The lead plaintiff shareholders in the securities fraud suit against Warner Bros. Discovery are appealing the judge’s Feb. 5 dismissal of their case to the 2nd U.S. Circuit Appeals Court (see 2402060059), said their notice of appeal Monday (docket 1:22-cv-08171) in U.S. District Court for Southern New York in Manhattan. The Ohio Public Employees Retirement System and the State Teachers Retirement System of Ohio alleged that false and misleading statements about streaming subscriptions were in the offering materials that preceded Discovery’s transaction with WarnerMedia from which WBD emerged. But U.S. District Judge Valerie Caproni ruled that the plaintiffs haven’t “adequately alleged any actionable statements or omissions” under sections 11 or 12(a)(2) of the Securities Act. The merger offering documents “accurately explained the methodology WarnerMedia and Discovery used for calculating the number of subscribers to their streaming platforms,” said her order.

Parties in a November instant action involving an alleged SIM swap have consented to arbitration of Raymond Krumdieck’s claims, said their proposed stipulation Thursday (docket 1:23-cv-09556) in U.S. District Court for Southern New York in Manhattan. Krumdieck sued Coinbase and Verizon, alleging a hacker, with a Verizon store assistant manager's help, gained access to his financial accounts through a SIM card swap, stealing $300,000 from his cryptocurrency account (see 2311010018). The suit claims breach of contract; negligence; gross negligence; negligent hiring, retention and supervision; negligent infliction of emotional distress; and violations of the Federal Communications, New York Consumer Protection, and Computer Fraud and Abuse acts. Verizon argues the instant action is subject to mandatory arbitration under its customer agreement and requested the parties consent to arbitration for expediency and to avoid the costs of protracted litigation and motion practice. The parties will mutually agree on and select the arbitrator from the American Arbitration Association, and Verizon will reimburse Krumdieck for any filing fees charged by the AAA at the end of arbitration, regardless of the outcome, provided he “fully participates in the process,” it said.

Amazon and one of 27 individual defendants named in a lawsuit involving refund abuse reached a settlement, said a signed order Tuesday (docket 2:23-cv-01879) from U.S. District Judge James Robart for Western Washington in Seattle. Under terms of the settlement, defendant Jorge Correa is permanently enjoined and restrained from using Amazon.com; exploiting or abusing Amazon’s ordering or return services; making false statements to Amazon; engaging in any activity that defrauds Amazon into paying money or providing replacement products for illegitimate returns; engaging in any malicious activity that interacts with Amazon; and knowingly assisting any other person performing activities described, the order said. In its December suit, Amazon sued 27 individuals and unknown "John Does" 1-20 in a fraud case involving REKK, a global organization allegedly responsible for stealing millions of dollars of products from Amazon’s online stores through systematic refund abuse (see 2312080052).

Donald Hess voluntarily dismissed without prejudice his class action claims against Rivers Casino in Des Plaines, Illinois, arising from an August data breach (see 2312150003), said his notice of dismissal Tuesday (docket 1:23-cv-16791) in U.S. District Court for Northern Illinois in Chicago. The plaintiff alleged that the information stolen in the data breach included individuals’ “private, sensitive information,” including their full names, phone numbers, email addresses, dates of birth, driver’s license ID numbers, financial account numbers, passport numbers and Social Security numbers.

Former Apple metallurgist Ganiyu Jaiyeola is "injured" because Apple, AT&T, T-Mobile and Verizon “falsely, deceptively, and fraudulently” advertised the iPhone 15 Pro as being a titanium phone, said Jaiyeola’s reply brief Tuesday (docket 23-4027) at the 9th U.S. Circuit Appeals Court in his bid for injunctive relief to stop the ads (see 2312150041). The alloys in the iPhone 15 Pro include aluminum and titanium, but the iPhone 15 Pro is not a titanium phone because the device has “at least three times more” aluminum alloy than titanium alloy, said the brief. Jaiyeola “knows the alloy composition” of the iPhone 15 Pro because he worked on the iPhone 15 at Apple, it said. Jaiyeola was a senior subject-matter expert at Apple from February 2022 to Aug. 8, where he developed “a pH-dependent chemical cleaning method” for the iPhone 15, it said.

Lisa Bodenburg’s opposition to Apple’s motion to stay discovery pending the resolution of Apple’s motion to dismiss her first amended fraud complaint (see 2402220044) “misstates the legal standard” for a motion to stay and makes “unfounded accusations” against the company, said Apple’s reply Tuesday (docket 3:23-cv-04409) in U.S. District Court for Northern California in San Francisco in support of the stay. The plaintiff alleges that Apple delivers iCloud+ subscribers 5 GB less monthly cloud-storage capacity than they buy. Apple’s motion to stay discovery was timely filed and there’s no concern with that motion being heard alongside the motion to dismiss at the March 12 motion hearing, said the defendant’s reply. The request for a discovery stay would become moot if the court grants Apple’s motion to dismiss at the hearing, it said. A discovery stay otherwise “is likely to avoid unnecessary expense for the parties” and burden to the court before a decision on the motion to dismiss is issued, it said. Bodenburg also wrongly asserts that Apple misstated the legal standard for the motion to stay, it said. District courts routinely apply “a straightforward two-part test in determining whether to exercise their discretion to stay discovery,” it said. They consider whether a pending motion is potentially dispositive of the action and whether any discovery is necessary to decide the motion. Courts often take a “preliminary peek” at the pending motion to assess its potential merit before deciding whether to stay discovery, it said. Despite Bodenburg’s attempts to “complicate this analysis,” Apple’s pending motion to dismiss “clearly satisfies this two-part test,” it said. The motion to dismiss requires no discovery, and it’s “more than possible that it will be dispositive: it should end the case,” it said. Bodenburg also is incorrect that the requested discovery stay “will create havoc given the case schedule or that a discovery stay is unnecessary because of the scope of discovery sought to date,” said the reply. The plaintiff has made clear that she intends to seek “wide-ranging discovery,” including from third parties, “and posits that Apple can challenge such requests through motion practice” while the motion to dismiss is pending, it said. But Bodenburg’s position “is contrary to the fundamental purpose of a discovery stay,” the reply said. A stay is designed to avoid burdening the court with discovery-related motions “when a dispositive motion requiring no discovery is pending and forcing the parties to incur additional costs,” it said.

Plaintiff Zuania Vazquez-Padilla remedied the court’s concern that plaintiffs in a multi-plaintiff action against Cognizant Technology relied on group allegations to support their individual claims of fraud, said her memorandum of law Monday (docket 8:23-cv-02607) in U.S. District Court for Middle Florida in Tampa in support of her opposition to Cognizant's motion to dismiss. Vazquez-Padilla’s November complaint alleged Cognizant’s human content moderation system, which provided content moderation services to Facebook, established call centers in “relatively low-paying labor markets” such as suburban Tampa to hire “low-paid, unsophisticated workers with little knowledge of the technology industry to perform the grueling job of content moderation.” Vazquez-Padilla’s lawsuit arises out of the Aguilo v. Cognizant class action (docket 8:21-cv-002054), which the court dismissed without prejudice “chiefly, because Plaintiffs continue to rely on group allegations to support their individual claims of fraud,” said the memorandum. In the multi-plaintiff action, the court determined that Vazquez-Padilla was the only plaintiff to have pleaded with sufficient particularity as to when the fraudulent misrepresentation occurred, it said. Vazquez-Padilla said she received a “cheat sheet” June 28, 2018, from a recruiter who hired content moderators for Cognizant. She also satisfied the “when” and “where” of the initial misrepresentation, saying she arrived for her assessment at Cognizant’s Tampa facility July 6, 2018. In its motion to dismiss, Cognizant said Vazquez-Padilla’s reliance on its misrepresentations about the dangers of content moderation wasn’t justified because whether something is harmful is “inherently subjective." But “nothing could be further from the truth,” said the memorandum, saying Facebook was aware of the dangers of long-term unmitigated content moderation and helped draft workplace safety standards to protect moderators. Vazquez-Padilla has been diagnosed with post-traumatic, acute and anxiety disorders, plus insomnia and other conditions resulting from Cognizant’s “tortious conduct,” said the memorandum. She alleges the injuries affect her daily life in that she and her children don’t go out often as a result of exposure to graphic content. In two related actions, a judge and an arbitrator denied Cognizant’s motions to dismiss, finding plaintiff Dawnmarie Armato sufficiently pleaded with specificity Cognizant’s alleged misrepresentation of “known danger,” and plaintiff Daniel Walker’s knowledge of the dangers of Cognizant’s content moderation system was a question of fact precluding resolution at that stage of arbitration, it said. Cognizant’s motion to dismiss should be denied in its entirety, the memorandum said.

U.S. Circuit Judge Todd Hughes for the Federal Circuit, sitting by designation in the U.S. District Court for Delaware in Wilmington, denied in part and granted in part AT&T’s motion to dismiss Averon’s first amended trade secrets complaint, said his signed order Monday (docket 1:22-cv-01341). Averon alleges AT&T courted it as a business partner for Averon's passwordless authentication technology, only for the carrier to use that technology to form the ZenKey joint venture with T-Mobile and Verizon, foreclosing Averon as a direct market competitor (see 2301100002). The judge denied AT&T’s motion to dismiss three counts of Averon’s complaint that alleged trade secret misappropriation and breach of contract but granted its motion to dismiss six other counts involving allegations of fraud and misrepresentation, unfair competition and intentional interference with Averon’s customers. The judge’s memorandum opinion was sealed, but he ordered the parties to jointly submit a redacted version for public filing by March 11.

The parties in Tyler Franco’s swiped identity lawsuit against AT&T, TS Mobility and five TS Mobility owners and employees (see 2401110040) have reached an agreement in principle “to settle this case amicably and are in the process of memorializing the terms and obtaining signatures to finalize the settlement,” said their notice Thursday (docket 2:24-cv-00174) in U.S. District Court for New Jersey in Newark. The parties “consent to the administrative termination of all deadlines in this proceeding for a 60-day period, pending consummation of the settlement documents,” said the notice. Franco alleged his personally identifiable information was compromised after he bought a phone plan through an AT&T employee working at TS Mobility in Franklin Lakes, New Jersey. He also alleged the amount of the bill for the plan sold to him by the AT&T employee “was not what was promised to him at the time of purchase.”

Amazon opposes defendant Elly Infotech’s Feb. 7 motion to set aside a clerk’s entry of default for failure to timely file a responsive pleading (see 2401190030) because it “falls short” of satisfying the 9th Circuit’s criteria for doing so, said Amazon’s response Wednesday (docket 2:23-cv-02353) in U.S. District Court for Arizona in Phoenix. Elly Infotech was one of multiple defendants that Amazon sued in three federal courts on a single day, seeking to halt them from running “impersonation scams” that dupe consumers into buying fake Amazon support services for activating Prime Video on their devices (see 2311120001). Elly Infotech contends that if the court sets aside the order of default, it will submit “meritorious defenses,” said Amazon’s opposition. Yet Elly Infotech presents only “a small number of conclusory assertions, unaccompanied by any factual support or explanation of how the assertions are defenses to Amazon’s causes of action,” it said. “The failure to bring non-conclusory meritorious defenses is fatal,” it said. But its motion to set aside is also “deficient” because it doesn’t present “a good faith explanation for its failure to timely file,” it said. Elly Infotech claims that despite its “diligent attempts” to obtain counsel, it was unable to do so “until well after the answer deadline,” it said. The evidence “contradicts this claim,” instead suggesting that Elly Infotech didn’t intend to seek counsel until after Amazon filed its request for entry of default, it said.