For something like two decades, your computer firm has been known for the cult-like devotion of its followers and its single-button mice, so when it comes time to introduce a two-button mouse, how to placate the hurt feelings of those who’ve spent 20 years arguing that the One Way is One Button? First, it helps if the new device doesn’t actually appear to have two buttons—maybe they won’t notice?—and second, you give it a slightly-deprecating-yet-somehow-still-smug name: “Mighty Mouse” is the all-too-obvious choice and the one that Apple inc., in fact, made.

Don’t assume, just because this is Overlawyered, that Apple is being sued by CBS, which owns the rights to the cartoon superhero—too obvious.

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Was the litigation a factor? The UK’s Daily Mail is reporting that Apple is developing a way for future iPods and iPhones to turn down volumes automatically after a certain period of use to protect users from endangering their hearing. One columnist predicts that the feature if implemented “will be hacked in a matter of minutes” by users who don’t want the protection. (Christopher Breen, “Auto-volume may be a turn-off for some”, MacWorld, Dec. 26).

Everyone else is getting publicity by filing suits over the iPhone, so they may as well too: “Environmentalists have threatened to sue Apple if it does not make its iPhone a “greener” product or tell consumers of the toxins allegedly used in the device’s manufacture. The Center for Environmental Health (CEH), a campaign group based in Oakland, California, said that it would launch legal action in 60 days unless Apple took action.” (Rhys Blakely, Apple faces legal threat over ‘toxic’ iPhone”, Times Online (U.K.), Oct. 17; InfoWorld; ArsTechnica). The CEH is invoking California’s ultra-liberal Prop 65 toxics-warning law, on which see posts here, here, here, etc.

• Yet another Apple suit, this time on behalf of user who wishes iPod and iTunes were more compatible with other song vendors and devices [Miami Herald/ILR]


• Fairview Heights, Ill. alderman says town was “deceived” into serving as lead plaintiff in class action against Orbitz, Priceline, Expedia and other online travel firms [Madison County Record]; More: here and here


• “Evasive”, “bad faith”: federal judge slams health insurance lawyers for stalling suit by docs [Phila. Inquirer; Plus: their side @ Law.com]


• Plastic water guns draw ire of politicos in Albany, N.Y. [Times-Union via Nobody's Business]


• High lawyers’ fees said to be pricing middle class Canadians out of the justice system, but it must be said the numbers cited sound pretty low by U.S. standards [Maclean's]


• Flickr makes it easy to grab and reuse strangers’ photos, and legal sorrows ensue [NY Times]


• Jack Thompson tries to get federal judge Jordan removed from hearing one of his lawsuits against the Florida Bar [GamePolitics.com; & yet more]


• New at Point of Law: trial lawyers deem “slanderous” ads featuring fictional law firm of Sooem, Settle & Kashin; Business Week cover story on wage/hour suits; John Edwards comes out again for “certificate of merit” med-mal reform; replace your old kitchen cabinets and get lead paint companies to pay; and much more;


• Some New York lawmakers think secondhand smoke is just as bad for you as actually being a smoker [Siegel via Sullum; more on recent smoking bans, complete with culturally-sensitive hookah exception]


• “Disability Math” video explores paradox of how employment fell among handicapped after enactment of the ADA [Dubner, Freakonomics; more (now with more direct Freakonomics link)]


• Class-action lawyers sue over kids’ Pokémon card trading craze, claiming it’s illegal gambling [Eight years ago on Overlawyered; Milberg Weiss angle here]

Queens, N.Y. resident Dongmei Li has sued the tech giant, along with AT&T and Steve Jobs, over the $200 slash in the price of the much-ballyhooed cellphone less than two months after its launch. Among her many claims are that Apple unfairly deprived her of the chance to sell her early-bought iPhone at a profit, and that the $100 store credit Apple offered early buyers was inferior to the full refund they could have obtained if they decided they didn’t like the product right away. (Kasper Jade, “Apple, Jobs, AT&T sued over iPhone price cut, rebates”, AppleInsider, Sept. 28; Tom Krazit, “One More Thing”, CNet, Sept. 28; more comments at TechMeme; Katherine Mangu-Ward, “When Bad PR Happens to Good Economics”, Reason, Sept. 14). At the Apple Insider Forums, commenter Ken Laws quotes a passage describing another part of the suit:

“The lawsuit goes on to accuse Apple, Jobs and AT&T of forcing customers into 2-year service agreements with AT&T and imposing hefty $175 termination fees.”

I’ll never forget that terrifying night. I was just sitting at home, minding my own business, when Steve Jobs and a platoon of AT&T thugs burst through my front door…. Hovering helicopters and troops with vicious, snarling dogs kept the damned in line as we waited, huddled in fear, knowing our only choices were to sign the two year contract or be put up against the back wall of the Apple Store and shot.

I survived that night. But I know a lot of people who didn’t. I see their faces whenever I get a call on my iPhone, because I screwed up my contacts list and all the portraits are wrong.

Earlier iPhone suits: Jul. 30, Sept. 25, and (trademark claim): Jan. 10.

I wonder what the quickest time between the introduction of a consumer product and the introduction of the consumer fraud class action lawsuit is. Apple’s new iPhone was released on June 29, 2007; last Thursday, the first — as far as I know — class action lawsuit was filed. (I’m sure that this doesn’t qualify as the fastest consumer lawsuit, but I am curious.)

A Chicago-area resident, Jose Trujillo, is suing Apple and AT&T under Illinois’s “consumer fraud” law; the typo-filled complaint claims that the defendants failed to disclose to consumers that the phone’s battery — like that of the iPod — could only be replaced by Apple, and not the user. The suit also alleges that the battery only lasts for 300 charges and will have to be changed annually; given that Mr. Trujillo has had the phone for a maximum of a month, and that each charge lasts for several days, it is unclear how he could possibly know this or have a good faith basis for alleging it.

The suit contains the usual features of bogus consumer fraud litigation, such as claiming “fraud” without identifying any false statements, but instead by alleging a failure to disclose information that was widely known; attempting to represent consumers who are perfectly happy with the product; suing based on hypothetical damages that may or may not be incurred in the future; and claiming to be an unhappy consumer, but failing to act as an ordinary consumer would — e.g., by returning the product for a refund.

Incidentally, I just got a new cell phone (not an iPhone) last week. I checked the box; nowhere does it disclose that the battery won’t last for an infinitely long time, or that I will have to pay for a new one when it does die. Also, I’m pretty sure the car dealership that sold me my SUV never mentioned that it required a substance called “gasoline” to run, and that I would need to keep buying this substance. I wonder if I’ve got a case.

As an addendum, the trial lawyer in this case, Larry Drury, is no stranger to ludicrous “consumer” litigation; he played a leading role in the bogus Million Little Pieces class action suits. (Covered on Overlawyered in many posts). And he once sued Arista Records over the Milli Vanilli “scandal.”

Two manufacturers of digital rights management (DRM) systems, Media Rights Technologies (MRT) and BlueBeat.com, “have issued cease and desist letters against Apple, Microsoft Real and Adobe for not including their technological protection measures in products like Windows, iPod and Flash Player.” (TechnoLlama, May 12; Louisville Music News, May 16, whose headline we have borrowed). Explains Podcasting News (May 12):

The companies are using an unusual interpretation of the Digital Millenium Copyright Act (DMCA) to make their case. The DMCA, signed into law by President Clinton in 1998, makes prohibits the manufacture of any product or technology that is designed for the purpose of circumventing a technological measure which effectively controls access to a copyrighted work or which protects the rights of copyright owners. According to the firms, mere avoidance of an effective copyright protection solution is a violation of the DMCA.

Freedom to Tinker (May 15) says that if you believe the companies’ legal claim is sound, “I have a bridge to sell you — and let me assure you that you’re legally compelled to buy it.”

So the AP reports. Earlier press reports indicated that the two were close to a deal, but one suspects that the failure to close it before the sensation created by the announcement at MacWorld led Cisco to raise its price. Overlawyered readers anticipated the story Dec. 18. (Update: Ashby Jones has more detail.)

Further update: Cisco responds in the comments. NB that “raise its price” above doesn’t necessarily mean “money,” but can include other valuable consideration—such as access to Apple’s proprietary technology.

December 18 isn’t a typical day for new-product announcements, but Linksys announced a new VOIP phone today. The timing makes more sense when one realizes that Apple was about to announce an iPod-compatible cell phone in January, a product that was widely called “iPhone” in the press, but that Linksys owned the “iPhone” trademark since 1996. But without a product using the trademark, Linksys would not have been able to hold on to the name. By preempting the name, Linksys will either be able to extract rents from Apple on a now valuable trademark or force Apple to spend millions creating a new name for the product that doesn’t have the advantage of the brand extension from Apple’s “iMac” and “iPod.” (“The Working Guy” blog; Gizmodo blog (and followup ) (h/t WF)).

“The big question here, of course, is whether Apple’s attempt to own the word ‘pod’ means that we should pick another name for ‘podcasting’ before it’s too late.” (Wired “Listening Post”, Sept. 28). More: Slashdot, The Inquirer, Russell Shaw on ZDNet, and lots more.

Apple—usually the victim of plaintiffs’ attorneys (e.g., May 23; Feb. 2; Oct. 27; Aug. 9, 2005, etc.)—has decided to glorify one, Mark Lanier, with a three-page puff piece co-advertising Lanier and Mac computers. The story falsely portrays the multi-millionaire as a “David” going up against a Goliath, falsely claims he won two Vioxx cases (one of his “wins” was for fifteen dollars), and falsely claims he received a $250 million “judgment” in a Vioxx case (not so). For more on how Lanier really operates, see today’s Point of Law post and Point of Law’s Vioxx litigation coverage. (h/t W.F.)

A few quick thoughts about the massive Dell battery recall:

The relatively new Restatement (Third) of Torts: Product Liability proposes some modifications of the common law duty to warn after a sale (as opposed to a duty to warn — i.e., on the packaging — before a sale).

Of course, a manufacturer remains strictly liable for any damages proximately caused by a manufacturing defect before a post-sale warning or recall is announced. Under the Restatement (Third), Section 11, there is still never a “duty to recall,” unless imposed by the government.

Previously, the determination of whether there was a “duty to warn after the sale” was no different than any other test for duty: Did the benefits of a post-sale warning outweigh the costs?

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An education in how class actions start: Jason Tomczak says that he posted on his blog about the iPod Nano, and was contacted by plaintiffs’ lawyers seeking to bring a lawsuit against Apple. Tomczak says that he told the lawyers he wasn’t interested in suing, but, nevertheless, the law firms of Hagens Berman and David P. Meyer and Associates filed suit naming Tomczak as the lead plaintiff. Two days later, they realized their mistake, and sent Tomczak a proposed attorney-client retainer, which Tomczak refused to sign.

Meanwhile, worldwide publicity named Tomczak as lead plaintiff, subjecting him to ridicule. (Our Oct. 27 post mentioned only Hagens Berman.)

At some point, Tomczak hired lawyers and filed a lawsuit against the law firms; his lawyers don’t seem to have explained to him the repercussions of challenging the plaintiffs’ bar, however, and, after what he calls a harassing deposition, the law firms have filed counterclaims against Tomczak, seeking their fees for defending themselves. Jason Tomczak now asks to clear his name: are there reporters out there who want to cover this David v. Goliath story? (See also Milt Policzer, “Who Needs Plaintiffs”, Courthouse News undated).

In California, nine-year old Shea O’Gorman wrote a letter to Apple CEO Steve Jobs suggesting changes that she thought might improve the iPod. The letter she got back from an Apple senior counsel, advising her of the company’s policy against considering unsolicited ideas, was brusque enough to reduce her to tears. Following bad publicity, Apple apologized to Miss O’Gorman and says it is revising its policies on communicating with children. The policy against considering unsolicited ideas, of course, “is designed to protect Apple from future patent lawsuits should submitted ideas ever be used.” (”Apple legal makes little girl sob”, MacWorld UK, Apr. 17).

Specifically, Seattle attorney Steve Berman (Nov. 24, 2003 and links therein), on behalf of a Louisiana man, accuses Apple of selling a “defective” product because it can cause hearing loss if one turns up music to maximum volume using headphones. The lawsuit, filed in San Jose, seeks class action status, even though each member of the putative class will come to the table with different pre-existing knowledge about audio safety and different usage patterns for their device. (Many iPod users don’t use headphones at all.) Each iPod comes with a warning that “permanent hearing loss may occur if earphones or headphones are used at high volume,” but, of course, the lawsuit alleges that the warning is insufficient. The plaintiff, John Kiel Patterson, doesn’t even claim that his hearing has been damaged, thus making it a typical “Harm-Less Lawsuit.” (Dan Goodin, AP/Yahoo, Feb. 1, h/t W.F.)

Update: a pdf copy of the complaint.

Class-action lawyers including Seattle’s Hagens Berman (Feb. 16, Mar. 6 and Mar. 29, 2004; Nov. 24, 2003; Sept. 9-10, 2002, etc.) sued Apple last week in the name of buyers of the popular iPod, claiming the nano screen on the device tends to scratch easily and become unreadable. They are seeking remedies including a refund of moneys paid “plus a share of the company’s profits on the music player’s sales”. (”Nano Owners Sue Apple”, Red Herring, Oct. 20; Ina Fried, “Suit filed over Nano scratches”, CNet, Oct. 21).

On August 25, a San Mateo County court will hold a fairness hearing over a nationwide class action settlement over iPod batteries that will provide $50 coupons for class members and $2,768,000 in fees for the attorneys. Because the lawsuit was filed before the Class Action Fairness Act took effect, the state court does not have to comply with the new federal requirement that attorneys’ fees reflect the actual redeemed value of the coupons, rather than the face value, one of many sensible provisions of the Act that trial lawyers, the New York Times, and dozens of prominent Democrats (including leading 2008 presidential contenders Hillary Clinton, John Kerry, and John Edwards) opposed. In honor of this fairness hearing (as well as in honor of a pending lawsuit alleging that Apple is monopolizing the music market by selling music in a proprietary format), Overlawyered presents the Overlawyered iMix:

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That’s the disclaimer buried in small print toward the bottom of Apple’s page explaining its new music-playing gadget. It isn’t, of course, a serious disclaimer, merely serving to call attention to the device’s minute dimensions (smaller than some packs of gum) and stir up buzz (as with this very post).