Plaintiff in iPod Nano scratch lawsuit says suit wasn't his idea

Jason Tomczak, listed as the lead plaintiff in the class-action suit filed on behalf of iPod Nano owners, posted a letter on his Web site Monday claiming he never authorized two law firms to file suit on his behalf against Apple Computer.

In October 2005, attorneys from Hagens Berman Sobol Shapiro and David P. Meyer and Associates filed a class-action suit alleging that Apple's iPod Nano was prone to scratches and that the company defrauded consumers by not admitting design problems with the unit. Before the suit was filed, Tomczak was contacted by lawyers from Meyer and Associates after he posted complaints about his Nano on various Mac enthusiast sites. He told them about those problems, but he claims he never authorized either firm to act on his behalf, according to his letter. (After a link to his site was posted on Slashdot on Wednesday, the site became hard to reach, but CNET eventually got through and verified that a copy of the letter posted in the Slashdot thread is accurate.)

But the suit went ahead with his name on it, Tomczak said. And now the firms are taking legal action against him for trying to back out, he says in the letter. Calls to Meyers and Associates were not immediately returned, and a representative for Hagens Berman said the firm had no immediate comment.

Tomczak's lawyer, Cameron Totten of Sherman & Nathanson in Beverly Hills, said Tomczak filed suit against the firms earlier this year, hoping to clear his name. But the firms have invoked California's Anti-SLAPP (strategic lawsuits against public participation) statutes in an attempt to dismiss his complaint, Totten said.

The Anti-SLAPP statutes were designed to protect individuals from nuisance complaints filed by corporations after an individual asserts his or her right to free speech in a legal setting. The firms are claiming that their class-action suit against Apple was free speech in a legal setting, and that Tomczak is impeding their right to free speech by attempting to remove his name from the suit, Totten said.

A California judge will rule on the firms' motion to strike Tomczak's complaint in July, but the firms have the immediate right to appeal any judgment under the statute, and could keep the case tied up for a long time at significant expense to Tomczak, Totten said.

Why wait so long to write the letter? Totten says Tomczak just wants to set the record straight about his involvement in the iPod Nano case. Tomczak "cares a lot about the Mac community. He wanted to get that letter out to at least try to talk to the community that he feels a part of," Totten said.

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