Class Denied in ITunes Double-Billing Fracas

SAN JOSE, Calif. (CN) - Apple need not face a class action for charging more than once for multiple iTunes downloads, a federal judge ruled, finding that each customer's particular allegations vary too much.

Robert Herskowitz and Phoebe Juel hoped to represent a class of customers who made repeated downloads of the same song from iTunes, only to discover that Apple charged them every time.

Juel said Apple charged her when she downloaded a song from Apple that she had already downloaded but could not locate on her computer. Herskowitz alleged he was charged more than once for the same product.

A federal judge consolidated their cases, which allege breach of contract, bad faith, violation of the Consumers Legal Remedies Act, fraud and unjust enrichment.

The plaintiffs filed a second amended consolidated complaint in May 2013 and moved to certify three classes in February 2014. The first class would include customers who were charged for a second download within 15 minutes of the first download, the second class would include those charged for a product they allegedly received in an improper format, and the third class would include members from the first two groups who also have an active e-Stores account.

U.S. District Judge Lucy Koh found Thursday that particular questions about each plaintiff in each class foreclose class certification.

She noted that it varies from customer to customer, for example, as to whether each plaintiff in the "15 Minute" class intended to buy the product a second time. Since their "breach of contract claim hinges on a question that can be resolved only on an individual basis, the court finds that common questions do not predominate," Koh wrote.

In asking the court to presume that a customer who downloaded two copies of the same product within 15 minutes did not buy the second product in a valid manner, the plaintiffs said "it is unreasonable to conclude that class members gave their assent to purchase and pay for multiple copies of the same product."

In addition to finding that the argument lacked any authority, Koh deemed the underlying presumption flawed to boot.

"The court, observes, however, that there are several reasons why a customer might want to make two purchases of the same product in a short span of time," the 32-page ruling states. "For example, the customer may have bought the product twice on separate devices, lacking the time, ability or desire to copy the first purchase from one device to the other. Alternatively, the customer might have deleted or otherwise lost the first purchase after the file downloaded."

Koh further noted that the proposed class would not exclude those who bought a product twice through two different e-Store accounts nor would it exclude those who bought songs for themselves and then again as a gift for someone else. In all these scenarios there is no question the customer wanted the second purchase.

Furthermore, "even if the court were to accept plaintiffs' proposed presumption, individualized inquiries would still be required," the opinion states.

Similar logic undermines the bid to certify other classes and for other claims, Koh said, noting, for example, that "the resolution of CLRA claims in this case will likely involve numerous individual questions that will overwhelm the common issues."

"This is because there is no evidence that Apple has a common, let alone uniform, or 'blanket,' practice of denying refunds to customers who are charged twice for a single product," Koh added.

Juel's lead attorney, Christopher Land of the Law Offices of John Kithas, declined to comment on the ruling.

Herskowitz is represented by Joseph Tabacco Jr. of Berman DeValerio, who did not reply to a request for comment.

Apple is represented by Penelope Preovolos of Morrison & Foerster, who also did not return a request for comment.

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