Judge Won’t Certify Class in Apple False Advertising Suit

SAN FRANCISCO (CN) — A federal judge refused Tuesday to certify a class of consumers who claim Apple used false advertisements to trick them into believing their data would be secure on iPhones and other Apple devices.

U.S. District Judge Jon Tigar found little evidence to support claims that Apple led a “pervasive” marketing campaign on data security to influence consumers.

“Having now reviewed the body of evidence offered by plaintiffs in support of class certification, the Court finds they have failed to demonstrate that Apple’s privacy-related marketing was sufficiently extensive to support an inference of class-wide exposure,” Tigar wrote.

The consolidated class action began in 2013 when lead plaintiff Marc Opperman sued Apple and a host of app makers, in one of two lawsuits filed in Texas and California. Opperman claims Apple touted its commitment to privacy while allowing apps to download users’ contacts data without consent.

Apps must ask for permission to access a user’s contacts to inform them which contacts also use the app. But some apps also downloaded contacts data to external servers without permission, including email addresses and birthdays, according to the lawsuit.

Apple has changed its policies and security features to prevent the unauthorized downloading of data.

Opperman says Apple misrepresented its “curated” and “sandboxing” security features for its devices. It claimed its app store was curated to meet privacy standards and that a sandboxing feature would prevent apps from access to outside data without consent.

But Tigar found the plaintiffs failed to show that consumers “saw, heard, or relied upon” those representations on a class-wide scale.

“Plaintiffs offer only a handful of statements per year, contained in ‘buzz marketing’ materials, press releases, statements in investor calls, and similar materials. These materials were not widely disseminated to consumers, and they do not support plaintiffs’ claim that Apple’s privacy claims were ‘widely publicized and disseminated through the mainstream and non-traditional media,’” Tigar wrote.

He also rejected the plaintiffs’ theory that Apple orchestrated a “Big Tobacco-style” long-term ad campaign touting privacy and data security on the same scale as the cigarette industry’s push to misinform the public about the health effects of cigarettes.

“Plaintiffs here have not established an equivalent, pervasive campaign by Apple that it valued consumer privacy,” Tigar wrote.

But Tigar told Apple it could not counter the allegations by citing a privacy policy that warned users about its privacy limitations. Tigar found it was unlikely most users read that policy, just as it was unlikely that most consumers were exposed to the “handful of marketing materials” cited by plaintiffs.

“Here, Apple attempts to have its cake and eat it too,” Tigar wrote. “If Apple wants to show class members were exposed to countervailing information, it must show they actually read it.”

Additionally, Tigar found the plaintiffs’ proposed damages model inadequate because it sought to estimate the value of data privacy generally, instead of the value of the sandboxing and curated security features that Apple was accused of misrepresenting.

Tigar refused to certify a class of consumers to pursue false advertising claims against Apple. However, in 2016, he did certify a separate class of 480,000 Apple device users to pursue claims that Apple distributed “invasive versions” of the Path app, which allegedly downloaded users’ contacts without their knowledge or consent, from November 2011 to February 2012.

Tigar this month tentatively approved a $5.3 million settlement with several of the accused co-defendant app makers in this case, including Twitter, Instagram, Yelp, Foursquare, Foodspotting, Gowalla, Kik Interactive and Kong Technologies, which acquired the social media app Path.

In the present case, class attorney David Given with Phillips Erlewine Given & Carlin in San Francisco did not immediately a return phone call seeking comment Tuesday afternoon.

Apple attorney Robert Hawk, with Hogan Lovells in Menlo Park, deferred comment to Apple media relations, which did not immediately return a phone call and email seeking comment Tuesday.

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