Home security company Vivint failed to disclose to a customer that he would be required to buy additional products to receive its service and refused to allow him to cancel home monitoring, alleged a Jan. 12 fraud class action (docket 1:24-cv-01010) removed Wednesday from Burlington County, New Jersey, Superior Court to U.S. District Court for New Jersey in Camden.
A Verizon employee gained unauthorized access to a file containing personally identifiable information (PII) of 63,206 company staffers on Sept. 21, though Verizon didn’t discover the breach until Dec. 21, alleged a fraud class action Wednesday (docket 2:24-cv-01431) in U.S. District Court for Central California in Los Angeles. Moreover, Verizon notified the Maine attorney general and data breach victims weeks later, on Feb. 7, it said.
Capital Infusion, which places solicitation calls to businesses that may require capital funding, violates the Telephone Consumer Protection Act by making telemarketing calls and sending text messages to consumers without consent, including calls and text messages to phone numbers listed on the national do not call registry, alleged Erica Cardenas’ class action Tuesday (docket 1:24-cv-20647) in U.S. District Court for Southern Florida in Miami. Capital Infusion, based in Miami, also violates the TCPA by contacting consumers “who have expressly requested that the calls and texts stop,” the complaint said. Cardenas, a resident of Chula Vista, California, alleges Capital Infusion “lacks a sufficient opt-out system” to ensure that a consumer who notifies the company to stop calling or texting them will be removed from its contact list, said the complaint. “Consumers and businesses have posted complaints online about unsolicited calls and text messages they received from Capital Infusion,” including from consumers who received additional unsolicited calls after telling the company to stop calling. Cardenas listed her cellphone number on the national DNC registry Nov. 9, yet she received multiple unwanted calls soliciting her about business finance loans, said her complaint. She told the callers she's not seeking business financing because she doesn't own a business, it said. The callers have been asking consistently to speak to an Eric Thompson, an individual she doesn’t know, it said. The unauthorized calls and text messages that Cardenas received from or on behalf of Capital Infusion have harmed her “in the form of annoyance, nuisance, and invasion of privacy,” it said. The calls and texts have also occupied her phone line and disturbed her use and enjoyment of her phone, 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.
U.S. District Judge Theodore Chuang for Maryland in Baltimore granted leave to the plaintiffs in seven class actions to move to consolidate those cases involving a data breach at the Retina Group of Washington (RGW) and to appoint interim co-lead class counsel, said his order Tuesday (docket 1:24-cv-00082). His order followed a case management conference Friday. The ophthalmology provider notified patients on its website from July 7 to Nov. 4 of a data breach it experienced March 26 but didn’t disclose that current and former patients’ personally identifiable or personal health information was compromised, Shalane Vance and Sharon Jenkins alleged in one of the class actions last month (see 2401100023). The other actions are brought by Mary Vandenbroucke (docket 1:24-cv-0004), Kwame Dapaah-Siakwan (1:24-cv-0016), Jennifer Boehles (1:24-cv-0020), Natalia Girard (1:24-cv-0082), David Puckett (1:24-cv-0137) and Desiree McCormick (1:24-cv-0166). Plaintiffs must file their motion by Friday, and if the motion is granted, they will be granted leave to file an amended complaint by March 18, the order said. RGW intends to file a motion to dismiss following submission of the amended complaint, due April 17, it said.
U.S. District Judge Donald Middlebrooks for Southern Florida in Fort Lauderdale denied Citrix and Comcast’s joint Feb. 13 motion for an extension of time to respond to plaintiff Alexander Nunn’s negligence complaint (see 2401080014) involving Citrix’s October data breach, said the judge's order Tuesday (docket 0:24-cv-60029). Citrix's deadline to respond to the complaint is March 11 and Comcast's is March 19, and the defendants seek extensions to 30 days after the U.S. Judicial Panel on Multidistrict Litigation reaches a decision on transfer or consolidation of cases involving the data breach. The JPML’s hearing on those cases is set for March 28 in U.S. District Court for South Carolina in Charleston, and it would be “tedious and wasteful” for the defendants to spend resources briefing cases that might be consolidated and transferred, said their motion. The defendants noted the March 28 hearing date, “but they fail to indicate if a final decision on transfer will be made at this hearing,” said Middlebrooks. While acknowledging that Comcast and Citrix want to avoid devoting resources to litigating the case before they know whether it will be consolidated in an MDL, the judge declined their motion, “as it would effectively result in a stay of these proceedings,” said the order. “I am not inclined to allow this case to lie dormant during the pendency of the proceedings before the MDL panel, especially where there is no reasonable expectation as to how long it will take the panel to render its decision,” it said. Nunn’s class action alleges Comcast and Citrix failed to adequately protect his and class members' personally identifiable information from data thieves in the data breach.
The 9th U.S. Circuit Appeals Court should grant Apple permission to appeal under Rule 23(f) and reverse the class-certification order in an antitrust case vs. the tech company, stemming from a 2011 class action, said Apple’s petition (docket 24-875) for permission to appeal a district court’s Feb. 2 class-certification order.
Mutual of Omaha concedes it has a business relationship with Golden Ridge Insurance Agency but denies any wrongdoing under the Telephone Consumer Protection Act and the Florida Telephone Solicitation Act, said Mutual’s answer Friday (docket 0:23-cv-62398) in U.S. District Court for Southern Florida in Fort Lauderdale to plaintiff Deborah Collins’ Dec. 26 class action (see 2312270001). Collins alleges that Mutual hired Golden Ridge to engage in automated telemarketing calls by contacting numbers listed on the national do not call registry, in violation of the TCPA. The Florida resident further alleges that Golden Ridge uses automated systems to make telemarketing calls from Florida, and that by doing so, Golden Ridge and Mutual violated the FTSA. But Mutual’s answer asserts 31 affirmative defenses, including that the court lacks personal jurisdiction over Mutual because the insurer isn’t “at home” in Florida and didn’t “place, authorize, or direct any of the calls at issue,” it said. As such, Mutual isn’t subject “to specific or general jurisdiction in Florida,” and it intends to challenge the court’s “personal jurisdiction over it on that basis,” it said. Mutual “reserves and expressly does not waive its right to challenge” the court’s personal jurisdiction, it said. The TCPA and the FTSA violate the First Amendment because “they impose content-based restrictions on speech that fail to withstand strict scrutiny,” said Mutual’s answer. The application of the TCPA and FTSA on which the complaint is based, including the imposition of statutory damages on Mutual, would violate the Constitution’s due process provisions, it said. Certain definitions contained in the TCPA render the statute “unconstitutionally vague,” and the statutory penalties that Collins seeks are “excessive,” it said. Any and all claims brought in Collins’ complaint are barred because Mutual “possessed a good-faith belief that it was not committing any wrongdoing,” it said. Any TCPA and FTSA violations resulted from a bona fide error, “despite reasonable practices to prevent violations” of those statutes and their related regulations, it said. Collins and her putative class members lack standing to bring the claims alleged in the complaint, said Mutual’s answer. Any harm allegedly caused by the calls at issue, which Mutual denies, isn’t “fairly traceable to any violation” that Mutual allegedly committed, and because Collins may not have suffered any Article III harm, it said. Any damages, injury, violation or wrongdoing alleged in the complaint was caused by third parties or Collins herself, for which Mutual can’t be held “vicariously liable,” it said. To the extent vendors or contractors or unrelated nonparties caused any damages, injury, violations of the law or wrongdoing, or engaged in the conduct alleged in the complaint, those entities or individuals “acted outside the scope, or in violation, of the parties’ agreements,” and Mutual didn’t “approve of that conduct,” it said. Even if Mutual could be held vicariously liable, its liability “must be eliminated or reduced by an amount proportionate to the fault attributable to third parties” or to Collins, it said.
Seven weeks to the day after U.S. District Judge Julien Neals for New Jersey in Newark denied Plymouth Rock’s motion to dismiss plaintiff Robert Clough’s Telephone Consumer Protection Act class action (see 2401030051), the New Jersey insurance company reacted aggressively on two fronts in its answer Friday (docket 2:21-cv-19343). Plymouth Rock first countersued Clough for violations of the New Jersey Insurance Fraud Prevention Act, alleging that he runs a “cottage industry” of filing “sham” TCPA lawsuits with the class action against Plymouth Rock just the latest. It then filed a third-party complaint alleging that its call vendor, ConnectThe Calls.com, and its owner, Marlen Rapoport, violated the terms of an October 2019 contract that bars the vendor from violating the TCPA and in which the vendor agreed to indemnify Plymouth Rock against legal peril. The counterclaim alleges that Clough falsely misrepresented his interest seeking automobile insurance policies and quotes, while fraudulently using a third person’s identity without permission. Clough did so “solely and expressly for the purpose of concocting an otherwise meritless claim” under the TCPA. Clough’s fraudulent actions “are prohibited under New Jersey common law and statutes,” it said. Clough’s fraud has caused actual harm to Plymouth Rock, said the counterclaim. The insurer “has been compelled to expend time and resources in connection with the handling of Clough’s fraudulent telephonic solicitations for an automobile insurance quote proposal in which he had no genuine interest,” it said. Clough’s fraud has caused further actual harm to Plymouth Rock in responding to such false claims “and defending against the concocted lawsuits,” including the litigation costs and fees it has been forced to pay, it said. In the third-party complaint, Plymouth Rock alleges that Rapoport and the vendor are liable for all debts and obligations “under the doctrines of veil piercing, alter ego, and successor liability.” Neither Rapoport nor the vendor “has taken any measures to defend or indemnify Plymouth Rock” against Clough’s claims in the TCPA complaint, it said. While denying all liability as to any and all claims in Clough’s complaint, Plymouth Rock “is entitled to a defense, indemnification, contribution, and breach of contract damages” from Rapoport and the vendor, it said.
Microsoft denies "each and every allegation" in the consolidated copyright infringement class action alleging Microsoft and OpenAI committed “systematic theft on a mass scale” to feed and train their AI algorithms (see 2402050037), said its answer Friday (docket 1:23-cv-08292) in U.S. District Court for Southern New York in Manhattan. The claims by 29 authors and the Authors Guild fail because any unauthorized copies of any registered copyrighted works “constitute fair use,” said Microsoft’s answer. The claims also fail because all the algorithms accused of infringement, and all Microsoft’s products, services or actions in connection with those algorithms, “have commercially significant noninfringing uses,” it said. The claims of infringement are also barred by the Digital Millennium Copyright Act's safe harbor provisions, it said. The plaintiffs seek “improper damages” in violation of the Constitution and other applicable law, it said. “Any award of statutory or enhanced damages would constitute an unconstitutional penalty under the circumstances of this case, and would violate the due process and equal protection guarantees, and other substantive and procedural safeguards” afforded by the Constitution, it said. OpenAI asserted similar defenses in its separate answer Friday to the consolidated complaint.