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Lawyers for Apple Inc. are set to ask a federal judge in San Jose to toss privacy and trespass claims brought on behalf of owners of certain iPhones after the performance of their devices slowed following updates to their operating systems.

Plaintiffs argued that Apple made the changes, dubbed a “feature” by the company, to the performance speeds of its iPhone 6 and iPhone 6S devices to spur consumers into buying newer, more expensive models. They also claim Apple failed to disclose those changes until customers complained and a technical expert demonstrated that the phones had curbed performance.

But Apple’s lawyers at Gibson, Dunn & Crutcher claim that customers signed off on updates to the phones iOS software, which were designed to avoid spiking electrical demands on aging lithium ion batteries to avoid sudden shutdowns.

“While Apple acknowledged that it could have communicated better about the performance management feature, its warranty has long informed customers that batteries are consumable goods with a limited lifespan,” the Gibson Dunn lawyers wrote in a motion to dismiss the first six causes of action of the plaintiffs’ consolidated complaint. “Software companies may offer their users updates without liability for trespass and computer abuse.”

On top of the arguments against the claims themselves, Apple’s lawyers are taking aim at some of the plaintiffs the 39-lawyer plaintiff team appointed to oversee the multidistrict litigation, particularly non-U.S. citizens and those who own the throttled phones abroad.

“This court should reject plaintiffs’ counsel’s attempt to make this the first worldwide consumer MDL in history,” Apple’s lawyers wrote. “There is no legal basis or precedent to expand this court’s jurisdiction to adjudicate the claims of customers from 40 foreign countries.”

Plaintiffs counsel, led by Joseph Cotchett of Cotchett, Pitre & McCarthy in Burlingame, California, and Laurence King of Kaplan Fox & Kilsheimer in San Francisco, have argued in turn that Apple’s motion to dismiss was “outlandish.” They note that the Electronic Communications Privacy Act and California’s privacy laws aren’t limited to behavior in the U.S. and that Apple’s devices around the world were affected in the same way.

“Apple admits that millions of its premium devices have a problem—the battery cannot handle the demands placed on it by the software (iOS), resulting in frequent ‘unexpected shutdowns,’” the plaintiffs lawyers wrote. ”Not only did Apple fail to disclose the defects in its marketing (and on the packaging of the devices), but Apple also created a scheme to further conceal the defects via the iOS updates containing undisclosed code that throttled device speed.”

The hearing, set for Friday morning before U.S. District Judge Edward Davila of the Northern District of California, will also tackle the plaintiffs’ request that Apple Inc. stop all communications with customers about offers of battery replacements unless they notify them about their right to sue. Apple has offered customers $50 credit refunds or discounted battery replacements since announcing in December that it slowed speeds for the affected phones.

In response, Apple’s lawyers have said they have offered a stipulation to establish that participation in the iPhone battery replacement program or credit doesn’t waive claims in the litigation, but that plaintiffs haven’t moved forward with that stipulation.

“Plaintiffs admit that Apple has not been communicating about the litigation right now; they want the court to compel Apple to speak about the litigation, as part of communications about a different issue,” the Gibson Dunn lawyers wrote. “Plaintiffs do not, and cannot, identify any communication here that requires correction.”


Read more:

Plaintiffs Lawyers Say Apple Is Forcing Legal Waivers on iPhone Throttling Customers

Judge Names 39-Member Plaintiffs Team to Lead iPhone Throttling MDL

Lawsuits Stack Up Against Apple After News It Slowed Older iPhones