A Class Action Complaint was filed on April 15, 2010 against Apple and 100 Doe Defendants. With regard to the unnamed Defendants, Plaintiff states:
Plaintiff is unaware of the true names and capacities of Does 1 through 100 and dues them by fictious names. Plaintiff will amend this Complaint to include these Doe defendants' true names and capacities when they are ascertained. Each Doe defendant is responsible in some manner, including without limitations, as aiders and abettors, for the conduct alleged in this Complaint.
The case is alleged to exeed 5 billion dollars. The products in question include the iPhone (from 3G forward) and the iPod Touch. As is pretty commonly known, Apple's warranties (both the standard warranty and Applecare) exclude damages caused by liquid spills or submersion. If your iPhone falls in the toilet (even if a deposit has not already been made), it isn't covered.
The Plaintiff alleges that Apple employees are instructed to utilize an external Liquid Submersion Indicator that is contained on the device to determine if it is damaged by moisture. This sensor turns red or pink if the user is pregnant. Just kidding! As far as I know, there is not yet an app for that. It does so if their is moisture detected in the hardware. This measure is the sole indicator for the employee to make their determination except in rare cases to be detailed below. The Plaintiff alleges that Apple is aware that this external indicator cannot be relied upon with any degree to certainty to determine if the product was subjected to a spill or submersion and that things such as cold weather, humidity, sweaty palms, and other ordinary and expected everyday events can cause this external indicator to give false positive results. It is the Plaintiff's belief that this has been proven by independent testing. Excuse me while I cleanse my mind of the mental image of the sweaty-palmed Plaintiff waiting at the Genius Bar.
The devices also contain an Internal Liquid Submersion Indicator. Access to this indicator requires that the product be opened, but Apple's corporate policy dictates that this only be done on rare occasions and at corporate's direction. Therefore, the standard policy is to rely upon the external indicator alone without attempting to verify this diagnosis by viewing the internal indicator. Even in cases where the internal indicator is examined, Apple does not give the customer any photographs of the status of the indicator and does not allow the customer to be present at the inspection or take their own photographs.
Once Apple has denied a warranty claim for moisture, the customer must then either pay full price for a replacement or face early termination fees from AT&T. Because of the numerous customer complaints, Apple "quietly" began offering to sell replacement iPhone at a price of $199.00 and requiring that the old phone be surrendered beginning in May 2009.
When the Plaintiff's first iPhone stopped operating, the Apple employee who tested it told her that it was exposed to a "significant" amount of moisture based on the external indicator alone and above her insistence that it had not. She purchased the replacement phone and within six months, that phone malfunctioned. When she brought the phone into an Apple store, she was told once again that the external indicator tested positive for moisture. She did not argue as she felt it would be futile considering her prior experience. She once again bought the replacement and surrendered the malfunctioning phone.
Ms. Gallion is asserting the following causes of action:
- Declaratory Relief
- Breach of Warranty Violations of the Song-Beverly Consumar Warranty Act Fraud Unfair and Deceptive Acts and Practices in Violation of the Consumers Legal Remedies Act
- Unlawful, Fraudulent, and Unfair Business Practices in Violation of the Unfair Competition Lawbreaker Unjust Enrichment
In the Joint Case Management Conference Statement, the Plaintiff re-alleged her position as stated in her Complaint. Apple stated that its external sensors have been thoroughly tested and found to be reliable. Damage from exposure to liquids is not a defect in materials or workmanship and thus are not warrantable damaqges. Thusly,
It is beyond dispute that members of hte putative clas have in fact damaged their iPhones and iPods by liquid exposure; accordinglly, plaintiff's putative class cannot be certified.
This part, however, is immensely entertaining,
Plaintiff's Statement. Plaintiff originally anticipated filing a motion for class certification in approximately October 2010 (barring unforseen difficulties that would delay its preparation and filing). Defendant has recently announced, however, that is document production would be "agonizingly slow," "frustrating," and will cause Plaintiff's counsel to want to "tear their hair out." And although Defendant's counsel have stated that many of the difficulties they forsee in responding to document requests stem from Defendant's use of computers that are on a "non-Windows platform," there are two basic reasons no such problem should exist. First, the parties have agreed that documents will be produced in TIFF or PDF format (which are readable by all computers) for use in Summation databases, which should resolve any issues pertaining to "non-Windows platforms." Second, even if documents such as email were produced in native (e.g., Apple Mail) format, that would not be a problem in any event because Plaintiff's counsel use Apple software and hardware--from their network server to their desktop and laptop computers.
In addition to seeking class certification, Plaintiff expects to file a motion for "partial" summary judgment of the aspect of Plaintiff's claim for declaratory judgment that pertains to Defendant's burden of establishing that it was entitled to deny coverage based on the terms of the Liquid-Damage Exclusion provisions of the Standard Warranty and the Extended Warranty.
Defendant's Statement. As required by Rule 26, defense counsel was candid with Plaintiff's counsel respecting the challenges of electronic discovery on a non-Windows platform. Plaintiff's mischaracterization of the Parties' discovery conferences does not promote the effective and efficient prosecution of this litigation.
Defendant anticipates filing a motion for summary judgment. Plaintiff's proposed "partial summary judgment" motion seeking to alter the Parties' burden of proof is procedurally improper and legally incorrect.
So wait... is Apple actually arguing that using its products is an obstacle for businesses such as corporations and law offices?
On August 6, 2010, the parties stipulated that a pending California case (which will be the subject of a future article) should be declared as related to this case as the claims asserted and questions of law are substantially similar. Earlier, Apple mentioned a different California case which was not mentioned at all in the Stipulation. I will look into that one as well.
In addition to her position as Assistant Editor at World of Apple, dizzle runs idrankthekoolaid, an Apple fangrl satire blog, and is an Administrator and Hostess at MyAppleSpace and their vidcast MASTv.