Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘Apple’

“Have You Tried Rebooting?”

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?

Read On…

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The danger of talking to plaintiffs’ attorneys? The Nano class action

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).

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Letter from Apple lawyers makes little girl cry

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).

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Steve Berman sues Apple over iPods

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.

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Apple sued over iPod nano scratches

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).

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The Overlawyered iMix

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:

Read On…

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The Graphing Calculator Story

It’s heart-warming enough to be a Christmas tale:

Greg and I still had to sneak into the building. The people in charge of the PowerPC project, upon which [Apple’s] future depended, couldn’t get us badges without a purchase order. They couldn’t get a purchase order without a signed contract. They couldn’t get a contract without approval from Legal, and if Legal heard the truth, we’d be escorted out of the building.

Ron Avitzur tells the Graphing Calculator Story: engineers conspire to evade the lawyers and suits and create killer app software (via McIrvin); related Slashdot thread.

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Induce alarm

“When the lawyers at EFF [Electronic Frontier Foundation] first sat down and asked ‘Whom could we sue under the Induce Act [the Inducing Infringements of Copyright Act (PDF), proposed by Sens. Hatch, Daschle, Leahy, Boxer and others] if we were an abusive copyright holder?’ the answer was clear: pretty much everybody. Playing the devil’s advocates, we knew we could draft a legal complaint against any number of the major computer or electronics manufacturers for selling everyday devices we all know and love — CD burners, MP3 players, cell phones — and that with that complaint, we could file a lawsuit that would survive any attempt to dismiss it before trial, costing the targeted company up to $1,000,000 per month in legal fees alone. The Induce Act is a nasty, brutish stick in the hands of the wrong plaintiff.” (“Prelude to a Fake Complaint”, EFF website, Jun. 24). See Bryan Chaffin, “EFF Demonstrates How To Use New Law Against Apple, iPod”, Mac Observer, Jun. 25. For more on the bill, see Legal Reader, Jun. 10.

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