Apple asks for dismissal of iPod class action suit over missing plaintiff

The case hits a major snag as Apple punches holes in the plaintiff's purchases, rendering the suit eligible for dismissal.

Nick Statt Former Staff Reporter / News
Nick Statt was a staff reporter for CNET News covering Microsoft, gaming, and technology you sometimes wear. He previously wrote for ReadWrite, was a news associate at the social-news app Flipboard, and his work has appeared in Popular Science and Newsweek. When not complaining about Bay Area bagel quality, he can be found spending a questionable amount of time contemplating his relationship with video games.
Nick Statt
3 min read

The jury is scheduled to hear video deposition on Friday from former Apple CEO Steve Jobs, who died in 2011. Getty Images

OAKLAND, Calif. -- Apple filed for dismissal Friday of a long-standing antitrust case alleging it harmed digital music competitors and overcharged consumers for iPods.

The reason? None of the plaintiffs in the case may have ever purchased any of those overpriced iPods.

Apple first provided documentation in a court filing Thursday trying to prove the last remaining plaintiff in the case, Marianna Rosen, had not purchased any iPods that would qualify for the class period. The two in question, an iPod nano from 2007 and an iPod Touch from 2008, were first disclosed during Rosen's testimony on Wednesday. Her other purchases fell outside the requisite time span between September 12, 2006 and March 31, 2009.

After Apple collected the serial number on a device in her possession at court, Apple discovered that both of the remaining devices that were eligible to be included in the class period were in fact purchased by the law firm of her husband. Apple has said during the trial Rosen's husband has worked on cases closely in the past with the law firm representing her.

"Because Ms. Rosen [made] no purchase of any allegedly affected iPod in the class period, she has suffered no damages and thus lacks standing under Article III of the United States Constitution," Apple's lawyers wrote in a court filing Friday proposing an order granting its motion to dismiss.

By not purchasing an iPod in the time span of the class period, Rosen cannot collect damages if Apple were to lose the case. More importantly, it is required by law that a plaintiff suffer injury to bring a class action antitrust case to trial. Rosen doesn't fit the bill, Apple says. The other plaintiff, Melanie Tucker, was known prior to trial to not have an eligible iPod purchase and was withdrawn from the case Friday.

The trial began on Tuesday and is now in its fourth day in which a videotaped deposition from former CEO Steve Jobs, who died in 2011, is expected to be shown. The trial is set to conclude next week before the jury must reaches a final verdict, yet the confusion surrounding Rosen's purchase has raised concern over the case's outcome.

"I am concerned that I don't have a plaintiff. That's a problem," Judge Yvonne Gonzalez Rogers said Thursday after Apple first raised concerns about Rosen's iPod purchases. The plaintiff's lawyers are expected to file a response over the weekend and claim Rosen did purchase both iPods.

The class action case, which has dragged on for almost a decade now, concerns how Apple used its iTunes software updates in 2006 and 2007, which when implemented blocked competitor's music files from being loaded onto an iPod. The jury must decide whether Apple's intent at the time was to maintain its relationship with record labels and protect itself from hackers or, as the plaintiffs have alleged, harm competitors and maintain a firm hold on the digital music and MP3 player markets, leading to iPods priced higher than necessary.

More than 8 million customers purchased iPods in the class period between September 2006 and March 2009, and the plaintiffs are seeking about $350 million. Under US antitrust laws, that amount could triple to around $1 billion.

If the plaintiff's lawyers are not able to provide evidence that Rosen purchased an affected device, there is the possibility that they could substitute in a new affected plaintiff or expand the class to a wider time frame to make Rosen's other purchases eligible.