Telemarketer Infinity Sales Group and DOJ and FTC are at odds over whether an Infinity executive's declaration can be part of the record in a Telephone Consumer Protection Act lawsuit against Dish Network. In an opposition (in Pacer) filed Friday in U.S. District Court in Springfield, Illinois, the government said Infinity can't and shouldn't be allowed to file documents in a case in which it's not a party. The agencies said Infinity Senior Vice President-Sales Josh Slater was subpoenaed by Dish in October and an Infinity attorney on Thursday filed a notice of appearance that included a Slater declaration in which he gave information he didn't offer during trial testimony. Since Infinity isn't a party and hasn't intervened, its lawyers "cannot simply appear in the case and start making filings," DOJ and FTC said. Even if Infinity had moved to intervene, the agencies said, that would have been untimely because it knew for years that its conduct as a sales agent could be at issue during the Dish trial, but "did nothing about it until more than a month after the actual parties to the case rested after a five-week trial." In its motion (in Pacer), Infinity said that during Slater's cross-examination, the government ignored his testimony that the government-sought injunction would put Infinity out of business and focused on "a surprise smear campaign against Infinity's reputation" about the company's prior relationship with a person who was subject of unrelated, non-TCPA criminal actions. The government used documents never produced to Infinity or Dish, leaving Infinity unable to respond, it said, seeking leave to file Slater's declaration.

The FTC's push for sanctions against DirecTV under Rule 37 of the Federal Rules of Civil Procedure as part of a fight over discovery in the agency's Restore Online Shoppers' Confidence Act suit against the company (see 1610280027) "is transparently tactical -- designed improperly to exclude critical proof in the case ... and not to cure any alleged prejudice to the FTC," the satellite operator said in an opposition (in Pacer) Wednesday in U.S. District Court in San Francisco. The FTC long has known DirecTV can't preserve any one iteration of its website, let alone the tens of thousands of iterations over time, and previously agreed discovery could be met by screenshots, the historical site source code and collateral advertising assets, DirecTV said, adding it produced all those documents. Instead, the company said, the FTC motion is trying to exclude a consumer survey of thousands of DirecTV customers that undermines the case, and that motion isn't the appropriate vehicle for challenging the survey's reliability. The company said it also offered to give the FTC access to all web analytics data it had about customer usage of and behavior on DirecTV.com, but the agency did nothing until after the close of discovery and now is "trump[ing] up this disingenuous Motion." Asking the court to deny the motion, DirecTV said if it grants any relief it also should schedule a hearing on the appropriate scope of the relief. The agency didn't comment Thursday.

The maker of the h.TV set-top box is no longer fully cooperating with its counsel and doesn't plan to seek new representation or to defend itself in the piracy lawsuit brought by Dish Network and broadcasters China Central TV and TVB Holdings (see 1604180064), said HTV International counsel from Ni Wang in a filing (in Pacer) Wednesday in U.S. District Court in Brooklyn. Ni Wang and the plaintiffs also requested a telephone conference with the court "to determine how the matter should proceed." HTV didn't comment Thursday.

Pointing to "a muddy record" that DirecTV and the FTC created, U.S. District Judge Haywood Gilliam of San Francisco in an order (in Pacer) Friday gave the two a Tuesday deadline for a jointly prepared chart summarizing the documents sought to be sealed and their positions. In his order, Haywood said with it wasn't clear who wanted what briefs and exhibits sealed in the agency's motion for partial summary judgment, due to the piles of administrative motions and subsequent corrections and oppositions. The commission is suing the company over advertising practices (see 1503110042).

The U.S. District Court in Atlanta found a fourth member of the SnappzMarket online piracy group guilty for his role in illegally distributing copies of copyrighted Android mobile device apps, DOJ said Thursday. District Judge Timothy Batten on Wednesday convicted Joshua Taylor on one count of conspiracy to commit criminal copyright infringement. Evidence in the trial showed Taylor and fellow SnappzMarket members distributed copies of Android apps between May 2011 and August 2012. U.S. law enforcement authorities seized SnappzMarket in 2012 (see report in the April 17, 2014, issue). The total retail value of the illegally distributed apps is estimated at more than $1.7 million, Justice said. Taylor will be sentenced Feb. 17, DOJ said. Scott Walton was sentenced to 46 months in prison in August for his role at SnappzMarket, the agency said. Kody Peterson and Gary Sharp await sentencing.

With the 11th U.S. Circuit Court of Appeals having upheld a Florida court's denial of a motion for a preliminary injunction sought by streaming video company Wreal (see 1610310010), both Wreal and defendant Amazon want the case reopened and a stay lifted, the two said in a joint motion (in Pacer) filed Monday with U.S. District Court in Miami. They disagreed on details of a pretrial schedule in light of Amazon's pending motion for summary judgment and agreed on dates as per a court request for readying a scheduling order. The two are proposing that the trial commence July 24. Wreal, which operates the FyreTV streaming pornography service, is suing Amazon over its Amazon Fire TV trademark.

Dish Network and plaintiffs in a Telephone Consumer Protection Act class-action complaint have come to an agreement on carving out some phone numbers and calls to those numbers from the class certification in the case. In a stipulation (in Pacer) filed Friday in U.S. District Court in Greensboro, North Carolina, the company and plaintiffs Thomas Krakauer and the others said the carve-outs are being done "to narrow issues for trial and facilitate the effective presentation of classwide proof." A total of 1,494 phone numbers, accounting for 4,231 calls, should be removed, Dish and the plaintiffs said as they asked the court for an order modifying the class definition. The categories of numbers to be removed include listing names that appear to be businesses, different listing names associated with the same number and numbers in which call records indicate the first call to the number contains comments suggesting the recipient requested a callback or agreed to be called back.

Plantronics continues to believe an antitrust lawsuit (in Pacer) filed by Jabra parent GN Netcom in 2012 is “without merit” and the company will “vigorously defend” against the action, said Vice President-Investor Relations Greg Klaben, leading off the company’s FY 2017 Q2 earnings call Tuesday. Plantronics took a $5 million charge in Q1 for the ongoing litigation with GN Netcom, following imposition of $3 million sanctions set by the U.S. District Court in Wilmington, Delaware, July 6 in response to a motion GN filed alleging Plantronics Senior Vice President Don Houston intentionally deleted thousands of emails on competitive issues between Plantronics and GN/Jabra. The court also warned of possible evidentiary sanctions as the case moves toward trial and said it would instruct the jury that it may draw “an adverse inference that emails destroyed by Plantronics would have been favorable to GN’s case and/or unfavorable to Plantronics’ defense." The antitrust trial is to begin in October 2017, said Klaben. Plantronics' fiscal Q2 revenue slipped to $215 million from $216.2 million, while gross margin slipped from a year earlier on a higher mix of consumer product revenue, said Chief Financial Officer Pam Strayer. The narrowing gross margin was expected as Plantronics makes a stronger shift from its core enterprise to unified communications and consumer businesses, said Strayer. Plantronics’ mono Bluetooth revenue grew in the low single digits year-over-year, said CEO Joe Burton, and launch of the mono Bluetooth Voyager 5200 headset led to record market share in FY 2016. The company had “significant increases” in stereo Bluetooth headset sales driven by new product introductions and “increased retailer placements,” he said. Shares closed down Wednesday more than 10 percent to $45.77.

Streaming video company Wreal pursued its preliminary injunction motion "with the urgency of someone out on a meandering evening stroll rather than someone in a race against time," the 11th U.S. Circuit Court of Appeals said in an opinion (in Pacer) Friday upholding a U.S. District Court's denial of a preliminary injunction against Amazon. Wreal, which operates the FyreTV streaming pornography service, is suing Amazon over its Amazon Fire TV trademark. The 11th Circuit opinion said Wreal, after filing its complaint in 2014, did no discovery and five months later moved for a preliminary injunction, which U.S. District Court in Miami denied. Wreal's unexplained delay fatally undercut any showing of irreparable injury if it didn't receive a preliminary injunction, wrote Judge Robin Rosenbaum for herself and Judges Adalberto Jordan and Eugene Siler. Counsel for Wreal didn't comment Monday. U.S. District Judge Joan Lenard of Miami in February ordered a stay in Wreal's lawsuit against Amazon pending the 11th Circuit decision.

Rovi patent infringement complaints against Comcast and Arris are moving from federal court in Texas to Manhattan. In an order Tuesday, U.S. Magistrate Judge Roy Payne of Marshall, Texas, approved motions by Comcast and Arris for a change of venue. In his order, Payne cited the forum-selection clauses that were part of the 2004 agreements between Rovi and Comcast for creating a joint venture to develop interactive program guides and the cable operator's 2016 lawsuit against Rovi in U.S. District Court in Manhattan, alleging Rovi's institution of patent infringement and International Trade Commission enforcement actions were a breach of their patent and license agreements. The judge also rejected Rovi's arguments that the technology and conduct in the patent infringement suits aren't covered by the software agreement that includes forum-selection language. Payne said he agreed with Rovi that Arris hasn't raised a nonfrivolous defense to patent infringement, but all of Rovi's infringement actions are being transferred to U.S. District Court in Manhattan. That's because of the Comcast/Rovi software agreement requiring the plaintiff to litigate the Comcast dispute there, and some infringement claims are based on divided or indirect infringement that involves defendants other than the operator. Rovi didn't comment Wednesday.