The National Labor Relations Board didn't apply the right legal standards and ignored its own precedent when it found Dish Network employee arbitration agreement's confidentiality provision violates the National Labor Relations Act (NLRA), the company said in a docket 17-60368 brief (in Pacer) filed Friday with the 5th U.S. Circuit Court of Appeals. It said NLRB improperly concluded a one-time oral command to a worker to keep a workplace investigation private was an NLRA violation despite the board also concluding Dish didn't have any workplace rule to that effect. The company is appealing an April 13 NLRB decision on a complaint brought by a Colorado call center worker who was suspended for alleged workplace policy violations and subsequently fired. The NLRB didn't comment Monday.

Federal code is clear that recovery of non-taxable costs are part of the "full costs" available, and Cox Communications arguing "full costs" means only taxable costs and not items like travel costs and expert witness fees is clearly contrary to Congress' intent, BMG said in a docket 16-1972 reply brief (in Pacer) Thursday in the 4th U.S. Circuit Court of Appeals. It said Cox arguing BMG recovering nearly $8.4 million in attorney's fees and expenses atop the Digital Millennium Copyright Act verdict against the cable ISP (see 1709110017) doesn't cite authority for its argument non-taxable expenses can't be recovered. Cox outside counsel didn't comment Friday.

Operators of a mobile app, which promised cash incentives to users who made fitness and nutrition goals, settled with the FTC and will pay $940,000, including refunds for allegedly billing tens of thousands of consumers without their consent, said the agency in a Thursday news release. Commissioners voted 2-0 on the complaint and stipulated final order, filed in the U.S. District Court for the Western District of Washington, which must still approve it. The FTC said Pact charged consumers even if they met their goals or canceled service. Pact and principals, Yifan Zhang and Geoffrey Oberhofer, violated the FTC Act and Restore Online Shoppers’ Confidence Act, said the commission. Consumers would get "more than $940,000 in earned cash rewards and refunds for improper charges as part of a $1.5 million judgment, the rest of which is suspended," said the FTC. The settlement prohibits the company from misrepresenting itself about rewards to consumers and from charging users "without their express, informed consent." Pact agreed not to use a negative-option billing feature, which treats a consumer's silence when given the option of canceling an offer as consent for being charged. The company didn't comment.

A U.S. District judge in Oklahoma City was right to overturn a jury's decision that Cox Communications illegally tied cable services to set-top box rentals (see 1511130005), since plaintiffs didn't show the tying foreclosed sizable amounts of rival set-top business, the 10th U.S. Circuit Court of Appeals said Tuesday, with a dissent. The 35-page docket 15-6218 opinion (in Pacer) by Judges David Ebel and Greg Phillips and penned by Phillips said the case involves "what it means to foreclose a 'not insubstantial' volume of commerce," and Cox didn't foreclose any commerce or discourage competitors from entering the market. That all cable companies, like Cox, tie premium cable to set-top rentals points to net efficiencies and technology constraints rather than a push for monopoly power, it said. The court said FCC regulation of the set-top market "diminishes the possibility" Cox's tying could hurt competition. Judge Mary Briscoe's dissent said she would reinstate the jury's $6.3 million verdict against Cox. She said there was sufficient evidence sellers can sell set-tops and cable service separately. She also said the 10th Circuit's role is only to determine if there was enough evidence in the record to support a jury's decision, and that in this case there was. Plaintiff's counsel Todd Schneider of Schneider Wallace said Wednesday they were "disappointed" by the decision and "evaluating our options for the Oklahoma case going forward.”

Comcast's service contract doesn't authorize or speak to "secret credit checks" on customers who also paid a security deposit, plaintiff Mounang Patel said in a docket 1:17-cv-02570 opposition (in Pacer) filed Monday in U.S. District Court in Chicago in response to Comcast seeking to dismiss a putative class-action complaint (see 1707180004). Patel said the Fair Credit Report Act claim, contrary to Comcast assertions otherwise, satisfies heightened pleading standards. In a filing (in Pacer) Monday in response to Comcast seeking to strike class-action allegations, the plaintiff said Comcast's motion shouldn't be decided without further discovery, that Comcast's customer agreement expressly allows civil actions and the one-year limitation for bringing claims in the customer agreement is unenforceable. Comcast outside counsel didn't comment Tuesday.

Attorneys for the FTC will square off with their AT&T Mobility counterparts during an oral argument Tuesday before the full 9th U.S. Circuit Court of Appeals that could decide whether the commission has oversight over some activities of ISPs. The hearing will begin at 1 p.m. PDT in San Francisco. A three-judge 9th Circuit panel last year decided the FTC didn't have jurisdiction, in tossing out the government's data-throttling case against the carrier. The company successfully argued that its status as a common carrier exempted it from liability under Section 5 of the FTC Act, while the commission said the telco's mobile data service was a non-common carrier activity and therefore subject to government oversight (see 1608290032). The trade agency appealed the decision, saying other companies that offer broadband services could claim common-carrier exemption leaving an enforcement gap. It was granted the en banc rehearing in May (see 1705090068 and 1709140058).

With monetary penalties being uninsurable under Colorado law and Telephone Consumer Protection Act statutory damages being penalties under Colorado law, a U.S. District judge in Denver was right in holding that Dish Network's Ace American Insurance policies don't cover the TCPA litigation brought by the federal government and four states, Ace said in a docket 17-1140 reply brief (in Pacer) Wednesday in the 10th U.S. Circuit Court of Appeals. The TCPA lawsuit also seeks equitable remedies, but those remedies don't qualify as damages under Colorado law or Ace policies, it said. The insurer also said Dish can't invoke coverage that covers insureds in the broadcasting business, which Dish is, or coverage of damages from an "occurrence" of accidental or fortuitous events, since none of the alleged telemarketing conduct fits that bill. Dish didn't comment Thursday. Dish also is in litigation with National Union Fire Insurance Co. over indemnification of it in the combined federal/state TCPA complaint (see 1708220024).

The American Civil Liberties Union, the ACLU of Massachusetts and the Electronic Frontier Foundation sued the Department of Homeland Security over its "fast-growing practice" of searching travelers' smartphones, laptops and other communications devices at the U.S. border without a warrant (see 1703170019), the groups announced Wednesday. They said the plaintiffs are 10 U.S. citizens and a permanent resident. Some are Muslims or people of color and none was subsequently accused of anything wrong, but their devices were kept for weeks or months, said the groups. The lawsuit "seeks to establish that the government must have a warrant based on probable cause to suspect a violation of immigration or customs laws before conducting such searches" as required by the Fourth Amendment, said the groups. They said Customs and Border Protection conducted almost 15,000 device searches in the first half of FY 2017 and is projected to conduct 50 more searches this fiscal year than last. A DHS spokesman said the department doesn't comment on pending litigation.

The bill of costs being sought by the federal government as part of the Telephone Consumer Protection Act complaint against Dish Network is statutorily authorized and reasonable, and the court should overrule Dish's objections (see 1708160007), the FTC and DOJ said in a docket 3:09-cv-03073 response (in Pacer) Friday in U.S. District Court in Springfield, Illinois. The federal government said it spent the past month scrutinizing the invoices from the TCPA litigation's eight-year history and is amending its bill of costs to $385,503, down $10,850 from the original ask. Dish didn't comment Monday.

BMG just won't accept the Supreme Court's standard that the objective reasonableness of the losing party's defense is key for deciding whether a fee award is appropriate, Cox Communications said in a reply (in Pacer) Friday with the 4th U.S. Circuit Court of Appeals. It said its litigating positions against BMG's "novel expansion of secondary liability" were objectively reasonable, so the district court abused its discretion imposing an $8 million fee award atop the $25 million verdict. Cox said Round Hill's seeking of fees "makes no sense" since it was dismissed with prejudice on summary judgment for lack of statutory standing. Counsel for BMG and Round Hill didn't comment Monday. They previously argued Cox's "sham" defense drove up litigation costs (see 1707310018). Cox is fighting BMG's award of nearly $8.4 million in attorney's fees and expenses atop the Digital Millennium Copyright Act verdict against the cable ISP (see 1702170043).