CTIA attacked the validity of a Berkeley, California, cellphone warning ordinance on RF emissions exposure, in oral argument Tuesday at the 9th U.S. Circuit Court of Appeals (see 1608260019). “Today we presented our argument that the lower court created new law in this case that dramatically weakens First Amendment protections and contradicts binding decisions of the Ninth Circuit as well as the Supreme Court,” a CTIA spokeswoman emailed. “The Ninth Circuit previously invalidated a similar cellphone ordinance in San Francisco.” The FCC, health experts and scientific evidence show the Berkeley warnings are misleading, she said. The city didn’t comment.

Boxing fans may be disappointed by the May 2015 bout between Floyd Mayweather and Emmanuel Pacquiao watched widely on pay-per-view, but various state laws don't provide a remedy for disappointed PPV viewers, and the various class-action suits against Mayweather, Pacquiao and HBO don't allege any cognizable injury to a legally protected right or interest, Mayweather said a motion (in Pacer) to dismiss Tuesday in U.S. District Court in Los Angeles. The plaintiffs' PPV and ticket purchases "at most gave them a right to see (or show) a fight at a specific time and place, which all admittedly received," defendants Pacquiao and HBO, said in a similar but separate motion (in Pacer) for a dismissal order Tuesday. All claims of fraud under various state statutes regarding nondisclosure of an existing Pacquiao injury lack an actionable omission or misrepresentation, Pacquiao/HBO said. They said the plaintiffs never showed a causal link between their purported harm and the alleged misrepresentations. Fifteen separate class-action complaints were brought against the boxers and HBO by PPV customers in 12 states and by Puerto Rico, PPV commercial entities nationally and live attendees of the event. Defendants also include boxing promotion company Top Rank, two of its corporate officers and a Pacquiao business manager. The Mayweather motion said the claims are made up of "conclusory allegation and unsupported inferences" and haven't pleaded facts with specificity to meet the pleading requirements of fraud-based claims. It said arguments of false advertising violations fail since the plaintiffs aren't in the "zone of interests" of the Lanham Act (which governs unfair competition) and Mayweather's statements are non-actionable and protected by the First Amendment. "Both the Pacquiao and Mayweather defendants’ motions to dismiss miss the central point that consumers were induced to purchase the PPV based on facts that were known to the Defendants well before the fight but were purposely withheld from the public in order to drive PPV sales to record levels," lead plaintiffs' counsel Hart Robinovitch of Zimmerman Reed emailed us Wednesday. "Mr. Pacquiao was obligated to disclose his shoulder injury on the pre-fight medical questionnaire but answered it untruthfully under penalty of perjury. Reasonable consumers would have wanted to know this important fact before making the decision to part with $100 to see the fight. Numerous commentators voiced outrage following the fight, supporting plaintiffs’ position that consumers buying the fight were duped. Plaintiffs in the Pacquiao litigation are quite confident that they will be able to demonstrate that the arguments Defendants present in their motions to dismiss are misplaced and that the motions will be denied."

Microsoft got support from dozens of civil society, law professors, media, technology and other business organizations in its fight against DOJ's use of gag orders to keep the company from informing customers about government warrants to access their emails and other records (see 1604140041 and 1604180039). Amazon, Apple, the Center for Democracy and Technology (CDT), Electronic Frontier Foundation, Google, Mozilla, The New York Times, Twitter and Yahoo filed several amici briefs Friday in U.S. District Court in Seattle. Microsoft filed a lawsuit in April against DOJ, which has been imposing gag orders through the Stored Communications Act, which is part of the Electronic Communications Privacy Act. DOJ filed a motion to dismiss the suit July 22; Microsoft filed a response Aug. 26 and the government's response is due Sept. 23. Microsoft and various organizations said DOJ is violating the Constitution and continued use of gag orders would deter use of cloud computing. In one filing (in Pacer), 30 media organizations -- including The Associated Press, Fox News, Media Institute, Newspaper Association of America, Radio Television Digital News Association, Society of Professional Journalists and Washington Post -- said the gag orders violate the First Amendment and their reporting would be "impeded or curtailed completely" when companies are prevented from disclosing information about government searches. "That harm is even greater when those gag orders are indefinite," the filing said. Another filing (in Pacer) from a coalition of 15 diverse organizations -- including CDT, the Information Coalition, National Association of Manufacturers and U.S. Chamber of Commerce -- also said the government's use of gag orders "significantly" curtails privacy protections. They said if the government's view of gag order authority prevails, people and businesses will be "reluctant to take advantage" of cloud computing due to reduced privacy protection, "and society may lose the substantial cost-saving and efficiency gains." Another filing from major tech companies said DOJ's use of gag orders could invade Fourth Amendment privacy rights of customers, among other reasons. "There may well be some circumstances in which a narrowly tailored and time-limited gag order is justified, but the [Stored Communication] Act's authorization of gag orders sweeps far too broadly," it said. A Justice spokesman declined to comment Tuesday.

BMG's opposition to a stay on consideration of its fee petition and application for costs until after Cox Communications' appeal rests on the shaky assumption that a multimillion dollar fee award for BMG is a foregone conclusion, Cox said in a reply brief (in Pacer) Tuesday in U.S. District Court in Alexandria, Virginia. It supported Cox's motion (in Pacer) earlier this month to defer consideration of any motions for awards of fees and expenses until after the judgment is appealed by the cable ISP. "A fee award is never 'automatic' and requires more than the prevailing party's self-righteous assertions," Cox said, saying it plans to present "substantial questions" in its appeal of a torrent piracy ruling against it to the 4th U.S. Circuit Court of Appeals (see 1608190030), and those could be grounds for vacating and reversing the judgment. In its reply brief, Cox said the preponderance of novel issues justifies deferring consideration of fee issues until after its appeal, while the jury's willfulness finding can't be used as a proxy for finding malice or bad faith on the company's part and thus isn't a strong factor in any fee analysis. Cox said the $25 million jury award in statutory damages, and an additional award of fees for purposes of deterrence or compensation would be "a windfall double-recovery" and, contrary to BMG claims otherwise, "there is no such ‘standard practice’” for deciding claims for attorney's fees and costs promptly. BMG, in opposition (in Pacer) filed last week, said Cox's motion would stick the 4th Circuit "with piecemeal appeals and ... drag out this litigation for years." BMG said the case for attorney's fees "is overwhelming" due to Cox's willful infringement of BMG copyright, its "host of unreasonable litigation positions" and its having driven up the costs of the litigation "through massive discovery obstructionism.”

The 10th U.S. Circuit Court of Appeals upheld a U.S. District Court decision to send a pair of putative class-action complaints against Cox Communications regarding set-top box policies to arbitration. Citing "a strong presumption the dispute is arbitrable" due to the Federal Arbitration Act, the three-judge panel said in an opinion (in Pacer) Friday there's no basis for inferring that the plaintiffs must have believed the arbitration language in the subscriber agreements didn't encompass a set-top dispute or else they would have consulted counsel. The appellate court rejected plaintiffs' arguments Cox waived its right to arbitration, saying Cox actions in the two cases "were consistent with an intent to arbitrate." That waiver argument seems to be based on Cox's agreement to stay the litigation while the bellwether Healy v. Cox Communications case proceeded, the 10th Circuit said, adding that the preference to litigate one case "does not mean it will want to litigate a future case." The court also rejected the plaintiffs' argument the Cox arbitration clause was unenforceable because language in it seems to indicate Cox could change the agreement terms at any time, since that argument challenges the contract as a whole should be decided in arbitration. The twin lawsuits claimed Cox violated antitrust law by tying its premium cable service to set-top rental. The panel's judges were Harris Hartz, Gregory Phillips and Nancy Moritz, with Hartz writing the opinion.

Cox Communications said Friday it's appealing a U.S. District Court ruling in BMG Rights Management's lawsuit against the cable company to the 4th U.S. Circuit Court of Appeals. An Alexandria, Virginia, federal jury in 2015 found against Cox in BMG's lawsuit alleging the cable company failed to penalize its internet customers who repeatedly infringed copyrighted materials (see 1512180012). District Judge Liam O'Grady denied Cox's motion for judgment or for a new trial of the case, rejecting the ISP's argument that BMG's claims against the cable company failed from lack of proof (see 1608090047). Cox faces paying $25 million in damages to BMG. Cox's appeal hadn't appeared in the 4th Circuit's docket at our deadline, but Cox advised the Alexandria district court of its appeal in a notice (in Pacer). BMG didn't comment Friday.

The May 31 default judgment and permanent injunction against Create New Technology (CNT) and Hua Yang International Technology (HYIT) wrongly said the defendants have to pay $326.3 million, instead of $55.4 million, plaintiffs Dish Network, China Central TV and TVB Holdings said in a request for a modification filed Wednesday in U.S. District Court in Los Angeles. The order sets damages at $326.3 million, but the December amended order granting the plaintiffs' motion for default judgment awarded $55.4 million in copyright and trademark damages, and the May order should be amended, Dish and the others said. The May order (in Pacer) also mistakenly left blank the amount of the attorneys' fees awarded, which is $1.4 million, they said. The injunction bans distributing or selling the TVpad set-top box; any transmission, streaming or hosting of the plaintiffs' copyrighted material; and hosting or distributing any infringing TVpad apps. Dish and the other plaintiffs sued CNT and HYIT last year, alleging piracy via that company's TVpad set-top, and are pursuing similar litigation against set-top maker HTV International in U.S. District Court in Brooklyn (see 1608030011).

SiriusXM will require its telemarketing vendors to use manual phone dialing systems that require human intervention to initiate calls to cellphones, separate from the automatic dialing systems used by vendors to call landline phones, under a proposed settlement that could end multiple lawsuits alleging Telephone Consumer Protection Act violations, said court documents filed Friday in U.S. District Court in Newport News, Virginia. SiriusXM and plaintiffs' counsel indicated in June they were close to finalizing a $35 million settlement agreement (see 1606080019). Every settlement class member would get three months of free Select service without having to file a claim, or alternately the ability to file a claim for a pro rata share of the $35 million common fund, said court filings (in Pacer). The per-class-member cash award would likely be $5 to $15, said a memorandum in support of the motion for preliminary approval. Attorney's fees won't exceed 30 percent of the total value of the settlement, according to court documents. The motion for preliminary approval of the settlement said the pact would cover people who received SiriusXM programming on a promotion basis tied to purchase or lease of a vehicle that ended by April 5; received calls on behalf of the company to their mobile numbers between Feb. 15, 2008, and July 5, 2016; and never subscribed or subscribed but after July 5. The motion said SiriusXM didn't oppose it. The settlement would cover litigation against the company in Virginia, California, Illinois and Florida. SiriusXM didn't comment Monday.

With $3.5 billion cash on hand, Dish Network undeniably has the ability to pay the $900 million civil penalty requested by the U.S. for illegal telemarketing activities, said the FTC and DOJ in a motion (in Pacer) Tuesday in U.S. District Court in Springfield, Illinois, asking to admit the satellite company's current financial statements. In the motion, the federal agencies -- which along with four states have brought robocall allegations against Dish (see 0903260144) -- pointed to Dish's most-recent quarterly earnings and said those figures are admissible as relevant evidence to the question of Dish's ability to pay the civil penalty since they seem to contradict previous trial testimony by the company. "Dish is either dissembling to the SEC and the public now or it was dissembling to the Court in January," the federal agencies said. Dish didn't comment.

A class action complaint on behalf of Skullcandy shareholders was filed in U.S. District Court in Salt Lake City July 19 alleging the Skullcandy board misled shareholders about a proposed buyout by Incipio, announced June 23. Under the proposed transaction, Incipio would acquire all outstanding shares of Skullcandy for $5.75 per share in an all-cash tender offer. The complaint (in Pacer), brought by shareholder Rose Paprakis, alleges the Incipio offer is inadequate in light of the company’s recent financial performance and growth prospects and is a 29.2 percent discount to the company’s 52-week high closing stock price, said Paprakis’ law firm Faruqi & Faruqi in a news release Monday. The suit said Skullcandy CEO Hoby Darling, Chairman Doug Collier, General Manager-Global Women's Division Heidi O’Neil, Executive Director Rick Alden, Chief Financial Officer Jason Hodell and board members Jeff Kearl, Scott Olivet and Greg Warnock “forced through a sale of the Company in order to reap personal benefits they negotiated with the Buyer to the detriment of Skullcandy’s public stockholders.” The board "pushed through" the transaction in which Incipio planned to acquire 100 percent of outstanding Skullcandy shares in a cash offer for about $177 million followed by a “second-step merger,” the complaint said. The suit alleged the board didn’t make public the revenue, operating profit and net income contributed by Astro Gaming, which Skullcandy acquired in 2011 for $10.2 million, and the plaintiff maintains is worth at least $70 million. On Friday, Skullcandy said in a news release that after consultation with legal counsel and financial advisers, a proposal from Mill Road Capital Management for $6.05 per share in cash constituted a "Superior Proposal," as defined in its definitive merger agreement with Incipio. Skullcandy delivered notice to Incipio Thursday of the board’s intent to change its recommendation and terminate the Incipio agreement. Incipio had until 11:59 p.m. Tuesday to make proposals to and negotiate with Skullcandy, it said. Skullcandy didn’t comment Tuesday.