The 9th U.S. Circuit Court of Appeals should affirm a lower court ruling upholding California's 2018 net neutrality law, said an opposition brief filed Tuesday (in Pacer, case 21-15430) by Attorney General Rob Bonta (D) (see 2102230072). Plaintiffs "miss the mark" in claiming preemptive force, and an injunction would "pose concrete, serious harms to the tens of millions of people in California," the brief argued. The law "does not conflict with statutory limits on the FCC’s power to regulate certain services as common carriers," it said: Plaintiffs "failed to establish irreparable harm or that the balance of equities weighs in their favor because they allege only that their members might need to adjust certain business practices."
ISPs and Vermont agreed to keep net neutrality litigation on ice. The challenge to Vermont's law and executive order by ACA Connects, CTIA, NCTA and USTelecom at U.S. District Court in Vermont (case 2:18-cv-00167-CR) has been on hold pending resolution of the same associations' challenge to California’s law. That freeze would continue until the 9th U.S. Circuit Court of Appeals resolves industry’s appeal of U.S. District Court in Sacramento denying their preliminary injunction in February (see 2104130072), said Friday's stipulation (in Pacer). The pact would let Vermont require ISPs to adhere to net neutrality in contracts after April 22, though it wouldn’t be enforceable during the stay.
Chief Judge Mark Barnett of the U.S. Court of International Trade signed an administrative order Wednesday that will automatically stay any new complaints filed in the massive Section 301 litigation before they can be assigned to the three-judge panel he shares with Judges Claire Kelly and Jennifer Choe-Groves. Any lawyer seeking to lift the stay of a new Section 301 case must first consult with the plaintiffs' steering committee at least three days before filing a motion and must show "good cause" for the exemption, said the order. The court expects to determine the "appropriate next steps" for dealing with the new cases after the first-filed HMTX-Jasco sample case is resolved, it said. Barnett told Monday's status conference that he has been "monitoring the ongoing trickle of additional 301 cases.” Though the court has continued assigning the new cases to the three-judge panel, and all the cases have been stayed until HMTX-Jasco is resolved, “I do worry about the possibility, at least, of some future case creating a conflict that could require one or more of us to have to recuse,” he said of himself and fellow panel members. New Section 301 complaints continue coming in at the rate of about one a day. All the roughly 3,700 cases allege the List 3 and 4A tariffs on Chinese goods are unlawful and should be refunded. The 34-minute status conference was largely procedural and dispatched with a number of what Barnett called "housekeeping items." It was convened amid DOJ’s opposition to the refund relief importers seek, if they prevail in the litigation, on liquidated customs entries from China with List 3 and 4A tariff exposure (see 2104250002). HMTX-Jasco attorneys from Akin Gump seek a “protective” injunction to freeze unliquidated imports from being liquidated. DOJ’s response to the injunction motion is due May 14.
Cover glass on the back camera module of the Galaxy S20 smartphone is prone to sudden shattering “under normal use, with no external force applied,” rendering the camera “unusable,” but Samsung “did nothing to actually address or resolve” this despite hundreds of consumer complaints, alleged a complaint (in Pacer) Tuesday in U.S. District Court in Newark seeking class-action status. “Samsung has consistently denied responsibility, instead blaming consumers and refusing to repair or refund the devices,” while continuing to deny warranty claims, it said. “Having represented to consumers that the Galaxy S20 had a high-quality, professional-grade camera, Samsung was obligated to disclose that the exact opposite was true -- that the phone had a known material defect in the hardware.” No “reasonable consumer” would have bought or leased the phone “had they known of this glass shattering defect,” it said. The suit accuses Samsung of violating the 1975 Magnuson-Moss Warranty Act and breaching New Jersey consumer protection laws and other statutes. Samsung didn’t comment.
Apple misrepresents iPhones as water-resistant under International Electrotechnical Commission “ingress protection” (IP) standards, alleged a complaint (in Pacer, case No. 1:21-cv-03657) Saturday in U.S. Southern District Court in Manhattan. This seeks class-action status on behalf of iPhone owners in New York. Apple promoted the iPhone 8 as IEC-compliant for water resistance when exposed to or immersed in liquids at depths up to 1 meter for 30 minutes, said the lawsuit. The iPhone 11 is IEC-rated for water resistance at depths up to 4 meters, and the iPhone 12 at up to 6 meters, said the complaint. Bronx resident Antoinette Smith said her phone's "exposure to water of the type and manner contemplated by the device’s IP level caused damage to her device” under routine use. Apple denied her such warranty coverage, it said. She alleged fraud, unjust enrichment and violating the 1975 Magnuson-Moss Warranty Act. Apple didn’t respond to questions Monday.
The Court of International Trade greenlighted a test case for GoPro to adjudicate multiple claims challenging a Customs and Border Protection classification decision, in a Thursday order. Judge Timothy Reif suspended three other cases brought by GoPro challenging CBP's classification of imported camera housings, subject to classification as “cases” under Harmonized Tariff Schedule heading 4202. GoPro argued the camera housings should instead be classified as “camera parts” under HTS heading 8525.
Third-party Amazon seller eMonkey advertises and sells products bearing the Brilliant trademark but “is not now, nor was it ever,” an authorized reseller, alleged smart home startup Brilliant Home Technology in a complaint (in Pacer, case no. cv-10650) Monday in U.S District Court in Boston. The Brilliant goods that eMonkey is selling are “materially different” from new Brilliant gear offered through authorized channels with full one-year warranties, and “in large part” are “used or liquidated products,” it said. EMonkey also procured inventory of Brilliant products by “knowingly, and wrongfully, inducing” authorized resellers to transship it the goods for sale on Amazon, said the complaint, thus committing “tortious interference” with Brilliant’s legally contracted retail accounts, it said. EMonkey “has undertaken these wrongful acts willfully and with full knowledge of its wrongdoing,” it said. EMonkey couldn't be reached Tuesday for comment. Brilliant didn’t respond to questions about whether it will pursue actions against authorized resellers found to be transshipping goods to eMonkey in violation of their retail agreements.
Maryland got an extension until April 30 to respond to business and tech industry groups’ lawsuit against the state’s digital ad tax (see 2102180053). In a Wednesday order, U.S. District Judge Deborah Chasanow in Greenbelt, Maryland, granted (in Pacer) state Comptroller Peter Franchot’s motion seeking more time due to the General Assembly's enacting a bill (SB-787) Monday delaying the disputed tax, exempting news media and banning tech companies from passing costs from the tax to small businesses. Plaintiffs told Franchot (D) they will file an amended complaint to account for SB-787, the comptroller said (in Pacer). Chasanow directed parties to file a joint status report with a proposed schedule by April 30.
The U.S. Court of Appeals for the D.C. Circuit agreed to hold in abeyance a California Public Utilities Commission challenge to the FCC’s October net neutrality remand order (see 2010270035). The order was approved 3-2, with only one commissioner who voted yes, Brendan Carr, still at the FCC, the agency told the court in a filing (in Pacer) last week in docket 21-1016. Jessica Rosenworcel, who dissented, is now acting chairwoman. The FCC noted that four petitions for reconsideration are before the commission: “In view of these circumstances, placing this case in abeyance to allow time for the newly constituted Commission to consider the petitions for agency reconsideration would be appropriate.” The CPUC supported the move, and the court agreed (in Pacer).
Facebook unlawfully maintained a monopoly through exclusionary conduct in violation of antitrust law, alleged New York Attorney General Letitia James (D) and a bipartisan group of AGs Thursday in response to Facebook’s motion (in Pacer) to dismiss their lawsuit. “Facebook has successfully squashed, suppressed, and deterred competition, harming millions of consumers and small businesses with its illegal behavior,” said James. “Facebook’s scheme of predatory acquisitions and exclusionary conduct entrenches its monopoly power.” The states failed to “plausibly allege” Facebook’s acquisitions of Instagram and WhatsApp violated the Clayton Act, the company argued in its motion to dismiss. The AGs failed to show Instagram and WhatsApp were “uniquely situated to compete with Facebook,” the platform argued.