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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

Show: Subjects Only | Full Comments
Close Name:Osaka Posts: 10 Joined: 18 Aug 2005
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?

View Name:Guest
Subject: lawyers
Close Name:Rainy Day Posts: 607 Joined: 07 Jun 2005
Subject: Lawyers

Q: You know how to tell if a lawyer doesn’t care squat about his or her client(s) and is just getting greedy?

A: Watch to see if his or her lips move.

View Name:Guest
Subject: Mine Isn't Scratched
View Name:Guest
Subject: I'm sure Apple will and the court will too.
View Name:Guest
Subject: ha ha!
View Name:Guest
Subject: My Nano
View Name:Guest
Subject: Missing the point
Close Name:Al Swearengen Posts: 339 Joined: 10 May 2005
Subject: They don't, but maybe they should

Quote
Guest 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.

Close Name:Mace Posts: 9013 Joined: 07 Aug 2003
Subject:

Is the screen or black color that is easily scratched?

Is it easily scratched or scratches are more obvious because of the design?

View Name:Guest
Subject: If they use the same resin...
View Name:Guest
Subject: Only in the usa
View Name:Guest
Subject: recall?
View Name:Guest
Subject: Degree of Scratch Resistance
Close Name:jacrav Posts: 268 Joined: 04 Jul 2001
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.

Close Name:kevdo Posts: 54 Joined: 09 Dec 2004
Subject:

Quote
Osaka 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.

View Name:Guest
Subject: Those goddamn sharks
View Name:Guest
Subject: nono scratches
View Name:Guest
Subject: re: Those goddamn sharks
View Name:Guest
Subject: You don't need to try and scratch it.
View Name:Guest
Subject: People Like Holding Apple to a Higher Standard
Close Name:Nookster Posts: 93 Joined: 27 Oct 2004
Subject: Apples to Oranges

If my Rolex scuffed after being wiped with a cotton cloth, then I'l be wanting my money back.

My nano did, so I got my money back.

Close Name:BanjoBanker Posts: 68 Joined: 27 Dec 2004
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?

Close Name:gslusher Posts: 2001 Joined: 13 Nov 2002
Subject:

Quote
kevdo 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.

View Name:Guest
Subject: Rolex Watch
View Name:Guest
Subject: Protecting your Nano
View Name:Guest
Subject: bottom line is this is ridiculous
View Name:Guest
Subject: 5 hours = Scratched
View Name:Guest
Subject: how to rid of nano scratches
View Name:Guest
Subject:
View Name:Guest
Subject:
View Name:Guest
Subject: Just one problem with your theory
View Name:Guest
Subject: they don't scratch the same...
View Name:Guest
Subject: Scratches
View Name:Guest
Subject: Busted Screen
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