Dish Network and plaintiffs in a Telephone Consumer Protection Act class-action complaint are at odds over jury verdict instructions for the upcoming trial in U.S. District Court in Greensboro, North Carolina. In a trial memo filed Tuesday, the company and plaintiffs Thomas Krakauer and the others said they agreed on numerous issues on the verdict sheet, but some issues remain contested. Krakauer and the others said a point of contention is whether the number of calls or the phone numbers should be on the verdict sheet. They said they plan to introduce that information as evidence "and there is no need to re-state that evidence on the verdict sheet, and no need to force the jury to engage in mathematical computations." Dish said Krakauer and the others object to having the jury decide whether the class members actually received the telemarketing calls at issue or are the subscribers of the phone numbers called, but the court should toss out the plaintiffs' proposal to have a claims administrator post-trial decide this, instead of the jury. "There is no justification for relieving Plaintiff of his burden at trial on this one issue," Dish said. It also said the jury should be given the choice of assessing damages per call violation or on an aggregate basis. Either way, Dish added, the court can make sure any damages award doesn't exceed $500 per call.

Dish Network and Travelers Property Casualty settled their legal fight over whether the insurer is responsible for defense costs as Dish fights robocall claims by the FTC and California, Illinois, North Carolina and Ohio (see 0903260144). In an order (in Pacer) Thursday, U.S. Magistrate Judge Tom Schanzle-Haskins gave them 60 days to file a stipulation of dismissal and proposed dismissal order. U.S. District Judge Robert Blackburn of Denver ruled (in Pacer) in March in favor of Ace American Insurance in a similar suit the insurer brought against Dish in 2013.

A Viacom and Google privacy case could get Supreme Court review this term. A petition for writ of certiorari was filed last month appealing the 3rd U.S. Circuit Court of Appeals dismissal (see 1606270047) of most parts of a class-action lawsuit that accused the companies of illegally collecting personal data of children. Odds of the high court granting reviews are long, said Stephen Wermiel, American University professor of practice in constitutional law, in an interview, with the court receiving upward of 7,000 petitions for writ of certiorari each session and accepting a low single-digit percentage of them. The Supreme Court last week ordered a time extension to Nov. 17 for respondents to file comments. Counsel for the petitioners -- several minor children and their families -- didn't comment this week.

The 2nd Circuit Court of Appeals ruled against an appeal of a 2015 U.S. District Court ruling in New York that dismissed author Cheryl Smith’s copyright infringement lawsuit against Barnes & Noble. Smith claimed B&N continued to allow its users to download an online sample of the e-book The Hardscrabble Zone, written by her late husband, Louis K. Smith, after he terminated a contract with third-party firm Smashwords to advertise the e-book on B&N. One of the retailer’s users was able to download the e-book sample to a mobile device via B&N’s “digital locker” cloud storage system even though the retailer already had deleted the sample from its website. District Judge Andrew Carter said B&N wasn’t liable for contributory copyright infringement because the digital locker system was widely used for legitimate purposes. Circuit Judge Dennis Jacobs, in opinion Thursday for the three-judge 2nd Circuit panel, said “the conduct at issue was authorized by the relevant contracts between the parties.” There was no dispute in the case “that the plaintiff has a valid copyright, but the plaintiff must also be able to demonstrate that the copying was unauthorized,” the 2nd Circuit said. “Where, as here, the existence of the license is undisputed, and the only contested issue is its scope, the copyright owner bears the burden of proving that the defendant’s conduct was unauthorized under the license.” Once the customer acquired the cloud-based sample, “the service that Barnes & Noble provided was no longer distribution; the service provided was access,” the 2nd Circuit said. “Because the agreement does not provide for the license in the sample to terminate after the sample has been distributed, the plaintiff cannot sustain her burden to prove that providing cloud-based access to validly obtained samples is beyond the scope of the license agreement.” Judges Amalya Kearse and Ralph Winter joined Jacobs in affirming the New York district court ruling. Smith lawyer Carlos Leyva didn't comment.

Plaintiffs suing a variety of broadband providers alleging "bait and switch" advertising will have to respond to each motion to dismiss from those providers separately, said U.S. District Judge Virginia Hernandez Covington of Tampa in an order Wednesday. In a motion (in Pacer) Tuesday, plaintiff TruthinAdvertisingEnforcers.com said the six motions for dismissal and one answer that asks for dismissal received in response to its lawsuit raise similar issues and asked for permission to file an opposition memorandum covering common issues or one opposition paper opposing all seven defendants' motions, saying either route "will be clearer and more efficient for all parties and the Court." The defendants, in their motions filed earlier this week (for example here) said TruthinAdvertisingEnforcers.com's allegations lack supporting facts and are largely non-specific conclusory allegations. Being sued are Dish Network, Frontier Communications, Charter Communications, Hughes Network and EarthLink and sales agents Infinity Sales Group and GoDish.com.

Samsung doesn’t comment on pending litigation, a spokeswoman emailed us Tuesday about the first known federal complaint filed over the Galaxy Note7 that alleges the company was negligent in shipping the smartphone it knew was susceptible to overheating and fire (see 1610030052). Samsung is “urging any Note7 owner, without the green battery icon on the corner of their screen, to power their device down and exchange it immediately,” the spokeswoman said of Samsung’s Note7 recall and exchange program website.

A lower court was wrong when it denied Dish Network's motion to dismiss a lawsuit brought by Dish subscribers seeking damages for the days in late 2014 and early 2015 when Turner and Fox channels were blacked out during stalled carriage negotiations between the companies, the 8th Circuit U.S. Court of Appeals said in a ruling (in Pacer) Tuesday. The plan agreement signed by subscribers includes language indicating Dish can change packages and programming at any time, but the U.S. District Court in Jefferson City, Missouri, denied Dish's motion, calling the contract illusory. But the 8th Circuit said illusory contracts are unenforceable from inception, while the contracts in Stokes, Felzien v. Dish had been in effect for years when the Turner and Fox service interruptions happened. The judges said they agreed with Dish that it didn't breach the covenant of good faith and fair dealing because the subscription agreement expressly says customers aren't entitled to monetary relief for interruptions due to the loss of Dish access to programming. Saying the plaintiffs' claims for monetary relief fail to state a claim on which relief can be granted, the 8th Circuit remanded the case for further proceedings. Counsel for the plaintiffs didn't comment Tuesday. Deciding the case were judges James Loken, Arlen Beam and Lavenski Smith, with Loken writing the opinion.

Winnebago County, Illinois, resident Michael Taylor filed the first known federal complaint over the Galaxy Note7 when he alleged Samsung was negligent in shipping the smartphone it knew was susceptible to overheating and fire. Taylor suffered serious burns to his groin and legs when he plugged in his Note7 to recharge before going to bed the evening of Sept. 12 and woke up in the middle of the night to find the phone was “shooting flames,” said the complaint (in Pacer), filed Monday in U.S. District Court in Rockford, Illinois. Samsung sold the Note7 “in an unsafe, unsuitable, unreasonably dangerous and defective condition such that” the phone “had an unreasonable propensity to heat and catch fire during normal and foreseeable use,” said the complaint, which alleges negligence and violation of product liability laws. Samsung also violated Illinois consumer fraud laws because it engaged in “the deception of introducing a known dangerous product into the stream of commerce,” said the complaint, which included several photos depicting Taylor's injuries and damage to his mattress. Samsung didn’t comment Monday. Three days before Taylor alleges he plugged in his Note7 to recharge, the Consumer Product Safety Commission issued a well-publicized advisory warning to consumers to power down their Note7s and not recharge them and wait until an official recall notice was available (see 1609120044). The agency issued that recall notice Sept. 15 (see 1609150069).

BMG wants $10.48 million in attorney's fees and $2.92 million in expenses from Cox Communications, calling its copyright infringement legal fight with the cable company "exactly the sort of case where a Court should award fees and expenses." In a motion (in Pacer) Friday in U.S. District Court in Alexandria, Virginia, BMG called Cox "a willful infringer that spent years crafting a sham (Digital Millennium Copyright Act) 'safe harbor' defense ... [and] paired it with a host of baseless legal arguments and constant efforts to prevent discovery." In a separate motion (in Pacer) Friday, Cox asked for $71,835 in attorney's fees from plaintiff Round Hill Music, plus $35,000 for work on the motion and reply itself. BMG's motion accused Cox of forcing "near constant discovery litigation" and pointed to its failure to identify millions of infringement notices it received but deleted in response to a BMG interrogatory. BMG said Cox witnesses evaded questions and were unforthcoming. BMG said Cox attempted to focus discovery on Rightscorp conduct rather than its own, seeking every document BMG had related to Rightscorp and voluminous discovery on Rightscorp itself. BMG also said Cox compressed line spacing in violation of local rules "to squeeze every possible argument" into a motion for summary judgment and then "claimed it was confused about the meaning of 'double-spaced' though every single document Cox filed through the first eight months of litigation maintained proper line spacing." Absent "a fee award, the costs of litigation will consume much of the value of the jury's verdict," BMG said. Cox said Round Hill didn't own the copyrights underlying the multitudes of copyright infringement notices that came from Rightscorp, but "Round Hill came into this Court and sued Cox anyway ... then prevaricated throughout discovery." While "few things in this lawsuit have been simple or clear cut, Cox's entitlement to reasonable fees for the defense against Round Hill is manifest," it said. Cox is appealing the $25 million verdict awarded BMG (see 1608190030). Cox and Round Hill didn't comment Monday.

The makers of a Star Trek fan film produced more than 31,000 pages of documents for Paramount Pictures and CBS Studios, but those programmers suing them have only "trickled in documents ... after the agreed upon exchange date had passed, and produced far less than what Defendants have provided," said Axanar Productions and principle Alec Peters in a joint stipulation (in Pacer) on defendants' motion to compel discovery. Paramount/CBS sued in 2015, alleging copyright violations of the Star Trek universe in the Prelude to Axanar film that was distributed free online. In their motion filed Thursday in U.S. District Court in Los Angeles, Axanar/Peters said they want documents and testimony about financial information on the alleged damages, plus information needed to investigate the Paramount/CBS allegations of willful infringement and chain of title information related to allegations of ownership. The plaintiffs in their preliminary statement in the joint motion called the Axanar/Peters claims "argumentative, self-serving and deliberately misleading." Paramount/CBS said Axanar/Peters are trying to compel production of documents "that do not exist," and in many cases, the plaintiffs agreed to provide the requested information.