Legal theories on privacy protections for cellphone location data will get a refresh when the Supreme Court rules in Carpenter v. U.S. (see 1711290043), panelists said at the Cato Institute Wednesday. The court is likely to rule for Timothy Carpenter, panelists said, citing justices’ questions about the legal foundation for his conviction, which rested on evidence collected in a 127-day search of his cellphone location information. Justices questioned law enforcement reliance upon the long-standing third-party legal doctrine that says users give up their right to privacy when sharing information with a third party. The case raises the question of whether a new line should be drawn around cellphone geolocation information, at the heart of Carpenter, versus information obtained from banking records, credit cards and witness interviews in criminal investigations, said Dan Schweitzer, National Association of Attorneys General Supreme Court counsel. “We’re voluntarily using our cellphones, but is that different from using banks or telephones.” If the court makes a distinction, or limits how much cellphone location can be collected without a warrant, it could “overrule past court precedents,” he said. “Cellphones are a necessity of life -- by necessity they collect personal information,” said Jake Laperruque, Constitution Project senior counsel. “There’s got to be some type of line drawn where third-party doctrine is trumped by a consideration over the sensitivity of the information." Justice Sonia Sotomayor raised this question in oral argument on requiring warrants to look at emails.

The 9th Circuit U.S. Court of Appeals affirmed a district court’s decision compelling arbitration in a class-action lawsuit against AT&T Mobility (case 16-16915). The plaintiffs alleged AT&T falsely advertised their mobile service plans as unlimited when actually the carrier slowed data speeds after certain usage levels. AT&T moved to compel arbitration and the court agreed. “There is no state action here,” wrote Judge Richard Tallman for the 9th Circuit in a Monday opinion. “AT&T’s actions must be attributable to the government for state action to exist.” The judge and two other disagreed with plaintiff arguments there's state action whenever a party asserts a direct constitutional challenge to a permissive law under the 1996 decision in Denver Area Educational Telecommunications Consortium v. FCC. Also, AT&T isn’t a state actor under the Federal Arbitration Act “encouragement” test, the judge said.

Vizio allegations LeEco committed fraud and deception in its failure to complete the proposed Vizio buy for lack of cash began with a $2 billion “merger transaction gone bad,” said Vizio in a memorandum opposing LeEco’s motion to dismiss (see 1711220018). Contrary to LeEco statements that Vizio offered no “particularized facts” supporting “existence of fraud,” as required under “generally applicable” legal rules, Vizio “properly pleaded its fraud claims against defendants with the required particularity,” said the memorandum (in Pacer) filed Monday in U.S. District Court in Santa Ana, California. Vizio “neither knew, nor did it have any means to discover, the falsity of the promises and material facts concealed” by LeEco, said the memo. Vizio “has pleaded facts which show that it has been damaged to the tune” of $60 million in unpaid termination fees that LeEco owes under the merger agreement, it said. Judge David Carter gave LeEco a Dec. 18 deadline to respond.

A second complaint in as many years alleging LG and Best Buy duped consumers in how they merchandised an LG TV’s refresh rates was combined with the first complaint under an order (in Pacer) signed Friday by U.S. District Judge John Tunheim in Minneapolis. Los Angeles County resident Ivan Villa Lara “stood in line for hours” on Thanksgiving Day 2013 at a Best Buy store in Compton, California, where he paid a Black Friday-discounted $499 to buy a 55-inch LG set, said his Nov. 27 complaint (in Pacer). After bringing the TV home, Villa Lara “noticed that the television’s images were not as clear as expected,” it said. “Conducting his own research through various forums online, Villa Lara came to learn that his television’s actual refresh rate was 60Hz. Had Villa Lara known that the actual refresh rate of the television was 60Hz -- not 120Hz as advertised -- he would not have purchased the television or, alternatively, would not have been willing to pay as much for it.” Villa Lara’s allegations were identical to those in a complaint (in Pacer) filed in Minneapolis in May 2016 and amended (in Pacer) a year later by the same five-lawyer team on behalf of different plaintiffs. None of the lawyers commented Monday about why Villa Lara waited four years before bringing his action or why they filed a second complaint with allegations identical to the first. LG and Best Buy representatives didn’t comment Monday. LG argued in a June dismissal motion (in Pacer) on the amended complaint that the plaintiffs “failed to plead an ascertainable loss given the deeply discounted price they paid for their television.”

The EchoStar/Dish Network petition for writ of certiorari in its fight with Florida over its communications services tax, along with related briefs, will be distributed to Supreme Court justices Jan. 5, the docket said Wednesday. Dish is appealing a Florida Supreme Court decision in April rejecting a 2005 lawsuit alleging the tax violates the Commerce Clause by charging a higher rate on direct broadcast satellite than on cable TV (see 1711280001).

SiriusXM and a California motorist are at odds over a lawsuit alleging violations of the Driver's Privacy Protection Act (DPPA) for sending out solicitations and calling new buyers of satellite radio-enabled cars. In a docket 5:17-cv-01724 motion (in Pacer) for summary judgment Monday in U.S. District Court in Riverside, the company said it's not a DPPA violation to access or use information provided by a consumer pursuant to a business transaction, such as buying a car, and a motor vehicle record under the DPPA doesn't include information obtained from a source other than the department of motor vehicles. In a motion (in Pacer) to certify the class, plaintiff James Andrews said the name and address information in the dealer management system came from his California driver's license, thus constituting a motor vehicle record. Andrews said the proposed class could number more than 100,000.

The Florida Supreme Court analyzed discriminatory effects of the state's communications services tax (CST) based purely on the basis of domicile, an approach conflicting with rulings by most courts and with U.S. Supreme Court precedent, said EchoStar Satellite/Dish Network in a U.S. Supreme Court docket 17-379 reply brief Monday. The company is appealing the Florida court's April opinion tossing out a 2005 lawsuit arguing the CST violates the Commerce Clause by charging a higher rate on direct broadcast satellite than on cable TV; the court said neither cable nor DBS qualified as an in-state interest, negating the satellite companies' discriminatory effect argument, and there's no evidence state lawmakers adopted the CST with discriminatory purpose. EchoStar said the morass of Commerce Clause doctrine makes it "vital for the Court to step in" to give certainty over divided courts looking at the constitutionality of state laws differentiating between interstate competitors. The Florida Department of Revenue, in a brief filed earlier this month in opposition to the DBS petition for writ of certiorari, said it overlooks that Florida taxes satellite differently because Congress prohibited local taxation of satellite services in the Telecom Act, so the state shares such tax receipts with localities. It ignores that satellite's overall CST burden is less than cable TV's, the state said.

The 10th U.S. Circuit Court of Appeals denied a petition for rehearing on a decision on set-top box rental litigation, it said in a docket 15-6218 order (in Pacer) Thursday. Appellant Richard Healy sought rehearing of the appellate court's affirmation of a lower court's decision to overturn a jury's verdict that Cox Communications illegally tied cable services to set-top box rentals (see 1710050065).

Samsung on Thursday became the second TV maker in as many days targeted in a federal complaint drawn from YouTube’s decision to stop supporting the older flash-based app embedded in most legacy smart TVs after June 26. If plaintiff Lance Baird, a Los Angeles resident, had known the Samsung smart TV he bought in 2012 “would not have access to YouTube, or would in some date in the future lose access to YouTube, he would have made a different purchasing decision,” said the complaint (in Pacer) filed in U.S. District Court in San Francisco. Baird “would have either decided to purchase a non-smart television, another brand that would provide access to YouTube for the life of the product, or pay less for a television due to the loss of YouTube accessibility,” said the complaint, which seeks class-action status on behalf of all U.S. consumers who bought older Samsung smart TVs and then lost YouTube functionality after June 26. Like the action filed Tuesday against Vizio in U.S. District Court in Tacoma, Washington (see 1711010024), the Baird complaint alleges breach of contract, unjust enrichment and negligent misrepresentation against Samsung for not telling consumers they could lose use of YouTube unless they owned smart TVs installed with the newer HTML5 app, which YouTube continues to support. A Samsung spokeswoman declined comment Friday. Lawyers for Baird and for Cody Brenner, the plaintiff in the Tacoma action against Vizio, didn’t comment about whether they plan additional complaints against more TV makers whose older smart sets also lost YouTube functionality after June 26 when the streaming service stopped supporting the legacy flash-based app. Neither the Baird nor the Brenner complaint targets YouTube itself. Representatives for YouTube didn't comment Friday.

OneLink isn't liable under the "sham" exception for petitioning the Puerto Rico Telecommunications Regulatory Board and other government officials to deny or impede efforts by Puerto Rico Telephone Co. (PRTC) to get into the IPTV business on the island, the 1st U.S. Circuit Court of Appeals said in a docket 16-2132 decision Tuesday. Petitioning an agency or executive official as an anticompetitive weapon only falls in the sham exception if the petition is objectively baseless, and PRTC never argued any OneLink petitions were that, so those petitions don't support imposing antitrust liability on OneLink, Judge William Kayatta said. In a concurring opinion, Judges David Barron and Juan Torruella said a monopolist could still be liable under antitrust law for a pattern of petitioning even though no single filing in that pattern is objectively baseless. PRTC outside counsel didn't comment Thursday.