Fight Over AT&T IPhone Restrictions Rages On

(CN) - IPhone customers urged a federal judge to let them pursue a class action that claims Apple and A&T illegally restricted their choice of phone carrier.

Lead plaintiffs Paul Holman and Lucy Rivello filed a federal complaint against Apple and AT&T Mobility in October 2007, claiming the companies illegally controlled consumer choices by forcing iPhone buyers to sign up for AT&T. A San Jose federal judge certified their class action last year.

AT&T and Apple said earlier this month that the lawsuit should be arbitrated and the class should be decertified because the "entire theory rests on a single, unified course of conduct."

"Plaintiffs have wrapped themselves for years in the service contract and in allegations of a single ATTM-Apple conspiracy to survive motions to dismiss and obtain class certification," according to Apple's motion to compel arbitration. "They cannot run from those theories now."

The plaintiffs filed new briefs fighting the motions to decertify the class and compel arbitration.

The iTunes Terms of Service agreement requires plaintiffs to bring their claims against Apple in court, and not by arbitration, according to one brief authored by attorney Rachele Rickert. Because of this, Apple has no basis to demand individual arbitration.

Rickert also argued that Apple waived its right to arbitrate "by actively and exhaustively litigating this case in this court and in the Ninth Circuit for the past four years without asserting any right to demand individual arbitrations with plaintiffs."

The class used a similar argument in a second brief that defends its right to sue AT&T Mobility (ATTM).

"When ATTM chose to litigate this case in court rather than pursue its appellate rights under the FAA [Federal Arbitration Act], ATTM abandoned any right it may have had to demand individual arbitrations with plaintiffs, and it may not move again to compel arbitration after years of vigorous litigation in court," Rickert wrote.

The plaintiffs also opposed Apple and AT&T's motion to decertify the class, claiming the motion "fails for the same reasons that its motion to compel plaintiffs to arbitrate fails."

"Apple's argument that decertification will be required even if the court does not compel plaintiffs to arbitrate their claims against Apple is nonsensical," Rickert wrote.

"The class definition includes the requirement that class members enter into a two-year service agreement with ATTM merely as a convenient way to identify which iPhone customers were participants in the aftermarket and thus harmed by defendants' wrongdoing."

Rickert says the issue of what customers knew or didn't know about Apple and AT&T's "secret agreement to monopolize the iPhone voice and data aftermarket can be determined on a class-wide basis."

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