AT&T Uses Binding Arbitration Mouse Print To Kill Throttling Class Action

from the legal-tap-dancing dept

For years, AT&T used contract fine print to prohibit its customers from suing it. Instead, users were forced to participate in binding arbitration, a system whereby company-employed arbitrators weigh the evidence -- and unsurprisingly rule in favor of the company employing them a dramatic majority of the time. Initially, lower courts repeatedly derided this behavior as an "unconscionable" curtailing of consumer rights and abuse of the law. But in 2011 the Supreme Court's AT&T Mobility v. Concepcion ruling declared that what AT&T was doing was perfectly ok, resulting in countless companies now following AT&T's lead.

However screwed up the class action process may be, the practice of binding arbitration is notably worse. But AT&T's pioneering in the space continues to pay notable dividends. Last month, for example, U.S. District Court Judge Edward Chen dismantled a class action lawsuit filed against AT&T for the company's practice of misleadingly advertising "unlimited" wireless broadband service, then throttling customers after just a few gigabytes of consumption:

"U.S. District Court Judge Edward Chen said in his ruling that the wireless consumers who are suing AT&T all signed contracts that call for arbitration of disputes on an individual basis. Chen's ruling, quietly issued last week, means that AT&T won't face a class-action for allegedly duping people by selling them "unlimited" data plans, but throttling them after they hit a monthly cap. The consumers can still proceed with individual arbitrations, but doing so often is prohibitively costly."

While AT&T may have dodged a class action, it's still being held accountable, though in a notably less expensive fashion. The company has already faced a $100 million fine from the FCC, and is currently trying to fend off an ongoing lawsuit by the FTC. In that case, AT&T continues to ironically argue that because the FCC reclassified AT&T as a common carrier under Title II last year, the FTC no longer has authority over AT&T. That's something the courts, including Chen, continue to deny:

"AT&T is arguing that the FTC has no jurisdiction to proceed, because broadband is now classified as a "common carrier" service. The FTC has no authority over common-carrier services. Chen rejected AT&T's position, ruling that broadband wasn't considered a common carrier service until the Federal Communications Commission enacted net neutrality rules in 2015. “Once the Reclassification Order of the Federal Communications Commission ... goes into effect, that will not deprive the FTC of any jurisdiction over past alleged misconduct as asserted in this pending action,” he wrote."

You'll recall that AT&T fought tooth and nail against the FCC's reclassifying of ISPs under Title II. Now AT&T's trying to argue that it's that very reclassification that means the FTC can't hold it accountable for throttling. This is after AT&T successfully used a few paragraphs of fine print to prevent customers from directly holding the company accountable via class action. AT&T now makes it clear that its "unlimited" users will be throttled after 22 GB of consumption, but the sheer volume of billable hours and paperwork AT&T's generating just to defend past false advertising practices remains downright staggering.

Filed Under: arbitration, binding arbitration, class action, throttling
Companies: at&t

Warner To Pay $14 Million In 'Happy Birthday' Settlement; Plaintiffs Ask For Declaration That Song Is In Public Domain

from the finally-put-all-this-litigious-BS-to-rest dept

A large settlement is on the way in the "Happy Birthday" lawsuit. Eriq Gardner of the The Hollywood Reporter has the news:

According to a court filing on Monday, music publisher Warner/Chappell will pay $14 million to end a lawsuit challenging its hold on the English language's most popular song, "Happy Birthday to You."

This is indeed a large payoff, one that indicates Warner/Chappell is not willing to test the merits of its case in front of a jury. The merits of the case, of course, are pretty much some random assertions with little documentation to back them up, but assertions that have, nonetheless, allowed Warner to obtain an estimated $50 million in licensing fees over the years. The $14 million Warner will pay is roughly in line with what it expected to make during the remaining years of the copyright term.

Warners was expecting to have "Happy Birthday" under copyright until 2030. An IP valuation expert retained by the plaintiffs estimated that the song was to reap between $14 million to $16.5 million in the next 15 years.

$4.62 million will be headed to the plaintiffs' attorneys with the rest being split among qualifying members of the class. But what's far more interesting is what the plaintiffs have asked the judge to approve.

The Settlement includes an express agreement by Defendants and the Intervenors to forego collecting any more fees for use of the Song, saving the Settlement Class millions of dollars. In addition, if approved by the Court, by declaring the Song to be in the public domain, the Settlement will end more than 80 years of uncertainty regarding the disputed copyright.

As it stands now, the ownership of the song is still up in the air. Warner doesn't own it but no definitive declaration has been made as to who holds the rights. Lots of people made the assumption that Warner's lack of ownership = public domain, but that's not what the court has determined to this point. If the court pursues this -- and the information compiled to this point points to this conclusion -- we could see "Happy Birthday" finally remanded to the public domain.

If the court decides this isn't going to be part of the agreement, the song will still reside in legal limbo. All anyone will know for sure is that Warner won't be coming after them for using the song. But the heirs of Patty and Jessica Hill -- the sisters who wrote the lyrics -- might. The charity run by the heirs has already entered a motion to intervene, claiming if Warner doesn't own, then it does. If the judge declares the song to belong to the public domain, that's $14-16 million the heirs won't be collecting. It might go the plaintiffs' way, considering the judge's decision suggested the Hill's abandoned the copyright years ago (and may not have actually written the lyrics, either). There's a substantial amount of money at stake here and it's highly unlikely the Hills' heirs will let it go without a fight -- even if it's nowhere near certain they have any claim to the copyright at all.

Filed Under: class action, copyright, happy birthday, public domain, settlement
Companies: good morning to you, warner/chappell

Settlement Reached In Class Action Lawsuit Against Rightscorp For Robocalls

from the well,-it's-something dept

In late 2014, we wrote about a class action lawsuit filed against copyright trolling operation Rightscorp, which argued two things: (1) that the company's robocalling people's mobile phones accusing them of copyright infringement violated the Telephone Consumer Protection Act (TCPA), because you're not allowed to robocall mobile numbers, and that (2) the use of questionable DMCA 512(h) subpoenas to discover accounts associated with IP addresses was "abuse of process." Rightscorp and co-defendant Warner Bros. got that second claim tossed for violating California's anti-SLAPP law.

However, the robocalling/TCPA claim remained, and after bringing in a third party to help the two sides negotiate, it appears that they've reached a settlement agreement that has been presented to the judge for approval. According to the proposed settlement, the defendants will have to cough up $450,000, and members of the class (i.e., those who received Rightscorp robocalls to their mobile phones) can claim up to $100 each from the pool of money. Perhaps more interesting is that, so long as those class members sign an "Affidavit of Non-Infringement," then Righscorp promises not to pursue them for any copyright infringement claims. Apparently, this actually applies to members of the class who don't even make a claim for any money.

Defendants will contribute $450,000 to the Settlement Fund. Each Qualified Class member who timely submits a claim may receive a payment of up to $100.00 subject to the following condition. The Settlement Agreement provides that Defendants will release any and all alleged claims or counterclaims for copyright infringement against Settlement Class Members who timely execute an Affidavit of Non-Infringement. The value of the total infringement releases is estimated to fall between $94.8 million and $19 billion in total statutory damages.

That last number is a bunch of hogwash. It's just using the ridiculous statutory damages numbers to put a value on the promises to drop any copyright claims, but since Rightscorp never actually sues anyone, the statutory damages are meaningless. The idea behind it, though, is to show why the amount is lower than what the TCPA prescribes for violations of robocalling rules. Either way, this at least gets a bunch of folks out of Rightscorp's crosshairs. Rightscorp also promises to prevent future such robocalling, which may somewhat limit its ability to keep up its trolling operation.

It's not clear who exactly is paying the $450,000. Even though Righscorp is the real culprit, the much bigger pocketed Warner Bros. Entertainment and BMG are both defendants as well, so it wouldn't surprise me to discover that the actual money comes from them. However, maybe it will make them think twice about associating with trolling lowlifes like Rightscorp. This isn't final yet, as the court still needs to approve it -- but courts generally approve these kinds of settlements just to get the cases off the docket. So unless someone raises serious issues with it, it's likely to come to pass.

Filed Under: class action, copyright trolling, john blaha, robocalls, settlement, tcpa
Companies: bmg, righstcorp, warner bros.

Supreme Court Again Makes It Clear: Companies Can Erode Your Legal Rights Via Mouse Print

from the idiotic-precedent dept

For years, AT&T worked tirelessly to erode its customers' legal rights, using mouse print in its terms of service preventing consumers from participating in lawsuits against the company. Instead, customers were forced into binding arbitration, where arbitrators employed by the company unsurprisingly rule in their employer's favor a huge percentage of the time. Initially, the lower courts derided this greasy behavior for what it was: an attempt by AT&T to eliminate customer legal rights and save a buck. And with AT&T's massive history of fraud, you can imagine AT&T was looking to save quite a bit.

But in 2011 the Supreme Court's AT&T Mobility v. Concepcion ruling declared that what AT&T was doing was perfectly ok. While lower courts saw this as an "unconscionable" abuse of consumer rights and the law, the Supreme Court bought into the ongoing myth that binding arbitration is a hyper-efficient, modern alternative to class actions. And again this week, the highest court in the land again proclaimed that this kind of sleazy fine-print is perfectly ok.

For a few years now DirecTV (ironically now owned by AT&T) customers have been trying to sue the satellite provider over its early termination fee (ETF) policies. A California court had invalidated the binding arbitration clause in DirecTV's contract with customers, since DirecTV's contract language stated that such a provision was unenforceable if the "law in your state" contradicted it. Unsurprisingly, this week's 6-3 ruling in DirecTV Inc. v. Imburgia (pdf) reiterated the 2011 federal ruling trumps all:

"No one denies that lower courts must follow this Court’s holding in Concepcion. The fact that Concepcion was a closely divided case, resulting in a decision from which four Justices dissented, has no bearing on that undisputed obligation. Lower court judges are certainly free to note their disagreement with a decision of this Court. But the “Supremacy Clause forbids state courts to dissociate themselves from federal law because of disagreement with its content or a refusal to recognize the superior authority of its source."

If you're solely looking at the precedent set by Concepcion, that of course makes legal sense. Breyer (who dissented on the original ruling) is simply telling lower courts they must adhere to the federal ruling, even if they don't agree with it. Of course that doesn't magically make the original ruling good, nor does it obfuscate the fact that the Supreme Court is just as polluted as Congress when it comes to partisan patty cake and corporate influence.

In short, the Supreme Court bought into the myth that arbitration is a hyper-efficient alternative to the greed of class action lawsuits, even though there's an endless ocean of data highlighting how that's simply not the case. Class action lawsuits are indisputably obnoxious for all the usual reasons (I got $1 and the lawyer got a new boat!). But occasionally class actions do benefit consumers and force change (especially on the telecom front), and until the people complaining construct a better mouse trap, class actions are often the best bad idea we've got.

The Supreme Court's alternate-reality belief that arbitration is a sane alternative is notably worse. Since AT&T's original win, countless companies from banks to video game vendors now foist binding arbitration upon consumers, forcing them into a rigged apparatus where consumers lose the vast majority of the time, companies pay smaller amounts then ever before, and there's less meaningful change than ever. Thanks to the Supreme Court, that's something we'll all get to enjoy for many, many years to come.

Filed Under: arbitration, binding arbitration, class action, supreme court
Companies: directv

Judge Tells CBP That It Certainly CAN Be Sued For Its FOIA Response Foot Dragging

from the there's-a-reason-the-CBP-is-rarely-the-'moving'-party-in-FOIA-lawsui dept

Customs and Border Patrol, like many government agencies involved with law enforcement and/or security, isn't all that thrilled that Joe Citizen can demand access to its records. When not dragging its feet on requests, the agency actively thwarts FOIA requests, albeit using more than the normal "so sue us" non-response.

The DHS's Inspector General found that over a three-year period (2011-13), the CBP "mishandled" 23,000 FOIA requests. "Mishandled" is a misnomer. The agency improperly closed 11,000 requests. The other 12,000 requests were stashed in boxes and forgotten, never making their way into the CBP's FOIA response system.

A class action lawsuit has been brought against the agency for its "pattern and practice of failing to respond to FOIA requests within the statutory timeline." The plaintiffs are five immigration attorneys and thirteen non-citizens, the latter of which have found it difficult to remain in the country legally thanks to the CBP's unwillingness to turn over documents pertaining to their immigration status. (via Courthouse New Service)

The order notes that the CBP does not challenge the assertion that it doesn't respond in a timely fashion. But, as the plaintiffs point out, this is a problem that the CBP doesn't seem to be interested in solving. As it stands now, it's unlikely the CBP will get its FOIA act together. At least not in the near future. Or possibly ever.

CBP does not seriously dispute that it has failed to respond to plaintiffs’ FOIA requests within the statutory timelines. See, e.g., Dkt. No. 29 at 2 n.1. Plaintiffs also allege that CBP’s FOIA backlog -- the number of requests that have gone unanswered past the statutory deadline -- has swelled over the last few years and will require almost 10 years to zero out at the current pace.

While the CBP doesn't dispute the accusations of consistently tardy responses, it does make the dubious assertion that a pattern of late (or nonexistent) responses just isn't an actionable injury in the context of a class action suit.

No sale.

The government says that the case should be dismissed because an agency’s failure to meet the response deadline is not an actionable violation of FOIA. Dkt. No. 26 at 4. That argument is wholly at odds with the statute and cases construing it. FOIA’s intended purpose is to assure timely public access to governmental information and records. As Congress stated, “‘[i]nformation is often useful only if it is timely. Thus, excessive delay by the agency in its response is often tantamount to denial.’” Gilmore v. U.S. Dep’t of Energy. The denial of access to government records in a timely fashion is precisely the harm FOIA is intended to prevent.

If the people the law is supposed to serve are going to be granted an opportunity to seek redress for their grievances, than you'd better believe FOIA-related foot dragging is actionable -- no matter how much the CBP wishes that weren't the case.

The government grudgingly acknowledges that “[s]ome Northern District of California decisions have recognized claims for delay in responding to FOIA requests” -- which of course overlooks the decisions outside this District that reach the same conclusion -- but urges the Court to discount them because they pre-date the District of Columbia Circuit opinion in CREW. In the government’s view, CREW undercuts these cases because it holds that the failure to meet FOIA’s deadlines has no legal consequence other than “an agency’s forfeiture of the exhaustion of administrative remedies defense.”

The CBP could not be more wrong, says Judge James Donato.

This argument is tantamount to a willful misreading of CREW. The case says nothing at all about the vitality of a FOIA claim based on a violation of the response deadline. The sole “question presented” in CREW “concerns when a FOIA requester must exhaust administrative appeal remedies before filing suit.” CREW held that when an agency fails to respond to a FOIA request within the statutory timeline, it cannot invoke an administrative exhaustion argument to keep cases out of court.

The government also argues the plaintiffs have no standing because their accusations require "specific allegations of future harm." Again, Judge Donato points out the error in its thinking.

Once again, CBP’s position is bereft of support. It does not cite a single case holding that specific allegations of futurity are essential to a pattern and practice claim or standing under FOIA. To the contrary, several cases have allowed pattern and practice claims for unreasonable delay -- and recognized a plaintiff’s standing to bring them -- “even where the plaintiff’s FOIA request had already been resolved.” Gilmore, 33 F. Supp. 2d at 1186 (and cases cited therein).

In Payne itself, the case on which CBP hangs its hat, the court sustained a claim for undue delay despite the fact that the agency had released the specific documents that prompted the lawsuit. And even if allegations of future harm were required, plaintiffs have stated enough facts to infer it here. Plaintiffs include several immigration attorneys, some of whom have practiced for decades, who “regularly file[]” FOIA requests on behalf of their clients. It is more than plausible to infer that they will continue to make regular FOIA requests for the CBP documents that are critical for their work, and continue to experience improper delays.

The plaintiffs haven't actually been handed a win here, but rather survived a motion to dismiss from the government. But the court's reading of the government's arguments here show it's not too impressed with the CBP's excuses for its miserable track record on FOIA responses.

The most disheartening aspect of this lawsuit, however, is contained in the plaintiffs' complaint. The CBP's delaying tactics have generated a 10-year backlog of unanswered requests. That backlog will only continue to grow as more and more people avail themselves of FOIA tools provided by the government. The government has opened up the process and made it more accessible, but has yet to fix the bottlenecks in the system -- recalcitrant agencies and/or those that are simply understaffed. The problem will continue, as will the lawsuits, for the foreseeable future, no matter the outcome of this particular case.

Filed Under: cbp, class action, customs, dhs, foia, foot dragging, responses

Sony Pictures, Which Hyped Up 'Harm' Of Hack, Now Tells Court No Harm Done To Employees

from the thread-that-needle,-sony... dept

In the wake of the Sony Pictures hack, the company went somewhat ballistic in trying to describe just how "harmful" the hack was. It brought on famed lawyer David Boies to threaten anyone who published any information from the hack, claiming that it was a violation of the First Amendment (yes, it told the media that publishing news was a violation of the First Amendment). The company also (ridiculously) threatened to sue Twitter, claiming that Twitter would be held "responsible for any damage or loss arising from such use or dissemination by Twitter." Thoughout it all, Sony kept arguing that this hack was a complete disaster and incredibly harmful.

However, now, in court, Sony is suddenly forced to tap dance around those claims and argue that there has been no harm at all done to the employees of the company, who have filed a class action lawsuit against Sony Pictures for failing to protect their data. In a filing first highlighted by Eriq Gardner at The Hollywood Reporter, Sony Pictures insists that basically there has been no harm whatsoever and mocks the employees who say otherwise, noting that their "PII" (Personally Identifiable Information) disclosed was not particularly private in the first place.

Plaintiffs’ experiences in the wake of the cyberattack are entirely consistent with the empirical consensus just discussed. To start, the PII disclosed for each Plaintiff varies widely.... For example, Mathis asserts only that her name, SSN, and former (not current) home address were disclosed.... (Even on that score, she appears to be wrong. Plaintiffs cite no evidence that her SSN was disclosed. The sole document they cite... has the SSN of a different Mathis.) For his part, Forster believes an array of his PII was disclosed, including his SSN and birthday, as well as outdated bank information, an invalid driver’s license, and former medical insurance information (which he admits are “useless” or “worthless”)....

What is more, some Plaintiffs maintain active online presences, which means that much of the PII they claim was disclosed in the cyberattack already had voluntarily been made available online. For example, while Forster complains that his title, place of work, and dates on which he joined and left SPE were disclosed, he acknowledges that he had posted that information to LinkedIn and thus could not be harmed by its disclosure.... Levine likewise admits that he has “put a lot of [his] life online.” ... For him and others, a wide range of PII was available online prior to the attack.

The other line of defense? If there is any harm, who can really say that it actually came from the Sony hack, rather than any other recent hack?

Plaintiffs (and, undoubtedly, unnamed classmembers) have been exposed to multiple breaches and incidents of identity theft involving various permutations of their PII.... To prove that any injury—or even risk of future injury—is attributable to the cyberattack, each classmember would have to show that this cyberattack, and not another event, caused any incident of identity fraud.

The other problem is that the only actual loss that any of the plaintiffs show right now was an unauthorized purchase on a credit card, but the filing points out, this employee was fully reimbursed (i.e., no loss) and it's also not at all clear that it happened because of the Sony hack.

Similarly, while Corona claims that somebody made an unauthorized purchase using his credit card after the cyberattack on SPE (for which he was fully reimbursed), he acknowledges that he also had unauthorized purchases on his credit card before the cyberattack, and that he could only “guess” at the connection, if any, between the more recent unauthorized purchase and the cyberattack.

To be honest, Sony's argument here is pretty strong. Courts have pretty consistently rejected class action lawsuits over data breaches when there are no actual losses, or where the losses are purely theoretical. It seems very likely that the former Sony employees here are going to lose.

But... it does seem rather amusing to see Sony -- which went on and on and on about all the "damage" the leak was going to cause -- now have to argue that its own employees experienced no harm at all...

Filed Under: class action, damages, emails, hack, harm, lawsuit, sony hack
Companies: sony, sony pictures

Judge Not At All Impressed By Class Action Lawsuit Claiming Yelp Reviewers Are Really Employees

from the the-court-is-Not-Your-Personal-Army dept

Late in 2013, a few like-minded individuals decided Yelp owed them money for all the reviews they had voluntarily written over the years. The class action suit bascially alleged Yelp's machinery was lubricated with the blood of unpaid reviewers. The original filing threw off the shackles of normal, dry legal prose in favor of phrases like "thumbing its nose at workers… and taxing authorities," "dependent on a horde of non-wage-paid reviewers," "system of cult-like rewards and disciplines," and "a 21st-century galley slave ship with pirates banging the drums."

All in all, the original complaint reads more like a screed against content farming than a list of recognizable torts. Somehow, it has managed to survive a venue shift and the ineptitude of the plaintiffs' counsel, as well as a complete dismissal. But only barely. And with the threat of Anti-SLAPP fees looming over it. In the opinion granting the smallest of leeway to the complaining party, the judge first notes that not only are they supposed to state coherent claims, but they're also supposed to explain why they're entitled to relief. The court has some problems with the claims themselves.

Here, each of the three named plaintiffs alleges that he or she “was hired by Yelp, Inc. as a writer and she fulfilled that job description and job functions.” Each plaintiff allegedly was “directed how to write reviews and given other such employee type direction from employer defendant.” Yelp allegedly controlled each plaintiff’s “work schedule and conditions.” Two of the three plaintiffs are alleged to have been “fired” with “no warning [and] a flimsy explanation.”

Clearly a violation of labor laws... except for the part where the plaintiffs wholly misrepresented the actual situation.

A reasonable inference to be drawn from the complaint, and from plaintiffs’ arguments, is plaintiffs use the term “hired” to refer to a process by which any member of the public can sign up for an account on the Yelp website and submit reviews, and the term “fired” to refer to having their accounts involuntarily closed, presumably for conduct that Yelp contends breached its terms of service agreement. A further reasonable inference is that plaintiffs and the putative class members may contribute reviews under circumstances that either cannot be reasonably characterized as performing a service to Yelp at all, or that at most would constitute acts of volunteerism.

As such, the labor law cited by the plaintiffs is inapplicable, since it does not cover voluntary acts, even if said acts are monetized by the defendant. That being said, the judge doesn't completely close the door on this particular claim. He notes that it may be possible (but highly unlikely) that a recognizable labor law claim can be raised from this mess of a lawsuit and has given the plaintiffs 20 days to file an amended complaint.

Yelp asked the court for damages under California's Anti-SLAPP law, claiming the lawsuit was nothing more than an attempt to chill its speech, seeing as the claims themselves were baseless and publishing reviews is (duh) a protected form of speech. The court has some sympathy for this argument, partially because the plaintiffs were unable to respond coherently to Yelp's Anti-SLAPP motion.

Plaintiffs offer a strident argument, marked by ad hominem attacks on counsel, that the anti-SLAPP statute is inapplicable because they merely seek to hold Yelp liable under quasi-contractual theories for non-payment of wages, not for exercising any free speech rights. A plaintiff’s theory of liability, however, is not relevant to the question of whether the claim “arises from” a defendant’s exercise of free speech rights. As alleged, Yelp publishes information— reviews—regarding the services and goods various business establishments offer to the public. Plaintiff’s claims plainly arise from that conduct, which undisputedly involves speech on matters of public interest.

Unfortunately, the ad hominem attack on Yelp that was filed instead of a proper response is buried somewhere in the mess of a docket -- something that has less to do with a venue move and the consolidation of filings, and more to do with the plaintiffs' counsel being mostly incompetent. (A read through other filings makes it clear the counsel humored the plaintiffs' desire to be cast as warriors railing against an unjust system, rather than steer them towards articulable arguments and claims.)

Both before and after the transfer of this action to this district, plaintiffs have filed various pleadings with confusing titles in the captions and/or garbled descriptions and/or incorrect event types in the electronic docket entries. As a result, the court in the Central District issued several orders striking certain of plaintiffs’ submissions. Complaining that plaintiffs’ filings in this district failed to comply with the local rules on notice, and that various ambiguities now exist as to what motions are pending and as to the briefing schedules, defendant seeks “administrative relief” under Local Rule 7-11. Defendant requests an order vacating the current hearing, and postponing at least one of plaintiffs’ motions until after a case management conference has been held.

[...]

More problematically, plaintiffs failed to set the hearing in the ECF system, with the result that no briefing schedule appeared in the docket entry. It is counsel’s responsibility to learn to use the ECF system correctly, and he is hereby directed to undertake appropriate steps to ensure that he and/or his office staff can file and docket pleadings in the proper manner.

Whether or not this sort of ineptitude led to the plaintiffs' counsel being disciplined by the State Bar isn't made explicit, but a later motion by the plaintiffs attempted to obtain an injunction against the Bar's proceedings as well as add it (!) as a defendant. This was denied.

Whatever the case, the judge finds both prongs of the Anti-SLAPP test have been met (the second being the failure to state a viable claim), but says it's still too early to consider the question of awarding fees. The plaintiffs have also asked for sanctions to be awarded against Yelp, but the judge notes he's doing most of the work in discerning what it is the plaintiffs are actually seeking.

Plaintiffs seek sanctions against Yelp and its counsel. Although the precise basis of plaintiffs’ complaints and the scope of the relief they seek are difficult to discern from their rambling and invective-filled papers, the gist appears to be a contention that Yelp did not exercise good faith in connection with a court-ordered mediation session, and that it should therefore be placed into “default” status until it funds and participates in a new mediation session, and pays monetary penalties to the court. Plaintiffs have failed to make a persuasive showing that Yelp or its counsel engaged in sanctionable misconduct, or that the relief they seek would be warranted in any event. The motion for sanctions is denied.

The only remaining option for the plaintiffs at this point is to file a coherent set of claims that might have a chance at surviving more than a cursory examination. The plaintiffs may have entered the legal arena with every intention of extracting paychecks for their voluntary efforts, but given this opinion, the likelihood of them losing both the case and their money seems much more probable.

Filed Under: class action, employees, employment, reviews, volunteers
Companies: yelp

Dueling Lawsuits Threaten The NFL, DirecTV's Annoying Sunday Ticket Exclusive

from the illegal-shift-in-the-backfield dept

The availability of NFL games online has long been a bit of a joke when compared to the NBA or MLB, in large part thanks to the league's exclusive deal with DirecTV for out of market games. The televised bastard child of this unholy union is NFL Sunday Ticket, which charges consumers between $250 and $350 a season to watch their favorite games. And while DirecTV has eased up a little on the restriction that you need to subscribe to DirecTV's other services to get Sunday Ticket, trying to order the standalone broadband-only service over at the DirecTV website results in the user being accosted with a bevy of fine print:

"*NFLSUNDAYTICKET.TV service is only available to non-DIRECTV customers who live in a select apartment building where DIRECTV service is not available, attend select universities, or live in one of the following metro areas: New York City, Philadelphia, or San Francisco. NFLSUNDAYTICKET.TV UNIVERSITY only available to students enrolled in eligible universities. Blackout rules and other conditions apply.

Even if you qualify, it's still a pretty far cry from services like MLB.TV, which is available for as little as $60 a year. Each time the exclusive arrangement is up for renewal, wiser NFL fans quietly pray the NFL will realize the benefits of broader, less-exclusive distribution of games, but ultimately a huge check from DirecTV almost always wins out (this last check clocked in at around $12 billion for an eight year deal).

There is, however, some fleeting legal fisticuffs on the horizon that might (but probably won't) shake up this cozy arrangement. Last month, DirecTV and the NFL were hit with a class action lawsuit (pdf) alleging that the companies' exclusive distribution arrangement for NFL games under the NFL Sunday Ticket brand violates antitrust laws. The suit took specific aim at the inflexibility of the packages sold to consumers:

"The league and DirecTV offer NFL Sunday Ticket only as all-or-nothing. Purchasers of NFL Sunday Ticket must buy all out-of-market games for all teams even if they are only interested in watching the games of a particular team. Likewise, consumers must buy the complete season of games and may not purchase individual games."

Major League Baseball and the National Hockey League have been hit with similar suits (which the NFL is also included in), and both leagues have so far responded with slightly-more-flexible fare (like NBA's League Pass, which allows the purchase of individual games). The NFL, however, is also now facing a second lawsuit (pdf) from a sports bar owner in San Francisco alleging that locking bars to DirecTV service to extract "monopoly rents" (From $2,500 to $120,000 depending on size) constitutes an "illegal monopoly":

"Defendants have colluded to sell the out-of-market NFL Sunday afternoon games only through DirecTV. Such an arrangement eliminates competition in the distribution of out-of-market Sunday afternoon games and requires anyone wishing to view these games to subscribe to DirecTV and purchase NFL Sunday Ticket at the supracompetitive price dictated by DirecTV."

It's unclear if either suit will convince a judge to blow up the NFL and DirecTV's cozy cuddling, but a successful suit could have far-reaching implications. AT&T's $49 billion acquisition of DirecTV is contingent on DirecTV maintaining its exclusive relationship with the NFL, meaning AT&T can walk away should the arrangement crumble. Regardless of the suit(s), you'd hope that the NFL some day wakes up and realizes the benefits of broader, more flexible NFL game distribution when it comes to battling pirated game streams and users who are having to use VPN to get cheaper international NFL streaming options.

Filed Under: class action, excusivity, football, pay tv, sunday ticket
Companies: directv, nfl

Warner Bros. And Rightscorp Argue That Copyright Trolling Is Protected By The First Amendment

from the that's-one-way-to-look-at-it dept

Is the process of copyright trolling protected by the First Amendment? That appears to be the claim that both Rightscorp and Warner Bros. are making in response to a class action lawsuit filed against them.

Back in November, we wrote about a class action lawsuit filed against Rightscorp, by lawyer Morgan Pietz. Rightscorp, of course, is a company trying (and mostly failing) to make copyright trolling slightly more respectable by shaking down accused infringers (based on a questionable methodology) for somewhat lower amounts than traditional copyright trolls. Morgan Pietz, if you don't know, is one of the key lawyers who helped take down infamous copyright troll Prenda Law -- so his involvement was noteworthy.

Since November, when the lawsuit was initially filed, there's been some back and forth in the lawsuit (and even the main named plaintiff has changed). In the first amended complaint [pdf] that was filed last month with new lead plaintiff, John Blaha, the claims about violations of the Fair Debt Collection Practices Act have been removed, to focus mainly on violations of the Telephone Consumer Protection Act and abuse of process. The TCPA bans autodialing telemarketers, and Pietz is trying to argue that Rightscorp's autodialers fall under this law. The abuse of process claims focus on how Rightscorp got access to various people to shakedown, using DMCA 512(h) subpoenas. This is the process -- which courts have clearly rejected -- by which copyright trolls think they can issue subpoenas to ISPs about potential infringers, without first filing a lawsuit. Every few years, copyright trolls think they've newly discovered this loophole even though the courts have rejected it. The lawsuit has also added key Rightscorp clients, Warner Bros. and BMG, as defendants as well.

Last week, Rightscorp responded [pdf] by arguing that the case should be dismissed under California's anti-SLAPP law. Now, we've been huge supporters of California's anti-SLAPP law and believe that we need a similar federal anti-SLAPP law. Anti-SLAPP laws allow defendants to quickly get lawsuits dismissed when it's clear those lawsuits are nothing more than attempts to silence their public speech (SLAPP standing for "Strategic Lawsuit Against Public Participation.") However, I'm hard pressed to see how robocalling someone demanding they pay up or get sued is "public participation" in any way. Here's how Rightscorp makes its argument however:

The abuse of process claim should be dismissed under California’s anti-SLAPP statute, as Plaintiff’s attempt to recover damages from Defendants and enjoin them from making further subpoena applications impermissibly impairs Defendants’ free speech and petitioning rights. The imposition of the remedies Plaintiff seeks is prohibited as it would unduly burden Defendants’ efforts to invoke legal process to identify copyright violators who illegally distribute Rightscorp’s clients’ protected works. As the California courts have consistently held, claims attacking a defendant’s efforts to invoke the legal system are subject to being automatically stricken under anti-SLAPP.

But that's not true at all. It's hard to see how anyone can argue that merely filing a subpoena for information is protected free speech. There are plenty of situations where courts have ruled that such subpoenas are inappropriate -- including (as mentioned above) in nearly identical cases. It's not a free speech issue at all. But having gone down this path, Warner Bros. (Rightscorp's main client) has decided to chime in as well [pdf].

Specifically, Plaintiff’s claim impermissibly challenges Defendant’s petitioning conduct, which is protected under California’s anti-SLAPP statute.

While I'm not convinced that Pietz's class action will survive (for a variety of reasons), the idea that the lawsuit itself should be barred under California's anti-SLAPP law seems ridiculous. The lawsuit is not seeking to block Rightscorp's First Amendment rights. It's seeking to stop robocalls and illegal subpoenas that are used to allow Rightscorp to shakedown people for settlement money by bombarding them with demands to pay up to avoid being sued.

Filed Under: anti-slapp, california, class action, copyright, copyright trolling, dmca, first amendment, morgan pietz, process violations, robocalling, subpoena
Companies: rightscorp, warner bros.

Class Action Lawsuit Over Apple DRM Stumbles Because Plaintiffs Aren't Actually In The Class

from the you-had-one-job... dept

We've written a few times about the long-running class action lawsuit against Apple alleging that its use of DRM on music (the "FairPlay" system) violated antitrust laws by locking users into Apple's platform. The case is interesting on a few different levels -- including the question of whether or not DRM could lead to antitrust violations (very interesting...) and showing how quickly the technology world changes (music DRM is basically long gone). However, with the trial being held this week, a new stumbling block arose late in the game. Apple lawyers have pointed out to the judge in the case, Yvonne Gonzalez Rogers, that neither of the two women named as plaintiffs actually qualify to be in the class.

As you might imagine, that makes for a difficult class action lawsuit, when you don't have any actual plaintiffs.

Specifically, after testimony this week, Apple realized that the iPod that one of the plaintiffs owned was purchased outside of the period of time covered by the class action lawsuit. Apple stopped using Fairplay in March 2009, so the class action lawsuit only applies to iPods bought between September 2006 and March 2009. That's a problem when the main plaintiff actually bought hers in... July 2009.

After plaintiff Marianna Rosen testified on Wednesday, Apple attorneys said they checked the serial number on her iPod Touch and found it was purchased in July 2009. In a letter sent to the court late Wednesday night, Apple lawyer William Isaacson said it appears the other plaintiff, Melanie Wilson, bought iPods outside the relevant time frame or, in one instance, purchased a model that didn't have the specific version of software at issue in the case.

Isaacson, who suggested the lawsuit can't proceed without a plaintiff, said he's asked for proof that either woman had purchased an iPod covered by the case. Plaintiffs' attorney Bonny Sweeney said her side is checking for other receipts. She conceded that Wilson's iPods may not be covered, but she also noted that an estimated 8 million consumers are believed to have been purchased the affected iPods.

In other words, the class action lawyers are admitting that they may not have a plaintiff, but say it doesn't matter because they can find another one without too much trouble.

And of course, this just reinforces what a total scam so many class action lawsuits are. We've written about this for years. While the basic idea may seem sound, the reality is that most class action lawsuits are just about ways for class action lawyers to get super wealthy. They seek out anything they can sue over, find a stand-in plaintiff whose only job is basically to be the name on the lawsuit, and then when the final payout comes, the lawyers take a huge chunk, the stand-in plaintiff gets a small amount, and the rest of the class splits a further tiny amount. It's not about righting wrongs. It's about enriching class action lawyers. The very fact that the lawyers in this case admit that they can toss out their plaintiffs and bring in others seems to highlight what a total joke this whole thing is.

Still, someone really, really, screwed up on the lawyers' side. How the hell do you set up a class action lawsuit without first confirming that your plaintiff is in the class? That seems like a total and complete fuck up.

Thankfully, Judge Rogers seems to recognize that this is not a good situation:

"I am concerned that I don't have a plaintiff. That's a problem," the judge said in court Thursday afternoon at the end of the trial's third day of testimony in Oakland.

As interested as I am in the idea that DRM might be anticompetitive, I'm still troubled by the abuse of class action lawsuits (and related antitrust efforts in general as well). This particular case just seems like a total mess.

Filed Under: antitrust, class, class action, class action lawsuits, class action lawyers, competition, drm, plaintiffs
Companies: apple