One of the first in a line of about a dozen complaints filed since mid-November alleging Vizio’s smart TV viewer-tracking feature violates the Video Privacy Protection Act (see 1512060005) is headed for private mediation, court documents show. In a complaint (No. 3:15-cv-05217-LB) filed Nov. 13 in U.S. District Court in San Francisco that like all the others seeks class-action status, Los Angeles-area resident Palma Reed alleged the “smart interactivity” feature on Vizio smart TVs tracks the content viewers are consuming, links it with their IP addresses and sells that information to marketing companies and advertisers without anyone’s knowledge or consent. Reed and Vizio agreed to submit the case to a private mediator who is “to be determined,” but is “acceptable to all parties,” said a stipulation and proposed order signed Thursday by attorneys for both sides. They agreed to schedule the mediation session before the court holds a hearing “on any motion for class certification,” the document said. Vizio has sought to consolidate the various complaints, but hasn't yet mounted a defense in any of the cases.

The Supreme Court opted not to hear an appeal of a 10th U.S. Circuit Court of Appeals decision that Cox Communications had waived its right to compel arbitration in a class-action antitrust suit on allegations the company tied its premium cable service to rental of a Cox set-top box. The three-judge panel in its June ruling agreed with a U.S. District Court decision that Cox's move to compel arbitration -- shortly before the trial was set to begin and after discovery and class certification -- was "overly late." The Supreme Court without comment Monday denied Cox's petition. Cox ultimately won in the set-top box litigation, with U.S. District Judge Robin Cauthron of Oklahoma City in November overruling a $6.31 million jury verdict against it, saying the class-action complainants failed to prove that tying a Cox Premium Cable subscription to renting of a Cox set-top box meant sizable losses of sales by third-party set-top box distributors (see 1511130005).

Spotify is facing a second class-action lawsuit claiming the company isn’t obtaining needed mechanical licenses on copyrighted music. Independent musician Melissa Ferrick filed her $200 million suit in U.S. District Court in Los Angeles Friday, claiming Spotify has streamed her songs about 1 million times without obtaining a license. Spotify chose to outsource its licensing to the Harry Fox Agency, which has been “ill-equipped to obtain licenses for all of the songs embodied in the phonorecords distributed by Spotify,” Ferrick alleged. “Neither Spotify nor HFA directly licensed or timely issued NOIs for many of the musical compositions embodied in phonorecords that Spotify was reproducing and distributing on a daily basis,” Ferrick said of notices of intent required to be sent to copyright owners before content is used. Spotify is “committed to paying songwriters and publishers every penny,” a spokesman said in a statement Monday. “We are working closely with the National Music Publishers Association to find the best way to correctly pay the royalties we have set aside and we are investing in the resources and technical expertise to build a comprehensive publishing administration system to solve this problem for good.” Ferrick’s suit follows a similar $150 million lawsuit that David Lowery, a songwriter and University of Georgia music business lecturer, filed in December in U.S. District Court in Los Angeles. Lowery, who leads the bands Camper Van Beethoven and Cracker, claimed Spotify is illegally distributing four Cracker songs (see 1512290048).

Dish Network, as part of its defense against robocall claims, can pursue a mistake-of-law argument, but it can't use any information not also previously provided to plaintiffs, a federal judge in Illinois ruled in an opinion filed Thursday. U.S. District Judge Sue Myerscough of Springfield partially granted and partially denied motions brought by the FTC and California, Illinois, North Carolina and Ohio in their 2009 lawsuit, in which they allege violations of the telemarketing sales rule as Dish helped dealers use robocalls to deliver prerecorded messages (see 0903260144). In her opinion, Myerscough said Dish didn't initially bring up a mistake-of-law defense in its answer to the complaint, but the company's argument at summary judgment that when the calls were being made, the FTC allowed prerecorded calls to people with established business relationships to the company, "provided ... some notice of Dish's mistake-of-law defense." However, Dish can't use any evidence not provided to the plaintiffs in discovery unless it can show that failure "was substantially justified or harmless," Myerscough said.

A former Viacom executive is suing the company for being fired in 2014 after she allegedly voiced concerns about the legality of a Viacom tax avoidance plan involving revenue from licensing rights to Teenage Mutant Ninja Turtles. The suit, filed Tuesday in U.S. District Court in Manhattan, asks for Nataki Williams' reinstatement to her job, along with back pay and interest, or front pay if she isn't reinstated. Williams, who was vice president-financial planning and analysis when she was fired, said in her suit she had raised issues multiple times with Viacom about its plans to attribute the licensing rights revenues to the Netherlands for tax purposes -- which would save Viacom millions of tax dollars -- and that her firing over an employee benefits issue was a pretext. In a statement Wednesday, Viacom said Williams "is a former Viacom employee who was terminated in 2014 for fraudulently claiming company benefits to which she was not entitled. Her legal claims are completely without merit, and we will vigorously defend against these claims in court.”

Streaming TV service FilmOn X and its broadcaster opponents asked Judge Rosemary Collyer of the U.S. District Court for the District of Columbia to make it easier for FilmOn X to appeal a ruling that it isn't eligible for a compulsory copyright license (see 1512020060), according to court filings. A joint stipulation filed by FilmOn X and the broadcasters asked Collyer to enter as a final judgment her decision that FilmOn X isn't considered a cable system under copyright law, which would allow FilmOn X to move forward with an appeal on that issue to the U.S. Court of Appeals for the D.C. Circuit. While the appeal moves forward the parties want to continue discovery on the amount of damages FilmOn X must pay for infringement of the broadcasters' copyright, the stipulation said. They ask the court not to reach an actual decision on those damages until the matter at the court of appeals is resolved, the stipulation says. The requests still require Collyer's final approval, but the judge granted an earlier request from the parties for more time to work out this joint plan, according to court documents.

Two more class-action complaints filed Tuesday against Vizio bring to nine the number of federal lawsuits brought since mid-November accusing the company of violating the Video Privacy Protection Act through the “smart interactivity” viewer-tracking feature on Vizio smart TVs (see 1512060005). The nine complaints, all but two of which were filed in California, allege the feature tracks the content viewers are consuming, links it with their IP addresses and other personally identifiable information and sells the information to marketing and advertising companies without anyone’s knowledge or consent. One of the two Tuesday complaints was filed in U.S. District Court in Santa Ana, California, in which plaintiff Kathleen Sloan of Concord, California, concedes that “after initial setup,” owners do have the option to turn off the smart interactivity feature “by navigating through the settings menu on their TV” and “toggling” the feature to the “disabled” setting. But the complaint goes into elaborate detail about the “barriers” owners face in trying to opt out of smart interactivity. Among them, “the owner would need to be aware that they have been ‘opted in’ to the program, and no such warning is contained on the product packaging, sales receipt, user manual, or initial setup screen,” the complaint says. And even if the user successfully disables smart interactivity from the settings menu, Vizio and its third-party partners “still have access to all of the data” that the feature previously collected and stored about the owner, it says. Vizio hasn't filed a formal answer to any of the complaints, but lawyers for the company successfully motioned for a deadline extension to mid-February for filing an answer to one of the earliest complaints. Among the reasons, “several related class actions concerning the same subject matter as the instant case” have been filed, and Vizio lawyers are “diligently working to coordinate among the various cases,” the motion said. Vizio representatives didn’t comment.

A $1.5 billion lawsuit against Dish Network and CEO Charles Ergen is over. U.S. District Court Judge Analisa Torres of Manhattan signed a voluntary dismissal without prejudice Wednesday. The complaint was filed by Harbinger Capital in July, with the investment firm alleging Dish and Ergen conspired to get LightSquared-held spectrum through fraud and racketeering (see 1507220024). The suit also named investment banker Stephen Ketchum and his Sound Point Capital Management as defendants. It was similar to a complaint Harbinger -- at the time a major investor in LightSquared -- brought a year earlier in U.S. District Court in Denver (see 1407100060), which was thrown out in April on summary judgment. The dismissal was sought by post-bankruptcy LightSquared, the successor in interest to the claim. LightSquared didn't comment.

The 10th Circuit U.S. Court of Appeals decision overturning a jury verdict against Cox Communications for its set-top box policies has gone to the Supreme Court for a decision whether to hear the appeal. The Supreme Court said it distributed briefs Tuesday in the Cox case for the Jan. 8 conference. U.S. District Judge Robin Cauthron of Oklahoma City in November overruled a $6.31 million jury verdict against Cox and said the class-action complainants failed to offer evidence to show that tying a Cox Premium Cable subscription to renting of a Cox set-top box meant sizable losses of sales by third-party set-top box distributors (see 1511130005).

A jury awarded BMG Rights Management and Round Hill Music $25 million in their lawsuit against Cox Communications for the cable company's failure to penalize its Internet customers who repeatedly infringed copyrighted materials. The verdict filed Thursday after a 10-day trial said the jury found BMG had proven three of the four questions put to it: that Cox subscribers violated BMG copyrighted works, that Cox is liable for contributory infringement, and that Cox's conduct was willful. The jury said it didn't agree that Cox had vicarious liability for the infringement. BMG and Round Hill sued Cox in 2014 in U.S. District Court, Alexandria, Virginia, alleging Cox failed to comply with the Copyright Alert System, which lets ISPs terminate Internet services to repeat infringers (see 1411280050). BMG didn't comment Friday. Cox is "unhappy with the decision, will review the ruling in detail and [is] considering options, including appeal," it said in a statement.