The U.S. Court of Appeals for the D.C. Circuit is resuming in-person oral argument, though it may return to using Zoom if COVID-19 conditions worsen, the court said Thursday. Lawyers who want to speak without wearing a mask must take a COVID-19 test the day before oral arguments and submit proof of a negative test result to the court that evening, it said. Aside from arguing counsel at the lectern and judges, everyone in the courtroom must wear a KF94, KN95 or N95 mask, it said. The media and public can attend oral argument as space permits, and audio of the oral arguments will be livestreamed on the court's YouTube channel, it said.

Meta’s purchase of Within Unlimited and its virtual reality fitness app Supernatural is a pro-competitive transaction that will benefit consumers, Meta and Within argued in separate filings Friday in 5:22-cv-04325 before the U.S. District Court for the Northern District of California (see 2208240023). The agency failed to establish that the defendants have market power in a relevant market, the two companies argued. The FTC’s “artificial argument” excludes a wide range of fitness products, and Meta had no plan to create its own VR fitness product before the purchase, Meta said. The agency failed to provide any plausible harm to consumer welfare, Within argued.

DirecTV can't force arbitration on plaintiffs suing it for alleged vicarious liability over violations of the Telephone Consumer Protection Act (see 2207050002), a federal judge ruled Thursday. U.S. District Judge John Bailey in Wheeling, West Virginia, denied DirecTV's motion to compel arbitration (docket 5:17-cv-00179), saying DirecTV "unquestionably waived arbitration" by litigating for months against one of the named plaintiffs in the telemarketing suit before filing its motion. DirecTV didn't comment Friday.

Washington, D.C., will appeal a D.C. Superior Court decision affirming its dismissal of the city’s antitrust case against Amazon (see 2208050015), D.C. Attorney General Karl Racine said Thursday in case 2021 CA 001775 B. The Court of Appeals will set a briefing schedule for the appeal in the coming weeks, said Racine: “We’re appealing the lower court’s decision because District consumers deserve a fair marketplace that promotes competition, innovation, and choice. And we’re filing this appeal because the antitrust laws and the facts are on our side.”

DOJ requested permission to participate in oral argument in support of 48 state attorneys general leading an antitrust lawsuit against Facebook (see 2203150046). The AGs, led by New York AG Letitia James (D), agreed to grant DOJ 10 minutes of their 25 minutes allotted for argument Sept. 19, said the filing Tuesday before the U.S. Court of Appeals for the D.C. Circuit in docket 21-7078. DOJ noted Facebook parent Meta hasn’t taken a position on the motion and won’t file a response. The U.S. has a “significant interest” in the application of antitrust law, and the district court’s order dismissing the states’ antitrust claims raises “significant and unjustified barriers” to Sherman Act Section 2 enforcement by “incorrectly analyzing anticompetitive conditions to ongoing deals under the more onerous standards reserved for unconditional, unilateral refusals to deal,” DOJ said.

Maine intends to move for summary judgment on all remaining counts in telecom groups’ challenge of the state’s ISP privacy law, Attorney General Aaron Frey (D) said Wednesday at the U.S. District Court of Maine. Frey asked the court to set a prefiling conference no sooner than Sept. 19 in case 1:20-cv-00055. ACA Connects, CTIA, NCTA and USTelecom challenged the Maine law.

The FTC agreed to drop Meta CEO Mark Zuckerberg from its antitrust lawsuit against the company in exchange for Zuckerberg agreeing not to unilaterally purchase Within Unlimited and its virtual reality fitness app Supernatural (see 2207270059). The two sides agreed Tuesday to a joint stipulation dropping Zuckerberg as a defendant in 5:22-cv-04325 before the U.S. District Court for the Northern District of California. The FTC agreed to dismiss its claims against Zuckerberg as an individual, and the CEO agreed not to acquire Within Unlimited in his personal capacity or through any entity he controls.

Netflix executives and board members made “materially false” and misleading statements about the health of the company’s “business, operations, and prospects” until mid-April, influencing its plunging stock price, alleged a shareholder derivative complaint Aug. 16 in U.S. District Court in San Francisco. Unlike the two direct class-action lawsuits filed this spring in which shareholders alleged they suffered financial harm when top Netflix executives breached their fiduciary duties by failing to disclose to investors that account sharing and increased competition from other streaming services were creating significant challenges (see 2206020049), a shareholder derivative complaint seeks to protect a company’s financial well-being and reputation from the improper actions of its officers and board members. Plaintiff Judith Ormerod, a Pennsylvania resident, owns Netflix shares and will continue to hold them “throughout the pendency of this action,” said her complaint. Ormerod will “fairly and adequately represent the interests of the shareholders in enforcing the rights of the corporation,” it said. Netflix didn’t comment Monday.

The stay in the tech industry’s lawsuit against Florida’s social media law is extended until at least Sept. 21, the 11th U.S. Circuit Court of Appeals said Friday in docket 21-12355 (see 2206240052. The stay will remain in force until “final disposition” by the Supreme Court, provided the case remains active, said a notice from the 11th Circuit.

Australia’s High Court correctly acknowledged that facilitating access to online content shouldn't “give rise to liability” for the facilitator, Public Knowledge said Wednesday. The High Court ruled Wednesday in Google v. Defteros that Google isn’t a publisher of sites it links. A “hyperlink is merely a tool which enables a person to navigate to another webpage,” the High Court wrote, overturning a Supreme Court of Victoria ruling saying Google is a publisher for linking news articles. The decision “provides additional strength for promoting a free and open internet where a diversity of views can flourish,” PK Government Affairs Director Greg Guice said. PK noted the concurring opinion raised an “interesting issue” on whether protection should be extended to paid content between Google and third parties. PK has “argued that such business dealings should be outside the scope of Section 230 protections because when the parties promoting content have a financial incentive to amplify the number of people who view said content, these parties should also have an incentive to more carefully examine the content they are promoting,” said Guice.