsuits for failure to state a claim on which relief may be granted, it said.

Online ticketing platform AudienceView failed to exercise “reasonable care” when it allowed hackers to access the “unencrypted and unredacted” personally identifiable information (PII) of its users in a February data breach, alleged plaintiff Jadyn Newman’s class action Thursday (docket 1:23-cv-03764) in U.S. District Court for Southern New York in Manhattan. Her complaint alleges AudienceView waited more than a month before it informed users of the data breach March 28. “In this era of frequent data security attacks and data breaches, particularly in the e-commerce industry,” AudienceView’s failures “are particularly egregious,” because this data breach was “highly foreseeable,” it said. “The risk of identity theft is not speculative or hypothetical but is impending and has materialized,” said the complaint. There’s evidence that Newman’s and class members’ PII “was targeted, accessed and disseminated” on the dark web, it said. Class members “suffered actual identity theft and misuse of their data” after the breach, it said. "There may be a time lag between when harm occurs versus when it is discovered, and also between when PII is stolen and when it is used," said the complaint. There's a strong probability "entire batches of stolen payment card information, full names, email addresses, and billing and shipping addresses have been dumped on the black market or are yet to be dumped on the black market," it said. The complaint seeks an order requiring AudienceView to delete, destroy and purge the PII of Newman and her class members unless AudienceView can provide the court "reasonable justification for the retention and use of such information when weighed against the privacy interests" of the company's users. AudienceView didn't comment Friday.