THE LAW AND iPODS!
As I have mentioned in my blog, I mediate a lot of “lemon law” disputes filed under the Federal Magnuson – Moss Warranty Act, 15 U.S.C. §2301 et seq. and under California’s Song-Beverly Consumer Warranty Act, Cal. Civil Code §1790 et seq. and/or California’s Commercial Code §2313 for breach of express warranty, Commercial Code §2314 for breach of implied warranty of merchantability and Commercial Code §2315 for breach of implied warranty of fitness for a particular purpose. Usually, these disputes involve automobiles. That is, plaintiff believes that her automobile is a “lemon” and wants the manufacturer to repurchase it.
But, last week, the U.S. Ninth Circuit Court of Appeals issued an opinion in which the alleged “lemon” was an Apple iPod! Yes – an iPod!
In Birdsong v. Apple, Inc., Case No. 08-16641,(Birdsong v Apple,Inc. ) plaintiffs-appellants Joseph Birdsong (who bought 2 iPods in 2005) and Bruce Waggoner (who bought one iPod in 2005) filed a class action complaint against Apple, Inc. alleging that the iPod “. . .is defective because it poses an unreasonable risk of noise induced hearing loss to its users.” (Id. at 16870). Plaintiffs did not allege that they suffered actual hearing loss but only that this possibility exists. They sued to force Apple to make a safer iPod. As might be guessed, the district court dismissed plaintiffs’ third amended complaint from which dismissal, plaintiffs appealed.
According to the third amended complaint, the iPod is capable of producing sounds as loud as 115 decibels. Apple does include a warning about avoiding hearing loss or damage, both in the instructions provided with each iPod and on its website.
As noted, neither plaintiff alleged actual hearing loss or damage but only that such was possible. Apple, Inc. filed motions to dismiss the previous amended complaints to which plaintiff responded by filing new amended complaints. However, its motion to dismiss the third amended complaint was heard and granted by the court.
In assessing each of the legal theories alleged, the Ninth Circuit agreed with the district court. For example, the implied warranty of merchantability (under California’s Commercial Code §2314(2)), implies that goods “are fit for ordinary purposes for which the goods are used.” That is, it ““provides for a minimum level of quality.”” (Id. at 16872). It is breached when
“. . .the product lacks “even the most basic degree of fitness for ordinary use.”” (Id. at 16872-3)
Because plaintiffs did not allege an actual malfunction or history of malfunction, much less actual injury, but only made suggestions on how the iPod could be made safer, the Ninth Circuit agreed with the district court that plaintiffs failed to allege any beach of an implied warranty of merchantability.
As plaintiffs abandoned their claims of breach of an express warranty and implied warranty of fitness for a particular purpose, the appellate court did not address these claims.
However, the appellate court did address plaintiffs’ claim filed under California’s Unfair Competition Law which prohibits unfair competition by means of an unlawful, unfair or fraudulent business practice. (Cal. Bus. & Prof. Code §17200-17210). Once again, because plaintiffs did not suffer an injury in fact as required by California’s recent adoption of Proposition 64, the court agreed that plaintiffs lacked standing to bring the claim. Further, the court rejected plaintiffs’ assertion that they did not receive the value of their bargain and thus lost money or property as a result of unfair competition. The court reasoned, once again, that the plaintiffs have not alleged a cognizable defect, but merely the potential for one. Thus, the court determined that the iPod is worth not less but exactly what plaintiffs paid for them.
In short, “. . .plaintiffs’ alleged injury in fact is premised on the loss of a “safety” benefit that was not part of the bargain to begin with.” (Id. at 16879). Plaintiffs admitted that Apple, did, indeed, provide warnings against listening to music at loud volumes. Consequently, the appellate court concluded that as plaintiffs’ claims are only hypothetical in nature, the trial court did not err in dismissing the third amended complaint.
Two days before Christmas, I bought a new iPod because my old one crashed. Until I saw this case, I never thought about “the law” when listening to my iPod. Rather, I connected the simple pleasure of enjoying music or podcasts to listening to my iPod. Now. . I know better! The law “works in mysterious ways”. . .everywhere . . .leaving no stone unturned!
. . .Just something to think about!
Happy New Year! May 2010 bring you peace and prosperity!
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