Plaintiffs lawyers in charge of more than 60 class actions over throttling iPhone batteries have asked a federal judge to order Apple Inc. to stop all communications with customers about refunds and replacements, unless they notify them about their right to sue.
Apple has been offering its customers $50 credit refunds or discounted battery replacements, since it admitted on Dec. 20 that it had installed software updates in older iPhones that slowed their battery life. Lawsuits claim Apple’s act was intentional, designed to force customers into buying new iPhones. Plaintiffs lawyers have insisted that Apple tell customers in both programs, many of whom are prospective class members, that they could still participate in the class actions. Last month, lawyers on both sides hit an impasse over the language of such a notice.
“We’ve been frankly concerned for months that Apple might take the position that a customer’s participation in these programs would somehow impact their claims in this case,” said Mark Molumphy of Burlingame, California’s Cotchett, Pitre & McCarthy, whose colleague, Joseph Cotchett, is co-lead counsel in the litigation. “Initially, we were informed in private communication with them that this was a goodwill program, and won’t have any impact, but then, we were told in subsequent communication, they had stated relief we’ve asked for in the case, and they’ve cited these very programs. From our point of view, if they’re going to take this position that participation in this program will impact their claims and damages in this case, customers should be told that. It shouldn’t just be the attorneys receiving these letters and, frankly the court should be supervising these communications.”
Plaintiffs lawyers filed their motion on Tuesday and are asking for a hearing on Sept. 28.
An Apple spokesman and its lawyers, Theodore Boutrous and Christopher Chorba, of Los Angeles-based Gibson, Dunn & Crutcher, did not respond or declined to comment. But at a hearing last month, Chorba said that Apple’s only concern is that “class members can’t recover the same dollar twice for the same exact alleged harm,” according to the transcript.
Apple got sued one day after its announcement about the battery problems. The Department of Justice, the U.S. Securities and Exchange Commission and several regulators in foreign countries announced investigations. On Dec. 28, Apple apologized and announced a program to replace batteries in older iPhones for $29, a significant discount from the usual $79 fee.
Plaintiffs lawyers immediately complained about Apple’s communications with prospective class members. On Feb. 9, plaintiffs lawyers Shawn Williams of Robbins Geller Rudman & Dowd and Laurence King of Kaplan Fox & Kilsheimer, now co-lead counsel of the litigation, filed a similar motion in one of the cases. In it, they asked U.S. District Judge Edward Davila in San Jose, California, to order Apple to invalidate class action waivers in its terms and conditions or add language stating that customers who participated in the battery replacement program were not “relinquishing any rights or diminishing any claims.”
On April 4, the U.S. Judicial Panel on Multidistrict Litigation sent all the iPhone throttling cases to Davila, who denied that motion last month so that both sides could resolve the matter on their own.
On May 23, Apple announced a program that gave a $50 credit to customers who paid full price to replace their iPhone batteries.
At that time, Apple had assured plaintiffs lawyers in a letter that “participation in a battery repair would not extinguish any legal rights or claims,” according to this week’s motion, but ended with “an ominous and confusing message: ‘That said, no plaintiffs or putative class members may recover twice for the same alleged injury.’”
Then, in a July 5 letter, Apple told lead plaintiffs lawyers that it had “already taken action” with respect to the “relief” sought in the lawsuits, the motion says. Apple later agreed to craft a notice insisting customers of both programs would not be waiving their legal rights, according to the motion, but then included three “carveouts.”
Plaintiffs lawyers are asking Davila to order that a notice be sent to prospective class members informing them about the lawsuits. They also want copies of all communications Apple has had with prospective class members about both programs, along with their names, email addresses and other contact information.
“We asked Apple to stipulate to that language, and they refused,” said David Straite, of Kaplan Fox in New York, another lead plaintiffs lawyer. “Even if it’s a very small subset of people impacted, it needs to be explained.”
Plaintiffs lawyers filed their consolidated class action complaint on July 2 on behalf of millions of iPhone users in 40 countries, including the United States. Apple was due to file its motion to dismiss today.
Separately, on Aug. 2, Davila appointed former Jefferson County, Kentucky, Circuit Court Judge Rebecca Westerfield, now at JAMS in San Francisco, as a discovery special master in the case.