Defendants Apple, Visa and Mastercard seek to stay all proceedings in the antitrust class action brought Dec. 14 by Mirage Wine & Spirits, a liquor store in O’Fallon, Illinois, said their memorandum Tuesday (docket 3:23-cv-03942) in U.S. District Court for Southern Illinois in East St. Louis on support of their joint motion to stay. Mirage alleges that Apple had the leverage to “disrupt” Visa's and Mastercard's dominant position in the U.S. market for point-of-sale payment card network services when it was preparing to introduce its iPhone Apple Pay feature in 2014, but instead it colluded with them to maintain their market domination (see 2312150005). The defendants are awaiting a decision by the Judicial Panel on Multidistrict Litigation on whether the Mirage case should be transferred as a tag-along action to the U.S. District Court for Eastern New York in Brooklyn to be coordinated with In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation (MDL docket 1720), said their memorandum. The panel recently issued an order conditionally transferring the Mirage action to MDL 1720, based on the “overlap” between Mirage’s allegations and the claims and issues already consolidated in MDL 1720. Apple, Visa and Mastercard seek a short stay of all deadlines pending the panel’s final resolution of where the Mirage action will be litigated, it said. Such a “discrete stay” won’t prejudice Mirage, but allowing this action to proceed, only to see it transferred to MDL 1720, will result in a “significant waste” of the court’s and parties’ resources, it said.
American Vision Partners knew its patients’ personally identifiable (PII) and personal health information (PHI) was compromised in a Nov. 14 data breach, but it “inexcusably delayed disclosing and providing notice” of the incident to its victims until February, alleged a class action Tuesday (docket 2:24-cv-00463) in U.S. District Court for Arizona in Phoenix. American Vision determined on Dec. 6 that hackers had compromised its patients' PII and PHI, affecting some 2 million individuals, but only first publicly disclosed the breach to the Department of Health and Human Services on Feb. 6; it then began issuing data breach notices to affected patients, the complaint said. Plaintiffs Ralph Gallegos of El Paso County, Texas, and James Drews of Pinal County, Arizona, received notices dated Feb. 15 from American Vision, informing them their PII and PHI were compromised in the data breach. As a result, both plaintiffs will be forced to invest “significant time” monitoring their accounts to detect and reduce the consequences of “likely identity fraud,” the complaint said. American Vision had numerous statutory, regulatory, contractual and common law duties and obligations to patients to keep their PII and PHI confidential, secure and protected from unauthorized access, the complaint said. The data exposed in the breach -- including Social Security numbers, medical records, and health and insurance data -- indicates plaintiffs and class members have suffered “irreparable harm,” it said. The defendant “failed to use reasonable security procedures" appropriate to the nature of the private information it maintained for the plaintiffs, it said. Causes of action include negligence and negligence per se, breach of implied contract, invasion of privacy, unjust enrichment and violation of the Arizona Consumer Fraud Act, it said. Plaintiffs seek statutory damages, prejudgment interest and an order of restitution. American Vision didn't comment Wednesday.
Internet privacy and security company NordSec, based in Lithuania, uses “deceptive and illegal” automatic renewal practices to “dupe” consumers into paying for pricey subscriptions to its virtual private network, making it “intentionally difficult to cancel,” alleged a class action Tuesday (docket 3:24-cv-00277) in U.S. District Court for Western North Carolina in Charlotte.
Google plays a “direct and vital role” in gift card scams by allowing cards it knows “were involved in fraud to be redeemed and spent on digital currency and/or digital products which scammers can resell for currency,” alleged a fraud class action Tuesday (docket 5:24-cv-01314) in U.S. District Court for Northern California in San Jose.
The 9th U.S. Circuit Court of Appeals is considering for an upcoming oral argument calendar in San Francisco in July or August the appeal of six Chrome users against Google, said a text-only docket entry Monday (docket 22-16993). The six plaintiff-appellants seek to reverse a December 2022 district court order granting summary judgment for Google in a class action that alleged Google improperly collects the personal information of users who opt not to sync their browsers to their Google accounts (see 2212290037).
The U.S. Supreme Court should reject Ambassador Animal Hospital's Nov. 20 cert petition to reverse the 7th U.S. Circuit Court of Appeals decision affirming the district court’s dismissal of Ambassador’s Telephone Consumer Protection Act complaint, said respondent Elanco’s brief Friday (docket 23-552) in opposition to the petition.
Plaintiff Meira Avauni Rawlings and defendant Bath Fitter have reached an agreement in principle to resolve all of Rawlings’ Telephone Consumer Protection Act claims, said the parties’ notice of settlement Friday (docket 1:24-cv-00073) in U.S. District Court for Middle Pennsylvania in Harrisburg. “The parties request that the matter be passed for settlement,” said their notice. Rawlings alleged that Bath Fitter, a marketer of bathroom remodeling products and services, has long engaged in aggressive telemarketing, and has settled at least one TCPA class action lawsuit involving telemarketing calls (see 2401170001). She alleges she received at least four Bath Fitter telemarketing calls to her cellphone, though her number was listed on the national do not call registry since June 2021.
Liberty Mutual violates the Telephone Consumer Protection Act by placing unwanted solicitation calls to consumers’ residential phone numbers that are listed on the national do not call registry, alleged Adam Ward’s class action Friday (docket 1:24-cv-10526) in U.S. District Court for Massachusetts in Boston. The Cocoa, Florida, resident listed his number on the national DNC registry in August 2005 “to afford himself the protections” against “invasive and irritating telemarketing calls,” said his complaint. But Liberty Mutual nevertheless engaged in a telemarketing campaign directed toward Ward “in furtherance of its efforts to sell him an insurance policy he did not want or need,” it said. Ward didn’t provide express written consent or any consent for the company’s solicitation calls and texts, it said. Before the telemarketing campaign, the plaintiff didn’t have any established business relationship with Liberty Mutual, it said, saying he received a total of seven calls and text messages from the company. He experienced “frustration, annoyance, irritation and a sense that his privacy has been invaded,” said his complaint. Without having had the benefit of discovery to show otherwise, Ward alleges Liberty Mutual “is directly liable" for the unsolicited calls and text messages at issue because they were placed or made directly by the company, it said. Alternatively, if discovery reveals that some or all of the calls or text messages were made by third parties on Liberty Mutual’s behalf, then Liberty Mutual is vicariously liable for those calls or texts, it said. The FCC’s May 2013 declaratory ruling determined that hiring a vendor that engages in TCPA wrongdoing “was not a basis for avoiding liability,” it said. The FCC ruling “rejected a narrow view of TCPA liability, including the assertion that a seller’s liability requires a finding of formal actual agency and immediate direction and control over third parties who place a telemarketing call,” said the complaint. Liberty Mutual may have hired, encouraged, permitted and enjoyed the benefits of mass telemarketing by third-party telemarketers that are currently unknown to Ward and only known to Liberty Mutual, it said. The company “ratified its agents’ violations of the TCPA by accepting leads and deriving profit from sales imitated by unlawful robocalls,” the complaint said.
CR Fitness seeks Rule 11 sanctions against plaintiff Ben Davis and his counsel for pursuing a “frivolous” Telephone Consumer Protection Act lawsuit, said its motion Friday (docket 8:23-cv-02333) in U.S. District Court for Middle Florida in Tampa. Davis alleges that CR Fitness, the largest U.S. franchisee of Crunch Fitness gyms, embarked on an aggressive marketing campaign to sell club memberships by placing unsolicited, prerecorded telemarketing robocalls to consumers (see 2310140001). Davis alleges that he received a single unsolicited voicemail from CR Fitness in violation of the TCPA, but the “fatal flaw” to his case is that CR Fitness “never called him,” said the defendant's motion. Davis and his counsel by now “are well aware that the alleged voicemail was not made directly by CR Fitness, on behalf of CR Fitness, or at CR Fitness’ direction,” it said. The company provided its call records showing it never called Davis, it said. Notwithstanding the evidence of “non-liability,” the plaintiff “refuses to dismiss this baseless action, a failure that is magnified by the nature of class action claims where ascertainability is crucial,” the motion said. “This action is frivolous and should be dismissed," with sanctions being imposed against Davis and his counsel “for bad faith pursuit of these claims,” it said.
The Feb. 27 decision in the Northern District of California in Massel v. Successfulmatch.com (docket 23-cv-02389) provides supplemental authority to support Indira Falcon’s opposition to TelevisaUnivision Digital’s motion to compel her claims to arbitration, said Falcon’s notice Friday (docket 8:23-cv-02340) in U.S. District Court for Middle Florida in Tampa. Falcon’s class action alleges TelevisaUnivision knowingly violated the Video Privacy Protection Act by embedding the Meta Pixel tool on its website to track users’ video viewing history and then reporting that history to Facebook (see 2310170001). Falcon’s opposition contends that TelevisaUnivision failed to give her and her class members proper “inquiry notice” of its terms and arbitration provision. The judge in Massel found that because the defendant’s links to its terms didn’t appear in a contrasting color, the court must conclude that they weren’t reasonably conspicuous enough to put Massel on notice of the terms and that the plaintiff therefore can’t be said to have assented to them, said Falcon’s notice. “This conclusion is bolstered by the fact that other links on the signup page appear in all capital letters,” while the links to the service agreement and privacy policy are in “title case,” it said. These distinctions “may seem picayune,” but website operators “have ultimate control over their design decisions,” it said. Nothing requires them to present terms as “subtle hyperlinks” to separate pages instead of requiring users to scroll through the actual terms before signing up, it said.