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High-Tech Law & Litigation Blog

  • 27
  • September
  • 2018

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Can Calls from an Ordinary Cellphone Trigger TCPA Liability? Maybe.

While spam calls and texts are becoming more sophisticated, courts have disagreed about what types of “automatic telephone dialing system[s]” are limited by the Telephone Consumer Protection Act of 1991 (“TCPA”). On September 20, 2018, the Ninth Circuit adopted a surprisingly broad interpretation of autodialer: a device can be considered an autodialer even in the absence of the statutorily specified “random or sequential number generator.”

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Facebook Faces Another Consequence of Its Privacy Problems: Shareholder Lawsuits

After months of being on the hot-seat on Capitol Hill, in the press, and among its users, Facebook is now facing a pair of shareholder suits alleging that it misled investors about its expected revenues and user growth. These suits compound the privacy problems that recently plagued the company, and they also reflect the impact of new European privacy legislation.

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  • 14
  • June
  • 2018

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Secret CFIUS Request Spurs Qualcomm Shareholder Suit

On June 8, 2018, Qualcomm shareholders filed a lawsuit in the Southern District of California against Qualcomm Inc., its CEO, and its CFO for, essentially, secretly requesting a Committee on Foreign Investment in the United States (“CFIUS”) review of Broadcom Ltd.’s attempted takeover of Qualcomm. Camp v. Qualcomm Inc., 18-cv-1208 (S.D. Cal. filed June 8, 2018). The CFIUS review, as previously reported by V&E, ultimately led to President Trump’s executive order that ended Broadcom’s takeover efforts.

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European Competition Watchdog Says “Shazam!” and Opens In-Depth Investigation Into Apple-Shazam Deal Over Consumer Data Concerns

In December 2017, Apple announced its intention to purchase UK-based app maker Shazam for $400 million. Shazam is best known for developing one of the most popular music recognition apps, which uses a mobile device’s built-in microphone to listen to and identify songs for the user. Because of Shazam’s relatively low revenue numbers, the proposed acquisition did not contain an “EU dimension” based on certain “turnover” (read: revenue) thresholds set by the EU Merger Regulation, and therefore Apple was not required to notify the European Commission of the deal. However, Apple did report the transaction for regulatory clearance in Austria, where the deal met the national notification thresholds. Subsequently, Austria, joined by several other European countries, requested that the European Commission, the EU’s competition watchdog, examine the acquisition. Under Article 22(1) of the EU Merger Regulation, Member States may ask the Commission to examine a merger that does not have an EU dimension but that may otherwise significantly affect competition in the requesting Member State.

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  • 21
  • March
  • 2018

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Trump Blocks Qualcomm Acquisition to Preserve U.S. Dominance in 5G and Important Supply Chains (Part 2)

Last Monday, as reported on by V&E, President Trump put an abrupt halt to Singaporean chipmaker Broadcom Ltd.’s efforts to acquire U.S.-based Qualcomm Inc., when he issued an executive order blocking the acquisition for national security reasons. The order followed an investigation into the proposed transaction by the U.S. Committee on Foreign Investment in the United States (“CFIUS” or the “Committee”) which found that the acquisition threatened U.S. leadership in the 5G standards-setting process and could potentially disrupt important Qualcomm product supply chains to U.S. military and government security agencies. The President’s order appears to be another sign of how the U.S. increasingly views a strong domestic technology sector as an integral part of its overall national security strategy.

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  • 15
  • March
  • 2018

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Trump Blocks Qualcomm Acquisition to Preserve U.S. Dominance in 5G and Important Supply Chains (Part 1)

President Trump, on Monday, issued an executive order prohibiting Broadcom Ltd.’s proposed takeover of Qualcomm Inc., and “any substantially equivalent merger, acquisition, or takeover, whether effected directly or indirectly.” The order stated there was “credible evidence” that a Broadcom-controlled Qualcomm “might take action that threatens to impair the national security of the United States.” The order also comes on the heels of a letter from the Committee on Foreign Investment in the United States (“CFIUS”) highlighting security risks involved with the acquisition, including the potential loss of U.S. leadership in the 5G standards-setting process and the disruption of important supply chains. Although not the first time the President has blocked such a transaction, the order appears to reiterate the administration’s focus on maintaining technological leadership in certain technology industries, including those technologies with both a consumer and military purpose.

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Security Outlook for Small-Business-Targeted Web Hosts

In order to aid small businesses, the Federal Trade Commission (“FTC”) has released a Staff Perspective and a series of articles targeted to consumers and businesses about the availability of secure web-hosting and email providers. The Staff Perspective reviewed the services offered by eleven web-hosting companies and found that while most of these providers offer minimum security verification, most do not offer the more advanced services. Instead, small businesses are expected to implement these services themselves, although most likely do not have the institutional knowledge in order to do so. Without the services outlined in the FTC’s report, small businesses are open to phishing attacks, placing themselves and their customers at risk of financial harm.

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  • 20
  • February
  • 2018

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Tech Issues Dominate at Confirmation Hearing for Four FTC Nominees

At a February 14, 2018, confirmation hearing on President Trump’s nominees to the Federal Trade Commission before the Senate Commerce, Science, and Transportation Committee, Senators asked the nominees how, if confirmed, they would regulate technology companies, address data security issues exposed by the Equifax breach, and address net neutrality. While making few firm commitments other than to study the issues, the nominees agreed that the FTC should use its authority and resources to protect consumers from abuses by large firms, especially in light of evolving concerns over data privacy and aggregation.

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  • 15
  • February
  • 2018

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Tesla's Lawsuit Challenging Michigan Law Banning Direct Car Sales Raises Novel First Amendment Issues

A lawsuit filed by innovative technology and automotive company Tesla Motors, which challenges Michigan’s ban on direct car sales to consumers, raises the conflict between the need for discovery into matters of intent and First Amendment rights of association related to lobbying activity. The U.S. Sixth Circuit Court of Appeals will soon have to resolve this conflict in Tesla Motors, Inc. v. Johnson, No. 18-1010. In that case, Tesla seeks information about the communications of a trade association that lobbied in favor of legislation that Tesla has challenged as unconstitutional. This new conflict follows a habitual cycle: Technology companies push boundaries, governments seek to regulate their activities, and the companies become more involved in lobbying regulators and legislatures. The question of whether communications related to those efforts may be discovered by other parties in civil litigation is therefore likely to recur, and the Sixth Circuit’s resolution of the issue will merit close attention.

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  • 12
  • February
  • 2018

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Update: District Court Sets Aside $300,000 Apple Sanction

Last week, we wrote that Apple found itself in hot water when a federal magistrate imposed a $300,000 sanction against the company for failing to meet a Rule 45 (third-party subpoena) document production deadline in the Federal Trade Commission’s (“FTC”) case against Qualcomm Inc. In the sanction order, the magistrate cited a similar sanction against Samsung for untimely document production to Apple in an unrelated suit, Apple Inc. v. Samsung Elecs. Co., No. 11-CV-01846 (N.D. Cal. Apr. 23, 2012) [ECF No. 880].

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  • 09
  • February
  • 2018

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Apple Hit with $300,000 Sanction for Missing Document Production Deadline

The Federal Trade Commission’s (“FTC”) case against Qualcomm Inc. — alleging Qualcomm unlawfully maintained a monopoly in baseband processors — is in the midst of a contentious discovery period that has each side scrambling to subpoena documents from various third parties. Apple Inc. is one such third party and is now in hot water for missing a document production deadline, presumably by 12 days. In response, the Northern District of California magistrate judge sent a message to other third parties by sanctioning Apple to the tune of $300,000 ($25,000 per day). Tech companies may view the sanctions as a blessing or a curse, depending on what end of a subpoena they find themselves on.

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  • 18
  • January
  • 2018

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Important News for Publicly Traded Tech Companies: The Supreme Court Will Decide the Constitutionality of the SEC’s ALJ Appointment Process

The U.S. Securities and Exchange Commission (“SEC”) is considered by many to be the nation’s top watchdog on Wall Street — sniffing out insider trading, market manipulation, and financial fraud. But the reality is that any publicly traded company is subject to SEC regulation and enforcement. The tech industry, with its ever-changing landscape, may become a hot bed of SEC enforcement activity, especially as companies continue to navigate uncharted waters such as crypto currencies and innovative “initial coin offering” funding methods.

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