T-Mobile and Roswell, Georgia, exchanged dueling briefs Wednesday in U.S. District Court for Northern Georgia in Atlanta in advance of the court’s March 4-6 evidentiary hearing into the 14-year-long cell tower fight between the carrier and the municipality.
Bradford Clements seeks leave to file a motion for reconsideration of U.S. District Judge Edward Davila’s Jan. 19 order dismissing his case against T-Mobile and compelling his claims to arbitration (see 2401190009), said his memorandum of points and authorities Wednesday (docket 5:22-cv-07512) in U.S. District Court for Northern California in San Jose in support of that motion. The pro se plaintiff alleged he was victimized in eight different data breaches during the three years he was a T-Mobile customer, and he brought claims under various California consumer protection and privacy statutes, plus the federal Stored Communications Act (see 2306060047). The judge found that the arbitration agreement between Clements and T-Mobile is valid and “encompasses the claims at issue” in Clements’ first amended complaint. He also found that the plaintiff’s failure to file an opposition to T-Mobile’s motion to dismiss constituted grounds for dismissal under Rule 41(b) for failure to prosecute or comply with a court order, it said. But Clements now contends that Davila’s analysis under Federal Rule of Civil Procedure 41(b) includes a manifest failure to consider material facts or dispositive legal arguments that were presented to the court, said his motion for reconsideration. He also contends that Davila’s order “also dismisses a case that will ultimately present legal challenges to an arbitration agreement” that the court admits “only it can decide,” the memorandum said. Clements has shown “reasonable diligence” in bringing his motion within 19 days of the court’s filing of the amended dismissal order, it said. No response to the motion for leave need be filed, and no hearing will be held unless otherwise ordered by the court, it said.
U.S. District Judge Paul Engelmayer for Southern New York in Manhattan denied “in substantial part” SiriusXM’s motion to dismiss the fraud complaint of Christopher Carovillano and Steven Brandt (see 2311140038), said the judge’s signed opinion and order Tuesday (docket 1:23-cv-04723). He granted the motion to dismiss only as to the complaint’s unjust enrichment claims and claims for injunctive relief, said the order. The plaintiffs allege that SiriusXM engages in a “false advertising and deceptive pricing scheme” when it markets and promotes its music plans “at lower prices than it actually charges.” The complaint “centrally alleges” that SiriusXM fails to inform subscribers who sign up for its music plans by phone of the 21.4% royalty fee before their purchase, and that SiriusXM references the fee only in obscure and inadequate terms on its website. “At this stage,” accepting the complaint’s “well-pled factual allegations as true,” the court finds that these “plausibly allege” that SiriusXM’s disclosures about the fee were misleading, in violation of sections 349 and 350 of the New York General Business Law, said the order. SiriusXM must answer the complaint by Feb. 20, it said.
The district court “properly denied” appellant Ganiyu Jaiyeola’s emergency ex parte application for a temporary restraining order to halt Black Friday advertising of the iPhone 15 Pro on his allegations that the device is falsely advertised as a titanium phone when it’s mostly fashioned from aluminum (see 2401080002), said Apple’s answering brief Monday (docket 23-4027) at the 9th U.S. Circuit Appeals Court in Jaiyeola’s appeal.
U.S. District Judge Mark Mastroianni for Massachusetts in Springfield denied Verizon’s motion for summary judgment against the town of Southwick, Massachusetts, on count I of its March 2021 complaint that the town’s denial of Verizon’s cell tower application wasn’t supported by substantial evidence in the written record, in violation of the Telecommunications Act (see 2306200040), said the judge’s electronic order Monday (docket 3:21-cv-10414). His order granted the town’s cross-motion for summary judgment against Verizon. The Southwick planning board’s denial was based on four general and “sometimes overlapping” categories -- aesthetic concerns, negative impact on property values, health and safety concerns and negative impact on recreational use of the property, said the order. If substantial evidence supports the board’s findings as to any one of those categories, its decision “must be affirmed under the substantial evidence standard,” it said. The court concludes, in light of the entire administrative record, that substantial evidence supports the board's findings regarding aesthetics, “rendering analysis of the other categories unnecessary,” said the order. The planning board denied Verizon’s application under two different sections of the town zoning bylaws governing aesthetics, “both of which must be satisfied,” it said. The board’s “discretionary judgment calls” about the aesthetics and visual impact of the proposed cell tower in relation to its unique residential location are supported by more than a scintilla of evidence, said the order. In particular, the planning board “considered objective evidence which supported its findings,” it said. The board “also considered the specific input from nearby residential property owners as to the visual impact on their homes and the neighborhood as a whole,” it said. Verizon hasn’t carried its burden of demonstrating that the planning board's decision isn’t supported by substantial evidence, said the order. The court will schedule an April 22 trial on Count II, which asserts an effective prohibition claim under the TCA, it said.
“Nation-state support” permits dangerous actors to mount cyberattacks of “unprecedented scale,” and so it was with the Russian government’s 2020 Sunburst cyberattack against SolarWinds, said 21 former federal cybersecurity officials in an amicus brief Friday (docket 1:23-cv-09518) in U.S. District Court for Southern New York in Manhattan.
Yout’s Digital Millennium Copyright Act appeal against the Recording Industry Association of America “involves a number of novel questions arising out of the three distinct provisions” contained in the statute’s Section 1201, said Yout’s counsel, Evan Fray-Witzer of Ciampa Fray-Witzer, during 2nd U.S. Circuit Court of Appeals oral argument Monday (docket 22-2760).
Following a Northern California judge’s dismissal (docket 2:23-cv-00734) in June of Hyperlync's January 2023 fraud complaint vs. T-Mobile, the cloud product company filed a nearly identical complaint (docket 2:24-cv-00138) Wednesday in U.S. District Court for Western Washington in Seattle.
The FCC’s Nov. 20 order, published Jan. 22 in the Federal Register, purports to implement congressional “instruction” to facilitate equal broadband access under the Infrastructure Investment and Jobs Act, but it gives the commission “unprecedented authority to regulate the broadband internet economy,” said the Ohio Telecom Association’s (OTA) petition for review Tuesday (docket 24-3072) in the 6th U.S. Circuit Court of Appeals.
U.S. District Judge Brett Ludwig for Eastern Wisconsin in Milwaukee entered judgment for Verizon and against Milwaukee, ordering the city to issue Verizon its requested permits within seven days so it can begin ordering small cells and custom-designed poles for installation in time for July’s Republican National Convention at the Fiserv Forum, said the judge’s signed decision and order Monday (docket 2:23-cv-01581).