Judge Rips Attorney, Won’t Certify Apple Class

SAN FRANCISCO (CN) - A federal judge had harsh words for an attorney in refusing to certify a class of Apple customers who claim the company misrepresents that replacement iPhones provided under extended warranty are new, though many are "refurbished."

Lead plaintiff Fabrienne English sued Apple in 2013, claiming that after her son cracked his iPhone screen, the company provided two replacement phones that immediately started freezing and shutting down without warning, although none of the packaging indicated that the devices were anything but new.

She sought certification of a class of purchasers of AppleCare+ and AppleCare Protection Plan - extended-service plans for iPhones - and damages for false advertising and unfair competition.

U.S. District Judge William Orrick held a hearing on the motion in October 2015. On Tuesday he denied class certification, finding problems with English's theories of liability and with adequacy of counsel.

"Evidence regarding the theoretical likelihood that English's replacement iPhones would be refurbished does little to counter evidence that the replacement devices she actually received were in fact new," Orrick wrote. (Italics in original.)

English's theory that Apple employees misled customers during sales interactions also fails, Orrick said, because she "has not presented the sort of allegations and evidence necessary to certify a class based on alleged oral misrepresentations."

"There is obviously some evidence here of consumers being told that all replacement devices under the service plans will be new," he said. "But without evidence of a common course of conduct to this effect, English cannot establish predominance."

English's claim that Apple fraudulently omits that replacement iPhones could be refurbished fails on the same grounds, Orrick said, "because English has not shown that the way in which Apple employees talk about the service plans is sufficiently uniform to support an inference of classwide reliance or materiality."

Furthermore, he said, the record "strongly indicates" that two former plaintiffs in the suit purchased AppleCare plans at their attorney's direction for the purpose of initiating the lawsuit, and that evidence and the attorney's prior relationship with those plaintiffs "continue to taint this case."

The attorney's "pattern of improper litigation conduct has caused unending and unnecessary distractions and delays in this litigation, prejudicing the putative class and unduly burdening Apple," Orrick found.

"Moreover, this case has always been and continues to be class counsel's; she is its source and driver, and neither the dubious manner in which this litigation commenced nor the manifestly incompetent manner in which it has been conducted are cured at this juncture by yet another new co-counsel," he said.

Neither side's lead counsel responded to emailed requests for comment Wednesday afternoon.

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