Judge Throws Out Class-Action AppleCare Suit Filed Against Apple By “Manifestly Incompetent” Lawyer

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A federal judge this week denied the formation of a class-action lawsuit against Apple over the company's iPhone replacement and AppleCare policies, describing the lawyer who filed the suit as "manifestly incompetent" for her poor legal arguments and mishandling of court procedures.

As noted by Ars Technica's Joe Mullin, the case, English v. Apple, was originally filed in 2013 after attorney Renee Kennedy went to her local Apple Store to replace a broken iPhone. Ms. Kennedy purchased AppleCare+ and received a replacement device, but soon after noticed issues with the iPhone's camera. She also then became aware of the fact that Apple sometimes uses refurbished phones when replacing customer devices, and was upset that Apple employees allegedly hid that fact from her when she purchased AppleCare.

After "repeatedly" contacting Apple with regard to her replacement iPhone's camera, Ms. Kennedy returned to the store and demanded that Apple provide a new phone in an Apple-branded box, a request the store refused. She then instructed both her paralegal, Jennifer Galindo, and a former employee, Patricia Adkins, to go to the Apple Store and purchase AppleCare+ for their iPhones. Ms. Galindo, acting under instructions from Ms. Kennedy, also secretly recorded her interactions with employees at the store. The court noted that both plaintiffs paid for their AppleCare purchases with "monetary gifts" from Ms. Kennedy.

apple genius barImage via Shutterstock

With her associates now "harmed" thanks to their instructed purchases of AppleCare, Ms. Kennedy filed suit against Apple on November 4, 2013, naming Ms. Galindo, Ms. Adkins, and, in a last-minute effort to try and keep things legitimate, Fabrienne English, an unrelated woman who Ms. Kennedy met while shopping three days prior.

Ms. English had also purchased AppleCare+ for her iPhone but had a second issue on top of Apple's use of refurbished phones as replacements. She claims that she purchased the protection plan at the time she sought her first replacement for accidental damage, but was allegedly assured by Apple employees that this initial replacement wouldn't count against AppleCare's limit of two subsidized "incidents" during the coverage period. Ms. English later required another replacement, which occurred without issue, and then another in February 2014. At this third service appointment her request for a replacement was denied, with the Apple employee citing her very first replacement as counting towards the limit, in contradiction to what she claims Apple initially told her.

Ms. Kennedy initially filed suit in Texas, but Apple was able to successfully get the litigation moved to federal court in the Northern District of California. The improper relationship between Ms. Kennedy, Ms. Galindo, and Ms. Adkins resulted in the latter two dropping out, leaving Ms. English as the sole plaintiff. Nevertheless, Ms. Kennedy chose to proceed, and sought class-action status for her suit based on multiple arguments, all of which the judge denied.

First, the suit argued that Apple misled consumers about whether purchasing AppleCare+ at the time of a replacement for accidental damage would use up one of the two subsidized replacements allowed during the coverage period. Apple agreed that its policy is to not count the initial replacement against the purchaser's two-incident limit, and admitted that the denial of Ms. English's replacement request in February 2014, if true, did not conform to the company's policy. Such an incident, however, absent evidence of broader mistakes affecting more customers, makes Ms. English merely a "class of one," and can't be used as the basis of a class-action lawsuit.

judge william orrickU.S. District Judge William Orrick
(via The Recorder)

Second, the suit argued that Apple employees "fraudulently omit" the fact that a customer might receive a refurbished iPhone when replacing their device under AppleCare, and took issue with the way that Apple hides the history of replacement devices by storing them in "plain, white, unbranded" boxes.

Apple does indeed use a mix of new and refurbished devices for both in- and out-of-warranty replacements, with the company describing the condition of refurbished devices used for this purpose as "like-new." This issue alone may be worth a deeper look, but Ms. Kennedy's lawsuit won't be the method of doing so. The reason? Apple was able to track down the records for Ms. English's replacement request and found that she had actually received new phones, not refurbished ones, making her unable to represent a class on this issue.

In rejecting the suit's request for class-action status, U.S. District Judge William Orrick harshly criticized Ms. Kennedy, who specializes in divorce and family law, both for the basis of the suit and her conduct handling the procedural issues of the case.

Class counsel's prior relationship with Adkins and Galindo and her involvement in their purchase of AC+ continue to taint this case. The record strongly indicates that Adkins and Galindo purchased their AC+ plans at class counsel's direction for the purpose of initiating this lawsuit.

Class counsel’s total lack of experience with class action litigation, and her pervasive failure to comply with basic federal and local rules and with my standing orders throughout the course of this litigation, further undermine English’s request for class certification.

With things unraveling, Ms. Kennedy sought to distance herself from the issue by bringing in representation from an unrelated law firm. Judge Orrick, however, was not persuaded:

As with class counsel’s involvement in the inception of this case, her inexperience and poor performance to date are not adequately addressed by the recent appearance of KCR as co-counsel. Moreover, this case has always been and continues to be class counsel’s; she is its source and its 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.

While the court's ruling in favor of Apple on the class-action issue is resolved, the lawsuit has not been dismissed entirely, as Ms. English can still make most of her claims as an individual plaintiff. Without the lucrative possibility of a class-action settlement, however, it is unlikely that Ms. Kennedy and her new co-council will be able to recoup the costs of the litigation, even if they eventually prevail.

The case's future should be determined soon, however, as Judge Orrick has scheduled a conference on February 9 for the parties to decide how to proceed.

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