Consolidating two similar e-commerce fraud actions by the same plaintiff will “preserve judicial resources” and promote “efficient resolution,” said defendant BPS Direct’s Tuesday motion (docket 6:22-cv-3285) to consolidate cases filed in U.S. District Court for Western Missouri in Springfield. The two actions brought by plaintiff Arlie Tucker of St. Clair, Missouri, have common parties, identical claims and will present the same factual and legal issues, with Tucker alleging both companies’ use of session replay software constitutes “wiretapping” and violates state and federal law, said the motion. In December, attorneys for Cabela’s notified the court of the related action before U.S. District Court Judge Stephen Bough (see 2212280025) and asked that Tucker’s case against BPS be transferred to Bough’s court in Kansas City. Plaintiff’s counsel didn’t object to the transfer, it said. The complaint against Cabela’s -- alleging the third-party vendors create and deploy session replay codes at the defendant's request to recreate visitors' entire visit to the e-commerce site -- makes “substantially similar allegations” to those against BPS Direct, said the notice. Defendants’ directive to the session replay providers "to secretly deploy" the session replay code "results in the electronic equivalent of looking over the shoulder” of each visitor to the e-commerce site for the "entire duration of their website interaction," the plaintiff asserted. The complaints against both retailers allege their e-commerce conduct violates several federal and state laws, including the Electronic Communications Privacy Act, the Computer Fraud and Abuse Act, and the Missouri Wiretap Act.

The 3rd U.S. Circuit Appeals Court docketed the appeal Friday (docket 23-1098) by four plaintiff-appellants who seek to hold Best Buy accountable for the investments they were coaxed into making in a fraudulent delivery and installation business during the height of the COVID-19 pandemic. Rafi Gibly, Christian Vieri, Yosef Lipkin and Anthony Nougues Guitera seek to reverse a Dec. 15 U.S. District Court for New Jersey order granting Best Buy’s motion for dismissal of their fraud complaint, said their notice of appeal. The co-owners of the sham business, Yevgeny Shvartsshteyn and Arsen Lusher, both nonparties to the litigation, twice invited Gibly to meet them in March and December 2020 at a Best Buy distribution center in Piscataway, New Jersey, said the dismissal order accompanying the notice. During both tours, the three were greeted by two different managers or supervisors wearing Best Buy security badges, both with access to restricted areas of the facility, and with “extensive knowledge of the logistical operations at the site,” it said. The Best Buy employees vouched to Gibly for the fleet of trucks Shvartsshteyn and Lusher owned, promising an increase in demand for home deliveries due to the pandemic would mean an increase in delivery opportunities and a windfall for investors in the Shvartsshteyn-Lusher venture. “Due to the conduct of the Best Buy employees during the tours,” Gibly invested in the Shvartsshteyn-Lusher venture and convinced three others, ultimately his co-plaintiffs in the action, to invest, it said. Only after the plaintiffs learned the venture was a fraud did they realize that the Best Buy employees involved in the tours participated in the scam and knew their representations about the trucks were false, said the dismissal order. The plaintiffs sued Best Buy for aiding and abetting fraud. In granting Best Buy’s motion to dismiss, U.S. District Judge John Vazquez determined the plaintiffs “failed to sufficiently plead that Best Buy is liable for the alleged misrepresentations of its employees under the doctrine of apparent authority,” it said. Their theory of Best Buy’s liability “forecloses any reasonable inference that Best Buy knew of the underlying fraud,” it said.

The Michigan First Credit Union has no right to “indemnification or contribution” from T-Mobile “for liabilities Congress imposed on financial institutions for unauthorized bank transfers affecting their banking customers,” said T-Mobile in a motion to dismiss Monday (docket 2:22-cv-13159) in U.S. District Court for Eastern Michigan in Detroit. Financial institutions across the U.S. are being forced under the Electronic Funds Transfer Act (EFTA) to bear the damages associated with T-Mobile’s failure to stop SIM-swap fraudsters from draining the bank accounts of their common customers, alleges First Michigan’s class action (see 2301030048). T-Mobile is unfairly leaving the banks on the hook for reimbursing customers for their losses, as it's required to do under the EFTA. The complaint also alleges T-Mobile violated the Federal Communications Act by failing to protect customers’ confidential information. Michigan First “fails to state a claim for indemnification or contribution for its liability under the EFTA because the EFTA does not provide for those remedies,” said the carrier. Michigan First also “does not allege facts plausibly supporting T-Mobile’s supposed liability,” it said. Its “barebones” complaint doesn't explain how T-Mobile’s purported violation of the FCA “resulted in customers’ losses from Michigan First’s bank accounts,” it said. The credit union relies on “hypotheticals,” and it “mischaracterizes” carriers’ consumer-protection obligations under the FCA, it said. Michigan First also fails to allege facts “as to why T-Mobile should bear responsibility for hackers accessing Michigan First’s secure banking platform to perform unauthorized banking transactions,” it said.

The plaintiffs and defendants disagree who gets the last word in a motion for judgment on the pleadings on Vermont National Telephone (VTEL) claims of fraud by big winners in the 2015 AWS-3 auction. In a docket 1:15-cv-00728 opposition to amending the briefing schedule filed Tuesday with the U.S. District Court for the District of Columbia, the U.S. said it hasn't addressed any matter not otherwise raised by defendants Dish Network, SNR Wireless and Northstar Wireless in their reply to the governments notice of opposition to dismissal. Relator VTEL said similarly the defendants "seek yet another brief for no good reason" and their argument the government and relator raised new arguments "strains credulity." Dish, SNR and Northstar in their Jan. 9 motion seeking to amend the briefing schedule so they could reply to replies the U.S. and VTEL made earlier this month said those filings "advance a host of new arguments" necessitating response.

Plaintiff LinkedIn consented Wednesday to magistrate judge jurisdiction (docket 5:23-cv-00110) in its lawsuit against TopSocial24 and others in U.S. District Court for Northern California in San Jose. LinkedIn alleged in a fraud complaint that Bangladesh-based websites TopSocial24 and SocialBD24 facilitate “deceptive and inauthentic interactions” via fake LinkedIn accounts (see 2301110025).

Globalgurutech’s motion to dismiss Xfinity Mobile's handset trafficking complaint should be denied in its entirety because its arguments are “factually and legally incorrect,” with many already considered and rejected by other courts, said XM Tuesday in its opposition (docket 2:22-cv-01950). XM requested leave to amend its complaint if additional allegations are needed. Also Tuesday, Globalgurutech argued in its reply in support of its motion to strike three paragraphs and exhibits from the complaint that the information could be prejudicial, responding to XM’s opposition filed last week in U.S. District Court for Arizona in Phoenix to strike the information from the complaint. XM is “trying to employ ‘guilt-by-association’” with other phone resellers using a “cookie-cutter complaint” their attorneys “have been using for years that does not apply" to GGT. None of the nine cases included in one exhibit involve either XM or any of the defendants named in the case, it said. “Xfinity would like it to be illegal for anyone to buy or sell a blacklisted phone, but it is not,” said the reseller, saying XM and other carriers “banded together (perhaps in violation of the Sherman Act)” to create lists of “bad” or “blacklisted” devices and “appointed themselves as judge, jury and executioner” in determining which devices should be unusable on their networks, said the defendant.

Samsung Galaxy S21 Ultra 5G smartphone buyers have 21% less storage than product marketing and labels promise, requiring consumers to buy a new phone to accommodate the number of videos, photos, apps and music they use, said a Sunday class action (docket 1:23-cv-00168) in U.S. District Court for Southern New York in Manhattan. Plaintiff Tiffany McDougall of Holmes, Pennsylvania, noted fine print within the phone’s technical terms say 101.4 GB of memory are available to users out of the advertised 128 GB capacity. The remaining 26.6 GB are occupied by Samsung’s operating system, plus pre-installed apps such as DirecTV; Samsung Notes, Health, Pass and Visit; and Smart Limits. The pre-installed apps -- which aren't essential to the operation of the device -- can be disabled but not removed to free up storage space, said the complaint. Since the phone is sold without the ability to add local storage via a memory card, “the only option is to purchase a new phone” with more storage, said the plaintiff. The disclosures about available memory and existing content “are not conspicuous to purchasers at the point of sale,” said the complaint. The plaintiff paid more for the phone than she would have if she knew she wasn't receiving 128 GB of usable storage space, said the complaint. Samsung sold more phones at higher prices than it would have “in the absence of this misconduct, resulting in additional profits at the expense of consumers,” it said. The plaintiffs claim Samsung violated the Pennsylvania Unfair Trade Practices and Consumer Protection Law and New York General Business Law, and also charge the phone maker with breach of warranty, negligent misrepresentation, fraud and unjust enrichment. They seek monetary, statutory and punitive damages, plus costs and fees. Samsung didn't comment Tuesday.

U.S. District Judge John Walter for Central California in Los Angeles should compel all of plaintiff Alison White’s false advertising claims against Ring and Home Depot to arbitration, said the defendants’ reply brief Monday (docket 2:22-cv-06909). If the court declines to compel arbitration, “it should dismiss all of White’s claims with prejudice,” it said. Walter signed an order Friday scheduling a jury trial on White’s claims to begin Dec. 12 (see 2301090004). White, a licensed attorney, alleges Ring and Home Depot misrepresented in their ads and marketing materials that Ring’s Jobsite Security 5-Piece Starter Kit will contact the authorities automatically if a home's security system is breached. Ring and Home Depot deny wrongdoing. “Faced with the reality” that White agreed to arbitrate all her claims, she now “attempts to escape arbitration” by mischaracterizing her agreements, misstating the law and claiming she never read the defendants’ contract terms any of the 24 times she clicked “to accept them,” said their brief. The evidence before the court, including White’s own testimony, demonstrates she “undisputedly accepted” the arbitration terms through the defendants’ “enforceable ‘clickwrap’ and ‘modified clickwrap’ agreements,” it said. “White is bound to those terms regardless of whether she chose to read them.”

The alleged perpetrators of a scheme to impersonate DirecTV telemarketers deny any wrongdoing, said their answer Monday (docket 6:22-cv-00423) to DirecTV’s Nov. 1 complaint in U.S. District Court for Eastern Texas in Tyler (see 2211010049). Defendants WNK Associates, the Great Mile, Waleed Iqbal and Khalid Iqbal seek the dismissal with prejudice of all claims against them for DirecTV’s failure to state a claim for unjust enrichment upon which relief may be granted. DirecTV alleged the culprits typically contact existing or potential DirecTV customers to offer them nonexistent free or significantly discounted services or products, and then they take the consumer’s money, usually in the form of prepaid gift cards that are subsequently laundered.

Verizon's motion for summary judgment in a breach of contract lawsuit (docket 1:22-cv-8703) brought against its debt collector, CBE Customer Solutions, is “ill-considered and meritless,” said CBE in a memorandum in opposition Friday in U.S. District Court for Southern New York in Manhattan. Verizon filed a memorandum last month saying CBE should indemnify the carrier for fees and costs it incurs in defending claims arising from CBE’s services (see 2212200030). In 2016, CBE “negligently failed to remove a non-customer” from a Verizon call list it was hired to manage, leading to a Telephone Consumer Protection Act class action against Verizon and a multimillion-dollar settlement. Verizon requested indemnification from CBE for its losses under the parties’ written agreement “but CBE refused,” prompting Verizon to file a lawsuit to seek enforcement of the indemnification provision, it said. CBE countersued for unjust enrichment and breach of the implied covenant of good faith, alleging any negligence that mushroomed into a TCPA class action and settlement was of Verizon’s doing, not CBE’s (see 2212140027). In its opposition Friday, CBE asserted Verizon made “premature and improper demands” for indemnity to “badger” CBE into underwriting the costs of Verizon’s “noncompliance” with the TCPA. On the counterclaim of unjust enrichment, CBE said, “When one party to a contract unjustly enriches itself at the expense of the other party and where such enrichment is outside the scope of their contract, the written agreement does not control, and a claim in quasi-contract exists.”