Apple Fails to Neutralize ‘Breaking Bad’ Dispute

     SAN JOSE, Calif. (CN) – “Breaking Bad” fans can move forward with a class action over the way Apple sold the show’s final season on iTunes, a federal judge ruled.
     Apple sold customers a “Season Pass” on iTunes for the final season of the hit AMC show, which was advertised as including all current and future episodes of Season 5. The alleged one-time cost was $21.99 for high definition and $13.99 for standard definition, lead plaintiff Noam Lazebnik said in the lawsuit.
     Apple nevertheless then decided to break up the last season in half and charged customers who had already purchased the season pass another $22.99 or $14.99 for access to the second half, Lazebnik said.
     Lazebnik’s son-in-law, Jeremy Tor, contacted Apple to complain that Lazebnik should not have to pay more money for access to the second half of Season 5.
     Apple allegedly informed Tor that it considered the second half Season 5 to be a different season and that Lazebnik would have to pay if he wanted to watch the remaining episodes.
     Lazebnik’s lawsuit against Apple alleges breach of contract and violation of California’s Consumers Legal Remedies Act (CLRA) and Unfair Competition Law (UCL).
     Apple sought to dismiss the complaint for lack of standing, noting that it was Tor, not Lazebnik, who completed the transaction of purchasing “Breaking Bad” on iTunes using Lazebnik’s credit card.
     It was also Tor, not Lazebnik, who read and relied upon the company’s alleged misrepresentations regarding the Season Pass, the company said.
     U.S. District Court Judge Edward Davila rejected Apple’s motion on Aug. 29, finding it reasonable to infer that Lazebnik gave Tor permission to use his credit card, particularly considering the fact that the complaint states that Tor related Apple’s statements regarding the Season Pass to Lazebnik prior to the purchase.
     Whether Lazebnik was actually “exposed” to any statements made by Apple “appears to be a question of fact not suitable for adjudication at this stage of litigation,” the ruling states.
     “A jury could reasonably find that defendant had reason to expect that its representations would be transmitted to others, particularly in the case of statements made to a wide audience such as iTunes users,” Davila added.
     In a partial victory for Apple, Davila did dismissed Lazebnik’s contract and CLRMA claims.
     Although Lazebnik said his credit card was used to purchase the Season Pass, he did not produce any evidence of a contract.
     The CLMRA claim fails because the Season Pass is either software or a license, but not a “tangible chattel” or “good” within the meaning of the act.
     Lazebnik’s UCL claim will advance, however, despite Apple’s contention that Lazebnik did not allege that Apple made any explicit promises that purchasers of the Season 5 Season Pass would be entitled to “all 16 episodes” of the season.
     Apple also argued that a reasonable consumer would not believe that he would receive 16 episodes for the price of $21.99.
     Davila pointed out that Apple’s advertisement for the Season Pass did not include any explicit statement that consumers would only be provided with eight episodes rather than 16. It advertised it as “every episode in [Season 5] and at a better price than if you were to purchase it one at a time.”
     “Furthermore, the complaint cites a number of examples of consumer complaints posted on a discussion board on defendant’s website in which consumers appear to have believed their Season Pass purchase would include all 16 episodes of Season 5,” Davila wrote.
     Davila also rejected Apple’s argument that it was AMC that chose to market the last 16 episodes of Breaking Bad as Season 5 and thus should be responsible for Lazebnik’s injury.
     “The test is whether defendant’s representations were likely to deceive a reasonable consumer. Whether the likelihood of deception arose because of AMC’s conduct or defendant’s conduct is not relevant to this inquiry,” Davila wrote.

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