On Tuesday, a federal judge rejected a proposed class-action lawsuit targeting Apple's extended service plan. US District Judge William Orrick shot down (PDF) all five of the plaintiff's legal theories and also had scathing words for the Texas lawyer who filed the suit.
English v. Apple was originally filed in 2013 in Galveston, Texas, and the case was later transferred to California. The three named plaintiffs, Patricia Adkins, Jennifer Galindo, and Fabrienne English, all said that Apple's AppleCare extended service plans amounted to a "fraudulent and unlawful scheme" because the company sometimes uses refurbished iPhones as replacement units.
But none of the plaintiffs were disgruntled consumers who went looking for a lawyer after getting bad service. Galindo was a paralegal for Renee Kennedy, the lawyer who filed the lawsuit, and Adkins had also worked for Kennedy in the past. Kennedy gave them both "monetary gifts to thank them for their excellent work," and both women used those "gifts" to buy AppleCare Plus, referred to as "AC+" in court papers.
Both of them purchased the service plans for their phones at an Apple store on October 30, 2013. Galindo went to the store equipped with two audio recorders and recorded her interactions with the employees there, following her boss' instructions to do so.
Kennedy bought an iPhone in March 2013 and got a replacement iPhone in September of that year. She "repeatedly contacted Apple regarding the camera in the replacement device," calling it "inferior," and she "repeatedly asked to be provided with a new iPhone in an Apple-branded box." On November 4, Kennedy filed the lawsuit on behalf of the three named plaintiffs.
Fabrienne English, the only named plaintiff remaining in the case, met Kennedy while shopping in Houston on November 1, three days before the suit was filed. Kennedy ultimately "purchased or otherwise obtained" 12 different iPhones between February 2013 and March 2015, according to Apple's records.
“Manifestly incompetent”
"Class counsel's prior relationship with Adkins and Galindo and her involvement in their purchase of AC+ continue to taint this case," wrote Orrick. "The record strongly indicates that Adkins and Galindo purchased their AC+ plans at class counsel's direction for the purpose of initiating this lawsuit."
Not only are Adkins and Galindo not appropriate class representatives, but Kennedy's behavior also indicates that she "could not have adequately represented the class," the judge concluded. "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."
The addition of a second law firm to the case earlier this year didn't go far enough to alleviate Orrick's concerns.
"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 [Kershaw Cutter & Ratinoff] as co-counsel," he wrote. "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."
Reached by Ars this morning by telephone, Kennedy said she was in a meeting and couldn't talk. She didn't respond to an e-mailed request for comment.
“As good as new”
The plaintiff rolled out five different legal theories that would have allowed a class action to proceed, all of which were rejected by the judge. First, English said Apple misled consumers about whether consumers who purchased AC+ "at the time of accidental damage" had used up one of the two allowable "incidents." English said she was wrongly denied a second replacement when she asked for one in February 2014.
Apple agreed that it told consumers who bought AC+ along with a replacement iPhone that the purchase wouldn't count as one of the "incidents." And Apple offered evidence to the judge, showing that's exactly the policy it followed. Even if English was improperly denied an iPhone, that puts her in a "class" of exactly one person, Orrick found. She hasn't shown "that anyone other than her is in the second putative subclass."
Replacement iPhones given to consumers who utilize their AC+ replacements are sometimes new and sometimes refurbished products. Apple representatives occasionally describe those refurbished products as being "as good as new" or "like-new," and Apple terms of service documents describe them as "equivalent to new in performance and reliability." English claimed that Apple employees misrepresented themselves to her in oral communications and would "fraudulently omit" the fact that a replacement phone could be refurbished. Further, she said that because replacement phones come in "plain, white, unbranded" boxes, the packaging itself is misleading.
English's theory ran into a major roadblock here. It's true that Apple replacement phones can be refurbished—the company admits it, although its employees and documents put a positive spin on it with the "like-new" descriptions. But an Apple exec checked into the relevant databases as part of English's lawsuit and found that her replacement phone was actually a brand new phone. That makes her "not a typical or adequate class representative" to pursue a case over whether Apple improperly used refurbished phones, the judge wrote.
The lawsuit hasn't been thrown out entirely, but now that English and her lawyers can't form a class, the suit is likely to be very low-value and may not continue for long. Orrick has ordered a case management conference for next month.
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