Dish Network and plaintiffs in a Telephone Consumer Protection Act (TCPA) class-action claim are clashing over attempts to enhance a jury award in favor of the plaintiffs. Dish, by not addressing the FCC's standard for willfulness in its closing arguments, effectively is conceding its TCPA violations were willful and thus the court has the discretion to enhance the jury's award, the plaintiffs said in a trial brief (in Pacer) filed Monday in U.S. District Court in Greensboro, North Carolina. Dish also didn't address a 4th U.S. Circuit Court of Appeals precedent that willfulness doesn't require bad purpose or intent and can come from repeated failure to follow the law, the plaintiffs said, saying Dish's argument the company had to have actual knowledge of each element of the claim is unsupported in law. Plaintiffs said Dish's opposition to an enhanced jury award "is based on alternative facts and arguments" the jury rejected, such as that Dish dealer Satellite Systems Network (SSN) was an independent contractor, contrary to the jury's findings. Dish's brief (in Pacer) said the jury verdict against it lacks a legally sufficient evidentiary basis, and it will move for a new trial and file a motion for judgment as a matter of law. Dish said the plaintiffs didn't show that it and SSN agreed to form any agency relationship, that Dish had any authority over SSN's behavior, or that the calls in question were actually TCPA violations. With SSN's five calls to named plaintiff Thomas Krakauer going against Dish's express written instructions to SSN to not call him again, the verdict can't stand, Dish said. The 11th Circuit's 2015 ruling in Lary vs. Trinity Physician made clear the standard for willful or knowing TCPA violations: the plaintiff proving the defendant knew it was doing something that violated the statute, Dish said, saying courts rejected the alternative standard the Krakauer plaintiffs are pushing. A 10-person jury last month awarded class members $400 per TCPA violation and plaintiffs are seeking a court enhancement to increase the award to $1,200 per violation.

VidAngel's "buy-sellback" model it uses to justify the legality of its service "is a sham," since the company -- which streams filtered video ripped from discs -- doesn't buy a disc for every customer who streams a work, and most customers who supposedly buy a disc via VidAngel sell it back within hours of buying it, appellees Disney, 21st Century Fox and Time Warner said in an answering brief (in Pacer) Thursday in the 9th U.S. Circuit Court of Appeals. It responded to a VidAngel appeal of a December lower court preliminary injunction. In its opening brief (in Pacer) last month in the appeal, VidAngel said 2005's Family Movie Act (FMA) expressly granted households the right to watch filtered movies and filtering "is profoundly transformative." It said the FMA means the studios are unlikely to win their reproduction and public performance claims; thus the lower court's injunction was wrong. The lower court also erred in finding the studios are likely to succeed on their access control circumvention claim, VidAngel said, since the studios' arguments would give them unilateral authority to prevent even noninfringing uses of their content. The content companies said the preliminary injunction met all four factors of injunctive relief -- especially since the company didn't show its affirmative defenses of fair use and FMA would likely defeat liability -- and that VidAngel didn't show the court erred in its conclusions, or even abused its discretion.

A federal judge granted LG MobileComm USA’s motion for a default judgment of $168 million in damages against 17 Chinese defendants and their U.S. affiliates for infringing LG trademarks by selling counterfeit and knockoff LG Tone headsets and other LG products. U.S. District Judge Janis Sammartino in San Diego also granted LG’s motions for a permanent injunction and for recovery of lawyers’ fees, said her Monday order (in Pacer). The $168 million in damages was $2 million for each trademark the defendants were found to have violated, the order said. With LG’s “hard-earned success came freeloading counterfeiters and knockoff artists, who seek to dupe and confuse potential consumers into buying poorly performing, shoddy products under the false pretense that such goods are made or authorized by us," said Chang Ma, president of LG Electronics Mobile USA, in a statement. With the ruling, "along with other judgments against various other defendants, LG has successfully slammed shut a sizable portion of counterfeits and knockoffs" of its popular LG Tone headset line being sold in the U.S, the company said.

DirecTV and a plaintiff in a class-action antitrust lawsuit over the NFL Sunday Ticket (see 1512300027) are at odds over the significance of a 9th U.S. Circuit Court of Appeals ruling last month on contract law. The plaintiffs, in a supplemental authority notice (in Pacer) filed last week in U.S. District Court in Los Angeles, said January's Norcia vs. Samsung ruling makes it clear that a 2013 9th Circuit case cited by DirecTV wasn't binding on implied acceptance of an arbitration clause, and assumptions on which the arbitration clause section of the 2013 decision is based are questionable. The plaintiffs also said Norcia cited a 1972 California Court of Appeals ruling indicating offerees aren't bound to contractual provisions if they're unaware of them and if they are in a document without an obvious contractual nature. But DirecTV in a filing (in Pacer) Wednesday said Norcia actually reaffirms that keeping DirecTV service while knowing there are terms connected with the service means customers validly assent to those terms under California law. On the 1972 ruling, DirecTV said it has never disputed the existence of that general principle under California law, but it believes it isn't applicable to the NFL Sunday Ticket case since the DirecTV commercial agreement was mailed to the San Francisco sports bar plaintiff and the arbitration agreement is the first paragraph in bold capital letters. "The Norcia decision cannot be read to suggest that consent to a contract ... can somehow be nullified as to certain obligations because the offeree allegedly did not read them," DirecTV said. AT&T now owns that firm.

CTA declined comment on the amici brief signed by dozens of tech companies backing the states of Washington and Minnesota in their fight to keep President Donald Trump’s now-suspended immigration executive order from being reinstated (see 1702060016). “We have not yet reviewed the brief,” CTA President Gary Shapiro emailed us Tuesday. “We stand by our initial statement” two days after the order was first released (see 1701290001) that blocking access en masse of employees of U.S. companies who are lawful visa and green card holders based on religion or national origin raises constitutional issues, Shapiro said. He also testified at last week’s Senate Commerce Committee hearing on reducing unnecessary regulatory burdens that he thinks the immigration order isn’t good for business (see report in the Feb. 2 issue of this publication). Eight more companies, for a total of 135, filed letters of joinder Tuesday adding their support to the tech industry's amici brief against the immigration order. They are Akamai, Credo Mobile, Fitbit, Molecule Software, PostMates, QuantCast, SoundCloud and SpotHero. Oral argument on the Trump administration’s emergency motion to stay a lower court’s temporary restraining order that blocked enforcement of the immigration order was scheduled for 3 p.m. PST Tuesday at the 9th U.S. Circuit Court of Appeals in San Francisco.

Calling itself merely "an onramp to the Internet" that doesn't store material or control subscribers' content, Cox Communications in a reply brief (in Pacer) filed Friday in 4th Circuit U.S. Court of Appeals said BMG is arguing "a novel regime" where conduit ISPs are liable for not immediately terminating identified subscribers after receiving millions of automated infringement allegations. Saying it was entitled to judgment, or at least a new trial, the ISP said BMG hasn't shown any proof that it had actual knowledge of or willful blindness to specific infringing acts, the standard set in the Supreme Court's Sony v. Universal City Studios decision. The cable firm -- appealing a U.S. District Court ruling in BMG Rights Management's torrent piracy lawsuit against the cable company (see 1608190030) -- said BMG's interpretations of the Digital Millennium Copyright Act would require Cox to monitor what data accused subscribers are sharing and adjudicate if they committed copyright infringement -- information that automated copyright notices from Rightscorp didn't convey. The cable company also said the lower court's failure to offer any Sony instructions about the noninfringing uses of Cox's Internet service warrant a reversal and that the Supreme Court's MGM v. Grokster decision precludes contributory liability. Counsel for BMG didn't comment Monday.

Two complaints filed by Apple’s Chinese subsidiary in a Beijing court “are just part of Apple's efforts to find ways to pay less for Qualcomm's technology,” said Qualcomm in a Wednesday news release. “Apple was offered terms consistent with terms accepted by more than one hundred other Chinese companies and refused to even consider them. These terms were consistent with our NDRC [National Development and Reform Commission] Rectification plan.” Qualcomm’s comments were based on a news release from the court saying one complaint alleges a violation of China’s Anti-Monopoly Law, and the other requests a determination of terms of a patent license between the two companies for Qualcomm’s cellular standard essentials patents, said the company. “Qualcomm is prepared to defend its business model anywhere in the world." Apple sued Qualcomm this week (see 1701230067) in the U.S. for damages totaling $1 billion, alleging the IP/tech company overcharged the smartphone maker “billions of dollars.” Apple said Qualcomm owes the company $1 billion, which Qualcomm claims Apple forfeited by responding to requests as part of an investigation by the Korea Fair Trade Commission.

Dish Network has 14 days to reinstate 17 discharged Texas workers to their old jobs or equivalent positions and compensate them for lost earnings and benefits, National Labor Relations Board Administrative Law Judge Robert Ringler ruled Tuesday. The NLRB decision said Dish in April imposed new contractual terms on unionized workers in the Dallas-Fort Worth area after five years of negotiations that effectively cut wages deeply and changed the terms of health coverage, resulting in 17 employees resigning. It said Dish didn't satisfy the burden of proving an impasse existed when it imposed the new contractual terms, violating the National Labor Relations Act. It said the 17 "were presented with the 'Hobson's choice' of continuing to work ... under greatly diminished conditions that flowed from the violation of their ... rights." The judge said the company, in violating the law by unilaterally changing those terms and conditions of employment, must at the request of the Communication Workers of America restore any unilaterally modified terms and conditions of employment and rescind the changes it made until it and the union reach an agreement. Dish was ordered to rehire an employee it fired in 2016 without having previously notified the union, in violation of an agreement for such prior notification. The firm in a statement Wednesday said it "respectfully disagrees with the NLRB’s ruling. The CWA refused to meaningfully negotiate on behalf of its represented workers in North Texas for more than a year and, in our view, is responsible for the impasse central to the decision. DISH acted lawfully at all relevant times and we are considering all available options, including appeal.”

Qualcomm stock closed down 12.7 percent Monday to $54.88 after Apple sued it for damages totaling $1 billion. In its complaint (in Pacer) filed in the U.S. District Court for the Southern District of California in San Diego, Apple said Qualcomm overcharged the smartphone maker “billions of dollars” and that Qualcomm owes $1 billion to Apple, which Qualcomm claims Apple forfeited by responding to requests as part of an investigation by the Korea Fair Trade Commission. “If that were not enough, Qualcomm then attempted to extort Apple into changing its responses and providing false information to the KFTC in exchange for Qualcomm’s release of those payments to Apple. Apple refused.” In a statement, Qualcomm General Counsel Don Rosenberg called Apple’s claims baseless. “Apple has intentionally mischaracterized our agreements and negotiations, as well as the enormity and value of the technology we have invented, contributed and shared with all mobile device makers through our licensing program. Apple has been actively encouraging regulatory attacks on Qualcomm’s business in various jurisdictions around the world, as reflected in the recent KFTC decision and FTC complaint, by misrepresenting facts and withholding information. We welcome the opportunity to have these meritless claims heard in court where we will be entitled to full discovery of Apple’s practices and a robust examination of the merits,” he said. Also last week, the FTC sued Qualcomm (see 1701170065).

If plaintiffs CBS Studios and Paramount Pictures seek statutory damages in their copyright infringement lawsuit against the makers of an online Star Trek fan film (see 1609300002), the court should let defendants Axanar Productions and principal Alec Peters present evidence to the jury about all the factors relevant to a statutory damages analysis, including CBS/Paramount's "lost revenues (or lack thereof) and the conduct and attitude of the parties," Axanar/Peters said in a brief (in Pacer) Wednesday in U.S. District Court in Los Angeles. Such evidence would include public statements by J.J. Abrams, director of the 2009 Star Trek motion picture, and Justin Lin, director of 2016's Star Trek Beyond, supporting the end of the suit since the statements show the Axanar defendants "acted in good faith and with the reasonable belief that they were operating within the enduring tradition of accepted and celebrated Star Trek-inspired fan fiction," they said. Axanar defendants said if CBS and Paramount aren't allowed to offer evidence about actual damages to the plaintiffs, they should be precluded from offering evidence about Axanar's purported profit. CBS/Paramount didn't comment Thursday.