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.
Some motions “should never have been filed,” and a “prime example” is Apple’s Feb. 7 motion to stay discovery pending the resolution of its motion to dismiss Lisa Bodenburg’s first amended fraud complaint (see 2311220011), said her opposition Wednesday (docket 3:23-cv-04409) in U.S. District Court for Northern California in San Francisco. Bodenburg alleges that Apple delivers iCloud+ subscribers 5 GB less monthly cloud-storage capacity than they buy. Apple’s motion to stay discovery “not only lacks merit, it also is superfluous given the procedural posture of the case,” said Bodenburg’s opposition. Apple concedes that no matter the outcome of its pending motion, the company will timely respond to Bodenburg’s outstanding discovery, it said. She has made “just three requests for production of a limited set of documents primarily dealing with Apple’s subscriber numbers and types of paid iCloud plans offered,” said the opposition. Apple noticed the hearing on its stay motion for the same March 12 date as the hearing on its motion to dismiss, “effectively mooting the motion to stay,” it said. By the time the court considers the motion to stay, “it will also already have considered the motion to dismiss,” it said. If the court denies the motion to dismiss, as it should, the motion to stay “would be denied by its terms,” the opposition said. If “by some stroke of fortune” Apple gets its motion to dismiss with prejudice granted, “that would end the case and there would be no discovery to undertake or stay,” it said. “Either way, Apple’s belated motion to stay accomplishes nothing,” it said.
SiriusXM denies, “generally and specifically,” each and every allegation in the fraud class action brought by Christopher Carovillano and Steven Brandt alleging that the company advertises its monthly music plans at lower prices than it charges, said its answer Tuesday (docket 1:23-cv-04723) in U.S. District Court for Southern New York in Manhattan. U.S. District Judge Paul Engelmayer, in a Feb. 6 opinion and order, dismissed the complaint’s claims for injunctive relief under New York business law without prejudice to the plaintiffs' right to pursue their claims in state court (see 2402070040). He also dismissed the complaint’s unjust-enrichment claims with prejudice but otherwise denied SiriusXM’s motion to dismiss, with orders for SiriusXM to answer the complaint by Tuesday. The claims of the plaintiffs and the putative class are barred, in whole or in part, because they haven’t suffered any injury or damages, said SiriusXM's answer. Their claims also are barred “by a binding agreement to arbitrate,” it said.
SolarWinds disputes allegations in the SEC’s Oct. 30 complaint that the company duped investors by concealing the security vulnerabilities that led to the Russian government’s massive Sunburst cyberattack in 2020 (see 2310310041) “and intends to defend itself in this matter,” said the company’s 10-K filing Friday with the SEC. Though the complaint's impact, including the costs, timing and results, are “unknown at this time,” an “adverse resolution” of the litigation “could have a material impact” on the company’s business, reputation and financial condition, it said. Regardless of the outcome of the SEC complaint, the SEC’s investigation and resulting complaint has resulted in substantial costs and “diversion of the attention of management and other employees,” it said. “We have incurred and will continue to incur legal and other expenses in connection with this matter and anticipate that we will be required to indemnify certain current and former officers,” said the 10-K. “We have exhausted our coverage limits under our applicable insurance policies and will therefore be required to cover such costs without insurance reimbursement,” it said.
AT&T and Leon Peng, the plaintiff in a shareholder derivative suit alleging AT&T duped investors over its ownership of toxic lead cables (see 2402020001), agreed to stay Peng's case, pending developments in a separate case against AT&T in New Jersey, said their stipulation Thursday (docket 1:24-cv-00132) in U.S. District Court for Delaware in Wilmington. The stay would lift 30 days after the U.S. District Court for New Jersey rules on AT&T's forthcoming motion to dismiss plaintiff John Brazinsky’s securities fraud class action alleging similar claims against current and former AT&T officers and board members (see 2307300002), said the stipulation. In light of “the similarities and overlaps” between the two cases, the parties agree that a stay would “conserve the parties’ and judicial resources,” said the stipulation.
The plaintiffs in a negligence class actio in Kendall Hawk et al v. HealthEC consented to consolidation of their privacy case into Lempinen v. HealthEC (2:24-cv-00026), said an order signed Tuesday (docket 2:24-cv-00697) by U.S. Magistrate Judge Edward Kiel in U.S. District Court for New Jersey in Camden. Plaintiffs in the negligence cases allege cyber thieves had eight days to exfiltrate their personally identifiable information in a July data breach that HealthEC didn’t discover until over three months later. The data breach affected 4.5 million current and former patients.
Plaintiff Basket Entertainment and defendant John Cannata estimate a jury trial in the August 2025 trial term will last approximately 10 days on the company’s “double-dealing” fraud allegations against Cannata, its former vice president (see 2311140004), said the parties’ joint case management report Monday (docket 2:23-cv-01028) in U.S. District Court for Middle Florida in Fort Myers. Basket, a developer of online games and mobile apps for the Roblox platform, hired Cannata in July to identify acquisition targets to grow its user base. It alleges Cannata almost immediately went behind its back and acquired ownership interests in at least two online games for himself without ever presenting them as opportunities to his employer. The defendant tells a different story, according to the case management report. Cannata operates one of the most successful gaming studios on the Roblox platform, and Basket is a small startup company that operates a social media website and app called Picnic, said the report. He alleges Basket "fraudulently induced" him last summer to sign an "asset contribution agreement" under which he joined Basket’s board and contributed a number of his companies’ video games to Basket, it said. “A related arbitration is currently pending, which, if successful, will rescind the agreement and separate the parties,” said the report. Cannata alleges that in their few months together, Basket failed to pay him for his services, “as it was contractually required to do,” it said. Basket initiated its lawsuit after Cannata resigned from the company, alleging that he violated his fiduciary duties to Basket, it said. Cannata denies that he violated any obligations to Basket, “including because the parties expressly agreed as part of his employment agreement that he could continue his independent business of game development,” said the report.
U.S. District Judge Jill Parrish for Utah in Salt Lake City adopted "in full" U.S. Magistrate Judge Dustin Pead's Dec. 27 report and recommendation (see 2312280017) and dismissed without prejudice Jillane Pope’s claims against Wells Fargo Bank and JPMorgan Chase, said Parrish’s signed order Monday (docket 2:23-cv-00086). No party filed a timely objection to Pead’s report, “and any argument that it was in error has thus been waived,” said the order. Pead’s report said he was “sympathetic” to Pope’s “plight” as a victim of text-phishing scammers, but he found that the law “is not on her side to recover her losses.” A pro se plaintiff, Pope received a text in October 2022 from someone impersonating a Geek Squad employee and saying Best Buy charged her its yearly service fee, said Pead’s report. What then transpired was “an unfortunate series of events” that led Pope to inadvertently wire $29,000 from her Wells Fargo account to an account at JPMorgan Chase that belonged to the scammers, it said. Pope’s complaint claimed Wells Fargo and JPMorgan Chase knew a theft was in progress and failed to prevent it in violation of their alleged duties, it said.
U.S. District Judge Xavier Rodriguez for Western Texas in San Antonio directed his clerk to administratively close the FTC’s case against the personal finance mobile app, FloatMe, and its co-founders Joshua Sanchez and Ryan Cleary, said his signed order Friday (docket 5:24-cv-00001). Though administratively closed, the case “will still exist on the docket,” and may be reopened on request or on the court’s own motion, said the order. The parties may continue to file motions and documents in the case, it said. FloatMe, Sanchez and Cleary agreed Jan. 22 to pay the FTC $3 million to settle allegations that they promise, but then fail to deliver, short-term cash advances if consumers enroll in a $1.99 monthly membership plan (see 2401240055).
Apple refuses to repair Harrison Varnes’ Apple Watch under the Apple Care+ service contract he bought for $4.34 a month and continued to pay for through December because he has an implantable cardioverter defibrillator (ICD) embedded in his chest to prevent future cardiac arrhythmias, alleged Varnes’ breach of contract class action Thursday (docket 1:24-cv-01007) in U.S. District Court for Eastern New York in Brooklyn. Apple told the Queens, New York, resident that his ICD rendered him an “unintended user” of the Apple Watch and AppleCare+, said the complaint. After contacting the Apple service team, Varnes on Dec. 12 received 11 separate refunds of $4.34 each, representing credits for the monthly Apple Care+ payments he made for 2023, it said. But at no time did Varnes agree that these refunds “would be in full satisfaction of his claims,” it said. Varnes has received no further offers of compensation from Apple for his two prior years of payments for AppleCare+, despite Apple’s admissions that it never intended to perform services on his Apple Watch, which still hasn’t been repaired, it said. Nothing in the AppleCare+ contract suggests that AppleCare+ services aren’t available to Apple Watch customers with ICDs or defibrillators, the complaint said. Varnes, by counsel, served a pre-suit notice and demand letter on Apple Jan. 18, formally notifying it of the breach of its AppleCare+ contract and demanding that Apple repair his Apple Watch or provide compensation, said the complaint. Apple responded Jan. 26, confirming that it wouldn’t repair his Apple Watch under the AppleCare+ contract because of Varnes' ICD, it said. It pointed to language in an “obscure” subdomain of the Apple website that instructs Apple Watch owners not to use the device with a cardiac pacemaker or ICD, it said. “The language says nothing about Apple refusing to service an Apple Watch product under AppleCare+ merely because the Apple Watch user has a cardiac pacemaker or ICD,” it said. Varnes sues on behalf of himself and a class he defines as all individuals with cardiac pacemakers or ICDs or other implanted electronic devices who bought an Apple Watch within the U.S. and are or were covered by AppleCare+. His complaint cites research showing that more than 3 million people in the U.S. are thought to have a conventional pacemaker and more than 300,000 are estimated to have an ICD. He alleges that the total claims of individual class members in his action exceed $5 million in the aggregate, exclusive of interest and costs.