Attorney Discusses Lawsuit Over iPod nano Scratches

October 26th, 2005 at 3:00 PM - Reports by Brad Cook

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: "Weive been inundated with calls [since the court filing last week]."

Mr. Warneris 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 havenit ruled that out, however."

He added that the services of an expert whois 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 weekis 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 didnit 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 hasnit seen with other iPod models.

"Like the previous iPods Iive 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 nanois. My nano hasnit 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 donit endorse it. I wasnit informed of, or consulted about, its filing, and havenit communicated in any manner with the plaintiffs or their lawyers. I havenit 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 donit know if itis 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, attorneysi fees, the cost of the suit and more. While some have felt that this was excessive, Mr. Warner said that "itis a typical way to assess damage. Itis an alternative measure. The complaint says weire asking for both [the percentage of profits and damages], but itis 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 wouldnit 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.

Appleis 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 itis 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.