There appear to be “genuine disputes of material fact” between Charter’s Spectrum Pacific West and the city of Yuma, Arizona, “that would preclude granting summary judgment to either party,” said an order signed Thursday (docket 2:20-cv-01204) by Senior U.S. District Judge Roslyn Silver for Arizona in Phoenix. The impasse prompted Silver to schedule a jury trial in the dispute for May 8, said the order. She didn’t preclude Spectrum or Yuma from filing a motion for summary judgment. But if a motion is filed and it’s found to lack a “good faith basis,” she’ll consider “imposing sanctions” on the offending parties. The parties are to confer in good faith and file a status report by March 23, “identifying whether either side will seek summary judgment,” said her order. Spectrum sued Yuma in June 2020 over the city's alleged refusal to comply with Arizona's universal video franchising law (see 2303090024). Yuma’s counterclaims assert Spectrum’s lawsuit breached the indefeasible right of use agreement that Time Warner Cable, Spectrum’s predecessor company, signed with the city over use of Spectrum’s fiber capacity. Spectrum’s argument that Yuma’s counterclaim for breach of contract is moot “appears unfounded in law and fact,” said the judge. Spectrum argues that when it voluntarily dismissed its claims against the city, that resolved the dispute presented in Yuma’s counterclaim because that counterclaim is effectively for “anticipatory” breach of contract, she said. “Spectrum appears to believe it never breached the contracts and, therefore, the counterclaim fails,” said her order. “But Spectrum’s understanding of the counterclaim is incorrect,” it said. Yuma’s counterclaim “is based on allegations that a breach of contract already occurred,” it said. The breach of contract counterclaim could only be moot if Spectrum had paid all the damages and provided all other relief the city seeks because of the alleged breach of contract, it said.
The three dozen plaintiff states seeking to thwart Google’s alleged search monopolies support DOJ’s motion in the consolidated antitrust litigation to sanction Google for destroying evidence, said their own motion Thursday (docket 1:20-cv-03010) in U.S. District Court for the District of Columbia. The states also support convening an evidentiary hearing “to determine the appropriate remedy for the destruction of relevant materials that would have otherwise been discoverable during the governments’ investigations and discovery in this action,” they said. The same misconduct in which DOJ alleges Google has engaged “is equally applicable” to the plaintiff states, “and should be subject to all the same curative measures,” they said. Google owes the states and DOJ “the same duty to preserve its internal chat messages,” they said. “Google’s duty to preserve employee chat messages began at least as early as 2019 when it anticipated litigation” stemming DOJ’s investigation, they said. Google’s practice of deleting chat messages “necessarily inflicted overlapping prejudice” on the states and DOJ, they said. Google’s “misconduct inflicted particularized prejudice” on the plaintiff states because the deleted chats were “likely relevant to the additional anticompetitive conduct alleged” by the states, they said.
Midwest Cabinet Suppliers’ response to Verizon’s motion to dismiss Midwest’s first amended antitrust complaint “tellingly fails to respond to the merits of the motion and makes no effort to demonstrate the viability of the claims asserted” in the amended complaint, said Verizon’s reply Friday (docket 3:22-cv-00493) in U.S. District Court for Western Kentucky in Louisville.
Courts in California, Florida and Pennsylvania have handled most of the session replay code privacy claims since their rise in popularity in the past few years, said a Husch Blackwell analysis Wednesday. Florida courts have been "most critical" of these claims, repeatedly saying plaintiffs’ complaints failed to state a claim under the Florida state law "because the complaints alleged un-sanctioned recording of behavior and not the content of communications covered by the law," it said. "Where session replay technology is used to capture chat-based communications, however, Florida courts have allowed the claims to proceed beyond the pleading stage." California courts have been "less favorable" to session replay code defendants than Florida courts, said Husch Blackwell. The 9th U.S. Circuit Court of Appeals overturned a Northern District of California dismissal of a plaintiff’s California Invasion of Privacy Act claim after saying the plaintiff consented to the recording but did so only after using the website for some time, it said. The 9th Circuit concluded the California Supreme Court would interpret Section 631(a) of CIPA, California’s wiretapping statute, to require the prior consent of all parties to a communication. On remand, however, the case was again dismissed, this time under the statute of limitations. A new class action in San Diego is seeking to thwart Spirit Airlines from “wiretapping” the electronic communications of visitors to its website, in violation of the CIPA (see 2302080044).
The various plaintiffs in the Google Play Store antitrust litigation, including 38 states and D.C., want U.S. District Judge James Donato for Northern California to impose stiff but “appropriate” sanctions on Google if he finds the company flouted its obligations and destroyed evidence, they told the judge in a brief Tuesday (docket 3:21-cv-05227) responding to the judge’s questions about evidence preservation in the case. The plaintiffs allege Google systematically deleted internal Google Chat conversations and other instant messaging chats crucial to their arguments that Google's anticompetitive behavior harms consumers and app developers (see 2301090001). They further allege the deletions continued even well after Google knew the chats would be needed for evidence in discovery and at trial. They propose that Donato order preliminary and final jury instructions on Google’s “spoliation” and that he preclude Google from arguing the plaintiffs lack evidence on certain topics, they said. Donato’s jury instructions should inform jurors they “should presume that Chat messages Google destroyed would have been unfavorable to Google in this litigation,” they said. Google countered in its own brief Tuesday that any sanctions for destroying the chats “must be no greater than necessary to cure any prejudice” to the plaintiffs arising from the loss of those chats. “By contrast, remedies that would effectively foreclose Google from presenting a defense or that would be tantamount to an adverse inference or terminating sanction are unwarranted” under court rules and “inconsistent with due process,” said Google.
Thursday will be an important day in the antitrust lawsuit brought by 38 states and D.C. to break Google’s alleged monopolies in the Android app and in-app purchasing ecosystems. That’s when U.S. District Judge James Donato for Northern California in San Francisco convenes an evidentiary hearing into the states’ allegations that Google deleted Google Chat conversations and other instant messaging chats crucial to the states' case that Google's anticompetitive behavior harms consumers and app developers (see 2210170005).
Colorado Attorney General Phil Weiser (D) announced Wednesday a task force formed to provide better coordination among law enforcement to identify, disrupt and prosecute organized criminal rings that steal goods from retailers and resell them through online marketplaces.
An inter partes review (IPR) proceeding related to VLSI Technology’s $2.1 billion jury verdict against Intel can proceed, Patent and Trademark Office Director Kathi Vidal said Dec. 22, calling the merits in two related cases “compelling.”
The Dec. 8 decision of the U.S. Court of Appeals for the Federal Circuit denying Nimitz Technologies mandamus relief from its dispute with a district judge (see 2212090027) is contrary to four Supreme Court decisions safeguarding the law of attorney-client privilege, said Nimitz in its Dec. 21 combined petition (docket 23-103) for panel rehearing or rehearing en banc.
Many eyes were trained Thursday on U.S. District Court for Delaware for Chief Judge Colm Connolly’s reaction to Nimitz Technologies’ latest refusal to produce bank records, emails and other materials responsive to his Nov. 10 order for documents that would identify third-party funding of four Nimitz patent lawsuits against Bloomberg, BuzzFeed, Cnet and Imagine Learning.