A lower court made a "remarkable conclusion" that the NFL, TV networks and DirecTV are immune from antitrust scrutiny even if an agreement among the three limits competition substantially increases prices and decreases access to pro football telecasts -- "the very definition of anticompetitive conduct," said a group of appellant sports bars and DirecTV subscribers in a 9th U.S. Circuit Court of Appeals docket 17-56119 opening brief Thursday (in Pacer). Appellants said the court's approach -- analyzing separately agreements between the league and DirecTV and agreements between the teams and the NFL on TV rights -- led it to conclude the plaintiffs challenge only the DirecTV agreement and not the teams' horizontal agreement and to misunderstand how these interconnected agreements operate. A U.S. district judge in Los Angeles last year threw out consolidated complaints suing the MVPD and NFL over DirecTV's "Sunday Ticket" programming (see 1707030002). DirecTV parent AT&T didn't comment Monday.

Google's YouTube doesn't seem to be engaged in a public function that was traditionally exclusively reserved for the state, such as a private corporation that operates a town's municipal functions or has been given control over a previously public right of way, said U.S. District Judge Lucy Koh in San Jose Tuesday, granting Google's motion to dismiss Prager University's complaint and its request for a preliminary injunction. The docket 17-cv-6064 order (in Pacer) said Prager's complaint about YouTube's restricted mode feature (see 1801030009) relied heavily on the Supreme Court's Marsh v. Alabama decision, but Marsh "plainly did not go so far" as saying any private property owner operating its property as a public speech forum becomes a state actor that has to comply with the First Amendment. The court also rejected the conservative group plaintiff's argument that limiting some Prager videos via its restricted mode is false advertising by implying they have inappropriate content, saying YouTube didn't say anything publicly about the classification of those videos. Prager counsel didn't comment. Others have argued for years along the same lines as Prager as they sought legal grounds for letting online participants override YouTube's editorial discretion, but that argument "remains devoid of merit," blogged Santa Clara University Director-High Tech Law Institute Eric Goldman. He said the District Court ruling also rejects the "currently-chic argument" that the Supreme Court's Packingham v. North Carolina decision restricts social media services' editorial discretion, with Koh correctly reading Packingham as putting limits on state restrictions on access to social media rather than on the social media providers' discretion. He said similar "conservative-voices-hardship cases" making the same arguments, such as cases against Twitter, likely will "meet a similarly hostile reception. ... Perhaps these cases collectively form a solid wall of precedent that will discourage further plaintiffs from seeking to strip Internet services of their editorial discretion."

An event not meeting viewers' expectations, even if allegedly due to misconduct by participants and broadcasters, isn't a legally cognizable injury, defendant appellees HBO and boxer Manny Pacquiao said in an answering brief (in Pacer) posted Tuesday with the 9th U.S. Circuit Court of Appeals, urging it to affirm a lower court's August decision tossing out class-action complaints (see 1801170015). The pay-per-view-watching plaintiffs "received exactly what they paid for" -- a chance to see a fight, HBO/Pacquiao said, citing court precedents. Defendant appellee Floyd Mayweather, in a similar answering brief (in Pacer), said plaintiff success would "create new law, opening the floodgates to a host of lawsuits brought by disgruntled sports fans." The appellee arguments are "a rehash" of what they brought in District Court motions to dismiss, and they miss the point of the complaint -- that consumers were deceived through a conscious effort to conceal that Pacquiao was injured during training and, had they known, would have made a different purchasing decision, said appellant counsel Hart Robinovitch of Zimmerman Reed. Those fraud-based sports claims have been allowed to go forward in other suits, he said.

​The American Civil Liberties Union of Northern California wants a federal court in San Francisco to order the Transportation Security Administration to release records sought under Freedom of Information Act requests into the agency’s policies on searching domestic air passengers’ electronic devices at San Francisco International Airport, ACLU-NC said in a Monday complaint (in Pacer). TSA “has provided ALCU-NC with no records” in response to two FOIA requests it sent Dec. 20, one (in Pacer) to TSA headquarters in Washington, the other (in Pacer) to the agency’s San Francisco field office, said the complaint. The requests sought copies of emails, text messages, reports, training manuals and other records and documents germane to the “policies, procedures, or protocols regarding the search of passengers’ electronic devices.” Recent statistics “demonstrate that the number of these searches have multiplied year after year,” said the complaint. “Access to information about electronic device searches at airports is necessary to inform meaningful public debate over the scope of government conduct that potentially threatens core civil rights and liberties protected by the Constitution.” Though federal agencies have published their policies for searches of electronic devices at international borders, “the federal government’s policies on searching electronic devices of domestic air passengers remains shrouded in secrecy,” it said. TSA representatives didn’t comment Tuesday.

As many as 3 billion consumers whose data was compromised in Yahoo breaches can sue, a judge ruled. “Plaintiffs’ allegations are sufficient to show that they would have behaved differently had Defendants disclosed the security weaknesses of the Yahoo Mail system,” U.S. District Judge Lucy Koh for the Northern District of California wrote, released Friday evening. Koh rejected a request from Verizon to dismiss the claims. Verizon, which bought Yahoo’s internet business in June, objected to claims of negligence, breach of contract and fair dealing, among others. Yahoo was criticized for its pace in informing users and the public of three data breaches between 2013 and 2016. Verizon didn't comment.

The 10th U.S. Circuit Court of Appeals upheld a National Labor Relations Board finding Dish Network fired a Colorado call center worker over his soliciting co-workers to join a lawsuit against the company for its policy of docking commissions. The dockets 16-9514 and 16-9526 order (in Pacer) posted Wednesday was written by Judge Jerome Holmes and joined by Scott Matheson and Carolyn McHugh. Dish didn't comment Thursday.

Contractor WinMagic owes Samsung SDS America (SDSA) $277,100 in refunds for botching the installation of encryption software for itself and an unnamed client, alleged the U.S. subsidiary of Samsung’s global information technology company in a federal complaint Thursday. SDSA signed an April 2016 contract to license WinMagic’s SecureDoc Enterprise encryption software for its own use and for “its client’s business operations,” said the complaint (in Pacer), filed in U.S. District Court in Newark, New Jersey. The complaint didn’t identify the client, but a copy of the attached contract suggested it was a large customer, because it said SDSA ordered 7,000 copies of the SecureDoc software. SDSA’s representatives “specifically and unequivocally advised WinMagic that the SecureDoc solution must be compatible with the encryption configuration that SDSA and its client were required to utilize on the computers used in their business operations based upon the requirements of their respective parent companies,” said the complaint. WinMagic nevertheless failed to properly “configure the SecureDoc solution to be compatible with the very encryption requirements that SDSA previously identified as a mandatory component” of the contract, it said. Almost immediately after WinMagic technicians began installing SecureDoc in September 2016, SDSA “provided WinMagic with written notice of serious issues” with the encryption software that “were so severe that SDSA was wholly unable to use the technology solution for any purpose,” it said. Three months later, SDSA canceled the contract and demanded its refund, “consistent with the express warranty provision contained” in the agreement, it said. “To date, WinMagic has failed and refused to provide a full refund of the $277,100 that SDSA paid to WinMagic for SecureDoc,” said the complaint, which alleged fraudulent concealment, negligent misrepresentation, unjust enrichment and other accusations. WinMagic representatives didn’t comment Friday.

The Supreme Court extended until April 2 the deadline for Berkeley, California, to respond to CTIA’s petition for certiorari at the Supreme Court (see 1802230034), the court said in case 17-976. The deadline was Thursday to answer CTIA’s challenge of a Berkeley ordinance requiring retailers to inform prospective cellphone buyers that carrying their devices in certain ways can cause exposure to RF radiation exceeding federal limits.

While TVEyes' redistribution of Fox content is transformative by making specific Fox content searchable and convenient, that redistribution -- involving virtually all Fox content -- is so broad that TVEyes failed to show its video search product can be justified as fair use, the 2nd U.S. Circuit Court of Appeals said in a docket 15-3885 ruling Tuesday. The 2nd Circuit also reversed a lower court ruling that some TVEyes functions are fair use and remanded a permanent injunction against TVEyes so the lower court can revise the injunction to enjoin the company from offering its Watch function. Judge Dennis Jacobs wrote the opinion, joined by Jon Newman. In a concurring opinion, U.S. District Judge Lewis Kaplan of Manhattan, sitting by designation, didn't agree with the majority's characterization of the Watch function being "somewhat transformative." TVEyes' counsel didn't comment.

The U.S. Court of Appeals for the D.C. Circuit decision Dish Network designated entities should reasonably have anticipated how the FCC might adopt a new standard on effective control "sets a troubling precedent in administrative law," tech and other groups told the Supreme Court in a docket 17-1058 amicus brief posted Monday. The DDEs are appealing handling of AWS-3 auction bidding credits (see 1801290033). The amicus filers said the agency could have rejected SNR Wireless and Northstar Wireless based on their short-form application when it was aware of their financial relationships to Dish, and "basic fairness" should require an agency at least warn an applicant about the possibility some financial relationship might make DE credits unacceptable. They said the "reasonably anticipate" standard invalidates bureau-level decisions as precedent, leaving counsel in major business dealings adrift without guidance. Signing were the Computer and Communications Industry Association, International Center for Law and Economics, Phoenix Center, Public Knowledge, R Street Institute and TechFreedom. The FCC didn't comment.