SAN FRANCISCO (CN) — In a last-ditch effort to save a class action over Apple’s iPhone warranties, an attorney Wednesday pleaded with a federal judge to open up her client’s iPhone and take a look.
“This is critical whether the phone is new or not,” class counsel Renee Kennedy told U.S. District Judge William H. Orrick at the hearing on a motion for summary judgment. “I don’t believe the phone is new for a minute, and I think if we open it up, we’re going to find it’s not new.”
Former lead plaintiff Patricia Adkins sued Apple in November 2013, claiming it falsely represented that its AppleCare warranty plans guaranteed customers new parts and products for repairs and replacements.
Adkins was terminated from the suit in January 2015 and replaced by lead plaintiff Fabrienne English, who claims Apple gave her two replacement phones that immediately froze and shut down without warning, though none of the packaging indicated the devices were anything but new.
Orrick denied English’s motion for class certification in January, finding problems with her theories of liability, adequacy of counsel, and that little was offered to counter evidence that the replacement phones she received were actually new.
English appealed the class certification denial in April after the judge rejected her motion for reconsideration. That appeal is pending in the Ninth Circuit.
During the motion hearing Wednesday, Orrick said Apple records indicating English’s phone replacements were new are “uncontradicted by any specific, credible evidence.”
But Kennedy said her clients have proof that could rebut those claims: English’s old replacement phone that can be analyzed to test the veracity of Apple’s records.
“Not to allow the testing of the phone is very shocking,” Kennedy said. “We’re totally relying on Apple being transparent, and there’s not a need to do that.”
Kennedy said the phone test is a simple procedure that could be done in one day: Open it up and see if any of the inside parts have stickers or fingerprints indicating the device was made with refurbished parts.
Kennedy also pleaded with Orrick to let her depose an Apple store employee who allegedly denied her client a second replacement phone to which she was entitled, in February 2014.
But Kennedy said that even without that testimony, “we have enough evidence that we should be able to move on from this” to a jury.
As for damages, Kennedy said she would seek at least the cost of a new iPhone along with damages for Apple’s misrepresentation of its warranty plan.
Apple attorney Purvish Patel disagreed, saying damages would at most amount to half the cost of the warranty plan, or “$49 and some change,” based on English’s claim that she was denied a second replacement device.
Even that meager amount would depend on an Apple employee’s testimony contradicting evidence in the company’s transaction records, Patel added.
“If you’re balancing the amount of evidence here on the opposite side of potential testimony, I don’t see it going anywhere,” Patel said.
After about 45 minutes of debate, Orrick took the arguments under advisement.
Kennedy is based in Friendswood, Texas.
Patel is with Morrison Foster in Los Angeles.