A second class-action fraud complaint in four weeks accuses Samsung of duping consumers by using the “game optimizing service” apps on its Galaxy smartphones to artificially boost the devices’ performance when they detect “benchmarking apps” used by reviewers to grade and compare a phone’s speed and other attributes against competitive models. Consumers from seven states brought the complaint against Samsung Friday in U.S. District Court in Newark, New Jersey, alleging the OEM “puts cheating software on its devices that allow benchmark testing applications to run at high speed, while it throttles the speed and performance of every day applications in order to maintain safe operating temperatures and preserve battery life.” The result is that Samsung smartphones “fraudulently test at high performance rates that consumers will never experience with real-world applications,” said the complaint. “This lawsuit aims to put a stop to Samsung’s benchmark fraud and level the playing field.” Samsung didn’t comment. The earlier suit was filed March 11, also in Newark federal court (see 2203140002).

Maryland and business challengers of the state’s digital ad tax supported May oral argument on remaining issues at the U.S. District Court in Baltimore. Judge Lydia Griggsby ruled last month the Tax Injunction Act precluded the court from reviewing the tax itself, though it could review the law’s prohibition on passing the tax’s cost onto consumers (see 2203040060). The court should give parties three weeks to simultaneously file supplemental briefs, both sides agreed in a Monday joint status report. Plaintiffs including the U.S. Chamber of Commerce think reply briefs aren’t needed, but defendants would like the option to file replies three weeks later. If oral argument can’t occur in May, Maryland asks that it occur after July 11 “due to previously scheduled matters,” the joint report said: If the court doesn’t order supplemental briefs, plaintiffs think it should happen at the court’s “earliest convenience.” The parties stipulated that Maryland’s tax statute doesn’t “prohibit a person who derives gross revenues from digital advertising services in the State from indirectly passing on the cost of the tax … by factoring such cost into its customer pricing.” Cost “is passed on directly only when it is imposed on the customer by means of a ‘separate fee, surcharge, or line-item,’” said the joint report: As such, plaintiffs withdraw part of their complaint claiming the tax law “violates the Commerce Clause or dormant Commerce Clause.”

Texas’ social media law violates the First Amendment and would eviscerate platforms' editorial discretion over content shown to users, tech industry groups argued Friday before the 5th U.S. Circuit Court of Appeals in docket 21-51178 (see 2203280023). The First Amendment guarantees privately owned publishers the right to exercise editorial discretion, said NetChoice and the Computer and Communications Industry Association. There's no “hosting” exception to the First Amendment, and Supreme Court precedent doesn’t support requiring private companies to host others’ speech, the filing said: The new law discriminates based on viewpoint, content and speaker.

Litigation brought by Kenner, Louisiana, seeking franchise fees from Netflix and Hulu (see 2112230003), is being remanded from federal court to state court. U.S. District Judge Greg Guidry of New Orleans in a docket 2:21-cv-00445 order Thursday said the streaming defendants, in opposing the remand, "seek federal court intervention in matters over which the state of Louisiana and its municipalities have traditionally enjoyed wide regulatory latitude -- specifically, utility regulation and gross revenue fees" -- by asking it to interpret the Louisiana Consumer Choice for Television Act. Multiple such franchise fee suits have been remanded to state courts (see 2203240053).

The U.S. Court of Appeals for the D.C. Circuit declined a request for a panel rehearing of a February decision upholding the FCC's 2021 changes to over-the-air reception devices (OTARD) rules in a case brought by Children’s Health Defense (see 2202110059). The brief order was issued Wednesday, two days after appellants sought rehearing (see 2203280056).

The South Carolina State Court Administration faces a lawsuit for its ban on automated data collection known as scraping. The NAACP and American Civil Liberties Union filed a suit Wednesday in the U.S. District Court in Columbia, South Carolina. The ban unconstitutionally restricts NAACP’s right to access and record public court records under the First Amendment, said the plaintiffs: Scraping would help NAACP find people who could soon be evicted from their homes. “The First Amendment protects the NAACP’s right to use digital-era methods of recording public docket information that is available to any internet user,” said Esha Bhandari, ACLU Speech, Privacy and Technology Project's deputy project director. The state court administration declined to comment Wednesday.

The “public Internet” exception in Illinois' Cable and Video Competition Law, which exempts ISPs, doesn't apply to streaming services since their sole offering is video programming, East St. Louis said Tuesday in an opposition to streamers seeking dismissal of the city's franchise fees litigation. In the docket 3:21-cv-00561 opposition filed with the U.S. District Court in East St. Louis, the city said the streaming defendants can't reasonably dispute they use public rights of ways, because without them they couldn't deliver video programming. It said the fee isn't a tax and thus doesn't violate the Internet Tax Freedom Act. Counsel for defendants Netflix, Disney, Apple, Hulu, WarnerMedia, Amazon, CBS Interactive, YouTube, Curiosity Stream, Peacock, DirecTV and Dish Network didn't comment. The city is one of an array of localities pursuing franchise fees litigation against streaming services (see 2112230003).

States waited too long to bring antitrust claims against Facebook’s already-approved acquisitions of WhatsApp and Instagram, which initially didn’t raise competitive issues, the U.S. Chamber of Commerce argued Monday with industry groups before the U.S. Court of Appeals for the D.C. Circuit in docket 21-7078 (see 2203150046). The chamber signed its brief in support of Facebook with the Computer & Communications Industry Association and Business Roundtable. The states seek a “wholesale” exemption from Clayton Act applications “no matter how unreasonable the delay or how prejudicial its effect,” the groups wrote. Facebook made a similar argument in its last rebuttal against states seeking actions against the deals. “By expanding the enforcement field from a reasonable time to eternity, dispensing with laches guarantees more enforcement actions concerning old conduct,” the chamber wrote. They denied claims the platform’s refusal to deal with certain rivals constituted an antitrust violation, saying Facebook never terminated a prior profitable course of dealing with the rivals in question: “Absent termination of a prior profitable course of dealing, allegations based on a refusal to deal do not state a valid antitrust claim.”

The tech industry’s lawsuit against a Texas social media law is scheduled for oral argument May 9 in New Orleans during the court’s morning session, the 5th U.S. Circuit Court of Appeals said Monday in docket 21-51178 (in Pacer). Oral argument on industry’s challenge to a similar Florida law is set for April 28 at the 11th Circuit in Montgomery, Alabama (docket 21-12355, in Pacer).

DOJ’s claim that Google is hiding documents is “baseless,” the company argued Thursday before the U.S. District Court in Washington in docket 1:20-cv-03010 (see 2203210054). “Accusing an adversary of engaging in a systematic, bad-faith scheme to falsify and hide documents is a serious matter,” Google attorneys wrote. “A charge of that magnitude should be accompanied by unassailable proof,” and DOJ provided none. The company claimed DOJ misread three slides from internal presentations included with more than 4.5 million documents. With proper context, the slides show legitimate “guidance to Google employees about how to communicate with in-house counsel to request legal advice on subjects with obvious legal implications,” Google said.