OAKLAND, Calif.—Ready for your daily dose of "meta?" This article is about a lawsuit that will stay alive because it has a new plaintiff—who read about the case on Ars Technica.
A bizarre scene unfolded in federal court here today, as lawyers pushing an antitrust lawsuit against Apple's iTunes sought a new plaintiff. The sole remaining plaintiff was thrown out of the case yesterday, after it was discovered that she hadn't personally purchased an iPod in the relevant time period.
The class-action lawsuit claims that Apple's scheme for digital rights management (DRM) illegally shut out competitors, "locked in" consumers, and raised prices on iPods. The case was originally filed in 2005, and a jury trial finally started last week. Plaintiffs are asking for $351 million in damages, and any damage award will be tripled under antitrust law.
Today began with continued testimony from the plaintiffs' legal expert, who explained his theory about how consumer lock-in raised prices on all iPods during the time period in question, from 2006 to 2009. The time period ended when Apple dropped its DRM.
After the expert got off the stand, there was about an hour of questioning of the new plaintiff, Barbara Bennett, by lawyers representing the class. Bennett said she heard about the case from reading about it on Ars.
Bennett described herself as consultant and former accountant. She's a "compulsive record-keeper" who still has her receipts for the iPods she purchased during the relevant time period. She bought a classic iPod in 2005 and an iPod Nano in 2006. She bought them herself, for personal use. That's an important point, since Apple got the previous plaintiff thrown out of the case because her iPod was purchased by her ex-husband's law firm.
Asked if she knew what it meant to be a named plaintiff in a class action, Bennett answered, "It means there are a crowd of people around me and I'm the one with the mouth that flaps."
"Are you aware of the possibility of incentive fees for class representatives?" Apple lawyer William Isaacson asked Bennett.
"I know there are some class action lawsuits that the lead plaintiffs get more money for having helped the case along," she responded.
"Do you have the understanding that you might be eligible for that?" Isaacson asked.
Bennett said she didn't know what kind of eligibility she would have for an incentive fee. She did expect her expenses would be covered since she had traveled from the East Coast on short notice.
At that point, plaintiffs' lawyer Patrick Coughlin suggested that Apple go ahead and begin a deposition of Bennett, which will likely continue throughout the afternoon. "Frankly I would move right now for her [to be the named plaintiff] and be one and done," said Coughlin.
"'One and done' means the other four [potential plaintiffs] get stricken," said Isaacson.
Bennett was good enough for both sides of the lawsuit and also good enough for US District Judge Yvonne Gonzalez-Rogers, who is overseeing the trial. She immediately struck two plaintiffs who were offered earlier this morning, and she didn't mention the other two waiting out in the hall.
"We're on the right track," she said. "I've got someone here who's made a purchase, with her own funds, has some experience, and, at least from what I can tell, is intelligent and concerned, and doesn't have any relation to the lawyers. She reached out on her own accord."
With that, Bennett introduced herself to the members of the plaintiffs' legal team at the Robins Geller law firm. Most of them were meeting her for the first time. Then she went out into the hall to prepare to be deposed. It isn't clear when, or even if, Bennett will testify.
Even though Apple succeeded in knocking out the earlier plaintiff—and having a named plaintiff is a requirement for a class-action to proceed—Isaacson said he wants to see this trial out to the end.
"We were not thrilled with this," he told Rogers yesterday. "We want to win this case on the merits, and we think we're going to."
Listing image by Freimut via Flickr
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