Attorney Discusses Lawsuit Over iPod nano Scratches
TMO Reports - Attorney Discusses Lawsuit Over iPod nano Scratches
by , 2:10 PM EDT, October 27th, 2005
Patrick Warner, an attorney with David P. Meyer & Associates, told The Mac Observer on Thursday that a "large number of users" have been affected by the problem with iPod nanos scratching easily. He added: "We've been inundated with calls [since the court filing last week]."
Mr. Warner's law firm is handling the case with Hagens Berman Sobol Shapiro LLP, which he noted has also received many phone calls. He said that the two firms teamed up to handle the case after being contacted by various people about the problem. "We had people here doing research on it and looking into the nano and scratches," he recalled.
Mr. Warner acknowledged that Apple has responded to the problem of iPod nano screens cracking easily but has yet to rectify the issue with easily-scratched displays. The cracked screens were the result of a manufacturing problem affecting a small number of users, according to Apple, but this one "seems too widespread to be a defective batch," Mr. Warner said. "We haven't ruled that out, however."
He added that the services of an expert who's knowledgeable about electronics manufacturing have been retained. That person will help the law firms determine what could be causing the problem and will assist them in court.
A Closer Look at the Filing
Last week's filing included quotes from many online message boards, blogs and other sources where the problem was discussed, including Wall Street Journal technology columnist Walt Mossberg. While Mr. Mossberg didn't mention scratching in his review of the iPod nano, he said in a recent column that the nano he bought for himself became scratched very easily under normal conditions, a problem he hasn't seen with other iPod models.
"Like the previous iPods I've owned," he wrote, "my nano has never been sheathed in a case ... This is also how I carry my Treo smart phone, whose screen is free of scratches after much longer and harder use than the nano's. My nano hasn't been dropped or scraped. Yet it is badly scratched."
Contacted for comment about the case, Mr. Mossberg replied via e-mail: "I have nothing more to say about the nano beyond what I wrote in my columns."
He added: "However, I want to stress that I have absolutely nothing to do with this lawsuit, and I don't endorse it. I wasn't informed of, or consulted about, its filing, and haven't communicated in any manner with the plaintiffs or their lawyers. I haven't even read the complaint and had no idea I was quoted in it until you told me."
TV Ads and Profits
The lawsuit filing also claimed that "in a television advertisement broadcast throughout North America, prior to and immediately following the release of the nano, Steve Jobs is shown using the nano and specifically removing it from his pocket." However, Apple did not advertise the nano at all prior to its introduction, and the company has never featured Mr. Jobs in a commercial.
When asked about this, Mr. Warner was unsure of the source of that comment, saying: "I don't know if it's an ad that replayed the introduction [of the iPod nano] or if it was a TV news replay of that event." Mr. Jobs did remove the nano from his jeans pocket when he introduced it at a press event, an action that was very likely replayed many times on news broadcasts that week.
The lawsuit filing was also notable for its demand of a percentage of profits from iPod nano revenue, on top of compensatory and punitive damages, attorneys' fees, the cost of the suit and more. While some have felt that this was excessive, Mr. Warner said that "it's a typical way to assess damage. It's an alternative measure. The complaint says we're asking for both [the percentage of profits and damages], but it's an alternative."
Next Steps
Ultimately, Mr. Warner said that he would be satisfied with an outcome "that takes care of the problem," whatever that outcome may be. With Apple noting during its recent corporate earnings call that it sold one million iPod nanos during the three weeks after its release, the company has likely shipped at least another million units since then. Mr. Warner wouldn't speculate what percentage of them are prone to the scratching problem, but he characterized the potential class that will fall under the bounds of the lawsuit as "a large" one.
Apple's next step is to answer the complaint, which could include a motion for dismissal, according to Mr. Warner. If the company does issue such a motion but it's not granted, then the court handling the case will set up a plan for proceeding from there. The Mac Observer will continue to monitor the case and report new findings as they come to light.
Apple did not respond to a request for comment. The company never offers statements regarding pending litigation.
Observer Comments
Thu Oct 27, 2005 3:01 pm Subject: iPod Nano - scratched LCD screen
QUOTE:
"my nano has never been sheathed in a case ... This is also how I carry my Treo smart phone, whose screen is free of scratches after much longer and harder use than the nano's. My nano hasn't been dropped or scraped. Yet it is badly scratched."
--------------------
Doesn't he know that Treo phone has touch screen? If a touch screen could be easily scratched, it'd be a HUGE problem. iPod Nano has a standard LCD screen with perhaps a plastic layer over it for protection. One should have the common sense about plastic. Perhaps these people should bring a class action law suit to all notebook manufacturers since the LCD screen can be scratched easily. Or should someone bring up a counter-suit to the idiotic iPod Nano users?
My Motorola V220 cell has a plastic exterior display. This phone has been in my Levis pocket for a year. It has been abused with other objects in the same pocket. It is covered with minor scratches but in no way detract from the display.
I left the plastic sheathing covering my Nano's screen in place. I am afraid to remove it after I heard all the whining.
It should work as well as my cell, if not, I beleive it is defective. I do NOT want to test my Nano, so it will stay protected.
The reason this lawsuits needs to happen is because the Nanos are not as scratch resistent as all other Ipod models, therefore Apple should either tell the consumer before hand that the product is prone to scratches or make the product as scratch resistent as all other models.
My Nano has so many scratches on it that it looks 5 years old and it has been in a case for the only 3 weeks that I have owned it.
What obligation does Apple have to make the Nano as scratch resistant to other iPods? Why should they be forced to make their thinnest iPod yet as sturdy as the more hefty models?
Let the buyer beware! If you pay $250 for something, protect it or it'll get damaged. If you value your car's paint job, park it in the garage!
Thu Oct 27, 2005 6:54 pm Subject: They don't, but maybe they should
QuoteGuest wrote:
What obligation does Apple have to make the Nano as scratch resistant to other iPods? Why should they be forced to make their thinnest iPod yet as sturdy as the more hefty models?
Let the buyer beware! If you pay $250 for something, protect it or it'll get damaged. If you value your car's paint job, park it in the garage!
Apple doesn't have a legal obligation to make the Nano as scratch resistant as the other models. However, it is hard to get rid of a bad reputation or even an urban legend. Some other MP3 player is going to use the tag line, "Our player will not scratch during ordinary use", and then Apple will be up a creek
I don't have any experience with a Nano other than messing with some in the stores and trying to scratch it with my fingernail. I couldn't make, nor did I see any deep gouges on these floor models, though there was plenty of shallow ones. The facts and numbers in this case remain to seen. Maybe it was a bad patch of plastic that didn't have enough hardener.
One writer talks about parking a car in a garage if you value the paint job. However, what if you washed your car with soap and water, using a soft sponge. Then you realize that your paint is rubbing off or scratching. You would be mad and crying to the car dealer or auto company.
Another writer talks about LCD screens on Laptops. If you notice, companies are puting better screens on to prevent scracthing. Also, I don't put my open laptop in my pocket or my computer bag.
My point is, minor scratches over time, puting it in and out of my pocket is ok. Major scratches by wiping it with iKlear and the blue wipe, unacceptable.
Fri Oct 28, 2005 1:05 am Subject: The post about iKlear …
and blue wipe made me feel like trying an experiment with my black nano. I took my iKlear spray can and a blue wipe and checked the nano before and after wiping it. basically, the whole thing turned out to be a no-event: the nano was cleaner than before, but not any more scratched. I then did that on the chrome backing, with the same result … then I compared the front and back of the nano, and realized that the front IS a little more scratched than the back, which I would expect, as obviously plastic is not quite as scratch-proof as chrome …
Then, I checked my iPod photo. The screen has less scratches than the nano's, but that's to be expected considering the difference in the way I use them, and particularly in view of the fact that the larger one has been in a case most of its life … then I looked at the back. Here again, the back of the iPod photo has less scratches than the nano's …
My conclusiion: my nano is more prone to scratches because I manhandle it more than the other one and I didn't have the good sense to set it in a case.
I've had my nano since the first week after the Apple event and I've been showing it around to nearly anybody I meet, which I haven't done with the other one, so it does get a much larger degree of abuse … and it's still perfectly usable, scratches and all. You have to turn off the backlighting to see the scratches. 
QuoteOsaka wrote:
QUOTE:
"my nano has never been sheathed in a case ... This is also how I carry my Treo smart phone, whose screen is free of scratches after much longer and harder use than the nano's. My nano hasn't been dropped or scraped. Yet it is badly scratched."
--------------------
Doesn't he know that Treo phone has touch screen? If a touch screen could be easily scratched, it'd be a HUGE problem. iPod Nano has a standard LCD screen with perhaps a plastic layer over it for protection. One should have the common sense about plastic. Perhaps these people should bring a class action law suit to all notebook manufacturers since the LCD screen can be scratched easily. Or should someone bring up a counter-suit to the idiotic iPod Nano users?
Did you even read what Mossberg said? He said the Treo DOESN'T scratch, even though it has a touch screen!
I don't expect to get any money out of this lawsuit but it (like the battery lawsuit) improves future products I do believe it will be useful. The nano really does scratch easily.
I have a black model. It has numerous scratches on it, althought not enough to make the screen actually unreadable. The entire front of the unit is scratched, including the screen. The scratches on the screen are micro-scratches, very small, that you cannot feel with your fingernail. Althought they do not make the screen unreadable, if you catch it in the right light, at the right angle, the print becomes quite blurry, causing you to change the angle.
My daughter bought one the following week, and her's has not scratched nearly as bad as mine.
The interesting thing is that I have not noticed any NEW scratches on it since the first couple of days. All the disfiguring scratches got there in the first couple of days, even tho I've not really changed the way I carry it (in my front pocket, with the face turned towards the shirt.
Maybe it really IS due to a failure in the curing process?
I got one a week ago. After putting it in my jeans pocket and walking half a mile there is a large area of scratching going right across the screen. The scratches are very clearly visible although they don't make it impossible to read the screen. I have been keeping it wrapped up until I can get a case.
If it scratches this easily then a case should be provided.
For better and for worse.
What I mean is:
I buy a watch from Rolex, the face gets scratched. Maybe from my keys, maybe from tossing it on my dresser, maybe from leaving it in a silk lined case that could NEVER scratch the face of a watch.
But, regardless of which scenario - lets pretend my watch is now scratched. Would anyone here honestly attempt to return their Rolex for this reason? And further more do you believe if it was beyond their return period of their sales policy - does anyone actually think they'd take it back?
Argumentative people will answer "yes" to both claiming a "good rep. is important, customer service, blah, blah." But in reality its unrealistic to believe that *most people* i.e. the reasonable man standard - would return the watch or expect that Rolex would replace it.
So why do we expect so much of Apple that we wouldn't expect of any other company? Eh, ton of reasons - but the bottom line is people do and that's why we talk in forums endlessly about their products, their vaporware, their possible faults, etc ...
There is a 10-14 day return policy, if ya buy something and it doesn't match your expectations - there ya go. The guy who started all this says he knew he had to sue when they charged him a restocking fee, oh you mean the fee clearly spelled out in the sales policy and the receipt you were given?
That higher standard is why people sue Apple over batteries only lasting XXXX period of time and music player screens scratching. Man, ya know the battery in my ThinkPad is about 36 months old and doesn't hold much of a charge - I'll be back later I am going to sue IBM and Leveno 
As Always,
The Bandit
Sat Oct 29, 2005 2:02 pm Subject: Apples to Oranges
Sun Oct 30, 2005 3:33 pm Subject: Rolex Comparison
Comparing the scratch resistance of an iPod to a Rolex is absurd at best. I have had to have the crystal replaced on my Rolex GMT Master II and it was more than a new 4 gig Nano. To expect that the Nano would come even close to the scratch resistance of a Rolex is assinine. I have a 15gig 3G ipod that I have had for three years now. A modecum of care and it is almost as good as new. My son, however, has treated his iPod with complete abandon and it shows. There have been a problem with the harding of the screens on an initial batch, but is it class action lawsuit worthy? I think not. It is just typical of the "it's not my fault" litigious society in which we live. What ever happened to personal responsibility?
Quotekevdo wrote:
Did you even read what Mossberg said? He said the Treo DOESN'T scratch, even though it has a touch screen!
I don't expect to get any money out of this lawsuit but it (like the battery lawsuit) improves future products I do believe it will be useful. The nano really does scratch easily.
The point was that the touch screen is TOUGHER, by design. Also, most PDA users get screen protectors for their devices. If you don't, you're inviting a dimmer, fuzzier display over time, especially if you use Graffiti, rather than a device with a keyboard.
Part of the problem has probably arisen from the popularity of the black iPod Nano. The outer surface is the same for both colors--the color is really on the BACK of that surface. However, when you scratch these high-impact plastics, the scratch will look white against a dark background, just like a scratch on a piece of glass. For that reason, when I ordered a new 5G iPod, I specified white.
alright, i have some friends who have 3rd generation ipods and they skate and snowboard with them all the time in their pocket and there are barely and scratches. with my new black ipod nano, all ive dones is put it in my pocket with nothing else and walked to school and it has and incredible amount of scratches. i either want my money for a cheap ipod or at least apple could make a more durable nano, who cares if was just a little heavier
It is easy to say buyer beware but I got the Nano for a birthday present Sunday, and within 5 hours it was unbelievably scratched all over. I did nothing but hold it in my hand and set it down. Further you could not buy a cover for it because Apple did not manufacture enough of them therefore they were all sold out everywhere. When you spend over 300 dollars on a product you do not expect to get a product with sub par maufatcuring. If I had the chance I would return it but guess what? It is too scratched.
I have a nano, and of course it got scratched.
I remembered, that about 20 years ago, I was wearing glass contact lenses,and would get scratches from time to time. I would give them to my eye Dr,for polishing. I have to move, and he decided to tell me how to remove the scratches. It might be hard to believe but he had been using, lighter fluid. He would place the lense, between a clean tissue, and rub gently,and of course the rinse off with water so my eyes wouldn't sting. I have forgotten all this. Yesterday while, trying to come up with a solution, about my nano, it finally hit me about my eye Dr. Well let me tell you I decided to use lighter fluid on the screen of the nano, and I was shocked that lt took every single scratch off. I know, feel I should pass this on to all of you. Why pay for applesauce polish? A can of the fluid is only 3 dollars. If my Dr could use it to polish my contact lenses... and please do not try it on other type of contact lense other then the old fashion glass lenses, which are really used only for VERY nearsighted people.
Good luck to all. By the way I called comp usa, and they told me that bug spray with 20% t does the trick too
Backatone000@aol.com
FYI-
The nano scratches much easier than any of the other ipod's out there. At least mine does, and it seems like I'm not the only one. For someone to compare their ipod to the nano- as far as scratching is concerned, go out and buy one. Mine looks like crap after a month. I'm going to try brasso. I'll post my results tomorrow.
As for the Rolex comment- That's pretty funny.
You can have your new iPods coated at Diamonex.
www.diamonex.com
They produce a Diamondshield coating that can protect plastic against scratching. They coat many plastic items with Diamondshield to reduce scratching.
See http://www.diamonex.com/diamondshield_performance.htm
I had half of mine coated as an experiment. Photo of half coated iPod after 3 weeks use coming next week! This coating is awesome!
In October 2005, I took my 13 year old son to a local Best Buy to purchase his 2GB white Apple iPod nano. He had saved over $200 on his own, and decided he wanted a nano. Everything during our purchase went fine, and we decided it best to purchase the extended 2-year warranty to cover any trouble that we might encounter. Several months later, my son took his iPod out of his case, and saw a large black spot on the left side of the screen. The battery and right side of the song name were still visible, but more than half of the screen blacked out or blank.
We took it back to Best Buy, and they accused us of abuse. I personally was offended. We weren't there to rip off their company; we just wanted what we had paid for. There was never any abuse to the iPod, other than the normal wear and tear that came with owning one. They said that the leakage was due to a pressure crack. While waiting to speak to the main manager, the technicians from Geek Squad that work inside Best Buy came and pressed on my iPod. No doubt it was a pressure crack by now.
Also, I was treated rudely by the service at Geek Squad. The manager of Best Buy told me the same thing, that neither Apple or Best Buy would replace or refund my purchase. Number One - Best Buy strongly encourages you to invest in their "great warranties". But when something happens, you realize and wonder what the plan ACTUALLY covers. The plan turns out to be a waste of money, and provides you with no help when you need it.
Number Two - I've heard a number of complaints about blacked screens against iPod. The iPod showed no outer signs of cracking. Wouldn't this lead you to think an internal defect occured? I think it's their way of ripping American families off. Number Three - Obviosuly Apple should be well aware of this problem. Any other company would work to make their product more reliable and promising. Everyday, normal wear-and-tear, shouldn't cause a screen to bust. All I've got to say is that Best Buy or Apple will never see my business again.
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