Setback For iPod Class-Action Lawsuit As Sole Plaintiff Is Disqualified

December 09, 2014

The lawyers fighting Apple in a class-action lawsuit involving iPods have managed to do a few remarkable things: They persuaded a judge to bring a decade-old lawsuit to trial here last week, for one. They even managed to drag the famous Steve Jobs into giving a videotaped testimony shortly before he died three years ago.

But they have one big problem: Their case has no plaintiff.

A federal judge on Monday disqualified the only remaining plaintiff in the case, Marianna Rosen of New Jersey, after Apple’s lawyers successfully argued that she did not even buy any iPods for which she is seeking damages.

That argument also gave Apple an opening last week to ask Yvonne Gonzalez Rogers, the federal judge overseeing the case, to throw out the suit.

The judge, however, disagreed with Apple’s argument that it was too late to add a new plaintiff. She ordered the plaintiff lawyers to find one by Tuesday morning.

The judge appeared annoyed about the discrepancies with Ms. Rosen’s iPods and scolded the plaintiff lawyers for failing to do their homework. Another plaintiff in the case dropped out last week.

“You’ve certainly created a problem on the plaintiffs’ side,” Judge Gonzalez Rogers said before reaching her decision.

The lawsuit, filed a decade ago, involves older iPods, which played only songs sold in the iTunes Store, or those downloaded from CDs — not music from competing stores. The plaintiff lawyers represent consumers who say Apple violated antitrust law because to keep their music, people had to stay with the iPod and buy higher-priced ones rather than cheaper, alternative music players. For this, the plaintiff lawyers want Apple to pay consumers at least $350 million in damages.

The lawyers suing Apple were busy over the weekend, filing papers about Ms. Rosen’s standing as a witness.

Last week, Ms. Rosen testified that she had bought two iPods: an iPod Nano in the fall of 2007 and an iPod Touch in December 2008. Apple’s lawyer asked whether Ms. Rosen kept receipts for her purchases. Ms. Rosen said she probably did not have the paper receipts, but later said her iPod Touch was in her bag.

Apple’s lawyers looked up the serial number of Ms. Rosen’s iPod Touch and found records showing it was bought in July 2009. The class action seeks damages for iPods bought from September 2006 to March 2009. So this iPod Touch missed the cutoff.

Apple’s lawyers last Wednesday pointed out the discrepancy about Ms. Rosen’s iPod Touch in a letter to the judge. They also raised similar concerns about the second plaintiff’s iPod purchases. On Friday, the second plaintiff dropped out of the case, leaving Ms. Rosen as the lone plaintiff.

Ms. Rosen’s lawyers then provided Apple a receipt showing two iPod purchases made in September 2008. But Apple pulled up its copy of the receipt for those iPods, which indicated they were bought by the Rosen Law Firm, the firm owned by Ms. Rosen’s husband. Apple’s lawyers argued that these were not iPods bought directly by Ms. Rosen, and therefore she could not claim injury.

Over the weekend, Ms. Rosen’s lawyers filed a letter including a declaration by Ms. Rosen about the iPods. In it, Ms. Rosen said that on Sept. 11, 2008, she bought an iPod Touch — not the same one that she brought to court. She also said that on the same day, she bought the iPod Nano.

In her declaration, Ms. Rosen also said that she bought the iPods for her own use, not for her husband’s law firm. But she said that she believed the credit card she used was issued in both her name and that of the family business, the Rosen Law Firm, and that she was authorized to make personal purchases with it.

In summary, Ms. Rosen amended her testimony, saying that she bought two iPods on the same day in September 2008.

Despite that, the judge said late Monday that Ms. Rosen was inadequate to serve as a plaintiff.

Bonny Sweeney, the plaintiff’s lead attorney, told the judge that a number of people had approached her team over the weekend, asking to be considered as plaintiffs, and many had already been interviewed.

“Yes, we certainly have another plaintiff,” she said.

(the New York times)