Is the iPod nano hubbub really worth a class action suit?
Posted by Dennis Sellers 
Oct 25, 2005 at 2:29am
Don’t get me wrong: I’m not a blind Apple follower. I seem to get on their nerves often enough (but that’s another story); still, I’m wondering if the hubbub over the “easily scratched” iPod nano screen is much ado about nothing—or at least about very little. It seems that lawyers are the biggest beneficiaries of the legal shenanigans.
As Macsimum News noted on Friday, consumers who claim that the iPod nano screen scratches too easily have filed a class-action lawsuit against Apple, saying they want their money back plus a share of the company’s profits on the music player’s sales. The complaint, filed in the U.S. District Court in the Northern District of California in San Jose on Wednesday, was filed on behalf of nano owner Jason Tomczak and others who have purchased the device. The lawsuit alleges Mr. Tomczak rubbed a paper towel on his nano’s face and “that alone left significant scratches.” The plaintiffs are represented by law firms Hagens Berman Sobol Shapiro and David P. Meyer & Associates.
Maybe it’s just the fact that I’m not prone to suing others. I’ve been run over with an automobile, unfairly dismissed from a job and faced other tribulations, but never felt the urge to sue. I try to work things out with the other parties/people involved and leave the legal eagles out of it. Also, I find it hard to believe that a scratched screen on a US$200-$250 device warrants a class action suit. If Apple did release a crappy product and I bought it, wouldn’t a refund of my money be sufficient?
Interestingly, Steve Berman, one of the managing partners of Hagens Berman Sobol Shapiro LLP, has done some intensive work for Microsoft. As noted here “more recently, Microsoft recognized Mr. Berman’s experience and expertise when the company retained him to be part of the core national team representing the company in antitrust class actions arising from Judge Jackson’s Findings of Fact in the Department of Justice antitrust case against the company.” I guess it makes sense that a pro-Microsoft attorney would be involved in an anti-Apple lawsuit.
According to Berman, who’s lead attorney for the proposed class, Apple chose to disregard the design problem with the iPod nano before its release and has not taken any steps to correct it since then.
“We intend to prove that in an effort to rush the iPod nano to the market, Apple ignored obvious defects in the design and later tried to cover up negative responses received from consumers,” said Berman. “We seek to recover money lost in purchasing this product as well as the $25 fee Apple has chosen to impose on those who have returned their product after it became unusable.”
Previous versions of the iPod separated the screen and controls from the case and was covered with a thick film of resin. In designing the nano, Apple purportedly “reconstructed the housing into a seamless front where the screen and controls reside directly under a much less durable film of resin allowing irreparable damage to occur,”
The suit claims Apple knew the Nano was defective, but chose to go forward with the release and pass the cost of replacing the defective device on to class members. The suit also claims that instead of admitting to the flaw after widespread complaint, Apple concealed the defect and advised class members to purchase additional equipment to prevent the screen from scratching excessively.
I personally find it hard to believe that Apple (or any company) would deliberately choose to sweep a known defect “under the rug” in our litigious society. And Apple, of all companies, would, I’d think, have a fear of marring its reputation for designing and delivering “insanely great” products. Now an error somewhere along the way I can believe. Apple admitted in late September that some iPod nano screens cracked too easily, but blamed that separate issue on vendor quality problems and said it had occurred in less than one-tenth of one percent of the nanos sold at that time.
I own an iPod nano and have seen nothing that indicates its screen is any more prone to scratches than other iPod models. Maybe I’m just lucky. Still, I’ve neither seen nor heard of enough anectodal evidence to make me think that I’m the exception to the rule. In fact, with iPod sales exploding and nano supplies not able to keep up with demand, I find it hard to believe that there’s a widespread problem.
However, if there is, Apple should deal with it. The question in my mind is whether Apple was given proper time to deal with any nano defects before the lawyers were called in. If not, it’s a shame that Apple has to waste resources dealing with the matter. Of course, if there is a problem and nano owners with defective products aren’t being properly served by Apple, that’s a shame of another sort.
On the lighter side, check out this wonderful new song: “Laptop Like You.”. It’ll bring a smile to your face.
Thoughts? Write me at dsellers@macsimumnews.com
Also, don’t forget this week’s Macsimum News poll. Last week Apple introduced new dual core Power Macs. So we’re asking: will you buy one?
della-rue Says:
seems like the common thing here and everywhere is, the share of the profits..
or perhaps, we have such a high expectations on Apple products. All in all, I don’t think it merits a lawsuit but then sometimes, it’s the only way to get the voices heard but usually, common in some places, a bit too rushed forward.
Enjoyed the song, BTW. Cheers :-)
Posted on October 25, 2005
Carl Says:
I concur with your point of view Dennis, and in fact, have written a similar article that you can read at http://www.blackfriarsinc.com/blog/2005/10/ipod-nano-lawsuit-fighting-is-right.html . I think a lot of people forget that this is the same device that you can run over with a car and have it keep playing music. I also think that many have not noted the fact that a $4 can of Brasso can help you fix your scratching problem.
Keep up the good work. -Carl
Posted on October 25, 2005
Rus Says:
While others are promoting their websites here about similar opinions - I wrote this story about the topic just before the lawsuit and collected the stories involved here.
http://jackwhispers.blogspot.com/2005/10/parananoia.html
Read “The Windshield Scare of 1954 / The iPod Nano Scare of 2005 in particular.
Posted on October 25, 2005
Joe P Says:
Does this mean I can sue Apple and Motorola for making us wait an eternity for the iTunes phone?
Posted on October 25, 2005
til Says:
I have a nano, and yes, it has a few scratches on it, I haven’t been too careful with it and dropped it on concrete once, but the scratches aren’t bad at all. They don’t make it any less functional, and the ones on the screen you can’t see when the screen is turned on. It still looks and works great. The scratching issues are blown way out of proportion.
Posted on October 25, 2005
hmurchison Says:
I’ve seen a bunch of scratched up Nanos in the local Apple store. It’s bad enough that I won’t buy a Nano and I lament the passing of the iPod mini which is superior. We took a step back. I don’t mind Apple trying to design cool stuff but it must function properly. The Nano’s are too fragile and I believe the CAL is meritous
Posted on October 25, 2005
Marc D Says:
I noticed some scratches on my Lexus RX300. Maybe I should get an attorney and sue the Toyota corporation for some of its profits.....
Posted on October 25, 2005
Cats Says:
Good one Joe.
For me, it sounds like a “Pro-Microsoft” lawyer would have a motive to “rush” this lawsuit conveniently before the christmas rush. Sounds like one of many dirty tricks that MS is known for. :-)
After the lawyers make the big bucks (most of the time) - the little guy will likely get $10 out of it. These are classic bull-oney lawsuits that should be outlawed. It’s about a single tiny “part” - not the actual nano that’s faulty (maybe). I have no idea how someone could file such nonsense!
The real bottom line here is that it likely started with a phone call from Redmond. And, I wonder who this Jason Tomczak fellow really is - an actor perhaps. Anyone that uses a rough fiberous paper towel to clean any lense or computer screen - is an idiot to begin with!
Posted on October 25, 2005
Thomas Gentry-Funk Says:
I bought a Nano about two weeks ago and do notice some scratches on the surface. I was surprised when I tried to clean it off, that the material I used to clean it scratched it a bit. However, it is plastic and plastic scratches. I bought a little case for it and voila, no more scratches.
Posted on October 25, 2005
Mark L Says:
Oooh, I spilled hot coffee on myself and got burned - I’m going to sue!
I sincerely hope Apple can persuade the court to declare these bozos the frivolous litigants they so transparently are, and then recover every last dime of its defense costs from them (plus a few million for lost profits and some whopping punitive damages...).
Posted on October 25, 2005
David Says:
After owning my Jeep for a week I noticed it had scratches on the grill and along the sides. All I did was drive it on gravel roads, through creeks, and into the woods just like the ads showed. Maybe I shold have sued Chrysler. Sounds pretty silly doesn’t it?
The day I bought my Nano there were two people at the genius bar waiting for replacements. One had a broken LCD and the owner swore it broke while he was sitting at his desk loading it with music. The genius rolled his eyes but gave him a new one. The other was pretty badly scratched up and the owner swore he kept it in his shirt pocket with nothing else in it. The genius replaced that one too and warned him to get a case. It looked to me that Apple was bending over backwards to make customers happy - even when their stories seemed pretty....flimsy.
But here’s the killer, for me. My Nano sits in my shirt pocket which it shares with a pen. My Nano has no scratches after two weeks. I’ve polished it with a paper towel. It has no scratches. It has sat on my desk getting recharged and the LCD hasn’t broken.
I can’t help but think there are lots of people who have abused their iPods and are now trying to get something for nothing.
Posted on October 25, 2005
KenC Says:
Well, Apple only needs to show they are using the same resin as in other iPods to have the case over and done with.
Posted on October 25, 2005
wes Says:
This is a little rediculous - in this society that lacks common sense and is so quick to sue. Regardless, if there was truely a problem with the nano - how can a customer honestly sue for a portion of the profits. that’s just absurd - what a moron
Posted on October 25, 2005
Blayne Says:
Whether you agree with a lawsuit or not the real question here is: Would Apple, a company built on quality, design, and especially end user experience actually choose to knowingly create and build a product that didn’t meet the highest of standards? The answer is, “Hell no”! The only way a suit is possible is if Apple purposely sold a product it knew to be flawed. It is absolutely ridiculous to think that is possible. There is no way a judge or court will ever allow this case to actually go to trial, and if it does it will be thrown out immediately. These are the kind of cases that should spark Court Reform, not little girls trapped in pool drains. The lawyers presenting this case should be disbarred, and the idiots sueing should be sued for being stupid and greedy.
Posted on October 25, 2005
Robert Says:
I find it ironic that a “pro-Microsoft” attorney is heading this lawsuit. If everyone inconvenienced by the sloppily written Microsoft operating system could sue for their lost productivity plus a share of Microsoft’s profits, that corporation would be long gone. Maybe it’s time for just such a lawsuit…
Posted on October 25, 2005
Tom Roberts Says:
Litigious Americans look stupid in the eyes of the world
Posted on October 25, 2005
hmurchison Says:
We may be litigious but it’s rare to find the country with more economic power. We’re doing something right. We erect borders to keep others out whilst others erect them to keep people in.
Hey I want to keep things as litigious as possible. I’m not going to pay beaucoup dollars for Law School only to have people stop sueing each other. Forget that.
Posted on October 25, 2005
Richard Dib Says:
Did you ever heard anybody complain about scratches on its Sony Walkman??? or CD player for that matter??
Apple’s products are so beautifully finished that people buy them not only for what they are, but also to show them off as art.
Therefore, it might be Apple’s fault for spoiling its customers.
(BTW, I have a Nano, a 1st Gen iPod, and a 3rd Gen iPod, they all scratched, and I am not complaining)
Posted on October 25, 2005
hmurchison Says:
Sony walkmans and portable CDs didn’t require a screen as a central management tool. The iPods beyond the shuffle require a screen to access your files. Who wants to show off a scratched up media player?
Apple needs to find a more robust plastic. They gotta stop screwing up their products.
Posted on October 25, 2005
nerdbrain Says:
The punitive law suit has become a peculia American sickness, although it’s not necessarily disreputable to file a suit if you feel you’ve been wronged. What inevitably happens, though, is the realisation that a successful suit can possibly net you millions of dollars in damages. That is when the plaintiff loses his proper sense of judgement and the case becomes a farce.
I feel that some lawyers goad individuals into these kinds of big money suits simply because a win will inevitably make them millions in fees, payable by the defendant if he/she loses. The plaintiff then gets his £50 voucher, and the world goes on about its business.
From what you here about this case, you realise that this individual is after Apple on a level beyond personal wrong. He feels that Apple should recall its products - after, ofcourse, HE nets some of Apple’s profits on the Nano.
Apple’s products are art. There is no problem here with function - just with use. This piece of shiny consumerware isn’t particularly scratch resistant. You can say that Apple is a victim of its own artistic succes, becuase people, it seems, hate to have their beautiful iPods soiled. This is how the iPod accessory market was born! When I first saw the iPod years ago I didn’t even want to touch it. It looked so delicate. Apple has never, since then, endeavored to make them any less precious. (That’s a killer defense for them, by-the-way.) Any such glossy device as the iPod (and Moto V3, and PSP, ect.) WILL lose their shine. Apple hasn’t tried to change that. Its literally a part of the iPod’s appeal. I fear this is an overblown reaction.
Posted on October 25, 2005
PlayItLoud Says:
Robert,
The irony is even worse than that: Steve Berman already defended Microsoft for at least 50 different class-action suits! Some probably included people suing MS for a defective product...(that was in 2000, I guess since then he did another 50 for MS)
Posted on October 25, 2005
MacDude Says:
People are a pain in Apple’s behind, most of this screen scratch mumbo jumbo is caused by dummies placing the nano in the same pocket as keys, tossing the nano around like a pack of chewing gum etc.
The big movers of this lawsuit are the other MP3 player companies and M$ that got aced in the early stages of their product cycle, they are playing dirty tactics now.
Apple will survive, the Nano is still selling like hotcakes and is the coolest thing available. It will be a good holiday season sales regardless.
Drive Flash RAM prices down with a increase in quanitity and we will see the blessed end of hard drives and the issuance of Nano-Notebooks.
Posted on October 26, 2005
Dave Sco Says:
Buy a cover! I have owned every ipod and all are very pretty & have that Tiffany like shine. It is always a sad day when we get that first tarnish. What people have forgotten is that the ipod is not jewelry. The ipod is a portable electronic device that will obviously get scratched during normal pocket use. I hate to say it but, I am on my third cell phone. Funny ... cell phones also get scratched. Should I sue LG or Samsung? Maybe we should start a class action against Levy Straus for not padding blue jean pockets. Give apple a break! If your going to toss your Nano in your pocket ... of course it will get scratched. If you don’t like hairline & fine scratches ... buy a Nano case. I guess people feel mis-led because Steve Jobs made a joke about putting the Nano in that small jean pocket that fits nothing! It was a joke. His point was that the Nano is small. No more lawyers!! Spend your money wisely & buy a case. Don’t sue Apple for pushing design limits. Apple deserves applause for admitting a 1% defect & replacement program. Thanks Apple for your service to us Ipod addicts!! I have owned a Nano since day One & I have never been happier with Apples excel to push ipod design to the next level. Thanks Apple!
Posted on October 26, 2005
Kemp Says:
I have bought 3 Nano’s in the last month, one for me and one for each kid. I have had mine out of the box for 2 days and kept it in a pocket with NOTHING else in it. It already has numerous abrasion scuffs and 2 bad scratches. Called Apple this morning and because they were all engraved they would not take them back, even the one that has not been taken out of the box. Worst of all, the new 30/60 GB IPODs are made of the exact same material according to the person I spoke with this morning. She was also less than helpful, only offering to give me 50% off on a “checkbook style” cover for the Nano. I told he to foget it and I would just join the class action suit. What a shame. Apple deserves everything they are going to get on this one I’m afraid.
Posted on October 26, 2005
Adam Says:
Just a suggestion to those who are unhappy over their easily scratched nanos, give them to the less privileged kids in your neighbourhood and do yourself a favor buy an iriver or zen and live happily ever after.
Posted on October 26, 2005
GiGiGo Says:
What may be worth a class-action suit is the cumulative years of time wasted worldwide by G5PowerMac owners during the past 10 months. These expensive machines were purchased to provide “rock-solid, trouble-free, crash-proof” service for work, research, eduction, &tc;, not for entertainment. Apple’s lack of acknowledgement of debilitating problems, let alone a solution, has led (finally!) to justified anger and severly lowered expectations.
G5 owners who check the forums and links regularly can even be
worried ahead of time about what might go wrong next! It’s G5 Syndrome, aka the Crisis-of-the-Month Club.
With nano video and imac remote, it looks like Steve has really gone Hollywood, turning the (formerly) respected Apple brand into just another entertainment delivery system. Shame!!!
Posted on October 28, 2005
Chris Says:
I don’t know the details of this particular suit, but I feel I need to point out that there is merit to the complaint. Maybe not all Nanos are this sensitive, but some of them are for sure. Mine was. Maybe it was a bad batch, just like with the defective screens.
I bought a Nano and after first setting it up, dropped it into my pocket with my wallet (no keys, no change, etc.—just a leather wallet). A few hours later, that same day, I took it out and the screen was broken and the entire surface of the unit looked like it had been buffed with sandpaper. It was truly unbelievable. There is no way you can convince me that that should be considered normal. No way.
Fortunately, mine qualified for a replacement because of the broken screen, which Apple admitted was a defect. When my new nano arrived, I kept it in it’s protective sleeve until a case arrived. No problems so far. However, a case should be an option, not a necessity. Tiny scratches over time, I can accept, but not this. This is poor craftsmanship.
Posted on October 28, 2005
Akie Says:
Class Action suites in the US should follow the Japanese rules. I am simplfying a little but here is how we handle law suites.
First the person/company that is bringing the action has to tell the court the exact value of the action. This sets the maximum amount the defendent will have to pay.
Second the person/company has to deposit with the court 40% of that amount. In the event the case is lost the deposit is lost. They also have to pay the costs of to defend the case, which is arbitrated by the judge.
If this system were used in the Apple case the case would not be made in the first place.
This legal firm just searchs for cases to bring, then they form a company to bring the case so they cannot be held liable personally. Their tactics are to get a big settlement for the legal firm and a voucher for the class participant.
We need tort reform as above, and allow defendents to go after the lawyers personally for all costs to defend the case. And in the case where the case was based on a fishing trip the court should be allowed to award punative damages. And in the case of a fishing trip the court should have the option to remove the lawyers license to practice law.
Posted on November 09, 2005
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Posted on March 27, 2006
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Dennis Sellers
Dennis has been a newspaper editor/reporter (seven years) and teacher (seven years). He has over 4,000 magazine, newspaper and online articles to his credit. He has also covered the Mac and tech industries for over a decade for such online publications as MacCentral, MacMinute and now MacsimumNews.
MacManic Says:
I returned my iPod nano to the Apple Store in London with a faulty screen. The guy at the Genius bar had not actually seen the problem I presented and assumed it to be the faulty screen issue. He also informed me that Apple hadn’t actually sent any examples through on what the problem actually was. It seemed I knew as much about it as he did. It was a little strange but in 5 minutes I had a shiny new iPod Nano. Not bad, I didn’t even have my receipt with me.
The Nano I returned was already very scratched (after 3 weeks). I still haven’t taken the plastic off my new Nano, in fact the plastic is being held on by tape in some places. This is an unfortunate addition to such an aesthetic product and does seem to suggest the product lacks basic durability.
I am probably a blind Apple supporter but having to buy a case (and not an apple one because it doesn’t protect the screen) makes me a hypocrite.
Sad me :(
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MacManic
In Jobs We Trust (most of the time)
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Posted on October 25, 2005